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.

ARE WE HERE TO RESOLVE OUR PROBLEM OR JUST TO REACH A FINANCIAL SETTLEMENT?

This article first appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 141, published in August 2017 (Sydney, Australia, ISSN 1449-7719), pp 12-16.  It has been reproduced with the kind permission of the author and the ALA.  For more information about the ALA, please go to: www.lawyersalliance.com.au.

women negotiatingINTRODUCTION

In every dispute resolution process the parties will find a balance along a spectrum from “it’s only about the money and settlement” to “we can manage our conflict much more broadly than a narrow focus on the past events related to this dispute.” There is a tension between these two extremes. In 2005, Baruch Bush and Folger reflected upon this tension, which they had expressed in their first edition of The Promise of Mediation:

‘In our view, the potential that mediation offered to foster and support positive human interaction within conflict was being squandered. Instead mediation was being used to shore up institutional processes that operate to control, contain, and settle conflict, because of a prevailing view that conflict interaction is a fundamentally negative social force’.[1]

On the one hand, the ability of dispute resolution (DR) processes other than formal trial to support people to resolve their differences in a holistic way is touted as a desirable attribute. On the other hand, within legal contexts, the purpose of DR processes is understood by many to be settling disputes quickly and cheaply, keeping them out of the formal trial process. There is a tension between those who advocate that one or other of these purposes is the ‘true’ purpose of DR processes. Strong opinions towards a settlement focus are particularly common within the context of formal justice systems and whenever lawyers are involved. In the court-connected context, the focus of DR is often the ending of a litigation process and avoiding further legal costs, as distinct from resolving a shared problem. Lawyers tend to focus upon settlement within the boundaries of what would be legally appropriate as the purpose of DR.[2]

This article revisits some of the promises of DR, to explain the imaginative potential that motivates those who champion the resolution-focused end of the spectrum. It then considers whether and how the context of the formal justice system shapes DR – including expectations about its proper purpose. The question of what parties want from DR is considered. The ways lawyers shape DR when they are involved in it is examined. Attention then turns to the reasons why a predominant focus upon the settlement purpose of DR may be appropriate and desirable. Conversely, the drawbacks of an over-emphasis on settlement to the detriment of other opportunities are considered. The conclusion from this discussion is that ultimately a broad resolution-focused approach may be maintained even within the context of the formal justice system; parties ought to decide what purposes they would like to pursue through their DR process; and lawyers ought to ensure that they are supporting their clients to make well-informed decisions about the optimal way to approach DR.

THE PROMISE OF DR

The foundations of the modern DR field were built on the multi-disciplinary pursuits of individualism, relationship, and peace-building. The promise was that DR would offer an alternative to existing processes that would free people in dispute from the confines of oppositional adversarialism, an exclusive legal lens, and untempered power imbalance. DR emerged from dissatisfaction with existing processes, promises about what new approaches offered, and changing attitudes towards conflict.[3] Hence the term ‘alternative’ dispute resolution (ADR) – being an alternative to trial or unassisted negotiation (which is typically conducted in an adversarial settlement style). Today, many in the field prefer to drop the ‘alternative’ tag, on the grounds that it misrepresents the central place that DR processes play in the life of disputes and justice systems.[4] Others argue just as ardently that the ‘alternative’ should stay, as a marker of history and because it distinguishes DR processes from the formal judicial system.[5] The promise of DR as an holistic and tailored approach to conflict and disputing is something that is universally acknowledged as at least a possibility.

DR IN THE CONTEXT OF THE FORMAL JUSTICE SYSTEM

The biggest growth area of DR has been within institutional contexts, particularly government and the justice system. Inevitably, when DR has been adopted by institutions, it has been adapted accordingly:

‘True to ADR’s essential characteristics of innovation, creativity and experimentation, ADR in the courts involves continuing adaptation and evolution of ADR processes. But as governments, tribunals, and courts borrow, co-opt and adapt ADR methods, an ironic shift becomes apparent. Control over the dispute resolution processes moves to the institution. …In short, rather than be designed to meet the specific needs and exigencies of the parties to the particular dispute, ADR techniques are adapted to fit the goals of the institution or system.’[6]

Typically, the reason institutions introduce DR is to settle disputes quickly and at minimal cost. Within court systems, DR has been adopted as a way to solve problems of delay and inaccessibility – effectively shifting disputes out of formal litigation processes and supporting parties to negotiate an outcome earlier than they otherwise would.[7] The purpose of settlement is very much prioritised where these are the bases upon which a DR system has been established.

Where DR is court-connected, because it occurs within the context of a litigated matter, there are obvious reasons why the focus of the process tends to be upon the facts of past events, the legal issues between the parties, and the assessment of potential outcomes against the anticipated judicial view. Where trial or abandonment are the likely alternatives to a negotiated outcome, parties will naturally consider their options against those possibilities. Lawyers are more likely to be involved in court-connected DR processes and they will bring their professional legal lens to the process and dispute. Law and legal rights tend to dominate court-connected DR.[8]

However, there are no absolute barriers to a broad, relationship-focused, adaptable, holistic approach to the parties’ disagreement being taken within court-connected DR. There are no legislative definitions of DR, guidelines or rules that limit court-connected DR to a settlement and/or law-oriented focus on the dispute. Rather, there has been a trend for court-connected DR to be defined in generic terms that can potentially incorporate a wide range of DR practices.

