Whatever happened to the National ADR Principles?

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In 2011 the National ADR Advisory Council (NADRAC) formulated a set of National ADR Principles (included in the 2012 publication Your Guide to Dispute Resolution) as follows:

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals.

6. Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them.

On 14 September 2016, the ADR Advisory Council (NADRAC’s supercedent) noted in a published paper on their website that: ‘ADR is founded on ideas – it is intrinsically ideological. The ideas which underpin ADR are neither scientific nor inert – they comprise an unmistakeably value-laden set of principles’. 

ADRAC went on to ask the following questions which continue to be relevant and challenging for the DR community in Australia.

Can the principles be combined to arrive at the following four core values:

1. personal responsibility – based on the ability to make informed choices

2. proportionality – between dispute and process

3. fairness and integrity – as to process (query as to outcome)

4. public confidence.

Are there core values missing from this list?

Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both? And whose assessment of ‘fair’ is to be applied in any instance: is it to be evaluated from the perspective of the law, society, or the participants?

Please share your views!

Acknowledgements: Fern

The Dispute Tree or the Dispute Pyramid?

Thank you to Kate Curnow for her 2015 Blog – the all-time 5th most viewed Blog on DR for the ADR Research Network. Brilliant.

The Australian Dispute Resolution Research Network

In ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, Albiston, Edelman and Milligan propose replacement of Miller and Sarat’s dispute pyramid with a dispute tree.  They further suggest the stages of the emergence and transformation of disputes – that is, naming, blaming and claiming (Felstiner W et al, “The Emergence and Transformation of Disputes: Naming, Blaming Claiming” (1980-81) 15 (3-4) Law and Society Review 631) – be conceptualised as non-linear and fluid.

Why a Dispute Tree?

The dispute pyramid was proposed by Miller and Sarat in: Miller RE and Sarat A, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525:

Dispute Tree

Albiston, Edelman and Milligan argue the metaphor of a tree with many branches better reflects the non-linear and dynamic nature of dispute resolution as well as the legal and non-legal means by which people may seek to…

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Dumb decision— The Closure of NADRAC

This is the fourth most viewed Blog of the ADR Research Network – a personal favourite of mine! Associate Professor Becky Batagol writing at the end of 2013 to protest the defunding of NADRAC. A feisty, passionate Blog – which still applies today. Let’s all call for funding for ADRAC!!

The Australian Dispute Resolution Research Network

Last Friday, the Australian government announced the abolition of NADRAC, the National Alternative Dispute Resolution Council.  NADRAC’s functions will be absorbed into the federal Attorney-General’s Department.

Whichever way you look at it, the abolition of NADRAC  just doesn’t make sense.

An account of the reasons is dutifully provided on the NADRAC homepage.

Following the Australian Government’s announcement on 8 November 2013 to abolish or rationalise a number of non-statutory bodies, the National Alternative Dispute Resolution Advisory Council will close. The closure of this group is a whole-of-government decision that was taken to simplify and streamline the business of government.

NADRAC advises the Attorney-General and federal courts and tribunals on dispute resolution matters and also provides high quality dispute resolution information to the Australian public and dispute resolution community.  One of NADRAC’s central roles is promoting Alternative Dispute Resolution (ADR) within the Australian community.

From NADRAC’s own website we can see something…

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Unpacking the “adversarial advocate”

We are continuing to showcase the top 10 most viewed blogs of the ADR Research Network. We’re up to the third most viewed blog. A thought provoking blog on an important DR issue by our esteemed colleague and friend Dr Olivia Rundle.

The Australian Dispute Resolution Research Network

The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?

Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.

“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the…

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The central role of party self-determination in mediation ethics

This month we are revisiting the top 10 ADR Research Network Blog views of all-time. Jon Crowe and I are honoured to come in at number 2 with this post from December 2017. I’m also pleased to say that our book, Mediation Ethics: From Theory to Practice, was published in 2020.

The Australian Dispute Resolution Research Network

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable…

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There is a time and place for mediation but a bullying allegation in the workplace is not one

This month we’re revisiting some of the most viewed ADR Research Network blogs. This Blog by Carmelene Greco – Monash law student studying Non-Adversarial Justice with Associate Professor Becky Batagol in 2016 was posted in 2017 and has the most all time views – 13, 260 – of all our posts. Congratulations Carmelene!

