What’s a Heat Exchanger got to do with it? – Mediation re-imagined

heat

Ground heat exchangers at One Angel Square, Manchester, England
By Rept0n1x – Daytrip to Manchester (44), CC BY-SA 2.0 – Wikimedia commons

Australian law schools have a broad range of Masters programs offering subjects in the ADR space. One of the most interesting qualities of the current Masters cohort is that it is no longer a group dominated by lawyers and would-be lawyers.

Amongst other influences, the commercial imperatives pushing higher enrolments have strengthened cross-institutional and cross-disciplinary promotion of programs. The result is that today, Masters students in our law schools now come from very diverse cultural, professional and educational backgrounds. Not only are classes culturally richer for the more diverse student profile, particularly the international cohort, but the professional backgrounds are spread over a far wider field.

This means that how and what we teach needs to be re-examined as we academics rise to the challenge of dealing well with differences.

The move from homogenous to heterogeneous has brought into the ADR postgraduate space doctors, social workers, engineers, architects, journalists, accountants and social scientists, to name a few. They all have their own language and narrative and draw on different thinking and reasoning tools.These different technical and professional approaches have brought great benefits including an appetite to challenge the legally influenced, conventional language about process and concepts. We are the richer for it.

Enter the Heat Exchanger.

Last semester I had the privilege of teaching Ahsan Ashraf (whose work I draw on with his permission) in the Mediation in Commerce program at Melbourne Law School. Ahsan is an international student currently studying in Australia and working here as a construction engineer on a major infrastructure project.

He is not a lawyer but is taking some subjects available in the law school Masters program. As we investigated the mediation matrix Ahsan worked hard to join the dots. He felt the concepts were familiar but he needed to find his own reference point for them. His thinking and reasoning tools were not linear and we all recognised that if he could find a connection, this would be useful in his engagement with mediation which is itself a flexible, non-linear process.

Turning to his own discipline he finally made a connection that spoke to him. He wrote:

‘Mediation involves a very similar process to a heat exchanger; a thermodynamic equipment used in refrigeration equipment. In a heat exchanger, a hot and a cold fluid are made to flow in tubes at a controlled rate to exchange heat.[1] The level of heat exchanged between the two fluids depends upon the surface area between them. Through this engagement, the two fluids exchange heat to minimize the difference in their temperatures.

Similarly, in mediation, the two parties undergo through a facilitated negotiation process, at a preferably slow pace, to exchange their views about a dispute.[2] The process essentially is a heat exchange where the parties express their emotions, anger and anxiety.[3] This exchange of heat minimizes the differences between the positions of the parties and opens channels of communications. The whole process remains uninfluenced and parties are only facilitated to share information in a natural manner very similar to a heat exchanger resulting in a win/win situation for both parties.’

We continued to brainstorm his ideas in class and Ahsan was challenged to translate his ideas into his own version of a mediation matrix which would communicate mediation concepts to his constituency in a way that conventional mediation materials do not. And then – to add even more power to his analogy – he did what all good engineers do.

He constructed a flow chart of his mediation heat exchanger.

I reproduce it below with his permission.

flowchartIt is a great example of the kind of creativity that is valuable for teaching, practising and thinking about mediation.

Perhaps even more importantly, it is an example of cross-disciplinary thinking in the teaching and practice of ADR processes.

Ahsan’s gift to the class (and to me).

[1] Stephen Turns, Thermodynamics: Concepts and Applications (Cambridge University Press, 2006) 492.

[2] James Alfini et al, Mediation Theory and Practice (Lexis Nexis, Second Edition, 2006) 1.

[3] Ibid 33.

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Roscoe Pound would be proud – Reflections on the history of the Global Pound Conference

The Global Pound Conference (GPC) series 2016-17 is an ambitious, future-focussed project, established to create a contemporary conversation about improving the access to and quality of justice in commercial conflicts internationally.

pound

Roscoe Pound bust by Avard Fairbanks, Nebraska Hall of Fame – Creative Commons

 

When complete, the series will have included individual conference sessions involving 29 cities in 23 countries. Several blogs on this site have talked about the GPC series and how it has played out in a number of the host cities. The significant data analysis that has already emerged from the first session in the series (and has become known as The Singapore Report) has also received commentary in these pages.

