Bond Law Review: Special DR Edition available now – http://epublications.bond.edu.au/blr/

The special edition of the Bond Law Review brings you a selection of scholarly papers presented at the bi-annual National Mediation Conference held in September 2016 at the Gold Coast, Queensland. It’s available online and at no cost at: http://epublications.bond.edu.au/blr/.

Presentations at the Conference included discussion of the latest research and developments across the spectrum of forms of dispute resolution. The content of the conference, and of this special edition, is of interest to mediators, dispute resolution and restorative justice practitioners, facilitators, conciliators, educators, trainers, conflict coaches, arbitrators, adjudicators, academics, researchers, managers, administrators and anyone else who is interested in and involved in helping people in dispute

The 2016 conference brought together more than 500 participants and many delegates from across Australasia and the world. The theme for the conference was: “Thought, Innovation and Creativity: The Next Decade”. Key focuses included what practitioners know and how they know it; thinking about thinking; reflecting on how innovation, education and training of practitioners occurs in self-determinative through to determinative processes; and considering how flexibility and creativity can be observed in response to the diverse needs of clients in order to provide a future of best practice in managing conflict. In contemporary times, it is vital that practitioners consider standards, professionalism, ethical practice and self-care in order to continue to meet the challenge of their working environment. Mindfulness and reflective practice were prominent considerations – the importance of remaining mindful of and reflecting on our own reactions and the reactions of the participants within the dynamics of their communication about their dispute was highlighted, particularly in terms of minimising potential complaints, as well as in relation to avoiding practitioner burn out.

The workshops and presentations discussed many diverse ways for managing a range of processes contributing to a variety of outcomes, such as, settlement, resolution, healing, forgiveness, rebuilding relationships, renewing relationships or respectfully severing a relationship. Matters at the forefront of participants’ concerns included how to demonstrate creative techniques and innovative practice approaches by thinking ‘outside the square’, together with ethical guidelines and best practice standards in diverse practice applications.

The special edition begins with Jonathan Crowe’s conference keynote address on ‘Mediation Ethics and the Challenge of Professionalisation’. Jon discusses the regulatory and practice models of mediation ethics in the context of their suitability to address the challenge of professionalisation. He argues in favour of the practice model, concluding that the mediation profession should aim to strike a balance between the two models, while generally emphasising practice over regulation. Next, Olivia Rundle addresses the important issue of ‘Including Trans and Gender Diverse, Intersex and/or Non-Heterosexual People in Mediation Service Delivery’. Olivia’s article argues that mediators should be informed about historical as well as current legal treatment of individuals, couples and families who are trans and gender diverse, intersex and/or non-heterosexual, and be alert to the dynamics of power that arise as a result of legal non-recognition of certain family relationships. The third article in the special edition is Judge Joe Harman’s piece entitled: ‘An Imperfect Protection: Attitudes of Family Dispute Resolution Practitioners to Confidentiality’. Judge Harman discusses the utility of the confidentiality and inadmissibility of oral and written communications in Family Dispute Resolution, highlighting the tension between the confidentiality of dispute resolution processes and the desire of Courts to have access to all available evidence. The article presents and analyses a 2014/15 survey of practising Family Dispute Resolution Practitioners from private, government and community based contexts regarding their attitudes to confidentiality and its importance in Family Dispute Resolution. The final article for the special edition is by Kathy Douglas and Jennifer Hurley entitled ‘The Potential of Procedural Justice in Mediation: A Study into Mediators Understandings’. Kathy and Jennifer discuss the theory of procedural justice as a way of explaining why disputants who experience validation and respect in a decision-making process are more likely to accept the outcome of a process even if they do not agree with the result.  They argue that the Australian legal system, and mediators, are not yet adequately recognising or harnessing the potential of procedural justice. They present a qualitative study exploring the practices of mediators conducted at the Victorian Civil and Administrative Tribunal, concluding that a majority of mediators endorse the theory of procedural justice.

