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

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

Conflict and disputes as lawyers’ business: cognitive, emotional and behavioural dimensions

This is a further (edited) excerpt from Chapter 5 of our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we discuss the nature and dimensions of conflict and disputes – particularly from the perspective that conflict and disputes are the core business of lawyering. We look forward to your comments and responses. Rachael and Laurence

Many disciplines investigate, research and analyse the nature and dimensions of conflict and disputes, from anthropology to sociology, and from psychology to political science.[1] The nature and dimensions of conflict are not, however, topics afforded significant attention within the traditions of law and legal practice. This is cause for surprise since a major part of law’s project involves dealing with conflict and disputes and their consequences, and there is significance in how legal events and interventions themselves impact on their scope, intensity and manageability. This Chapter suggests that conflict and disputes are the business of law and of lawyers, and their configuration should be as much the focus of the legal profession’s exercise of its expertise as bodily anatomy is to that of the medical profession.

The non-legal disciplines inform us that conflict and disputes are natural and everyday phenomena[2] encountered in homes, communities, boardrooms, parliaments and war zones throughout the world. They are played out vicariously in the news media and in television and in theatre and computer games and are not absent from non-human animals’ behaviours as well.[3] Whether between individuals, corporations or nation states conflicts and disputes all assume some degree of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. The incompatibilities can lead to disagreement and disagreement can lead to some kind of struggle, where each side pursues its own preferences in ways not acceptable to the other. The struggle can be verbal, as in hostile publications or political polemics; tactical, such as the formation of alliances or engagement of lawyers; or activist, such as trade embargoes or armed hostilities.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. While conflicts may commence as underlying feelings of uncertainty and unease over the prospective activities of others they can escalate into something more overt and significant. To take a topical example, there could be underlying tensions among farmers, exploration companies, government officials and politicians over properties targeted for coal-seam gas prospecting licenses.[4] This situation of covert conflict could endure for years in a relatively static state, despite occasional skirmishes from one side or the other, until there is a precipitating event which brings it into the open. The underlying conflict could evolve where one or other party takes public actions which raise contentious issues – for example government provides a licence for gas exploration against the wishes of a resistant farmer. Here there is overt behaviour which creates expectations of loss for the farmer in relation to the economic viability, environmental bio-security or the very existence of the family farm for future generations. The situation would evolve into a dispute when the licensed exploration company attempts to access the property and is obstructed by a protesting community group. The dispute could escalate where the latter are prohibited from their resistance activities by court order. There are now manifest issues requiring dispute management, namely the lawfulness of the prospecting corporation’s access to the farm, alleged non-compliance with the terms and conditions under which prospecting can occur, and the legalities of the protesting groups’ behaviour.

While the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon.[5] This knowledge is important for lawyering. Some commentators refer to three potential aspects to any conflict – the cognitive, the emotional and the behavioural.[6]

The first, cognitive, involves the perceptions, beliefs and understandings of those in conflict. Here parties could have a range of subjective perceptions that their needs are not being met because of the incompatible and unreasonable activities of others – for example a parent waiting for their children to be returned after an access visit perceives the other parent to be inconsiderate and believes they children’s interests are not best served by having access. The second is the emotional dimension, which involves the subjective feelings of people in conflict situations, including those directed at others involved in the conflict – for example the waiting party is upset, frustrated or angry over continual delays in returning the children. Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in conflict take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met – the parent in the above example remonstrates with the recalcitrant party, seeks legal advice or attempts to amend the contact arrangements.

