About Dr Susan Armstrong

Sue Armstrong is an Adjunct Professor in the School of Law, Western Sydney University, Australia. She is an accredited Family Dispute Resolution Practitioner and a collaborative practice coach. She publishes, researches and teaches about family dispute resolution.

Resolving property disputes following separation – is there a quick, just and cheap option?

split house

Most Australian jurisdictions aim to facilitate the just, quick and cheap resolution of civil disputes. The High Court has affirmed that ‘speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of the proceedings.’[1]  Non-litigious dispute resolution is frequently advocated as the most appropriate means to achieve these sometimes conflicting objectives.

The availability of cost effective, quick and fair ways to resolve any disagreements about how to distribute shared assets (and liabilities) is important for many separating families, and also for the broader community. Research has consistently shown that separation can be a key predictor of financial disadvantage and falling living standards for many women and the children in their primary care. Financial stress experienced by either parent is likely to affect the whole family, and money and capacity to parent effectively are closely connected. While the financial concerns of each family following separation will vary according to their assets and specific needs, many will have urgent questions about Centrelink entitlements, child support obligations, debt management, capacity to manage two households, and information about how they should go about dividing their assets. It is often very difficult for people to know where to start to find answers to these questions.

While many separated families don’t have much to distribute (about 60% have less than $40,000 of assets), 40% will sort things out by discussion, 30% will use lawyers, 4% will rely on mediation, 7% will have the matter decided by courts, and the 20% remaining will not use any particular process.[2]  This means a significant number will seek, and more may need, some kind of professional or service assistance. Cheap, quick, and simple options that achieve fair outcomes are important as it can be extraordinarily expensive, and may take up to three years, for parties to litigate a matter in a family court.[3]  Litigation is also emotionally exhausting for all involved, and research indicates the emotional impact on children increases with the length of time spent in court proceedings.

DIY aside, there are few ‘cheap’ service options. A single session advice by a family lawyer may cost between $400 and $800, and thousands of dollars if more assistance is required.  There is not a nationally consistent approach by Legal Aid Commissions, and funding is rarely granted to resolve property disputes, but may be possible if connected to disputes about children.  Community legal centres may provide free legal advice in relation to family property disputes, and assist parties to initiate or finalise documents, and specialist CLCs provide assistance with child support.

Unlike disputes about the care of children following separation, there is no enforceable requirement to attempt to resolve property disputes before filing a court application. There are pre-action obligations which parties are required to follow before starting a family law property case, including full disclosure of financial matters, and making attempts to resolve the dispute quickly using dispute resolution methods to avoid legal action and limit costs. Lawyers are obliged to advise clients in relation to these options. However, it seems that most people do not comply with the pre-action procedures, and costs orders are rarely made against parties who fail to follow them.[4]

There is no government-funded system to facilitate the resolution of family property disputes, in the way that the 65 Australian Family Relationship Centres (FRCs) provide (largely) free family dispute resolution (FDR) to assist agreement about children. This possibility was mooted in 2010, but the Commonwealth Attorney General did not proceed with it. Given the close connection between parenting and financial matters, is it unfortunate that it did not, or that resources were not provided to support other agencies to assist with financial matters following separation.

Some commentators have suggested introducing pre-filing FDR for property would have put ‘the cart before the horse’ and may have been dangerous without also providing a wider a range of services and options to assist separating parents to fairly negotiate financial issues. The options they recommended included ‘access to a range of professional assistance, including … financial counselling, information and advice (including legal advice) in relation to the range of financial matters affecting them (Centrelink benefits, child support responsibilities and property division [including their financial disclosure obligations]), along with appropriately trained FDRPs to conduct financial dispute resolution, lawyer assisted FDR if appropriate, and legal advice and assistance prior or during FDR, and in relation to formalising their arrangements.’[5]

Some FRCs now assist parties to resolve, or at least to narrow the issues in property disputes, and some community agencies are funded to provide FDR for property at minimal or a sliding scale cost (generally less than $1000 shared between the parties, excluding legal advice). There is scope however, for expanding these services to separating families. The Law Society of NSW administers a Family Law Settlement Service which mediates property disputes that have already been filed in a Family Court and reached the post-conciliation conference stage, for about $2000, excluding legal fees.

