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.

Can Judges Mediate? CASE NOTE: Wardman v Macquarie Bank

judge-2831353_1280

[Free Image by Augusto Ordonez, Pixabay]

On 10 April 2019, Judge Dowdy of the Federal Circuit Court published his reasons for refusing to make a consent order that an employment law matter be referred to mediation by a Judge.

The parties in Wardman & Ors v Macquarie Bank Ltd [2019] FCCA 939 applied for consent orders to resolve some procedural matters and refer the substantive dispute to mediation by a Judge, pursuant to s 34 of the Federal Circuit Court Act 1999 (Cth) and rule 45.13B of the Federal Circuit Court of Australia Rules 2001 (Cth). Rule 45.13B(2)(a) explicitly anticipates that an order referring a proceeding to mediation may order that the mediator appointed be a Judge:

…(2) The mediator for the mediation must be: (a) a Judge; or…

Nonetheless, Dowdy J contacted the parties informing them that he believed he should not make an order that a Judge act as a mediator. Instead, he made an order for a Registrar to act as mediator. His Honour’s reasoning for his refusal to appoint a Judge as mediator can be summarised by the following 3 propositions:

  1. Mediators and Judges perform distinct roles
  2. Acting as a mediator is incompatible with the Constitutional role of a Judge (and Rule 45.13B(2)(a) is invalid)*
  3. Judges are not qualified to act as mediators

1. Mediators and Judges perform distinct roles

Source of authority

  • The Constitutional power to mediate is the Conciliation power in s 51(xxxv).
  • A Judge exercises judicial power under s 71 of the Constitution.

Facilitation of consensus v determination of dispute

  • Mediators aim to resolve disputes by consensus.
  • Judicial power is an elusive concept, but at its core is the power to decide controversies (ie, to determine the outcome of disputes).

Context of decision-making

  • Mediation is typically private, confidential, informal and non-adversarial.
  • Judicial power must be administered in public and reasoning must be published. The judicial process is primarily adversarial.

2. Acting as a mediator is incompatible with the Constitutional role of a Judge

Judicial power must be exercised according to judicial process

  • Judicial process requires (with limited exceptions) open and public inquiry, application of rules of natural justice, identification of law and facts, and application of law and facts to decide the outcome (see Grollo v Palmer).
  • Mediators meet in private, sometimes with only one party at a time, do not decide facts or law, do not make decisions, mediated decisions are not required to be made according to legal principles, and neither reasons nor decisions are published.

Judges cannot perform functions incompatible with judicial power

  • Judges cannot exercise non-judicial functions that would prejudice their capacity to discharge effectively the judicial powers of the Commonwealth
  • Rule 45.13B should be read to preclude a Judge who has presided over a mediation from subsequently hearing or determining the case.

[31] If I had acted as a mediator in this case as requested by the parties I would have sterilised and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as a mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as a Judge to hear and determine a matter which in the regular course had be docketed to me by the registry of the Court.

Courts and Judges cannot and do not provide advisory opinions

  • Judge Dowdy referred to Plaintiff M68/2015 v Minister for Immigration and Border Protection as authority for the proposition that Chapter III Courts and Judges cannot provide advisory opinions.
  • Mediators in court-connected mediations “invariably” provide advisory opinions.

[32]…parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.

Mediation is not a traditional function of courts

  • Some functions other than the adjudication of rights were traditionally exercised by courts and therefore fell within the concept of judicial power contemplated by the authors of the Constitution. For example, administration of trust assets, winding up companies, maintenance and guardianship of infants, grants of probate, and making of rules of court.
  • The process of mediation cannot be accepted to have been a traditional or historical feature of the powers exercised by courts.

Mediation functions are distinct from judicial power

  • This proposition was confirmed by the Boilermakers case – a power to prevent and settle disputes by conciliation and arbitration is completely outside the realm of judicial power.
  • Although mediators and Judges both practise fairness, patience, courtesy and procedural fairness, only a Judge determines a justiciable issue.
  • Because the power to mediate falls outside judicial power, Dowdy J concluded that:

[38]…neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator

  • While Courts and Judges regularly encourage settlement and adjourn hearings to allow settlement negotiations to occur, it is not considered appropriate for Judges to participate in those negotiations themselves.
  • There is no inherent connection between mediation, conciliation and legal proceedings, as not all mediators are legally trained and not all mediations occur in connection with litigation.
  • Mediation is not incidental to the exercise of judicial power.

