Call for Papers for a Special Edition Australian Journal of Clinical Education

The Australian Journal of Clinical Education (AJCE) is an open access double blind peer reviewed journal devoted to issues of practice and innovation in clinical education in the disciplines of Law and Health Professional Education.

SPECIAL ISSUE: TEACHING AND LEARNING OF DISPUTE RESOLUTION IN HIGHER EDUCATION

Guest editor: Dr Bobette Wolski

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Photo Credit: Russ Seidel, Colour and Shape, Creative Commons

INTRODUCTION

An understanding of dispute resolution theory and the development of dispute resolution skills are now considered to be a crucial part of a balanced education in a wide variety of disciplines and programs. It is generally accepted that learning about dispute resolution is best facilitated using simulations, roleplays and clinical experiences. It is through such learning experiences that our students gain, amongst other things, competency in communication skills, an understanding of human
emotions and needs, and an understanding of and appreciation for the variety of ways in which disputes may be resolved (or at least, managed). However, while much has been written about the teaching of dispute resolution, there are still many questions that remain unanswered, and challenges to be overcome.

CALL FOR PAPERS

The AJCE invites contributions for a special issue of the journal which will focus on the teaching and learning of dispute resolution in higher education. The issue will be edited by Dr Bobette Wolski (Guest Editor) and Dr Francina Cantatore (Editor-in-Chief).

The Editors invite submissions of articles for review and publication in Volume 4, 2018 from academics, researchers, practitioners and students on all matters relating to the learning and teaching of dispute resolution in higher education in law and health care in Australia and globally.
Submissions could address, but would not be limited to, topics such as:
1. Effective ways in which to integrate dispute resolution education in the curriculum or program of learning
2. The impact of emergent technologies on the learning and teaching of dispute resolution
3. Teaching and learning of dispute resolution to make a positive impact on student well-being
4. How to prepare students for the increasing importance of dispute resolution in the global environment
5. Innovations in teaching and learning of dispute resolution
6. Tried and true: teaching methodologies that have been effective in teaching dispute
resolution theory and practice
7. Teaching for interdisciplinary understanding and practice of dispute resolution
8. Dispute resolution and access to justice
9. Can we teach students to act ethically in dispute resolution and if so, how and why?
10. Any other topics relevant to the teaching and learning of dispute resolution.

Please submit an abstract of your paper (abstracts should be no longer than 300 words in length) by 31 May 2018. In the first instance, abstracts should be forwarded to Bobette Wolski by email addressed to: bwolski@bond.edu.au. Please include your position description, organisation and contact details in the abstracts. Authors will then be invited to submit full texts of papers to the journal website.

The submission deadline for full papers is 31 August 2018.

It is anticipated that the special issue, which will be published as Volume 4, 2018, will be published late this year or early next year.
The style guideline is available here.
For more information visit here.

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On the passing of Frank Sander: A critical, grateful view from the Antipodes

Frank Sander, dispute resolution visionary and hero, recently died, aged 91.

I thought it would be worthwhile exploring some of Sander’s achievements and impact from an Australian civil justice perspective. In particular, I will consider the relevance of  Sander’s multi-door court house idea to Australia today.

For many years, I have been teaching Non-Adversarial Justice to undergraduate law students at Monash University. The wonderful, far-ranging discussions we have in those classes have given me the chance to reflect on the impact of Sander’s work here in Melbourne, Australia.

Sander was a professor of law and dispute resolution at Harvard University in the USA. He is associated with developing the ‘multi-door courthouse‘ idea: that a single court could triage the civil matters that came before it and provide a range of dispute resolution services (both litigious and settlement-based)  depending on what is needed in each case. A multi-door courthouse is a dispute resolution centre where a grievant, with the help of a screening officer at the court, is directed to an appropriate process or series of processes. This approach is underpinned by the view that court costs and delay are increased by ill-matched disputes and processes.

In many ways the multi-door courthouse is the civil equivalent of the criminal problem-oriented court, which aims to reduce re-offending by addressing the underlying causes of criminal behaviour.

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Multi-door courthouse: right for Australia? image Credit: Dan Boss, Exit at the Acropolis Museum, Creative Commons

Sander is also credited with developing the now ubiquitous idea of fitting the forum to the fuss (that each matter should use an appropriate dispute resolution process). In Australia in 2018, this an uncontroversial goal, which, unfortunately, is still a long way from reality in the civil justice system.

To develop ideas that become pervasive and which define a field has a something to do with luck (timing, place, race, gender etc). But not every lucky person has clear thinking, vision and the ability to convince others. Sander was clearly an ideas man and we listened. The impact of his thinking on civil justice systems and court practice is significant, even in far-away places such as Australia.

Sander gave a famous speech in which he first set out his ideas on the civil justice system at the 1976 Pound conference held in St Paul, Minnesota and organised by then Chief Justice of the Supreme Court, Warren Burger. Many, including Jeffrey Stempel regard this conference as the genesis of the modern ADR and court reform movement.  Stempel argues that this conference was notable in its criticism of the litigation process, its promotion of ADR by its “all star cast” including the cream of the American court and legal establishment as well is the publishing of its proceedings in West’s Federal Rules Decisions, guaranteeing wide exposure of the conference’s pro-ADR sentiments, especially to the nation’s federal judges.  The proceedings of the Pound Conference can be found in ‘National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ (Apr. 7-9, 1976) in 70 F.R.D. 79 (1976). The 1976 conference has, of course, spawned the contemporary Global Pound conferences.

Sander’s speech was at the heart of what the conference acheived. According to Diane Levin, at the 1976 Pound Conference, Sander

reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”

This is a call for the integration of ‘ADR’ with the ordinary everyday business of civil courts. (There is a very readable exploration of the origins of Sander’s Pound paper  here).

More than 40 years later, Sander’s call has largely been answered.  We know that settlement has always been part of civil litigation (thanks Marc Galanter for giving us the term ‘litigotitation’). But since Sander gave that speech, various forms of ADR, especially mediation and arbitration, have become part of standard court practice in most jurisdictions. For example, the Supreme Court of NSW offers both mediation and arbitration for civil matters under Parts 4 and 5 of the Civil Procedure Act 2005 (NSW). Referral to ADR can be mandatory in most Australian courts. Court-connected ADR services in Australia are provided by in-house staff or by external service providers.

However, most Australian courts could not be called multi-door courthouses. One reason why, is that formalised dispute resolution screening processes are not in place in most Australian courts. (The NSW Land and Environment Court is a clear exception).

What I think Sander didn’t quite get it right is that his focus was largely on the courts. To my mind, the locus of conflict and dispute resolution is not at the pointy court-end of the dispute resolution pyramid, but the heavier bottom-part. Most people who have a ‘legal problem’ don’t go near a court but choose or are forced to use other methods of dealing with their matter. These methods include direct action such as physical retaliation, seizure of property or removal of offending objects, informal negotiation or exit and avoidance (‘lumping’ the problem). That’s certainly what goes on in my house!

Court-based triage and assessment of problems is going to offer very little to most people who never even conceive of their ‘problems’ as court-worthy nor have the funds to litigate. When researchers measure ADR use, there is always very low awareness of ADR processes in the community and low uptake and use of formal ADR services. Even ADR services are not the only answer.

The multi-door courthouse doesn’t reflect more recent government efforts to encourage efficiency in the civil justice system in Australia and the UK. Pre-action protocols/procedures have been implemented widely in England and Wales following the Lord Woolf Report and more sparingly (but significantly) in Australia. Pre-action procedures encourage early settlement of disputes, full disclosure of information between parties and, where the matter cant be resolved, the narrowing of issues in dispute, but all before proceedings have commenced. Pre-action procedures are important because they force the location of ADR services away from the courts and towards pre-trial services offered by non-court providers or undertaken informally. Tania Sourdin argues that pre-action procedures are a significant shift away from Sander’s multi-door courthouse and towards  a “more modern multi-option  dispute resolution model.”

I would argue that they key idea behind Sander’s multi-door courthouse idea, matching the forum to the fuss, should and does still exist as a guiding principle of Australian civil justice systems. While the location of dispute resolution activity has shifted away from the courts (in Australia at least) Sander’s ideas have shaped the civil justice landscape of our country.

Thank you, Frank.

Aspects of this post are based upon ‘Chapter 7: ADR: Appropriate or Alternative Dispute Resolution’ in King, Freiberg Batagol & Hyams Non-Adversarial Justice (2nd ed, 2014).

Don’t fear robo-justice. Algorithms could help more people access legal advice

John ZeleznikowVictoria University

This post by ADR Research Network member and Professor John Zeleznikow appeared in academic commentary site The Conversation on 23 October 2017.

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Should we be afraid of robo-justice?
Maksim Kabakou/Shutterstock

You may have heard that algorithms will take over the world. But how are they operating right now? We take a look in our series on Algorithms at Work.


Algorithms have a role to play in supporting but not replacing the role of lawyers.

Around 15 years ago, my team and I created an automated tool that helped determine eligibility for legal aid. Known as GetAid, we built it for Victoria Legal Aid (VLA), which helps people with legal problems to find representation. At that time, the task of determining who could access its services chewed up a significant amount of VLA’s operating budget.

After passing a financial test, applicants also needed to pass a merit test: would their case have a reasonable chance of being accepted by a court? GetAid provided advice about both stages using decision trees and machine learning.

It never came online for applicants. But all these years later, the idea of using tools such as GetAid in the legal system is being taken seriously. Humans now feel far more comfortable using software to assist with, and even make, decisions. There are two major reasons for this change:

  • Efficiency: the legal community has moved away from charging clients in six-minute blocks and instead has become concerned with providing economical advice.
  • Acceptance of the internet: legal professionals finally acknowledge that the internet can be a safe way of conducting transactions and can be used to provide important advice and to collect data.

This is a good development. Intelligent decision support systems can help streamline the legal system and provide useful advice to those who cannot afford professional assistance.

Intelligent legal decision support systems

While robots are unlikely to replace judges, automated tools are being developed to support legal decision making. In fact, they could help support access to justice in areas such as divorce, owners corporation disputes and small value contracts.

In cases where litigants cannot afford the assistance of lawyers or choose to appear in court unrepresented, systems have been developed that can advise about the potential outcome of their dispute. This helps them have reasonable expectations and make acceptable arguments.

Our Split-Up software, for example, helps users understand how Australian Family Court judges distribute marital property after a divorce.

The innovative part of the process is not the computer algorithm, but dividing the process into 94 arguments, including issues such as the contributions of the wife relative to the husband; the future needs of the wife relative to the husband; and the marriage’s level of wealth.

Using a form of statistical machine learning known as a neural network, it examines the strength of the weighting factors – contributions, needs and level of wealth – to determine an answer about the possible percentage split.

Other platforms follow a similar model. Developed by the Dutch Legal Aid Board, the Rechtwijzer dispute resolution platform allows people who are separating to answer questions that ultimately guide them to information relevant to their family situation.

Another major use of intelligent online dispute resolution is the British Columbia Civil Resolution System. It helps people affordably resolve small claims disputes of C$5,000 and under, as well as strata property conflicts.

Its initiators say that one of the common misconceptions about the system is that it offers a form of “robojustice” – a future where “disputes are decided by algorithm”.

Instead, they argue the Civil Resolution Tribunal is human-driven:

From the experts who share their knowledge through the Solution Explorer, to the dispute resolution professionals serving as facilitators and adjudicators, the CRT rests on human knowledge, skills and judgement.

Concerns about the use of robo-justice

Twenty years after we first began constructing intelligent legal decision support systems, the underlying algorithms are not much smarter, but developments in computer hardware mean machines can now search larger databases far quicker.

Critics are concerned that the use of machine learning in the legal system will worsen biases against minorities, or deepen the divide between those who can afford quality legal assistance and those who cannot.

There is no doubt that algorithms will continue to perform existing biases against vulnerable groups, but this is because the algorithms are largely copying and amplifying the decision-making trends embedded in the legal system.

In reality, there is already a class divide in legal access – those who can afford high quality legal professionals will always have an advantage. The development of intelligent support systems can partially redress this power imbalance by providing users with important legal advice that was previously unavailable to them.

There will always be a need for judges with advanced legal expertise to deal with situations that fall outside the norm. Artificial intelligence relies upon learning from prior experience and outcomes, and should not be used to make decisions about the facts of a case.

The ConversationUltimately, to pursue “real justice”, we need to change the law. In the meantime, robots can help with the smaller stuff.

John Zeleznikow, Professor of Information Systems; Research Associate, Institute of Sport, Exercise and Active Living, Victoria University

This article was originally published on The Conversation. Read the original article.

 

ADR and the Importance of Data

A recent post by Dr Becky Batagol had me thinking about the importance of good data collection in the field of ADR.  ADR proponents make many claims about the benefits of ADR.  We also know that most dispute resolution processes occur behind closed doors, which challenges our ability to make sweeping statements about “what goes on” in ADR processes.  Good data, collected from third party facilitators, disputing parties and non participant observers, helps us to make strong claims about the efficacy of ADR forums.

Such data may help us to more clearly consider questions that we believe we already know the answer to.  Do ADR processes really preserve relationships when compared to litigation?  Are the values of self-determination and autonomy actively promoted in ADR?  Do parties focus more on their interests, rather than their positions in ADR?  Are remedies achieved in ADR more flexible and varied, compared to court adjudication?

ADR researchers also need to consider methodological approaches that allow us to say things like:

  • ADR is cheaper than litigation.
    ADR is quicker than litigation.
    Settlement rates in ADR are high (compared to what?)
    Party satisfaction with ADR processes is high.

When I think about these claims, I think about the (initial) words of Thomas Jefferson and the American Declaration of Independence… “We hold these truths to be sacred and undeniable”.  I think good data allows us to cast sunlight on many of ADR’s claims.  It is important that we do shine light on these claims, so that users and providers of ADR services understand what ADR can and cannot sensibly lay claim to.  Becky made reference in her earlier post to data that would be useful to have:

  • settlement rates
    factors that may influence settlement rates, such as referral stage
    what happens when disputes are not settled at ADR
    participant satisfaction with ADR and perceptions of fairness, the time and costs expended by participants and service providers.

For members of the ADR research network and readers of this blog – what other data do you think we should be trying to collect??

James

Wishin’ and Hopin’: ADR Policy in Victoria

The past couple of years have seen dispute resolution increasingly politicised in Australia, as we have explained elsewhere. The Victorian election, held on 29 November this year and which resulted in a change of government, is no exception.

The new Australian Labor Party (ALP) government has made an explicit commitment to increasing use of ADR in Victoria. The government’s pre-election platform states (at p 67-8):

 Where disputes occur, Government should provide Victorians with options to resolve them at the earliest stage to avoid the cost, stress and delay that is often a feature of traditional court proceedings.

Specific policies promised in relation to ADR include increased promotion of mediation and ramping up the dispute resolution options at VCAT, the Victorian Civil and Administrative Tribunal, so that it is restored as “a simple, low cost jurisdiction that assists parties seeking speedy resolution of their matters in a less formal and intimidating environment.”

The government has also committed in its platform to providing increased access to justice for vulnerable Victorians (p.67). It has promised an inquiry into access to justice in Victoria including into availability and funding of Community Legal Centres (CLCs). Specific measures pledged to improve access to justice include increased funding for Victoria Legal Aid, addressing “the clogging of the court system”, fixing the problems with funding cuts at VCAT and encouraging more lawyers to work at Community Legal Centres through providing incentives such as scholarships and HECS rebates.

Related promises in the ALP platform include mainstreaming into the broader court system some of the successes of the problem-oriented courts set up in Victoria over the past decade (p.64) so that offenders are better connected to the services they need to address their offending.

While the previous government was in power Victoria from 2010-14, ADR policy moved slowly at best. The Attorney-General for that government, Robert Clark, had publicly expressed his commitment to ADR, stating to the LEADR Kongress in September last year: “The State government is a strong supporter of ADR and the role it can play in bringing about just outcomes in a timely and cost-effective manner.” However the record of the coalition government supporting ADR did not match these words when, in 2011, it repealed legislation containing broad-scale pre-action procedures mandating participation in ADR for all civil disputes before the courts. In passing these reforms, the Attorney-General stated in Hansard on 10 Feb 2011 (at p 307):

It is common sense and good practice for parties to attempt to resolve their dispute without resorting to litigation if there is a reasonable prospect of success in such an attempt. However, the government’s view, and the view of many practitioners, is that to seek to compel parties to do so through these heavy-handed provisions will simply add to the complexity, expense and delay of bringing legal proceedings, because of the need to comply with these mandatory requirements, whether or not they are likely to be useful in any particular case.

It is regrettable that the legislation was repealed without any evidence base of the effectiveness of the reforms or independent testing of the Attorney’s claims.

It remains to be seen whether the deeds of this new Victorian government match its words. The fact that ADR and access to justice were explicitly part of the policy platform prior to the election is promising. The new Attorney-General, Martin Pakula, has big shoes to fill, his Labor predecessor being Australia’s most reformist AG, Rob Hulls (Lionel Murphy having fewer years in the job).

While we wait to know more from the government in Victoria, here’s my personal wish-list for the Attorney-General to tackle in relation to dispute resolution/ ADR policy reform in Victoria

  1. A public review of the quality and effectiveness of ADR processes in Victoria. ADR is offered in every Victorian court and by many other state providers. But we know little about the quality of services offered (including settlement rates, satisfaction, inter-professional collaboration around the process and the fairness of outcomes). The Productivity Commission  recently called for all State and Territory governments to conduct an independent public review of the effectiveness and efficiency of dispute resolution mechanisms within their jurisdiction every 5 years, starting by 30 June 2016 (p.298). Such a review would be a good start for a government intent on making an impact where there is already significant state outlay on ADR services and efficient justice investment is an imperative.
  2. Mandating public reporting on standard ADR data by all Victorian ADR service providers (including courts and tribunals, Community Legal Centres, Victoria Legal Aid and other dispute resolution services such as the Dispute Settlement Centre of Victoria, or DSCV). Higher quality and consistent data collection would enable us to understand whether existing ADR services meet their aims and whether gaps in service provision exist. Higher quality data means that money can be efficiently allocated where there is highest need. The public availability of such data is crucial to ensure transparency in provision of dispute resolution services when ADR lacks the many of the fairness protections available in the public court system. The absence of adequate dispute resolution data was noted by the Victorian Law Reform Commission (VLRC) in its 2008 report on Victoria’s civil justice system in relation to the effectiveness of court-ordered mediation in Victoria (at pp 278-83). In 2009, when the Victorian Parliament’s Law Reform Committee recommended that

    At a minimum, the Committee believes that there is a need for consistent data collection across ADR service providers about:

    -settlement rates

    -factors that may influence settlement rates, such as referral stage

    -what happens when disputes are not settled at ADR

    -participant satisfaction with ADR and perceptions of fairness the time and costs expended by participants and service providers. (pp. 58–59)

  3. Widespread use of family group conferences for child protection matters usually commenced in the Children’s Court of Victoria. In 2010, just prior to the State election in that year, the Victorian Law Reform Commission set out a range of options for reform of the processes followed in child protection cases in the Children’s Court of Victoria. One of the options canvassed involved a graduated range of supported, structured
    and child-centred agreement-making processes as the principal means of determining child protection application outcomes instead of existing court processes. The Commission noted that most agreements in child protection matters are already the result of informal bargaining between the parties’ lawyers (at para 7.4) and that supported and child-centered processes such as family group conferences would better enable agreements that are in the best interests of the children involved and which stick in the longer term. These options for reform were never implemented following the 2010 election and may yet help to ensure that scarce resources already invested in Victoria’s child protection system are directed towards assisting vulnerable children have care arrangements that meet their best interests.
  4. Better connecting and integrating state-funded family violence and police services with federally-funded Family Dispute Resolution (FDR) services so as to better protect those experiencing family violence. In 2010 the Australian and NSW Law Reform Commissions’ joint inquiry into family violence concluded that there was potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence but that there had to be better coordination with State and Territory child protection and family violence systems (at paras 21.12-21.13 and 21.50). The Luke Batty case has clearly demonstrated the need for more effective coordination of state-based family violence and police services and services within the federal family law system. The Victorian government has committed to holding a royal commission into family violence. By committing to work specifically with FDR providers including Family Relationship Centres and Victoria Legal Aid’s Roundtable Dispute Resolution, the Victorian government can help to provide avenues for seamless, safe and supported decision-making following family breakdown for women and children experiencing family violence.

So, that’s my list. What is on your personal wish-list for ADR policy reform in your State or locality?

Becky Batagol would like to disclose that she worked for the Victorian Law Reform Commission on its inquiry into Protection Applications in the Children’s Court of Victoria in 2010.

New edition: Dispute Resolution in Australia: Cases, Commentary and Materials by SPENCER and HARDY

DR in Aust 3rd Ed

 This third edition of Dispute Resolution in Australia: Cases, Commentary and Materials highlights the consolidation of the process of dispute management and resolution, particularly in the government sector. We are now seeing the full impact of government changes to the handling of civil disputation, with the establishment and fusing of specialist tribunals and commissions. The result of the creation of these extra-judicial bodies has been a reduction in some jurisdictions of matters proceeding to trial. The interesting side-effect of this development is the rise of dispute resolution processes within these specialist tribunals and commissions that seek resolution of disputes in order to avoid hearings.

This new edition brings the law up-to-date and features:

  • A new chapter on conflict coaching
  • A re-written chapter on the key elements of arbitral procedures and the common law surrounding arbitral practice featuring the new Uniform Commercial Arbitration Acts
  • A new chapter on dispute resolution and the criminal law system
  • A new chapter on dispute resolution and industrial relations.

Dispute Resolution in Australia: Cases, Commentary and Materials, third edition, is an invaluable resource for both students and practitioners, providing practical guidance and analysis in this dynamic area of the law.

  • Contents
  • Chapter 1: Introduction
  • Chapter 2: Understanding Disputes
  • Chapter 3: Negotiation
  • Chapter 4: Mediation
  • Chapter 5: Conflict Coaching
  • Chapter 6: Other Dispute Resolution Processes
  • Chapter 7: Arbitration
  • Chapter 8: Dispute Resolution in Criminal Law
  • Chapter 9: Dispute Resolution in Family Law
  • Chapter 10: Dispute Resolution in the Workplace
  • Chapter 11: Online Dispute Resolution
  • Chapter 12: The State and Dispute Resolution
  • Chapter 13: Culture and Dispute Resolution
  • Chapter 14: Legal Issues
  • Chapter 15: Ethics, Standards and Dispute Resolution
  • Chapter 16: The Future of Dispute Resolution

Teaching behavioural insights in dispute resolution

As part of an ongoing research project,  I’ve been looking at the impact of behavioural insights on mediation (and dispute resolution more broadly).   By ‘behavioural insights’, I’m referring to fields such as cognitive neuroscience, behavioural economics, social psychology,  all of which have been recently made accessible to non-experts through popular books such as  Nudge, Thinking, Fast and Slow and Blink.   

This project is directed at a critical analysis of the impact of these fields on core concepts such as self-determination in mediation.   However, that’s a post for another day  (and in fact a forthcoming book chapter), where I explore the challenges of these fields for foundational concepts in mediation, such as self-determination and party autonomy.   

However, in the process of undertaking this research I have come across some very good teaching resources from the University of Texas’ Ethics Unwrapped site.   I plan to use these in my teaching this semester, as they offer some insights into cognitive biases that, as mediators know only too well,  are common to participants in disputes.      Some of the topics that I have found particularly useful include  –  loss aversion,  framing, and fundamental attribution error.