Piloting ODR Simulation Assessment For Law Students: A Case Study Using Modria Software At Victoria University

This post has adopted from a presentation given at the Civil Justice Forum 2018 hosted by RMIT by Nussen Ainsworth, Professor John Zeleznikow and Colin Rule.

 

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(Photo: Colin Rule skyping from California USA into the ADR lecture in Melbourne Australia.)

Introduction

In 2017 the Alternative Dispute Resolution unit at the Victoria University Law School partnered with Tyler technologies (formally Modria) to integrate Online Dispute Resolution into the unit as a key form of assessment. The Tyler/Modria platform used in the pilot is the one being used in the USA and other countries for court/government/commercial purposes (https://www.tylertech.com/solutions-products/modria). It has not been designed for student assessment

All students were required to participate in an ODR simulation in groups of 3 and primarily provide legal advice re the content of the simulation together with a written report. This blog post will discuss the process of developing an ODR simulation and integrating it into the law degree curriculum.  We will also consider assessing student performance. This post will also outline some of the opportunities and challenges for teaching ODR that were identified in conducting the pilot and also provides ODR insights from law students taking the course.

ODR Development

Online Dispute Resolution (ODR) is a concept developed circa 1996. At that time the focus was upon the resolution of disputes that originated online.  The prevailing belief was that those whose disputes that originated on the internet would find little difficulty in attempting to resolve these disputes via the World Wide Web. For most of the past twenty years, ODR research has focused upon electronic commerce disputes. Only recently, has ODR focused upon non-financial disputes and disputes that do not originate online.

Access to Justice Review (VIC, 2016) Recommendation 5.2

The Access to Justice report was commissioned by the Victorian Government in October 2015. The aim of the review was to improve access to justice for Victorians. The review was released in October 2016 with 60 recommendations.

Recommendation 5.2 was for the development of an online system for the resolution for small civil claims at VCAT. The Government agreed to implement this recommendation in May 2017.  The review recommends the following three-step process for introducing ODR into the Victorian Civil Justice System.

Step 1. establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;

Step 2. provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and

Step 3. introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.

The British Columbia Civil Resolution Tribunal (https://civilresolutionbc.ca/)  acts in a similar manner.

ODR, Artificial Intelligence And Self Represented Litigants

Zeleznikow has examined the issue as to whether potential litigants can receive useful support from intelligent online dispute resolutions[1]. He claimed that such systems can be particularly useful for self-represented litigants. The SRLs benefit not only from obtaining useful advice, but also becoming better educated about the procedures and potential outcomes for issues in dispute. He noted that most ODR systems provide exactly one of either BATNA advice, support for trade-offs and facilitated communication. A truly useful Online Dispute Resolution system should be a hybrid of all three approaches. Further, Online Dispute Resolution should not be fully automated. As well as providing opportunities for communication, such systems should advise users of the relevant law, potential solutions and relevant trade-offs. These tools might be videos, relevant papers and books, past cases and links to useful websites. They can also be very useful in triaging disputes (e.g. immediately sending a case of domestic violence to court rather than allowing the parties to prolong physically acrimonious disputes) and act as a source of information collection (there is no need to expend a court official’s time recording demographic data).

The ADR Unit At VU

The ADR unit at VU College of Law and Justice was first delivered in 2015. The unit is a popular elective with approximately 120-140 students enrolled each year. Through a Technology Enhanced Learning Grant, a series of videos were developed which followed a case through mediation and arbitration. The videos are posted on YouTube (https://youtu.be/J2KLXAKfIL8). The unit received a blended learning grant in 2017. This grant was used to develop the ODR simulation component for the unit.

Unit Assessments

The unit has four assessments. Assessments 2-4 are group based.

  1. Online multiple choice questions
  2. ODR simulation and report
  3. Letter of advice post the ADR process with the production of either a mediation deed of settlement or an arbitration award
  4. Group presentation

ODR Added Benefits for Students

ODR has primarily been seen as the provision of ADR via technology. ODR integration into the ADR curriculum has the potential to offer many benefits for students. The ODR component requires students to develop their technological literacy. It also offers greater time and access flexibility for students.

Student Insights from the Integration of ODR in the ADR Unit

The following insights were adapted from observations, class discussion and student submissions in the ADR unit.

The Benefits of ODR

There are a number of benefits offered by the use of ODR where the parties use a text-based platform as compared to traditional mediation.

