Age and Mediation

Introduction

What is the importance of age in alternative dispute resolution? One element is integration of older adulthood and mediation. Advocates have developed “elder mediation” to help empower older adults, to help resolve family conflicts impeding “eldercaring coordination,” and to facilitate difficult decisions over, “What to do with Dad” (or Mum). Integration of gerontology and mediation have been signaled as, ‘The Coming of Age” (Wood and Bowman-Kestner 1990) for alternative dispute resolution. This double entendre points to two things; age as a consideration in mediation, and the impact of a demographic “longevity revolution,” as more people are living not only into old age but also the “very old” ages of 85+

great-grandmother photo

 

In the U.S., the connection between age and mediation began through civil rights advocacy and legal reform on behalf of older adults. The focus was adult guardianship. A national investigation by the Associated Press (AP) in the 1980s exposed rampant problems in what they called an “ailing system.”

How adult guardianship as solution can become the problem

Adult guardianship is a legal decision in which a judge, jury or tribunal transfers legal rights and responsibilities from adults to an appointed guardian. The intention is to provide a surrogate decision-maker for adults who cannot manage finances and/or ensure self-care. Although comprehensive data on guardianship in the U.S. is lacking, past studies have shown a disproportionate number of older adults under guardianship (AP 1987; Keith and Wacker 1994).

The AP expose found egregious problems in court petitions with paltry evidence, hearings lasting minutes without due process protections, and lack of oversight. A presumably benevolent intervention lacked sufficient scrutiny.

Since then, news stories continue to expose guardianship abuse within a poorly monitored system (Wood 2016) that allows exploitation. In a recent documentary, the intended heartwarming story of the world’s oldest newlywed interracial couple abruptly ends through guardianship intervention.

holding globe w older adults

Once under guardianship, an adult becomes a ward of the court, and loses such basic rights as choice over where to live and whom to marry. The investigated necessity of guardianship, then, should be balanced with concern for rights protection and self-determination.

Mediation as a Solution?

Could mediation have facilitated a better outcome? Mediation as elder advocacy intervention was pilot tested in adult guardianship cases as part of legal reform (Wood 2016). One purpose was to refer cases that were motivated through family conflict more than need for guardianship. Goals included helping identify less restrictive alternatives, resolve conflicts that were displaced into “custody feuds” over adult parents, and to improve family functioning to better focus on meeting the needs of older adults (Crampton 2013; TCSG 2001). A less restrictive alternative could still be a legal remedy, such as power of attorney, which targets financial and/or health care decision-making. Another purpose was to address underlying conflict in cases after guardianship appointments. For example, a guardian inappropriately using this legal authority to prevent other family from contact would lose in court and be referred to mediation. In these cases, the goal is not to supplant the legal system as much as to find a better tool for solving problems that were not best addressed through law. An adult under guardianship due to cognitive impairment, for example, might still be included in mediation with modifications, special training, and support (Barry 2013). In Australia, the egregious problems of court-based trials found in U.S. adult guardianship cases have been addressed through use of specialized tribunals (Carroll and Smith 2010). The potential use of mediation for non-legal issues, such as family conflict, nevertheless remains (Carroll and Smith 2010).

In returning to the case of Edith and Eddie, it seems mediation could have played a role. In a follow up investigation inspired by the documentary, Judith Graham found that underlying guardianship decision-making about Edith were longstanding disputes and caregiver strain among Edith’s adult children. She describes an underlying problem of, “Three daughters in distress over the care of an aged mother and roiled by disputes played out in courtrooms among far-flung siblings.”

Would mediation have empowered Edith to better voice her wishes and receive the care she needed? My next blog addresses this question through results from my elder mediation study in the United States, and ongoing challenges in the development of age and mediation into an ADR specialty.

