Australian Dispute Resolution [2 ed.] 9780409353587, 9780409353594

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Australian Dispute Resolution

Australian Dispute Resolution Rachael Field SFHEA, BA/LLB(Hons) (ANU), LLM(Hons) (QUT), Grad Cert in Higher Ed (QUT), PhD (Syd) Professor of Law, Faculty of Law, Bond University

LexisNexis Australia 2022

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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9780409353587 (pbk). 9780409353594 (ebk).

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Preface is work aims to accessibly connect DR theory with practice, with a view to informing the efficacy of future DR processes and systems and challenging some of the assumptions and norms of current approaches. e book continues the focus, begun with Laurence Boulle in Australian Dispute Resolution Law and Practice, of exploring two dominant themes. First, that the concept of ‘dispute resolution’ (DR) has now overtaken the notion of ‘alternative dispute resolution’ (ADR). I continue the use of the term DR, referring to the full matrix of DR processes, including litigation; distinguishing, where necessary, litigation from non-litigation DR systems. Second, that DR practice is central to the efficacy and sustainability of societal structures and relationships in the future. In particular, that the DR role of lawyers and the professional identity of legal practitioners associated with DR skills, knowledge and attitudes, is now critically part of the present and the future of the legal profession. e text is intended to be useful for, and accessible to, DR scholars, practitioners and students alike. e work aims to offer a scholarly resource grounded in the signi cant existing DR literature both in Australia and internationally. But it also aims to bring some of the DR theory to life, so that it is practically relevant. e book is built on the shoulders of esteemed giants. Its immediate predecessor Australian Dispute Resolution Law and Practice was co-authored with Laurence Boulle. Laurence is one of Australia’s pre-eminent pioneers in mediation and DR, and the author of numerous seminal scholarly DR works published in Australia and internationally (many by LexisNexis). In 1989 he was one of the founders and the inaugural Director of the Bond University Dispute Resolution Centre, and has been for decades, and still is, a leading trainer in the eld. As a highly respected mediation practitioner and scholar around the globe, Laurence has won many awards and accolades including an Order of Australia and recognition as a Fellow of the Resolution Institute. He is an inspiration and mentor to many of us in the DR community in Australia and beyond. It was a deep honour for me to co-author with him.

But as he is now focusing on his contributions to the eld through practice, and on his own new work on mediation, he has delegated this work to me. No pressure! is is a signi cant provenance for this book but there are even more giants to mention. e predecessor of Australian Dispute Resolution Law and Practice was the seminal work by Hilary Astor and Christine Chinkin, Dispute Resolution in Australia, in its two editions in 2002 and 2012 (also with LexisNexis). As my PhD supervisor, inspiration and academic mentor, Hilary entrusted any further editions of her work to me on her retirement. I cannot express how deeply Hilary has inspired me and I am so ever grateful for her generous mentorship, even (or especially) when I didn’t always play by the standard academic or mediation community rules, or when I was a little too challenging of the status quo — always I might add simply hanging onto her coattails. Indeed, Hilary is an incredible leader and inspiration and mentor to the whole DR community in Australia and internationally. It was a great privilege and honour to take her work forward, to which Laurence generously brought his deep understanding of DR practice as well as theory. It goes without saying that the Astor and Chinkin works have been unfathomably in uential — speaking truths to the emerging, developing and maturing DR community and leading us all forward with a theoretical foundation that has given credibility and efficacy to DR practice. In the preface to the rst edition of Dispute Resolution in Australia Professor James Crawford said famously: ‘this then is an “accessible, coherent and critical” account’ of the subject of DR. If I have achieved honouring this legacy to a fraction of a degree I will be pleased. I am very grateful to my ever patient, compassionate and consummately professional commissioning editor, Jocelyn Holmes of LexisNexis, for her commitment to DR, DR in the legal profession and the aims of this work. ank you also to Annabel Adair for her excellence in the ne art of editing with this version. Further gratitude to Catherine Gordon of LexisNexis and Dr Susan Armstrong who have created the wonderful teaching resources that accompany the text. is work would not have eventuated in a difficult Covid-in uenced year without the support of my wonderful colleagues and friends at Bond University Faculty of Law. I always maintain that we have the best Executive

Law Dean ever in Professor Nick James, with whom I am privileged to codirect the Bond Centre for Professional Legal Education. I am also privileged to work in the Bond Centre for Dispute Resolution with my codirector and co-mediator Associate Professor Libby Taylor, from whom I learn every day about all things DR and beyond. And I am surrounded by colleagues who appreciate the importance and value of DR in general and in legal practice, which is wonderful. I also thank the ADR Research Network (ADRRN) for their ongoing collegiality and support, and for our annual Roundtables that are such a valuable contribution to the development of DR thinking, scholarship and mentorship every year in the Australian DR community — long may they continue. e ADRRN has become one of the fresh and vital forces in Australian DR and the activities of all its members constitute the future of DR scholarship and practice in Australia and internationally. is book is dedicated to my dear family. Rachael Field Gold Coast November 2021

Table of Cases References are to paragraph numbers 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596 …. 10.21 789Ten v Westpac Banking Corp [2004] NSWSC 594 …. 13.81 A Abigroup Contractors Pty Ltd v Trans eld Pty Ltd and Obayashi Corp [1998] VSC 103 …. 10.11 Abram v Bank of New Zealand (1996) ATPR 41-507 …. 11.15 Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 …. 10.14 AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 …. 10.26 Amcor Packaging (Australia) Pty Ltd v Baulderstone [2013] FCA 253 …. 10.49 Aon Risk Services v Australian National University (2009) 239 CLR 175 …. 11.20, 11.24 Arenson v Casson Beckman Rutley [1977] AC 405 …. 10.16 Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd [2012] NSWSC 1306 …. 10.36 Australian Competition and Consumer Commission v Derodi Pty Ltd [2016] FCA 365 …. 11.21 AWA v Daniels (1992) 7 ACSR 759 …. 8.116, 13.82 B Backreef Oil Pty Ltd and Oil Basin Ltd/John Watson on behalf of Nyikina and Mangala/Western Australia [2012] NNTTA 98 …. 7.60 Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997) BCL 277 …. 10.23 Boyle v Ozden (1986) EOC 92-165 …. 9.40 Brian Clothier v Ngaanyatjarra Media [2012] FWAFB 6323 …. 9.30 Buttigeig v Melton [2004] VCAT 868 …. 4.69 C Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163 …. 10.60 Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 …. 10.34

Capricorn Inks v Lawter International [1989] QR 8, 15 …. 10.11, 10.15, 10.19, 10.24, 10.25 Carus-Wilson & Greene, Re; (1886) 18 QBD 7 …. 10.15 Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214 …. 10.39, 10.61 CFMEU v Clermont Coal Mine Pty Ltd [2015] FWC 2023 …. 9.30 Charlick Trading Pty Ltd v Australian National Railways Commission [2010] FCA 629 …. 7.29 Chocolate Factory Apartments v Westpoint Finance Pty Ltd [2005] NSWSC 784 …. 11.42 Churchill Mining and Planet Mining Pty Ltd, formerly ARB/12/14 v Republic of Indonesia (ICSID Arbitral Tribunal, Case No ARB/12/14 …. 10.73 Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd [2013] FCA 882 …. 10.62, 10.68 Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192 …. 10.50, 10.64 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Active Tree Services Pty Ltd [2011] FMCA 535 …. 9.30 Cook v Taing [2014] VSC 428 …. 8.92 D Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 10 …. 10.68 Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1 …. 11.16 E Emerald Grain Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414 …. 10.62, 10.68, 10.87 Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356 …. 10.61 F Field v Commissioner for Railways for New South Wales (1955) 99 CLR 285 …. 13.82 Forbes v New South Wales Trotting Club (1979) 143 CLR 242 …. 10.20 G Geogas SA v Trammo Gas Ltd [1993] 1 Lloyds Rep 215 …. 10.62 Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80 …. 10.66 Glenville Projects v North Melbourne [2013] VSC 717 …. 10.21 Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16 …. 8.67 Gollin v Karenlee Nominees Pty Ltd [1982] VR 493 …. 10.29 Gude v Stephens (Domestic Buildings) [2007] VCAT 810 …. 8.20

Gujarat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109 …. 10.62 H Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER 303 …. 3.27 Hammond v Wolt [1975] VR 108 …. 10.15 Hancock v Rinehart [2013] NSWSC 1352 …. 10.49 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 …. 11.38 Higgins v Nicol (No 2) (1972) 21 FLR 34 …. 7.29 Hill v Hill (Unreported, Supreme Court of New South Wales, Young J, 19 May 1997) …. 5.93 Holt v Cox [1997] NSWSC 144 …. 10.26 Hookway v MID Pty Ltd [2012] FCA 1456 …. 11.37 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 …. 14.23 I Ing Bank (Australia) Ltd v Hung [2013] NSWSC 1924 …. 11.39 Ipoh v TPS Property No 2 [2004] NSWSC 289 …. 10.7 J Jeray v Blue Mountains City Council [2013] FCA 545 …. 8.100, 11.43 JMK Management Ltd v Range Resources Ltd [2012] FCA 961 …. 11.35 K Kable v Director of Prosecutions (NSW) (1996) 189 CLR 51 …. 11.55 King Par LLC v Brosnan Golf Pty Ltd [2013] FCA 640 …. 11.37 Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610 …. 10.36 L Legal and General Life of Australia v A Hudson Pty Ltd (1985) 1 NSWLR 314 …. 10.26, 10.29 Legal Services Commissioner v Mullins [2006] LPT 012 …. 7.66, 13.57 Litigants in Person Guidelines, Re [2001] FamCA 348 …. 11.15 Lomax v Lomax [2019] EWCA Civ 1467 …. 11.27 M Masters v Cameron (1954) 91 CLR 353 …. 7.8 N

Najdovska v Australian Iron and Steel (1985) EOC 92-140 …. 9.36 Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 1 QB 644 …. 10.20 Noun v Pavey [2014] NSWSC 429 …. 8.118 O Obyle v Ishan Ozden (1986) EOC 92-165 …. 8.124 Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558 …. 11.71 P Philip Morris Asia Ltd v e Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12 …. 10.72 Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10 …. 10.49, 10.50, 10.87 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 …. 8.67, 9.42 R R and Acclimatisation Society, Re [1913] St R Qd 10 …. 10.11 ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22 …. 8.67, 9.42 Ruffles v Chilman (1997) 17 WAR 1 …. 11.58 S Sauber Motorsport AG v Giedo van der Garde BV [2015] VSCA 37 …. 10.67 Shannon (in his capacity as receiver and manager of North East Wiradjuri Co Ltd) v North East Wiradjuri Co Ltd (No 3) [2012] FCA 106 …. 11.42 Shoalhaven City Council v Firedam Civil Engineering Pty Ltd [2011] HCA 38 …. 10.12 Sonray Capital Markets Pty Ltd (in liq), Re [2010] FCA 1371 …. 8.118 Stillman v Rushbourne [2014] NSWSC 730 …. 8.123 Subway Systems Australia v Ireland (No 2) [2013] VSC 693 …. 7.29, 8.100, 10.49 Sutcliffe v ackrah [1974] All ER 859 …. 10.16, 10.20 T TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 …. 10.15, 10.62, 10.68 Telstra Corp Ltd v Phone Directories Co Pty Ltd (No 3) [2014] FCA 949 …. 11.20 e Heart Research Institute Pty Ltd v Psiron Ltd [2002] NSWSC 646 …. 10.22 V

Vanden Driesen v Edith Cowan University (No 2) [2012] FMCA 1169 …. 8.118 W Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311 …. 8.118 Watton v Smart [2014] FCCA 2826 …. 4.72 Western Australia v Taylor (1996) 134 FLR 211 …. 7.60 Westport Insurance Corp v Gordian Runoff Ltd (2011) 85 ALJR 1188 …. 10.48 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 …. 11.55 Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346 …. 10.44 WTE Co-Generation v RCR Energy Pty Ltd [2013] VSC 314 …. 4.8

Table of Statutes References are to paragraph numbers Commonwealth Access to Justice (Civil Litigation Reforms) Amendment Act 2009 …. 5.85 Administrative Appeals Tribunal Act 1984 …. 6.60 s 4 …. 6.60 Age Discrimination Act …. 9.26 Australian Competition and Consumer Act 2015 Sch 1 …. 4.6 Australian Human Rights Commission Act 1986 …. 9.26 Pt IIB, Div 1 …. 9.8 Australian Solicitors’ Conduct Rules 2015 …. 7.66 r 7.2 …. 1.24, 3.22, 7.63, 8.113 Civil Dispute Resolution Act 2011 …. 1.23, 6.58, 8.3, 11.28 ss 3–4 …. 1.23 s 4(1A) …. 11.37 s 6 …. 3.11, 6.54, 7.59 s 6(1) …. 6.44, 11.36 s 7(1) …. s 11.36 ss 11–13 …. 11.37 s 12 …. 11.37 Conciliation and Arbitration Act 1904 …. 4.80, 9.27 Constitution of Australia s 51(xxxv) …. 4.80, 6.55, 9.27 Disability Discrimination Act 1992 …. 9.26 Dispute Resolution Act 2011 …. 8.116 Evidence Act 1995 s 131 …. 13.79 s 131(1) …. 13.79 s 131(2)(h) …. 13.79

Fair Work Act 2009 …. 9.26 Pt 6–4B …. 2.13 s 3(e) …. 2.13 s 365 …. 9.29 s 368 …. 9.29 s 592(2) …. 9.29 s 595 …. 9.29 Fair Work Regulations 2009 reg 6.01 …. 4.101, 10.10 reg 6.03B …. 4.101 Family Law Act 1975 …. 6.53, 9.26, 9.32, 13.26 Pt VII …. 13.26 Pt VIII …. 13.26 s 10F …. 4.71 s 60I …. 6.53, 8.3, 8.104, 11.36 s 60I(8)(a) …. 13.26 s 60I(8)(aa) …. 13.26 s 60I(8)(b) …. 13.26 s 60I(8)(c) …. 13.26 s 123(1) …. 9.32 s 601 …. 1.23 Sch 1 …. 9.32 Family Law Amendment (Shared Parental Responsibility) Act 2006 …. 6.53 Family Law (Family Dispute Resolution Practitioners) Regulations 2008 …. 8.37, 8.105, 13.27 Pt 2 …. 8.105 Family Law Reform Act 1995 …. 6.53 Family Law Rules 2004 …. 9.26 rr 1.04–1.08 …. 2.54 r 10.06 …. 9.33 r 12.03(4) …. 9.32 r 12.07 …. 9.33 rr 12.07–12.10 …. 9.32 r 12.07(1) …. 9.9

rr 12.10–12.11 …. 9.32 r 12.11 …. 9.19 r 12.11(1) …. 12.33 r 12.13(3) …. 9.32 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Sch 1 …. 6.54 Federal Court of Australia Act 1976 …. 6.58 s 37M …. 11.34 s 53A …. 1.23, 11.42 s 53B …. 11.41 s 54A …. 11.42 Federal Court Rules 2011 Div 28.6 …. 11.42 r 1.32 …. 11.29 r 1.34 …. 11.29 r 20.11 …. 11.20 r 28.65 …. 11.42 Foreign Judgments Act 1991 …. 10.60 Human Rights and Equal Opportunity Commission Act 1986 …. 9.35 Human Rights (Sexual Conduct) Act 1994 …. 11.85 International Arbitration Act 1974 …. 6.51, 10.60 s 2D …. 10.62 s 19(b) …. 10.62 Legal Profession Uniform Conduct (Barristers) Rules 2015 r 36 …. 3.22 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 ss 34.1.1–34.1.3 …. 7.64 Native Title Act 1993 …. 8.109 s 31 …. 7.60 Racial Discrimination Act 1975 …. 9.26 Sex Discrimination Act 1984 …. 9.26 Small Business and Family Enterprise Ombudsman Act 2015 s 13 …. 4.93 Australian Capital Territory

Anti-Discrimination Act 1991 …. 9.26 Building and Construction Industry (Security of Payment) Act 2009 …. 4.104 Civil and Administrative Tribunal Act 2008 s 35(2)(a) …. 11.45 Court Procedure Rules 2006 r 3252 …. 10.38 Courts Legislation Amendment Act 2015 s 11 …. 13.24 Human Rights Commission Act 2005 s 56 …. 13.11 New South Wales Anti-Discrimination Act 1977 …. 9.26 Building and Construction Industry Security of Payment Act 1999 …. 4.104 Civil and Administrative Tribunal Act 2013 s 37 …. 3.11 s 37(2) …. 3.11 Civil Procedure Act 2005 Pt 2A …. 11.36 s 30(4) …. 8.116 Commercial Arbitration Act 2010 …. 10.36 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42 s 19(b) …. 10.46 s 27(8) …. 10.44 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Community Justice Centres Act 1983 …. 8.102 Community Land Management Act 1989 …. 4.8, 4.105 Conveyancers Licensing Act 2003 s 44 …. 10.30

Evidence Act 1995 s 10F …. 9.33 s 131 …. 9.33 s 131(2) …. 8.116 Farm Debt Mediation Act 1994 …. 4.54, 8.110, 11.36 Health Care Complaints Act 1993 …. 4.82 s 49 …. 4.82 Land and Environment Court Act 1979 s 34(1) …. 9.42 Land and Environment Court Rules 2007 …. s 6.2(1) …. 4.86 s 6.2(2) …. 4.85 Mining Act 1992 s 148(2) …. 10.38 Ombudsman Act 1974 …. 6.62 Strata Schemes Management Act 1996 …. 4.8, 4.105 Northern Territory Anti-Discrimination Act 1996 …. 9.26 Commercial Arbitration Act 2011 …. 10.36 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42 s 19(b) …. 10.46 s 27(8) …. 10.44 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Construction Contracts (Security of Payments) Act 2004 …. 4.104 Ombudsman Act 1980 …. 6.62 Queensland Anti-Discrimination Act 1991 …. 1.23, 9.26

Civil Procedure Act 2010 …. 11.28 Civil Proceedings Act 2011 s 43 …. 4.86 Commercial Arbitration Act 2013 …. 4.98, 10.16, 10.23, 10.36 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42 s 19(b) …. 10.46 s 27(8) …. 10.44 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Courts Legislation Amendment Act 1995 …. 6.46 Industrial Relations Act 1999 …. 6.55 Legal Profession Act 2007 s 60 …. 13.88 Parliamentary Commissioner Act 1974 …. 6.62 Personal Injuries Proceedings Act 2002 …. 1.23 ss 36–39 …. 4.69 s 36(4) …. 4.69 s 37 …. 4.69 s 38(1) …. 4.69 Queensland Civil and Administrative Tribunal Act 2009 …. 1.23 Pt 4 …. 4.105 s 4(b) …. 6.61 ss 195–206AA …. 4.105 Residential Tenancies and Rooming Accommodation Act 2008 Ch 6, Pt 1 …. 9.8 s 400 …. 13.11 Uniform Civil Procedure Rules 1999 …. 1.23 r 5 …. 6.46 s 321 …. 2.18

s 348 …. 2.18 s 349 …. 2.18 South Australia Building and Construction Industry Security of Payment Act 2009 …. 4.104 Commercial Arbitration Act 2011 …. 10.36 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42 s 19(b) …. 10.46 s 27(8) …. 10.44 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Equal Opportunity Act 1984 …. 9.26 Ombudsman Act 1972 …. 6.62 Supreme Court Act 1935 s 65 …. 11.42 Tasmania Alternative Dispute Resolution Act 2001 …. 3.11 s 3 …. 4.85 s 5 …. 4.86 s 10 …. 4.86 s 11 …. 4.86 s 12 …. 4.86 Anti-Discrimination Act 1988 …. 9.26 Building and Construction Industry Security of Payments Act 2009 s 3 …. 4.104 Commercial Arbitration Act 2011 …. 10.36 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42

s 19(b) …. 10.46 s 27(8) …. 10.44 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Ombudsman Act 1978 …. 6.62 Workers Rehabilitation and Compensation Act 1988 s 421 …. 9.30 Victoria Accident Compensation Act 1985 …. 9.8 Building and Construction Industry Security of Payment Act 2002 …. 4.104 Civil Procedure Act 2010 …. 11.28 Ch 3 …. 11.36 ss 66–69 …. 3.10 Civil Procedure and Legal Profession Amendment Act 2011 …. 6.58 Commercial Arbitration Act 2011 …. 10.36 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42 s 19(b) …. 10.46 s 27(8) …. 10.44 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Equal Opportunity Act 1984 …. 9.26 Ombudsman Act 1973 …. 6.62 Owners Corporation Act 2006 …. 4.8, 11.36 Victorian Civil and Administrative Tribunal Act 1998 …. 6.61 Western Australia

Commercial Arbitration Act 2012 s 12 …. 10.60 s 16 …. 10.42 s 19 …. 10.42 s 19(b) …. 10.46 s 27(2) …. 10.37 s 27(4) …. 10.37 s 27(5) …. 10.37 s 27(7) …. 10.37 s 27(8) …. 10.44 s 27D …. 10.36 s 28(2) …. 10.44 s 28(3) …. 10.44 s 31 …. 10.44 s 34 …. 10.45 s 34A …. 10.47 Industrial Relations Act 1979 …. 9.8 Parliamentary Commissioner Act 1971 …. 6.62 Strata Title Act 1985 …. 4.108 Supreme Court Act 1935 s 51 …. 10.38 New Zealand Resource Management Act 1991 s 268(1) …. 3.10 United Kingdom Arbitration Act 1697 …. 6.51 s 69 …. 10.63

Table of Contents Detailed Table of Contents Preface Table of Cases Table of Statutes

PART I Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6

PART II Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11

PART III Chapter 12 Chapter 13 Chapter 14

Dispute Resolution in Australia Dispute Resolution and Lawyering Understanding Con ict and Disputes The Dispute Resolution (DR) Matrix The Dispute Resolution (DR) Processes on the DR Matrix Values and Goals in Dispute Resolution A Short History of Dispute Resolution in Australia

Key Dispute Resolution Systems: Theory, Practice and Variations Negotiation Mediation Conciliation Expert Determination and Arbitration Litigation

Dispute Resolution Praxis and Potential Elements of Effective Dispute Resolution Practice Competence and Ethics in Dispute Resolution Dispute Resolution and a Positive Professional Identity

Index

Detailed Table of Contents Table of Contents Preface Table of Cases Table of Statutes

PART I Chapter 1

Dispute Resolution in Australia Dispute Resolution and Lawyering Chapter contents Introduction The legal profession The nature of legal work and DR Lawyering, DR expertise and upholding the rule of law The challenges of change for the legal profession DR as a response to the challenges facing the legal profession Legal education and DR: Preparing lawyers of the future Legal education, the ‘Priestley 11’ and DR DR and the threshold learning outcomes TLO 1: Knowledge TLO 2: Ethics and professional responsibility TLO 3: Thinking skills TLO 4: Research skills TLO 5: Communication and collaboration TLO 6: Self-management

Conclusion Chapter 2

Understanding Con ict and Disputes Chapter contents Introduction The terminology and elements of con ict and disputes The terms ‘con ict’ and ‘dispute’ The participants in con ict and disputes The intervenors DR process outcomes Understanding con ict and disputes: additional important terms and conceptual elements The complex nature of con ict and disputes Understanding the complex dimensions of con ict and disputes Positions and interests in disputes Cognitive and social biases in con ict Escalation and de-escalation of con ict and disputes Power, con ict and disputes Dispute diagnosis and choice of intervention Dispute diagnosis Identifying the issues in dispute Managing con ict and disputes constructively Effective con ict and dispute management Adversarial and non-adversarial approaches to managing con ict DR practitioner functions in effective con ict management Lawyers, lawyering, con ict and disputes Transactional lawyering

Lawyers and dispute resolution processes Conclusion Chapter 3

The Dispute Resolution (DR) Matrix Chapter contents Introduction What was alternative dispute resolution (ADR)? What is DR? DR spectrums, pyramids, and trees A DR matrix The three descriptive elements of the DR matrix The category of DR processes The roles and functions of third-party intervenors The purpose of DR processes The Australian DR matrix Conclusion

Chapter 4

The Dispute Resolution (DR) Processes on the DR Matrix Chapter contents Introduction Unassisted approaches to DR Self-help activities Unassisted (direct) negotiations Assisted (partisan) DR processes Assisted negotiation Collaborative practice Con ict coaching Partnering and alliancing Counselling and related assistance Facilitated (non-partisan) DR processes Facilitative mediation

Facilitation Conferencing Family dispute resolution (FDR) Counselling Good offices and brokering Advisory DR processes Conciliation Expert appraisal, neutral evaluation, case appraisal Fact- nding Ombud institutions Determinative DR processes Arbitration Expert determination Adjudication Refereeing Dispute review boards Litigation Transformative DR processes Counselling and therapy Con ict coaching Transformative mediation Therapeutic mediation Blended DR processes Conclusion Chapter 5

Values and Goals in Dispute Resolution Chapter contents Introduction Understanding values and goals

A philosophical framework for DR values and goals: Democracy and the rule of law The core values of contemporary Australian DR: Justice, party autonomy and community Justice as a value of DR The ‘ rst-class’, ‘second-class’ justice debate The DR values framework: Justice as fairness Fairness in DR — the goal of procedural justice Fairness in DR — the goal of substantive justice Fairness, justice and informed consent Fairness in DR — the goal of ethical intervention The DR value of party autonomy Understanding the value of autonomy in DR through SDT Achieving the value of autonomy in DR — the goal of party participation Achieving the value of autonomy in DR — the goal of party self-determination The DR value of community The value of community — access to justice in a civil society Achieving access to justice through DR Achieving access to justice through DR: Affordable DR Achieving access to justice through DR: Timely DR Achieving access to justice through DR: DR that empowers the vulnerable Conclusion Chapter 6

A Short History of Dispute Resolution in Australia Chapter contents Introduction

Indigenous DR in Australia In uences on the development of Australian DR Community-based DR Australian developments in community-based DR DR and civil justice reform in Australia Australian developments in civil justice system reform Institutionalisation of DR through the courts Institutionalisation of DR through tribunals and ombuds The people and organisations of non-adversarial DR in Australia NADRAC and ADRAC The Resolution Institute The Bond University Centre for Dispute Resolution Australian Disputes Centre (ADC) Shaping the future of DR in Australia Conclusion

PART II Chapter 7

Key Dispute Resolution Systems: Theory, Practice and Variations Negotiation Chapter contents Introduction Negotiation as a DR and transactional process and skill De nition and purposes of negotiation The diverse dimensions of negotiation Models and styles of negotiation The elements of DR negotiation Nature and motivation Negotiation impacts

Participants Negotiation preparation Negotiation procedure Negotiation scope and content Negotiation outcomes and effectiveness Transactional negotiation Negotiation ethics Conclusion Chapter 8

Mediation Chapter contents Introduction Understanding mediation Party autonomy, party self-determination, participation Mediation models Facilitative mediation Advisory and evaluative mediation Transformative mediation Practice contexts for the models Mediation process and practice Mediator’s opening statement Initial statements by the parties Agenda setting Discussion and exploration Generating options, bargaining and problem-solving Separate sessions Final decision-making, recording and closure Preliminary mediation activities Mediator selection and appointment

Organisational preparation The role of lawyers, advisers and support people Agreement to Mediate Post-mediation activities Variations in process and procedure Joint sessions or separate sessions Shuttle mediation Electronic, online and telephonic/text approaches Adjournments, suspension and termination Mediator functions and capabilities Applications of mediation Commercial disputes Building and construction disputes Community disputes Family disputes Industrial, employment and workplace matters Native title claims Farm debt disputes International commercial disputes Contentious issues in mediation When is mediation appropriate? Mediator power Lawyers in mediation Conclusion Chapter 9

