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.

Assessment of suitability for family dispute resolution

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

Introduction

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

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

Background

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

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

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

Rationale

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

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

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

Relationships Australia Tasmania

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

Research Questions 

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

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

Methodology Summary

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

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

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


WHAT MAKES A GOOD ARBITRATION LAW? THE AUSTRALIAN EXPERIENCE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ADRRN 2019 Wrap Up

Happy end of 2019 to all our followers!

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

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

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

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

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

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

Roundtable Wrap Up and Handover of Leadership Roles

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

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

Papers presented and discussed

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

Handover of Leadership Roles

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

These changes have been reflected on our About page.

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

When is the next Roundtable?

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

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

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

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

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

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

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

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

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

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

F2F negotiation is preferred for two main reasons: 

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

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

Here are some ideas for future research: 

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

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

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

ADRRN Roundtable 2019 – you can join in via Twitter

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

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

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

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

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

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

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

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

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

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

Click here to learn more and to register.

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

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