About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

Resolving disputes following catastrophic events

Australia’s catastrophic fires and weather events have dominated the news cycle for many months now. Fires, dust storms, hail storms and months of poor air quality have affected large tracts of land, including entire rural communities and major cities. Over 18million hectares of land has been burnt throughout the 2019/20 bushfire season already, and nearly 9,000 related insurance claims have been made.

NASA satellite imagery on 4th January 2020 showing bushfires on southeast coast of Australia This file is in the public domain in the United States because it was solely created by NASA. NASA copyright policy states that “NASA material is not protected by copyright unless noted“. (See Template:PD-USGovNASA copyright policy page or JPL Image Use Policy.) https://commons.wikimedia.org/wiki/File:2020-01-04_East_Australian_and_Mallacoota_Fires_Aqua_MODIS-VIIRS-LABELS.png

The recovery period will involve many legal and financial claims involving insurers, charitable organisations, government and private citizens. Already many disputes have been reported in the news.

It is likely that many people whose property was lost or damaged were under-insured or not insured at all. Some of these people will find themselves in conflict with their insurers. Consumer group Choice’s advice on home insurance cover for bushfires illustrates many of the issues that may be misunderstood by people who have taken out home insurance and lead to disputes. Insurers have forecast a rise in premiums following the fires.

Renters and landowners may find themselves in dispute over who is responsible for clean-up, whether damaged property is liveable or whether or not the lease can be terminated.

Donations to assist recovery from The Australian bushfires have been made by private citizens and companies both domestically and internationally. Donors expected that their donations would reach their intended recipients quickly and assist with recovery. However, some charities have been criticised for their slowness to distribute funds or aid, and also for the proportion of donations that they have retained for administration costs. Others have been restricted about what purposes they are able to use donations for, and have had to weigh competing priorities. Concerns have been raised about the difference between the intentions of donors and the purposes for which the recipient organisation is able to use the donated funds.

It is also predicted that many business affected by the bushfires will have disputes with their insurance companies over the coming months. Many business owners have “business disruption insurance” or “loss of attraction insurance” but lack clarity about what exactly is covered by these kinds of policy. Indirect consequences of natural disaster may not be sufficiently covered. Some policies cover lost profits and not turnover.

“Profit is very different from turnover,” Keane told The Sydney Morning Herald. “You may get people coming in expecting half a million [in cover] across 12 months and getting much less. The person is quite often incredibly traumatised if claims have gone off track at that point and they feel like it’s them against this massive company.”

https://www.insurancebusinessmag.com/au/news/breaking-news/many-small-businesses-will-likely-face-insurance-disputes-postbushfires-211134.aspx

Several dispute resolution processes are available to assist people to manage post-disaster conflict. Processes applying to insurance and tenancy disputes are explained below.

Disputes between Insurer and Insured

The Australian Financial Complaints Authority (AFCA) assists claimants who have a dispute with their insurance company. AFCA has activated a dedicated hotline 1 800 337 4443 to ensure priority service for people affected by the bushfire crisis.They also have a dedicated online information hub and representatives physically in affected areas. AFCA is frequently asked to mediate financial disputes arising from natural disasters, and can assist in relation to business as well as home losses.

“AFCA is an ombudsman service that provides free, fair, and independent help with financial disputes,” said Justin Untersteiner, AFCA chief operating officer. “If you’re affected by the bushfires, and you find yourself in a dispute with your insurer or financial provider about a claim or request for assistance, AFCA can help resolve it. We have special processes that identify and fast-track complaints from people, primary producers and small businesses in impacted communities, so we can assist you to resolve complaints as quickly as possible.”

https://www.insurancebusinessmag.com/au/news/breaking-news/afca-activates-bushfire-support-line-211308.aspx

AFCA has also triggered its significant events response plan in anticipation of damages of around $320 million following the catastrophic hailstorms that affected Melbourne, The Australian Capital Territory and parts of New South Wales on Monday 20th January 2020. The significant events response plan involves early communication with interested parties, and a more streamlined and expedited dispute resolution process.

Disputes between landowner and tenant

The Tenants Union of NSW has published advice about disaster damage and tenant’s rights. They offer an advice and advocacy service. Unresolved disputes can be referred to the NSW Civil and Administrative Tribunal. The processes used at NSWCAT include unassisted negotiation, conciliation and Tribunal hearing.

Disaster Legal Help Victoria has published information for tenants and landowners of property affected by disaster. Domestic tenants and landowners can refer disputes to the Victorian Civil and Administrative Tribunal. Commercial tenants and landowners can refer disputes to the Small Business Commissioner for mediation or VCAT. Dispute Resolution services at VCAT include mediation, compulsory conferences and fast track mediation and hearing.

