About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

Call for Papers: 10th ADR Research Network Round Table

Call for Paper Proposals

The 10th Annual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be held online via Zoom through the Bond University Law Faculty at the Gold Coast on 7-8 February 2022.

ADRRN Roundtables provide a collaborative and supportive research environment for work-shopping papers-in-progress. In addition to presenting and receiving feedback from attendees, participants can opt to have their paper commented upon by a Network colleague. Time allocated for a presentation is usually 30 minutes for the presentation, and 30 minutes for feedback, discussion and commentary.

The ADRRN is calling for 2022 Roundtable abstract submissions of no more than 300 words (plus a short bio and photo) by 30 November 2021 via email to the 2021 Network Presidents and 2022 Roundtable Conveners: Rachael Field (rfield@bond.edu.au) and Jonathan Crowe (jcrowe@bond.edu.au).

Presenters are also asked to convert their abstract into a short blog post of no more than 1000 words prior to or after the Roundtable. Blog posts will be published on the ADRRN’s webpage:  https://adrresearch.net/ .

Paper abstracts can focus on any dispute resolution theme and scholarly, critical and/or empirical perspectives are particularly welcome. Submissions from postgraduate students and early career researchers are encouraged, but Roundtable papers are presented by a spread of participants across all stages of an academic career. All submissions are considered. Papers should constitute work in progress.

A selection panel will select Roundtable papers from the abstracts submitted. The following selection criteria will be applied:

  • The submission takes a scholarly, critical and/or empirical perspective on an area of contemporary interest in dispute resolution theory or practice;
  • The submission is about a work in progress; and
  • The abstract is well-written.

Participation at the Roundtable is on a self-funded basis.

Attendance at the Roundtable is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Key dates:

Deadline for paper abstract submissions: 30 November 2021

Date for notification of acceptance: 17 December 2021

Full papers for peer review (optional) due: 24 January 2021.

Blog post due: 25 February 2022 (for publication as the March content of the Blog).

For further information, please contact:

2021 Network Presidents and 2022 Roundtable Conveners: Rachael Field and Jonathan Crowe via rfield@bond.edu.au pr jcrowe@bond.edu.au.

About the Australasian Dispute Resolution Research Network

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact the general blog editor Rachael Field at rfield@bond.edu.au.

Membership of Australasian Dispute Resolution Research Network

The Network eschews hierarchies and unnecessary administration, so we do not currently have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity are through Facebook “ADR Research Network” and Twitter @ADRResearch.

A VIRTUAL CONFERENCE STILL BRINGS US THE HEART

A reflection on the National Mediation Conference 2021 by Elizabeth Rosa

This year the National Mediation Conference (NMC) was recently held in Alice Springs, but delegates could only attend virtually as dictated by the Covid-19 restrictions in many states. It was intended that the conference explore the practice of mediation, in particular the dispute resolution work of Indigenous communities in this area, the Red Centre – the heart of the land we call Australia. There is something about the fact that the conference still went ahead, through a virtual platform, that could be regarded as a metaphor for our profession and the work that we do.

There had been many hopes both on the part of the NMC organisers and the delegates; many travel plans and many preparations for presentations. There were the hopes of the Indigenous peace-makers, and other Alice Springs mediators, that their distant Australian colleagues would be amongst them for a few days and would learn of the work that they do. The health emergency interrupted these plans. The organisers and hosts of the conference included Traditional Owners and Elders of the land of the Arrernte people around Alice Springs (Mparntwe). Indeed, the conference was held at the invitation of the Elders. The organisers and Elders were looking forward to welcoming the delegates, and the delegates were no doubt disappointed at the missed opportunity for the connection that they had hoped for, as well as the experience of being in Alice Springs, close to the heart of the land and its Indigenous population.

As mediators, we deal with loss. We deal with certain expectations that the mediation participants have had, for example, for a good marriage or even a good workplace relationship. But those expectations have not been met and the mediator works to understand how the parties feel about this and their capacity to propose options to create a new reality.

In their work, the mediator delves into the participants’ experience of the change that has occurred. The mediator works with heart to listen empathetically to the participants, to try to connect with them in order to understand their wants, needs and fears. Listening with heart could also be called listening with ‘the spirit’, as Susan Hamilton-Green, a family mediator from Melbourne, discussed in her talk on Motivational Interviewing. Susan looked at how listening this way can help a participant explore what it is that they want and how they can overcome the barriers to achieving this.

