About Professor Lisa Toohey

Lisa Toohey is a Professor at the Newcastle Law School in New South Wales Australia. Her full profile is online at www.newcastle.edu.au/profile/lisa-toohey

What do ‘lay’ people know about justice?

Justice League Entrance

This post is from Charlie Irvine, from the University of Strathclyde in Glasgow, where he is the Course Director on the LLM/MSc in Mediation and Conflict Resolution.  Charlie’s profile is online at https://www.strath.ac.uk/staff/irvinecharliemr/ 

This post is based on his recent publication in International Journal of Law in Context [1]
Image: “Justice League Entrance” by cogdogblog is licensed under CC BY 2.0

 

In June 2017 I travelled from Scotland to attend a symposium on ADR and Justice at La Trobe University, Melbourne.  Being midway through a PhD it seemed an unmissable opportunity to meet other researchers ploughing the same furrow.  It certainly was, and I’m grateful to Lola Akin Ojelabi and Mary Anne Noone for organising it, but in academic life exciting foreign travel usually comes at a price. Three years later they are both to be congratulated for inspiring, editing and contributing to a special edition of the International Journal of Law in Context. I describe my contribution below.  

‘Lay’ people

University teachers faced with marking hundreds of papers have been known to find some crumbs of comfort in students’ more eccentric answers.  I’m not immune to this guilty pleasure, recently learning that ‘another form of ADR is arbitrary.’  More seriously, I am sometimes struck by a common theme among first year law students.  Here are three examples:

‘One of the major drawbacks of mediation is that lay people are in control of justice.’

‘Lay individuals are not capable of concluding rationally justified outcomes.’

‘How will a lay person truly know what is right and wrong if they have no in-depth knowledge of the law?’

However crudely put, these remarks suggest that a few months of legal study are sufficient to persuade young people that the rest of humanity (‘lay’ people)  lack the capacity to achieve or even reason about justice.

When lay people are the decision-makers: mediation

For those of us who practice mediation these sentiments are frustrating.  My clients seem to do a great deal of thinking about justice, and are quite capable of rejecting economically advantageous settlements if they view them as unjust or unfair.  Justice, or resisting injustice, can trump self-interest.

It is not only students who question whether mediation can deliver just outcomes.  A good many lawyers and judges are mediation sceptics and a thriving cottage industry within legal scholarship is devoted to demonstrating its shortcomings.[2]  Even supporters of mediation tend to stress other benefits like cost, speed and good process, leaving justice well alone.

However, academics like a gap because our research can fill it.  A review of the critical literature highlights a gap in our understanding of mediation.  While a lot of attention has been paid to settlement rates, satisfaction, mediator behaviour and procedural fairness,[3] very little research focuses on parties’ reasoning about justice.  And yet each time a case settles both sides must have good reasons for doing so.  What can we learn from their thinking?  I was particularly interested in mediations with unrepresented people, given that represented parties may well defer to their legal advisors.

The research

Scotland has not been particularly receptive to mediation. Some of our most prominent judges have made pointed speeches praising litigation and decrying anything that might divert cases away from the courts.[4]  At the small claims level, however, things are more open and mediation schemes have been operating in the country’s two largest courts since 1999 and 2014 respectively.  These presented an opportunity to interview mediation consumers who experienced relatively little legal or judicial endorsement of the process.  In the end I interviewed 24 people; the article is based on my initial analysis of five interviews.  Qualitative research is less concerned about large, representative samples than in-depth exploration of a complex topic.

Findings

Participants were keen to discuss their thinking.  Not being repeat players in the courts the experience of mediation left a vivid, if not always pleasant, memory.  When asked about what they sought or why they settled they rarely mentioned the law.  However, they expounded a number of themes lawyers will recognise, either as legal doctrines or aspects of practical lawyering.  These included:

  • Restitution – ‘I’m quite happy to take … not be out of pocket from what I intended’
  • Punishing bad behaviour
  • Teaching someone a lesson – ‘he needed to learn that he can’t just get away with things’
  • Holding businesses to account – one participant regretted mediation’s privacy and wished for an ombudsman
  • Pragmatism and tactics – assessing your adversary’s strengths, weaknesses and stubbornness
  • Risk – when you go to court, it’s a 50/50, there’s no guarantees’
  • Empathy for the other party
  • The urge to be, or be seen to be, a fair person (see next paragraph).

