Put that in your Diary: National Mediation Conference 2021

We now know the date as well as the location of the next National Mediation Conference. Now’s the time to put it on your diary. NMC is a practitioner-focused conference with a strong academic edge, covering all areas of dispute resolution. You can see the details of the last NMC here.

The next NMC will be held in Alice Springs, Northern Territory from 1-4 September 2021. Importantly, the conference will be hosted on the grounds of Desert Knowledge Precinct, a beau­ti­ful 73 hectare prop­er­ty on the South Stu­art High­way, 8km south of the Alice Springs CBD.

alice springs

Spectacular Alice: ANZC by Ayi Lui (CC BY-NC-ND 2.0)

A copy of the press release from Prof Laurence Boulle, Chair of the NMC is posted below. Both Laurence and  Alysoun Boyle are members of the ADRR Network and are planning the 2021 conference.

The directors of the National Mediation Conference Ltd acknowledge the Traditional Owners of country throughout Australia, and in the context of this announcement especially the Western Aranda and Central Arrernte peoples of the Alice Springs region.  We recognise their connection to land, waters and culture, and we pay our deep respects to their Elders past, present and emerging.

In this regard the NMC is delighted to announce that the Desert Knowledge Precinct Partners (Centre for Appropriate Technology, Batchelor Institute of Indigenous Tertiary Education, Desert Knowledge Australia and the Desert Peoples Centre)  have issued an invitation to us and the dispute resolution community to hold NMC 2021 at their facilities in Alice Springs (https://www.dka.com.au/activities/dk-precinct).

The NMC directors have accepted this invitation and would also like to acknowledge the valuable assistance from the Northern Territory Business Events Support fund for NMC 2021.

The Welcome Reception for the conference will be on the evening of Wednesday 1 September 2021 and the event will run over the following three days, namely 2, 3 and 4 September.  In setting these dates the NMC Board has taken into account the timetable of The Ghan train from Adelaide to Alice Springs, and return.

Please save these dates and spread the word for an innovative, stimulating, and inspiring conference in the heart of the country.

The NMC Board is currently appointing a Design Committee to plan the conference and is commencing a formal process for selecting a Professional Conference Organiser. In due course, the Design Committee will start providing regular updates on all aspects of the conference.

Now it’s time to Save the Date and start preparing for a superb engagement in a wondrous setting.

See you in Alice.

Professor Laurence Boulle AM

Chair, NMC Board                                                                                                                            3 March 2020

 

The Benefits of Technology Assisted Training in Dispute Resolution

Thank you to Joanne Law for this post.

Joanne Law is a registered Family Dispute Resolution Practitioner, NMAS Accredited Mediator, Certified Family Group Conference Facilitator and New Ways for Families Coach.  She’s owner of Mediation Institute, established in 2013 to provide eLearning for the dispute resolution industry, with a human touch.

She is a professional trainer and co-founder of the not-for-profit Interact Support established to prevent family violence and abuse by providing accurate information and dispute resolution services for people who are slipping through the cracks in the family law system

Joanne records a podcast called Mediator Musings which you can find on iTunes and other podcast distributors and is curator for TEDxCasey in South East Melbourne.  

Our Earth planet and modern life. Elements of this image are furnished by NASA

 The benefits of technology assisted training in dispute resolution

Using education technology is a rapidly growing approach to human learning. The dispute resolution education industry is not immune this trend and eLearning is now well established by pioneering organisations such as Mediation Institute. 

The traditional approach to mediation training gathers people into a room for a workshop with lecture style instruction on new material and role plays in an intensive training environment.

Studies that compare classroom instruction, eLearning and blended learning indicate that eLearning and especially blended learning are at least as good as, and when well-designed, outperform classroom instruction alone.   The major factors in eLearning that provide these benefits are realistic practice, spaced repetitions, contextualised meaningful scenarios and feedback.  

There have been various studies and meta studies such as Means and Colleagues 2013—Meta-Analysis which conclude “eLearning-only situations produced an equal amount of learning compared with classroom-only situations. Blended learning (a combination of both classroom and online learning) produced better results than classroom-only instruction.

