Potential Cost of Failing to Heal Civilian-Policy Relations: A Comparative Look at the LAPD and NYPD

This post by Mary Riley, PhD Candidate, USC, is based upon a paper that was workshopped at the ADRRN Roundtable 9-10 December 2019.

By Kgbo – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=72782980

Mediation, incorporating restorative justice principles, is increasingly being used in countries such as the United States of America to resolve civilian complaints against police. In most jurisdictions when civilians have grievances against police officers, they lodge complaints with the relevant police department which internally manages the complaint. Serious allegations are formally investigated while minor complaints are often conciliated, but complainants are often left feeling dissatisfied with the process that affords them no participation. However, the mediation and restorative justice movements have finally infiltrated the bastion of law enforcement. Police departments and oversight agencies are responding to the scientific evidence in the literature that says bringing complainants and police officers face-to-face in a safe and independently mediated forum to openly discuss their perspectives of an incident, is an effective way of resolving conflict. Unresolved conflict between civilians and the police has the potential to generate mistrust of police, which could result in more serious problems such as reluctance to obey the law.

An examination of two of the largest police departments in the United States – the Los Angeles and New York Police Departments, has revealed they are amongst the most high-profile, controversial and scandal-plagued police departments in the world. Since the start of 20th century, these police departments have been at the centre of police corruption inquiries related to prostitution, gambling, bribery, extortion and organised crime. Various public inquiries have resulted in the overhaul of complaints systems and the establishment of mediation programs to provide a fairer resolution process for the public. The police departments are aware of the damage to public confidence caused by police misconduct, and increasingly, racially-biased policing and discourtesy complaints, and have made rebuilding civilian-police relations a priority. 

Yet, two problems exist. The first is the low number of complaints (10% of all complaints lodged) that are referred to mediation; and the second is getting complainants to participate in mediation once contacted. Many complainants are unaware of the mediation option and/or view it with mistrust. They see it as another process organised by agencies closely connected to the police. Yet, for those who do participate, mediation surveys (completed at the end of all sessions) reveal consistently high satisfaction rates with the process, including trust of the mediator and having the opportunity to be heard. More research into why complainants do not take up the option and how mediation may be better promoted would likely benefit all stakeholders and build trust. 

Assessment of suitability for family dispute resolution

This post is written by Mark Dickinson, PhD candidate at the University of Tasmania, and is based upon the paper that he presented at the ADRRN Roundtable in December 2019.


This research project explores the assessment of suitability for Family Dispute Resolution (FDR) – a decision making process which is a primary responsibility of a Family Dispute Resolution Practitioner (FDRP) (See generally Family Law Act 1975 (Cth) and Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)). Before a joint FDR (mediation) session can be offered an assessment as to its suitability for the parties must first be conducted (Reg 25(1)). This discretionary assessment of suitability for FDR relies on the professional judgment of the individual FDRP. Using a mixed methods approach this research examines this assessment of suitability as undertaken by FDRPs working in a community-based, not for profit organisation in Tasmania.

Mohamed Hassan, Pixabay https://images.app.goo.gl/VghtFUuavzVBJ5418


From July 2007 the Family Law Act 1975 (Cth) has required separated parents and others to make a genuine effort to resolve their parenting dispute at FDR prior to filing in the family courts (s60I – note exceptions apply). FDR is a non-adversarial, alternative dispute resolution process akin to facilitative mediation. Coinciding with this mandating of FDR, 65 community-based, government funded, Family Relationship Centres (FRCs) were established around the country to provide free or nominal cost FDR services. The majority of FDR takes place in FRCs (see Moloney et al, p238).

It has been observed that clients engaging at FRCs are increasingly presenting with complex needs (see also Smyth et al, 10-11). The mandating of FDR and the establishment of FRCs has led FDRPs to be considered “gatekeepers” to the family court system. As a result, the nature and complexity of cases dealt with in an FRC can vary considerably.

The test to be applied in assessing suitability for FDR involves a consideration of the “capacity of each party to negotiation freely” having regard to a range of factors including: any history of family violence; the safety of the parties; equality of bargaining power; risk of child abuse; and the emotional, psychological and physical health of the parties (reg 25(2)). Communications made to an FDRP during FDR are generally confidential (s 10H); and subject to a specific court order, practitioners are not required to provide reasons for the determination of suitability for FDR. This research aims to shed light on this important decision of the FDRP.


