Mining Frank Sander’s Legacy – Triage And More In A Bold Australian Experiment

Written by Rosemary Howell, University of New South Wales. First posted on the Kluwer Blog on May 22 2019.

National Mediation Conferences are important events. Apart from the great opportunities to network with fellow professionals there is the really important opportunity to see the intersection of research and practice at work.

Last month’s Australia’s National Mediation Conference did not disappoint.
For me the highlight was becoming acquainted with a bold Australian initiative sponsored by the Dispute Settlement Centre of Victoria (DSCV). Focussing on community disputes about things like fences, trees and noise the Centre had an ambitious plan to:
• devise a reliable process to identify their user profile and the differing levels of complexity their disputes presented;
• adopt the Sander approach and ‘’fit the forum to the fuss’;
• establish realistic settlement rates based on dispute characteristics; and
• develop a realistic budget to ensure the outcome could be realised.

The process – build a strong research base

The first step for the DSCV was to find the right project leader.

They found the perfect custom-made candidate in Danielle Hutchinson. Co-Founder of Resolution Resources, a lawyer, mediator and academic, Danielle was already an ADR Specialist at the DSCV.Danielle
Seeking a sound structural base for the project, she drew on 3 key research resources which provided learnings about the relevance of party goals and dispute features namely:
The Singapore report by Danielle Hutchinson and Emma-May Litchfield (2016)
This was the inaugural report from the Global Pound Conference Series 2016-17. In this report the authors identified the needs, wants and expectations of parties in dispute and placed them on a continuum – creating three levels of ‘dispute-savviness’ – the expert dispute resolver, the competent dispute resolver, and the ineffective dispute resolver.
Why do people settle? by Julie Macfarlane (2001)
In her paper Macfarlane examines the assumptions and behaviour of participants in dispute settlement processes – enhancing our understanding of why some disputes settle, and others do not.
Her key argument is that it is how disputants see things and how they make sense of their conflicts that have the greatest influence on outcomes – a significant step away from the rational, predictive model emphasized by most legal scholarship.
Matching Cases and Dispute Resolution Procedures (2006) by Frank Sander and Lukasz Rozdeiczer. The significance of this work is the authors’ analysis of disputes leading to guidance for lawyers and their clients’ in:
1. selecting a particular process and then
2. designing a new or hybrid process specifically fitted to the needs of the parties.
They proposed that matching processes may be just the first step of the process choice. What needed to follow was the parties modifying their preferred procedure to suit the particular needs of their dispute.

And so TRAMM was born!

Triage Resourcing Modality Matrix is more than a mouthful.
What it does is:
• Collects and makes sense of all the information collected at intake;
• Factors in the context of the dispute;
• Identifies the process that is the best match for the parties (Triage);
• Allocates appropriate resources; and
• Uses ongoing satisfaction measures to validate triage consistently.

How it works – a psychometric approach to creating an analytical tool

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The tool presents a compelling visual of everything in play when the DSCV is first contacted. The tool has:
• A vertical axis factoring in parties aspirations and goals and linking them to the likelihood of resolution (drawing on Hutchinson & Litchfield and Sander’s work); and
• A horizontal axis identifying and ranking factors likely to help or hinder resolution (drawing on the research of Sander and Macfarlane).

The output?

The power of the tool is in combining the two hierarchical axes to:
• Predict an outcome;
• Recommend the dispute resolution process that is most resource-effective and best for the dispute; and
• Maximise opportunities for a good outcome.

The human element

Trained mediators, operating as dispute assessment officers, input the data from an initial telephone assessment. They make their own assessment of likely resolution and the best process to use. This is used to continually test TRAMM’s accuracy against that of experienced assessors.

The results are remarkable!

The big picture is more complex that there is room for in this blogpost however a few key outcomes caught my attention:
• TRAMM is outperforming human operators in matching parties to processes and in predicting outcomes;
• The linkage to the Singapore Report and its identification of ‘dispute savviness’ really shows its value here. The emerging data from TRAMM provides the opportunity to explore and demonstrate whether:
o ‘dispute savviness’ makes dispute goals more realistic and more amenable to resolution;
o disputants lacking ‘dispute savviness’ have a disproportionately higher impact on likelihood of resolution and whether it is a wise investment to target them in the preparation process and coach them to higher levels of ‘dispute savviness’; and
o whilst one of the intentions of the project was to maximise resource effectiveness it was not conceived as a cost-cutting exercise.

This is a great outcome
In particular there are 2 overarching achievements that deliver a loud message:
• at a time when the academic and practising worlds seem far apart this is a case study in what happens when we bring them together. One and one has truly made three; and
• when a good outcome, rather than forcing budget cuts, is the goal we do the right thing for the right reason – and surprisingly, as happened here, more cost effective outcomes often result. Well done Danielle and DSCV.

 

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Old ethics in new wineskins? Examining the ethical difficulties in court online dispute resolution

Written by Dorcas Quek Anderson, Singapore Management University School of Law.

This post is based on a presentation made at the National Mediation Conference, Canberra, April 2019. The presentation has been drawn from two articles, Ethical Concerns in Court-Connected Online Dispute Resolution (2018) 1-2 International Journal of Online Dispute Resolution 20, and The Convergence of ADR and ODR within the Courts: The Impact on Access to Justice (2019) 38(1) Civil Justice Quarterly 126.

