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

Bond Law Review: Special DR Edition available now – http://epublications.bond.edu.au/blr/

The special edition of the Bond Law Review brings you a selection of scholarly papers presented at the bi-annual National Mediation Conference held in September 2016 at the Gold Coast, Queensland. It’s available online and at no cost at: http://epublications.bond.edu.au/blr/.

Presentations at the Conference included discussion of the latest research and developments across the spectrum of forms of dispute resolution. The content of the conference, and of this special edition, is of interest to mediators, dispute resolution and restorative justice practitioners, facilitators, conciliators, educators, trainers, conflict coaches, arbitrators, adjudicators, academics, researchers, managers, administrators and anyone else who is interested in and involved in helping people in dispute

The 2016 conference brought together more than 500 participants and many delegates from across Australasia and the world. The theme for the conference was: “Thought, Innovation and Creativity: The Next Decade”. Key focuses included what practitioners know and how they know it; thinking about thinking; reflecting on how innovation, education and training of practitioners occurs in self-determinative through to determinative processes; and considering how flexibility and creativity can be observed in response to the diverse needs of clients in order to provide a future of best practice in managing conflict. In contemporary times, it is vital that practitioners consider standards, professionalism, ethical practice and self-care in order to continue to meet the challenge of their working environment. Mindfulness and reflective practice were prominent considerations – the importance of remaining mindful of and reflecting on our own reactions and the reactions of the participants within the dynamics of their communication about their dispute was highlighted, particularly in terms of minimising potential complaints, as well as in relation to avoiding practitioner burn out.

The workshops and presentations discussed many diverse ways for managing a range of processes contributing to a variety of outcomes, such as, settlement, resolution, healing, forgiveness, rebuilding relationships, renewing relationships or respectfully severing a relationship. Matters at the forefront of participants’ concerns included how to demonstrate creative techniques and innovative practice approaches by thinking ‘outside the square’, together with ethical guidelines and best practice standards in diverse practice applications.

The special edition begins with Jonathan Crowe’s conference keynote address on ‘Mediation Ethics and the Challenge of Professionalisation’. Jon discusses the regulatory and practice models of mediation ethics in the context of their suitability to address the challenge of professionalisation. He argues in favour of the practice model, concluding that the mediation profession should aim to strike a balance between the two models, while generally emphasising practice over regulation. Next, Olivia Rundle addresses the important issue of ‘Including Trans and Gender Diverse, Intersex and/or Non-Heterosexual People in Mediation Service Delivery’. Olivia’s article argues that mediators should be informed about historical as well as current legal treatment of individuals, couples and families who are trans and gender diverse, intersex and/or non-heterosexual, and be alert to the dynamics of power that arise as a result of legal non-recognition of certain family relationships. The third article in the special edition is Judge Joe Harman’s piece entitled: ‘An Imperfect Protection: Attitudes of Family Dispute Resolution Practitioners to Confidentiality’. Judge Harman discusses the utility of the confidentiality and inadmissibility of oral and written communications in Family Dispute Resolution, highlighting the tension between the confidentiality of dispute resolution processes and the desire of Courts to have access to all available evidence. The article presents and analyses a 2014/15 survey of practising Family Dispute Resolution Practitioners from private, government and community based contexts regarding their attitudes to confidentiality and its importance in Family Dispute Resolution. The final article for the special edition is by Kathy Douglas and Jennifer Hurley entitled ‘The Potential of Procedural Justice in Mediation: A Study into Mediators Understandings’. Kathy and Jennifer discuss the theory of procedural justice as a way of explaining why disputants who experience validation and respect in a decision-making process are more likely to accept the outcome of a process even if they do not agree with the result.  They argue that the Australian legal system, and mediators, are not yet adequately recognising or harnessing the potential of procedural justice. They present a qualitative study exploring the practices of mediators conducted at the Victorian Civil and Administrative Tribunal, concluding that a majority of mediators endorse the theory of procedural justice.

The special edition also contains 2 practice notes (3 in the online version) and a book review. The first practice note by Meriel O’Sullivan considers ‘The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes’. Meriel uses a case study of a grievance to explore theories on the sources and resolution of workplace conflict. The case study highlights what happens when there is a mismatch between the sources of conflict and the conflict resolution intervention, and how this can be addressed by broadening the range of interventions utilised in a workplace. The second practice note by Keryn Foley considers the always topical issue of co-mediation in her piece ‘To Co-Mediate or Not to Co-Mediate — That is the Question’. Keryn explores the practical benefits and challenges of co-mediation, offers a new way of defining co-mediation, argues that the method requires a specific skill set, and offers several practice tips. Keryn argues that preparation is key in successfully co-mediating, as is the practice of debriefing. The third practice note by Louisa Roughsey, Frank Watt and Berry Sontag and is entitled ‘Indigenous Mediation – Is That Different?’. It is only available in the online version of the journal due to its extensive pictorial content. The practice note discusses the history, practice and challenges of the Mornington Island mediation service. Finally, the special edition concludes with a book review by Linda Fisher and Frances De Biasi of Samantha Hardy, Olivia Rundle and Damien Riggs’ book: Sex, Gender, Sexuality and the Law: Social and Legal Issues Faced by Individuals, Couples and Families. The review praises the work as a valuable resource, providing insight and extending understanding in ways that have not been achieved elsewhere.