The Australian Dispute Resolution Research Network

 By Carmelene Greco

 

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

bully Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

Workplace bullying is notoriously difficult to define and there is still no nationally…

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Changing the frame – new empirical research listens to the voices of consumers

The Dispute Resolution field has been enriched by some significant research into process and practice. However, empirical research canvassing the views of end-users of Dispute Resolution services remains significantly uncharted territory.

The early research on negotiation styles and their impact by Gerald R Williams and later Andrea Kupfer Schneider  distinguished cooperative/problem solving and competitive/adversarial styles. This research demonstrated the interesting and unsurprising result that cooperative/problem solving attorneys emerged with better working relationships and left less value on the table. However, the research was of lawyers reflecting on the behaviour of other lawyers. Clients, the real consumers of their services, were nowhere to be seen.

More recently we have had the gift of The Global Pound Conference Series 2016-17 comprising 28 events in 22 countries. The main purpose of this program was ‘to generate conversations and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’. The entire DR industry was represented, including parties, and each audience participated in data gathering which included answering 13 open text questions. This program has left us with some significant empirical research resulting from the meticulous analysis of the 7 North American events consolidated into The North America Report. In particular, one of the four key insights explored was the ‘needs, wants and expectations’ of the parties.

This is a big step.

We now have the voice of consumers emerging in significant and influential DR research, revealing a growing recognition that the use of the term ‘ADR’ has become increasingly irrelevant.  Supporting this reframing, the report recommended changing the nomenclature to DR ‘to reflect the cultural shift occurring within commercial DR and the need to place parties at the centre of the process…’ 

Dr Anna Howard’s new text

Now we have some important new work which adds more insight into how the consumers of DR services see things. Although its title indicates a focus on mediation in EU cross-border disputes, this text draws on rigorous empirical research with findings relevant wherever commercial mediation thrives.

As the title promises, this text achieves two important and inter-related things – it explores a significant opportunity to change the frame (the lens through which we have been viewing mediation) through listening to disputants (in-house counsel, who are the clients who actually choose which process to select for resolving business conflict).

The book opens with this provocative quote from an in-house counsel interviewee – ‘The fundamental problem about mediation is that it’s a good idea and nobody uses it’. This is the perfect entry point for a detailed examination of why the promise of mediation has not been the success story the EU and other jurisdictions were hoping for.

Exploring this conundrum leads to the realisation that the problem lies in the way that mediation has been framed as an alternative to litigation. This ‘either/or’ approach did not sit well with the decision makers as they reflected on the most appropriate process. Their lens is far more holistic – they observe a range of related and overlapping processes. This continues the theme we first saw explored in the North America Report, leading us to the concept of DR as an all-inclusive continuum of processes.

Dr Howard’s research digs deeper into the ‘framing’ and identifies that the pursuit of resolution is seen by users as beginning with negotiation. Changing the frame shows us that it is time to bring negotiation into the foreground as the ‘go-to’ process. Framing the changes means that mediation can be seen as part of an iterative process in which mediation can be reframed as ‘assisted and extended negotiation’.

As a negotiation academic and researcher, this text has particular significance for me. Returning negotiation to its rightful place on the continuum and recognising the value its principles bring to all processes in which it may be applied seems the perfect research-validated way to set the record straight.

National Mediation Conference 2021: Submissions closing soon

Old Telegraph Station, Alice Springs (A. Boyle 2021)

Submissions for presentation at NMC2021 – closing soon

There is less than one week to submit your proposal for presentation at the 2021 National Mediation Conference to be held in Alice Springs from 1 – 4 September.  The extended proposal submission deadline is 14 March 2021.

The conference is designed to accommodate the needs of those who may not be able to travel to Alice Springs by providing opportunities for both face-to-face and online presentations.

NMC2021 provides an opportunity for all those with an interest in mediation and DR to share knowledge, skills and ideas with a focus on learning about the role of conflict management in achieving true reconciliation.  The conference theme, “One Story”, describes the situation when a conflict has been resolved and no longer exists, when everyone walks away with a single, mutually respectful story.  The theme also reflects a broader perception of the commonalities among all people, and has application across all areas of DR.

In alphabetical order, the conference streams are:

  1. Approaches to conflict in First Nations and Indigenous contexts, including community-based conflict management;
  2. Business and construction; workplace and employment;
  3. Community-focused mediation, and other community-focused processes;
  4. Conciliation, including statutory and industry programs;
  5. Court-connected DR services, including services associated with courts and tribunals;
  6. Dispute system design, online DR, and technological innovations;
  7. Elder mediation, and other specialist areas of practice;
  8. Family mediation and dispute resolution, including FDR;
  9. Peace-making, peace-building, transitional justice, reconciliation, and civil society;
  10. Research, training, and education: building a rigorous evidence base for DR;
  11. Restorative and innovative approaches to conflict.

The Conference Design Committee is fully conscious of the contributions made by intercultural and multicultural considerations to the enrichment of all DR sectors and will give preference to proposals that include them.  The Committee will also give priority to the following criteria:

  • The stated conference theme;
  • The introduction of new and innovative concepts not previously canvassed or fully explored in mediation and DR;
  • The inclusion of innovative and engaging presentation techniques;
  • Where applicable, the rigour of any research to be included in the presentation, or on which it relies;
  • The inclusion of credible demonstration of the importance of subject matter to mediation and/or to DR, and to the preferred conference stream;
  • The inclusion of intercultural, cross-cultural and/or multicultural considerations;
  • the potential appeal of the proposal to a broad spectrum of delegates; the proposal should include appropriate comments if it would appeal more to one cross-section of the sector (eg, newly trained practitioners, or experienced practitioners);
  • The demonstrated capacity of the proposal to allocate appropriate time for coverage of the topic and, if using multiple presenters, strategies for including all presenters; and
  • A clear title of the proposal conveying to delegates what they can expect from the session.

To submit your proposal, please contact the Conference Organiser (by phone or email) who will email a link to you:

Rosie Fall, Conference Organiser

Ph: 08 8942 3388

email: events @associatedadvertising.com.au


					

Mediation standards in Australia – uncovering what actually happens

Alan Limbury

This blog post has been made on behalf of its author, Alan Limbury of Strategic Resolution and was originally published on the Kluwer Mediation Blog on 22 February 2021. It is republished in accordance with Kluwer’s editorial guidelines. The original post can be found here.

Photo by fauxels on Pexels.com

Given the confidential nature of mediation, it is a rare set of circumstances that allow us to catch a glimpse into the mediator’s craft. The current review of the professional standards governing Australia’s accredited mediators provides one such opportunity, The review seeks, to the extent permissible, to uncover what practitioners are actually doing, including the extent to which their knowledge and skills change with experience and in response to the various contexts in which they practise.

What is being reviewed?

After several years of discussion and community consultation, in 2008 a voluntary National Mediator Accreditation System (NMAS) was adopted in Australia. It comprises a set of Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator and a set of Approval Standards which specify the training, assessment, personal qualities and experience required for renewal of accreditation. The system also sets out the qualifications required of Recognised Mediator Accreditation Bodies (RMABs) in order to accredit mediators in accordance with the NMAS. The NMAS was last reviewed in 2015.

The current review

Last year the Mediator Standards Board (MSB), which oversees the system, engaged Danielle Hutchinson and Emma-May Litchfield of Resolution Resources (RR) to lead the NMAS Review 2020-21 in order to evaluate the effectiveness of the NMAS and consider what changes and additions need to be made.

Drawing on well-established techniques from the field of education and psychometrics, RR has adopted a collaborative and data-driven approach. The Australian DR community can therefore feel confident that any recommendations arising out of the review are evidence-based, informed by expert practitioners and reflect the variety of processes and contexts in which practitioners typically operate.

The NMAS Review 2020-21 Process

The process provides a number of opportunities for interested stakeholders to contribute. In particular, it includes widespread consultation involving reference groups, workshops and surveys amongst MSB members, RMABs, training organisations, mediators, community groups, professional associations and other experts in the field.  Information collected from these events will be subject to rigorous data analysis to identify a range of patterns including the way that practice may evolve with experience or as it is applied in different contexts. This type of psychometric analysis, though well-established in other disciples, it not typically used in the dispute resolution sector. This presents an exciting opportunity for the MSB, which is expected to consider the recommendations in mid-2021.

Reference groups

In the first stage, five Reference Groups sought to identify areas for possible amendment to the current standards in relation to First Nations Mediators; Diversity and Inclusion; MSB Member Organisations (including RMABs and training organisations); Non-NMAS Processes (including conciliation, family dispute resolution, hybrid processes and restorative practice); and Institutions with an interest in NMAS (including courts/tribunals, higher education and institutional dispute systems).

Based on my interest in the role of the mediator in hybrid processes such as med-arb and arb-med-arb, I was invited to contribute my thoughts to the Non-NMAS Processes Reference Group. I worked with fellow contributors to identify areas within the NMAS which might address the practice of “switching hats” whereby the same person may act as both mediator and arbitrator in the same dispute, without jeopardising their impartiality as mediator or the enforceability of any arbitral award. An example of the kind of problems that can arise in this area is here.

Workshops

The second, recently completed, stage involved a series of day-long virtual Workshops. Participants, of which I was privileged to be one, represented a cross-section of the mediation community. The object was to flesh out the work done in the Reference Groups. The key focus areas were Professional Knowledge, Practitioner Skills, Professional Engagement and Professional Ethics and Responsibilities.

Key to our dialogue and work for the day was shifting our focus beyond the minimum threshold for accreditation, a perspective which tends to produce a compliance mindset.  Instead, participants were asked to contemplate and articulate the distinguishing features of mediator practice as typically manifested in those who are newly NMAS accredited, those who are proficient and those who would be considered expert.

These levels of practitioner sophistication were further considered in the differing contexts of conciliation, family dispute resolution, court or tribunal annexed mediation, restorative practice, hybrids and diversity.

The rationale for considering varying degrees of practice together with processes which have historically fallen outside the NMAS is to enable the development of a standards-referenced framework which identifies the extent to which knowledge, skills, values and obligations may be common across processes and contexts. This also means that processes and contexts requiring specific knowledge, skills or expertise can also be properly recognised.

This way of thinking about mediator practice is difficult. This is especially so for the expert, who must bring to consciousness elements of their craft that have long since become intuitive. With this in mind, RR developed a suite of pre-workshop materials to help us orient our thinking towards this new way of reflecting on and conceptualizing the evolution of one’s practice. The materials included sample scales of mediator knowledge, skills and attitudes and very useful guidelines for describing quality.

Surveys

The next step in the process is to synthesise the information generated via the reference groups and the workshops to inform the development of the NMAS Review Survey. This survey will be the main instrument for consultation and will be open to all interested stakeholders within the Australian DR community in mid-2021.   The data collected via the survey will then be analysed, using a range of psychometric techniques. The findings from this analysis will form the basis of the recommendations to the MSB.

In this way, every person who completes the survey will play a vital part in the NMAS Review 2020-21 and lend their voice to the future of dispute resolution in Australia.

The United States: unbarring the way forward

(This article is posted by Cameron McPhedran)

The future of United States democracy can be found in a prison. But not in the way that we might anticipate.

San Quentin Prison, January 2016:

A murderer and the wife of a murdered police officer speak. They deliver a united message on building change ten months shy of the US general election.

Phillip Melendez advocated that change “means cultivating emotional intelligence, cultivating empathy and compassion. And all of that teaches us to look outwards to our communities.”  

 Dionne Wilson forecast, “the goal of public safety can be achieved without tearing each other apart but it’s going to take all of us working together… we can do better, and we must.”

In 2021 with Joe Biden as President, these comments strike as clarion calls of the need for both a more effective US justice system, and a more nuanced public debate. San Quentin has endured a mass outbreak of COVID-19, in 2020 the US bore witness to yet more racialised violence, and white nationalists began 2021 by storming the Capitol building. What is striking about the comments, however, is who delivered them and the circumstance of their relationship.

Restorative justice:

Melendez and Wilson were not transformed into allies by luck. They participated in a diverse range of rehabilitation strategies utilised at San Quentin. Restorative justice is at the heart of them.

Restorative justice is an intervention where affected parties come together to discuss how a criminal act impacts upon them, and how they can move forward collectively constructively. It views engagement as more effective than retribution, and may be used to replace or to augment criminal justice sanctions.

Dionne Wilson- healing through leadership:

Wilson’s husband Nels Neimi- a Californian policeman- was murdered in July 2005. After successfully campaigning that his killer Irving Ramirez be executed, Wilson remained broken. She reflected that “when the joy of ‘winning’ that verdict evaporated, the real misery set in.”

Wilson began caucusing with women in the Californian prison system as part of victim/offender education groups organised by the Insight Prison Project. This work included discussing how offenders could be accountable for their actions, express empathy for victims, and repair their own traumas.  

Dionne Wilson, restorative justice and criminal law reform advocate.

Whilst complex and challenging work for all involved, victim offender education groups often empower all parties: Wilson reflected that instead of “seeking my healing in the misery and death of another human being… [the] key to my healing was connecting with people who were learning to find their own humanity.” Since this time, she has since served as a co-facilitator for victim offender education groups at San Quentin and has advocated for criminal justice law reform, especially around repealing the death penalty.

Philip Melendez- renewing his purpose:

In 1998, Philip Melendez was nineteen when he killed two people, in response to his father being stabbed. His brother had previously been murdered and violence was commonplace in his community.

Restorative justice at San Quentin helped Melendez fully acknowledge and take responsibility for his wrongdoing. After he began his engagement with restorative justice, he mediated in intra-prison gang disputes and committed to victim awareness programs. Changes in Californian law saw Melendez released in 2017. Since that time, he has served as the Director of Organizing for the organisation Re:Store Justice, which works to empower prisoners and communities through restorative justice and policy advocacy.

The United States, a democracy in tatters?

It is easy to write off the relevance of restorative justice to wider society. It is a mechanism that relies on the voluntary commitment of people who have experienced hardship or trauma, revisiting these experiences. It requires listening, carefully and openly, to those who often have very different life backgrounds from one’s own. It is precisely these qualities that make restorative engagement, albeit challenging, exactly what the United States needs right now.

The polarities between Democrat and Republican, Southern and Northern, white and people of colour, undocumented and passport carrying, and other such divisions are seen as representing irreconcilable differences among Americans. These divisions, are, from the outside, ravaging the country.

Legislators and policy makers need to be able to reach consensus about evidence, to be responsive to the social good in their governance. The bipartisanship that aided Australia in the early stages of its Covid policy response has not been seen at any stage in the United States.

Covid- and racial injustice- has shown that delivering public safety is a community responsibility. This becomes impossible when social trust is broken.  An analysis of the decline befalling the United States over recent years found that nations high on the World Values Survey measure of interpersonal trust- China, Australia, most Nordic countries- delivered both better policy responses and public compliance with them than the United States.

Biden Era Washington DC:

The events of 2020 and the initial stages of 2021 suggest that it would be easy to resort to despair for the United States this year. However, a new president has been elected and statements of condemnation about the Capitol attack and its aftermath resounded among both Democrats and Republicans. Linking the United States to the Europe he emigrated from, Arnold Schwartznegger’s compared the Capitol riot with the 1938 Kristallnacht killings in Germany.

The impact of Covid and racial injustice show that the United States must fight for a renewed civil sphere, for accountability with compassion. Events at the US Capitol show that fighting for justice is both necessary, and a daily, task.

Marcus Henderson, chief editor of San Quentin News

The only way out of COVID-19 and civic breakdown for the United States is together, through the sustained and committed dialogue among groups who are different to each other.

Restorative justice proves that this changes lives. When empathy, forgiveness and hope endure, a brighter political culture is possible.

Cameron McPhedran participated in the Restorative Justice Roundtable at San Quentin Prison whilst on university exchange in 2013. He works in community mediation for the NSW Government. These views are his own.

Cameron aspires to specialise in DR for the LGBTIQA+ community.