Conciliation Chapter contents Introduction Understanding conciliation

Distinguishing conciliation from mediation The values and goals of conciliation Conciliation procedures Blended conciliation processes Applications of conciliation Industrial and workplace applications Conciliation in family law Anti-discrimination conciliation Critical issues in conciliation practice Lawyers and conciliation Conclusion Chapter 10

Expert Determination and Arbitration Chapter contents Introduction Underlying values and attributes Expert determination Features and procedures Distinguishing expert determination from arbitration Procedural fairness Courts and compliance Enforceability Applications of expert determination Arbitration De ning arbitration and identifying its attributes Procedure Enforceability and the courts Applications of arbitration International determination systems

International commercial arbitration Arbitration in investment and trade disputes Arbitration in international consumer disputes Blended processes involving arbitration Med-arb, med-arb-med and arb-med Arb-med-arb Lawyer involvement in arbitration Conclusion Chapter 11

Litigation Chapter contents Introduction Values and goals of litigation Litigation in Australian domestic law Traditional common law litigation Critiques of common law litigation Alternative approaches in litigation Case management Pre-litigation requirements ‘ADR’ in court-based litigation Operational factors Pre-appeal dispute resolution The multi-door courthouse Court-aligned DR in perspective Judicial dispute resolution Constitutional considerations Compatibility arguments Performance-based questions Accountability considerations

Non-adversarial justice in the courts Evaluation International litigation and adjudication systems International Court of Justice Other international adjudication The future of litigation — online courts Lawyers and litigation Conclusion

PART III Chapter 12

Dispute Resolution Praxis and Potential Elements of Effective Dispute Resolution Practice Chapter contents Introduction Praxis in DR The importance of critical perspectives to DR praxis Advocacy and DR praxis The adversarial advocacy hat The non-adversarial advocacy hat A new culture of legal advocacy in DR Summary Informed consent in DR The meaning of informed consent in DR An approach to achieving informed consent in DR Informed consent and maximising party control Informed consent and ethical activism by intervenors Summary The shadow of the law in DR Operationalising the shadow of the law: avoiding overstating the role of the law

Operationalising the shadow of the law: acknowledging the uncertainty of the law Summary Re ective DR practice Re ective practice supports emotional intelligence in DR praxis Re ective practice supports the development of a professional identity Conclusion Chapter 13

Competence and Ethics in Dispute Resolution Chapter contents Introduction Competence in DR Substantive knowledge Determinative processes Advisory processes Facilitative processes Blended processes Procedural knowledge and skills Determinative processes Advisory processes Facilitative processes Recognition, training and accreditation The National Mediator Accreditation System (NMAS) The Family Dispute Resolution (FDR) system Conciliation processes Some new DR competencies Emotion and dispute resolution Psychology, neurobiology and DR

Summary Ethics and DR Ethical rules for lawyers representing clients in DR Rules of ethical conduct for Australian solicitors Rules of ethical conduct for Australian barristers A case on point: Legal Services Commissioner v Mullins Summary Ethical rules for lawyers as intervenors in DR processes Ethics for judges Ethics for arbitrators Ethics for conciliators Ethics for mediators Con dentiality in mediation Consequences of breaching ethical rules in DR contexts A moral compass in DR processes Using a moral compass in DR Future ethical DR paradigm Conclusion Chapter 14

Dispute Resolution and a Positive Professional Identity Chapter contents Introduction Understanding a positive professional identity Conceptualising a positive professional identity based on DR A professional ideology for DR practice Fidelity to the ‘good’ of dispute resolution A public DR ‘office’ Fitness for practice The comprehensive law movement: putting the

ideology for a positive professional identity for lawyers through DR into practice Collaborative law Creative problem-solving Holistic justice Preventative law Problem-solving courts Procedural justice Restorative justice Therapeutic jurisprudence Transformative mediation Summary Why a positive professional identity is important Professional identity and Self-Determination Theory (SDT) PERMA, DR practice and professional identity Positive emotion (P) Engagement (E) Positive Relationships (R) Meaning (M) Accomplishment (A) Summary Positive professional identity formation through DR Conclusion Index

PART I Dispute Resolution in Australia

[page 3]

Chapter 1 Dispute Resolution and Lawyering Chapter contents Introduction The legal profession The nature of legal work and DR Lawyering, DR expertise and upholding the rule of law The challenges of change for the legal profession DR as a response to the challenges facing the legal profession Legal education and DR: Preparing lawyers of the future Legal education, the ‘Priestley 11’ and DR DR and the threshold learning outcomes Conclusion

1.1 1.3 1.14 1.27 1.35 1.47 1.52 1.57 1.63 1.74

Introduction 1.1 is book explores what it means to be a DR practitioner and an Australian lawyer in the 21st century. e book focuses on dispute resolution (DR) knowledge, skills and values as increasingly important components of lawyering expertise, and as critical elements of effective contemporary legal practice. To set the scene for understanding the increasing importance of DR (and particularly DR processes other than litigation) for legal practice, this rst chapter considers the nature of 21st century lawyering in Australian society and celebrates DR practice as central to both transactional and DR lawyering. e importance of DR to the future viability of the legal profession is also noted, not only in Australia but globally. 1.2 is chapter rst considers the nature of the Australian legal profession. en the philosophical framework of the practice of law is explored, including consideration of the rule of law and its relevance to the role of lawyers as dispute managers and resolvers. Next, the current tide of

change facing the legal profession is discussed and the implications of these developments for the way in which legal services are delivered are explored. e chapter demonstrates that DR knowledge, skills and attitudes are critical factors in the legal profession’s response to the challenges of contemporary change. Finally, the chapter highlights that as DR is so central to the future of legal [page 4] practice, it should also be central to every law student’s experience of legal education. For this reason, the chapter concludes with the argument that DR should be included in the suite of subjects that are compulsory for admission to the legal profession.

The legal profession 1.3 e legal profession is ancient and ubiquitous — found in various iterations in jurisdictions and cultures all around the world.1 China is recognised as having one of the oldest legal systems, which according to legend commenced around 2800BC in the reign of Emperor Fuxi.2 Some form of lawyering is a common element of the social, political and governing structures of most societies and all sovereign states. Of course, lawyers provide legal advice, representation and advocacy in service of individual clients. But they also serve society and the public good, particularly in liberal democratic societies where the rule of law provides the foundations for the operation of social, political and legal systems.3 1.4 A career as a lawyer can take many different forms, but most commonly lawyers practise as solicitors or barristers in the private sector, government or the community legal sector.4 Clearly, membership of the legal profession requires legal expertise — specialist legal knowledge, skills and attitudes. However, simply knowing what the law is — possessing knowledge of the doctrinal substance of the law — has never been sufficient for successful legal practice in any context. To be effective legal advisers and advocates, lawyers must not only know the law, they must also be able to

apply it to their client’s speci c transactional or DR needs and interests. Putting doctrinal law into practice involves the deployment of a range of legal skills — legal thinking and reasoning skills, legal research skills, communication and collaboration skills, and self-regulation [page 5] skills.5 In addition, successful lawyering requires well-developed professional attitudes and values, such as an ethical disposition and professional judgment. 1.5 In Australia’s early legal history the process of acquiring the legal knowledge, skills and attitudes necessary for the practice of law occurred predominantly through an apprenticeship model.6 In the 20th century it became more usual for doctrinal legal knowledge to be learned at university, with practical skills and professional values and attitudes learned later ‘on the job’. At the time of writing, Australia has 39 law schools offering both undergraduate level (LLB) and post-graduate level (JD) law degrees.7 Generally, in the 2020s, those in Australia wishing to enter the legal profession gain a foundational knowledge of the core substance of the law at law school (represented by the Priestley 11 core subjects, the study of which is required for eligibility for admission to practice).8 Law schools also provide some of the key legal skills (such as legal research, analysis and reasoning — as represented in the reshold Learning Outcomes for Law 26).9 1.6 Law school is then followed by, or integrated with, some form of practical legal training.10 Only with these two components of legal education satis ed is a law graduate in a position to establish to a professional body that they are ready for admission. Admission to the profession requires applicants to establish that they are ‘currently of good fame and character’ and a ‘ t and proper person’ to be admitted.11 e nal step before entering the practice of law is to gain a practising certi cate, which is effectively a licence to practice issued by the Law Societies and Bar Associations in Australia’s states and territories.12

[page 6] 1.7 Lawyers around the world have long maintained that the legal profession is ‘learned and noble’.13 It is certainly a profession with an honorable history of protecting and advocating for people’s rights and liberties, ghting for access to justice, ensuring that disputes are resolved through appropriate and fair means, and assuring due process in the way the state deals with its citizens. Despite this, lawyers oen appear to be on the wrong end of jokes about dishonesty and a lack of ethics, and the virtue of legal practice is not infrequently questioned. Perhaps this is because the reality of the practice of law, not unlike the banking profession, is that while on one hand it is a profession that serves society, on the other it is also a pro t-making business enterprise.14 1.8 Nonetheless, admission as a member of the legal profession is considered to be a signi cant societal privilege.15 Being a lawyer brings with it altruistic bene ts, such as the satisfaction of helping people and contributing to a safe, just and ordered society. In addition, the profession offers its members a relatively high level of prestige and social standing, and the opportunity to make a good living.16 To better understand why a career in the legal profession is considered to be an honorable one, and why some even see it as a vocation or calling to practice,17 it is helpful to re ect brie y on the nature of professions generally and ways in which they are different from other occupations. 1.9 ere is a vast body of literature on the sociology of professions,18 although there is no single de nition of a ‘profession’ per se. Nevertheless, there are some consistent characteristics common to most professions. For example, a modern profession is [page 7] generally based on ‘ownership of a eld of knowledge, autonomy over practices, control over entry and credentials, state recognition, and social status’.19 Members of a profession experience high levels of professional

autonomy, engage in intellectually rigorous work and are oen in a relationship of trust and con dence with their clients.20 More than this, they ‘profess’, or in other words publicly declare or stand for, the accountable and ethical practice of their discipline in the service of others.21 In addition, professions not only offer high levels of technical competence in the provision of services, requiring specialist knowledge and expertise, but the practice of that expertise is reliable and trustworthy because professional practitioners are regulated by formal systems of ethics and informed by duciary obligations and responsibilities.22 Members of professions must have the con dence of those whom they serve, as well as their peers, and they must be committed to the public good.23 Failure to live up to these standards can result in removal from a profession.24 1.10 e legal profession professes commitment to the rule of law which provides a foundation for civic systems of law and government, serving society by supporting social stability and order, giving ‘vitality to peace, freedom and decency’, and ensuring personal freedoms.25 For this reason members of the legal profession engage in an enterprise that is more than simply a commercial industry driven by a market ideology of the maximisation of individual gain through the provision of services for pro t.26 As Justice Kiefel of the Australian High Court has said: ‘Practising lawyers do not just run a business, selling their skills and services to clients in return for fees. e practice of law is a profession and this sets it apart from other, commercial, enterprises’.27 1.11 Nevertheless, the practice of law is simultaneously both a pro tmaking business and a profession and it is therefore in uenced, if not driven, by the reality of market forces. It could be said that the legal profession is a ‘market organisation whose [page 8] legitimacy rests on a social bargain’, an exchange of status and privilege resulting from intellectual and organisational standing for ‘ethical and altruistic service’.28 However, while the social bargain struck by the legal

profession is not a simple or straightforward one, and while professions may well be criticised in modern society for being part of a neoliberalist privileging of the rationality and logic of the market,29 the social and political signi cance of the legal profession, both historically and in contemporary society, cannot be denied. 1.12 Admission to the legal profession requires a person to be of good character. To endure and succeed in the profession, lawyers need a moral compass and to ‘conform to the customs and character of the community’.30 On admission to the profession, lawyers swear, or declare and affirm, that they ‘will truly and honestly conduct’ themselves and that they ‘will faithfully serve in the administration of the laws according to the best of [their] knowledge, skill and ability’.31 It has been said that belonging to the legal profession ‘signi es a cluster of values that are palpable’ including ‘scholarship, honour, personal integrity, leadership and independence, pride in our justice system, and generous pro bono public service’.32 For this reason, ‘the legal profession stands both apart from, and is a part of, our wider society’.33 1.13 As at October 2018, when the most recent national pro le of the legal profession was conducted, there were 76,303 practising solicitors in Australia,34 with the largest proportion of solicitors practising in New South Wales (43%), followed by Victoria (26%) and Queensland (15%). e pro le indicated that the legal profession is growing, with an increase of 33% in the number of solicitors practising in Australia since 2014.35 Most Australian solicitors work in private practice, with 69% working in private law rms; although the corporate and government legal sectors have recently seen strong growth.36 For the rst time in history, women now outnumber men in the legal profession, constituting more than half of all solicitors, both at the national level (52%), and across all states and territories (with the exception of Western Australia, where the gender balance is 50/50).37 It is a concern that the number and proportion of Aboriginal and Torres Strait Islander solicitors remains low. In 2018, less than 1 percent of all [page 9]

solicitors identi ed as First Nations people.38 e Australian Bar Association’s most recent membership information states that currently the Australian Bar is comprised of over 6300 barristers, and as with the solicitor cohort, the majority are practising in New South Wales, Victoria and Queensland.39

The nature of legal work and DR 1.14 Traditionally, lawyering has been broadly divided into transactional work (focused on ‘the formation, negotiation, documentation, or consummation’ of business-related transactions)40 and DR work. is broad division continues with contemporary lawyering.41 In both these roles, whether working transactionally or on the management or resolution of disputes, lawyers are engaged as expert advisers, representatives and advocates who negotiate persuasively on behalf of their clients, assisting them to develop options, make informed choices and decisions, and take control of positive or problematic personal and commercial situations. 1.15 DR expertise is central to the broad and diverse nature of the contemporary real world of lawyering. Effective practice in both the DR and transactional lawyering roles requires the deployment of DR knowledge, skills and attitudes. Few would disagree, for example, that in both transactional and DR legal practice it is important for lawyers to work with their clients’ needs and interests, as well as their legal rights and positions. Further, communication skills are critical to all the work that lawyers do and negotiation skills, for both transactions and disputes, are required and used on a daily basis. 1.16 Although the need for an expansive range of DR skills in lawyering is evident, it is important to note that DR expertise continues to be considered through the relatively narrow lens of litigation. at is, oen, the DR work of lawyers is categorised as predominantly focused on supporting clients to manage disputes through the courts — even though matters are oen settled through negotiations or other DR processes before reaching trial. However, while DR expertise is increasingly acknowledged as core to contemporary lawyering more broadly, the legal profession still has some

way to go in appreciating the relevance of DR knowledge and skills to the efficacy of all legal work. [page 10] 1.17 In terms of transactional lawyering, it is increasingly acknowledged that ‘transactional competency is necessary for new lawyers’,42 because transactional practice is at least equal to, and perhaps even dominates, DR practice.43 What do transactional lawyers do? Transactional legal practice occurs in diverse legal settings, from large law rms and in-house situations to small general practices.44 Transactional lawyers perform due diligence and ‘evaluate business and legal risk in connection with transactions, dra contracts, negotiate terms in complex agreements and understand the greater commercial context in which transactions take place’.45 1.18 It follows that transactional work is varied and oen complex. Transactional lawyering most commonly traverses legal matters concerning real estate, corporate, commercial and business interests, banking and nance, bankruptcy and insolvency, taxation matters and international business.46 Indeed, transactional lawyers play a critical role in virtually all business and commercial transactions. However, transactional work is also relevant to many other areas of law as diverse as intellectual property, estate and probate law, and family law. 1.19 Transactional lawyers must be able to provide advice and advocacy and dra legal documentation. Penland argues that to practise transactional work well in business contexts, lawyers need the following competencies:47 rst, ‘the ability to understand business associations, advise about business structures, and dra documents related to business associations’; second, ‘the ability to investigate facts and research the law (with emphasis on due diligence)’; third, ‘the ability to dra and negotiate contracts’; and fourth, ‘the ability to identify and address the ethical implications of transactional practice’.48 Relevant to these competencies, and a capacity to execute them well, are DR knowledge, skills and attitudes — for example, ‘client-facing skills’,49 communication skills such as effective interviewing, questioning,

summarising and reframing, the ability to identify hidden problems and agendas, problem-solving skills, option generation skills, and the ability to identify interests as well as positions. Contemporary [page 11] contexts add competence in legal technologies and arti cial intelligence tools for legal practice to this list.50 1.20 Transactional lawyering not only requires DR expertise, but it can also be seen as a part of the DR process matrix (discussed in Chapter 3) because effective transactional practice can operate to prevent disputes arising in the future. In effect, transactional lawyering is a form of preventative law, for which DR expertise is essential.51 1.21 With regard to the DR side of legal practice, for reasons explored throughout this book, contemporary lawyering now involves a more expansive matrix of DR options than ever before. In Western legal systems there will always be a place for litigation as an important process on the DR matrix. However, contemporary legal practice, both in Australia and internationally, increasingly involves a wide range of processes conducted away from the courts. Indeed, many legal disputes are now resolved by lawyers without the commencement, or even threat of commencement, of any court proceedings. ere is no way of knowing how many disputes are dealt with in this way, but it is certainly a signi cant number.52 Of civil law matters in which court proceedings are commenced, it is estimated that only 5 per cent proceed all the way to trial — with 95 per cent dealt with through other DR processes before the trial date arrives.53 1.22 Modern DR lawyers must have the knowledge and understanding to diagnose what process or processes would best suit the particular issues their client needs addressed, managed or resolved. Now, more than ever, they need to be able to ‘ t the forum to the fuss’.54 Sometimes the appropriate DR approach will require the adoption

[page 12] of adversarial strategies and the pursuit of litigation. is may be the case, for example, when rights and entitlements are at stake and a determination by an independent and impartial decision-maker, based on normative rules and principles, is required.55 In other instances processes that are less adversarial and involve facilitated negotiations or the exploration and consideration of parties’ interests, as well as their positions and rights, will be more appropriate;56 perhaps because future relationships are at stake, or because the dispute involves matters that are difficult to evaluate quantitatively. 1.23 As only a small percentage of legal disputes are now nalised through litigation, and a vast majority are resolved outside the courts, it is worth asking the question: What has changed in the legal system to make this the case? In recent decades, as is explained further when discussing the DR matrix and the history of Australian DR, increasingly an appreciation of the value and efficacy of ‘alternative’ modes of DR to litigation has developed. As long ago as 1990 Justice Paul de Jersey (as he then was) said: Lawyers who plough on in the traditional way do so at their peril. e peril is that they will lose their clients. ey will end up with dissatis ed clients. Word will get around. ey will be perceived to be interested principally in large fees. I think that a clearsighted recognition of the ADR trend is important to the future of the Bar.57

It is positive that lawyers are now much more aware of the bene ts of non-adversarial DR approaches. Perhaps more importantly, clients are also demanding more seriously that their legal advisers help them nd ways to resolve legal problems and disputes without the cost, delay and disruption of adversarial approaches and court proceedings.58 Increasingly also, processes such as negotiation, mediation and conciliation are being institutionalised through recognition in government policy and inclusion in the statute book at both state and federal levels (the history of DR’s institutionalisation is traced in Chapter 6).59 More and more, civil procedure legislation expects or mandates parties to engage in a non-litigation DR process before they are able to le proceedings in a court. For example, legislation such as the Civil Dispute Resolution Act 2011 (Cth) and

[page 13] the Uniform Civil Procedure Rules 1999 (Qld) require parties who want to commence court proceedings to rst take genuine steps to resolve their dispute, using negotiation or an assisted DR process.60 e requirement for pre- ling DR efforts is also now present in speci c areas of legal practice, such as family law,61 discrimination, personal injuries law,62 and small claims and administrative law.63 Further, once a matter does reach court, judges at all levels of the Australian court hierarchy have wide-ranging powers to refer matters to a court-connected DR process.64 Some referrals can be made even where the parties themselves do not consent.65 e result of all these developments is that non-adversarial DR processes and approaches have become embedded in legal practice and are an inherent part of the day-to-day work of lawyering, even in matters where litigation is also being considered. A practical indication of this is found in the trend in law rms to rename their litigation sections with reference to DR, and more barristers include assistance with mediation and conciliation processes among the legal services they offer. 1.24 In addition, legal ethics and professional responsibilities also now recognise the centrality of DR practice to the work of the legal profession. Conduct rules in place across Australia for both barristers and solicitors impose duties to advise clients on alternatives to litigation.66 For example, r 7.2 of the Australian Solicitors’ Conduct Rules (ASCR) states: A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.67

e wording of a barrister’s duty to advise a client on alternatives to litigation, found in the Barristers’ Rules of the Bar Associations in each state and territory, is virtually the same as the ASCR. e duty to advise about alternatives to litigation can be considered as a duty both to act in the best interests of the client as well as a duty to the court and to the administration of justice.68

[page 14] 1.25 erefore, unless a legal practitioner has reasonable grounds to believe that their client already has an understanding of the alternatives to litigation, they are required to advise about the available process options. In order to be able to discharge this professional duty, legal practitioners must know and understand what appropriate alternative approaches to litigation exist for their client. is in turn requires a deep understanding of the nature of the processes included in the matrix of DR options and their key characteristics.69 Duties also exist for legal practitioners engaging in a DR process and the nature of the duty will be impacted by whether they are acting as a representative for a client or facilitating a DR process as a thirdparty intervenor, for example, mediating or arbitrating. 1.26 e paragraphs above establish that DR expertise has a signi cant place in contemporary lawyering — in both DR and transactional aspects of legal practice. e broad relevance of DR practice to modern legal work is further emphasised by considering how such work contributes to lawyers’ roles in upholding the rule of law. e rule of law provides the foundational philosophical and doctrinal framework for the provision of legal services in Australia, and it represents the core values and norms of professional legal practice in our society. For this reason, this chapter now turns to exploring the ways in which the DR role of lawyers bolsters their capacity to uphold the elements of the rule of law doctrine.

Lawyering, DR expertise and upholding the rule of law70 1.27 e rule of law is a central tenet of liberal democracies that contributes to the maintenance of peace, order and freedom in society.71 It denotes a society that is governed by laws that ‘regulate complex relationships — relationships between people [page 15]

and relationships between the people and the State’.72 e rule of law offers a critical explanation for why the work of lawyers is important, why the professional purpose of legal work is meaningful, and why lawyers can claim that their contribution to society is signi cant and valuable. e rule of law is a cornerstone for legal practice, providing motivation for doing work that is oen difficult and challenging by emphasising the ways in which it is also ful lling and rewarding. 1.28 As agents of the rule of law, lawyers contribute to a just and orderly society in which human rights and freedoms are maintained, democracy is upheld and the principles of a stable market economy are supported.73 Lord Bingham of Cornhill, a British judge and jurist, was acclaimed as ‘fair, robust and principled, and the embodiment of what we imagine the rule of law to be about’.74 Lord Bingham de ned the rule of law as including factors such as: accessibility, intelligibility and clarity of laws; the resolution of legal rights and liabilities through application of the law; the equal application of the law to all; the protection of human rights; the resolution of civil disputes; proper and reasonable exercise of powers by government; fairness; and compliance by the state with international law.75 1.29 Former Chief Justice of Australia Gerard Brennan AC summarised the indicia of the rule of law into three points: service to the people of a society; the provision of stable order; and freedom from the vagaries of personal whim or in uence.76 Lawyers ensure that the law treats the citizenry equally and lawyers hold political and legal systems to account in order to prevent arbitrary uses and abuses of power.77 Indeed, lawyers are ‘essential to the rule of law’.78 1.30 When practitioners engage in daily lawyering work, they do more than simply use their expertise to apply the law to their clients’ situations. As lawyers, ‘every day of our professional working lives has some connection to ensuring our society is just and fair, that we are governed responsibly, and there is a societal framework in place to support economic security’.79 Both transactional and DR legal work play a part in maintaining a society that, in the words of the International Commission of Jurists in [page 16]

1959, ‘creates and maintains the conditions which will uphold the dignity’ of humans as individuals by establishing essential ‘social, economic, educational and cultural conditions’.80 1.31 In terms of the relationship between DR practice and the rule of law, Justice Hayne said in 2002: … it is relevant to speak of the rule of law in connection with dispute resolution only if the dispute concerns legally enforceable rights and duties and only if the parties to the dispute wish or are required to have their dispute determined in accordance with those rights and duties.81

is quotation re ects a view that may still be held by some, despite the developments noted above; namely, that the role of lawyers as custodians of the rule of law involves an adversarial approach to the rigorous protection and pursuit of rights in DR contexts. While there is a time and place for zealous advocacy in DR lawyering, as this book acknowledges, it is clear that lawyers do much more than pursue the legal rights and entitlements of their clients — they are also representatives who creatively problem-solve for their clients and assist them with managing complex legal matters in their best commercial and personal interests. 1.32 ere is no doubt that the DR function of lawyers is central to their contribution to upholding the rule of law. Whether disputes are adjudicated in courts of law, or negotiated outside the courts, the invocation of legal norms and procedural fairness to assist with the management and resolution of disputes supports conceptions of a society in which the law can be used to help people and promote equality and justice. As Brennan has said, ‘the law which rules is the law according to the rulings of the courts, but it is applied in the offices and chambers of the legal profession. It is applied in draing and advising; in consultations more than in litigation’.82 is encapsulates the theory of the rule of law in relation to DR adopted in this book. 1.33 e rule of law does not, therefore, require legal DR to be adversarial and court-based, and the role of lawyers under the rule of law extends beyond legally enforceable rights and duties. e rule of law seeks to have DR (and transactional) advice and processes informed by constitutional, formal and procedural efficacy.83 It is indeed the less adversarial legal methods which could more accurately be said to support a view of ‘the legal

profession as a profession of service’ to the community under the rule of law.84 Lawyers’ contributions to maintaining the rule of law as resolvers and managers [page 17] of disputes can therefore be said to ‘give vitality to the peace and order, the freedom and the decency, of the society in which we live’.85 1.34 us, the connections between the rule of law and DR practice provide a contextual framework for a sense of purpose and meaning in professional legal endeavours. Both formal and informal, adversarial and non-adversarial, approaches in DR lawyering are required to address the increasingly complex needs and interests of clients in contemporary society. Re ection on the rule of law as a guiding principle of DR practice can encourage lawyers to remember that legal work ensures access to justice for the citizenry, and that the DR work of lawyers provides a basis for the claim that the legal profession is indeed worthy and noble. Nevertheless, the profession has faced signi cant criticism for at least the past two decades, and calls for change are challenging the status quo. e next section considers these challenges which highlight the need for increased attention and focus in the profession on DR practice.