WHAT PARTIES WANT FROM DR

The Productivity Commission’s latest report about access to justice noted that there are deficiencies in the availability, quality, and utilisation of data about the civil justice system – in particular, the experiences of, effects on and costs incurred by end users.[9] The LAW Survey has provided some data at a population level.[10] Data is often gathered from lawyers and institutional parties rather than directly from individual end users of DR, generally because of the ease with which data can be gathered from ‘repeat players’ compared with individual one-off parties.[11] Research conducted within service provider organisations, often in the form of client feedback surveys, presumably provides data about party expectations. However, these are rarely published publicly.

From the limited evidence available, we know that parties often want to explore a broader range of issues in DR than their lawyers think they do.[12] For example, Tamara Relis’s research involving medical malpractice claims demonstrated that although the lawyers for all parties thought that the dispute was mostly about money, and one-third of plaintiff lawyers thought their clients only wanted money, plaintiffs reported wanting to explore a much broader range of matters in the DR process.[13] Research has also revealed that parties’ experiences of process are strongly aligned with their satisfaction, whereas lawyers tend to evaluate DR according to whether or not a settlement was reached.[14]

HOW LAWYERS INFLUENCE WHAT PARTIES WANT AND WHAT THEY CAN GET FROM DR

Lawyers have significant influence in shaping their clients’ expectations about DR processes, the way that the process is conducted, the subject matter discussed, and the outcomes achieved.[15] Lawyers actively encourage their clients to reach sensible settlements, inevitably assessed according to the lawyer’s view of what is reasonable. The potentially broad scope of outcomes that could be achieved through DR may be limited by lawyers’ views that the appropriate scope of DR is narrow and focused upon likely legal outcomes weighed against financial costs and risks.[16] Lawyers modify their clients’ expectations about what DR is, what role they should play in it, how the negotiation should be approached, and what could be achieved.[17] There is scope for greater research into the reasons for the widely recognised narrowing of DR by legal service providers. Some contributory factors include lawyers’ professional identity,[18] interpretation of their ethical duties,[19] personality,[20] and legal training.[21]

WHY SETTLEMENT IS DESIRABLE AND APPROPRIATE

Settlement undoubtedly has many attractions for disputing parties. It means that negotiations about the dispute can cease and the parties can spend their time, money and emotional energy on other things. Where the settlement involves payment from one party to another, both are able to move into the future with certainty about their financial situation. Where litigation has commenced, the settlement will also signal the end of the parties’ involvement with the formal justice system about their dispute. Ultimately, these benefits of settlement are desirable.

Furthermore, for many parties, the quantum of settlement payment is their primary concern about the dispute. Therefore, the negotiations may be focused upon monetary quantum and conducted in a distributive manner – where the limited pie is divided through a series of offers and counter-offers. Where one of the parties to a negotiation is an insurer or organisation with whom the individual party has no ongoing relationship, it is arguable that there is little prospect of the broader promises of DR to be explored through the process of resolving the immediate dispute.

Even where other styles of negotiation are adopted, whereby the parties expand the pie by identifying scope for negotiation about payment manner or timing, or explore one another’s interests to see if creative opportunities can be found, ultimately, the negotiation at some point will focus upon the quantum to be paid by one party to another. Settlement, whether on simple or complex terms, is the ultimate shared goal between the parties.

THE DRAWBACKS OF A SETTLEMENT FOCUS

There are, however, drawbacks to an over-emphasis on settlement. The potential for creative and imaginative exploration of resolution possibilities is hindered by a preoccupation with settlement of the immediate dispute (particularly where the focus is the immediate dispute as defined by the pleadings). Distributive bargaining locks parties into an assumption that their options for resolution are limited. The chances of impasse are higher than where a more curious and flexible approach is taken to the negotiation.

One of the greatest lost opportunities of a settlement focus in DR is that the possibility that the parties will achieve relational benefits of DR is very low. The promise of DR includes the ability for people in conflict to come to a better understanding of the conflict dynamics to which they have contributed, of the perspective of the other parties to the dispute, and of ways in which their relationships may be conducted in the future to avoid similar disputes remaining unresolved. A relational approach is appropriate in family law, workplace conflict (including compensation claims), commercial matters related to business dealings, estate matters, and all other disputes between parties who have a past, present or future relationship of some kind.

Even where parties do not have a relationship, there may be benefits that could be derived by taking an approach to DR that is broader than a monetary settlement focus. The parties in dispute may not have a relationship in personal injuries matters where an insurer manages the claim-making, in one-off consumer complaints, or discrimination claims made outside of personal relationship contexts. In all of these kinds of dispute, there is a human element to the conflict. The claimant may benefit greatly from the opportunity to tell their story of loss, to receive an explanation or apology, and to learn about changes that have been made to avoid harm to others in the future. It may be appropriate in some circumstances for the outcome of the DR process to include some kind of public statement about the resolution that has been reached.

CONCLUSION

The title of this article asks “Are we here to resolve our problem or just to reach a financial settlement?” and the answer is “It depends.” The context of legal services or litigation does not preclude parties from deciding to pursue much broader outcomes than ‘settlement on terms mildly disagreeable to both parties’. The parties whose dispute is being managed should be put in a position to choose the scope of their DR process. For some, a narrow, predominantly money focus will be appropriate. For many, the DR process presents an opportunity to explore their conflict with the other party and achieve a range of potential benefits in process, content and outcome. Lawyers who understand the promise of DR and the different ways that it might be practised are best placed to support their clients to capture the full remedial imagination of the field. Although there are some limitations to the data available about party preferences, there is sufficient evidence of disconnect between what clients and their lawyers expect and want from DR processes. That evidence should provide food for thought for lawyers to ensure that they are serving their clients optimally in relation to the resolution and/or settlement of their disputes.

 

Dr Olivia Rundle is a Senior Lecturer in Law at the University of Tasmania. EMAIL Olivia.Rundle@utas.edu.au.

The author thanks the members of the Australian Dispute Resolution Network, whose scholarly engagement in traditional ways and through social media enhances and furthers my thinking about lawyers, dispute resolution and civil justice (adrresearch.net and @ADRResearch).

[1] Robert A Baruch Bush & Joseph P Folger, The Promise of Mediation: The Transformative Approach to Conflict (Revised ed, 2005, Jossey Bass), 1.

[2] Olivia Rundle, ‘Lawyers’ perspectives on “what is court-connected mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33.

[3] Carrie Menkel-Meadow, ‘Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections’ (2006) Negotiation Journal 485.

[4] Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (2016, LexisNexis).

[5] Tania Sourdin, Alternative Dispute Resolution (5th ed, 2016, Thomson Reuters).

[6] Margaret A Shone, ‘Law Reform and ADR: Pulling Strands in the Civil Justice Web’ (Paper presented at the Australasian Law Reform Agencies Conference, Wellington, New Zealand, April 13-16 2004) 6.

[7] The Hon Justice James Spigelman, ‘Just, Quick and Cheap – A Standard of Civil Justice’ (Paper presented at Opening of Law Term, Parliament House, Sydney, 31 January 2000); Nancy A Welsh and Peter T Coleman, ‘Institutionalised Conflict Resolution: Have We Come to Expect Too Little?’ (2002) 18 (4) Negotiation Journal 345; Kathy Mack, Court Referral to ADR: Criteria and Research (National ADR Advisory Council and Australian Institute of Judicial Administration, 2003) 17. Kathy Mack noted that courts have rarely articulated why they introduced DR. Nadja Alexander, ‘Mediation on trial: ten verdicts on court-related ADR’ (2004) 22(1) Law in Context 8, 17.

[8] Craig A McEwen and Roselle L Wissler, ‘Finding Out If It Is True: Comparing Mediation and Negotiation Through Research’ (2002) University of Missouri Journal of Dispute Resolution 131, 133; Jacqueline M. Nolan-Haley, ‘Court Mediation and the Search for Justice Through Law’ (1996) 74 Washington University Law Quarterly 47, 64.

[9] Productivity Commission, Access to Justice Arrangements (Inquiry Report No. 72, 2014), Chapter 25.

[10] Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Law and Justice Foundation of NSW, Volume 7, 2012) http://www.civiljustice.info/cgi/viewcontent.cgi?article=1024&context=access.

[11] Jane Elix and Tania Sourdin, Review of the Financial Industry Complaints Service 2002 – Final Report (Community Solutions, La Trobe University, University of Western Sydney, 2002) https://www.fos.org.au/custom/files/docs/fics_final_independent_review.pdf, Appendix B.

[12] Robert A Baruch Bush and Sally Ganong Pope, ‘Transformative Mediation: New Dimensions in Practice, Theory, and Research’ (2002) 3 Pepp. Disp. Resol. L.J. 1 cited in Louise Phipps Senft and Cynthia A Savage, ‘ADR in the Courts: Progress, Problems, and Possibilities’ (2003-2004) 108 Penn St. L. Rev 327, 335.

[13] Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (Cambridge University Press, 2009).

[14] Carol Bartlett, ‘Mediation in the Spring Offensive’ (1993) Law Institute Journal 232; Marie Delaney and Ted Wright, Plaintiff’s Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-Trial Conference and Mediation (1997); Jill Howieson, ‘Perceptions of Procedural Justice and Legitimacy in Local Court Mediation’ (2002) 9(2) Murdoch University Electronic Journal of Law http://www.murdoch.edu.au/elaw/issues/v9n2/howieson92_text.html; Judith Resnik, ‘Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement’ (2002) Journal of Dispute Resolution 155; Brad Reich, ‘Attorney v Client: Creating a Mechanism to Address Competing Process Interests in Lawyer-Driven Mediation’ (2002) 2 Southern Illinois University Law Journal 183; Nancy Welsh, ‘Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value’ (2004) 38 Ohio State Journal on Dispute Resolution 573.

[15] Lillian Corbin, Paula Baron and Judy Gutman, ‘ADR Zealots, Adjudicative Romantics and Everything in Between: Lawyers in Mediations’ (2015) 38(2) UNSW Law Journal 492; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (2010, CCH); Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (2008, UBC Press).

[16] Olivia Rundle, ‘Lawyers’ perspectives on “what is court-connected mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33.

[17] Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32(1) UTLR 20; Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2009) 8(1) QUTLJJ 77.

[18] Becky Batagol, ‘Fomentors of Strife, Gladiatorial Champions or Something Else Entirely? Lawyers and Family Dispute Resolution’ (2008) 8(1) QUTLJJ 24; Boulle and Field, above note 4.

[19] Bobette Wolski, ‘On mediation, legal representatives and advocates’ (2015) 38(1) UNSW Law Journal 5.

[20] Leonard L Riskin and Nancy A Welsh, ‘Is That All There Is?:The Problem in Court-Oriented Mediation’ (2008) 15 Geo Mason L Rev 863.

[21] Corbin et al, above note 15; Kathy Douglas, ‘The teaching of ADR in Australian law schools: Promoting non-adversarial practice in law’ (2011) 22(1) ADRJ 49; Macfarlane, above note 15.