ODR

The proliferation of court ODR systems

Online dispute resolution (ODR) systems have been increasingly embraced by the courts in many countries as the new way to enhance access to justice. Notable examples include the future Online Solutions Court in England and Wales, the Civil Resolution Tribunal in British Columbia, Utah’s ODR system for small claims, and the internet courts in China.

This diagram from the US Joint Technology Committee’s report on ODR for Courts (p. 3) helpfully illustrates how a full-fledged court ODR system typically brings the use sequentially through the steps of triage or problem diagnosis, negotiation, facilitation and online hearings:

ODR Diagram

The Civil Resolution Tribunal (CRT) in British Columbia is probably one of the most well-developed systems. Designed to handle condominium property claims and small claims (and motor accident claims this year), the CRT features an end-to-end process combining dispute resolution phases and focusing on early participation by parties. The first phase provides initial problem-diagnosis and self-help through the online tool Solution Explorer. This software uses guided pathways to help the user learn more about the dispute, and then diagnoses the problem according to relevant legal rights, and provides tools such as letter templates that can deal with the problem. If the dispute is not resolved at this stage, the user can formally commence a claim through an online intake process that will give notice of the claim to the opposing party. The claimant is then brought to the second phase in which the parties are able to negotiate directly using the online system. The third phase of facilitation introduces the human facilitator to the process. The facilitator draws on a wide range of ADR processes, including mediation and non-binding neutral evaluation, to assist the parties to reach an agreement. In the event that the parties cannot agree, the facilitator takes on a case management role and helps the parties narrow their issues and prepare for the next phase. The final phase of adjudication is usually conducted remotely through asynchronous communication channels. If an oral hearing is needed, it is conducted via telephone or video-conferencing.

Why examine “old” ethics?

These ODR systems offer unprecedented opportunities for the thoughtful and imaginative application of dispute system design principles to meet the goals of the courts, and, as noted by ODR commentator Rabinovich-Einy, generate legitimacy in court processes. It also means that the goals and core values underlying court dispute resolution should be clearly articulated and guide the design of these systems.

In this regard, my research looks back at the “old” ethical difficulties that used to confound the mediation community and the courts, and asks whether these challenges will resurface in the new ODR context. My conference presentation examined two “old” ethical difficulties concerning levelling the playing field between disputants; and whether the system should have distinct ADR processes. This post focuses on the first issue.

Levelling the playing field between disputants

One distinctive characteristic of the highly successful court ODR systems is the provision of guided triage that empowers users to resolve the dispute. The Solution Explorer tool in the CRT uses guided pathways to help the disputant learn more about disputes, then to diagnose the problem in terms of the relevant legal rights and to provide self-help tools. The Utah system for small claims has placed even greater emphasis on education. Apart from providing customised self-help resources and legal services at the start of the process, this system also assigns a facilitator to the case once all the parties have joined the Web portal. One of the facilitators’ key functions is to provide limited legal advice and provide individualised education and assistance. When describing the system, Utah Supreme Court justice Deno Himonas commented that the relevant rules may have to be amended to allow the facilitator to give limited legal information even though he or she is not acting as counsel for either party.

The emphasis on customised education and problem-diagnosis has resulted in ODR as the ‘fourth party’ expanding the scope of the courts’ intervention in disputes. The court’s role is being transformed from an impartial and detached adjudicator to a more proactive problem-solver. Notwithstanding the great gains to be reaped from this development, this change results in considerable tension between the following ethical principles:

ODR2

This tension is not new to mediators. We often observe informational asymmetry amongst the disputants. One party may be a repeat player in the courts or may have received sophisticated legal advice. By contrast, the other party could be misinformed about his or her legal rights. As mediators, we are familiar with the struggle in deciding how much to intervene to help the disputants to make informed decisions. This dilemma is apposite in court-connected mediation, where it is arguably more important to uphold the perception of the court mediator’s impartiality.

In the court ODR context, this dilemma could be more acute. The ODR system’s value lies in its great potential in levelling the playing field between parties where there is information asymmetry. Notably, 94% of the parties resolved their dispute at CRT’s Solution Explorer stage without requiring further intervention.

However, should the courts level the unequal playing field? There is the risk of the courts taking on a more active role than they have been accustomed to. On this point, Katherina Palmgren, in her report exploring the use of ODR in Victoria (p. 7), noted below the faint distinction between providing legal information and legal advice. The latter is, of course, deemed more objectionable, but the courts may inadvertently provide legal advice when giving customised problem diagnosis.

One of the main concerns in relation to the online court is the provision of ‘legal information’ by the court to the court user during the exploration stage of the online process. This is a new and foreign concept to the courts which gives rise to the question: what is the distinction between ‘legal information’ and ‘legal advice’? Is this a blurry line that ought not be walked by the courts? Some say yes, but many say no. Take for example registry staff, they walk this line every day and do not necessarily think it is a difficult one. Simply put, when you provide information that is general and factual in nature such as the applicable legal principles on a subject matter, that is legal information and educational in nature. When you provide information that is tailored to the particular facts of a case, that is legal advice. Common concerns raised in relation to the provision of legal information during the exploration stage are: what if the information provided at the exploration stage is incorrect? What if there is a loophole in the legislation that a lawyer could have advised on?