The challenges of change for the legal profession 1.35 e legal profession has faced several challenges to the efficacy and value of its practices for some time, and it has faced criticism for its approaches to the delivery of legal services.86 Some would contend that lawyers are pro t driven and discard ethics to win at all costs.87 Others see the legal profession ‘as practising on a 100-year-old platform that is out of date’.88 e Productivity Commission has censured the civil justice system for being ‘too slow, too expensive and too adversarial’.89 Increasingly, there is a call for more effective, cheaper and more responsive legal services that are in tune with the imperatives of a globalised world.90

1.36 Economic pressures on legal services have been prompted by many factors, including nancial and economic volatility and market competition. Empowered clients now have a stronger voice in determining what services they need and how much they will pay for them. Client expectations and demands for improved cost and time [page 18] efficiency and for responsiveness in the way lawyers deliver services are increasing.91 Advances in technology, moreover, are exponentially increasing the pace of legal practice. Lawyers must be equipped not only with legal knowledge, skills and attitudes, but also with an understanding of new technologies and an ability to implement them.92 Problems arise when clients are ahead of lawyers in terms of technology, particularly when they are able to access much of the legal information and resources they need to solve business and personal problems online. At the same time, technology does create opportunities for smaller practices to compete more effectively with larger rms. 1.37 Richard Susskind rst challenged the legal profession to rethink its position in society, the nature of legal work, the delivery of legal services, and the construct of a lawyer’s professional identity, in his 2008 work e End of Lawyers?.93 His next work, Tomorrow’s Lawyers published in 2013, also provoked the legal profession to engage with profound challenges to familiar ways of knowing, working and being.94 Susskind’s predictions are for signi cant future change in the practice of law and the provision of legal services. ere may be disagreement over the details of his forecasting, but the general direction and tenor of his arguments are compelling. Susskind has said, for example, that we are witnessing the decline of the ‘Golden Age of Law’ as we have known it, and that new ways of working and providing legal services more efficiently and collaboratively will replace the practices of the past. He predicts that our relatively staid and conservative profession will see more change in the next two decades than it has in the last 200 years. To cope with this level of change, the profession will need to be grounded, resilient, exible, agile and responsive. As a profession, we will

need to shi from a reactive to a proactive focus. We will be required to rethink our practices, reconceive our ethics and values, reframe legal education to more effectively prepare future practitioners, and actively work to protect our psychological wellbeing. 1.38 Traditional forms of legal work are ending because the market is starting to reject the model of expensive lawyers delivering relatively standardised tasks. Instead, the law rms that will survive into the future will be ones that use smarter systems and processes that can complete required tasks just as well, if not to a better standard, and more cheaply.95 1.39 Many of Susskind’s forecasts are indeed manifesting themselves with the legal marketplace being transformed by developments in technology, an increasing emphasis on collaboration, and the forces of globalisation. e traditional law rm business model, and customary ways of doing legal work, simply cannot survive these [page 19] developments.96 Instead, legal services are set to move through stages of standardisation and systematisation, to packaging and commoditisation. Furthermore, disruptive legal technologies will fundamentally challenge and change the way the legal sector operates. As Henderson has stated, ‘the legal profession is becoming a subset of a larger legal industry that is increasingly populated by non-lawyers, technologists, and entrepreneurs’.97 1.40 Susskind’s commentary, concerns and predictions build on a wealth of work before him. For example, in 1993 Anthony Kronman, Dean of the Yale Law School, famously referred to the American legal profession as being in ‘crisis’ and ‘in danger of losing its soul’.98 He said the crisis was one of morale, that it was a spiritual crisis resulting from ‘growing doubts about the capacity of a lawyer’s life to offer ful lment to the person who takes it up’ and striking ‘at the heart of professional pride’.99 Kronman identi ed the key virtue of both skill and character for lawyers as being practical wisdom or prudence — the ability to discern and deliberate well.100 is key virtue, he

said, has ‘been marginalized by the scholarship of law professors, the case load of the judiciary, and structural changes in law rms’.101 1.41 Other commentators have also contributed to the dialogue about the challenges faced by the legal profession. For example, in 1996 Harvard law professor Maryann Glendon published A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society.102 In that work, Glendon argues that the legal profession is being challenged by turbulent currents of change. Using the narratives of lawyers and laypersons, she links the future of the legal profession with that of American democracy. In Australia, Justice Michael Kirby, one of our most esteemed judges of the High Court, called in 1996 for the legal profession to re-engage with its traditional idealism and noble values by revisiting the profession’s values and ethics. is, he said, was necessary to address the impact on the profession of factors such as economics, competition and technology.103 Ari Kaplan’s work e Evolution of the Legal Profession: A Conversation with the Legal Community’s ought Leaders opined in 2010 that the legal profession will not be able to avoid restructuring how it delivers legal services.104 [page 20] 1.42 In 2011, Susan Daicoff added her voice to the discussion of the profession’s future, stating that ‘the legal profession, if not the world, is in crisis’.105 She referred to the high levels of depression, anxiety, psychopathology, alcoholism and substance abuse among legal practitioners,106 commenting that ‘some lawyers are desperate for work that matters, makes sense, makes a difference, is moral, is valuable and valued and produces sustainable outcomes’.107 In her litany of issues evidencing the need for change in the legal profession, Daicoff cites challenging global economic conditions and their impact on unemployment levels among lawyers, increased needs for new, alternative and innovative forms of legal work, and the failure of traditional approaches to legal education in preparing graduates for the real world of legal practice.108 e impact of Covid-19 has only exacerbated the issues raised 10 years ago by Daicoff.109

1.43 In 2013, Steven Harper’s e Lawyer Bubble: A Profession in Crisis examined the history of the profession to suggest that a legacy had been squandered, inheritances had been misused and the profession had lost its way.110 Harper, a trial lawyer of 30 years’ experience, worked with a preeminent law rm known for adversarial litigation. His view was that the problems with the legal profession result from a lack of moral resolve. e claims in this and Daicoff ’s work of a profession currently in crisis compound Kronman’s assertions of crisis made 20 years earlier. 1.44 e consensus across these commentaries is that some of the key contemporary challenges facing the legal profession relate to economic pressures, developments in technology and liberalisation forces in the legal services market. ese challenges are not going away. ey are resulting in changes to client expectations, they are impacting the way lawyers work and they are affecting the professional identity of lawyers. As a result of such developments, lawyers will have to continuously develop client- and marketresponsive methods of legal service provision.111 Legal services will need to become more efficient and effective and more imaginative and innovative. e legal profession — traditionally relatively conservative and slow to change112 — is now expected to keep up with the rapid societal transformation that surrounds it. [page 21] 1.45 e collapse of the global economy in late 2007, and the Coronavirus pandemic, have been a catalyst for signi cant ongoing change in the delivery of legal services. As the health of the world’s economies continues to ebb and ow post ‘GFC’ (global nancial crisis) and Covid-19, the legal profession is unlikely to be able to return to its previous ways of operating. Further, small and incremental change, to which the legal profession has traditionally been accustomed, at least in the Western liberal democracies, will no longer be an adequate response. Rather, more radical changes are required and those who do not embrace a new direction for the profession are at risk of being le behind. Familiar ways of working are, to use Susskind’s phrase, ‘decomposing’.113 For example, research, administrative and process-based

aspects of legal work, oen ful lled by the junior lawyers of a rm in the past as part of their ‘apprenticeship’, are progressively being undertaken by less quali ed people or by computers.114 In order to deliver the savings demanded by clients, fee arrangements are also being modi ed in some rms from the inefficient and professionally stressful hourly billing approach115 to other approaches such as xed-fee pricing.116 1.46 As noted above, the issues facing the legal profession have been identi ed by some as a crisis. However, this perception of crisis should in fact be reframed as a challenge, and with challenge comes opportunity. e next section discusses how DR practice can be harnessed as a positive response to the current imperatives facing the legal profession.

DR as a response to the challenges facing the legal profession 1.47 e transformations in the way in which the legal profession around the world is operating are a direct threat to many lawyers — a threat to their livelihoods and their professional identity. It is confronting to be told that your profession has engaged in a massive long-term misallocation of resources and has actively ignored opportunities to develop better processes for providing legal services. It is difficult to engage with criticism of how the ‘honorable’ and ‘noble’ profession of law is failing to serve the access to justice needs of the populace in liberal democratic societies. While it may seem an exaggeration to say that the profession has been in a perpetual crisis for the last 20 years, the perspectives and developments discussed above certainly cannot be ignored. e evidence of real and irreversible trends requires us to engage with a new [page 22] professional environment, and to forge a new direction. e way forward is not to respond to these challenges with anger or denial but with a sense of opportunity that the new environment brings. As Daicoff points out, the

Chinese character for ‘crisis’ is made up of a ‘combination of two elements: danger and opportunity’.117 1.48 As noted above, the opportunities for change offered by the challenges and threats to the legal profession’s status quo will be grasped by lawyers who can be exible, agile, open-minded, resilient and entrepreneurial in creating and navigating new forms of functioning for law as a profession and as a business. Innovative service provision will be smarter, more efficient and more effective. It will reach a broader range of clients, and better satisfy society’s need for legal assistance and access to justice.118 1.49 It is clear that DR already holds an important place in legal practice, but it will become even more important in the future world of legal work. As discussed throughout the chapters of this book, lawyers with DR expertise will be in the best position to think creatively, analytically and innovatively in order to design dynamic and streamlined approaches to legal issues; and they will play a pivotal role in envisioning and enacting a radically transformed profession. Lawyers who are uent in the language and customs of DR will be the ones who are able to communicate more effectively with clients, and who are able to advise and assist them with efficiently managing their affairs, and support them to access ‘more efficient, less costly, and less combative’ ways of resolving disputes.119 1.50 Chapter 6 of e End of Lawyers is entitled: Resolving and Avoiding Disputes. In that chapter Susskind highlights new ways of developing lawyer–client connections and synergies, using social media and online platforms. He envisages legal work becoming more technology driven, explaining how IT will support access to justice and facilitate DR. He offers insights into the future workings of the judiciary with the development of courtroom technology and online DR.120 If Susskind is correct, the legal profession will soon be dominated by legal knowledge engineers, online DR specialists, legal technologists and specialists in dispute containment, dispute avoidance and legal health promotion. 1.51 In this brave new world, DR competence becomes critical for effective lawyering. is realisation forces the question as to whether Australia’s legal education system is adequately preparing new graduates

entering the profession with the necessary knowledge, skills and attitudes to enable them to thrive professionally. Until DR becomes [page 23] a core compulsory subject in all law degrees in Australia (and beyond) legal education is in fact letting law students down. Law students are the future of the profession, but a 20th century legal education will not equip them with what is necessary to succeed in the profession of the 21st century. e next section therefore argues for changes in legal education curricula to ensure that all law graduates leave law school with, at the very least, foundational levels of DR competence.

Legal education and DR: Preparing lawyers of the future 1.52 DR expertise is central to the future of legal practice, and so it logically follows that it should also be central to the content of legal education.121 e law school curriculum is the foundation for the preparation of prospective lawyers, and DR is a fundamental element of their professional competence. It is rational and reasonable, then, to infer that if law schools fail to ensure that students leaving law school are equipped with foundational levels of DR competence, they are failing not only individual students in terms of work readiness and future employability,122 but also the profession more broadly in terms of its capacity to move positively into the future. As Duffy and Field have said, there simply isn’t ‘a sensible counter-argument that measures up against the combined weight’ of the arguments in favour of including DR as a compulsory subject in the law degree.123 1.53 While DR is already a part of elective curricula offerings in most Australian law schools, this is neither adequate nor sufficient. In order to properly prepare legal practitioners of the future, DR must be one of the core compulsory subjects of every law degree, and this entails its inclusion in

the suite of subjects which are compulsory for admission to the profession.124 Other Australian DR writers such as Tom Fisher [page 24] and Judy Gutman,125 Kathy Douglas,126 James Duffy127 and Tania Sourdin128 have been arguing for some time that DR should form part of the legal education curriculum, and they have all made signi cant contributions to the movement to see this happen. In 2012, the National Alternative Dispute Resolution Advisory Council (NADRAC) also persuasively petitioned in its paper Teaching Alternative Dispute Resolution in Australian Law Schools129 for the mandatory inclusion of DR in the law curriculum.130 e Priestley 11 subject Civil Procedure was renamed Civil Dispute Resolution in the 2016 revisions of the prescribed academic areas of knowledge for admission and ‘alternative dispute resolution’ was added as a topic.131 However, while the subject was renamed it remains mostly concerned with litigation procedures and ‘alternative dispute resolution’ is only one of 13 topics to be covered in the subject. 1.54 Leading Australian legal academics, such as Richard Johnstone and Mary Keyes, Sally Ki and David Weisbrot, have been saying for many years that legal education needs to keep up with the developing requirements of legal practice, particularly by ensuring that law graduates are equipped not only with legal knowledge but also with the necessary skills and attitudes, such as those taught through DR, in order to be agile in responding to the challenges of change.132 1.55 is book argues for the inclusion of DR in the core law degree subjects both because this will ensure that the degree is current and relevant and also because [page 25] teaching DR at law school can contribute to satisfying each of the six

reshold Learning Outcomes for Law (TLOs)133 in a way that is authentic and engaging.134 e TLOs acknowledge that law graduates need to leave law school with more than just knowledge in key areas of the law.135 ey con rm that a lawyer’s education is inadequate and incomplete if it omits attention to the technical practicalities of what to do with legal knowledge, and how to be a lawyer. 1.56 e Australian TLOs for Law were developed in 2010 as part of a higher education standards imperative of national and international reach across a broad range of disciplines. e TLOs were also a response to addressing the persistently strong emphasis in the law curriculum on doctrinal legal knowledge, and to the absence of an adequate focus on legal skills and attitudes.136 e TLOs, which have been endorsed by the Council of Australian Law Deans (CALD) and enacted by most Australian law schools,137 encourage law schools to offer a balanced legal education which integrates intellectual content with practical and procedural content.138 Before considering the TLOs and how the teaching of DR can effectively be harnessed to satisfy their elements, the next section brie y further explores the place of DR in the Australian legal curriculum.

Legal education, the ‘Priestley 11’ and DR 1.57 As the former Chief Justice of Australia Robert French acknowledged some years ago, ‘the objectives and content of legal education, and how it should be undertaken, have been much discussed in Australia and in other countries with which we share our legal heritage’.139 e discussion has tended to focus on the tension between teaching [page 26] doctrinal, substantive legal knowledge, on one hand, and inculcating practical skills and professional attitudes, on the other.140 1.58 Traditionally in law school curricula there has been, and remains, a strong emphasis on doctrinal discipline content — that is, knowledge of the

substantive law (found in primary law sources such as legislation and case law).141 is is a result of the continued in uence on the content of the Australian law curriculum of the Priestley 11 subjects142 — 11 subjects agreed in 1976, and revised most recently in 2016, as the academic areas of knowledge required for students to be eligible for admission to the legal profession, and which remain the core compulsory components of Australian law degrees.143 ese subjects are all important ‘building block’ areas of law and their study undoubtedly assists students to construct a foundational knowledge base of legal principles. It is notable, however, that DR is not included in the compulsory subjects, which in the context of the history of reforms to the civil justice system discussed in Chapter 6, is a signi cant curriculum omission in terms of adequate preparation for modern legal practice. 1.59 ere have been reviews of the Priestley 11 over the years, as noted above most recently in 2015 and 2016, when a number of submissions were made advocating for the inclusion of DR in the core subject requirements.144 However, at the time of writing, the prevailing view continues to mirror that expressed by the New South Wales Legal Profession Admission Board in 2011, namely, that the current ‘Priestley 11 subjects are necessary and sufficient for satisfying the academic requirements for admission’.145 1.60 e Priestley 11 subjects have, however, been the subject of some criticism. e key criticism, unsurprisingly, is that the doctrinal focus of all the subjects excludes adequate attention on important legal skills and values. e discussion above about the skill and attitudinal competencies that will be demanded of future legal practitioners [page 27] supports queries about the relevance and currency of the Priestley 11.146 As Weisbrot has eloquently stated: ere is a ‘powerful disconnect that has emerged between the focus of teaching and learning in most law schools in Australia — that is, the mastery of a large number of bodies of doctrinal law — and the generic professional skills and attributes which law

graduates require to succeed in the increasingly dynamic work environment in which they nd themselves. Although appellate case exegesis (in one eld of doctrinal law aer another) is one important skill for lawyers, it is by no means the only professional skill which law students and young lawyers need to acquire, nor is it arguably even the most important.147

1.61 From a comparative perspective, Susan Daicoff, in her 2011 article on the legal profession’s future, refers to the irrelevance of legal education to the realities of legal practice as a key problem demanding change. She cites Gerst and Hess’s report of a number of empirical studies of lawyers con rming an absence in legal education of the skills instruction actually needed to practise law.148 1.62 It is a pertinent query then as to whether the current 11 subjects ‘realistically equip students with the capacity to manage the dynamic nature of developments in the substance of Australian law’.149 Indeed, it could be said that the current list of 11 subjects will not be adequate until it includes DR.150 e Productivity Commission, too, in its Report on Access to Justice Arrangements advocated for a compulsory core subject on Alternative DR.151 e next section establishes that including DR in the law degree will also assist law schools to demonstrate that they are adequately satisfying the TLOs for Law.

DR and the threshold learning outcomes 1.63 It was noted above that the TLOs were developed in 2010 and have the potential, in time, to change the persistent emphasis on doctrinal legal knowledge in legal education, and provide a foundational context for the acceptance of the importance of DR as a critical component of the law curriculum.152 Indeed, in 2011 it was suggested [page 28] that the TLOs might in fact replace the Priestley 11.153 at idea was not endorsed by the Law Admissions Consultative Committee (LACC) but in time it would make sense for the Priestley 11 to incorporate the TLOs.

1.64 Although the Priestley 11 and the TLOs have yet to be harmonised, the latter still provide an important standards benchmark for the provision of legal education in Australia,154 and they represent a signi cant shi in regulatory and educationalist imperatives.155 It is therefore timely that the content and pedagogy of DR subjects offer signi cant and unique opportunities for law schools to meaningfully satisfy each of the TLOs, as is explained brie y below.

TLO 1: Knowledge 1.65 TLO1 recognises the place of doctrinal content as found in the Priestley 11 not least because, as the Australian Law Reform Commission (ALRC) noted many years ago, it is not ‘possible to teach legal professional skills effectively in a substantive vacuum’.156 DR is also now, in its own right, an important and fundamental area of legal knowledge for contemporary practice, as represented in the content of this book. DR knowledge includes the history and theory of DR, as well as the characteristics, bene ts and disadvantages of the diverse process options that make up the DR matrix. Importantly, also, this knowledge can offer opportunities to make sense of other doctrinal areas of substantive knowledge through providing a framework within which to apply legal analysis and reasoning skills as well as to understand the range of positive professional values associated with helping people and upholding the rule of law.

TLO 2: Ethics and professional responsibility 1.66 As discussed above, lawyers must understand DR to be able to effectively discharge their contemporary ethical duties to the law, the court and the client. TLO 2’s focus is on the attitudes and values of an ethical disposition; that is, having the capacity to make good professional judgments when faced with ethical dilemmas.157 e explanatory notes for TLO 2 state that the intention behind it is to ‘require graduates to recognise and re ect upon the professional responsibilities of lawyers to act in their [page 29]

public role’.158 e synergy between DR and concepts of lawyering related to upholding the rule of law, helping people and practising ethically was noted above. Further, this TLO is said to point ‘to lawyers’ roles in promoting justice and the values of fairness, legitimacy, efficacy, and equity in the legal system’,159 because ‘justice gives content, meaning and legitimacy to law and legal practice’.160 Addressing TLO 2 through a DR lens not only provides students with skills and attitudes relevant to modern practice but can also support their wellbeing by affirming the congruence of positive personal and professional meaning and values.161

TLO 3: Thinking skills 1.67 e TLO authors envisaged that TLO 3 would provide a wealth of opportunities for law schools to harness the potential of DR content. e Explanatory Notes clarify that the TLO requires graduates: … to be familiar with a range of alternative dispute resolution processes, such as negotiation and mediation. Graduates should be able to appreciate the bene ts of alternative and non-adversarial approaches, as well as formal adversarial approaches, and be able to use that appreciation to generate tailored responses to a legal issue.162

As the following chapters of this book demonstrate, the ability to identify and articulate legal issues is relevant to all effective DR practice in legal contexts, as is the ability to develop appropriate responses to those issues in order to inform reasoned choices about the best way to support a client’s needs, interests and priorities.

TLO 4: Research skills 1.68 is TLO was not draed with DR research particularly in mind. But the ‘intellectual and practical skills’ referred to in TLO 4 can all be taught well through research tasks associated with DR knowledge, skills and attitudes.163 ese areas, for example, provide interesting, engaging and practically relevant opportunities for students to develop information literacy skills, along with reading, comprehension, referencing and academic integrity skills. More generally, DR offers a positive and rich learning and

teaching context in which the development of law student research skills can be supported and nurtured. [page 30]

TLO 5: Communication and collaboration 1.69 e Good Practice Guide for the implementation of TLO 5 calls on legal educators to ‘ rst start with basic communication theory and the development of interpersonal skills’.164 is sort of content and pedagogy is evident even now in almost every DR course in Australia, which consistently include instruction on how to communicate clearly, how to listen actively, summarise, paraphrase and engage in various forms of questioning, and how to manage difficult conversations. ese skills are transferable to all areas of legal practice.

TLO 6: Self-management 1.70 e self-management TLO is the most analysed and commented upon of the six learning outcomes for law.165 It was designed to ensure that legal education addresses some of the ‘affective dimensions of student learning with the intention of supporting students to become careful, efficient, concerned, and curious learners, as well as resilient, independent and life-long learners’.166 It was also a response to consultation feedback with the peak bodies of the legal profession who indicated that ‘selfmanagement is fundamental to surviving and thriving in any type of legal practice’.167 1.71 Self-management and resilience are currently critical issues for the legal profession and its future sustainability.168 It is well established in Australia, and increasingly in other international jurisdictions also, that law students experience signi cant rises in symptoms of psychological distress (compared with general population levels), beginning in their rst year.169 e distress levels do not dissipate on graduation but carry on into legal

practice with signi cant consequences for the psychological wellbeing of the profession. In the light of this evidence, it has been [page 31] argued that law schools have ethical duties to enact intentional curriculum and pedagogy design to reduce this negative impact and to ‘do no harm’.170 1.72 e teaching of DR offers opportunities for developing the selfmanagement capacity of students and can support their psychological wellbeing. e 2009 Brain and Mind Research Institute (BMRI) report speci cally recommended ‘a greater emphasis in the legal curriculum on positive and collaborative lawyering through less adversarial approaches to legal problems and problem solving’.171 Howieson and Ford have demonstrated that the experience of learning DR can heighten law students’ sense of belonging at law school and support their learning engagement, both of which in turn contribute positively to students’ mental wellbeing.172 Howieson has also found that the speci c pedagogical approaches adopted in DR education — with particular emphasis on active learning and experiential exercises such as role-plays — supports relatedness and connection between students through a level of interaction found to be statistically signi cant as a predictor of law student mental wellbeing.173 1.73 is section has shown that DR subjects are well placed to teach and assess students’ achievement of the elements of each of the TLOs — research, thinking, communication, collaboration, self-management skills, ethical values and legal knowledge. On this basis, all law schools should include DR as one of their core subjects.174 Law schools that incorporate DR into their core curriculum (for example, those at La Trobe, Melbourne University, Monash University and QUT) indicate to prospective students that they understand what is required to adequately prepare graduates for the future of legal practice. ey will become the law schools that students look to for legal quali cations that are relevant, and that support their employability.

[page 32]

Conclusion 1.74 DR is inextricably part of the future of the legal profession. It is central to the efficacy of contemporary legal practice and congruent with the philosophical framework the rule of law establishes for ethical lawyering for the public good. DR knowledge, skills and attitudes are critical factors in the profession’s response to increasing demands for more effective and efficient legal service provision. It is because DR is so central to the future of legal practice that it should also be central to the design of the legal education curriculum. 1.

See, eg, Roscoe Pound, Lawyers from Antiquity to Modern Times (West Publishing Co, 1953); Robert J Bonner, Lawyers and Litigants in Ancient Athens: e Genesis of the Legal Profession (Benjamin Blom, 1927); John A Crook, Law and Life of Ancient Rome (Cornell University Press, 1967); James A Brundage, ‘e Rise of the Professional Jurist in the irteenth Century’ (1994) 20 Syracuse Journal of International Law and Commerce 185; John Hamilton Baker, An Introduction to British Legal History (Butterworths, 3rd ed, 1990); R Blain Andrus, Lawyer: A Brief 5,000 Year History (ABA Book Publishing, 2009).

2.

Charles Chao Liu, ‘China’s Lawyer System: Dawning Upon the World through a Tortuous Process’ (2002) 23(4) Whittier Law Review 1037, 1039. See also Philip CC Huang, Code, Custom, and Legal Practice in China (Stanford University Press, 2002); Michael Szonyi, ‘e Case in the Vase: What Can a Ming Novel Tell Us about Traditional Chinese Legal Culture?’ (2017) 12(4) Frontiers of History in China 621; Matthieu Burnay, ‘e Socialist Rule of Law with Chinese Characteristics: Zoomingout of a Triangle?’ in Matthieu Burnay, Chinese Perspectives on the International Rule of Law (Edward Elgar Publishing, 2018); Shiping Hua, Chinese Legal Culture and Constitutional Order (Routledge, 2019); Jinfan Zhang, e History of Chinese Legal Civilization: Ancient China — from about 21st Century BC to 1840 AD (Springer, 2020).

3.

See Geoffrey de Q Walker, ‘Rule of Law and the Democratic World Order’ in Suri Ratnapala and Gabriel A Moens, Jurisprudence of Liberty (LexisNexis Butterworths, 2nd ed, 2011); Bogdan David, ‘Democratic Stability, Social Change Processes, and the Rule of Law’ (2012) 4(2) Geopolitics, History, and International Relations 186; Lisbet Hooghe, Tobias Lenz and Gary Marks, ‘Contested World Order: e Delegitimation of International Governance’ (2019) 14(4) e Review of International Organizations 731.

4.

See Nickolas James, Rachael Field and Jackson Walkden-Brown, e New Lawyer (Wiley, 2nd ed, 2019) ch 1.

5.

See, eg, Sally Ki, Mark Israel and Rachael Field, Learning and Teaching Academic Standards Project: Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010 (Australian Learning and Teaching Council, 2010).

6.

James, Field and Walkden-Brown, (n 4) 22–4. For further discussion of the history of Australian legal education, see also Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) ch 2.

7.

For a current list of Australia’s Law Faculties and their Deans, see the Council of Australian Law Deans . e undergraduate law degree is referred to as the ‘LLB’, which stands for Bachelor of Laws (in Latin Legum Baccalaureus). Bachelor degrees are the level 7 standard on the Australian Quali cations Framework (AQF). e JD, standing for Juris Doctor, is a graduate law degree, at level 9 of the AQF. See Australian Quali cations Framework, .

8.

See the materials available through the Law Admissions Consultative Committee, .

9.

See Ki et al, (n 5).

10.

Practical legal training is offered by a number of Australian Law Faculties such as Queensland University of Technology and Bond University. It is also offered through independent institutions such as the College of Law and Leo Cussens Institute. Some Law Faculties such as those at Flinders and Newcastle Universities integrate the practical legal training requirements into undergraduate degree offerings.

11.

See, eg, Legal Profession Uniform Admission Rules 2015 rr 10 and 17(1).

12.

In Victoria, eg, practising certi cates are issued by the Legal Services Board pursuant to the Legal Profession Uniform Law Application Act 2014 (Vic). See .

13.

See, eg, Michael A Pope, ‘e Law: Still a Noble Profession’ (1993) 60(4) Defense Counsel Journal 495. Michael Kirby, ‘Billable Hours in a Noble Calling’ (1996) 21(6) Alternative Law Journal 257; Warren K Winkler, ‘Civil Justice Reform — e Toronto Experience’ (2007) 39(1) Ottawa Law Review 99; Melissa Moran, ‘Res Ipsa Loquitor — Law A Noble Profession’ (2007) e Paralegal Educator 16; Kaelin Govinden, ‘Law: e Noble Profession: e Law’ (2014) 14(8) Without Prejudice 25.

14.

See, eg, Norman Bowie, ‘e Law: From a Profession to a Business’ (1988) 41(4) Vanderbilt Law Review 741; David Barnhizer, ‘Profession Deleted: Using Market and Liability Forces to Regulate the Very Ordinary Business of Law Practice for Pro t’ (2003) 17(2) Georgetown Journal of Legal Ethics 203; Anna Chronopoulou, ‘From a Professional Tribe to a Business Neo-Tribe: Towards a eory of Consumer-Based Lifestyles in the Legal Profession’ (2015) 1 Athens Journal of Law 69; Jacob Kai et al, Liquid Legal: Transforming Legal into a Business Savvy, Information Enabled and

Performance Driven Industry (Springer, 2017); Gino Dal Pont, ‘Profession vs Business: What is Pivotal?’ (2020) 160 Precedent 32. 15.