The ultimate objective is the collection of data from all conference participants using a common set of 20 multiple choice questions (The Core Questions) and four sets of open text questions (The Discussion Questions) to stimulate robust discussion, research and innovation into dispute resolution

As we approach the last of the GPC series, to be held in London in July 2017, it seems timely to go back to where it all began. History informs the present and the future and, in our excitement about the significance of this ambitious project, it is important not to overlook the contribution of the memorable life of the man whose name it bears.

Roscoe Pound (1872-1964) was a remarkable man. Whilst some scholars brand him as ‘the most famous American jurisprudential thinker of the first half of the twentieth century’ and ‘the greatest twentieth century dean of the Harvard Law School’[1] his is hardly the name on every lawyer’s lips. Nor did he fit the mould of your average law school Dean.

Son of a well-known Nebraskan judge, law was not his first choice. Instead he pursued a career and doctorate in botany. Roscoepoundiana – a fungus – was named after him, ensuring his enduring botanical fame. I confess to feeling a twinge of envy!

However family pressure could not be resisted and he entered legal practice (possible in those days without a degree). Enrolling in the one year postgraduate law program at Harvard, family circumstances kept him from completing the exams but not from continuing as a practitioner.

His professional career saw him making memorable and enduring contributions wherever he went. At the Nebraska Bar he helped establish the Bar Association. He was appointed to the University of Nebraska and later became Dean of the Nebraska College of Law (1903-1907). Our students today benefit from his decision to introduce electives into the law degree.

In 1906 the American Bar Association (ABA) invited Dean Pound to deliver the keynote address at its annual meeting in St Paul, Minnesota. His speech, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, shocked many in his audience. Opening with the line ‘Dissatisfaction with the administration of justice is as old as the law….’- and continuing to chronicle the law’s deficiencies, it is not surprising that his address was not well received and the backlash from the profession provoked withdrawal of the initial decision to print and distribute 4000 copies.

However not everyone was a critic. In the audience was Dean Wigmore, Dean of Northwestern University, who soon persuaded Pound to accept a professorial post at Northwestern and later commented that Pound’s speech ‘struck the spark that kindled the white flame of high endeavour now spreading through the entire legal profession and radiating the spirit of resolute progress in the administration of justice.’[2] Discovering that Pound had not graduated in law, he gave him an honorary degree.

Pound continued his distinguished career teaching and writing, finally settling into the post of Dean of the Harvard Law School (1916-1964) – to this day he remains the only Harvard Law School Dean not to have graduated from law school.

An influential and widely published academic and administrator, by the time of his death in 1964, Pound had still not received the recognition he deserved from the practising profession to which he had contributed so greatly. Whilst not being prepared to issue an apology, the ABA did make a belated acknowledgement of Pound’s contribution to the profession and to legal thinking by awarding him the ABA medal (its highest award) in 1940.

Pound’s writing remained relevant and thought-provoking and he certainly influenced legal thinking. Those he influenced included Chief Justice Warren Burger, (another judge who managed to upset conservatives) defying his sponsor, the anti-progressive Richard Nixon, by upholding the Miranda decision and supporting the majority in Roe v. Wade.

In 1976, 70 years after Pound’s keynote address, the ABA conference returned to St Paul, Minnesota. It was here, at the appropriately named Pound Conference, that the profession finally provided Pound with what amounted to the apology and acknowledgement he so richly deserved.[3]  Joining the ABA as sponsors were the Conference of Chief Justices and the Judicial Conference of the United States. Burger clearly had considerable influence over the program as he is credited with issuing the invitation to Professor Frank E.A. Sander, a notable Harvard academic, to participate. Dealing broadly with various issues of dissatisfaction with the legal system, Dispute Resolution was one stream among a number and many papers were delivered. However it is Sander’s paper’ ‘Varieties of Dispute Processing’[4] that has provided the conference’s most memorable legacy and continued the work begun by Pound in his 1906 address.

This first Pound conference laid the groundwork for the significant world-wide event we are celebrating now. The name is an important link to history and an acknowledgement of the man who inspired it all.

Roscoe Pound would be proud.

[1] See for example Northwestern University’s Professor Stephen Presser ‘Foreword’ in Roscoe Pound, The Ideal Element in Law (Online Library of Liberty, 1958).

[2]  N.T.H Hull, Roscoe Pound and Karl Llewellyn, Searching for an American jurisprudence (The University of Chicago Press, Chicago, 1997) 65.

