About Associate Professor Becky Batagol

Dr Becky Batagol is an Associate Professor of law at the Faculty of Law, Monash University and at Monash Sustainable Development Institute. She is a researcher and teacher with a focus on family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky is the chief-editor of the ADR Research Network blog and tweets regularly under the handle @BeckyBatagol. Becky is the Chief Editor of the Australian Dispute Resolution Research Network blog. In 2017 Becky was the President of the Australian Dispute Resolution Research Network.

Engaging family mediation clients for the long term in our new family law system

By Becky Batagol and Genevieve Grant, Monash University

This is a version of the paper we Presented at the National Mediation Conference Canberra, April 2019

This post comes out of a research collaboration between researchers at Monash University and mediation and family services provider, Better Place Australia. We believe this project showcases good practice in industry and academic collaboration.

It arises out of a research project investigating the outcomes and experiences of Family Dispute Resolution (FDR) clients whose last contact with Better Place Australia was 2.5-3 years previously. The project is funded by Better Place Australia, a leading provider of family and relationship services in Victoria who were seeking insight into client experience and outcomes to inform provision of best practice and evidence-based services.

The project is being conducted by our team of researchers from the Faculty of Law at Monash University, Monash Sustainable Development Institute and the Australian Centre for Justice Innovation at Monash.

This post focuses on the difficulty of obtaining long-term data on clients experience after they have left FDR and the importance of collecting such data. We are currently collecting data for this project. The data we have obtained so far is limited.

We contextualise our experiences collecting data from clients who are long finished FDR in terms of the recent Australian Law Reform Commission (ALRC) report, Family Law for the Future — An Inquiry into the Family Law System April 2019. This report, the first-ever whole of system review of family law in Australia’s, proposes an enhanced and better integrated role for FDR service providers and Family Relationship Centres. Such a role, we argue, requires service providers to collect data on the long-terms experiences of their clients.

We ask for readers’ comments at the end of this post about how you have engaged with past clients, especially those long-term clients and what you do with the data collected.

crystal ball

Image: Marco Verch, Blick auf einen See, CC BY 2.0

New Roles for FDR Providers in the Family Law System

In April 2019 the ALRC’s wholesale review of the family law system was released. For family law support service providers such as those running Family Relationship Centres (FRCs) and providing FDR services, the ALRC found that an increasingly complex client group requires new roles for service providers. In particular, two recommendations are most relevant here:

Recommendation 59: Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system.

This is an enhanced role for FRCs. The ALRC agreed with the Family Law Council that there are increasing numbers of clients seen at FRCs and in FDR services with complex needs. In 2016 the Family Law Council, in response, recommended introducing case management (recommendation 7) to better support the growing numbers of clients with complex needs seeking assistance from out-of-court family law services.

The ALRC noted that FRC work had gravitated towards FDR service provision. To an extent, this recommendation returns to the original 2006 idea of FRCs as gateways to a range of family law and other services as needed by separating families. It also echoes the Whitlam area idea of the Family Court as a helping court which would assist families experiencing breakdown with both legal and social services.

The ALRC (para 16.34) argued that “introducing case managers to FRCs would ensure that clients with complex needs receive supported referrals to relevant services identified throughout this inquiry that sit outside the family law system.”

Recommendation 60: The Australian Government should work with Family Relationship Centres to develop services, including:

  • financial counselling services;
  • mediation in property matters;
  • legal advice and Legally Assisted Dispute Resolution services; and
  • Children’s Contact Services.

This recommendation demands a more integrated role for FRCs and FDR service providers. It recommends that FRCs provide a broader range of co-located or integrated services as a one-stop to better meet the needs of families experiencing relationship breakdown. We note that some FRCs already provide a comprehensive range of services such as financial counselling, legal advice and children’s contact services.

Such case management would also include referrals to and connections with state services such as family violence and child protection services. One option for FRC service provision is that FRCs also tender for state-funded services such as family violence, housing and drug and alcohol services. This would enable service providers to paper over the jurisdictional cracks in the Australian family law system.

 

Better information on the long-term pathways and needs of FDR clients

A more integrated and intensive role for FRCs and FDR service providers requires better information on the long-term pathways and needs of FDR clients. Service providers will need to understand and respond to the needs of their clients as they move through the family law system and as family needs change over time. This will require data and engagement with clients over the long term.

While we have some big picture long-term data on family law service system use provided by the Australian Institute of Family Studies, we do not have service and location-specific information for FDR providers on the long-term paths of clients in the family law system.

 

Long-Term Studies of FDR/ Family Mediation

There is limited longitudinal research into FDR/family mediation, especially in Australia. Work in the US in the early days of divorce mediation showed promising long term outcomes for mediation compared with litigation for child custody disputes.