Winkler, (n 13).

16.

Ibid.

17.

Edward D Re, ‘e Profession of the Law’ (2000) 15(2) Journal of Civil Rights and Economic Development 109, 111. See also, eg, Andy Boon et al, ‘Postmodern Professions? e Fragmentation of Legal Education and the Legal Profession’ (2005) 32(3) Journal of Law and Society 473; Salvatore Caserta, ‘e Sociology of the Legal Profession in the Digital Age’ (2021) International Journal of the Legal Profession 1.

18.

A signi cant body of this literature is referenced in Sharon Roach Anleu and Kathy Mack, ‘e Professionalisation of Australian Magistrates’ (2008) 44(2) Journal of Sociology 185. See also Harold L Wilensky, ‘e Professionalization of Everyone’ (1964) 70(2) American Journal of Sociology 137; Terence Johnson, Professions and Power (Heinemann, 1972); Magali Sarfatti Larson, e Rise of Professionalism: A Sociological Analysis (University of California Press, 1978); Robert Tobias, ‘Continuing Professional Education and Professionalization: Traveling Without a 26 Map or Compass?’ (2003) 22(5) International Journal of Lifelong Education 445; John Archer Jackson, Professions and Professionalization: Volume 3, Sociological Studies (Cambridge University Press, 2010); Douglas Bourn, Understanding Global Skills for 21st Century Professions (Springer, 2018); Sida Liu, ‘Boundaries and Professions: Toward a Processual eory of Action’ (2018) 5(1) Journal of Professions and Organization 45; Mike Saks, Professions: A Key Idea for Business and Society (Routledge, 2021).

19.

Freidson notes the contemporary common denominators of a profession include: ‘expertise, credentialism and autonomy’: Eliot L Freidson, Professionalism Reborn: eory, Prophesy and Policy (Polity Press, 1994) 154.

20.

See Paul Finn, ‘e Fiduciary Principle’ in Timothy Youdan (ed), Equity, Fiduciaries and Trusts (Carswell, 1989) 1 and Bernard Barber, e Logic and Limits of Trust (Rutgers University Press, 1983).

21.

‘e word profession is derived from the Latin professio or professionem which means to make a public declaration’: Re, (n 17) 110.

22.

Barber, (n 20) 112. See also David Luban, ‘Fiduciary Legal Ethics, Zeal, and Moral Activism’ (2020) 33(2) Georgetown Journal of Legal Ethics 275.

23.

Barber, (n 20) 112.

24.

For example, the Legal Services Commission (LSC) of Queensland is empowered under the Legal Profession Act 2007 (Qld) to initiate and prosecute disciplinary proceedings against lawyers and law practice employees.

25.

Gerard Brennan, ‘e Role of the Legal Profession in the Rule of Law’ (Address at the Supreme Court, Brisbane, 31 August 2007) 1.

26.

Barber discusses the notion of market ideology in these terms, (n 20) 108. For a seminal discussion of contemporary ‘market ideology’ in the United States context,

see Leonard Silk and David Vogel, Ethics and Pro ts: e Crisis of Con dence in American Business (Simon and Schuster, 1976). 27.

Susan Kiefel, ‘Ethics and the Profession of the Lawyer’ (Address to the Queensland Law Society: e Vincents’ 48th Annual Symposium, Brisbane, 26–27 March 2010) 1.

28.

Joanne Bagust, ‘e Legal Profession and the Business of Law’ (2013) 35(1) Sydney Law Review 27, 27–8 referring to Marion Crain, ‘e Transformation of the Professional Workforce’ (2004) 79(2) Chicago-Kent Law Review 543.

29.

Ibid 28 referring to Pierre Bourdieu, e Essence of Neoliberalism (Le Monde Diplomatique, 1998) (English ed) .

30.

Kiefel, (n 27).

31.

See, eg, Legal Profession Admission Board of New South Wales, Admission Ceremony Factsheet (26 September 2016), .

32.

Winkler, (n 13).

33.

Kiefel, (n 27) 3.

34.

Law Society of NSW, 2018 National Pro le of Solicitors: Final (Urbis, 2019) 1.

35.

Ibid 9.

36.

Ibid 1.

37.

Ibid.

38.

Ibid.

39.

e Australian Bar Association, ‘Member Information’, .

40.

Kenneth N Klee, ‘Teaching Transactional Law’ (2004) 27(1) California Bankruptcy Journal 295. See also Karl S Okamoto, ‘Teaching Transactional Lawyering’ (2009) 1(1) Drexel Law Review 69; Andrew Godwin, ‘Teaching Transactional Law — A Case Study from Australia with Reference to the US Experience’ (2015) 16(2) Tennessee Journal of Business Law 343; Lori D Johnson, ‘Rede ning Roles and Duties of the Transactional Lawyer: A Narrative Approach’ (2017) 91(4) John’s Law Review 845; John F Hilson and Stephen Sepinuck, ‘e Creative Aspect of Transactional Lawyering: Structuring the Transaction and Draing the Agreement to Resolve a Legal Issue’ (2018) 20(Special Report) Transactions: e Tennessee Journal of Business Law 241; Lori D Johnson, ‘Navigating Technology Competence in Transactional Practice’ (2020) 65(1) Villanova Law Review 159; Anne G Crisp, Joan MacLeod Heminway and Gary Buchanan Martin, ‘Business Law and Lawyering in the Wake of COVID-19’ (2021) 22(2) Transactions: e Tennessee Journal of Business Law 18.

41.

Okamoto, (n 40) 122.

42.

Lisa Penland, ‘What a Transactional Lawyer Needs to Know: Identifying and Implementing Competencies for Transactional Lawyers’ (2008) 5 Journal of the

Association of Legal Writing Directors 118, 118. See also Paolo Butturini and Susan L DeJarnatt, ‘Taking on the Role of Lawyer: Transactional Skills, Transnational Issues, and Commercial Law’ (2019) 44(2) Southern Illinois University Law Journal 225; Mark Fenwick and Erik PM Vermeulen, ‘e Lawyer of the Future as “Transaction Engineer”: Digital Technologies and the Disruption of the Legal Profession’ in Marcelo Corrales, Mark Fenwick and Helena Haapio (eds), Legal Tech, Smart Contracts and Blockchain (Singapore, 2019) 253. 43.

Penland, (n 42) 120.

44.

Ibid 122.

45.

David Zarfes, Sean Z Kramer and David Birnbaum, ‘Teaching Transactional Law to New Lawyers’ (2014) Corporate Counsel 1, 1.

46.

Bagust, (n 28).

47.

Penland, (n 42) 124–7.

48.

Ibid 124.

49.

Zarfes, Kramer and Birnbaum, (n 45) 3.

50.

See, eg, William E Foster and Andrew L Lawson, ‘When to Praise the Machine: e Promise and Perils of Automated Transactional Draing’ (2017) 69(3) South Carolina Law Review 597; Celeste M Hammond, ‘Students in a Menu of Degrees Providing Context for Understanding and Learning the Transactional Attorney’s Role’ (2018) 20(Special Report) Transactions: e Tennessee Journal of Business Law 627; Joseph M Green, ‘Legaltech and the Future of Startup Lawyering’ in Antoine Masson and Gavin Robinson (eds), Mapping Legal Innovation: Trends & Perspectives (Springer, 2021).

51.

Louis M Brown, Preventive Law (Prentice Hall, 1950); Louis M Brown, ‘e Law Office: A Preventive Laboratory’ (1956) 140(7) University of Pennsylvania Law Review 940; Louis M Brown, Lawyering rough Life: e Origin of Preventive Law (Fred B Rothman and Co, 1986). See also Forrest S Mosten, Julie Macfarlane and Elizabeth Potter Scully, ‘Educating the New Lawyer: Teaching Lawyers to Offer Unbundled and Other Client-Centric Services’ (2017) 122(3) Dickinson Law Review 801; Petra Hietanen-Kunwald and Helena Haapio, ‘Effective Dispute Prevention and Resolution rough Proactive Contract Design’ (2021) Journal of Strategic Contracting and Negotiation 1.

52.

Victorian Law Reform Commission, Civil Justice Review, Report No 14 (2008).

53.

Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014) 7–8. See also Jonathan Glater, ‘Study Finds Settling Is Better an Going to Trial’, New York Times (7 August 2008).

54.

Frank EA Sander and Stephen B Goldberg, ‘Fitting the Forum to the Fuss: A UserFriendly Guide to Selecting an ADR Procedure’ (1994) 10(1) Negotiation Journal 49. See also John Wade, ‘In Search of New Con ict Management Processes — the Lawyer as Macro and Micro Diagnostic Problem Solver’ (1995) 10 Australian Family Lawyer 23; Hallie Fader, ‘Designing the Forum to Fit the Fuss: Dispute System Design for the

State Trial Courts’ (2008) 13(2) Harvard Negotiation Law Review 481; Ettore M Lombardi, ‘Is Online Mediation the Way to Fit the Forum to the Fuss?’ (2012) 19(4) Maastricht Journal of European and Comparative Law 524; Andrew J Cannon, ‘If You Sent the File to the Litigation Section, You Failed the Client: Managing Con ict in the Context of the South Australian Magistrates Court’ (2019) 38(1) e Arbitrator and Mediator 81. 55.

Owen M Fiss, ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073. See also Owen M Fiss, e Law as it Could Be (New York University Press, 2003). See further, eg, omas J Stipanowich, ‘Arbitration: e New Litigation’ (2010) 1(1) University of Illinois Law Review 1; Scott L Cummings and Deborah L Rhode, ‘Public Interest Litigation: Insights from eory and Practice’ (2009) 36(4) Fordham Urban Law Journal 603; Alexandra D Lahav, ‘e Roles of Litigation in American Democracy’ (2016) 65(6) Emory Law Journal 1657.

56.

King et al, (n 53).

57.

Paul de Jersey, ‘Address to the Australian Bar Association Conference’ (1990), cited in David Spencer, ‘Liability of Lawyers to Advise on Alternative Dispute Resolution Options’ (1998) 9(4) Australian Dispute Resolution Journal 292.

58.

Katie Walsh, ‘Demand Slump for Law Firms in Shaky Market’, Financial Review (28 August 2015). See also, eg, Deborah Beim, Tom S Clark and John W Patty, ‘Why Do Courts Delay?’ (2017) 5(2) Journal of Law and Courts 199; Arthur R Miller, ‘Widening the Lens: Refocusing the Litigation Cost-and-Delay Narrative’ (2018) 40(1) Cardozo Law Review 57; Tania Sourdin, Bin Li and Donna M McNamara, ‘Court Innovations and Access to Justice in Times of Crisis’ (2020) 9(4) Health Policy and Technology 447.

59.

Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011) 395, 560; Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020). See also Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis Butterworths, 2018) ch 1.

60.

Civil Dispute Resolution Act 2011 (Cth) ss 3–4.

61.

Family Law Act 1975 (Cth) s 60I.

62.

Anti-Discrimination Act 1991 (Qld); Personal Injuries Proceedings Act 2002 (Qld).

63.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 75.

64.

For example, Federal Court of Australia Act 1976 (Cth) s 53A allows a court to refer a matter to mediation or arbitration. See also Judy Gutman, Tom Fisher and Erika Martens, ‘Why Teach Alternative Dispute Resolution to Law Students? Part One: Past and Current Practices and Some Unanswered Questions’ (2006) 16(1/2) Legal Education Review 125, 128.

65.

Federal Court of Australia Act 1976 (Cth) s 53A(1A). See also Boulle, (n 59) 563–70.

66.

See generally David Spencer, ‘Liability of Lawyers to Advise on Alternative Dispute Resolution Options’ (1998) 9(2) Australian Dispute Resolution Journal 292; Jacqueline M Nolan-Haley et al, ‘ADR and the Professional Responsibility of Lawyers’ (2000)

28(4) Fordham Urban Law Journal 887; Judy Gutman, ‘e Reality of Non-Adversarial Justice: Principles and Practice’ (2009) 14(1) Deakin Law Review 29. 67.

Australian Solicitors’ Conduct Rules 2015 r 7.2.

68.

is classi cation of the duty has been suggested in Gino Dal Pont, ‘Ethics: A Duty to Encourage Settlement’ (2005) 79(1–2) Law Institute Journal 80. See also Gutman, Fisher and Martens, (n 64) 127; Julie Macfarlane, e New Lawyer: How Clients are Transforming the Practice of Law (UBC Press, 2nd ed, 2017).

69.

Sander and Goldberg, (n 54); Wade, (n 54).

70.

See Field, Duffy and Huggins, (n 6) chs 1, 6, 10, 11, 12 and 14. Jeremy Waldron has written extensively on the rule of law. A sample of his work includes: Jeremy Waldron, ‘e Rule of Law in Contemporary Liberal eory’ (1989) 2(1) Ratio Juris 79; e Law (Routledge, 1990) ch 3; ‘e Concept and the Rule of Law’ (2008) 43(1) Georgia Law Review 1; ‘Are Sovereigns Entitled to the Bene t of the International Rule of Law?’ (2011) 22(2) European Journal of International Law 315; ‘Stare Decisis and the Rule of Law: A Layered Approach’ (2012) 111(1) Michigan Law Review 1; ‘How Law Protects Dignity’ (2012) 71(1) Cambridge Law Journal 200; ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ in Richard Bellamy (ed), e Rule of Law and the Separation of Powers (Routledge, 2017) 117. See also generally Friedrich A Hayek, ‘Freedom and the Rule of Law’ (1971) 36(2) Il Politico 349; Margaret J Radin, ‘Reconsidering the Rule of Law’ (1989) 69(4) Boston University Law Review 781; Jürgen Habermas, ‘On the Internal Relation Between the Rule of Law and Democracy’ (1995) 3(1) European Journal of Philosophy 12; Brian Z Tamanaha, On the Rule of Law (Cambridge University Press, 2004); Joseph Raz, ‘e Rule of Law and its Virtue’ in Joseph Raz, e Authority of Law — Essays on Law and Morality (Oxford University Press, 2nd ed, 2009); Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28(1) Journal of Environmental Law 19; Peter L Strauss, ‘Separation of Powers in Comparative Perspective: How Much Protection for the Rule of Law?’ in Peter Cane, Herwig Hofmann and Peter Lindseth (eds), Oxford Handbook on Comparative Administrative Law (Oxford University Press, 2021).

71.

Brennan, (n 25) 3.

72.

Ibid 4.

73.

Jeremy Waldron, ‘e Concept and the Rule of Law’, New York University School of Law Public Law and Legal eory Research Paper Series (Working Paper No 08-50, 2008) 1.

74.

Maev Kennedy, ‘Tributes to Lord Bingham, “e Greatest Judge of our Time”: Human Rights Campaigners and Lawyers Hail “Towering Figure” and “Rock of Principle”’, e Guardian (online) (13 September 2010).

75.

Lord Bingham, ‘e Rule of Law’ (2007) 66(1) Cambridge Law Journal 67. See also Lord Bingham, ‘Personal Freedom and the Dilemma of Democracies’ (2003) 52(4)

International and Comparative Law Quarterly 841. For other seminal de nitions, see, eg, AV Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959); John Rawls, A eory of Justice (Harvard University Press, 1971); Ninian Stephen, ‘e Rule of Law’ (2003) 22(2) Dialogue (Academy of the Social Sciences in Australia) 8. 76.

Brennan, (n 25).

77.

Stephen Bottomley and Simon Bronitt, Law in Context (Federation Press, 4th ed, 2012) ch 2.

78.

Brennan, (n 25) 5.

79.

Field, Duffy and Huggins, (n 6). See also Rule of Law Institute of Australia (2021), .

80.

International Commission of Jurists, e Rule of Law in a Free Society — Report of the International Congress of Jurists (Geneva, 1959) cl 1 of the Report of Committee 1, 4; also quoted in Joseph Raz, ‘e Rule of Law and Its Virtue’ (1977) 93(2) Law Quarterly Review 195, 195.

81.

Justice Hayne, ‘Dispute Resolution and the Rule of Law’ (Speech delivered at the SinoAustralian Seminar, Beijing, 20–22 November 2002).

82.

Brennan, (n 25) 14.

83.

Bottomley and Bronitt, (n 77).

84.

Brennan, (n 25) 16–17.

85.

Ibid.

86.

See, eg, Vicki Waye, Martie-Louise Verreynne and Jane Knowler, ‘Innovation in the Australian Legal Profession’ (2018) 25(2) International Journal of the Legal Profession 213; Leah WJ Teague, ‘Training Lawyers for Leadership: Vitally Important Mission for the Future Success (and Maybe Survival) of the Legal Profession and Our Democracy’ (2018) 58(3) Santa Clara Law Review 633; Salvatore Caserta and Mikael R Madsen, ‘e Legal Profession in the Era of Digital Capitalism: Disruption or New Dawn?’ (2019) 8(1) Laws 1.

87.

G Meertens, ‘Lawyers “Too Greedy”’, West Australian (4 August 1997) 3.

88.

Frederic S Ury and omas Lyons, Address to the Bar Association Executives and Presidents at the NABE and NCBP meetings in Atlanta, in Board of Governors’ Challenges to the Profession Committee, e New Normal: e Challenges Facing the Legal Profession (State Bar of Wisconsin, 2011) 3.

89.

Australian Productivity Commission, Access to Justice Arrangements: Productivity Commission Inquiry Report No 72 (Commonwealth of Australia, 2014) 2.

90.

William Henderson and Rachel Zahorsky, ‘Law Job Stagnation May Have Started Before the Recession and It May Be a Sign of Lasting Change’ (2011) American Bar Association Journal 1.

91.

Richard Susskind, e End of Lawyers? Rethinking the Nature of Legal Services (Oxford

University Press, revised ed, 2010); Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013); Daniel Susskind and Richard Susskind, ‘e Future of the Professions’ (2018) 162(2) Proceedings of the American Philosophical Society 125. 92.

See, eg, Elena Carpanelli and Nicole Lazzerini (eds), Use and Misuse of New Technologies: Contemporary Challenges in International and European Law (Springer, 2019).

93.

Susskind, e End of Lawyers? Rethinking the Nature of Legal Services, (n 91).

94.

Susskind, Tomorrow’s Lawyers: An Introduction to Your Future, (n 91).

95.

Susskind, (n 91).

96.

Witold Nowiński and Miklós Kozma, ‘How Can Blockchain Technology Disrupt the Existing Business Models?’ (2017) 5(3) Entrepreneurial Business and Economics Review 173.

97.

William D Henderson, ‘A Blueprint for Change’ (2013) 40(2) Pepperdine Law Review 461, 462. See also Richard Susskind and Daniel Susskind, e Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford University Press, 2015).

98.

Anthony Kronman, e Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1993) 1.

99.

Ibid.

100. Ibid 41. See also Robert F Cochran, ‘Lawyers and Virtues: A Review Essay of Mary Ann Glendon’s “A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society” and Anthony T Kronman, “e Lost Lawyer: Failing Ideals of the Legal Profession”’ (1996) 71(4) Notre Dame Law Review 707, 708. 101. Cochran, (n 100) 708. 102. Maryann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (Harvard University Press, 1996) 52–9. 103. Kirby, (n 13). 104. Ari Kaplan, e Evolution of the Legal Profession: A Conversation with the Legal Community’s ought Leaders on the Front Lines of an Industry in Transition (DiscoverReady, 2010). 105. Susan Daicoff, ‘e Future of the Legal Profession’ (2011) 37(1) Monash University Law Review 7, 7. See also Susan Daicoff, ‘On Butlers, Architects, and Lawyers: e Professionalism of “e Remains of the Day” and of “e Fountainhead”’ (2011) 17 Journal of Law, Business and Ethics 23; Susan Daicoff, Lawyer Know yself: A Psychological Analysis of Personality Strengths and Weaknesses (American Psychological Association, 2004) 3–24. 106. Daicoff, ‘e Future of the Legal Profession’, (n 105) 9. 107. Ibid.

108. Ibid 9–10. 109. See, eg, Rashmi Dyal-Chand, ‘Progressive Law, Activism, and Lawyering in an Age of Preemption’ (2021) 46(1) Law & Social Inquiry 252; Anne G Crisp, Joan MacLeod Heminway and Gary B Martin, ‘Business Law and Lawyering in the Wake of COVID19’ (2021) 22(2) Transactions: e Tennessee Journal of Business Law 18. 110. Steven J Harper, e Lawyer Bubble: A Profession in Crisis (Basic Books, 2013). 111. Susskind, (n 91). 112. Susan Daicoff, ‘Asking Leopards to Change eir Spots: Can Lawyers Change? A Critique of Solutions to Professionalism by Reference to Empirically-Derived Attributes’ (1998) 11(3) Georgetown Journal of Legal Ethics 547. 113. Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future, (n 91) xiii. 114. Susskind and Susskind, (n 91) and (n 97). 115. Misa Han, ‘Hourly Billing Causes Stress in Legal Firms’, Australian Financial Review (online) (2 July 2015). See also, eg, Michael Legg, ‘Costs: e Pros and Cons of Different Types of Fee Arrangements’ (2021) 74 LSJ: Law Society of NSW Journal 84. 116. Some rms now offer alternative fee arrangements which involve billing approaches other than the traditional billable hour. See, eg, Jeffrey Carr et al, e Disruptive but Inevitable Move to Alternative Fees, HGExperts.com ; Ilina Rejeva, ‘Alternative Fee Arrangements: a Comprehensive Guide for Law Firms’ on LegalTrek (16 September 2015) . 117. Daicoff, ‘e Future of the Legal Profession’, (n 105) 7. 118. Susskind, (n 91). 119. Amy S Moeves and Scott C Moeves, ‘Two Roads Diverged: A Tale of Technology and Alternative Dispute Resolution’ (2004) 12(3) William and Mary Bill of Rights Journal 843, 844. See also Richard Susskind, Transforming the Law: Essays on Technology, Justice and the Legal Marketplace (Oxford University Press, 2000); Susskind, (n 91). 120. See also Richard Susskind, ‘Hot Topic: Online Justice: e Way of the Future?’ (2020) 63 LSJ: Law Society of NSW Journal 24; Paul Magrath, ‘Coronavirus, the Courts and Case Information’ (2020) 20(3) Legal Information Management 126. 121. See, eg, Rachael Field and James Duffy, ‘Better to Light a Single Candle than to Curse the Darkness: Promoting Law Student Well-being through a First Year Law Subject’ (2012) 12(1) QUT Law and Justice Journal 133; Rachael Field and James Duffy, ‘Law Student Psychological Distress, Alternative Dispute Resolution, and Sweet-Minded, Sweet-Eyed Hope’ (2012) 23(3) Australasian Dispute Resolution Journal 195; Rachael Field and Alpana Roy, ‘A Compulsory Dispute Resolution Capstone Subject: An Important Inclusion in a 21st Century Australian Law Curriculum’ (2017) 27(1) Legal Education Review 73. See also Clark D Cunningham, ‘Should American Law Schools

Continue to Graduate Lawyers Whom Clients Consider Worthless?’ (2011) 70(2) Maryland Law Review 499; Dan Berger and Charles Wild, ‘Enhancing Student Performance and Employability rough the Use of Authentic Assessment Techniques in Extra and Co-Curricular Activities (ECCAs)’ (2017) 51(4) e Law Teacher 428. 122. Geoff Scott et al, Turnaround Leadership for Sustainability in Higher Education (Australian Government, OLT, 2012); Francina Cantatore, ‘e Impact of Pro Bono Law Clinics on Employability and Work Readiness in Law Students’ (2018) 25(1) International Journal of Clinical Legal Education 147; Francina Cantatore et al, ‘A Comparative Study into Legal Education and Graduate Employability Skills in Law Students through Pro Bono Law Clinics’ (2021) 55(3) e Law Teacher 314; Tashfeen Ahmad, ‘Preparing Law Students for the Future of Work, Technology, and Globalization’ (2020) 1(1) Journal of Global Awareness 6. 123. James Duffy and Rachael Field, ‘Why ADR Must Be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-Believer’ (2014) 25(1) Australasian Dispute Resolution Journal 9, 18–19. 124. See the Law Admissions Consultative Committee, (n 8). 125. See Gutman, Fisher and Martens, (n 64); Tom Fisher, Judy Gutman and Erika Martens, ‘Why Teach Alternative Dispute Resolution to Law Students Part 2: An Empirical Survey’ (2007) 17(1/2) Legal Education Review 67. 126. Kathy Douglas, ‘Shaping the Future: e Discourses of ADR and Legal Education’ (2008) 8(1) QUT Law and Justice Journal 118; Kathy Douglas, ‘e Teaching of ADR in Australian Law Schools: Promoting Non-Adversarial Practice in Law’ (2011) 22(1) Australasian Dispute Resolution Journal 1; Kathy Douglas, ‘e Importance of Understanding Different Generations of ADR Practice for Legal Education’ (2012) 23(3) Australasian Dispute Resolution Journal 157. See also Kathy Douglas and Rachael Field, ‘Teaching Non-Adversarial Practice in the First Year of Law: A Proposed Strategy for Addressing High Levels of Psychological Distress in Law Students’ (Paper presented at the 14th Paci c Rim First Year in Higher Education Conference, Fremantle, 28 June 2011). 127. Duffy and Field, (n 123). See also (n 121). 128. Tania Sourdin, ‘Not Teaching ADR in Law Schools? Implications for Law Students, Clients and the ADR Field’ (2012) 23(3) Australasian Dispute Resolution Journal 148. 129. NADRAC, Teaching Alternative Dispute Resolution in Australian Law Schools (Commonwealth of Australia, 2012). See also NADRAC, e Resolve to Resolve: Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Commonwealth of Australia, 2009) 62. 130. Leanne Mezrani, ‘Priestley 11 Should Include ADR’, Lawyers’ Weekly (online) (9 August 2012). 131. See Legal Admissions Consultative Committee, Prescribed Academic Areas of Knowledge (LACC, 2016),

. 132. See Sally Ki, ‘21st Century Climate For Change: Curriculum Design For Quality Learning Engagement in Law’ (2008) 18(1/2) Legal Education Review 1; Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ (2004) 26(4) Sydney Law Review 537; David Weisbrot, ‘What Lawyers Need to Know, What Lawyers Need to be Able to Do: An Australian Experience’ (2001) Journal of the Association of Legal Writing Directors 21; ALRC, Managing Justice Report, Report No 89 (2000); Marlene Le Brun and Richard Johnstone, e Quiet (R)evolution: Improving Student Learning in Law (Lawbook, 1994). 133. Ki, Israel and Field, (n 5). e JD statement of standards, developed by the Australian Learning and Teaching Assistant Deans Network, along with Good Practice Guides for LLB TLOs are currently available at . 134. Former Chief Justice Bathurst of the Supreme Court of New South Wales has said that aware and engaged law graduates make better lawyers: Chief Justice TJ Bathurst, Supreme Court of New South Wales, ‘Legal Education — Does it Make Good Lawyers?’ (Address to Mark the 40th Birthday of Macquarie University Law School) (2012) New South Wales Judicial Scholarship, Article No 42, 6–7. 135. Anna Huggins, ‘Incremental and Inevitable: Contextualising the reshold Learning Outcomes for Law’ (2015) 38(1) UNSW Law Journal 264. 136. Ki, Israel and Field, (n 5). 137. e TLOs for the LLB were endorsed on 22 November 2010, see Ki, Israel and Field, (n 5). e TLOs for the JD program were endorsed by CALD in March 2012. 138. William Twining, ‘Pericles and the Plumber’ in William Twining, Law in Context: Enlarging a Discipline (Oxford University Press, 1997) ch 4. 139. Chief Justice Robert French, ‘Legal Education in Australia — A Never Ending Story’ (Keynote Address to the Australasian Law Teachers’ Association Conference, Brisbane, 4 July 2011). See also, eg, Dennis Pearce et al, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Committee (AGPS, 1987); the ALRC, (n 132); Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (AUTC, 2003); Roy Stuckey et al, Best Practices for Legal Education: A Vision and a Road Map (Clinical Legal Education Association, 2007); William Sullivan et al, Educating Lawyers: Preparation for the Profession of Law (Jossey-Bass, 2007) (the Carnegie Report); Legal Education and Training Review, Setting Standards: e Future of Legal Services Education and Training Regulation in England and Wales, Final Report (LETR, 2013). 140. See, eg, Weisbrot, (n 132), and the ALRC, (n 132) [2.21]. 141. Writing in 2004, Keyes and Johnstone said, ‘[T]here is a great deal of evidence about

what constitutes good teaching in higher education. Almost every aspect of that evidence is at odds with the traditional model of legal education’: Mary Keyes and Richard Johnstone, ‘Changing Legal Education: Rhetoric, Reality, and Prospects for the Future’ (2004) 26(4) Sydney Law Review 537, 547. 142. See LACC, Uniform Admission Rules 2008, sch 1. See also Law Admissions Consultative Committee, A Background to Admission Requirements in Australia (2010) . 143. For a brief history of the Priestley 11, see Field, Duffy and Huggins, (n 6) ch 2. See also James, Field and Walkden-Brown, (n 4) 23. e Priestley 11 subjects include: criminal law and procedure, torts, contracts, property law, equity and trusts, company law, administrative law, federal and state constitutional law, civil dispute resolution, evidence, and professional conduct (including basic trust accounting). 144. In early 2015 the LACC, at the request of the Council of Chief Justices, released a limited Review of Academic Requirements for Admission to the Legal Profession. In the call for submissions to the review LACC noted that: ‘e TLOs re ect the entirely reasonable aspiration that a law student should not only acquire a substantive body of knowledge during a law course (to which the Academic Requirements have so far been primarily directed) but should also acquire the intellectual skills and personal attributes that are necessary to process and deploy that knowledge’, 2. 145. LACC, Discussion Paper Reconciling Academic Requirements and reshold Learning Outcomes (2011) 2. 146. See Weisbrot, Ki and others, (n 132). 147. Weisbrot, (n 132) 48. 148. Stephen Gerst and Gerald Hess, ‘Professional Skills and Values in Legal Education: e GPS Model’ (2009) 43(2) Valparaiso University Law Review 513 reporting on empirical studies of lawyers in Chicago, Minnesota, Montana and Arizona. 149. Field, Duffy and Huggins, (n 6) ch 2. 150. Wellness Network for Law Submission to the LACC Consultation 2015. 151. Australian Productivity Commission, (n 89) 228. 152. Ki, Israel and Field, (n 5). A set of Explanatory Notes and a set of Good Practice Guides accompany the TLOs to assist with their interpretation. e TLOs are also consistent with developments internationally in legal education, as well as the Australian Quali cations Framework: Australian Quali cations Framework (AQF), . For example, the ALRC Managing Justice Report recommended that law schools should ensure that they provide ‘law graduates with the high-level professional skills and values they will need to operate in a dynamic work environment’: ALRC, (n 132) [2.21]. 153. LACC, (n 145).