One aspect of an FDRP’s competence in practice is the ability to effectively mediate a range of parenting disputes with varying complexity. It is argued that the greater the FDRP’s ability to effectively mediate complex (as well as less complex) matters, the higher will be the percentage of their caseload that they will assess as suitable for FDR and will proceed to a joint mediation session. FRC clients that are assessed as unsuitable for FDR are provided with a “section 60I certificate” to that effect and need to consider other options to resolve their dispute. Receipt of a s 60I certificate enables a party to file a parenting application in the family courts, though the cost of engaging a private legal practitioner in such proceedings is not a viable option for manyResearch commissioned by Interrelate found that 41% of its surveyed FRC clients who received a not suitable certificate would have preferred to continue with FDR to resolve their dispute.

From a governmental perspective FDR is a cost-effective method of resolving family law disputes. An analysis by the Australian Government found that FDR conducted through FRCs and Legal Aid Commissions had a net cost per service of less than one fifth of the cost of matters finalised in the Family Court of Australia.  Recent budgetary cuts to Legal Aid Commissions and Community Legal Centres are likely to reduce the number of clients having access to free or subsidised family law legal services. The recently published Australian Law Reform Commission Inquiry into the Family Law System supports the continued use of FDR. Within this context the Australian Government has shown an ongoing interest in exploring alternative outcome measures and funding models for FRCs.

A deeper understanding of the assessment of suitability for FDR using both quantitative and qualitative methods may support the adoption of the frequency of assessments of suitability for FDR as a further metric for measuring FDRP effectiveness in practice. Further research (beyond the scope of this project) may use the findings of this research to develop models for practice aimed at increasing the frequency FDR is assessed as suitable, and therefore of clients being offered a joint FDR (mediation) service. 

Relationships Australia Tasmania

Relationships Australia Tasmania (RA Tas) operates all FRCs established in Tasmania, with centres in Hobart, Launceston and Devonport.  RA Tas has provided in principle agreement to provide data for this research project. I was formerly employed by Relationships Australia Tasmania (“RA Tas”) as an FDRP and senior practitioner in FDR.  In 2014 I conducted a pilot study at the Launceston FRC quantifying the number of section 60I certificates issued by its FDRPs. The pilot study suggested a significant variation between FDRPs of the frequency in which they assessed cases as unsuitable. 

Research Questions 

Having regard to the scope of the data sought, this research aims to answer the following research questions: 

  1. Is there a significant variation between FDRPs of the frequency in which cases are assessed as unsuitable?
  2. What do FDRPs report they consider when assessing suitability for FDR?
  3. Assuming a significant variation is found to the first question, what factors reported by FDRPs appear most relevant in explaining that variation? 

Methodology Summary

The proposed research involves at least two phases. The first phase of this research will cover a five year period and quantify: all certificate types issued by RA Tas FDRPs; the number of cases allocated to each FDRP; and the number of cases that proceeded to a joint FDR session. This data should show what variation exists between FDRPs of the frequency in which they assess cases as unsuitable (and suitable) – expressed as a percentage of total cases.

The second phase of the research will involve in depth interviews with RA Tas FDRPs, supervisors and managers to explore the decision making process of assessing suitability for FDR and endeavour to explain the anticipated variation in the frequency of cases assessed as unsuitable by those FDRPs. 

It is hypothesized that the assessment of suitability may be as much an assessment for the FDRP as it is of the clients. This assumes an FDRP conducts the assessment and that FDRP will conduct the FDR session if the case is assessed as suitable for FDR.

NMAS and the distinction between process and substance in Court-Connected Mediations

This post is by Nussen Ainsworth and Svetlana German and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019

Nussen Ainsworth and Svetlana German presenting at the ADRRN Roundtable in December 2019.

Achieving a fair agreement has been recognised as a central goal of mediation. However, there is no consensus amongst mediation scholars as to the meaning of a fair mediated agreement and how to best achieve it. Conceptually two broad categories of fairness in mediation can be proposed; procedural fairness relating to the process of mediation and substantive fairness relating to the outcome of the mediation. The National Mediator System in Australia expressly addresses fairness in Section 7 in “Procedural fairness and impartiality” stating: 

7.1 A mediator must conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission. 

7.2 A mediator must identify and disclose any potential grounds of bias or conflict of interest before the mediation, or that emerge at any time during the process. 

