Managing Societal Conflicts

Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Managing Societal Conflicts: Identity, Social Inclusion and Values” (2020) 30 (3) Australasian Dispute Resolution Journal, 193 – 202).

Social/Societal conflicts are those that are fluid, moving from stage to stage, from emergence to escalation and de-escalation, and then to resolution. They include many small conflicts which interlock, with parties engaging in various strategies for the achievement of their goals.[1] Societal conflicts are not always large-scale violent conflicts attracting the attention of the international community. They relate to social problems which may include issues around identity, race, gender, culture and class.

Image by Free-Photos from Pixabay

Conflict can arise in relation to values (Culture), goals (basic needs/Nature) and interests (Structure) and is a combination of attitudes, behaviour and contradictions.[2] Galtung goes further to identify various forms of violence within society. Violence is defined simply as ‘any avoidable insult to basic human needs’.[3] Basic needs, according to Galtung, include survival, wellness, freedom and identity needs. [4] Violence includes direct violence, cultural violence and structural violence. Direct violence is a form of physical violence directed by one person at another or at a group, which injures physically. Structural violence exists when institutions and systems employ discriminatory practices toward a group and cultural violence exists when discriminatory practices are not condemned by mainstream groups or government institutions.[5] Galtung argues that direct violence can result when injustices are woven into the social structure of society and there is polarisation (social distance) and frustration.[6] Frustration can lead to violence[7] but regardless of the absence of violence, conflict may exist, lying covertly under existing structures.  The flame of conflict can be fanned by negative societal discourses embedding prejudices, stereotypes and ethnocentrism.

But societal conflicts, as with any other type of dispute, can be functional in that they can promote social change, facilitate reconciliation of legitimate interests, discourage premature decisions for fear of antagonism and foster group solidarity.[8] Realising positive outcomes however requires cooperative processes.  Processes in which frank and open conversations can be had regarding underlying issues including value-differences, perceived divergence of interests and needs.[9]

A conflict resolution approach designed to achieve social change based on social justice values would require a vision of what a just society looks like.[10]  A just society, it is argued, is one where justice, freedom, equality and peace are core values. A society that emphasises the need for addressing societal conflict by engaging with underlying causes of conflict. A conflict resolution process that will inject values (justice, freedom, equality and peace)[11] into the conflict conversation to bring about a change; a change that will end the cycle of conflict. Not all conflict resolution processes have the injection of values at their core, but restorative justice processes could be useful in this regard.

Restorative justice is an approach to conflict resolution used where a community has been harmed by the action of one of its own.  This approach is used mostly in relation to criminal offending but the values underlying it are useful in the context of societal conflicts where a section of the community may be feeling excluded and undervalued;[12] where people and relationships have been violated and the goal is to seek healing and put right the wrongs. It is process in which taking responsibility is important. The goal must be clear and centred on achieving social justice, and the forum must be designed to provide an opportunity for genuine and honest conversations about the implications of negative public discourses on peoples, including minority groups. It must include taking steps to redress the situation where possible.


[1] Louis Kriesberg ‘The State of the Art in Conflict Transformation’, Berghof Handbook of Conflict Transformation, Article, [50-69] available online at https://www.berghof-foundation.org/fileadmin/redaktion/Publications/Handbook/Articles/kriesberg_handbook.pdf   

[2] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 22.

[3] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[4] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35-36.

[5] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 29; Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[6] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

[7] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

Dean G Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (McGraw Hill, 2004) 10-11.

[9] Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Wiley & Sons, 2004) 172.

[10] Alicia Pfund (ed), From Conflict Resolution to Social Justice – The Work and Legacy of Wallace Warfield (Bloomsbury Academic, 2013) xxxii.

[11] Lola Akin Ojelabi and Tania Sourdin, ‘Using a Values-Based Approach in Mediation’, 2011 (22) Australasian Dispute Resolution Journal 258.

[12] Brenda Morrison and Eliza Ahmed, ‘Restorative Justice and Civil Society: Emerging Practice, Theory, and Evidence’ (2006) 62 (2) Journal of Social Issues 209. The paper refers to a values-oriented conception of restorative justice.

