About Dr Rosemary Howell

I am a Professorial Fellow at the University of New South Wales in Sydney, delivering dispute resolution programs to undergraduate and postgraduate students. My company, Strategic Action, provides mediation, facilitation, coaching and bespoke training to business and government.

What Would YOU Know About It? Some thoughts on gaining experience as a young mediator

This post by Haley Weir originally appeared on the Kluwer Mediation Blog

                                              what-would-you-know-about-it-image

It was a phrase I’d imagined silently echoing in the minds of parties, co-mediators and solicitors, but this was the only time I had heard it vocalized.

It was uttered during one of my first coordinator roles in the civil courts of Scotland, where my role was to inform and promote the services of the mediation clinic to parties pursuing litigation under Simple Procedure. I was nervous to say the least. The aim of the role seemed unclear and, as an inexperienced mediator, I lacked authority and confidence.

The Sheriff’s strong critiques of a contractor’s failure to complete the building of a deck (over many years) had been heard, and it was suggested to the parties that they speak to the mediators present, in the hope of resolving the issue with no further legal action.

– Cue me.

I believed this case was ideal for mediation. I introduced myself to the two gentlemen involved in the claim, explaining the potential benefits of mediation. It soon became apparent, by the respondent’s resistance, that he was uninterested in my pitch.

I continued my presentation and expressed my enthusiasm for mediation, until I was met with that phrase:

“What would YOU know about it?”

Fair enough – what do I know about the construction of a deck? Very little, and I was quick to articulate this to the respondent, adding, “Though, I am assured YOU know quite a bit on the matter, which is far more relevant to this case.”

I attempted to recover by reiterating that my role, as a mediator, was to facilitate a meaningful conversation between the parties, and that the subject matter, content and interests were determined by the parties and not myself.

But, as you may have guessed, this case did not mediate. It is doubtful that the Sheriff who would hear the case would have an exhaustive knowledge of deck construction either and the matter would ultimately come down to contract law, not construction. However, the participants had a lack of trust in both the mediation process, and in my experience and ability as a young mediator.

Perhaps, I have been mediating for longer than I realized. I was sought out on the playground to advise and resolve disputes such as, “Whose turn was it, really?” I dabbled in mediation before I knew the term (though my argumentative and opinionated personality did not reflect a high standard of impartiality).

I went on to explore the concept of issues and crisis management as a module in public relations in my undergraduate studies, before moving to my postgraduate studies, where I discovered mediation and alternative dispute resolution.

The field offered me the opportunity to combine my interests in working with people, taking a thoughtful approach, problem solving and creativity. Once commencing my studies abroad in Scotland, I continued to develop these skills while learning to implement strategy and theory into the practice. After clocking the necessary hours as a student mediator and meeting other requirements, I began to take on cases as a lead, co-mediating with current or past students in the Master’s program.

During these cases, it was assumed (more than once) that I was the trainee there to observe and learn from my more experienced counterpart. It didn’t matter that I was conducting, guiding and facilitating a majority of the process. People expected our ages to correspond with our experience level. My age spoke for – and continues to – speak for me as a learner, not as a mediator.

So, as a young mediator, what DO I know?

• I know how to be reflective on my thoughts, actions, feelings and how to convey these to others in an effective, impartial, genuine manner.

• I know that dealing with sensitive, complicated human emotions and interactions requires constant learning, adaptation and creativity, all of which I have a strong passion to continue pursuing.

• I believe that social intelligence learned through curiosity, and a strong desire to understand human behaviour, has assisted me in learning about people’s motivations and expectations. I have the compassion to commit time and sincerity to the cause and outcome of mediation.

• After time spent in the hallways and courtrooms of Simple Procedure, I have inadvertently learned more about the construction of decks (as well as showers, fences, window treatments, and doors for that matter!). I will learn about many content areas that cause dispute but mediation is about being heard, acknowledging needs and wants and arriving at a solution that maintains dignity.

• More importantly – I have developed an awareness of the need for sustainable conflict management skills. I work with and strive to use the mediation skills of open questioning, impartiality and listening both actively and passively. Parties are experts in their lives and what solutions they can accept, conflict is normal with problem solving as the key to conflict resolution.