The dimensions of conflicts and disputes need not coincide with one another. Thus, a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion). Some DR processes, such as arbitration and litigation, attempt to modify parties’ behaviours by getting them to commit to specific outcomes (behaviour) without attempting to change their perceptions (cognitive) about the conflict situation or to ameliorate negative feelings regarding the other party and themselves (emotions), for example by moving from anger to an acceptance of new realities.[7] Processes, such as facilitation and mediation, attempt in varying degrees to deal with all three dimensions of conflict.[8]

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Thus, where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.[9] These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion. For a spouse in shock (‘I don’t know how this happened’) or denial (‘They’re just going through a phase, everything will be fine’) after the breakdown of a relationship it is not easy to negotiate or make appropriate decisions, for example in relation to the division of matrimonial property.[10] The grief and loss process may have to be managed before the respective party can say with conviction, ‘I just want to get on with my life and dividing up the property will help with that’. Once a person has reached the ‘acceptance’ stage of the grieving process they are more able to create new meanings for their lives, and to participate authentically in dispute resolution processes.[11]

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect, based on life experiences, on what others have told them or on their professional advice. For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. However, a conciliator or other intervener who acknowledges Ruby’s beliefs and understands their significance for her perceptions and behaviour may be able to assist her through the conflict process.

An understanding of the dimensions of disputes, of their potential to escalate and of the loss and grief conflicted parties might be experiencing, provides insights for lawyers into what particular DR process will respond most appropriately to their clients’ needs.[12] Some processes are suited to dealing with substantive needs, such as payment of money or assertion of intellectual property rights, thereby forcing one or both parties to modify their behaviours. Some deal better with the psychological and emotional factors, referred to above, such as shock, anger and frustration over past behaviours and current recalcitrance. Yet others deal with cognitive issues relating to perceived unfairness or powerlessness by providing procedural steps which convey respect and dignity, productive avenues of communication and the maintenance of ongoing relationships. The law has traditionally been inclined to focus on the substantive and procedural needs of clients, whereas some of the processes in the contemporary DR matrix aim to engage as well with the psychological and emotional dimensions.

[1] The term itself derives from Latin, meaning ‘to strike together’.

[2] See John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995) 8-9.

[3] While this is a truism, studies of animals in conflict situations show how they elicit ‘mediation’ and ‘arbitration’ behaviours from other animals. See generally Frans de Waal, Our Inner Ape (Granta Books, London, 2005) and Frans de Waal (Stephen Macedo and Josiah Ober (eds)), Primates and Philosophers: How Morality Evolved (Princeton University Press, 2009).

[4] On managing these issues see Laurence Boulle, Tina Hunter, Michael Weir, Kate Curnow, ‘Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations:  Developing the Queensland Regulatory Framework’ 17 (2014) The Australasian Journal of Natural Resources Law and Policy 43.

[5] For leading Australian and international texts on conflict and its management see footnote 1 of Chapter 5 of Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017).

[6] See Bernard Mayer, ‘How We Experience Conflict’ and ‘What Causes Conflict’ in The Dynamics of Conflict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 3-4 and 8-10 respectively. See also Laurence Boulle, Mediation: Principles Process Practice (Lexis Nexis, 3rd ed, 2011) 108-9.

[7] See Robert I Simon and Daniel W Shuman (eds), Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Publishing, 2008).

[8] See for example, Ray Friedman et al, ‘The Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes’ (2004) 89(2) Journal of Applied Psychology 369.

[9]  A classic text is Elizabeth Kubler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief Through the Five Stages of Loss (Scribner, 2014).

[10] Or in relation to parenting matters:  Joan B Kelly, ‘Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes’ (2003) 9(1) Journal of Family Studies 37.

[11] See Esther Davis, Frank Deane and Geoffrey Lyons, ‘Prediction of Individual Differences in Adjustment to Loss: Acceptance and Valued-Living as Critical Appraisal and Coping Strengths’ (2016) 40(4) Death Studies 211; and Froma Walsh, Strengthening Family Resilience (Guilford Publications, 2015).

[12] See for example, Penny Lakey, ‘An Exploration of Multiparty Dispute Resolution When the Impending Death of a Loved One Creates an Escalation in Family Conflict’ (2007) 10(3) ADR Bulletin 56

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