Are we nearly there yet? Reflections on the HDR journey

As we move towards the middle of this my fourth year of PhD candidature, my thesis submission date is drawing rapidly nigh and the anxiety level is elevated a notch,  I thought it might be useful to reflect on the journey thus far and to share with you some of the highlights and low points of the journey although, thankfully, of the latter there is little to report.

child drawing

Image: ‘Child Drawing’ by The Naked Ape, Creative Commons, CC BY-NC-ND 2.0

I think it is fair to say that the journey may never have commenced at all, had it not been for the blindingly obvious conclusion after thirty years of legal practice as a commercial litigator, that the solutions being offered to litigants by the traditional justice system were somewhat less than ideal.  Clients were complaining that the court could not offer the relief they were seeking, the costs of “winning” were prohibitively high and most of the cases in which I was instructed were resolved on some basis well before they reached a hearing.  Try as I might, I could never quite be convinced of the claim that the public interest in having the courts “…explicate and give force to the values embodied in authoritative texts…” (1) or otherwise declare the law for the benefit of the public good, had any real relevance to some of the mundane and routine cases in which I was involved.  In fact, of all of the hundreds of cases in which I acted throughout my career as a lawyer, only two found their way into the law reports.

And so it was that, armed with the vision of a broader view of justice and a transcript of my Masters in Dispute Resolution, I arrived at the academy with a request to be admitted to the RHD program.  It is worth noting at this juncture that the welcoming and supportive culture of the academic community generally and my academic supervisors especially, has been nothing short of outstanding and I believe it is a tribute to their encouragement and support that I have persevered this far.

I am happy to say that my first year of candidature was both vigorous and productive.  Together with my colleague Armin Alimardani I represented the Faculty of Law at UNSW in the Three Minute Thesis competition where we both performed without distinction but were grateful for the experience.  The formulation of an appropriate research question, the preparation of a proposal and writing of a literature review  occupied most of the year and did much to clear my thoughts about the path that lay ahead.  I was delighted to discover that others had trodden the path I sought to travel and there was a rich and abundant supply of research evidence in the general dispute resolution field.  The filtering of this material was as fascinating as it was challenging and the effort was well rewarded because it placed me in an excellent position to approach the confirmation examination with confidence and to receive and consider the reviewers’ comments constructively.  Other features of the year included attendance at a compulsory course on research methodology and the acceptance for publication of the first of three articles which have appeared in the Australasian Alternative Dispute Resolution Journal.

The clear highlight of 2015 was the opportunity of presenting a paper at the 4th ADRN Roundtable at UNSW in September, an event which I shall long remember because it was there that I was introduced to the members of this research network, a group of like-minded thinkers, researchers and teachers who share my passion for a broader framework of justice.  I have attended each of our roundtables since and hope to do so again this year. It is, I think, an important and integral part of the aspiring academic’s learning experience to have the opportunity to present his or her research at as many roundtables and conferences as possible.  It provides an opportunity for practice at presenting, an opportunity to review the work of others and to receive comments and review of one’s own work in a supportive and non-threatening environment.    It also encourages collaboration and the formulation of collaborative networks such as the ADRRN.  For the RHD candidate, it also provides a much needed point of human contact with other researchers.  The road to a PhD can be a lonely journey at times and it is a good thing to meet with others professionally and socially to exchange thoughts and ideas about what is happening in the research discipline.  For me, the ADRRN roundtable is an end-of-year reward for diligence throughout the past year.

The research question with which I am concerned is how lawyers are engaging with court-connected mediation.  In her optimistically titled work, The New Lawyer: How settlement is transforming the practice of law (2) Julie Macfarlane explores the reasons why lawyers have traditionally acted in an adversarial manner in response to conflict and dispute.  She says that it is a cultural issue and that we (lawyers) behave as we do because of our “legal professional culture.”  She posits the existence of three core elements of legal professional culture which guide our thinking and steer us towards adversarial competition whenever a dispute arises.  Those elements are, firstly, the default to a rights based system of justice, secondly a belief in justice as process and thirdly a belief in the superiority of the lawyer as expert.  Using a data collection instrument designed to capture the presence of those elements in research respondents and with ethics approval sought and obtained, I set off in the Spring of 2016 to drive to various country centres throughout New South Wales to speak to lawyers about their views on court-connected mediation.  I spoke with each respondent for an hour, recorded the interviews with their permission on my smartphone and transcribed the interviews later.  (For anyone who may be contemplating this as a strategy for the future, be warned: the transcription time to interview time is 6:1 so for every hour of interview you can expect to spend six hours transcribing).

The verdict is in.  The qualitative data has been analysed and the interviews studied.  In many respects the results are not surprising.   They align with other research done in other places and at other times.  The good news is that, even over the past five years or so, we lawyers have made some progress in embracing court-connected mediation although at times with a begrudging acceptance and a resignation that it is here to stay and we may as well get used to it.  Particular themes emerged and are dealt with in my thesis.  They include, notably, the much vexed issue of disputant participation and the issue of confidentiality.  Understanding of how lawyers grapple with these issues is of particular interest to me because they go a long way to explaining what Olivia Rundle calls “the dilemma of court-connected mediation.”  Other themes which emerged from the data were the inclusion in mediation narrative of non-legal material and the question of whether, in court-connected mediation, mediators should be facilitative or directive.  A better understanding of these issues will give lawyers and their clients a better understanding of mediation and a more satisfying mediation experience.

So, as I turn into the straight for the final run home to what I hope will be a successful conclusion, I am sometimes reminded of family holidays and long car journeys and colouring books when my children would ask: “Are we nearly there yet?” and their mother would patiently reply: “Nearly there.  Just a little while to go. Just keep drawing in your book.  I’m sure you can make it a little better.” 


(1) O. Fiss Against Settlement 93 Yale LJ 1073 1983-1984 at p 1085

(2) J. Macfarlane The New Lawyer: How settlement is transforming the practice of law (Vancouver UBC Press 2008)

 

 

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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.