Written by Rosemary Howell, University of New South Wales. First posted on the Kluwer Blog on May 22 2019.

National Mediation Conferences are important events. Apart from the great opportunities to network with fellow professionals there is the really important opportunity to see the intersection of research and practice at work.

Last month’s Australia’s National Mediation Conference did not disappoint.
For me the highlight was becoming acquainted with a bold Australian initiative sponsored by the Dispute Settlement Centre of Victoria (DSCV). Focussing on community disputes about things like fences, trees and noise the Centre had an ambitious plan to:
• devise a reliable process to identify their user profile and the differing levels of complexity their disputes presented;
• adopt the Sander approach and ‘’fit the forum to the fuss’;
• establish realistic settlement rates based on dispute characteristics; and
• develop a realistic budget to ensure the outcome could be realised.

The process – build a strong research base

The first step for the DSCV was to find the right project leader.

They found the perfect custom-made candidate in Danielle Hutchinson. Co-Founder of Resolution Resources, a lawyer, mediator and academic, Danielle was already an ADR Specialist at the DSCV.
Seeking a sound structural base for the project, she drew on 3 key research resources which provided learnings about the relevance of party goals and dispute features namely:
• The Singapore report by Danielle Hutchinson and Emma-May Litchfield (2016)
This was the inaugural report from the Global Pound Conference Series 2016-17. In this report the authors identified the needs, wants and expectations of parties in dispute and placed them on a continuum – creating three levels of ‘dispute-savviness’ – the expert dispute resolver, the competent dispute resolver, and the ineffective dispute resolver.
• Why do people settle? by Julie Macfarlane (2001)
In her paper Macfarlane examines the assumptions and behaviour of participants in dispute settlement processes – enhancing our understanding of why some disputes settle, and others do not.
Her key argument is that it is how disputants see things and how they make sense of their conflicts that have the greatest influence on outcomes – a significant step away from the rational, predictive model emphasized by most legal scholarship.
• Matching Cases and Dispute Resolution Procedures (2006) by Frank Sander and Lukasz Rozdeiczer. The significance of this work is the authors’ analysis of disputes leading to guidance for lawyers and their clients’ in:
1. selecting a particular process and then
2. designing a new or hybrid process specifically fitted to the needs of the parties.
They proposed that matching processes may be just the first step of the process choice. What needed to follow was the parties modifying their preferred procedure to suit the particular needs of their dispute.

And so TRAMM was born!

Triage Resourcing Modality Matrix is more than a mouthful.
What it does is:
• Collects and makes sense of all the information collected at intake;
• Factors in the context of the dispute;
• Identifies the process that is the best match for the parties (Triage);
• Allocates appropriate resources; and
• Uses ongoing satisfaction measures to validate triage consistently.

How it works – a psychometric approach to creating an analytical tool

The tool presents a compelling visual of everything in play when the DSCV is first contacted. The tool has:
• A vertical axis factoring in parties aspirations and goals and linking them to the likelihood of resolution (drawing on Hutchinson & Litchfield and Sander’s work); and
• A horizontal axis identifying and ranking factors likely to help or hinder resolution (drawing on the research of Sander and Macfarlane).

The output?

The power of the tool is in combining the two hierarchical axes to:
• Predict an outcome;
• Recommend the dispute resolution process that is most resource-effective and best for the dispute; and
• Maximise opportunities for a good outcome.

The human element

Trained mediators, operating as dispute assessment officers, input the data from an initial telephone assessment. They make their own assessment of likely resolution and the best process to use. This is used to continually test TRAMM’s accuracy against that of experienced assessors.

The results are remarkable!

The big picture is more complex that there is room for in this blogpost however a few key outcomes caught my attention:
• TRAMM is outperforming human operators in matching parties to processes and in predicting outcomes;
• The linkage to the Singapore Report and its identification of ‘dispute savviness’ really shows its value here. The emerging data from TRAMM provides the opportunity to explore and demonstrate whether:
o ‘dispute savviness’ makes dispute goals more realistic and more amenable to resolution;
o disputants lacking ‘dispute savviness’ have a disproportionately higher impact on likelihood of resolution and whether it is a wise investment to target them in the preparation process and coach them to higher levels of ‘dispute savviness’; and
o whilst one of the intentions of the project was to maximise resource effectiveness it was not conceived as a cost-cutting exercise.

