In February each year, civil justice academics from Australia and New Zealand gather to discuss recent developments and current research on civil procedure and dispute resolution. This year’s event was hosted by Emeritus Professor David Bamford and Flinders Law School in Adelaide on 15 and 16 February.
Like the annual ADR Research Network Roundtable, the Civil Justice Forum provides a inclusive and supportive place to test and share ideas. It is great to see the increasing level of overlap between our civil justice, civil procedure and dispute resolution research communities. A growing number of researchers have attended both events in recent years, and we may be en route to becoming one big happy family. At the Forum, not even a skirmish that broke out at one point about whether ADR is appropriate or alternative – yes, some of us (you) are still having that debate – could dampen the collegial mood.
Pictured: Australian Civil Justice Royalty Emeritus Prof David Bamford (Flinders) and Prof Peta Spender (ANU) hold court
Presentations spanned such diverse topics as judicial theory and procedural reform (Dr Joe McIntyre, Uni SA), advance rulings in litigation (Miiko Kumar, Sydney), the gap between what we teach and the skills students need (Doris Bozin, Canberra), and teaching models in civil procedure and dispute resolution (Svetlana German, Notre Dame). Particular highlights included:
- Dr Tania Penovic (Monash) providing a valuable overview of the trajectory of access to justice reviews in recent decades and the Victorian Government’s recent Access to Justice Review Report (with its emphasis on the missing evidence base and the evolving meaning of access to justice)
- Dr Lily O’Neill (Melbourne) on her outstanding study of the negotiation of native title access agreements between traditional owners, resource companies and the state, highlighting the powerful influence of non-legal factors on outcomes, and
- Dr Bridgette Toy-Cronin (Otago) posing novel and important questions about the ineffectiveness of case quantum as a proxy for case complexity, and the need for more attention to matching civil cases to the most suitable court.
Based on my observation of the last five of these events, an increasing number of attendees are engaging in empirical legal research on civil justice. More please! This is a terrific development, and to be welcomed. A series of recent reports have identified the dearth of civil justice data and analysis as a key impediment to evidence-based reform. The most recently additions include the Victorian Access to Justice Review, and the Productivity Commission’s current inquiry on Data Availability and Use and its past work on Access to Justice Arrangements.
Academic conferences provide an important opportunity to share experiences on what works and what doesn’t in our research. At the Forum, Emeritus Prof David Bamford presented such a paper on the difficulties of investigating discovery practices in litigation. David’s work highlights the way the quality of administrative data resources and court staff buy-in can make or break this kind of research.
Pictured: Emeritus Prof David Bamford reassures us that data failures are not research failures
Happily, David also identified a common experience of empirical researchers – that even when research doesn’t progress as planned, it often still yields important results.
As if that wasn’t enough, we were treated to a lively discussion at the end of the conference when we were joined by Prof Carrie Menkel-Meadow (University of California, Irvine). Carrie shared her deep insights on the challenges of empirical research in this field. In particular, she provided us with a cautionary tale about the need to be aware of local legal culture when making comparisons between jurisdictions. These kinds of factors are often overlooked by non-lawyer research teams.
Pictured: Attendees look on (in rapture) as Prof Carrie Menkel-Meadow shares her insights
We also discussed the difficulties of getting access to data for civil justice research, and the impact the increasing privatisation of ADR and online dispute resolution services are likely to have on this state of affairs.
Thanks again to David and Flinders Law School for hosting the event. If you interested in joining next year’s forum, please make a note in your diary for mid-February 2018 and keep an eye on the ADR Research Network Blog for announcements.