7.3 A mediator must not mediate in cases involving a conflict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the conflict would not impair his or her impartial conduct of the process. 

7.4 A mediator must support participants to reach agreements freely, voluntarily, without undue influence and on the basis of informed consent. 

7.5 A mediator must provide participants appropriate opportunities to speak to and be heard by one another in the mediation, and to articulate their respective interests, issues and underlying needs. 

7.6 A mediator must ensure, so far as practicable, that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making. 

7.7 A mediator must encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and must encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability. 

Whist the apparent focus is on procedural fairness, the NMAS directs mediators to encourage an assessment of the proposed agreements with reference to long-term viability. One reading of this may imply that substantive unfairness can undermine the viability of the agreement. In support of this interpretation, in NMAS 6.2 the mediator “must be alert to changing balances of power in mediation and manage the mediation accordingly”.  Internationally, some mediator standards direct that a mediator may indicate non-concurrence with a decision they find inherently unfair or may refuse to draft an agreement which “seems fundamentally unfair to one party”.  Where a mediator promotes settlement without regard to the legal rights of the parties the outcome of the mediation may be unjust.  In court connected mediation there is an additional argument that the outcomes should be measured by legal standards, as parties in court connected mediation should be entitled to expect “equivalency justice” which has both procedural and substantive components. This may be particularly difficult where parties are not represented or are uninformed about their legal rights.

A study of Court Connected Mediation Mediators demonstrates that mediators do engage with substantive law

Preliminary findings from this study provide insights into what is happening in  Court Connected Mediations including what role the mediator and law have in this process.  The data was collected by Nussen Ainsworth through interviews with 24 mediators, and the observation of 32 mediation across three CCM sites. The research focuses on the mediation process, the role of the mediator and the role of the law in CCM. A number of relevant findings included:

  1. Law was integral to the mediators. Wearing a lawyer hat is very much ingrained in their identity, it is the prism that for the majority of their professional life saw and dealt with everything. The data suggest that for these mediators it is not a simple process to simply take off their legal practitioner hat. It appears that the opposite is true; the mediator relies on and leverages off their legal background when acting in the role of mediator. 
  2. Substantive legal knowledge was the most common response mediators gave when asked what skills and knowledge they relied on in the mediation. Based on their responses, substantive legal knowledge can be from general ability to ‘understanding of what the dispute was about’  to ‘it was very important to have substantial knowledge of the VCAT advisory opinion on safety measure and I think that stood me in good stead knowing the current status of that opinion’
  3. In CCM mediators are not reluctant to engage with the legal merits of the dispute, and some even take active steps to embrace such engagement.  
  4. The CCM mediators are aware of the prevalence, and beneficial role law has in and on CCM. The vast majority of the mediators said their legal background affects how they conduct a mediation. 
  5. The majority of the mediators said that mediators could evaluate or advise of the merits of the substantive dispute of the outcome of the dispute. However many mediators were firmly of the opposite view and said this sort of activity is never appropriate.  This remains a complex issue as there was a divergence of opinions between the mediators that said it is appropriate to evaluate and give advice as to what type and how much is appropriate. 

Further clarity in the guidelines is required

Although the data focused on the CCM disputes, the evidence suggests that the NAMS Standards are applied by mediators in varied way. The issue of mediators giving advice has long been discussed in the literature and something that is not encouraged and even frowned upon. However, this study demonstrates that this was not reflected in practice.  Some mediators do in fact evaluate the dispute from a legal perspective and concern themselves with both procedural and substantive justice. Whilst this may address some of the concerns raised in the literature it should be expressly addressed in the NAMS to ensure that there is a consistency of process and ensure that the obligations are clearly set out in relation to this critical aspect of mediation practice. 

Nussen Ainsworth is a Lecturer at the College of Law and Justice, Victoria University. Accredited specialist in mediation, Law Institute of Victoria. Editor in Chief of the Australasian Dispute Resolution Research Network WordPress site from February 2020.