Photo credits: The first photo is from freestocks.org and the second is from pixabay.com

References cited for sources that might not have hyperlinks:

  • Barry, L. (2013). ‘Elder mediation’, Australasian Dispute Resolution Journal 24: 251. Accessed through SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2386459
  • Bayles, Fred (1987). “Guardians of the Elderly: An Ailing System Part I.” Associated Press. Accessed from: https://www.apnews.com/1198f64bb05d9c1ec690035983c02f9f
  • Carroll, R., & Smith, A. (2010). Mediation in guardianship proceedings for the elderly: An Australian Pprspective. Windsor YB Access Just., 28, 53.
  • Crampton, A. (2013). Elder mediation in theory and practice: Study results from a national caregiver mediation demonstration project. Journal of gerontological social work, 56(5), 423-437.
  • Keith, P. M., & Wacker, R. R. (1994). Older wards and their guardians. Greenwood Publishing Group.
  • Kestner, P. B., & Wood, E. (1988). Mediation: The Coming of Age: A Mediator’s Guide in Serving the Elderly. American Bar Association, Standing Committee on Dispute Resolution and Commission on Legal Problems of the Elderly for the National Institute for Dispute Resolution.
  • The Center for Social Gerontology (2001). “Evaluating mediation as a means of resolving adult guardianship cases.” Available through TCSG: http://www.tcsg.org
  • Wood, E. (2016). Recharging adult guardianship reform: six current paths forward. Journal of Aging, Longevity, Law, and Policy, 1(1), 5.
  • Wood, E., & Quinn, M. J. (2017). Guardianship Systems. In Elder Abuse (pp. 363-386). Springer, Cham.

 

 

 

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OPPORTUNITY: Call for EOIs for ADRAC Council Membership

Network members are invited to apply for membership of The Australian Dispute Resolution Advisory Council (ADRAC). As ADRAC is not funded, Council members must have capacity to pay their own costs and volunteer their time for Council activity. This is an opportunity to contribute to the dispute resolution community. More about ADRAC can be seen at their website.

ADRAC Membership Expression of Interest (pdf call for expressions of interest)

AUSTRALIAN DISPUTE RESOLUTION ADVISORY COUNCIL (ADRAC)

COUNCIL MEMBERSHIP– EXPRESSIONS OF INTEREST

2019 – 2021

Expressions of Interest

ADRAC seeks Expressions of Interest for appointment to its council. In all, seven new members from across Australia, are being sought. Four new members will replace retiring members, and three are sought to expand the Council from 11 to 14 members.

ADRAC

ADRAC is a national, not-for-profit, public interest, independent ADR policy body. It examines ADR techniques, education and standards, and promotes the use of ADR in all areas of dispute. It makes submissions to Governments, law reform and other interested entities, it conducts and publishes studies on aspects of dispute resolution and it promotes the work of those in the dispute resolution field. ADRAC’s existing membership, its Charter and its work may be viewed at http://www.ADRAC.org.au.

ADRAC is generously supported in executive and legal functions by the Australian Government Solicitor and in addition, is currently seeking sponsors.

Members

Members of ADRAC generally have dispute resolution expertise or represent a specific area of dispute management interest. Members are self-funding at present, unpaid and act in the public interest. Appointments are generally for two years but are extendable or reducible as needed.

Requirements currently include two full-day, face-to-face meetings and up to eight, electronic meetings of less than one hour, per year, and committee work that includes active contribution to ADRAC’s activities. ADRAC values diversity and runs on commitment, enthusiasm and creativity, both at meetings and in the work it does.

Applications

If you wish to be considered for appointment to ADRAC, please make a written submission (outlining your relevant experience/expertise and including a current CV) to office@ADRAC.org.au . To be considered, your expression of interest should be received by Friday 8 March 2019.

Final assessment of applications will be made by a group including external advisers.

Inquiries: Please ring Jeremy Gormly SC (Chair of ADRAC) on 0400190953 or 02 92646899.

Where’s the evidence? Service providers’ research activity in family dispute resolution and related services

One of my favourite researcher pastimes is musing how to find better evidence about the experiences, preferences and needs of potential clients of dispute resolution services. How do we know what people want from their dispute resolution experience? There is a great wealth of research data captured by dispute resolution service providers, and those data don’t necessarily always come to the attention of researchers when they conduct literature searches in their habitual ways. Our network has the potential to bring research findings to the attention of people who want to access research about dispute resolution.

evidence

Below are some examples of research projects, data and findings that are publicly available through service providers, specifically relating to family dispute resolution and related services. I hope readers might find some of these useful in their work.

Relationships Australia National Research Network

Relationships Australia is a national organisation that provides a plethora of services in relation to family and other relationships. They use their broad reach to work collaboratively between their various services to conduct research, through their National Research Network. A current project is a longitudinal Family Dispute Resolution (FDR) Outcomes Study, which promises to provide considerable insight into the quality of outcomes achieved in FDR. A brief summary of the findings from a 2012 study into the psychological distress levels in Relationship Australia family support services clients is also published on the website. Each month, Relationships Australia runs an online survey on a particular topic, and the findings of the survey are published. These surveys seek public opinion about various matters, and this might provide useful “snapshot” evidence about likely perceptions of particular processes, for example, child inclusive family dispute resolution.

Interrelate

Interrelate is a not for profit provider of relationship services that specialises in supporting parents and children. It has a healthy culture of research and a dedicated research and service development team, evaluating programmes in-house and in collaboration with research partners. In 2014 Interrelate presented its experiences of establishing a service-based research culture in a conference paper titled Creating a Research-Aware Workforce: Lessons from the Trenches. Publications are available on the Interrelate website. Some of the publications of particular interest to dispute resolution researchers include the 2017 Certifying Mediation: A Study of Section 60I Certificates, in collaboration with the Centre for Social Research & Methods at ANU and co-funded by the Commonwealth Attorney-General’s Department. The 2011 Report on the Study to Improve Understanding of Non-Agreement in Family Dispute Resolution is also an interesting research report, which was conducted by The Australian Institute of Family Studies. Also available are evaluation studies of Interrelate programmes, including:

Legal Aid Services

Back in 2008 KPMG conducted, on behalf of the Commonwealth Attorney-General, an evaluation of Family dispute resolution services in legal aid commissions. Legal Aid Victoria includes research activity as a core part of its business. The following research project reports are available on the Legal Aid Victoria webpage:

Legal Aid NSW published reviews, evaluations and discussion papers that it conducted in-house or commissioned between 2008 and 2015. These include Felicity Bell’s Discussion Paper on Facilitating the participation of children in Family Law processes, and client satisfaction survey results.

Anglicare

Anglicare Sydney have a Social Policy and Research Unit that conducts research and publishes reports on the Anglicare website. These include the 2018 Going it Alone: A Study of Lone Person Households, Social Isolation and Disadvantage in Sydney.

Finding the evidence

Quality research work occurs within service provider organisations. Research supports the field in the evolution of both practice and theory.

For researchers, the impracticality of capturing all of the research findings relevant to their work is an ever present challenge. The dispute resolution field spans all organisations, fields, disciplines and professions. This post focused upon family dispute resolution and related services, only one aspect of the dispute resolution landscape. Future posts might draw together service based and publicly available research related to other topic areas. Please contact me if you would like to volunteer to put together a similar post in your area of specialty.

 

Legal capacity in mediation – a short recap of the fundamentals

This post has been contributed by Adjunct Professor Sue Field, in collaboration with network member Hanna Jaireth.

It is common knowledge that we have an ageing population in Australia. In 2017, 15.4% of the population were over the age of 65 years and this group is projected to increase more rapidly over the next decade, as further cohorts of baby boomers (those born between the years 1946 and 1964) turn 65 (3101.0 – Australian Demographic Statistics, Jun 2017).

It is also common knowledge that as we age we have an increased risk of developing some form of cognitive impairment. According to Dementia Australia one in ten people over the age of 65 years have dementia; and this increases to three in ten people over the age of 85 years (Dementia Australia).

Therefore, it is safe to assume that professionals working with an older client base may well be confronted with situations where the mental capacity of their client may be in question. This is equally true of those engaged in mediation, where one, if not many, of the parties involved may not necessarily have the requisite mental capacity to engage in the process.

It is timely therefore to indulge in a short recap of the fundamentals associated with mental capacity.

At the outset, in respect of mental  capacity, there are two basic premise. The first is that there is a presumption of capacity and the second is that capacity is a legal, not a medical, concept. But presumptions can be rebutted. In this instance it can be rebutted by the presence of a valid trigger (or red flag). For example the person concerned displays behaviour that is not the behaviour considered usual (or normal) for that particular person. Simple examples of triggers are constantly repeating the same sentence or a total inability to repeat, and comprehend, what has just been explained to them. However, any trigger should be further explored as there may be a rational explanation for the behaviour. For example is the person stressed in their current environment, are they on medication, or has their medication recently been changed. Do they have a urinary tract infection, or some other illness.

