About Associate Professor Becky Batagol

Dr Becky Batagol is an Associate Professor of law at the Faculty of Law, Monash University. 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.

On the passing of Frank Sander: A critical, grateful view from the Antipodes

Frank Sander, dispute resolution visionary and hero, recently died, aged 91.

I thought it would be worthwhile exploring some of Sander’s achievements and impact from an Australian civil justice perspective. In particular, I will consider the relevance of  Sander’s multi-door court house idea to Australia today.

For many years, I have been teaching Non-Adversarial Justice to undergraduate law students at Monash University. The wonderful, far-ranging discussions we have in those classes have given me the chance to reflect on the impact of Sander’s work here in Melbourne, Australia.

Sander was a professor of law and dispute resolution at Harvard University in the USA. He is associated with developing the ‘multi-door courthouse‘ idea: that a single court could triage the civil matters that came before it and provide a range of dispute resolution services (both litigious and settlement-based)  depending on what is needed in each case. A multi-door courthouse is a dispute resolution centre where a grievant, with the help of a screening officer at the court, is directed to an appropriate process or series of processes. This approach is underpinned by the view that court costs and delay are increased by ill-matched disputes and processes.

In many ways the multi-door courthouse is the civil equivalent of the criminal problem-oriented court, which aims to reduce re-offending by addressing the underlying causes of criminal behaviour.

doors

Multi-door courthouse: right for Australia? image Credit: Dan Boss, Exit at the Acropolis Museum, Creative Commons

Sander is also credited with developing the now ubiquitous idea of fitting the forum to the fuss (that each matter should use an appropriate dispute resolution process). In Australia in 2018, this an uncontroversial goal, which, unfortunately, is still a long way from reality in the civil justice system.

To develop ideas that become pervasive and which define a field has a something to do with luck (timing, place, race, gender etc). But not every lucky person has clear thinking, vision and the ability to convince others. Sander was clearly an ideas man and we listened. The impact of his thinking on civil justice systems and court practice is significant, even in far-away places such as Australia.

Sander gave a famous speech in which he first set out his ideas on the civil justice system at the 1976 Pound conference held in St Paul, Minnesota and organised by then Chief Justice of the Supreme Court, Warren Burger. Many, including Jeffrey Stempel regard this conference as the genesis of the modern ADR and court reform movement.  Stempel argues that this conference was notable in its criticism of the litigation process, its promotion of ADR by its “all star cast” including the cream of the American court and legal establishment as well is the publishing of its proceedings in West’s Federal Rules Decisions, guaranteeing wide exposure of the conference’s pro-ADR sentiments, especially to the nation’s federal judges.  The proceedings of the Pound Conference can be found in ‘National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ (Apr. 7-9, 1976) in 70 F.R.D. 79 (1976). The 1976 conference has, of course, spawned the contemporary Global Pound conferences.

Sander’s speech was at the heart of what the conference acheived. According to Diane Levin, at the 1976 Pound Conference, Sander

reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

This is a call for the integration of ‘ADR’ with the ordinary everyday business of civil courts. (There is a very readable exploration of the origins of Sander’s Pound paper  here).

More than 40 years later, Sander’s call has largely been answered.  We know that settlement has always been part of civil litigation (thanks Marc Galanter for giving us the term ‘litigotitation’). But since Sander gave that speech, various forms of ADR, especially mediation and arbitration, have become part of standard court practice in most jurisdictions. For example, the Supreme Court of NSW offers both mediation and arbitration for civil matters under Parts 4 and 5 of the Civil Procedure Act 2005 (NSW). Referral to ADR can be mandatory in most Australian courts. Court-connected ADR services in Australia are provided by in-house staff or by external service providers.

However, most Australian courts could not be called multi-door courthouses. One reason why, is that formalised dispute resolution screening processes are not in place in most Australian courts. (The NSW Land and Environment Court is a clear exception).

What I think Sander didn’t quite get it right is that his focus was largely on the courts. To my mind, the locus of conflict and dispute resolution is not at the pointy court-end of the dispute resolution pyramid, but the heavier bottom-part. Most people who have a ‘legal problem’ don’t go near a court but choose or are forced to use other methods of dealing with their matter. These methods include direct action such as physical retaliation, seizure of property or removal of offending objects, informal negotiation or exit and avoidance (‘lumping’ the problem). That’s certainly what goes on in my house!