Svetlana German (BSC/LLB (UNSW), LLM (Columbia University) is an academic at the University of Notre Dame, Sydney and barrister and accredited mediator at 10th Floor Selborne Wentworth Chambers.  Svetlana teaches in the areas of Dispute Resolution and Property Law and is currently undertaking a PhD at the University of Technology Sydney (UTS) where she holds theQuentin Bryce Law Doctoral Scholarship. Her doctoral research examines mediator perception of their obligation to remain neutral where one of the parties is unrepresented.


This post by Dr Benjamin Hayward is based upon the work in progress that he presented at the ADRRN Roundtable on 9-10 December 2019.

The ingredients for avocado toast. Photo: Nicole De Khors, Creative Commons

Arbitration is an alternative dispute resolution mechanism that can be used to resolve international and domestic commercial disputes.  It is a private process, grounded in the parties’ consent and separate to litigation, but it remains related: arbitration is a formal dispute resolution process; it is supported by national laws regulating its conduct; and those laws also set out the ways in which courts may intervene in the arbitral process for the purpose of supporting it.  In Australia, the International Arbitration Act 1974 (Cth) regulates international commercial arbitration.  Uniform State and Territory Acts, including the Commercial Arbitration Act 2011 (Vic), govern arbitrations relating to domestic commercial disputes.

Many Asia-Pacific arbitral centres, including the Singapore International Arbitration Centre, have seen their caseloads increase over recent years.  Though there are no reliable local statistics, and despite a series of reforms to its international and domestic commercial arbitration laws over the past decade, Australia is still perceived as lagging behind.

Significant reforms to Australia’s international commercial arbitration laws were enacted in 2010, seeking to establish this country as a regional arbitration hub, though Australia is yet to realise this dream.  Given all of this, and empirical evidence confirming that countries’ formal legal infrastructures are the most important factor motivating parties’ choices of arbitral seat (ie. legal location of an arbitration), two important practical and policy questions arise:

1.  What ingredients make up a good arbitration law?; and

2.  How do we go about measuring the success of law reform?

Jurisdictions’ arbitration laws are traditionally critiqued on the basis of their arbitration friendliness and/or their pro-arbitration natures.  References to these concepts abound in online commentary.  Yet these concepts are sometimes misapplied, and sometimes misused.  Even aside from their nebulous natures, they may represent a binary and overly simplistic way of viewing what are actually difficult issues.  Australia’s quest to become a recognised and respected arbitral centre will be frustrated if there is no way to adequately justify (or predict) the quality of future (or proposed) law reforms.  An evaluative framework comprised of something more than just generalisations is required.

It is here that the views of Australia’s arbitration community have an important role to play.  International and domestic commercial arbitration laws exist to serve merchants.  It therefore stands to reason that the arbitration and merchant communities’ concerns should constitute the criteria against which developments in Australia’s arbitration laws are measured.

2009 conference organised by the Australian Centre for International Commercial Arbitration invited its participants to query the extent to which Australia’s international and domestic commercial arbitration laws lived up to efficiency, effectiveness, and economic viability ideals.  These ideals reflect matters of continuing concern to the arbitration profession.  Academics, practitioners, and their clients continue to critique costs and delay in arbitral proceedings.  Effectiveness – which may be defined as the degree to which arbitration secures its intended results – also encompasses ongoing concerns around the degree to which Australia’s arbitration laws are consistent with consistent with the international templates upon which they are based, and market expectations.

Applying these efficiency, effectiveness, and economic viability criteria to developments in Australia’s arbitration laws over the 2009 to 2019 period provides some interesting insights.  To take just one example, the International Arbitration Act 1974 (Cth) was amended in 2010 to include confidentiality provisions, though these applied on an opt-in (rather than a default) basis.  Parties had to affirmatively choose these provisions in order for them to apply; a position not all that different in substance to the then-existing common law rule that arbitration is private but not confidential, unless parties specifically adopt their own confidentiality clause.  Given confidentiality’s empirically-confirmed importance in international arbitration, these reforms were arguably contrary to market expectations on account of their opt-in nature: and, thus, ineffective.  Further amendments in 2015 finally gave these confidentiality rules default operation, aligning their application with market expectations (albeit after a five year delay).