We trust that this impressive special edition, which is a new initiative for the Conference, and has been generously supported by the Bond Law Review, brings together a collection of papers on a range of topics that will inspire you.

Special editors –  Professor Rachael Field, Bond University, Ms Mieke Brandon Co- Convenor and Co- Secretary National Mediation Conference 2016, and Associate Professor Pauline Collins, University of Southern Qld and Co- Secretary National Mediation Conference 2016.

 

 

 

 

 

 

Trust and relationship building in native title negotiations

The following post is by a member of our Network – Lily O’Neill. Lily is a negotiation researcher looking primarily at native title negotiations.  She also teaches Dispute Resolution at Melbourne Law School, and presented her PhD research at the civil justice conference in Adelaide in February.

This blog post considers the importance of trust and relationship building in native title land access negotiations. It focuses on the negotiations that led to the Browse liquefied natural gas (LNG) agreements of 2011.[1] Like the literature on negotiation and mediation more broadly, building trust and good working relationships between governments, traditional owners and companies is often said to be a key potential benefit of these negotiations. Yet, as detailed here, there is a danger that negative impressions formed during negotiations can colour participants’ views of opposing parties’ motivations, even when they believe a reasonable deal has been struck.

The Browse LNG agreements, concluded by Goolarabooloo/Jabirr Jabirr traditional owners, Western Australia and Woodside Energy in mid 2011, were said to be worth $1.5 billion to traditional owners, and ‘much more positive’ than those typically achieved in negotiations between extractive industries and Aboriginal people.[2] These agreements were negotiated between 2007 and 2011.

Interviewees from all negotiation parties agreed that trust and relationship building should be important goals of native title negotiations, noting that they are particularly important attributes for implementing an agreement. Wayne Bergmann of the Kimberley Land Council, for example, said that where parties do not have a good relationship, agreements “don’t deliver half of what they should”.

However the parties viewed the negotiations in very different terms after the agreement was concluded. Negotiators from Western Australia and Woodside largely felt that while the negotiation had been “robust”, it had resulted in significant trust developing between all parties. One government negotiator described the feeling in the negotiation room as like:

“Stockholm syndrome – everyone became committed to each other in some sort of way or affected by the outcome and the desire to not see hurt, the desire to see everyone come out as a winner.”

Traditional owners and those working for them expressed a very different view. The negotiations were “long, protracted, quite bloody”, said one. Western Australia and Woodside had been “disingenuous” and had viewed traditional owners as “a thorn in their side … and they would do almost anything to get that thorn out”, said another. Of the company, a traditional owner said “you can’t take them at face value, they bullshit you.”

When interviewees were asked why parties had such different views of this aspect of the negotiations, two key reasons emerged.

The first was that traditional owners felt at a disadvantage in negotiations. A negotiator for traditional owners said:

“I think that we always had the David and Goliath, so we were very defensive.  Ready to take offense at anything, even sometimes when I don’t think they were actually intending to. If you think you are the underdog and you are fighting your way up, you have a certain attitude.”

The second was that both professional and non-professional negotiators conducted negotiations. Two senior government officials observed that traditional owners who had never experienced commercial negotiations were sometimes visibly upset by adversarial tactics because “they weren’t in on the gamesmanship of it all”. One reflected that Western Australia’s negotiation approach might have been different had they known from the outset that non-professional negotiators would be in the negotiation room.

These are lessons that are useful for all types of negotiations where trust and relationship building should be key negotiation outcomes.

[1] The information contained in this blog post is based on my PhD research: see Lily O’Neill, ‘A Tale of Two Agreements: Negotiating Aboriginal Land Access Agreements in Australia’s LNG Industry’ (PhD thesis, 2016). Available https://minerva-access.unimelb.edu.au/handle/11343/111978. This research used a comparative case study analysis to empirically examine the land access negotiations that led to agreements for Browse LNG in the Kimberley, Western Australia, and Curtis Island LNG in central Queensland. Among other data, it analysed 53 interviews conducted with negotiation participants from all negotiation parties.