3. Judges are not qualified to act as mediators

  • Mediation is a craft that requires specific education and training, as well as accreditation and ongoing professional development.
  • Eminence, judicial ability and legal knowledge and experience do not necessarily equip Judges to act as a mediator.
  • Judicial Registrars of the Federal Circuit Court are trained and accredited mediators.
  • There are thousands of appropriately qualified and accredited mediators who could conduct private mediation at an affordable cost.
  • It is inappropriate to appoint a Judge to mediate a case merely to access the authority of the Judge to induce or extract a settlement.
  • Judges should give exclusive primacy to their judicial role rather than acting as a mediator in cases before the Court.
  • Judges have busy dockets and it is unjustifiable to take time out of the activity of judging in order to act as a mediator.
  • Judges should not risk being called as witnesses about what happened in private mediations.
  • If a Judge acting as a mediator gave an evaluation of the legal case, and a Judge acting as a Judge subsequently decided differently, the standing of Courts and Judges would be diminished.

Comment

This judgment provides some very interesting insights about court-connected dispute resolution practice. Dowdy J has lived experience as a senior legal practitioner with many years’ participation in court-connected mediation and some of his reasoning is based upon that personal knowledge. In paragraph [32] quoted above,  His Honour claimed that mediating parties, particularly weaker or more vulnerable parties, invariably expect the mediator to express views about both the likely outcome of litigation and whether or not a proposed settlement is reasonable. His Honour continued:

[33] It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morning QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.

His Honour returned to his strong view about what litigating parties expect from a mediator:

[55]…by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.

The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes. The question of whether or not litigating parties expect this style of mediation (a) because it is what they have experienced before, or (b) because it is their preference over other styles, is also worthy of interrogation. Should facilitative mediators market their services from a point of difference, instead of assuming that facilitation is understood by prospective clients as the “standard” form of mediation?

The equating of mediation with conciliation in the judgment was the means by which His Honour located the mediation function within the Constitutional powers. The definition of mediation is hotly disputed within the dispute resolution community (as is whether Dispute Resolution is preferable to Alternative Dispute Resolution). However, this judgment raises again the question of whether or not court-connected dispute resolution of the character described and expected should more appropriately be called “conciliation”, in order for it to be distinguished from other kinds of dispute resolution practice.

There is great potential for the private mediation sector to provide affordable dispute resolution services to litigants. Judge Dowdy identified many problems with using Judges to mediate, when there is a surplus of appropriately qualified and accredited practitioners available to assist parties navigate a path to settlement. What creative ways can the mediation profession use to attract the respect and legitimacy that parties are seeking when they prefer senior legal minds to act as mediators of their disputes?

*Note: The decision specifically relates to Judges who exercise the judicial power of the Commonwealth of Australia. The Commonwealth Constitution mandates separation of judicial power and the Commonwealth legislature cannot confer non-judicial functions on Judges except those that are incidental to their judicial function (see Boilermaker‘s case). The situation is different in state jurisdictions (see Kable and Momcilovic cases).

Advertisements

The ethics of 21st century ‘family justice’ research: Invitation to Workshop

The Australian Chapter of Family and Conciliation Courts is hosting its conference in Sydney between 15 to 17 August 2019. ADRRN members are welcome to register to attend the conference. Chapter secretary Jenni Neoh has alerted us to a workshop of particular interest to researchers in family law and family dispute resolution.

AFCC-LogoThe ethics of 21st century ‘family justice’ research, and its application to professional practice

Associate Professor Nicola Taylor, Alexander McMillan Chair in Childhood Studies, Director, Children’s Issues Centre University of Otago, Dunedin, New Zealand, Professor Judith Cashmore, University of Sydney, Sydney NSW.

This full day workshop draws together the combined expertise of three leading international researchers who have undertaken numerous studies on a diverse range of family law issues including post-separation residence and contact arrangements, relocation, international child abduction, children and young people’s views/participation, child protection, out-of-home care, child witnesses and family dispute resolution processes. The researchers will provide a unique perspective on the nuances of ethical research with families, particularly separated parents and their children, and with the family justice professionals who work with them. The workshop explores key ethical issues and complexities that have arisen for them in the research context, but which also have relevance for working with, or representing, children more generally in the family justice context. The benefits and limitations of social science research evidence in family law practice and dispute resolution will also be addressed.

Participating in this workshop is critical for all family law professionals, researchers and academics who want to better understand and discuss the role of research in the family justice field and how it applies to their practice or field. Opportunity will be given to workshop participants to raise ‘ethical’ issues they have grappled with too.

Conflict about Climate Change

Screen Shot 2019-03-15 at 10.51.42 amSchool students are protesting today about the failure of politicians to take serious action in response to climate change. They are calling for action. The Global Strike for Future grew from 16 year old Swedish student Greta Thunberg‘s decision to strike on Fridays outside the Swedish parliament. She has been joined regularly for Friday protests by students in Germany, Belgium, Britain and France. Today’s global protest is happening in 112 countries including Australia. “Pupils from hundreds of schools in over 55 cities and towns across Australia are using the action to call on all politicians to stop Adani’s coal mine, say no to all new fossil fuels and power Australia with 100 per cent renewable energy by 2030.

A protest is obviously evidence of a dispute, in this case between politicians and young people, most of whom are not yet allowed to vote. It is hard for people without a right to vote to persuade democratically elected politicians. The power imbalance between the primary parties to this dispute is obvious. However, if there is, as is expected, a significant turn out in numbers, a strong message will be sent to politicians about what future voters think about their performance on climate change. The dispute has already sparked reaction from politicians in Australia, with the Prime Minister, Deputy Prime Minister, Commonwealth Education Minister and NSW Education Minister all making public statements calling for students to stay in school and not participate in the strike. The Deputy Prime Minister said in parliamentary question time that “the children should be staying in school to learn about Australian history, to learn about Australia geography“. Prime Minister Scott Morrison has called for less activism and more learning in schools. Essentially, none of these responses address the substantive concerns of the protestors, instead concentrating on the right to protest where it conflicts with the policy of compulsory school attendance. Other politicians have supported the children’s right to protest, including the ACT Education Minister.

Another argument raised against the protest is that because the people protesting are children, they are essentially being “politicised” and used by adults to push a political agenda. Students have responded assertively against such claims, reinforcing that they are expressing their own concerns. This argument plays upon the power imbalance between the parties, because the people protesting are being told that their message is less persuasive because they lack capacity to form a truly independent opinion in the way that an adult can.

The dispute has spread well beyond the two groups of politicians and school students who wish to protest. Schools have been divided in their support or non-support of their students attending, media coverage reveals a range of views for and against, and parents and children have been negotiating their way around whether or not they are allowed to or supported to participate.

The opportunities for the application of conflict management and resolution processes in this context are infinite.

  • Within families, the opportunity to engage in meaningful, respectful discussions about the issues of climate change action and protesting about it in school time has been taken in many families. There has potentially been enormous growth in the skills that both children and parents have chosen and developed in these dialogues.
  • Similarly, students, teachers, parents, and school principals have all had the opportunity to discuss the issues, negotiate possibilities, and communicate boundaries within school communities. Thinking about ways to enable different points of view to be expressed, and to manage conflicting opinions, power imbalance, and mass protest must have been an enormous challenge within schools. There is always the choice to use power to say “no”, but the civil disobedience on a mass scale that might follow then also has to be dealt with. It will be interesting to see whether schools take the opportunity for a “teachable moment” to discuss protest, school attendance and climate change action by politicians and ordinary people, and effective ways to manage conflicting points of view.
  • Politicians have an opportunity to decide how to engage with the message that the people they govern are sending them. They could decide to open a conversation, to think critically about how people under the age of 18 can meaningfully participate in political life, and to take a more collaborative approach to the conversation rather than the adversarial “for or against” approach that appears to have been adopted so far.

 

Celebrating Women in Dispute Resolution

Happy International Women’s Day 2019. You may like to flashback to our 2017 International Women’s Day post about gender issues in dispute resolution. This year, I want to celebrate the community building contributions of women dispute resolution practitioners and researchers.

Our Australian Dispute Resolution Research Network is filled with wonderful women, who strive to maintain a mutually supportive, inclusive and friendly community. Women are very well represented among our membership. Many of the prominent scholars in the dispute resolution field are women – we read their work, they supervise(d) our research training, they inspire us. (NB I thought about making a list and decided it would be way too long and could never be inclusive of all the wonderful women DR researchers!). Most of the people who have supported me in my research so far are women. I am forever indebted to them for their welcome, genuine interest, time, care, kindly communicated rigour, and fabulous company. Community is best when everyone makes an effort, and in my own experience, women are particularly adept at building and maintaining community – giving and receiving so much in the process.

In some areas of dispute resolution women appear to face substantial barriers. There is a ‘persistent and severe under-representation of women in the highest levels of international mediation, particularly at the United Nations.‘ By “highest levels” I am guessing the author is referring to the most prestigious and best remunerated international mediation opportunities. The United Nations has recognised that there needs to be equal representation of women as compared to men in international peace building processes. Under-representation of women in international dispute resolution has been given scholarly attention. Attempts to support women’s participation in international level dispute resolution processes include the Women Mediators Across the Commonwealth, a ‘platform for the peer-to-peer exchange and learning of women mediators from across Commonwealth countries.‘ Networks have been created around the globe, to support the participation of women in mediation as a peace building activity. Benefits of networks of women include: improved access to women mediators, best practice development, research and analysis, publication, better consultation with women’s groups, technical expertise, training, confidence building, and inter-generational relationship strengthening.

The example above demonstrates that where there is a will to increase women’s participation in our field, networks can be used to build capacity, confidence, community and profile.

Thank you to all you women in the ADRRN.

 

ADR rountable dec 2018cris 2

[photographs of some of our women members from the December 2018 ADRRN Research Roundtable, University of the Sunshine Coast, Queensland]

OPPORTUNITY: Call for EOIs for ADRAC Council Membership

Network members are invited to apply for membership of The Australian Dispute Resolution Advisory Council (ADRAC). As ADRAC is not funded, Council members must have capacity to pay their own costs and volunteer their time for Council activity. This is an opportunity to contribute to the dispute resolution community. More about ADRAC can be seen at their website.

ADRAC Membership Expression of Interest (pdf call for expressions of interest)

AUSTRALIAN DISPUTE RESOLUTION ADVISORY COUNCIL (ADRAC)

COUNCIL MEMBERSHIP– EXPRESSIONS OF INTEREST

2019 – 2021

Expressions of Interest

ADRAC seeks Expressions of Interest for appointment to its council. In all, seven new members from across Australia, are being sought. Four new members will replace retiring members, and three are sought to expand the Council from 11 to 14 members.

ADRAC

ADRAC is a national, not-for-profit, public interest, independent ADR policy body. It examines ADR techniques, education and standards, and promotes the use of ADR in all areas of dispute. It makes submissions to Governments, law reform and other interested entities, it conducts and publishes studies on aspects of dispute resolution and it promotes the work of those in the dispute resolution field. ADRAC’s existing membership, its Charter and its work may be viewed at http://www.ADRAC.org.au.

ADRAC is generously supported in executive and legal functions by the Australian Government Solicitor and in addition, is currently seeking sponsors.

Members

Members of ADRAC generally have dispute resolution expertise or represent a specific area of dispute management interest. Members are self-funding at present, unpaid and act in the public interest. Appointments are generally for two years but are extendable or reducible as needed.

Requirements currently include two full-day, face-to-face meetings and up to eight, electronic meetings of less than one hour, per year, and committee work that includes active contribution to ADRAC’s activities. ADRAC values diversity and runs on commitment, enthusiasm and creativity, both at meetings and in the work it does.

Applications

If you wish to be considered for appointment to ADRAC, please make a written submission (outlining your relevant experience/expertise and including a current CV) to office@ADRAC.org.au . To be considered, your expression of interest should be received by Friday 8 March 2019.

Final assessment of applications will be made by a group including external advisers.

Inquiries: Please ring Jeremy Gormly SC (Chair of ADRAC) on 0400190953 or 02 92646899.

Where’s the evidence? Service providers’ research activity in family dispute resolution and related services

One of my favourite researcher pastimes is musing how to find better evidence about the experiences, preferences and needs of potential clients of dispute resolution services. How do we know what people want from their dispute resolution experience? There is a great wealth of research data captured by dispute resolution service providers, and those data don’t necessarily always come to the attention of researchers when they conduct literature searches in their habitual ways. Our network has the potential to bring research findings to the attention of people who want to access research about dispute resolution.

evidence

Below are some examples of research projects, data and findings that are publicly available through service providers, specifically relating to family dispute resolution and related services. I hope readers might find some of these useful in their work.

Relationships Australia National Research Network

Relationships Australia is a national organisation that provides a plethora of services in relation to family and other relationships. They use their broad reach to work collaboratively between their various services to conduct research, through their National Research Network. A current project is a longitudinal Family Dispute Resolution (FDR) Outcomes Study, which promises to provide considerable insight into the quality of outcomes achieved in FDR. A brief summary of the findings from a 2012 study into the psychological distress levels in Relationship Australia family support services clients is also published on the website. Each month, Relationships Australia runs an online survey on a particular topic, and the findings of the survey are published. These surveys seek public opinion about various matters, and this might provide useful “snapshot” evidence about likely perceptions of particular processes, for example, child inclusive family dispute resolution.

Interrelate

Interrelate is a not for profit provider of relationship services that specialises in supporting parents and children. It has a healthy culture of research and a dedicated research and service development team, evaluating programmes in-house and in collaboration with research partners. In 2014 Interrelate presented its experiences of establishing a service-based research culture in a conference paper titled Creating a Research-Aware Workforce: Lessons from the Trenches. Publications are available on the Interrelate website. Some of the publications of particular interest to dispute resolution researchers include the 2017 Certifying Mediation: A Study of Section 60I Certificates, in collaboration with the Centre for Social Research & Methods at ANU and co-funded by the Commonwealth Attorney-General’s Department. The 2011 Report on the Study to Improve Understanding of Non-Agreement in Family Dispute Resolution is also an interesting research report, which was conducted by The Australian Institute of Family Studies. Also available are evaluation studies of Interrelate programmes, including:

Legal Aid Services

Back in 2008 KPMG conducted, on behalf of the Commonwealth Attorney-General, an evaluation of Family dispute resolution services in legal aid commissions. Legal Aid Victoria includes research activity as a core part of its business. The following research project reports are available on the Legal Aid Victoria webpage:

Legal Aid NSW published reviews, evaluations and discussion papers that it conducted in-house or commissioned between 2008 and 2015. These include Felicity Bell’s Discussion Paper on Facilitating the participation of children in Family Law processes, and client satisfaction survey results.

Anglicare

Anglicare Sydney have a Social Policy and Research Unit that conducts research and publishes reports on the Anglicare website. These include the 2018 Going it Alone: A Study of Lone Person Households, Social Isolation and Disadvantage in Sydney.

Finding the evidence

Quality research work occurs within service provider organisations. Research supports the field in the evolution of both practice and theory.

For researchers, the impracticality of capturing all of the research findings relevant to their work is an ever present challenge. The dispute resolution field spans all organisations, fields, disciplines and professions. This post focused upon family dispute resolution and related services, only one aspect of the dispute resolution landscape. Future posts might draw together service based and publicly available research related to other topic areas. Please contact me if you would like to volunteer to put together a similar post in your area of specialty.

 

Conflict is fun (?!)… holiday season ideas

The holiday season provides opportunities to spend time with loved ones, to break the ordinary routine, and have some fun. It can also be a stressful time for many people – family conflict can bubble to the surface. It is well known that family law services experience their busiest time over the December/January/February period. Tensions might arise around who will spend time with who and when, unresolved relationship rifts can be brought to a head, people who feel an obligation to attend events together might find themselves facing off, expectations can vary between couples or extended family relationships, disappointments might be voiced in the melting pot of spending intensive time together. The purpose of exchanging gifts as an expression of love can be undermined by the stressful process of shopping and unclear expectations about how much to spend, what someone would like, and navigating the hordes of other people engaged in the same mad pre-Christmas rush. Rebecca Huntley recently observed that:

“Interestingly I haven’t done much research on how Australians feel about Christmas, because it’s often fruitless to conduct focus groups past December 1. Everyone is too busy and cranky to turn up anywhere that isn’t offering free alcohol.”

Without empirical evidence, holiday conflict can be explained through the foundational assumptions of the conflict resolution field. In essence, conflict is an ordinary part of human interaction, and intense periods of interaction inevitably bring conflict.

So why bring all of this up, am I being a Grinch ?grinch-1939350_1920

Hopefully not. One of the best ways to equip ourselves to be better conflict managers is to expect conflict and respond to it mindfully. If our ordinary way of dealing with conflict with someone we love, or to whom we are tied by family, is to avoid or accommodate, then perhaps reimagining whether that approach is sustainable over intense periods of sharing time together can help us to plan to respond differently and constructively. Many of us find it much easier to implement our conflict management training when dealing with colleagues, clients, other professionals, service providers, or authorities than we do with people for whom we care deeply. It is much easier to moderate our behaviour when supporting others to deal with their conflict than it is when dealing with our own. Investing extra effort in managing our conflict interactions with the people we are closest to is challenging and absolutely worthwhile. We talk the talk of “conflict is inevitable, normal, and should be expected”, so let’s walk the walk and expect it. Let’s hold ourselves to high standards, be kind to ourselves and others, and expect not to resolve conflict perfectly all the time. It’s just part of the messy, ordinary, inevitable, beautiful chaos of human interaction and community. As people committed to a better way of managing conflict, we have to accept imperfection and commit to doing better next time.

Here are a few gift ideas too, which may help spread some cheery conflict management competence and enthusiasm (disclaimer – I have not actually used or bought any of these yet):

  1. For children Kinder to grade 6 there is a book called Trouble at the Watering Hole 
  2. Sharon Sutherland’s Gift Ideas to Inspire Conflict Resolution include collaborative games and board games for mediators.
  3. Monique McKay has put together (back in 2011) a suggested playlist to give to the mediator in your life.

Happy holidays to you from the Australasian Dispute Resolution Research Network.