Court-based triage and assessment of problems is going to offer very little to most people who never even conceive of their ‘problems’ as court-worthy nor have the funds to litigate. When researchers measure ADR use, there is always very low awareness of ADR processes in the community and low uptake and use of formal ADR services. Even ADR services are not the only answer.

The multi-door courthouse doesn’t reflect more recent government efforts to encourage efficiency in the civil justice system in Australia and the UK. Pre-action protocols/procedures have been implemented widely in England and Wales following the Lord Woolf Report and more sparingly (but significantly) in Australia. Pre-action procedures encourage early settlement of disputes, full disclosure of information between parties and, where the matter cant be resolved, the narrowing of issues in dispute, but all before proceedings have commenced. Pre-action procedures are important because they force the location of ADR services away from the courts and towards pre-trial services offered by non-court providers or undertaken informally. Tania Sourdin argues that pre-action procedures are a significant shift away from Sander’s multi-door courthouse and towards  a “more modern multi-option  dispute resolution model.”

I would argue that they key idea behind Sander’s multi-door courthouse idea, matching the forum to the fuss, should and does still exist as a guiding principle of Australian civil justice systems. While the location of dispute resolution activity has shifted away from the courts (in Australia at least) Sander’s ideas have shaped the civil justice landscape of our country.

Thank you, Frank.

Aspects of this post are based upon ‘Chapter 7: ADR: Appropriate or Alternative Dispute Resolution’ in King, Freiberg Batagol & Hyams Non-Adversarial Justice (2nd ed, 2014).

Advertisements

National Mediation Conference 2019

canberra

Photo Credit Tim Hughes Creative commons

The date for the next National Mediation Conference has now been set. Originally the bi-annual conference was to be held in September 2018, but it was delayed.

The Board of National Mediation Conference has now confirm that the next National
Mediation Conference – NMC2019 – will convene in Canberra at the National Convention Centre on 15 – 17 April 2019. This is just before the Easter/Passover break.

A website will be established shortly and we will announce on this blog the URL.

The Board of National Mediation Conference have stated:

The Board of National Mediation Conferences Ltd is looking forward to a very successful conference in 2019, and welcomes interest and participation from the mediation community, as well as from the broader ADR community.

“You Have to Love the Crap out of People”- LGBTIQA+ Christians and the Postal Survey

 by Cameron McPhedran

To mark the end of the Australian postal survey on marriage equality and while we await the results, we bring this piece by Cameron McPhedran whose specialisation relates to the interface of mediation and LGBTIQA+ people.

Cameron McPhedran holds a BA and a Master of Criminal Justice and Criminology from UNSW. He wrote his Masters thesis, finishing in June 2017, on mediation in conflicts between LGBTIQA+ youth and their parents regarding gender identity and/or sexual orientation. In dispute resolution, Cameron has worked at San Quentin Prison, Rosemount Good Shepherd Marrickville, and Resolution Institute. He is an NMAS accredited mediator and has also studied Restorative Justice at both UNSW and UC Berkeley.

 

Over the past month, I have had the privilege of attending two gatherings exploring LGBTIQA+ Christian experiences, as a mediator whose particular specialisation relates to the interface of mediation and LGBTIQA+ people. This blog post will reflect upon those gatherings and the lessons the dispute resolution community can learn from them.

32915437885_e90721d14b

Noah and the Rainbow: Photo Credit Lawrence OP Creative Commons

I am not Christian and do not practice any religion. However, I believe that now is a particularly important time to listen the stories of people who are both religious and LGBTIQA+. Whilst the LGBTIQA+ community in general is experiencing immense strain in the midst of the marathon same-sex marriage debate and optional postal survey, the two gatherings I attended demonstrated that LGBITQA+ Christians are doing it particularly tough.

In general, religion serves as a protective factor against mental health difficulties and promotes wellbeing. A notable exception to this is religious LGBTIQA+ people. Writing Themselves In, the Australian report on the health and wellbeing of LGBTIQA+ young people last published in 2010, found that young people within this cohort who mentioned religious affiliation experienced numerous negative outcomes.  These included that they were more likely to feel bad about same-sex attraction, experience social exclusion, report feeling unsafe at home, and more likely to report thoughts of self-harm or suicide.