[2] Ciaran O’Faircheallaigh, ‘Extractive Industries and Indigenous Peoples: A Changing Dynamic?’ (2013) 30 Journal of Rural Studies 20, 28. Note that in April 2013 Woodside announced that it was pulling out of the development option as detailed in the agreements, leaving large aspects of them likely unenforceable.

Global Pound Conference Sydney

I’m participating today in the Global Pound Conference (“GPC”) Series in Sydney. Taking its inspiration from the original Pound Conference, the purpose of this worldwide Series of conversations is to explore what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts. The title of the GPC Series is: Shaping the Future of Dispute Resolution and Improving Access to Justice.

As you might expect, there is a lot of agreement in the room about the importance of DR and the role of DR practitioners in achieving access to justice through DR practice in commercial and civil matters. This is important because many people here are lawyers. It is encouraging to hear partners of top tier law firms affirming the place of DR approaches (and particularly non-litigation DR approaches) in legal practice. It is sobering but important to hear the perspective of these successful practitioners that law school is not equipping young graduates with the necessary knowledge, skills and attitudes that practising law in 2017 requires. That is, they’re saying that young law graduates don’t have the necessary knowledge about DR theory and practice, they don’t have the necessary DR communication and relational skills, and they don’t have the necessary self-management and reflection skills.

This brings me back to my soapbox point about the need to teach DR as a core compulsory subject in the law curriculum. If lawyers are to be able to adequately and ethically advise and guide their clients in order to manage and resolve their disputes effectively they certainly do need to be able to work with the substantive law, but they also need to be able to:

  1. Diagnose a relevant dispute resolution process that will enable the dispute to be resolved in a way that addresses the best interests of the client.
  2. Communicate effective, practical DR advice and generate creative solutions.
  3. Work in practice groups.
  4. Recognise, reflect upon, and respond to, ethical issues arising out of the legal dispute and its resolution.
  5. Reflect on and assess their own professional capabilities and performance.

DR subjects are very well-placed to equip students with this suite of knowledge, skills and attitudes.

​The Global Pound Conference series is an important innovation that will generate important data relevant to convincing the Law Admissions Consultative Committee about the appropriate place of DR in the Priestley 11 subjects required for admission to legal practice in Australia.

You can see here the core questions​ that are part of the GPC Series research element.

You can also explore the website to find out more about the Series: http://globalpoundconference.org/

I want to commend the organisers of the Sydney series – the organising committee, and the Resolution Institute (https://www.resolution.institute/), its CEO Fiona Hollier and her amazing team.

Congratulations also go to one of our ADR Research Network members – Emma-May Litchfield – who is leading the research component of the GPC. This is important work that will provide the DR community with a critical evidence base.

Justice in DR = Fairness?

This second blog in the series for May on the values and goals of DR is also adapted from Chapter 4 of: Laurence Boulle and Rachael Field, Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

Much of the DR literature about justice connects or conflates it with notions of fairness. NADRAC, for example, noted in its 1997 Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution, that the words justice and fairness ‘are essentially interchangeable’. [1] The word ‘fair’ is mentioned 179 times in volume 1 alone of the Productivity Commission’s 2014 Report on Access to Justice, often in conjunction with words such as ‘justice’, ’equity’, ‘transparency’ ‘openness’ ‘dignity’ and ‘reasonableness’. It has been said that ‘a just result must be a fair result’.[2]

Albin in her seminal article ‘The Role of Fairness in Negotiation’ identifies fairness as a ‘slippery concept’ but one which is an influential factor in DR across diverse cultures and disciplines.[3] Albin refers to justice as a macro concept which points to ‘what is right and wrong’.[4] Fairness on the other hand is seen as a concept in DR contexts that has a less definitive and a more practical, contextualised and individualised nature.[5]

It may not be possible to identify all the elements of fairness in DR with universal acceptance.[6] As Albin says: ‘fairness is an element of acceptability’,[7] and acceptability is something which is judged subjectively. In DR processes other than litigation this is often expressed as ‘what the parties can live with’.[8] The outcome may not be perfect but if the process is considered to be fair, it may thereby be seen as just and consequently acceptable to the parties. It is a challenging task, then, to develop a values framework of general application for DR that is relevant to processes across the matrix, especially if such a framework is to include a conception of justice as fairness which is responsive to the relevant individual and subjective perspectives of parties in dispute.

