Application process now open to join the VSBC Mediation Panel 

The Victorian Small Business Commission is now accepting applications for appointments to its Mediation Panel. 
Applicants should have:

· National mediator accreditation under the National Mediator Accreditation System (NMAS) by a Recognised Mediator Accreditation Body (RMAB);

· Relevant experience;

· Indicated relevant jurisdictional capability and knowledge;

· Agreed to comply / demonstrated compliance with the administrative requirements of the VSBC; and

· Confirmed their ability to undertake mediation appointments if offered. 

Panel Members will be appointed for a two year duration. The application process is open until midnight Friday 29 September. 

You can find out more at the VSBC website.

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Apology in Victim Offender Mediation

This is a guest post by Professor Mandeep K Dhami, PhD. who is Professor in Decision Psychology at Middlesex University, London. Her research focusses on questions of human judgment and decision-making, risk perception and risk taking, and understanding and communicating uncertainty.

Victim–offender mediation practices bring conflicting parties together so they can engage in a two-way dialogue and ultimately negotiate a mutually agreeable resolution. The fact that apology may be a motivator for participating in the mediation process and that it is often a common outcome of mediation suggests that research on mediation ought to more carefully explore the nature of the apologies that are offered. Dhami’s (2015a) study provides a qualitative exploration of the prevalence and nature of the apologies offered by offenders to their victims during face-to-face mediations. Fifty-nine mediation agreements recorded by the longest running mediation scheme in the UK were analysed. It was found that 50.8% of agreements contained mention of the perpetrator saying ‘I’m sorry’ or offering a partial apology (i.e. acknowledging harm and/or promising forbearance). Full apologies were absent in the mediation agreements. Agreements did not make explicit mention of the offender admitting responsibility or expressing remorse or regret. Finally, although the mediation agreements did not make any explicit mention of offenders offering reparation, they did record efforts at providing solutions to the conflict.

 

It is stated that full apologies comprise at least five specific components (i.e., admitting responsibility, acknowledging harm, expressing remorse, offering reparation, and promising forbearance). However, full apologies are not commonplace, and wrongdoers are more likely to offer a partial apology. Dhami (2017) conducted an empirical study of how people perceive a partial apology. Eighty young people were asked to rate the extent to which a partial apology comprising one component implied each of the four remaining (uncommunicated) components of apology. Participants believed that when someone offers a partial apology, that person also implies, to the same extent, the remaining (uncommunicated) components of apology (either combined or separately). A partial apology involving either an acknowledgment of harm or offer of reparation implied to a lesser extent the promise of forbearance than some other components i.e., the admission of responsibility and the expression of remorse. In addition, a partial apology involving the expression of remorse or promise of forbearance implied to a greater extent the admission of responsibility compared to some other components i.e., the acknowledgment of harm and the offer of reparation.

 

Past research on VoM has highlighted the importance of apology for both victims and offenders and the prevalence of apology during the mediation process. Dhami (2012) examined the nature of the apologies that are offered during mediation, as well as the individual-, case-, and mediation-level factors that can affect the offer and acceptance of apology. In addition, the study measured the implications that the offer and acceptance of apology can have on satisfaction with the mediation outcome. The study involved a content analysis of 57 records of mediations occurring between 2008 and 2010 at a UK mediation centre. Perpetrators said ‘‘I’m sorry’’ in over one-third of cases, and full apologies were offered in nearly one-fifth of cases. Apologies were accepted in over 90% of cases, although forgiveness was much less common. The offer of apology was most closely associated with the type of incident/offence, and number of previous mediations in a case. There was also some support for the relationship between the offer of apology and victim age, perpetrator gender, formal sanction, and the number of participants attending the mediation meeting. None of the factors studied were associated with the acceptance of apology. The offer of apology was associated with satisfaction with the mediation outcome, and in all of the cases where the apology was accepted, the victim was satisfied with the mediation outcome.

Finally, the ‘apology-acceptance’ script that may prevail during the victim–offender mediation process suggests that victims may feel obliged or pressured to accept an offender’s offer of an apology. Violations of this expectation in terms of rejection of an apology or no recognition of it may influence the outcomes of mediation in several ways. Dhami (2015b) conducted two experiments examining the effects of a victim’s response to an offender’s offer of a full apology on offenders’ perceptions of the victim’s response, emotional reactions, perceptions of the victim, attitudes towards the dispute and attitudes towards mediation. Experiment 1 compared the effects of a rejection, acceptance and no recognition of an apology, and Experiment 2 further investigated the effects of an acceptance versus no recognition of an apology. It was found that offenders who had their apology rejected considered the victim’s response as least appropriate and were least satisfied by it. ‘Rejected’ offenders felt more anger towards the victim and had more negative impressions of the victim. Offenders who had their apology accepted felt more guilt and shame. They were, however, also more willing to reach an agreement and were more likely to perceive the conflict as being resolved. ‘Accepted’ offenders were also more likely to participate in mediation in the future and more willing to recommend mediation to others. The research also demonstrated that no recognition of an apology has adverse effects similar to a rejection of an apology.