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REQUEST FOR PROPOSALS:  GLOBAL POUND CONFERENCE SERIES 

This post concerns a call for proposals to translate and/or analyse data that has been collected during the Global Pound Conference Series and/or produce a final report. Publication from any of the work performed under this request for proposals would be subject to pre-approval by the GPC Central Organising Group and the final report would also be subject to review by the GPC Series Academic Committee. If you are interested in expressing interest in undertaking some of this work, details of process and timelines are contained in the post.

This post has been contributed by network member Dalma Demeter. We have mentioned the Global Pound Conference Series before in Roscoe Pound would be proud – Reflections on the history of the Global Pound Conference, Global Pound Conference Sydney, and Researcher Profile: Meet the team from Resolution Resources. Some GPC Series data has been made available by IMI with guidelines for use by researchers on the GPC Series Website.

Dr. Dalma R Demeter LL.M., SJD, GCTE
Faculty of Business, Government & Law
School of Law & Justice
University of Canberra

imi logoIntroduction

Initiated by the International Mediation Institute (a not-for-profit organisation), the Global Pound Conference (GPC) Series 2016-17 will facilitate the development of 21st century commercial dispute resolution tools at domestic, regional and international levels.

Launched in Singapore and finishing in London in 2017, the GPC Series is a not-for-profit global project that convenes all stakeholders in dispute resolution – commercial parties, chambers of commerce, lawyers, academics, judges, arbitrators, mediators, policy makers, government officials, and others – at conferences around the world. Currently scheduled to take place in 40 cities across 31 countries, these conferences provoke debate on existing tools and techniques, stimulate new ideas and generate data on what corporate and individual dispute resolution users actually need and want, both locally and globally.

To date Approximately 1,700 people participated in Global Pound Conference (GPC) events between March 2016 – June 2017. The aggregated data from the first seven events that have taken place already show some interesting themes and trends and provide interesting food for thought and some ideas regarding how to possibly shape the future of commercial dispute resolution and improve access to justice in commercial disputes globally.

Stakeholder groups

Results are collected from 5 stakeholder groups:

Parties: Users (businesses) who are involved in disputes and use commercial dispute resolution services (e.g., business managers or in-house counsel involved in litigation, arbitration, mediation or mixed mode processes);

Advisors: External advisors who assist Parties in managing their disputes (e.g., external lawyers, experts, forensic accountants);

Adjudicative Providers: These comprise judges, arbitrators and organizations providing adjudication services;

Non-Adjudicative Providers: Conciliators, mediators, ombudsmen and organizations providing such services; and

Influencers: E.g., academics, government officials, educators, policy advisors, etc. who do not participate in commercial disputes but are influential in the dispute resolution market.

Data

Data collected consist of both ‘live’ data that are generated immediately during each GPC event (in response to 20 Core Questions, using the PowerVote electronic voting system) and qualitative data in the form of participant responses to a series of ‘open’ questions, delegate information, word clouds and written questions and answers, also collected during each event.

Scope of project and call for assistance

The final outcome of the GPC Series will be a final report based on a statistically robust analysis of the data collected that:

a. identifies key trends in commercial dispute resolution practice globally;
b. contains a cross-jurisdictional comparison of dispute resolution practices;
c. compares needs and perceptions across stakeholder groups;
d. makes recommendations about how access to justice in commercial disputes can be improved both globally and within jurisdictions.

The GPC Series requires assistance from interested parties to undertake one or more of the following aspects of the overall GPC research assignment:

1. Translation of qualitative responses from some events to English (Arabic, Spanish, Italian, French, Polish, German, Dutch, Russian, Thai, Portuguese).
2. Coding and analysing voting data.
3. Pattern analysis of qualitative data.
4. Producing a final report containing the elements referred to in a)-d) above.

The final report will be subject to review by the Academic Committee of the GPC Series.

The data collected from the various GPC Series events provide a rich source of qualitative and quantitative data for future research, which might focus on country, regional, jurisdictional or global trends identified in the course of the Series. It provides a unique opportunity to be involved in shaping the future of dispute resolution globally.

Researchers involved in the GPC research assignment may also have the opportunity to submit their authored work to a variety of publication outlets, subject to approval of the GPC Central Organising Group.

Timeframes

The following deadlines apply:

a. Expressing interest: 31 July 2017
b. Translation of qualitative data: 31 October 2017
c. Data analysis completion: 31 December 2017
d. Final report: 31 January 2018

Proposals

If you are interested in participating in the GPC research assignment, please send an email to the Academic Committee of the GPC Series (details below) indicating:

a. Details of your organisation, the individuals whom you propose to involve and their level of appropriate experience.
b. Which of the items 1 – 4 of the research assignment listed above you are interested in undertaking (preference will be given to tenders willing to handle all 4).
c. The extent of your or your institution’s ability to absorb costs involved in the aspect of research in which you are involved (at this stage the GPC does not have a budget available for these items).
d. Fee or cost estimates you may anticipate for completing this project by January 31, 2018.
e. A brief plan setting out how you intend to execute the items you have shown an interest in, including a time frame for each item.
f. Any other information you think would be helpful for the Academic Committee to know.

Please contact barney.jordaan@vlerick.com Barney Jordaan, Chair: Academic Committee of the GPC Series

 

Working Group on International Arbitration and Conciliation/Dispute Settlement – an opportunity to observe

The UNCITRAL National Coordination Committee for Australia (UNCCA) is now able to send a few observers through the international organisation of lawyers’ association LAWASIA, to UNCITRAL Working Group Sessions.

This call is for expressions of interest to attend the upcoming 67th session of Working Group II on Arbitration and Conciliation / Dispute Settlement. The session, at this stage, is tentatively scheduled for 2-6 October 2017, and will be held in Vienna, Austria.

