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

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

The Top Six ways Twitter can help your research

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 Photo Credit: Alan O’Rourke via Compfight (Creative Commons Licence 2.0)

When I initially started using twitter three ago (tweeting as TooheyL as well as one of a group on the ADR Research Network’s twitter account), I worried it might be nothing but a procrastination technique.   While this can sometimes be true, more importantly I have found that tweeting has been beneficial for my research.   So, here I’d like to present my top 6 ways that Twitter can help your research:

  1. It makes you write: Experts such as Hugh Kearns and Maria Gardener make it clear that successful researchers have writing as a feature of your daily life, not something to be done on ‘research days’. Interestingly, what you write is not nearly as important as the fact that you are putting words on a page – the hard part is beginning.   Writing two or three tweets first thing in the morning is an easy way to launch yourself into a more substantial piece straight after.   If you commit yourself to just 250 words a day, that’s 5000 words a month – in many disciplines the length of a short article.
  1. It makes you bold: Many researchers (myself included) shirk away from stating their own opinion. They tend to bury their opinions in footnotes, qualifiers, and complicated frameworks.   Twitter, because it is so short, needs to be direct, and you need to be bold.   I promise that boldness will transfer into your writing, with positive results.
  1. It adds to the impact of your research: Hashtags are a great way to alert new audiences to your research and create a buzz around workshops, conferences, and publications. For example, I recently tweeted about my colleague’s book launch, and you can see in the statistics on who saw and engaged with that single tweet.   Had I been a little more succinct (see point #4 below!) I could also have added a hyperlink to the publisher.Twitter is also a very effective means to drive traffic to your blog post.   For example, 90% of the referrals to our blog come from tweets and retweets.   It is very easy to set up new blog posts to be automatically tweeted.

    Twitter can help you demonstrate your research impact – an increasingly essential for academics across the world. Altmetrics are an increasingly important metric that tracks impact across a range of media, and show your impact on the world beyond other academic publications.

  1. It makes you succinct.   A tweet can only consist of 140 characters, fewer if you include a picture or hyperlink. (Pictures are a great addition to a tweet, and greatly increase the attention your tweet receives). With every 140 character message you compose, you are learning to contract your thoughts down to their essence. This is an exercise in discipline that flows through to your academic writing
  1. It keeps you current: Strategically following media outlets, members of parliament, NGOs, international institutions and well-connected academics mean you are at the cutting edge of news stories, current controversies, and major developments. This is especially helpful to know when to submit op-ed pieces for public outlets, such as newspapers or the Conversation.
  1. It’s great networking: Twitter can connect you with academics in your field all around the world. Rather than just following others, you have the chance to RT (reply) to tweets and engage in mini-discussions. This is especially useful if you are flying solo in your field at your own institution.   When you do travel, it’s easier to reach out to someone with whom you’re connected on Twitter, to met up face-to-face.  Introverts can use Twitter to their advantage by searching for event hashtags and keywords, and engage with conference speakers before the conference begins.

If you’re now convinced that tweeting is a great idea, there is a useful primer on how to use twitter for academic purposes on the blog of the Online Academic.

Symbolism and Justice: The South African Constitutional Court

The design and art of a courthouse communicates a great deal about the culture and values of the institution contained within it.  Last month I had the incredible opportunity to visit the South African Constitutional Court in Johannesburg – an institution that is itself a potent symbol of the country’s attempts to move forward in the aftermath of the apartheid era.

The design of a place of justice cannot repair the harm to South African society that was brought about by apartheid, but it does serve as a symbol of restorative justice – and a deliberate attempt to make all South Africans feel more welcome in a government building.  The design was chosen after a public competition, with the winning, young South African architects designing the building inspired by the concept of ‘justice under a tree’.  This is reflected in the physical design of the building and pays homage to traditional dispute resolution processes used by the people of South Africa.

The website for the Court explains the way in which the architecture was very deliberately designed to be inclusive as well as symbolic:

The Constitutional Court’s new home was born of a remarkable and uniquely inclusive process – one that resulted in a public building like no other. This structure, South Africa’s first major post-apartheid government building, was designed to embody the openness and transparency called for by the Constitution itself.

The building is noted for its transparency and entrancing volumes. In contrast to most courts, it is welcoming rather than forbidding, filled with sparkle and warmth. It has no marble cladding or wood panelling, but has come to be admired for its graceful proportions. And the principal materials – timber, concrete, steel, glass and black slate – infuse the court with an African feel.

Below are some of my photos with captions describing the architectural and artistic elements of the Court:

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Constitutional Hill sits on the site of the old fort and central prison dating back to the colonial era in the late 1800s.  Two prison museums  explain the harsh conditions of everyday life and the arbitrary laws that led to the arrest of thousands, including Ghandi and Mandela.

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  Entrance to the grounds are through the original prison doors, with the old prison windows visible.  

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These are the very large carved wooden doors that are the entrance to the court building itself.  They stand about eight meters high

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Engraved in the doors are depictions in words and sign language of the 27 rights contained in the South African Bill of Rights. There are Braille carvings on the door handles.