Pearson and Thoennes (1984) conducted an ‘experimental’ longitudinal study where participants were randomly allocated to a mediation or litigation stream to address their child custody and visitation disputes. The researchers followed up with participants three months after they obtained their final orders and about 6.9 months later (approximately 9 months after final orders). Pearson and Thoennes (1984: 510) found a that the long-term picture for mediation clients depended on whether they had reached agreement in mediation. The researchers argue that the data shows that mediation doesn’t work for everyone and that its benefits are not equally shared (Pearson & Thoennes 1984: 516-7). They state “the benefits claimed for the process seem more accurately to characterise only those who are successful in reaching agreements, rather than all who try.” (510)

Another early US study adopted a very long timeframe in its longitudinal approach to considering the benefits of family mediation (Dillon and Emery, 1996). The study involved a phone survey with participants with disputes over child custody, visitation or child support about nine years after the dispute was first brought to court. 55% of the sample could not be reached by phone (using phone numbers of themselves or family or friends) provided 9 years earlier. 14% of those contacted for follow up said that they did not want to participate in the research because they wanted to forget he painful memories of divorce or lack of time and interest.

Dillon and Emery (1996: 139-40) found that over 9 years, mediation was associated with increased visitation by children with non-custodial parents, better inter-parental communication and more involvement by non-custodial parents in decision-making. However, the 48% attrition rate in this study affects the reliability of their findings. The researchers conclude that more long-term studies of mediation and litigation samples are necessary before conclusions can be reached about the long-term effects of mediation (Dillon & Emery: 1996 : 140).

More recently in Australia, Carson, Fehlberg and Millward (2013) conducted a 3-year qualitative longitudinal study of 60 separated parents who had used FDR. The methodology employed was robust, as it contacted the same separated parents annually for three years after service provision. Remarkably low attrition rate (just 4 left the study in 3 years) because the researchers stayed in contact with respondents annually They found that where both parents were cooperative and able to negotiate, participants who accessed FDR or family law.

Carson, Fehlberg and Millward (2013) found that services where more likely to describe positive experiences and outcomes and satisfaction with the quality of the FDR services they received. However, an uncooperative, controlling and/or violent partner/ex-partner, a hostile post-separation relationship and an absence of the ability to negotiate and compromise, characterised cases where parents were dissatisfied with both the process and post-separation outcomes.

 

Our Current Experiences Collecting Long Term Data

With Better Place Australia, we have designed a study to investigate the longer-term outcomes of FDR service use following their engagement with Better Place. Our study is a retrospective cohort study with a longitudinal element, meaning that we are studying cohorts of FDR users over time to determine the impact of particular variables on FDR outcomes. We did not follow FDR clients throughout the time since mediation. ‘Longer term’ is defined as 2.5-3 years following last engagement with Better Place. In many cases this may be as long as 4 years since mediation took place. This is a significantly longer period than most long-term studies which tend to focus on mediation clients 12 months after mediation.

Although it is early days for our study, we have had a challengingly low response rate from clients 2.5-3 years since they finished at the service. The service provider emailed out an individually addressed request for participation to the 843 clients who were part of the 6 month cohort we were targeting. We requested completion of a 30 minute survey and invited interested people to sign up for an hour-long telephone interview. A reminder email was sent out. Phone call follow-up for bounced emails. The service provider called every person in the cohort whose email address bounced back (n=40) requesting participation.

Approximately 3 weeks later we had just 25 survey respondents, of which 16 are useful (9 further people commenced but did not provide usable data or are in progress) and six telephone interviews completed. This is a challengingly low response rate ~3% if counting all attempts at completing survey.

We are confident we will achieve a satisfactory response rate for this project. We plan to change the study cohort and involve participants who were more recent clients of Better Place Australia. We may use several other techniques to encourage participation and may supplement the data obtained with targeted focus groups.

 

How do we Engage with FDR Clients Over the Long Term?

There is an imperative upon FDR service providers to understand client need over the long term in any reformed family law system. This information will need to be specific to the particular client cohort seen by each FDR service provider. National large-scale longitudinal studies are less useful for this task than client and location-specific data.

Our experience collecting long-term data raises real questions about the ability of FDR service providers to engage with former clients over the long term. In our case, we attempted to recruit clients who had not been contacted by the service provider for about 2.5-3 years. Clearly this was too long.

The most successful longitudinal study of FDR, Carson, Fehlberg and Millward (2013), recruited participants while they were still engaged with the service provider and maintained annual contact throughout the three-year study period. Our funding did not permit such a methodology.

A key lesson from our experience is that service providers who wish to understand long-term client experience after FDR should maintain regular contact with former clients in ways that genuinely engages and assist clients. This is a costly exercise. Better Place plan to introduce a 3-6 month follow up survey for all former clients sent out via text message. This will be an additional cost upon the service provider, but the team expect a higher response rate as it will be less like junk email (especially for financial counselling clients).

The recommendations of the Australian Law Reform Commission for FRCs to adopt more integrated and intensive roles within the family law system requires long term data on specific client experiences and need. Accompanying any government contracts for new roles for FRC consortia should come funding specifically for long-term engagement with clients.

For family law clients, their journey through the formal system represents just a small part of the messiness of family breakdown. Funding for engagement with FDR clients over the long-term is a sound investment if we are to truly meet understand and meet the needs of separated families.

 

Your Thoughts?

We are keen for your thoughts. For those of you who are FDR providers or researchers in the field, how have you engaged with or recruited past clients, especially those long-term clients and what you do with the data you collect?

To help get you thinking, here is the final slide of our National Mediation Conference presentation, co-written with the Better Place Australia team, which stimulated a great deal of discussion at our presentation.\

BPA slides 20-19

Please comment below! We’d love to hear from you!

 

We are very grateful to Better Place Australia CEO Serge Sardo and the whole team there who have been such engaged and active partners in establishing, designing and recruiting participants for this research project. We are especially grateful to Graeme Westaway and Jenni Dickson from Better Place who helped prepare this National Mediation Conference presentation.

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US conference on comparative international dispute resolution processes

Call for Panel Proposals and Papers
ASCL Annual Meeting

17 Oct 2019 – 19 Oct 2019, University of Missouri School of Law’s Center for the Study of Dispute Resolution , Columbia, Missouri

The American Society of Comparative Law (ASCL) has just issued a call for proposals for (1) concurrent panels and (2) a works in progress conference to be held in association with the ASCL 2019 Annual Meeting, which will be held at the University of Missouri School of Law’s Center for the Study of Dispute Resolution between Thursday, October 17, and Saturday, October 19, 2019. The event is open to ASCL and non-ASCL members.

The theme of the Annual Meeting is “Comparative Law and International Dispute Resolution Processes” and will feature presentations on how comparative law affects various types of cross-border conflict, including but not limited to transnational litigation, arbitration, mediation, online dispute resolution (ODR), conflict resolution, access to justice and dispute system design. Concurrent panels and works in progress papers need not fall within this general theme, although of course they may. Multilingual panel proposals will be considered as part of ASCL’s mission to foster plurilingualism.

PAPER SUBMISSIONS/FURTHER INFORMATION: Information on the event, including the call for panel proposals and works in progress submissions, is available at http://law.missouri.edu/faculty/symposia/comparative-law-international-dispute-resolution-processes. Proposals will be accepted until May 20, 2019. Queries may be addressed to Mary Tran at 2019ASCL@law.ucla.edu

The American Society of Comparative Law, Inc. (ASCL) is the leading organization in the United States promoting the comparative study of law. Founded in 1951, it is a thriving organization of more than 100 institutional sponsor members, both in the United States and abroad, and a growing number of individual members. The Society publishes The American Journal of Comparative Law, the outstanding American publication of scholarship on comparative law. The Society also holds annual meetings at which comparative law scholars present research and critically examine important legal issues from a comparative perspective. In addition, the Society provides support to other scholarly conferences both in the United States and internationally that deal with comparative law.

The nationally-ranked Center for the Study of Dispute Resolution (CSDR) at the University of Missouri School of Law seeks to develop and promote appropriate methods for understanding, managing and resolving domestic and international conflict as well as the use of dispute resolution techniques to enhance informed decision-making. In furtherance of that mission, the CSDR fosters comprehensive approaches to lawyering and decision-making and promotes the appropriate use of alternative processes of dispute resolution through engagement in legal and interdisciplinary scholarship; law school teaching and curriculum initiatives; educational services to legal and dispute resolution professionals; law reform related to dispute resolution; and direct dispute resolution services.

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.

Teaching Mediation In Brazil And Australia: Can We Improve Access To Justice?

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 Professor Cristiana Vianna Veras, Visiting Scholar at Flinders University 

 

The development of the mediation as an institution can be understood as global phenomenon, since several countries present different state and societal experiences of this form of conflict resolution. Although some countries have been working to institutionalize mediation for more than three decades, we can say that mediation is still a “young” experience and now seems to have spread everywhere. In Brazil, the institutionalization of mediation began in 2009 and was encouraged in the field of the Judiciary through a public policy to promote the application of consensual forms of conflict resolution that, through a discourse of social pacification and better adaptation of the form of treatment of social conflicts, sought to reduce the number of lawsuits, currently one of the biggest problems confronting the Brazilian judicial system.[1]

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Professor Cristiana Vianna Veras presenting her work at the 7th ADR Roundtable on 4 December 2018

Different actors participate in the applied field of mediation in Brazil. On the one hand, as a pioneer in this field, non-governmental organizations and private institutes, were first responsible for implementing the initial practical training of the first mediators, and have since multiplied in number. On the other hand, the State, or more specifically, the Judiciary has reserved to itself the task of conducting mediations. Alongside these two main actors, a third can now be added: Brazilian law schools, which also participate in mediation in different ways.

