Where’s the evidence? Service providers’ research activity in family dispute resolution and related services

One of my favourite researcher pastimes is musing how to find better evidence about the experiences, preferences and needs of potential clients of dispute resolution services. How do we know what people want from their dispute resolution experience? There is a great wealth of research data captured by dispute resolution service providers, and those data don’t necessarily always come to the attention of researchers when they conduct literature searches in their habitual ways. Our network has the potential to bring research findings to the attention of people who want to access research about dispute resolution.

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Below are some examples of research projects, data and findings that are publicly available through service providers, specifically relating to family dispute resolution and related services. I hope readers might find some of these useful in their work.

Relationships Australia National Research Network

Relationships Australia is a national organisation that provides a plethora of services in relation to family and other relationships. They use their broad reach to work collaboratively between their various services to conduct research, through their National Research Network. A current project is a longitudinal Family Dispute Resolution (FDR) Outcomes Study, which promises to provide considerable insight into the quality of outcomes achieved in FDR. A brief summary of the findings from a 2012 study into the psychological distress levels in Relationship Australia family support services clients is also published on the website. Each month, Relationships Australia runs an online survey on a particular topic, and the findings of the survey are published. These surveys seek public opinion about various matters, and this might provide useful “snapshot” evidence about likely perceptions of particular processes, for example, child inclusive family dispute resolution.

Interrelate

Interrelate is a not for profit provider of relationship services that specialises in supporting parents and children. It has a healthy culture of research and a dedicated research and service development team, evaluating programmes in-house and in collaboration with research partners. In 2014 Interrelate presented its experiences of establishing a service-based research culture in a conference paper titled Creating a Research-Aware Workforce: Lessons from the Trenches. Publications are available on the Interrelate website. Some of the publications of particular interest to dispute resolution researchers include the 2017 Certifying Mediation: A Study of Section 60I Certificates, in collaboration with the Centre for Social Research & Methods at ANU and co-funded by the Commonwealth Attorney-General’s Department. The 2011 Report on the Study to Improve Understanding of Non-Agreement in Family Dispute Resolution is also an interesting research report, which was conducted by The Australian Institute of Family Studies. Also available are evaluation studies of Interrelate programmes, including:

Legal Aid Services

Back in 2008 KPMG conducted, on behalf of the Commonwealth Attorney-General, an evaluation of Family dispute resolution services in legal aid commissions. Legal Aid Victoria includes research activity as a core part of its business. The following research project reports are available on the Legal Aid Victoria webpage:

Legal Aid NSW published reviews, evaluations and discussion papers that it conducted in-house or commissioned between 2008 and 2015. These include Felicity Bell’s Discussion Paper on Facilitating the participation of children in Family Law processes, and client satisfaction survey results.

Anglicare

Anglicare Sydney have a Social Policy and Research Unit that conducts research and publishes reports on the Anglicare website. These include the 2018 Going it Alone: A Study of Lone Person Households, Social Isolation and Disadvantage in Sydney.

Finding the evidence

Quality research work occurs within service provider organisations. Research supports the field in the evolution of both practice and theory.

For researchers, the impracticality of capturing all of the research findings relevant to their work is an ever present challenge. The dispute resolution field spans all organisations, fields, disciplines and professions. This post focused upon family dispute resolution and related services, only one aspect of the dispute resolution landscape. Future posts might draw together service based and publicly available research related to other topic areas. Please contact me if you would like to volunteer to put together a similar post in your area of specialty.

 

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Legal capacity in mediation – a short recap of the fundamentals

This post has been contributed by Adjunct Professor Sue Field, in collaboration with network member Hanna Jaireth.

It is common knowledge that we have an ageing population in Australia. In 2017, 15.4% of the population were over the age of 65 years and this group is projected to increase more rapidly over the next decade, as further cohorts of baby boomers (those born between the years 1946 and 1964) turn 65 (3101.0 – Australian Demographic Statistics, Jun 2017).

It is also common knowledge that as we age we have an increased risk of developing some form of cognitive impairment. According to Dementia Australia one in ten people over the age of 65 years have dementia; and this increases to three in ten people over the age of 85 years (Dementia Australia).

Therefore, it is safe to assume that professionals working with an older client base may well be confronted with situations where the mental capacity of their client may be in question. This is equally true of those engaged in mediation, where one, if not many, of the parties involved may not necessarily have the requisite mental capacity to engage in the process.

It is timely therefore to indulge in a short recap of the fundamentals associated with mental capacity.

At the outset, in respect of mental  capacity, there are two basic premise. The first is that there is a presumption of capacity and the second is that capacity is a legal, not a medical, concept. But presumptions can be rebutted. In this instance it can be rebutted by the presence of a valid trigger (or red flag). For example the person concerned displays behaviour that is not the behaviour considered usual (or normal) for that particular person. Simple examples of triggers are constantly repeating the same sentence or a total inability to repeat, and comprehend, what has just been explained to them. However, any trigger should be further explored as there may be a rational explanation for the behaviour. For example is the person stressed in their current environment, are they on medication, or has their medication recently been changed. Do they have a urinary tract infection, or some other illness.