The benefits include:

  • Everything is typed so there is no need to repeat what was said or take notes
  • It can be more cost-effective; there is no requirement for travel, room hire or paper.
  • Parties participate remotely which can address safety concerns and allow for a more comfortable environment.
  • Less confrontational or emotional
  • Keeps parties more focused on the issues

Limitation of ODR

The text-based ODR process comes with a number of limitations as compared to the traditional mediation process:

  • The process is impersonal
  • It can be hard for the parties to express empathy
  • There is a greater likelihood of the parties becoming keyboard warriors
  • Lack of non-verbal communication
  • The parties require competency in digital literacy e.g. typing speed
  • Asynchronous text communication can have delays between messages
  • There can technical difficulties with both the hardware and software
  • Parties can easily type messages in the wrong room
  • The mediator has less control
  • There needs to be confidentiality compliance with the typed record
  • The process creates added complexity for non-English speakers

How can ODR be improved

A number of the limitation and issues with ODR can be addressed through:

  • Intake session with the mediator to build rapport
  • Introduction to the ODR video
  • An ODR guide for parties that covers:
    • Etiquette
    • Online communication
    • Process
  • Use of video chat in mediation
  • Able to view joint and private rooms simultaneously
  • Alerts for new messages
  • ‘typing…’ icon when the other party is typing
  • Indicator for when a message is sent, delivered and read
  • Mobile device compatibility
  • Mediator termination option

Opportunities and challenges for ODR in law school curriculum

Following the introduction of the ODR simulation integration pilot in a law school ADR unit, it is clear that this is an exciting area which has a number of opportunities and challenges to consider as it is further developed and delivered.

  • Group work based assessment has a number of challenges and this is no different in an ODR context.
  • ODR is an innovative and new area to which students are being exposed. This requires expectations to be managed.
  • For the pilot, we used one fact scenario for all the groups. There is an opportunity for students to develop their own fact scenario for their group to use in the ODR simulation.
  • The ODR simulation will be limited by the platform being used. The platform used in the pilot was not designed for student assessment. There was no ability to export the content of the simulation for assessment submission. For the pilot, students were required to copy the text from the platform and paste it into a word document which was then submitted. This a clunky and inefficient process.

Conclusion

With the exponential increasing use of technology in education, government, commerce and courts there is an urgent need for students to be aware of new technological trends.  Whilst the use of ODR in legal practice is still very limited, there is wide acceptance that this will no longer be the case in the coming decade.  Hence, as legal education leaders, we need to train our students in the potential and use of ODR.

But as well as training legal students for future practice, the course has benefits for teaching students about ADR.  It allows students to watch and most importantly engage in ADR simulations.  This opportunity is lost in the traditional teaching of ADR.

[1] Zeleznikow, J., 2017. Can Artificial Intelligence and Online Dispute Resolution enhance efficiency and effectiveness in Courts. International Journal for Court Administration8(2).

 

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Mentalizing-based Mediation (MBT-M) at the UWA Mediation Clinic

image002 This post has been contributed by Associate Professor Jill Howieson, University of Western Australia. 

Introduction

This article asks and answers some questions about the new UWA Mediation Clinic and the theory behind the practice, education, and research that the Clinic conducts.  Jill Howieson is the Director of the Mediation Clinic and Lisha van Reyk is the Research Co-ordinator and Manager.

What are we doing in mediation at the UWA Law School?

At UWA Law School, and in the newly opened UWA Mediation Clinic, we teach, practice and research in a mentalizing-based approach to mediation (MBT-M).  The pioneers of MBT, Professors Peter Fonagy and Anthony Bateman from University College London are working with us in this endeavour and will be running the inaugural MBT-M training course at UWA in July – you can see the flyer attached.

Can you tell me a little bit more about MBT-M?

What we have noticed is that there is a wide variety of ways that mediation is practised and taught around the world and a wide roster of activities that mediators undertake.  However, there is a lack of an underpinning theory of interpersonal process to mediation.  We believe that MBT (Mentalization-based Treatment) is an underpinning theory that could provide mediators with a framework through which to understand the behaviour of parties during a mediation process.

MBT is an internationally recognised, evidence-based approach to working with people experiencing substantial conflict, distress, and relationship breakdown. It was originally developed to treat individuals experiencing personality disorder and has demonstrated subsequent efficacy in the treatment of a range of psychological and relational disturbances.  There are a range of mentalization-based treatments, including for children (MBT-C), families (MBT-F) and adolescents (MBT-A), and for chaotic multi-problem youth, AMBIT (adolescent mentalization-based integrative treatment).  These models have been developed mainly by groups associated with the Anna Freud National Centre for Children and Families, of which Professor Peter Fonagy is the CEO, and the Duchess of Cambridge is the Patron.

In MBT-M with its focus on mentalizing, the mediator can utilise interventions that facilitate and deepen the communication process. In contrast, counterproductive party behaviour can be halted and transformed by specific, indicated interventions by the mediator.  We anticipate that this can bring greater nuance and rigour to the implementation of mediation models, management of inter-party conflict, and interpretation of mediation success.