In Brazil, law schools are overseen by the federal government, through regulations determined by the Ministry of Education. All law courses must conform to a core curriculum specified by national directives, although each law school is free to interpret this normative guidance. Due to this national curriculum, all law courses cover a range of theoretical disciplines and many courses include in this curriculum a topic on alternative dispute resolution and/or mediation.

In addition to theoretical subjects, all Brazilian law courses are obliged to offer a Center of Legal Practice that can act from simulations (abstract cases) and / or from a real service aimed at low-income people, with some courses offering mediation simulations or offering this possibility of conflict resolution to the local community.

Hence, there are three distinct possible spaces for mediation in law courses in Brazil: a theoretical space, a space of simulation and a space for serving the low-income population. Creating new dialogue within and between these actors who participate in the movement toward institutionalizing mediation is one of the primary goals of my research.

One perspective that helps to better understand these dialogues is the phenomenon of access to justice captured by the metaphor of waves by Mauro Cappelletti and Bryant Garth.[2]  These scholars identified measures implemented by different countries to make legal services more efficient, to better protect collective rights and to make the highly bureaucratized Judiciary more informal.

Mediation is mainly connected with the third wave of Cappelletti, as it is included in the experiences of alternative dispute resolution (ADR), and the trilogy of arbitration, conciliation and mediation that together constitute the process of informal justice. However, mediation is not just an alternative way of conflict resolution. To understanding of its full scope and meaning we should add to the three waves of Cappelletti, a fourth wave identified by Kim Economides[3] in 1997, namely lawyers’ (and judges) access to justice. This fourth waves also raises the issue of what kind of justice it is that which we wish to give access to?
Since mediation is a way of resolving conflict by the “parties themselves” (but with the assistance of a mediator), it may define new criteria of justice – which do not necessarily correspond to the criteria of state/legal justice – in the light of the parties’ own understanding of what is fair and appropriate for them.

In this context, many questions arise: how does mediation – theoretical, simulated or practical – act in terms of the different access to justice waves? What impact does a course on theoretical mediation have on law students? How many law students will intend to use mediation in their professional practice? Is there a more appropriate form of teaching mediation in order to encourage students to work with mediation in their future professional practice? Does experience with the simulations and/or real cases brought by low in-come users encourage students to use mediation in their professional practice?

Also important, is the response of law students exposed to this new form of conflict resolution confined to Brazil? Or is it the case that, in other countries where mediation has been longer established, we find a different response? Do these countries still have a dominant adversarial legal culture? To try to answer these questions, I am conducting comparative and empirical research on law students from three universities: Flinders University, Fluminense Federal University (UFF/public) and Pontifical Catholic University (PUC/private). After comparing the process/methods of the teaching of mediation in Brazil and in Australia, and whether they motivate law students to work with mediation in their future professional practice, I will analyze the contribution of teaching mediation in law school to the process of improving access to justice.

cris 2

There was strong engagement with Chris’ work during her session, including from commentator Dr Lola Akin Ojelabi, LaTrobe Law

Professor Cristiana Vianna Veras is a Visiting Scholar at Flinders University – Adelaide/SA in 2018/2019. She is also a Professor at School of Law of Federal Fluminense University – Rio de Janeiro/Brasil. Cris can be contacted on veras04@hotmail.com and cristiana.viannaveras@flinders.edu.au

[1] To understand the process of implementing of mediation in the Brazilian Judiciary and the main objective behind the official state discourse, see two studies of cases: Kilpo, Klever Paulo Leal. Dilemas da mediação de conflitos no Tribunal de Justiça do Rio de Janeiro. Tese de doutorado apresentada à Universidade Gama Filho. Rio de Janeiro: 2014 and Veras, Cristiana. Um estranho na orquestra, um ruído na música: a apropriação da mediação pelo poder judiciário a partir de uma experiência no Cejusc do TJRJ. Tese apresentada à Universidade Federal Fluminense. Rio de Janeiro: 2015.

[2]  Cappelletti, Mauro e Garth, Bryant. Acesso à Justiça. Porto Alegre: Sérgio Fabris, 1988.

[3] Economides, Kim. “Lendo as ondas do “Movimento de Acesso à Justiça”: epistemologia versus metodologia?” in Dulce Chaves Pandolf e outros (orgs). Cidadania, justiça e violência. Rio de Janeiro: Editora Fundação Getúlio Vargas, 1999. English version: Economides, Kim “Reading the Waves of Access to Justice” Bracton Law Journal, Vol.31, 1999, pp.58-70.