Perhaps in the example of not being able to repeat what has been explained to them, consideration should be given to the fact that  the person explaining a situation has not taken into account the level of education/cultural differences/or the stress occasioned by the environment!

The second premise, that is, that capacity is a legal, not a medical concept means that should the matter end up in a court or tribunal that legal body will make a determination of the person’s capacity, based on the evidence provided.

But what exactly do we mean by “mental capacity”? Not all jurisdictions provide a statutory definition. Therefore reliance is placed on common law, in particular the 1954 High Court case of Gibbons v Wright [1954] HCA 17 per Dixon CJ, Kitto and Taylor JJ, where their Honours stated that:

“The mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.”

Caution, as mentioned supra, should be exercised here to ensure that the explanation is given in a manner that the relevant person can understand!

A further caution is not to assume that because a person has a diagnosis of “dementia” they cannot make a decision. A person may well be diagnosed with dementia at a very early stage of the condition and manage their lives successfully for many years. However, such a diagnosis may be seen to be a trigger and therefore should be explored – and documentation in situations such as this is of vital importance.

It can be seen then, that capacity is not global (in other words it is not an all or nothing concept). It can be domain specific, that is, the person may have capacity for health decisions, but not financial, and vice versa.  But even within a specific domain capacity is, in fact, decision specific. A person may have capacity to make a will (testamentary capacity), but not capacity to enter into a complex contract or engage in mediation.

This brings us to the term “legal capacity”. This is generally accepted to mean that the person has ability to:

  • make a binding legal agreement;
  • sue another person; and
  • make other decisions of a legal nature (Legal Aid Queensland)

It can be seen, therefore, that for a person to engage in mediation, they must possess legal capacity. Finkel and Linden note that a mediator should have sufficient information and understanding of mental capacity “that is commensurate with the risk of her/his judgement being inappropriate.”

To ensure this they suggest that the mediator should be satisfied that

  • the party [is] receiving information?
  • the party [is] integrating that information in a way that reflects a rational, replicable process? [and that]
  • this person [can] communicate the results?

(Arthur L Finkel and Jon Linden, ‘Determining “Legal Capacity” in Mediation’ May 2003)

It is suggested therefore that should there be concerns about the capacity of a person to engage in mediation the mediator could perhaps ask themselves the following questions:-

  • On what am I basing my view that capacity is in question?
  • Should the mediation commence, be adjourned or even cease?
  • What are the implications for this decision?
  • What are my professional responsibilities in this regard?
  • What are the guidelines that guide my decision? and
  • What are the implications of “getting it wrong”?

We cannot deny that we have an ageing population and as we age we do have an increased risk of developing some form of cognitive impairment. Equally we must expect that older people may well form part of our practice. Are we, therefore, ready to accept the challenges occasioned by these changes?

SueFieldAbout the author: Sue Field is an Adjunct Associate Professor at Western Sydney University where for the past fourteen years she has taught elder law to undergraduate law students. Sue is also an Adjunct Associate Professor at Charles Sturt University, a Lead Investigator with the Cognitive Decline Partnership Centre, a Research Fellow at the University of Western Australia, a Director of the Australian Centre for Elder Law Pty Ltd and a Distinguished Fellow at the Canadian Centre for Elder Law. Sue is co-editor of the Elder Law Review, the only refereed elder law journal in Australia. In conjunction with Professor Carolyn Sappideen and Karen Williams Sue has co-edited a recently released text on Elder Law and is working on a co-authored text on elder law for the layperson. Sue has published widely and presented at many international and national events.

Sue is a member of the NSW Law Society Committees on Elder Law, Capacity and Succession, and Rural Issues and was on the Advisory Committee for the Australian Law Reform Commission Inquiry into Elder Abuse.

Sue also learns the cello.

 

What Would YOU Know About It? Some thoughts on gaining experience as a young mediator

This post by Haley Weir originally appeared on the Kluwer Mediation Blog

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It was a phrase I’d imagined silently echoing in the minds of parties, co-mediators and solicitors, but this was the only time I had heard it vocalized.

It was uttered during one of my first coordinator roles in the civil courts of Scotland, where my role was to inform and promote the services of the mediation clinic to parties pursuing litigation under Simple Procedure. I was nervous to say the least. The aim of the role seemed unclear and, as an inexperienced mediator, I lacked authority and confidence.

The Sheriff’s strong critiques of a contractor’s failure to complete the building of a deck (over many years) had been heard, and it was suggested to the parties that they speak to the mediators present, in the hope of resolving the issue with no further legal action.

– Cue me.