Tenants Queensland has also published information for fire affected tenants and landowners. They offer free legal advice to tenants. Disputes can be referred to the Residential Tenancies Authority for conciliation. Unresolved disputes can be referred to the Queensland Civil and Administrative Tribunal for determination.

Legal Aid Tasmania has published information for tenants affected by a natural disaster. Unresolved disputes need to be referred to the Magistrates Court of Tasmania, where conciliation processes are used prior to hearing.

Legal Aid Western Australia has also produced a fact sheet for residential and commercial tenants whose properties have been affected by natural disasters. Residential Lease disputes that the parties are unable to resolve between themselves can be referred to Tenancy WA (advice for residential renters) or the WA Department of Commerce – Consumer Protection for advice, with unresolved disputes going to the Magistrates Court of WA (mediation or determination). Commercial lease disputes can be referred to the Small Business Development Corporation (case management and mediation) or the State Administrative Tribunal (conciliation or determination).

Tenants Union ACT provides natural disaster advice. Disputes can be referred to the ACT Civil and Administrative Tribunal. ACAT uses pre-trial conciliation as well as informal hearing processes.

Potential Cost of Failing to Heal Civilian-Policy Relations: A Comparative Look at the LAPD and NYPD

This post by Mary Riley, PhD Candidate, USC, is based upon a paper that was workshopped at the ADRRN Roundtable 9-10 December 2019.

By Kgbo – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=72782980

Mediation, incorporating restorative justice principles, is increasingly being used in countries such as the United States of America to resolve civilian complaints against police. In most jurisdictions when civilians have grievances against police officers, they lodge complaints with the relevant police department which internally manages the complaint. Serious allegations are formally investigated while minor complaints are often conciliated, but complainants are often left feeling dissatisfied with the process that affords them no participation. However, the mediation and restorative justice movements have finally infiltrated the bastion of law enforcement. Police departments and oversight agencies are responding to the scientific evidence in the literature that says bringing complainants and police officers face-to-face in a safe and independently mediated forum to openly discuss their perspectives of an incident, is an effective way of resolving conflict. Unresolved conflict between civilians and the police has the potential to generate mistrust of police, which could result in more serious problems such as reluctance to obey the law.

An examination of two of the largest police departments in the United States – the Los Angeles and New York Police Departments, has revealed they are amongst the most high-profile, controversial and scandal-plagued police departments in the world. Since the start of 20th century, these police departments have been at the centre of police corruption inquiries related to prostitution, gambling, bribery, extortion and organised crime. Various public inquiries have resulted in the overhaul of complaints systems and the establishment of mediation programs to provide a fairer resolution process for the public. The police departments are aware of the damage to public confidence caused by police misconduct, and increasingly, racially-biased policing and discourtesy complaints, and have made rebuilding civilian-police relations a priority. 

Yet, two problems exist. The first is the low number of complaints (10% of all complaints lodged) that are referred to mediation; and the second is getting complainants to participate in mediation once contacted. Many complainants are unaware of the mediation option and/or view it with mistrust. They see it as another process organised by agencies closely connected to the police. Yet, for those who do participate, mediation surveys (completed at the end of all sessions) reveal consistently high satisfaction rates with the process, including trust of the mediator and having the opportunity to be heard. More research into why complainants do not take up the option and how mediation may be better promoted would likely benefit all stakeholders and build trust. 

Assessment of suitability for family dispute resolution

This post is written by Mark Dickinson, PhD candidate at the University of Tasmania, and is based upon the paper that he presented at the ADRRN Roundtable in December 2019.

Introduction

This research project explores the assessment of suitability for Family Dispute Resolution (FDR) – a decision making process which is a primary responsibility of a Family Dispute Resolution Practitioner (FDRP) (See generally Family Law Act 1975 (Cth) and Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)). Before a joint FDR (mediation) session can be offered an assessment as to its suitability for the parties must first be conducted (Reg 25(1)). This discretionary assessment of suitability for FDR relies on the professional judgment of the individual FDRP. Using a mixed methods approach this research examines this assessment of suitability as undertaken by FDRPs working in a community-based, not for profit organisation in Tasmania.

Mohamed Hassan, Pixabay https://images.app.goo.gl/VghtFUuavzVBJ5418

Background

From July 2007 the Family Law Act 1975 (Cth) has required separated parents and others to make a genuine effort to resolve their parenting dispute at FDR prior to filing in the family courts (s60I – note exceptions apply). FDR is a non-adversarial, alternative dispute resolution process akin to facilitative mediation. Coinciding with this mandating of FDR, 65 community-based, government funded, Family Relationship Centres (FRCs) were established around the country to provide free or nominal cost FDR services. The majority of FDR takes place in FRCs (see Moloney et al, p238).

