Legal Services in Road Traffic Injury Compensation Claims: Who Uses Them?

This post summarises a new study that has just been published in the University of New South Wales Law Journal that looks at the socio-demographic, crash, injury, and recovery factors that are linked to legal service use among people who claim compensation for road traffic injuries. The article is part of my PhD work at Monash University, which looks at claimant legal service use in injury compensation schemes.

This article has been published with my supervisors Drs Janneke Berecki-Gisolf, Becky Batagol, and Genevieve M Grant.

Background: Personal Injury Legal Problems

Personal injury is one of the most common types of legal problem that people experience. A legal problem is a problem that can be resolved using the law. A personal injury is a harm to a person for which compensation can be claimed; this harm can be the result of a road traffic crash, workplace injury, product fault, or other occurrence.

Research by the Law and Justice Foundation of New South Wales shows that seven per cent of Australians aged 15 and above experience a personal injury legal problem within a 12-month period. One fifth of these people sustain their injuries in road traffic crashes. Road traffic injuries are linked to a number of negative outcomes (beyond the injuries themselves) including loss of income and financial strain, stress-related illness, relationship breakdown, and moving house.

Compensation for Road Traffic Crash Injuries

In Australia, compensation for road traffic injuries can be accessed by lodging a claim through the relevant insurer. In Victoria, this insurer is the Transport Accident Commission (TAC).

People who claim compensation for road traffic injuries engage lawyers to help them to access benefits, including through navigating the claims process and resolving disputes with insurers. Because of this, lawyer use is linked to access to justice (or the extent to which claimants can enforce their rights through fair and open processes). But, surprisingly, little is known about the characteristics that are linked to lawyer use in compensation schemes. The role of injury severity and recovery outcomes is especially unclear.

New Empirical Research on Lawyer Use in Compensation Schemes

This study used TAC compensation claims and payments data to look at how much claimant lawyer use was explained by (a) injury severity, (b) individual-level socio-demographic, crash, and injury factors, and (c) short- and long-term recovery outcomes in the TAC scheme.

The study found that although injury severity and other socio-demographic, crash, and injury factors shape claimant decisions about engaging lawyers, the experience of negative recovery outcomes (such as time off work, mental health issues, and/or pain issues) plays by far the most important role.

Because information about injury severity was only available for claimants who had been hospitalised, those who had and had not been hospitalised had to be looked at separately. In the hospitalised group, claimants with more severe injuries were more likely to use lawyers. In both the hospitalised and non-hospitalised groups, the other factors that were linked to lawyer use are shown in the image below:

Scollay diagram march 2020

What Does This Mean for Access to Justice?

This study shows which claimants are likely to need and use lawyers in compensation schemes.

One interesting finding is that socio-economically disadvantaged claimants, who tend not to seek legal advice outside compensation schemes, tended to seek legal advice in the TAC scheme. That is, disadvantaged clients were more likely to seek and obtain legal advice. This finding differentiates access to justice in the compensation scheme context from the rest of the civil legal system. One possible explanation is that personal injury lawyers often provide their services on a ‘no win, no fee’ basis, which takes away cost barriers for disadvantaged claimants. Understanding what leads to better access to justice for this group in the TAC scheme could improve access to justice for this group in other settings.

The study also shows that there are opportunities to improve access to justice in the TAC scheme in some groups, for example among young claimants.

 

You can find the full advance copy of the article here (open access).

The full citation for the article is Clare E Scollay, Janneke Berecki-Gisolf, Becky Batagol and Genevieve M Grant, ‘Claimant Lawyer Use in Road Traffic Injury Compensation Claims (Advance)’ (2020) 43 University of NSW Law Journal.

 

Sexual harassment claims are costly and complex – can this be fixed?

This article was originally published in The Conversationon 6 March 2019. 

The #MeToo movement has reminded us that sexual harassment has not gone away. The legal tools we’re using are not working and may even be hiding the true extent of the problem.

Most sexual harassment complaints are resolved confidentially at the Australian Human Rights Commission (AHRC) or its local equivalents. Few go to court. This system has three fundamental problems.

kate jenkins

Sex Discrimination Commissioner Kate Jenkins, speaking at the CSW63 Side Event – Consigning sexual harassment to the dustbin of history – what it would take to achieve cultural change, March 2019. Photo Credit UN Women (CC BY-NC-ND 2.0)




Read more:
Rape, sexual assault and sexual harassment: what’s the difference?


