A student journal – in parts (2)

Amazon smoke © A. Boyle

Days Three – Six 

The Amazon hangs over everything here, and today, literally so, with bleak, smoked air.  It smells quite different from Australian bushfires (all those eucalypts) and, at first this morning, I wondered if it was “merely” pollution in such an enormous city.  It truly is a “pall” of smoke.

Last week, one of the Brazilian delegates explained to me that Amazonia (its Portuguese name) has its own rainforest-generated climate typified by regular downpours.  Some call it “our river in the sky”.  So there are two rivers: on the ground is the Amazon itself and, in the sky, is the rain. It is said that, with all that has been happening over recent years, the river in the sky does not flow as much and, because it relies on the forest (which is so damaged), it may never flow again.

Although this School still has a couple of days to go, I am sending this today – it takes only a few minutes to arrive, but it actually isn’t delivered in Australia until thirteen hours from now.

Back to my homework.  Embarking on this journal was a purposeful exercise: I wanted to gain some insight into what students experience when they have to do a journal. In preparation, I have re-read Olivia’s articles, Tania’s guidelines, various references (including: P. Brown, H. Roediger, and M. McDaniel, Make It Stick: The Science of Successful Learning, [Belknap Press, Harvard University, USA, 2014],) and my own ‘Guide to Reflective Learning’ (2018-19).  This time I have read them from the viewpoint of a student rather than an assessor/marker. Needless to say, I have gained some insights that will inform my future teaching/instruction.  For example, it is a rigorous undertaking that requires constant concentration during the day, and the capacity for honest self-reflection in the evening.  It is far less for the faint-hearted than I had fully realised.  In terms of a contribution to ADRRN, I did hope that this task would contribute something to our collective knowledge, about what we teach, and how we teach it.  Though in the form of a much more self-conscious experiment than a controlled study.

This international “workshop” on Science and Innovation Diplomacy: there are three key ideas about journals that I have gained from my time here:

  • Having to write a journal forces me to concentrate much more throughout the day;
  • It also forces me to slow down and truly think about all that happened during the day; and
  • I have to sort between all that happened during the day, and what actually mattered to me.

I know that any amount of reading in the area tells me about the importance of journals as learning tools; however, now I have experienced how much keeping a journal has enhanced my own retention of information. 

Presidents of three universities © A. Boyle

What I understand from this whole Sao Paulo event is that Global South countries are seeking avenues to become equal players in the world despite their lack of competitive clout.  By concentrating on scientific and technology expertise, they aim to build transnational collaborations that are as strong as the Global North’s economic dominance.

There are three stand-out ideas for me:

  • The importance of a collaborative, respectful approach to building international relations;
  • Developing transnational relationships based on shared expertise rather than on the basis of politics; and
  • Recognising common purpose that needs no “ownership”.

As concepts, these are not entirely new to me, because they are similar to the concepts that underlie mediation.  As a member of this group here in Sap Paulo, I have witnessed and experienced the strength that comes from genuinely mutual recognition and acknowledgement.  This is not about the social desirability of doing the right thing in order to “look good”; “looking good” is out of place here.  Instead, it is about creating collaborative expertise.  For me, it echoes the sense of self-determination that is fundamental to (my own view of) mediation.

More importantly for me personally, I have discovered a sense of what it might be like for the majority of the world’s people most of the time: as a delegate here, I have experienced their frustration at not having a voice, not being heard, and not being understood by those (our) much richer countries.  People in my learning group have voiced their frustrations: “Can you explain to me why Africa gets so much more attention than Latin America?”  Though I do have to remember that Brazil has some racial problems, too (as a Nigerian delegate has explained to me).

Although any flow of funding is very important, I am now aware that of far greater value are the mutual recognition and respect inherent to the success of these collaborative relationships.  Although I have always been aware of these, I have not before seen it as starkly as here, perhaps because I have not before been in the situation of being so very out-of-place.  When I think of “culture”, I think of personal and social settings (and all that they entail).  Here, I am learning that global positioning is a key cultural identifier, regardless of personal or social setting (by global positioning, I am referring to the Global South and Global North).  

We have a major task to complete before Friday.  We have been allocated to small groups for devising the preliminary wording of guidelines for establishing the transnational collaborative relationships that are fundamental to the approach of science and innovation diplomacy (the focus of being here).  Typically, such relationships include at least government, universities, and private business.  The group I have been allocated to: “Private Sector of Developed Countries” (no stereotyping there …), and we will craft input for the document that reflects the views of private companies.  Other groups include: “Academia”, “Government”, “International Organisations” (e.g., UN agencies), and “Civil Society”.  On Thursday, all the groups will come together and, using their own ideas, jointly develop a document to be known as The Sao Paulo Framework for Science and Innovation Diplomacy.  A mass negotiation if you like, though perhaps not as well planned as it could be.

I have had a remarkable time here: formal learning, informal learning, meeting people I would never otherwise meet.  Today I tried to identify what, in particular, stands out for me from all that I have experienced; and what has been my personal learning?  What I found was not a surprise; I’ve been aware of it from the first day: it’s about being from the Global North, about not speaking Portuguese, about being the oldest delegate, about being white.  But I hadn’t realised what it means for me.

OMG.  It doesn’t matter what I do or say here, I have no choice but to STAND OUT.  My “discomfort zone” made so very unavoidable.Keeping a journal has been a valuable lesson for me, and it’s time I came home.

Futbol © A. Boyle
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A Student Journal – in parts

© 2019, A. Boyle

Innovation and Science Diplomacy School, Sao Paulo School of Advanced Studies, University of Sao Paulo

Day One

When I read students’ submitted journals in mediation courses, or as part of university DR courses, Day 1 regularly has comments about being unfamiliar with the course subject (e.g., “I feel completely out of my depth in this course –  it is unlike anything I’ve ever done before”) and uncomfortable with having to do a daily journal (e.g., “The two things I dislike about this course are having to do this journal, and having to do group work and role plays”); “out of my comfort zone” is a common phrase.

Being selected for this event at the University of Sao Paulo presented an unbeatable opportunity for me to subject myself to the journal – to gain some experience in, and some empathy for, the situation that students describe.  I have never been to Sao Paulo before (nor do I speak Portuguese), I know almost nothing about the topic, and I did not know any of the other attendees, who seemed to have travelled from many countries.  Everything about the experience was way beyond my “comfort zone”.

I am here at the School to learn, and to see if I can get the beginnings of an international alliance of researchers who will help bring fresh ideas to how we conduct mediation research.

Today started 30 minutes late and we were encouraged to mill around the coffee, meeting each other.  Conversation starters were pretty straight forward: “Where are you from?”, closely followed by “How long did you have to travel?”  By the end of the day, writing this up, I realised that I had spoken to people from: Albania, Armenia, the Balkans, Benin, Colombia, El Salvador, India, Iran, Nigeria, South Africa, Sweden, UK, Uruguay, USA, and, of course, from all over Brazil.  And, of course, the other delegate from UoN.  There is a noticeably different atmosphere with so much true diversity and a complete absence of homogeneity.

Key information from today

(i) Being introduced to the key concepts of Science Diplomacy and Innovation Diplomacy:

  • The primacy of international relations that are based on equity, and on the value of human rights;
  • Using the common language of science to connect peoples and cultures; and
  • The importance of collaboration at all levels. 

(ii) Emphasis on cooperation and interpersonal influence; and 

(iii) Key repeated words throughout the day: trust, bridge-building, and peace.

This is not stereotypical science, I thought. Perhaps I will have to abandon stereotypes.  The sciences that delegates bring with them include: agriculture, oceanography, bio-chemistry, biodiversity, molecular science, chemistry, chemical engineering, mechanical engineering, genetics, and, of course, climate sciences.  And I did find a professor of Law who had travelled from Edinburgh.

What is Science Diplomacy and Innovation Diplomacy? 

What I learnt today is that no-one is quite sure what Science Diplomacy and Innovation Diplomacy are.  They all agree that it is about the use of science as a tool of diplomacy, the application of the unencumbered language and interests of scientists to create non-political alliances between countries; groups of scientists who work together to build bridges between their countries, especially where there are problematic political relations.  They create commonalities where none seemed to exist. These are things that I can understand. 

During the presentations, one example was mentioned more than once: over some years, scientists from Cuba and from the USA worked together on a range of projects, building trust with each other – in the full knowledge that Fidel Castro was very supportive of science and scientists. Apparently, it was this collaboration that led to President Obama relaxing travel to Cuba by US citizens. Each time this story was mentioned, it included mention of the current President and all that he has done to reverse that development – including banning the scientific collaborations.

What really stood out for me from today?

The constant emphasis on cooperation, trust, bridge-building.  The undoing of my stereotypes about scientists.  Here was a room full of highly idealistic people showing no sign of any kind of stereotype, even though they represent probably every branch of science.

And the group work.  Yes, of course, we had to do some group work.  We have been given a long-term task in which each group is to develop a strategy for bringing Science Diplomacy to assist with a major international crisis (each group gets to decide what sort of crisis to deal with – our group chose water).  We must complete the task – and report on it – before the end of this School.

Dr Marga Gual Soler, InnSCiD, University of Sao Paulo, 2019     © 2019, A. Boyle

Day Two

Today it was quite cool, and the sky monotone beige.  Many of the buildings here have that grey mouldiness typical of older tropical cities.  One important thing, though, Sao Paulo knows how to make coffee.  The hotel has beautiful coffee; even the university venue has beautiful coffee.

We all travel together in mini-buses from the hotel to the university and back again in the evening – a matter of safety here in Sao Paulo. This morning, riding in the bus and hearing all the languages, I was struck again by the diversity.  There is truly an air of excitement among people – everyone is openly very pleased that they were selected to attend this School. Last night, a small group of us went to a workmen’s street-side bar on a back lane behind the hotel, where we sat at three rickety tables and talked over the day amid bottles of local beer, supplied by the bar’s cheerful proprietress.  If this is how students wind down, I think we instructors have it very tough.  When I was back in my hotel room, I also realised just how isolated we instructors are.  Meanwhile, at the bar, in response to a question, I had mentioned briefly my own purpose in having applied to attend, and was surprised that people were genuinely interested in my, as yet unformed, plan.

The content of Day Two’s presentations was still focused on giving us an overview of Science Diplomacy.  Two presentations stood out for me: 

Dr Marga Gual Soler: she is a Science Diplomat, and something of a heroine here.  She advises the European Union on its Science Diplomacy strategy, and, in November, she leads the first all-women expedition to Antarctica to publicise Science Diplomacy and the climate emergency.  During her presentation, she said that, at its core, Science Diplomacy is flexible and creative, responsive to each situation and context.  Now what does that remind me of?  She also talked about the importance of capacity building to deal with future problems.

Professor Edouardo Viola: he gave a one hour presentation that tracked the political and economic contexts of climate change between the 1990s and now.  He showed the links between economic ups and downs, and countries’ responses to the various climate conferences.  He showed the links between political stability and countries’ responses to the various climate conferences.  And the links between the crisis in democracy and the rejection of scientists, the rejection of expertise.  Depressing in some ways, while, for me, so valuable to be given such a clear perspective on how we have arrived at this point.  And to see that, even in widely divergent fields, context has such strong influence over our collective decision-making.

During the day I have been thinking about the application of all these concepts in my own work.  There are so many commonalities between what is being said here and what happens around mediation, such as the importance of:

  • Trust and cooperation;
  • People to people contact;
  • Long-term capacity-building; and
  • People’s ability to overcome their differences.

This event continues until Friday next week.  I have so much more to learn, yet I am already discovering that mediators and scientists share such deep humanistic values. I wonder what else we have in common?

Part 2 will follow later this week…

Extended due date for Newcastle Law Review Special Edition: 30 September

The due date for submissions to the Newcastle Law Review Special Edition on Dispute Resolution has been extended to 30 September 2019.

If you missed the due date for submissions to the Newcastle Law Review and its Special Edition on the National Mediation Conference, a further opportunity for submissions on dispute resolution is available with a due date of 30 September 2019.

Get those papers in!

The Newcastle Law Journal

The Newcastle Law Review (the NLR), the journal of Newcastle Law School, was first launched in 1995. Since that time an impressive array of articles and notes has been published, representing traditional categories of legal scholarship as well as interdisciplinary contributions. Newcastle Law School has reinvigorated the journal and it is now published electronically and an open-access resource to the public.

Newcastle Law School  is organising a special edition of the NLR based on the dispute resolution theory and practice. This special issue will be published in 2019. We welcome the submission of original and high quality research work on dispute resolution for consideration as to publication in this special issue. Please note that the NLR is a refereed journal. The acceptance of a submission for publication is subject to the outcome of a double blind peer-review process with a final publication determination made by the editors after full consideration of the peer reviews.

In making a submission, the authors’ compliance with the following submission guidelines would be much appreciated:

1) Word limit: 6,000 – 9,000 words

2) Referencing style: Australian Guide to Legal Citation (Fourth Edition, 2018)

3) The deadline for submission is Monday 30 September at 5.00pm.

If you have any questions or enquiries in relation to this special edition, please contact: Dr. Bin Li, bin.li@newcastle.edu.au (Editor, The Newcastle Law Review)

Restorative Justice – Another Dimension

brass colored and black table decor

Photo by Anthony Acosta on Pexels.com

In his recent autobiographical work The Pursuit of Justice[1] former NSW District Court Judge, Michael Finnane QC gives a rather frank account of his experiences as a judge and provides a rare insight into the thought processes which go through the mind of a judge in sentencing offenders in NSW.  A recurring theme throughout the book is the constant frustration that he felt as a judge at the limited options available to him for dealing with problems which, although presented in the cloak of criminal conduct deserving of denunciation and punishment, were really much more about how our society deals with the inequities of health, education, poverty and social disadvantage.  One chapter of the book recounts numerous tragic stories of serious crime committed by people who lived in appalling circumstances, many of them clearly without any insight into the gravity of the conduct in which they had engaged or the effect that it had on others in the community around them.  The author concludes the chapter by saying:

“These stories highlight a problem in our society in New South Wales that there are no proper mental institutions which provide accommodation, care and treatment for people with severe mental disorders.  Many of these people, because of their disorders, cannot look after themselves, cannot manage money, run out of funds and then resort to crime just to stay alive.  Some are lucky enough to get support from generous people in the community, but many of them have no friends or family.”

Similar concerns have been expressed by other members of the judiciary and magistrates.  A recent interview with a Children’s Court Magistrate revealed similar concerns about the problem of charging children with criminal offences in relation to inappropriate sexual behaviour arising out of school yard romances or dysfunctional family relationships.

It seems that there is a large gap between the truly malevolent conduct of the determined criminal and the behaviour of normally functioning, well-balanced and productive members of society.  Into that broad gap fall a large number of people who are affected by poverty, illness, disability and maladjustment and find themselves before the courts charged with criminal offences because, for too long, they have struggled without assistance or without adequate assistance to combat these problems which are not of their own making and, in the end, have committed crimes that, in some cases might have been entirely preventable had they received appropriate assistance in a timely manner.  Too often the sentencing remarks of judges include a sad recital of tragic personal backgrounds and a litany of handicaps that would challenge the most robust citizens in society.

All too frequently media reports of serious and spectacular crime are met with calls for harsher penalties and there are politically opportunistic promises to crack down on crime and make “law and order” an issue at the next election.  Such rhetoric makes many false assumptions.  It assumes that all members of society have equal access to opportunity, resources, health, education, disability support and the support of a loving family network (the equity assumption).  It assumes that all offenders make rational, considered and pre-meditated decisions to commit crime (the criminal intent assumption) and, most of all, it assumes that there is a direct and proportionate relationship between the harshness of the penalty and recidivism (the penalty assumption).  None of these assumptions is correct.

As to the equity assumption, the Bureau of Crime Statistics and Research (BOCSAR) evidence discloses that, for the period from April 2018 to March 2019 the rate of non-domestic assaults within the Sydney city area and the inner western suburbs area to Beaconsfield were greater than 566 per 100,000 of population but reduced to less than 166 per 100,000 in the lower north shore and around Belleview Hill, Dover Heights and Vaucluse.  A map depicting the incidents of assaults per 100,000 of population is shown below.

Figure 1

2019-08-13 02.38.20 pm.png

Image source: NSW Bureau of Crime Statistics and Research (BOSCAR)

Of course the evidence is only as to one type of crime and there are other weaknesses with the use of this map including the assumptions about the affluence of Sydney’s inner west and the lower north shore.  However, the map does give some indication of the prevalence of that crime in a small though densely populated part of NSW.

As to the criminal intent assumption the statistical evidence is more difficult to establish.  It is interesting to note, however, that invariably the official reports of judgments handed down in the Criminal Law List of Common Law Division of the Supreme Court of NSW contain harrowing narratives of the kind described by Finnane in his book.

As to the penalty assumption the BOCSAR evidence is that the recidivism rate for non-custodial penalties is about 20% for adults and between 42% and 44% for juveniles as set out in the following table.

​2015 ​2016 2017
​Adults 20.3% 20.8% 20.6%
Juveniles 44.6% 42.0% 44.3%

Table 1

By contrast the recidivism rate for offenders who have been incarcerated is around 39% to 40% for adults and as high as 64% for juveniles as illustrated in the following table.

 

​2015 ​2016 2017
​Adults 39.8% 39.4% 40.7%
Juveniles 63.4% 63.4% 64.4%

Table 2

Two questions arise from this story.  Firstly, why does any of this matter to a community of ADR researchers and, secondly, if it does matter, what can be done to address these problems?

Dealing with the first question first, it seems entirely plausible that our attention to restorative justice and restorative practices in modern dispute resolution discourse may as well focus on addressing the root causes of criminal and anti-social behaviour in the broader context in addition to the immediately presenting problem of reconciling a victim to an offender in the form of victim-offender mediation or conferencing or circles or other restorative practices of the kind advocated by King, Freiberg, Batagol and Hyams in the book  Non-Adversarial Justice (Federation Press 2009).     Every victim-offender mediation which succeeds in making a victim feel even slightly better or does something to restore their lost dignity or restore them to their former position is a good thing.  How much better a place the world would be if we were able to extend restorative principles to encourage improvement in health, education and social welfare in order to remove the occasion for criminal delinquency and promote a healthier, better informed and better resourced society which reflected upon its failings and was more active in restoring equity to those who stumbled because they were unable to keep up.

The second question is how we deal with these problems.  Undoubtedly this is a much more complex and difficult question to answer and one which would occupy more space than be accommodated in this post.  In the first instant, we as academics and researchers can do much to educate the broader community both about the myths surrounding the causes of crime and anti-social behaviour and about the benefits to be gained by considering issues of crime and anti-social behaviour holistically and from an integrative perspective so that all of the causative influences are brought to account.  At some point the penny has to drop that increasing crime rates are not just about more socially unacceptable behaviour by more individual people.  They represented a systemic failure of society to provide more appropriate resources and funding to address these problems.

Secondly, we need to persuade governments that there should be a proper level of investment into the health, education, training and useful employment of people who are incarcerated.  In short, this means a proper level of investment into corrective services.  Those invested with the management of corrective services should understand that recidivism is a failure of the system – not a failure of the individual.  There is an abundance of evidence from abroad that a more enlightened approach to corrective services produces better results.    As an example, by comparison with the recidivism rates reported above, Norway, which boasts the most advanced corrective services system in the world, has a recidivism rate of 20%, about half that of NSW and less than one third of that reported in the USA which reports a recidivism rate of 68%.

Guided by a “Principle of Normality” under which imprisonment is regarded as deprivation of liberty but nothing more, life inside prison is designed to be as close as possible to life outside.  Prison officers are educated in a range of disciplines including social welfare and psychology.  Prisoners are taught a range of skills to assist them in their rehabilitation and receive vocational training to assist with employment prospects.

These principles bear some resemblance to those advocated by Justice Nagle in the NSW Royal Commission into Prisons when he said:   ”People are sent to prison as punishment, not for punishment.”  Norwegians cast their tactical approach to incarceration as a “good neighbour policy” – treat people like dirt and they will become dirt.  Treat them like human beings and they will act like human beings.