• Lastly, I know I can’t possibly know everything about conflict and people management. Parties in mediation come from their own contextual backgrounds and they are the experts when it comes to their conflict and potential resolutions that would, or would not, suit them. Your curiosity and interest as a mediator show the parties that you are present, impartial and there not to enforce, but to guide them through the issues.

I urge young mediators (myself included) to continue to pursue opportunities for mediation experience and remind themselves of what we can bring to the table. I believe that young mediators have the skills and potential to contribute to the field and hope that employers and organizations can see this worth with offers of opportunities to provide the most coveted skill of all, experience.

How judges see ADR – searching for clues

Judges Scrabble

Photo: Creative Commons – Blue Diamond Gallery under licence

The judicial mind has never been particularly accessible to me. Perhaps the requirements of objectivity and neutrality impose opinion-censoring constraints or perhaps the judiciary tends to have a preference for the law and the facts.

Whatever the reason, it is difficult to get a sense of ‘the view from the bench’ about the ADR space in which we research, teach and practise.

There are some judicial views that are well known.

We do know there is a continuing theme of judicial approval for the ‘cheap and quick’ features which are so emphasized by legislatures and courts’ administration and which were arguments promoted vociferously by early ADR advocates as a means of garnering support.

The 2009 speech to the profession by the Chief Justice of the Supreme Court of Victoria (as she then was) The Hon. Marilyn Warren included powerful advocacy for ADR. She dwelt on the significant reduction in court lists achieved via ADR and the ‘extraordinary’ saving in court time and resources – a more elegant version of the ‘cheap and quick’ cost benefit analysis.

This theme was repeated in 2012 in an important paper by The Hon. P A Bergin SC, Chief Judge in Equity of the Supreme Court of New South Wales (as she then was).

She endorsed mediation as a:

‘cost-effective and efficient mechanism for resolving disputes. Mediation is pursued in large part because of its potential to significantly reduce the practical and financial burden of a dispute’.

We do have some other evidence about how judges see ADR.

We know that judges also have concerns about ‘ripeness’ and warn against matters being referred to mediation before the dispute is ripe – which generally means, in their view, after the pleadings are closed and very substantial costs have already been incurred.

Warren reports:

‘Judicial experience tells us that in litigation it is a bit like picking fruit.  We need to pick the “mediation peach” when it is ready – too early it will be hard to penetrate the fruit; too late it is over-ripe.  The judicial art is to time the “sweet moment”.’

Bergin also enters the ripeness discussion, referring to her own 2007 research. This suggested that settlement was more likely to occur if mediation was attempted late in the proceedings, although she does acknowledge her sample was limited and that it did not take into account mediations that are resolved before proceedings are issued.

The endlessly interesting litigious adventures of Gina Rinehart and her family have also provided some obiter by Brereton J on the ripeness  issue noting:

‘So far as mediation is concerned, sooner or later – as with most commercial and family disputes – it may well be desirable that these proceedings be referred for mediation. But in my view, they are not ripe for that yet. Further disclosure will have to take place before the proceedings can be referred for mediation’.

We also have a few glimmers of insight into how judges see mandatory mediation.

In her same paper, Bergin reflects on legislative imperatives to mediate and acknowledges the value in attempts to remedy power imbalances but overall displays some scepticism about its susceptibility to exploitation.

‘The characteristics of certain disputes justify legislation deeming that good faith involves a requirement to mediate first in the context of those disputes. It is another thing entirely to conclude that good faith requires disputants to Mediate First in all cases.’

Warren added:

‘In my experience forcing parties to mandatory mediation early is arbitrary and often clumsy.’

So apart from some tasty crumbs dropped into a few keynote addresses and the odd piece of obiter, we don’t have a strong sense of how judges view ADR.

However the recently released AIJA study – ‘Court-Referred Alternative Dispute Resolution: Perceptions of Members of the Judiciary’ – hopefully marks the beginning of a new appetite to conduct research revealing the judges’ perspective on key elements of ADR.

