About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

A positive professional ideology for lawyers: Fidelity to the good of dispute resolution (DR)

s-l300A positive professional ideology for legal DR practice should incorporate a genuine fidelity to the good of DR. This ‘good’ derives from the values and goals of DR that are firmly situated within the framework of the rule of law in Australia’s Western liberal democracy. Core DR values include justice, party autonomy and community. Lawyers practising DR need to be professionally committed to working to realise these values across the matrix of DR processes, as they constitute an anchor of belief and perspective, and represent the grounding positive contribution that lawyers as DR practitioners make to society. DR values should influence professional lawyering and decision-making, guiding judgments as to what is acceptable and ethical. DR process goals — procedural and substantive justice, impartiality, self-determination and participation, and access to justice — represent the procedural objectives for putting such values into practice. Together DR values and goals provide the foundations of DR as a societal ‘good’, and form an ethical, just foundation for a positive professional ideology for lawyers.

Parties who seek the services of DR legal practitioners are almost always in a position where they are struggling to manage or resolve their disputes themselves. This is why they need access to legal DR expertise. They find themselves without the necessary knowledge, skills and attitudes to achieve effective dispute resolution, or conflict management, on their own. Being in dispute or conflict is often a difficult, stressful and disheartening time for people. Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.

It is difficult to measure or quantify the exact actual benefit of DR practice for societal harmony, for legal certainty, for the quality of business and personal relationships, and for the well-being of citizens. It is nonetheless our contention that lawyers practising DR are, by putting the values and goals of DR into action, contributing to and sustaining, an inherent public good.

These thoughts have been adapted from Chapter 13 of Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (Lexis Nexis, 2017). We welcome your responses to them.

Laurence Boulle and Rachael Field

Acknowledgement of image: https://www.google.com.au/search?q=images+for+fidelity&rlz=1C1CHZL_enAU769AU769&tbm=isch&tbo=u&source=univ&sa=X&ved=2ahUKEwjF3sen79rdAhXY7WEKHdGNB5gQ7Al6BAgAEA0&biw=853&bih=386#imgdii=MAkGkWr9xEeZIM:&imgrc=EEsqx8d9gM18PM:

 

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30 Years of the Australasian Dispute Resolution Journal!

IN 2019 ADRJ WILL CELEBRATE 30 YEARS OF PUBLISHING ADR ARTICLES

The Australasian Dispute Resolution Journal, published by Thomson Reuters (then Law Book Co), was a pioneer in venturing into the field of publishing academic articles relating to mediation. This came about through the efforts of the late Micheline Dewdney and Ruth Charlton, supported by ADRA and encouraged by the late Sir Laurence Street.

Sir Laurence contributed the first article for publication in February 1990 and remained till his death the Chief Editorial Consultant of the Journal. That article, still fresh and relevant today, is to be republished in Part 2 of Volume 28 as a tribute to his vast contribution to ADR.

Innovation and research continues to expand our knowledge in the broad field of dispute resolution. Thus the Journal would welcome the receipt of unpublished topical articles (up to 5000 words) and book reviews (up to 1000 words). All articles are peer reviewed.

Contributions should be emailed to the Thomson Reuters Editor at lta.adrj@thomsonreuters.com

Posted on behalf of Ruth Charlton

ADRJ Editor

A Tribute to Mediation’s Grassroots

 

sps_1473 staff on call1While mediation has become a generic and ubiquitous brand it is worth recalling its 1980s Australian genesis in community justice programs throughout the country. Despite the contemporary preponderance of mediation within courts, tribunals, commissions and other legal institutions or legal contexts, the community justice programs have continued in less prominent forms and have increased their scope and services over time. While it is tempting to consider multiple future adaptions of mediation through replacement and disruptive technology and in many different dispute areas, it is appropriate to recognise the anchoring effect of its earliest community manifestations. While disruption (or, more positively, transformation) is a vogue concept of the age there is also a value in those who maintain the practice of traditional forms of mediation. While welcoming the inn

This is not, however, to pine wistfully for a return to mediation’s original intent and identity, as is sometimes heard at conferences. The system now has multiple intents and numerous identities; its future must be considered in the light of the present, and we reject an over-nostalgic view of mediation’s past. As we said in Australian Dispute Resolution, it is important to engage with ‘the discontinuities in the history of DR in Australia to help us learn from the past, avoid reinventing the wheel, remind us of the ideas and approaches that have been jettisoned, and appreciate why they have been discontinued or replaced’.