 

References

Dhami, M. K. (2017). An empirical note on perceptions of partial apologies. Onati Socio-Legal Series, 7, 408-420.

Dhami, M. K. (2015a). Apology in victim-offender mediation. Contemporary Justice Review. DOI: 10.1080/10282580.2015.1101686

Dhami, M. K. (2015b). Effects of victims’ response to apology in victim-offender mediation. European Journal of Social Psychology. DOI: 10.1002/ejsp.2145

Dhami, M. K. (2012). Offer and acceptance of apology in victim-offender mediation. Critical Criminology: An International Journal, 20, 45-60.

 

Conclusion of Conciliation between Timor Leste and Australia

On 5 September 2017, the Permanent Court of Arbitration announced that there has been an agreement reached by conciliation between Timor Leste and Australia.  The dispute concerns the delimitation of maritime boundaries between Australia and East Timor, and is subject to the United Nations Convention on the Law of the Sea (UNCLOS).  There is enormous practical, commercial significance to the dispute due to the presence of oil and gas in the area.

There is often confusion surrounding the terms ‘mediation’ and ‘conciliation’. In some circles, the terms are considered to be synonyms, and used interchangeably – and most dictionary definitions will follow this approach. Similarly the Arbitration Rules of the China International Economic and Trade Arbitration Commission (“CIETAC”) refers in Article 47 to a hybrid conciliation/arbitration process, but this is commonly described and referred to as arb-med, and their Online Arbitration Rules refer in Article 37 to mediation.

In other contexts, both mediation and conciliation are considered to have a common process, but differ in the role of the third party facilitator. Here, a mediator would generally be less interventionist than a conciliator, and would not necessarily have legal qualifications in the subject matter of the dispute. The role of the conciliator, by contrast, is more advisory or evaluative than facilitative in nature. In the Australian context, for example, conciliation usually takes place within a statutory framework where a government appointed conciliator attempts to facilitate discussion and settlement between disputants, using the conciliator’s subject-matter expertise in the legal framework for the dispute.[1]

In public international law, good offices, mediation, and conciliation are often presented as being on a continuum of less to more formality. JG Merrills, considered a leading authority in state-state dispute settlement, states that the distinction between mediation an conciliation is that “a mediator generally offers proposals informally and on the basis of information supplied by the parties, rather than independent investigations [of the type found in conciliation].”[2] He characterises conciliation as a method that “puts third-party intervention on a formal legal footing and institutionalises it in a way comparable, but not identical, to inquiry or arbitration.”[3] This then contemplates a third party taking control of the investigation of a dispute, and proposing solutions that the parties may then wish to accept or reject, rather than a third party facilitating a search for common ground between the parties, or assisting the parties to reach their own negotiated terms of settlement.

The conciliation between Timor Leste and Australia very much follows the model set out by Merrils.   The process was undertaken by a five-person panel (known as a Commission),  chaired by Danish Ambassador Peter Taksøe-Jensen, who was also a former Assistant-Secretary General for Legal Affairs of the United Nations.  The rest of the panel was comprised of  Dr. Rosalie Balkin,  an Australian national who is former Director of Legal Affairs and External Relations at the International Maritime Organization, Judge Abdul G. Koroma, a Sierra Leone national and retired judge of the International Court of Justice,  Professor Donald McRae, a dual national of Australia and New Zealand and currently a Professor of Law, and Judge Rüdiger Wolfrum, a German national and member of the International Tribunal for the Law of the Sea. The composition of the panel, and the vast range of experience in maritime boundary disputes highlights the importance of their role as content experts.     The Australian Government has released a basic fact sheet on the way in which the process operates.

The Permanent Court of Arbitration has offered a fascinating insight in to the conciliation processes by making public a video of the opening of the conciliation between Australia and East Timor. The video is online here and is worth watching.