We also need to ask the related question of whether the playing field should be levelled in all cases involving informational asymmetry. Will the courts being seen as assisting one party more than the other? This question may not be an acute concern in claims involving self-represented disputants. However, this tension warrants serious consideration once the ODR system is extended to other types of legal claims where lawyers are involved and there is the resulting expectation of more limited court intervention in levelling the uneven playing field. When lawyers are allowed to participate in the ODR system, it is arguable that the parties expect an inherently unequal playing field owing to the differing levels of legal assistance. In such circumstances, the courts’ efforts to level the playing field could be perceived as unwelcome interference. This issue has yet to arise in systems such as the CRT, where parties are not allowed to have legal representation. Nonetheless, as court ODR expands its scope, it is very likely to be used in more complex and higher value claims in which lawyers cannot realistically be excluded. The courts therefore need to discern when its proactive intervention through educating the parties will be perceived as compromising its even-handedness.

Looking ahead, it is not inconceivable for future court ODR systems to provide the disputants not only with legal information, but also assisted decision-making or negotiation tools. These tools could be used at the negotiation and facilitation stages to enable court users to understand the merits of their case more accurately, or to arrive at negotiated agreements that maximises value. These tools are currently available outside the court context. If incorporated into a court ODR system, they will empower disputants to make well-informed decisions. Again, there could be an impact on the courts’ perceived impartiality. Will the suggestions of these tools be seen as being endorsed by the courts? What if a disputant takes issue with the input of these tools, arguing that he or she was misled to arrive at a settlement? Also, will the disputants be assured that the tools provided by the ODR system is giving equal assistance and support to each person?

Implications for Court ODR

There are many practical implications arising from the above questions. To avoid the perception of partiality, the courts could take practical steps to dissociate themselves from the provider of the legal information. For instance, they could collaborate with external agencies so that the resources provided are not attributed to the courts. In this respect, Utah’s system provides access to licensed paralegal practitioners that are not employed by the courts. During the pilot of the small claims project, the facilitators were volunteers who did not represent the courts or either of the parties. The perception of even-handedness could also have a discernible impact on the design of the online self-diagnosis tools. Although the system provides individualised and customised triage, it could simultaneously assure users that all parties in the dispute are provided with the same information and tools. The courts also have to carefully consider whether the ODR system should incorporate decision-making or negotiation support tools in the future.

The enduring relevance of ethical principles

Dispute resolution is slowly but surely evolving in the private and court contexts, bringing about exciting possibilities by breaking down conventional boundaries between modes of dispute resolution, and introducing algorithmic support tools and information. This post seeks to encourage a deeper consideration of how dispute resolution ethical principles will remain relevant in a rapidly changing environment. Some of the “old” ethical conundrums have to be confronted in order to develop systems that are grounded on clear goals and values. Despite swift changes in dispute resolution, the foundational ethical principles have enduring value for the future. Will we draw from our past lessons to guide us in the future development of dispute resolution? Do share your views on what other “old” ethical issues could resurface in the ODR environment.

Can Judges Mediate? CASE NOTE: Wardman v Macquarie Bank

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[Free Image by Augusto Ordonez, Pixabay]

On 10 April 2019, Judge Dowdy of the Federal Circuit Court published his reasons for refusing to make a consent order that an employment law matter be referred to mediation by a Judge.

The parties in Wardman & Ors v Macquarie Bank Ltd [2019] FCCA 939 applied for consent orders to resolve some procedural matters and refer the substantive dispute to mediation by a Judge, pursuant to s 34 of the Federal Circuit Court Act 1999 (Cth) and rule 45.13B of the Federal Circuit Court of Australia Rules 2001 (Cth). Rule 45.13B(2)(a) explicitly anticipates that an order referring a proceeding to mediation may order that the mediator appointed be a Judge:

…(2) The mediator for the mediation must be: (a) a Judge; or…

Nonetheless, Dowdy J contacted the parties informing them that he believed he should not make an order that a Judge act as a mediator. Instead, he made an order for a Registrar to act as mediator. His Honour’s reasoning for his refusal to appoint a Judge as mediator can be summarised by the following 3 propositions:

  1. Mediators and Judges perform distinct roles
  2. Acting as a mediator is incompatible with the Constitutional role of a Judge (and Rule 45.13B(2)(a) is invalid)*
  3. Judges are not qualified to act as mediators

1. Mediators and Judges perform distinct roles

Source of authority

  • The Constitutional power to mediate is the Conciliation power in s 51(xxxv).
  • A Judge exercises judicial power under s 71 of the Constitution.

Facilitation of consensus v determination of dispute

  • Mediators aim to resolve disputes by consensus.
  • Judicial power is an elusive concept, but at its core is the power to decide controversies (ie, to determine the outcome of disputes).

Context of decision-making

  • Mediation is typically private, confidential, informal and non-adversarial.
  • Judicial power must be administered in public and reasoning must be published. The judicial process is primarily adversarial.