Human Dignity, Autonomy and Dispute Resolution

Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Dignity and Culture in Dispute Resolution” (2020) 8 (1) Griffith Journal of Law and Human Dignity 1, 52 – 84).

Human dignity is central to solving human problems including disputing. It is also important in dispute resolution and management. While there are different conceptions of dignity, human dignity as the capacity of humans to reason and make free moral decisions is synonymous with individual autonomy or the capacity for self-determination. This conception of human dignity  yielding to self-determination is critical in modern mediation/dispute resolution. Another conception of dignity is substantive dignity – ‘the enforcement of substantive values … living in a certain way[1] particularly the  aspect that promotes ‘access to social and economic goods, enabling one to maintain a certain minimum standard of living’.[2] Arguably, the whole idea of promoting access to justice is based on this conception of human dignity. Access to justice is referred to as the right of individuals to access processes for the efficient and effective resolution of their disputes.[3] In decision-making processes, valuing human dignity should lead to conclusions that accord human worth; giving recognition to individuals’ basic need for esteem and respect.  

Image by Gerd Altmann from Pixabay

Human dignity and autonomy is about the capacity of humans to reason and make free moral decisions. As noted above, it is sometimes considered synonymous with individual autonomy, that is, ‘the ability of each person to determine for himself or herself a view of the good life’[4] in other words, freedom of choice and in dispute resolution in relation to process and outcome. It is the extent to which parties are free to choose the process, select the procedure to be followed and determine the outcome of the dispute resolution process. While not all dispute resolution processes give effect to this autonomy, those that do could be referred to as dignifying processes. These processes promote party decision-making and require parties to consider other parties’ interests while aiming at a win-win solution.[5] These processes could be collaborative problem-solving or cooperative processes including negotiation and mediation in their pure forms. Principled negotiation, which also forms the basis of pure facilitative mediation has four elements: separating the people from the problem, focusing on interests and not positions, inventing multiple options prior to deciding, and applying objective criteria.[6] These elements, when fully explored, support human dignity as autonomy.

Mediation, particularly facilitative mediation, promotes the self-determination of participants.[10] Self-determination is the parties’ freedom to make decisions in their own best interest without interference from others, including other parties and dispute resolution practitioners (DRPs). Concerns about self-determination relate to the level of impartiality of DRPs, including whether they give advice to parties or pressure parties to reach a settlement. Other concerns include the extent to which a party may participate in the process, including whether they have a voice and the effectiveness of their voice in the process. The latter concern can be further explored though a consideration of factors that may limit the effectiveness of a party’s voice.[11] These factors are multiple and include lack of familiarity with process, not understanding responsibility in the process, power imbalance including informational asymmetry, access to resources, lack of understanding of legal issues and lack of access to legal representation or other professional support and the involvement of repeat players. Full exercise of individual autonomy may be inhibited by these factors. Other factors include cultural bias, stereotypes, prejudices and incorrect assumptions about a party in relation to their cultural identity, including race and ethnicity.[12]

In negotiation and mediation, parties are the ultimate decision-makers. By focusing on the problem and not the people, parties refrain from an attack on the person but focus on the problem.  In addition, negotiators must recognise that they ‘are dealing not with abstract representatives … but with human beings [with] emotions, deeply held values, and different backgrounds and viewpoints’.[7] The relationship between the parties in this process should exhume ‘trust, understanding, respect’ but of course, this is not always the case. As noted by Ury et al, people ‘are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic’, they ‘get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened’ and ‘see the world from their own personal vantage point’[8] without consideration for others. What Ury et al teach about separating the people from the problem is to avoid these human pitfalls through a focus on relationship, giving value to the other party, empathy, refraining from blaming, and face-saving among other things. This is the responsibility of parties in negotiation because they control both the process and the outcome of negotiation. Both parties have a ‘voice’ in the decision-making.[9]

In mediation, ethical standards impose responsibilities on third parties to ensure effective participation in the process.[13] Third parties must give opportunity [to parties] to speak and to be heard[14] and to enable balanced negotiation between parties[15] among other things. To accord dignity to every party in a DR process, the five core interests of any human being must be satisfied. The interests are autonomy, appreciation, affiliation, role and status. Paying attention to these interests ‘can build rapport and a positive climate for problem-solving’.[16] The reason is not far-fetched: human dignity is a universal need. [17]  Paying attention to a party’s voice is an important core need in dispute resolution and would go a long way to safeguard the dignity of parties.