Perhaps in the example of not being able to repeat what has been explained to them, consideration should be given to the fact that  the person explaining a situation has not taken into account the level of education/cultural differences/or the stress occasioned by the environment!

The second premise, that is, that capacity is a legal, not a medical concept means that should the matter end up in a court or tribunal that legal body will make a determination of the person’s capacity, based on the evidence provided.

But what exactly do we mean by “mental capacity”? Not all jurisdictions provide a statutory definition. Therefore reliance is placed on common law, in particular the 1954 High Court case of Gibbons v Wright [1954] HCA 17 per Dixon CJ, Kitto and Taylor JJ, where their Honours stated that:

“The mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.”

Caution, as mentioned supra, should be exercised here to ensure that the explanation is given in a manner that the relevant person can understand!

A further caution is not to assume that because a person has a diagnosis of “dementia” they cannot make a decision. A person may well be diagnosed with dementia at a very early stage of the condition and manage their lives successfully for many years. However, such a diagnosis may be seen to be a trigger and therefore should be explored – and documentation in situations such as this is of vital importance.

It can be seen then, that capacity is not global (in other words it is not an all or nothing concept). It can be domain specific, that is, the person may have capacity for health decisions, but not financial, and vice versa.  But even within a specific domain capacity is, in fact, decision specific. A person may have capacity to make a will (testamentary capacity), but not capacity to enter into a complex contract or engage in mediation.

This brings us to the term “legal capacity”. This is generally accepted to mean that the person has ability to:

  • make a binding legal agreement;
  • sue another person; and
  • make other decisions of a legal nature (Legal Aid Queensland)

It can be seen, therefore, that for a person to engage in mediation, they must possess legal capacity. Finkel and Linden note that a mediator should have sufficient information and understanding of mental capacity “that is commensurate with the risk of her/his judgement being inappropriate.”

To ensure this they suggest that the mediator should be satisfied that

  • the party [is] receiving information?
  • the party [is] integrating that information in a way that reflects a rational, replicable process? [and that]
  • this person [can] communicate the results?

(Arthur L Finkel and Jon Linden, ‘Determining “Legal Capacity” in Mediation’ May 2003)

It is suggested therefore that should there be concerns about the capacity of a person to engage in mediation the mediator could perhaps ask themselves the following questions:-

  • On what am I basing my view that capacity is in question?
  • Should the mediation commence, be adjourned or even cease?
  • What are the implications for this decision?
  • What are my professional responsibilities in this regard?
  • What are the guidelines that guide my decision? and
  • What are the implications of “getting it wrong”?

We cannot deny that we have an ageing population and as we age we do have an increased risk of developing some form of cognitive impairment. Equally we must expect that older people may well form part of our practice. Are we, therefore, ready to accept the challenges occasioned by these changes?

SueFieldAbout the author: Sue Field is an Adjunct Associate Professor at Western Sydney University where for the past fourteen years she has taught elder law to undergraduate law students. Sue is also an Adjunct Associate Professor at Charles Sturt University, a Lead Investigator with the Cognitive Decline Partnership Centre, a Research Fellow at the University of Western Australia, a Director of the Australian Centre for Elder Law Pty Ltd and a Distinguished Fellow at the Canadian Centre for Elder Law. Sue is co-editor of the Elder Law Review, the only refereed elder law journal in Australia. In conjunction with Professor Carolyn Sappideen and Karen Williams Sue has co-edited a recently released text on Elder Law and is working on a co-authored text on elder law for the layperson. Sue has published widely and presented at many international and national events.

Sue is a member of the NSW Law Society Committees on Elder Law, Capacity and Succession, and Rural Issues and was on the Advisory Committee for the Australian Law Reform Commission Inquiry into Elder Abuse.

Sue also learns the cello.

 

What Would YOU Know About It? Some thoughts on gaining experience as a young mediator

This post by Haley Weir originally appeared on the Kluwer Mediation Blog

                                              what-would-you-know-about-it-image

It was a phrase I’d imagined silently echoing in the minds of parties, co-mediators and solicitors, but this was the only time I had heard it vocalized.

It was uttered during one of my first coordinator roles in the civil courts of Scotland, where my role was to inform and promote the services of the mediation clinic to parties pursuing litigation under Simple Procedure. I was nervous to say the least. The aim of the role seemed unclear and, as an inexperienced mediator, I lacked authority and confidence.