[3] See ‘Perspectives on Justice in the Future’ Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, West Publishing Co., St. Paul Minnesota 1979

[4] Ibid at p.65

A big pair of shoes has been filled

 

Book launch

Rachael Field and Laurence Boulle celebrate the launch with Hilary Astor, Members of Resolution Institute and the ADR Research Network

 

In late May, Resolution Institute was the venue for the launch of a significant new text on Dispute Resolution – Australian Dispute Resolution – Law and Practice (LexisNexis, Sydney, 2017) authored by Resolution Institute members, Laurence Boulle and Rachael Field.

The launch was significant for academics and practitioners alike for several reasons.

The first was the acknowledgement of the pioneering work of Hilary Astor and Christine Chinkin whose original text, Dispute Resolution in Australia, was the ‘go-to’ resource for academics and practitioners alike. It was outstanding in its coverage and depth. Academics like me drew on it heavily and valued its breadth and the conversations it provoked.

This new text picks up the themes of its predecessor and updates them for todays’ dispute resolution challenges. It was a masterstroke to invite Hilary Astor to make the introductory comments and formally launch the publication. Her presence and script were great reminders of the remarkable scholarship that has been available to us since Dispute Resolution in Australia was first published in 1992.

Respecting where we have come from, as we explore future directions, is an appealing symbol of how we have developed as a dispute resolution community.

At the launch, Rachael and Laurence shared the secrets of their successful collaboration which gave us a sense of how challenging they found the responsibility of filling Astor and Chinkin’s ‘big pair of shoes’.

Laurence chose an unexpectedly poetic approach to describe to us the joys of collaborating with Rachael and I reproduce it below with his permission.

 

“Fieldsy and Bill

A DR Fairly Trail

Three score and seven months ago this Odyssey began

Intrepid Fieldsy taking charge, with vision and elan,

To turn established text into a third, more sage, edition

ADR, law, identity, much theory in addition.

Too onerous proved this arduous task for authors, young and free,

They forged a brand new first edition – with cover girt by sea.

The text prolapses ADR, and DR comes to fore,

One letter less, efficiency, the modern troubadour

DR is law’s true business, and the future task of lawyers

Though other disciplines bring great skills as DR purveyors.

 

Rachael creates matrices with fierce analysis

And practice has its rightful place – or better still praxis,

She critiques Priestly’s saintly core with missionary fervour

Though herself is, reverently, a god-fearing verger.

In every field young Fieldsy brings a rigour to the joust

Her style so mellifluous recalls the prose of Proust

Judges are too recalcitrant and theorists far too thin

She trumps them one by one with acerbic verve, and gin,

Bill looks on half-dazed as her libretto forms apace

Just minor emendations to claim his cover place

 

Disputes twixt Bill and Fieldsy? There were a somewhat few

The comma matter not resolved, it caused a constant blue.

For Rachael, every, word, must, have, its, punctuation, own,

ForBillajumbledflowofwordsnosyncopationzone

 

Now here’s a tale not told before, though every word is true,

Bill inveigled Fieldsy long to move to Bond uni

Abandon Brisbane’s creek and drudge and start again anew

Resistance was her sad retort, excuses thickly grew.

The strangest part: once Bill departs for Sydney waters twee

Then Rachael moves to Bondy’s place with stark alacrity

In truth she’s now resolved to move to Sydney Harbour Bridge

Once Bill has used his GPS to reclaim Bogun ridge.

 

One note of serious concern amidst the frippery

Concerning current happenings with lack of policy

How serious is the plight of those who flee from ravaged lands

Out-trumped by bigotry and fear, excuses weak and bland,

Asylum-seekers, refugees, minorities galore,

The flames are fanned by news corp hacks, the jocks and many more

Where is DR’s noble soul in contexts such as these?

That is a challenge we must face, so join a movement please.

To take on privilege and power, denial atmospheric,

Post-truth, untruth, and spin and sin, every sad heuristic.

 

But to end on sombre tones might seem a trifle crook

For cheerful lives and value add – you just should buy the book.

Thanks are due to Jocelyn Holmes and to Lexis Nex,

At RI Ellie, Brian and more provided superb flex

Hildegard of Bingham was a prophet most acute

Hilary of Astoralia from whom DR took root

Has graced us with her words and we extend our thanks

For legacy contributions and setting the early pace

 

I now must end abruptly too these rhymes sore terrible

Lest there be those who shout aloud ‘Enough, far too much bull.’