The research, conducted by Dr. Nicky McWilliam of the University of Technology, Sydney, and Dr. Alexandra Grey of Macquarie University Law School, drew data from 104 judges from various jurisdictions about whether and how they considered and encouraged ADR in cases over which they presided. Defining referral as including suggesting ADR by ‘nudging’ and referring parties to ADR with or without their consent, the study also looked at:

  • the availability and use of ADR in assisting court proceedings;
  • whether or not there were prerequisites to ADR referral, in particular judges’ awareness of parties’ interests as well as knowledge of the process itself; and
  • judges’ personal assessments of ADR’s ability to
    • achieve unique results and
    • impact workload and judicial satisfaction positively.

The differences and similarities which emerged in judicial behaviour and perception were fascinating. Two particular issues, on which there appeared quite a degree of agreement, drew my attention:

  • most judges believe that referring matters to ADR processes requires them to have an understanding of:
    • ADR;
    • the nature of the case;
    • jurisdiction and the tier of court involved; and
    • parties’ needs and interests.

Further, the research revealed that most Supreme Court judges in the Equity and Common Law Civil Divisions are motivated to consider referral to ADR by their overriding purpose of “facilitating the just, quick and cheap resolution of the real issues in the proceedings”.

Interestingly, despite their view that an understanding of ADR was important, the study revealed that 75 per cent of responding judges had no ADR training despite most having been appointed since court-referred ADR had been legislated and during a period when ADR was well used. The authors note:

‘While it may be argued that judges appointed in an age where ADR is common do not need training that surely underrates the contribution training can make: not everything can be, or is best left to be, learnt by osmosis.’

They gently suggest that increased training may enhance decision-making regarding the many factors shown in the study to affect judicial perceptions of whether or not court-referred ADR is appropriate and to share experiences of how court-referred ADR is being considered and used by other judges.

  • Judges (particularly Supreme Court judges) were also concerned with timing – a version of the ‘ripeness’ issue – and expressed concern about referring cases to ADR “too early”, worrying that early referral may mean that one side’s case may yet be unclear and that even a position paper may not remedy this.

So now, thanks to the AIJA, we are beginning to collect more reliable data about the judges’ perspective of ADR, starting with their perceptions of court-referred ADR.

This is great news for those of us who wish to influence how judges see things and to build their peripheral vision about the promise of mediation. Thoughtful research about how judges see things now provides us with a place to begin.

 

Online Dispute Resolution (ODR) in the classroom – Lessons from Millennials

ODR has consistently been in the news since the early 90s. It has popped up again this week as the ICC reported that the videos of its significant ODR conference in 2017 are now available from its online library.

ODR has also been appearing consistently in undergraduate and postgraduate programs of Australian law schools.

At UNSW I have been able to take the opportunity to teach in an ‘Active Learning Space’ where students work in small groups at pods around the walls complete with individual large screens. Individual computers connect to each screen promoting group activity and enhancing my supervision opportunities. This is a great space in which to combine experiential learning with developing creative ways to teach and experiment with the new developments in the field.

As I have built my skills in using this space I have been congratulating myself on having found a way to keep students away from their mobile phones and other distracting devices and deeply engaged in transparent, collaborative, group learning.

For all my self-congratulations, in the end I have discovered it is the students who have given me the lesson. Let me explain.

For some years, part of the experiential program has included an introduction to ODR. Teaching ODR is not new and there are numerous online reports of how these curricula have developed. There are some great Australian examples to be proud of.

I embraced this field several years ago, with my undergraduate class, with a simple conflict resolution exercise. It primarily depended on email with students working from different locations. It was challenging and hard to manage.

I explored an international exercise with a former student now running a dispute resolution program in an American university. This was a disaster – whilst my students obtained marks as part of their class assessment, his students took the class as an ‘extracurricular’ exercise and, understandably, lacked commitment and persistence when international communications became challenging. I have abandoned this for the present but I know it is in the future to be revisited.

Over time, the exercise has gradually added more platforms and devices where we explored synchronous experiences such as Skype and asynchronous experiences such as email combined with Skype, private channel YouTube recordings and email. It was challenging and still required intervention offline when things went off-track.