I believed this case was ideal for mediation. I introduced myself to the two gentlemen involved in the claim, explaining the potential benefits of mediation. It soon became apparent, by the respondent’s resistance, that he was uninterested in my pitch.

I continued my presentation and expressed my enthusiasm for mediation, until I was met with that phrase:

“What would YOU know about it?”

Fair enough – what do I know about the construction of a deck? Very little, and I was quick to articulate this to the respondent, adding, “Though, I am assured YOU know quite a bit on the matter, which is far more relevant to this case.”

I attempted to recover by reiterating that my role, as a mediator, was to facilitate a meaningful conversation between the parties, and that the subject matter, content and interests were determined by the parties and not myself.

But, as you may have guessed, this case did not mediate. It is doubtful that the Sheriff who would hear the case would have an exhaustive knowledge of deck construction either and the matter would ultimately come down to contract law, not construction. However, the participants had a lack of trust in both the mediation process, and in my experience and ability as a young mediator.

Perhaps, I have been mediating for longer than I realized. I was sought out on the playground to advise and resolve disputes such as, “Whose turn was it, really?” I dabbled in mediation before I knew the term (though my argumentative and opinionated personality did not reflect a high standard of impartiality).

I went on to explore the concept of issues and crisis management as a module in public relations in my undergraduate studies, before moving to my postgraduate studies, where I discovered mediation and alternative dispute resolution.

The field offered me the opportunity to combine my interests in working with people, taking a thoughtful approach, problem solving and creativity. Once commencing my studies abroad in Scotland, I continued to develop these skills while learning to implement strategy and theory into the practice. After clocking the necessary hours as a student mediator and meeting other requirements, I began to take on cases as a lead, co-mediating with current or past students in the Master’s program.

During these cases, it was assumed (more than once) that I was the trainee there to observe and learn from my more experienced counterpart. It didn’t matter that I was conducting, guiding and facilitating a majority of the process. People expected our ages to correspond with our experience level. My age spoke for – and continues to – speak for me as a learner, not as a mediator.

So, as a young mediator, what DO I know?

• I know how to be reflective on my thoughts, actions, feelings and how to convey these to others in an effective, impartial, genuine manner.

• I know that dealing with sensitive, complicated human emotions and interactions requires constant learning, adaptation and creativity, all of which I have a strong passion to continue pursuing.

• I believe that social intelligence learned through curiosity, and a strong desire to understand human behaviour, has assisted me in learning about people’s motivations and expectations. I have the compassion to commit time and sincerity to the cause and outcome of mediation.

• After time spent in the hallways and courtrooms of Simple Procedure, I have inadvertently learned more about the construction of decks (as well as showers, fences, window treatments, and doors for that matter!). I will learn about many content areas that cause dispute but mediation is about being heard, acknowledging needs and wants and arriving at a solution that maintains dignity.

• More importantly – I have developed an awareness of the need for sustainable conflict management skills. I work with and strive to use the mediation skills of open questioning, impartiality and listening both actively and passively. Parties are experts in their lives and what solutions they can accept, conflict is normal with problem solving as the key to conflict resolution.

• Lastly, I know I can’t possibly know everything about conflict and people management. Parties in mediation come from their own contextual backgrounds and they are the experts when it comes to their conflict and potential resolutions that would, or would not, suit them. Your curiosity and interest as a mediator show the parties that you are present, impartial and there not to enforce, but to guide them through the issues.

I urge young mediators (myself included) to continue to pursue opportunities for mediation experience and remind themselves of what we can bring to the table. I believe that young mediators have the skills and potential to contribute to the field and hope that employers and organizations can see this worth with offers of opportunities to provide the most coveted skill of all, experience.

Who to Ask: Transferability of Findings Reported in Empirical Studies of Mediation

This is a summary of a research paper presented at the ADRRN Roundtable convened at the University of the Sunshine Coast in December 2018; comments made by ADRRN colleagues have been taken into account in this summary.  The research paper reports on one component of a much larger research project in which a systematic appraisal is being conducted of a selection of articles describing empirical studies of mediation

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[Vektor ID 563739124/Shutterstock.com]

When I am reading an article about an empirical study of mediation effectiveness, I want to know whether I should incorporate into my mediation practice the techniques, strategies, and behaviours that are described in the article as having been effective.  In other words, how transferable are they?

When appraising the transferability of the results of an empirical study in any field of research, two key factors are taken into account: the study’s identification of its broad sample population, and its selection of study subjects from that population.  Where neither the sample population nor the selected study subjects are appropriately representative, there is a significant reduction in the external validity of the study’s results.  In this context, it is important to establish what might be a representative mediation population.