 

Congratulations Rachael and Laurence. I look forward to where this text will take our teaching and learning.

Collaboration in Krakow

krackow

Krakow: Picture courtesy UIA

The World Forum of Mediation Centres was created in 2001 by the Mediation and Conflict Prevention Council of the Union Internationale des Avocats.

It brings together commercial mediation practitioners and representatives of ADR Centres from around the world (including the Law Society of New South Wales) via an active program of collaboration with its constituents.

With my Australian colleagues, I was delighted to receive an invitation to present various sessions over the two days of the 23rd Forum, which has just concluded in Krakow, Poland.

Jagiellonian University, located in the beautiful city of Krakow, was the perfect setting for the forum. The picturesque setting, with blankets of snow covering the landscape, made the sub-zero temperatures bearable!

My fellow pracademics, Emma-May Litchfield and Danielle Hutchinson, joined me in delivering an interactive session on The Power of the Narrative in Mediation. Our session reviewed the significant research into narrative structure and power found in such diverse fields as education, semiotics, neuroscience and economics and reflected on the limited contribution in the field of ADR.

Using a case study drawn from real life, participants investigated and debated what steps they would take as mediators to identify the narratives which had led the parties to a seemingly impossible impasse; then to consider how the parties could be encouraged to develop new narratives which might meet their interests and create opportunities for resolution.

Emma-May and Danielle then drew links between the case study and findings from The Singapore Report, the analysis of the inaugural Global Pound Conference (GPC) event last March. They explained the different narratives of inexperienced and ‘dispute-savvy’ disputants and the tools the GPC research offers to mediators as they build repertoire.

Alan Limbury, our other Australian representative, was his usual provocative self in his session on Arb-Med-Arb with the same neutral. Other panellists explained hybrid processes generally and what their future role might be. Furious debate, laced with scepticism and concerns about ethics and procedural fairness, kept us entertained and engaged. The jury is still out and we may need a mediator to sort out the panellists’ differences!

There were many other important topics including the benefits of teaching Greek healthcare practitioners how to apologise effectively for medical errors; what the future looks like for Online Dispute Resolution (ODR); and in-house programs to reduce staff conflict.

The Forum is a great opportunity to share international developments and initiatives and to collaborate with colleagues whose professional practices vary widely.

The social calendar was challenging too and included a tour of the famous Krakow salt mine, an UNESCO World Heritage site. Descending more than 300 steps to dine 110 metres below ground was a chilly but unforgettable experience.

The program and most of the papers are available at www.uianet.org along with news of the next forum in Singapore in October 2017.

Learning from our Italian colleagues – and a ‘Room with a View’

A holiday in Italy is always a wonderful experience, especially when it includes the beautiful city of Florence. My recent Italian holiday was made even more pleasurable by the opportunity to visit with the Chiara Tondini and Nadia Sportolaro, the Managing Team of The Florence International Mediation Chamber (FIMC).

A branch of the Florence Chamber of Commerce, FIMC was established in 2015 with the goal of offering an international mediation service to Italian companies involved in international commercial relationships and to foreign companies who very wisely choose to resolve their disputes in Florence.

FIMC has a lot to offer its commercial clients. It has a growing panel of experienced mediators from around the world (including Australia) accredited to rigorous international standards and a mediation room with a marvellous view over the city – a drawcard in itself!

FIMC is continuing to build its profile and will host the Florence session of the Global Pound Conference series, an international program involving over 36 events in more than 26 countries and which has been featured in several of these blog posts.

FIMC is active internationally – for example, it is working with the Permanent Court of Arbitration in The Hague to secure the right to become the Italian host for its arbitrations and mediations. It is also an official observer of the UNCITRAL Working Group II which is investigating developing an enforceability vehicle for international mediated settlement agreements along the lines of the New York Convention which applies in the arbitration environment.

The Chamber of Commerce of Florence (CCF) of which FIMC is a branch, was founded in 1770 – via a statute enacted by Grand-Duke Pietro Leopoldo of Tuscany.  Since 1998 it has been handling domestic mediation services and 6,000 cases later it has an enviable track record.

The CCF domestic mediation service operates under Legislative Decree no. 28/2010, the single legislative instrument controlling both mandatory and voluntary mediation in Italy. It ensures that parties cannot litigate most (but not all) matters without a trial of mediation.