Self-presentation[5]

Interviewees are not impartial reporters, and Barnett Pearce warns researchers to watch out for the work language is doing: ‘The world is made, not found.’[6]  An interview is a unique social event and it is reasonable to ask why participants chose some themes and not others.  What were they up to?  What did they want me to understand?

I noticed most tended to answer a question I hadn’t asked: ‘What kind of person are you?’  They seemed particularly keen to portray themselves as fair; e.g. I’m fair … it’s my personal position, you know what I mean’ or I said, this is where I will meet and I said, I think this is fair.’   This self-presentation may play an important role in mediation’s success.  People generally[7] want to see themselves as fair; they probably want the interviewer (me) to see them as fair; and there is a good chance they would also like the mediator to see them as fair.  Perhaps this is why mediation’s success rates and compliance are often greater than sceptics anticipate.

Conclusion

I am not suggesting that these non-lawyers had suddenly developed the capacity for legal reasoning.  Rather, my goal was to counter the reflex dismissal of non-lawyers’ capacity for justice.’[8]  This research reminds us that law and justice are not identical.  A lack of training in legal reasoning does not necessarily mean a lack of interest in or capacity for justice reasoning.

What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated.  It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.

Paying more attention to ordinary people’s justice reasoning may provide valuable clues about the sort of societal norms on which any legitimate legal order must be based.  In the article I argue that theories of justice would do well to take account of this reasoning, proposing that natural law theory’s emphasis on human rationality explains mediation outcomes better than legal positivism, with its emphasis on state backed rules.  Far from being one of mediation’s drawbacks, giving lay people a voice in justice may prove one its most important contribution.

References

[1] Irvine C, ‘What Do “Lay” People Know About Justice ? An Empirical Enquiry’ [2020] International Journal of Law in Context 1-19, DOI 0.1017/S1744552320000117

[2] I summarise the main themes in the article, pp. 2-7.

[3] For example: Charkoudian L, Eisenberg DT and Walter JL, (2017) ‘What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court’ 35 Conflict Resolution Quarterly 7-45

[4] See Irvine C, (2012) ‘Scotland’s “Mixed” Feelings about Mediation’ SSRN e-library https://ssrn.com/abstract=2713346

[5] Goffman E, (1959) The Presentation of Self in Everyday Life (London: Penguin Books)

[6] Pearce WB, (2006) ‘Doing Research From the Perspective of the Coordinated Management of Meaning (CMM)’ Available from: https://www.taosinstitute.net/Websites/taos/files/Content/5692988/Overview_of_CMM_in_Research_version_2.0.pdf  (accessed 10 June 2018), p. 7

[7] At least as far as these unrepresented people were concerned.  I interviewed two legal professionals later in the study, and both appeared to regard fairness and justice as puzzling and none of their business.

[8] Irvine 2020 (n. 1) p. 1

New Milestones for the Australasian Dispute Resolution Research Network

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It is now nearly five years since the Australasian Dispute Resolution Network blog was founded in late 2013.

Since that time we have now built up a loyal following of over 10,000 readers, plus additional subscribers through our Twitter presence.    To all of you who have supported us, thankyou!

Associate Professor Becky Batagol, who has served  tirelessly as our Editor-in-Chief for the past five years,  has handed stewardship of the blog to another long-time supporter of the Network,  Dr Olivia Rundle.

As always, the blog remains the primary means of communicating the work of the Australasian Dispute Resolution Network.    We consciously do not maintain any other burdensome administrative structures, such as a formal membership structure or mailing lists.  You can read more about our policies here.   We welcome and encourage participation from anyone wishing to disseminate research about dispute resolution and especially encourage PhD students and emerging academics to participate – and we are not limited to Australasia.   If you would like to become a guest blogger, or a permanent member, please contact Olivia.

We look forward to this next phase of evolution for the Network and the blog,  thank Becky for her hard work and welcome Olivia!

Show me the money! The new Australian Financial Complaints Authority

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In just a few weeks, the three pillars of Australia’s financial dispute resolution architecture will be rolled into a single new body – the Australian Financial Complaints Authority (AFCA).

From 1 November 2019, AFCA will replace the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman (CIO) and Superannuation Complaints Tribunal (SCT).

As the AFCA website explains, the body will be funded by its members – i.e. Australian financial providers – with the amount payable by a particular provider being a combination of a base subscription and usage based charges.  This is a mechanism common to industry-funded schemes, and is designed to promote effective internal dispute resolution by providers, and ensures that complainants (consumers and small businesses) can access the scheme free of charge.

The jurisdiction and powers of AFCA are set out in its Scheme Rules.  One notable, and beneficial, feature of AFCA is its power to deal with systemic complaints alongside individual disputes, to order that changes be made, and to report AFCA’s findings to government bodies such as ASIC, the ATO and APRA (the Australian Prudential Regulation Authority).

Dispute resolution practitioners may also be interested to know that AFCA has advertised a number of positions at various levels in both Sydney and Melbourne.  Details here.

Image:  Pixabay, licensed for free commercial reuse.

Dispute resolution in the age of information – understanding the legal information experience

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We are said to live in the ‘age of information’, with a vast volume of possibly relevant information available to us for every single decision – from the purchase of an everyday item to the resolution of a complex family dispute.    This has led one commentator to remark  that this large amount of information makes us “like a thirsty person who has been condemned to use a thimble to drink from a fire hydrant.”[1]

Training and experience helps to enable lawyers to  identify information that is current, relevant to the jurisdiction, and authoritative.  However, how do unrepresented parties make sense of legal information?

This was the key research question in a project undertaken by myself and an interdisciplinary group of colleagues.   Funded by the Australasian Institute of Judicial Administration,  we examined how unrepresented parties involved in disputes engage with the information that they need to make sense of their legal rights and responsibilities.

The results of that research have been published in a series of forthcoming articles, including most recently in volume 27(4) of the Journal of Judicial Administration:

Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, “Understanding the Legal Information Experience of Non-lawyers: Lessons from the Family Law Context” 27(4) Journal of Judicial Administration 137.

What is “legal information experience”  and why does it matter?

Research into legal needs is not a new phenomenon – and it typically focusses on the prevalence of particular types of legal problems, the interaction between different types of legal problems, and the consequences of legal problems for the wellbeing (physical, mental and financial) of individuals.  An excellent example of  this type of research is the large-scale legal needs survey work of the Law and Justice Foundation  of NSW.

“Legal information experience” can be categorised as a subset of legal needs research, but it differs from much existing work on legal needs in its focus and methodology. While some legal needs studies may also consider the role of information, such as the sources that individuals have consulted in order to address their needs, this is usually from a perspective of satisfaction with the available options.

Research into the legal information experience, by contrast, focuses on the lived experiences of people accessing legal information, including how they locate sources of information, engage with those sources and use them to understand their situations.   It uses  a qualitative, interpretive research method based on in-depth interviews with a smaller sample of participants.  This approach is used to gain a detailed understanding of a participant’s unique perspective and to reveal the meaning of the experience from their point of view.[2] It therefore represents a useful complement to larger legal needs surveys in unravelling the complexities of how to best facilitate access to justice.  

Our study of legal information experience identified five key issues:

  1. Complexity: Parties struggle with the complexity of the information experience;
  2. Credibility: Parties have difficulty in assessing the credibility and reliability of sources of information and the information provided;
  3. Preferences: Parties indicate clear source preferences, which are not the same preferences that lawyers might expect;
  4. Application: Parties have difficulty applying the information retrieved from various sources to their individual situation; and
  5. Language: Parties tend to use language that is no longer reflected in family law legislation or practice.

Each of these aspects of  legal information experience has implications for how legal information can be provided, communicated and interacted with by both experts and non-experts alike.  It also offers insights into how to optimise interactions between experts and non-experts.

In subsequent blog posts we will expand on these findings  and the implications for dispute resolution practitioners, lawyers, and others involved in the communication of legal information.

 

 

Footnotes

[1]RS Wurman, Information Anxiety 2 (Que, 2001) 15

[2]S Kvale and S Brinkmann, InterViews: Learning the Craft of Qualitative Research Interviewing (SAGE, 2nd ed, 2009).

 

Image Credit: wuestenigel (https://www.flickr.com/photos/30478819@N08/30155035707/) Flickr via Compfight (http://compfight.com) cc (https://creativecommons.org/licenses/by/2.0/

Save the Date: 7th ADR Research Roundtable 2018

Please consider saving the date for the 7th ADR Research Roundtable, which will be held at the University of the Sunshine Coast on 3-4 December 2018.