The organisers of the conference no doubt considered what their hopes for the event were and what those of the delegates would have been. And for them, there was the question: ‘How to accept that the opportunity of a face-to-face conference has been lost and how can the needs of the delegates be met in a different way?’

What were the needs of the delegates? I venture to guess, that for many, the need was to learn further skills to reinforce their existing practice; to hear about new and diverse ways of approaching their work; to learn about areas of dispute resolution different from their own; to be informed of peace-keeping approaches used by mediators in the Indigenous communities and First Nation Peoples around Alice Springs, and to hear of stories of the lives of the Elders and co-hosts. In addition, a conference gives the opportunity to connect with colleagues – catching up with familiar acquaintances and meeting new ones, perhaps through casual chit-chat. There is always the desire for connection and the feeling that this brings, of being part of something bigger than oneself, a professional community.

And so, the organisers would have considered these needs and the question of whether they could be met in another way. And so, the virtual conference was born. The planned-for talking circles of the conference hosts and Elders took place virtually. The speakers’ presentations were pre-recorded, and although the ‘live’ feel wasn’t there, there was the opportunity to ask questions of the speakers through chat. There were also opportunities at the conference for people to catch up through virtual break-out rooms during breaks, even at dinner-time one evening!

An ingenious touch for those of us missing the reality of actually being in Alice Springs was live-streaming of footage of the town and the country around it during the opening event. It was wonderful to see three of the Elders and co-hosts sitting in the view of the MacDonnell ranges: Harold Furber, Maureen Abbott, Dr Patricia Miller AO, Kumali Riley and Helen Bishop. (Other co-hosts not present on the occasion were Veronica Perrule Dobson AM and Marlene Rubuntja.) They spoke in a semi-circle, near a clutch of trees over dry land, gently introducing us to the land. As they spoke, the rays of the setting sun shone in golden streams over them. I felt almost as though I were there.

Maureen Abbott was the Co-Chair of the Design Committee. She created the painting that is used for the logo of the conference. Maureen has conducted dispute resolution in a variety of contexts and is an expert in Indigenous conflict management. She has also conducted mediation training for Indigenous communities across the Northern Territory and the APY Lands in South Australia. Helen Bishop is a PhD candidate in Conflict Resolution and Indigenous perspectives. She works in dispute resolution with First Nation communities across the Northern Territory. She believes that alternate dispute resolution practices and peace-building opportunities should be used to support community-led solutions.

On the Thursday morning, we were treated to another live-stream from the ground for a conference welcome: children from Yipirinya school cooking kangaroo tail over an outdoor fire and later singing to us from their school hall.

I had imagined being present at the talking circles at Alice Springs and sitting in the presence of the Elders. It was different to see them on screen and yet they took to the live format generously, sharing their stories with humility about what they had suffered. I felt that I was present with them in the room and was honoured to have the opportunity to hear of their life experiences.

I embraced conducting my presentation by Zoom rather than face-to-face. I interviewed Katelyn Betti, a family mediator, about what workplace mediators can learn from the practice of Family Dispute Resolution. We discussed the techniques that Family Mediators use to enhance emotional safety and constructive dialogue. We explored Katelyn’s particular perspectives on this, plus my own reflections on how these perspectives could help in the workplace context. I was glad that Zoom gave me an opportunity to speak with Katelyn in the west coast of Australia in Perth, from my place in the east coast, in Sydney.

In the virtual break-out rooms that I attended during the breaks, the delegates saw each other through cyber-space squares, like virtual window panes. We sought to connect with each other and yet there was the distance through the virtual platform. But we persevered and I found that I got to know new people, particularly when they coincidentally appeared at another ‘meal break.’

Again, the conversations through the breakout rooms was a metaphor for the mediator’s desire for connection with participants. With all participants in mediation, there are barriers: their own world view coloured by their disappointments, their emotions, their need for control. In all of life, in fact, there are barriers to connecting with others because of our own perceptions, erroneous assumptions, lack of time due to busy lives and other commitments. Even partners who live together can struggle to really know each other. But mediators strive with purpose to connect with participants in mediations and to know and understand them during the time that they work with them. Mediators are a breed who enjoy getting to know and understand others. And so, at the conference, it was palpable how much the delegates wished to connect, striving with purpose in the digital format to learn more about their colleagues.