Apologies: A New Reform?

By Sarah Tan

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

 

2018 marks the twentieth anniversary of National Sorry Day – a day that recognises the ‘grief, suffering and loss’ suffered by the Stolen Generations. With the recommendation from the Bringing them Home report, then prime minister Kevin Rudd apologised to the Aboriginal and Torres Strait Islander People for the acts of the Australian Parliaments.

Often, apologies are the hardest things to do. However, when a government agency has made a mistake, ‘sorry’ is exactly what citizens want to hear. This blog entry postulates the argument that a Victorian government agency should provide apologies to the public for mistakes it has made when dealing with complaints.

What is an (effective) apology?

Apologies can be documented in many forms – it can range from something along the lines of ‘I’m sorry for how you feel…’ to ‘It is a regret that…’. Nevertheless, an apology that is not genuine may backfire, resulting in the recipient feeling angrier. In cases involving bureaucratic organisations, misworded apologies may add to the conflict, confirming feelings that the organisation does not act in the public’s interest.

The New South Wales Ombudsman defines an apology as ‘an expression of feelings or wishes that can include sorrow, sympathy, remorse or regret as well as an acknowledgement of fault, a shortcoming or a failing’, and defines an effective apology as one that contains the following six Rs:

  • Recognition
  • Responsibility
  • Reasons
  • Regret
  • Redress
  • Release

 Why apologise?

With apologies being regarded by complainants as an essential prerequisite for the resolution of complaints, the benefits of apologising in the context of resolving complaints to governmental agencies are threefold – it is a mark of integrity, it promotes public interest, and it addresses key psychological impacts.

Firstly, an apology to members of the public demonstrates integrity. With governmental agencies depending on public confidence, it is of utmost importance that ethical governance and its themes of accountability, transparency and responsibility are maintained. Through the issue of apologies, a positive and transparent image of the agency will be restored. Instead of being regarded as an organisation’s weakness, an apology serves as a testament to the maturity of the government agency – one that is responsible and accountable for its weakness.

Although there is no guarantee that an apology may resolve every complaint, an apology at the minimum, will show how the agency acts with integrity. Furthermore, with the right motive in mind, an apology has the potential to restore trust and integrity. With trust being imperative for the functioning of organisations and human relationships, apologies are mechanisms of trust repairs that seek to restore positive attitudes and reduce negative feelings that occur from the conflict.

Secondly, an apology is beneficial when dealing with complaints as it helps to promote public interest and protects the complainant’s interest. This is also reflected in the use of apologies as a remedy in several aspects of Australian law. By publicising an apology, the public is educated on the wrongs of the government agency and recipients of apologies have a sense of public validation and personal vindication. Additionally, an apology serves the function of addressing any lingering impacts of the conduct on the complainants. As phrased by corporate respondents who were recipients of a publicised apology, an apology by an organisation sends a clear message to the community that a particular agency had erred.

In the media industry, the use of apologies as a way of responding to complaints is by no means unconventional. Under existing self-regulation mechanisms of the Australian Press Council, the use of remedies without adjudication has proved useful in the settlement of about three-quarters of its 700 complaints received each year. By resolving complaints in the form of apologies, corrections, or some form of remedial action, the prospects of a complaint resulting in litigation are minimised. Furthermore, with research indicating that complainants who receive an apology are more satisfied than those who receive no apology, it is undoubtedly that an apology is a tool of communication and emotion that has the ability to heal the emotional wounds associated with the wrong.

Lastly, an apology is beneficial as it has the potential to address key psychological impacts. More often than not, people make complaints as they feel humiliated, hurt, betrayed, and want to be given a full explanation of the incident. Through an apology, feelings of respect and dignity are cultivated and one’s reputation is restored. In addition, an apology has the ability to assure the recipient that he or she was not at fault. With evidence suggesting that apologies have a strong place of importance in the criminal justice perspective, it is evident that apologies may have the potential to achieve purposes beyond traditional remedies of compensation. That being said however, is not a proposition that apologies are to be seen as an alternative to punitive damages. Should apologies be construed as a form of compensation, misconceptions will arise in that apologies are to be regarded as an acknowledgement of a wrong.

On the contrary, an apology should be used as a tool in resolving complaints as part of a mechanism that incorporates notions of restorative justice. In the criminal justice system, the giving and acceptance of an apology are traits of restorative justice. Since an apology is a common term of settlement in conciliations and mediations, the use of such concepts when dealing with complaints will allow complainants to have a better understanding of why the mistake occurred. Being non-adversarial in nature, apologies are often described in miraculous terms with an effect of promoting restoration.