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We hope you have enjoyed the series of posts from Chapter 12 of our new book Mediation in Australia (LexisNexis, 2018).

Laurence Boulle and Rachael Field

The future of legal practice and legal education: Mediation

Our series of posts from Chapter 12 of Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) is almost at an end. This is our penultimate post:

The institutionalisation of mediation (discussed in Chapter 8 of Mediation in Australia is so central to the future of legal practice that (as we argued at some length in our other work Australian Dispute Resolution: Law and Practice (LexisNexis, 2017)) ‘it should also be central to every law graduate’s experience of legal education’. The recent nod to this position is the inclusion of DR in the core compulsory subject ‘Civil Procedure’ in the Priestley 11 subjects (the core compulsory subjects required for eligibility for admission to legal practice in Australia). Some in the mediation community, including some of our most esteemed colleagues in the ADR Research Network, see this as a positive and sufficient development. We agree that it is a positive development. However, we respectfully consider the approach to be insufficient.

Gavel,Law theme, mallet of judge

In 2012 a national study by NADRAC found that only eight law schools at that time included in their curriculum a mandatory subject in which 50 per cent or more of the teaching focused on DR. The NADRAC Report made the point that ‘the amount of ADR teaching that currently occurs in the majority of Australian law schools is not sufficient in light of the increasing role that lawyers will play in advising clients about and assisting them in ADR processes’. At the time of writing, NADRAC’s successor — the Australian Dispute Resolution Advisory Council — is conducting a follow-up project led by Dr Kathy Douglas of RMIT. This new project will provide current, accurate and up-to-date nation-wide data about the presence of DR subjects in Australian law schools.Another chess board

In our view, until that data reflects that every law school graduate has experienced a dedicated DR subject in their degree (including content on mediation theory and practice), the current Australian legal education system will be failing to adequately prepare law students to enter legal practice with the necessary knowledge, skills, attitudes and ethical attributes to enable them to succeed and thrive within and outside the profession in the 21st century. As long as DR is taught to future lawyers predominantly through elective subjects, it will be only those law graduates who have the acumen to choose DR as an elective who graduate with foundational levels of DR competence. The legal academy must support the work-readiness and future employability of students through DR education, if the legal profession is to have the capacity to manage positively the diverse challenges it faces into the future.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Evaluating mediation anew

smiley face optionsThe new conceptualisation of mediation discussed in the previous post, inclusive of diverse practice, responsive, relational and ethically focused on the achievement of party self-determination in specific party contexts, will require ongoing evaluation and measurement of the extent to which the system does or does not live up to this recalibrated identity. Evaluation and measurement, both in absolute terms, and in comparison with other practices, will be critical for mediation’s future legitimacy and credibility, as it has been to the establishment of mediation’s current standing and acceptability in legal and social contexts.

However, the methods and approaches to how we evaluate mediation into the future will need to move past approaches with historical emphases on documenting settlement rates and satisfying statistical masters on time and resource factors. The profundity of methods for assessing mediation to date have been hampered by confidentiality, and by the confirmation bias associated with the need to establish mediation’s effectiveness and efficiency. Continued research is important into the future but will need to be more rigorous and sophisticated — to gauge the value of mediation in general as well as the efficacy of specific skills and interventions from the KSAE (the knowledge, skills, attitudes and ethics discussed previously).