For example, the TLOs are integrated into the Australian Government’s Higher 154. Education Quality and Regulatory Framework, and act as a benchmark for the sector regulator, the Tertiary Education Quality and Standards Agency (TEQSA), when assessing whether law schools are meeting appropriate educational standards: Nickolas James, ‘Logical, Critical and Creative: Teaching “inking Skills” To Law Students’ (2012) 12(1) QUT Law and Justice Journal 66, 67. 155. Huggins, (n 135) 287. 156. ALRC, (n 132) [2.81]. 157. See also Maxine Evers, Leanne Houston and Paul Redmond, Good Practice Guide (Bachelor of Laws): Ethics and Professional Responsibility (reshold Learning Outcome 2) (ALTC, 2011). 158. Ki, Israel and Field, (n 5) 15. 159. Ibid. 160. Ibid quoting Paul Redmond, ‘e Place of Justice Within Law Programs’ (Document provided to ALTC Law Discipline Scholars for the purposes of TLO Project) 1. 161. See, eg, Rachael Field, James Duffy and Anna Huggins, ‘Supporting Transition to Law School and Student Well-Being: e Role of Professional Legal Identity’ (2013) 4(2) First Year in Higher Education International Journal (online); Field and Duffy, (n 121). 162. Ki, Israel and Field, (n 5) 15. 163. See, eg, Field and Roy, (n 121). 164. Sharon Wesley, Good Practice Guide (Bachelor of Laws): Communication (reshold Learning Outcome 5) (ALTC, 2011) 13. 165. Anna Huggins, Sally Ki and Rachael Field, ‘Implementing the Self-Management reshold Learning Outcome for Law: Some Intentional Design Strategies from the Current Curriculum Toolbox’ (2011) 21(1/2) Legal Education Review 183; Anna Huggins, ‘e reshold Learning Outcome on Self-Management for the Bachelor of Laws Degree: A Proposed Focus for Teaching Strategies in the First Year Law Curriculum’ (2011) 2(2) International Journal of the First Year in Higher Education 23; Judith McNamara, Tina Cockburn and Catherine Campbell, Good Practice Guide (Bachelor of Laws): Re ective Practice (ALTC, 2013). 166. Ki, Israel and Field, (n 5) 23. 167. Ibid. 168. Norm Kelk et al, Courting the Blues: Attitudes Towards Depression in Australian Law Students and Lawyers, (Brain & Mind Research Institute Monograph, 2009) 46–7. 169. Ibid. See also Norm Kelk, Sharon Medlow and Ian Hickie, ‘Distress and Depression Among Australian Law Students: Incidence, Attitudes and the Role of Universities’ (2010) 32(1) Sydney Law Review 113; Andrew Benjamin et al, ‘e Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers’ (1986) 11(2) American Bar Foundation Research Journal 225; Ann L Iijima, ‘Lessons

Learned: Legal Education and Law Student Dysfunction’ (1998) 48 Journal of Legal Education 524. 170. See Rachael Field, James Duffy and Colin James (eds), Promoting Law Student Psychological Well-Being in Australia and Beyond (Ashgate, 2016). See also, eg, Caroline Strevens, Nigel Duncan and Rachael Field, ‘Self-Care as a Professional Virtue for Lawyers’ in Caroline Strevens and Rachael Field (eds), Educating for Well-Being: Positive Professional Identities and Practice (Routledge, 2019) 14; Nigel Duncan, Caroline Strevens and Rachael Field, ‘Resilience and Student Wellbeing in Higher Education’ (2020) 1(1) European Journal of Legal Education 83; Nigel Duncan, Rachael Field and Caroline Strevens, ‘Ethical Imperatives for Legal Educators to Promote Law Student Wellbeing’ (2020) 23(1–2) Legal Ethics 65. 171. Kelk et al, (n 168). 172. Jill Howieson and William Ford, ‘Teaching and Learning Skills: Increasing a Sense of Law School Belongingness’ (Proceedings of the 16th Annual Teaching Learning Forum, Perth, 30 January 2007) . 173. Jill Howieson, ‘ADR Education: Creating Engagement and Increasing Mental WellBeing through an Interactive and Constructive Approach’ (2011) 22(1) Australasian Dispute Resolution Journal 58. On the importance of role-plays in DR pedagogy, see also: Kathy Douglas and Clare Coburn, ‘Students Designing Role-Plays: Building Empathy in Law Students?’ (2009) 2 (1 & 2) Journal of the Australasian Law Teachers Association 55; Kathy Douglas and Belinda Johnson, ‘Legal Education and E-Learning: Online Fishbowl Role-Play as a Learning and Teaching Strategy in Legal Skills Development’ (2010) 17(1) eLaw Journal: Murdoch University Electronic Journal of Law 28; Michele Ruyters, Kathy Douglas and Siew Fang Law, ‘Blended Learning Using Role-Plays, Wikis and Blogs’ (2011) 4(4) Journal of Learning Design 45. 174. Sourdin, (n 128) 148.

[page 33]

Chapter 2 Understanding Con ict and Disputes Chapter contents Introduction The terminology and elements of con ict and disputes The complex nature of con ict and disputes Dispute diagnosis and choice of intervention Managing con ict and disputes constructively Lawyers, lawyering, con ict and disputes Conclusion

2.1 2.4 2.36 2.63 2.68 2.82 2.86

Introduction 2.1 Chapter 1 highlighted the focus in this book on the centrality of con ict and disputes to the business of lawyering. It was noted that DR knowledge and skills are relevant, in different ways, to both transactional and DR lawyering. Greater attention is given in this book, however, to DR lawyering and this chapter is therefore concerned with exploring the complex nature of con ict and disputes.1 [page 34] 2.2 Con ict and disputes are ubiquitous in all forms of social ordering, from the family to the workplace and from neighbourhood centres to international relations. is chapter begins with discussing key concepts and terms. e chapter then considers how con ict and disputes emerge, evolve and transform, how they can be diagnosed and de ned, and how a

diagnostic process assists with choosing the most appropriate processes and interventions for the management, settlement or resolution of a dispute. It is noted how, as disputes enter into the law’s domain, their de nition, scope and extent assume procedural, substantive and remedial signi cance, sometimes at the cost of their original character and meaning being distorted by technical legal concepts, categories and procedures. e chapter concludes with emphasising the centrality of con ict and disputes to legal practice and to the professional purpose of lawyers. 2.3 Needless to say, con ict and disputes are large and complex phenomena, socially and institutionally, and the exploration of their nature in this chapter is far from exhaustive. It is also important to note that many diverse disciplines contribute to the current understanding of these phenomena, and lawyers need to be lifelong learners in terms of continuously developing their appreciation of the elements and dynamics of con ict and disputes throughout their professional careers.

The terminology and elements of con ict and disputes 2.4 All dispute resolution (DR) processes are based on assumptions about the meaning and signi cance of the terminology relating to con ict and disputes. e two key terms themselves — con ict and dispute — are depicted as conceptually different in this book, but in reality, each term is ambiguous, not least because they are oen used inconsistently and sometimes interchangeably. is is an area, among many others, in which a tolerance of ambiguity towards different usages and understandings is required. On the other hand, however, a level of clarity and consistency is necessary for effective and efficient professional DR practice; and common understandings of key terms are helpful, for example, if lawyers are to ful l their responsibilities in ethically advising and advocating for their clients’ best interests in DR contexts. [page 35] 2.5

is section attends to basic terminological questions about con ict

and disputes and indicates how key terms are understood, and how they are used in this book. e proviso is, of course, that meaning is a uid concept, impacted by the intentions of speakers, the perceptions of listeners and the contexts in which meaning is both conveyed and sought.2

The terms ‘con ict’ and ‘dispute’ 2.6 e term con ict denotes situations of tension, stress or friction among different individuals, groups (or even societal entities such as levels of government or countries), accompanied by perceived threats to one or both sides’ interests and goals, but without any speci c presentation of claims or overt activities.3 Adjoining neighbours, for example, might live in a state of con ict over noise, fences or pets, without making any explicit demands of each other. is form of con ict is essentially a situation of lowintensity disharmony or latent hostility. External events, such as a late-night noise disturbance or the need for a new dividing fence, could create conditions for low-level con ict such as this to manifest into a dispute; but a dispute could be averted through ignorance or fear, or if the parties simply decided to live with the tension. If a low-intensity con ict situation evolves and persists, each side may develop rmer views as to how they would like the situation to play out. ey may attempt to impose their understanding of the issues and problems on relevant others, and they may decide to deploy sources of power and in uence at their disposal to achieve outcomes that advantage them. 2.7 Some con ict situations, commonly in interpersonal, family law and couples psychotherapy contexts, are referred to as high con ict.4 ere is a signi cant literature on ‘high con ict situations’;5 however, the notion remains ill de ned, and it is important that ‘high con ict’ is not confused or con ated, in interpersonal relationship contexts, with domestic and family abuse or coercive control.6 High-level con icts are [page 36] characterised by extreme emotions of anger, fear, frustration and sadness,

and desire for revenge, punishment and vindication. High con ict is indicated when, in a couple’s relationship for example, ‘the timing, duration, and intensity of the con ict results in negative effects for the relationship, individual partners, or other family members, most notably children’.7 High con ict behaviours may be associated with con ict-prone individuals, such as narcissists or borderline personalities or those with mental health challenges.8 Whatever their cause, high emotions can invoke counter emotions, and a pattern of escalating dissonance can ensue. 2.8 ese situations present special challenges for DR practitioners, and particularly lawyers, who may not have the sophisticated training required for customised responses in DR situations. Traditional legal education is potentially responsible for training emerging lawyers to feel uncomfortable with emotions and non-legally relevant elements of disputes. An understanding of therapeutic responses to con ict situations is not yet part of the Australian core law curriculum (as was noted about DR content in law schools more generally in Chapter 1). Certainly, without other speci c formal education and training in areas such as therapy and psychology, therapeutic practice falls outside the boundaries of the professional competence of lawyers. Future legal education should at least ensure, however, that lawyers understand the importance of interdisciplinary practice and know how best to use the expertise of non-law DR professionals. In particular, lawyers need to know when it is appropriate to bring in counsellors, psychologists, social workers or therapists, or make referrals to them. As contemporary DR processes, such as mediation, increasingly provide scope for tackling some of the wider con ict circumstances of the parties’ dispute situations and allow for more than simply the strictly legally relevant issues to be addressed, con ict (in contrast to the dispute that manifests from it) does become relevant to the work of lawyers. An understanding of how to work effectively with con ict, therefore, is indeed relevant to the future of lawyering. 2.9 In this work, then, con ict is considered to be a broader and looser notion than a dispute. is distinction has usefully been made over the years in the multiple editions of Gregory Tillett and Brendan French’s work Resolving Con ict.9 To reiterate the de nition, above, con ict is the incompatibility (or perception of incompatibility) in the needs, values or

interests of individuals or groups, whether or not the situation will be actioned.10 A dispute emerges out of con ict situations; or in other words, disputes manifest from con ict. ere can be con ict without a dispute, but disputes tend to [page 37] have their origins in con ict of some kind. Disputes involve concrete action being taken by the relevant parties as they seek to maximise their own needs and interests, possibly at the expense of others.11 e term dispute indicates a situation of greater speci city, intensity and legal relevance than is the case with con ict. Legal disputes, in particular, infer the existence of events or circumstances which are recognised, and can be addressed, by domestic or international legal systems and therefore fall within the remit of the professional practice of lawyers. erefore, in legal contexts, the term dispute is used more frequently than con ict. 2.10 As has already been noted, however, precision of meaning is elusive in this context, and even in this book, the terms con ict and dispute may occasionally substitute for each other. In the international domain,12 for example, if a maritime dispute referred to the International Court of Justice (ICJ) does not resolve and armed hostilities eventuate, this becomes a situation which is commonly referred to as armed ‘con ict’. e same could be said of constitutional disputes in federated countries which result in intra-state ‘con icts’ which may involve clear action, sometimes of a violent nature. On this basis, some of the literature in the international relations and political science disciplines refers to con icts as more extreme kinds of dispute.13 2.11 What is important in the case of legal disputes is that some of the more formal DR processes may miss the opportunity to address aspects of underlying con ict in the way a dispute is handled. For example, as a result of the focus in litigation and arbitration on notions of rights, obligations and liabilities, the broader contextual con ict circumstances of disputes may not be identi ed or addressed. On the other hand, less formal DR processes,

such as mediation and conciliation, can provide DR environments that allow for the recognition of personal and commercial backgrounds, and acknowledge emotions, therefore potentially coming closer to addressing any underlying con ict situations, which may in turn assist with the management or resolution of a speci c dispute. [page 38] 2.12 In legal contexts, the term complaint is sometimes used interchangeably with dispute.14 Complaints are usually associated with consumers or clients alleging wrongdoing or irregular practices by business, government or other service providers. For example, a complaint might be made when a bank includes unexplained fees in a customer’s statement, or a government agency fails to respond to a licence application. Complaints can be managed effectively through the provision of information or explanation, by having a fair process for addressing the complaint, or by the target of the complaint complying with their obligations. Where complaints are ignored, denied or poorly managed, however, a con ict situation could result, which could in turn manifest into a dispute. In terms of overall DR practice in Australia, the management of complaints is a highly signi cant element, particularly in the nancial services and telecommunications sectors.15 In fact, much DR activity involves the management and resolution of complaints, although the overall processing of complaints is perhaps an overlooked aspect of lawyers’ work. 2.13 e term grievance is commonly found in workplace and employment contexts,16 where it is used to refer to allegations of various kinds made by employees against employers, supervisors or other employees.17 e term grievance usually implies that there has been a lack of response, or even resistance, from management — for example, a supervisor has not responded to allegations of victimisation, the HR department has not addressed bullying concerns,18 or there has been a failure in adequate performance

[page 39] management of an employee. Grievances can arise out of con ict situations and could lead to concrete disputes that require DR interventions. us, where an employee brings a grievance claim there could follow a process of investigation, mediation and/or adjudication.19

The participants in con ict and disputes 2.14 How should participants involved in con icts, disputes, complaints, grievances, and so on be referred to? Although again the relevant terminologies are far from exact, it is useful to establish some common ground about key terms. 2.15 Legal systems have long prescribed speci c labels for those engaged in litigation or tribunal proceedings; namely, plaintiffs, applicants or claimants for those prosecuting cases, and defendants or respondents for those resisting or defending them — collectively referred to as litigants. e term parties is used in legal discourse for the participants in a dispute, as in: ‘e expert appraisal involved the following parties: a farmer, the local conservation group, a gas exploration company and the state government’. Other terms sometimes used in adversarial contexts are opponents, rivals, antagonists, the opposition or the other side. ese terms all have connotations of a competitive approach to DR and of winners and losers.20 2.16 In the less formal and less adversarial DR processes, there is a deliberate eschewal of legal terms such as plaintiff and defendant to avoid parties falling into antagonistic legal positions. e original ADR processes attempted to introduce less formal terms, including generic terms or individual rst names. For this reason, reference is sometimes made in DR contexts to disputants as an umbrella term for all those involved in a dispute, but this term may be associated negatively with disputation, rather than with resolution. e term parties, despite its association with litigation and other legal and adversarial processes, is now widely used to refer to disputants in less adversarial DR processes. e term participant is sometimes used to refer to the advisers, experts, witnesses, interpreters and others who play

supporting roles in DR systems. ey could be either partisan participants engaged on behalf of one side, for example lawyers and witnesses, or independent intervenors supporting the overall process, such as mediators and conciliators, or engineers providing non-partisan opinions in adjudication. e term client is less frequently used by mediators and conciliators, as it tends to be monopolised by the legal and other professions. However, a mediator might use this term to acknowledge that the mediating parties are clients not only of their lawyers but also of the mediator, as a result of signing the Agreement to Mediate.21 [page 40]

The intervenors 2.17 In terms of the professionals who become involved in DR processes as advocates or independent intervenors, there are well-established identi ers in the case of formal litigation processes, such as magistrates and judges. In the less formal systems, the designation of the functionary follows from the function: conciliator for conciliation, arbitrators for arbitration, mediator for mediation, and so on. 2.18 In more general discussions of DR processes, it is appropriate to use inclusive terms. e word practitioner, for example, could be used to refer to all the professional people who advise, facilitate and determine disputes. In this book, when it is necessary to generically refer to those engaged in DR endeavours, and speci cally when referring to independent and nonpartisan practitioners, the term intervenor is used as an umbrella concept. is is sometimes necessary, for example, when speci c designations, such as mediator or conciliator, are too narrow or otherwise inappropriate, as in: ‘Most intervenors in DR processes are subject to con dentiality obligations’. e terms intermediary and convenor are also sometimes used to denote an independent non-partisan intervenor.22 2.19 Lawyers are, of course, engaged extensively in DR processes, normally as partisan advisers, negotiators, advocates and representatives with the role and responsibility of ethically advancing their client’s cause.

Lawyers can also assume roles as independent non-partisan intervenors, when they act, for example, as mediators, case appraisers or arbitrators. In these situations, very different skill sets are required compared with advisory and partisan advocacy roles. It goes without saying that lawyers also become the judges who manage and adjudicate disputes in formal justice systems, but while lawyers predominate in tribunals, industrial commissions and other decision-making agencies, members of other professions and backgrounds can also be intervenors in these bodies.23

DR process outcomes 2.20 e term outcome is used to refer generically to the actual or likely result of DR processes. Dispute outcomes fall on a spectrum of informal to formal. For example, an informal outcome could take the form of an oral agreement between two individuals, accompanied by a handshake. A formal outcome might have legal weight and enforceability, such as a deed of settlement draed by lawyers and signed by the parties; or consent orders made by a court. In situations of armed interstate con ict, a formal outcome could consist of a negotiated truce with a commitment to cease hostilities. [page 41] 2.21 In this book, the term settlement is used to refer to situations in which disputing parties assent to speci c outcomes through processes such as negotiation or mediation rather than having outcomes imposed on them. However, the term does not necessarily indicate deep psychological acceptance, emotional commitment or even sincere acquiescence on the part of respective parties; settlement is an outcome, but it does not always denote full ‘resolution’.24 For this reason, there may be legacies of antagonism, bitterness or resentment aer settlements have been reached, or some issues may remain unresolved and become the subject of continued disputation. For example, negotiated or conciliated outcomes in personal injuries or workers’ compensation cases may involve parties making reluctant compromises resulting in settlements, despite one or more parties

feeling their formal consent was induced by the force of circumstances, such as employment needs or rehabilitation imperatives, and settlement was the only way of attaining them.25 With a settlement of this nature, the actual con ict may continue to lie dormant, with risks of future disputes arising.26 e term settlement, with this circumscribed connotation, is used regularly in legal contexts, as in: ‘e corporations settled their dispute pragmatically at the door of the court just before the trial was due to commence’. 2.22 Accommodation refers to arrangements in which parties in continuing personal, business or organisational relationships make pragmatic commitments to discontinue their con ict and get along with one another by keeping the peace between them.27 It denotes something more than a grudging settlement but signi cantly less than resolution, as in: ‘e rms agreed through negotiation to accommodate each other’s contrasting public relations styles for the duration of their joint venture project’. e term is used occasionally in this text with the meaning described here.28 2.23 e term resolution, in contrast to settlement or accommodation, implies that the parties have come to a deeper level of acceptance of outcomes in that they have [page 42] not only formally consented to them but also consider the underlying issues, and potentially the original con ict, as having been adequately addressed and nalised, as in: ‘e children’s parents were able to obtain closure aer resolution of their differences through counselling followed by mediation’. Both negotiation and conciliation can produce resolutions along these lines, although they may also lead to narrow settlement outcomes.29 2.24 Courts and tribunals do not, in the above senses, ‘settle’ or ‘resolve’ disputes, they adjudicate and make determinations, although there is sometimes loose reference to courts’ involvement in the resolution or settlement of cases.30 Moreover, as the roles of courts and tribunals develop and change, new terms are being introduced such as judicial dispute resolution (JDR), which refers to mediation, conciliation or settlement

functions of judges as opposed to their traditional determinative roles.31 Outside the JDR context, however, reference is not made to courts resolving disputes; instead, reference is made to courts determining or adjudicating the legal disputes before them. 2.25 e term determination refers to the nal authoritative decisions, and to the outcomes, of adjudicative or determinative processes. e concept infers that it is the intervenor who is responsible for the outcome from the relevant DR process, unlike in mediation and facilitation in which intervenors lack authority to make binding decisions for the parties. Processes such as litigation, arbitration and adjudication culminate in determinations, which authoritatively nalise respective issues through imposed decisions, regardless of whether the parties subjectively accept that their differences have been resolved. Determination is a generic term which embraces the [page 43] judgments of courts,32 the awards of arbitrators and the adjudications of adjudicators, in all of which the law is applied to ascertained facts.33 In the World Trade Organization, the DR Panels and Appellate Body, which function very much like courts, also make determinations in trade-related disputes but their outcomes are referred to as reports and not judgments.34 2.26 Reconciliation, in the con ict context, implies that parties have not only resolved their issues and underlying con ict in a deep sense, but have come to understandings of and tolerance for other parties, as in: ‘e business partners were fully reconciled as a result of the facilitation, and they committed to starting afresh and working together collaboratively in their partnership’.35 Reconciliation between two persons is associated with processes such as counselling and therapy and it might involve appropriate apologies, restitution and commitments to future conduct. It is not necessarily a direct goal of DR processes per se, but it could be an indirect outcome of a DR process, particularly of processes such as negotiation and mediation. An organisational mediation, for example, even without a

therapeutic focus might still lead to the parties developing new attitudes towards each other as a result of the facilitated communications between them. In restorative justice processes, such as victim–offender mediation, there is oen a more explicit objective of achieving reconciliation between victims and offenders and among their respective families and support groups.36 2.27 It was mentioned above that lawyers may, in some circumstances, need to consider whether it is appropriate for clients to engage in counselling or therapy of some sort before, or while, they guide them through a DR process. Again, this is something to which legal education and Continuing Professional Development training could attend so that lawyers can, within the bounds of their competence, intentionally and proactively make appropriate referrals. For example, in parenting disputes it might be appropriate for both parties to have attended counselling rst, before coming to [page 44] mandatory family dispute resolution (FDR) processes — a principle which is built into some specialised FDR systems.37

Understanding con ict and disputes: additional important terms and conceptual elements 2.28 Prevention is another important conceptual element in the context of con ict and disputes.38 e DR matrix, discussed in Chapter 3, uses the term prevention to refer to strategies and systems designed to avoid disputes from emerging from con ict circumstances. Prevention in this context does not denote suppressing or ignoring con ict situations, but rather taking proactive steps to prevent them escalating into disputes.39 Preventative mechanisms could involve contractual arrangements, such as couples entering pre-nuptial agreements designed to avoid disputes over property distribution in the event of their separating. Prevention measures could include procedures designed for ongoing monitoring and evaluation of

performance within an organisation, or in a building project to provide early warnings about potential con icts. Dispute boards, partnering systems, counselling and DR clauses in contracts all have preventative dimensions. Preventative measures should be less costly in nancial and relational terms than con ict management processes deployed aer disputes have emerged. 2.29 e term con ict management is used in this book in two ways.40 First, it is a generic term embracing all forms of dispute resolution, prevention and accommodation in different settings, as in: ‘Most tertiary educational institutions have byzantine con ict management systems’. In a particular industry sector or within a large employer, a con ict management system could employ several speci c DR systems, such as negotiation, factnding, mediation and adjudication. In this sense, con ict management is used in similar ways to the generic term dispute resolution to cover a coterie of speci c processes. e second meaning of con ict management has the connotation of parties developing protocols for enduring con ict situations where settlements or resolutions are not likely to ensue, but the parties need to keep them within bounds, to prevent escalation and to avoid costly hostilities. In this sense, con ict management denotes pragmatic accommodations, as discussed above, in the face of endemic con ict potential and it can be contrasted with resolution, settlement and determination. Managers and leaders [page 45] of political parties, for example, might perceive themselves as permanent con ict managers because in their respective domains con ict seems to have no end. 2.30 Having a generic term to hand is helpful for referring collectively to the array of DR options that are included in the DR matrix: see Chapter 3. e term process is used most oen in the remaining chapters of this book, but sometimes other terms such as system, method, approach or procedure may be used. 2.31

Another important conceptual distinction when thinking about

con ict and disputes is whether they are intra-personal or interpersonal. Intra-personal con ict involves an individual being internally con icted about a difficult decision; for example, whether they should accept a particular job offer, or whether they should move cities or countries. In such situations, the emotional dimensions of the question being considered can be heightened and exacerbated as the individual ‘negotiates’ with themselves over which course of action to take.41 While this form of con ict may at rst appear to have little signi cance for legal or DR contexts, individuals in a range of DR processes may nd themselves internally con icted over difficult decisions, such as whether to compromise or settle. Intra-personal con ict may work as a barrier to con dent, logical decision-making, which may in turn hamper achievement of settlement or resolution.42 Awareness and recognition of this phenomenon can enable lawyers to refer clients to external sources of skilled help before engaging in, or during, a DR process. 2.32 Interpersonal con ict, on the other hand, is where two or more individuals are involved in con ict and/or a dispute.43 Interpersonal con ict is an everyday occurrence in all facets and aspects of life and society — from families, workplaces and businesses, to nation states.44 Where it occurs within organisations it can be designated intra-organisational con ict, as where there is tension between a chief executive and her board [page 46] of governance.45 Con icts between corporations and organisations are named inter-institutional con ict, and those among nation states and groupings of states are known as international con ict. ere can be two individuals or institutions in all these con ict situations (bilateral con icts) or three or many more entities (multi-party con icts). 2.33 Perceptions and subjectivity are important conceptual factors in con ict.46 Con ict situations with the potential to turn into concrete disputes may not do so because they exist only in the perception of one or both parties and not in actual reality — for example, two employees perceive themselves to be competitive rivals for one position whereas neither is

realistically in line for it. is can be referred to as pseudo con ict in which parties’ perceptions or expectations are false or based on incorrect information or fears or unjusti ed apprehensions, and correction of the errors through accurate information or explanation will resolve the situation. False con icts are based on stereotypes about others in terms of their personal or group attributes, for example about management or unions, or about refugees and security officials, and these can be accentuated by continuing ignorance or withholding of information, or by rumours, con rmation biases and wilful blindness.47 ere may be little basis to the con ict in reality but it is played out by one or more parties as if there was. 2.34 Finally, meta-con icts are con icts about con icts: an original con ict between two parties can give rise to further layers of con ict as the disputants and their advisers use threats, aggression and delays, with the tactics themselves becoming additional sources of con ict.48 DR systems such as litigation are prone to giving rise to meta-con icts. [page 47] 2.35 is discussion of the terminological aspects of con ict and disputes should not be considered a glossary of DR jargonistic terms. e use of consistent language with commonly understood meaning is an important aspect of any professional eld, not least the DR eld. is is because clarity of terminology impacts professional communications, and affects parties’ understandings, perceptions and behaviours. e ability to achieve clarity and consistency of understanding in communications in DR contexts contributes to the efficacy of DR practice and theory. ere are, inevitably, limitations to taxonomies of this nature, as exact precision with terms and concepts is always elusive, and some terms and concepts inevitably need more explanation than others. However, the DR terminology and concepts discussed in this section assist with having some baseline labels for beginning to understand and make sense of the complexities of con ict and disputes. In the context of this book, this is seen as particularly important for the competence and expertise of modern lawyers, and their ability to ethically advise, educate and advocate for their clients.