It makes sense to use of technology to support learning in terms of cost, accessibility and flexibility. Mediation Institute delivers courses either fully online or via blended learning where there is no adequate way to simulate through video meeting.  Our Family Group Conference Facilitation course is one where the skill to learn is facilitating a group meeting which takes place face to face.

It is important to design learning for eLearning and not just put offline material online.

What is online learning? 

Online learning or eLearning is a form of education whereby the primary delivery mechanism is via the internet (Bates 2008) It is more than an evolution of the distance learning correspondence course and when well-designed makes use of technology in a unique way.  The use of a website to deliver PDF content is still available and called online learning but that kind of approach gives eLearning a bad name, and promotes a bad student experiences and high drop out rates. 

E-learning includes the use of a learning management system to provide course content, the opportunity to blend audio and video material, conduct quiz’s and assessments and to engage in on line recorded and live classes with other students.

Three of the biggest advantages we see for students in online learning are individualised learning, better feedback delivery and helping our learners to be better prepared for the future in the industry which we firmly believe will have a much greater presence of Online Dispute Resolution.

Individualised Learning

The accessibility and flexibility of elearning means that learning can be individualised . In the case of skills learning activities can be reduced down to the minimum number of participants to participate in a role play.

We are eagerly awaiting the time when Virtual Reality and Artificial Intelligence is sufficiently advance and affordable to allow us to provide individualised simulation opportunities for students. Till then with three students and a mentor and two hours to spare they can participate in a role play from wherever they are, providing they have access to the internet.

We favour asynchronous learning where possible, which means is that students can start their studies with Mediation Institute when they are ready to start, move through the course at their own pace and book in to do their role plays when they are ready.

There is real time learning in webinars and role plays but the rest of the course is self-paced with discussions via a forum where they can read other students’ entries and contribute in their own time.   Semesters, course start dates and set assessment are for the convenience of educational institutions and provide no benefit for students, apart from a bit of extrinsic motivation.  This flexibility means that we are tracking at 95 – 100% completion rate, depending on the course.

Individual support starts when a new student joins a course as we can use web meeting technology to offer individualised student orientations.  In the session we hand over control of screen sharing to the student so they can navigate the course on their computer and the mentor can guide them remotely.  Students book in for sessions like this using an online booking calendar tool that lets them schedule a session and insert it into the mentor’s calendar.   

The other benefit of this individualised approach to learning is that the first role plays that they participate in are with students who have already participated in three role plays as a role player before their first role play as a mediator.  In workshops the first role plays are often short and very messy due to everyone struggling to understand the new information they have just been presented with and a lack of good examples to work from.  All of the role plays our students participate in are scheduled for two hours and provide the opportunity for tailored mentoring based on the needs of the student who is learning their new skills.

We use flipped learning which means that the theory learning takes place using online learning before interactive webinars, role play sessions or workshops. The students will have already completed some or all of the theory part of the course and ideally have had time to integrate what they have learnt as role players well before they attempt to use the skills as the facilitator.

This isn’t possible in a workshop as the time constraints of the schedule mean that the delivery pace is usually going to be too fast or too slow for the majority of the group.  People get pushed through to role playing being a mediator with an incomplete understanding of the knowledge they need and sometimes struggle to even remember let alone understand the content and effectively translate it into competent role plays for their final assessment.

Our learning approach means that students are competent by the time they reach their assessment 95% of the time. For the small number who are not we offer further coaching and the opportunity to be re-assessed.  

Better feedback delivery

Being a competent mediator is a unique skill building on interpersonal skills that most students already have. Learning how to mediate requires an adjustment in mindset and approach. Our experience is that students are often older learners who are very competent in roles where they give advice or advocate for clients.  They may be used to working with a certain type of client, for example victims of family violence and have to learn how to work with other people in a non-judgemental way in order to facilitate a fair process while still using judgement in order to ensure that the process is physically and emotionally safe. It is complex work.

Approximately one third of our students are legally trained, another third are counsellors, psychologist or social workers and the rest from a business or other background. 