Mediating property disputes may be simple and relatively quick, depending on the complexity of the parties’ assets, liabilities and needs.  As a facilitative process, it may also provide parties with more certainty and control and assist them to tailor outcomes to meet the needs of their family members. All family mediations are required to be conducted by accredited FDR practitioners or mediators, who are obliged to ensure procedural fairness in facilitating agreement. The substantive fairness of the outcomes of these processes is discussed below. Collaborative processes also support parties to make interest based decisions and is generally less cost that court proceedings.

Determinative processes, such as arbitration, have recently experienced a revival, although this option has been available to parties for 25 years. Arbitration may provide parties with finality and greater certainty about legal costs and processes, and choice about who arbitrates, and thus assist them to move on with their lives. Parties may also have some control over the arbitration process and may elect to dispense with the rules of evidence, and the arbitrator must ensure procedural fairness. Recent reforms to the rules governing family law arbitration require full and frank disclosure, and permit arbitrators to compel witnesses and the production of evidence. Arbitrators must be family law specialists and be accredited. They are required to provide written reasons in accordance with the Family Law Act 1975, and these are appealable or may be set aside.[6]

Evaluative processes are also available, such as where a senior family lawyer conducts a neutral evaluation and provides recommendations to parties about a possible outcome or elements of the dispute. Parties who commence litigation will also be required to attend a conciliation conference or case management conference presided over by a registrar who will advise about likely outcomes.

The extent to which family law informal processes and agreements are fair or just is moot. The empirical evidence indicates that the type of process or type of agreement parties reach does not affect the substantive outcome. Property outcomes are more likely to be influenced by the size of the asset pool, the length of the marriage, the dynamics of separation, whether violence is present, care of children and perceptions of guilt.[7]  Parties’ views about the fairness of the division of domestic or household property assets depends on whether they think that their contribution to these assets was reflected in the final outcome and who has care of the children. Whether such outcomes are also substantively fair is uncertain. The outcomes of informal processes often treat the division of family business assets differently to domestic assets, and fail to reflect the opportunity cost of caring for children, in contrast to the outcomes of more formalised or assisted processes which more closely reflect legislative requirements to consider these matters.[8]

In conclusion, there are a range of options that can assist separating couples to divide their joint property, but not all are quick, simple or cheap. The extent to which parties will achieve just resolution depends on a range of factors not necessarily tied to the type of process they use. Whilst the dispute resolution process chosen may minimise some of the financial difficulties and uncertainties families face at separation, such processes also need to be anchored in a broader range of inexpensive, accessible and consistent financial information and advice services, as a critical first step.

[1] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

[2] Lixua Qu, et al, Post Separation Parenting, Property and Relationship Dynamics after Five Years, AIFS, 2014, 99.

[3] Patrick Parkinson reported that among 80 separated parents he researched over 5 years, 12 reported legal costs of ‘$100,000 or more just for themselves, with the highest estimate being between $450,000 and $500,000.’ Although these costs primarily resulted from disputing about children, many families were disputing about both children and property. Patrick Parkinson, et al, ‘The Need for Reality Testing in Relocation Cases’ (2010) 44 Family Law Quarterly 1, cited in Patrick Parkinson ‘Can There Ever Be Affordable Family Law?’ Current Legal Issues Seminar, Supreme Court of Queensland, Brisbane, 9th May 2017.

[4] Belinda Fehlberg, et al, ‘Pre-filing Family Dispute Resolution for financial disputes: Putting the cart before the horse?’ (2010) 16 Journal of Family Studies 197–208; Justice Robert McClelland, ‘Expectations and opportunities for dispute resolution in family law property cases.’ Presentation to Resolution Institute NSW, 27 April 2017.