Recently, through the generosity of Modron, I was given the opportunity to use my classroom as a Beta site for exploring Modron’s close to seamless online program for dispute resolution. Students were able to appoint a mediator, negotiate fees, execute a mediation agreement, conduct a full mediation session complete with confidential caucuses, execute a settlement agreement and pay the mediator using a single piece of software.

It wasn’t perfect but it was a considerable enhancement from what had been serving as an ODR experience previously. Students did get bumped off the system from time to time through technical teething difficulties but we were well aware we were engaged in a beta test and recognised that what we were doing was helping to iron out some of the software issues.

The exercise took several hours over the elapsed time of a day and I saw it as a useful experience which gave students a glimpse into the future world which would be of their making. I thought the students would have endorsed it wholeheartedly.

But there was a significant lesson waiting for me as I debriefed the exercise.

ODR debrief

This photo shows the early comments from the 6 mediation groups as they began to record their comments for our debrief session. By the time the debrief was completed we had filled 3 whiteboards!

Students characterised ODR as something that had a value in particular circumstances.

However, as the debrief continued, they shared much more significant insights namely:

  • ODR and technology have a place in the greater field of ADR as one tool and NOT as a complete replacement for other modes of resolution. ADR is an ‘and, and, and environment – not ‘either or’
  • ADR offers an important opportunity for meaningful in-person encounters that facilitate exploring and rebuilding a shared narrative. Some things can’t be achieved effectively online and it would ‘destroy the innate value of mediation if important in-person experiences were replaced by the drive for increased efficiency.’ Sometimes it is more important to be effective rather than efficient.
  • Except for unusual circumstances where parties require to be separated, in-person processes, with clients present, are ALWAYS preferable.

I owe the millennials an apology for my assumption they prefer life on devices, disconnected from human exchanges.

What a great lesson. The future is in good hands!

 

 

 

 

 

 

Experiencing the Potential of Mediation

The Australian ADR academic community is committed to ensuring that ADR is embedded across the syllabus of Australian Law Schools. This has been assisted by the agreement that ADR will be delivered within Civil Procedure as part of the Priestley 11.

This is an important achievement and owes some of its success to the efforts of our own ADR Research Network members who have championed the change – including, for example, Rachael Field and Kathy Douglas. As part of building the value of ADR teaching and learning, we continually seek opportunities for students to experience the potential of ADR processes, and to develop as practitioners whose skills are relevant nationally and internationally.

The ICC International Commercial Mediation Competition is one such opportunity. An annual event offered in Paris, the ICC now also offers an annual Asia-Pacific Commercial Mediation Competition, for teams who wish to compete with our Asia-Pacific neighbours.

I am just back from Paris where the 4 team-members from UNSW, were this year’s  competition winners.

ICC 2018 winners (1)

Team UNSW ICC Winners 2018. Photo Credit: ICC, with permission

Approached by Kluwer to blog about the competition and the opportunities it provides to students internationally, I was delighted share my views about its enduring value which stretches far beyond the competition itself.

My blogpost includes seven insights that provide a foundation for successfully coaching a team as I have had the privilege to do for the past 12 years. I also hope my insights might be a resource for those who are teaching negotiation, mediation and dispute resolution at a tertiary level.

See you in Paris 2019!

The significance of collaboration in building a regional dispute resolution footprint – lessons from Singapore.

UIA v2

UIA ADR conference participants

Singapore is a great place for a holiday.

It is also a great place to learn lessons that would be very valuable for our economy in general- and our dispute resolution community in particular.

The opening session of the 24th UIA World Congress of Mediation in Singapore has given us a great snapshot of what collaboration achieves.

The big picture is enlightening. Statistics demonstrate that the economic gravity of the world is shifting rapidly to Asia which now accounts for 40% of global GDP.

The growth of Asian economies has been accompanied by a growth in the number of disputes and the Singapore Government has seen this as a commercial opportunity. It set out to create Singapore as the standout arbitration hub in Asia. Its active involvement and support has seen Singapore emerge as the third busiest arbitration centre in the world.