In the final event, the wrap-up by NMC Chair, Professor Laurence Boulle AM and Co-Chair of the Design Committee, Alysoun Boyle, we heard of the hopes and the challenges to bring the conference to fruition. Alysoun, from her own locked-down location, spoke with gratitude and emotion of how the Elders, who hosted all of us, had helped her and taught her during her time of preparations. And she spoke of how she had got to know Maureen Abbott and Helen Bishop, and how they had so generously guided her through the process of putting together the conference program.

We would have all been disappointed to have missed the opportunity to meet the co-hosts, to be on their country, the land of the Arrernte peoples, and to be in the heart of the land. We would have been sad to miss being present on the ground at the talking circles to hear the Elders and co-hosts speak of their experiences in their country and the losses and pain of the stolen generation. We may have had the opportunity to even sit in the circle with them or a chance to speak to them, to learn even more about their lives and their hopes for their communities and the peace-making work that they do. We would have wondered how we would have felt if we had been there, present with the Elders. To be in their country. To be on the red earth under a cloudless sky. How connected would we have felt; what emotions would have been conjured up? What would we take away with us?

But hearing the emotion with which Alysoun spoke of her work with the co-hosts and the connection that she developed, made us feel like we were there. Alysoun and the co-hosts brought the heart of the land straight into our homes through our computer screens.

17 September 2021

Elizabeth Rosa is a Nationally Accredited Mediator, Workshop Facilitator and the Founder of Resolve at Work.

Fairness and Mediation: A Contribution to the Debate

Thank you Joanne Law for your thoughtful contribution to the debate on Mediation and Fairness on :

Really interesting, if somewhat cynical perspective on the question of fairness in mediation by Robert Angyal.

I would take a different perspective and narrow my focus down to mediation in accordance to the National Mediator Accreditation System practice standards and ethics.

The generally accepted meaning for ADR is Alternative Dispute Resolution (alternative to court) but I am with the crew who are working towards ADR meaning Appropriate Dispute Resolution. That shifts the focus from Court as the benchmark or expected approach to resolving disputes as is implied by looking at other than court as alternative and puts court where it belongs as the last resort in the continuum when people and their advisors are incapable of resolving the issues without a decision maker.

We have an unfortunate tendency to use acronyms in our industry which is not ideal, especially if we don’t identify what the letters mean.

In mediation we avoid assumptions in our language when we mediate and I hope most mediators have their ears tuned in to hear assumptive language and use clarifying questions to open the assumptions up to scrutiny.

I feel that Mediation should be facilitated in accordance with the ethics established in our NMAS standards and in the case of family law mediators regulations not arbitrary moral norms. There is a huge assumption in believing that moral norms has any type of universality as morality isn’t universal. It’s a product of upbringing, religious norms and life experiences etc.

Does the list of criteria given for assessing civil disputes really cover appropriate criteria? Those given were “efficiency, cost, access, speed, compliance with the rules of natural justice, and so on.”

I would add effectiveness in resolving the dispute, increasing understanding and improving communication.

If we take the definition of mediation from the NMAS Standards it is “Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding, (b) identify, clarify and explore interests, issues and underlying needs, (c) consider their alternatives, (d) generate and evaluate options, (e) negotiate with each other; and (f) reach and make their own decisions.

A mediator does not evaluate or advise on the merits of, or determine the outcome
of, disputes. (there is a proviso that recognises the more evaluative or advisory end of the spectrum. Footnote in the standards: For a mediator using a blended process, which may involve the provision of advice see Section 10.2 of the Practice Standards)

If we lived in the ideal world I would like to create people wouldn’t be mediating based on fear of the risks associated with litigation that they have rushed into but instead go to mediation first, share their perspective of what they need to resolve the dispute and work towards something that can be considered as acceptable by both.

So for me a fair outcome is within the range of somewhere between the best possible outcome and the worst case scenario for both. And that they are able to work through the decision making in a respectful process where they are not coerced, bullied or pushed into a feeling that they have no other options.

Rather than thinking about fair as being a single outcome perhaps we could think of it as an outcome that those involved can accept without regret.

When I am training mediators I coach them not to use language like “Are you happy with the outcome?” which reminds them of their best case scenario which is likely to be closer to the other parties worst case scenario. Instead if you ask “Is that acceptable to you?” people can think about does the outcome fit within the range they believe is reasonable. Because for me the answer to the question “who decides what is fair?” should be those who have to live with the agreement reached.

The questions asked at the end are questions that have multiple answers depending on the style of mediation. Settlement negotiation mediation may work as described but other types of civil mediation are used instead of and without any intention of going to court.

Why does mediation work?
How does mediation work?

For mediation where lawyers are included in the process.