They need to learn the mediation process, why the process developed and what each part of it does to help people to negotiate more effectively and how to be non-judgemental and empowering in their facilitation styles.

The benefit of doing our role plays using video mediation is that students can record their role plays and review them to help them to take in the feedback from their mentor. 

Unconscious bias, poor questioning or failing to use active listening effectively and other problems can be pointed out and then they can review their role play to observe themselves.

I still remember the cognitive resistance that I and other learners had when I learned mediation in the traditional way, there was no action replay available to us! Sometimes we thought the mentor must have been mistaken in their feedback or struggled to understand it,  impeding our learning.  

Better prepared for the future

Online mediation is a growing trend that will continue to grow as more and more “digital natives” take up roles in business and become clients for mediators. Communicating electronically using video meeting technology is already becoming common.  

I’ve already seen this trend in my own career as a dispute resolution professional and in the not-for-profit run, Interact Support.

Our policy is that if there is a family violence order in place, we don’t offer offline services. The options are video mediation, video shuttle mediation or mediator facilitated negotiation.   The majority of our clients either seek out or accept video mediation even if family violence isn’t a factor in their relationship breakdown. 

The use of legal tech is also going to be a major trend in our industry.

We train our CHC81115 – Graduate Diploma of Family Dispute Resolution students using Legal Tech software such as the Detection of Overall Risk Screening tool (DOORS) and FamilyProperty for their property FDR mediation simulations.  We believe that it is important to ensure that new mediators are comfortable using technology with clients.  Those who go on to do their fifty hours work placement with Interact Support are already prepared to work effectively with clients using video mediation and Family Property for their mediations and will be learning how to use MODRON for case management.

We’re currently developing a course on mediation case management which will be built around the MODRON online dispute resolution software.

The tool helps us to manage case management for our low income and community mediation programs. 

We are firmly in the information revolution now that knowledge can be captured, digitally transported and used later.  We are at an equivalent stage to the start of the industrial revolution when they were first able to capture energy and transport it for later use in the industrial revolution. 

My concern is that many mediators are caught up in the same sort of thinking that the Luddites used when trying to hold back the tide of industrialisation in the 19th century.  Resisting advances in technology due to the belief that it will threaten jobs is almost a self-fulfilling prophesy while embracing and using the technology to amplify our human capability ensures we remain relevant as dispute resolution professionals.

Failing to do that will see a continued advance of the use of Artificial Intelligence (AI) to replace human decision making and facilitation of dispute resolution processes.

Alternative Dispute Resolution is increasingly being required to be used before litigation and Online Dispute Resolution (ODR) is providing low-cost and independent dispute resolution in a much more accessible way that the traditional approach with its mediation rooms and waiting lists. 

A Victorian Civil and Administrative (VCAT) ran a pilot in 2018 on ODR powered by MODRON to evaluate a hypothesis that “If VCAT introduces online dispute resolution then the Victorian community will experience improved access to justice.”  You can watch a brief overview here https://youtu.be/LTkT9Z7cn9c on the pilot.

Mediation effectiveness doesn’t depend on the way it is delivered, what matters more is that it is available when it is needed rather than allowing disputes to continue to escalate.

When it comes to learning effectiveness, it is not whether the learning is delivered in eLearning or classroom instruction, it is the quality of the training that makes the difference.

Poor quality training in either context is going to be poor quality training.

Technology enables better quality training by making it easier to be more individualised, more flexible and provide better feedback and more realistic simulations. Anything that moves away from presenting information via a lecture and expecting a group of people to learn at the same pace is a positive improvement. 

The research shows that it is essential to present to learners’ realistic scenarios for decision making, spaced repetitions over time to ensure retention, real world context through simulations and high quality feedback on their individual performance.

Online learning provides the opportunity to give learners these opportunities more effectively.

