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.

2020…

Well done everyone, you’ve nearly made it to the end of this extraordinary year. A big thank you to our monthly editors and all contributors for keeping up the ADRRN presence throughout a year of considerable challenges. Thank you to all our readers, who have maintained a sustained interest and visited this site over 25,000 times during 2020.

Image by Susan Cipriano from Pixabay.

Here’s a summary of our posts since January 2020.

Dispute Resolution and Crisis

Olivia Rundle’s post in late January 2020 responded to the catastrophic bushfires and floods sweeping across the Australian continent. It overviewed some of the kinds of disputes likely to arise, and mechanisms available for responding to them. Resolving disputes following catastrophic events remained relevant as catastrophe rolled out over the globe for the remainder of the year.

In April, Professor Rachael Field organised daily posts titled Lockdown Dispute Resolution 101, designed to offer dispute resolution tips and strategies for effective communication, negotiation and the resolution of disputes while in lockdown. If you visit our April posts you will find 25 Lockdown Dispute Resolution 101 offerings. Also that month, Professor Laurence Boulle shared his reflections upon the disruption to dispute resolution habits of time and space in a post COVID19 world. John Woodward shared his observations about the successful adoption of collaborative negotiation strategies by some governments and parliaments, to respond to the COVID19 pandemic. John concluded that ‘those nations which have embarked on more focused and integrative methods of resolving the crisis have enjoyed greater success in meeting the challenge, reducing the uncontrolled spread of the disease and saving lives.’

Online Opportunities

Joanne Law explored her ideas about the Benefits of Technology Assisted Training in Dispute Resolution. Mehak Bagga considered the issues arising around use of Artificial Intelligence in Mediation. Vivi Tan asserted in Do consumers and businesses want the benefits of rule of law without the costs of rule of law? that a theoretically grounded framework is needed to analyse the suitability of ODR systems.

In March the dates and location for the 2021 National Mediation Conference (NMC 2021) were announced, and it has subsequently been announced that the conference will be blended, to facilitate online attendance for those who do not travel. It is a great honour that the Desert Knowledge Precinct Partners (Centre for Appropriate Technology, Batchelor Institute of Indigenous Tertiary Education, Desert Knowledge Australia and the Desert Peoples Centre) have issued an invitation to the dispute resolution community to hold NMC 2021 at their facilities in Alice Springs. Laurence Boulle, Chair of the NMC acknowledged on behalf of the NMC Committee and dispute resolution community the Western Aranda and Central Arrernte peoples of the Alice Springs region, and all First Nations people upon whose land we live and work, and their connection to land, waters and culture.

Aboriginal and Torres Strait Islander Dispute Resolution Wisdom

Margaret Castles reported in July about her partnership with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Margaret’s report her heightened awareness of the influence that her  Euro-centric upbringing, education and legal training has on teaching and mediation practice. Margaret’s post reminds us that indigenous scholarship, partnership and deliberate effort to de-colonise our thinking will enhance and improve dispute resolution research, practice and teaching.

John Lidbetter shared his Learning from our First People – Using Yarning to Resolve Conflict.

Dispute Resolution Research – Theories and Methods

Rachael Field and Jon Crowe announced the release of their book Mediation Ethics: From Theory to Practice in June, which focuses in particular upon empowerment and self-determination as appropriate foundations for mediation ethics. They claim that there is a need for a new paradigm of mediation ethics, away from the traditional focus upon impartiality and neutrality. Paul Kirkwood’s review of the new book was posted here in November.

Svetlana German called for mediators to participate in her empirical research about mediator’s perspectives of neutrality, which will provide an evidence base for practitioner’s perspective of and use of the concept.

Amy J Cohen shared her thinking about integrative bargaining, another foundational dispute resolution concept, in particular how the meaning of integration has changed with capitalism. Amy linked to her full post on the Law and Political Economy blog titled A Labor Theory of Negotiation: From Integration to Value Creation. Amy argues for revisiting negotiation theory, which has a more radical history than commonly understood, and through this radical lens we might find more value creation opportunities.