It has been observed that clients engaging at FRCs are increasingly presenting with complex needs (see also Smyth et al, 10-11). The mandating of FDR and the establishment of FRCs has led FDRPs to be considered “gatekeepers” to the family court system. As a result, the nature and complexity of cases dealt with in an FRC can vary considerably.

The test to be applied in assessing suitability for FDR involves a consideration of the “capacity of each party to negotiation freely” having regard to a range of factors including: any history of family violence; the safety of the parties; equality of bargaining power; risk of child abuse; and the emotional, psychological and physical health of the parties (reg 25(2)). Communications made to an FDRP during FDR are generally confidential (s 10H); and subject to a specific court order, practitioners are not required to provide reasons for the determination of suitability for FDR. This research aims to shed light on this important decision of the FDRP.

Rationale

One aspect of an FDRP’s competence in practice is the ability to effectively mediate a range of parenting disputes with varying complexity. It is argued that the greater the FDRP’s ability to effectively mediate complex (as well as less complex) matters, the higher will be the percentage of their caseload that they will assess as suitable for FDR and will proceed to a joint mediation session. FRC clients that are assessed as unsuitable for FDR are provided with a “section 60I certificate” to that effect and need to consider other options to resolve their dispute. Receipt of a s 60I certificate enables a party to file a parenting application in the family courts, though the cost of engaging a private legal practitioner in such proceedings is not a viable option for manyResearch commissioned by Interrelate found that 41% of its surveyed FRC clients who received a not suitable certificate would have preferred to continue with FDR to resolve their dispute.

From a governmental perspective FDR is a cost-effective method of resolving family law disputes. An analysis by the Australian Government found that FDR conducted through FRCs and Legal Aid Commissions had a net cost per service of less than one fifth of the cost of matters finalised in the Family Court of Australia.  Recent budgetary cuts to Legal Aid Commissions and Community Legal Centres are likely to reduce the number of clients having access to free or subsidised family law legal services. The recently published Australian Law Reform Commission Inquiry into the Family Law System supports the continued use of FDR. Within this context the Australian Government has shown an ongoing interest in exploring alternative outcome measures and funding models for FRCs.

A deeper understanding of the assessment of suitability for FDR using both quantitative and qualitative methods may support the adoption of the frequency of assessments of suitability for FDR as a further metric for measuring FDRP effectiveness in practice. Further research (beyond the scope of this project) may use the findings of this research to develop models for practice aimed at increasing the frequency FDR is assessed as suitable, and therefore of clients being offered a joint FDR (mediation) service. 

Relationships Australia Tasmania

Relationships Australia Tasmania (RA Tas) operates all FRCs established in Tasmania, with centres in Hobart, Launceston and Devonport.  RA Tas has provided in principle agreement to provide data for this research project. I was formerly employed by Relationships Australia Tasmania (“RA Tas”) as an FDRP and senior practitioner in FDR.  In 2014 I conducted a pilot study at the Launceston FRC quantifying the number of section 60I certificates issued by its FDRPs. The pilot study suggested a significant variation between FDRPs of the frequency in which they assessed cases as unsuitable. 

Research Questions 

Having regard to the scope of the data sought, this research aims to answer the following research questions: 

  1. Is there a significant variation between FDRPs of the frequency in which cases are assessed as unsuitable?
  2. What do FDRPs report they consider when assessing suitability for FDR?
  3. Assuming a significant variation is found to the first question, what factors reported by FDRPs appear most relevant in explaining that variation? 

Methodology Summary

The proposed research involves at least two phases. The first phase of this research will cover a five year period and quantify: all certificate types issued by RA Tas FDRPs; the number of cases allocated to each FDRP; and the number of cases that proceeded to a joint FDR session. This data should show what variation exists between FDRPs of the frequency in which they assess cases as unsuitable (and suitable) – expressed as a percentage of total cases.

The second phase of the research will involve in depth interviews with RA Tas FDRPs, supervisors and managers to explore the decision making process of assessing suitability for FDR and endeavour to explain the anticipated variation in the frequency of cases assessed as unsuitable by those FDRPs. 

It is hypothesized that the assessment of suitability may be as much an assessment for the FDRP as it is of the clients. This assumes an FDRP conducts the assessment and that FDRP will conduct the FDR session if the case is assessed as suitable for FDR.


WHAT MAKES A GOOD ARBITRATION LAW? THE AUSTRALIAN EXPERIENCE

This post by Dr Benjamin Hayward is based upon the work in progress that he presented at the ADRRN Roundtable on 9-10 December 2019.

The ingredients for avocado toast. Photo: Nicole De Khors, Creative Commons

Arbitration is an alternative dispute resolution mechanism that can be used to resolve international and domestic commercial disputes.  It is a private process, grounded in the parties’ consent and separate to litigation, but it remains related: arbitration is a formal dispute resolution process; it is supported by national laws regulating its conduct; and those laws also set out the ways in which courts may intervene in the arbitral process for the purpose of supporting it.  In Australia, the International Arbitration Act 1974 (Cth) regulates international commercial arbitration.  Uniform State and Territory Acts, including the Commercial Arbitration Act 2011 (Vic), govern arbitrations relating to domestic commercial disputes.