Through the collaborative work of its dispute resolution institutions the Singapore Government has, since 2014, broadened its sponsorship, and has moved from a focus on arbitration to a focus on dispute resolution which embraces arbitration and mediation. The aspiration is to promote Asian voices in global conversations.

A remarkable element of the strength of the mediation focus has been the commitment to collaboration and interconnectedness demonstrated by the 4 key institutional pillars:

  • Singapore International Mediation Centre (SIMC)
  • Singapore International Dispute Resolution Academy (SIDRA)
  • Singapore International Mediation Institute (SIMI) and
  • Singapore Mediation Centre (SMC)

The Court has added consistent support and leadership and through the combined efforts of the government and institutions there have been some significant achievements. A few examples are:

  • Tax exemptions for non-resident mediators
  • Collaboration between SIMC and SIAC (the Singapore International Arbitration Centre) to offer a one stop shop solutions via arb-med-arb. This provides reassurance about enforcement of agreements via access to the New York Convention
  • A link to China’s Belt and Road initiative to help businesses resolve disputes
  • SIMC’s mediation panel of 70 international mediators demonstrating significant international reach and credibility which sits alongside its panel of technical experts available to parties
  • Ongoing thought leadership projects investigating what’s next in the field – issues such as systems thinking and online dispute resolution
joel's table

Slide presented at the 24th UIA World Mediation Forum Singapore, October 2017 by Associate Professor Joel Lee of the National University of Singapore

The achievements are remarkable. The Dispute Resolution landscape in Australia would be transformed if we could achieve the same level of collaboration.

However, despite the collaboration and the investment some things are yet to be achieved. Currently mediation is the full-time day job of only one person in Singapore. Whilst there are many more full-time mediators in Australia, the situations in our 2 jurisdictions are very similar with regard to the failure to create a substantial profession of full-time mediators. The number of trained mediators in Australia far exceeds the available work.

This remains as significant a challenge in Singapore as it is in Australia.

 

The Global Pound Conference London – the end of the beginning

guildhall

The beautiful Guildhall in London, July 2017

On October 29, 2014, 150 of us, representing many stakeholder groups from more than 20 countries, attended an important convention held in London’s beautiful Guildhall. Called ‘Shaping the Future of International Dispute Resolution’ the convention was inspired by the energetic and far-sighted Michael Leathes and was organised by the International Mediation Institute (IMI), which he pioneered and several other bodies.

We were engaged by the individual voting and interactive technology used to extract and provide real-time data drawn from our input on a number of critical issues. The data that this convention generated suggested that significant gaps may exist between what disputants expect and need and what is currently provided by advisors, provider bodies, practitioners, educators and policy makers.

The outcome was the establishment of an international working committee with the task of planning a most ambitious venture – a series of conferences to be held across the globe known as the Global Pound Conference (GPC).

The goal of the series was to produce reliable data about how the different stakeholders saw the landscape by requiring participants to answer 4 core questions which, in summary, asked:

What do parties want, need and expect?

How is the market currently addressing these?

How can dispute resolution be improved? Overcoming obstacles and challenges.

What action should be considered and by whom?

Participants were also to be encouraged to work in groups to discuss and develop deeper responses to a series of discussion questions.

March 2016 saw the first conference, held in Singapore, and this was followed by a further 28 conferences spanning the globe and returning to the Guildhall for the London conference in July 2017.

Having had the good fortune to attend the 2014 convention and the GPC sessions in Singapore, Sydney (May 2017) and the finale in London, I have been reflecting on the experiences and the outcomes I found most significant.

Whilst the GPC has featured in this blog before (see  GPC Sydney and Roscoe Pound would be proud) it seems timely to provide a final reflection on two questions – what has the GPC series has given us and what may come next?  My list below is not exhaustive – I sense many of us are asking and answering the same 2 questions – it simply identifies what for me are the 4 most valuable take-aways:

The Global Conversation

The GPC series got us talking. We are not all saying the same thing and we continue to have significant differences in how we see things and what we want. However the dispute resolution community, and its differing components (identified in the data collection as advisors, provider bodies, practitioners, educators and policy makers) have moved out of their separate compartments and into a community of stakeholders.