It has been said that mediation can ‘… play a role in virtually every significant area of social conflict’ (K. Kressel, The Mediation of Conflict: Context, Cognition, and Practice, in: P. T. Coleman, M. Deutsch, and E. C. Marcus (Eds), The Handbook of Conflict Resolution: Theory and Practice (3rdEdition, Jossey-Bass, USA, 2014), p 817).  This suggests that a representative mediation population is the broad diverse community, all of whom are actual and potential mediation participants.  When mediation researchers select people to participate in their studies, it can be assumed that they are choosing subjects who represent that broad diverse community. Yet analysis of the selected mediation literature suggests that this is not the case: mediation researchers rarely mention population representativeness, and appear to choose their study subjects from a very limited range of groups (or programs):

  • Mediator and non-mediator participants in some court-connected mediation programs;
  • Mediator and non-mediator participants in some structured community mediation programs;
  • Mediator and non-mediator participants in some programsdesigned for family/custody disputes; and
  • University students (where the studies are of simulated mediation).

As the list shows, subject diversity in mediation research is restricted by the research’s own limited focus on a selection of government funded services and programs, as well as services provided through public institutions.  This focus leaves other services, and participants, largely unexamined.

The lack of representative diversity in study subjects applies to the mediator as well as non-mediator participants, and it is only one of many issues claimed by mediation researchers to affect how they are able to do their work.

The issues that have been described can be categorised as follows:

  • Obstacles (preventing certain empirical research from being undertaken): the lack of access to adequate funding; ethical restrictions that prevent rigorous examination of mediation practices and thus limit what is known about mediation,potentially disadvantaging future mediation clients;
  • Impediments(making it difficult to conduct certain empirical research): the nature of the mediation process itself (including confidentiality restrictions); the increasing incidence of mediation research being conducted in law schools where there is limited social research experience and expertise; the lack of consistent research methodologies; definitional problems (e.g., the meaning of “mediation” itself, the variety of models of practice, and the various measures of mediation effectiveness); external influences on research purpose and design (such as interest groups, funders, and researcher affiliations); and reputational concerns of potential subject mediators (i.e., if they participate in a particular study, what might be reported about them?);
  • Recurrent flawsin research design have been noted to include: heavy reliance on data collection from mediator and non-mediator self-reports; and the inherent tension between funder preferences for relatively cheap/quick studies, and protection of research rigour; and,
  • Persistent gapswhere little is known about: private mediation; mediation outcomes other than settlement;individual mediator behaviours, or microskills; how mediator values and preferences influence what they say and do in mediation; systemic issues that might influence the mediation process, and what mediators say and do within it; and the lack of comparative studies (i.e., investigations of similar mediator approaches in different contexts, or of different mediator approaches in the same context).

Other potential problems that are not mentioned often in the mediation literature include:

  • How the researcher’s own preferences and experience might influence:
    • Research design,
    • Choice of data collection methodologies,
    • Method of data analysis, and
    • Study subjects’ responses;
  • The lack of gender, race, ethnic, and socio-economic differentiation in the selection of study subjects, in the collection of data from and about research subjects, and in the analysis of that same data. In addition, not enough is known about the demographic differences between mediators in any context, nor about how those differences might affect what mediators say and do, and affect the responses and behaviours of non-mediator participants.

It has been observed that, in all fields, there is pressure on academics to publish as frequently as possible, with their research ability being assessed by the numberof published items rather than by the qualityof reported studies.  In the mediation field, this issue is compounded by the relative lack of specialist mediation publications, and the lack of sufficient mediation knowledge in other publication areas where mediation researchers do publish (e.g., law journals, business journals, social science journals); the latter can result in valuable articles not being published at all, and/or their value not being recognised.  Also, it has been suggested that publishers give preference to articles that confirm mediation’s outcome effectiveness.

Any of the above issues can influence the context and setting of an empirical study of mediation, as well as the research design and its scope, the nature of the research data that is collected, the methods used to collect the data, and the focus of the data analysis.

In particular, many of the issues are likely to influence the researcher’s access to appropriately representative populations, and, ultimately, the transferability of the study findings, and their relevance to practicing mediators.  It is important for the future practice and development of mediation that some of these issues are openly acknowledged and addressed.

The ADRRN is a valuable, respectful, and friendly forum in which mediation researchers can discuss their work with their peers.  It is also a forum in which mediation researchers can consider the above issues.  For example:

  • What are the options for improving mediation researchers’ understanding about social science research methodologies?
  • How to identify realistic and creative research funding and support that enables:
    • Access to a broader and more representative population of subjects for empirical research;
    • Access to diverse mediation settings and diverse research subjects;
    • Empirical investigations that are more complex and innovative than evaluations of mediation outcomes; and
  • How to encourage the dissemination of, and access to, mediation research, without being guided solely by results and findings?

The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

by Jackie Weinberg , Monash Law School

Over recent years, ADR has become an integral part of Australian legal practice. This, along with a number of other forces, has led to a recognition that ADR needs to be taught in law schools. In my PhD research, I explore whether it follows that ADR should be taught in clinical legal education (CLE). In this paper, I report the findings from my PhD research addressing the question of the role of ADR in CLE. Drawing upon interviews with clinicians, I consider whether ADR ‘fits’ within CLE, and if so, on what basis.