Further reading

Design for how people learn Julie Dirksen and the Serious eLearning Manifesto – https://elearningmanifesto.org/

Online delivery of VET qualifications: current use and outcomes Tabatha Griffin and Mandy Mihelic National Centre for Vocational Education Research. https://www.ncver.edu.au/research-and-statistics/publications/all-publications/online-delivery-of-vet-qualifications

The GPC North America Report – reading between the ines

It is my pleasure to share Dr Rosemary Howell‘s most recent Kluwer Blogpost with the ADR Researcg Network community. I thank Rosemary for her continued and important contribution to the Global Pound Conversation.

Written by Dr Rosemary Howell

NA report cover

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

Beresford, Daisy Radcliffe, 1879-1939; Interior of the Great Hall, Guildhall, LondonInterior of the Great Hall, Guildhall, London

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

 It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

 We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

The GPC North America Report – reading between the lines

I am thrilled to share this post by Dr Rosemary Howell which first appeared in the Kluwer Mediation Blog of February 22nd, 2020.

I would like to take the opportunity to thank Rosemary for her continued support and important contribution to the Global Pound Conversation.

NA report cover

By Dr Rosemary Howell

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

Beresford, Daisy Radcliffe, 1879-1939; Interior of the Great Hall, Guildhall, LondonInterior of the Great Hall, Guildhall, London

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

 It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

 We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

Court Connected Mediation: New model at the Victorian Civil and Administrative Tribunal

When it comes to court connected mediation (CCM) it is useful to make a differentiate between the process which takes place in the room and the process which takes place outside of the mediation room. Many CCM programs will arguably use NMAS as the foundation of what happens in the mediation room. However, they will all have different out of the room process. These out of the room process add to the context and environment that the inside the room process takes place and has the potential to have an impact. It is within in this frame of reference that I would like to introduce and discuss a relatively new model of mediation known as Fast Track Mediation and Hearing (FTMH) and focus the discussion on the out of room process and environment FTMH takes place in and how they may impact the mediation, parties and mediator.

Background

The FTMH program was developed in response to a recommendation in the Access to Justice Review. [LINK] The FTMH is a partnership between the Victorian Civil and Administrative Tribunal (VCAT) and the Dispute Settlement Centre of Victoria. The program started in September 2017 with a staged roll out over four years. As of March 2020, will be offered in eight locations across Victoria with the VCAT on King St in the CBD the main location.

Jurisdiction

The program will meditate goods and services disputes that have a value of between $500 and $10,000.

Objective

To resolve and if not finalise disputes as quickly as possible.

Process

Appropriate disputes are identified and staff of the FTMH program will contact the parties. An intake will take place over the phone where the process will be discussed, and parties will be provided with information to allow them to be best prepared for the day where the matter will be resolved or finalised.

On the day, parties will arrive at VCAT and will go through a one-hour mediation. The in the room process is a NMAS based facilitative model. If the mediation results in an agreement, then terms of settlement are drafted and signed and the VCAT file is updated accordingly. If there is no agreement, then the parties are taken directly to the tribunal and their matter is heard by a VCAT Member who will make a determination. From the parties’ perspective they will leave VCAT with either an agreement reached in mediation or a determination from a VCAT member.

Unique Features and Impact

The FTMH program has a number of unique features which impact the mediation, parties and mediator including:

Front loading of time and costs: given that the parties will be going into a hearing and have the matter determined on the same day as the unsuccessful mediation, means that any costs will have already been spent prior to the mediation and there will be no further costs incurred to take the matter from mediation to a hearing. The same is the case for time. There will be no further time delay from mediation to a hearing.

Costs orders: VCAT is a generally a no costs jurisdiction. Which means that one of the key risks in matters of low value does not exist. Parties are not incentivised or at least they are less incentivised to settle as they do not risk having to pay the other parties legal costs if the hearing does not go their way.

Final agreement opportunity: The mediation in FTMH is the final opportunity for parties to resolve the dispute. They can not use the mediation as a fact-finding exercise or opportunity to test or hear the other parties offers. As there is no opportunity to continue negotiating if the mediation is not successful as the matter goes directly to a hearing and will be determined

Conclusion

This an exciting program that really addresses a need for disputing parties. It gives them the opportunity to try to resolve the dispute themselves but at the same time ensures that the dispute will be finalised on the one day allowing greater access to justice for disputing Victorians.