The Singapore Report

The technologically advanced and real-time data collection supported the careful and thorough data analysis (undertaken by Emma-May Litchfield and Danielle Hutchinson of Resolution Resources) and an introduction to new data and concepts. See The Singapore Report. For the first time we were able to see the differences in expectation and experience between sophisticated users (with the report coining the concept of ‘dispute savvy’ users) and novices and to move from our anecdotal assumptions of the dispute resolution landscape to a picture based on reliable data. By the time we got to London 2017, panellists and participants, drawn from the largest law firms, and users drawn from major international corporations, were comfortable adopting the language of the report and describing themselves as sophisticated users.

We also had clear information that users are not a single group but a number of different groups ranging from the least to the most experienced who have very different needs and wants.

The hierarchies identified and developed for this report are a powerful tool for future analysis and have significant ongoing value.

Lessons for Lawyers

We now have cumulative data from the core questions of the 29 events. There are numerous differences from the various jurisdictions so the picture is not homogenous. However what struck me as the most significant consistency in the data comes in the answer to the question about the obstacles to overcoming deficiencies in current dispute resolution processes and practices. The overwhelmingly consistent answer was lawyers (including, surprisingly, even the responses from the group identifying as advisors.)

In London, the responses generated the following Word Cloud which provides a great visual of the message.

wordcloud

The repositioning of ADR

In Singapore, participants and panellists were talking about ADR. By the time we got to London, ‘alternative’ was gone and Dispute Resolution was the consistent descriptor. This symbolic joining of the stakeholders is a great achievement in itself.

The ‘what’s next?’ discussion

It is appropriate to talk about the London 2017 conference as the end of the beginning. The conversation did not end in London. The last session encouraged us to explore the ‘what’s next’ question and the first step seems to be reframing the GPC as the Global Pound Community. We continued our conversation as we left the conference for celebratory cocktails. There were interesting suggestions about revisiting other ideas from the presentation by Professor Frank E.A.Sander at the original 1976 Pound Conference including developing his ‘triage’ concept into a deeper investigation of what ‘guided choice’ might look like.

For all of us in the Dispute Resolution space this is a great outcome. As a participant I am extremely grateful for the experience.

Congratulations to:

  • The far-sighted Michael Leathes for having the dream;
  • The international organising committee for herding the cats internationally;
  • The principal sponsor Herbert Smith Freehills for staying the course and making such a substantial commitment;
  • Jeremy Lack, Global Coordinator, for his tenacity;
  • Powervote for its innovative technology
  • Danielle Hutchinson and Emma-May Litchfield for bringing to the dispute resolution field research methodologies which have proven so useful in the fields of education and social sciences

 

 

 

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.

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.

Roscoe Pound would be proud – Reflections on the history of the Global Pound Conference

The Global Pound Conference (GPC) series 2016-17 is an ambitious, future-focussed project, established to create a contemporary conversation about improving the access to and quality of justice in commercial conflicts internationally.

pound

Roscoe Pound bust by Avard Fairbanks, Nebraska Hall of Fame – Creative Commons

 

When complete, the series will have included individual conference sessions involving 29 cities in 23 countries. Several blogs on this site have talked about the GPC series and how it has played out in a number of the host cities. The significant data analysis that has already emerged from the first session in the series (and has become known as The Singapore Report) has also received commentary in these pages.

The ultimate objective is the collection of data from all conference participants using a common set of 20 multiple choice questions (The Core Questions) and four sets of open text questions (The Discussion Questions) to stimulate robust discussion, research and innovation into dispute resolution

As we approach the last of the GPC series, to be held in London in July 2017, it seems timely to go back to where it all began. History informs the present and the future and, in our excitement about the significance of this ambitious project, it is important not to overlook the contribution of the memorable life of the man whose name it bears.

Roscoe Pound (1872-1964) was a remarkable man. Whilst some scholars brand him as ‘the most famous American jurisprudential thinker of the first half of the twentieth century’ and ‘the greatest twentieth century dean of the Harvard Law School’[1] his is hardly the name on every lawyer’s lips. Nor did he fit the mould of your average law school Dean.

