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.

Challenges and opportunities identified through an attempt to systematically capture DR research reports

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.

word cloud my presentation notes

The aim of my project is to identify hidden knowledge about methods that do and don’t work in capturing data from end users (clients) of dispute resolution processes. If we are serious about measuring the quality, effect, and experience of DR, then we need to gather data from the people for whom these services are provided. There are, however, many challenges to gathering that data, which I explored in the earlier stage of my research project at the 2016 Roundtable. Some of these challenges are related to the DR process itself – an often stressful experience about which clients may be (a) unwilling to speak about for research purposes or (b) unable to reflect upon dispassionately. There are barriers of ethics, reliance upon third parties to gather data, and then for service providers who gather data routinely, there are often limited resources to actually systematically analyse that data.

At the 2017 ADRRN Roundtable I reported the next stage of my project. Since the 2016 Roundtable I have engaged a research assistant to conduct a systematic literature review, reworked my proposed interview questions, and conducted some pilot interviews with DR researchers about their experiences gathering data from end users / clients. This post will focus upon what I learnt through the attempt to conduct a systematic literature review.

An account of a systematic literature review

I set out to gather relevant literature through a systematic approach that was designed to capture research conducted in Australia that involved the gathering of data from end users/ clients of DR processes. I enlisted the assistance of my law librarian and met with her and my research assistant to design the systematic literature review. A variety of databases and search terms were used. I wanted to have confidence that this would identify all of the relevant research reports that already exist. The main problem that I have faced is that the “systematic” review simply hasn’t identified all of the relevant literature. I am aware of some resources that I identified earlier in the project (through non-systematic searching) and also reported in the appendix of Tania Sourdin’s Alternative Dispute Resolution (Thomsen Reuters, 5th ed, 2016), which were not captured. My research assistant found that the search terms that we had planned often failed to limit results to material that met our criteria of Australian research in the DR area that included data gathered from clients / end users. He spent a lot of time wading through material that did not meet our research criteria. The result of the review was that 43 relevant reports of research were identified.

On reflection, there are a number of possible reasons why the “systematic” review conducted in accordance with the conventions of traditional legal academic research has not achieved the result that I hoped to achieve.

  1. The database searches privileged peer reviewed journal articles. Not all DR research involving data from clients / end users is published in peer review journal articles. It is likely that most of the data gathered from DR clients / end users is not gathered or analysed by academics. Non-academics are unlikely to be motivated to publish in peer review journals, which mostly sit behind paywalls. Instead, open access self-publication, reports to funders, and internal reporting are likely to be frequent destinations for research. These kinds of publications were not captured by the systematic review.
  2. There is possibly a wealth of client / end user data being collected, but much of it is either not analysed at all or only analysed for confidential purposes. Most service providers conduct research to capture feedback from their clients. These data may never be systematically analysed and even when analysis occurs, there may be no public output from the research. “In house” evaluations may be conducted for purposes of quality assurance, reflective practice, and performance management. These purposes are not enhanced by making research results available publicly, and commercial interests may be compromised by publishing client feedback data.
  3. Even where DR research is published in peer review journals, there are few discipline specific publication destinations (particularly those considered by universities to be prestigious), resulting in a scattering of publications. It may be difficult to locate relevant literature because DR researchers publish across a broad spectrum of publications. Each journal has its own preferences in relation to reporting of research method, language and style. This could potentially have affected the ability of the systematic approach to capture all relevant literature.

The purpose of locating existing research reports was so that I could review the methods of recruitment of DR clients / end users and data capture that researchers have used. In the literature that I have identified so far, although relevant data were used as a foundation for the findings reported, the method of recruitment of participants and capturing of the data were not always explained. This possibly reflects the tradition in legal research of not reporting methods clearly, and the preferred style of some journals, which have strict word limits and may not value detailed accounts of research method. Often research reported in peer reviewed journal articles is reported in greater detail in non-peer reviewed reports. These were not always readily available when I tried to locate them.

Next steps

It is clear that there is a vast amount of grey literature available that is not necessarily captured through subscribed databases. My next steps will involve new search strategies that will capture a broader range of literature. My pilot interviews and interviews with DR researchers about their experiences capturing data from end users will also be an opportunity to identify research reports that may not have come to my attention through my searches.

My reflections on the data that remains hidden within organisations has caused me to wonder how those of us in academia can better engage with industry. DR service providers are often able to achieve very high response rates that are difficult for independent researchers to achieve. I believe that there are opportunities for academic researchers to build better working partnerships with industry, with all parties exploring the skills and resources that they can offer one another.

The experience has also highlighted a need for a comprehensive, well funded clearing house of DR research reports, which would provide a portal through which prior DR research can be more readily located. A significant initial investment would need to be followed by funding for ongoing maintenance, but there could be great benefits to clients, practitioners, organisations and researchers working the DR field. I am percolating ideas about how to pursue this idea and would welcome any offers of assistance.

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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.

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!