The Sheriff’s strong critiques of a contractor’s failure to complete the building of a deck (over many years) had been heard, and it was suggested to the parties that they speak to the mediators present, in the hope of resolving the issue with no further legal action.

– Cue me.

I believed this case was ideal for mediation. I introduced myself to the two gentlemen involved in the claim, explaining the potential benefits of mediation. It soon became apparent, by the respondent’s resistance, that he was uninterested in my pitch.

I continued my presentation and expressed my enthusiasm for mediation, until I was met with that phrase:

“What would YOU know about it?”

Fair enough – what do I know about the construction of a deck? Very little, and I was quick to articulate this to the respondent, adding, “Though, I am assured YOU know quite a bit on the matter, which is far more relevant to this case.”

I attempted to recover by reiterating that my role, as a mediator, was to facilitate a meaningful conversation between the parties, and that the subject matter, content and interests were determined by the parties and not myself.

But, as you may have guessed, this case did not mediate. It is doubtful that the Sheriff who would hear the case would have an exhaustive knowledge of deck construction either and the matter would ultimately come down to contract law, not construction. However, the participants had a lack of trust in both the mediation process, and in my experience and ability as a young mediator.

Perhaps, I have been mediating for longer than I realized. I was sought out on the playground to advise and resolve disputes such as, “Whose turn was it, really?” I dabbled in mediation before I knew the term (though my argumentative and opinionated personality did not reflect a high standard of impartiality).

I went on to explore the concept of issues and crisis management as a module in public relations in my undergraduate studies, before moving to my postgraduate studies, where I discovered mediation and alternative dispute resolution.

The field offered me the opportunity to combine my interests in working with people, taking a thoughtful approach, problem solving and creativity. Once commencing my studies abroad in Scotland, I continued to develop these skills while learning to implement strategy and theory into the practice. After clocking the necessary hours as a student mediator and meeting other requirements, I began to take on cases as a lead, co-mediating with current or past students in the Master’s program.

During these cases, it was assumed (more than once) that I was the trainee there to observe and learn from my more experienced counterpart. It didn’t matter that I was conducting, guiding and facilitating a majority of the process. People expected our ages to correspond with our experience level. My age spoke for – and continues to – speak for me as a learner, not as a mediator.

So, as a young mediator, what DO I know?

• I know how to be reflective on my thoughts, actions, feelings and how to convey these to others in an effective, impartial, genuine manner.

• I know that dealing with sensitive, complicated human emotions and interactions requires constant learning, adaptation and creativity, all of which I have a strong passion to continue pursuing.

• I believe that social intelligence learned through curiosity, and a strong desire to understand human behaviour, has assisted me in learning about people’s motivations and expectations. I have the compassion to commit time and sincerity to the cause and outcome of mediation.

• After time spent in the hallways and courtrooms of Simple Procedure, I have inadvertently learned more about the construction of decks (as well as showers, fences, window treatments, and doors for that matter!). I will learn about many content areas that cause dispute but mediation is about being heard, acknowledging needs and wants and arriving at a solution that maintains dignity.

• More importantly – I have developed an awareness of the need for sustainable conflict management skills. I work with and strive to use the mediation skills of open questioning, impartiality and listening both actively and passively. Parties are experts in their lives and what solutions they can accept, conflict is normal with problem solving as the key to conflict resolution.

• Lastly, I know I can’t possibly know everything about conflict and people management. Parties in mediation come from their own contextual backgrounds and they are the experts when it comes to their conflict and potential resolutions that would, or would not, suit them. Your curiosity and interest as a mediator show the parties that you are present, impartial and there not to enforce, but to guide them through the issues.

I urge young mediators (myself included) to continue to pursue opportunities for mediation experience and remind themselves of what we can bring to the table. I believe that young mediators have the skills and potential to contribute to the field and hope that employers and organizations can see this worth with offers of opportunities to provide the most coveted skill of all, experience.

