Resolving property disputes following separation – is there a quick, just and cheap option?

split house

Most Australian jurisdictions aim to facilitate the just, quick and cheap resolution of civil disputes. The High Court has affirmed that ‘speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of the proceedings.’[1]  Non-litigious dispute resolution is frequently advocated as the most appropriate means to achieve these sometimes conflicting objectives.

The availability of cost effective, quick and fair ways to resolve any disagreements about how to distribute shared assets (and liabilities) is important for many separating families, and also for the broader community. Research has consistently shown that separation can be a key predictor of financial disadvantage and falling living standards for many women and the children in their primary care. Financial stress experienced by either parent is likely to affect the whole family, and money and capacity to parent effectively are closely connected. While the financial concerns of each family following separation will vary according to their assets and specific needs, many will have urgent questions about Centrelink entitlements, child support obligations, debt management, capacity to manage two households, and information about how they should go about dividing their assets. It is often very difficult for people to know where to start to find answers to these questions.

While many separated families don’t have much to distribute (about 60% have less than $40,000 of assets), 40% will sort things out by discussion, 30% will use lawyers, 4% will rely on mediation, 7% will have the matter decided by courts, and the 20% remaining will not use any particular process.[2]  This means a significant number will seek, and more may need, some kind of professional or service assistance. Cheap, quick, and simple options that achieve fair outcomes are important as it can be extraordinarily expensive, and may take up to three years, for parties to litigate a matter in a family court.[3]  Litigation is also emotionally exhausting for all involved, and research indicates the emotional impact on children increases with the length of time spent in court proceedings.

DIY aside, there are few ‘cheap’ service options. A single session advice by a family lawyer may cost between $400 and $800, and thousands of dollars if more assistance is required.  There is not a nationally consistent approach by Legal Aid Commissions, and funding is rarely granted to resolve property disputes, but may be possible if connected to disputes about children.  Community legal centres may provide free legal advice in relation to family property disputes, and assist parties to initiate or finalise documents, and specialist CLCs provide assistance with child support.

Unlike disputes about the care of children following separation, there is no enforceable requirement to attempt to resolve property disputes before filing a court application. There are pre-action obligations which parties are required to follow before starting a family law property case, including full disclosure of financial matters, and making attempts to resolve the dispute quickly using dispute resolution methods to avoid legal action and limit costs. Lawyers are obliged to advise clients in relation to these options. However, it seems that most people do not comply with the pre-action procedures, and costs orders are rarely made against parties who fail to follow them.[4]

There is no government-funded system to facilitate the resolution of family property disputes, in the way that the 65 Australian Family Relationship Centres (FRCs) provide (largely) free family dispute resolution (FDR) to assist agreement about children. This possibility was mooted in 2010, but the Commonwealth Attorney General did not proceed with it. Given the close connection between parenting and financial matters, is it unfortunate that it did not, or that resources were not provided to support other agencies to assist with financial matters following separation.

Some commentators have suggested introducing pre-filing FDR for property would have put ‘the cart before the horse’ and may have been dangerous without also providing a wider a range of services and options to assist separating parents to fairly negotiate financial issues. The options they recommended included ‘access to a range of professional assistance, including … financial counselling, information and advice (including legal advice) in relation to the range of financial matters affecting them (Centrelink benefits, child support responsibilities and property division [including their financial disclosure obligations]), along with appropriately trained FDRPs to conduct financial dispute resolution, lawyer assisted FDR if appropriate, and legal advice and assistance prior or during FDR, and in relation to formalising their arrangements.’[5]

Some FRCs now assist parties to resolve, or at least to narrow the issues in property disputes, and some community agencies are funded to provide FDR for property at minimal or a sliding scale cost (generally less than $1000 shared between the parties, excluding legal advice). There is scope however, for expanding these services to separating families. The Law Society of NSW administers a Family Law Settlement Service which mediates property disputes that have already been filed in a Family Court and reached the post-conciliation conference stage, for about $2000, excluding legal fees.