The efficiency, effectiveness, and economic viability criteria provide Commonwealth, State, and Territory legislators with a recipe for future reforms to Australia’s international and domestic commercial arbitration laws.  The adoption of these criteria as policy standards (and legislative drafting tools) stands to assist Australia in developing high quality arbitration laws, and high quality law reform packages.  This, in turn, has the potential to help Australia improve its attractiveness as a place to conduct arbitrations for the resolution of both international and domestic commercial disputes.

This is not merely a matter of semantics.  Consistently applying the efficiency, effectiveness, and economic viability criteria to Australian arbitration law reform stands to generate different outcomes to those seen over the 2009 to 2019 period.  Returning once again to the confidentiality example, reconsideration of the original 2010 reforms in light of market expectations (a matter of effectiveness) would have led to the International Arbitration Act 1974 (Cth)’s confidentiality provisions having default application from the outset.Commercial parties, when negotiating dispute resolution clauses in their contracts, will ultimately vote with their feet.  If Australia’s arbitration laws don’t reach the mark, they will simply choose to arbitrate elsewhere.  This is all the more reason to take on board the arbitration and merchant communities’ concerns when seeking to improve Australia’s arbitration laws for the ultimate benefit of commercial parties.

Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, at the Monash Business School.  His research interests span international commercial arbitration, the international sale of goods, private international law, and Australian contract, commercial, sales, and consumer law.  Dr Hayward is the author of Conflict of Laws and Arbitral Discretion – The Closest Connection Test (Oxford University Press, 2017), his publications are available on SSRN, he tweets at @LawGuyPI, and he is the co-director of his department’s International Trade and International Commercial Law research group.

ADRRN 2019 Wrap Up

Happy end of 2019 to all our followers!

  • We clocked over 20,000 views by over 13,000 visitors to our adrresearch.net WordPress site, another record of annual growth since we started it in 2013.
  • This is our 65th post for the year, showing that we have kept to our commitment to regular posting. A big thank you to all our monthly blog editors who take responsibility for organising at least one post per week.
  • 2019 readers accessed adrresearch.net from Australia, the UK, USA, Canada, India, New Zealand, Ireland, Singapore, South Africa, Hong Kong, Germany, Kenya, Spain and many more.
  • @ADRResearch on Twitter has 1,590 followers.

The most frequent place for people to visit the ADRRN was on our home page, but the other popular posts, with over 300 reads each during 2019, were:

Some of the above posts were made some years ago. Thank you for engaging with our short ideas on here!

Contributions to the ADRRN WordPress blog can be made by anyone in the dispute resolution research community (ie you!). Please read Blogging Basics for Beginners and send your draft post to the Editor in Chief, who will be able to advise the monthly blog editor and coordinate timing. Editor in Chief is Olivia Rundle until February 2020 when Nussen Ainsworth takes the reigns.

We’ll be back in January with more posts based upon papers workshopped at our 8th Roundtable in early December.

image by Claire Holland – ADRRN Roundtable 2019
Image by Claire Holland – ADRRN Roundtable 2019
Image by Claire Holland of Jackie Weinberg. ADRRN Roundtable 2019
Claire Holland and Tina Hoyer – ADRRN Roundtable 2019


Creative Commons Licence

This post is by Dr John Woodward, of University of Newcastle, and was workshopped at the ADRRN Roundtable 9-10 December 2019. John is the 2020 President of the Australasian Dispute Resolution Research Network.

For all of our progress in advancing the cause of mediation in Australia, there is one problem that remains tantalisingly difficult to resolve.  It is the problem of persuading lawyers (including some judges and court administrators) to embrace facilitative mediation in a way that is consistent with the core beliefs that are valued by mediation theory.  These include the facilitative role of the mediator, the idea that the mediator is there to assist the parties to work through their problem together, to view their interests and the interests of the other through first-hand discussion and active participation in the consensus building and option creation activities that lead to secure and durable solutions.

This is a problem that can be traced back through what Boulle described as the three stages of mediation development in Australia (Mediation: Principles, Process, Practice 3rd ed p 349-350).  The hostile reaction to uncritical acceptance of mediation, concerns that it has the potential to develop a ‘two-tiered’ justice system with only a form of ‘second-class justice’ available for the underprivileged and concerns that vulnerable parties (particularly women) would lose the protection offered by the rules and procedures of the formal justice process are all underpinned by the unarticulated assumption that the rules and procedures of the formal justice process somehow offer a superior form of justice against which all others should be measured.  