The special edition also contains 2 practice notes (3 in the online version) and a book review. The first practice note by Meriel O’Sullivan considers ‘The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes’. Meriel uses a case study of a grievance to explore theories on the sources and resolution of workplace conflict. The case study highlights what happens when there is a mismatch between the sources of conflict and the conflict resolution intervention, and how this can be addressed by broadening the range of interventions utilised in a workplace. The second practice note by Keryn Foley considers the always topical issue of co-mediation in her piece ‘To Co-Mediate or Not to Co-Mediate — That is the Question’. Keryn explores the practical benefits and challenges of co-mediation, offers a new way of defining co-mediation, argues that the method requires a specific skill set, and offers several practice tips. Keryn argues that preparation is key in successfully co-mediating, as is the practice of debriefing. The third practice note by Louisa Roughsey, Frank Watt and Berry Sontag and is entitled ‘Indigenous Mediation – Is That Different?’. It is only available in the online version of the journal due to its extensive pictorial content. The practice note discusses the history, practice and challenges of the Mornington Island mediation service. Finally, the special edition concludes with a book review by Linda Fisher and Frances De Biasi of Samantha Hardy, Olivia Rundle and Damien Riggs’ book: Sex, Gender, Sexuality and the Law: Social and Legal Issues Faced by Individuals, Couples and Families. The review praises the work as a valuable resource, providing insight and extending understanding in ways that have not been achieved elsewhere.

We trust that this impressive special edition, which is a new initiative for the Conference, and has been generously supported by the Bond Law Review, brings together a collection of papers on a range of topics that will inspire you.

Special editors –  Professor Rachael Field, Bond University, Ms Mieke Brandon Co- Convenor and Co- Secretary National Mediation Conference 2016, and Associate Professor Pauline Collins, University of Southern Qld and Co- Secretary National Mediation Conference 2016.

 

 

 

 

 

 

Research Participants Wanted Positive post-separation parenting: What works for Australian parents?

 

This post is authored by Dr Kris Natalier and Dr Priscilla Dunk West, Flinders University. Priscilla and Kris study how people make sense of intimate and family relationships. This is research that we believe is important, well-conceived and worth participating in. 

 

Do you have a good relationship with your former partner?

We would like to hear about your experiences, to find out what works in building good relationships between separated parents.

flower heart

Photo: Nick Kenrick Creative Commons

We are interested in surveying and interviewing parents – men and women – who are 18 years or older and who have good relationships with their former partners.  We are interested in hearing about how you define ‘good relationships’ and how you build and maintain a good relationship with your former partner and other important people in your life: what works, what’s easy, what’s hard?

The study involves a survey and, if you wish two confidential, one-on-one, in-depth interviews: one where you tell us about your relationship with your former partner and one, around four months later, where you tell us if anything has changed.  We expect the interviews will last approximately one hour. We can interview you on the phone, by Skype, or if you live in Adelaide, in a place that suits you.

If you are interested in completing the survey, you can find it here.

If you are interested in being interviewed, or hearing more about the study please contact Priscilla [Priscilla.dunkwest@flinders.edu.au         08 8 8201 5288] or Kris kris.natalier@flinders.edu.au              08 8201 3391]

The study is conducted by Dr Priscilla Dunk West and Dr Kristin Natalier, researchers at Flinders University. Priscilla and Kris study how people make sense of intimate and family relationships. We are not employed by any service to conduct this study.

Taking part in this study is voluntary. Your decision to participate or not will not impact upon your access to any services or organisations.

The Benefits and Challenges of Conducting Empirical Research on ADR

I have just started an empirical project on the use of ADR in resolving discrimination claims, which I mentioned in an earlier post on this blog, and the process of completing the research has reminded me of some of the challenges of conducting empirical research, particularly when the focus of the study is conciliation. In this post, I reflect on these challenges for researchers.

First it’s necessary to explain the context and use of ADR in resolving discrimination complaints in Australia. A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria where this has been optional since 2011). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. Most are settled and both the process and outcome are confidential. Those that don’t settle are either withdrawn or proceed to hearing where they may undergo mediation as part of the court’s case management processes.