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Jackie presenting her paper on 3 December 2018

My paper shows that clinicians saw CLE as striving to have a strong link to “social justice” and “legal service”. Similarly, they viewed ADR as having access to justice as its focus. Although the links were not always explicitly made by the participants, the implicit connection and “value” of ADR in CLE, in their minds, indicated that they both align with a common goal of furthering access to justice. Clinicians believed that a common mission exists between ADR and CLE in the form of the advancement of social justice. Community Legal Centres (CLCs), incorporating clinical programs, utilise ADR to accomplish their mission of social justice and this facilitates the implementation of clinical practice goals.

Some clinicians expressed caution that there are limitations in relation to ADR providing access to justice. However, in the course of exploring with the participants the issues and concerns of both CLE and ADR, it became apparent that clinicians still viewed ADR as integrally linked to social justice concerns and the advancement of access to justice. Clinicians viewed ADR as a valuable component of CLE, enhancing student awareness about social justice and the various options for dispute resolution. Bloch echoes these views, stating “clinical legal education has always had a broader goal-to teach law students about what lawyers do and to understand lawyers’ professional role in the legal system in the context of having students provide various forms of legal aid services.”[1] Bloch goes on to emphasise that because ADR and clinical education share overlapping goals of advancing the interests of parties and addressing deficiencies in access to justice, ADR education and CLE are “slowly integrating and advancing beyond the teaching and practice of basic negotiation skills that have been included in the clinical curriculum for years.”[2] Bloch opines, “clinical programs that teach and practice ADR can inform, improve, and reform not only legal education, but also-over time-the practice of law and the legal profession as well, thereby furthering the social justice goals of the global clinical movement.”[3]

From my findings and supported literature, I argue that the close association between the social justice “missions” of CLE and ADR, enhanced by their relationships with CLCs and legal aid programs, provides a solid foundation for the teaching of ADR in CLE.

weinberg

 

Jackie Weinberg is a law lecturer, PhD Candidate, and Clinical Supervisor in Monash Legal Practice Programs at the Faculty of Law, Monash University. Jackie’s research is focused on an exploration of ADR in clinical legal education. Jackie recently published an article in the IJCLE titled: Keeping Up With Change: No Alternative To Teaching ADR In Clinic. An Australian Perspective. In addition to ADR, Jackie has keen interest in student well-being and technology and the law, focusing on access to justice in clinical legal education.

 

[1] Frank S. Bloch, The Global Clinical Movement (Oxford University Press, 2011) 167

[2] Ibid.

[3] Ibid.

Teaching Mediation In Brazil And Australia: Can We Improve Access To Justice?

This paper is part of a series presented at the 2018 7th ADR Research Network
Roundtable hosted by University of the Sunshine Coast Law School. The 8th ADR Research Network Roundtable will be held in December 2019 in Melbourne, hosted by LaTrobe Law School.

 

By Professor Cristiana Vianna Veras, Visiting Scholar at Flinders University 

 

The development of the mediation as an institution can be understood as global phenomenon, since several countries present different state and societal experiences of this form of conflict resolution. Although some countries have been working to institutionalize mediation for more than three decades, we can say that mediation is still a “young” experience and now seems to have spread everywhere. In Brazil, the institutionalization of mediation began in 2009 and was encouraged in the field of the Judiciary through a public policy to promote the application of consensual forms of conflict resolution that, through a discourse of social pacification and better adaptation of the form of treatment of social conflicts, sought to reduce the number of lawsuits, currently one of the biggest problems confronting the Brazilian judicial system.[1]

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Professor Cristiana Vianna Veras presenting her work at the 7th ADR Roundtable on 4 December 2018

Different actors participate in the applied field of mediation in Brazil. On the one hand, as a pioneer in this field, non-governmental organizations and private institutes, were first responsible for implementing the initial practical training of the first mediators, and have since multiplied in number. On the other hand, the State, or more specifically, the Judiciary has reserved to itself the task of conducting mediations. Alongside these two main actors, a third can now be added: Brazilian law schools, which also participate in mediation in different ways.

In Brazil, law schools are overseen by the federal government, through regulations determined by the Ministry of Education. All law courses must conform to a core curriculum specified by national directives, although each law school is free to interpret this normative guidance. Due to this national curriculum, all law courses cover a range of theoretical disciplines and many courses include in this curriculum a topic on alternative dispute resolution and/or mediation.

In addition to theoretical subjects, all Brazilian law courses are obliged to offer a Center of Legal Practice that can act from simulations (abstract cases) and / or from a real service aimed at low-income people, with some courses offering mediation simulations or offering this possibility of conflict resolution to the local community.

Hence, there are three distinct possible spaces for mediation in law courses in Brazil: a theoretical space, a space of simulation and a space for serving the low-income population. Creating new dialogue within and between these actors who participate in the movement toward institutionalizing mediation is one of the primary goals of my research.