This conciliation also highlights the role of symbolism in international relations.  As the Chair of the Commission noted, the date of the agreement was 30 August – which also represents the anniversary of Timor Leste’s independence referendum, which was held on 30 August in 1999.  The conciliation is also significant as it is the first use of the conciliation procedures of UNCLOS, and states around the Asian region in particular will be closely observing the process and the ultimate resolution.   In this regard, Timor Leste’s Agent in the proceedings, Minister Agio Pereira, commented in the press release:

With our joint success at resolving our dispute through this conciliation process, Timor-Leste and Australia hope to have set a positive example for the international community at large.

As the press release explains, the details of the settlement are still being negotiated, and will remain confidential, as will the content of the conciliation itself.  The final agreement is expected to be made public in October 2017.

[1] See, for example, the Conciliation Process Model of the Australian Administrative Appeals Tribunal – http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/concilication-process-model

[2] JG Merrills, International Dispute Settlement (5th ed) (2011) at 26.

[3] Ibid, at 58.

ARE WE HERE TO RESOLVE OUR PROBLEM OR JUST TO REACH A FINANCIAL SETTLEMENT?

This article first appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 141, published in August 2017 (Sydney, Australia, ISSN 1449-7719), pp 12-16.  It has been reproduced with the kind permission of the author and the ALA.  For more information about the ALA, please go to: www.lawyersalliance.com.au.

women negotiatingINTRODUCTION

In every dispute resolution process the parties will find a balance along a spectrum from “it’s only about the money and settlement” to “we can manage our conflict much more broadly than a narrow focus on the past events related to this dispute.” There is a tension between these two extremes. In 2005, Baruch Bush and Folger reflected upon this tension, which they had expressed in their first edition of The Promise of Mediation:

‘In our view, the potential that mediation offered to foster and support positive human interaction within conflict was being squandered. Instead mediation was being used to shore up institutional processes that operate to control, contain, and settle conflict, because of a prevailing view that conflict interaction is a fundamentally negative social force’.[1]

On the one hand, the ability of dispute resolution (DR) processes other than formal trial to support people to resolve their differences in a holistic way is touted as a desirable attribute. On the other hand, within legal contexts, the purpose of DR processes is understood by many to be settling disputes quickly and cheaply, keeping them out of the formal trial process. There is a tension between those who advocate that one or other of these purposes is the ‘true’ purpose of DR processes. Strong opinions towards a settlement focus are particularly common within the context of formal justice systems and whenever lawyers are involved. In the court-connected context, the focus of DR is often the ending of a litigation process and avoiding further legal costs, as distinct from resolving a shared problem. Lawyers tend to focus upon settlement within the boundaries of what would be legally appropriate as the purpose of DR.[2]

This article revisits some of the promises of DR, to explain the imaginative potential that motivates those who champion the resolution-focused end of the spectrum. It then considers whether and how the context of the formal justice system shapes DR – including expectations about its proper purpose. The question of what parties want from DR is considered. The ways lawyers shape DR when they are involved in it is examined. Attention then turns to the reasons why a predominant focus upon the settlement purpose of DR may be appropriate and desirable. Conversely, the drawbacks of an over-emphasis on settlement to the detriment of other opportunities are considered. The conclusion from this discussion is that ultimately a broad resolution-focused approach may be maintained even within the context of the formal justice system; parties ought to decide what purposes they would like to pursue through their DR process; and lawyers ought to ensure that they are supporting their clients to make well-informed decisions about the optimal way to approach DR.

THE PROMISE OF DR

The foundations of the modern DR field were built on the multi-disciplinary pursuits of individualism, relationship, and peace-building. The promise was that DR would offer an alternative to existing processes that would free people in dispute from the confines of oppositional adversarialism, an exclusive legal lens, and untempered power imbalance. DR emerged from dissatisfaction with existing processes, promises about what new approaches offered, and changing attitudes towards conflict.[3] Hence the term ‘alternative’ dispute resolution (ADR) – being an alternative to trial or unassisted negotiation (which is typically conducted in an adversarial settlement style). Today, many in the field prefer to drop the ‘alternative’ tag, on the grounds that it misrepresents the central place that DR processes play in the life of disputes and justice systems.[4] Others argue just as ardently that the ‘alternative’ should stay, as a marker of history and because it distinguishes DR processes from the formal judicial system.[5] The promise of DR as an holistic and tailored approach to conflict and disputing is something that is universally acknowledged as at least a possibility.