Who to Ask: Transferability of Findings Reported in Empirical Studies of Mediation

This is a summary of a research paper presented at the ADRRN Roundtable convened at the University of the Sunshine Coast in December 2018; comments made by ADRRN colleagues have been taken into account in this summary.  The research paper reports on one component of a much larger research project in which a systematic appraisal is being conducted of a selection of articles describing empirical studies of mediation

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[Vektor ID 563739124/Shutterstock.com]

When I am reading an article about an empirical study of mediation effectiveness, I want to know whether I should incorporate into my mediation practice the techniques, strategies, and behaviours that are described in the article as having been effective.  In other words, how transferable are they?

When appraising the transferability of the results of an empirical study in any field of research, two key factors are taken into account: the study’s identification of its broad sample population, and its selection of study subjects from that population.  Where neither the sample population nor the selected study subjects are appropriately representative, there is a significant reduction in the external validity of the study’s results.  In this context, it is important to establish what might be a representative mediation population.

It has been said that mediation can ‘… play a role in virtually every significant area of social conflict’ (K. Kressel, The Mediation of Conflict: Context, Cognition, and Practice, in: P. T. Coleman, M. Deutsch, and E. C. Marcus (Eds), The Handbook of Conflict Resolution: Theory and Practice (3rdEdition, Jossey-Bass, USA, 2014), p 817).  This suggests that a representative mediation population is the broad diverse community, all of whom are actual and potential mediation participants.  When mediation researchers select people to participate in their studies, it can be assumed that they are choosing subjects who represent that broad diverse community. Yet analysis of the selected mediation literature suggests that this is not the case: mediation researchers rarely mention population representativeness, and appear to choose their study subjects from a very limited range of groups (or programs):

  • Mediator and non-mediator participants in some court-connected mediation programs;
  • Mediator and non-mediator participants in some structured community mediation programs;
  • Mediator and non-mediator participants in some programsdesigned for family/custody disputes; and
  • University students (where the studies are of simulated mediation).

As the list shows, subject diversity in mediation research is restricted by the research’s own limited focus on a selection of government funded services and programs, as well as services provided through public institutions.  This focus leaves other services, and participants, largely unexamined.

The lack of representative diversity in study subjects applies to the mediator as well as non-mediator participants, and it is only one of many issues claimed by mediation researchers to affect how they are able to do their work.

The issues that have been described can be categorised as follows:

  • Obstacles (preventing certain empirical research from being undertaken): the lack of access to adequate funding; ethical restrictions that prevent rigorous examination of mediation practices and thus limit what is known about mediation,potentially disadvantaging future mediation clients;
  • Impediments(making it difficult to conduct certain empirical research): the nature of the mediation process itself (including confidentiality restrictions); the increasing incidence of mediation research being conducted in law schools where there is limited social research experience and expertise; the lack of consistent research methodologies; definitional problems (e.g., the meaning of “mediation” itself, the variety of models of practice, and the various measures of mediation effectiveness); external influences on research purpose and design (such as interest groups, funders, and researcher affiliations); and reputational concerns of potential subject mediators (i.e., if they participate in a particular study, what might be reported about them?);
  • Recurrent flawsin research design have been noted to include: heavy reliance on data collection from mediator and non-mediator self-reports; and the inherent tension between funder preferences for relatively cheap/quick studies, and protection of research rigour; and,
  • Persistent gapswhere little is known about: private mediation; mediation outcomes other than settlement;individual mediator behaviours, or microskills; how mediator values and preferences influence what they say and do in mediation; systemic issues that might influence the mediation process, and what mediators say and do within it; and the lack of comparative studies (i.e., investigations of similar mediator approaches in different contexts, or of different mediator approaches in the same context).

Other potential problems that are not mentioned often in the mediation literature include:

  • How the researcher’s own preferences and experience might influence:
    • Research design,
    • Choice of data collection methodologies,
    • Method of data analysis, and
    • Study subjects’ responses;
  • The lack of gender, race, ethnic, and socio-economic differentiation in the selection of study subjects, in the collection of data from and about research subjects, and in the analysis of that same data. In addition, not enough is known about the demographic differences between mediators in any context, nor about how those differences might affect what mediators say and do, and affect the responses and behaviours of non-mediator participants.

It has been observed that, in all fields, there is pressure on academics to publish as frequently as possible, with their research ability being assessed by the numberof published items rather than by the qualityof reported studies.  In the mediation field, this issue is compounded by the relative lack of specialist mediation publications, and the lack of sufficient mediation knowledge in other publication areas where mediation researchers do publish (e.g., law journals, business journals, social science journals); the latter can result in valuable articles not being published at all, and/or their value not being recognised.  Also, it has been suggested that publishers give preference to articles that confirm mediation’s outcome effectiveness.

