One of the goals of the Australian Dispute Resolution Research Network is to create an environment where researchers can support one another in a rigorous and kind manner to engage in high quality scholarship. I am so excited that Jon and Rachael accepted my invitation to write this piece. Both of them are established professors with an excellent track record of scholarship both within and outside the dispute resolution subject area. Their story of taking their idea through three double blind peer review processes plus an ADRRN Roundtable to eventual publication demonstrates their resilience and confidence that their idea was a good one worth pursuing. Researchers need to foster an ability to accept peer review feedback graciously, consider it an opportunity, decide how to respond, and persist with work that has been criticised. Jon and Rachael’s story is a model for all of us and I thank them again for sharing it here. Olivia.
Jonathan Crowe and Rachael Field
The path from idea to publication is often winding and tortuous. One example of this is our recent article, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’, which appears in a special issue of Law in Context on ethics and dispute resolution. The article explores some underlying ethical issues about access to justice in family mediation.
What, then, was the article’s path to publication? We first started work on the paper in late 2008. We completed the initial version in May 2009 and submitted it to the Australian Journal of Family Law. The referees made a number of critical suggestions and we were asked to revise and resubmit.
Often it is hard to work out how to respond to referees’ comments, particularly when different referees seem to recommend different things. One of our referees commented: ‘The article needs complete rethinking and rewriting.’ The other said: ‘This article contains some interesting ideas. It is well written and original.’
The process of revision can be difficult and daunting. How do you mediate between diverse views and reconcile the referees’ comments and criticisms? Anyway, who has the time for this sort of thing? Other commitments—and life in general—tend to get in the way.
Nonetheless, we worked on revising the article, doing our best to respond. It did take a while, though! It wasn’t until July 2010 that it was in shape to be resubmitted. Rather than resubmit to the Australian Journal of Family Law, we thought the new version would be well suited for a special domestic violence edition of the University of New South Wales Law Journal.
Again, however, the referees were split on the article’s merits. One reviewer said: ‘This is a well written and appropriately researched paper and raises some interesting ideas.’ The other said: ‘The article arouses two basic reactions: appreciation and disappointment. … The article needs serious and substantial revisions.’ Back to the drawing board!
After several years of neglect, procrastination and intermittent revision, we presented the paper at the Australian Dispute Resolution Research Network Roundtable in 2015. Our colleagues at the ADR Research Network reassured us of the paper’s value and made supportive suggestions for further improvement.
We are particularly grateful to Olivia Rundle for her generous and helpful commentary. This is why the Network is so amazing. Such levels of sincere and generous collegiality are unfortunately all too rare in the contemporary academy.
Re-energised by the support of our colleagues, we revised the piece again and resubmitted it to a special ethics edition of Law in Context in 2016. This time, it found favour with the referees. After a final round of revisions, it was accepted and is now in print.
What is the moral of this long-winded story? It certainly shows the value of tenacity and persistence in academic publishing. Being rejected and receiving referees’ (sometimes harsh) criticisms can be disheartening and emotionally draining. Resilience, patience and perseverance are key.
It’s also important to back yourself and believe in your ideas and their merit. Some ideas take longer than others to mature. Sticking with the idea until it does get to that point pays off. It also really helps to be working with a supportive co-author (as we each were) and to have generous and encouraging colleagues like those in the ADR Research Network.
Overall, then, the article took about eight years from conception to publication. It took a long time, but we got there in the end! So what were the ideas we sought to express in this article? Here is a short summary.
Over the last 20 to 30 years, the use of family mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution (as family mediation is now known) has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system.
There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient and less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that can enable party self-determination, empowering the parties to determine together the best arrangements for their family into the future.
However, we argue that vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential benefits of mediation are truly to be achieved. This is because the relatively informal nature of mediation, along with its emphasis on party self-determination and mediator impartiality, holds the potential to mask the challenges the process presents for inexperienced or vulnerable parties.
In the article, we use Ludwig Wittgenstein’s concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.
In our view, mediators must play an ethically active role in preparing and supporting the parties to operate effectively within the mediation language game. This requires a more sophisticated understanding of party self-determination that goes beyond the simplistic rhetoric that the parties control the content and outcome of the dispute.
Since we first met at a post-graduate law research colloquium in Adelaide in 2004 (where Jon’s paper won best paper and we sat next to each other at the dinner) we have enjoyed bringing our diverse perspectives and knowledge together. We’ve pretty much always had ideas we were developing or articles we were writing together since that time.
Coffee catch ups have always been fun. We really like the body of scholarship we are developing! See, for example:
- Jonathan Crowe and Rachael Field, ‘U v U (2002) 211 CLR 238: Judgment and Commentary’ in H Douglas, F Bartlett, T Luker and R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014).
- Jonathan Crowe and Rachael Field, ‘The Problem of Legitimacy in Mediation’ (2008) 9(1) Contemporary Issues in Law 48
- Rachael Field and Jonathan Crowe, ‘The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis’ (2007) 27 Australian Feminist Law Journal 97
- And of course we can’t forget: Rachael Field and Jonathan Crowe, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’ (2017) 35 Law in Context 84
After this blog post, our next adventure is a book on Mediation Ethics for Edward Elgar. Wish us luck! Hopefully, it doesn’t take eight years!