[1] Neomi Rao, ‘Three Conceptions of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 at 187.

[2] Lucy Michael, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics, 12 at 22.

[3] Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009).

[4] Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One, (Princeton University Press, 1994) 57.

[5] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 11.

[6] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  11.

[7] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[8] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[9] John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975) 1-2.

[10] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 2.2. It defines mediation as a process “that promotes the self-determination of participants.  and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions”.

[11] Lola Akin Ojelabi, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459.

[12] David Kahane, ‘What is Culture? Generalizing about Aboriginal and Newcomer Perspectives’, in Catherine Bell and David Kahane (eds), Intercultural Dispute Resolution in Aboriginal Contexts, (UBC Press,  2004) 28 – 56.

[13] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4.

[14] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:5.

[15] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4 , 7:7.

[16] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32.

[17] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32. Autonomy is referred to as ‘the desire to make your own choices and control your own fate’.

Call for EOI: Workshops and Pilot Survey for NMAS Review 2020-21

EXPRESSIONS OF INTEREST

We are happy to report that the review of the National Mediator Standards is well underway. Reference Group participants have commenced lending their expertise towards the development of the Approval and Practice Standards Survey (The NMAS Survey).

The NMAS Review Team are currently seeking expressions of interest for February 2021 workshop waitlists and participants for The NMAS Survey pilot in April.

Please follow the link to the NMAS Review 2020-21 Hub to register your interest. We encourage the ADR Research Network community to share this EOI within your networks.

NMAS REVIEW 2020-21

The NMAS Review 2020-21 is designed to be a collaborative process that actively seeks input from a diverse range of stakeholders across multiple points in time and using a variety of engagement strategies. This means stakeholders will have multiple opportunities to provide input over the life of the review.

The Approval and Practice Standards Survey (The NMAS Survey) is the primary instrument of the review and as such is the review proper. Unlike many traditional review processes, The NMAS Survey is being developed in consultation with the DR community through a range of forums including reference groups, collaborative workshops and pilots.

The findings arising out of The NMAS Survey will form the basis of the recommendations to the Mediator Standards Board (MSB).

Participation in The NMAS Survey is open to all stakeholders and interested parties. We invite you to be a reviewer by completing The NMAS Survey when it becomes available later in the year.

For up-to-date information about the review visit the NMAS Review Hub.

Kind Regards

NMAS Review Team, Resolution Resources

Email:nmasreview@resolutionresources.com.au | Website: www.nmasreview.com.au

Resolution Resources acknowledges the Wurundjeri People of the Kulin Nation as the traditional custodians of the land upon which we work.

LINK TO EXPRESSION OF INTEREST FORM

2020…

Well done everyone, you’ve nearly made it to the end of this extraordinary year. A big thank you to our monthly editors and all contributors for keeping up the ADRRN presence throughout a year of considerable challenges. Thank you to all our readers, who have maintained a sustained interest and visited this site over 25,000 times during 2020.

Image by Susan Cipriano from Pixabay.

Here’s a summary of our posts since January 2020.

Dispute Resolution and Crisis

Olivia Rundle’s post in late January 2020 responded to the catastrophic bushfires and floods sweeping across the Australian continent. It overviewed some of the kinds of disputes likely to arise, and mechanisms available for responding to them. Resolving disputes following catastrophic events remained relevant as catastrophe rolled out over the globe for the remainder of the year.