Lawyers’ instinctive tendency to frame dispute narratives in terms of a rights-based story, their reluctance to look beyond solutions that are consistent with “what the court would order” and their insistence in maintaining control of disputants’ conversations in mediation sessions are all problematic for optimum outcomes in facilitative mediation.  They are also redolent of the three core elements of legal professional culture identified by Macfarlane in her work The New Lawyer: How Settlement is transforming the practice of law.  

Given the distance we have travelled in advancing mediation as an accepted part of the justice institutions in Australia, and the obvious successes it has enjoyed as a dispute resolution process, it is worth exploring why there remains an undercurrent of resistance from the legal profession and what, if anything, might be done to correct it.  The course of my own PhD journey suggests a few preliminary observations which I think are worth making.

Firstly, it is notable that throughout the whole empirical project, not a single lawyer research respondent disagreed with the proposition that mediation is a good thing and is to be applauded and encouraged as an effective means to bring an end to disputes.  Of course it is entirely possible that some of those responses were a result of social acceptability bias and that no self-respecting lawyer should, in the twenty first century, be seen as opposing a measure that has gained such wide acceptance among lawyers and justice administrators.   However, it is unlikely that their unanimity can be explained in that way.  The research data revealed some highly developed and nuanced conversations about various features of mediation, disputant behaviours, issues around enforcement and other matters of practical significance to disputants and their lawyers. 

Secondly, lawyers’ perceptions of problems with mediation were almost always framed in rights-based terms.  They complained that too much time was taken up with petty, emotional, irrelevant matters that were inadmissible in the case or that mediators were too facilitative and not directive enough so that the parties were not getting the benefit of what the mediator considered would happen if the case were to proceed to trial.  The latter complaint explained why some research respondents preferred to have a retired judge as mediator.  It was, they said, a more legitimate process if the mediator could bring judicial expertise to the mediation so that the parties could see what would happen if the case were to be decided by that judge.   This tendency to “legalise” the mediation process is well recognized in the literature and was described in the Australian Productivity Commission’s Report Access to Justice Arrangements of 5th September 2014, which (at page 13) noted a “creeping legalism” by which institutions which were set up to provide low cost alternatives to the court with an emphasis on self-representation were becoming increasingly formal with the introduction of legal representation, lawyers behaving as if they were in court and bringing an adversarial tone to the proceedings.  

A third observation, and one which emerged as a major concern for lawyers engaged in court-connected mediation, is the uncertain limits of confidentiality and admissibility of communications in and around the mediation process.  In fact this feature emerged from the research as the single most problematic inhibitor of lawyers’ engagement in court-connected mediation.  It deserves further attention and is the subject of my paper to the 8th ADR Research Roundtable in Melbourne.  

Confidentiality is one of the foundational pillars of mediation (Morris and Shaw p 320).  It features in every published book on mediation.  Some books dedicate entire chapters to the subject of confidentiality in mediation. As Hardy and Rundle have observed, there are competing public policy considerations in relation to whether or not parties should be able to use information disclosed in mediation in later court proceedings.  On one hand, there is a public interest in parties being able to resolve their disputes outside the court using a frank and open exchange of information without the fear of that information returning to haunt them if, despite their best endeavours, the dispute should prove incapable of resolution by negotiation.  See Field v Commissioner for Railways (NSW) (1957) CLR 285. On the other hand there is also a public interest in ensuring that the best evidence is available in court proceedings to ensure that a just and equitable outcome is possible by way of court determination.  See AWA Ltd v Daniels t/as Deloitte Haskins and Sells (1992) 1 ACSR 462.

The parliaments of Australia have attempted to reconcile these two competing public policies by introducing legislation to prohibit the introduction into evidence of information obtained during settlement discussions or in mediations. Statutes such as the Evidence Act, 1995 (NSW) and the Civil Procedure Act 2005 (NSW) have been very effective in protecting client settlement privilege and preventing privileged communications from being disclosed in court proceedings.  They have thus well-served the interests of the traditional justice institutions.  