Confidential processes and settlements

Confidentiality is essential to get people to the negotiating table. Who can forget the media scrutiny actors Geoffrey Rush and Eryn Jean Norvill were subjected to?

Even for people who are not famous, the potential media interest in a sexual harassment claim is a strong reason to settle, as it is for employers who fear reputational damage. But it means the community isn’t aware that sexual harassment is still occurring or how it’s being addressed.

Employers usually insist on a confidentiality clause when they settle a claim. I recently interviewed 23 lawyers in Melbourne, asking them how common confidentiality clauses are in discrimination settlements.

A solicitor told me settlement agreements “almost always” include confidentiality. Another described the confidentiality clause as “not negotiable”. A barrister said: “No one I know has ever settled on non-confidential terms.”

The lawyers said employers use confidentiality clauses to avoid opening the “floodgates” to other victims. Employees seek confidentiality if they have left the workplace and worry about what their former employer might say about them.

At their most extreme, confidentiality clauses have a chilling effect on victims, who fear the repercussions of discussing any aspect of their claim. At the same time, they protect the perpetrator at their current workplace and anywhere they work in the future.

A complex, costly legal system

Making a legal claim is complex and costly. A woman who has been sexually harassed could use her local anti-discrimination law or the federal system. The federal system is costly because if she loses at court not only will she have to pay her own legal costs, she risks having to pay the other side’s costs too.

If she’s been discriminated against, unfairly dismissed or has a worker’s compensation claim, three more legal avenues are open to her. These vary in terms of costs, procedures, time restrictions and levels of formality, so they’re difficult to navigate without legal assistance.

It’s not surprising, then, that most people don’t use the formal legal system and those that do tend to settle.

Individual burden

There is no equivalent of the Australian Securities and Investments Commission (ASIC) or the Australian Competition and Consumer Commission (ACCC) that can prosecute employers or represent victims, so the person who has been sexually harassed bears a heavy burden. As one of the lawyers I interviewed put it, the victim has to do “all the heavy lifting”.

Respect@Work

This week, the AHRC released Respect@Work, a lengthy report on sexual harassment. It made 55 recommendations, many of which are designed to improve the legal framework. Will they resolve these weaknesses?

In terms of shedding light on the prevalence of sexual harassment, the recommendations include that the AHRC and its local equivalents should collect de-identified data about sexual harassment claims and settlement outcomes, share this data and prepare coordinated annual reports. This is significant because at the moment they only release numerical annual complaint data. They don’t publish anything about the nature of claims or settlements. Acknowledging that some parties want confidentiality, the AHRC will develop “best practice” principles, which might include preparing a model confidentiality clause and making some disclosures permissible.

Lawyers told me they negotiate damages payments in excess of what courts are likely to order. Because settlements are confidential, they have no impact on the courts’ understanding of the harm of sexual harassment, and victims and their lawyers don’t have a realistic starting point for negotiations. It is pleasing that the AHRC has recommended the government conduct research on damages awards and that this should inform judicial training.

Lawyers repeatedly told me the risk of costs is the main reason victims don’t use the federal system. The AHRC recommended a losing party should only have to pay the other side’s legal costs if their claim is vexatious, which is how the Fair Work system operates. The government should act to remove this barrier right away.

The recommendations to increase funding for community legal centres and bring consistency to federal and local sexual harassment legislation (including adding sexual harassment to the Fair Work Act) will reduce the cost and complexity of the system.




Read more:
Geoffrey Rush’s victory in his defamation case could have a chilling effect on the #MeToo movement


But a problem remains – the burden still rests on the victim. The AHRC has proposed establishing a Workplace Sexual Harassment Council comprised of federal and local equality and workplace safety agencies. But this is a leadership and advisory body, not an enforcement agency.

