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.

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.

burnett

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.

Advertisements

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).

marriage cut up.jpg

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).

yay.png

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

What Makes Us Whole #ADRRN18

On Monday 3 December, around 25 excited dispute resolution scholars will gather on the Sunshine Coast, Queensland for the 7th Annual Roundtable of the Australian Dispute Resolution Research Network.

This is a meeting that provides respite for many of us. It is an academic experience designed to support dispute resolution research and researchers and to provide high quality, critical feedback on the papers presented there. It is so rare to find a scholarly forum where the emphasis is on feedback and where research development is central.  You can see details of our previous meetings here.

In 2018 we are being hosted by Dr Susan Douglas of the University of the Sunshine Coast. Dr Lola Akin Ojelabi is the co-organiser of the roundtable. We are excited to welcome a number of international ADR scholars again, showing how attractive our forum is to dispute resolution scholars internationally. It is also wonderful to see so many PhD and research students presenting. We take the responsibility of providing a rigorous academic apprenticeship seriously.

Papers in the 2018 program include:

  • Laurence Boulle and Rachael Field: Rethinking Mediation’s Fundamental Value of Self-Determination
  • Kate Seear and Becky Batagol: The need for a new ethical rule for lawyers in family violence intervention order matters
  • Kathy Douglas, Christina Platz and Tina Popa: Teaching Advocacy and Mediation in a Blended Learning Design: Scaffolding Learning Through Video Annotation/Discussion
  • Jackie Weinberg: The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic
  • Lola Akin Ojelabi: Legislation-based DR Processes and Access to Justice
  • Alex Crampton: Mandatory Family Court Mediation as Variably Empowering and Coercive: Ethnographic Exploration of a U.S. Family Court Mediation Program
  • Claire Holland and Tina Hoyer: A case for coaching: Influencing cultural change in the ATO
  • Cris Vianna Veras: Teaching mediation in Brazil and Australia: can we improve access to Justice?
  • Re-Accreditation of Mediators and further issues of regulation: Janet Barnes with Kathy Douglas and Alysoun Boyle from ADRAC
  • Mary Riley: Is there a place for restorative justice in civil mediation?
  • Danielle Hutchinson and Emma-May Litchfield: Mixed Modes (Hybrid) Processes Research
  • Pauline Roach: The importance of the Intake Interview in a workplace dispute
  • Joanne Burnett: Lessons from the Literature: Developing A Framework for Practice in A Social Work Study of Family Violence in Family Law Mediation
  • Alysoun Boyle: Sample Populations in Empirical Studies of Mediation: Ramifications for What We Know About Mediation, and About Who Uses It
  • John Woodward: Mediation in chains: The problem with the thinning vision of self-determination in court-connected facilitative mediation
  • Sabrina Korva and Drossos Stamboulakis: Online courts: A possibility for consumers in Australia?

Stay tuned to the blog as we post workshop papers in December and January. Follow the hashtag #ADRRN18 for frequent updates on Monday and Tuesday.

Call for Papers, Advances in Comparative and Transnational ADR, Hong Kong March 2019

Lots to blog about this morning!

I saw this call for papers on our US sister blog, Indisputably, and thought it was too good not to share here too.

The Law Faculty at the University of Hong Kong will be hosting a research forum March 8-9, 2019 on Advances in Comparative & Transnational ADR: Research into Practice to which we  warmly invite submissions for consideration.

 

  • The focus of the forum is on exploring the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research.  Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and cross-border dispute resolution, insights from recent multi-country studies, and consideration as to how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.
  • For those wishing to submit a paper for consideration:
a) By 10 December 2018, please e-mail us:
(i) an abstract of your paper (up to 200 words);
(i) your biography (100 words);
(iii) indicate whether you intend to submit your paper for the conference publication; and
(iv) indicate whether you have any objections to being a discussant at the forum.
Submissions may be sent to: sali@hku.hk
More info here.

Harvard program on negotiation – graduate research fellowships

I saw this and thought some of our graduate research scholars who follow this blog might be interested. 

student harvard

Accepted Students Day 2018 by PresbyPhotos (CC BY-NC 2.0)

Harvard University’s Law School invites applications for graduate research fellowships under its programme on negotiation. This supports dissertation research and writing in negotiation and related topics in alternative dispute resolution and gives fellows an opportunity to immerse themselves in the diverse resources available at the programme on negotiation. The purpose is to give doctoral students who are writing their dissertations the opportunity to be part of the programme on negotiation community.

PhD students enrolled in programmes outside of the US may apply. Candidates in the fields of economics, psychology, sociology, anthropology, international relations, public policy, urban planning, business and law are encouraged to apply. Candidates must have completed all degree requirements except for their dissertation. Graduate law students are eligible in connection with scholarly research undertaken to satisfy their Doctor of Juridical Science thesis requirements.

The fellowship lasts for one year and includes a stipend of USD 26,000, communal work space, library access and other privileges at Harvard.

 

  • Closing date 08 Feb 19
  • Deadline information This call is repeated once a year.

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).

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.