It would not be a satisfactory conception of fairness as a value for DR, however, if it were simply a postmodern blank canvass of individual perceptions. It is necessary to identify some core elements of fairness across DR systems.  Frey’s articulation of a ‘first class dispute resolution process, whether litigation or an alternative process’ refers to ‘impartiality, a just process and a just result’.[9]  These elements sit consistently with Albin’s identification of fairness as: structural fairness, process fairness, procedural fairness and outcome fairness.[10] They are also in accord with NADRAC’s focus on fairness and justice in procedure and outcome.[11]

What we know from brain research is that it is important for humans to perceive that they are being treated fairly. This is because being treated fairly is said to ignite the brain’s reward circuitry. UCLA scientists reported in 2008, for example, that ‘the human brain responds to being treated fairly the same way it responds to winning money and eating chocolate’.[12]

The significant body of scholarship and literature on the topic of fairness leads us then to suggest three process goals that contribute to the enactment of the macro value of justice in DR. These goals are: procedural justice (fair process), substantive justice (fair outcomes) and impartiality. The satisfaction of these goals is the safeguard that critics of processes other than litigation find lacking, and when these fairness-related goals are achieved, whatever the DR processes is, it can be regarded as true to the value of justice. In the blog posts that follow in the coming days of May I offer an analysis of the process goals of procedural and substantive justice and impartiality to further elucidate the nature of justice in DR systems.

Comments or responses to these thoughts are most welcome at any time!

[1] NADRAC, Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth of Australia, 1997), 20. See also, Cecilia Albin, Justice and Fairness in International Negotiations (Cambridge University Press, 2001).

[2] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727, 727.

[3] Cecilia Albin, ‘The Role of Fairness in Negotiation’ (1993) 9(3) Negotiation Journal 223, 223.

[4] See Morton Deutsch, Distributive Justice: A Social Psychological Perspective (Yale University Press, 1985) and Michael L Moffitt and Robert C Bordone, The Handbook of Dispute Resolution (Jossey-Bass, 2005) 90.

[5] Albin, above n 3, 225.

[6] Ibid. Carrie Menkel-Meadow, ‘Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In Some Cases) (1994) 83 Georgetown Law Journal 2663.

[7] Albin, above n 3, 225

[8] Menkel-Meadow, above n 6.

[9] Frey, above n 2, 727.

[10] Albin, above n 3, 225.

[11] NADRAC, above n 1, 20.

[12] Stuart Wolpert, ‘Brain Reacts to Fairness as it Does to Money and Chocolate, Study Shows’ UCLA Newsroom Science + Technology April 21, 2008, 6. See also, E Allan Lind, ‘Fairness Heuristic Theory: Justice Judgments as Pivotal Cognitions in Organizational Relations’ (2001) 56 Advances in Organizational Justice 88.

First or Second-Class Justice? Justice as a DR Value

The values and goals of DR systems are an important dimension of the DR panorama and an understanding of these values and goals is critical to ethical, effective and efficient practice in DR contexts. My contribution to the Blog this month explores the values and goals of DR methods by adapting content from Chapter 4 of my new work with Laurence Boulle: Australian Dispute Resolution – Law and Practice (LexisNexis, 2017).

There are high expectations of DR processes in the Australian community and its civil justice system, and these expectations are difficult to meet. Despite efforts over recent decades to inculcate community dispute resolution, and to renew and refresh the way the civil justice system operates, the DR system at large, and the way it is managed by governments, and used by lawyers and citizens, remains imperfect and in need of improvement.

Concerns continue to exist, for example, about the costs of DR, both in relation to State resources invested in determinative processes and costs to individuals who seek assistance with managing or resolving disputes through processes across the DR matrix. The concerns also pertain to problems more broadly associated with accessing just and fair outcomes to legal and other disputes. Worryingly, there seems also to be a continuing resistance within the system to fully embracing DR processes other than litigation that remain for some (particularly perhaps legal professionals of long-standing) unfamiliar, and continue to be perceived as not adequately protecting parties’ legal rights.

The concepts of justice, party autonomy and community are core DR values that should be used to inform the achievement of appropriate DR goals.

Justice as a dispute resolution value

The particular focus of this blog is on justice as a dispute resolution value.[1] ‘Justice’ is an important philosophical and intellectual element of any framework of DR values, and arguably a foundational driver and motivator for all DR processes in the matrix. The notion of justice should inform day-to-day practice, both in legal contexts and outside them. Amongst the core substantive values of democratic systems of law and governance the conception of justice connects with perceptions of participation, accountability, transparency, rationality, equality and due process.[2]

DR practitioners working with the value of justice at the centre of their professional identity can critically assess their practices and their impacts by asking reflective questions like: ‘Does my practice contribute to achieving justice for each of the parties?’ and ‘How can the DR processes I practice better provide the parties with just process and outcomes?’