A call for papers will be issued closer to the date.   Early Career Researchers and PhD students are particularly encourage to participate – the Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics.

A Watershed for Arbitration? – entry into force of the Mauritius Convention

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On 18 October 2017, the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014) (the “Mauritius Convention on Transparency”) will enter into force.     Current signatories include Australia as well as many of Australia’s major European investment partners, as well as the United States.

What is the Mauritius Convention?

The Mauritius Convention, as its name suggests, is designed to ensure transparency in the investor-state arbitration process (not any other types of arbitration, such as international commercial arbitration).

The Convention (or more accurately, the UNICITRAL Rules adopted by the convention) is ground-breaking because it represents a major shift away from the traditional model of arbitration being a private, confidential process.    Like most forms of arbitration, investor-state arbitration has previously been undertaken predominately in private, with no guarantees of public access to information about the dispute, the arguments, or even the award and reasons.   While this may be understandable in the case of private arbitration between commercial parties, the nature of investor state arbitration is different.    Because of the nature of the dispute – a disagreement about the treatment of a foreign investor by a host state –  there are generally important issues of public policy at stake.

For example, many Australians first heard of investor-state arbitration following an ultimately unsuccessful claim against Australia by Philip Morris (Asia) via an investment agreement between Australia and Hong Kong, seeking compensation for the impact of  Australia’s plain label packaging laws.   In other cases, investor-state disputes have arisen as a result of environmental measures, public health measures, and even anti-discrimination provisions in post-Apartheid South Africa.   As a result, investor-state dispute resolution has received quite a lot of negative publicity, and many states are retreating from the system of investor-state arbitration by terminating international agreements.

The Convention operates by giving ‘teeth’ to the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.  These Rules, although they do contain exceptions, provide three main types of transparency in arbitrations to which they apply:

  • Open hearings:  Hearings are to be made public, with the arbitral tribunal to make arrangements to facilitate public access to hearings.
  • Amicus curiae/third party submissions:  formalising  the right of arbitral tribunals to receive relevant amicus curiae and other third party submissions.
  • Publication:  Submissions and awards must be made public.

 

When does it apply to Australia?

The entry into force of the Mauritius Convention has taken place pursuant to Article 9 of the Convention – six months after the ratification of three signatories.    However at the present time, the convention only applies to disputes between Canada, Mauritius and Switzerland.  In Australia, implementing legislation is currently before Parliament. However, in time, most signatories can be expected to complete the ratification process according to their domestic laws.  However even prior to ratification, parties to an Investor-State arbitration can still agree to the voluntary application of the provisions.

 

A Watershed for Arbitration?

To those used to the context of domestic litigation, these sound like trivial changes, but they represent a great leap forward for transparency in investor state dispute settlement.  Some commentators have even considered that the convention may  lead to a change of culture in relation to arbitration more broadly.

China’s Diversified Dispute Resolution System by Dr Bin Li

Image: Supreme People’s Court, China.  Image from Wikimedia Commons

Today’s post is a piece by Dr Bin Li,  a lecturer at Newcastle Law School Australia.

The large population of China presents unique challenges for access to justice.  With a population approaching 1.4 billion people, there are around 11.5 million civil cases per year, according to the statistics of the Supreme People’s Court of China (‘SPCC’).  [1]

The idea of diversified dispute resolution ( ‘DDR’) was first put forward in 2004 by the SPCC as part of a parcel of reforms designed to advance access to justice[2], with the SPCC urging lower-level Chinese courts (People’s Courts) to develop capacity in mediation and give greater recognition to arbitration.  Further, the Supreme People’s Court called for collaboration and joint development of the DDR model with other entities and organisations external to the people’s courts.

At the time of these announcements, the SPCC had not provided a clear definition of the concept of DDR.  This was subsequently articulated in 2014 by the Fourth Assembly of the Eighteenth Central Committee of China Community Party in its Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the law Forward,.  In that document, the  DDR was defined as an organic and coordinated dispute resolution system comprising mediation, arbitration, administrative adjudication, administrative review, litigation and other processes.