Son of a well-known Nebraskan judge, law was not his first choice. Instead he pursued a career and doctorate in botany. Roscoepoundiana – a fungus – was named after him, ensuring his enduring botanical fame. I confess to feeling a twinge of envy!

However family pressure could not be resisted and he entered legal practice (possible in those days without a degree). Enrolling in the one year postgraduate law program at Harvard, family circumstances kept him from completing the exams but not from continuing as a practitioner.

His professional career saw him making memorable and enduring contributions wherever he went. At the Nebraska Bar he helped establish the Bar Association. He was appointed to the University of Nebraska and later became Dean of the Nebraska College of Law (1903-1907). Our students today benefit from his decision to introduce electives into the law degree.

In 1906 the American Bar Association (ABA) invited Dean Pound to deliver the keynote address at its annual meeting in St Paul, Minnesota. His speech, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, shocked many in his audience. Opening with the line ‘Dissatisfaction with the administration of justice is as old as the law….’- and continuing to chronicle the law’s deficiencies, it is not surprising that his address was not well received and the backlash from the profession provoked withdrawal of the initial decision to print and distribute 4000 copies.

However not everyone was a critic. In the audience was Dean Wigmore, Dean of Northwestern University, who soon persuaded Pound to accept a professorial post at Northwestern and later commented that Pound’s speech ‘struck the spark that kindled the white flame of high endeavour now spreading through the entire legal profession and radiating the spirit of resolute progress in the administration of justice.’[2] Discovering that Pound had not graduated in law, he gave him an honorary degree.

Pound continued his distinguished career teaching and writing, finally settling into the post of Dean of the Harvard Law School (1916-1964) – to this day he remains the only Harvard Law School Dean not to have graduated from law school.

An influential and widely published academic and administrator, by the time of his death in 1964, Pound had still not received the recognition he deserved from the practising profession to which he had contributed so greatly. Whilst not being prepared to issue an apology, the ABA did make a belated acknowledgement of Pound’s contribution to the profession and to legal thinking by awarding him the ABA medal (its highest award) in 1940.

Pound’s writing remained relevant and thought-provoking and he certainly influenced legal thinking. Those he influenced included Chief Justice Warren Burger, (another judge who managed to upset conservatives) defying his sponsor, the anti-progressive Richard Nixon, by upholding the Miranda decision and supporting the majority in Roe v. Wade.

In 1976, 70 years after Pound’s keynote address, the ABA conference returned to St Paul, Minnesota. It was here, at the appropriately named Pound Conference, that the profession finally provided Pound with what amounted to the apology and acknowledgement he so richly deserved.[3]  Joining the ABA as sponsors were the Conference of Chief Justices and the Judicial Conference of the United States. Burger clearly had considerable influence over the program as he is credited with issuing the invitation to Professor Frank E.A. Sander, a notable Harvard academic, to participate. Dealing broadly with various issues of dissatisfaction with the legal system, Dispute Resolution was one stream among a number and many papers were delivered. However it is Sander’s paper’ ‘Varieties of Dispute Processing’[4] that has provided the conference’s most memorable legacy and continued the work begun by Pound in his 1906 address.

This first Pound conference laid the groundwork for the significant world-wide event we are celebrating now. The name is an important link to history and an acknowledgement of the man who inspired it all.

Roscoe Pound would be proud.

[1] See for example Northwestern University’s Professor Stephen Presser ‘Foreword’ in Roscoe Pound, The Ideal Element in Law (Online Library of Liberty, 1958).

[2]  N.T.H Hull, Roscoe Pound and Karl Llewellyn, Searching for an American jurisprudence (The University of Chicago Press, Chicago, 1997) 65.

[3] See ‘Perspectives on Justice in the Future’ Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, West Publishing Co., St. Paul Minnesota 1979

[4] Ibid at p.65

A big pair of shoes has been filled

 

Book launch

Rachael Field and Laurence Boulle celebrate the launch with Hilary Astor, Members of Resolution Institute and the ADR Research Network

 

In late May, Resolution Institute was the venue for the launch of a significant new text on Dispute Resolution – Australian Dispute Resolution – Law and Practice (LexisNexis, Sydney, 2017) authored by Resolution Institute members, Laurence Boulle and Rachael Field.