To develop a framework of DR values with justice as a critical element a clear conception of justice itself, in the DR context, is necessary. Justice is, however, a complex notion and hard to conclusively define, not least in the context of law and dispute resolution.[3]  Welsh has stated concerns that justice in this context is ‘increasingly marginalized as a sweet, old-fashioned notion’,[4] perhaps because it is ‘so undefinable and unattainable that thinking about it generates more self-doubt than clarity’.[5] The Productivity Commission noted: ‘”Justice” is what people are seeking access to’ but it is a concept that ‘can be easier to recognise than to define’.[6] Stuart Hampshire, in his book Justice Is Conflict, concludes that there may never be agreement on a universal concept of justice.[7] Julie Macfarlane has reported that when a lawyer was asked in her research to differentiate between a ‘good’ outcome and a ‘just’ outcome, their response was: ‘There’s no justice; it’s just a game. What are you, new? That’s a really funny question’. Another lawyer responded: ‘Justice is way too deep for me.’[8]

Big theories of justice, such as Rawls’ theory of the fundamental principles necessary for a just and morally acceptable society, are too broad and abstract to assist in building a useful values framework for DR.[9] Rawls’ restatement of his theory in 2001 as justice as fairness[10] and Dworkin’s theory of ‘law as integrity’ are closer to the mark in terms of integrating understandings of fairness into explaining the concept of justice.[11] Dworkin’s theory is one of the most influential about the nature of law in contemporary times, but it was written for an adversarial justice system focussed on judicial interpretation of the law, and so is adaptable but not adoptable for our purposes.[12]

For a more concrete approach it is useful to consider how legal dictionaries define justice, namely as ‘rightfulness’, ‘fairness’, ‘that which is deserved’, ‘a moral value generally supposed to be the end to which laws are the means’.[13] With concepts such as rightfulness and fairness in mind, it is relatively uncontroversial to assert that drawn-out, expensive, difficult to access, alienating and hard to understand DR processes do not satisfy a general conception of justice. Litigation is sometimes said to be unjust in these ways and DR processes other than litigation are often presented as mechanisms for addressing ways in which litigation compromises justice for disputing parties. On the other hand, DR systems that are more efficient in terms of cost and time and that are easier to access than litigation but less certain to protect strict legal rights and entitlements of citizens, are often posited as providing potentially unjust procedures and outcomes, or of providing ‘second-class’ justice.[14]

The identification of ‘classes’ of justice and the juxtaposition of first- and second-class justice has been a part of the DR literature since at least the 1980s.[15] The argument that DR processes other than litigation can offer only ‘second-class justice’ posits that it is those who cannot afford to go to court who are forced to use ‘ADR’ processes and are required as a result to compromise and collaborate, rather than harnessing the authority of the law and the system that formally administers it, ultimately being denied the opportunity to ‘win’ their case.[16] In the 1980s Abel led the argument that underprivileged parties are more likely than pecunious parties to be referred to ADR schemes, and that such schemes offered the rhetoric of party empowerment and autonomy but did not always deliver this in reality.[17] It has also been claimed that the term ‘justice’ has no relevance to DR processes other than litigation and should be used only in relation to the procedures and outcomes of  formal justice systems.[18]

A system or process that is ‘second-class’ is one that is ‘a cut below the best’, ‘second rate, inferior or mediocre’.[19] A conviction that DR processes other than litigation offer second-class justice centres on the view that litigation provides the model of first-class justice. This assumes, by definition, that litigation is a cut above the rest, first rate, superior, exceptional and excellent. Other formal law-informed determinative processes, such as arbitration and adjudication, have also had a long and strong correlation with first class conceptions of justice. As statues of justice as a blindfolded goddess imply, litigation offers a process in which the judge impartially judges ‘the case rather than the parties’.[20] Amongst other things this means that justice through litigation is transparent and accountable, that it provides a level of consistent if not always strictly equal treatment of parties and their matters, and that its justice credentials warrant the imposition of enforceable state-sanctioned outcomes.

The capacity of DR processes to deliver justice is often measured by way of comparison with the justice principles of the law and its implementation through litigation. NADRAC summarises the safeguards of fairness and justice in litigated processes as follows:

Power imbalances between the participants can be ameliorated by legal representation. Procedural and evidentiary rules ensure that each person has a chance to present their case and to challenge the arguments and evidence of the other person. There are enforceable procedures which ensure that each person has access to relevant evidence so that the dispute is decided on the basis of appropriate disclosure of information. There is a well-qualified and respected third party decision maker who evaluates the evidence and arguments of the parties and who makes a decision according to established principles. The process of litigation is open and observable and decisions are subject to appeal.[21]

Resnik has listed 12 qualities of due process found in determinative processes such as litigation that are considered to be ‘valued features’:[22]

  • Rules of procedure bestow individual autonomy and opportunities for the litigants to persuade the decision-maker of the rightness of their case.
  • For decision-makers, procedure provides a concentration of power in judicial decision-making; a diffusion and reallocation of power through the use of juries, appellate courts and hearings de novo; impartiality and visibility; rationality and norm enforcement; ritual and formality.
  • Adjudicative decision-making has the valued features of finality and revisionism, economy (in the sense of low direct costs) and consistency yet differentiation.