[5] Fehlberg, ibid.

[6] Patrick Parkinson, ‘Arbitration in Family Property Proceedings: Exploring the Potential’ (2016) 21 Law Society of NSW Journal 78-79; McClelland, above note 4.

[7] Qu, above n 2, 105; Belinda Fehlberg, et al, ‘Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214.

[8] Grania Sheehan & Jody Hughes, ‘The division of matrimonial property in Australia: What is a fair settlement?’ (2000) 55 Family Matters 28.

 

 

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Collaborative Practice: novelty or norm?

Collaborative practice is experiencing a revival across Australia in resolving family law disputes, demonstrating maturity in its practice and its dispute management potential and posing questions about whether it can or should be the norm in the resolution of disputes, especially those affecting families.

Image result for collaborative meetings creative commons

In many Family Court registries there are delays of up to three years for cases to reach trial. This has prompted renewed interest in collaborative practice by family lawyers and others involved in family dispute resolution, who inform disputants that it can help them to ‘stay in control of your own decisions and out of court’.  The Family Law Council reported in 2007 on Collaborative Practice In Family Law and further impetus was given in 2011 when the Law Council of Australia released Collaborative Practice Guidelines for Lawyers (the Guidelines).[1]  Specialised training for collaborative practice is being widely conducted, and professional practice groups have been revitalised and formed locally and state-wide, with the launch of the Australian Association of Collaborative Professionals imminent.[2]  These developments represent a maturity among collaborative professionals, as well as reinvigorated confidence in the potential of collaborative processes to resolve family disputes productively, transparently and co-operatively.  It has also led to the emergence of new models of collaborative practice which further indicate its maturity as a dispute management process, and which suggest promising shifts in legal practice.

Collaborative law emerged in Australia more than 10 years ago, following North American experiments in the 1990s to resolve post separation disputes through civilised, respectful non-adversarial, interest-based negotiation.[3]  In Australia collaborative practice is defined as ‘a process in which clients, with the support of a collaborative practitioner, identify interests and issues, then develop options, consider alternatives and make decisions about future actions and outcomes’.[4]  The distinctive feature of collaborative law is a contractual agreement between lawyers and clients to not litigate and to negotiate in good faith.  Lawyers are engaged in a representational capacity and assist clients to understand the law and to be responsible for decision making.  As Marilyn Scott observes, collaborative lawyers ‘need to be able to give sound legal advice’, but also ‘to have advanced skills in dispute analysis, negotiation preparation and strategising skills, excellent people skills and a sound understanding of conflict dynamics and conflict management.’[5]  Parties may also choose to involve non-legal experts such as financial planners, child consultants and psychologists in the collaborative process.

Indeed, this way of managing legal disputes is currently termed ‘collaborative interdisciplinary practice’ to highlight the value of a range of professionals contributing to the management of a dispute and supporting parties to make informed consensual decisions.  All the professionals involved in Australian collaborative interdisciplinary family practice are required to participate in training and to register with a collaborative practice organisation to ensure a shared philosophical commitment to non-adversarialism, and to foster professional networks and standardise practice.[6]

The role of an independent intervener or coach has also emerged as an important component of the current collaborative process, leading to the development of five-way meetings (single coach, lawyers and parties) as the preferred model, at least among many Sydney collaborative family law professionals. The coach generally assumes the role of an independent and impartial facilitator and steward of the process, assessing the dispute and parties for suitability, and assisting the lawyers and parties to make most efficient use of process and maximising their contribution to it. The coach frequently manages the process, including agenda setting and minuting, assists parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with parties between five-way meetings for various reasons, for example, to facilitate feedback from child consultants, foster parental alliance, clarify party goals, assist parties to develop strategies regulate their emotional state, and to assist the family to transition through the separation.