Blick_von_Stephansdom_Nordwesten

By UrLunkwill (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/) or CC BY 2.5 (http://creativecommons.org/licenses/by/2.5)%5D, via Wikimedia Commons

Work will focus on legislative development on the enforcement of conciliated settlements in two possible forms; as agreed at the end of the 66th session, “the Working Group would continue to prepare both a model legislative text complementing the Model Law on Conciliation, and a convention, on enforcement of international commercial settlement agreements resulting from conciliation.” (More information on the current work of WGII is available at http://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html)

Academics, researchers, and/or professionals whose current work is connected to that of the Working Group, and who could, accordingly, benefit from observing these sessions, are invited to register their interest in attending with:

Dr Dalma Demeter, Chair of the Expert Advisory Committee for Working Group II at UNCCA.

Please send a current CV and a short paragraph explaining why you would like to attend, and how attending the sessions would contribute to your work, to dalma.demeter@canberra.edu.au

by 15 June 2017.

Please note that there are only limited places available, and neither UNCCA, not LAWASIA are in the position of providing funding.

Research Higher Degree Topics at UTAS

The Faculty of Law at the University of Tasmania has opened its final round of research higher degree scholarships in 2017. Two topics have been proposed by network member Dr Olivia Rundle. Applications will be considered in competition with applications for all other Law topics (ie the scholarships are not tied to particular topics and there are a limited number available).

The closing date for scholarship applications is 30 April 2017

Applications from prospective candidates who do not require a living allowance scholarship are welcome at any time.

Dr Rundle’s advertised topics are:

Case Management Practices in Tasmanian Civil Litigation

Relationships with Clients in Legal Services Delivery

Applicants will need to develop a proposal that falls within the topic area.

If you decide to inquire about application (to Olivia.Rundle@utas.edu.au) please provide information about the following:

  1. Your academic qualifications record
  2. Your Curriculum Vitae
  3. Any publications you have authored
  4. Any other examples of your scholarly writing
  5. Where you propose to be while you undertake a research higher degree (ie do you propose to be located physically in Tasmania for all or part of your candidature)
  6. Whether you propose to be a full or part time candidate
  7. Whether you study will be self-funded or you require a living allowance scholarship

Olivia looks forwa2016 Profilerd to hearing from budding researchers who are excited to contribute to research about the way disputes are handled within legal institutional contexts or the way lawyers engage in their relationships with their clients.

Ethics in Alternative Dispute Resolution: Special Edition of Law in Context

Ethics in ADR Law in ContextAustralian Dispute Resolution Research Network members Lola Akin Ojelabi and Mary Anne Noone have coordinated and edited a special edition of Law in Context on the topic of Ethics in Alternative Dispute Resolution. The special edition was published in February 2017 and is now available for purchase either as a whole volume in book form or by subscribing to the Law in Context journal.

The special edition draws from papers presented at the ADR Ethics for Practitioners Symposium, conducted at Latrobe University in June 2015 and convened by Lola and Mary Anne. The Symposium and the Special Edition considered a wide range of factors relevant to the complex questions of ADR ethics.

The papers included in the special edition are:

Lola Akin Ojelabi and Mary Anne Noone “ADR Processes: Connections Between Purpose, Values, Ethics and Justice” – Drawing from empirical research, this paper begins to explore the relationship between process purpose, underlying values and ethical responsibilities that arise for a range of ADR practitioners working in different fields and the potential of those processes to promote substantive and procedural justice.

Ellen Waldman “Inequality in America and Spillover Effects on Mediation Practice: Disputing for the 1 Per Cent and the 99 Per Cent” –  The question for mediation scholars and practitioners is whether growing inequality is affecting the way in which society’s ‘haves’ and ‘have-nots’ access and experience mediation. At the low end of the socio-economic totem pole, government cuts in legal services – combined with mediation practitioners’ obsession with neutrality – potentiate uninformed decision-making by unrepresented parties. At the high end, models of practice catering to legal professionals’ preferences threaten to rob mediation of its transformative, therapeutic potential. This paper explores these troubling developments and queries whether growing social inequality should precipitate shifts in our thinking about mediation ethics and the way we educate the next generation of lawyers. 

Susan Douglas, “Ethics in Mediation: Centralising Relationships of Trust” – In this paper, the relationship of trust between mediator and parties is proposed as a suitable and defensible alternative ethical framework. It is argued that this relationship can be constructed according to principles associated with fiduciary and therapeutic relationships, in recognition of the distinctive socio-legal context of practice. It is argued that relationships of trust provide a convincing framework within which to consider issues of substantive fairness in mediation.

Bobette Wolski, “An Ethical Evaluation Process for Mediators: A Preliminary Exploration of Factors Which Impact Ethical Decision-Making” – When mediators are confronted with an ethical dilemma such that they must choose between two or more ‘right’ or ‘good’ but contradictory courses of action, they must take numerous case-specific factors into account in arriving at a decision that they can justify. This article identifies some of the factors which mediators might take into account in deciding what is the ‘ethically fitting’ course to be followed, including: the objectives and values given priority in mediation; the approaches or models of mediation chosen by a mediator; and the standards of conduct to which mediators are subject.

Rachael Field and Jon Crowe, “Playing the Language Game of Family Mediation: Implications for Mediator Ethics

Judy Gutman and Jodie Grant, “Ethical Conundrums Facing Mediators: Comparing Processes, Identifying Challenges and Opportunities” – This article considers several ethical issues confronting mediators in family and civil disputes. We compare ethical frameworks, drawing on issues arising from mediation practice in two specific court-connected fora. Further, we make recommendations for changes to existing mediator training and to applicable standards and codes. 

Kathy Douglas and Rebecca Leshinsky, “Ethical Concerns for Owners Corporation Managers who Informally Mediate in Owners Corporation Disputes: The Need for a Community of Practice” – Conflicts in owners corporations are not uncommon and the owners corporation or strata managers may informally mediate disputes. This article will outline research into the experience of conflict in owners corporations from the perspective of strata managers and discuss mediator ethics in this context. Managers, as informal ‘insider’ mediators, may experience a number of ethical dilemmas, most notably the issue of impartiality/ neutrality. They are part of a growing group of mediators that operate outside of the National Mediation Accreditation System. The article suggests the need for a community of practice of managers who informally mediate so that ethical concerns in their specific context can be shared and debated.

Alikki Vernon, “The Ethics of Appropriate Justice Approaches: Lessons From a Restorative Response to Institutional Abuse” – There have recently been several major initiatives in Australia in response to institutional abuse and sexual offending. This paper explores one of these initiatives: the Defence Abuse Response Taskforce. The Taskforce was established to address institutional abuse and sexual offending in the Australian Defence Force. It raised a number of important ethical questions and offers valuable lessons about appropriate justice approaches in complex matters.

Our humble-brag about this special edition is that almost all of the authors are members of our network. Congratulations to all involved in this research project, which makes a significant contribution to a thorny area of dispute resolution theory and practice.

The Course to Publication Never Did Run Smooth

One of the goals of the Australian Dispute Resolution Research Network is to create an environment where researchers can support one another in a rigorous and kind manner to engage in high quality scholarship. I am so excited that Jon and Rachael accepted my invitation to write this piece. Both of them are established professors with an excellent track record of scholarship both within and outside the dispute resolution subject area. Their story of taking their idea through three double blind peer review processes plus an ADRRN Roundtable to eventual publication demonstrates their resilience and confidence that their idea was a good one worth pursuing. Researchers need to foster an ability to accept peer review feedback graciously, consider it an opportunity, decide how to respond, and persist with work that has been criticised. Jon and Rachael’s story is a model for all of us and I thank them again for sharing it here. Olivia.

Jonathan Crowe and Rachael Field

jon and rachael

The path from idea to publication is often winding and tortuous. One example of this is our recent article, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’, which appears in a special issue of Law in Context on ethics and dispute resolution. The article explores some underlying ethical issues about access to justice in family mediation.

What, then, was the article’s path to publication?  We first started work on the paper in late 2008. We completed the initial version in May 2009 and submitted it to the Australian Journal of Family Law. The referees made a number of critical suggestions and we were asked to revise and resubmit.

Often it is hard to work out how to respond to referees’ comments, particularly when different referees seem to recommend different things. One of our referees commented: ‘The article needs complete rethinking and rewriting.’ The other said: ‘This article contains some interesting ideas. It is well written and original.’

The process of revision can be difficult and daunting. How do you mediate between diverse views and reconcile the referees’ comments and criticisms? Anyway, who has the time for this sort of thing? Other commitments—and life in general—tend to get in the way.

Nonetheless, we worked on revising the article, doing our best to respond. It did take a while, though!  It wasn’t until July 2010 that it was in shape to be resubmitted. Rather than resubmit to the Australian Journal of Family Law, we thought the new version would be well suited for a special domestic violence edition of the University of New South Wales Law Journal.

Again, however, the referees were split on the article’s merits. One reviewer said: ‘This is a well written and appropriately researched paper and raises some interesting ideas.’ The other said: ‘The article arouses two basic reactions: appreciation and disappointment. … The article needs serious and substantial revisions.’  Back to the drawing board!

After several years of neglect, procrastination and intermittent revision, we presented the paper at the Australian Dispute Resolution Research Network Roundtable in 2015. Our colleagues at the ADR Research Network reassured us of the paper’s value and made supportive suggestions for further improvement.

We are particularly grateful to Olivia Rundle for her generous and helpful commentary. This is why the Network is so amazing. Such levels of sincere and generous collegiality are unfortunately all too rare in the contemporary academy.

Re-energised by the support of our colleagues, we revised the piece again and resubmitted it to a special ethics edition of Law in Context in 2016. This time, it found favour with the referees. After a final round of revisions, it was accepted and is now in print.

What is the moral of this long-winded story? It certainly shows the value of tenacity and persistence in academic publishing. Being rejected and receiving referees’ (sometimes harsh) criticisms can be disheartening and emotionally draining. Resilience, patience and perseverance are key.

It’s also important to back yourself and believe in your ideas and their merit. Some ideas take longer than others to mature. Sticking with the idea until it does get to that point pays off. It also really helps to be working with a supportive co-author (as we each were) and to have generous and encouraging colleagues like those in the ADR Research Network.

Overall, then, the article took about eight years from conception to publication. It took a long time, but we got there in the end! So what were the ideas we sought to express in this article? Here is a short summary.

Over the last 20 to 30 years, the use of family mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution (as family mediation is now known) has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system.

There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient and less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that can enable party self-determination, empowering the parties to determine together the best arrangements for their family into the future.

However, we argue that vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential benefits of mediation are truly to be achieved. This is because the relatively informal nature of mediation, along with its emphasis on party self-determination and mediator impartiality, holds the potential to mask the challenges the process presents for inexperienced or vulnerable parties.

In the article, we use Ludwig Wittgenstein’s concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.

In our view, mediators must play an ethically active role in preparing and supporting the parties to operate effectively within the mediation language game. This requires a more sophisticated understanding of party self-determination that goes beyond the simplistic rhetoric that the parties control the content and outcome of the dispute.

Since we first met at a post-graduate law research colloquium in Adelaide in 2004 (where Jon’s paper won best paper and we sat next to each other at the dinner) we have enjoyed bringing our diverse perspectives and knowledge together. We’ve pretty much always had ideas we were developing or articles we were writing together since that time.

Coffee catch ups have always been fun. We really like the body of scholarship we are developing! See, for example:

After this blog post, our next adventure is a book on Mediation Ethics for Edward Elgar. Wish us luck! Hopefully, it doesn’t take eight years!

 

Flash Back Friday: Resolution of the Standard Hours Dispute

On Monday of this week some workers in some Australian states and territories enjoyed a public holiday called “Labour Day” or the “8 Hour Day”. This public holiday celebrates the establishment of a baseline expectation that the ordinary working week for full time wage earners in Australia is 40 hours (reduced to 38 hours in 1981). An irony of the celebratory public holiday is that a high proportion of Australian full time workers work significantly more hours per week (and many are not paid overtime, meaning that those additional hours are essentially voluntary contributions to their employer/business and/or significantly reduce their actual hourly earnings). Some research suggests that working greater than 39 hours per week is a health risk. In high salary sectors, critics have started to challenge the cult of over-work, reward for long work hours and addiction to busy-ness.

This post focuses upon the processes that were engaged to achieve the legal milestone, considered to be so significant that most Australian states and territories celebrate it as a public holiday each year. The remainder of this post does not focus upon distinctions between theory and practice in working hours, nor the manner in which industrial relations law has been implemented post 1947.

Australia’s historic commitment to conciliation and arbitration

The Australian Constitution, dated 1901, granted the following legislative power to the Commonwealth of Australia:

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (Section 51 (xxxv))

The driver for this power being included in the Constitution was a history of workers’ strikes and industrial unrest, particularly in the 1890s. It was hoped that the Commonwealth would be able to provide an effective way of minimising the disruption and facilitating the resolution of industrial disputes. The Commonwealth first exercised this power in 1904 when it established the Commonwealth Court of Conciliation and Arbitration. Section 2 of the enabling Act of Parliament listed the Court’s chief objects, some of which enshrined dispute resolution principles into law (author’s emphasis):

…(III) To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties;

(IV) In default of amicable agreement between the parties, to provide for the exercise of jurisdiction of the Court by equitable award;

…(VII) To provide for the making and enforcement of industrial agreements between employers and employees in relation to industrial disputes.

It is clear from these objects that the intention was to provide a system that supported amicable agreement between employers and workers, and that conciliation was intended to be the primary means of resolving disputes, with recourse to arbitration occurring where they had been unable to reach agreement. This is further emphasised by section 16:

The President shall be charged with the duty of endeavouring at all times by all lawful ways and means to reconcile the parties to industrial disputes, and to prevent and settle industrial disputes, whether or not the Court has cognizance of them, in all cases in which it appears to him that his mediation is desirable in the public interest.

Although a Commonwealth institution, provision was made in the objects for the Court of Conciliation and Arbitration to take a collaborative and coordinating approach, dealing with matters referred by states and working with state industrial authorities:

(V) To enable States to refer industrial disputes to the Court, and to permit the working of the Court and of State Industrial Authorities in aid of each other.

One of the chief objects of the Act enabled the Court to allow a variety of interested parties to participate in its proceedings:

(VI) To facilitate and encourage the organization of representative bodies of employers and of employees and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employees to be declared organizations for the purposes of this Act.

This effectively enabled the Court to invite the participation of organisations that would not necessarily have legal standing (and would rarely be proactively invited to participate) in other contexts.

nla.obj-160959628-1

Fairfax Corporation. 1935, Judge’s associate Miss Mary Drake Brockman seated at a desk at the Federal Arbitration Court, Sydney, 12 February 1935, 1 , viewed 17 March 2017 http://nla.gov.au/nla.obj-160959628

Standard Hours Inquiry 1947

In 1947 the Commonwealth Court of Conciliation and Arbitration approved the 40 hour week through its Standard Hours Inquiry decision. Initially, the matter came before the Court as a dispute between the NSW Printing Industry Employees Union and Printing and Allied Trades Employers Federation about the terms of the printing industry award – essentially about whether the standard hours of work should be reduced from 44 to 40 hours. This was a confined dispute and could have been dealt with as an isolated case. Indeed, technically, all that the Court had jurisdiction to do was to settle the specific disputes that came before it. Where a dispute is confined to a narrow set of parties, and there is a public interest in mediating their dispute, the matter would properly be referred to conciliation. It can be safely presumed that the Standard Hours case was always considered to be of such great public interest, that it would not be an appropriate matter to refer to a private decision making process such as conciliation. The case would not have had much effect on Australian standard working hours had it been settled privately between the NSW Printing Industry Employees Union and the Printing and Allied Trades Employers Federation.

The matter was dealt with through a public inquiry by the Arbitration arm of the Court of Conciliation and Arbitration. The Court began to hear the printing industry case in November 1945 with two parties represented: the Printing Industry Employees Union and the Printing and Allied Trades Employers Federation. In February 1946 the Attorney General for the Commonwealth and the Victorian Chamber of Manufacturers were allowed to join the proceedings. The Attorney-General argued that it wanted to intervene in the case on the basis of public interest in the standard hours in the printing industry. The Court adjourned proceedings for one month:

…to give an opportunity to unions which desired to do so, to raise the general question of a 40 hour week in industry, by lodging applications for variation of awards. (Judgment at p 583).

The Australian Council for Trade Unions and 37 individual unions made application to intervene. The question at this point became whether or not the Court ought to continue with the printing industry case or consider the question of standard hours of work in industry more generally. It was decided that the broader question should be explored, drawing all of the claims together within a single inquiry. The matter adjourned and intervenors were asked to file all necessary documents with the Court.

The inquiry was complex, resource intensive, and long (demonstrating that these case attributes are not necessarily a “new” problem faced by legal systems). Five judges originally presided over the hearings (until one died and another became ill for an extended period of time). The hearing lasted for many months through 1946 and 1947. There were some breaks while the Court dealt with other matters. Some counsel were appointed to the bench and were replaced during the trial. The Court noted that:

Over 22 months have elapsed since the commencement of the case in November, 1945. The Court has before it some 8,875 pages of transcript, has heard evidence from 225 witnesses and received almost 500 exhibits…The immensity of the mass of material placed before this Court in the 158 sitting days occupied by the hearing of this case makes a detailed examination of it all in our reasons for judgement out of the question, if indeed, it is not beyond human capacity (Judgment at p 586).

The Court noted that at the time of judgment the inquiry comprised 100 individual industrial disputes regarding the issue of standard working hours.

Observations about the role of the Court of Conciliation and Arbitration

Their Honours made some observations about the constitutional and jurisdictional limits of the Court on the one hand, and the actual influence that its determinations would have on the industrial landscape on the other:

It is a commonplace of Australian industrial law that the limit of the constitutional power of the Court is to settle each of these disputes within its ambit, and the ultimate judgment will in fact settle these particular disputes, and do no more. But we know, as a matter of practical fact, that it will in the long run lead to uniform standard hours throughout Australia. (Judgment at p 588).

The Court recognised that it would inevitably influence parliamentary reform to standardise workers’ rights. Their Honours also expressed a view that they ought not ignore the “popular will” when making their decision, as the effect of their decision’s impact upon the popular will could be either lowered productivity or increased worker effort (Judgment at p 588). In assessing the “popular will”, the Court was influenced by the fact that four states (NSW, Victoria, Queensland and Tasmania) and the Commonwealth had all intervened and advocated that the Court support the workers’ claims for a 40 hour working week in each of the relevant awards. Western Australia and South Australia had not advocated against the 40 hour week. The Court noted later that the governments who intervened were also some of the biggest employers in Australia (Judgment at p 591).

Broad considerations taken into account

One of the striking observations when reading the judgment is the way that the Court, in recognition of the significant and broad reaching consequences of its decision making in specific applications, took into account a range of broad contextual considerations. The inquiry took place post world war 2, and the fact that there were shortages of both commodities and labour was argued by the employers to be a reason not to stifle productivity levels in industry by granting the 40 hour work week claim. The Court acknowledged that there were many imponderable questions that came to mind when deciding the case:

…how shall we estimate the value of industrial contentment? How shall we measure the human value of it? How far is the shorter week a step on that road to co-operation of the forces of production which is so desirable? How shall we set the family aspects of this increased leisure against foreign trade or the claims of our people against those of other countries? Yet all these are factors which do enter into the fabric of one’s mind and ultimately issue forth in judgment. (Judgment at p 593).

Economic experts offered evidence about the forecast effect of a 40 hour week on national productivity, investment, and foreign trade, as well as the current economic situation in Australia and overseas (noting that the current year was anticipated to be a good one for agricultural production after some years of drought).

Another interesting observation that the Court made was its acknowledgment that a finding adverse to workers would not bring a stop to industrial action and unrest about their claim for a 40 hour working week:

No realist for a minute thinks that a rejection by the Court in these cases would bring about industrial harmony or would abate for an instant the demand for the shorter week. History has shown how persistent in the past have been such claims. There is no reason to suspect that the future will differ. (Judgment at p 590).

The judgment’s conclusion begins with an assertion that the Court was making a “major social judgment which will have very great and important consequences” (at p 610). The magnitude of that responsibility was clearly a weight on the minds of the members of the Court who conducted the inquiry and made the arbitral decisions in the individual disputes before it.

Dispute Resolution Perspective of the Standard Hours Inquiry 1947

The way that the Court of Conciliation and Arbitration conducted itself and delivered its reasoning in the Standard Hours Inquiry demonstrates adaptability, flexibility, and a broad view of what could have been treated as isolated disputes. Examples of adaptability, flexibility and breadth of view included:

  • To allow government intervenors;
  • Inviting unions not already involved in formal claims to make applications raising disputes and effectively expand the reach of the inquiry;
  • Taking a broad systemic approach to the inquiry and decision making while acknowledging the confined limits about what orders could be made to resolve the disputes;
  • Acknowledgement of the consequences the decisions would make beyond the immediate disputes;
  • Explicit acknowledgement of some of the unanswerable questions that occurred to the decision makers during their deliberations;
  • Explicit acknowledgement of the reality that the decision would not necessarily bring an end to the industrial unrest around the disputes.

The Court of Conciliation and Arbitration was a peculiar beast established for the purpose of supporting decision making in a complex area that crosses State and Commonwealth boundaries and affects the Australian community in fundamental and pervasive ways – economically and relationally, at macro and micro levels. The decision makers acknowledged the wider implications and effects of their decision and attempted to them into consideration. The capacity of the Court to make sure that its decisions were well informed by inviting greater participation assisted it to achieve its object of facilitating settlement of industrial disputes. The Standard Hours case is a classic example of a case that needed a well resourced, careful, broadly focused and public inquiry. The establishment of an arbitral process enabled that kind of inquiry to occur.