Resnik does not claim this list to be comprehensive, nor that the features should always be accorded equal weight. She accepts that there are tensions among them, with different priorities accorded at different times, and acknowledges that a number of these features are disputed or can be found in processes other than litigation.

Since his appointment in 2006, Chief Justice Wayne Martin of the Supreme Court of Western Australia has been fond of analogising the court system, albeit through a critical lens, with a Rolls Royce, a first-class vehicle. He has said, for example, that the system is: ‘A Rolls Royce of justice systems in the sense that it is the best that money, a lot of money, can buy. But there isn’t much point in owning a Rolls Royce if you can’t afford the fuel to drive it where you want to go. You can polish it, admire it and take pride of ownership from it but it doesn’t perform its basic function sitting in the garage…. It might be time to consider trading our Rolls Royce for a lighter, more contemporary and more fuel-efficient vehicle which will get us where we need to go just as effectively and perhaps more quickly’.[23]

The value characteristics of litigation, referred to above, are seen as providing justice through an impartial process based on principles of procedural fairness. It is because processes other than litigation may not as comprehensively satisfy these elements that they are judged as lacking the capacity to provide ‘first-class justice’, and are questioned in relation to their ‘internal procedures, their impact on individuals and their broader societal consequences’ (including their emphasis on compromise and settlement).[24] This perception is widely held because the ‘umpire’ model that litigation represents has deep roots in Western conceptions of justice.[25]

However, the actual use of litigation does not accurately correlate with its high regard as a DR system. Most citizens do not commonly have recourse to the courts, or to the law or lawyers, even where a dispute raises legal issues and claims.[26] It seems then that public perceptions of justice, and particularly of the nature of first-class justice offered by the courts, are typically not shaped by personal or real experience. Further, the last 30 years of advocacy for community DR and for reforms to civil justice systems evidence wide-spread recognition that litigation, while undoubtedly an important aspect of the DR matrix, has often failed to provide any sort of justice for the general citizenry, let alone first-class justice. While litigation represents notions of objectivity, rationality, consistency and formal equality before the law, inaccessible justice is justice denied. Justice through the courts is perhaps more an ideological ‘vibe’, as one of Australia’s most famous lawyers might say.[27]

As Rhode has commented, critics of the justice offered by DR systems other than litigation need to consider how often and on what terms ‘first-class’ justice is available.[28]  Menkel-Meadow reminds us that, ‘legal justice is not always actual justice’.[29] For Frey, first class justice is not limited to litigation, rather a ‘first class dispute resolution process, whether litigation or an alternative process, must offer the disputants impartiality, a just process and a just result’.[30]

It is apparent then that in order to construct a robust values framework for the DR processes represented in the matrix, a meaning of justice is required which is relevant across DR contexts and deals with the challenges of a perceived hierarchy in different classes of justice provided by various processes.[31]  Such a framework needs to deal realistically with issues of access to justice. It must balance the importance of maintaining a legal doctrine of precedent as part of justice under the rule of law,[32] with the need for less public and formal forms of dispute resolution which are more humane and provide individually tailored outcomes.[33] The framework also needs to address concerns about the relationship between private settlement and the public enforcement of rights.[34]

Constructing such a framework is far from a simple task.  As the former Chief Justice of the Federal Court of Australia, Michael Black, has said: ‘We should maintain the search for that elusive point of equilibrium at which the competing pulls of cost, speed, perfection and fairness are balanced in a way that produces substantial and accessible justice — not perfection, but nevertheless processes and outcomes readily recognisable as substantial justice according to law’.[35]

In the blogs that follow this month I continue to develop these ideas. So stay tuned!

[1] Some of the influential early works on this topic in the DR field include: Richard Abel (ed), The Politics of Informal Justice, Volume 1 (Academic Press, 1982), Jerold Auerbach, Justice Without Law (Oxford University Press, 1983); Roger Matthews (ed), Informal Justice? (Sage, 1988); Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66 Denver University Law Review 437; Sally Engle Merry and Neal Milner (eds), The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (University of Michigan Press, 1993);

[2] Richard C Reuben, ‘Democracy and Dispute Resolution: The Problem of Arbitration’ (2004) 67 Law and Contemporary Problems 279, 282. See also, Richard C Reuben, ‘Democracy and Dispute Resolution: Systems Design and the New Workplace’ (2005) 10 Harvard Negotiation Law Review 11.