DR IN THE CONTEXT OF THE FORMAL JUSTICE SYSTEM

The biggest growth area of DR has been within institutional contexts, particularly government and the justice system. Inevitably, when DR has been adopted by institutions, it has been adapted accordingly:

‘True to ADR’s essential characteristics of innovation, creativity and experimentation, ADR in the courts involves continuing adaptation and evolution of ADR processes. But as governments, tribunals, and courts borrow, co-opt and adapt ADR methods, an ironic shift becomes apparent. Control over the dispute resolution processes moves to the institution. …In short, rather than be designed to meet the specific needs and exigencies of the parties to the particular dispute, ADR techniques are adapted to fit the goals of the institution or system.’[6]

Typically, the reason institutions introduce DR is to settle disputes quickly and at minimal cost. Within court systems, DR has been adopted as a way to solve problems of delay and inaccessibility – effectively shifting disputes out of formal litigation processes and supporting parties to negotiate an outcome earlier than they otherwise would.[7] The purpose of settlement is very much prioritised where these are the bases upon which a DR system has been established.

Where DR is court-connected, because it occurs within the context of a litigated matter, there are obvious reasons why the focus of the process tends to be upon the facts of past events, the legal issues between the parties, and the assessment of potential outcomes against the anticipated judicial view. Where trial or abandonment are the likely alternatives to a negotiated outcome, parties will naturally consider their options against those possibilities. Lawyers are more likely to be involved in court-connected DR processes and they will bring their professional legal lens to the process and dispute. Law and legal rights tend to dominate court-connected DR.[8]

However, there are no absolute barriers to a broad, relationship-focused, adaptable, holistic approach to the parties’ disagreement being taken within court-connected DR. There are no legislative definitions of DR, guidelines or rules that limit court-connected DR to a settlement and/or law-oriented focus on the dispute. Rather, there has been a trend for court-connected DR to be defined in generic terms that can potentially incorporate a wide range of DR practices.

WHAT PARTIES WANT FROM DR

The Productivity Commission’s latest report about access to justice noted that there are deficiencies in the availability, quality, and utilisation of data about the civil justice system – in particular, the experiences of, effects on and costs incurred by end users.[9] The LAW Survey has provided some data at a population level.[10] Data is often gathered from lawyers and institutional parties rather than directly from individual end users of DR, generally because of the ease with which data can be gathered from ‘repeat players’ compared with individual one-off parties.[11] Research conducted within service provider organisations, often in the form of client feedback surveys, presumably provides data about party expectations. However, these are rarely published publicly.

From the limited evidence available, we know that parties often want to explore a broader range of issues in DR than their lawyers think they do.[12] For example, Tamara Relis’s research involving medical malpractice claims demonstrated that although the lawyers for all parties thought that the dispute was mostly about money, and one-third of plaintiff lawyers thought their clients only wanted money, plaintiffs reported wanting to explore a much broader range of matters in the DR process.[13] Research has also revealed that parties’ experiences of process are strongly aligned with their satisfaction, whereas lawyers tend to evaluate DR according to whether or not a settlement was reached.[14]

HOW LAWYERS INFLUENCE WHAT PARTIES WANT AND WHAT THEY CAN GET FROM DR

Lawyers have significant influence in shaping their clients’ expectations about DR processes, the way that the process is conducted, the subject matter discussed, and the outcomes achieved.[15] Lawyers actively encourage their clients to reach sensible settlements, inevitably assessed according to the lawyer’s view of what is reasonable. The potentially broad scope of outcomes that could be achieved through DR may be limited by lawyers’ views that the appropriate scope of DR is narrow and focused upon likely legal outcomes weighed against financial costs and risks.[16] Lawyers modify their clients’ expectations about what DR is, what role they should play in it, how the negotiation should be approached, and what could be achieved.[17] There is scope for greater research into the reasons for the widely recognised narrowing of DR by legal service providers. Some contributory factors include lawyers’ professional identity,[18] interpretation of their ethical duties,[19] personality,[20] and legal training.[21]

WHY SETTLEMENT IS DESIRABLE AND APPROPRIATE

Settlement undoubtedly has many attractions for disputing parties. It means that negotiations about the dispute can cease and the parties can spend their time, money and emotional energy on other things. Where the settlement involves payment from one party to another, both are able to move into the future with certainty about their financial situation. Where litigation has commenced, the settlement will also signal the end of the parties’ involvement with the formal justice system about their dispute. Ultimately, these benefits of settlement are desirable.

Furthermore, for many parties, the quantum of settlement payment is their primary concern about the dispute. Therefore, the negotiations may be focused upon monetary quantum and conducted in a distributive manner – where the limited pie is divided through a series of offers and counter-offers. Where one of the parties to a negotiation is an insurer or organisation with whom the individual party has no ongoing relationship, it is arguable that there is little prospect of the broader promises of DR to be explored through the process of resolving the immediate dispute.