How can I effectively represent a client at mediation?

By empowering your client rather than speaking for them and definitely by finding out what they want rather than pushing them into what you think they can get if you push hard enough.

What are the ethical limits on my advocacy at mediation?

My thinking is why do lawyers think that mediation is a process where they need to be advocating rather than assisting with problem solving?

Whatever happened to the National ADR Principles: A Reply by Robert Angyal SC

Robert Angyal SC has posted a detailed and thought provoking response to the most recent ADR Research Network Blog Post on the National ADR Principles – so I have posted it here on Robert’s behalf. Many thanks Robert for your engagement with the Blog! And thanks to Vesna and Teresa who also posted comments! Keep the comments coming!

Image result for image for the good news and the bad news

The post asks, “Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both?” There are several problems with the question itself.

First, what is meant by “ADR”? To this writer, ADR means going to court because the primary dispute resolution process, mediation, has not resulted in settlement of the underlying dispute. This is because mediation is ubiquitious in modern Australian civil dispute resolution. I think, however, the author of the question meant something different by “ADR”.

The second problem with the question is this: Is it a question which calls for a description of how mediation actually is practised in Australia and an assessment whether it leads to fair results – that is, does it call for a descriptive answer? Or is it a question about how mediation should be practised in Australia – that is, does it call for a normative answer based on moral norms about how the practise of mediation should be conducted?

If the question is a normative one, it leads to two more questions: First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all? We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

The third problem with the question “Is mediation about a fair process or about a fair outcome?” is the biggest one: It assumes that mediation is fair (descriptive) or should be fair (normative). It doesn’t admit the possibility that mediation might not be about fairness in either sense. You’re saying, I know, “Hang on, of course mediation is meant to be fair; that’s why people do it rather than going to court.”

I have two sorts of bad news for you. The first bad news is that in any particular case, the question “Is mediation fair?” is unanswerable, for lots of reasons. The biggest reason is that the parties will disagree about what’s fair. That’s why they’re having a mediation in the first place. If they could agree about what’s fair, they wouldn’t need a mediation or a mediator. Given this and the fact that mediations always are conducted in private, even if a third party could find out the outcome of a particular mediation, how could they form an opinion as to whether it’s fair?

The second piece of bad news is that my empirical observation, based on mediating for 30 years, is that parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome. They’re mediating because, and mediation works because, they are worried stiff about continuing the underlying legal proceedings. They are worried because litigation is very expensive, very destructive of relationships, very time-consuming and drawn-out and – most scary of all – very unpredictable as to result, with costs usually following the very unpredictable result. Losing means you get nothing out of the proceedings except the obligation to pay not only your costs but also the winner’s costs.

So the reason they are mediating is to mitigate the huge risks inherent in conducting civil litigation. To put it bluntly: Many parties to civil litigation can’t afford to lose – but they have no way of knowing with any certainty whether they will lose or win. They are looking for a way to avoid taking the risk of losing.

Some parties are even worse off: They can’t afford to run the legal proceedings to judgment but neither can they afford to call a halt to the proceedings, because a party who discontinues proceedings almost always has to pay the costs to date of the other side. They are caught in a costs trap, from which they need to find an escape. Mediation offers hope of an escape.

What this means in practice is that fairness is not a concept that’s relevant in mediation. Typically, a party will settle at mediation if the settlement being offered to them is better than the risk-laden nightmare of continuing the underlying legal proceedings. That’s the calculus that drives mediations towards settlement in my experience. It means that a lot of cases settle on terms that might shock outsiders: Plaintiffs sacrifice their causes of action and claims for damages in exchange for being released from the obligation to pay the defendant’s costs. Defendants who could defeat the plaintiff’s claim at trial pay plaintiffs to go away – because, the defendant knows, it will cost a lot of money to defeat the plaintiff’s claim but those costs won’t be recoverable from the plaintiff. So, as long as the case can be settled for less than the defendant’s irrecoverable costs, it’s cheaper to settle than to win the case. Fairness doesn’t enter the picture.

So can we abandon questions about fairness in mediation as irrelevant? They only distract attention from difficult and important questions about mediation, such as:

  • Why does mediation work?
  • How does mediation work?
  • How can I effectively represent a client at mediation?
  • What are the ethical limits on my advocacy at mediation?

Robert Angyal SC
4 July 2021

Another interesting post from Robert is in the wings – so keep an eye out for that one!

Whatever happened to the National ADR Principles?

Premium Photo | Green fern leaf on a white background

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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