Many Asia-Pacific arbitral centres, including the Singapore International Arbitration Centre, have seen their caseloads increase over recent years.  Though there are no reliable local statistics, and despite a series of reforms to its international and domestic commercial arbitration laws over the past decade, Australia is still perceived as lagging behind.

Significant reforms to Australia’s international commercial arbitration laws were enacted in 2010, seeking to establish this country as a regional arbitration hub, though Australia is yet to realise this dream.  Given all of this, and empirical evidence confirming that countries’ formal legal infrastructures are the most important factor motivating parties’ choices of arbitral seat (ie. legal location of an arbitration), two important practical and policy questions arise:

1.  What ingredients make up a good arbitration law?; and

2.  How do we go about measuring the success of law reform?

Jurisdictions’ arbitration laws are traditionally critiqued on the basis of their arbitration friendliness and/or their pro-arbitration natures.  References to these concepts abound in online commentary.  Yet these concepts are sometimes misapplied, and sometimes misused.  Even aside from their nebulous natures, they may represent a binary and overly simplistic way of viewing what are actually difficult issues.  Australia’s quest to become a recognised and respected arbitral centre will be frustrated if there is no way to adequately justify (or predict) the quality of future (or proposed) law reforms.  An evaluative framework comprised of something more than just generalisations is required.

It is here that the views of Australia’s arbitration community have an important role to play.  International and domestic commercial arbitration laws exist to serve merchants.  It therefore stands to reason that the arbitration and merchant communities’ concerns should constitute the criteria against which developments in Australia’s arbitration laws are measured.

2009 conference organised by the Australian Centre for International Commercial Arbitration invited its participants to query the extent to which Australia’s international and domestic commercial arbitration laws lived up to efficiency, effectiveness, and economic viability ideals.  These ideals reflect matters of continuing concern to the arbitration profession.  Academics, practitioners, and their clients continue to critique costs and delay in arbitral proceedings.  Effectiveness – which may be defined as the degree to which arbitration secures its intended results – also encompasses ongoing concerns around the degree to which Australia’s arbitration laws are consistent with consistent with the international templates upon which they are based, and market expectations.

Applying these efficiency, effectiveness, and economic viability criteria to developments in Australia’s arbitration laws over the 2009 to 2019 period provides some interesting insights.  To take just one example, the International Arbitration Act 1974 (Cth) was amended in 2010 to include confidentiality provisions, though these applied on an opt-in (rather than a default) basis.  Parties had to affirmatively choose these provisions in order for them to apply; a position not all that different in substance to the then-existing common law rule that arbitration is private but not confidential, unless parties specifically adopt their own confidentiality clause.  Given confidentiality’s empirically-confirmed importance in international arbitration, these reforms were arguably contrary to market expectations on account of their opt-in nature: and, thus, ineffective.  Further amendments in 2015 finally gave these confidentiality rules default operation, aligning their application with market expectations (albeit after a five year delay).

The efficiency, effectiveness, and economic viability criteria provide Commonwealth, State, and Territory legislators with a recipe for future reforms to Australia’s international and domestic commercial arbitration laws.  The adoption of these criteria as policy standards (and legislative drafting tools) stands to assist Australia in developing high quality arbitration laws, and high quality law reform packages.  This, in turn, has the potential to help Australia improve its attractiveness as a place to conduct arbitrations for the resolution of both international and domestic commercial disputes.

This is not merely a matter of semantics.  Consistently applying the efficiency, effectiveness, and economic viability criteria to Australian arbitration law reform stands to generate different outcomes to those seen over the 2009 to 2019 period.  Returning once again to the confidentiality example, reconsideration of the original 2010 reforms in light of market expectations (a matter of effectiveness) would have led to the International Arbitration Act 1974 (Cth)’s confidentiality provisions having default application from the outset.Commercial parties, when negotiating dispute resolution clauses in their contracts, will ultimately vote with their feet.  If Australia’s arbitration laws don’t reach the mark, they will simply choose to arbitrate elsewhere.  This is all the more reason to take on board the arbitration and merchant communities’ concerns when seeking to improve Australia’s arbitration laws for the ultimate benefit of commercial parties.

Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, at the Monash Business School.  His research interests span international commercial arbitration, the international sale of goods, private international law, and Australian contract, commercial, sales, and consumer law.  Dr Hayward is the author of Conflict of Laws and Arbitral Discretion – The Closest Connection Test (Oxford University Press, 2017), his publications are available on SSRN, he tweets at @LawGuyPI, and he is the co-director of his department’s International Trade and International Commercial Law research group.