Even where other styles of negotiation are adopted, whereby the parties expand the pie by identifying scope for negotiation about payment manner or timing, or explore one another’s interests to see if creative opportunities can be found, ultimately, the negotiation at some point will focus upon the quantum to be paid by one party to another. Settlement, whether on simple or complex terms, is the ultimate shared goal between the parties.

THE DRAWBACKS OF A SETTLEMENT FOCUS

There are, however, drawbacks to an over-emphasis on settlement. The potential for creative and imaginative exploration of resolution possibilities is hindered by a preoccupation with settlement of the immediate dispute (particularly where the focus is the immediate dispute as defined by the pleadings). Distributive bargaining locks parties into an assumption that their options for resolution are limited. The chances of impasse are higher than where a more curious and flexible approach is taken to the negotiation.

One of the greatest lost opportunities of a settlement focus in DR is that the possibility that the parties will achieve relational benefits of DR is very low. The promise of DR includes the ability for people in conflict to come to a better understanding of the conflict dynamics to which they have contributed, of the perspective of the other parties to the dispute, and of ways in which their relationships may be conducted in the future to avoid similar disputes remaining unresolved. A relational approach is appropriate in family law, workplace conflict (including compensation claims), commercial matters related to business dealings, estate matters, and all other disputes between parties who have a past, present or future relationship of some kind.

Even where parties do not have a relationship, there may be benefits that could be derived by taking an approach to DR that is broader than a monetary settlement focus. The parties in dispute may not have a relationship in personal injuries matters where an insurer manages the claim-making, in one-off consumer complaints, or discrimination claims made outside of personal relationship contexts. In all of these kinds of dispute, there is a human element to the conflict. The claimant may benefit greatly from the opportunity to tell their story of loss, to receive an explanation or apology, and to learn about changes that have been made to avoid harm to others in the future. It may be appropriate in some circumstances for the outcome of the DR process to include some kind of public statement about the resolution that has been reached.

CONCLUSION

The title of this article asks “Are we here to resolve our problem or just to reach a financial settlement?” and the answer is “It depends.” The context of legal services or litigation does not preclude parties from deciding to pursue much broader outcomes than ‘settlement on terms mildly disagreeable to both parties’. The parties whose dispute is being managed should be put in a position to choose the scope of their DR process. For some, a narrow, predominantly money focus will be appropriate. For many, the DR process presents an opportunity to explore their conflict with the other party and achieve a range of potential benefits in process, content and outcome. Lawyers who understand the promise of DR and the different ways that it might be practised are best placed to support their clients to capture the full remedial imagination of the field. Although there are some limitations to the data available about party preferences, there is sufficient evidence of disconnect between what clients and their lawyers expect and want from DR processes. That evidence should provide food for thought for lawyers to ensure that they are serving their clients optimally in relation to the resolution and/or settlement of their disputes.

 

Dr Olivia Rundle is a Senior Lecturer in Law at the University of Tasmania. EMAIL Olivia.Rundle@utas.edu.au.

The author thanks the members of the Australian Dispute Resolution Network, whose scholarly engagement in traditional ways and through social media enhances and furthers my thinking about lawyers, dispute resolution and civil justice (adrresearch.net and @ADRResearch).

[1] Robert A Baruch Bush & Joseph P Folger, The Promise of Mediation: The Transformative Approach to Conflict (Revised ed, 2005, Jossey Bass), 1.

[2] Olivia Rundle, ‘Lawyers’ perspectives on “what is court-connected mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33.

[3] Carrie Menkel-Meadow, ‘Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections’ (2006) Negotiation Journal 485.

[4] Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (2016, LexisNexis).

[5] Tania Sourdin, Alternative Dispute Resolution (5th ed, 2016, Thomson Reuters).

[6] Margaret A Shone, ‘Law Reform and ADR: Pulling Strands in the Civil Justice Web’ (Paper presented at the Australasian Law Reform Agencies Conference, Wellington, New Zealand, April 13-16 2004) 6.

[7] The Hon Justice James Spigelman, ‘Just, Quick and Cheap – A Standard of Civil Justice’ (Paper presented at Opening of Law Term, Parliament House, Sydney, 31 January 2000); Nancy A Welsh and Peter T Coleman, ‘Institutionalised Conflict Resolution: Have We Come to Expect Too Little?’ (2002) 18 (4) Negotiation Journal 345; Kathy Mack, Court Referral to ADR: Criteria and Research (National ADR Advisory Council and Australian Institute of Judicial Administration, 2003) 17. Kathy Mack noted that courts have rarely articulated why they introduced DR. Nadja Alexander, ‘Mediation on trial: ten verdicts on court-related ADR’ (2004) 22(1) Law in Context 8, 17.

[8] Craig A McEwen and Roselle L Wissler, ‘Finding Out If It Is True: Comparing Mediation and Negotiation Through Research’ (2002) University of Missouri Journal of Dispute Resolution 131, 133; Jacqueline M. Nolan-Haley, ‘Court Mediation and the Search for Justice Through Law’ (1996) 74 Washington University Law Quarterly 47, 64.

[9] Productivity Commission, Access to Justice Arrangements (Inquiry Report No. 72, 2014), Chapter 25.

[10] Christine Coumarelos et al, Legal Australia-Wide Survey: Legal Need in Australia (Law and Justice Foundation of NSW, Volume 7, 2012) http://www.civiljustice.info/cgi/viewcontent.cgi?article=1024&context=access.

[11] Jane Elix and Tania Sourdin, Review of the Financial Industry Complaints Service 2002 – Final Report (Community Solutions, La Trobe University, University of Western Sydney, 2002) https://www.fos.org.au/custom/files/docs/fics_final_independent_review.pdf, Appendix B.

[12] Robert A Baruch Bush and Sally Ganong Pope, ‘Transformative Mediation: New Dimensions in Practice, Theory, and Research’ (2002) 3 Pepp. Disp. Resol. L.J. 1 cited in Louise Phipps Senft and Cynthia A Savage, ‘ADR in the Courts: Progress, Problems, and Possibilities’ (2003-2004) 108 Penn St. L. Rev 327, 335.

[13] Tamara Relis, Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs and Gendered Parties (Cambridge University Press, 2009).

[14] Carol Bartlett, ‘Mediation in the Spring Offensive’ (1993) Law Institute Journal 232; Marie Delaney and Ted Wright, Plaintiff’s Satisfaction with Dispute Resolution Processes: Trial, Arbitration, Pre-Trial Conference and Mediation (1997); Jill Howieson, ‘Perceptions of Procedural Justice and Legitimacy in Local Court Mediation’ (2002) 9(2) Murdoch University Electronic Journal of Law http://www.murdoch.edu.au/elaw/issues/v9n2/howieson92_text.html; Judith Resnik, ‘Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement’ (2002) Journal of Dispute Resolution 155; Brad Reich, ‘Attorney v Client: Creating a Mechanism to Address Competing Process Interests in Lawyer-Driven Mediation’ (2002) 2 Southern Illinois University Law Journal 183; Nancy Welsh, ‘Stepping Back Through the Looking Glass: Real Conversations with Real Disputants About Institutionalized Mediation and Its Value’ (2004) 38 Ohio State Journal on Dispute Resolution 573.

[15] Lillian Corbin, Paula Baron and Judy Gutman, ‘ADR Zealots, Adjudicative Romantics and Everything in Between: Lawyers in Mediations’ (2015) 38(2) UNSW Law Journal 492; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (2010, CCH); Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (2008, UBC Press).

[16] Olivia Rundle, ‘Lawyers’ perspectives on “what is court-connected mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33.

[17] Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: The Supreme Court of Tasmania’ (2013) 32(1) UTLR 20; Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2009) 8(1) QUTLJJ 77.

[18] Becky Batagol, ‘Fomentors of Strife, Gladiatorial Champions or Something Else Entirely? Lawyers and Family Dispute Resolution’ (2008) 8(1) QUTLJJ 24; Boulle and Field, above note 4.

[19] Bobette Wolski, ‘On mediation, legal representatives and advocates’ (2015) 38(1) UNSW Law Journal 5.

[20] Leonard L Riskin and Nancy A Welsh, ‘Is That All There Is?:The Problem in Court-Oriented Mediation’ (2008) 15 Geo Mason L Rev 863.

[21] Corbin et al, above note 15; Kathy Douglas, ‘The teaching of ADR in Australian law schools: Promoting non-adversarial practice in law’ (2011) 22(1) ADRJ 49; Macfarlane, above note 15.

From Floppy Disks to Future Lawyers – ADR and Online Legal Education

By Alice Cooney

In 2000, when I was in high school, my grandmother made the announcement that she was beginning a law degree.  Although she had completed tertiary study later in life, my grandmother had left school at 14 to support her family during the Depression.  Believing in the ethos that you “learn something new every day”, my grandmother made that belief a bit more structured by enrolling in a Bachelor of Laws.

At the time, Facebook did not yet exist, MySpace hadn’t been created and the era of iPhones was another seven years away.  I distinctly remember asking my grandma if she was enjoying her study, and she complained that the course had a requirement that she complete an entire subject wholly online.  For someone who had grown up without computers, you could forgive her for feeling completely out of place in the online world.  Her computer was very good for a game of space invaders, and I can still hear the high pitched whir of the dial up modem logging in, but compared to what I use for my study now, I couldn’t imagine anything more archaic!

She was awarded her Bachelor degree at the age of 75 (due to some last minute recognition of her prior learning) and we had a pseudo graduation ceremony in her hospital room a week before she passed away from a brain tumour.  Now I often think that I would like to tell her about my experiences as a lawyer.  I want to tell her about my court cases, the challenges of self represented litigants and how her recommendation for me to study Latin as a teenager may not have been as ludicrous as I thought!  As I have been working through my Masters of Law, I have been thinking a lot about how studying law has changed and how online dispute resolution (ODR) would not have been a reality for her.

Since completing my law degree, I have worked as a sessional tutor, while working full time, and slowly progressed through my Masters.  The access I have to further study (including being able to attend a class on my phone whilst in a taxi on my way home from the office) means that I can simultaneously fulfil life goals and don’t have to wait until I am 70.  It has also allowed me to experience a change in study, and an alteration in the teaching techniques of legal academics.

keyboard-621830_960_720

Photo: JeongGuHyeok, Creative Commons

As the legal world embraces more forms of alternative dispute resolution, the academic world has looked at options to expand access to education.  One difficulty that I see has been the culture of instantaneous access to information, academics and feedback.  Allowing students to log in and live stream lectures or listen to recorded material at their convenience has been a wonderful asset to the profession.  The study of law is not quick though, the concepts are difficult, fraught with exceptions. Trying to reinforce the importance of the postal acceptance rule in a world where most young people have never sent a letter poses new issues.   There is an unrealistic expectation of students that academics will be available at their whim because there is now direct access like never before.  This instantaneous contact is not a reality with most clients and certainly not the case with accessing the courts.

Developing a skill set in ADR is incredibly important for lawyers, and the majority of legal disputes can and should be settled using these techniques.  The costs alone warrant this but it doesn’t mean the skills and techniques necessary for traditional legal practice should be undervalued.

Having recently completed a few subjects using online platforms, including Online Dispute Resolution (a part of or distinct to alternative dispute resolution depending on who you ask!), I see some challenges.  I followed this up with Copyright X, a subject based on content from Harvard University where all the lectures are actually on YouTube.  As I had previously been an on-campus student for my undergraduate degree, I found it difficult to embrace the online space for learning, despite being connected to my iPhone, iPad or computer at work (and socially!) no matter where I physically am.  I found that some of the classes were spent attempting to figure out how to recreate the classroom space in the digital world.

Just as ADR methods have had to depart from traditional legal processes, the learning space for studying these techniques will need to move away from trying to emulate what happens in a classroom.  Additional issues now seen in the online learning space include the internet dropping out, microphones not working, or unexpected visitors dropping in as experienced during the live interview of BBC correspondent Professor Robert E Kelly.

The issue of developing new ODR techniques, or teaching ADR concepts online, is that it can reinforce a disconnect with the reality of litigation if a proceeding is referred to a court or tribunal.  The delays in court dates and the continuing need to print copies of all materials in triplicate is broadening the divide between the much faster resolution offered by ADR and ODR processes.  Whilst speedy resolution is preferable, that cannot always be the case in law and students need to have well rounded experience to survive in this competitive profession.

In an accidental consequence of ‘keeping it all in the family’, my younger sister is now in her first year of law studies – she is already able to do better with alternative methods of study than I was.  I imagine that my sister, grandmother and I could have had some great legal debates over FaceTime or Skype, particularly about the merits of ADR using online platforms.   If the use of new study methods can change so rapidly, I’m very hopeful that ODR will expand too, lessening the impact on the courts, tribunals and regulatory bodies that are waning under the pressure of the workload.

Alice Cooney is a government solicitor specialising in litigation and dispute resolution. Alice has worked as a university sessional tutor for many years and as a trainer in prosecution techniques.  Alice has particular academic interests in advocacy, sentencing and the use of alternative dispute resolution by government agencies.

 

Too Much of a Good Thing? Certainty, Flexibility, and the Law, in International Commercial Arbitration

By Dr Benjamin Hayward

The very attraction of alternative dispute resolution is that it takes place outside of the courts.  Because of this, ADR processes aren’t bound by the strict procedures that apply in litigation.  ADR options are more flexible options.  But how flexible is too flexible?  Where is the line drawn?  And when it comes to flexibility in ADR, is it possible to have too much of a good thing?