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Another view showing the seating of the public compared with the judges.  You can also see here the brick walls of the court room, which were salvaged from the prison that stood on the site of the court.  Reminders of South Africa’s political past are visible everywhere.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I was particularly intrigued by the font.  This was specially commissioned for the Court, and designed to be different from the traditional ‘official’ fonts used in government and legal documents.  The photo on the left shows the name of the building in all the languages of South Africa.

For an interesting piece on Australian court design, and engaging principles of therapeutic and restorative justice, see this article by Professor Graham Brawn.

 

Call for Abstracts – Yale Junior Scholars Workshop

We’ve received the following Call for Abstracts  from the ASIL Dispute Resolution Interest Group about the Yale Law School Center for the Study of Private Law Junior Scholars Workshop:

The American Society of International Law’s Dispute Resolution Interest Group and Yale Law School’s Center for the Study of Private Law are hosting a workshop for junior scholars. The workshop will be a safe space in which aspiring academics, post-docs, doctoral students, fellows, VAPs, other non-tenure-track academics, and pre-tenure professors can get feedback through group discussion on academic works in progress in international dispute resolution. Authors will not give formal presentations of their work. Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. This format permits lively discussion of ideas and writings that may be inchoate or not yet fully developed. Discussants may include other junior academics at Yale and other authors participating in the workshop.

The workshop will be held at Yale Law School on the afternoon of Friday, October 28, 2016. All participants will be expected to attend the entire workshop and to be prepared to comment on the other papers, up to a maximum of three. We are unfortunately unable to fund travel but will host a dinner in the evening.

500-700 word abstracts may be submitted by midnight Eastern Time, July 15, 2016 to this folder: https://www.dropbox.com/request/weafBJW4I7tI2TEDu4Af. (A Dropbox account is not necessary to submit documents.) Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. Abstracts will be reviewed by ASIL Dispute Resolution Interest Group Co-chairs Perry Bechky and Christina Hioureas together with Sadie Blanchard of the Center for the Study of Private Law.

The authors whose proposals are chosen will be informed by August 15th, 2016. All participants must submit a substantial work in progress by October 7, 2016, which will be circulated in advance of the workshop to registered attendees. It is expected that this work will consist of a working draft paper at least 20 pages long. Participants whose drafts are longer than 30 pages will be asked to focus the attention of the discussants and other participants on key excerpts.

Please direct any questions to sadie.blanchard@yale.edu.

 

Careers at UNSW Law – A/Prof & Prof Level

UNSW Law is seeking expressions of interest from world leading researchers (Professors and Associate Professors) in a range of areas, including civil dispute resolution.

For full details, see:

http://www.law.unsw.edu.au/news/2016/05/unsw-law-seeks-expressions-interest-leading-researchers-private-law-corporate-and

The position description specifies a broad range of areas:

• Private law, in particular, tort law, contract law, equity, remedies and civil dispute resolution; and
• Corporate and commercial law.

I am happy to serve as a preliminary point of contact for readers of the blog.

ADR Internship and Job (Sydney)

The ADR Research Network has received the following information from Steve Lancken, a Mediator from Negocio Resolutions:

“A job opening for an Executive Assistant (3-4 days per week) LINK here
Short Version: This is an excellent opportunity to join a small mediation firm located in the CBD as an executive assistant to the principal for someone who has a law degree, is studying towards a law degree, or has legal experience. The role offers a rare opportunity to be exposed to and participate in dispute resolution processes."

And

"a Volunteer Intern position for Voluntas – A Volunteer Mediation Pilot Scheme. LINK here
Short version: The Voluntas Mediation Pilot scheme is looking for one or more unpaid interns to administer the scheme. The role involves the administration of Pro Bono Mediation services for the volunteer sector and is a chance to work with some of Australia’s leading mediators, learn about ADR and support social justice."

Please contact Negocio directly if you are interested.

Call for Papers – National Mediation Conference

The National Mediation Conference will be held on the Gold Coast from 11-15 September 2016.   They have issued a call for papers on the theme ‘“Thought, Innovation and Creativity: The Next Decade” .  The closing date for proposals is in mid-March.

Here’s a snippet from the conference page elaborating on their theme:

This year our conference theme is: “Thought, Innovation and Creativity: The Next Decade”. We will showcase: what we know and how we know it; think about our thinking; reflect on how we innovate, educate and train practitioners across the wide spectrum from self determination to determinative processes; how we can become more flexible and creatively facilitate processes in response to the diverse needs of our clients to provide a future of best practice in all we do to manage our own and other peoples disputes.

 

Dispute Systems Design Videos

From our friends over at indisputably.org –  video recordings of presentations from a symposium on dispute systems design held  University of St. Thomas Law School in November this year.

http://www.indisputably.org/?p=7829

It’s relatively rare to see  academic work on this very important area of dispute resolution, so it’s well worth a look.