One perspective that helps to better understand these dialogues is the phenomenon of access to justice captured by the metaphor of waves by Mauro Cappelletti and Bryant Garth.[2]  These scholars identified measures implemented by different countries to make legal services more efficient, to better protect collective rights and to make the highly bureaucratized Judiciary more informal.

Mediation is mainly connected with the third wave of Cappelletti, as it is included in the experiences of alternative dispute resolution (ADR), and the trilogy of arbitration, conciliation and mediation that together constitute the process of informal justice. However, mediation is not just an alternative way of conflict resolution. To understanding of its full scope and meaning we should add to the three waves of Cappelletti, a fourth wave identified by Kim Economides[3] in 1997, namely lawyers’ (and judges) access to justice. This fourth waves also raises the issue of what kind of justice it is that which we wish to give access to?
Since mediation is a way of resolving conflict by the “parties themselves” (but with the assistance of a mediator), it may define new criteria of justice – which do not necessarily correspond to the criteria of state/legal justice – in the light of the parties’ own understanding of what is fair and appropriate for them.

In this context, many questions arise: how does mediation – theoretical, simulated or practical – act in terms of the different access to justice waves? What impact does a course on theoretical mediation have on law students? How many law students will intend to use mediation in their professional practice? Is there a more appropriate form of teaching mediation in order to encourage students to work with mediation in their future professional practice? Does experience with the simulations and/or real cases brought by low in-come users encourage students to use mediation in their professional practice?

Also important, is the response of law students exposed to this new form of conflict resolution confined to Brazil? Or is it the case that, in other countries where mediation has been longer established, we find a different response? Do these countries still have a dominant adversarial legal culture? To try to answer these questions, I am conducting comparative and empirical research on law students from three universities: Flinders University, Fluminense Federal University (UFF/public) and Pontifical Catholic University (PUC/private). After comparing the process/methods of the teaching of mediation in Brazil and in Australia, and whether they motivate law students to work with mediation in their future professional practice, I will analyze the contribution of teaching mediation in law school to the process of improving access to justice.

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There was strong engagement with Chris’ work during her session, including from commentator Dr Lola Akin Ojelabi, LaTrobe Law

Professor Cristiana Vianna Veras is a Visiting Scholar at Flinders University – Adelaide/SA in 2018/2019. She is also a Professor at School of Law of Federal Fluminense University – Rio de Janeiro/Brasil. Cris can be contacted on veras04@hotmail.com and cristiana.viannaveras@flinders.edu.au

[1] To understand the process of implementing of mediation in the Brazilian Judiciary and the main objective behind the official state discourse, see two studies of cases: Kilpo, Klever Paulo Leal. Dilemas da mediação de conflitos no Tribunal de Justiça do Rio de Janeiro. Tese de doutorado apresentada à Universidade Gama Filho. Rio de Janeiro: 2014 and Veras, Cristiana. Um estranho na orquestra, um ruído na música: a apropriação da mediação pelo poder judiciário a partir de uma experiência no Cejusc do TJRJ. Tese apresentada à Universidade Federal Fluminense. Rio de Janeiro: 2015.

[2]  Cappelletti, Mauro e Garth, Bryant. Acesso à Justiça. Porto Alegre: Sérgio Fabris, 1988.

[3] Economides, Kim. “Lendo as ondas do “Movimento de Acesso à Justiça”: epistemologia versus metodologia?” in Dulce Chaves Pandolf e outros (orgs). Cidadania, justiça e violência. Rio de Janeiro: Editora Fundação Getúlio Vargas, 1999. English version: Economides, Kim “Reading the Waves of Access to Justice” Bracton Law Journal, Vol.31, 1999, pp.58-70.

Apologies: A New Reform?

By Sarah Tan

This post is one in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to the justice system to ordinary readers. The very best post on each topic is published here.

 

2018 marks the twentieth anniversary of National Sorry Day – a day that recognises the ‘grief, suffering and loss’ suffered by the Stolen Generations. With the recommendation from the Bringing them Home report, then prime minister Kevin Rudd apologised to the Aboriginal and Torres Strait Islander People for the acts of the Australian Parliaments.

Often, apologies are the hardest things to do. However, when a government agency has made a mistake, ‘sorry’ is exactly what citizens want to hear. This blog entry postulates the argument that a Victorian government agency should provide apologies to the public for mistakes it has made when dealing with complaints.

What is an (effective) apology?

Apologies can be documented in many forms – it can range from something along the lines of ‘I’m sorry for how you feel…’ to ‘It is a regret that…’. Nevertheless, an apology that is not genuine may backfire, resulting in the recipient feeling angrier. In cases involving bureaucratic organisations, misworded apologies may add to the conflict, confirming feelings that the organisation does not act in the public’s interest.