Conciliation plays a central role in addressing discrimination complaints in Australia yet very little is known about it. Since Margaret Thornton conducted the earliest empirical study of conciliation in 1989,[1] researchers have found it very difficult to get access to information about the conciliation processes. This is because most legislation requires the process to be confidential so that if the matter doesn’t settle, the parties can’t use what was said during conciliation in court proceedings.

If the matter does settle, though, the settlement agreement usually contains a confidentiality clause which can be worded broadly enough to prevent the parties from discussing the claim and the settlement outcome. This makes it next to impossible to interview parties about their experience of the conciliation process and its effectiveness, and it means information is not available, certainly not publicly, about what exactly the claims are settling for. Researchers can interview parties who proceed to court (if the researcher can get access to them) but their view of the process will be quite different from the people who settled their claim.

 

Front_doors_-_geograph.org.uk_-_561574

Photo: Paul McIllroy, Creative Commons

The most common method researchers have used to explore ADR in this area is to interview staff conciliators at equal opportunity institutions and lawyers. However, sourcing interview participants can present its own challenges. There is often not a big pool to draw from – the agencies usually have only a handful of staff conciliators, depending on the size of the State or Territory, who may then suffer from ‘research fatigue’ if they are always called upon. Some may not have enough experience in conducting conciliations. It can be difficult to identify lawyers with enough experience to comment on the process – lawyers don’t usually focus on discrimination law; it’s one part of a large practice area, usually employment law and even those on it may also be small. Barristers may not have any experience of the conciliation process because they will be briefed later.

In saying that, I think that there are many benefits of conducting empirical research on ADR. For one thing, it is a very interesting type of research to undertake. As a legal academic who is used to spending time in a library or at her computer reading legislation, cases and work by other academics, it is often a welcome relief to leave the office and speak to people!

Too often we can get caught up in the theory of law and how it should be operating, whereas empirical research reveals law ‘in action’ and shows its strengths and shortcomings. I have found this to be particularly important in this field where there are very few cases each year; the development of the law is taking place behind the conciliation doors. Empirical research is the only way of filling this gap in knowledge.

[1] Margaret Thornton, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52 The Modern Law Review 733.

This post draws upon a paper I presented with Dr Alysia Blackham at the Labour Law Research Network’s Conference at the University of Toronto, 25-27 June, 2017.

 

To foster workplace collaboration, first manage the conflict: Dr Sam Hardy

This post from In The Black on workplace conflict features and interview with our Dr Sam Hardy.

“When conflict escalates to a point where parties are not communicating with each other, and worse – when they start talking very negatively to colleagues and friends about the other person, the situation becomes unproductive for the people in conflict and those around them,” says Samantha Hardy, principal at Conflict Coaching International and an expert on conflict management and resolution.

Read more in the 1 August piece.

Using ADR to Resolve Discrimination Complaints

I have recently started a research project about Victoria’s anti-discrimination laws that will evaluate, amongst other things, the state’s model of optional ADR. This model has been operating since 2011 and is unique in the country. I thought this would be a good opportunity to reflect on how ADR is used in anti-discrimination law and some of the problems that have arisen from its prevalence.

lady-justice-2388500_960_720

A person who has experienced discrimination is required to lodge their claim at either the Australian Human Rights Commission or their local equal opportunity agency before they can proceed to court (except in Victoria but many complainants still approach the agency first anyway). The agency will assess the complaint and if it has substance and falls within its jurisdiction, it will attempt to resolve the complaint using conciliation facilitated by staff conciliators. My earlier research showed that the vast majority of discrimination claims are settled or withdraw prior to hearing; the courts hear very few discrimination claims each year.[1]