Drawbacks?

Nevertheless, despite the benefits and willingness of public authorities in Victoria to apologising, research has indicated an inconsistency of such a practice in the public sector. With more than half surveyed suggesting that they only apologise in certain scenarios and sixty-one per cent of authorities having no policies or guidelines to deal with apologies, the survey also revealed the main concern government agencies had with apologising – legal liability arising out of the apology.

Ever since the twentieth century, Australia has introduced apology laws in a bid to encourage apologies and reduce litigation without creating automatic liability. Nevertheless, there remains a strong belief that apologising in itself, is an admission of liability with adverse insurance applications. In Victoria, apology protection applies to civil proceedings where the conduct in issue deals with the death or injury of a person, or is in relation to a defamation claim.

Given the limited scope of protections, recommendations should be made such that protections for apologies are broadened. Acting on the recommendations of the Access to Justice Review, an apology should not be construed as an admission of liability and should not be admissible as ‘evidence of fault or liability’. At the bare minimum, legislators should draw on apology laws in New South Wales which provide protection for full apologies; in Victoria, protection is only awarded to ‘partial’ apologies. Under such a premise, legislators must first comprehend the real meaning of an apology.

Should apology laws in Australia remain inconsistent, the lack of uniformity may result in the minimum threshold being prescribed. Given the wide-ranging benefits of apologising, Victorian government agencies can only be an advocate of apology to members of the public for the mistakes they have made when dealing with complaints if reforms to apology laws are made. Nevertheless, until that happens, government agencies should bear in mind the High Court judgement which left open the possibility for the use of an apology as evidence in another way.

 

Sarah Tan is a third year Bachelor of Laws (Hons) student at Monash University who will be completing her studies in 2019. Having grown up in Singapore, she has a keen interest in international arbitration. She is currently a seasonal clerk at Cornwall Stodart and hopes to pursue her passion for alternative dispute resolution prospects in the commercial law context. Sarah has also been involved in pro bono work at the Monash Oakleigh Legal Services and Law Society of Singapore Pro Bono Services Office.

 

Bibliography

  • Articles/ Books/ Reports

Allan, Alfred and Carroll, Robyn, ‘Apologies in a Legal Setting: Insights from Research into Injured Parties’ Experiences of Apologies after an Adverse Event’ (2017) 42(1) Psychiatry, Psychology and Law 10

Allan, Alfred, McKillop, Dianne and Carroll, Robyn, ‘Parties’ perceptions of apologies in resolving Equal Opportunity complaints’ (2010) 17(4) Psychiatry, Psychology and Law 538

Carroll, Robyn, Beyond Compensation: Apology as a Private Law Remedy (Irwin Law Inc, 2010) 349

Department of Justice and Regulation, Submission to Attorney General, Access to Justice Review – Summary Report, August 2016

Friedman, Hershey H, ‘The Power of Remorse and Apology’ (2006) 7(1) Journal of College and Character 1

Goatly, Andrew, Washing the Brain Metaphor and Hidden Ideology (John Benjamins Publishing, 2007)

Jeter, Whitney K and Brannon, Laura A, ‘‘I’ll Make It Up to You:’ Examining the effect of apologies on forgiveness’ (2016) The Journal of Positive Psychology 1

King, Michael, Freiberg, Arie, Batagol, Becky and Hyams, Ross, Non-Adversarial Justice (Federation Press, 2014)

Lines, Wayne, ‘Civil Liability: New laws clear path for genuine apologies’ (2016) 38(8) Bulletin (Law Society of South Australia) 14

NSW Ombudsman, Parliament of New South Wales, Apologies – A practical guide (2009)

Ombudsman Western Australia, Parliament of Western Australia, Guidelines on Complaint Handling (2017)

Roschk, Holger and Kaiser, Susanne, ‘The nature of an apology: An experimental study on how to apologize after a service failure’ (2013) 24(3) Marketing Letters 293

Stubbs, Julie, ‘Beyond apology? Domestic violence and critical questions for restorative justice’ (2007) 7(2) Criminology & Criminal Justice 169

Victorian Ombudsman, Parliament of Victoria, Apologies Report (2017)

Vines, Prue, ‘Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue’ (2015) 22(4) Psychiatry Psychology and Law 624

Vines, Prue, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ (2005) 27(3) Sydney Law Review 483

Zwart-Hink, Andrea, Akkermans, Arno and Wees, Kiliaan Van, ‘Compelled Apologies as a Legal Remedy: Some Thoughts from a Civil Law Jurisdiction’ (2014) 38(1) University of Western Australia Law Review 100

 

  • Legislation

Defamation Act 2005 (Vic)

Wrongs Act 1958 (Vic)

 

  • Other

Australian Press Council, Remedies without adjudication (2011) <https://www.presscouncil.org.au/remedies-without-adjudication/&gt;

Duncan, Tom, ‘Ethical Governance: Accountability, Transparency and Responsibility in Parliaments’ (Paper presented at the 35th CPA Australia and Pacific Regional Conference Cook Islands, Rarotonga, 27 November – 1 December 2016)

Government of Western Australia, National Apology to the Stolen Generations (March 2018) Western Australian Museum <http://museum.wa.gov.au/explore/articles/national-apology-stolen-generations>

Marlow, Karina, ‘Explainer: the Stolen Generations’, SBS (online), 1 December 2016 <https://www.sbs.com.au/nitv/explainer/explainer-stolen-generations&gt;

Mills, Tammy, ‘Sorry is the hardest word: why our authorities don’t apologise for stuff-ups’, The Age (online), 2 May 2017 <https://www.theage.com.au/national/victoria/sorry-is-the-hardest-word-why-our-authorities-dont-apologise-for-stuffups-20170502-gvxdyn.html>

NHS Education for Scotland, The Power of Apology (2010) <https://www.nes.scot.nhs.uk/media/6338/Apology%20Spring%20Focus%202010.pdf&gt;

Riddington, Liana Kayley, Responding to a Trust Violation: The Relative Effectiveness of Apology, Denial, and Reticence (Thesis, University of Tasmania, 2015)

Vines, Prue, ‘The Apology in Civil Liability: Underused and Undervalued?’ (Working Paper No 33, University of New South Wales Faculty of Law Research Series, 2013)

 

 

 

Open letter of thanks and appreciation #ADRRN18

By Jo Burnett, Research Masters student, Southern Cross University

The ADR Roundtable 2018 was a network event and conference on the Sunshine Coast in Dec. I came across this event by chance when looking for resources in ADR for research purposes.

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Jo presenting her paper at the ADR Research Network meeting on 4 December 2018

Submitting a draft paper for presenting was a new and exciting prospect for me and I was unsure of the format, audience, members and a little intimidated by many of the esteemed academics and authors submitting and blogging on the ADR blog site.

The organisers Dr Sue Douglas and Dr Lola Akin Ojelabi, and commentator and co-founder Dr Becky Batagol were in contact early through email and very reassuring and approachable.

First contact was a group meal on the evening beforehand and gave us all a chance to meet and greet in an informal and friendly way over dinner and drinks, this was a great idea and not knowing anyone, helped me enormously to settle and get to know everyone. The meal on day two was also a great time to relax and get to know everyone.

coffee ADR 2018

Jo and Drossos deep in discussion: Chats over coffee before the days starts are a great way to get to know other members and continue conversations from the sessions

First day arrival at The University of the Sunshine Coast was terrifically relaxed with great facilities and a warm friendly atmosphere.  The quality and range of speakers and presentations was exciting.  A number of changes were discussed with all the attendees and the program was altered to suit the number and requests of the attendees, making this a truly collaborative event.

ADR Roundtable Dec 2018 Sunshine Coast

Group discussion on each paper is a central feature of the network roundtable format

The quality and industry expertise of all the presenters and the range of presentations and research was astounding.  For a new researcher in the field, this event, the contacts and exposure has been  invaluable and all in the interest of building capacity for and in researchers in the DR field. Again, a big thank you for the organisers and founders who provide their time and expertise on a voluntary basis.

ADR rountable dec 2018

Mary Riley, Janet Barnes and Becky Batagol in the audience

I will definitely being attending next year’s event in Dec 2019 and will be further along in my research journey, with a big input from the feedback of the commentators, chair and attendees who’s feedback has been of great value and merit to my research.

Anyone who is conducting research in this field would find great benefit in attending, for me, this experience and contacts have been unbelievably rewarding.

Thank you all.

 

j burnett PHOTO (1)Joanna Burnett has been a professional Social Worker  for 15 years, receiving her undergraduate degree in 2003 from Deakin University in Melbourne.  Prior to receiving her degree, Joanna had been working in the northern NSW local magistrate’s courts supporting women experiencing domestic violence in a court support role in a women’s service, non-government agency since 1998. Joanna worked in a mental health and dual diagnosis hospital for the past 10 years and gained a Master degree in Forensic Mental Health through Griffith University in 2013. She continues to work in her private practice across NSW/QLD border as an AASW accredited family violence and mental health social worker as a counsellor.For the past 12 months, Joanna has been working with a family law firm in a mediation program in a family violence screening and assessment role and is enrolled in a Masters of thesis (Research) with Southern Cross University conducting research in family violence, FDR and Social Work.

Ethnographic Observations of a U.S. Family Court Mediation Service #ADRRN18

by Associate Professor Alexandra Crampton, Marquette University

This post celebrates the start of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account. Alex will be presenting this paper today.

In the U.S., most family law is determined at the level of each state.

ADR was first used in family court for marital reconciliation (Salem 2009). By the 1960s, several states provided such counseling through court services, and some programs became mandatory (Foster 1966).

trust

During the 1970s, as law reform introduced “no-fault,” divorce, conciliation services transitioned to mediation services for resolving child custody disputes (Salem 2009). Much of the focus was on reducing acrimony between parties by limiting the adversarial approach of formal legal procedures (Murphy and Singer 2015).

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In the US, most empirical research on child custody mediation has come from studies of court-based divorce mediation services (e.g. Kelly 2004). The focus was on comparing mediation with court. Family court mediation scholarship continues to center on divorce mediation (e.g. Shaw 2010) The resulting literature is bifurcated between findings of positive results (Emery et. al. 2001) and criticism (Murphy and Singer 2015).

conflict

As mediation became mandatory, many critics left the field. Since the 1990s, studies have shifted from ADR/court comparison to identifying best practices. The most comprehensive recent study was a 2013 court ADR study in Maryland.

Current, empirical research into child custody mediation in the US is rare. ADR studies involving direct observation, recording, and interaction with mediators and parents are even more scarce.

I began an ethnographic study of one family court mediation program in a large Midwestern, metropolitan (population 1.7 million) area in 2011. There are five family court commissioners and ten commissioners who conduct hearings regarding divorce, paternity actions, child custody disputes, child support enforcement, and domestic violence (as a civil action). There are about 11,000 new court filings each year, and about 800 cases of parental disputes that are referred to mediation. The agreement rate is about 50-55%. The mandatory mediation program fulfills a state law requiring that parents who file disputes regarding legal decision-making or child residence must first attend mediation before continuing in the court process. Exceptions can be determined by a judge or court commissioner, such as in family violence cases. The next step in the court process is appointment of a Guardian Ad Litem (an attorney) who makes an investigation and recommendation to the court.

I naively began my research questions where the empirical data largely had left off, which includes a presumption that mediation is a court trial alternative. My research design sustained this presumption, focusing on direct observation and recording of individual mediation sessions as separate from court process.

under the gavel

My research sample has forty-two mediation cases, thirty-six parent interviews (which includes fifteen pairs of parents), and ten mediator interviews. However, it was soon evident that my initial focus on mediation cases and case outcomes reflected a professional perspective, in which mediation is distinct from the overall legal process. Parents, meanwhile, were experiencing mediation more inchoately as it became part of their lives—and typically as a mandatory process embedded within a legal decision that one party had requested the court to make. Over time, the work has become more ethnographic, requiring greater immersion within court hearings, ongoing conversation with professionals and informal follow up with parents.

John Dewar  noted back in 1998 that family law is quite chaotic. My analysis has turned to sorting through the chaos of mediation as embedded within family law, which, in turn, is embedded within an even larger chaos of parenting and family. This was once famously described in Zorba the Greek as “the full catastrophe.”

Reflecting back to the original goal of the family court as a I find that mediation not only brings parents in conflict together but also brings them into a court intervention that neither party sought and which therefore can bring mixed results.

The old ADR debates centered on benefits and risks as if mediation itself was either a generally good intervention or not. And this evaluation was generally within comparison with court-based decision-making as if the court trial was a common option (e.g. Pearson 1982).

Today, however, the court trial is kept from parents, in part by using mediation as a “speed bump.” In general, family court mediation persists as a conciliation service, attempting to shift parties from an adversarial stance to one of cooperation or at least parallel parenting. Although parents are no longer encouraged to marry or stay married, they are expected to share parenting, which brings them back together.

The most surprising outcome of this research, then, has been how mediation brings parties back to a nuclear family form. The difference from the 1960s is that parents are mandated to mediation rather than marital conciliation – and the similarity is a concern for child welfare (written in law as the child’s best interests).

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This pressure is met variably by parents who also vary in how savvy they are about their options for refusal. This means that family court mediation is not inherently empowering or coercive but rather depends upon the goals and interests of parents as they engage in conflict through a legal case that has been diverted to mediation.

My current work is to update the old research frame of evaluating mediation vs. court to better analyze the implications of ADR as embedded within family law, family court process, and the “full catastrophe” of family.

Alexandra Crampton is an Associate Professor in the Department of Social and Cultural Sciences Sciences at Marquette University in Milwaukee, Wisconsin. She holds a Masters degree in Social Work and a joint Ph.D. in Social Work and Anthropology from the University of Michigan. Her past research was on elder mediation in Ghana and the US, and her current research is on family court mediation in the United States. She was a Visiting Research Associate in the Murdoch School of Law during June-August 2018.

Contact information: alexandra.crampton@marquette.edu