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 researches and teaches family dispute resolution. She is particularly interested in the intersections between law, culture and religion in multicultural and multi-faith societies.

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.

Culturally responsive family mediation

The Australian Family Law Council in its 2012 report into improving the family law system’s response to families from culturally and linguistically diverse backgrounds recommended, among other things, that a cultural competency framework be developed. It is important that those professionals and services providing family dispute resolution (FDR) consider how to do this effectively. Australian Law Reform Commissions have recommended that culturally responsive approaches to FDR be developed and implemented in a comprehensive, strategic and holistic manner. Good mediator practice with people from culturally (and religiously) diverse backgrounds is informed by guidelines or principles that emerge organically as a synthesis of mediator responses as they engage dynamically and reflectively with the people they encounter.

Culturally responsive mediators understand the fluid, fragmented and contested nature of culture, that it is a source of identity and power, and that it plays a role in the creation and resolution of conflict and disputes. As Sonia Shah Kazemi has observed, ‘mediation does not and cannot be situated in a cultural or normative vacuum; the disputants’ view of the world, their cultural identities, their universe of meaning invariably and indelibly shape the dispute management process.’ Cultural influences are not always easy to discern however, and are most often visible, as Kevin Avruch argues, when thrown into relief by the quality of difference. Culturally responsive mediators are aware that there is cultural difference, and that culture (and religion) may be powerful forces in people’s lives and conflicts; they perceive the cultural values and assumptions embedded in mediation and that they bring to its practice; and they are conscious that its processes may need to be adapted differently for each person. So whilst some ‘cultural knowledge’ may assist in knowing where to begin, the crucial attribute is responsiveness: listening carefully to each participant, engaging in conversation to understand their relational context and priorities and making fine judgments about the interventions to support the parties to achieve mediation’s broader goal of self determination (which itself will be culturally inscribed). Effective mediator responses to culture are ethical, situational and relational.

Responses are ethical decisions because they take account of the interests of others. Indeed, it is likely that every choice a mediator makes is likely to be an ethical one. They are contextual or situational, because the judgments are made in the moment in response to concrete situations. And they are relational, not only because family is the subject of dispute and we are all constituted by our relational contexts, but also because norms and expectations about family relationships are often central to the cultural identity of people from minority cultural and faith communities. They are also relational because, as identified above, cultural difference is often articulated through encounter and exchange with others. Adopting an ethical, situational and relational response to culture in mediation is important if culture is understood as a dynamic process of meaning-making, as Joan Laird notes ‘always contextual, emergent, improvisational, transformational, and political.’ Such an approach requires ongoing professional evaluation of the developing requirements of the parties, responding reflectively to their particular needs and circumstances throughout the mediation.

Diversity and dispute resolution

Western liberalism is increasingly challenged by the tensions between respecting diversity, protecting human rights and ensuring social cohesion. Although we better understand the significance of culture and religion in disputes and dispute resolution processes, we are less clear about the operation and significance of these informal processes within minority cultural and faith communities. We also know little about the experience of people from diverse cultural and faith backgrounds in informal dispute resolution processes that are part of the legal system. There has been much debate internationally about some of these issues, particularly whether recognition of religious alternative dispute resolution processes such as Muslim or Jewish arbitration tribunals would perpetuate inequalities, especially for women. This discussion has only just begun in Australia.

The University of Western Sydney will host a two-day public symposium Religion, Culture and Legal Pluralism on 14 & 15 September in Sydney, Australia addressing intersections between law, culture and religion in multicultural and multi-faith societies. Day 1 is hosted by UWS School of Law and explores issues raised by diversity and dispute resolution. This symposium brings together scholars of international repute from a range of disciplinary backgrounds to explore culture and religion in disputes and dispute resolution, the practices of faith and cultural communities in resolving disputes, and the challenges of publicly accommodating informal community processes. A particular focus will be a critical examination of the experiences of people from culturally and religiously diverse backgrounds in mediation processes, and what this tells us about the interplay between identities, laws and lives.

The presentations on 14 September are as follows:

• Professor Julie Macfarlane, Faculty of Law, University of Windsor, Canada, Divorce Practice among North American Muslims, and its Implications for Private Ordering and Public Adjudication in a Secular State
• Dr Samia Bano, School of Law, Centre of Islamic and Middle Eastern Law, SOAS, University of London, UK, The Politics of Culture and Muslim Family Law in the UK: Analysing the role of ‘Cultural Experts’ and the rise of ‘Islamic Legal Services’
• Dr Farrah Ahmed, Melbourne Law School, University of Melbourne, Australia, Religious ADR and personal laws in India‬
• Associate Professor Ann Black, TC Beirne School of Law, University of Queensland, Australia, The way forward: legal pluralism, dualism or keeping ‘one law for all’?
• Dr Morgan Brigg, School of Political Science and International Studies, University of Queensland, Australia, Beyond Accommodation of Cultural Diversity: The politics of recognition and relationality in dispute resolution
• Associate Professor Susan Armstrong, School of Law, University of Western Sydney, Australia, Beyond Accommodation: Recognition of and relationality with vulnerable parties in family mediation
• Dr Lola Akin Ojelabi, College of Arts, Social Sciences and Commerce, La Trobe University, Australia, Adopting cultural/religious dispute resolution processes in Australia: Which way forward for access to justice?
• Dr Ghena Krayem, Faculty of Law, University of Sydney, Australia, Beyond Accommodation – Understanding the needs of Australian Muslims in the Family law context
• Anisa Buckley, PhD candidate in Islamic Studies at the Asia Institute and Melbourne Law School, University of Melbourne, Australia, Muslim Identity and the ‘Religious Market’: Challenges facing Muslim women seeking religious divorce in Australia

Day 2 is hosted by UWS Religions and Society Research Centre and will focus on Shari’a in the everyday life of Muslims. The papers to be presented on 15 September include

• Professor James T. Richardson, Sociology and Judicial Studies, University of Nevada, Reno, Views of American Civil and Immigration Law among a Crowdsourced Sample of American Muslims
• Dr Jan A. Ali, University of Western Sydney, Australia, A Sociology Analysis of the Understanding and Application of Shari’ah in Muslim Everyday Living in Australia
• Associate Professor Malcolm Voyce, Faculty of Law, Macquarie University, Inheritance and Family Provision Law: A Contrast between Australian law and Islamic ideals as Regards Family Property
• Dr. Arskal Salim, Syarif Hidayatulah State Islamic University of Jakarta, Indonesia and University of Western Sydney, Disputing Women’s Property Rights in Contemporary Indonesia
• Ms Ashleigh Barbe-Winter, University of Western Sydney, Religious Accommodation in the Australian legal System
• Dr Arif A. Jamal, National University of Singapore, Singapore, Plurality, legal pluralism and Islamic law: the case of Ismaili law
• Dr Yuting Wang, American University of Sharjah, United Arab Emirates, An Exploratory Study of the Practices of Islamic Law in China’s Muslim Businesses
• Professor Adam Possamai, University of Western Sydney, Plurality and Shari’a in the everyday life of Muslims in Sydney

For more information reply here or email sm.armstrong@uws.edu.au