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.

Invitation to participate in ILERA Study Group on Third Party Neutrals in Dispute Resolution

Third Party Neutrals in Dispute Resolution Study Group

International Labor and Employment Relations Association (ILERA)

World Congress 2018

July 23-27, 2018, Seoul, South Korea

This post has been contributed by Professor Johanna Macneil, ADR Research Network member and Assistant Dean, Teaching and Learning, Faculty of Business and Law at the University of Newcastle.

Image of Seoul for ILERA conference, no 3

We would like to invite your participation in the newly-established Third Party Neutral in Dispute Resolution Study Group of the International Labor and Employment Relations Association (ILERA). In particular, we would like to invite you to join us in our first session together at the ILERA World Congress in Seoul in July.

PARTICIPATION IN THE STUDY GROUP

The Third Party Neutrals in Dispute Resolution Study Group is open to everyone interested and involved in labour and employment dispute prevention, resolution, adjudication, arbitration, mediation-arbitration, conciliation and mediation. That includes third party neutrals, practitioners, policy makers and regulators as well as academics. Co-Chairs are Chris Albertyn, mediator and arbitrator, (see http://www.albertyn.ca) and Deputy President Anna Booth of Australia’s federal industrial tribunal, the Fair Work Commission (see http://www.fwc.gov.au).

A small, provisional Study Group Committee of academics and practitioners has been established, before its expansion and formal confirmation at the Seoul ILERA World Congress, 23-27 July 2018.

SCOPE OF THE STUDY GROUP

The Third Party Neutrals in Dispute Resolution Study Group invites everyone interested in how third parties are involved in the prevention and settlement of disputes in the labour and employment field to join us.

Participants in the Study Group may be interested in any or all of the following:

  • the study of labour and employment issues and disputes arising at different levels:
    • at international level (over employment standards, over labour agreements as part of trade agreements);
    • at a national level (between confederations of trade unions and employers);
    • at a regional or sectoral level (between trades, trade union federations and employer
      associations);
    • at an enterprise or plant level (between trade unions and particular employers); or
    • between individual employees and individual employers;
  • all methods used to prevent or resolve those disputes which involve assistance or intervention by a third party, either a court, a state agency or an agreed private resolution mechanism;
  • all types of resolution, that is, either binding and determinative, or advisory, or facilitative, including what are deemed alternative forms of dispute resolution (ADR);
  • remedies available across jurisdictions, and under what forms of labour law, especially when considered in comparative perspective;
  • all types of outcomes sought or achieved which, along with the resolution of a dispute, may include effects on relationships, individual, group, organisational, industry, or societal measures;
  • comparative study, looking at differences in the methods of dispute resolution, and in the varieties of institutions in different jurisdictions and countries used to prevent or settle labour and employment disputes; or
  • any other new or emerging issues in relation to the work of third parties in the labour and employment field.

ILERA WORLD CONGRESS

The initial opportunity to pursue these studies and discussions will be at the ILERA World Congress in Seoul July 23-27, 2018 

Session in the formal program, 24-27 July
We will have a session allocated in Seoul during the formal program, at which some papers will be presented on the role of the third party neutral. If you would like to present a paper in our organised session, please send an abstract, consistent with the guidelines on the conference website, by NO LATER than 25 January 2018, to our academic co-ordinator Professor Johanna Macneil at Johanna.macneil@newcastle.edu.au, copied to the co-ordinator of the study group,
Chris Albertyn at chrisalbertyn@icloud.com.

Meeting of the Third Party Neutrals in Dispute Resolution Study Group
We will also arrange an opportunity to discuss plans for future meetings of the Study Group, for continued interaction between practitioners and academics on areas of common comparative interest. Even if you don’t have a paper for this conference, we would warmly welcome your ideas about participation in the future. (Please note, this will be arranged at a convenient time during the formal program, not on 23 July when other study group meetings are held.)

More information
More information about the Seoul conference is provided via the ILERA 2018 website. If you have any questions about the study group activities, please email Chris Albertyn or Johanna Macneil.

Regards
ILERA Third Party Neutrals in Dispute Resolution Study Group

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The importance of the intake process in workplace disputes

Pauline Roach.pngThis post was written by Pauline Roach and is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017. Pauline was involved closely in the development and implementation of the system at the Roads and Maritime Services of New South Wales described here.

 

 

This post provides an overview of the dispute resolution program developed and introduced at the Roads and Maritime Services (RMS), formerly the Roads and Traffic Authority of NSW. In 2003, a review of the organisations’ grievance policy was undertaken.  Following this review the organisation sought to develop a corporate culture where the principles of alternate dispute resolution (ADR) could succeed and were accepted by staff.  The aim was to assist in the early identification, management and resolution of workplace disputes.

The current literature supports the view that workplace dispute resolution is more effective when it is supported by the whole organisation rather than used in a one off context.  (Sourdin T. 2016; Astor H, Chinkin C 2002; McKenzie D 2015; Saundry R, Latreille p, Dickens l, Teague P, Urwin P & Wibberley G 2014). The RMS system was a good example of a whole of organisational dispute management strategy.

At RMS, a tailored dispute resolution strategy was developed for each dispute. The most appropriate dispute resolution intervention was applied after a preliminary assessment. Mediation was one of a package of ADR tools, policies and procedures which were integrated into a range of human resource policies. The available dispute management strategies included: the disputants, manager and/or workgroup participating in conflict coaching (pre and post mediation), dispute counselling, mediation, referral to human resources for advice, or referral for legal advice.

Prior to any dispute resolution intervention a detailed intake interview was conducted. The intake interview was conducted seven to ten days prior to the dispute resolution process to which the matter would be referred.  Intake was a critical component of the dispute resolution strategy. The intake interview was divided into two significant sections: one to gather information from the organisations’ perspective and the other to prepare the disputant to fully participate in the dispute resolution process.