What is Mentalizing?

The mentalizing concept refers to the capacity to understand one’s own and other’s behaviour based on intentional mental states, such as feelings, thoughts, beliefs, and desires.  Intentional means it means something (Allen, Fonagy & Bateman, 2008).  It is the capacity to consider what one’s own mental states and those of others might mean and how this might influence behaviour.

Mentalizing comes from our understanding of the neuroscience and the differences between the Mentalizing System or theory of mind (ToM) system in the brain and the Mirror Neuron System.  The Mirror Neuron system is a coherent large-scale network which supports automatic action understanding and imitation.  The Mentalizing System is a smaller, less developed system but concerns regions that are all activated when we infer intentions referred to mental states.

Mentalizing is one aspect of social cognition sets us apart from other primates. It underpins our ability to deceive, cooperate and empathise, and to read others’ body language. It also enables us to accurately anticipate other people’s behaviour, almost as if we had read their minds. In a negotiation or mediation context, the research is showing that the mentalizing system needs to be activated for people to negotiate well and to make meaningful decisions.

It sounds great.  What happens when our mentalizing system isn’t activated?

When we are in conflict, or highly emotionally aroused (for whatever reasons, i.e. relationship breakdown, stress, lawyers’ behaviour, intimidation of the court etc) our mentalizing system is deactivated.  Mentalizing goes ‘offline’: our mentalizing capacity is reduced and this means that we are unable to act in a way that makes sense to ourselves and others.  It impairs our ability to make good decisions, vision realistic alternative futures or be flexible about our options and better able to consider alternative ways of resolving disputes.   This is where MBT comes in.  MBT can assist people to re-engage their mentalizing capacity or repair impaired mentalizing.  It is an integrated psychotherapeutic treatment that derives from philosophy, psychology, psychiatry, and attachment theory and utilises what is referred to as the Mentalizing Stance.

The Mentalizing Stance…?

When our mentalizing goes offline, we become alienated from understanding of self and others, rigid in our behaviours (work in automatic mode) and get stuck in our positions (as opposed to interests).  To restore and maintain our mentalizing function, we need to be encouraged to attend to the mental states in ourselves, and the mental states of others.  Practitioners can assist in this restoration by taking what is referred to as a ‘mentalizing stance’.

The mentalizing stance aims to foster a spirit of inquiry into and clarification of the person’s mental states to bring mentalizing online.  The mentalizing stance involves using the inquiry mode when asking about another’s experience and exploring the full detail of the person’s unique situation and experience, rather than assuming it follows a general pattern.  It is a non-judgmental, non-expert and entails having patience and taking the time to identify differences in perspectives and maintaining curiousity about the person’s experience.

OK, sounds relatively simple, is there more to it than this?

Yes, as well as taking a mentalizing stance, mediators need to be alert to non-mentalizing.  Of most importance is recognising psychic equivalence, pretend mode, and teleological understanding, all of which suggest that mentalizing has been lost or is impaired. Some examples that you might hear in negotiation and mediation might include: Physic equivalence (concrete mode), “There is absolutely no way that that offer is genuine.  She just wants to control me.  She does this to me all the time.” Pseudo mentalizing (pretend mode), “Oh yeah, I understand where they are coming from.  I understand that their excessive need to be right and fear of being wrong is going to lead them into making them feel insecure and that they might need to compensate for that by creating an offer that looks attractive.  I get it.” Or Teleological, “They arrived late for this mediation today because they don’t want to settle.”

At the UWA mediation clinic we will be investigating these non-mentalizing modes of behaviour and how mediators might intervene in ways that identify and shift non-mentalizing behaviour

So, back to the UWA Mediation Clinic… linking research, teaching and practice

At UWA, we teach the NMAS Facilitative Mediation course as underpinned by mentalizing theory. In this, would-be-mediators learn the basic skills involved in the facilitative model and the core principles of MBT with a focus on the mentalizing stance. As such, participants build a working model of mediation and, within this, competency both in recognising mentalizing in self/other and maintaining a curious stance. Early this year we opened the UWA Mediation Clinic to begin researching MBT-M and to develop a rigorous evidence-based approach to mediation.  In 2019, we will be introducing Clinical Legal Education for law students who will work with pro-bono mediators and act as mediation advocates for ‘real-life’ clients.  The UWA Mediation Clinic aims to provides excellence in the practice, research, and teaching of mediation.  You can read more here:  http://www.mediation.uwa.edu.au

And finally, the MBT-M training in July 2018

The MBT-M training course has been developed with Professors Bateman and Fonagy.  It aims to increase the capacity of those already working in mediation settings to understand and effectively intervene when parties are in conflict.   Attendees will learn to formulate conflict from a mentalizing perspective and to use this knowledge to engage the mentalizing capacities necessary for parties to communicate wisely. This training is relevant for those who work with cases that involve relationship breakdown (e.g., family law, workplace, and commercial disputes, etc.).  The training is open to all mediators.  You can Register at: http://www.trybooking.com/359372

My Reflections as an Observer Participate at the United Nations Commission on International Trade Law 68th Session Working Group II – Dispute Settlement Meetings United Nations Headquarters in New York Feb 5-9, 2018

 This post has been contributed by Jo Ewen[*] final year student at the College of Law and Justice, Victoria University.