2. Acting as a mediator is incompatible with the Constitutional role of a Judge

Judicial power must be exercised according to judicial process

  • Judicial process requires (with limited exceptions) open and public inquiry, application of rules of natural justice, identification of law and facts, and application of law and facts to decide the outcome (see Grollo v Palmer).
  • Mediators meet in private, sometimes with only one party at a time, do not decide facts or law, do not make decisions, mediated decisions are not required to be made according to legal principles, and neither reasons nor decisions are published.

Judges cannot perform functions incompatible with judicial power

  • Judges cannot exercise non-judicial functions that would prejudice their capacity to discharge effectively the judicial powers of the Commonwealth
  • Rule 45.13B should be read to preclude a Judge who has presided over a mediation from subsequently hearing or determining the case.

[31] If I had acted as a mediator in this case as requested by the parties I would have sterilised and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as a mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as a Judge to hear and determine a matter which in the regular course had be docketed to me by the registry of the Court.

Courts and Judges cannot and do not provide advisory opinions

  • Judge Dowdy referred to Plaintiff M68/2015 v Minister for Immigration and Border Protection as authority for the proposition that Chapter III Courts and Judges cannot provide advisory opinions.
  • Mediators in court-connected mediations “invariably” provide advisory opinions.

[32]…parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.

Mediation is not a traditional function of courts

  • Some functions other than the adjudication of rights were traditionally exercised by courts and therefore fell within the concept of judicial power contemplated by the authors of the Constitution. For example, administration of trust assets, winding up companies, maintenance and guardianship of infants, grants of probate, and making of rules of court.
  • The process of mediation cannot be accepted to have been a traditional or historical feature of the powers exercised by courts.

Mediation functions are distinct from judicial power

  • This proposition was confirmed by the Boilermakers case – a power to prevent and settle disputes by conciliation and arbitration is completely outside the realm of judicial power.
  • Although mediators and Judges both practise fairness, patience, courtesy and procedural fairness, only a Judge determines a justiciable issue.
  • Because the power to mediate falls outside judicial power, Dowdy J concluded that:

[38]…neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator

  • While Courts and Judges regularly encourage settlement and adjourn hearings to allow settlement negotiations to occur, it is not considered appropriate for Judges to participate in those negotiations themselves.
  • There is no inherent connection between mediation, conciliation and legal proceedings, as not all mediators are legally trained and not all mediations occur in connection with litigation.
  • Mediation is not incidental to the exercise of judicial power.

3. Judges are not qualified to act as mediators

  • Mediation is a craft that requires specific education and training, as well as accreditation and ongoing professional development.
  • Eminence, judicial ability and legal knowledge and experience do not necessarily equip Judges to act as a mediator.
  • Judicial Registrars of the Federal Circuit Court are trained and accredited mediators.
  • There are thousands of appropriately qualified and accredited mediators who could conduct private mediation at an affordable cost.
  • It is inappropriate to appoint a Judge to mediate a case merely to access the authority of the Judge to induce or extract a settlement.
  • Judges should give exclusive primacy to their judicial role rather than acting as a mediator in cases before the Court.
  • Judges have busy dockets and it is unjustifiable to take time out of the activity of judging in order to act as a mediator.
  • Judges should not risk being called as witnesses about what happened in private mediations.
  • If a Judge acting as a mediator gave an evaluation of the legal case, and a Judge acting as a Judge subsequently decided differently, the standing of Courts and Judges would be diminished.

Comment

This judgment provides some very interesting insights about court-connected dispute resolution practice. Dowdy J has lived experience as a senior legal practitioner with many years’ participation in court-connected mediation and some of his reasoning is based upon that personal knowledge. In paragraph [32] quoted above,  His Honour claimed that mediating parties, particularly weaker or more vulnerable parties, invariably expect the mediator to express views about both the likely outcome of litigation and whether or not a proposed settlement is reasonable. His Honour continued:

[33] It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morning QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.

His Honour returned to his strong view about what litigating parties expect from a mediator:

[55]…by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.

The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes. The question of whether or not litigating parties expect this style of mediation (a) because it is what they have experienced before, or (b) because it is their preference over other styles, is also worthy of interrogation. Should facilitative mediators market their services from a point of difference, instead of assuming that facilitation is understood by prospective clients as the “standard” form of mediation?

The equating of mediation with conciliation in the judgment was the means by which His Honour located the mediation function within the Constitutional powers. The definition of mediation is hotly disputed within the dispute resolution community (as is whether Dispute Resolution is preferable to Alternative Dispute Resolution). However, this judgment raises again the question of whether or not court-connected dispute resolution of the character described and expected should more appropriately be called “conciliation”, in order for it to be distinguished from other kinds of dispute resolution practice.

There is great potential for the private mediation sector to provide affordable dispute resolution services to litigants. Judge Dowdy identified many problems with using Judges to mediate, when there is a surplus of appropriately qualified and accredited practitioners available to assist parties navigate a path to settlement. What creative ways can the mediation profession use to attract the respect and legitimacy that parties are seeking when they prefer senior legal minds to act as mediators of their disputes?

*Note: The decision specifically relates to Judges who exercise the judicial power of the Commonwealth of Australia. The Commonwealth Constitution mandates separation of judicial power and the Commonwealth legislature cannot confer non-judicial functions on Judges except those that are incidental to their judicial function (see Boilermaker‘s case). The situation is different in state jurisdictions (see Kable and Momcilovic cases).