Much of the attractiveness of resolving disputes in CCM is the saving of time and money and mitigating costs orders. FTMH removes the delay and added costs generally associated with non-resolution of CCM. This has a potential impact on the incentives for parties to settle. It also limits the BATNA, WATNA and reality testing tools mediator would otherwise have in their tool kit. In time, I hope to do a research project to see what the actual impact the unique features have on the outcome and party satisfaction.

It is great to see continued innovation in the CCM space and it will interesting to see how this program develops.

Readiness and Ripeness in Family Dispute Resolution

This post is based on the article ‘Readiness for Family and Online Dispute Resolution’ by Nussen Ainsworth, Lisa Zeleznikow and John Zeleznikow. The article is published in the International Journal of Online Dispute Resolution 2019 (6) 2.

Readiness and Ripeness are important concepts in mediation. Much has been said about these concepts in the context of international conflict resolution.

Accordingly to Zartman, the key to successful conflict resolution lies in the timing of efforts for resolution. Parties resolve their conflict only when they are ready to do so when alternative, usually unilateral, means of achieving a satisfactory result are blocked and the parties find themselves in an uncomfortable and costly predicament. At that point, they grab on to proposals that usually have been in the air for a long time and that only now appear attractive. He argues that if the (two) parties to a conflict (i) perceive they are in a hurting stalemate and (ii) perceive the possibility of a negotiated solution, then the conflict is ripe for resolution.

Pruitt states that that readiness has two components, which combine multiplicatively:

  1. Motivation (that is, a goal) to end the conflict, which is fed by a sense that the conflict is unwinnable or poses unacceptable costs or risks and/or pressure from powerful third parties such as allies.
  2. Optimism about the outcome of conciliation and negotiation.

Wiget claims that various factors seem to be important for the prospects of success:

  1. The parties’ willingness to settle the dispute (or at least to negotiate in good faith towards a settlement) is perhaps the most important factor of successful mediation.
  2. The amount in dispute – An analysis of data from the Canton of Zurich indicates that the settlement rate falls dramatically with an increasing amount at stake.
  3. The parties’ ability to value the case – when neutral evaluation can be offered.

In family mediation, there is no corresponding notion of readiness or ripeness. The reason for this is that parties have little choice regarding when to negotiate as one party will commence the family dispute resolution (FDR) process, generally without reference to the other party. If the other party refuses to participate in the process, court proceedings may commence. It might be a good idea to wait for anger to subside prior to commencing the FDR process. This allows parents to focus on the children’s best interests rather than haggling about relationship issues.

While there are well-developed theories as to when to try to mediate international conflicts, there is little similar research regarding family disputes. Further, the time dimension in family mediation can mean that mediators do not have the flexibility to wait for the appropriate moment for dispute resolution. Some suggestions include:

  1. It might not be wise to conduct the FDR immediately after partners separate as it can be useful for the parties to receive some counselling.
  2. It is useful to have the parties separate financial and children’s issues and to sort out their finances before FDR commences.
  3. The FDR process tends to be more successful once the initial anger has dissipated.
  4. Most importantly, mediations tend to be more successful once power imbalances have been addressed. This process may involve shuttle mediation and should occur only if no safety issues are present.

I.W. Zartman, ‘Ripeness: The Hurting Stalemate and Beyond’, in P. Stern and D. Druckman (Eds.), International Conflict Resolution After the Cold War, Washington, DC, National Academy Press, 2000.

D.G. Pruitt, ‘Readiness Theory and the Northern Ireland Conflict’, American Behavioral Scientist, Vol. 50, No. 11, 2007, pp. 1520-1541.

L. Wiget, ‘Compulsory Mediation as a Prerequisite before Commencement of Court Proceedings- Useful Requirement to Save Resources or Waste of Time and Money?’, UNSW Law Research Paper 47, 2012.

Researcher Profile: Meet Ben Hayward

Ben Hayward

About Ben

I am a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed my PhD at the Monash Law Faculty in 2015. I’ve previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers.