There are many reasons for the prevalence of ADR in this jurisdiction. One of the most attractive features of ADR is that it is less intimidating than a court proceeding, which demands, amongst other formalities, technical hearing and evidentiary procedures. ADR is well suited to people who would not pursue a claim if they had to participate in a public hearing. This is particularly important in anti-discrimination law because so many complainants are vulnerable or from marginalised communities. Court hearings are also costly whereas conciliation is provided by a statutory agency so it is cost-free unless parties choose to retain legal representation. ADR is quicker and more expeditious than litigation. Often the agencies are required to process complaints within a set timeframe. For example, one of the Australian Human Rights Commission’s performance targets is to finalise 80% of complaints within 12 months of receipt. In 2015-16 it exceeded this and finalized 98% within 12 months.[2] By contrast, litigation can take years to resolve. ADR is confidential so the parties can negotiate freely, knowing that what is said cannot be used subsequently if the matter goes to court. Finally, ADR is more flexible than litigation. The parties control the outcome, rather having an outcome imposed by a judge. There are no restrictions on the settlement the parties can agree to. Theoretically, the parties determine the terms of settlement.

There are, however, problems with using ADR to resolve discrimination claims. The first is also a problem in other areas of law – the power imbalance between the parties. The concern is that the ADR process may reinforce this to the complainant’s detriment. The Conciliator is expected to address any power imbalances but this may not always be possible, particularly if there are lawyers involved and they engage in aggressive, adversarial behaviour and argue about the merits of the claim, rather than allowing the parties to negotiate an appropriate resolution.

Second, there is no guarantee that ADR protects the public’s interest in eliminating discrimination or that it protects the complainant’s rights and interests. This is most problematic if ADR is used purely as a case management technique, and it often has the purpose when it is managed by a court – the goal is to avoid a hearing.

Finally, while confidentiality is a benefit of ADR, it is a significant limitation in two respects. Most settlement agreements contain a confidentiality clause which prevents the parties from discussing the claim but which many agencies interpret as preventing them from releasing information about the nature of the discrimination complaints they receive and how they are being resolved, even in a de-identified form. This has led to a significant gap in the information that is available about the ADR process and the outcomes negotiated, including for research purposes. This makes it difficult for potential complainants to ascertain how best to resolve their claim and it means courts are not aware of the creative ways in which discrimination could be addressed. The other problem with confidentiality is that masks the extent to which discrimination remains a problem in society and denies the law the opportunity to play an educative role. It then becomes easy for the community to think that discrimination is no longer a problem because it is all hidden.

In 2011, Victoria became the only Australian jurisdiction where it is optional for complainants to lodge their claim at the agency and undertake conciliation. Many complainants are still choosing this path, which shows the value of ADR in this area of law. I am certainly not suggesting abandoning ADR; for many complainants, participating in ADR, having what one lawyer I interviewed described as a “cathartic experience” can be more significant than the actual outcome obtained at settlement. Its limitations must be borne in mind and it is worth considering how to retain the benefits of ADR while mitigating its shortcomings.

 

[1] Dominique Allen, ‘Behind the Conciliation Doors Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review 778.

[2] Australian Human Rights Commission, Annual Report 2015-2016, 27.

From Conference Series to Global Community-What’s next for the GPC?

As the GPC Series 2016-17 draws to a close,  it is time to take stock and consider how both the data analysis and conversations from each event might inform the future of Dispute Resolution.

As an academic, I am wary to avoid drawing conclusions before the final analysis is complete; but as contributor to the series from design to data analysis , I would like to share some of the themes I see emerging from this ambitious project.

Emerging themes:

  1. The move from ADR to DR
  2. Consideration of the sophistication of parties may prove crucial
  3. Education is key
  4. Lawyers see things differently from other stakeholders, including parties.

1.The move from ADR to DR

When we started the project, there was contention among committee members about the definition of different dispute resolution processes. In particular, the definition of ‘ADR’. Is it alternative DR, appropriate DR..?

As the project gained momentum, conversations moved from the idea of there being two distinct poles of DR. At one end, the adjudicative processes (such as litigation and arbitration) where the process and outcome are determined for the parties, and at the other end, the non-adjudicative processes (such as mediation), where parties have the opportunity to be decision-makers.

From these conversations, two things became clear. First, many stakeholders were starting to see the benefits of hybrid processes such as med-arb. Secondly, there was a realisation that dispute-savvy parties desire tailored processes that require DR practitioners to be familiar with a range of skills across the DR process continuum.

As such, we are now in a world where we no longer have a strict delineation between adversarial processes and non-adversarial processes. Now, all processes can co-habit within the DR landscape.

Facilitating the London Pilot, February 2016

2. Consideration of the sophistication of parties may prove crucial

The GPC Series invited participants to pay attention to the parties’ perceptions. As a result, we now have evidence (see pp 48-50) that parties who are unfamiliar with DR processes have different wants, needs and expectations from dispute-savvy clients.

The GPC has revealed that the ‘experienced user’ and the ‘sophisticated user’ may not always be the same. Parties who are familiar with a single DR process may not be dispute-savvy, as they will view a dispute through a limited lens. A dispute-savvy client will be able to look at each dispute individually, and may anticipate a tailored solution that draws on  a variety of DR skill-sets.

As a consequence, if practitioners want to satisfy the wants, needs and expectations of their clients, they must consider the sophistication of the parties participating in DR processes.

Facilitating the collection of the data at the inaugural conference GPC Singapore, March 2016

3.Education is key

This is not a new concept in the DR space. What has been made clear from the conversation is the importance of reviewing and reframing our educational focus.

This means education to facilitate change, rather than our current focus of building a heightened awareness about DR. Without careful thought,  DR professionals and academics may miss the opportunity to keep pace with the rapidly changing business world, which routinely incorporates pre-escalation and/or de-escalation systems into business models and dispute clauses into contracts.

Practical and skills-based training and education for both the legal and business communities will be the way of the future for those who do not wish to be left behind.

Participating as a delegate at GPC Sydney, May 2017

4.Lawyers see things differently from other stakeholders, including parties.

Unsurprisingly, the cumulative results of the GPC quantitative data supports the idea that lawyers play an important role in DR. It is both a strength and a weakness. At many events lawyers were seen as having the most influence in bringing about change, but they were also seen as the most resistant to it.

As our colleague Dr Olivia Rundle has identified, there is ‘a spectrum of contributions that lawyers can make‘ in DR. Combine this with the idea that clients at different levels of sophistication want different things from their lawyers (see pp 66-69), and it becomes abundantly clear that, to move with the times, some lawyers may need to adopt a more flexible mindset, with room for both adversarial and non-adversarial strategies.

Lawyers who understand these challenges and adapt to them have the opportunity to play an integral role in the future of DR. Without this, they will be left behind.

Celebrating how far we have come at the final GPC London, July 2017 

When considering the themes discussed in this blogpost, it is important to remember that the GPC Series 2016-17 collected data in relation to commercial dispute resolution. That said, there is feasibility for the insights gained from the project to prove fungible to other areas of DR. For example, family or community disputes.

I invite other academics to use the GPC to inform further research as we move from a series of Global Pound Conferences to a Global Pound Community.

The Global Pound Conference London – the end of the beginning

guildhall

The beautiful Guildhall in London, July 2017

On October 29, 2014, 150 of us, representing many stakeholder groups from more than 20 countries, attended an important convention held in London’s beautiful Guildhall. Called ‘Shaping the Future of International Dispute Resolution’ the convention was inspired by the energetic and far-sighted Michael Leathes and was organised by the International Mediation Institute (IMI), which he pioneered and several other bodies.

We were engaged by the individual voting and interactive technology used to extract and provide real-time data drawn from our input on a number of critical issues. The data that this convention generated suggested that significant gaps may exist between what disputants expect and need and what is currently provided by advisors, provider bodies, practitioners, educators and policy makers.

The outcome was the establishment of an international working committee with the task of planning a most ambitious venture – a series of conferences to be held across the globe known as the Global Pound Conference (GPC).

The goal of the series was to produce reliable data about how the different stakeholders saw the landscape by requiring participants to answer 4 core questions which, in summary, asked:

What do parties want, need and expect?

How is the market currently addressing these?

How can dispute resolution be improved? Overcoming obstacles and challenges.

What action should be considered and by whom?

Participants were also to be encouraged to work in groups to discuss and develop deeper responses to a series of discussion questions.

March 2016 saw the first conference, held in Singapore, and this was followed by a further 28 conferences spanning the globe and returning to the Guildhall for the London conference in July 2017.

Having had the good fortune to attend the 2014 convention and the GPC sessions in Singapore, Sydney (May 2017) and the finale in London, I have been reflecting on the experiences and the outcomes I found most significant.

Whilst the GPC has featured in this blog before (see  GPC Sydney and Roscoe Pound would be proud) it seems timely to provide a final reflection on two questions – what has the GPC series has given us and what may come next?  My list below is not exhaustive – I sense many of us are asking and answering the same 2 questions – it simply identifies what for me are the 4 most valuable take-aways:

The Global Conversation

The GPC series got us talking. We are not all saying the same thing and we continue to have significant differences in how we see things and what we want. However the dispute resolution community, and its differing components (identified in the data collection as advisors, provider bodies, practitioners, educators and policy makers) have moved out of their separate compartments and into a community of stakeholders.

The Singapore Report

The technologically advanced and real-time data collection supported the careful and thorough data analysis (undertaken by Emma-May Litchfield and Danielle Hutchinson of Resolution Resources) and an introduction to new data and concepts. See The Singapore Report. For the first time we were able to see the differences in expectation and experience between sophisticated users (with the report coining the concept of ‘dispute savvy’ users) and novices and to move from our anecdotal assumptions of the dispute resolution landscape to a picture based on reliable data. By the time we got to London 2017, panellists and participants, drawn from the largest law firms, and users drawn from major international corporations, were comfortable adopting the language of the report and describing themselves as sophisticated users.

We also had clear information that users are not a single group but a number of different groups ranging from the least to the most experienced who have very different needs and wants.

The hierarchies identified and developed for this report are a powerful tool for future analysis and have significant ongoing value.

Lessons for Lawyers

We now have cumulative data from the core questions of the 29 events. There are numerous differences from the various jurisdictions so the picture is not homogenous. However what struck me as the most significant consistency in the data comes in the answer to the question about the obstacles to overcoming deficiencies in current dispute resolution processes and practices. The overwhelmingly consistent answer was lawyers (including, surprisingly, even the responses from the group identifying as advisors.)

In London, the responses generated the following Word Cloud which provides a great visual of the message.

wordcloud

The repositioning of ADR

In Singapore, participants and panellists were talking about ADR. By the time we got to London, ‘alternative’ was gone and Dispute Resolution was the consistent descriptor. This symbolic joining of the stakeholders is a great achievement in itself.

The ‘what’s next?’ discussion

It is appropriate to talk about the London 2017 conference as the end of the beginning. The conversation did not end in London. The last session encouraged us to explore the ‘what’s next’ question and the first step seems to be reframing the GPC as the Global Pound Community. We continued our conversation as we left the conference for celebratory cocktails. There were interesting suggestions about revisiting other ideas from the presentation by Professor Frank E.A.Sander at the original 1976 Pound Conference including developing his ‘triage’ concept into a deeper investigation of what ‘guided choice’ might look like.

For all of us in the Dispute Resolution space this is a great outcome. As a participant I am extremely grateful for the experience.

Congratulations to:

  • The far-sighted Michael Leathes for having the dream;
  • The international organising committee for herding the cats internationally;
  • The principal sponsor Herbert Smith Freehills for staying the course and making such a substantial commitment;
  • Jeremy Lack, Global Coordinator, for his tenacity;
  • Powervote for its innovative technology
  • Danielle Hutchinson and Emma-May Litchfield for bringing to the dispute resolution field research methodologies which have proven so useful in the fields of education and social sciences