Mediating property disputes may be simple and relatively quick, depending on the complexity of the parties’ assets, liabilities and needs.  As a facilitative process, it may also provide parties with more certainty and control and assist them to tailor outcomes to meet the needs of their family members. All family mediations are required to be conducted by accredited FDR practitioners or mediators, who are obliged to ensure procedural fairness in facilitating agreement. The substantive fairness of the outcomes of these processes is discussed below. Collaborative processes also support parties to make interest based decisions and is generally less cost that court proceedings.

Determinative processes, such as arbitration, have recently experienced a revival, although this option has been available to parties for 25 years. Arbitration may provide parties with finality and greater certainty about legal costs and processes, and choice about who arbitrates, and thus assist them to move on with their lives. Parties may also have some control over the arbitration process and may elect to dispense with the rules of evidence, and the arbitrator must ensure procedural fairness. Recent reforms to the rules governing family law arbitration require full and frank disclosure, and permit arbitrators to compel witnesses and the production of evidence. Arbitrators must be family law specialists and be accredited. They are required to provide written reasons in accordance with the Family Law Act 1975, and these are appealable or may be set aside.[6]

Evaluative processes are also available, such as where a senior family lawyer conducts a neutral evaluation and provides recommendations to parties about a possible outcome or elements of the dispute. Parties who commence litigation will also be required to attend a conciliation conference or case management conference presided over by a registrar who will advise about likely outcomes.

The extent to which family law informal processes and agreements are fair or just is moot. The empirical evidence indicates that the type of process or type of agreement parties reach does not affect the substantive outcome. Property outcomes are more likely to be influenced by the size of the asset pool, the length of the marriage, the dynamics of separation, whether violence is present, care of children and perceptions of guilt.[7]  Parties’ views about the fairness of the division of domestic or household property assets depends on whether they think that their contribution to these assets was reflected in the final outcome and who has care of the children. Whether such outcomes are also substantively fair is uncertain. The outcomes of informal processes often treat the division of family business assets differently to domestic assets, and fail to reflect the opportunity cost of caring for children, in contrast to the outcomes of more formalised or assisted processes which more closely reflect legislative requirements to consider these matters.[8]

In conclusion, there are a range of options that can assist separating couples to divide their joint property, but not all are quick, simple or cheap. The extent to which parties will achieve just resolution depends on a range of factors not necessarily tied to the type of process they use. Whilst the dispute resolution process chosen may minimise some of the financial difficulties and uncertainties families face at separation, such processes also need to be anchored in a broader range of inexpensive, accessible and consistent financial information and advice services, as a critical first step.

[1] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

[2] Lixua Qu, et al, Post Separation Parenting, Property and Relationship Dynamics after Five Years, AIFS, 2014, 99.

[3] Patrick Parkinson reported that among 80 separated parents he researched over 5 years, 12 reported legal costs of ‘$100,000 or more just for themselves, with the highest estimate being between $450,000 and $500,000.’ Although these costs primarily resulted from disputing about children, many families were disputing about both children and property. Patrick Parkinson, et al, ‘The Need for Reality Testing in Relocation Cases’ (2010) 44 Family Law Quarterly 1, cited in Patrick Parkinson ‘Can There Ever Be Affordable Family Law?’ Current Legal Issues Seminar, Supreme Court of Queensland, Brisbane, 9th May 2017.

[4] Belinda Fehlberg, et al, ‘Pre-filing Family Dispute Resolution for financial disputes: Putting the cart before the horse?’ (2010) 16 Journal of Family Studies 197–208; Justice Robert McClelland, ‘Expectations and opportunities for dispute resolution in family law property cases.’ Presentation to Resolution Institute NSW, 27 April 2017.

[5] Fehlberg, ibid.

[6] Patrick Parkinson, ‘Arbitration in Family Property Proceedings: Exploring the Potential’ (2016) 21 Law Society of NSW Journal 78-79; McClelland, above note 4.

[7] Qu, above n 2, 105; Belinda Fehlberg, et al, ‘Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214.

[8] Grania Sheehan & Jody Hughes, ‘The division of matrimonial property in Australia: What is a fair settlement?’ (2000) 55 Family Matters 28.

 

 

Collaborative Practice: novelty or norm?

Collaborative practice is experiencing a revival across Australia in resolving family law disputes, demonstrating maturity in its practice and its dispute management potential and posing questions about whether it can or should be the norm in the resolution of disputes, especially those affecting families.