  1. ORGANISATIONAL PERSPECTIVE

From the organisations’ perspective it was important to establish the following:

  • is dispute resolution appropriate?
  • are the issues a breach of policy or current legislation?
  • should the matter be referred to human resources for investigation and / or disciplinary action?
  • What previous action has the organisation taken to resolve the issue?

The intake process involved interviewing the disputants, the manager and possibly the union representative to obtain a history of the dispute.  This also provided an opportunity to begin considering the most appropriate dispute resolution practitioner for the matter.

  1. DISPUTANTS’ PERSPECTIVE

From the disputants’ perspective the intake process:

  • obtain a history of the dispute;
  • identify the people involved;
  • build a rapport with the disputants and reassure them that the ADR practioners do not take sides;
  • introduce the concepts of dispute resolution and ensure they understand the dispute resolution process;
  • assist the disputants to focus on outcomes;
  • reality check outcomes or do the disputants just want to punish the other person;
  • identify factors that may prevent resolution – power imbalance between the parties, is there a threat of violence?
  • Gain agreement on date, time and location for the session.

The intake process intended to increase the likelihood of the ADR intervention succeeding.  It aimed to ensure that the disputants understood the process, had the information they needed and that the right people were sitting around the table. It required an organisational commitment to allow participants the time to engage in a thorough intake process.

Over a nine year period RMS developed and implemented a holistic dispute resolution process, with a rigorous intake process. Mediation was part of a system of dispute resolution tools that were integrated into a wide range of the organisation’s policies. Resolution of workplace disputes requires a strategic and explicit cultural change rather than a piece meal approach. The intake process is a critical tool in achieving this.

Keeping up with change: No Alternative to teaching ADR in clinic. An Australian perspective

This post was written by Jacqueline Weinberg from Monash University and is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017

Jackie Weinberg

Over the last 30 years alternative dispute resolution (ADR) has become more prominent in Australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. There is a shift away from adjudicative or determinative processes and towards more cooperative processes for dispute resolution.[1] The rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few in society.[2] The incapacity of these structures to resolve conflict, although they may determine rights, has been a relevant factor in the development of alternative options for dispute resolution.[3] Clearly, Australian legal practice is undergoing change. As legal educators, we need to ask: how should we be preparing law students entering practice for these changes? How can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution?

Richard Susskind in his book Tomorrow’s Lawyers [4] states that law schools cannot ignore future practice and law students should be provided with options, to study current and future trends in legal services and to learn some key 21st century legal skills that will support future law jobs.[5] ADR is a growing area of legal practice resulting in changes in models of client service and advocacy.[6] The issue then is how best to prepare the young lawyers for these changes. According to Sourdin, legal academics (and law schools) play an essential role in the training and education of lawyers and in interpreting these changes.[7] Sourdin sees legal education and training as ‘a continuum along which the skills and values of the competent lawyer are developed.’[8] There is a need to explore whether clinical legal education is taking these changes on board and moving away from teaching traditional adversarial models towards teaching a more ADR skills based curriculum. There is a need to look more closely at whether the ‘interconnect’ between the teaching and practice of ADR is in fact happening in clinics; if so, how this teaching is happening; including an examination of clinical curricula. If it is established that this teaching is taking place, then research needs to be done to determine in what ways this teaching can be enhanced in the clinical context and whether it is contributing to students’ knowledge of non-adversarial approaches towards conflict resolution.

According to Sourdin, ‘changes to the law school education environment supporting ADR in a realistic, rather than marginal way should mean that there is a greater chance that law school education in Australia into the future will be both relevant and supportive of respectful dispute resolution in its traditional and alternative forms.’[9] Clinical scholars view clinical legal education as a method of learning and teaching law.[10] It includes teaching about skills as well as the broader legal system.[11] ADR has become a part of the legal system both in Australia and internationally. If clinical legal education is to teach students about the skills needed for practice then it follows that a focus on the teaching and learning of ADR skills is needed. Extensive research has shown that ADR has an important role in legal education. It places emphasis on a non-adversarial process of resolving conflict and provides lawyers with the knowledge and skills to engage with legal problems in a holistic manner. Law students engaged in clinical practice who understand and adopt these processes will become lawyers who focus first on client’s needs and interests when problem solving and resort to adversarial practice only when necessary. In this way, clinical legal education can ensure that law students are well prepared for their roles as ‘new lawyers’ in 21st century legal practice.

My PhD research is focusing on whether ADR is being sufficiently taught to students in existing clinical legal education courses in Australia. My research explores whether and to what extent ADR is integrated into clinical legal education across Australia and how the teaching of ADR within clinics might be strengthened. Although this research is primarily undertaken at Australian clinics, it will assist with learning and teaching strategies in relation to clinical legal education as a whole and has relevance for all clinical legal education contexts. This research will assist with curriculum review in relation to clinical legal education in law schools.

 

[1] Tania Sourdin, Alternative Dispute Resolution  (LBC Thomsons, 5th ed, 2015) 13

[2] Ibid 12

[3] Ibid.

[4] Susskind R, Tomorrow’s Lawyers, 2013, Oxford University Press 135

[5] Ibid.

[6] Macfarlane, J The New Lawyer: How Settlement is Transforming the Practice of Law

(UBC Vancouver 2008 Macfarlane, 243

[7] Sourdin, above 1 5

[8] Ibid.

[9] Ibid.

[10] Evans, A, Cody, A, Copeland A, Giddings, J, Noone M.A & Rice S, Best Practices

Australian Clinical Legal Education Office of Teaching and Learning 2013 40

[11] Ibid 41

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.

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.