[3] There is a vast literature on the concept of justice spanning from Plato’s Republic (trans Robin Waterfield) (Oxford University Press, 1984) through to one of Dworkin’s last and most expansive works – Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011) and Eric Heinze, The Concept of Injustice (Routledge, 2013).

[4] Nancy A Welsh, ‘Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories’ (2004) 54 Journal of Legal Education 49, 49.

[5] Ibid 50.

[6] Productivity Commission, Access to Justice Arrangements: Report Volume 1 (Commonwealth of Australia, 2014), 75.

[7] Stuart Hampshire, Justice Is Conflict (Princeton, 2000) 4.

[8] Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2008).

[9] Namely, enjoyment of the most extensive basic liberty possible (without compromising the liberty of others), and social and economic positions to everyone’s advantage and open to all. See for example: John Rawls, A Theory of Justice (Harvard University Press, rev ed, 1999) (first published in 1971); Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press, 3 ed, 2012).

[10] See John Rawls, Justice as Fairness: A Restatement (Belknap Press, 2001).

[11] See Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) and Ronald Dworkin, Justice in Robes (Harvard University Press, 2006).

[12] Ibid.

[13] For example, see the CCH Concise Dictionary of Modern Law.

[14] Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2000) 36 Tulsa Law Journal 727.

[15] Abel, above n 1; Auerbach, above n 1.

[16] See for example, Stephen B Goldberg, Frank EA SanderNancy H Rogers and Sarah Rudolph ColeDispute Resolution: Negotiation Mediation & Other Processes (Wolters Kluwer, 6th ed, 2012). See also Lola and Mauro Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-to-Justice Movement’ (1993) 56 The Modern Law Review 282.

[17] Ibid.

[18] NADRAC itself noted this assertion – see NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth Government, 1997) 20.

[19] Frey, above n 14, 728.

[20] Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003) 284-86.

[21] NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution: Discussion Paper (Commonwealth of Australia, 1997), 16.

[22]Judith Resnik, ‘Tiers’ (1983-4) 57 Southern California Law Review 837, 844-59.

[23] Wayne Martin, ‘Bridging the Gap’, Address to the National Access to Justice and Pro Bono Conference (12 August 2006); Wayne Martin, ‘Improving Access to Justice through the Procedures, Structures and Administration of the Courts’, Address to the Australian Lawyers Alliance Western Australian State Conference, 21 August 2009 Novotel Langley Hotel Perth, WA; and Wayne Martin, ‘Access to Justice’, Notre Dame University Eminent Speakers’ Series Inaugural Lecture, Fremantle Campus Wednesday, 26 February 2014. See also, The New Lawyer, ‘Justice an Easily Admired, Yet Inaccessible Rolls Royce: Chief Justice’, The Lawyers’ Weekly, 27 August 2009, http://www.lawyersweekly.com.au/the-new-lawyer/bar-bench/11887-justice-an-easily-admired-yet-inaccessible-rolls-r. This analogy has been used by others also, for example, Donna Cooper, ‘When Rolls Royce and Holden Justice Collide: An Analysis of the Operations of the Federal Magistrates Service in Queensland in the Family Law Arena’ (2003) 3(2) QUT Law and Justice Journal 1.

[24] Laurence Boulle, Mediation Principles Process Practice (Lexis Nexis, 1996). See also Stephen B Goldberg, Frank EA Sander, Nancy H Rogers, Sarah Rudoph Cole (eds), Dispute Resolution (Wolters Kluwer, 6th ed, 2012); Francis Regan, ‘Dilemmas of Dispute Resolution Policy’ (1997) 8 Australian Dispute Resolution Journal 5, 14–15.

[25] Posner makes consistent reference to the judge as ‘umpire’:   Richard A Posner, ‘The Role of the Judge in the Twenty-First Century’ (2006) 86 Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003).

[26] This research has been around for a long time – see for example Russell Smith and Sally Lloyd-Bostock, Why People Go To Law: An Annotated Bibliography of Social Science Research (Centre for Socio-Legal Studies, Oxford, 1990); and Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (Oxford University Press, 1999), 246, 247-8.

[27] Dennis Denuto: ‘In summing up, it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe, and … no that’s it … it’s the vibe. I rest my case’. The Castle (1997) directed by Rob Sitch.

[28] Deborah L Rhode, Access to Justice (Oxford University Press, 2004) 42.

[29] Carrie Menkel-Meadow, ‘From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54(1) Journal of Legal Education 7, 8.

[30] Frey, above n 14, 727.

[31] Edgar Allan Lind and Tom R Tyler, The Social Psychology of Procedural Justice (Plenum Press, 1988).