The AHRC president is conducting an inquiry into reforming discrimination law. Changing the enforcement model and alleviating the burden on the victim must be considered as part of this broader project.The Conversation

Dominique Allen, Senior Lecturer in Law, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

 

Put that in your Diary: National Mediation Conference 2021

We now know the date as well as the location of the next National Mediation Conference. Now’s the time to put it on your diary. NMC is a practitioner-focused conference with a strong academic edge, covering all areas of dispute resolution. You can see the details of the last NMC here.

The next NMC will be held in Alice Springs, Northern Territory from 1-4 September 2021. Importantly, the conference will be hosted on the grounds of Desert Knowledge Precinct, a beau­ti­ful 73 hectare prop­er­ty on the South Stu­art High­way, 8km south of the Alice Springs CBD.

alice springs

Spectacular Alice: ANZC by Ayi Lui (CC BY-NC-ND 2.0)

A copy of the press release from Prof Laurence Boulle, Chair of the NMC is posted below. Both Laurence and  Alysoun Boyle are members of the ADRR Network and are planning the 2021 conference.

The directors of the National Mediation Conference Ltd acknowledge the Traditional Owners of country throughout Australia, and in the context of this announcement especially the Western Aranda and Central Arrernte peoples of the Alice Springs region.  We recognise their connection to land, waters and culture, and we pay our deep respects to their Elders past, present and emerging.

In this regard the NMC is delighted to announce that the Desert Knowledge Precinct Partners (Centre for Appropriate Technology, Batchelor Institute of Indigenous Tertiary Education, Desert Knowledge Australia and the Desert Peoples Centre)  have issued an invitation to us and the dispute resolution community to hold NMC 2021 at their facilities in Alice Springs (https://www.dka.com.au/activities/dk-precinct).

The NMC directors have accepted this invitation and would also like to acknowledge the valuable assistance from the Northern Territory Business Events Support fund for NMC 2021.

The Welcome Reception for the conference will be on the evening of Wednesday 1 September 2021 and the event will run over the following three days, namely 2, 3 and 4 September.  In setting these dates the NMC Board has taken into account the timetable of The Ghan train from Adelaide to Alice Springs, and return.

Please save these dates and spread the word for an innovative, stimulating, and inspiring conference in the heart of the country.

The NMC Board is currently appointing a Design Committee to plan the conference and is commencing a formal process for selecting a Professional Conference Organiser. In due course, the Design Committee will start providing regular updates on all aspects of the conference.

Now it’s time to Save the Date and start preparing for a superb engagement in a wondrous setting.

See you in Alice.

Professor Laurence Boulle AM

Chair, NMC Board                                                                                                                            3 March 2020

 

The Benefits of Technology Assisted Training in Dispute Resolution

Thank you to Joanne Law for this post.

Joanne Law is a registered Family Dispute Resolution Practitioner, NMAS Accredited Mediator, Certified Family Group Conference Facilitator and New Ways for Families Coach.  She’s owner of Mediation Institute, established in 2013 to provide eLearning for the dispute resolution industry, with a human touch.

She is a professional trainer and co-founder of the not-for-profit Interact Support established to prevent family violence and abuse by providing accurate information and dispute resolution services for people who are slipping through the cracks in the family law system

Joanne records a podcast called Mediator Musings which you can find on iTunes and other podcast distributors and is curator for TEDxCasey in South East Melbourne.  

Our Earth planet and modern life. Elements of this image are furnished by NASA

 The benefits of technology assisted training in dispute resolution

Using education technology is a rapidly growing approach to human learning. The dispute resolution education industry is not immune this trend and eLearning is now well established by pioneering organisations such as Mediation Institute. 

The traditional approach to mediation training gathers people into a room for a workshop with lecture style instruction on new material and role plays in an intensive training environment.

Studies that compare classroom instruction, eLearning and blended learning indicate that eLearning and especially blended learning are at least as good as, and when well-designed, outperform classroom instruction alone.   The major factors in eLearning that provide these benefits are realistic practice, spaced repetitions, contextualised meaningful scenarios and feedback.  

There have been various studies and meta studies such as Means and Colleagues 2013—Meta-Analysis which conclude “eLearning-only situations produced an equal amount of learning compared with classroom-only situations. Blended learning (a combination of both classroom and online learning) produced better results than classroom-only instruction.