With typical Italian creativity, the constitutional challenge to 28/2010, spearheaded by the legal profession (which succeeded on a technicality) has been overcome by an amendment which has proved wise and durable – parties are still required to attend the commencement of a mediation prior to issuing legal proceedings, however they are given the opportunity to opt out of the process before the formal mediation commences.  Once the parties agree to commence a mediation and settle the dispute, the operation of the Legislative Decree creates an immediately enforceable agreement – this provision extends to both mandatory and voluntary mediation.

The operation of this regime has been surprising successful – an interesting lesson for us in Australia. The chart below, provided by FIMC, provides insight into the success of the process.  

TOTAL MANDATORY MEDIATIONS VOLUNTARY MEDIATIONS
Procedures handled (and closed) from 1st January 2014 to 30th September 2016 1.154(100%) 742 (100%) 403 (100%)
% of cases where invited party accepted invitation to the first meeting 625 (54,16%) 505 (69,75%) 160 (39,70%)
%of cases in which parties accepted to start the mediation after the first meeting (opt-out mechanism) (based on # of cases in which invited party accepted invitation to the first meeting) 314 (50,24%) 203(40,20%) 108 (67,50%)
Settlement rate in % (based on # of cases in which parties accepted to start the mediation after the first meeting (opt-out mechanism) 190 (60,51%) 120 (59,11%) 66 (61,11%)
Number of cases in  % settled after having filed the mediation request but before that the mediation meeting took place(based on # of total cases filed) 61(5,29%) 25 (3,37%) 17 (4,22%)

As Chiara and Nadia explain, requiring all parties to come to the mediation table, even in a preliminary way, provides the opportunity for parties, who might otherwise not be willing to initiate a mediation, to consider what mediation has to offer and choose to stay. The process is also efficient, low cost and not punitive for those parties who do opt out – removing the argument lawyers often use here about the unnecessary expense imposed by a mandatory regime.

As the chart demonstrates, more than 50% of parties who attend the introductory session choose to stay and of those matters, more than 60% settle.

Yet another reason to visit Florence![1]

 

 

 

[1] Discover more at: www.fimcmediation.com

 

Why story-telling matters to justice and to dispute resolution

The July 2016 NSW Law Society Journal carries an interview by Julie McCrossin with the very accomplished Professor Larissa Behrendt, Chair of Indigenous Research at the UTS Jumbunna Indigenous House of Learning.

The article begins by reminding us that Behrendt is a storyteller and indeed she is. Talking about stories as a tool for justice, she comments that part of the significance of her work is to demonstrate that ‘there is such as important role for storytelling to play in law reform’.

To illustrate her theme, Behrendt draws on the recent request to the New South Wales Attorney General, by the Police Taskforce working on the Bowraville cases, to make an application to the Court of Appeal seeking to quash the acquittal and advocating a new trial.

Achieving this has been a long road and Behrendt (who worked with the Bowraville families at Jumbunna) credits the outcome as the triumph of storytelling over legal argument.

She says

‘There is such an important role for storytelling to play in law reform. As lawyers, we are so good at thinking about legal arguments, but there are so many things I have learnt from the Bowraville families and one of those things is that their stories are more powerful than my law’.

The story is compelling reading – not just for the insight into Behrendt’s work with indigenous families. It is a reminder to those of us practising and researching in the ADR field that storytelling offers power to persuade in circumstances where facts have been unsuccessful.

The early champions of ADR did us a great disservice when they promoted a benefits bundle of cheap and quick. We continue to suffer the consequences of this error of judgement. The proliferation of ADR services that are cheap and quick has left many disputes unresolved despite their advocates recording that they have been ‘settled’.

Reading the daily newspaper reports of the coronial inquest into the Lindt café siege should be all the proof we need that stories can achieve what facts cannot. All of us are stakeholders in this inquest. Indeed there are so many stakeholders that the inquest now has its own web address http://www.lindtinquest.justice.nsw.gov.au/.