[32] David Luban, ‘Settlements and the Erosion of the Public Realm’ (1995) 83 Georgetown Law Journal 2619.

[33] See discussion in Boulle, above n 24, regarding ‘mediation’s alternative justice model’, 210-212.

[34] Silbey and Sarat, above n 1.

[35] Michael Black in the Productivity Commission Report, above n 6, 92.

DR Praxis

DR Praxis[1]

The new work Australian Dispute Resolution Law and Practice (LexisNexis, 2017) articulates how there is a deep diversity in Australian DR practice which is grounded in a rich history (see Chapter 3). The early enthusiasm for ‘ADR’ was at times unbounded and uncritical, but the practice of DR in Australia is now well established and its roots are strong because they have been informed by developing critiques of DR processes across the matrix and by assessments of the potential of DR, including empirical studies and evaluations.

Nevertheless, there has, at times, been a certain level of disconnect between DR theory and DR practice. In order for DR to fulfil a new central role in legal professional practice in the future, a purposeful and rigorous approach is necessary to ensure that DR theory informs its practice and that practice developments inform DR theory. This is the DR praxis project; a project that is deserving of far more rigorous attention in the DR community. In the book, we flag the importance of the issue, highlight some key elements of DR praxis, and suggest some ways in which the praxis of DR can be sustained and supported into the future. There will always be a need to continue empirically researching and evaluating and theorising about DR systems. It is also important to draw from the existing body of theoretical, scholarly DR knowledge to inform the praxis project.

Praxis and DR advocacy[2]Australian Dispute Resolution Law and Practice is about contemporary lawyering and legal practice in Australia, and how traditional approaches to the delivery of legal services and to ways of being a lawyer need to be reconceptualised. Lawyers must now be more than one dimensional adversarial fighters for rights and entitlements. For a sustainable future for the legal profession, lawyers must be multi-dimensional, multi-skilled, adaptable and agile practitioners in the context of the processes across the DR matrix.

How lawyers advocate in DR contexts, and what a legal DR advocate looks like (or should look like) is arguably one of the most important areas where a cultural shift is necessary for DR and legal praxis to move forward. It is critical that this shift is informed by the values and goals of DR and its theory (see Chapter 4). Both adversarial and non-adversarial advocacy knowledge, skills and attitudes are necessary for the provision of legal services to fulfil the DR values of justice, party autonomy and community. In Macfarlane’s words, lawyers must be able to ‘wear two hats’.[3]

Challenge: Some legal practitioners are resistant to accepting non-adversarial forms of advocacy as true advocacy – because legal advocacy has for so long been associated with adversarial approaches and court action. How can we promote non-adversarial forms of advocacy as having efficacy given the historical legal approach to advocacy?

[1] See for example, Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press, 2011); Eric K Yamamoto, ‘Critical Race Praxis: Race Theory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95 Michigan Law Review 821.

[2] On this issue see for example, Julie Macfarlane, The New Lawyer (UBC Press, 2008). This section of the Chapter particularly draws from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014), ch 13. Other important contributions to the literature on legal advocacy in DR contexts include: Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners, and Cooperative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian Dispute Resolution Journal 242; Donna Cooper, ‘The ‘New Advocacy’ and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178;Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats Between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204. See also, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) QUT Law and Justice Journal 77; Olivia Rundle, ‘Lawyers’ Perspectives on ‘What is Court-Connected Mediation for?’ (2013) 20(1) International Journal of the Legal Profession 33; Olivia Rundle, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition’ (2015) 18(1) Legal Ethics 46; Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32 University of Tasmania Law Review 20; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38 UNSW Law Journal 5; Paula Baron, Lillian Corbin and Judy Gutman, ‘Throwing Babies out with the Bathwater – Adversarialism ADR and the Way Forward’ (2014) 40 Monash University Law Review 283; Mary Anne Noone and Lola Akin Ojelabi, ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law and Policy145.

[3] Julie Macfarlane, above n 2, 98, 117.

Happy New Year from the ADR Research Network!

To all our followers and supporters of the ADR Research Network Blog.

Happy New Year and our best wishes for 2017!

It’s fair to say that 2016 was our most successful year yet. The Blog achieved its highest number of views since it was established in 2013 with more than 9000 views and almost 6000 visitors. Compare this with just over 800 views and just over 400 visitors for 2013. The Network members posted 64 posts across the year on diverse and interesting DR matters. These posts reached readers on almost every continent of the world.

In 2017 we aim to continue our contribution to scholarly critical thinking about DR and its place in contemporary global societies.  We look forward to growing the Network, and increasing the reach of our collective scholarship even further.

Thank you for following us in 2016 – we hope you will join us for another great year in 2017.

With our warmest wishes

The ADR Research Network Members