It makes sense to use of technology to support learning in terms of cost, accessibility and flexibility. Mediation Institute delivers courses either fully online or via blended learning where there is no adequate way to simulate through video meeting.  Our Family Group Conference Facilitation course is one where the skill to learn is facilitating a group meeting which takes place face to face.

It is important to design learning for eLearning and not just put offline material online.

What is online learning? 

Online learning or eLearning is a form of education whereby the primary delivery mechanism is via the internet (Bates 2008) It is more than an evolution of the distance learning correspondence course and when well-designed makes use of technology in a unique way.  The use of a website to deliver PDF content is still available and called online learning but that kind of approach gives eLearning a bad name, and promotes a bad student experiences and high drop out rates. 

E-learning includes the use of a learning management system to provide course content, the opportunity to blend audio and video material, conduct quiz’s and assessments and to engage in on line recorded and live classes with other students.

Three of the biggest advantages we see for students in online learning are individualised learning, better feedback delivery and helping our learners to be better prepared for the future in the industry which we firmly believe will have a much greater presence of Online Dispute Resolution.

Individualised Learning

The accessibility and flexibility of elearning means that learning can be individualised . In the case of skills learning activities can be reduced down to the minimum number of participants to participate in a role play.

We are eagerly awaiting the time when Virtual Reality and Artificial Intelligence is sufficiently advance and affordable to allow us to provide individualised simulation opportunities for students. Till then with three students and a mentor and two hours to spare they can participate in a role play from wherever they are, providing they have access to the internet.

We favour asynchronous learning where possible, which means is that students can start their studies with Mediation Institute when they are ready to start, move through the course at their own pace and book in to do their role plays when they are ready.

There is real time learning in webinars and role plays but the rest of the course is self-paced with discussions via a forum where they can read other students’ entries and contribute in their own time.   Semesters, course start dates and set assessment are for the convenience of educational institutions and provide no benefit for students, apart from a bit of extrinsic motivation.  This flexibility means that we are tracking at 95 – 100% completion rate, depending on the course.

Individual support starts when a new student joins a course as we can use web meeting technology to offer individualised student orientations.  In the session we hand over control of screen sharing to the student so they can navigate the course on their computer and the mentor can guide them remotely.  Students book in for sessions like this using an online booking calendar tool that lets them schedule a session and insert it into the mentor’s calendar.   

The other benefit of this individualised approach to learning is that the first role plays that they participate in are with students who have already participated in three role plays as a role player before their first role play as a mediator.  In workshops the first role plays are often short and very messy due to everyone struggling to understand the new information they have just been presented with and a lack of good examples to work from.  All of the role plays our students participate in are scheduled for two hours and provide the opportunity for tailored mentoring based on the needs of the student who is learning their new skills.

We use flipped learning which means that the theory learning takes place using online learning before interactive webinars, role play sessions or workshops. The students will have already completed some or all of the theory part of the course and ideally have had time to integrate what they have learnt as role players well before they attempt to use the skills as the facilitator.

This isn’t possible in a workshop as the time constraints of the schedule mean that the delivery pace is usually going to be too fast or too slow for the majority of the group.  People get pushed through to role playing being a mediator with an incomplete understanding of the knowledge they need and sometimes struggle to even remember let alone understand the content and effectively translate it into competent role plays for their final assessment.

Our learning approach means that students are competent by the time they reach their assessment 95% of the time. For the small number who are not we offer further coaching and the opportunity to be re-assessed.  

Better feedback delivery

Being a competent mediator is a unique skill building on interpersonal skills that most students already have. Learning how to mediate requires an adjustment in mindset and approach. Our experience is that students are often older learners who are very competent in roles where they give advice or advocate for clients.  They may be used to working with a certain type of client, for example victims of family violence and have to learn how to work with other people in a non-judgemental way in order to facilitate a fair process while still using judgement in order to ensure that the process is physically and emotionally safe. It is complex work.

Approximately one third of our students are legally trained, another third are counsellors, psychologist or social workers and the rest from a business or other background. 

They need to learn the mediation process, why the process developed and what each part of it does to help people to negotiate more effectively and how to be non-judgemental and empowering in their facilitation styles.

The benefit of doing our role plays using video mediation is that students can record their role plays and review them to help them to take in the feedback from their mentor. 