The complex nature of con ict and disputes 2.36 An expertise in DR, as is required by contemporary lawyering, calls not only for an understanding of the terms and concepts in the eld, but also for an appreciation of the complex nature of con ict and disputes, to which this chapter now turns its attention.

Understanding the complex dimensions of con ict and disputes 2.37 Many disciplines investigate, research and analyse the nature and dimensions of con ict and disputes, from anthropology to sociology, and from psychology to political science.49 e complex dimensions of con ict and disputes are not, however, topics afforded signi cant attention within the traditions of law and legal practice. is is cause for surprise since a major part of law’s project involves dealing with con ict and disputes and their consequences, and there is signi cance in how legal events and interventions themselves impact on their scope, intensity and manageability. Con ict, and even more so, disputes are unquestionably the business of law, and a deep understanding of their complex dimensions should be a part of every legal professional’s expertise. 2.38 e non-legal disciplines inform us that con ict and disputes are natural and everyday phenomena, encountered in homes, communities, boardrooms, parliaments and war zones throughout the world. ey are played out vicariously in the news media, in television, theatre and computer games, and they are not absent from non-human animals’ behaviours as well.50 Whether between individuals, corporations or nation [page 48] states, con ict and disputes all involve some level of incompatibility among the parties involved, whether over values, objectives, resources, strategies, perceptions, priorities or other inconsistent preferences. e incompatibilities can lead to disagreement and disagreement can lead to

tension which may then manifest as some kind of struggle, where each side pursues its own preferences in ways not acceptable to the other. 2.39 Con ict and disputes are bound up in the complexities of the human experience. ey are rarely static in nature, as they are impacted by uctuating internal dynamics and external environmental pressures. Con ict may commence as underlying feelings of uncertainty and unease which may then escalate into something more overt and signi cant. Undisclosed covert con ict could indeed endure for years in a relatively static state, until a precipitating event elevates it to overt con ict and a potential dispute. 2.40 e de nitive DNA of con ict remains unknown; however, there is increasing knowledge and understanding about the phenomenon.51 In particular, three potential aspects to any con ict are oen acknowledged: the cognitive, the emotional and the behavioural.52 e cognitive aspect of con ict involves the perceptions, beliefs and understandings of those in con ict. e parties could have a range of subjective perceptions that their needs are not being met because of the incompatible and unreasonable activities of others. e emotional dimension involves the subjective feelings of people in con ict situations, including those directed at others involved. Both the cognitive and emotional facets of con ict might not be known to others if they are suppressed and not articulated by the party experiencing them. is is not the case with the third dimension, the behavioural, which concerns the external and observable actions which parties in con ict take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met — that is, elevating the con ict state into an overt dispute. 2.41 ese three dimensions of con ict and disputes do not necessarily coincide with one another. For example, a small business owner may have negative perceptions (cognitive) about a breach of a supply agreement by a particular supplier, but they may choose to withdraw from the situation (behaviour) and suppress their feelings of injustice (emotion). Alternatively, the small business owner might proactively negotiate for the implementation of the terms of the agreement (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience

prolonged anger towards the supplier (emotion). Some DR processes, such as arbitration and litigation, attempt to modify parties’ behaviours by getting them to commit to speci c outcomes (behaviour) without attempting to change their perceptions (cognitive) [page 49] about the con ict situation or to ameliorate negative feelings regarding the other party and themselves (emotions), for example by moving from anger to an acceptance of new realities.53 Processes, such as facilitation and mediation, attempt, in varying degrees, to deal with all three dimensions of con ict.54 2.42 e emotional and psychological dimensions of con ict are related to the grieving process that humans experience aer a signi cant loss.55 Such emotions can include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion. e grief and loss process may have to be managed before a particular party is ready to participate in a DR process. Once a person has reached the ‘acceptance’ stage of the grieving process they are usually in a better position to create new meanings for their lives, and to participate authentically in DR processes.56 2.43 ese aspects of the complex nature of con ict and disputes emphasise the need for lawyers to have the competence to know when referrals to other professional help are needed to assist with the resolution of a legal matter. ey also provide some insights into what particular DR processes might be appropriate for responding to a client’s needs. Some processes, such as formal determinative processes, may be better suited to dealing with substantive needs, such as payment of money or affirmation of intellectual property rights, as the third-party intervenors in such processes have the authority to force one or both parties to do something on their instruction. Some DR processes, mediation for example, can deal better with the psychological and emotional factors of con ict and disputes (such as shock, anger or frustration) by providing procedural steps which convey respect and dignity, and by supporting productive avenues of

communication and the maintenance of ongoing relationships. e law has traditionally been inclined to focus on the substantive and procedural needs of clients, but many of the processes in the contemporary DR matrix provide opportunities to also engage with the psychological and emotional dimensions. e future of lawyering therefore requires lawyers to have a depth of competence in DR practice that includes an appreciation of the complexities of the nature of con ict and disputes discussed in this chapter. [page 50]

Positions and interests in disputes 2.44 e terms positions and interests are important concepts in DR contexts, and are part of the complex nature of con ict and disputes.57 Positions refer to what people claim they want, their expressed objectives, which are oen articulated in quantitative terms, such as a monetary gure. Another way to identify a party’s position is to consider their ultimate goal or desired outcome, or in other words, what they want. Positions are encapsulated in letters of demand, pleadings, submissions and other legalised DR constructs. e term interests refers to the reasons why someone is putting forward and justifying their positions, objectives or desired outcomes. at is, an underlying interest relates to why a party wants something. Interests include factors such as personal security, reputation or a need for acknowledgment, as well as experiential and emotional factors that are not always legally relevant but could be central to nding a way to resolve or manage a dispute. 2.45 Where negotiations and other DR processes focus only on stated positions, and overlook the parties’ different underlying interests, the parties’ positions can become entrenched and a stalemate can result. On the other hand, the identi cation of underlying interests, and why the parties have the positions they do, is conducive to nding and generating additional options for resolution. is is because there is oen more than one way to address an underlying interest, and further, while the parties may have stated positions, they may value various elements of those positions

differently. In addition, parties may discover that they share certain interests, or that several needs and interests can be satis ed without causing any loss or disadvantage to the other side. e more that proposed solutions satisfy signi cant aspects of the parties’ interests, the more acceptable and enduring they are likely to be.58

Cognitive and social biases in con ict 2.46 Cognitive and social biases add a further dimension of complexity to an understanding of con ict and disputes. is is because these biases, and other heuristics, play out in, and are motivated by, the unconscious brain, affecting a person’s behaviours, emotions and cognition, as well as their decision-making, without their conscious awareness that this is happening.59 Not only does the biased person have [page 51] no consciousness of the bias, but the other side and any intervenors involved are also unaware of the bias and its potential impact. To the bewilderment of all involved, the presence of an unconscious bias can contribute to the escalation of a con ict or jeopardise its settlement or resolution by detracting from the deliberative and re ective efforts required for the constructive decision-making that is needed to resolve disputes. 2.47 ere are many cognitive biases and heuristics, one of which is the con rmation bias.60 is bias involves disputants being selective in how they construe the facts, the evidence and the legal arguments in a con ict situation. ey do this by accepting and emphasising only those factors that are most salient for them, and that reinforce their preconceived views on the merits of their case and its appropriate resolution. e bias also works in terms of overlooking or marginalising any factors that are unsupportive of, or detrimental to, their views. In simple terms, people see what they want to see, automatically interpreting events and information in ways that support pre-existing beliefs.61 e domestic chores conundrum provides an illustration of con rmation bias in action. When each member of a

household is asked how much housework they do, the estimated contributions, even when people are estimating in good faith, oen result in a cumulative housework total in excess of 100 per cent. is is because each person is mindful of their own contributions and less conscious of the contributions of others and wants to believe that they do more than they do. 2.48 Related to the con rmation bias is the fundamental attribution error.62 is denotes that parties in con ict are inclined to attribute the other side’s conduct [page 52] predominantly to their faulty character or personality with a lesser attribution to the circumstances in which they acted (say 80 per cent to 20 per cent). However, in relation to their own conduct, converse estimations apply, with substantial attribution to external circumstances having caused particular events and only a minor amount attributed to their own culpability or fault (say 20 per cent to 80 per cent). When these biases in uence how parties recall historical events, make judgmental statements and otherwise conduct themselves in a DR context they can contribute signi cantly to a dispute’s escalation, cause a loss of trust and/or result in allegations of a lack of objectivity. Other important biases, such as loss aversion, the endowment effect and prospect theory, are also relevant to DR, but are beyond the scope of this chapter.63 2.49 Cognitive biases cause parties to understand and respond to con ict and disputes inaccurately, exacerbating problem situations. For example, many claimants in legal disputes are affected by the bias of optimistic overcon dence through which they overestimate their chances of success in litigation or arbitration. Even when told they have only a 25:75 prospect of success versus failure, many will assume that their superior capabilities will enable them to beat the odds and end up in the statistically unlikely 25 per cent category.64 e optimistic bias is reinforced by both the con rmation bias and the fundamental attribution error. 2.50

Understanding the many cognitive and social biases in human

decision-making constitutes part of the new knowledge base required of practitioners involved in DR systems and also of lawyers in their DR role. Fortunately, the ‘irrationalities’ that permeate human decision-making are, to some extent, predictable and can therefore be understood and managed by those active in the eld.65

Escalation and de-escalation of con ict and disputes 2.51 A further complexity of con ict and disputes arises because they are rarely static in nature and can escalate or de-escalate over time. Yesterday’s con ict can appear different today, and today’s dispute could be very different tomorrow. In this section, the concept of con ict or dispute escalation refers to changes in the nature, scope and intensity of a con ict that render it more complex, more intense and more difficult to [page 53] manage.66 Escalation causes parties’ attitudes and behaviours to become less rational and more reactive, reinforced by their cognitive and social biases, and communication becomes more about, and less directly with, the other party. Con ict and dispute de-escalation refers to converse situations in which matters are rendered less intense, acute and complex.67 2.52 Innumerable events can contribute to the escalation phenomenon: for example, calling the police, despatching a letter of demand, ling legal proceedings, issuing a bankruptcy notice or harnessing social media. In relation to complaints investigation, a lack of independence in the investigation process has been found to cause dissatisfaction and escalate con ict; and ineffective communication between the parties involved has also been found to escalate con ict. Conversely, de-escalation can occur through acknowledgment of past events, statements of regret, apologies, admissions of liability or commitments to a DR process proposed by the other side.68 2.53

e escalation and de-escalation of con ict and disputes are affected

by changes in the perceptions, attitudes and behaviours of one or both parties as they come to assess their risks differently, and re-commit, modify or discontinue their commitment to con ictual behaviour. ere can also be uctuations in the life cycle of con ict and disputes as parties themselves experience ambiguity, intra-psychic tension and indecision,69 and their attitudes and behaviours towards others vacillate between collaboration and competition and between cooperation and adversarial contestation. Where a speci c con ict is located on the escalatory or de-escalatory trajectory has implications for the ease or difficulty of its management and resolution.70 [page 54] 2.54 Lawyer interventions can play a particularly signi cant role in modifying and transforming con ict and disputes, with potentially escalating or de-escalating impacts. For example, if a lawyer sends a letter that is legalistic and adversarial in its tone it may well cause anxiety in the receiver and an equal and opposite response from their lawyer by way of ‘counter-attack’ with counter-claims. Escalatory in uences can also result if lawyers are focused only on factors of legal relevance and ignore the complex dimensions of con ict and disputes that fall outside this category, as discussed above. Further, lawyers commonly, understandably, reframe the language of dispute situations into legalistic concepts and categories, such as ‘evidence’, ‘liability’ and ‘damages’, which may have an escalation effect. e processing of disputes through the legal system can itself further escalate disputes by nudging them down an adversarial path. Increasingly, however, lawyers are advising clients as early as practicable on ways of resolving disputes without commencing legal action.71 2.55 It is not only actions by disputants and lawyers that reshape and transform con ict and disputes; external players are also crucial participants in supporting their de-escalation or igniting their escalation. Partisan supporters can augment the numbers and resources on either side; while non-partisan intervenors, such as law enforcement agencies and tribunals, can also change the shape and increase the intensity of con ict. As disputes escalate through the interventions of multiple parties, they become prone to

‘issue proliferation’ as sub-issues are added to the original con ict situation. However, con ict and disputes can also de-escalate through disputants’ and outsiders’ constructive conduct.

Power, con ict and disputes 2.56 e notion of power is another complexifying factor in understanding the different dimensions of con ict and disputes. Issues of power impact all DR systems, as it is reasonable to expect that more powerful parties are likely to have greater in uence on outcomes than those who are less powerful.72 Understanding how power translates into in uence and how it impacts outcomes in DR contexts is, however, a difficult and sometimes contradictory process.73 2.57 On the face of it, power denotes the ability or capacity of an individual, an organisation or a state to assert its in uence, interests or rights in respect of those with whom it is in dispute. Ostensible power imbalances come in many forms and sizes because power has many facets which manifest in different situations. Power is oen spoken about in onedimensional terms, as if a person, business or state either has or [page 55] does not have power. However, in reality it is a more nuanced, complex and situational factor than might at rst be apparent. 2.58 e rst thing to notice about power in DR contexts is that it derives from many sources. For example, among others, it derives from status and reputation, from personal attributes, from money and other resources, from institutional affiliations and alliances, from reputational needs and moral imperatives, and from the legal merits of a situation. e fact that power emanates from different sources suggests that all parties in dispute are likely to have some power resources at their disposal. Power can even arise in the form of ‘nuisance’ power or the power to in ict discomfort. 2.59

It is important to acknowledge that the actual assertion of power is

almost always conditioned by non-power factors. An apparently more powerful party may be reluctant to assert its full prospective power, for example, out of reputational, reprisal or other concerns. Conversely, an ostensibly weaker party may have signi cant in uence in DR settings through its ability to claim a moral high ground or as a result of having ‘little to lose’. 2.60 Power is therefore not something that is ‘possessed’; rather, it is something which takes on its nature and signi cance from the relevant context and circumstances. Moreover, the power of a participant in DR is always relative to that of signi cant others; and the relativity of power relations is impacted by the perceptions of the relevant parties. For example, a stronger party with signi cant sources of in uence at their disposal may still subjectively perceive themselves as being disempowered in a particular environment. Conversely, a party who is weaker on many dimensions of power may conduct themselves with such authority and charisma in a negotiation that others perceive them to be extremely powerful operators. 2.61 Concerns about power arise in relation to all categories of con ict and DR processes, as they do in relation to other social arrangements such as the economy or politics. However, while the concept of power is essentially an abstract notion, it can introduce signi cant challenges and ethical conundrums.74 For example, access, or lack of access, to information is a critical determinant of power in DR processes; power differentials challenge the theory of disputants’ relative autonomy, and the use of power by one party over another may impact the just resolution of a matter and produce nal outcomes that are inappropriate or unfair. 2.62 Ultimately, no DR process can completely eradicate power differentials by upsizing the power of weaker parties and downsizing that of the stronger. Asymmetrical power relations are a fact of life in all spheres of society, including in all DR systems, although applying in different ways. Power differentials can be addressed to some extent in all DR processes, but it cannot be expected that any process will achieve this [page 56]

comprehensively and de nitively. Part II of the book discusses power considerations in the contexts of speci c DR processes.

Dispute diagnosis and choice of intervention Dispute diagnosis 2.63 Professional DR requires appropriate interventions in con ict and dispute situations, whether by individuals themselves, by relevant professionals or by specialist agencies. e analysis in the preceding section suggests that the exact types of interventions should ideally be predicated on understandings of the particular dimensions of the con ict or dispute so that they are appropriate for the circumstances. Diagnosis should therefore precede any action, with the diagnostic function providing an understanding of the relevant history, circumstances and complexities of a dispute as a basis for indicating what DR processes might be most appropriate for the particular situation. Of course, any diagnosis can only really be tentative in nature and may have to be revised in the light of new information or the trial, error and review of speci c interventions. However, even a provisional diagnosis is useful for DR practitioners and their clients. 2.64 ere are many perspectives on the causes and sources of con ict and disputes, ranging from societal factors to innate features of human nature. Powerful sociological and political forces produce con ict and disputes of varying intensity. Evolutionary biology highlights the sometimes violent con icts among individuals, species and groups that make up the struggle for survival.75 ese societal, environmental and psychological factors operate at the ‘macro-level’ of con ict, and may seem remote from the pragmatic work of con ict management and dispute resolution; but they are very relevant to the work of DR professionals. 2.65 A diagnosis as to the most appropriate intervention for a dispute must be intentionally based on a hypothesis about the dispute’s speci c cause and nature. It should not involve guesswork or random selection. Christopher Moore has famously identi ed eight primary sources of con ict and dispute, or as he also names them, ‘opportunities for collaboration’.76 ese sources include: history and relationships; information; procedures;

power and in uence; structural factors; beliefs, values and attitudes; communications; and emotions. ese diverse sources indicate a range of con ict and dispute causes from ‘matters of principle’ to more tangible factors. Building on Moore’s causes of con ict, and on Mayer’s work,77 Table 2.1 below offers the following con ict categories, that is, key areas in which parties nd themselves in [page 57] dispute: goals and objectives; information, data and facts; communication; resources; structural issues; relationship and emotional issues; and values and principles. e table also indicates the causes of con ict in these areas and possible interventions. e table can be used to hypothesise about a dispute’s cause and nature and thus inform a diagnosis of an appropriate intervention. It should be noted, however, that many disputes have multiple causes and require multiple interventions; and, further, that the streaming of disputes into appropriate DR processes, while requiring a structured analytical approach, is also an imprecise practice.78 Table 2.1 — Con ict diagnosis and intervention Con ict Category

Causes of Con ict

Possible Interventions

Goals/Objectives

Neither party can achieve their different goals and objectives without agreement or compliance from the other.

Emphasise interdependence. Focus on common goals. Stress consequences of nonsettlement.

Information/Data/Facts

Figures, data, documents or other information are incomplete, incorrect or differently interpreted.

Find, correct, supplement data and information. Develop objective criteria to evaluate information. Use mutually agreed expert to interpret data.

Communication

Written or verbal communications are unclear, ambiguous, incomplete, misunderstood, mis led or not answered.

Clarify past miscommunications. Ensure present communications are accurate and comprehensive. Adopt constructive communication techniques.

Resources

Competition over xed amounts of money, goods, services, time or rivalry over other matters of substantive value.

Attempt to expand resources. Emphasise mutual interests. Develop trade-offs and integrative solutions.

Structural issues

Unequal access to authority, information, resources, experts, advisers, time and other sources of power, leading to a sense of relative deprivation.

Identify and emphasise different sources of power. Ensure fair decision-making processes. Engage higher level authorities in DR process.

[page 58] Con ict Category

Causes of Con ict

Possible Interventions

Relationship/Emotional

Patterns of negative feelings and behaviour, untreated emotions, loss and the grieving process, negative stereotypes, personality or psychological factors, social and cognitive biases, personality disorders.

Acknowledge and validate emotions. Avoid negativity through stringent process control. Make external referrals for skilled help. Deal rst with relationship and emotional factors.

Values/Principles

Competing ideologies, worldviews, religious and

Focus on tangible matters. Search for overarching goals.

cultural values, political beliefs, basic life assumptions.

Agree to disagree, live and let live.

Identifying the issues in dispute 2.66 Another important aspect of dispute diagnosis that informs choices about interventions is the identi cation of the key issues in dispute. is is an important professional judgment for lawyers and DR professionals to assist the parties with, because the parties themselves might not be able to clearly perceive what the pertinent issues are, or may view them in simplistic or one-sided terms. Poor communication, the fundamental attribution error and con rmation bias may further distort perspectives of the dispute, as will untested assumptions about the other side’s position or what they are prepared to concede. For this reason, a dispute diagnosis should be informed by a thorough investigation of the dispute circumstances, with attention paid to ensuring that not only the positional issues, but also the underlying interests (as discussed above), are identi ed. 2.67 Once the issues in dispute have been appropriately identi ed, it becomes possible to prioritise them in terms of their relative importance to the parties, as well as in terms of those issues that require more immediate attention, and others that can be dealt with later. Sometimes it can be motivating for the parties to deal with relatively ‘easy’ issues rst on the basis that success in those matters provides encouragement and a positive foundation for addressing more difficult concerns.

Managing con ict and disputes constructively 2.68 For a variety of reasons, humans commonly consider con ict and disputes to be negative phenomena and oen deal with them in unconstructive and unproductive ways. DR theory, however, conceives of con ict less negatively and considers it more as a fact of life which, if handled constructively, can have bene ts for the parties and their future personal or business relationships.79 Con ict can provide opportunities, [page 59]

for example, for re ection and review, for restoration and renewal of personal and commercial ties, for new forms of organisational structure, and for commitments to renegotiated commercial enterprises and revitalised interpersonal plans for the future.80 At the societal level, con ict can lead to positive social, political and constitutional change by replacing past policies and practices with those more suited to the present and future. It can, potentially, lead to commitments to both individual and systemic changes. At the individual level, those engaged in constructive con ict management processes can receive acknowledgment and validation, come to appreciate the ambiguity and contingency of their positions and proposed solutions, and learn relevant lessons for application in other disputes.81 2.69 DR processes, particularly those other than litigation, can provide structures and procedures through which disputes can, potentially, be expressed, addressed and constructively managed, even if not fully resolved.82 DR intervenors can give the parties ‘permission’ to express their con ict and the emotions arising from it, rather than suppressing them. e catharsis of expressed and acknowledged feelings may indeed be what is necessary for disputants to reach agreed settlements. However, where disputes are not managed constructively, or worse are managed inappropriately, their processing can lead to an escalation of the dispute and potentially signi cant consequences for the parties. For this reason, the need for lawyers to understand con ict, and to become more skilled at managing disputes, is emphasised. 2.70 Many individuals attempt to manage their own con icts, perhaps with assistance from friends, internet resources or other forms of guidance. is has led to the emergence of a supportive professional industry for selfhelp approaches, particularly in employment contexts, which is referred to as con ict coaching, discussed further in Chapters 3 and 4. ere are different models of con ict coaching but generally coaches assist parties to evaluate their circumstances, enhance their capacity and competencies and enable them to make their own decisions. [page 60]

Effective con ict and dispute management 2.71 Since its inception, the DR movement has emphasised the need to identify and measure the effectiveness of DR processes, particularly processes other than litigation. is is a deeper question than simply whether an outcome was reached for the dispute. As indicated above, the notion of settlement has a one-dimensional quantitative focus on an outcome, which does not take account of the quality of the procedures that were followed, the fairness of their settlements, or the extent to which outcomes were complied with and endured over time. e singular approach to effectiveness also overlooks qualitative features of DR processes such as practitioner competence, user satisfaction, relationship enhancement and ‘lessons learned’ by participating parties for their future bene t. 2.72 Drawing on the earlier analysis of this chapter, a number of criteria for assessing the effectiveness of dispute management approaches emerge. ese include: the disclosure, identi cation and acknowledgment of parties’ concerns, interests and priorities; opportunities for parties to express their stories, to be heard, and to feel that they have been listened to; the supervised expression of parties’ feelings in a safe environment, and a lowering of hostility and antagonism between them; more comprehensive and accurate de nition of what is in dispute, and identi cation of what is not disputed; agreement on agenda items for the relevant DR process and an order of priority for dealing with multiple issues; agreement on documents, data or other information required for DR, and on the exchange of information between different parties within stipulated time periods; identi cation of the signi cance and potential role of external stakeholders in the dispute, such as company boards, government officials, professional advisers or family relatives; agreement on procedures or experts for assistance on technical or

specialist issues, for example through fact- nding, independent valuations or counselling interventions; and the modelling of constructive problem-solving procedures and techniques for use by parties in subsequent disputes. 2.73 It is because of these potential bene ts that the DR movement regards constructive con ict management procedures and techniques as ends in themselves, and not only as vehicles for achieving settlements or other outcomes. Processes such as mediation and conciliation can have educative (even at times transformative) functions. Mediators and conciliators can, through their modelling, coaching and guidance, assist parties to experience, learn and develop principles and techniques of appropriate con ict management. Progress made in a DR process can potentially lead [page 61] to subsequent resolution at some stage aer the process has been nalised without settlement. In short, the failure of a DR process to produce a settlement or resolution may not indicate ineffectiveness, for example, where it has minimised the issues in contention. Conversely, settlement may occur without the process being effective in the fullest sense of the term where some interests and needs of the parties have been overlooked.

Adversarial and non-adversarial approaches to managing con ict 2.74 Some systems for dealing with con ict and disputes are described, usually with pejorative connotations, as being ‘adversarial’ in nature.83 Synonyms for ‘adversarial’ include combative, antagonistic and oppositional. In DR contexts, adversarialism denotes narrowly focused, competitive, pedantic and sometimes aggressive proceedings, as opposed to the open problem-solving approaches commended in this book. Adversarial advocacy is discussed further in Chapter 12.

