About Sue Armstrong PhD

Sue Armstrong is an Adjunct Professor in the School of Law, Western Sydney University, Australia. She is an accredited Family Dispute Resolution Practitioner, mediator, conflict coach and a collaborative practice coach. She has published, researched and taught about family dispute resolution. She also supports people to separate compassionately in her family mediation practice Armstrong Mediation.

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

New UK Mediation Journal

I would like to draw your attention to a new UK journal: Mediation Theory and Practice, to be published by the College of Mediators. The first edition is to be published in May 2016. The editorial board is comprised of a number of highly regarded academics and mediators from across the ADR world, including Elizabeth Stokoe, Loughborough University, Dale Bagshaw, University of South Australia, Australia, Samia Bano, SOAS, University of London, United Kingdom, Mavis Maclean, University of Oxford, United Kingdom, Madeline Maxwell, University of Texas at Austin, United States and Paulette Morris, University of Brunel, United Kingdom

The journal describes itself as “an international forum for original, peer-reviewed research about mediation, as well as practice and events reports, policy discussions and innovations in mediation training and education. The journal’s approach is multidisciplinary and it is a resource for academics, practitioners, trainers, and policy makers. … Mediation Theory and Practice welcomes empirical, theoretical and practice-based articles which display originality in terms of their theoretical developments, use of empirical materials, transfer and exchange of knowledge between academic, practitioner and policy audiences.”

A journal which integrates theory & practice across a range of mediation contexts will make a welcome contribution to the scholarship and implementation of mediation. The Journal has announced its first Call For Papers for the first volume. I hope that Australian ADR researchers and practitioners will respond to this invitation.

Further information may be found at: http://www.equinoxpub.com/journals/index.php/MTP/index.

You may also be interested in the UK College of Mediators Annual Conference on Thursday, 11th June 2015 at Loughborough University, Leicestershire. The topic for the 2015 College of Mediators conference is Defining Difference and the event deals with diversity in mediation.