Unconscious bias, poor questioning or failing to use active listening effectively and other problems can be pointed out and then they can review their role play to observe themselves.

I still remember the cognitive resistance that I and other learners had when I learned mediation in the traditional way, there was no action replay available to us! Sometimes we thought the mentor must have been mistaken in their feedback or struggled to understand it,  impeding our learning.  

Better prepared for the future

Online mediation is a growing trend that will continue to grow as more and more “digital natives” take up roles in business and become clients for mediators. Communicating electronically using video meeting technology is already becoming common.  

I’ve already seen this trend in my own career as a dispute resolution professional and in the not-for-profit run, Interact Support.

Our policy is that if there is a family violence order in place, we don’t offer offline services. The options are video mediation, video shuttle mediation or mediator facilitated negotiation.   The majority of our clients either seek out or accept video mediation even if family violence isn’t a factor in their relationship breakdown. 

The use of legal tech is also going to be a major trend in our industry.

We train our CHC81115 – Graduate Diploma of Family Dispute Resolution students using Legal Tech software such as the Detection of Overall Risk Screening tool (DOORS) and FamilyProperty for their property FDR mediation simulations.  We believe that it is important to ensure that new mediators are comfortable using technology with clients.  Those who go on to do their fifty hours work placement with Interact Support are already prepared to work effectively with clients using video mediation and Family Property for their mediations and will be learning how to use MODRON for case management.

We’re currently developing a course on mediation case management which will be built around the MODRON online dispute resolution software.

The tool helps us to manage case management for our low income and community mediation programs. 

We are firmly in the information revolution now that knowledge can be captured, digitally transported and used later.  We are at an equivalent stage to the start of the industrial revolution when they were first able to capture energy and transport it for later use in the industrial revolution. 

My concern is that many mediators are caught up in the same sort of thinking that the Luddites used when trying to hold back the tide of industrialisation in the 19th century.  Resisting advances in technology due to the belief that it will threaten jobs is almost a self-fulfilling prophesy while embracing and using the technology to amplify our human capability ensures we remain relevant as dispute resolution professionals.

Failing to do that will see a continued advance of the use of Artificial Intelligence (AI) to replace human decision making and facilitation of dispute resolution processes.

Alternative Dispute Resolution is increasingly being required to be used before litigation and Online Dispute Resolution (ODR) is providing low-cost and independent dispute resolution in a much more accessible way that the traditional approach with its mediation rooms and waiting lists. 

A Victorian Civil and Administrative (VCAT) ran a pilot in 2018 on ODR powered by MODRON to evaluate a hypothesis that “If VCAT introduces online dispute resolution then the Victorian community will experience improved access to justice.”  You can watch a brief overview here https://youtu.be/LTkT9Z7cn9c on the pilot.

Mediation effectiveness doesn’t depend on the way it is delivered, what matters more is that it is available when it is needed rather than allowing disputes to continue to escalate.

When it comes to learning effectiveness, it is not whether the learning is delivered in eLearning or classroom instruction, it is the quality of the training that makes the difference.

Poor quality training in either context is going to be poor quality training.

Technology enables better quality training by making it easier to be more individualised, more flexible and provide better feedback and more realistic simulations. Anything that moves away from presenting information via a lecture and expecting a group of people to learn at the same pace is a positive improvement. 

The research shows that it is essential to present to learners’ realistic scenarios for decision making, spaced repetitions over time to ensure retention, real world context through simulations and high quality feedback on their individual performance.

Online learning provides the opportunity to give learners these opportunities more effectively.

Further reading

Design for how people learn Julie Dirksen and the Serious eLearning Manifesto – https://elearningmanifesto.org/

Online delivery of VET qualifications: current use and outcomes Tabatha Griffin and Mandy Mihelic National Centre for Vocational Education Research. https://www.ncver.edu.au/research-and-statistics/publications/all-publications/online-delivery-of-vet-qualifications

The GPC North America Report – reading between the ines

It is my pleasure to share Dr Rosemary Howell‘s most recent Kluwer Blogpost with the ADR Researcg Network community. I thank Rosemary for her continued and important contribution to the Global Pound Conversation.