But they have not well-served mediation whose very different interests are not so much in non-disclosure of protected information as in preventing misuse of protected information as the research data revealed.  Mediation’s concern is much broader than merely the exclusion of protected information from evidence. As Boulle explained, one of mediation’s great benefits is:

“…its attraction to potential users wishing to avoid adverse publicity and increase parties’ willingness to enter mediation and engage in open and frank negotiations in the knowledge that disclosure cannot damage them publicly among competitors or prospective adversaries.” 

An examination of the relevant statutes in NSW reveals that lawyers’ expressed anxieties around the limits of mediation confidentiality may well be justified and that the values identified by Boulle and others may not be available to disputants who mediate in the shadow of the law.  Even if this conclusion paints an unduly pessimistic picture of the objective reality of court-connected mediation in NSW, the research evidence clearly revealed that lawyers’ perceptions of mediation are that they must be cautious in allowing their client to speak or otherwise to participate directly in mediation except through their lawyer.   Many research respondents explained that they counselled a cautious approach when advising their clients about mediation and most preferred that their clients not speak. A few admitted positively forbidding their clients from saying anything at mediation. 

There is evidence going back as far as Rosenthal in 1977 to support the view that settlement outcomes are directly and proportionately related to the level of client involvement in the subject matter of the dispute.  Since then a long line of social researchers from Pruitt (1981), Daubman (1984), Johnson, Mertz and Robinson (1985) have conducted research experiments which have confirmed these findings.  

In 1986 Carnevale and Isen conducted a series of experiments designed to establish the effect on disputants’ ability to engage in integrative bargaining of suggestion by their lawyers.   Participants in the study were subject to a contrived negotiation under control conditions in which some respondents were provided with supportive and positive reinforcement (called ‘positive affect’) and others were not.  The study concluded that negotiators in whom positive affect had been induced achieved consistently higher outcomes than negotiators not in a positive state.From this literature and the results of my own empirical researches it is concluded that the quality of court-connected mediations in NSW is being compromised and that it will continue to be so until we are able to come to terms with the need to construct an appropriate framework of mediation confidentiality which goes beyond the present limited protections afforded by the statutory provisions for settlement privilege. 

The Appropriate Design of Online Dispute Resolution Systems

This post is by John Zeleznikow from Victoria University and was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019.

Whilst there is no generally accepted definition of Online Dispute Resolution (ODR), we can think of it as Using the Internet to perform Alternative Dispute Resolution (ADR). 

ODR is a natural evolution of the trend towards using alternative approaches to litigation across a wide range of civil, commercial, family and other contexts.

One reason for this phenomenon is that average trials are getting longer and more complex, and the cost of pursuing traditional legal recourse is rising. A second reason for the trend towards ADR lies its growing acceptance by mainstream conflict systems, including court systems; this acceptance has trickled down to affect the attitudes of litigants themselves. 

ODR provides solutions for cases that do not justify long, complex trials – such as in the case of low-value transactional disputes, in cross-border and cross-jurisdictional contexts. The unsatisfied purchaser of a Madonna CD on eBay is more likely to prefer an online process for achieving redress rather than pursuing litigation with the seller, who may be based in another country. 

While the focus of ADR has largely been on face-to-face processes, incorporating technology into ADR processes has quietly been commonplace for a long time. Primarily, this has taken the form of using the telephone as a simple measure for convene people who cannot or should not be together in the same room, whether owing to geographical situations or to extremely vitriolic situations, or those where violence has occurred. 

As Internet technology has become widespread, much attention has been directed at using these tools for dispute resolution. In some ways, ODR is a natural evolution of convening over the telephone. Technology now offers parties different levels of immediacy, interactivity and media richness to choose from. Through some platforms, parties can choose to communicate through text; through others, they can convene in real-time video, allowing them to see each other and, possibly, a mediator. 

Recently, ODR has moved beyond Ecommerce – ODR is being used for non-financial disputes. In 2002, Zeleznikow suggested that the internet could prove invaluable in supporting the growing number of pro se litigants.   Today, ODR is being suggested as being capable of supporting Self Represented Litigation. This however brings forward the issue of whether Self Represented Litigants can sufficiently understand legislation, cases and the technology to adequately represent themselves in dispute resolution forums.  

