The PhD Session at the just concluded National Mediation Conference featured John Woodward, Joe Harman, Joanne Clarke and Jackie Weinberg discussing their PhD research topics. The discussion was interesting and stimulating and each research topic makes a positive contribution to Alternative Dispute Resolution (ADR) theory and/or practice.
Judge Joe Harman discussed his research which explores the nature of mediation confidentiality and the interaction of mediation confidentiality with family violence. So far, two papers have been published on the origins of mediation confidentiality and attitudes of mediators and others towards mediation confidentiality. The first, titled ‘Mediation Confidentiality: Origins, Application and Exceptions & Practical Implications’ is published in the Australian Dispute Resolution Journal, and the second titled, ‘An Imperfect Protection: The Attitudes of FDRPs to Mediation Confidentiality’ is published in the Bond Law Review. Forthcoming papers include on whether mediation should be the first step in all family law proceedings, and on the intersection of family dispute resolution and family violence.
Dr John Woodward’s PhD, now concluded, adopted a qualitative methodology to explore the relationship between confidentiality and disputant participation in facilitative mediation occurring in the shadow of the law where disputants are represented by lawyers. A prominent theme which emerged from the research was lawyer perceptions that disputant participation risks compromising the legal case or “giving away” confidential information which may be misused in the hands of an opponent. This perception is based on the uncertainty around the nature of mediation confidentiality and the extent of its protection. As such, disputant participation is limited. The research concludes that there is a need to do more to clarify the meaning of confidentiality so that disputants may reap the full benefits of the mediation process.
Jackie Weinberg’s PhD is studying ADR in Clinical Legal Education (CLE). The research explores whether ADR should be taught in various legal clinics across Australia; what aspects of ADR should be taught to students; why it might be valuable to teach ADR to clinical students; and in what ways teaching of ADR in the clinical context can be enhanced. Data has been collected using semi-structured interviews and observation of interaction between clinic supervisors and students. The research outcomes include theoretical insights into ADR teaching in CLE, new knowledge on ADR skills acquisition in CLE, empirical insights into how the role and impact of ADR in clinical legal education settings can be measured and recommendations pertaining to the teaching of ADR in Australian clinical legal education.
Finally, Joanne Clarke’s research explores the discourse of conflict resolution in western liberal tradition which positions ‘competing interests’ or ‘communication difficulties’ between individuals as the origins of family conflict notwithstanding that conflict is complex and contextual. Western liberal tradition’s dominant response to conflict is to apply a rational problem-solving model of conflict resolution and this has tended to ignore the complexities of people’s lives and promoted simplistic ways of viewing conflict and related concepts such as power and identity. In contrast, post-structural ideas offer a more complex understanding of conflict in the proposing of multiple realities that are culturally and historically created and challenge the idea of a universal truth. Most importantly, these theories identify the links between knowledge, language and power, highlighting how dominant discourses create conflict through privileging reality and meaning. This makes it essential for FDR practitioners to be aware of the broader social/structural origins of conflict and more importantly because many FDR matters involve family violence.
The Australian Dispute Resolution Research Network’s (ADRRN) Roundtable coming up 9-10 December 2019 provides another opportunity for ADR researchers including PhD students to discuss their research. The Call for Papers may be viewed here.