Arguably, therefore, DDR has some similarities with the systems of alternative dispute resolution  as it used in Western courts, but also some significant differences.   They have in common the prominent use of mediation as key process, and recognition of the role of arbitration.  However, DDR has a more expansive definition in that it encompasses other dispute resolution processes, including administrative review; the second and a more significantly, is that DDR is intended to operate as a coordinated and court-controlled system.

Thus,  the creation of the  DDR system has become an integrated part of judicial reform in China and an important task for a range of Chinese government entities at provincial and national level, including administrative departments for justice of local governments, which  regulate  the system of people’s mediation[3], along with the Supreme People’s Court a nominated by the Chinese Communist Party to take the lead in this process.

From 2014 onwards, the SPCC has actively encouraged lower level people’s courts to speed up their development of the DDR system,  and People’s courts have responded with measures such as the implementation of mandatory mediation programs prior to disputes being admitted to the litigation process. This is a very encouraging news for mediation in China as in the past, people’s courts had only used mediation during the litigation process rather than prior to litigation. Now the practice is that before the dispute is accepted by people’s courts to litigation, the people’s courts will aim to solve it before proceeding to litigation.

To achieve such an aim, the people’s courts have established  Coordination Centres for Mediation and Litigation (“CCML”). During this pre-litigation mediation process, CCMLs usually invite people’s mediators to participate and help with the settlement, and when acting in this capacity, these mediators are known by a term that means ‘specially invited mediators’.  This distinction is interesting as  People’s mediation is separate from mediation provided by people’s courts during the litigation process and it is provided and undertaken by administrative units of departments for justice at provincial level. in .  Therefore, by inviting people’s mediators to the pre-litigation mediation process conducted by the CCML, the people’s courts have started to explore the way where mediation can be more utilised while the relationship between mediation and litigation can be carefully dealt with.

Challenges in Implementation

There are, however, some barriers for the people’s courts to get over in order that the completion of DDR can be achieved.

First and foremost, there is an absence of domestic legislation defining the leadership role of SPCC. The aspiration is to have As its definition suggests, the DDR is an organic system focusing on the coordination of various dispute resolution approaches. It is therefore important to have a lead agency to oversee and coordinate reforms. In this respect, though SPCC has been nominated by CCP to take the lead in the reform, there is no legislation confirming such a leading role taken by the SPCC. The subsequent problem would be how SPCC could smoothly coordinate the reform where the functions of government are involved, such as people’s mediation.

The second difficulty is related to the unsuccessful practice of people’s mediation. In China, people’s mediation is a process where a people’s mediation commission persuades the parties concerned to a dispute into reaching a mediation agreement on the basis of equal negotiation and free will and thus solves the dispute between them. Also, according to the law, Ministry of Justice is responsible for people’s mediation nationally, with provincial justice departments taking responsibility for guiding the people’s mediation within their respective administrative regions. The 2010 People’s Mediation Law was designed to make mediation a key process for the resolution of civil disputes, and to ameliorate the workload of the  people’s courts. However, evidence shows that people’s mediation has not worked as well as expected, which appear to be due to a range of factors, including the public having little interest and confidence in mediation.  For example, there is no accreditation system for people’s mediators whose quality therefore cannot be guaranteed. [4] In addition, one cultural factor possibly undermining the public’s confidence is that Chinese people would rather trust judges than the people’s mediators who they don’t know at all.

Thirdly, the use of CCMLs presents particular challenges. In people’s courts,  judge are usually involved by guiding the mediator’s work. However this involvement presents particular issues if the dispute is not resolved through mediation.

The first option would be for the judge involving in the previous mediation to hear and decide. In this case, it may be possible for the judge to exert pressure on the parties to settle their disputes in mediation. In addition, since the judge has already known the case, it is questionable whether that judge is still an appropriate person to try the case. The second option is that the dispute will be registered as a case and resolved by a different judge, which will then prolong the resolution of the dispute.

This piece has presented a short perspective of the opportunities and challenges in creating a DDR system in China.   There are interesting parallels between the experience in China, but also unique challenges.   In China, as elsewhere, the key to making this court-led system effective is to identify how the DDR can be effectively integrated into the workflow and procedures of already busy courts.  In this respect, a nationally accredited system for people’s mediators will help establish the confidence of the public. It is also vital for SPCC to lay down some specific rules on this court-led reform, such as whether the judge already involving in the pre-litigation mediation is still eligible for hearing the case provided that the dispute has not been resolved by mediation. A related question also needs to be answered being whether the information disclosed in mediation can be used in the subsequent litigation. So far people’s courts in different provinces could have different answers to these two questions and it is the right place for SPCC to step in.