Any of the above issues can influence the context and setting of an empirical study of mediation, as well as the research design and its scope, the nature of the research data that is collected, the methods used to collect the data, and the focus of the data analysis.

In particular, many of the issues are likely to influence the researcher’s access to appropriately representative populations, and, ultimately, the transferability of the study findings, and their relevance to practicing mediators.  It is important for the future practice and development of mediation that some of these issues are openly acknowledged and addressed.

The ADRRN is a valuable, respectful, and friendly forum in which mediation researchers can discuss their work with their peers.  It is also a forum in which mediation researchers can consider the above issues.  For example:

  • What are the options for improving mediation researchers’ understanding about social science research methodologies?
  • How to identify realistic and creative research funding and support that enables:
    • Access to a broader and more representative population of subjects for empirical research;
    • Access to diverse mediation settings and diverse research subjects;
    • Empirical investigations that are more complex and innovative than evaluations of mediation outcomes; and
  • How to encourage the dissemination of, and access to, mediation research, without being guided solely by results and findings?

The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

by Jackie Weinberg , Monash Law School

Over recent years, ADR has become an integral part of Australian legal practice. This, along with a number of other forces, has led to a recognition that ADR needs to be taught in law schools. In my PhD research, I explore whether it follows that ADR should be taught in clinical legal education (CLE). In this paper, I report the findings from my PhD research addressing the question of the role of ADR in CLE. Drawing upon interviews with clinicians, I consider whether ADR ‘fits’ within CLE, and if so, on what basis.

jackie paper 2 2018

Jackie presenting her paper on 3 December 2018

My paper shows that clinicians saw CLE as striving to have a strong link to “social justice” and “legal service”. Similarly, they viewed ADR as having access to justice as its focus. Although the links were not always explicitly made by the participants, the implicit connection and “value” of ADR in CLE, in their minds, indicated that they both align with a common goal of furthering access to justice. Clinicians believed that a common mission exists between ADR and CLE in the form of the advancement of social justice. Community Legal Centres (CLCs), incorporating clinical programs, utilise ADR to accomplish their mission of social justice and this facilitates the implementation of clinical practice goals.

Some clinicians expressed caution that there are limitations in relation to ADR providing access to justice. However, in the course of exploring with the participants the issues and concerns of both CLE and ADR, it became apparent that clinicians still viewed ADR as integrally linked to social justice concerns and the advancement of access to justice. Clinicians viewed ADR as a valuable component of CLE, enhancing student awareness about social justice and the various options for dispute resolution. Bloch echoes these views, stating “clinical legal education has always had a broader goal-to teach law students about what lawyers do and to understand lawyers’ professional role in the legal system in the context of having students provide various forms of legal aid services.”[1] Bloch goes on to emphasise that because ADR and clinical education share overlapping goals of advancing the interests of parties and addressing deficiencies in access to justice, ADR education and CLE are “slowly integrating and advancing beyond the teaching and practice of basic negotiation skills that have been included in the clinical curriculum for years.”[2] Bloch opines, “clinical programs that teach and practice ADR can inform, improve, and reform not only legal education, but also-over time-the practice of law and the legal profession as well, thereby furthering the social justice goals of the global clinical movement.”[3]

From my findings and supported literature, I argue that the close association between the social justice “missions” of CLE and ADR, enhanced by their relationships with CLCs and legal aid programs, provides a solid foundation for the teaching of ADR in CLE.

weinberg

 

Jackie Weinberg is a law lecturer, PhD Candidate, and Clinical Supervisor in Monash Legal Practice Programs at the Faculty of Law, Monash University. Jackie’s research is focused on an exploration of ADR in clinical legal education. Jackie recently published an article in the IJCLE titled: Keeping Up With Change: No Alternative To Teaching ADR In Clinic. An Australian Perspective. In addition to ADR, Jackie has keen interest in student well-being and technology and the law, focusing on access to justice in clinical legal education.

 

[1] Frank S. Bloch, The Global Clinical Movement (Oxford University Press, 2011) 167

[2] Ibid.

[3] Ibid.