This is a great outcome
In particular there are 2 overarching achievements that deliver a loud message:
• at a time when the academic and practising worlds seem far apart this is a case study in what happens when we bring them together. One and one has truly made three; and
• when a good outcome, rather than forcing budget cuts, is the goal we do the right thing for the right reason – and surprisingly, as happened here, more cost effective outcomes often result. Well done Danielle and DSCV.

Written by Dorcas Quek Anderson, Singapore Management University School of Law.

This post is based on a presentation made at the National Mediation Conference, Canberra, April 2019. The presentation has been drawn from two articles, Ethical Concerns in Court-Connected Online Dispute Resolution (2018) 1-2 International Journal of Online Dispute Resolution 20, and The Convergence of ADR and ODR within the Courts: The Impact on Access to Justice (2019) 38(1) Civil Justice Quarterly 126.

The proliferation of court ODR systems

Online dispute resolution (ODR) systems have been increasingly embraced by the courts in many countries as the new way to enhance access to justice. Notable examples include the future Online Solutions Court in England and Wales, the Civil Resolution Tribunal in British Columbia, Utah’s ODR system for small claims, and the internet courts in China.

This diagram from the US Joint Technology Committee’s report on ODR for Courts (p. 3) helpfully illustrates how a full-fledged court ODR system typically brings the use sequentially through the steps of triage or problem diagnosis, negotiation, facilitation and online hearings:

The Civil Resolution Tribunal (CRT) in British Columbia is probably one of the most well-developed systems. Designed to handle condominium property claims and small claims (and motor accident claims this year), the CRT features an end-to-end process combining dispute resolution phases and focusing on early participation by parties. The first phase provides initial problem-diagnosis and self-help through the online tool Solution Explorer. This software uses guided pathways to help the user learn more about the dispute, and then diagnoses the problem according to relevant legal rights, and provides tools such as letter templates that can deal with the problem. If the dispute is not resolved at this stage, the user can formally commence a claim through an online intake process that will give notice of the claim to the opposing party. The claimant is then brought to the second phase in which the parties are able to negotiate directly using the online system. The third phase of facilitation introduces the human facilitator to the process. The facilitator draws on a wide range of ADR processes, including mediation and non-binding neutral evaluation, to assist the parties to reach an agreement. In the event that the parties cannot agree, the facilitator takes on a case management role and helps the parties narrow their issues and prepare for the next phase. The final phase of adjudication is usually conducted remotely through asynchronous communication channels. If an oral hearing is needed, it is conducted via telephone or video-conferencing.

Why examine “old” ethics?

These ODR systems offer unprecedented opportunities for the thoughtful and imaginative application of dispute system design principles to meet the goals of the courts, and, as noted by ODR commentator Rabinovich-Einy, generate legitimacy in court processes. It also means that the goals and core values underlying court dispute resolution should be clearly articulated and guide the design of these systems.

In this regard, my research looks back at the “old” ethical difficulties that used to confound the mediation community and the courts, and asks whether these challenges will resurface in the new ODR context. My conference presentation examined two “old” ethical difficulties concerning levelling the playing field between disputants; and whether the system should have distinct ADR processes. This post focuses on the first issue.

Levelling the playing field between disputants

One distinctive characteristic of the highly successful court ODR systems is the provision of guided triage that empowers users to resolve the dispute. The Solution Explorer tool in the CRT uses guided pathways to help the disputant learn more about disputes, then to diagnose the problem in terms of the relevant legal rights and to provide self-help tools. The Utah system for small claims has placed even greater emphasis on education. Apart from providing customised self-help resources and legal services at the start of the process, this system also assigns a facilitator to the case once all the parties have joined the Web portal. One of the facilitators’ key functions is to provide limited legal advice and provide individualised education and assistance. When describing the system, Utah Supreme Court justice Deno Himonas commented that the relevant rules may have to be amended to allow the facilitator to give limited legal information even though he or she is not acting as counsel for either party.

