What Makes Us Whole #ADRRN18

On Monday 3 December, around 25 excited dispute resolution scholars will gather on the Sunshine Coast, Queensland for the 7th Annual Roundtable of the Australian Dispute Resolution Research Network.

This is a meeting that provides respite for many of us. It is an academic experience designed to support dispute resolution research and researchers and to provide high quality, critical feedback on the papers presented there. It is so rare to find a scholarly forum where the emphasis is on feedback and where research development is central.  You can see details of our previous meetings here.

In 2018 we are being hosted by Dr Susan Douglas of the University of the Sunshine Coast. Dr Lola Akin Ojelabi is the co-organiser of the roundtable. We are excited to welcome a number of international ADR scholars again, showing how attractive our forum is to dispute resolution scholars internationally. It is also wonderful to see so many PhD and research students presenting. We take the responsibility of providing a rigorous academic apprenticeship seriously.

Papers in the 2018 program include:

  • Laurence Boulle and Rachael Field: Rethinking Mediation’s Fundamental Value of Self-Determination
  • Kate Seear and Becky Batagol: The need for a new ethical rule for lawyers in family violence intervention order matters
  • Kathy Douglas, Christina Platz and Tina Popa: Teaching Advocacy and Mediation in a Blended Learning Design: Scaffolding Learning Through Video Annotation/Discussion
  • Jackie Weinberg: The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic
  • Lola Akin Ojelabi: Legislation-based DR Processes and Access to Justice
  • Alex Crampton: Mandatory Family Court Mediation as Variably Empowering and Coercive: Ethnographic Exploration of a U.S. Family Court Mediation Program
  • Claire Holland and Tina Hoyer: A case for coaching: Influencing cultural change in the ATO
  • Cris Vianna Veras: Teaching mediation in Brazil and Australia: can we improve access to Justice?
  • Re-Accreditation of Mediators and further issues of regulation: Janet Barnes with Kathy Douglas and Alysoun Boyle from ADRAC
  • Mary Riley: Is there a place for restorative justice in civil mediation?
  • Danielle Hutchinson and Emma-May Litchfield: Mixed Modes (Hybrid) Processes Research
  • Pauline Roach: The importance of the Intake Interview in a workplace dispute
  • Joanne Burnett: Lessons from the Literature: Developing A Framework for Practice in A Social Work Study of Family Violence in Family Law Mediation
  • Alysoun Boyle: Sample Populations in Empirical Studies of Mediation: Ramifications for What We Know About Mediation, and About Who Uses It
  • John Woodward: Mediation in chains: The problem with the thinning vision of self-determination in court-connected facilitative mediation
  • Sabrina Korva and Drossos Stamboulakis: Online courts: A possibility for consumers in Australia?

Stay tuned to the blog as we post workshop papers in December and January. Follow the hashtag #ADRRN18 for frequent updates on Monday and Tuesday.

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Expanding the Concept of the Shadow of the Law in Family Dispute Resolution

Shadow of law

The literature on informal dispute resolution and family law has long recognised the influence of the shadow of the law on legal option generation and negotiations outside the courtroom. The term ‘shadow of the law’ was first coined by Robert Mnookin and Lewis Kornhauser in an influential 1979 article in the Yale Law Journal. They used the term to refer to the impact of substantive law on informal negotiations and dispute resolution processes, with particular emphasis on family law matters.[1] Even in informal dispute resolution contexts, Mnookin and Kornhauser observed, the law still provides the implicit backdrop and framework for negotiations.

Later authors have added sophistication and depth to Mnookin and Kornhauser’s analysis.[2] None of this research, however, directly answers the question of how participants in family dispute resolution in the current digital age source their information about the legal context. A recent article by Rachael Field, Lisa Toohey, Helen Partridge, Lynn McAllister and myself sets out to explore this issue through an empirical study of participants in family dispute resolution.[3] The information gathered through this research helps us to better understand the sense in which family dispute resolution may be said to take place in the shadow of the law.

The data from our study exposes the current conception of the shadow of the law as incomplete and insufficient. In particular, our results show that individuals acquire legal information of varying levels of reliability and credibility by relying on a range of formal and informal sources. Online sources are particularly influential in shaping parties’ understanding of the law, while discussions with family and friends also play an important role. Professional legal advice, by contrast, plays a relatively minor role for many participants. A significant proportion of parties do not or cannot access professional legal advice, while those who do access such advice do not necessarily regard it as the more important factor in their perceptions.

Our article therefore argues for a broader understanding of the concept of the shadow of the law and a more realistic conception of how that shadow influences the decision-making of parties in family law disputes. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). Furthermore, there is not just one shadow of the law, reflecting the current state of the positive legal materials; rather, there are multiple shadows, depending on the parties’ socio-economic backgrounds and where they are gaining their information.