Written by Dr Rosemary Howell

NA report cover

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

Beresford, Daisy Radcliffe, 1879-1939; Interior of the Great Hall, Guildhall, LondonInterior of the Great Hall, Guildhall, London

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

 It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

 We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

The GPC North America Report – reading between the lines

I am thrilled to share this post by Dr Rosemary Howell which first appeared in the Kluwer Mediation Blog of February 22nd, 2020.

I would like to take the opportunity to thank Rosemary for her continued support and important contribution to the Global Pound Conversation.

NA report cover

By Dr Rosemary Howell

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

Beresford, Daisy Radcliffe, 1879-1939; Interior of the Great Hall, Guildhall, LondonInterior of the Great Hall, Guildhall, London

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

 It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

 We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

Court Connected Mediation: New model at the Victorian Civil and Administrative Tribunal

When it comes to court connected mediation (CCM) it is useful to make a differentiate between the process which takes place in the room and the process which takes place outside of the mediation room. Many CCM programs will arguably use NMAS as the foundation of what happens in the mediation room. However, they will all have different out of the room process. These out of the room process add to the context and environment that the inside the room process takes place and has the potential to have an impact. It is within in this frame of reference that I would like to introduce and discuss a relatively new model of mediation known as Fast Track Mediation and Hearing (FTMH) and focus the discussion on the out of room process and environment FTMH takes place in and how they may impact the mediation, parties and mediator.

Background

The FTMH program was developed in response to a recommendation in the Access to Justice Review. [LINK] The FTMH is a partnership between the Victorian Civil and Administrative Tribunal (VCAT) and the Dispute Settlement Centre of Victoria. The program started in September 2017 with a staged roll out over four years. As of March 2020, will be offered in eight locations across Victoria with the VCAT on King St in the CBD the main location.

Jurisdiction

The program will meditate goods and services disputes that have a value of between $500 and $10,000.

Objective

To resolve and if not finalise disputes as quickly as possible.

Process

Appropriate disputes are identified and staff of the FTMH program will contact the parties. An intake will take place over the phone where the process will be discussed, and parties will be provided with information to allow them to be best prepared for the day where the matter will be resolved or finalised.

On the day, parties will arrive at VCAT and will go through a one-hour mediation. The in the room process is a NMAS based facilitative model. If the mediation results in an agreement, then terms of settlement are drafted and signed and the VCAT file is updated accordingly. If there is no agreement, then the parties are taken directly to the tribunal and their matter is heard by a VCAT Member who will make a determination. From the parties’ perspective they will leave VCAT with either an agreement reached in mediation or a determination from a VCAT member.

Unique Features and Impact

The FTMH program has a number of unique features which impact the mediation, parties and mediator including:

Front loading of time and costs: given that the parties will be going into a hearing and have the matter determined on the same day as the unsuccessful mediation, means that any costs will have already been spent prior to the mediation and there will be no further costs incurred to take the matter from mediation to a hearing. The same is the case for time. There will be no further time delay from mediation to a hearing.

Costs orders: VCAT is a generally a no costs jurisdiction. Which means that one of the key risks in matters of low value does not exist. Parties are not incentivised or at least they are less incentivised to settle as they do not risk having to pay the other parties legal costs if the hearing does not go their way.

Final agreement opportunity: The mediation in FTMH is the final opportunity for parties to resolve the dispute. They can not use the mediation as a fact-finding exercise or opportunity to test or hear the other parties offers. As there is no opportunity to continue negotiating if the mediation is not successful as the matter goes directly to a hearing and will be determined

Conclusion

This an exciting program that really addresses a need for disputing parties. It gives them the opportunity to try to resolve the dispute themselves but at the same time ensures that the dispute will be finalised on the one day allowing greater access to justice for disputing Victorians.

Much of the attractiveness of resolving disputes in CCM is the saving of time and money and mitigating costs orders. FTMH removes the delay and added costs generally associated with non-resolution of CCM. This has a potential impact on the incentives for parties to settle. It also limits the BATNA, WATNA and reality testing tools mediator would otherwise have in their tool kit. In time, I hope to do a research project to see what the actual impact the unique features have on the outcome and party satisfaction.

It is great to see continued innovation in the CCM space and it will interesting to see how this program develops.