Claire Holland and Rikki Mawad proposed some improvements to traditional methods of conflict mapping, to take better account of multidisciplinary knowledge, and the practitioner and the process.

Research methods were discussed in a number of our posts in 2020. Alysoun Boyle dedicated November’s blog posts to some thoughtful ideas about dispute resolution research. She started with naming up some of the key knowledge gaps and resource constraints. Next was a suggestion that collaborative research networks include a range of stakeholders and people from a variety of backgrounds and disciplines. Her final post introduced some collaborative and innovative research approaches that might be adopted in the dispute resolution space. Rosemary Howell commented upon the GPC North America Report.

Disputant Perspectives

Charlie Irvine contributed What do ‘lay’ people know about Justice? Charlie’s findings are fascinating, including the following:

What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated.  It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.

The diversity of personal characteristics of disputants was highlighted in Danielle Hutchinson and David Hutchinson’s post where they explored neurodiversity and how dispute resolution practitioners need to be informed in order to practise in an inclusive way. Inclusive practice and dispute resolution’s need to respond more appropriately to culture diversity was the focus of Zaynab Gul’s post.

Margaret Castles considered human motivations for retribution and punishment through her analysis of the series Game of Thrones. Her post was ‘prompted by the idea that the millions of modern day viewers rejoicing at the often brutal but seemingly fitting retribution that some truly reprehensible characters suffered in Game of Thrones, are the very same people that we see in facilitative ADR processes – in other words, us.’

Particular dispute resolution contexts

Arbitration

Ben Haward has brought his arbitration expertise to this network and made several posts in 2020. His post about What makes good arbitration law? The Australian experience launched our January presence. He introduced himself to us all in February and in June posted about International Commercial Arbitration, its application of law and flexibility of process, Challenges and Opportunities for Asia-Pacific International Arbitration, Of Dry Cleaning, Arbitration and International Commercial Courts. Ben returned in October and asked Does Choice of Dispute Resolution Method Affect the Application of the Law? This post looks at one instance where substantive law and choice of dispute resolution method may collide – the United Nations Convention on Contracts for the International Sale of Goods.

Sharifah Syed-Ronan’s vlog about International Commercial Arbitration in Indonesia and Australia was featured in December.

Institutional dispute resolution

Louis Benjamin’s vlog considered the extent to which needs of vulnerable users of court-connected mediation are accommodated within the justice system. Joshua Facchin questioned whether pre-action protocols are really as inconvenient as some make them out to be. Alan Limbury queried whether the COVID19 pandemic provided an opportunity for UK courts to reconsider their lack of willingness to compel litigants to attempt mediation, when he asked Could COVID19 see the end of Halsey? 2019 Roundtable papers included Nussen Ainsworth and Svetlana German’s NMAS and the distinction between process and substance in court-connected mediations. Nussen Ainsworth explored court-connected mediation at VCAT.

Dominique Allen raised some of the problems around sexual harrassment claims and presented her findings from interviews with lawyers about how those claims tend to be managed. Her concerns about confidentiality of dispute resolution in discrimination claims was elaborated further in Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination. Peta Spyrou introduced us to her research that empirically examines disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

Claire Scollay summarised some of her findings about socio-demographic, crash, injury, and recovery factors that are linked to legal service use among people who claim compensation for road traffic injuries.

Tina Hoyer and Claire Holland made a case for case coaching to be adopted as a core part of the Australian Tax Office’s ordinary business practice.

Mary Riley explored the Potential cost of failing to heal Civilian-Police Relations.

Laurence Boulle’s reflections upon former Prime Minister Malcolm Turnbull’s autobiography observed the application of dispute resolution related factors of prevention, interests, rights and power in politics, and suggested that examining negotiation in politics is a source of learning for dispute resolution professionals (although political antics are not necessarily a good role model).