More nuanced qualitative and interdisciplinary methodologies that explain the phenomenon of mediation more effectively will be necessary, such as narrative and phenomenographical methods, including approaches such as observation-based case studies, clinical reflective mediator practice, and individual anecdotes of existential experiences revealed through interviews and focus groups. Research design will include more variables and evaluation systems being built into the foundations of mediation programs to ensure more systematic collection of hard data and soft perceptions. Researchers and policy-makers will interrogate the problem of ‘what do we need to know about mediation’ more closely in order to design appropriate methods to extract the most useful and valid data. Researchers will also need to overcome confidentiality issues, look more critically at the quality of parties’ experiences, expose the shortcomings of mediation, evidence its diverse benefits and question the sustainability and justice of outcomes. Increased rigour in the measurement and evaluation of mediation and its bundle of attributes will better assist theory to meet practice and better inform policy development and the further institutionalisation of mediation.stock-photo-note-with-time-to-evaluate-on-the-wooden-background-534770503

In particular, we suggest that a closer evaluative eye is required on the operation of evaluative mediation, and the ability of evaluative mediators to achieve party self-determination ethically. It will be necessary to use research to ensure that if evaluative mediation becomes the normative approach, as well it might, that quality control and ethical frameworks exist to prevent rogue mediators making de facto determinations.

‘Forever learning’ is the potential mission statement of the mediation community into the future, as there is still much to be measured in, and understood about, mediation practice. Limitations in the ‘search for mediation knowledge’ will need to be overcome, and a deeper understanding of mediation practice will need to be revealed through a greater array of approaches and sources. Research efforts of greater depth and rigour will inform the future development of mediation’s bundle of attributes and micro-skills, as well as contribute to stronger awareness of the various pressures influencing and impacting the system. Understanding mediation is a long-term project for the mediation movement. Ultimately this understanding will contribute to mediation connecting more closely with the legal, social, economic and political contexts referred to in our previous posts.

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We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Acknowledgement of images: https://www.google.com.au/search?q=images+for+evaluation&rlz=1C1CHZL_enAU769AU769&tbm=isch&tbo=u&source=univ&sa=X&ved=2ahUKEwiSpP3ekpvdAhWJdt4KHR_fDGwQsAR6BAgGEAE&biw=853&bih=357; https://www.shutterstock.com/search/evaluation?kw=&gclid=CjwKCAjw8ajcBRBSEiwAsSky_aHUdL8UeqEvanh81SIPbwLQOdKVIRBA7b_9no0Drcgc8SAZuTTy2BoCOfoQAvD_BwE&gclsrc=aw.ds&dclid=CJCt2r-Wm90CFZYxKgodIl4Enw

Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes

We hope you find this next excerpt from Mediation in Australia (LexisNexis, 2018) thought provoking:

IMG_6355 (002)

If mediation, despite its versatility and diversity of applications, is looked at as an analytical model, then it is not clear how it might endure, grow and respond to some of the big challenges ahead. There is no necessary longevity to the system we currently call ‘mediation’, although nostalgic sentiment would wish it a long and productive life. DR innovation, technological disruption, authoritarian governance and other intervening factors will not leave mediation unaffected, and the system as we know it may be subverted, rejected, replaced or modified beyond recognition.

Regardless of these prognostications, an inevitable shift will involve looking at mediation less in definitional terms or as a procedural model and more as a flexible bundle of knowledge, skills, attitudes and ethical attributes (KSAE). This bundle might have endless possibilities for future application.

As regards the knowledge factor, sound understanding of problem-solving strategies and procedures is an assumed element of current mediator competence, with potential future applications in the big issues. The skills element of KSAE will remain focused on relational engagement and communication — empathic listening, acknowledging, reframing, summarising and questioning — with new skill sets emerging from the new forms of knowledge referred to above. The attitudinal element of KSAE will emphasise the responsiveness value discussed in Chapter 2 of Mediation in Australia through the potential mediation affords to achieving justice in a democracy centred on the Rule of Law, and the promotion of party and community well-being through the resolution and management of disputes.

Finally, the ethical attributes necessary into the future will continue to include mediator impartiality, but will need to be far more contextual in response to this flexible KSAE bundle. What will be the ‘right thing to do’ in mediation will no longer be governed by abstract concepts such as neutrality but will depend on the specific DR needs and circumstances of parties, their context and the ‘fitting response’ to upholding party self-determination (defined in Mediation in Australia as including informed consent and an absence of external determination).

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Within the confinements of law and legal processing alone the KSAE have influenced the development and practices, inter alia, of collaborative law, unfacilitated negotiation, expedited arbitration, less adversarial trials, conjoint expert evidence, industry dispute schemes and judicial DR. Beyond these developments, the KSAE factors have potential applications in peace-making initiatives around the world, in political systems, in educational bodies, in international relations, in trade and investment matters, and in all situations where there are continuing interactions within cognate groups, from nuclear families to global supply chains.