In April, Professor Rachael Field organised daily posts titled Lockdown Dispute Resolution 101, designed to offer dispute resolution tips and strategies for effective communication, negotiation and the resolution of disputes while in lockdown. If you visit our April posts you will find 25 Lockdown Dispute Resolution 101 offerings. Also that month, Professor Laurence Boulle shared his reflections upon the disruption to dispute resolution habits of time and space in a post COVID19 world. John Woodward shared his observations about the successful adoption of collaborative negotiation strategies by some governments and parliaments, to respond to the COVID19 pandemic. John concluded that ‘those nations which have embarked on more focused and integrative methods of resolving the crisis have enjoyed greater success in meeting the challenge, reducing the uncontrolled spread of the disease and saving lives.’

Online Opportunities

Joanne Law explored her ideas about the Benefits of Technology Assisted Training in Dispute Resolution. Mehak Bagga considered the issues arising around use of Artificial Intelligence in Mediation. Vivi Tan asserted in Do consumers and businesses want the benefits of rule of law without the costs of rule of law? that a theoretically grounded framework is needed to analyse the suitability of ODR systems.

In March the dates and location for the 2021 National Mediation Conference (NMC 2021) were announced, and it has subsequently been announced that the conference will be blended, to facilitate online attendance for those who do not travel. It is a great honour 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 the dispute resolution community to hold NMC 2021 at their facilities in Alice Springs. Laurence Boulle, Chair of the NMC acknowledged on behalf of the NMC Committee and dispute resolution community the Western Aranda and Central Arrernte peoples of the Alice Springs region, and all First Nations people upon whose land we live and work, and their connection to land, waters and culture.

Aboriginal and Torres Strait Islander Dispute Resolution Wisdom

Margaret Castles reported in July about her partnership with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Margaret’s report her heightened awareness of the influence that her  Euro-centric upbringing, education and legal training has on teaching and mediation practice. Margaret’s post reminds us that indigenous scholarship, partnership and deliberate effort to de-colonise our thinking will enhance and improve dispute resolution research, practice and teaching.

John Lidbetter shared his Learning from our First People – Using Yarning to Resolve Conflict.

Dispute Resolution Research – Theories and Methods

Rachael Field and Jon Crowe announced the release of their book Mediation Ethics: From Theory to Practice in June, which focuses in particular upon empowerment and self-determination as appropriate foundations for mediation ethics. They claim that there is a need for a new paradigm of mediation ethics, away from the traditional focus upon impartiality and neutrality. Paul Kirkwood’s review of the new book was posted here in November.

Svetlana German called for mediators to participate in her empirical research about mediator’s perspectives of neutrality, which will provide an evidence base for practitioner’s perspective of and use of the concept.

Amy J Cohen shared her thinking about integrative bargaining, another foundational dispute resolution concept, in particular how the meaning of integration has changed with capitalism. Amy linked to her full post on the Law and Political Economy blog titled A Labor Theory of Negotiation: From Integration to Value Creation. Amy argues for revisiting negotiation theory, which has a more radical history than commonly understood, and through this radical lens we might find more value creation opportunities.

Claire Holland and Rikki Mawad proposed some improvements to traditional methods of conflict mapping, to take better account of multidisciplinary knowledge, and the practitioner and the process.

Research methods were discussed in a number of our posts in 2020. Alysoun Boyle dedicated November’s blog posts to some thoughtful ideas about dispute resolution research. She started with naming up some of the key knowledge gaps and resource constraints. Next was a suggestion that collaborative research networks include a range of stakeholders and people from a variety of backgrounds and disciplines. Her final post introduced some collaborative and innovative research approaches that might be adopted in the dispute resolution space. Rosemary Howell commented upon the GPC North America Report.

Disputant Perspectives

Charlie Irvine contributed What do ‘lay’ people know about Justice? Charlie’s findings are fascinating, including the following:

What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated.  It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.

The diversity of personal characteristics of disputants was highlighted in Danielle Hutchinson and David Hutchinson’s post where they explored neurodiversity and how dispute resolution practitioners need to be informed in order to practise in an inclusive way. Inclusive practice and dispute resolution’s need to respond more appropriately to culture diversity was the focus of Zaynab Gul’s post.

Margaret Castles considered human motivations for retribution and punishment through her analysis of the series Game of Thrones. Her post was ‘prompted by the idea that the millions of modern day viewers rejoicing at the often brutal but seemingly fitting retribution that some truly reprehensible characters suffered in Game of Thrones, are the very same people that we see in facilitative ADR processes – in other words, us.’