Family Dispute Resolution (FDR)

Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow explored readiness and ripeness in FDR, Paul Gaddens considered the role of Evaluative mediation in Family Law financial cases, and Mark Dickinson raised questions about the Assessment of Suitability in FDR. A post from Mollie considered the importance of providing culturally sensitive and appropriate FDR for CALD families.

Lawyers and dispute resolution

John Woodward shared his thoughts about legal culture and collaborative dispute resolution in his Mind Half Closed post. Alperhan Babacan and Oz Susler made the case for greater commitment to ADR teaching in law schools. Hope Cooper provocatively asked why (some) lawyers deceive in negotiation, citing evidence that most negotiators engage in some kind of deceptive tactics.

Thank you for joining in with the Australasian Dispute Resolution Network in 2020. We look forward to engaging with you in 2021. The ADRRN Research Roundtable and Civil Justice Research Conference will be conducted jointly on 1 & 2 February in Newcastle, NSW, Australia and online.

Pre-action protocols: Are they really as inconvenient as they are made out to be?

Joshua Facchin is a final year student from the University of Tasmania, studying a combined degree of Bachelor of Economics/Bachelor of Laws (Hons). He elected to undertake his Honours research in the field of dispute resolution. Specifically, he focussed on the civil procedure rules regarding pre-action requirements (or protocols). The title of Joshua’s research project was, “Pre-Action Requirements: Are they really as inconvenient as they are made out to be?”. The paper explored the function of pre-action protocols within the Civil Dispute Resolution Act2011 (Cth) and how effective they are in resolving matters while upholding access to justice. It also analysed the rationales of the New South Wales and Victorian Governments in not legislating for similar pre-action protocols on a state level. In 2021 Joshua wishes to complete his Graduate Diploma of Legal Practice and be admitted as a legal practitioner.

Joshua can be contacted at Linked In.

Deception in Negotiations: Are lawyers deceptive? Do they lack ethical guidance?

This blog post is from Hope Cooper.

Hello, I am studying a Bachelor of Laws at the University of Tasmania having just completed my penultimate year. I currently study part time and work full time as a cadet and the Department of Treasury and Finance Tasmania. Working full time in this position as I study law has provided me with great insight into traditional dispute resolution commonly used in the legal profession, as well as the importance and differences of dispute resolution in not only the public sector but in practice within the workforce in general. 
Over the next coming years, I look forward to exploring my options further in the public service, as well as taking up opportunities in the private sector where I hope to develop my skills across the dispute resolution board in hope to become an effective and successful advocate. Thank you for taking an interest in my post and please feel free to contact me if you wish.

Hope can be contacted at Linked In

shutterstock_1007250361.jpg

It is no secret that deception as a tactic is commonly used by lawyers within negotiations. Is this because some lawyers can’t help but lie? Do they disregard ethical principles?  Is winning such a priority for these lawyers that professional and personal ethics are mute in comparison? 
This is a commonly held stereotype of lawyers. Many lawyers even agree with these stereotypes, so much so that lawyers enter negotiations expecting falsehoods throughout the discussions.

In fact, a study in 2005 demonstrated that where negotiators were given incentives to lie, but the option to tell the truth, only two per cent of negotiators chose to tell the truth. The remainder of negotiators either chose to conceal information or actively lied.

Negotiators don’t just deceive for the sake of being deceitful. It’s proven that deceptive tactics are likely to achieve better outcomes. Deception doesn’t necessarily involve blatant lying either. For example, it could include strategically revealing facts, bluffing, avoiding questions or overstating one’s position (all tactics quite stock and standard in the legal profession).  

Since all lawyers want the best outcome possible, lawyers who may be ethically against deception may be tempted to step outside of their boundaries to compete. Lawyers are then left in a battle against opposing lawyers where they themselves need to not only deceive their opposing party in order to get the best outcome, but be a better deceiver than their opposing party.