These principles are also consonant with the principles advocated by the Restorative Justice movement which is gaining strong momentum in the City of Newcastle NSW.  In a recent article by Professor John Anderson and Dr Nicola Ross of the University of Newcastle, the authors said:

“Restorative cities implement interdisciplinary restorative practices and restorative justice measures across a range of systems including education, justice, welfare, child protection and health to achieve positive results for residents, particularly the most vulnerable members of the community such as children and youth. Ultimately these cities are working towards and achieving a transformational change in culture and the social fabric of their cities using mediations, conferences and relationship-building exercises to encourage the resolution of disputes and disagreements through productive communication, to address inappropriate and harmful behaviours and to create community wellbeing in a caring and inclusive culture.”  (J Anderson and N Ross A Restorative City for NSW – Could Newcastle be a Model? (2018) 27 JJA 74)

 

If even some of these objectives could be achieved, there would be cause for great optimism that many of the matters of which Judge Finnane complained might be removed from the criminal law landscape in New South Wales.  It is to be hoped that this will be so.

[1] M Finnane The Pursuit of Justice (New Holland Publishers 2018)

Newcastle Law Journal: Call for Papers: Due 30 August 2019

If you missed the due date for submissions to the Newcastle Law Review and its Special Edition on the National Mediation Conference, a further opportunity for submissions on dispute resolution more broadly is available with a due date of 30 August 2019.

Get those papers in!

The Newcastle Law Journal

The Newcastle Law Review (the NLR), the journal of Newcastle Law School, was first launched in 1995. Since that time an impressive array of articles and notes has been published, representing traditional categories of legal scholarship as well as interdisciplinary contributions. Newcastle Law School has reinvigorated the journal and it is now published electronically and an open-access resource to the public.

Newcastle Law School  is organising a special edition of the NLR based on the dispute resolution theory and practice. This special issue will be published in 2019. We welcome the submission of original and high quality research work on dispute resolution for consideration as to publication in this special issue. Please note that the NLR is a refereed journal. The acceptance of a submission for publication is subject to the outcome of a double blind peer-review process with a final publication determination made by the editors after full consideration of the peer reviews.

In making a submission, the authors’ compliance with the following submission guidelines would be much appreciated:

1) Word limit: 6,000 – 9,000 words

2) Referencing style: Australian Guide to Legal Citation (Fourth Edition, 2018)

3) The deadline for submission is Friday 30 August at 5.00pm.

If you have any questions or enquiries in relation to this special edition, please contact: Dr. Bin Li, bin.li@newcastle.edu.au (Editor, The Newcastle Law Review)

Living in the Age of Rhetoric – Challenges for mediators

The term “rhetoric” has changed its meaning over time. According to the Oxford English Dictionary it has its origins in Greek antiquity and was defined by Aristotle to mean: the faculty of observing in any given case the available means of persuasion” and since the mastery of art was necessary for victory in a case at law or for passage of proposals in the assembly or for fame as a speaker in civil ceremonies, he called it “a combination of the science of logic and of the ethical branch of politics.” Rhetoric typically provided heuristics for understanding, discovering, and developing arguments for particular situations, such as Aritstotle’s three persuasive audience appeals: logos, pathos and ethos. the five canons of rhetoric of phases of developing a persuasive speech were first codified in classical Rome: invention, arrangement, style, memory and delivery.

In modern usage, the word “rhetoric” has come to mean language designed to have a persuasive or impressive effect, but which is often regarded as lacking in sincerity or meaningful content. The Oxford English Dictionary uses the example: “All we hear from the opposition is meaningless rhetoric.” It is in this latter context that the the word is used in this post.

The problem of rhetoric in dispute resolution discourse was encapsulated in a recent story which appeared in the morning media of 19th July 2019, when it was reported that residents have been prevented from occupying a fourth Sydney apartment building because of safety concerns with respect to toxic substances on the land including heavy metals, hydrocarbons, asbestos and contaminated ground water. the problem, according to a City of Sydney spokesperson, is that the developer had not complied with the conditions of the development consent requiring it to remediate the site before commencing construction work. The Council understands that this is “…a most frustrating situation for all terrace and apartment owners.”

The developer’s website marketing material claims that the property comprises “…amongst the most desirable residences ever to grace (the suburb’s) leafy village streets” and that (the Company) enjoys “…a strong reputation in all facets of property development” established over the past 15 years describing this as its “flagship” project. To consumers who continue to live in rented premises, have their goods and furniture in storage and have extended their mortgages while they await completion of their new homes, this is no doubt all rhetoric which serves only to rub salt into the wound and inflame hostilities.

To exacerbate matters it appears that, in answer to complaints about the long delays in completing the project (now fifteen months overdue for completion), the developer had misrepresented that the cause of the delay was due to “unforeseen planning issues” without disclosing the truth that it had failed to remediate the contaminated soil prior to commencing consruction as the Council required.

This scenario exemplifies what appears to be a burgeoning problem in the exchange between those who have been aggrieved and those who aggrieve them. It is the abandonment of good will and accountability in favour of baseless, meaningless weasel words euphemistically described in contract litigation as “puffery.” It is a feature of this manner of communication that, whilst superficially it seems to offer everything, in substance it promises nothing and anything that it does promise can never be measured so that no obligation is actually created.

In the building development story recited above, the developer issued a statement saying that it was “…working with Council to ensure that buyers could begin enjoying their new homes as soon as possible…” Farm from providing any measure of comfort to consumers, this language serves only to generate added hostility and further inflame the conflict. It is, as Don Watson said in his book Death Sentence: The Decay of Public Language (Random House 2003) “the superb indifference that the powerful have for the weak.”

In mediation discourse the language of rhetoric is resistant, non-commital and dangerous and puts the mediator on notice of an absence of good will or a poor approach to integrity based negotiations or both of these factors.

The language of rhetoric is sometimes expressed in terms of vague generalities from disputants who make offers that are contingent on external events over which they have no control. “Perhaps we could do something like that but it would depend on what our insurers say…” or “We acknowledge that there has been a breakdown in the system and we will be investigating it fully.” The message that is conveyed in all these situations is that there is nothing specific which can be done and the respondents to the claim just need a little more time to think how to escape the dilemma without being held accountable.

In my PhD research there was a hint of complaint, mainly from lawyers, who spoke of receiving instructions to formalise agreements made at mediation which were incapable of enforcement because they lacked precision or were contingent and featured vague promises that were unclear as to their content or as to the manner and timing of their implementation. In some cases the mediator had simply noted the general nature of the “agreement” without sufficiently reality checking the strength of the arrangements with the parties to ensure that they were satisfied that they had an enforceable agreement. In one case a research respondent reported that a mediator had just torn off the printed strip containing the electronic whiteboard notes and provided a copy to each of the parties as evidence of the agreement. Of course, this is not to suggest that mediation agreements must always be enforceable. That, however, is a decision which should be made positively and advisedly.

It is unclear at the time of writing this post whether there hs been research into this area of disputant behaviour. However, it seems that, at least anecdotally, there is an increasing prevalence of the use of rhetoric in response to legitimate consumer complaints and that DR practitioners and theorists could benefit by considering this as a topic for further research.

The Mystery of Civil Collaborative Practice

By Timothy Nugent

This post reflects on collaborative practice, the dispute resolution phenomenon on which my PhD research is focused. Because this research is ongoing, the post concludes with an invitation to participate directed towards to lawyers, and to members of other professions involved in collaborative processes such as psychologists, child specialists, financial advisors, mediators and coaches. To participate in the study, by participating in an online survey, and/or in an electronic interview, please consider this invitation and if you have any questions don’t hesitate to contact me at timothy.nugent@usq.edu.au.

So what is collaborative practice?’ It’s a question I’ve answered many times in the course of my PhD, a study of the potential for collaborative practice beyond its main use in divorce. However, no matter how much information I gather on the topic I’m never entirely sure how I should answer.

In one answer, I explain that collaborative practice is an emerging alternative form of legal practice, initiated by Stu Webb in the United States in the early 1990’s (Webb & Ousky 2011). The defining procedural characteristic of the process is that lawyers represent clients in a settlement role only. If the matter proceeds to litigation, both lawyers are disqualified from further representation in that matter. The parties may litigate but bear the cost of retaining new (adversarial) counsel. I would proceed to discuss the ‘participation agreement,’ a contract or series of contracts that sets out the limits of collaborative representation, and the other duties that collaborative practitioners usually agree to therein: to disclose all relevant materials, to negotiate in good faith, including not taking advantage of errors of fact or law made by the other side, and to resolve the matter by interest-based negotiations rather than positional stances or threats of litigation (Tesler 2017).