2.75 A useful distinction can be drawn between adversarial behaviour, on the one hand, and procedures that are structurally adversarial in their design, on the other. Regardless of the structures in which they operate, individuals and representatives can behave in adversarial ways towards the other side, for example by making ambit claims, by withholding information, by attacking the bona des of the adversary, or by being positional, argumentative and threatening. ese forms of adversarial conduct can take place in informal negotiations, in formal court settings or through armed hostilities — in other words, regardless of their setting. ey are linked to survival instincts, to the biases referred to earlier and to learned or planned patterns of behaviour. 2.76 More signi cant from a DR point of view are adversarial structures that encourage, or at least require, parties, subject to a set of rules or conventions, to engage in an oppositional contest in which they need to use tactical manoeuvres and competitive strategies to optimise their chances of success and to undermine the other side’s case. In Australia, litigation, arbitration and other forms of adjudication are structurally adversarial in nature in terms of providing a procedure that pits the parties against each other in oppositional dynamics.84 is structure can be contrasted with inquisitorial forms of litigation, associated with civil law (as opposed to common law) systems, in which there is less reliance on evidence and arguments adduced by either side, and more reliance on the investigative and forensic interventions of the judges.85 [page 62] 2.77 Adversarial systems have their advantages. For example, in the litigation setting they enable each side to present the facts, evidence and law relating to their case in their most extreme and favourable light, as each party attempts to persuade a judge to nd in their favour, in the knowledge that courts operate impartially and objectively enforce relevant rules and procedures. Judges are essentially removed from the dust of the con ict arena and adjudicate on only those matters brought before them at the

initiative of the parties in dispute. ere is a clear division of roles, and outcomes are public, reasoned, de nitive and binding. 2.78 Adversarially structured processes are criticised, however, for having con ict-escalating tendencies. ey can generate costs and casualties in terms of excessive delays, damaged relationships, destroyed reputations, opportunity costs and commercial collapse for one or both parties. Adversarial lawyering associated with hard bargaining and litigation is criticised for its disproportionate cost burdens, excessive technicality and procedural gamesmanship. Part of the reason for the costs and casualties is the structurally adversarial nature of such processes, which require parties to make outbidding claims, deny the opponent’s contentions and use all available tactics, including delay, technical arguments and obfuscation, to secure outcomes in their favour. Adversarial systems are also criticised for having overly high transaction costs. For these reasons, adversarialism has developed a negative connotation in DR circles, as well as in policy reports and even in legislation.86 2.79 Antonyms for the term adversarial include collaborative and cooperative. It can, however, be simplistic to presumptively refer to DR processes such as mediation and conciliation as collaborative or cooperative in themselves, as parties within these processes do not necessarily transform their characters and behaviours towards each other. While collaboration might be facilitated within these processes, they can still be sites of adversarial engagement and competitive tactics. ere can indeed be collaboration in negotiation, mediation and conciliation, but it is not an inevitable aspect of their functioning. Nonetheless, it is appropriate to refer to these processes as non-adversarial in terms of their structural characteristics.

DR practitioner functions in effective con ict management 2.80 As suggested above, individuals and groups in con ict can be irrational, simplistic, over-optimistic and self-defeating in relation to decision-making opportunities for dealing with their issues. DR practitioners can deploy their understanding of con ict dynamics to

contribute in various ways to making decision-making opportunities effective for those in dispute. [page 63] 2.81 Commentators emphasise the importance of practitioners analysing and evaluating con ict and dispute situations to develop appropriate forms of intervention — the diagnostic function discussed above.87 By continuously diagnosing con icts and their causes, intervenors can devise and re ne intervention strategies and assist parties to take commensurate actions. ey can assist in designing DR blueprints for narrowing and resolving disputes in light of their con ict analysis, diagnosis and prognosis. As indicated above, any con ict analysis and diagnosis are tentative in nature, particularly where there are multiple causes, issues and parties. e functions of con ict analysis and hypothesis testing commence in the early stages of a DR process and continue throughout its progress.

Lawyers, lawyering, con ict and disputes 2.82 is book contends that lawyers should operate with at least provisional theories and models of con ict in mind, in order to provide skilled and ethical legal services in practice, and to enhance the professional identity of lawyers as dispute resolvers and problem-solvers.88

Transactional lawyering 2.83 As indicated in Chapter 1, transactional lawyering involves the deployment of legal knowledge and skills to promote certainty for the respective parties, to regulate future conduct and behaviour and to allocate and mitigate risks in speci ed circumstances. All contracts, agreements and treaties are designed to manage risks and avoid losses by specifying each side’s rights, duties and responsibilities in relation to future uncertain circumstances, although clearly the more in uential party will be able to

have the agreement shi risks to their own advantage. ese transactions are core business for lawyers. 2.84 ere is currently a con ict management element in all contracts and agreements, with lawyers routinely assisting in draing speci c clauses, provisions or treaty chapters that delineate how disputes or con ict will be dealt with should they arise. For example, in an international investment treaty the signatory states might specify that a dispute between a foreign investor and the host state over the investment’s alleged loss of value be dealt with through conciliation or arbitration. Transactional legal strategies can regulate potential disputes in two ways: by attempting to prevent their occurrence in the rst place, and then designating how they must be managed if they do arise. [page 64]

Lawyers and dispute resolution processes 2.85 Lawyers have different potential roles and responsibilities in regard to their DR engagements. First, they might be involved in investigative or fact- nding bodies such as commissions or inquiries, for example as counsel assisting a royal commission, from which other legal proceedings could emanate. Second, they may be engaged by clients whose disputes have escalated to the point of a grievance or complaint or have proceeded down the track of assuming legal dimensions. Here lawyers are required to provide legal information and advice, and in some contexts to act as legal representatives in mediations, arbitrations, tribunal hearings or appeal proceedings, as the case may be. In subsequent chapters there is more detailed discussion of lawyers’ involvements in speci c DR processes. As formal justice systems increasingly integrate more non-litigation con ict management strategies and techniques into their operations in the future, lawyers will need to enhance their knowledge, skills and ethics in accordance with the centrality of DR to law and lawyers’ business.

Conclusion

2.86 Con ict and disputes come in many forms and shapes and there is increasing knowledge and understanding about their sources, nature, dynamics and management. Not all aspects and categories of con ict and disputes can be managed by legal institutions and procedures, but the law is relevant to many. ere are two dimensions to law’s relevance to con ict: namely, the transactional and dispute resolution aspects. ey both require new approaches from lawyers and increased specialisation in legal practice. e DR matrix developed in Chapter 3 identi es and delineates speci c DR processes and their legal rami cations and these are embellished in succeeding chapters of the book. 1.

For a variety of treatments of con ict and disputes, see generally: Christopher R Mitchell, e Structure of International Con ict (Macmillan, 1981); Raimo Vayrynen, New Directions in Con ict eory — Con ict Resolution and Con ict Transformation (Sage, 1991); Lawrence E Susskind, Sarah McKearnan and Jennifer omas-Larmer, e Consensus Building Handbook: A Comprehensive Guide to Reaching Agreement (Sage, 1999); Robert H Mnookin, Scott R Peppet and Andrew S Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Harvard University Press, 2000); Simon Fisher, Jawed Ludin and Steve Williams, Working With Con ict: Skills and Strategies for Action (Zed Books, 2000); Ho-Won Jeong, Peace and Con ict Studies: An Introduction (Routledge, 2000); Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (omson Reuters, 2nd ed, 2009); Laurie S Coltri, Alternative Dispute Resolution: A Con ict Diagnosis Approach (Pearson, 2nd ed, 2010); Greg Tillett and Brendan French, Resolving Con ict (Oxford University Press, 4th ed, 2010); Laurence Boulle, Mediation: Principles Process Practice (LexisNexis Butterworths, 3rd ed, 2011); Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis Butterworths, 2nd ed, 2011); Laurence Boulle, Mediation — Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011); Jacqueline Nolan-Haley, Alternative Dispute Resolution in a Nutshell (West Academic, 4th ed, 2013); Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014); Christopher Moore, e Mediation Process: Practical Strategies for Resolving Con ict (Jossey-Bass, 4th ed, 2014); Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014); Peter Condliffe, Con ict Management — A Practical Guide (LexisNexis Butterworths, 5th ed, 2016); Louis Kriesberg and Bruce W Dayton, Constructive Con icts from Escalation to Resolution (Rowman & Little eld, 5th ed, 2016); Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (LexisNexis Butterworths, 2017); Michael Mills, Commercial Dispute Resolution: A Practitioners Guide to Successful ADR (omson Reuters, 2018); Laurence Boulle and Rachael Field, Mediation in Australia (Lexis Nexis Butterworths, 2018); David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and

Materials (Lawbook, 4th ed, 2018); Joyce L Hocker and William W Wilmot, Interpersonal Con ict (McGraw-Hill, 10th ed, 2018); Peter Condliffe, Con ict Management: A Practical Guide (LexisNexis, 6th ed, 2019); Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020); Gary Furlong, Con ict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing, and Resolving Con ict (JosseyBass, 2nd ed, 2020); Pauline Collins, Dalma Demeter and Susan Douglas, Dispute Management (Cambridge University Press, 2021). 2.

See generally Douglas Yann, Dictionary of Con ict Resolution (Jossey-Bass, 2002). See also Peter T Coleman, Morton Deutsch and Eric C Marcus (eds), e Handbook of Con ict Resolution: eory and Practice (John Wiley & Sons, 2014).

3.

See Condliffe, (n 1) 5–19; Tillet and French, (n 1) 8.

4.

Shayne R Anderson et al, ‘De ning High Con ict’ (2010) 39(1) e American Journal of Family erapy 11.

5.

See generally Janet R Johnston, ‘High-Con ict Divorce’ (1994) 4(1) e Future of Children 165; Bill Eddy, High Con ict People in Legal Disputes (Janis Publications, 2007); Rachel Birnbaum and Nicholas Bala, ‘Toward the Differentiation of HighCon ict Families: An Analysis of Social Science Research and Canadian Case Law’ (2010) 48(3) Family Court Review 403; Matthew S Mutchler, ‘Family Counseling with High-Con ict Separated Parents: Challenges and Strategies’ (2017) 25(4) e Family Journal 368; Shely Polak and Michael Saini, ‘e Complexity of Families Involved in High-Con ict Disputes: A Postseparation Ecological Transactional Framework’ (2019) 60(2) Journal of Divorce and Remarriage 117.

6.

See, eg, Rachael Field and Angela Lynch, ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36(4) e Journal of Social Welfare and Family Law 392. Compare, however, eg, Catherine C Ayoub, Robin M Deutsch and Andronicki Maraganore, ‘Emotional Distress in Children of High-Con ict Divorce: e Impact of Marital Con ict and Violence’ (1999) 37(3) Family Court Review 297.

7.

Anderson et al, (n 4) 12 referring to E Mark Cummings and Patrick Davies, Children and Marital Con ict (Guilford, 1994).

8.

See, eg, Michael B Donner, ‘Tearing the Child Apart: e Contribution of Narcissism, Envy, and Perverse Modes of ought to Child Custody Wars’ (2006) 23(3) Psychoanalytic Psychology 542; Bill Eddy, 5 Types of People who Can Ruin Your Life: Identifying and Dealing with Narcissists, Sociopaths, and Other High-Con ict Personalities (Penguin, 2018).

9.

Tillet and French, (n 1). See also Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) 361–3.

10.

Tillet and French, (n 1) 8.

11.

Ibid.

12.

See, eg, Brian T Sumner, ‘Territorial Disputes at the International Court of Justice’ (2004) 53(6) Duke Law Journal 1779. See also Christopher R Mitchell, e Structure of International Con ict (Springer, 1989); William J Dixon, ‘Democracy and the Management of International Con ict’ (1993) 37(1) Journal of Con ict Resolution 42; William I Zartman (ed), Peacemaking in International Con ict: Methods and Techniques (US Institute of Peace Press, 2007); Charles Hauss, International Con ict Resolution (A&C Black, 2nd ed, 2010); Ronald J Fisher, e Social Psychology of Intergroup and International Con ict Resolution (Springer Science & Business Media, 2012); Tarja Väyrynen, Culture and International Con ict Resolution: A Critical Analysis of the Work of John Burton (Manchester University Press, 2018); Nicholas J Wheeler, Trusting Enemies: Interpersonal Relationships in International Con ict (Oxford University Press, 2018); Emel Parlar Dal (ed), Rising Powers in International Con ict Management: Converging and Contesting Approaches (Routledge, 2020).

13.

See John Burton, International Relations: A General eory (Cambridge University Press, 1967); John Burton, Con ict and Communication: e Use of Controlled Communication in International Relations (Macmillan, 1969) 2.

14.

See Small Business and Family Enterprise Ombudsman, Discussion Paper (2014) . See also, eg, Christian Homburg and Andreas Fürst, ‘See No Evil, Hear No Evil, Speak No Evil: A Study of Defensive Organizational Behavior Towards Customer Complaints’ (2007) 35(4) Journal of the Academy of Marketing Science 523; Iddo Gal and Israel Doron, ‘Informal Complaints on Health Services: Hidden Patterns, Hidden Potentials’ (2007) 19(3) International Journal for Quality in Health Care 158.

15.

See, eg, Tania Sourdin and Louise orpe, ‘How do Financial Services Consumers Access Complaints and Dispute Resolution Processes?’ (2008) 19(1) Australasian Dispute Resolution Journal 25; Ian Ramsay and Miranda Webster, ‘e Evolution and Consolidation of External Dispute Resolution Schemes in the Financial Sector: From the Banking Ombudsman to the Australian Financial Complaints Authority’ (2019) 30(3) Journal of Banking and Finance Law and Practice 182; Tania Sourdin and Mirella Atherton, ‘Vulnerability and Dispute Resolution in the Banking and Finance Sector’ (2019) 9(1) Social Business 69. See also Anita Stuhmcke, ‘e Rise of the Australian Telecommunications Industry Ombudsman’ (2002) 26(1–2) Telecommunications Policy 69; Dorcas Quek Anderson, ‘When to Turn to Mediation in Telco Disputes’ (2016) Straits Times A20-A20.

16.

e Fair Work Act 2009 (Cth) s 3(e) provides that an object of the Act, inter alia, is to provide procedures to resolve grievances and disputes and to provide effective compliance mechanisms.

17.

See, eg, Bernadine Van Gramberg, Managing Workplace Con ict: Alternative Dispute Resolution in Australia (Federation Press, 2005); Joshua C Polster, ‘Workplace Grievance Procedures: Signaling Fairness but Escalating Commitment’ (2011) 86(2) NYU Law Review 638; erese MacDermott and Joellen Riley, ‘Alternative Dispute

Resolution and Individual Workplace Rights: e Evolving Role of Fair Work Australia’ (2011) 53(5) Journal of Industrial Relations 718; Anthony Forsyth, ‘Workplace Con ict Resolution in Australia: e Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR’ (2012) 23(3) e International Journal of Human Resource Management 476; Paul L Latreille and Richard Saundry, ‘Workplace Mediation’ in William K Roche, Paul Teague and Alexander JS Colvin, Oxford Handbook of Con ict Management in Organizations (Oxford University Press, 2014) 190–209. 18.

Under the Fair Work Act 2009 (Cth) Pt 6-4B, workers may apply to the Fair Work Commission for an order to stop bullying from continuing in the workplace. ese provisions were enacted in response to the Report of the House of Representatives Standing Committee on Education and Employment, Workplace Bullying, We Just Want it to Stop (Commonwealth of Australia, 2002).

19.

See Polster, (n 17).

20.

In Australian politics the terms ‘government’ and ‘opposition’ are suggestive of adversarial competitive politics.

21.

While this is technically the correct approach to the mediator–client relationship some lawyer mediators decline to characterise mediating parties as their ‘clients’.

22.

In some statutory contexts the term ‘convener’ is used as a generic term for mediators and case appraisers — see, eg, the Uniform Civil Procedure Rules 1999 (Qld) ss 321, 348 and 349.

23.

For example, the Fair Work Commission, the Australian Administrative Tribunal and the state administrative tribunals all have both lawyer and non-lawyer members. e AAT website states: ‘Our members come from a wide range of backgrounds with expertise in areas such as accountancy, aviation, disability, engineering, law, medicine, migration, military affairs, public administration, science and social welfare’: .

24.

e classic seminal work critiquing settlement is Owen M Fiss, ‘Against Settlement’ (1984) 93(6) e Yale Law Journal 1073. See also, eg, Elizabeth Colson, ‘e Contentiousness of Disputes’ in Pat Caplan (ed), Understanding Disputes: e Politics of Argument (Berg Publishers, 1995) 65–6. See also, eg, John Bronsteen, ‘Some oughts about the Economics of Settlement’ (2009) 78(3) Fordham Law Review 1129; Randall L Kiser, Martin A Asher and Blakeley B McShane, ‘Let’s Not Make a Deal: An Empirical Study of Decision-Making in Unsuccessful Settlement Negotiations’ (2008) 5(3) Journal of Empirical Legal Studies 551.

25.

Fiss argued that ‘the case for settlement rests on questionable premises’: Fiss, (n 24) 1075. See, however, Leora Bilsky and Talia Fisher, ‘Rethinking Settlement’ (2014) 15(1) eoretical Inquiries in Law 77.

26.

For a discussion of the role of aspirations in settlement, see, eg, Russell Korobkin, ‘Aspirations and Settlement’ (2002) 88(1) Cornell Law Review 1.

27.

Crump and Giddings de ne accommodation as ‘lowering one’s own goals or aspirations so that the other party can achieve their goals’: Larry Crump and Jeff Giddings, ‘Strategy, Choice and the Skilled Legal Negotiator’ (2005) 31(2) Monash University Law Review 258, 263. See also Dale Eilerman, ‘Give and Take — e Accommodating Style in Managing Con ict’ (2006) Mediate.com .

28.

Barsky notes that the term accommodation can be appropriate in contexts where the relationship is more important than the dispute: Allan Barsky, Con ict Resolution for the Helping Professions (Oxford University Press, 2nd ed, 2014).

29.

e name Resolution Institute was chosen for the merged Institute of Arbitrators and Mediators and LEADR institutions, signifying the deeper level goal of dispute resolution — see . See also Chapter 6.

30.

Developments in judicial functions mean that some common law courts do ‘settle’ or ‘resolve’ disputes — eg, New Zealand judges can convene ‘judicial settlement conferences’ in cases on their lists. See, eg, High Court of New Zealand, Judicial Settlement Conferences: e High Court Guidelines (New Zealand Government, 2012). See also, eg, Jean-François Roberge and Dorcas Quek Anderson, ‘Judicial Mediation: From Debates to Renewal’ (2017) 19(3) Cardozo Journal of Con ict Resolution 613.

31.

On JDR, see Chapter 11. See also Sourdin, (n 1) ch 8 ‘Court-based ADR’; Sir Laurence Street, ‘e Courts and Mediation — A Warning’ (1991) 2(4) Australian Dispute Resolution Journal 203; Michael Black, ‘ALJ Forum: Mediation’ (1993) 67(12) Australian Law Journal 940, 941; Tania Sourdin, ‘Judicial Management and Alternative Dispute Resolution Process Trends’ (1996) 14(3) Australian Bar Review 185; Sir Laurence Street, ‘Mediation and the Judicial Institution’ (1997) 71(10) Australian Law Journal 794; Phillip Tucker, ‘Judges as Mediators: A Chapter III Prohibition?’ (2000) 11(2) Australian Dispute Resolution Journal 84; Michael Moore, ‘Judges as Mediators: A Chapter III Prohibition or Accommodation?’ (2003) 14(3) Australian Dispute Resolution Journal 188; David Spencer, ‘Judicial Mediators: Are they Constitutionally Valid?’ (2006) 9(4) ADR Bulletin 1; David Spencer, ‘Judicial Mediators: Is the Time Right? — Part 1’ (2006) 17(4) Australian Dispute Resolution Journal 130; David Spencer, ‘Judicial Mediators: Is the Time Right? — Part 2’ (2006) 17(4) Australian Dispute Resolution Journal 189; Iain Field, ‘Judicial Mediation, the Judicial Process and Ch III of the Constitution’ (2011) 22(2) Australasian Dispute Resolution Journal 72; David Kwok, ‘e (Im)propriety of Judicial Mediation’ (2015) 26(4) Australasian Dispute Resolution Journal 210.

32.

See Henry Jolson, ‘Judicial Determination: Is it Becoming the Alternative Method of Dispute Resolution?’ (1997) 8 Australian Dispute Resolution Journal 103; Aharon Barak, ‘A Judge on Judging: e Role of a Supreme Court in a Democracy’ (2002) 116 Harvard Law Review 19; Brian Z Tamanaha, Beyond the Formalist-Realist Divide: e Role of Politics in Judging (Princeton University Press, 2009); Benjamin N Cardozo and Andrew L Kaufman, e Nature of the Judicial Process (Quid Pro Books, 2010); Penny

Darbyshire, Sitting in Judgment: e Working Lives of Judges (Bloomsbury Publishing, 2011); Nigel G Fielding, ‘Judges and their Work’ (2011) 20(1) Social & Legal Studies 97. 33.

It could be argued that judgments and awards are not themselves outcomes of processes per se but merely indicate what one or more parties are required to do in order to nalise the matter. Further, not every determination results in the parties actually complying with and carrying out a court’s orders, and this could lead to renewed disputation.

34.

See, eg, .

35.

Or in the international context, see Luc Huyse and Mark Salter (eds), Traditional Justice and Reconciliation Aer Violent Con ict: Learning from African Experiences (International Idea, 2008).

36.

ere is a vast literature on restorative justice, eg King et al, (n 1) ch 3; Field, Duffy and Huggins, (n 9) ch 14.

37.

See, eg, the Coordinated Family Dispute Resolution Model discussed in Field and Lynch, (n 6); Rae Kaspiew et al, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report (Australian Institute of Family Studies, 2012).

38.

Prevention is sometimes referred to as a ‘dispute resolution’ process — see, eg, NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012) 12.

39.

See King et al, (n 1) ch 4.

40.

ere is a signi cant body of literature devoted to ‘con ict management’, including an international journal. See, eg, Zhenzhong Ma, Yender Lee and Kuo-Hsun Yu, ‘Ten Years of Con ict Management Studies: emes, Concepts and Relationships’ (2008) 19(3) International Journal of Con ict Management 23. See also Condliffe, (n 1); Sourdin, (n 1) ch 13; Collins, Demeter and Douglas, (n 1).

41.

On ‘inner negotiations’, see Erica Fox, Winning from Within (Harper Collins, 2013) 19–44. See also Adrienne Harris, ‘Con ict in Relational Treatments’ (2005) 74(1) e Psychoanalytic Quarterly 267; Marie P Wissing, ‘Patterns of Psychological Well-Being and Satisfaction with Life in Cultural Context’ (2006) Dimensions of Well-Being: Research and Intervention 14.

42.

See, eg, Kathleen M O’Connor et al, ‘What We Want to Do Versus What We ink We Should Do: An Empirical Investigation of Intrapersonal Con ict’ (2002) 15(5) Journal of Behavioral Decision Making 403; Winnifred R Louis, Donald M Taylor and Tyson Neil, ‘Cost-Bene t Analyses for Your Group and Yourself: e Rationality of DecisionMaking in Con ict’ (2004) 15(2) International Journal of Con ict Management 110; Paul Slovic, ‘Affect, Risk, and Decision-Making’ (2005) 24(4) Health Psychology 35 (Supplement); Reid Hastie and Robyn M Dawes (eds), Rational Choice in an Uncertain World: e Psychology of Judgment and Decision Making (Sage, 2010).

43.

See, eg, Evert Van der Vliert, Complex Interpersonal Con ict Behaviour: eoretical

Frontiers (Routledge, 1997); Henri Barki and Jon Hartwick, ‘Conceptualizing the Construct of Interpersonal Con ict’ (2004) 15(3) International Journal of Con ict Management 216; William R Cupach, Daniel J Canary and Brian H Spitzberg, Competence in InterPersonal Con ict (Waveland Press, 2009); Joyce L Hocker and William W Wilmot, Interpersonal Con ict (McGraw-Hill, 9th ed, 2014). 44.

Joseph P Folger, Marshall Scott Poole and Randall K Stutman, Working rough Con ict: Strategies for Relationships, Groups, and Organizations (Routledge, 9th ed, 2021).

45.

Derek Rollinson, Organisational Behaviour and Analysis: An Integrated Approach (Pearson Education, 4th ed, 2008); Steven McShane et al, Organisational Behaviour: Emerging Knowledge, Global Insights (McGraw-Hill Education, 6th ed, 2018).

46.

e discipline of psychology has much to offer practitioners of DR — however, the scope of the psychology literature relevant to DR is too broad to canvass comprehensively in this book. e elds of psychology that are particularly relevant to informing effective DR practice include: cognitive psychology, social psychology, behavioural psychology, biopsychology, developmental psychology, personality psychology and social psychology. For a small sample of relevant literature, see, eg, Morton Deutsch, e Resolution of Con ict: Constructive and Destructive Processes (Yale University Press, 1973); Jeffrey Z Rubin and Bert R Brown, e Social Psychology of Bargaining and Negotiation (Elsevier, 1975); Allan E Lind and Tom R Tyler, e Social Psychology of Procedural Justice (Springer Science & Business Media, 1988); Ian Morley and Geoffrey Stephenson, e Social Psychology of Bargaining (Psychology Press, 2015); Scott O Lilienfeld et al, Psychology: From Inquiry to Understanding (Pearson Education, 3rd ed, 2018); Lorelle Burton, Drew Weston and Robin Kowalski, Psychology (Australian and New Zealand edition) (John Wiley & Sons, 5th ed, 2018); Richard Gross, Psychology: e Science of Mind and Behaviour (Hodder Education, 8th ed, 2020). See also Morton Deutsch, Distributive Justice: A Social Psychological Perspective (Yale University Press, 1985).

47.

‘Faux ghts’ are not uncommon in politics, serving to brand leaders, secure publicity and impress supporters.

48.

Karen A Jehn, Sonja Rispens and Sherry MB atcher, ‘Managing Con ict in Groups and Teams: Con ict about Con ict’ in Margaret A Neale and Elizabeth A Mannix, Looking Back, Moving Forward: A Review of Group and Team-Based Research (Research on Managing Groups and Teams: Volume 15) (Emerald Group, 2012) 133– 59; Stephen Ryan, ‘Con ict Metanarratives and Peacebuilding’ in Sean Byrne et al (eds), Routledge Companion to Peace and Con ict Studies (Routledge, 2019) 373–82.

49.

e term con ict derives from Latin, meaning ‘to strike together’.

50.

Studies of animals in con ict situations show how they elicit ‘mediation’ and ‘arbitration’ behaviours from other animals. See generally Charles I Kaufman, ‘Some Ethological Studies of Social Relationships and Con ict Situations’ (1960) 8(4) Journal of the American Psychoanalytic Association 671; Maynard J Smith and George R Price,

‘e Logic of Animal Con ict’ (1973) 246(5472) Nature 15; Frans de Waal, Our Inner Ape (Granta Books, 2005); Frans de Waal, Stephen Macedo and Josiah Ober (eds), Primates and Philosophers: How Morality Evolved (Princeton University Press, 2009). 51.

For leading Australian and international texts on con ict and its management, see (n 1).

52.

See Bernard Mayer, ‘How We Experience Con ict’ and ‘What Causes Con ict’ in Bernard Mayer, e Dynamics of Con ict: A Guide to Engagement and Intervention (Jossey-Bass, 2nd ed, 2012) 3–4, 8–10 respectively. See also Boulle, (n 1) 108–9.

53.

See Robert I Simon and Daniel W Shuman (eds), Retrospective Assessment of Mental States in Litigation: Predicting the Past (American Psychiatric Publishing, 2008).

54.