The New South Wales Ombudsman defines an apology as ‘an expression of feelings or wishes that can include sorrow, sympathy, remorse or regret as well as an acknowledgement of fault, a shortcoming or a failing’, and defines an effective apology as one that contains the following six Rs:

  • Recognition
  • Responsibility
  • Reasons
  • Regret
  • Redress
  • Release

 Why apologise?

With apologies being regarded by complainants as an essential prerequisite for the resolution of complaints, the benefits of apologising in the context of resolving complaints to governmental agencies are threefold – it is a mark of integrity, it promotes public interest, and it addresses key psychological impacts.

Firstly, an apology to members of the public demonstrates integrity. With governmental agencies depending on public confidence, it is of utmost importance that ethical governance and its themes of accountability, transparency and responsibility are maintained. Through the issue of apologies, a positive and transparent image of the agency will be restored. Instead of being regarded as an organisation’s weakness, an apology serves as a testament to the maturity of the government agency – one that is responsible and accountable for its weakness.

Although there is no guarantee that an apology may resolve every complaint, an apology at the minimum, will show how the agency acts with integrity. Furthermore, with the right motive in mind, an apology has the potential to restore trust and integrity. With trust being imperative for the functioning of organisations and human relationships, apologies are mechanisms of trust repairs that seek to restore positive attitudes and reduce negative feelings that occur from the conflict.

Secondly, an apology is beneficial when dealing with complaints as it helps to promote public interest and protects the complainant’s interest. This is also reflected in the use of apologies as a remedy in several aspects of Australian law. By publicising an apology, the public is educated on the wrongs of the government agency and recipients of apologies have a sense of public validation and personal vindication. Additionally, an apology serves the function of addressing any lingering impacts of the conduct on the complainants. As phrased by corporate respondents who were recipients of a publicised apology, an apology by an organisation sends a clear message to the community that a particular agency had erred.

In the media industry, the use of apologies as a way of responding to complaints is by no means unconventional. Under existing self-regulation mechanisms of the Australian Press Council, the use of remedies without adjudication has proved useful in the settlement of about three-quarters of its 700 complaints received each year. By resolving complaints in the form of apologies, corrections, or some form of remedial action, the prospects of a complaint resulting in litigation are minimised. Furthermore, with research indicating that complainants who receive an apology are more satisfied than those who receive no apology, it is undoubtedly that an apology is a tool of communication and emotion that has the ability to heal the emotional wounds associated with the wrong.

Lastly, an apology is beneficial as it has the potential to address key psychological impacts. More often than not, people make complaints as they feel humiliated, hurt, betrayed, and want to be given a full explanation of the incident. Through an apology, feelings of respect and dignity are cultivated and one’s reputation is restored. In addition, an apology has the ability to assure the recipient that he or she was not at fault. With evidence suggesting that apologies have a strong place of importance in the criminal justice perspective, it is evident that apologies may have the potential to achieve purposes beyond traditional remedies of compensation. That being said however, is not a proposition that apologies are to be seen as an alternative to punitive damages. Should apologies be construed as a form of compensation, misconceptions will arise in that apologies are to be regarded as an acknowledgement of a wrong.

On the contrary, an apology should be used as a tool in resolving complaints as part of a mechanism that incorporates notions of restorative justice. In the criminal justice system, the giving and acceptance of an apology are traits of restorative justice. Since an apology is a common term of settlement in conciliations and mediations, the use of such concepts when dealing with complaints will allow complainants to have a better understanding of why the mistake occurred. Being non-adversarial in nature, apologies are often described in miraculous terms with an effect of promoting restoration.

Drawbacks?

Nevertheless, despite the benefits and willingness of public authorities in Victoria to apologising, research has indicated an inconsistency of such a practice in the public sector. With more than half surveyed suggesting that they only apologise in certain scenarios and sixty-one per cent of authorities having no policies or guidelines to deal with apologies, the survey also revealed the main concern government agencies had with apologising – legal liability arising out of the apology.

Ever since the twentieth century, Australia has introduced apology laws in a bid to encourage apologies and reduce litigation without creating automatic liability. Nevertheless, there remains a strong belief that apologising in itself, is an admission of liability with adverse insurance applications. In Victoria, apology protection applies to civil proceedings where the conduct in issue deals with the death or injury of a person, or is in relation to a defamation claim.

Given the limited scope of protections, recommendations should be made such that protections for apologies are broadened. Acting on the recommendations of the Access to Justice Review, an apology should not be construed as an admission of liability and should not be admissible as ‘evidence of fault or liability’. At the bare minimum, legislators should draw on apology laws in New South Wales which provide protection for full apologies; in Victoria, protection is only awarded to ‘partial’ apologies. Under such a premise, legislators must first comprehend the real meaning of an apology.