So is that it? Lawyers like to win, in fact, it is their job to get their client the best outcome. Does that mean lawyers are doomed to be deceptive until the end of time? Frankly, no. 

Despite the above, it is my argument that lawyers have been let down by lack of clarity about how to balance these dilemmas and their ethical obligations. Negotiation as its own process lacks guidance on ethical conduct. In fact studies have suggested that many lawyers deceive because they are confused as to what constitutes unethical conduct within negotiations. 

Yes, whilst it is true that Australia has professional conduct rules which umbrellas over negotiation, it is clear that this alone is ineffective in clarifying what is ethical within negotiations (because deception is still occurring, right?). 

Deception may always be a tactic used within negotiations. However, the legal profession needs better ground rules and ethical guidelines regarding negotiation in Australia. Until then, lawyers will continue to be left to navigate the complex relationship of ethics and deception without consistent guidance.

Vulnerable Users of Court-Connected Mediation: Challenges and Opportunities for Access to Justice

Louis Benjamin has just finished his Bachelor of Arts and Law. He is interested in the role of the law in both reproducing and remedying inequality and social inequity. At the end of his penultimate year of study, he interned for a Tasmanian practitioner involved in a court-connected mediation. The client had a mild learning difficulty and severe psychological trauma. Observing this process triggered an interest in court connected mediation and vulnerable individuals. Louis became interested in the relationship between the roles of lawyers and mediators in achieving individual access to justice on one hand, and the role of case management and the Court’s objective of structural access to justice on the other hand. In this vlog post Louis summarises his research essay on the topic, in which he concludes that there is room within the structure to ensure that vulnerable individuals achieve better equity. Louis makes the case that it is incumbent on practitioners to extend their diligence and tailor their representation to the client’s vulnerability, and that there is scope for targeted professional development and training to that end.

Louis can be contacted at Linked In

Image: https://www.newbreedmarketing.com/blog/why-marketers-should-care-about-operational-efficiency

Artificial Intelligence and Mediation

Mehak Bagga is a final year business – law student at the University of Tasmania, graduating in December 2020. Mehak researched the emergence of artificial intelligence in alternative dispute resolution. Her interest in the area stems from her study of the benefits of emerging technology in the legal domain. She presents her research from an access to justice point of view and critiques the notion that artificial intelligence improves such access. Mehak is interested in a career in commercial litigation, including exploring opportunities in alternative dispute resolution.

Mehak can be contacted at LinkedIn or by email mehakbagga27@gmail.com

Providing Culturally Sensitive and Appropriate FDR for CALD Families

My name is Mollie and I am an Arts/Law Student majoring in sociology. I chose to participate in the Dispute Resolution unit because I was interested in learning more about ADR techniques and the pros and cons of an alternative to the court system. I chose to focus my blog on CALD families because I wanted to understand how a minority group within Australia experiences FDR and what can be done to improve access and experience.

Felix Astoram https://www.freeimages.com/photo/paper-family-1313628

People from culturally and linguistically diverse(‘CALD’)  backgrounds are not accessing family dispute resolution(‘FDR’) services at a rate proportionate to their presence in Australia.[1] The research suggests that CALD communities are concerned that FDR services would not be culturally appropriate or sensitive to their disputes. My paper explores the challenges and opportunities for Family Dispute Resolution Practitioners (‘FDRP’) in ensuring that FDR is culturally sensitive and appropriate.

Throughout my research I found that FDRP’s could benefit from a uniform approach to culturally sensitive FDR directed from the Government.[2] I also found that FDRP’s could benefit from engaging in a reflexive practice. This would help them to continually challenge review and assess how they are providing FDR services to CALD families. [3]

Finally, I found that gender roles were a common reason why CALD communities felt that FDRP’s would not be culturally appropriate or sensitive.[4] Rather for many CALD communities, respected older family members of community leaders are often approached first to help resolve family disputes.[5] Even to the extent that they sometimes engage in helping divide up assets. I found that there was some anecdotal support for including these older respected family members or community leaders in the FDR process.