The emphasis on customised education and problem-diagnosis has resulted in ODR as the ‘fourth party’ expanding the scope of the courts’ intervention in disputes. The court’s role is being transformed from an impartial and detached adjudicator to a more proactive problem-solver. Notwithstanding the great gains to be reaped from this development, this change results in considerable tension between the following ethical principles:

This tension is not new to mediators. We often observe informational asymmetry amongst the disputants. One party may be a repeat player in the courts or may have received sophisticated legal advice. By contrast, the other party could be misinformed about his or her legal rights. As mediators, we are familiar with the struggle in deciding how much to intervene to help the disputants to make informed decisions. This dilemma is apposite in court-connected mediation, where it is arguably more important to uphold the perception of the court mediator’s impartiality.

In the court ODR context, this dilemma could be more acute. The ODR system’s value lies in its great potential in levelling the playing field between parties where there is information asymmetry. Notably, 94% of the parties resolved their dispute at CRT’s Solution Explorer stage without requiring further intervention.

However, should the courts level the unequal playing field? There is the risk of the courts taking on a more active role than they have been accustomed to. On this point, Katherina Palmgren, in her report exploring the use of ODR in Victoria (p. 7), noted below the faint distinction between providing legal information and legal advice. The latter is, of course, deemed more objectionable, but the courts may inadvertently provide legal advice when giving customised problem diagnosis.

One of the main concerns in relation to the online court is the provision of ‘legal information’ by the court to the court user during the exploration stage of the online process. This is a new and foreign concept to the courts which gives rise to the question: what is the distinction between ‘legal information’ and ‘legal advice’? Is this a blurry line that ought not be walked by the courts? Some say yes, but many say no. Take for example registry staff, they walk this line every day and do not necessarily think it is a difficult one. Simply put, when you provide information that is general and factual in nature such as the applicable legal principles on a subject matter, that is legal information and educational in nature. When you provide information that is tailored to the particular facts of a case, that is legal advice. Common concerns raised in relation to the provision of legal information during the exploration stage are: what if the information provided at the exploration stage is incorrect? What if there is a loophole in the legislation that a lawyer could have advised on?

We also need to ask the related question of whether the playing field should be levelled in all cases involving informational asymmetry. Will the courts being seen as assisting one party more than the other? This question may not be an acute concern in claims involving self-represented disputants. However, this tension warrants serious consideration once the ODR system is extended to other types of legal claims where lawyers are involved and there is the resulting expectation of more limited court intervention in levelling the uneven playing field. When lawyers are allowed to participate in the ODR system, it is arguable that the parties expect an inherently unequal playing field owing to the differing levels of legal assistance. In such circumstances, the courts’ efforts to level the playing field could be perceived as unwelcome interference. This issue has yet to arise in systems such as the CRT, where parties are not allowed to have legal representation. Nonetheless, as court ODR expands its scope, it is very likely to be used in more complex and higher value claims in which lawyers cannot realistically be excluded. The courts therefore need to discern when its proactive intervention through educating the parties will be perceived as compromising its even-handedness.

Looking ahead, it is not inconceivable for future court ODR systems to provide the disputants not only with legal information, but also assisted decision-making or negotiation tools. These tools could be used at the negotiation and facilitation stages to enable court users to understand the merits of their case more accurately, or to arrive at negotiated agreements that maximises value. These tools are currently available outside the court context. If incorporated into a court ODR system, they will empower disputants to make well-informed decisions. Again, there could be an impact on the courts’ perceived impartiality. Will the suggestions of these tools be seen as being endorsed by the courts? What if a disputant takes issue with the input of these tools, arguing that he or she was misled to arrive at a settlement? Also, will the disputants be assured that the tools provided by the ODR system is giving equal assistance and support to each person?

Implications for Court ODR

There are many practical implications arising from the above questions. To avoid the perception of partiality, the courts could take practical steps to dissociate themselves from the provider of the legal information. For instance, they could collaborate with external agencies so that the resources provided are not attributed to the courts. In this respect, Utah’s system provides access to licensed paralegal practitioners that are not employed by the courts. During the pilot of the small claims project, the facilitators were volunteers who did not represent the courts or either of the parties. The perception of even-handedness could also have a discernible impact on the design of the online self-diagnosis tools. Although the system provides individualised and customised triage, it could simultaneously assure users that all parties in the dispute are provided with the same information and tools. The courts also have to carefully consider whether the ODR system should incorporate decision-making or negotiation support tools in the future.