Particular dispute resolution contexts

Arbitration

Ben Haward has brought his arbitration expertise to this network and made several posts in 2020. His post about What makes good arbitration law? The Australian experience launched our January presence. He introduced himself to us all in February and in June posted about International Commercial Arbitration, its application of law and flexibility of process, Challenges and Opportunities for Asia-Pacific International Arbitration, Of Dry Cleaning, Arbitration and International Commercial Courts. Ben returned in October and asked Does Choice of Dispute Resolution Method Affect the Application of the Law? This post looks at one instance where substantive law and choice of dispute resolution method may collide – the United Nations Convention on Contracts for the International Sale of Goods.

Sharifah Syed-Ronan’s vlog about International Commercial Arbitration in Indonesia and Australia was featured in December.

Institutional dispute resolution

Louis Benjamin’s vlog considered the extent to which needs of vulnerable users of court-connected mediation are accommodated within the justice system. Joshua Facchin questioned whether pre-action protocols are really as inconvenient as some make them out to be. Alan Limbury queried whether the COVID19 pandemic provided an opportunity for UK courts to reconsider their lack of willingness to compel litigants to attempt mediation, when he asked Could COVID19 see the end of Halsey? 2019 Roundtable papers included Nussen Ainsworth and Svetlana German’s NMAS and the distinction between process and substance in court-connected mediations. Nussen Ainsworth explored court-connected mediation at VCAT.

Dominique Allen raised some of the problems around sexual harrassment claims and presented her findings from interviews with lawyers about how those claims tend to be managed. Her concerns about confidentiality of dispute resolution in discrimination claims was elaborated further in Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination. Peta Spyrou introduced us to her research that empirically examines disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

Claire Scollay summarised some of her findings about socio-demographic, crash, injury, and recovery factors that are linked to legal service use among people who claim compensation for road traffic injuries.

Tina Hoyer and Claire Holland made a case for case coaching to be adopted as a core part of the Australian Tax Office’s ordinary business practice.

Mary Riley explored the Potential cost of failing to heal Civilian-Police Relations.

Laurence Boulle’s reflections upon former Prime Minister Malcolm Turnbull’s autobiography observed the application of dispute resolution related factors of prevention, interests, rights and power in politics, and suggested that examining negotiation in politics is a source of learning for dispute resolution professionals (although political antics are not necessarily a good role model).

Family Dispute Resolution (FDR)

Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow explored readiness and ripeness in FDR, Paul Gaddens considered the role of Evaluative mediation in Family Law financial cases, and Mark Dickinson raised questions about the Assessment of Suitability in FDR. A post from Mollie considered the importance of providing culturally sensitive and appropriate FDR for CALD families.

Lawyers and dispute resolution

John Woodward shared his thoughts about legal culture and collaborative dispute resolution in his Mind Half Closed post. Alperhan Babacan and Oz Susler made the case for greater commitment to ADR teaching in law schools. Hope Cooper provocatively asked why (some) lawyers deceive in negotiation, citing evidence that most negotiators engage in some kind of deceptive tactics.

Thank you for joining in with the Australasian Dispute Resolution Network in 2020. We look forward to engaging with you in 2021. The ADRRN Research Roundtable and Civil Justice Research Conference will be conducted jointly on 1 & 2 February in Newcastle, NSW, Australia and online.

Pre-action protocols: Are they really as inconvenient as they are made out to be?

Joshua Facchin is a final year student from the University of Tasmania, studying a combined degree of Bachelor of Economics/Bachelor of Laws (Hons). He elected to undertake his Honours research in the field of dispute resolution. Specifically, he focussed on the civil procedure rules regarding pre-action requirements (or protocols). The title of Joshua’s research project was, “Pre-Action Requirements: Are they really as inconvenient as they are made out to be?”. The paper explored the function of pre-action protocols within the Civil Dispute Resolution Act2011 (Cth) and how effective they are in resolving matters while upholding access to justice. It also analysed the rationales of the New South Wales and Victorian Governments in not legislating for similar pre-action protocols on a state level. In 2021 Joshua wishes to complete his Graduate Diploma of Legal Practice and be admitted as a legal practitioner.