Should apology laws in Australia remain inconsistent, the lack of uniformity may result in the minimum threshold being prescribed. Given the wide-ranging benefits of apologising, Victorian government agencies can only be an advocate of apology to members of the public for the mistakes they have made when dealing with complaints if reforms to apology laws are made. Nevertheless, until that happens, government agencies should bear in mind the High Court judgement which left open the possibility for the use of an apology as evidence in another way.

 

Sarah Tan is a third year Bachelor of Laws (Hons) student at Monash University who will be completing her studies in 2019. Having grown up in Singapore, she has a keen interest in international arbitration. She is currently a seasonal clerk at Cornwall Stodart and hopes to pursue her passion for alternative dispute resolution prospects in the commercial law context. Sarah has also been involved in pro bono work at the Monash Oakleigh Legal Services and Law Society of Singapore Pro Bono Services Office.

 

Bibliography

  • Articles/ Books/ Reports

Allan, Alfred and Carroll, Robyn, ‘Apologies in a Legal Setting: Insights from Research into Injured Parties’ Experiences of Apologies after an Adverse Event’ (2017) 42(1) Psychiatry, Psychology and Law 10

Allan, Alfred, McKillop, Dianne and Carroll, Robyn, ‘Parties’ perceptions of apologies in resolving Equal Opportunity complaints’ (2010) 17(4) Psychiatry, Psychology and Law 538

Carroll, Robyn, Beyond Compensation: Apology as a Private Law Remedy (Irwin Law Inc, 2010) 349

Department of Justice and Regulation, Submission to Attorney General, Access to Justice Review – Summary Report, August 2016

Friedman, Hershey H, ‘The Power of Remorse and Apology’ (2006) 7(1) Journal of College and Character 1

Goatly, Andrew, Washing the Brain Metaphor and Hidden Ideology (John Benjamins Publishing, 2007)

Jeter, Whitney K and Brannon, Laura A, ‘‘I’ll Make It Up to You:’ Examining the effect of apologies on forgiveness’ (2016) The Journal of Positive Psychology 1

King, Michael, Freiberg, Arie, Batagol, Becky and Hyams, Ross, Non-Adversarial Justice (Federation Press, 2014)

Lines, Wayne, ‘Civil Liability: New laws clear path for genuine apologies’ (2016) 38(8) Bulletin (Law Society of South Australia) 14

NSW Ombudsman, Parliament of New South Wales, Apologies – A practical guide (2009)

Ombudsman Western Australia, Parliament of Western Australia, Guidelines on Complaint Handling (2017)

Roschk, Holger and Kaiser, Susanne, ‘The nature of an apology: An experimental study on how to apologize after a service failure’ (2013) 24(3) Marketing Letters 293

Stubbs, Julie, ‘Beyond apology? Domestic violence and critical questions for restorative justice’ (2007) 7(2) Criminology & Criminal Justice 169

Victorian Ombudsman, Parliament of Victoria, Apologies Report (2017)

Vines, Prue, ‘Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue’ (2015) 22(4) Psychiatry Psychology and Law 624

Vines, Prue, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ (2005) 27(3) Sydney Law Review 483

Zwart-Hink, Andrea, Akkermans, Arno and Wees, Kiliaan Van, ‘Compelled Apologies as a Legal Remedy: Some Thoughts from a Civil Law Jurisdiction’ (2014) 38(1) University of Western Australia Law Review 100

 

  • Legislation

Defamation Act 2005 (Vic)

Wrongs Act 1958 (Vic)

 

  • Other

Australian Press Council, Remedies without adjudication (2011) <https://www.presscouncil.org.au/remedies-without-adjudication/&gt;

Duncan, Tom, ‘Ethical Governance: Accountability, Transparency and Responsibility in Parliaments’ (Paper presented at the 35th CPA Australia and Pacific Regional Conference Cook Islands, Rarotonga, 27 November – 1 December 2016)

Government of Western Australia, National Apology to the Stolen Generations (March 2018) Western Australian Museum <http://museum.wa.gov.au/explore/articles/national-apology-stolen-generations>

Marlow, Karina, ‘Explainer: the Stolen Generations’, SBS (online), 1 December 2016 <https://www.sbs.com.au/nitv/explainer/explainer-stolen-generations&gt;

Mills, Tammy, ‘Sorry is the hardest word: why our authorities don’t apologise for stuff-ups’, The Age (online), 2 May 2017 <https://www.theage.com.au/national/victoria/sorry-is-the-hardest-word-why-our-authorities-dont-apologise-for-stuffups-20170502-gvxdyn.html>

NHS Education for Scotland, The Power of Apology (2010) <https://www.nes.scot.nhs.uk/media/6338/Apology%20Spring%20Focus%202010.pdf&gt;

Riddington, Liana Kayley, Responding to a Trust Violation: The Relative Effectiveness of Apology, Denial, and Reticence (Thesis, University of Tasmania, 2015)

Vines, Prue, ‘The Apology in Civil Liability: Underused and Undervalued?’ (Working Paper No 33, University of New South Wales Faculty of Law Research Series, 2013)