The enduring relevance of ethical principles

Dispute resolution is slowly but surely evolving in the private and court contexts, bringing about exciting possibilities by breaking down conventional boundaries between modes of dispute resolution, and introducing algorithmic support tools and information. This post seeks to encourage a deeper consideration of how dispute resolution ethical principles will remain relevant in a rapidly changing environment. Some of the “old” ethical conundrums have to be confronted in order to develop systems that are grounded on clear goals and values. Despite swift changes in dispute resolution, the foundational ethical principles have enduring value for the future. Will we draw from our past lessons to guide us in the future development of dispute resolution? Do share your views on what other “old” ethical issues could resurface in the ODR environment.

[Free Image by Augusto Ordonez, Pixabay]

On 10 April 2019, Judge Dowdy of the Federal Circuit Court published his reasons for refusing to make a consent order that an employment law matter be referred to mediation by a Judge.

The parties in Wardman & Ors v Macquarie Bank Ltd [2019] FCCA 939 applied for consent orders to resolve some procedural matters and refer the substantive dispute to mediation by a Judge, pursuant to s 34 of the Federal Circuit Court Act 1999 (Cth) and rule 45.13B of the Federal Circuit Court of Australia Rules 2001 (Cth). Rule 45.13B(2)(a) explicitly anticipates that an order referring a proceeding to mediation may order that the mediator appointed be a Judge:

…(2) The mediator for the mediation must be: (a) a Judge; or…

Nonetheless, Dowdy J contacted the parties informing them that he believed he should not make an order that a Judge act as a mediator. Instead, he made an order for a Registrar to act as mediator. His Honour’s reasoning for his refusal to appoint a Judge as mediator can be summarised by the following 3 propositions:

1. Mediators and Judges perform distinct roles
2. Acting as a mediator is incompatible with the Constitutional role of a Judge (and Rule 45.13B(2)(a) is invalid)*
3. Judges are not qualified to act as mediators

1. Mediators and Judges perform distinct roles

Source of authority

• The Constitutional power to mediate is the Conciliation power in s 51(xxxv).
• A Judge exercises judicial power under s 71 of the Constitution.

Facilitation of consensus v determination of dispute

• Mediators aim to resolve disputes by consensus.
• Judicial power is an elusive concept, but at its core is the power to decide controversies (ie, to determine the outcome of disputes).

Context of decision-making

• Mediation is typically private, confidential, informal and non-adversarial.
• Judicial power must be administered in public and reasoning must be published. The judicial process is primarily adversarial.

2. Acting as a mediator is incompatible with the Constitutional role of a Judge

Judicial power must be exercised according to judicial process

• Judicial process requires (with limited exceptions) open and public inquiry, application of rules of natural justice, identification of law and facts, and application of law and facts to decide the outcome (see Grollo v Palmer).
• Mediators meet in private, sometimes with only one party at a time, do not decide facts or law, do not make decisions, mediated decisions are not required to be made according to legal principles, and neither reasons nor decisions are published.

Judges cannot perform functions incompatible with judicial power

• Judges cannot exercise non-judicial functions that would prejudice their capacity to discharge effectively the judicial powers of the Commonwealth
• Rule 45.13B should be read to preclude a Judge who has presided over a mediation from subsequently hearing or determining the case.

[31] If I had acted as a mediator in this case as requested by the parties I would have sterilised and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as a mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as a Judge to hear and determine a matter which in the regular course had be docketed to me by the registry of the Court.

Courts and Judges cannot and do not provide advisory opinions

• Judge Dowdy referred to Plaintiff M68/2015 v Minister for Immigration and Border Protection as authority for the proposition that Chapter III Courts and Judges cannot provide advisory opinions.
• Mediators in court-connected mediations “invariably” provide advisory opinions.

[32]…parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.