In another answer, collaborative practice is an alternative legal culture. A community of lawyers who have become frustrated with the conventional adversarial approach to legal services and have directed that energy into creating a new way of doing things. This impetus for change does not appear to be particular to any one jurisdiction or the approach used in collaborative practice. Collaborative practitioners are active in family law across the United States, Canada, the United Kingdom, Ireland, Australia, and Hong Kong (Tesler 2017). Collaborative practice has even bridged the divide between common-law and civil legal traditions with increasing use in civil law jurisdictions such as Italy and the Netherlands. In November 2018, a group of International Academy of Collaborative Professionals trainers (IACP) conducted the first collaborative training in Japan (IACP 2018). Collaborative practitioners have been active in Australia for around twelve years (Scott & Collins 2017). Collaborative practice associations are active in most Australian States and Territories and have achieved growing recognition for the process among dispute resolution options. The NSW law society website, for example, promotes collaborative practice as ‘the process of choice when neither litigation nor mediation quite fit the bill.’

The answer I rarely give is the personal one, that for me why collaborative is not more widely adopted is a mystery. One which my research hopes to contribute to solving. Collaborative practice was intended as a method of general application, but has struggled to achieve traction in areas of law other than divorce. Between 2006 and 2010, the IACP collected data from its members in relation to their collaborative matters. Of 933 matters reported, 97 percent were divorces, with the remainder comprising mostly other types of family matters (Crescent Research 2010). Only three non-family civil matters were reported: an employment matter, a sexual harassment/retaliation matter, and a probate matter (Crescent Research 2010) Perspectives on this trend have been advanced in the literature, eg. (Hoffman 2003)(Difonzo 2009, p. 600), but the matter would benefit from further empirical attention (Lande 2011, p. 21). My PhD research looks at whether there are opportunities for collaborative practice in other areas of law, and if so, what are the barriers which limit its use or utility outside of family law.

In investigating this issue, it was decided that a particularly broad research frame was necessary. I have been conducting research not only with members of the collaborative practice community, but also lawyers within the traditional adversarial paradigm, and practitioners from other disciplines, such as mediation, or financial planning that have participated in the collaborative process. The common thread among this population is a willingness to reflect on the nature of legal practice, and how to deliver a service for clients that minimises disputes and does not damage relationships going forward but has potential for collaborative practice in areas where it has rarely been used. If you are interested you can contribute to my research by contributing your thoughts, either by completing an anonymous survey, https://surveys.usq.edu.au/index.php/656114?lang=en and/or in an interview. If you would like to know more, please email me at timothy.nugent@usq.edu.au. (Research Ethics Approval No. H18REA076).

Associazione Italiana Professionists Collaborativi (website) http://www.praticacollaborativa.it Crescent Research, ‘International Academy of Collaborative Professionals Practice Survey’ (2010) http://www.collaborativepractice.com

DiFonzo, Herbie J, ‘A Vision for Collaborative Practice: Final Report of the Hofstra Collaborative Law Conference (2009) 38 Hofstra Law Review 569

Hoffman, David, ‘Collaborative Practice in the World of Business’ (2003) 6 The Collaborative Review 1

International Academy of Collaborative Professionals, ’First Collaborative Practice Training in Japan’ (website) http://www.collaborativepractice.com/event/first-collaborative-practice-training-japan

Lande, John, ‘An Empirical Analysis of Collaborative Law’ (2011) 49 Family Court Review 257 Law Society NSW (website), ‘Collaborative Practice’, https://www.lawsociety.com.au/advocacy-and-resources/publications-and-resources/my-practice-area/collaborative-law

Scott, Marilyn and Collins, Pauline, ‘The Challenges for Collaborative Lawyers in Providing CP Processes’ (2017) 31 Australian Journal of Family Law 28

Tesler, Pauline, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association, 3rd ed, 2017) Vereniging van collaborative professionals (website) http://www.vvcp.nl

Webb, Stu and Ousky, Ron, ‘History and Development of Collaborative Practice’ (2011) 49 Family Court Review 213–220