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Photo: Roger McLassus, Creative Commons

 

This blog post is about international commercial arbitration (‘ICA’).  As far as ADR goes, arbitration is a relatively formal option.  In ICA, commercial parties choose to submit their dispute to one or more arbitrators, for determination according to law – and forego access to the courts.

That ICA is a preferred means for resolving cross-border commercial disputes has been consistently shown by empirical studies carried out at the School of International Arbitration.  Of ICA’s many advantages – including its procedural neutrality, confidentiality, and the international enforceability of arbitral awards – flexibility is quite important.

Parties can tailor an arbitration’s procedure to their own requirements.  They can choose where their arbitration is held.  They can choose the language to be used.  They can choose whether their arbitrators require any particular qualifications or expertise – and can even choose the arbitrators themselves.  They can also agree on how their arbitration will be conducted.

In addition, parties can choose the law that the arbitrators will apply in resolving their dispute.  For example, parties might include a choice of law clause in their contract, alongside their arbitration agreement.  Most parties do – around 83%, according to data from the International Chamber of Commerce (‘ICC’).  Where they don’t, the task falls to the arbitrators.  Even if the parties don’t choose a governing law, arbitrators must still apply the law.  Here, the virtues of flexibility become a little more difficult to accept.

Arbitrators’ powers to identify the governing law are set out in the laws and rules governing the arbitration itself.  Typically, arbitrators are granted very wide discretion.

In research that I conducted for Conflict of Laws and Arbitral Discretion, I reviewed over 130 (current and superseded) arbitration laws and sets of arbitral rules.  The most common approach – appearing 60 times – grants arbitrators the power to simply apply whatever law they feel is ‘appropriate’ or ‘applicable’.  A good example is seen in the ICC Arbitration Rules, now in their 2017 edition (emphasis added):

Article 21: Applicable Rules of Law

(1)  The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute.  In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate.

My research critiques the desirability of granting arbitrators these wide (and effectively unreviewable) discretions to identify the governing law.  While flexibility is undoubtedly a key advantage of arbitration, this kind of flexibility carries too far – flexibility in choosing between different laws, that may lead to different outcomes, effectively becomes flexibility in the end result.[1]

Without any kind of criteria required for the exercise of these discretions, how can they be justified when the outcome of the case is at stake?  For example, an arbitration may be initiated after three years, the statute of limitations in the claimant’s country might allow for four years, but the respondent’s country might only allow for two – selecting between these laws will determine if the claim can proceed, or whether it can’t even be argued at all.

This particular kind of flexibility may not be consistent with the interests of companies that are the ultimate users of ICA.  They may choose arbitration, as an ADR process, specifically because they want enhanced certainty regarding their substantive legal rights.[2]

Flexibility is a good thing in ADR, and it is a good thing in arbitration.  However, like all good things, it has its limits.  In Conflict of Laws and Arbitral Discretion, I argue that arbitrators should instead be required to apply a more specific rule to identify the governing law.

Though limiting flexibility, this may actually support the interests of arbitration’s users – improving their ability to foresee the law that they are ultimately bound by.  Uncertainty over the identity of that law leads to uncertainty over the parties’ rights and obligations.  Parties need to know how to perform their contracts; they need to know how to conduct their cases in an arbitration; and they need to be able to make sensible decisions about settlement.

All of these objectives would be furthered by taking just a little bit of flexibility out of arbitration.  When it comes to flexibility, and its impact upon the legal rights and obligations of parties, there might just be too much of a good thing.

[1] Simon Greenberg, ‘The Law Applicable to the Merits in International Arbitration’ (2004) 8 Vindobona Journal of International Commercial Law and Arbitration 315, 335.

[2] Gary Born, International Commercial Arbitration (Kluwer, 2nd ed, 2014) 2616.

About Dr Benjamin Hayward

Dr Benjamin Hayward is a Senior Lecturer in the Department of Business Law and Taxation, at the Monash Business School, Monash University.  His research interests span international commercial arbitration, the international sale of goods, private international law, and Australian contract, commercial, sales, and consumer law.  Dr Hayward has a particular interest in how the applicable law is identified in international commercial arbitration, and the implications of this for arbitration as a dispute resolution mechanism.  He is the author of Conflict of Laws and Arbitral Discretion – The Closest Connection Test (Oxford University Press, 2017)

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

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

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

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

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

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

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

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

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