Further, in the midst of the same sex marriage debate, many religious LGBTIQA+ people feel as though their religion is being treated as the ‘enemy’ of the ‘yes’ campaign. This perception is not helped by the actions of some religious leaders. Archbishop Glenn Davies has received media coverage for the Sydney Anglican Diocese’s decision to grant $1 million to the Coalition for Marriage. This action is far from unique among religious leaders, both Christian and non-Christian.

On the ground however, amazing work is being done by LGBTIQA+ religious people and their allies, demonstrating the community’s resilience. On Saturday October 7, at the Wayside Chapel in Kings Cross, “A Different Conversation,” was held. This was the sixth “A Different Conversation,” held in Sydney.

At the event, I was fortunate enough to hear of the way in which the Church community has supported LGBTIQA+ Christians in Sydney. One of the events organisers, Mike Hercock, founded Imagine Church in Surry Hills, which was a welcoming space for its non-heterosexual participants. He also was instrumental in the 100 Revs campaign, which saw 100 members of the Australian clergy apologise to the gay community over historical discrimination and exclusion.

I also learnt about the efforts of Bec Apted and Elizabeth Plant, founders of another LGBTIQA+ welcoming Church- Spark- in Penshurst. Elizabeth’s words have stuck with me in particular in the following weeks. Describing her approach to supporting her fellow practitioners at Spark Church and her friends during this difficult time, Elizabeth said that “you love the crap out of people… you love them consistently and persistently.”

On Saturday October 21, I went to the Inaugural “Equal Voices” Conference at UTS. This event, like “A Different Conversation,” was attended by LGBTIQA+ Christians and their allies from Australia and New Zealand. The keynote speakers were Julie McCrossin, a prominent media figure, and Matt Glover, a counsellor based in Melbourne specialising in LGBTIQA+ issues. There were also breakout sessions covering issues such as understanding and recovering from orientation change therapy, transgender and intersex experiences, LGBTIQA+ affirming Evangelicals, and what justice and inclusion looks like in Christianity.

Matt Glover reflected on some of the difficulties LGBTIQA+ people are facing at the moment. Particularly relevant was his explanation of ‘disenfranchised grief.’ This refers to when grief is experienced by an individual but not by those around them. It struck me just how many members of the LGBTIQA+ community are experiencing disenfranchised grief within their families of origin during the optional postal survey. For example, where LGBTIQA+ people who have family members who vote against or oppose marriage equality, the LGBTIQA+ person may be left to grapple with hurt and rejection alone within the family, no matter the complicated religious, cultural and political reasons are behind this. Glover also talked about the overwhelming number of LGBTIQA+ people accessing his counselling during this survey, many of whom are presenting with symptoms similar to PTSD.

Lessons for Mediators

So what can mediators learn from the experiences of LGBTIQA+ Christians?

Firstly, to state the obvious, these experiences are challenging. But equally, they are rewarding, as religion represents one of the most important part of social connection and belief in LGBTIQA+ Christians’ lives. Further, there are safer spaces for LGBTIQA+ Christians in all faith denominations. Julie McCrossin spoke of an “underground where you are welcome… individual ministers and priests.” When discussing her experiences at the South Sydney Uniting Church, McCrossin also mentioned the ongoing involvement of sex and gender diverse activist Norrie at Church events. It is clear that some spaces are welcoming for all members of the ‘rainbow community.’

Secondly, as these experiences are complex and conflicts between LGBTIQA+ Christians and family members, their churches, or other community structures are ongoing, the mediation profession needs to reach out to this cohort more. Conflict engagement shouldn’t be encouraged where safety cannot be guaranteed. However, if mediators do aim to provide a safer space for these conflicts to be explored, we should embrace Mayer’s concept of “staying with conflict.” Providing an environment where conflict can feel less charged and more manageable with the help of a dispute engagement professional makes a difference in alleviating tension and clarifying issues of disagreement. Mediation should sit alongside counselling, conflict coaching and family therapy as a useful strategy in situations of family conflict relating to issues of gender identity and sexual orientation.

The final takeaway I got from these two conferences is the idea of realistic optimism. Mayer (2016) speaks of realism in the context of optimism and pessimism. I want to emphasise the optimism part: the conflicts the LGBTIQA+ community are experiencing during this current debate in some ways represent progress. It is important that groups who experience structural disadvantage are not silenced in public debate. The LGBTIQA+ community has had the opportunity to show its many faces and stories to the rest of Australia during this debate. For sure, not everyone is listening to these stories and the personal and emotional cost for many people has been a big downside. However, people are standing up for themselves and their LGBTIQA+ friends and colleagues. As a profession, mediators need to listen to these voices with ever greater intention, now and into the future.

NB: I would like to thank Francis Voon, Natalie Cooper and Benjamin Oh in particular for inviting me to attend the Equal Voices Conference 2017, alongside all of the full-hearted conference participants at both Equal Voices and A Different Conversation.

 

 

Don’t fear robo-justice. Algorithms could help more people access legal advice

John ZeleznikowVictoria University

This post by ADR Research Network member and Professor John Zeleznikow appeared in academic commentary site The Conversation on 23 October 2017.

File 20171018 32345 1tsa5e8.jpg?ixlib=rb 1.1
Should we be afraid of robo-justice?
Maksim Kabakou/Shutterstock

You may have heard that algorithms will take over the world. But how are they operating right now? We take a look in our series on Algorithms at Work.


Algorithms have a role to play in supporting but not replacing the role of lawyers.

Around 15 years ago, my team and I created an automated tool that helped determine eligibility for legal aid. Known as GetAid, we built it for Victoria Legal Aid (VLA), which helps people with legal problems to find representation. At that time, the task of determining who could access its services chewed up a significant amount of VLA’s operating budget.

After passing a financial test, applicants also needed to pass a merit test: would their case have a reasonable chance of being accepted by a court? GetAid provided advice about both stages using decision trees and machine learning.

It never came online for applicants. But all these years later, the idea of using tools such as GetAid in the legal system is being taken seriously. Humans now feel far more comfortable using software to assist with, and even make, decisions. There are two major reasons for this change:

  • Efficiency: the legal community has moved away from charging clients in six-minute blocks and instead has become concerned with providing economical advice.
  • Acceptance of the internet: legal professionals finally acknowledge that the internet can be a safe way of conducting transactions and can be used to provide important advice and to collect data.

This is a good development. Intelligent decision support systems can help streamline the legal system and provide useful advice to those who cannot afford professional assistance.

Intelligent legal decision support systems

While robots are unlikely to replace judges, automated tools are being developed to support legal decision making. In fact, they could help support access to justice in areas such as divorce, owners corporation disputes and small value contracts.

In cases where litigants cannot afford the assistance of lawyers or choose to appear in court unrepresented, systems have been developed that can advise about the potential outcome of their dispute. This helps them have reasonable expectations and make acceptable arguments.

Our Split-Up software, for example, helps users understand how Australian Family Court judges distribute marital property after a divorce.

The innovative part of the process is not the computer algorithm, but dividing the process into 94 arguments, including issues such as the contributions of the wife relative to the husband; the future needs of the wife relative to the husband; and the marriage’s level of wealth.

Using a form of statistical machine learning known as a neural network, it examines the strength of the weighting factors – contributions, needs and level of wealth – to determine an answer about the possible percentage split.

Other platforms follow a similar model. Developed by the Dutch Legal Aid Board, the Rechtwijzer dispute resolution platform allows people who are separating to answer questions that ultimately guide them to information relevant to their family situation.

Another major use of intelligent online dispute resolution is the British Columbia Civil Resolution System. It helps people affordably resolve small claims disputes of C$5,000 and under, as well as strata property conflicts.

Its initiators say that one of the common misconceptions about the system is that it offers a form of “robojustice” – a future where “disputes are decided by algorithm”.

Instead, they argue the Civil Resolution Tribunal is human-driven:

From the experts who share their knowledge through the Solution Explorer, to the dispute resolution professionals serving as facilitators and adjudicators, the CRT rests on human knowledge, skills and judgement.

Concerns about the use of robo-justice

Twenty years after we first began constructing intelligent legal decision support systems, the underlying algorithms are not much smarter, but developments in computer hardware mean machines can now search larger databases far quicker.

Critics are concerned that the use of machine learning in the legal system will worsen biases against minorities, or deepen the divide between those who can afford quality legal assistance and those who cannot.

There is no doubt that algorithms will continue to perform existing biases against vulnerable groups, but this is because the algorithms are largely copying and amplifying the decision-making trends embedded in the legal system.

In reality, there is already a class divide in legal access – those who can afford high quality legal professionals will always have an advantage. The development of intelligent support systems can partially redress this power imbalance by providing users with important legal advice that was previously unavailable to them.

There will always be a need for judges with advanced legal expertise to deal with situations that fall outside the norm. Artificial intelligence relies upon learning from prior experience and outcomes, and should not be used to make decisions about the facts of a case.

The ConversationUltimately, to pursue “real justice”, we need to change the law. In the meantime, robots can help with the smaller stuff.

John Zeleznikow, Professor of Information Systems; Research Associate, Institute of Sport, Exercise and Active Living, Victoria University

This article was originally published on The Conversation. Read the original article.

 

More Perfect Podcast series

Readers of this blog may be interested in The “More Perfect” podcast series and a particular episode on reconciliation and apology. This was brought to our attention by Monash University academic and The Outer Sanctum podcaster extraodinaire, Dr Kate Seear.

The More Perfect podcast series (produced by Radiolab) has just returned for a second season. They examine important cases from the US Supreme Court and the first episode of the new series is about the Dredd Scott case, a case about slavery and citizenship.

It takes a bit of an unexpected turn, though, as it deals with issues about reconciliation and apologies. Readers might  be interested in it from a dispute resolution or non-adversarial justice perspective, just because it raises some interesting questions about how to reconcile past wrongs (and whether this is possible).

The relevant episode is here, and it is called “American Pendulum 2”. It might be useful for teaching, too.

Application process now open to join the VSBC Mediation Panel 

The Victorian Small Business Commission is now accepting applications for appointments to its Mediation Panel. 
Applicants should have:

· National mediator accreditation under the National Mediator Accreditation System (NMAS) by a Recognised Mediator Accreditation Body (RMAB);

· Relevant experience;

· Indicated relevant jurisdictional capability and knowledge;

· Agreed to comply / demonstrated compliance with the administrative requirements of the VSBC; and

· Confirmed their ability to undertake mediation appointments if offered. 

Panel Members will be appointed for a two year duration. The application process is open until midnight Friday 29 September. 

You can find out more at the VSBC website.

Research Participants Wanted Positive post-separation parenting: What works for Australian parents?

 

This post is authored by Dr Kris Natalier and Dr Priscilla Dunk West, Flinders University. Priscilla and Kris study how people make sense of intimate and family relationships. This is research that we believe is important, well-conceived and worth participating in. 

 

Do you have a good relationship with your former partner?

We would like to hear about your experiences, to find out what works in building good relationships between separated parents.

flower heart

Photo: Nick Kenrick Creative Commons

We are interested in surveying and interviewing parents – men and women – who are 18 years or older and who have good relationships with their former partners.  We are interested in hearing about how you define ‘good relationships’ and how you build and maintain a good relationship with your former partner and other important people in your life: what works, what’s easy, what’s hard?

The study involves a survey and, if you wish two confidential, one-on-one, in-depth interviews: one where you tell us about your relationship with your former partner and one, around four months later, where you tell us if anything has changed.  We expect the interviews will last approximately one hour. We can interview you on the phone, by Skype, or if you live in Adelaide, in a place that suits you.

If you are interested in completing the survey, you can find it here.

If you are interested in being interviewed, or hearing more about the study please contact Priscilla [Priscilla.dunkwest@flinders.edu.au         08 8 8201 5288] or Kris kris.natalier@flinders.edu.au              08 8201 3391]

The study is conducted by Dr Priscilla Dunk West and Dr Kristin Natalier, researchers at Flinders University. Priscilla and Kris study how people make sense of intimate and family relationships. We are not employed by any service to conduct this study.

Taking part in this study is voluntary. Your decision to participate or not will not impact upon your access to any services or organisations.