Mediation is not a traditional function of courts

• Some functions other than the adjudication of rights were traditionally exercised by courts and therefore fell within the concept of judicial power contemplated by the authors of the Constitution. For example, administration of trust assets, winding up companies, maintenance and guardianship of infants, grants of probate, and making of rules of court.
• The process of mediation cannot be accepted to have been a traditional or historical feature of the powers exercised by courts.

Mediation functions are distinct from judicial power

• This proposition was confirmed by the Boilermakers case – a power to prevent and settle disputes by conciliation and arbitration is completely outside the realm of judicial power.
• Although mediators and Judges both practise fairness, patience, courtesy and procedural fairness, only a Judge determines a justiciable issue.
• Because the power to mediate falls outside judicial power, Dowdy J concluded that:

[38]…neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator

• While Courts and Judges regularly encourage settlement and adjourn hearings to allow settlement negotiations to occur, it is not considered appropriate for Judges to participate in those negotiations themselves.
• There is no inherent connection between mediation, conciliation and legal proceedings, as not all mediators are legally trained and not all mediations occur in connection with litigation.
• Mediation is not incidental to the exercise of judicial power.

3. Judges are not qualified to act as mediators

• Mediation is a craft that requires specific education and training, as well as accreditation and ongoing professional development.
• Eminence, judicial ability and legal knowledge and experience do not necessarily equip Judges to act as a mediator.
• Judicial Registrars of the Federal Circuit Court are trained and accredited mediators.
• There are thousands of appropriately qualified and accredited mediators who could conduct private mediation at an affordable cost.
• It is inappropriate to appoint a Judge to mediate a case merely to access the authority of the Judge to induce or extract a settlement.
• Judges should give exclusive primacy to their judicial role rather than acting as a mediator in cases before the Court.
• Judges have busy dockets and it is unjustifiable to take time out of the activity of judging in order to act as a mediator.
• Judges should not risk being called as witnesses about what happened in private mediations.
• If a Judge acting as a mediator gave an evaluation of the legal case, and a Judge acting as a Judge subsequently decided differently, the standing of Courts and Judges would be diminished.

Comment

This judgment provides some very interesting insights about court-connected dispute resolution practice. Dowdy J has lived experience as a senior legal practitioner with many years’ participation in court-connected mediation and some of his reasoning is based upon that personal knowledge. In paragraph [32] quoted above,  His Honour claimed that mediating parties, particularly weaker or more vulnerable parties, invariably expect the mediator to express views about both the likely outcome of litigation and whether or not a proposed settlement is reasonable. His Honour continued:

[33] It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morning QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.

His Honour returned to his strong view about what litigating parties expect from a mediator:

[55]…by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.

The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes. The question of whether or not litigating parties expect this style of mediation (a) because it is what they have experienced before, or (b) because it is their preference over other styles, is also worthy of interrogation. Should facilitative mediators market their services from a point of difference, instead of assuming that facilitation is understood by prospective clients as the “standard” form of mediation?

The equating of mediation with conciliation in the judgment was the means by which His Honour located the mediation function within the Constitutional powers. The definition of mediation is hotly disputed within the dispute resolution community (as is whether Dispute Resolution is preferable to Alternative Dispute Resolution). However, this judgment raises again the question of whether or not court-connected dispute resolution of the character described and expected should more appropriately be called “conciliation”, in order for it to be distinguished from other kinds of dispute resolution practice.

There is great potential for the private mediation sector to provide affordable dispute resolution services to litigants. Judge Dowdy identified many problems with using Judges to mediate, when there is a surplus of appropriately qualified and accredited practitioners available to assist parties navigate a path to settlement. What creative ways can the mediation profession use to attract the respect and legitimacy that parties are seeking when they prefer senior legal minds to act as mediators of their disputes?

*Note: The decision specifically relates to Judges who exercise the judicial power of the Commonwealth of Australia. The Commonwealth Constitution mandates separation of judicial power and the Commonwealth legislature cannot confer non-judicial functions on Judges except those that are incidental to their judicial function (see Boilermaker‘s case). The situation is different in state jurisdictions (see Kable and Momcilovic cases).