Image result for collaborative meetings creative commons

In many Family Court registries there are delays of up to three years for cases to reach trial. This has prompted renewed interest in collaborative practice by family lawyers and others involved in family dispute resolution, who inform disputants that it can help them to ‘stay in control of your own decisions and out of court’.  The Family Law Council reported in 2007 on Collaborative Practice In Family Law and further impetus was given in 2011 when the Law Council of Australia released Collaborative Practice Guidelines for Lawyers (the Guidelines).[1]  Specialised training for collaborative practice is being widely conducted, and professional practice groups have been revitalised and formed locally and state-wide, with the launch of the Australian Association of Collaborative Professionals imminent.[2]  These developments represent a maturity among collaborative professionals, as well as reinvigorated confidence in the potential of collaborative processes to resolve family disputes productively, transparently and co-operatively.  It has also led to the emergence of new models of collaborative practice which further indicate its maturity as a dispute management process, and which suggest promising shifts in legal practice.

Collaborative law emerged in Australia more than 10 years ago, following North American experiments in the 1990s to resolve post separation disputes through civilised, respectful non-adversarial, interest-based negotiation.[3]  In Australia collaborative practice is defined as ‘a process in which clients, with the support of a collaborative practitioner, identify interests and issues, then develop options, consider alternatives and make decisions about future actions and outcomes’.[4]  The distinctive feature of collaborative law is a contractual agreement between lawyers and clients to not litigate and to negotiate in good faith.  Lawyers are engaged in a representational capacity and assist clients to understand the law and to be responsible for decision making.  As Marilyn Scott observes, collaborative lawyers ‘need to be able to give sound legal advice’, but also ‘to have advanced skills in dispute analysis, negotiation preparation and strategising skills, excellent people skills and a sound understanding of conflict dynamics and conflict management.’[5]  Parties may also choose to involve non-legal experts such as financial planners, child consultants and psychologists in the collaborative process.

Indeed, this way of managing legal disputes is currently termed ‘collaborative interdisciplinary practice’ to highlight the value of a range of professionals contributing to the management of a dispute and supporting parties to make informed consensual decisions.  All the professionals involved in Australian collaborative interdisciplinary family practice are required to participate in training and to register with a collaborative practice organisation to ensure a shared philosophical commitment to non-adversarialism, and to foster professional networks and standardise practice.[6]

The role of an independent intervener or coach has also emerged as an important component of the current collaborative process, leading to the development of five-way meetings (single coach, lawyers and parties) as the preferred model, at least among many Sydney collaborative family law professionals. The coach generally assumes the role of an independent and impartial facilitator and steward of the process, assessing the dispute and parties for suitability, and assisting the lawyers and parties to make most efficient use of process and maximising their contribution to it. The coach frequently manages the process, including agenda setting and minuting, assists parties to prepare for the meetings and to communicate effectively. They may meet jointly or separately with parties between five-way meetings for various reasons, for example, to facilitate feedback from child consultants, foster parental alliance, clarify party goals, assist parties to develop strategies regulate their emotional state, and to assist the family to transition through the separation.

Coaches may be mental health professionals, but in Australia are also frequently accredited Family Dispute Resolution Practitioners, bringing mediation expertise and authority to issue section 60I certificates should agreement not be reached.  The growing prominence of coaches in collaborative practice is not an ‘an indictment on the ability of collaborative lawyers to perform the basic tasks of the collaborative process’, as Henry Kha suggests.[7] On the contratry, it gives greater weight to Laurence Boulle and Rachael Field’s conclusion that collaborative practice constitutes a ‘more authentic alternative to adversarial justice’ with real promise of creative, client-centred, consensual outcomes in an integrative, multi-professional and flexible process.[8] In Canada and the United States, it is claimed to have settlement rates of over 95 per cent and a straw poll from the Central Sydney Collaborative Forum indicates 85 per cent.[9]

Of course collaborative practice is not suitable or affordable for all disputes or disputants. It is claimed that the cost of collaborative practice is ‘generally less than the conventional adversarial path’ and parties have control over the pace and timing of the process.[10]  A separate intake assessment is required, but the Guidelines do not identify issues to be considered in evaluating appropriateness.[11]  Capacity to negotiate freely in a family context may be affected by violence, risks to safety to parties or children, mental or other health concerns and inequality of bargaining power.[12]  The presence of legal advocates will generally minimise such risks.  It was the presence of a range of professionals in the Coordinated Family Dispute Resolution (CFDR) pilots that made some victims of violence feel that the CFDR process was safe and fair.[13]  Perhaps a blending of the strengths of collaborative processes with those offered by CFDR might lead to an affordable, accessible and safe model of collaborative resolution of family disputes, especially for complex cases which often result in litigation and significant emotional and financial cost.

Because of the greater emphasis in collaborative practice on the values of ‘humanism, emotional expression and the maintenance of relationships’,[14] some commentators argue that it is illustrative of a ‘new advocacy’ challenging traditional assumptions of legal practice and reclaiming for lawyers a role as facilitators of creative and constructive client-centred non-legal outcomes.[15]  If such shifts in legal practice are to deliver the promise of a more positive professional identity for lawyers and more humane legal system then, as Rachael Field, Laurence Boulle and other legal scholars have argued, we need to design legal education to prioritise appropriate dispute resolution expertise and practice.[16]  Whilst it is unlikely in the short term to become the norm in resolving family legal disputes, because of cost barriers or unsuitability, development of greater understanding of collaborative practice among law students may mean it would become normalised rather than novel. It may also be more likely to be applied in a broader range of contexts as suggested by the Law Council, including ‘commercial, community, workplace, environmental, construction, building, health and educational decision making.’[17]

[1] Family Law Council, Collaborative Practice in Family Law: A report to the Attorney-General prepared by the Family Law Council (2007); Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011).

[2] Collaborative Professionals (NSW) Newsletter 1 (2017); Shelby Timmins, ‘Thinking Outside the Box: Collaborative Practice in Family Law’ (2017) 31 Law Society Journal 88.

[3] See Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (2017) 54.

[4] Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (2011) 4.

[5] Marilyn Scott, ‘Collaborative Law: Dispute Resolution Competencies for the ‘New Advocacy’’(2008) 8 Queensland University of Technology Law & Justice Journal, 213, 216.

[6] Guidelines above n 1, 9-10.

[7] Henry Kha, ‘Evaluating collaborative law in the Australian context, (2015) 26 Australasian Dispute Resolution Journal 178, 184.

[8] Boulle and Field, above n 3, 247.

[9] Judge John Pascoe, Collaborative and Creative approaches to family dispute resolution: Perspectives from the Bench, Federal Magistrates Court, 2; Email communication from Rachel Slat, Accredited Specialist (Family Law).

[10] Timmins, above n 2, 89.

[11] Guidelines, above n 1, 5.

[12] Family Law (Family Dispute Resolution Practitioners) Regulations 2008, reg 25.

[13] Rae Kaspiew, et al, Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases, Final report, Australian Institute of Family Studies (2012) 111.

[14] Boulle and Field, above n , 246.

[15] Scott, above n 5, 228. Also Julie Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice of Law, University of British Columbia Press (2008).

[16] Boulle and Field, Ch 13, and references cited therein. Also Scott, from 229.

[17] Guidelines, above n 1, 5.

Hybrids have arrived – hosted by the beautiful city of Vienna

Hybrid processes are not new to those of us who teach and write in the ADR space. We have all heard of arb-med and med-arb. Some of us have even heard of Baseball Arbitration, Night Baseball Arbitration and Medaloa.

Step into the practitioner’s world and the view is different.

Here the processes of mediation and arbitration remain distant strangers, practised and accredited separately. Few practitioners have dual qualifications and even those who do are rarely comfortable with the concept of offering a hybrid process.

The next generation of practitioners is being given the opportunity of seeing things differently via a new student mooting program.

The starting point is the Willem C. Vis International Commercial Arbitration Moot (Vis Moot) which has just reached its 24th anniversary.

This moot tests the oral and written prowess of students in dealing with a complex international commercial conflict. This long established arbitration competition now has a sibling.

town hall vienna

View of the historic Town Hall in Vienna – site of the competition cocktail party. Photo Copyright Rosemary Howell

Established three years ago, the IBA-VIAC Consensual Dispute Resolution Competition (CDRC) commences in Vienna on July 10th at the beautiful University of Economics and Business (Wu Wien). Students participate either as negotiators or as mediators with separate scoring and evaluation for both roles.

The competition follows the Vis Moot and draws on the same case study (amended to remove all the procedural challenges of the arbitration). The competition opens with the news that the arbitration has been adjourned for a little over a week to give the parties the opportunity to see if they can resolve the conflict by mediation.

The competition gives an important signal that extends far beyond the students who are participating. The working committee drafting the problems has required consultation between arbitrators and mediators and encouraged a collaboration that is not often seen. Expert assessors too are being given experience in both the arbitration and mediation arenas.

The significant outcome is that not only is the next generation of practitioners being given the chance to consider hybrids up close, but practitioners are also joining the dots to draw together practices that once were very separate.

A great outcome.

Academic job opportunity in dispute resolution: Monash University

monash-university-logo

My law faculty at Monash University (Melbourne, Australia) is currently recruiting for an Associate Professor or Senior Lecturer that would suit senior academics working in the dispute resolution field. The job advertisement reads

The Faculty of Law seeks to appoint high performing academics who have expertise within the Legal Profession and Practice disciplines such as legal ethics, clinical legal education, family law, disruptive legal practice, AI in the law, litigation & dispute resolution, justice system innovation and law firm leadership to contribute to the Faculty’s teaching and engagement in these areas. These positions would be suited to applicants who have a passion and focus on innovative legal education practices and an understanding of what makes a work ready graduate.

Applications close 1 August. Full ad is here.

Call for Abstracts: Monash Courts and Tribunals Research Roundtable

The Australian Centre for Justice Innovation at Monash University is pleased to host the Monash Courts and Tribunal Research Roundtable on 18 September. The Roundtable will focus on empirical civil justice research on courts and tribunals, and will be held at Monash University Law Chambers in the Melbourne CBD.

Topics of interest may include (but are not limited to):

  • examining civil justice activity in courts and tribunals
  • evaluating law reforms or innovations in case management, and
  • research methods, techniques and challenges in court and tribunal settings.

The roundtable will be an opportunity for researchers and policy makers in this field to share insights, practices and findings in connection with empirical civil justice research in court and tribunal settings. Works in progress are appropriate.  Early career and PhD researchers are particularly welcome, and bursaries to fund attendance will be offered to up to three early-career or PhD participants.

Abstract submission

Please send the title of your presentation and a short abstract (up to 250 words) by 21 July to ellen.hays@monash.edu.

You can view the PDF version of the Call for Abstracts here.

 

Responding to the litigant in person challenge: Where to from here?

Additionally, ACJI has an interesting event relating to civil justice which ADR Research Network blog subscribers in Melbourne may be interested in … 
Presented by Dr Bridgette Toy-Cronin and Justice Kevin Bell AM

The Australian Centre for Justice Innovation is delighted to host a public lecture about future directions for policy and practice regarding self-represented litigants.

The rise of self-represented litigants has been recognised as a phenomenon across the common law world. The last decade has seen increasing attention given to the issue by policy makers, researchers, lawyers and the judiciary. This discussion will consider the evidence base and responses developed to date and ask, “where should we go from here”? This question will be considered in terms of future directions for research, policy, and practice, with particular reference to Justice Bell’s decision in Matsoukatidou v Yarra Ranges Council [2017] VSC 61.

Date: Tuesday 19 September 2017
Time: 5:30-7pm
Venue: Monash Law Chambers,
555 Lonsdale Street, Melbourne

Registrations for this event will open in August.

REQUEST FOR PROPOSALS:  GLOBAL POUND CONFERENCE SERIES 

This post concerns a call for proposals to translate and/or analyse data that has been collected during the Global Pound Conference Series and/or produce a final report. Publication from any of the work performed under this request for proposals would be subject to pre-approval by the GPC Central Organising Group and the final report would also be subject to review by the GPC Series Academic Committee. If you are interested in expressing interest in undertaking some of this work, details of process and timelines are contained in the post.

This post has been contributed by network member Dalma Demeter. We have mentioned the Global Pound Conference Series before in Roscoe Pound would be proud – Reflections on the history of the Global Pound Conference, Global Pound Conference Sydney, and Researcher Profile: Meet the team from Resolution Resources. Some GPC Series data has been made available by IMI with guidelines for use by researchers on the GPC Series Website.

Dr. Dalma R Demeter LL.M., SJD, GCTE
Faculty of Business, Government & Law
School of Law & Justice
University of Canberra

imi logoIntroduction

Initiated by the International Mediation Institute (a not-for-profit organisation), the Global Pound Conference (GPC) Series 2016-17 will facilitate the development of 21st century commercial dispute resolution tools at domestic, regional and international levels.

Launched in Singapore and finishing in London in 2017, the GPC Series is a not-for-profit global project that convenes all stakeholders in dispute resolution – commercial parties, chambers of commerce, lawyers, academics, judges, arbitrators, mediators, policy makers, government officials, and others – at conferences around the world. Currently scheduled to take place in 40 cities across 31 countries, these conferences provoke debate on existing tools and techniques, stimulate new ideas and generate data on what corporate and individual dispute resolution users actually need and want, both locally and globally.

To date Approximately 1,700 people participated in Global Pound Conference (GPC) events between March 2016 – June 2017. The aggregated data from the first seven events that have taken place already show some interesting themes and trends and provide interesting food for thought and some ideas regarding how to possibly shape the future of commercial dispute resolution and improve access to justice in commercial disputes globally.

Stakeholder groups

Results are collected from 5 stakeholder groups:

Parties: Users (businesses) who are involved in disputes and use commercial dispute resolution services (e.g., business managers or in-house counsel involved in litigation, arbitration, mediation or mixed mode processes);

Advisors: External advisors who assist Parties in managing their disputes (e.g., external lawyers, experts, forensic accountants);

Adjudicative Providers: These comprise judges, arbitrators and organizations providing adjudication services;

Non-Adjudicative Providers: Conciliators, mediators, ombudsmen and organizations providing such services; and

Influencers: E.g., academics, government officials, educators, policy advisors, etc. who do not participate in commercial disputes but are influential in the dispute resolution market.

Data

Data collected consist of both ‘live’ data that are generated immediately during each GPC event (in response to 20 Core Questions, using the PowerVote electronic voting system) and qualitative data in the form of participant responses to a series of ‘open’ questions, delegate information, word clouds and written questions and answers, also collected during each event.

Scope of project and call for assistance

The final outcome of the GPC Series will be a final report based on a statistically robust analysis of the data collected that:

a. identifies key trends in commercial dispute resolution practice globally;
b. contains a cross-jurisdictional comparison of dispute resolution practices;
c. compares needs and perceptions across stakeholder groups;
d. makes recommendations about how access to justice in commercial disputes can be improved both globally and within jurisdictions.

The GPC Series requires assistance from interested parties to undertake one or more of the following aspects of the overall GPC research assignment:

1. Translation of qualitative responses from some events to English (Arabic, Spanish, Italian, French, Polish, German, Dutch, Russian, Thai, Portuguese).
2. Coding and analysing voting data.
3. Pattern analysis of qualitative data.
4. Producing a final report containing the elements referred to in a)-d) above.

The final report will be subject to review by the Academic Committee of the GPC Series.

The data collected from the various GPC Series events provide a rich source of qualitative and quantitative data for future research, which might focus on country, regional, jurisdictional or global trends identified in the course of the Series. It provides a unique opportunity to be involved in shaping the future of dispute resolution globally.

Researchers involved in the GPC research assignment may also have the opportunity to submit their authored work to a variety of publication outlets, subject to approval of the GPC Central Organising Group.

Timeframes

The following deadlines apply:

a. Expressing interest: 31 July 2017
b. Translation of qualitative data: 31 October 2017
c. Data analysis completion: 31 December 2017
d. Final report: 31 January 2018

Proposals

If you are interested in participating in the GPC research assignment, please send an email to the Academic Committee of the GPC Series (details below) indicating:

a. Details of your organisation, the individuals whom you propose to involve and their level of appropriate experience.
b. Which of the items 1 – 4 of the research assignment listed above you are interested in undertaking (preference will be given to tenders willing to handle all 4).
c. The extent of your or your institution’s ability to absorb costs involved in the aspect of research in which you are involved (at this stage the GPC does not have a budget available for these items).
d. Fee or cost estimates you may anticipate for completing this project by January 31, 2018.
e. A brief plan setting out how you intend to execute the items you have shown an interest in, including a time frame for each item.
f. Any other information you think would be helpful for the Academic Committee to know.

Please contact barney.jordaan@vlerick.com Barney Jordaan, Chair: Academic Committee of the GPC Series

 

What’s a Heat Exchanger got to do with it? – Mediation re-imagined

heat

Ground heat exchangers at One Angel Square, Manchester, England
By Rept0n1x – Daytrip to Manchester (44), CC BY-SA 2.0 – Wikimedia commons

Australian law schools have a broad range of Masters programs offering subjects in the ADR space. One of the most interesting qualities of the current Masters cohort is that it is no longer a group dominated by lawyers and would-be lawyers.

Amongst other influences, the commercial imperatives pushing higher enrolments have strengthened cross-institutional and cross-disciplinary promotion of programs. The result is that today, Masters students in our law schools now come from very diverse cultural, professional and educational backgrounds. Not only are classes culturally richer for the more diverse student profile, particularly the international cohort, but the professional backgrounds are spread over a far wider field.

This means that how and what we teach needs to be re-examined as we academics rise to the challenge of dealing well with differences.

The move from homogenous to heterogeneous has brought into the ADR postgraduate space doctors, social workers, engineers, architects, journalists, accountants and social scientists, to name a few. They all have their own language and narrative and draw on different thinking and reasoning tools.These different technical and professional approaches have brought great benefits including an appetite to challenge the legally influenced, conventional language about process and concepts. We are the richer for it.

Enter the Heat Exchanger.

Last semester I had the privilege of teaching Ahsan Ashraf (whose work I draw on with his permission) in the Mediation in Commerce program at Melbourne Law School. Ahsan is an international student currently studying in Australia and working here as a construction engineer on a major infrastructure project.

He is not a lawyer but is taking some subjects available in the law school Masters program. As we investigated the mediation matrix Ahsan worked hard to join the dots. He felt the concepts were familiar but he needed to find his own reference point for them. His thinking and reasoning tools were not linear and we all recognised that if he could find a connection, this would be useful in his engagement with mediation which is itself a flexible, non-linear process.

Turning to his own discipline he finally made a connection that spoke to him. He wrote:

‘Mediation involves a very similar process to a heat exchanger; a thermodynamic equipment used in refrigeration equipment. In a heat exchanger, a hot and a cold fluid are made to flow in tubes at a controlled rate to exchange heat.[1] The level of heat exchanged between the two fluids depends upon the surface area between them. Through this engagement, the two fluids exchange heat to minimize the difference in their temperatures.

Similarly, in mediation, the two parties undergo through a facilitated negotiation process, at a preferably slow pace, to exchange their views about a dispute.[2] The process essentially is a heat exchange where the parties express their emotions, anger and anxiety.[3] This exchange of heat minimizes the differences between the positions of the parties and opens channels of communications. The whole process remains uninfluenced and parties are only facilitated to share information in a natural manner very similar to a heat exchanger resulting in a win/win situation for both parties.’

We continued to brainstorm his ideas in class and Ahsan was challenged to translate his ideas into his own version of a mediation matrix which would communicate mediation concepts to his constituency in a way that conventional mediation materials do not. And then – to add even more power to his analogy – he did what all good engineers do.

He constructed a flow chart of his mediation heat exchanger.

I reproduce it below with his permission.

flowchartIt is a great example of the kind of creativity that is valuable for teaching, practising and thinking about mediation.

Perhaps even more importantly, it is an example of cross-disciplinary thinking in the teaching and practice of ADR processes.

Ahsan’s gift to the class (and to me).

[1] Stephen Turns, Thermodynamics: Concepts and Applications (Cambridge University Press, 2006) 492.

[2] James Alfini et al, Mediation Theory and Practice (Lexis Nexis, Second Edition, 2006) 1.

[3] Ibid 33.