[1] Susan Armstrong, Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds (AFRC Briefing No.18 November 2010) 23;

[2] M. Dimopoulos, ‘Mediating difference: Utilising cross-cultural training skills to work more effectively with diverse groups’ in Toom Fisher (ed), Fourth national mediation conference proceedings (Melbourne: School of Law and Legal Studies, La Trobe University 1998); Australian Law Reform Commission, Family violence – A National Legal Response (ALRC Report No 14, November 2010).

[3] Susan Armstrong, ‘Developing Culturally Reflexive Practice in Family Dispute Resolution’ (2012) 22 Australasian Dispute Resolution Journal 30, 38-40.

[4] Lola Akin Ojelabi, Tom Fisher, Helen Cleak, Alikka Vernon and Nikola Balvin, ‘A cultural assessment of family dispute resolution: findings about access, retention and outcomes from the evaluation of a family relationship centre’ (2012) 18(1) Journal of Family Studies 76, 79.

[5] Ghena Krayem and Farrah Ahmed, Islamic Community Processes In Australia: An Introduction.

International Commercial Arbitration in Indonesia and Australia

Sharifah Syed-Rohan is a final year Bachelor of Arts/Bachelor of Laws (Hons)/Bachelor of Philosophy student at the University of Tasmania. Having majored in Bahasa Indonesia as part of her Arts degree, Sharifah travelled to Indonesia numerous times as part of both her Arts and Law degrees and is passionate about fostering the cross-border relations between Australia and Indonesia. After completing a summer clerkship at KarimSyah Law Firm, Jakarta in 2020, Sharifah observed international commercial arbitration in Indonesia, and wondered whether this system could adopt aspects of the Australian system to ensure just outcomes for its users. In 2021 Sharifah will be moving to Canberra to commence work for the ACT Public Service and hopes to continue building her knowledge of the Indonesian language, culture and law.

Sharifah’s Twitter handle is @SharifahZaliah

Undergraduate dispute resolution research

Many of us teach university students about dispute resolution and encourage them to engage in their own research. In 2018, Associate Professor Becky Batagol of Monash University invited her students in the Non-Adversarial Justice unit at Monash University to prepare blog posts, and she published some on this ADRRN blog, like this one. I was inspired by Becky’s use of blogs as an assessment task. When I taught a Dispute Resolution elective for students at the University of Tasmania in semester 1, 2020, I asked my students to present their research projects in both a research essay and blog or vlog format. This month I will be posting some of those blogs or vlogs.

Noogz, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons

To provide some context, and in the spirit of sharing dispute resolution teaching ideas, I will explain the dispute resolution research assessment task in more detail in this post.

Task Description

You will conduct your own preliminary research to identify a research topic that responds to one of the following questions:

1. Identify an issue for lawyers related to dispute resolution. What are the challenges and opportunities for the legal profession?

2. Identify a specific context in which dispute resolution processes are used. What are the challenges and opportunities for access to justice for users of that process?

You need to choose a specific issue or context around which to frame your research assignment. There is considerable scope for the exact topic that you choose, so long as you make sure your work answers the question.

You have been instructed to explore “challenges and opportunities” so that you practise the analytical skill of considering both positive and negative consequences or factors arising from the issue or context.

I assigned two questions, because I like to encourage my Bachelor of Laws students to focus upon issues for lawyers in dispute resolution, but not all of my students were studying a LLB degree. All students were free to choose to answer either question. The instructions continued:

There are three items that you will produce from your research assignment:

1. Topic proposal – a template will be provided (1-2 pages).

2. Research Essay of 3000 words maximum.

3. Either a blog post of 300-500 words or a 3 minute vlog post using only one visual image. This item should present your “elevator pitch” of your research assignment to a general audience.