[1] https://supremepeoplescourtmonitor.com/tag/china-court-statistics-2015/

[2] Notice of the Supreme People’s Court on Issuing the Second Five-Year Reform Outline for the People’s Courts (2004-2008).

[3]http://www.cspil.org/Uploadfiles/attachment/Laws%20and%20Regulations/[en]guojifalvwenjian/PeoplesMediationLawofthePeoplesRepublicofChina.pdf.

[4] Art. 14 of People’s Mediation Law only provides that the people’s mediators shall be adult citizens with ‘certain level of culture, policies and legal knowledge’.

Apology in Victim Offender Mediation

This is a guest post by Professor Mandeep K Dhami, PhD. who is Professor in Decision Psychology at Middlesex University, London. Her research focusses on questions of human judgment and decision-making, risk perception and risk taking, and understanding and communicating uncertainty.

Victim–offender mediation practices bring conflicting parties together so they can engage in a two-way dialogue and ultimately negotiate a mutually agreeable resolution. The fact that apology may be a motivator for participating in the mediation process and that it is often a common outcome of mediation suggests that research on mediation ought to more carefully explore the nature of the apologies that are offered. Dhami’s (2015a) study provides a qualitative exploration of the prevalence and nature of the apologies offered by offenders to their victims during face-to-face mediations. Fifty-nine mediation agreements recorded by the longest running mediation scheme in the UK were analysed. It was found that 50.8% of agreements contained mention of the perpetrator saying ‘I’m sorry’ or offering a partial apology (i.e. acknowledging harm and/or promising forbearance). Full apologies were absent in the mediation agreements. Agreements did not make explicit mention of the offender admitting responsibility or expressing remorse or regret. Finally, although the mediation agreements did not make any explicit mention of offenders offering reparation, they did record efforts at providing solutions to the conflict.

 

It is stated that full apologies comprise at least five specific components (i.e., admitting responsibility, acknowledging harm, expressing remorse, offering reparation, and promising forbearance). However, full apologies are not commonplace, and wrongdoers are more likely to offer a partial apology. Dhami (2017) conducted an empirical study of how people perceive a partial apology. Eighty young people were asked to rate the extent to which a partial apology comprising one component implied each of the four remaining (uncommunicated) components of apology. Participants believed that when someone offers a partial apology, that person also implies, to the same extent, the remaining (uncommunicated) components of apology (either combined or separately). A partial apology involving either an acknowledgment of harm or offer of reparation implied to a lesser extent the promise of forbearance than some other components i.e., the admission of responsibility and the expression of remorse. In addition, a partial apology involving the expression of remorse or promise of forbearance implied to a greater extent the admission of responsibility compared to some other components i.e., the acknowledgment of harm and the offer of reparation.

 

Past research on VoM has highlighted the importance of apology for both victims and offenders and the prevalence of apology during the mediation process. Dhami (2012) examined the nature of the apologies that are offered during mediation, as well as the individual-, case-, and mediation-level factors that can affect the offer and acceptance of apology. In addition, the study measured the implications that the offer and acceptance of apology can have on satisfaction with the mediation outcome. The study involved a content analysis of 57 records of mediations occurring between 2008 and 2010 at a UK mediation centre. Perpetrators said ‘‘I’m sorry’’ in over one-third of cases, and full apologies were offered in nearly one-fifth of cases. Apologies were accepted in over 90% of cases, although forgiveness was much less common. The offer of apology was most closely associated with the type of incident/offence, and number of previous mediations in a case. There was also some support for the relationship between the offer of apology and victim age, perpetrator gender, formal sanction, and the number of participants attending the mediation meeting. None of the factors studied were associated with the acceptance of apology. The offer of apology was associated with satisfaction with the mediation outcome, and in all of the cases where the apology was accepted, the victim was satisfied with the mediation outcome.