Coaches may be mental health professionals, but in Australia are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue section 60I certificates should agreement not be reached.  The growing prominence of coaches in collaborative practice is not an ‘an indictment on the ability of collaborative lawyers to perform the basic tasks of the collaborative process’, as Henry Kha suggests.[7] On the contratry, it gives greater weight to Laurence Boulle and Rachael Field’s conclusion that collaborative practice constitutes a ‘more authentic alternative to adversarial justice’ with real promise of creative, client-centred, consensual outcomes in an integrative, multi-professional and flexible process.[8] In Canada and the United States, it is claimed to have settlement rates of over 95 per cent and a straw poll from the Central Sydney Collaborative Forum indicates 85 per cent.[9]

Of course collaborative practice is not suitable or affordable for all disputes or disputants. It is claimed that the cost of collaborative practice is ‘generally less than the conventional adversarial path’ and parties have control over the pace and timing of the process.[10]  A separate intake assessment is required, but the Guidelines do not identify issues to be considered in evaluating appropriateness.[11]  Capacity to negotiate freely in a family context may be affected by violence, risks to safety to parties or children, mental or other health concerns and inequality of bargaining power.[12]  The presence of legal advocates will generally minimise such risks.  It was the presence of a range of professionals in the Coordinated Family Dispute Resolution (CFDR) pilots that made some victims of violence feel that the CFDR process was safe and fair.[13]  Perhaps a blending of the strengths of collaborative processes with those offered by CFDR might lead to an affordable, accessible and safe model of collaborative resolution of family disputes, especially for complex cases which often result in litigation and significant emotional and financial cost.

Because of the greater emphasis in collaborative practice on the values of ‘humanism, emotional expression and the maintenance of relationships’,[14] some commentators argue that it is illustrative of a ‘new advocacy’ challenging traditional assumptions of legal practice and reclaiming for lawyers a role as facilitators of creative and constructive client-centred non-legal outcomes.[15]  If such shifts in legal practice are to deliver the promise of a more positive professional identity for lawyers and more humane legal system then, as Rachael Field, Laurence Boulle and other legal scholars have argued, we need to design legal education to prioritise appropriate dispute resolution expertise and practice.[16]  Whilst it is unlikely in the short term to become the norm in resolving family legal disputes, because of cost barriers or unsuitability, development of greater understanding of collaborative practice among law students may mean it would become normalised rather than novel. It may also be more likely to be applied in a broader range of contexts as suggested by the Law Council, including ‘commercial, community, workplace, environmental, construction, building, health and educational decision making.’[17]

[1] Family Law Council, Collaborative Practice in Family Law: A report to the Attorney-General prepared by the Family Law Council (2007); Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011).

[2] Collaborative Professionals (NSW) Newsletter 1 (2017); Shelby Timmins, ‘Thinking Outside the Box: Collaborative Practice in Family Law’ (2017) 31 Law Society Journal 88.

[3] See Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (2017) 54.

[4] Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011) 4.

[5] Marilyn Scott, ‘Collaborative Law: Dispute Resolution Competencies for the ‘New Advocacy’’(2008) 8 Queensland University of Technology Law & Justice Journal, 213, 216.

[6] Guidelines above n 1, 9-10.

[7] Henry Kha, ‘Evaluating collaborative law in the Australian context, (2015) 26 Australasian Dispute Resolution Journal 178, 184.

[8] Boulle and Field, above n 3, 247.

[9] Judge John Pascoe, Collaborative and Creative approaches to family dispute resolution: Perspectives from the Bench, Federal Magistrates Court, 2; Email communication from Rachel Slat, Accredited Specialist (Family Law).

[10] Timmins, above n 2, 89.

[11] Guidelines, above n 1, 5.

[12] Family Law (Family Dispute Resolution Practitioners) Regulations 2008, reg 25.