 

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My name is Jo Ewen and I am a final year student at Victoria University College of Law and Justice. I was fortunate enough to have been granted observer status at the United Nations and attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria. This is post is about that experience.

Changes in dispute settlement regimes across the globe over the previous half century were largely due to the implementation of the New York Convention ratified in 1958.[1]  Whether or not the latest convention on The Enforcement of International Commercial Settlement Agreements resulting from mediation settlement agreements which was finalised in February 2018 will have a similar impact will remain a question for quite some time.

As an observer I saw the United Nations Commission for International Trade Law (UNCITRAL) and Working Group II complete the draft convention; “United Nations Convention on International Settlement Agreements [resulting from mediation]” and a draft amended Model Law on international settlement agreements resulting from mediation in New York; “UNCITRAL Model Law on International Commercial Mediation (2002), With Amendments as adopted in 201*” and “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements.”

UNCITRAL was established by the UN General Assembly in 1966 as the core legal body of its member nations. UNCITRAL Working Group II performs work to further the harmonization and modernization of trade laws of its members by preparing and promoting its work.   In fulfilling its functions, UNCITRAL coordinates with other law reform bodies to produce legislative instruments as texts with various foci such ason contracts for the sale of goods, transport, dispute resolution, procurement, infrastructure, development, international payments, electronic commerce and insolvency. International trade law is largely a consensus-based system that does not have an overarching sovereign to regulate the system and enforce penalties. There is currently a total of 157 country signatories.

Working Group II focuses on dispute settlement specifically, International arbitration-mediation/conciliation-settlement agreements.  At the recent New York[2] meeting and at the previous Working Group II meeting in Vienna[3] last October, I observed discussion and consultation by the delegates from over fifty nations and observers from national and international legal bodies in support of the adoption and use of UNCITRAL texts being drafted and considered. This forms part of all UNCITRAL’s work as a subsidiary of the General Assembly in modernising commercial law across international trade law frameworks.

Over five days of deliberations in New York, Working Group II discussions provided an opportunity for delegates to forward their own ideas thereby inviting the group for an inclusive compromise discussion.  The elected chair guided discussions using highly skilled diplomacy. The end product is confirmed to be finalised in July 2018.

Some discussions were on the laws governing conciliation; Important issues pertaining to the mediator/conciliator’s signature; and the necessity to work on the issue of defences.  Compromise proposals were established upon agreement to change the current perception of mediation and create alternatives to practices currently employed. Of particular note was the significant resistance found by the group during “Article 5- Grounds for refusing to grant relief’ deliberations.

There were commendations shared among the group for each other’s constructive input and stellar unseen work from the Secretariat. The week of robust debate resulted in a workable document with wide applicability.

During concluding talks, there was an expression of hope for the continuation of an open debate in the tradition of the commission and also hope expressed for continued consensus on its work on mediation mirroring the phase of international commercial arbitration.  Other proposals were made with respect to expedited arbitration and adjudication work affecting investment dispute settlement as well as proposals to look into the scope of impact under the NYC and compare it to now.

Attending this meeting has fuelled my consideration of encountered difficulties for Australian exporters.  The lingering issue is enforcement; an arbitration award or settlement agreement; What is more, are matters of compliance with signatory obligations for UNCITRAL members in this region. Whether or not doing business in these countries is done at a risk or if in doing so, at what thresholds does it become necessary for increased charged premiums to offset it? Following on, having attended these meetings as an Australian law student I’m also enthusiastic about conducting research into whether or not enforcement is a significant problem for many of Australia’s trade partners in the Asia Pacific; Particularly the Indian sub-continent, China, Vietnam, and elsewhere in South East Asia.

 

 

 

 

[*] Victoria University Honours Law student in the final academic year with an interest in the specialist area of dispute settlement. Previously completed Bachelor of Science degree at VU and worked as a technical data specialist with the Australian Department of Defence working with major defence aerospace contractors throughout Australia. In the course of my law studies, I travelled to six countries, including when studying International Business Law in Germany in 2017. In recent months, having been granted Observer status and the United Nations; Attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria.

[1] 1958 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.

[2] 68th Session, 4-9 February 2018, New York

[3] 67th session, 2-6 October 2017, Vienna