The launch was significant for academics and practitioners alike for several reasons.

The first was the acknowledgement of the pioneering work of Hilary Astor and Christine Chinkin whose original text, Dispute Resolution in Australia, was the ‘go-to’ resource for academics and practitioners alike. It was outstanding in its coverage and depth. Academics like me drew on it heavily and valued its breadth and the conversations it provoked.

This new text picks up the themes of its predecessor and updates them for todays’ dispute resolution challenges. It was a masterstroke to invite Hilary Astor to make the introductory comments and formally launch the publication. Her presence and script were great reminders of the remarkable scholarship that has been available to us since Dispute Resolution in Australia was first published in 1992.

Respecting where we have come from, as we explore future directions, is an appealing symbol of how we have developed as a dispute resolution community.

At the launch, Rachael and Laurence shared the secrets of their successful collaboration which gave us a sense of how challenging they found the responsibility of filling Astor and Chinkin’s ‘big pair of shoes’.

Laurence chose an unexpectedly poetic approach to describe to us the joys of collaborating with Rachael and I reproduce it below with his permission.

 

“Fieldsy and Bill

A DR Fairly Trail

Three score and seven months ago this Odyssey began

Intrepid Fieldsy taking charge, with vision and elan,

To turn established text into a third, more sage, edition

ADR, law, identity, much theory in addition.

Too onerous proved this arduous task for authors, young and free,

They forged a brand new first edition – with cover girt by sea.

The text prolapses ADR, and DR comes to fore,

One letter less, efficiency, the modern troubadour

DR is law’s true business, and the future task of lawyers

Though other disciplines bring great skills as DR purveyors.

 

Rachael creates matrices with fierce analysis

And practice has its rightful place – or better still praxis,

She critiques Priestly’s saintly core with missionary fervour

Though herself is, reverently, a god-fearing verger.

In every field young Fieldsy brings a rigour to the joust

Her style so mellifluous recalls the prose of Proust

Judges are too recalcitrant and theorists far too thin

She trumps them one by one with acerbic verve, and gin,

Bill looks on half-dazed as her libretto forms apace

Just minor emendations to claim his cover place

 

Disputes twixt Bill and Fieldsy? There were a somewhat few

The comma matter not resolved, it caused a constant blue.

For Rachael, every, word, must, have, its, punctuation, own,

ForBillajumbledflowofwordsnosyncopationzone

 

Now here’s a tale not told before, though every word is true,

Bill inveigled Fieldsy long to move to Bond uni

Abandon Brisbane’s creek and drudge and start again anew

Resistance was her sad retort, excuses thickly grew.

The strangest part: once Bill departs for Sydney waters twee

Then Rachael moves to Bondy’s place with stark alacrity

In truth she’s now resolved to move to Sydney Harbour Bridge

Once Bill has used his GPS to reclaim Bogun ridge.

 

One note of serious concern amidst the frippery

Concerning current happenings with lack of policy

How serious is the plight of those who flee from ravaged lands

Out-trumped by bigotry and fear, excuses weak and bland,

Asylum-seekers, refugees, minorities galore,

The flames are fanned by news corp hacks, the jocks and many more

Where is DR’s noble soul in contexts such as these?

That is a challenge we must face, so join a movement please.

To take on privilege and power, denial atmospheric,

Post-truth, untruth, and spin and sin, every sad heuristic.

 

But to end on sombre tones might seem a trifle crook

For cheerful lives and value add – you just should buy the book.

Thanks are due to Jocelyn Holmes and to Lexis Nex,

At RI Ellie, Brian and more provided superb flex

Hildegard of Bingham was a prophet most acute

Hilary of Astoralia from whom DR took root

Has graced us with her words and we extend our thanks

For legacy contributions and setting the early pace

 

I now must end abruptly too these rhymes sore terrible

Lest there be those who shout aloud ‘Enough, far too much bull.’

 

Congratulations Rachael and Laurence. I look forward to where this text will take our teaching and learning.