[13] Rae Kaspiew, et al, Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases, Final report, Australian Institute of Family Studies (2012) 111.

[14] Boulle and Field, above n , 246.

[15] Scott, above n 5, 228. Also Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law, University of British Columbia Press (2008).

[16] Boulle and Field, Ch 13, and references cited therein. Also Scott, from 229.

[17] Guidelines, above n 1, 5.

Resolution of family law property disputes: Expectations and opportunities to keep clients away from the courts

FDR colleagues are invited to a talk on this issue by former Attorney General and now Family Court Justice Robert McClelland on Thursday, 27 April @ 5.30pm at Resolution Institute Level 1, 13-15 Bridge Street,  Sydney.

Most married or de facto couples acquire assets and liabilities during their relationship. Finalising arrangements for property can be complex, expensive and time consuming.

Join the Family Special Interest Group and our guest speaker Justice Robert McClelland to consider some of the issues in property dispute resolution including:

– Pre-trial obligation to make a genuine effort to resolve dispute before starting a case
– Requirement to attempt conciliation before a property matter is set down for hearing
– Operation of Chapter 26B of the Family Law Rules concerning arbitration.

Learn about expectations and opportunities to keep clients away from the courts and better assist in resolving these types of disputes.

About Justice Robert McClelland 

Justice McClelland was appointed a judge of the Family Court of Australia in June 2015 and has practised as a solicitor and barrister. He was elected to Federal Parliament in 1996 and served as Commonwealth Attorney General between 2007 and 2011.

As Attorney General he introduced measures to encourage DR including the Civil Dispute Resolution Act which requires parties to take genuine steps to resolve a dispute before commencing litigation in the Federal or the Federal Circuit Court. He also updated the International Arbitration Amendment Act 2010 and oversaw the implementation of the Model Commercial Arbitration Laws to align State and Territory arbitration laws in accordance with international best practice.

Justice McClelland has a BA LLB from the UNSW and an LLM from the University of Sydney. After being admitted to practice in 1982, he commenced working as an associate to Evatt J in the Federal Court of Australia.

Need help REGISTERING? https://www.resolution.institute/events/category/nsw-sydney-chapter or please contact the Resolution Institute office on (02) 9251 3366.

The revival of Bedouin customary legal processes in Jordan

Yesterday I had the pleasure of listening to a Three Minute Thesis presentation by one of our higher degree research students who is exploring Bedouin customary legal practices and processes in Jordan. It caused me to reflect on the indigenous origins of many ADR processes and also the importance of  identifying where these community practices still exist, understanding how they work, and exploring their contemporary power and potential

Munther Emad describes his PhD project as follows:

“There are a range of Bedouin customary law practices in Jordan and other Arab societies, including neighbourhood groups, delegations of wise elders delivering oracles to assist community groups to resolve their own disputes, victim-offender mediation, tribal councils and inter-tribe negotiations. These differ between Bedouins in the Negev-Naqab desert and urban dwellers in Middle Eastern cities. Some of these have similarities to restorative justice practices in that they operate on the margins of or outside the official legal process, they confront the offender with the victim, include community representatives, explore outcomes that restore social harmony and involve participants in decision-making. They deal, in varying degrees, with concepts like repairing the harm, facing up to crime and collective responsibility.

The purpose of this research is to examine the system of Bedouin customary law practices particularly within the context of ‘Jordanian model’ in terms of how they operate and evolve in contemporary society. The research utilises the lenses of ‘restorative justice’, ‘legal pluralism’ as well as ‘access to justice’ in order to critique Bedouin customary law and predict the prospect of these practices in the future of both Jordan and the Middle East. For this reason, this research draws on the lessons learnt around the world with regard to how indigenous customary laws are currently being utilised. The narrative of this research is articulated through a storytelling style in order to best describe the nature of Bedouin customary law, thus a number of stories are utilised throughout the research. It also involves explaining the features of Bedouin customary law ‘in the shadow of the law’, supplemented by ethnographic observations and interviews with a diverse group of community leaders.”