Joshua can be contacted at Linked In.

Deception in Negotiations: Are lawyers deceptive? Do they lack ethical guidance?

This blog post is from Hope Cooper.

Hello, I am studying a Bachelor of Laws at the University of Tasmania having just completed my penultimate year. I currently study part time and work full time as a cadet and the Department of Treasury and Finance Tasmania. Working full time in this position as I study law has provided me with great insight into traditional dispute resolution commonly used in the legal profession, as well as the importance and differences of dispute resolution in not only the public sector but in practice within the workforce in general. 
Over the next coming years, I look forward to exploring my options further in the public service, as well as taking up opportunities in the private sector where I hope to develop my skills across the dispute resolution board in hope to become an effective and successful advocate. Thank you for taking an interest in my post and please feel free to contact me if you wish.

Hope can be contacted at Linked In

shutterstock_1007250361.jpg

It is no secret that deception as a tactic is commonly used by lawyers within negotiations. Is this because some lawyers can’t help but lie? Do they disregard ethical principles?  Is winning such a priority for these lawyers that professional and personal ethics are mute in comparison? 
This is a commonly held stereotype of lawyers. Many lawyers even agree with these stereotypes, so much so that lawyers enter negotiations expecting falsehoods throughout the discussions.

In fact, a study in 2005 demonstrated that where negotiators were given incentives to lie, but the option to tell the truth, only two per cent of negotiators chose to tell the truth. The remainder of negotiators either chose to conceal information or actively lied.

Negotiators don’t just deceive for the sake of being deceitful. It’s proven that deceptive tactics are likely to achieve better outcomes. Deception doesn’t necessarily involve blatant lying either. For example, it could include strategically revealing facts, bluffing, avoiding questions or overstating one’s position (all tactics quite stock and standard in the legal profession).  

Since all lawyers want the best outcome possible, lawyers who may be ethically against deception may be tempted to step outside of their boundaries to compete. Lawyers are then left in a battle against opposing lawyers where they themselves need to not only deceive their opposing party in order to get the best outcome, but be a better deceiver than their opposing party.

So is that it? Lawyers like to win, in fact, it is their job to get their client the best outcome. Does that mean lawyers are doomed to be deceptive until the end of time? Frankly, no. 

Despite the above, it is my argument that lawyers have been let down by lack of clarity about how to balance these dilemmas and their ethical obligations. Negotiation as its own process lacks guidance on ethical conduct. In fact studies have suggested that many lawyers deceive because they are confused as to what constitutes unethical conduct within negotiations. 

Yes, whilst it is true that Australia has professional conduct rules which umbrellas over negotiation, it is clear that this alone is ineffective in clarifying what is ethical within negotiations (because deception is still occurring, right?). 

Deception may always be a tactic used within negotiations. However, the legal profession needs better ground rules and ethical guidelines regarding negotiation in Australia. Until then, lawyers will continue to be left to navigate the complex relationship of ethics and deception without consistent guidance.

Vulnerable Users of Court-Connected Mediation: Challenges and Opportunities for Access to Justice

Louis Benjamin has just finished his Bachelor of Arts and Law. He is interested in the role of the law in both reproducing and remedying inequality and social inequity. At the end of his penultimate year of study, he interned for a Tasmanian practitioner involved in a court-connected mediation. The client had a mild learning difficulty and severe psychological trauma. Observing this process triggered an interest in court connected mediation and vulnerable individuals. Louis became interested in the relationship between the roles of lawyers and mediators in achieving individual access to justice on one hand, and the role of case management and the Court’s objective of structural access to justice on the other hand. In this vlog post Louis summarises his research essay on the topic, in which he concludes that there is room within the structure to ensure that vulnerable individuals achieve better equity. Louis makes the case that it is incumbent on practitioners to extend their diligence and tailor their representation to the client’s vulnerability, and that there is scope for targeted professional development and training to that end.