ADRRN 2019 Wrap Up

Happy end of 2019 to all our followers!

  • We clocked over 20,000 views by over 13,000 visitors to our adrresearch.net WordPress site, another record of annual growth since we started it in 2013.
  • This is our 65th post for the year, showing that we have kept to our commitment to regular posting. A big thank you to all our monthly blog editors who take responsibility for organising at least one post per week.
  • 2019 readers accessed adrresearch.net from Australia, the UK, USA, Canada, India, New Zealand, Ireland, Singapore, South Africa, Hong Kong, Germany, Kenya, Spain and many more.
  • @ADRResearch on Twitter has 1,590 followers.

The most frequent place for people to visit the ADRRN was on our home page, but the other popular posts, with over 300 reads each during 2019, were:

Some of the above posts were made some years ago. Thank you for engaging with our short ideas on here!

Contributions to the ADRRN WordPress blog can be made by anyone in the dispute resolution research community (ie you!). Please read Blogging Basics for Beginners and send your draft post to the Editor in Chief, who will be able to advise the monthly blog editor and coordinate timing. Editor in Chief is Olivia Rundle until February 2020 when Nussen Ainsworth takes the reigns.

We’ll be back in January with more posts based upon papers workshopped at our 8th Roundtable in early December.

image by Claire Holland – ADRRN Roundtable 2019
Image by Claire Holland – ADRRN Roundtable 2019
Image by Claire Holland of Jackie Weinberg. ADRRN Roundtable 2019
Claire Holland and Tina Hoyer – ADRRN Roundtable 2019

Roundtable Wrap Up and Handover of Leadership Roles

Well, what a fabulous 48 hours were had at Latrobe University in Melbourne, Victoria on Monday 9th December and Tuesday 10th December 2019! The ADRRN Roundtable is a deliberately rigorous and kind gathering of dispute resolution related researchers who are brave enough to share their work in progress for face to face review by peers. Especially delightful is the growth in participation by early career researchers, including PhD candidates. It seems that word has got out that there is something pretty special on offer.

Associate Professor Lola Akin Ojelabi of Latrobe University and Jackie Weinberg of Monash University were our most excellent hosts. Lola is a founding member of the network. Jackie has completion of her PhD in sight. Jackie came along to the ADRRN Roundtable earlier in her PhD journey and mentioned at the Roundtable opening the value she now places on that experience.

Papers presented and discussed

Many of the people who presented work at the Roundtable have prepared posts that will be rolled out here over December and January. Two posts have already been made – if you missed them see Rosemary Howell and Emma Lee’s The story of a collaborative journey – through the lens of reimagining the conflict narrative using lessons from Indigenous Australians and Emilia Belluci’s The future of ODR: what are the benefits and drawbacks of F2F negotiation, and its applicability to future ODR design?

Handover of Leadership Roles

Reflective of the evolution of the network, we are pleased to announce a change of roles from 2020.

These changes have been reflected on our About page.

For a refresher, see also and explainer of our approach to membership.

When is the next Roundtable?

The 9th Roundtable of the ADRRN will be held in February 2021 in Newcastle, New South Wales, Australia. The exact date will be announced in early 2020 when the Call for Papers will be posted on adrresearch.net.

For an indication of what kind of content is considered relevant for ADRRN Roundtables, see the 2019 Call for Papers and our list of papers workshopped at the 8th Roundtable. We are a broad interest group, drawing together work from a range of disciplines and processes, provided they fall into the spectrum of processes that resolve disputes (other than the formal trial process) or research about conflict and its management.

The future of ODR: what are the benefits and drawbacks of F2F negotiation, and its applicability to future ODR design?

This post is by Dr. Emilia Bellucci, Deakin Business School, whose paper was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019. This is the first of a series of posts related to the Roundtable.

ODR systems provide support to negotiations by facilitating communication online and in some circumstances even provide solutions to the dispute.  An ODR is considered successful if the outcome represents a similar or better outcome to an ADR process, inferring ODR processes should mimic F2F negotiations.  In a recently published paper (Bellucci et al 2019), my colleagues and I report on an ODR study whereby we replicated Boland and Ross (2010)’s finding that the propensity to resolve a dispute is directly related to the EI (Emotional Intelligence) of disputants.  Boland and Ross’ (2010) study involved F2F (Face to Face) negotiation, whereas our negotiations were conducted online.  Underlying this paper was the assumption that F2F is the preferred format of negotiation, and therefore our findings supported the idea that a successful ODR was one which replicated F2F mechanisms.

In this research I want to challenge this assumption.  Why is F2F negotiation the preferred option for negotiation? Do F2F negotiations achieve better outcomes?

In attempting to answers these questions, we need to understand the seminal differences between communicating electronically and in person. These include the use of verbal and non-verbal cues to express ideas, solutions and feedback. Whilst verbal communication is often supplemented by non-verbal cues, such as body language and facial expressions, I am most interested in the effect of non-verbal communication (which is typically missing in an ODR) on a negotiation. 

Facial expressions (smiles, frowns), crossed arms, learning forward or back, micro expressions are all examples of non-verbal communication.  These expressions, together with the spoken word may reveal a disputant’s joy, anger, sadness, happiness with the negotiation.  Whilst emotions revealed during the negotiation may be used to move a negotiation forward, resolve impasses and settle on amicable solution, they can also be used to deceive and unfairly influence the negotiation.  

Emotions expressed during negotiation vary depending on the context of the dispute, and include nasty emotions (anger, jealousy), existential emotions (anxiety), emotions resulting from positive and negative life events (disappointment, happiness), and sympathetic emotions (gratitude). Research suggests positive emotions tend to contribute positively to the negotiation, while negative emotions contribute negatively to a negotiation. 

In the F2F medium, disputants reveal emotional leakage through verbal and non-verbal cues.  Whilst emotions should not be ignored in negotiation, we should not allow emotions to distance the negotiation away from the issues in dispute. Emotions should be managed so outcomes from a negotiation are reflective of the human experience.

F2F negotiation is preferred for two main reasons: 

  1. F2F is the richest form of communication. It allows for opportunities to clarify interests and positons of the parties and allows for quick feedback and opportunities to reassess options to resolve the dispute successfully. Without F2F, many fear they will accept a solution which may not reflect the best solution. 
  2. Lawyers view ODR with a healthy degree of scepticism, due predominantly to a computer’s lack of creative decision making and inability to understand complex issues. There is a place for ODR as a support to communication (ie video conferencing, email, document management etc) and to resolve small disputes such as in e-commerce (ebay, paypal) where outcomes are set. 

So how can apply the positive aspects of F2F negotiation to an ODR?  Can we have the best of both worlds? 

Here are some ideas for future research: 

  1. ODR can filter language initially by expressing negative emotion to more appropriate language conducive to creating a positive environment. Either the software or negotiators may be asked to soften their language for these purposes. Software can also manage a disputant’s emotional responses by using feedback screens to illicit emotional responses,  after which, the system can deliver responses to help disputants manage their emotion. These designs are in research currently. What may be some of the obstacles to mainstream use? 
  2. Research (one study only) suggests there is no difference between F2F and computer negotiations, specifically relating to how emotion is expressed. People were found to supplement text in ODR with emoticons, capital letters or simply wrote more thoughtfully and clearly to supplement their communication.  Future work may involve the design of an empirical study to compare the effectiveness and communication models of ODR and F2F.
  3. It is perceived that ODR processes do not support the law authentically by providing another avenue for legitimate negotiation. How can we change this perception?  

Dr. Emilia Bellucci is a Senior lecturer in the Department of Information Systems and Business Analytics at Deakin University, Melbourne Australia.  Her major research area is in Online Dispute Resolution Systems with a particular focus on electronic support of family law negotiation and mediations. Emilia completed her PhD in 2004, under the supervision of Professor John Zeleznikow, and resulted in the “Family Winner” computer program which was designed to settle family law disputes. Family Winner was the focus of much media in 2005 with a number of newspaper articles, radio station interviews and television appearances including a win on the science and technology television program, ABC’s “New Inventors”.  

Since then, Dr. Bellucci has conducted research in e-health, small to medium enterprises and has recently returned to Online Dispute Resolution with a renewed passion to make justice (through negotiated outcomes) and ODR accessible to all. Dr. Bellucci has published 16 refereed international journal articles, 3 book chapters and 29 refereed conference papers.  She has attended and presented her research at numerous international conferences and workshops. 

ADRRN Roundtable 2019 – you can join in via Twitter

The Australasian Dispute Resolution Research Network 8th Annual Roundtable starts on Monday 9th December. This year’s organisers are Lola Akin Ojelabi and Jacqueline Weinberg. We will be gathering at the La Trobe University in Melbourne, Australia.

The two day Roundtable is an opportunity to share work in progress and to benefit from generous scholarly attention to presenter’s work.

We know that the work is of interest to many who will not be with us in person. We will therefore be live tweeting next week and sharing posts on adrresearch.net about each of the papers throughout the remainder of December and January. The first was a pre-Roundtable post about Emma Lee and Rosemary Howell’s shared research journey.

On Twitter, you can find us @ADRResearch and this year’s Roundtable will use #ADRRN19. The host institution is @latrobelaw

To whet your appetites, here are the papers being presented on Monday 9th December and Tuesday 10th December 2019. Twitter handles of authors are included so you can connect.

  • Tania Sourdin @TaniaSourdin “Using Technology to support ADR research – the possible and the not so possible (yet)”
  • John Zeleznikow “The Appropriate Design of Online Dispute Resolution Systems”
  • Mary Riley “Potential Cost of Failing to Heal Civilian-Police Relations”
  • Emilia Belucci “Face-to-face dispute resolution and Online Dispute Resolution – Which is preferred?”
  • Joanna Burnett “Social Work in an Adapted Family Law Mediation Program: Literature Review”
  • Tania Sourdin @TaniaSourdin and Margaret Castles “Finding a place for ADR in Pre-action process: South Australian case-study”
  • Becky Batagol @BeckyBatagol “How Can Banks Better Deal with Family Violence Disputes”
  • Laurence Boulle @LaurenceBoulle and Rachael Field @rachaelfield68 “Elections, Politics and Dispute Resolution”
  • Claire Holland @Holland_CL and Tina Hoyer “A case for coaching: How to Measure the Effectiveness of the ATO Coaching Model”
  • Alysoun Boyle @alysounb1420 “Transitional Research Alliance: Innovative Approaches to Mediation Research”
  • Rosemary Howell @RosemaryJHowell and Emma Lee “Reimagining the narrative and its special place in Conflict Resolution using lessons from Indigenous Australians”
  • John Woodward @John_woodward1 “Exploring the relationship between Confidentiality and Disputant Participation in Court-Connected Mediation”
  • Ruth McColl “A discussion on conciliation”
  • Nussen Ainsworth @nussenainsworth and Svetlana German “NMAS and Distinction between process and substance in Court-Connected Mediations”
  • Benjamin Hayward @LawGuyPI “Have post-2009 developments in Australia’s arbitration laws promoted efficient, effective and economical arbitration?”
  • Claire Holland @Holland_CL “Measuring Hope: Levels of Hope in Australian Law Students’ Experience”
  • Mark Dickinson “The Assessment of Suitability for Family Dispute Resolution”
  • Jacqueline Weinberg “Enhancing ADR Teaching and Social Justice Learning in Clinical Legal Education”
  • Dorcas Quek Anderson @DorcasQAnderson “A Matter of Interpretation? Understanding and Applying Mediation Standards”
  • Pauline Roach @Pauline80074936 “Workplace Mediation Model at the Roads and Maritime Services of NSW – 2003-2013”
  • Lola Akin Ojelabi @OOAkinOjelabi “SDG 16 (Access to Justice) and the Singapore Convention”
  • Olivia Rundle @OCRundle, Lisa Toohey @TooheyL and Samantha Hardy @DrSamHardy “Causes of Conflict in HDR Supervision Relationships”

For more information about the Roundtable see the Call for Papers. Please follow us on WordPress or Twitter and look out for the next Call for Papers if you’d like to join the 2020 Roundtable.

Webinar Alert: Co-Creating Mediation Models: Adapting mediation models when working across cultures.

Australasian Dispute Resolution Research Network member Claire Holland will deliver a webinar for Mediators Beyond Borders International (MBBI) in December. Please register by the link below if you are interested to join.

Join our conversation on Co-creating Mediation Models: Adapting Mediation Practices When Working Across Cultures by Claire Holland on Thursday, December 5, 2019, at 5:00 PM ET. In this webinar, Claire will discuss mindful approaches to meeting the needs of the participants of the mediation process.

Click here to learn more and to register.

Claire Holland is the Director of the James Cook University Conflict Management and Resolution Program, a Nationally Accredited Mediator under the Australian Standards, a mediator for the Queensland Civil and Administrative Tribunal (QCAT), and a certified conflict coach with Conflict Coaching International.

Mediators Beyond Borders International works to bring mediation and peace skills to communities around the globe so that they can, in turn, build a more peace “able” world. To this end, MBBI organizes initiatives to address three essential objectives: Capacity building, promoting mediation through advocacy, and delivering consultancy services.

Settlement and sex: queering dispute resolution

Is settlement like sex? Should it be?

How can queer theory be applied to the field of dispute resolution?

What if disputing parties were viewed as bearers of desires rather than bearers of interests (or rights)?

Do positivity, desire, consent and feeling good distinguish alternative dispute resolution from formal legal dispute resolution processes?

Would the dispute resolution field benefit from a reminder of the playful rebellious roots upon which it was founded?

Does a focus on relational interaction encourage us to abandon our attachment to the constraints of identity and self-interest?

DDG - headshotThese are just some of the contemplations invited by Daniel Del Gobbo’s article “Queer Dispute Resolution” (2019) 20 Cardozo Journal of Conflict Resolution 283. Daniel is from the University of Toronto Faculty of Law, and part of the Australasian Dispute Resolution Research Network, reflecting the international reach of our community.

The goal of the article is to ask difficult questions and expand the theoretical terrain of the dispute resolution field. This post provides an imperfect snapshot of some interesting points – I recommend that you read the full article to fully appreciate its arguments.

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Koshy Koshy Strange things are happening these days Creative Commons Licence

 

Daniel reminds the reader of the deliberate re-framing of disputes by the dispute resolution field from the “overly formal” rights based claims to the “more natural” interest based conversation. He suggests that a slight adjustment from a focus upon interests, to desires, opens up further potential. Queer theory explores how sexuality is articulated across identity and desire, celebrating its messy, restless, non-uniform and changeable nature. Through the embracing and celebration of these characteristics of desire, a critical gaze can be better placed upon the normative expectations that can inhibit creativity.

The problem with an over-reliance upon “a crude version of liberal economic theory” in the dispute resolution field is that the maximisation of (economic) self-interest assumes that a person’s interests are “rational, predictable, and unchanging through the settlement process.” By contrast, desire is understood by queer theorists to be “irrational, unpredictable, and at least potentially changing.” Interests are, in reality,  often irrational, unpredictable and changing throughout the settlement process.

The practice of settlement, not unlike the practice of sexuality, is constituted  by the mutual interplay of the parties’ wants and desires in reaching a negotiated agreement over new and potentially pleasurable terms that may or may not come to pass. … The subject’s interests may be prone to change in the negotiation on account of the other parties’ stimulating behaviour, intervening events in the parties’ lives, and the parties’ affective responses to the bargaining environment, which may or may not have a rational basis. All that matters is that the settlement process feels good – socially, culturally, economically, legally – or that it feels better in the moment, at least, than an adjudicative process which would distribute pleasure and danger in a less satisfying way. [pp 303-304]

The mutuality of bargaining, like sex, requires that there be an ethical approach – a commitment to a process and outcomes that “feel good” for all participants. Consensual processes require recognition and support by each participant of the autonomy and self-determination of the other. This is the challenge of mutuality – it requires a commitment to act morally towards the other. Consent provides a framework to manage that problem. The basic principles of the legal doctrine of consent can be described generally as follows:

…the parties must voluntarily agree on any process that is chosen and any conclusion that is reached for the arrangement to be legal. The parties should be provided with any relevant information necessary to make informed decisions for themselves. And crucially, there must be an approximate balance of power between the parties at all times because otherwise it may be impossible to maintain the integrity of the process, prevent bad faith and unconscionable agreements, and keep the parties safe. [p 317]

However, the legal notion of consent can be critiqued (and is by critical, feminist and queer scholars) for its failure to account for societal systems of power including male dominance, capitalism, and homonormativity. Power itself is changeable, and cannot be inferred from status or identity alone – it is not possible to account for dependence and vulnerability in an orderly, fixed sense. Power can be sourced from rules, norms, and the parties’ characteristics and relationship with one another. (See discussion in our recent post about The Power of Parties in Mediation: What is the Mediator’s Role?).

Through a relational lens, the limits of “free agency” can be accounted for, without deciding for participants what a “good” outcome looks like. Rather than pretending that the complex inequalities and dynamics of power can be “balanced” between negotiating parties, “relational autonomy” recognises the influence that people have upon one another within their relationship, the growth of self within relationships, and the way care and dependence are mutually constructed. The practical challenges abound, and (unanswerable) questions are raised, including:

What relations, and legal regulation of those relations,  will enable everyone to participate most freely and equally in the creative refashioning of consensual life?

What kinds of changes are required in society before we can place more trust in consent as a legal and ethical marker for human flourishing?

How might our capacity for relational autonomy be enhanced by restructuring the foreground and background rules under which consent is given?

How can we refurbish the law of consent to better promote our capabilities to codetermine the practices of sex and settlement?

Queer theory “seldom lends itself to easy solutions,” but applying its lens to settlement provides an opportunity to shake up the underlying assumptions, fears, limitations and normative expectations that influence the practice of settlement. What if there were new ways of doing dispute resolution that recognise properly the changeability, subjectivity and inherent unreasonableness of humans, and the unevenness we inevitably bring to our relationships and settlement processes?

Daniel Del Gobbo concludes:

…negotiation is not a struggle that should constrain our equality seeking, but a process that can expand our imaginative possibility and transformative reach if we conduct yourselves responsibly. In my view, that is what “queer dispute resolution” looks like. [p 327]

Theoretical examinations don’t provide neat or easy solutions, but they invite us to reflect on our field and to invent better ways of doing our work. Perhaps dispute resolution theory could benefit from a bit of “queering” to ruffle our feathers and challenge us to think in different ways. Like sex, settlement provides a wonderful opportunity for a mutually pleasurable experience, is sometimes mutually agreeable but less than fantastic, but also has risk of abuse or unfair advantage being taken by one party against the other.