One of the reasons the inquest has been continuing for such a long time (since it began in May 2015) is that, apart from seeking factual evidence about what happened, there is a lot of healing that can’t happen until we have exhausted the well of stories that need to be told. Initial attempts to make this an efficient process have given way to entreaties from the public and the families of the hostages and the hostages themselves. One of the most tragic and consistent themes from the stories of hostages is that they felt abandoned and believed that no-one was ever going to come to their rescue. If changes are to come to how police deal with hostage taking and hostage takers, it won’t be as a result of the forensic examination of the facts – it will be because of the extraordinary power of the hostages’ stories and the resulting damage to public confidence in the police to rescue us from harm. This will be the driver to force the police and government to do things differently and better.

Although stories like Behrendt’s are all around us, reminding us of the power of story-telling, sadly, the ADR processes that are happening in the shadow of the law have seemingly adopted the fact based approach that characterises litigation. A review of position papers commonly exchanged by lawyers prior to mediation makes it abundantly clear that much of the mediation world in the hands of lawyers is just litigation in another forum. It is disappointing to see the promise of mediation so consistently frustrated. Surely we recognise by now that while facts matter, ADR provides a golden opportunity to look past the objective data of the facts to the subjective experiences of the parties.

Story-telling courses and conferences abound in law schools in America and the United Kingdom and the ABA has a number of publications devoted to this field. It is hard to find any evidence of such programs in law schools in Australia. However there are numbers of programs and conferences in the social sciences arena. Resolution Institute (formerly LEADR) has been publicising a general conference being hosted at Melbourne University in November – http://www.thestoryconference.com.au/program/

Perhaps the next step is for law schools to take a lead in influencing professional practice by partnering with other faculties (such as the program sponsored by the RMIT University School of Media and Communication) which have experience in delivering storytelling skills via experiential learning. It is time to ensure that this powerful tool of persuasion is embedded in ADR best practice.

 

 

 

 

 

 

 

Up close and (far too) personal – when ADR fails…. Or does it?

Many of us in the ADR community have been disappointed and horrified observers of the long-running family feud between a matriarch and her children.

There have been a number of attempts at mediation that we know of and, undoubtedly, many other confidential efforts to resolve this privately.

It has been very tantalising to watch. Talking with my ADR colleagues, it is clear that we have chosen to join this community because of our commitment to ADR principles and the opportunity they provide for durable resolution of disputes and the relationships they threaten.

It is tempting, in the face of very long drawn out and vitriolic proceedings, to see this case as a failure of ADR. However I have now worked my way through the elegant, carefully constructed and exceedingly thorough judgement of Brereton J[1] delivered last week and it has prompted me to revisit my thinking.

Those of us who teach ADR are careful to talk about repertoire rather than revolution. We explain carefully that choosing the most appropriate dispute resolution process will always depend on the interests of the parties. Sometimes uncovering and scrutinising the interests of the parties reveals that a private, consensual process does not satisfy the interests of at least one of the players. It seems a logical pursuit of its interests for a pharmaceutical company which owns the patent for the most profitable drug in the world to punish, aggressively, expensively and publicly, the generic brand threatening its patent. It has an interest, regardless of the expense, of giving a powerful signal to other would-be infringers to stay away. This could not be described as a failure of ADR. Rather it is an example of a party choosing, from the entire dispute resolution repertoire, the course of action which best meets its interests.

We are accustomed to families preferring harmony over disputes. Unless we are in the business of selling gossipy magazines, it is painful and unwelcome to watch the public disintegration of family life. Most of us would prefer to believe that familial love is so strong that it can find a way to resolve conflict with a generosity of spirit and a willingness to respect and honour differences.

This case challenges us to question those assumptions and our preference for peaceful resolution. Brereton J’s unpicking of the long chain of events reveals a conflict of values. In one corner we can identify the values of power and control – in the other corner the values of access to justice – feeling fairly treated within a framework of due process. The interests of each party in family harmony became, as the situation unravelled, subordinate to the values expressed in their very public dispute. Reading the story it is clear why the parties could not abandon the fight.

It is not a failure of ADR. It is the parties pursuing their powerfully held and conflicting interests, with none willing to sacrifice these interests in the pursuit of peace and family harmony.

Unpleasant as it is to be the unwilling observers of such an intimate and expensive spectacle, it is also useful to stand back and reflect. The reflection is useful and encouraging. It provides confirmation for us as ADR proponents that ADR remains alive and well; an important part of the dispute resolution repertoire. It just doesn’t suit all of the parties all of the time. The answer is always in the interests.

[1] See http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2015/646.html?stem=0&synonyms=0&query=rinehart&nocontext=1