Engaging family mediation clients for the long term in our new family law system

By Becky Batagol and Genevieve Grant, Monash University

This is a version of the paper we Presented at the National Mediation Conference Canberra, April 2019

This post comes out of a research collaboration between researchers at Monash University and mediation and family services provider, Better Place Australia. We believe this project showcases good practice in industry and academic collaboration.

It arises out of a research project investigating the outcomes and experiences of Family Dispute Resolution (FDR) clients whose last contact with Better Place Australia was 2.5-3 years previously. The project is funded by Better Place Australia, a leading provider of family and relationship services in Victoria who were seeking insight into client experience and outcomes to inform provision of best practice and evidence-based services.

The project is being conducted by our team of researchers from the Faculty of Law at Monash University, Monash Sustainable Development Institute and the Australian Centre for Justice Innovation at Monash.

This post focuses on the difficulty of obtaining long-term data on clients experience after they have left FDR and the importance of collecting such data. We are currently collecting data for this project. The data we have obtained so far is limited.

We contextualise our experiences collecting data from clients who are long finished FDR in terms of the recent Australian Law Reform Commission (ALRC) report, Family Law for the Future — An Inquiry into the Family Law System April 2019. This report, the first-ever whole of system review of family law in Australia’s, proposes an enhanced and better integrated role for FDR service providers and Family Relationship Centres. Such a role, we argue, requires service providers to collect data on the long-terms experiences of their clients.

We ask for readers’ comments at the end of this post about how you have engaged with past clients, especially those long-term clients and what you do with the data collected.

crystal ball

Image: Marco Verch, Blick auf einen See, CC BY 2.0

New Roles for FDR Providers in the Family Law System

In April 2019 the ALRC’s wholesale review of the family law system was released. For family law support service providers such as those running Family Relationship Centres (FRCs) and providing FDR services, the ALRC found that an increasingly complex client group requires new roles for service providers. In particular, two recommendations are most relevant here:

Recommendation 59: Family Relationship Centres should be expanded to provide case management to clients with complex needs who are engaged with the family law system.

This is an enhanced role for FRCs. The ALRC agreed with the Family Law Council that there are increasing numbers of clients seen at FRCs and in FDR services with complex needs. In 2016 the Family Law Council, in response, recommended introducing case management (recommendation 7) to better support the growing numbers of clients with complex needs seeking assistance from out-of-court family law services.

The ALRC noted that FRC work had gravitated towards FDR service provision. To an extent, this recommendation returns to the original 2006 idea of FRCs as gateways to a range of family law and other services as needed by separating families. It also echoes the Whitlam area idea of the Family Court as a helping court which would assist families experiencing breakdown with both legal and social services.

The ALRC (para 16.34) argued that “introducing case managers to FRCs would ensure that clients with complex needs receive supported referrals to relevant services identified throughout this inquiry that sit outside the family law system.”

Recommendation 60: The Australian Government should work with Family Relationship Centres to develop services, including:

  • financial counselling services;
  • mediation in property matters;
  • legal advice and Legally Assisted Dispute Resolution services; and
  • Children’s Contact Services.

This recommendation demands a more integrated role for FRCs and FDR service providers. It recommends that FRCs provide a broader range of co-located or integrated services as a one-stop to better meet the needs of families experiencing relationship breakdown. We note that some FRCs already provide a comprehensive range of services such as financial counselling, legal advice and children’s contact services.

Such case management would also include referrals to and connections with state services such as family violence and child protection services. One option for FRC service provision is that FRCs also tender for state-funded services such as family violence, housing and drug and alcohol services. This would enable service providers to paper over the jurisdictional cracks in the Australian family law system.

 

Better information on the long-term pathways and needs of FDR clients

A more integrated and intensive role for FRCs and FDR service providers requires better information on the long-term pathways and needs of FDR clients. Service providers will need to understand and respond to the needs of their clients as they move through the family law system and as family needs change over time. This will require data and engagement with clients over the long term.

While we have some big picture long-term data on family law service system use provided by the Australian Institute of Family Studies, we do not have service and location-specific information for FDR providers on the long-term paths of clients in the family law system.

 

Long-Term Studies of FDR/ Family Mediation

There is limited longitudinal research into FDR/family mediation, especially in Australia. Work in the US in the early days of divorce mediation showed promising long term outcomes for mediation compared with litigation for child custody disputes.

Pearson and Thoennes (1984) conducted an ‘experimental’ longitudinal study where participants were randomly allocated to a mediation or litigation stream to address their child custody and visitation disputes. The researchers followed up with participants three months after they obtained their final orders and about 6.9 months later (approximately 9 months after final orders). Pearson and Thoennes (1984: 510) found a that the long-term picture for mediation clients depended on whether they had reached agreement in mediation. The researchers argue that the data shows that mediation doesn’t work for everyone and that its benefits are not equally shared (Pearson & Thoennes 1984: 516-7). They state “the benefits claimed for the process seem more accurately to characterise only those who are successful in reaching agreements, rather than all who try.” (510)

Another early US study adopted a very long timeframe in its longitudinal approach to considering the benefits of family mediation (Dillon and Emery, 1996). The study involved a phone survey with participants with disputes over child custody, visitation or child support about nine years after the dispute was first brought to court. 55% of the sample could not be reached by phone (using phone numbers of themselves or family or friends) provided 9 years earlier. 14% of those contacted for follow up said that they did not want to participate in the research because they wanted to forget he painful memories of divorce or lack of time and interest.

Dillon and Emery (1996: 139-40) found that over 9 years, mediation was associated with increased visitation by children with non-custodial parents, better inter-parental communication and more involvement by non-custodial parents in decision-making. However, the 48% attrition rate in this study affects the reliability of their findings. The researchers conclude that more long-term studies of mediation and litigation samples are necessary before conclusions can be reached about the long-term effects of mediation (Dillon & Emery: 1996 : 140).

More recently in Australia, Carson, Fehlberg and Millward (2013) conducted a 3-year qualitative longitudinal study of 60 separated parents who had used FDR. The methodology employed was robust, as it contacted the same separated parents annually for three years after service provision. Remarkably low attrition rate (just 4 left the study in 3 years) because the researchers stayed in contact with respondents annually They found that where both parents were cooperative and able to negotiate, participants who accessed FDR or family law.

Carson, Fehlberg and Millward (2013) found that services where more likely to describe positive experiences and outcomes and satisfaction with the quality of the FDR services they received. However, an uncooperative, controlling and/or violent partner/ex-partner, a hostile post-separation relationship and an absence of the ability to negotiate and compromise, characterised cases where parents were dissatisfied with both the process and post-separation outcomes.

 

Our Current Experiences Collecting Long Term Data

With Better Place Australia, we have designed a study to investigate the longer-term outcomes of FDR service use following their engagement with Better Place. Our study is a retrospective cohort study with a longitudinal element, meaning that we are studying cohorts of FDR users over time to determine the impact of particular variables on FDR outcomes. We did not follow FDR clients throughout the time since mediation. ‘Longer term’ is defined as 2.5-3 years following last engagement with Better Place. In many cases this may be as long as 4 years since mediation took place. This is a significantly longer period than most long-term studies which tend to focus on mediation clients 12 months after mediation.

Although it is early days for our study, we have had a challengingly low response rate from clients 2.5-3 years since they finished at the service. The service provider emailed out an individually addressed request for participation to the 843 clients who were part of the 6 month cohort we were targeting. We requested completion of a 30 minute survey and invited interested people to sign up for an hour-long telephone interview. A reminder email was sent out. Phone call follow-up for bounced emails. The service provider called every person in the cohort whose email address bounced back (n=40) requesting participation.

Approximately 3 weeks later we had just 25 survey respondents, of which 16 are useful (9 further people commenced but did not provide usable data or are in progress) and six telephone interviews completed. This is a challengingly low response rate ~3% if counting all attempts at completing survey.

We are confident we will achieve a satisfactory response rate for this project. We plan to change the study cohort and involve participants who were more recent clients of Better Place Australia. We may use several other techniques to encourage participation and may supplement the data obtained with targeted focus groups.

 

How do we Engage with FDR Clients Over the Long Term?

There is an imperative upon FDR service providers to understand client need over the long term in any reformed family law system. This information will need to be specific to the particular client cohort seen by each FDR service provider. National large-scale longitudinal studies are less useful for this task than client and location-specific data.

Our experience collecting long-term data raises real questions about the ability of FDR service providers to engage with former clients over the long term. In our case, we attempted to recruit clients who had not been contacted by the service provider for about 2.5-3 years. Clearly this was too long.

The most successful longitudinal study of FDR, Carson, Fehlberg and Millward (2013), recruited participants while they were still engaged with the service provider and maintained annual contact throughout the three-year study period. Our funding did not permit such a methodology.

A key lesson from our experience is that service providers who wish to understand long-term client experience after FDR should maintain regular contact with former clients in ways that genuinely engages and assist clients. This is a costly exercise. Better Place plan to introduce a 3-6 month follow up survey for all former clients sent out via text message. This will be an additional cost upon the service provider, but the team expect a higher response rate as it will be less like junk email (especially for financial counselling clients).

The recommendations of the Australian Law Reform Commission for FRCs to adopt more integrated and intensive roles within the family law system requires long term data on specific client experiences and need. Accompanying any government contracts for new roles for FRC consortia should come funding specifically for long-term engagement with clients.

For family law clients, their journey through the formal system represents just a small part of the messiness of family breakdown. Funding for engagement with FDR clients over the long-term is a sound investment if we are to truly meet understand and meet the needs of separated families.

 

Your Thoughts?

We are keen for your thoughts. For those of you who are FDR providers or researchers in the field, how have you engaged with or recruited past clients, especially those long-term clients and what you do with the data you collect?

To help get you thinking, here is the final slide of our National Mediation Conference presentation, co-written with the Better Place Australia team, which stimulated a great deal of discussion at our presentation.\

BPA slides 20-19

Please comment below! We’d love to hear from you!

 

We are very grateful to Better Place Australia CEO Serge Sardo and the whole team there who have been such engaged and active partners in establishing, designing and recruiting participants for this research project. We are especially grateful to Graeme Westaway and Jenni Dickson from Better Place who helped prepare this National Mediation Conference presentation.

Court Managed Expert Evidence – Using ADR techniques to enhance the integrity and utility of expert evidence in the Land Court

Fleur Kingham

Fleur Kingham – President Land Court of Queensland

The National Mediation Conference 2019 continues to provide rich material for learning and reflection some weeks after the it concluded. This blogpost from Fleur Kingham, President, Land Court of Queensland provides a great taste of the challenging and thought-provoking session she delivered.

What has ADR got to do with expert evidence?

In the Land Court of Queensland, ADR objectives, skills and techniques are at the heart of its procedure for managing the pre-trial preparation of expert evidence.
With the aspiration of enhancing the integrity and utility of expert evidence, the President of the Land Court adopted Practice Direction 3 of 2018, supplemented by the Guidelines for Expert Evidence.
The procedure for Court Managed Expert Evidence, or CMEE for short, brings together two very familiar processes in civil litigation – active case management and meetings and joint reports by the experts. The innovation lies in how those processes are connected, located within a without prejudice framework and supervised by a convenor, who is either a member or the Judicial Registrar of the Court.
The impetus for this procedure is twofold – the importance of expert evidence to its cases and enduring concerns about the quality of expert evidence led before the Court.
Expert evidence is central to the resolution of most matters that come before the Land Court. It is a specialist court with jurisdiction to hear disputes about the terms of access to and compensation for use of land for mining and other resource developments, compensation for the compulsory acquisition of land, cultural heritage disputes and appeals about land valuations. Expert evidence is involved in nearly all cases and, in some, the only issues in dispute involve expert evidence.
The Court has the same concerns that have motivated courts and tribunals to become increasingly interventionist in the management of expert evidence. Those concerns include bias (conscious or unconscious), the complexity of the information, the incomprehensibility of technical reports, and the risk of competing expert reports passing like ships in the night.
The CMEE Convenor’s role is procedural, facilitative, neutral, and expert. The CMEE Convenor cannot decide any substantive matter and cannot make directions without the parties’ consent. They facilitate communications about pre-trial preparation of expert evidence and seek to build consensus between the parties and their lawyers about the necessary steps. It is expert in the sense that the CMEE Convenor is an expert in the Land Court’s procedure and has content expertise in the Court’s jurisdiction. It is not evaluative, except to the extent that suggestions about process might involve the Convenor applying their expertise to help the parties move through process stalemates.
The objectives of the CMEE process are familiar to an ADR practitioner:
• To resolve, reduce and manage disagreements to a minimum; and
• To prepare for either mediation or more focussed preparation for the trial with reduced issues.
The Convenor uses the ADR skills of convening, facilitating, and managing disputes. The CMEE Convenor assists the experts during their meeting process to understand their role and the Court’s expectations. They facilitate the experts’ discussions and preparation of their joint expert report. In Queensland, once the experts start their meeting, they must proceed without further instruction from the lawyer/party who engaged them. This can create a dilemma if the experts need further instruction or information or need more time to complete their work. The CMEE Convenor can facilitate communications with the lawyers as a group. This ensures the confidentiality of the expert evidence process is not a barrier to meaningful communication and further instruction (without inappropriate influence) where required.
The CMEE Convenor also facilitates communications between the experts and the lawyers/parties and the Court. The CMEE Convenor will identify when something needs to be taken from the expert meeting to the lawyers for direction. The CMEE Convenor will also ensure that any matter that needs to be resolved on the record can be brought back to the member managing the case.
ADR techniques are central to the work of the CMEE Convenor: to clarify, find common ground and to explore solutions. The CMEE Convenor does not mediate a resolution between the experts. They use constructive controversy to encourage deliberative discussions aimed at creative problem solving. The CMEE Convenor ensures the experts address the same issue, with reference to the same material and that, if they differ, it is clear why they differ and to what extent. Many differences between experts, at the end of the day, prove to be immaterial to their ultimate opinion. The CMEE Convenor encourages the experts to identify what differences between them are material to the outcome of their opinion.
The CMEE process is relatively new. An international team of ADR academics will evaluate it in due course. To date, CMEE appears to be well received by the parties/lawyers and their experts. The President considers it has resulted in more focussed preparation of better quality expert evidence.

Can Poetry teach us about Mediation?

NMC2019One of the best features of the national Mediation Conference 2019, with 7 separate streams jam-packed with sessions, was the extraordinary variety of themes and presenters.
Days after the conference has ended I am still revisiting the ideas that were shared and the challenges to my view of what ADR is and might be.

BrysonIt is probably unsurprising that David Bryson, a colleague with qualifications in Politics, History, Psychology, Social Anthropology and Organisational Change signaled his intention to present us with a decidedly different conference session.
He described his surprise when the NMC organising committee accepted the idea he had proposed (somewhat provocatively) for this session – and his subsequent challenge to deliver something that until then had been just a playful idea.
Session participants, were surprised also – but certainly not disappointed.

Bryson bookA published poet himself, David delivered a session on ‘ADR Lessons from the Art of Poetry’ (subtitled (Poetry Lessons from the art of ADR).
His idea was that in some ways ADR and poetry share the same space although they have different frames.
He used the example of how poetry and ADR both rely heavily on words and on navigating meaning through the use of metaphor, with poetry adding the influence of imagination.
He used the language of ‘encode’ (from the deliverer) and ‘decode’ (from the receiver) to explore the intention/reception dynamic which is often a significant element in a mediation process. He engaged us further by sharing some lines of poetry which invited the audience to explore the intricacies of language.
Bryson used the unexpected concept of ‘sweet and correct formality’ to continue his exploration of concepts linking poetry and mediation.

New language for mediators
He developed this idea through his notion of ‘the ‘thoughtful machinery’ of poetry, giving us:
• Structure of lines
• Rhythmic energy and
• Repetitive sounds
He demonstrated how we can also find the ‘sweet and correct formalities of mediation’ where:
• Words are channeled in form and purpose in process
• Language is directed into negotiation elements
• Interpretations [need to be] filtered for heuristics and mind tricks and
• Social dynamics of conflict [can be explored]
We were certainly being engaged in a very different but compelling frame in which (using unexpected analyses) Bryson described mediation and poetry as sharing the common elements of:
• Multi-level meanings
• Emotional drop, below the surface
• Images of truth about humans enlivened to take greater weight; especially by the use of metaphors.

Learning from poetry
Using extracts from a series of poems, Bryson encouraged us to explore these elements – an analytical framework quite different from more conventional analytical frameworks that we are accustomed to bring into mediations with us.
Continuing his theme of comparisons he gave 3 further examples:
Multi- level meanings (using poetry to encourage our exploration of a range of possible meanings)
The emotional drop (through naming and listening)
The use of metaphors
This example was the most powerful – exploring, through the language of poetry, how mediators change the frame by changing the metaphor. A memorable example was changing the metaphors of conflict from war or entrapment (such as armed with the facts; between a rock and a hard place) to journeying and collaboration (such as first steps towards an agreement; where do we go from here?).
Bryson finished by encouraging us to think about becoming poet mediators. A big challenge and one that seemed to be taken up very energetically at the Poetry Slam – a very unexpected highlight and hotly contested highlight of the Conference Dinner.

ADR Research discussed at the NMC 2019 PhD Session

The PhD Session at the just concluded National Mediation Conference featured John Woodward, Joe Harman, Joanne Clarke and Jackie Weinberg discussing their PhD research topics. The discussion was interesting and stimulating and each research topic makes a positive contribution to Alternative Dispute Resolution (ADR) theory and/or practice.

phd-session-pic.jpg

Judge Joe Harman discussed his research which explores the nature of mediation confidentiality and the interaction of mediation confidentiality with family violence. So far, two papers have been published on the origins of mediation confidentiality and attitudes of mediators and others towards mediation confidentiality. The first, titled ‘Mediation Confidentiality: Origins, Application and Exceptions & Practical Implications’ is published in the Australian Dispute Resolution Journal, and the second titled, ‘An Imperfect Protection: The Attitudes of FDRPs to Mediation Confidentiality’ is published in the Bond Law Review. Forthcoming papers include on whether mediation should be the first step in all family law proceedings, and on the intersection of family dispute resolution and family violence.

Dr John Woodward’s PhD, now concluded, adopted a qualitative methodology to explore the relationship between confidentiality and disputant participation in facilitative mediation occurring in the shadow of the law where disputants are represented by lawyers. A prominent theme which emerged from the research was lawyer perceptions that disputant participation risks compromising the legal case or “giving away” confidential information which may be misused in the hands of an opponent. This perception is based on the uncertainty around the nature of mediation confidentiality and the extent of its protection. As such, disputant participation is limited. The research concludes that there is a need to do more to clarify the meaning of confidentiality so that disputants may reap the full benefits of the mediation process.

Jackie Weinberg’s PhD is studying ADR in Clinical Legal Education (CLE). The research explores whether ADR should be taught in various legal clinics across Australia; what aspects of ADR should be taught to students; why it might be valuable to teach ADR to clinical students; and in what ways teaching of ADR in the clinical context can be enhanced. Data has been collected using semi-structured interviews and observation of interaction between clinic supervisors and students. The research outcomes include theoretical insights into ADR teaching in CLE, new knowledge on ADR skills acquisition in CLE, empirical insights into how the role and impact of ADR in clinical legal education settings can be measured and recommendations pertaining to the teaching of ADR in Australian clinical legal education.

Finally, Joanne Clarke’s research explores the discourse of conflict resolution in western liberal tradition which positions ‘competing interests’ or ‘communication difficulties’ between individuals as the origins of family conflict notwithstanding that conflict is complex and contextual. Western liberal tradition’s dominant response to conflict is to apply a rational problem-solving model of conflict resolution and this has tended to ignore the complexities of people’s lives and promoted simplistic ways of viewing conflict and related concepts such as power and identity. In contrast, post-structural ideas offer a more complex understanding of conflict in the proposing of multiple realities that are culturally and historically created and challenge the idea of a universal truth. Most importantly, these theories identify the links between knowledge, language and power, highlighting how dominant discourses create conflict through privileging reality and meaning. This makes it essential for FDR practitioners to be aware of the broader social/structural origins of conflict and more importantly because many FDR matters involve family violence.

The Australian Dispute Resolution Research Network’s (ADRRN) Roundtable coming up 9-10 December 2019 provides another opportunity for ADR researchers including PhD students to discuss their research. The Call for Papers may be viewed here.