Finally, the ‘apology-acceptance’ script that may prevail during the victim–offender mediation process suggests that victims may feel obliged or pressured to accept an offender’s offer of an apology. Violations of this expectation in terms of rejection of an apology or no recognition of it may influence the outcomes of mediation in several ways. Dhami (2015b) conducted two experiments examining the effects of a victim’s response to an offender’s offer of a full apology on offenders’ perceptions of the victim’s response, emotional reactions, perceptions of the victim, attitudes towards the dispute and attitudes towards mediation. Experiment 1 compared the effects of a rejection, acceptance and no recognition of an apology, and Experiment 2 further investigated the effects of an acceptance versus no recognition of an apology. It was found that offenders who had their apology rejected considered the victim’s response as least appropriate and were least satisfied by it. ‘Rejected’ offenders felt more anger towards the victim and had more negative impressions of the victim. Offenders who had their apology accepted felt more guilt and shame. They were, however, also more willing to reach an agreement and were more likely to perceive the conflict as being resolved. ‘Accepted’ offenders were also more likely to participate in mediation in the future and more willing to recommend mediation to others. The research also demonstrated that no recognition of an apology has adverse effects similar to a rejection of an apology.

 

References

Dhami, M. K. (2017). An empirical note on perceptions of partial apologies. Onati Socio-Legal Series, 7, 408-420.

Dhami, M. K. (2015a). Apology in victim-offender mediation. Contemporary Justice Review. DOI: 10.1080/10282580.2015.1101686

Dhami, M. K. (2015b). Effects of victims’ response to apology in victim-offender mediation. European Journal of Social Psychology. DOI: 10.1002/ejsp.2145

Dhami, M. K. (2012). Offer and acceptance of apology in victim-offender mediation. Critical Criminology: An International Journal, 20, 45-60.

 

Conclusion of Conciliation between Timor Leste and Australia

On 5 September 2017, the Permanent Court of Arbitration announced that there has been an agreement reached by conciliation between Timor Leste and Australia.  The dispute concerns the delimitation of maritime boundaries between Australia and East Timor, and is subject to the United Nations Convention on the Law of the Sea (UNCLOS).  There is enormous practical, commercial significance to the dispute due to the presence of oil and gas in the area.

There is often confusion surrounding the terms ‘mediation’ and ‘conciliation’. In some circles, the terms are considered to be synonyms, and used interchangeably – and most dictionary definitions will follow this approach. Similarly the Arbitration Rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) refers in Article 47 to a hybrid conciliation/arbitration process, but this is commonly described and referred to as arb-med, and their Online Arbitration Rules refer in Article 37 to mediation.

In other contexts, both mediation and conciliation are considered to have a common process, but differ in the role of the third party facilitator. Here, a mediator would generally be less interventionist than a conciliator, and would not necessarily have legal qualifications in the subject matter of the dispute. The role of the conciliator, by contrast, is more advisory or evaluative than facilitative in nature. In the Australian context, for example, conciliation usually takes place within a statutory framework where a government appointed conciliator attempts to facilitate discussion and settlement between disputants, using the conciliator’s subject-matter expertise in the legal framework for the dispute.[1]

In public international law, good offices, mediation, and conciliation are often presented as being on a continuum of less to more formality. JG Merrills, considered a leading authority in state-state dispute settlement, states that the distinction between mediation an conciliation is that “a mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations [of the type found in conciliation].”[2] He characterises conciliation as a method that “puts third-party intervention on a formal legal footing and institutionalises it in a way comparable, but not identical, to inquiry or arbitration.”[3] This then contemplates a third party taking control of the investigation of a dispute, and proposing solutions that the parties may then wish to accept or reject, rather than a third party facilitating a search for common ground between the parties, or assisting the parties to reach their own negotiated terms of settlement.

The conciliation between Timor Leste and Australia very much follows the model set out by Merrils.   The process was undertaken by a five-person panel (known as a Commission),  chaired by Danish Ambassador Peter Taksøe-Jensen, who was also a former Assistant-Secretary General for Legal Affairs of the United Nations.  The rest of the panel was comprised of  Dr. Rosalie Balkin,  an Australian national who is former Director of Legal Affairs and External Relations at the International Maritime Organization, Judge Abdul G. Koroma, a Sierra Leone national and retired judge of the International Court of Justice,  Professor Donald McRae, a dual national of Australia and New Zealand and currently a Professor of Law, and Judge Rüdiger Wolfrum, a German national and member of the International Tribunal for the Law of the Sea. The composition of the panel, and the vast range of experience in maritime boundary disputes highlights the importance of their role as content experts.     The Australian Government has released a basic fact sheet on the way in which the process operates.