I’ve been working in academia for over 10 years now, and (alternative) dispute resolution has been a constant theme running through my teaching and research duties. I’m a member of the Australian Dispute Resolution Research Network, ACICA 45, the Asia-Pacific Forum for International Arbitration, the ICC Young Arbitrators Forum, ICDR Young & International, the Moot Alumni Association, Young ICCA, and the Young International Arbitration Group. Within my Department, I co-direct our International Trade and International Commercial Law research group alongside my colleague Dr Nicola Charwat: we look after the private and public international law sides of the group’s profile, respectively. I’m also known to be a card-carrying AGLC-pedant, and like to bring my keen attention to detail to my academic work in general.

Outside of university life, I live with my wife and daughter in Kensington: a warm and community-focused suburb apparently hiding fairly well within the otherwise-bustling inner city of Melbourne. When I’m in that grey zone in-between work and home, you’ll find me with headphones on listening to some great dispute resolution podcasts including The Arbitration Station and its spiritual predecessor, International Dispute Negotiation.

Ben’s Dispute Resolution Interests

My interest in dispute resolution was ignited by my participation, as an undergraduate law student, in the Willem C Vis International Commercial Arbitration Moot: a fantastic annual event held in Hong Kong and Vienna, where teams of law students from around the world argue an international sale of goods dispute within an international commercial arbitration setting. Having no prior exposure to arbitration, I was immediately fascinated by the fact that it is an alternative to State court litigation, yet is still anchored in the law: arbitrators aren’t judges and their decisions can’t be reviewed on the merits, but they still determine the facts and apply the law when resolving commercial disputes. After joining the Deakin Law School, I was fortunate enough to coach its Vis Moot teams for nine years, and really enjoyed the opportunity to introduce tomorrow’s lawyers to the world of arbitration as well.

International commercial arbitration also fascinates me because of its intersections with international sales law and private international law: much of my academic research has explored the overlap between these three areas of law.

Ben’s Research

My PhD is a good example of this: it addressed how arbitrators identify the law that they will apply, in an international commercial arbitration, where the parties have not included a choice of law clause in their contract. Undertaking my PhD research, and then its revision ahead of its publication as a book, was an interesting exercise in balancing some very different perspectives: on the one hand, that arbitrations are usually resolved on the facts, and on the other, that the applicable law can drastically affect the outcomes of cases. Since arbitrations are usually private/confidential, secondary sources made an important contribution to this work, though I also enjoyed the opportunity to delve into the world of published arbitral awards wherever I could, including extracts from International Chamber of Commerce cases.

In the dispute resolution space, I’ve published papers addressing Australia’s arbitration laws, as well as international commercial arbitration more generally. I’ve also got a keen interest in the United Nations Convention on Contracts for the International Sale of Goods, including its Australian implementation, and have several papers addressing these topics too. You’ll find many of my papers available on SSRN here, and I tweet about my research at @LawGuyPI here. I enjoyed the opportunity to present a work-in-progress paper at the ADRRN Roundtable held at La Trobe Law School in December 2019, and this project is still ongoing: I’m trying to reconceptualise the criteria we use to evaluate developments in Australia’s arbitration laws, with a view to informing future law reform initiatives. Thanks to all who attended my session for their very valuable feedback: I have lots of helpful suggestions to work on from here!

Engagement and Impact in Dispute Resolution Research

One of the things I find really great about arbitration law research is the opportunities I have to engage with private practice, and my work’s potential for professional impact. I’ve enjoyed several opportunities to contribute submissions to consultations on arbitration rules reforms, like this one here. I’m also aware that my publications have been used on several occasions to inform legal advice, and the conduct of cases. It’s a bit of a cliché to say that law journal articles are written just to be published, and not actually read: not true in the ADR field!

Next Steps

In addition to progressing the arbitration law project I presented at ADRRN 2019, I have a few other projects spanning arbitration law, sales law, and private international law in my research pipeline. I’m looking forward to staying connected with the ADRRN community and sharing the results of this work as it unfolds! If you have an interest in these areas yourself, you’re very welcome to get in touch: you can contact me at benjamin.hayward@monash.edu.