The relational and responsive nature of mediation sits at the centre of the system into the future, providing a motivation for moving beyond the current focus on models of mediation, such as facilitative versus evaluative or transformative versus settlement, to a focus on the intrinsic skills, techniques and attitudes associated with an inclusive concept of the mediation system. It is in this dimension that we consider that mediation will be able to engage in, and impact on, the bigger issues.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.shutterstock.com/search/ethical

New knowledge, new technology

Another excerpt from Chapter 12 of our recently published work: Mediation in Australia (LexisNexis, 2018):

Among the factors that will impinge on future mediation and its societal roles are new technologies and new forms of knowledge that are relevant to conflict, decision-making and mediation.

Coding image

In terms of the knowledge factor we already have one set of experts tunnelling the mountain of computer technology and artificial intelligence to unearth the algorithms and codes, apps and devices which can provide negotiation support, improved predictive analytics and more efficient data processing in mediation’s better cause. It is difficult to predict the nature, extent and potential impacts of such developments. Moreover, much of the technology that will transform the styles of mediation practice into the future has yet to be invented. The exponential progress in technological advances undoubtedly means, however, that mediation will operate differently to the process as we now know it. Electronic and online tools will increasingly find their way into mediation spaces and enhance the flexibility, accessibility and virtuality of the system. Mediators may not themselves need the ability to code, but they will need understanding and capacity to utilise and maximise the benefits of new digital technologies. They will also need basic knowledge and terminology to communicate effectively with scientists and technologists so they can influence the direction and outcomes of their tunnelling.

In terms of new knowledge another set of experts is tunnelling a mountain to unearth clearer understandings of the DNA equivalent of conflict and disputation. These labours will reveal deeper knowledge of these phenomena and their cognitive, emotional, physiological and behavioural dimensions. The knowledge will extend to better understanding of how humans make decisions, of implicit, cognitive and social biases and of the impact of environmental and symbolic factors on negotiations. We envisage that understandings of negotiation, mediation and decision-making will be better informed and become more nuanced and sophisticated through multidisciplinary and interdisciplinary approaches across disciplines such as anthropology, economics, sociology, psychology and political science. In particular, knowledge of the neuroscience of decision-making, of rationality and of human biases and responses to conflict will become standard mediator knowledge platforms from which they can attempt to achieve effective practice — their understandings of the brain will empower master mediators to match, and mix, their metaphors to suit particular clients and circumstances. These understandings will also inform the development of mediation theory, ethics and values.

tunnel through mountain image

Whether the two tunnels will be found to meet within the same mountain remains to be seen. On one hand, the cognitive and neuro-science knowledge base will allow mediators to comprehend the deepest motives, needs and prejudices of their clients in all their humanistic weaknesses and paradoxes. On the other, the technological innovations will purport to negate the factors of uncertainty, irrationality and indecision which cause mediating parties to revert to survival mode and avoid settlements. The two levels of expertise could have both synchronous and inconsistent implications. Algorithms hold the promise of eliminating problematic cognitive and social biases, but could be themselves biased in their construction. Deeper humanistic impulses, both negative and positive, might not be susceptible to capture in software, apps and analytics. Robo-mediator, along with robo-negotiator and eventually robo-judge, will have unsurpassable levels of proficiency and efficiency in some dimensions, but lack the humanistic dimensions emphasised by social and behavioural scientists. Those with more expertise in these two areas than we have will both contribute to and evaluate the forthcoming fusions and fissions.

We welcome your responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.google.com.au/search?q=algorithm+images&rlz=1C1CHZL_enAU769AU769&tbm=isch&source=iu&ictx=1&fir=s2fu1eCE6eNV1M%253A%252CivrrVUouzFHm0M%252C_&usg=AFrqEzeQ4tZShNy19sSe8RZGr8KET8Uhqg&sa=X&ved=2ahUKEwj9-KmAl_7cAhVEzLwKHUStA4AQ9QEwB3oECAUQEg#imgdii=A5PjGHKbgoIRkM:&imgrc=s2fu1eCE6eNV1M: