Piloting ODR Simulation Assessment For Law Students: A Case Study Using Modria Software At Victoria University

This post has adopted from a presentation given at the Civil Justice Forum 2018 hosted by RMIT by Nussen Ainsworth, Professor John Zeleznikow and Colin Rule.


colin rule

(Photo: Colin Rule skyping from California USA into the ADR lecture in Melbourne Australia.)


In 2017 the Alternative Dispute Resolution unit at the Victoria University Law School partnered with Tyler technologies (formally Modria) to integrate Online Dispute Resolution into the unit as a key form of assessment. The Tyler/Modria platform used in the pilot is the one being used in the USA and other countries for court/government/commercial purposes (https://www.tylertech.com/solutions-products/modria). It has not been designed for student assessment

All students were required to participate in an ODR simulation in groups of 3 and primarily provide legal advice re the content of the simulation together with a written report. This blog post will discuss the process of developing an ODR simulation and integrating it into the law degree curriculum.  We will also consider assessing student performance. This post will also outline some of the opportunities and challenges for teaching ODR that were identified in conducting the pilot and also provides ODR insights from law students taking the course.

ODR Development

Online Dispute Resolution (ODR) is a concept developed circa 1996. At that time the focus was upon the resolution of disputes that originated online.  The prevailing belief was that those whose disputes that originated on the internet would find little difficulty in attempting to resolve these disputes via the World Wide Web. For most of the past twenty years, ODR research has focused upon electronic commerce disputes. Only recently, has ODR focused upon non-financial disputes and disputes that do not originate online.

Access to Justice Review (VIC, 2016) Recommendation 5.2

The Access to Justice report was commissioned by the Victorian Government in October 2015. The aim of the review was to improve access to justice for Victorians. The review was released in October 2016 with 60 recommendations.

Recommendation 5.2 was for the development of an online system for the resolution for small civil claims at VCAT. The Government agreed to implement this recommendation in May 2017.  The review recommends the following three-step process for introducing ODR into the Victorian Civil Justice System.

Step 1. establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;

Step 2. provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and

Step 3. introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.

The British Columbia Civil Resolution Tribunal (https://civilresolutionbc.ca/)  acts in a similar manner.

ODR, Artificial Intelligence And Self Represented Litigants

Zeleznikow has examined the issue as to whether potential litigants can receive useful support from intelligent online dispute resolutions[1]. He claimed that such systems can be particularly useful for self-represented litigants. The SRLs benefit not only from obtaining useful advice, but also becoming better educated about the procedures and potential outcomes for issues in dispute. He noted that most ODR systems provide exactly one of either BATNA advice, support for trade-offs and facilitated communication. A truly useful Online Dispute Resolution system should be a hybrid of all three approaches. Further, Online Dispute Resolution should not be fully automated. As well as providing opportunities for communication, such systems should advise users of the relevant law, potential solutions and relevant trade-offs. These tools might be videos, relevant papers and books, past cases and links to useful websites. They can also be very useful in triaging disputes (e.g. immediately sending a case of domestic violence to court rather than allowing the parties to prolong physically acrimonious disputes) and act as a source of information collection (there is no need to expend a court official’s time recording demographic data).

The ADR Unit At VU

The ADR unit at VU College of Law and Justice was first delivered in 2015. The unit is a popular elective with approximately 120-140 students enrolled each year. Through a Technology Enhanced Learning Grant, a series of videos were developed which followed a case through mediation and arbitration. The videos are posted on YouTube (https://youtu.be/J2KLXAKfIL8). The unit received a blended learning grant in 2017. This grant was used to develop the ODR simulation component for the unit.

Unit Assessments

The unit has four assessments. Assessments 2-4 are group based.

  1. Online multiple choice questions
  2. ODR simulation and report
  3. Letter of advice post the ADR process with the production of either a mediation deed of settlement or an arbitration award
  4. Group presentation

ODR Added Benefits for Students

ODR has primarily been seen as the provision of ADR via technology. ODR integration into the ADR curriculum has the potential to offer many benefits for students. The ODR component requires students to develop their technological literacy. It also offers greater time and access flexibility for students.

Student Insights from the Integration of ODR in the ADR Unit

The following insights were adapted from observations, class discussion and student submissions in the ADR unit.

The Benefits of ODR

There are a number of benefits offered by the use of ODR where the parties use a text-based platform as compared to traditional mediation.

The benefits include:

  • Everything is typed so there is no need to repeat what was said or take notes
  • It can be more cost-effective; there is no requirement for travel, room hire or paper.
  • Parties participate remotely which can address safety concerns and allow for a more comfortable environment.
  • Less confrontational or emotional
  • Keeps parties more focused on the issues

Limitation of ODR

The text-based ODR process comes with a number of limitations as compared to the traditional mediation process:

  • The process is impersonal
  • It can be hard for the parties to express empathy
  • There is a greater likelihood of the parties becoming keyboard warriors
  • Lack of non-verbal communication
  • The parties require competency in digital literacy e.g. typing speed
  • Asynchronous text communication can have delays between messages
  • There can technical difficulties with both the hardware and software
  • Parties can easily type messages in the wrong room
  • The mediator has less control
  • There needs to be confidentiality compliance with the typed record
  • The process creates added complexity for non-English speakers

How can ODR be improved

A number of the limitation and issues with ODR can be addressed through:

  • Intake session with the mediator to build rapport
  • Introduction to the ODR video
  • An ODR guide for parties that covers:
    • Etiquette
    • Online communication
    • Process
  • Use of video chat in mediation
  • Able to view joint and private rooms simultaneously
  • Alerts for new messages
  • ‘typing…’ icon when the other party is typing
  • Indicator for when a message is sent, delivered and read
  • Mobile device compatibility
  • Mediator termination option

Opportunities and challenges for ODR in law school curriculum

Following the introduction of the ODR simulation integration pilot in a law school ADR unit, it is clear that this is an exciting area which has a number of opportunities and challenges to consider as it is further developed and delivered.

  • Group work based assessment has a number of challenges and this is no different in an ODR context.
  • ODR is an innovative and new area to which students are being exposed. This requires expectations to be managed.
  • For the pilot, we used one fact scenario for all the groups. There is an opportunity for students to develop their own fact scenario for their group to use in the ODR simulation.
  • The ODR simulation will be limited by the platform being used. The platform used in the pilot was not designed for student assessment. There was no ability to export the content of the simulation for assessment submission. For the pilot, students were required to copy the text from the platform and paste it into a word document which was then submitted. This a clunky and inefficient process.


With the exponential increasing use of technology in education, government, commerce and courts there is an urgent need for students to be aware of new technological trends.  Whilst the use of ODR in legal practice is still very limited, there is wide acceptance that this will no longer be the case in the coming decade.  Hence, as legal education leaders, we need to train our students in the potential and use of ODR.

But as well as training legal students for future practice, the course has benefits for teaching students about ADR.  It allows students to watch and most importantly engage in ADR simulations.  This opportunity is lost in the traditional teaching of ADR.

[1] Zeleznikow, J., 2017. Can Artificial Intelligence and Online Dispute Resolution enhance efficiency and effectiveness in Courts. International Journal for Court Administration8(2).



Mentalizing-based Mediation (MBT-M) at the UWA Mediation Clinic

image002 This post has been contributed by Associate Professor Jill Howieson, University of Western Australia. 


This article asks and answers some questions about the new UWA Mediation Clinic and the theory behind the practice, education, and research that the Clinic conducts.  Jill Howieson is the Director of the Mediation Clinic and Lisha van Reyk is the Research Co-ordinator and Manager.

What are we doing in mediation at the UWA Law School?

At UWA Law School, and in the newly opened UWA Mediation Clinic, we teach, practice and research in a mentalizing-based approach to mediation (MBT-M).  The pioneers of MBT, Professors Peter Fonagy and Anthony Bateman from University College London are working with us in this endeavour and will be running the inaugural MBT-M training course at UWA in July – you can see the flyer attached.

Can you tell me a little bit more about MBT-M?

What we have noticed is that there is a wide variety of ways that mediation is practised and taught around the world and a wide roster of activities that mediators undertake.  However, there is a lack of an underpinning theory of interpersonal process to mediation.  We believe that MBT (Mentalization-based Treatment) is an underpinning theory that could provide mediators with a framework through which to understand the behaviour of parties during a mediation process.

MBT is an internationally recognised, evidence-based approach to working with people experiencing substantial conflict, distress, and relationship breakdown. It was originally developed to treat individuals experiencing personality disorder and has demonstrated subsequent efficacy in the treatment of a range of psychological and relational disturbances.  There are a range of mentalization-based treatments, including for children (MBT-C), families (MBT-F) and adolescents (MBT-A), and for chaotic multi-problem youth, AMBIT (adolescent mentalization-based integrative treatment).  These models have been developed mainly by groups associated with the Anna Freud National Centre for Children and Families, of which Professor Peter Fonagy is the CEO, and the Duchess of Cambridge is the Patron.

In MBT-M with its focus on mentalizing, the mediator can utilise interventions that facilitate and deepen the communication process. In contrast, counterproductive party behaviour can be halted and transformed by specific, indicated interventions by the mediator.  We anticipate that this can bring greater nuance and rigour to the implementation of mediation models, management of inter-party conflict, and interpretation of mediation success.

What is Mentalizing?

The mentalizing concept refers to the capacity to understand one’s own and other’s behaviour based on intentional mental states, such as feelings, thoughts, beliefs, and desires.  Intentional means it means something (Allen, Fonagy & Bateman, 2008).  It is the capacity to consider what one’s own mental states and those of others might mean and how this might influence behaviour.

Mentalizing comes from our understanding of the neuroscience and the differences between the Mentalizing System or theory of mind (ToM) system in the brain and the Mirror Neuron System.  The Mirror Neuron system is a coherent large-scale network which supports automatic action understanding and imitation.  The Mentalizing System is a smaller, less developed system but concerns regions that are all activated when we infer intentions referred to mental states.

Mentalizing is one aspect of social cognition sets us apart from other primates. It underpins our ability to deceive, cooperate and empathise, and to read others’ body language. It also enables us to accurately anticipate other people’s behaviour, almost as if we had read their minds. In a negotiation or mediation context, the research is showing that the mentalizing system needs to be activated for people to negotiate well and to make meaningful decisions.

It sounds great.  What happens when our mentalizing system isn’t activated?

When we are in conflict, or highly emotionally aroused (for whatever reasons, i.e. relationship breakdown, stress, lawyers’ behaviour, intimidation of the court etc) our mentalizing system is deactivated.  Mentalizing goes ‘offline’: our mentalizing capacity is reduced and this means that we are unable to act in a way that makes sense to ourselves and others.  It impairs our ability to make good decisions, vision realistic alternative futures or be flexible about our options and better able to consider alternative ways of resolving disputes.   This is where MBT comes in.  MBT can assist people to re-engage their mentalizing capacity or repair impaired mentalizing.  It is an integrated psychotherapeutic treatment that derives from philosophy, psychology, psychiatry, and attachment theory and utilises what is referred to as the Mentalizing Stance.

The Mentalizing Stance…?

When our mentalizing goes offline, we become alienated from understanding of self and others, rigid in our behaviours (work in automatic mode) and get stuck in our positions (as opposed to interests).  To restore and maintain our mentalizing function, we need to be encouraged to attend to the mental states in ourselves, and the mental states of others.  Practitioners can assist in this restoration by taking what is referred to as a ‘mentalizing stance’.

The mentalizing stance aims to foster a spirit of inquiry into and clarification of the person’s mental states to bring mentalizing online.  The mentalizing stance involves using the inquiry mode when asking about another’s experience and exploring the full detail of the person’s unique situation and experience, rather than assuming it follows a general pattern.  It is a non-judgmental, non-expert and entails having patience and taking the time to identify differences in perspectives and maintaining curiousity about the person’s experience.

OK, sounds relatively simple, is there more to it than this?

Yes, as well as taking a mentalizing stance, mediators need to be alert to non-mentalizing.  Of most importance is recognising psychic equivalence, pretend mode, and teleological understanding, all of which suggest that mentalizing has been lost or is impaired. Some examples that you might hear in negotiation and mediation might include: Physic equivalence (concrete mode), “There is absolutely no way that that offer is genuine.  She just wants to control me.  She does this to me all the time.” Pseudo mentalizing (pretend mode), “Oh yeah, I understand where they are coming from.  I understand that their excessive need to be right and fear of being wrong is going to lead them into making them feel insecure and that they might need to compensate for that by creating an offer that looks attractive.  I get it.” Or Teleological, “They arrived late for this mediation today because they don’t want to settle.”

At the UWA mediation clinic we will be investigating these non-mentalizing modes of behaviour and how mediators might intervene in ways that identify and shift non-mentalizing behaviour

So, back to the UWA Mediation Clinic… linking research, teaching and practice

At UWA, we teach the NMAS Facilitative Mediation course as underpinned by mentalizing theory. In this, would-be-mediators learn the basic skills involved in the facilitative model and the core principles of MBT with a focus on the mentalizing stance. As such, participants build a working model of mediation and, within this, competency both in recognising mentalizing in self/other and maintaining a curious stance. Early this year we opened the UWA Mediation Clinic to begin researching MBT-M and to develop a rigorous evidence-based approach to mediation.  In 2019, we will be introducing Clinical Legal Education for law students who will work with pro-bono mediators and act as mediation advocates for ‘real-life’ clients.  The UWA Mediation Clinic aims to provides excellence in the practice, research, and teaching of mediation.  You can read more here:  http://www.mediation.uwa.edu.au

And finally, the MBT-M training in July 2018

The MBT-M training course has been developed with Professors Bateman and Fonagy.  It aims to increase the capacity of those already working in mediation settings to understand and effectively intervene when parties are in conflict.   Attendees will learn to formulate conflict from a mentalizing perspective and to use this knowledge to engage the mentalizing capacities necessary for parties to communicate wisely. This training is relevant for those who work with cases that involve relationship breakdown (e.g., family law, workplace, and commercial disputes, etc.).  The training is open to all mediators.  You can Register at: http://www.trybooking.com/359372

My Reflections as an Observer Participate at the United Nations Commission on International Trade Law 68th Session Working Group II – Dispute Settlement Meetings United Nations Headquarters in New York Feb 5-9, 2018

 This post has been contributed by Jo Ewen[*] final year student at the College of Law and Justice, Victoria University.



My name is Jo Ewen and I am a final year student at Victoria University College of Law and Justice. I was fortunate enough to have been granted observer status at the United Nations and attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria. This is post is about that experience.

Changes in dispute settlement regimes across the globe over the previous half century were largely due to the implementation of the New York Convention ratified in 1958.[1]  Whether or not the latest convention on The Enforcement of International Commercial Settlement Agreements resulting from mediation settlement agreements which was finalised in February 2018 will have a similar impact will remain a question for quite some time.

As an observer I saw the United Nations Commission for International Trade Law (UNCITRAL) and Working Group II complete the draft convention; “United Nations Convention on International Settlement Agreements [resulting from mediation]” and a draft amended Model Law on international settlement agreements resulting from mediation in New York; “UNCITRAL Model Law on International Commercial Mediation (2002), With Amendments as adopted in 201*” and “UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements.”

UNCITRAL was established by the UN General Assembly in 1966 as the core legal body of its member nations. UNCITRAL Working Group II performs work to further the harmonization and modernization of trade laws of its members by preparing and promoting its work.   In fulfilling its functions, UNCITRAL coordinates with other law reform bodies to produce legislative instruments as texts with various foci such ason contracts for the sale of goods, transport, dispute resolution, procurement, infrastructure, development, international payments, electronic commerce and insolvency. International trade law is largely a consensus-based system that does not have an overarching sovereign to regulate the system and enforce penalties. There is currently a total of 157 country signatories.

Working Group II focuses on dispute settlement specifically, International arbitration-mediation/conciliation-settlement agreements.  At the recent New York[2] meeting and at the previous Working Group II meeting in Vienna[3] last October, I observed discussion and consultation by the delegates from over fifty nations and observers from national and international legal bodies in support of the adoption and use of UNCITRAL texts being drafted and considered. This forms part of all UNCITRAL’s work as a subsidiary of the General Assembly in modernising commercial law across international trade law frameworks.

Over five days of deliberations in New York, Working Group II discussions provided an opportunity for delegates to forward their own ideas thereby inviting the group for an inclusive compromise discussion.  The elected chair guided discussions using highly skilled diplomacy. The end product is confirmed to be finalised in July 2018.

Some discussions were on the laws governing conciliation; Important issues pertaining to the mediator/conciliator’s signature; and the necessity to work on the issue of defences.  Compromise proposals were established upon agreement to change the current perception of mediation and create alternatives to practices currently employed. Of particular note was the significant resistance found by the group during “Article 5- Grounds for refusing to grant relief’ deliberations.

There were commendations shared among the group for each other’s constructive input and stellar unseen work from the Secretariat. The week of robust debate resulted in a workable document with wide applicability.

During concluding talks, there was an expression of hope for the continuation of an open debate in the tradition of the commission and also hope expressed for continued consensus on its work on mediation mirroring the phase of international commercial arbitration.  Other proposals were made with respect to expedited arbitration and adjudication work affecting investment dispute settlement as well as proposals to look into the scope of impact under the NYC and compare it to now.

Attending this meeting has fuelled my consideration of encountered difficulties for Australian exporters.  The lingering issue is enforcement; an arbitration award or settlement agreement; What is more, are matters of compliance with signatory obligations for UNCITRAL members in this region. Whether or not doing business in these countries is done at a risk or if in doing so, at what thresholds does it become necessary for increased charged premiums to offset it? Following on, having attended these meetings as an Australian law student I’m also enthusiastic about conducting research into whether or not enforcement is a significant problem for many of Australia’s trade partners in the Asia Pacific; Particularly the Indian sub-continent, China, Vietnam, and elsewhere in South East Asia.





[*] Victoria University Honours Law student in the final academic year with an interest in the specialist area of dispute settlement. Previously completed Bachelor of Science degree at VU and worked as a technical data specialist with the Australian Department of Defence working with major defence aerospace contractors throughout Australia. In the course of my law studies, I travelled to six countries, including when studying International Business Law in Germany in 2017. In recent months, having been granted Observer status and the United Nations; Attended United Nations international trade law meetings in both UN Headquarters in New York and in Vienna, Austria.

[1] 1958 Convention on the Recognition & Enforcement of Foreign Arbitral Awards, commonly referred to as the New York Convention.

[2] 68th Session, 4-9 February 2018, New York

[3] 67th session, 2-6 October 2017, Vienna

On the passing of Frank Sander: A critical, grateful view from the Antipodes

Frank Sander, dispute resolution visionary and hero, recently died, aged 91.

I thought it would be worthwhile exploring some of Sander’s achievements and impact from an Australian civil justice perspective. In particular, I will consider the relevance of  Sander’s multi-door court house idea to Australia today.

For many years, I have been teaching Non-Adversarial Justice to undergraduate law students at Monash University. The wonderful, far-ranging discussions we have in those classes have given me the chance to reflect on the impact of Sander’s work here in Melbourne, Australia.

Sander was a professor of law and dispute resolution at Harvard University in the USA. He is associated with developing the ‘multi-door courthouse‘ idea: that a single court could triage the civil matters that came before it and provide a range of dispute resolution services (both litigious and settlement-based)  depending on what is needed in each case. A multi-door courthouse is a dispute resolution centre where a grievant, with the help of a screening officer at the court, is directed to an appropriate process or series of processes. This approach is underpinned by the view that court costs and delay are increased by ill-matched disputes and processes.

In many ways the multi-door courthouse is the civil equivalent of the criminal problem-oriented court, which aims to reduce re-offending by addressing the underlying causes of criminal behaviour.


Multi-door courthouse: right for Australia? image Credit: Dan Boss, Exit at the Acropolis Museum, Creative Commons

Sander is also credited with developing the now ubiquitous idea of fitting the forum to the fuss (that each matter should use an appropriate dispute resolution process). In Australia in 2018, this an uncontroversial goal, which, unfortunately, is still a long way from reality in the civil justice system.

To develop ideas that become pervasive and which define a field has a something to do with luck (timing, place, race, gender etc). But not every lucky person has clear thinking, vision and the ability to convince others. Sander was clearly an ideas man and we listened. The impact of his thinking on civil justice systems and court practice is significant, even in far-away places such as Australia.

Sander gave a famous speech in which he first set out his ideas on the civil justice system at the 1976 Pound conference held in St Paul, Minnesota and organised by then Chief Justice of the Supreme Court, Warren Burger. Many, including Jeffrey Stempel regard this conference as the genesis of the modern ADR and court reform movement.  Stempel argues that this conference was notable in its criticism of the litigation process, its promotion of ADR by its “all star cast” including the cream of the American court and legal establishment as well is the publishing of its proceedings in West’s Federal Rules Decisions, guaranteeing wide exposure of the conference’s pro-ADR sentiments, especially to the nation’s federal judges.  The proceedings of the Pound Conference can be found in ‘National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ (Apr. 7-9, 1976) in 70 F.R.D. 79 (1976). The 1976 conference has, of course, spawned the contemporary Global Pound conferences.

Sander’s speech was at the heart of what the conference acheived. According to Diane Levin, at the 1976 Pound Conference, Sander

reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

This is a call for the integration of ‘ADR’ with the ordinary everyday business of civil courts. (There is a very readable exploration of the origins of Sander’s Pound paper  here).

More than 40 years later, Sander’s call has largely been answered.  We know that settlement has always been part of civil litigation (thanks Marc Galanter for giving us the term ‘litigotitation’). But since Sander gave that speech, various forms of ADR, especially mediation and arbitration, have become part of standard court practice in most jurisdictions. For example, the Supreme Court of NSW offers both mediation and arbitration for civil matters under Parts 4 and 5 of the Civil Procedure Act 2005 (NSW). Referral to ADR can be mandatory in most Australian courts. Court-connected ADR services in Australia are provided by in-house staff or by external service providers.

However, most Australian courts could not be called multi-door courthouses. One reason why, is that formalised dispute resolution screening processes are not in place in most Australian courts. (The NSW Land and Environment Court is a clear exception).

What I think Sander didn’t quite get it right is that his focus was largely on the courts. To my mind, the locus of conflict and dispute resolution is not at the pointy court-end of the dispute resolution pyramid, but the heavier bottom-part. Most people who have a ‘legal problem’ don’t go near a court but choose or are forced to use other methods of dealing with their matter. These methods include direct action such as physical retaliation, seizure of property or removal of offending objects, informal negotiation or exit and avoidance (‘lumping’ the problem). That’s certainly what goes on in my house!

Court-based triage and assessment of problems is going to offer very little to most people who never even conceive of their ‘problems’ as court-worthy nor have the funds to litigate. When researchers measure ADR use, there is always very low awareness of ADR processes in the community and low uptake and use of formal ADR services. Even ADR services are not the only answer.

The multi-door courthouse doesn’t reflect more recent government efforts to encourage efficiency in the civil justice system in Australia and the UK. Pre-action protocols/procedures have been implemented widely in England and Wales following the Lord Woolf Report and more sparingly (but significantly) in Australia. Pre-action procedures encourage early settlement of disputes, full disclosure of information between parties and, where the matter cant be resolved, the narrowing of issues in dispute, but all before proceedings have commenced. Pre-action procedures are important because they force the location of ADR services away from the courts and towards pre-trial services offered by non-court providers or undertaken informally. Tania Sourdin argues that pre-action procedures are a significant shift away from Sander’s multi-door courthouse and towards  a “more modern multi-option  dispute resolution model.”

I would argue that they key idea behind Sander’s multi-door courthouse idea, matching the forum to the fuss, should and does still exist as a guiding principle of Australian civil justice systems. While the location of dispute resolution activity has shifted away from the courts (in Australia at least) Sander’s ideas have shaped the civil justice landscape of our country.

Thank you, Frank.

Aspects of this post are based upon ‘Chapter 7: ADR: Appropriate or Alternative Dispute Resolution’ in King, Freiberg Batagol & Hyams Non-Adversarial Justice (2nd ed, 2014).

Transforming the family law system: determination or self-determination?

pexels-glass ball on stump-235615

The Senate Legal and Constitutional Affairs Legislation Committee is currently inquiring into the Bill that proposes to introduce a Parent Management System, ‘an innovative forum for resolving simpler family law disputes between self-represented litigants’. The Committee is due to report on 23 March 2018.

The Law Council of Australia opposes the introduction of a new layer of complexity into an already complex system. It argues that decisions about children should be made by judicial officers, and that the funds allocated to the proposal would be better used to strengthen existing court services including counselling and contact centres.

The proposed Parent Management System is one of a number of budget initiatives injecting much needed resources into the family law system. This included funds for additional domestic violence units, additional family consultants and to support community legal centres and ATSI legal services in their important work.

A bill was also introduced in December 2017 to extend the jurisdiction of state and territory magistrate’s courts to determine more disputes about property, largely as a result of recommendations made by the Family Law Council report on families with complex needs and the Victorian Royal Commission into family violence.

Parent Management System

How the proposed Parent Management System will work is not yet clearly articulated. Such a model was proposed by a family law reform paper and described a ‘multi-disciplinary and inquisitorial tribunal freed from the constraints of the adversarial system’, intended to be informal, cost effective, simple and user-friendly.

It was suggested that such a tribunal could be modelled on the Oregon Informal Domestic Relations Trial. This is a simplified trial process suspending the rules of evidence and allowing parties to speak directly to the judge.  It was specifically intended to give self-represented litigants a voice in the proceedings, and considered suitable for cases involving domestic violence. Unfortunately the evaluation of the process was not able to recruit sufficient self-represented litigants to determine what they felt about the trial, but lawyers thought their clients found it fairer and more timely.

Determination or self-determination?

Both trials and tribunals are determinative processes – experts consider or gather evidence and impose a decision on the parties.  This may be appropriate in many instances, especially where one or both parent’s capacity to reach their own decisions is compromised by complex histories of serious family violence, mental ill-health, addictions and socio-economic disadvantage. The research makes it clear that vulnerable parties with complex histories dominate family courts and other family law services.

Being heard

The research base informing the Oregon model indicated that self-represented litigants wanted a greater voice in and more control over post separation processes. Research in Canada also supports the view that being heard is an important motivating factor for many self-represented litigants.

Mediation can provide the opportunity for parties to speak, be heard, to work collaboratively and cooperatively to decide their own outcomes. Mediation is not always suitable for parties with histories of violence however, as it can be difficult for the mediator to manage power differentials to ensure parties can participate safely and fully.

A safe, child-sensitive and legally-assisted mediation model

A safe, child-sensitive and legally-assisted model of family mediation has been developed in Australia. It is designed to support parties who have experienced and perpetrated family violence to understand the process, learn how to communicate and negotiate safely, take responsibility for their violent behaviour and work out outcomes that are best and safe for their children with the support of a multidisciplinary team professionals.

Professional collaboration

Its multi-agency, multi-professional case-management approach models the kind of respectful and co-operative professional collaborations we should be encouraging in the family law system. It offers an example of effective service integration within the family law system.

Coordinated family dispute resolution

Coordinated family dispute resolution has been piloted, evaluated and demonstrated in many instances to safely ‘empower parents to make appropriate arrangements for their children’, and its broader roll-out has been recommended.  It also achieves the objectives of the Parent Management System –  informality, cost effectiveness, simplicity and user-friendliness.

Inquiries have recommended implementation of CFDR and this kind of case-managed integrated service for complex matters in the family relationships sector. The adoption of CFDR has been recommended by family law community agencies and the model is being adapted by some services to better support vulnerable separating clients.

There is no easy solution to resolve family law disputes, especially where the matters are complex and parties unrepresented.  We are unlikely to transform it, but we can improve it.

Surely a safe, proven, collaborative, integrated, cost-effective and self-determining process is preferable for many parents and children, the family law system and the broader community, to a determinative process that is unknown and untested?

This post has also been published on my website and on Linked In.

Experiencing the Potential of Mediation

The Australian ADR academic community is committed to ensuring that ADR is embedded across the syllabus of Australian Law Schools. This has been assisted by the agreement that ADR will be delivered within Civil Procedure as part of the Priestley 11.

This is an important achievement and owes some of its success to the efforts of our own ADR Research Network members who have championed the change – including, for example, Rachael Field and Kathy Douglas. As part of building the value of ADR teaching and learning, we continually seek opportunities for students to experience the potential of ADR processes, and to develop as practitioners whose skills are relevant nationally and internationally.

The ICC International Commercial Mediation Competition is one such opportunity. An annual event offered in Paris, the ICC now also offers an annual Asia-Pacific Commercial Mediation Competition, for teams who wish to compete with our Asia-Pacific neighbours.

I am just back from Paris where the 4 team-members from UNSW, were this year’s  competition winners.

ICC 2018 winners (1)

Team UNSW ICC Winners 2018. Photo Credit: ICC, with permission

Approached by Kluwer to blog about the competition and the opportunities it provides to students internationally, I was delighted share my views about its enduring value which stretches far beyond the competition itself.

My blogpost includes seven insights that provide a foundation for successfully coaching a team as I have had the privilege to do for the past 12 years. I also hope my insights might be a resource for those who are teaching negotiation, mediation and dispute resolution at a tertiary level.

See you in Paris 2019!

Save the Date: 7th ADR Research Roundtable 2018

Please consider saving the date for the 7th ADR Research Roundtable, which will be held at the University of the Sunshine Coast on 3-4 December 2018.

A call for papers will be issued closer to the date.   Early Career Researchers and PhD students are particularly encourage to participate – the Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics.