On 1st and 2nd February 2021, the University of Newcastle hosted the 9th ADRRN Round Table and Civil Justice Research Conference. The proceedings brought together online twenty six leading world scholars from around Australia, New Zealand, Bangladesh and the United Kingdom to present papers and discuss themes of topical interest to dispute resolution.
A theme which emerged from conference papers, and which is taken up in this post, is the reconciliation of competing interests which are valued by the traditional justice institutions and dispute resolution theory respectively. In her paper “Is Civil Dispute Resolution all about how best to balance competing objectives?” Sonya Willis observed that the most efficient solutions lack procedural protections and the fairest solutions come at a cost which makes them unjust or just plain unavailable. Juxtaposing four conflicting imperatives of civil dispute resolution, (efficiency and due consideration; certainty and flexibility; privacy and openness and autonomy and control) the author argues that acknowledging those imperatives involves acceptance that they are irreconcileable and that achieving optimal outcomes through ADR means striking a balance in which some measure of each value is sacrificed in the interests of achieving an overall better outcome than would otherwise be available under the competing imperatives.
This is a conundrum that has long troubled both civil justice and dispute resolution theorists. In 1997 it prompted former High Court Chief Justice Brennan to express concern that the diversionary procedures offered by dispute resolution processes would deliver “…a cheaper but a less satisfying form of justice.” (G Brennan Key Issues in Judicial Administration (1997) 6 Journal of Judicial Administration 138 at 141). It troubled Justice Ronald Sackville when he wrote that the functions performed by the courts cannot always be discharged in a manner that is compatible with heightened expectations of cheap and swift justice. (R Sackville: Reforming the Civil Justice System: the Case for a considered approach in Stacy and Lavarch (eds) Beyond the Adversarial System (Federation Press 1999 p35). Perhaps it also troubled Professors Jonathan Crowe and Rachael Field when, in their paper “Intuition and Artestry in Mediation: Implication for Mediator Ethics, they observed that mediators should not only meet minimum standards of competence but should attain higher levels of expertise. Drawing upon social scientific research on intuitive decision making, the authors argue that such research has important implications for how mediators respond to ethical dilemmas. They propose a guided framework for mediation practice that “leaves room for mediators to exercise and enhance their capacity for ethical judgment.” If mediators are to engage in the exercise of addressing a balancing of competing interests between efficiency and due consideration, between certainty and flexibility, between privacy and openness and between autonomy and control, it makes sense that they should be properly equipped to exercise that judgment in a sophisticated manner with emotional maturity and from a sound ethical framework.
The balancing of competing civil dispute resolution imperatives in practice and the methodology employed by mediators to resolve ethical dilemmas, like so much of mediation practice, are largely unknown quantities. This is largely because of the confidentiality provisions surrounding mediation and the private nature of the process. In her paper “Evaluating Mediators – stepping off the beaten track” Dr Alysoun Boyle reported on the key outcomes of a major analysis of empirical studies into mediation using a metaresearch framework. She reported that: “…in the absence of significant changes in research approach and design, there is unlikely to be any increase in what is known – including about what mediators do in mediation, how they might influence what happens during mediation and how they might influence the achievement of mediated outcomes and their content.” The author proposes a significant review of the research methodology to be employed in approaches to research into dispute resolution practices and observes that there may well be opportunities for leadership roles for bodies such as the ADRRN Network.
Though held online for the first time in 2021, the ADRRN Round Table and Civil Justice Research Conference was again successful in delivering an impressive suite of research documents which will no doubt inform civil justice and dispute resolution research into the future. This brief post has drawn attention to one of many themes which were explored during the conference. We hope to feature others in coming weeks.