The Permanent Court of Arbitration has offered a fascinating insight in to the conciliation processes by making public a video of the opening of the conciliation between Australia and East Timor. The video is online here and is worth watching.

This conciliation also highlights the role of symbolism in international relations.  As the Chair of the Commission noted, the date of the agreement was 30 August – which also represents the anniversary of Timor Leste’s independence referendum, which was held on 30 August in 1999.  The conciliation is also significant as it is the first use of the conciliation procedures of UNCLOS, and states around the Asian region in particular will be closely observing the process and the ultimate resolution.   In this regard, Timor Leste’s Agent in the proceedings, Minister Agio Pereira, commented in the press release:

With our joint success at resolving our dispute through this conciliation process, Timor-Leste and Australia hope to have set a positive example for the international community at large.

As the press release explains, the details of the settlement are still being negotiated, and will remain confidential, as will the content of the conciliation itself.  The final agreement is expected to be made public in October 2017.

[1] See, for example, the Conciliation Process Model of the Australian Administrative Appeals Tribunal – http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/concilication-process-model

[2] JG Merrills, International Dispute Settlement (5th ed) (2011) at 26.

[3] Ibid, at 58.

Law, Justice and Evidence-based reform – Symposium at the University of Newcastle

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Photo Credit: Christoph Scholz Flickr via Compfight cc

 

The evidence-based movement has had a transformative influence on  research and practice in numerous disciplines, including healthcare,  education, management and policy.

In contrast,  law lags behind. Law, in many respects, is still ‘eminence based’,  relying on the opinions of authority figures, rather‘evidence-based’,  which focusses instead on robust and thorough evidence as a basis for interventions.  There is too often a  gulf between academic research and the reality of lawmaking and legal  practice.  And yet, as those in the academy are well aware, impact is increasingly used as an assessment of the success of research. Empirical research, along with other forms of evidence, plays an important role in  reinforcing the value  that researchers can add to the day-to-day operation of  the law.

The evidence-based movement in law is concerned with improving research and evaluation in all areas of law’s reach, including legal education, legal practice, law-making and judging.   Drawing on evidence-based definitions from other fields,  evidence-based law and practice urges the production of rigorous  research evidence and incorporation of that evidence into debate about  legal doctrine, legislation and professional practices, analysis of the  impacts of law in society, and proposals for reforms in law and  practice.

 

Being evidence-based means that law-and policy-making, and professional practices, are grounded in rigorous evidence of what is effective in achieving desired outcomes.   At the heart of an evidenced-based approach is empirical research,  a relatively under-used (but growing) approach for legal academia.   In this respect, the field of dispute resolution, and civil procedure / civil justice more broadly, leads the way in terms of the breadth of evidence based approaches currently used by academics.   Some of these have been  showcased on this blog, and presented at the recent Non-Adversarial Justice Conference, hosted in Sydney by the AIJA.

However, not all aspects of an evidence-based approach translate naturally from the sciences to the legal context.  For example, the sciences focus on randomised controlled trials, and the systematic review of randomised controlled trials as ‘level II’ and ‘level 1’ (higher order) evidence respectively.   Law as a discipline of course is not well suited to randomised controlled trials, and even less well suited to detailed direct comparison of data across jurisdictions.   Many questions remain as to how to better adapt these research paradigms to the legal context.

To advance the development of the evidenced-based law movement in Australia, the University of Newcastle Law School is holding a one day Symposium on Monday 22 May 2017.

The Symposium will provide a forum for researchers, practitioners and policy-makers to discuss, advance and critique the concept of using evidence to inform justice decisions. The Symposium will open with a keynote address, “Reforming the Justice System: The Alchemy of Data, Leadership and Synergy”, delivered by international expert Justice Rebecca Love Kourlis. Justice Kourlis is the Executive Director of the Institute for the Advancement of the American Legal System (IAALS) and will discuss their robust approaches to original empirical legal research, innovative models for working with stakeholders, and strategies for measuring outcomes and impacts.

The full draft program can be viewed here and you can register your attendance at the  UoN Online Shop .  Attendees are also invited to an optional dinner following the Symposium. Discount accommodation rates will be available at the Crowne Plaza Hotel Honeysuckle.

For more information, please contact Briony Johnston:
briony.johnston@newcastle.edu.au