Feedback will be provided about the topic proposal.

Both the research essay and blog or vlog post will be graded, and the grade standard will be assessed against both items combined. Criteria are weighted equally.

Marking Criteria

 CriterionMeasures Intended Learning Outcome:
Criterion 1Identify, explain and justify the topic1 Identify, explain, justify and critique the nature and theories of the various dispute resolution processes.
Criterion 2Critically analyse the issue and answer the question4 Critically analyse and problem-solve issues arising in non-judicial dispute resolution processes.
Criterion 3Communicate effectively5 Communicate and collaborate effectively.

Choice of Research Topic

Allowing undergraduate students to choose their own research topic ensures that they are able to research and write about something that drew them to choose the dispute resolution elective. My unit content introduces a range of issues, techniques, styles and contexts for dispute resolution – I think of it as an introductory smorgasbord. My aim is to help students identify their existing understanding and to challenge themselves with new ideas or unfamiliar approaches. The research assignment provides an opportunity to engage deeply with a particular issue, to find relevant literature and test students’ thinking. My hope is that some students will enjoy the research project so much that they will contemplate dispute resolution research as a career option.

One of the challenges in a self-chosen research topic is that some students feel stifled by lack of existing knowledge or overwhelm, and have some trouble identifying a workable research topic. These students were encouraged to meet with me to have a conversation. Typically, the first question that I asked them was “why did you enrol in this unit?”, followed by “what were you hoping you would learn about?”. Through conversation we could develop ideas and I could suggest that they start with some preliminary reading about a general area, to help them to find the specific topic that they wanted to write about.

Another benefit of a “choose your own topic” style assignment is that the chances that I would be exposed to new and exciting ideas and perspectives on dispute resolution was increased. Of course, not everyone takes a novel and original approach in such a unit, but not having to read 50 takes on the same narrowly expressed topic was a much more pleasurable assessing experience overall!

Topic Proposals

The 1-2 page topic proposals were due in Week 4 of a 13 week semester, but the due date was amended to “when you can” due to the COVID19 pandemic. The template invited students to identify themselves, and then to provide the following information:

  • Title of Paper
  • Issue to be Explored
  • Proposed Scope and Structure
  • Relevant Resources Identified So Far

This hurdle task provided an incentive to start planning the research assignment early in semester, and gave me an opportunity to give tailored feedback to each student about the appropriateness of the topic that they had identified, whether their scope and structure was feasible for a piece of only 3000 words length, and also to provide feedback and suggestions about the resources that they had identified at that early stage.

Research Essays

The essays are a form of assessment that students are familiar with, and a standard way of building and assessing academic writing skills and research quality.

Blogs

Blog writing hones our ability as researchers to present our ideas to a general audience in an accessible and succinct way. It has relevance to graduate roles where presenting short form summaries is often required in briefings, information sessions, websites and presentations.

The instructions for students who chose to prepare a blog post were as follows:

For an excellent introduction to academic blogging see Assoc Prof Becky Batagol’s post on the Australasian Dispute Resolution Research Network (ADRRN)’s blog Blogging Basics for Beginners: Or, how to write a really good academic blog post. The best blogs submitted in this unit may be suitable for a guest post on the ADRRN’s wordpress site.

One image may be used to accompany the words in your blog post. Ensure that you attribute the copyright owner and have permission to use the image.

Vlogs

To give students an opportunity to make an oral presentation of their work, I also offered the option of a vlog styled on the 3 minute thesis competition for higher degree research candidates. The instructions for students who chose to prepare a vlog post were as follows:

The 3 minute single image video vlog option is modelled on the 3 minute thesis competition. See the competitor guide for guidance about preparing your “pitch”.

I fully recommend vlogs as refreshing relief in the marking season.

I hope you enjoy the posts from some of my students later this month.

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.