Zeleznikow’s initial approach, in the Split-Up system, for providing ODR support about the distribution of marital property following divorce in Australia was to use machine learning to provide advice about BATNAs (a BATNA is used to inform disputants of the likely outcome if the dispute were to be decided by decision-maker e.g. judge, arbitrator or ombudsman) re the distribution of marital property following divorce. 

Despite using Artificial Intelligence, it involved the development of 94 Toulmin argument structures to model the domain as it existed in 1995. Twenty-five years later, the theoretical principles behind AI software have not changed.  But computer hardware is much. cheaper and data can be much more easily stored.  This has led to the development of ‘quicker; systems’, which the community has seen as ‘more intelligent’.

The Split-Up system was viewed as futuristic work – for example the media speculation about its use on the Charles and Diana Divorce in the London Daily Telegraph of July 4 1996 and in a ten minute program on GTV9’s Current Affair on Monday 26 August 1996. 

Whilst the Split-Up system provides advice about BATNAs, it is not a Negotiation Support System.  The Family Winner System provided advice to disputing parents on how they could best negotiate trade-offs.  The disputing parties were asked to indicate how much they valued each item in dispute.  Using logrolling, parties obtained what they desired most.  The Family Winner software won its heat of the ABC (Australia) TV series science show The New Inventors. 

The discussion on the show raised issues on how to appropriately use ODR. In particular Do we use ODR as a tool to support decision-making or should the ODR system be fully automated? What should be the level of automation of ODR systems?  Many Artificial Intelligence and ODR followers believe in using robots and developing systems that are fully automated.  But doing so leads to ethical problems as well as losing one of the major benefits of Alternative Dispute Resolution – the ability for disputants to craft their individual solution.   

The automation vs decision support conflict raises issues on the purpose of ODR systems and how users interact with ODR systems.

Given the wide variety of possibilities, it should be clear that there is no universally best approach or technique for providing online dispute resolution.  Rather, there is an eclectic bag of methods with properties and performance characteristics the techniques vary significantly depending on the context. What all of the selected ODR Systems have in common is that they provide an alternative to litigation providing a mechanism by which parties involved in a dispute can communicate over the Internet. Many of the illustrated systems are specialized to provide the best approach for a particular path to resolution.

In trying to develop a classification system for Online Dispute Resolution systems, we believe that a truly helpful ODR system should provide the following facilities:

  1. Case management: the system should allow users to enter information, ask them for appropriate data and provide for templates to initiate the dispute.  Currently most clients of Victoria Legal Aid phone the organisation to seek help.  It is expensive and time consuming for telephonists to enter data.  And mistakes are often made.  Clients should be able to enter their data and also track what is happening during the dispute as well as being aware of what documents are required at specific times; 
  2. Triaging: the system should make decisions on how important it is to act in a timely manner and where to send the dispute.  This may be particularly important in cases of domestic abuse or where there is a potential for children to be kidnapped;
  3. Advisory tools: the system should provide tools for reality testing: these could include, books, articles, reports of cases, copies of legislation and videos;  there would also be calculators (such as to advise upon child support) and BATNA advisory; systems (to inform disputants of the likely outcome if the dispute were to be decided by decision-maker e.g. judge, arbitrator or ombudsman). Other useful advice that could be included are copies of the relevant Acts, links to landmark cases, relevant books and reports and videos providing useful parenting advice;
  4. Communication tools – for negotiation, mediation, conciliation or facilitation.  This could involve shuttle mediation if required.  For many ODR providers, the provision of communication tools is their main goal;
  5. Decision Support Tools – if the disputants cannot resolve their conflict, software using game theory or artificial intelligence can be used to facilitate trade-offs.  Family Winner and Smartsettle provide such services;
  6. Drafting software: if and once a negotiation is reached, software can be used to draft suitable agreements.  Drafting plans (such as parenting plans) once there is in principle agreement for a resolution of a dispute, is a non-trivial task;

No single dispute is likely to require all six processes.  However, the development of such a hybrid ODR system would be very significant, but costly and very time and resource consuming.  A total system would require us to construct the appropriate systems 1 to 6, and the ultimate solution is to make sure that all the systems are capable of talking to each other.  But such a system would be an important starting point for expanding into a world where AI is gainfully used.