Government agencies, mediation providers and others involved in providing post-separation advice and information need to be aware of the influence that the folk law exerts on parties’ expectations. For government agencies and other advisors, there is a need to provide straightforward, accessible and digestible information about post-separation options, recognising that this information is likely to be accessed alongside a multiplicity of other sources. Mediators, likewise, need to be mindful that parties to family dispute resolution may come to the process with divergent understandings of the legal framework for their dispute. Mediators may need to reflect upon their own understandings of the law and ask how closely they might match or differ from the folk law that influences the parties.

[1] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[2] See, for example, Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Federation Press, 2011); Jeremy Feigenbaum, ‘Bargaining in the Shadow of the “Law”: The Case of Same-Sex Divorce’ (2015) 20 Harvard Negotiation Law Review 245; Herbert Jacob, ‘The Elusive Shadow of the Law’ (1992) 26 Law and Society Review 565.

[3] Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319.

Call for Papers, Advances in Comparative and Transnational ADR, Hong Kong March 2019

Lots to blog about this morning!

I saw this call for papers on our US sister blog, Indisputably, and thought it was too good not to share here too.

The Law Faculty at the University of Hong Kong will be hosting a research forum March 8-9, 2019 on Advances in Comparative & Transnational ADR: Research into Practice to which we  warmly invite submissions for consideration.

 

  • The focus of the forum is on exploring the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research.  Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and cross-border dispute resolution, insights from recent multi-country studies, and consideration as to how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.
  • For those wishing to submit a paper for consideration:
a) By 10 December 2018, please e-mail us:
(i) an abstract of your paper (up to 200 words);
(i) your biography (100 words);
(iii) indicate whether you intend to submit your paper for the conference publication; and
(iv) indicate whether you have any objections to being a discussant at the forum.
Submissions may be sent to: sali@hku.hk
More info here.

Harvard program on negotiation – graduate research fellowships

I saw this and thought some of our graduate research scholars who follow this blog might be interested. 

student harvard

Accepted Students Day 2018 by PresbyPhotos (CC BY-NC 2.0)

Harvard University’s Law School invites applications for graduate research fellowships under its programme on negotiation. This supports dissertation research and writing in negotiation and related topics in alternative dispute resolution and gives fellows an opportunity to immerse themselves in the diverse resources available at the programme on negotiation. The purpose is to give doctoral students who are writing their dissertations the opportunity to be part of the programme on negotiation community.

PhD students enrolled in programmes outside of the US may apply. Candidates in the fields of economics, psychology, sociology, anthropology, international relations, public policy, urban planning, business and law are encouraged to apply. Candidates must have completed all degree requirements except for their dissertation. Graduate law students are eligible in connection with scholarly research undertaken to satisfy their Doctor of Juridical Science thesis requirements.

The fellowship lasts for one year and includes a stipend of USD 26,000, communal work space, library access and other privileges at Harvard.

 

  • Closing date 08 Feb 19
  • Deadline information This call is repeated once a year.

The Challenges of Elder Mediation: Part II

The Challenges of Elder Mediation

Part II: Problems and Solutions

D.M.

This is Part II of a two part series of posts by D.M., a current JD student at Bond University.

As mentioned in my previous blog post, there are several challenges unique to elder mediation. A significant challenge regarding capacity that elders face is an incorrect perception by the mediator or the other party of their capacity to participate in the mediation. Such perceptions are often rooted in ageism, a physical or psychological disability (such as dementia) or cognitive defects stemming from illness or distress. As a result, an elder may feel disempowered because of their dependence on their caretaker or an underlying mental health condition.

Furthermore, if the mental health issue is known to the mediator or the other party, this may create a bias regarding the elder’s capacity or the mediator may incorrectly assess the elder’s capacity, further aggravating the power disparity.[1] An addition problem is that older adults may bargain away their rights in an attempt to preserve relationships with family members who are applying pressure or coercion to obtain access to their assets. They may also be afraid of retaliation from an abuser.[2]

The role of the mediator

Mediators face special challenges in elder mediation. For example, even though ground rules are necessary in mediation, the elderly sometimes comment that they feel constrained by them. This is a complex challenge because such ground rules may also work to reduce bullying from other parties (who may include abusers). The establishment of ground rules, however, is confined to the mediation, which only yields temporary empowerment of the elderly party.[3]

Mediators may also face challenges in managing elders’ contributions. Self-determination is nourished by allowing the parties to discuss and pursue their interests, but some forms of abuse may be tough for the elderly to articulate or confront. Another issue concerns the dilemma of whether medical documentation of the elderly should be shared with the mediator. On the one hand, it may create bias concerning the elder’s capacity. On the other hand, the mediator may need this information to ensure the elder’s self-determination.

Possible solutions

Appropriate responses to these challenges will differ from case to case, but some guidelines can be suggested.  Until proven otherwise, elder adults should be deemed to have full capacity to participate in mediation. However, where capacity is in doubt, this needs to be properly established and not simply assumed. One possible way to ameliorate this challenge is to hire a medical professional to make that determination. Another possible way is for a social worker to assess the party’s capacity, as they may have more relevant expertise than the mediator.[4]

Older adults are legally presumed to be capable of making decisions about their finances. However, due to ageism or cultural norms and stereotypes, as adults get older professionals may increasingly speak to family members about the older person’s financial issues rather than speaking to the older person directly. In such cases, it has been suggested that a professional in the relevant field (in this example, an accountant or financial advisor) be consulted.[5]

Mediator training and professional development also plays a key role. Mediators who deal regularly with elder parties should seek training in identifying and responding to issues concerning capacity and mental health. This training could help avoid the cost involved with consulting medical professionals in some cases, but it will also help the mediator identify when additional expertise or support is needed.

[1] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

[2] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 3, 6.

[3] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 426.

[4] Ibid 434.

[5] Braun, ‘Elder Mediation’, 6.

The Challenges of Elder Mediation: Part I

Elder Mediation

The Challenges of Elder Mediation

Part I: Foundational Concepts

D.M.

This is Part I of a two part series of posts by D.M., a current JD student at Bond University.

Elder mediation is an important and growing topic in dispute resolution. This area of dispute resolution is important because Australia’s elderly population has been projected to grow to 8.8 million by 2057 (22% of the population). This is an increase from 3.8 million (15 % of the population) today. With such a dramatic increase, the demand for elder mediation seems sure to grow exponentially in the future.

‘Elder’ can be defined as ‘a person of greater age or seniority’. In an Australian context, this might be defined as a person who is aged 75 years or over. The highest prevalence of abuse within this age group is from the age of 80–85 years. Abuse of various forms is an important driving force behind the emergence of elder mediation.[1] Abuse can manifest as financial, emotional, physical or sexual abuse or neglect.

Why mediate elder disputes?

Elder mediation, when used correctly, can be an effective preventative process for current or potential elder abuse. Mediation efficacy decreases as abuse severity increases. Thus, mediation at an earlier stage of abuse or neglect will act as a more effective preventative measure. Furthermore, elder parties often prefer mediation over litigation as it is a more discreet method of alleviating an abusive situation and it is easier to maintain the relationships between the parties.[2]

Elder parties may prefer to mediate because it is less confrontational than litigation and confronting an abuser, especially when they are also the caretaker of the elder party, can strain the relationship if the matter proceeds to litigation. Thus, mediation retains the relationship between both parties while keeping the process confidential, which further works to retain these potentially decades-old relationships.[3]

Mediation is also preferable from an ethical standpoint because one of its purposes is for the elder party (generally the weaker party) to gain self-determination. Self-determination in elder mediation is achieved by not only informing the elder party of their rights, but also helping them achieve some independence in relationship with the other party. If the mediator correctly establishes the elder’s capacity, this may also correct any ageism biases and other incorrect perceptions of this issue.

Features of elder mediation

The parties to elder mediation are often family members, friends, fellow residents of aged care homes, caregivers or any combination of these roles. As a result, the mediator must consider questions such as whether parties should meet separately with the mediator or who should be present at each stage of the mediation. Power imbalances may arise in elder mediation due to the potential existence of abuse or neglect, combined with the fact that the perpetrators in the majority of elder abuse cases are the children or caretakers of the elderly party.

The circumstances of elder mediation may pose a challenge to the focus mediation places on self-determination. Power disparities may also create a real or perceived incapacity of the elder party to enter mediations.[4] Capacity is central to a process based on the principle of self-determination which requires parties to make their own informed choices on settlement options. The issue of capacity can be influenced by mental  or physical health problems (both chronic or temporary) or ageism.

My next blog post will examine the challenges of elder mediation in more detail and recommend some possible strategies and solutions.

[1] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 5.

[2] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 425.

[3] Braun, ‘Elder Mediation’, 4.

[4] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

New Milestones for the Australasian Dispute Resolution Research Network

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It is now nearly five years since the Australasian Dispute Resolution Network blog was founded in late 2013.

Since that time we have now built up a loyal following of over 10,000 readers, plus additional subscribers through our Twitter presence.    To all of you who have supported us, thankyou!

Associate Professor Becky Batagol, who has served  tirelessly as our Editor-in-Chief for the past five years,  has handed stewardship of the blog to another long-time supporter of the Network,  Dr Olivia Rundle.

As always, the blog remains the primary means of communicating the work of the Australasian Dispute Resolution Network.    We consciously do not maintain any other burdensome administrative structures, such as a formal membership structure or mailing lists.  You can read more about our policies here.   We welcome and encourage participation from anyone wishing to disseminate research about dispute resolution and especially encourage PhD students and emerging academics to participate – and we are not limited to Australasia.   If you would like to become a guest blogger, or a permanent member, please contact Olivia.

We look forward to this next phase of evolution for the Network and the blog,  thank Becky for her hard work and welcome Olivia!