Louis can be contacted at Linked In

Image: https://www.newbreedmarketing.com/blog/why-marketers-should-care-about-operational-efficiency

Artificial Intelligence and Mediation

Mehak Bagga is a final year business – law student at the University of Tasmania, graduating in December 2020. Mehak researched the emergence of artificial intelligence in alternative dispute resolution. Her interest in the area stems from her study of the benefits of emerging technology in the legal domain. She presents her research from an access to justice point of view and critiques the notion that artificial intelligence improves such access. Mehak is interested in a career in commercial litigation, including exploring opportunities in alternative dispute resolution.

Mehak can be contacted at LinkedIn or by email mehakbagga27@gmail.com

Providing Culturally Sensitive and Appropriate FDR for CALD Families

My name is Mollie and I am an Arts/Law Student majoring in sociology. I chose to participate in the Dispute Resolution unit because I was interested in learning more about ADR techniques and the pros and cons of an alternative to the court system. I chose to focus my blog on CALD families because I wanted to understand how a minority group within Australia experiences FDR and what can be done to improve access and experience.

Felix Astoram https://www.freeimages.com/photo/paper-family-1313628

People from culturally and linguistically diverse(‘CALD’)  backgrounds are not accessing family dispute resolution(‘FDR’) services at a rate proportionate to their presence in Australia.[1] The research suggests that CALD communities are concerned that FDR services would not be culturally appropriate or sensitive to their disputes. My paper explores the challenges and opportunities for Family Dispute Resolution Practitioners (‘FDRP’) in ensuring that FDR is culturally sensitive and appropriate.

Throughout my research I found that FDRP’s could benefit from a uniform approach to culturally sensitive FDR directed from the Government.[2] I also found that FDRP’s could benefit from engaging in a reflexive practice. This would help them to continually challenge review and assess how they are providing FDR services to CALD families. [3]

Finally, I found that gender roles were a common reason why CALD communities felt that FDRP’s would not be culturally appropriate or sensitive.[4] Rather for many CALD communities, respected older family members of community leaders are often approached first to help resolve family disputes.[5] Even to the extent that they sometimes engage in helping divide up assets. I found that there was some anecdotal support for including these older respected family members or community leaders in the FDR process.


[1] Susan Armstrong, Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds (AFRC Briefing No.18 November 2010) 23;

[2] M. Dimopoulos, ‘Mediating difference: Utilising cross-cultural training skills to work more effectively with diverse groups’ in Toom Fisher (ed), Fourth national mediation conference proceedings (Melbourne: School of Law and Legal Studies, La Trobe University 1998); Australian Law Reform Commission, Family violence – A National Legal Response (ALRC Report No 14, November 2010).

[3] Susan Armstrong, ‘Developing Culturally Reflexive Practice in Family Dispute Resolution’ (2012) 22 Australasian Dispute Resolution Journal 30, 38-40.

[4] Lola Akin Ojelabi, Tom Fisher, Helen Cleak, Alikka Vernon and Nikola Balvin, ‘A cultural assessment of family dispute resolution: findings about access, retention and outcomes from the evaluation of a family relationship centre’ (2012) 18(1) Journal of Family Studies 76, 79.

[5] Ghena Krayem and Farrah Ahmed, Islamic Community Processes In Australia: An Introduction.

International Commercial Arbitration in Indonesia and Australia

Sharifah Syed-Rohan is a final year Bachelor of Arts/Bachelor of Laws (Hons)/Bachelor of Philosophy student at the University of Tasmania. Having majored in Bahasa Indonesia as part of her Arts degree, Sharifah travelled to Indonesia numerous times as part of both her Arts and Law degrees and is passionate about fostering the cross-border relations between Australia and Indonesia. After completing a summer clerkship at KarimSyah Law Firm, Jakarta in 2020, Sharifah observed international commercial arbitration in Indonesia, and wondered whether this system could adopt aspects of the Australian system to ensure just outcomes for its users. In 2021 Sharifah will be moving to Canberra to commence work for the ACT Public Service and hopes to continue building her knowledge of the Indonesian language, culture and law.

Sharifah’s Twitter handle is @SharifahZaliah