Munther’s research has the potential to contribute to our understanding of how and why these processes work in a contemporary setting and to consider their continuing relevance.

munther1

Closer to home there is a growing understanding of Aboriginal dispute resolution practices, documented by NADRAC in its 2009 report Solid Work You Mob Are Doing: Case studies in Indigenous Dispute Resolution & Conflict Management in Australia and illustrated in the “Solid work” Indigenous Mediator Forum by Maureen Abbott, Sharon Anderson, Helen Bishop, Nelson Mungatopi, Kurt Noble & Madhu Panthee at the 2014 National Mediation Conference.

The peaceful resolution of conflict is also deeply embedded in Islamic religious texts and practices. We need to better understand these parallel systems and how ‘Australian Muslims can better navigate their way through the two legal settings that they wish to comply with’, and to explore how  family dispute resolution process might be adapted to meet their needs, as Ghena Krayem argued in her 2014 empirical study  Islamic Family Law in Australia.  These processes are not without their risks and challenges, as Sami Bano has documented in her 2012 research Muslim Women and Shari’ah Councils, Transcending the Boundaries of Community and Law.  Marion Boyd’s 2004 report Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion  of the Canadian debates about these matters demonstrated that the issue is fraught and contentious, and there may not be much appetite for publicly canvassing these matters currently. However, there is potential for considerable professional and community benefit in exploring if and how community, indigenous, religious and mainstream dispute resolution practitioners might learn from one another.

 

 

Is robotic or online dispute resolution the future?

A recent ABC radio program titled Robot lawyers could make time-consuming, expensive court conflict thing of the past outlined a brave new world where artificial intelligence technologies can ‘mediate everything’ including divorce and child custody. A Dutch program has been introduced in Canada to resolve debt and tenancy issues, and in the Netherlands it is used to sort out family law issues, including child support.  Where the matter was sensitive, it could be referred to a ‘trusted advisor’ who would act as an online mediator.

This program, and other online methods of dispute resolution, are touted as empowering clients and promoting access to justice for those who cannot afford to litigate and who don’t qualify for legal aid, and thus ultimately enhancing democracy.

robot

The recent KPMG report for the Commonwealth Attorney General Future Focus of the Family Services  also explores the benefits of online technologies for resolving family disputes. Telephone and online dispute resolution of family disputes are already firmly embedded in family services provided to rural and remote clients, and the report notes that in an increasingly digital world, ‘agencies and their providers can adapt and use technology to engage with citizens in shifting business models from reactive, to proactive or customer driven’.  Digital or online services may enhance accessibility for people in remote locations, but also benefit shift workers, at home parents, those at risk of violence and people with disabilities, the report argues. There is no doubt there is enormous potential here for greater access and immediacy, and for reducing costs for the community and disputants, and even for promoting safety, but there are also risks that need to be carefully evaluated.

The issues relating to online dispute resolution are not dissimilar to those associated with dispute resolution generally, although the online context may exacerbate or minimize some of these risks. The National Alternative Dispute Resolution Advisory Council considered some of these in 2002 in its Dispute Resolution and Information Technology Principles for Good Practice. Using the framework often used for evaluating dispute resolution it discussed some of the risks:

  • Accessibility: whilst access will be enhanced for some, some who are vulnerable may not be able to access such resources or the tools to access them, especially those with low literacy, older people, from some cultural communities. The access of those in rural and remote areas will depend on the reliability of high bandwidth telecommunications.
  • Fairness: NADRAC notesInformation technology may neutralise some sources of power through removing some of the dynamic associated with face to face communication.’ Some parties may be empowered, but in other situations power imbalance may be created or exacerbated. Those unfamiliar with the technology may be pressured into decisions. Men, who often communicate for factual information, may be favoured over women whose communication preference is generally relational, as this may not be well supported by online technologies. Where parties are remotely located one or both may ‘more effectively mask their feelings, delay responses or manipulate the environment’, and the mediator not be able to respond appropriately or even handedly if they are not able to read the parties as effectively as if they were in the same room. It may be more difficult for the mediator to establish impartiality and trust in an online context.
  • Effectiveness: this begs the question of effectiveness for whom? From a party perspective, online DR may be quick, accessible and cost effective, and ‘cheaper’ justice is also a positive community outcome. If self determination is the key objective of mediation, then online communication may sometimes facilitate this (it may assist parties to slow down, reflect and focus on issues rather than personalities, and feel safer) or obstruct it (because nuance is lost, complex emotions not conveyed, or communication is stilted or constrained, and a sense of finality and formality absent). If the full communication and closure is not achieved, then outcomes may also be compromised.

So whilst there are benefits to online dispute resolution, and even robotic determination of disputes, we must ultimately consider whether these processes are likely to achieve party self determination. Self determination assumes the parties are autonomous and rational decision makers. Participation is voluntary and direct, and the parties control the content and outcomes where they make voluntary, consensual and informed decisions. The degree of voluntariness will vary depending on the legal frameworks governing the dispute. Informed consent will be achieved if online dispute resolvers, including robotic ones, and service providers can ensure:

  • parties are educated about the nature, purpose and processes of the dispute resolution and any factors that will affect the process;
  • that parties understanding this information; and
  • that the dispute resolver continues to monitor party consent, especially if either is unrepresented, or if their capacity or autonomy is compromised or influenced in some way, or where their participation may not be voluntary.

If these standards are able to be achieved, then online dispute resolution may be able to achieve it’s participatory, cost saving and self determinative goals.

 

 

Using dispute resolution research to make change

I have this week been attending the biannual Australian Institute of Family Studies (AIFS) Conference in Melbourne. The focus of the conference is on translating research evidence into policy and practice change. It has made me reflect on existing research bases about dispute resolution in the area with which I am most familiar: family dispute resolution (FDR) in the family law sector, and whether we sufficiently adopt an evidence based and effective approach in designing, implementing and translating research about dispute resolution .

We actually have a lot of evidence about family dispute resolution: much of it has been gathered by AIFS as part its evaluation of the impact of family law reforms made in 2006, and subsequent evaluations of the family law system.  Non-adversarial dispute resolution is now deeply embedded in the family legal system as the primary way to resolve differences following separation. AIFS research has demonstrated a lot of things about resolving disputes following separation including:

  • Most (80% +) people who separate work out problems themselves, without much assistance from professionals or services;
  • Those people who need assistance from professionals often have a history of domestic violence (70% +), as well as complex profiles which include the co-occurrence of mental health problems, disability, substance abuse and socio economic disadvantage;
  • Satisfaction levels of people who use different dispute resolution mechanisms (lawyer negotiation, court, mediation) is often higher for mediation / family dispute resolution;
  • Programs like Coordinated Family Dispute Resolution (CFDR), developed by Women’s Legal Services Qld and piloted in 5 locations across Australia, to support people with histories of domestic violence safely participate in FDR can achieve safer outcomes for parties, and facilitate participation and ultimately self determination by parties. The AIFS evaluation concluded that this program was at the ‘cutting edge’ of family law practice, not only because of it’s innovative pre-mediation processes to inform and support parties to effectively and safely participate in FDR, but because of the multi-disciplinary, multi-agency & professional collaborative case management of the CFDR cases.

However, the good results from this pilot did not mean CFDR was rolled out across the family law sector, despite that some women and children continue to vulnerable to the significant effects of violence following separation, and the failings of existing dispute resolution processes to address this need.

It seems to me that even where we have good evidence, we need to have better strategies as researchers to ensure that good ideas are more often translated into policy and practice.  The AIFS conference has demonstrated to me that advocacy and persuasive arguments are not enough, but that DR professionals (many of us lawyers) need to think strategically about how to provide evidence in a digestable and compelling form so that its chances of being adopted by policy and decision makers are enhanced. As DR researchers we need to think about:

  • Embedding research in every new DR initiative we adopt or are involved in, so that from day one, we are collecting appropriate evidence of outcomes and what works and doesn’t and why;
  • Be more outcomes focused – but think very carefully about what constitutes outcomes, and how do we gather data of the more subtle outcomes;
  • Identify the exiting relevant research and data, preferably locating systematic reviews of such evidence which synthesise the learnings and outcomes where this exists. This is not usual practice with DR research – so how do we initiate systematic reviews, or at least shape our existing research to ensure it might inform such reviews?
  • Engage with the evaluation and implementation science that charts how best to translate good ideas into practice and how to measure what works and what doesn’t;
  • Consider the implications of research findings for practice, and consider how we might translate findings into policy-usable evidence briefs, rather than long reports;
  • Ensure we engage and collaborate with researchers from other disciplines, and with each other, and appreciate the power and insights that come from the collective and from  thinking different to our own.

Obviously the translation of good ideas is not all about the evidence. It is often serendipity, personality and politics that play just as significant a role. But unless we are ready with the evidence in ways policy makers can grasp, our good ideas may not make the difference they ought to.

 

Relationality, ethic of care and mediation

In a very provocative and wide ranging piece, Hilary Sommerlad argues that the ethic of care originating with Carol Gilligan and developed by difference feminists since the 1990s has undermined the ethic of justice, largely through reliance on arguments that have facilitated the development of mediation and other forms of restorative justice and promoted legal pluralism: The Ethics of Relational Jurisprudence, (2014) 17 Legal Ethics 281.

Sommerlad claims that Gilligan’s ethic of care provided a language to argue for a change in ‘the dominant ideology from individualist to one that is interconnected … from a right-based focus to a focus on both care and rights/justice, from power-over to empowering’ (citing Leslie Bender, ‘Changing the Values in Tort Law’ (1990) 25 Tulsa Law Journal 759, 907). Difference feminists understood knowledge as contextual and embedded in experience and situation, and urged that legal methodologies be developed to recognise intimacy and connectedness and to permit empathic perspective taking, such as mediation, or less adversarial lawyering.

Sommerlad’s argument is grounded in a deep understanding of recent legal philosophy and history. She challenges the arguments developed by difference feminists based on Gilligan’s ethic of care for their ahistorical nature and tendency to naively romanticise community and care, failing to acknowledge that ‘care can be a most insidious form of control’.

She also condemns difference feminists’ omission in not recognising the flexible and contextual nature of much common law reasoning, and subsequently their failure to ‘engage with the contingency of law’s claimed formalism and autonomy, at the moment when it was so clearly being challenged’.

Whilst there is much value in these observations, Sommerlad’s own failings appear in her critique of the link between the ethic of care, neoliberal delegalisation and a shift to therapuetic jurisprudence that has characterised many western legal systems.  Whilst greater reliance on informal legal processes may undermine access to justice and diminish rights, Sommerlad is not able to establish mediation’s complicity in this outcome.  She relies on outdated and unsubstantiated claims that mediation ‘fails to take account of the gendered power imbalance’ and research that indicates that ‘aggressive advocacy and strict reliance on doctrine and procedure’ achieves better outcomes for women clients, at least in family law.

Mediation is no panacea, but a more nuanced and empirical appraisal of its role is required before it can be held responsible for the broader failings of the legal system. Further, whilst rights are clearly important, especially to those who have few, many will prioritise their relational connections, their emotional wellbeing and their bank balance in preference to aggressive advocacy. For some it will be more important to be empathically heard, and to listen with their whole being, and so to recognise the full humanity of the other. Mediation offers this promise. Gilligan’s ethic of care remains instructive.