See, eg, Ray Friedman et al, ‘e Positive and Negative Effects of Anger on Dispute Resolution: Evidence from Electronically Mediated Disputes’ (2004) 89(2) Journal of Applied Psychology 369.

55.

A classic text is Elizabeth Kubler-Ross and David Kessler, On Grief and Grieving: Finding the Meaning of Grief rough the Five Stages of Loss (Scribner, 2014). See also Camille B Wortman and Roxane C Silver, ‘e Myths of Coping with Loss Revisited’ in Margaret S Stroebe et al (eds), Handbook of Bereavement Research: Consequences, Coping, and Care (American Psychological Association, 2001) 405–29; Yusen Zhai and Xue Du, ‘Loss and Grief Amidst COVID-19: A Path to Adaptation and Resilience’ (2020) 87 Brain, Behavior, and Immunity 80; Rachel Z Ishikawa, ‘I May Never See the Ocean Again: Loss and Grief Among Older Adults During the COVID-19 Pandemic’ (2020) 12(S1) Psychological Trauma: eory, Research, Practice, and Policy S85.

56.

Esther Davis, Frank Deane and Geoffrey Lyons, ‘Prediction of Individual Differences in Adjustment to Loss: Acceptance and Valued-Living as Critical Appraisal and Coping Strengths’ (2016) 40(4) Death Studies 211.

57.

Much of the discussion about positions and interests derives originally from Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books, revised ed, 2011).

58.

See further on this topic Boulle and Alexander, (n 1).

59.

See the introductory psychology literature referred to above. See also generally Robert S Wyer Jr and omas K Srull (eds), Handbook of Social Cognition, Volume 1: Basic Processes (Psychology Press, 2nd ed, 1994); Anthony G Greenwald and Mahzarin R Banaji, ‘Implicit Social Cognition: Attitudes, Self-Esteem and Stereotypes’ (1995) 102(1) Psychological Review 4; Susan T Fiske, ‘What We Know Now About Bias and Intergroup Con ict: e Problem of the Century’ (2002) 11(4) Current Directions in Psychological Science 123; Emily Pronin, Daniel Y Lin and Lee Ross, ‘e Bias Blind Spot: Perceptions of Bias in Self Versus Others’ (2002) 28(3) Personality and Social Psychology Bulletin 369; Paul Randolph and Freddie Strasser, Mediation: A Psychological Insight into Con ict Resolution (Bloomsbury, 2004); Susan T Fiske, Daniel T Gilbert and Gardner Lindzey, Handbook of Social Psychology: Volume 2 (John

Wiley & Sons, 5th ed, 2010); Daniel Kahneman, inking, Slow and Fast (Farrar, Straus and Giroux, 2011); Wim De Neys, ‘Bias and Con ict: A Case for Logical Intuitions’ (2012) 7(1) Perspectives on Psychological Science 28; Paul Randolph, e Psychology of Con ict — Mediating in a Diverse World (Bloomsbury, 2015); Rüdiger F Pohl (ed), Cognitive Illusions: Intriguing Phenomena in inking, Judgment and Memory (Routledge, 2017); Susan T Fiske, Social Cognition: Selected Works of Susan T Fiske (Routledge, 2018); Susan T Fiske and Shelley E Taylor, ‘Social Cognition Evolves: Illustrations from our Work on Intergroup Bias and on Healthy Adaptation’ (2020) 32(3) Psicothema 291. 60.

Joshua Klayman, ‘Varieties of Con rmation Bias’ (1995) 32 Psychology of Learning and Motivation 385; Raymond S Nickerson, ‘Con rmation Bias: A Ubiquitous Phenomenon in Many Guises’ (1998) 2(2) Review of General Psychology 175; Margit E Oswald and Stefan Grosjean, ‘Con rmation Bias’ in Rüdiger Pohl (ed), Cognitive Illusions: A Handbook on Fallacies and Biases in inking, Judgement and Memory (Psychology Press, 2004) 79; Bharath C Talluri et al, ‘Con rmation Bias rough Selective Overweighting of Choice-Consistent Evidence’ (2018) 28(1) Current Biology 3128. However, for a critical perspective on the con rmation bias research and scholarship, see Hugo Mercier, ‘Con rmation Bias — Myside Bias’ in Rüdiger F Pohl (ed), Cognitive Illusions: Intriguing Phenomena in inking, Judgment and Memory (Routledge, 2017) 99–114.

61.

See generally Dan Ariely, Predictably Irrational: e Hidden Forces that Shape our Decisions (Harper Collins, 2008).

62.

Linda Silka, Intuitive Judgments of Change (Springer, 2012); Lee Ross, ‘From the Fundamental Attribution Error to the Truly Fundamental Attribution Error and Beyond: My Research Journey’ (2018) 13(6) Perspectives on Psychological Science 750. For a critical perspective, see John H Harvey, Jerri P Town and Kerry L Yarkin, ‘How Fundamental is “the Fundamental Attribution Error”?’ (1981) 40(2) Journal of Personality and Social Psychology 346; John Sabini, Michael Siepmann and Julia Stein, ‘e Really Fundamental Attribution Error in Social Psychological Research’ (2001) 12(1) Psychological Inquiry 1; Darren Langdridge and Trevor Butt, ‘e Fundamental Attribution Error: A Phenomenological Critique’ (2004) 43(3) British Journal of Social Psychology 357.

63.

See the extensive list of relevant factors in Richard Birke, ‘Neuroscience and Settlement: An Examination of Scienti c Innovations and Practical Applications’ (2010) 25(2) Ohio State Journal on Dispute Resolution 477, 493–8.

64.

See, eg, Gerry Pallier et al, ‘e Role of Individual Differences in the Accuracy of Con dence Judgments’ (2002) 129(3) e Journal of General Psychology 257; Don Moore and Paul Healy, ‘e Trouble with Overcon dence’ (2008) 115(2) Psychological Review 502; Tali Sharot, ‘e Optimism Bias’ (2011) 21(23) Current Biology R941– R945.

65.

See, eg, Russell Korobkin, ‘Psychological Impediments to Mediation Success: eory

and Practice’ (2006) 21(2) Ohio State Journal on Dispute Resolution 281; Laurence Boulle, ‘Predictable Irrationality in Mediation: Lessons from Behavioural Economics’ (2013) 24(1) Australasian Dispute Resolution Journal 1. 66.

See Mayer, (n 52) 224–5. See also, eg, Dan Smith, ‘Preventing Con ict Escalation: Uncertainty and Knowledge’ in Ho-Won Jeong (ed), e New Agenda for Peace Research (Routledge, 1999) 161–78; Raymond A Friedman and Steven C Currall, ‘Con ict Escalation: Dispute Exacerbating Elements of E-Mail Communication’ (2003) 56(11) Human Relations 1325; Dean Pruitt, Jeffrey Rubin and Sung Hee Kim, Social Con ict: Escalation, Stalemate and Settlement (McGraw-Hill, 3rd ed, 2004) ch 3; Jerome Donovan, e Iran-Iraq War: Antecedents and Con ict Escalation (Routledge, 2010).

67.

See, eg, Kai Quek and Alastair I Johnston, ‘Can China Back Down? Crisis DeEscalation in the Shadow of Popular Opposition’ (2017) 42(3) International Security 7; Natalie Todak and Lois James, ‘A Systematic Social Observation Study of Police DeEscalation Tactics’ (2018) 21(4) Police Quarterly 509; Helena Goodman et al, ‘Barriers and Facilitators to the Effective De-Escalation of Con ict Behaviours in Forensic High-Secure Settings: A Qualitative Study’ (2020) 14(1) International Journal of Mental Health Systems 1.

68.

See Jennifer K Robbennolt, ‘Apologies and Legal Settlement: An Empirical Examination’ (2003) 102(3) Michigan Law Review 460; Robyn Carroll, ‘Apologies as a Legal Remedy’ (2013) 35(2) Sydney Law Review 317; Robyn Carroll, ‘When “Sorry” is the Hardest Word to Say, How Might Apology Legislation Assist?’ (2014) 44(2) Hong Kong Law Journal 491.

69.

See the discussion above, and also: Annette van Randenborgh, Renate de Jong-Meyer and Joachim Hüffmeier, ‘Rumination Fosters Indecision in Dysphoria’ (2010) 66(3) Journal of Clinical Psychology 229; Daniel A Newark, ‘Indecision and the Construction of Self ’ (2014) 125(2) Organizational Behavior and Human Decision Processes 162.

70.

See further Onne Janssen and Evert Van de Vliert, ‘Concern for the Other’s Goals: Key to (De-)Escalation of Con ict’ (1996) 7(2) International Journal of Con ict Management 99; Stig Berge Matthiesen et al, ‘e Escalation of Con ict: A Case Study of Bullying at Work’ (2003) 4(1) International Journal of Management and Decision Making 96; Juan A Lacomba et al, ‘On the Escalation and De-Escalation of Con ict’ (2014) 86 Games and Economic Behavior 40.

71.

See, eg, Family Law Rules 2004 (Cth) rr 1.04–1.08.

72.

See generally Mayer, (n 52) 68–70. See also Hilary Astor, ‘Some Contemporary eories of Power in Mediation: A Primer for the Puzzled Practitioner’ (2005) 16(1) Australasian Dispute Resolution Journal 30; Mieke Brandon and Rachael Field, ‘An Analysis of the Complexity of Power in Facilitative Mediation and Practical Strategies for Ensuring a Fair Process’ (2020) 1 Arbitrator and Mediator 33.

73.

Boulle, (n 1) 203–5.

74.

See Forrest Mosten and Bill Eddy, ‘Disputant Autonomy and Power Imbalance’ in Ellen Waldman (ed), Mediation Ethics (Jossey-Bass, 2011) 87, 93–7.

75.

See also Richard Dawkins, e Sel sh Gene (Oxford University Press, 1976) on the biological bases of human con ict.

76.

Moore, (n 1) 110.

77.

See Mayer, (n 52). See NADRAC, e Resolve to Resolve (Australian Government, 2009) recommendations 8.4, 8.5.

78.

See further Boulle and Alexander, (n 1) 83–97.

79.

See, eg, Mary Parker Follett, ‘Constructive Con ict’ in Paula Graham (ed), Mary Parker Follett: Prophet of Management: A Celebration of Writings from the 1920s (Harvard Business School, 1996) 67. See also Carrie Menkel-Meadow, ‘Peace and Justice: Notes on the Evolution and Purposes of Legal Processes’ (2006) 93(2) Georgetown Law Journal 533, 557–61; Barbara Pachter, e Power of Positive Confrontation: e Skills You Need to Handle Con icts at Work, at Home, Online, and in Life (Da Capo Lifelong Books, 2014); Abdul Fattah Farea Hussein and Yaser Hasan Salem Al-Mamary, ‘Con icts: eir Types, and their Negative and Positive Effects on Organizations’ (2019) 8(8) International Journal of Scienti c & Technology Research 10.

80.

Michael L Moffitt, ‘Disputes as Opportunities to Create Value’ in Michael L Moffitt and Robert C Bordone (eds), e Handbook of Dispute Resolution (Jossey-Bass, 2005).

81.

See, eg, Morton Deutsch, ‘Constructive Con ict Resolution: Principles, Training and Research’ (1994) 50(1) Journal of Social Issues 13; Morton Deutsch, ‘Constructive Con ict Management for the World Today’ (1994) 5(2) International Journal of Con ict Management 111; Fred E Jandt and Paul B Pedersen (eds), Constructive Con ict Management (Sage, 1996); Patricia Elgoibar, Lourdes Munduate and Martin Euwema (eds), Building Trust and Constructive Con ict Management in Organizations (Springer, 2016); Olena Kopystynska, Melissa A Barnett and Melissa A Curran, ‘Constructive and Destructive Interparental Con ict, Parenting and Coparenting Alliance’ (2020) 34(4) Journal of Family Psychology 414.

82.

See, eg, Collins, Demeter and Douglas, (n 1).

83.

See generally King et al, (n 1).

84.

is is a somewhat dated and stereotypical characterisation of litigation. As shown in Chapter 11, there are contemporary forms of the process which eschew its adversarial extremes.

85.

See, eg, John Anthony Jolowicz, ‘Adversarial and Inquisitorial Models of Civil Procedure’ (2003) 52(2) International and Comparative Law Quarterly 281; Rajagopalan Shruti, ‘Adversarial versus Inquisitorial Systems: Error and Valuation’ (2017) 12(s1) Journal of Business Valuation and Economic Loss Analysis 9; Jessica K Steinberg, ‘Informal, Inquisitorial, and Accurate: An Empirical Look at a ProblemSolving Housing Court’ (2017) 42(4) Law & Social Inquiry 1058; David Newlyn,

‘Adversarial Vs Inquisitorial Legal Systems: Rousseau, Truth, Justice and God’ (2018) 6(5) International Journal of Research in Applied, Natural and Social Sciences 165. 86.

See NADRAC, (n 77) 1–18; Helen Stacy and Michael Lavarch, Beyond the Adversarial System (Federation Press, 1999).

87.

See, eg, Moore, (n 1).

88.

See, eg, Wolski, (n 1) 416–28.

[page 65]

Chapter 3 The Dispute Resolution (DR) Matrix Chapter contents Introduction What was alternative dispute resolution (ADR)? What is DR? DR spectrums, pyramids and trees A DR matrix Conclusion

3.1 3.8 3.14 3.23 3.44

Introduction 3.1 is chapter proposes a matrix for describing the various DR processes, and understanding how they differ from, and relate to, one another.1 Chapter 4 then explains each of the processes and their practice context in more detail, followed by a consideration of the different values and goals of the various processes in Chapter 5. 3.2 As discussed in Chapter 1, to be effective and efficient practitioners now and into the future, lawyers must have the capacity to engage in a meaningful evaluation of DR systems, and be able to apply that knowledge to advising and advocating for their clients ethically.2 is requires an understanding of the nature and complexities of con ict and [page 66] disputes developed in Chapter 2; and it also requires an understanding of the different attributes of each of the various DR processes, including a full appreciation of what each process has to offer, and the type of disputes for which particular processes may be particularly suited, or counter-indicated.

3.3 Between 1995 and 2013, the National Alternative Dispute Resolution Advisory Council (NADRAC), which advised the Federal Attorney-General, was a major force in de ning and facilitating understandings of DR processes, as well as promoting consistent DR policies in law, government and society.3 e disestablishment of NADRAC was unfortunate and misguided.4 Its de nitions and scholarly contributions to the Australian DR literature and policy development remain relevant and valuable, but its sad demise means that this signi cant body of work is frozen in time and will not be the living, developing organism it would otherwise have been. Other DR bodies and organisations, such as the Resolution Institute, the Mediator Standards Board (MSB) which administers the National Mediator Accreditation System (NMAS) and the National Mediation Conference, do not play the same unifying role for the DR community as NADRAC did. is chapter continues to reference and discuss NADRAC’s work, because of its seminal nature and because much of it remains relevant to understanding Australian DR systems. 3.4 De nitions are always important in legal contexts; however, de nitive descriptions of DR processes are elusory in the dynamic and evolving areas of DR theory and practice. De nitions are designed to provide clarity, consistency and a level of certainty as to how DR processes are understood and practised. ey help to classify knowledge, create and manage appropriate expectations, develop meaningful training and accreditation systems, and delineate responsibility, liability and other legal issues. People in a position of advising parties about accessing and participating in DR processes (such as lawyers, social workers, psychologists and law enforcement agencies) need to have a sophisticated understanding of the DR matrix in order to give appropriate advice and adequately assist parties to prepare for, and effectively participate in, a given process. It is also important that those working within the same profession share common understandings of the terms used to describe the range of DR processes available. 3.5 De nitions of DR processes are also needed because they efficiently convey basic information about the central elements of distinct DR systems.5 Clarity about the key

[page 67] aspects of different processes is particularly important for accurate communications in DR contexts among all DR professionals, and in the context of lawyering in Australia, it is essential for the efficacy of lawyers’ communications with each other, as well as with judges, arbitrators and mediators. Further, a clear understanding of terms is critical for lawyers’ communications with their clients, especially clients who are from diverse backgrounds and are not necessarily familiar with the language of law or DR. From a more global perspective, de nitions are required across societies and jurisdictions, because similarly named processes may in fact be understood and practised quite differently in diverse contexts. For these reasons, this chapter focuses on key de nitional issues in DR, while acknowledging that consistently clear de nitions remain frustratingly elusive. 3.6 In NADRAC’s important 2003 work Dispute Resolution Terms, four reasons for needing consistency in DR terms were articulated.6 First, consistent terms are important for people using DR systems, and making referrals to them, so that realistic and accurate expectations exist which in turn enhance con dence in, and acceptance of, DR systems. Second, consistent terms assist courts and other mandating agencies in matching DR processes with speci c disputes and parties, leading to better outcomes. ird, consistent terminology supports reliable and comparable standards in DR service provision, and this underpins the efficacy of contractual obligations and effective complaint handling. Finally, common terms provide a strong foundation for policy and program development, data collection and evaluation practice. NADRAC also noted, however, the broad and diverse contexts of DR practice and that it cannot be assumed that all terms have the same meaning for all, terms remain somewhat ambiguous, and terms can have different meanings in different cultures.7 As a consequence, a level of exibility in understanding DR is required and prescriptive de nitions are not particularly useful.8 [page 68]

3.7 In terms of explaining DR processes, Boulle makes a distinction between de nitional and descriptive approaches.9 De nitional approaches are said to provide conceptual and theoretical understandings of each process, while descriptive approaches portray the realities of processes in their practical operation. e de nitional approach tends to be more abstract in nature and the descriptive approach more concrete and practicecentred. is book adopts a ‘de nitions-plus’ approach with the current chapter providing basic de nitions, and later chapters providing a more comprehensive portrayal of the reality of actual practice, particularly in Part II, for the more important and commonly used processes. Needless to say, none of the DR processes discussed is static in either its theoretical explanation or its practical operation, and each is modi ed as a result of the diversity of skills and approaches of practitioners, as well as through the impact of other internal dynamics and external environments. Further, as later discussions illustrate, diverse processes can share signi cant common features with others, and in addition, two or more processes can be interconnected in their operation.

What was alternative dispute resolution (ADR)? What is DR? 3.8 When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR).10 e acronym ADR originally denoted processes developed, intentionally or organically, as alternatives to those provided by courts and tribunals in formal justice systems.11 Initially, there was angst and argument about what should be included in, or excluded from, the term ‘ADR’.12 While it was originally associated with mediation, it came to include a range of other non-determinative processes. NADRAC de ned ADR as: … an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.13

[page 69] 3.9 NADRAC’s de nition emphasised that ADR was understood in contradistinction to litigation. is reinforced rhetorical dichotomies in the literature around formal versus informal processes; speedy versus slow processes; processes that invite direct party participation versus those that exclude party participation; processes controlled by the disputants themselves versus those controlled by third parties; expensive versus inexpensive processes; coercive versus consensual processes; and binding versus non-binding processes. ese sorts of binary distinctions have always been simplistic and con ning, and have long (and rightly) been acknowledged as such.14 e distinctions were based on false assumptions about levels of consistency and unity within ADR processes,15 which obscured ‘the many and important distinctions between different ADR processes, lumping them together as if ADR was one homogenous institution set apart from the courts’.16 As a result, ADR processes were depicted as ‘the other’ (to litigation), bestowing a primacy on litigation that was in reality historically and socially misleading.17 ere is, however, another sense in which litigation enjoys a normative ‘primacy’ in the context of DR processes used in legal matters: it has operated, and continues to some extent to operate, as an ultimate point of reference for all other DR processes and it has historically cast a shadow over their operation. 3.10 In the early 1990s, Julian Riekert, one of Australia’s founding writers in the area, identi ed three descriptors of ADR: rst, ADR as including all forms of DR other than litigation; second, ADR as including DR processes that leave the form and content of any settlement to the parties; third, ADR as involving non-litigious processes with the intervention of an outside party.18 Riekert’s rst de nition continued the trend of de ning ADR by reference to its alternative status to litigation. ADR was thus positioned for many years as almost in opposition to litigation. As a result, ADR processes and practices were viewed by some, particularly in the practising legal profession, with suspicion and distrust.19 To redress these perceptions there were suggestions that

[page 70] ADR should be understood as signifying ‘additional’,20 ‘assisted’,21 ‘appropriate’,22 ‘administrative’23 or ‘amicable’ DR.24 3.11 It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR is now (at the very least) inaccurate.25 e processes understood to fall within its ambit really are no longer ‘alternative’ or ‘marginal’ because they are in fact oen the primary, or dominant systems for resolving and managing con ict and disputes; and are oen sought out by the parties or mandated by DR clauses or by legislation.26 [page 71] Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatment of disputes, notwithstanding its normative in uence in law and DR referred to above. Nevertheless, the term ADR still has currency, and the durability of the acronym has meant that proposals for the adoption of terms such as those listed above, or other examples such as ‘innovative’ DR or ‘non-adversarial justice’, have not gained the traction that might be expected or that they might perhaps deserve.27 3.12 While the term ADR is still used and recognised in some DR contexts, and while it is still the case that formal legal and justice systems continue to some extent to privilege litigation, there is now less anxiety over de nitional questions and over what is and what is not included in the generic concept of ADR. It is right that binary distinctions between ADR and litigation, and their respective attributes, are generally no longer regarded as appropriate. Litigation, too, has lost much of its assumed consistency and uniformity and currently has its own variations, adaptations and mutations. Moreover, the ‘institutionalisation’ of ADR has brought it within the purview of courts, tribunals, agencies and other aspects of formal justice processes where it is but one component of overall systems for, and approaches to, assisting people in dispute to resolve and manage their matters. In other words, with ADR now established within courts,

government agencies and private enterprises it must be viewed as part of the overall schema of dispute handling in the legal system and in society more broadly. Today, a great diversity of processes is available both within and outside the courts. ere is also a greater understanding and realisation that while most disputes are not dealt with through litigation, non-litigated disputes are managed, at least to some extent, in the ‘shadow of the law’, that is, they are informed by what would or could happen if the matter were litigated.28 [page 72] 3.13 e approach in this book is not to use the term ‘alternative’ in identifying DR processes other than litigation, and simply to refer to DR as encompassing all processes, including litigation.29 ADR remains an historical term of art, recognised and understood by many within the legal and justice communities. However, looking at the contemporary DR context, and to the future, it is effectively no longer an accurate descriptor of DR practice, even in legal contexts. e term ‘ADR’ is therefore used in this text only to accurately re ect references to it in other sources, or where its historical legacy makes it appropriate.

DR spectrums, pyramids, and trees 3.14 As noted above, it is daunting to construct a concise de nition of DR that is also comprehensive and accurate in relation to all processes in their different guises. NADRAC de ned DR broadly as referring ‘to all processes that are used to resolve disputes, whether within or outside court proceedings’.30 However, DR would be a dangerous acronym if it were used to conceal the complexities of the individual processes under its umbrella. So, recognition of these complexities is important to the efficacy of de nitions and descriptions of DR. 3.15 Although NADRAC de ned DR broadly it also recognised that the development of models for categorising DR processes is helpful to understanding them more deeply. NADRAC’s suggested approach to

categorising DR processes was to indicate that they fall into one of the following categories: facilitative, advisory or determinative.31 No model or approach to categorising DR processes is perfect,32 but identifying process typologies is necessary because DR theory, professional discourse and scholarship cannot progress without some level of agreement as to the basic classi cation of key terms. Further, as was noted above, as it becomes increasingly important to understand how DR processes work in practice through empirical research,33 the efficacy of DR methodologies depends on having some clarity about the features of the processes being examined and the ability to differentiate processes from one another. For this reason, NADRAC’s categories inform the DR matrix offered in this chapter.34 First, however, it [page 73] is useful to consider further some of the existing methods that have been suggested for appreciating the differences among, and distinguishing the features of, DR processes. 3.16 e DR spectrum represents, in a relatively simplistic linear form, key processes available for managing and resolving disputes. e spectrum moves from informal, consensual and less interventionist approaches at one end to formal, less consensual and more interventionist processes at the other. e spectrum ‘correlates with increasing third-party involvement, decreasing control of the parties over the process and outcome, and, usually, an increasing likelihood of having the relationship between the disputants deteriorate during and aer resolution of the dispute’.35

3.17 In terms of responses to con ict and disputes, ‘walking away’, which could be said to fall at the most informal end of the spectrum, is really the rst possible choice. However, while it is a possible response to a dispute, it

is clearly not a process of itself, and for this reason ‘walking away’ is not included on the spectrum.36 e rst process on the spectrum, then, is negotiation, followed by mediation, conciliation, expert appraisal, arbitration and nally litigation. A more detailed and process-inclusive spectrum could also include con ict coaching, partnering, collaborative law, dispute review boards, facilitation, conferencing, expert determination, early neutral evaluation case appraisal and refereeing.37 A yet more comprehensive approach would also accommodate many blended processes constructed from the building blocks of foundational processes, such as med-arb, arb-med, arb-med-arb and others. 3.18

As Field, Duffy and Huggins say about the spectrum:

It is important that we use the spectrum sensibly. It is certainly a valuable instrument in a lawyer’s toolkit of practice. It also helps to provide clarity in our thinking about dispute resolution options by supporting our understanding of them, as well as helping us to make some comparisons and assessments between options. Further, it provides us with a useful visual aid for communicating effectively with clients about the options available to them, and their characteristics, bene ts and disadvantages.38

[page 74] 3.19 ere is, however, potential risk that the relatively basic and unsophisticated representation of options on the spectrum might be misunderstood as understating the complexity of each of the discrete processes, and the internal diversities within them, and may result in overgeneralisations about, or distortions of, the nature of the various processes. e spectrum is a useful tool for initial understanding, but it should only be used as a starting point. 3.20 A number of organising approaches other than the spectrum have also been suggested. For example, in 1980 Miller and Sarat proposed the dispute pyramid.39 ey described the pyramid as follows: ‘[A]t the base are grievances, and the [decreasing] width of the pyramid shows the proportions that make the successive transitions to claims, disputes, lawyer use, and litigation’.40 In their data they found that for every 1000 grievances41 there were, in ascending order, 718 claims, 449 disputes, 103

lawyer-assisted matters and 50 litigated matters. is pyramid emphasises the point that litigation, while important, is not the process through which most disputes are resolved or managed. Like the spectrum, however, the dispute pyramid offers a limited and relatively simplistic representation that, again, does not accurately re ect the true complexity of DR systems. As Albiston, Edelman and Milligan note, the approach leaves ‘important processes undertheorized and understudied’.42 3.21 In 2014, Albiston, Edelman and Milligan proposed a new organising approach with the concept of a dispute tree. is metaphor describes DR processes as having: … many branches, both legal and non-legal, through which grievances may be resolved. Grievances may move along several branches simultaneously, and dispute resolution may be a nonlinear process. Branches represent the evolving nature of disputes as living organisms that may bear owers and fruit or may wither and die. Not only dispute trees but also their forests are subjects for study.43

3.22 It is important to accept representations of DR approaches as nonlinear and uid, and also to acknowledge the contribution to DR theory and thinking (as well as effective communication about DR),44 that the DR spectrum, dispute pyramid and other [page 75] models have made, and continue to make. Realistically, all available representations, including those discussed here, are limited in some way. Nevertheless, aer some discussion of the key descriptive elements of DR processes in the next section, a DR ‘matrix’ is proposed.

A DR matrix 3.23 e DR matrix proposed in this book assists with understanding the nature of key DR processes and with analysing and assessing them as part of the diagnostic approach discussed in Chapter 2, that DR practitioners and lawyers can use to consider which DR process is most appropriate for a particular dispute.45 e DR matrix seeks to offer a concise but nuanced and

more detailed depiction of DR processes than, for example, the DR spectrum, harnessing theory and scholarship in a practically useful way.

The three descriptive elements of the DR matrix 3.24 e DR matrix lists the three key descriptive elements of DR processes in its rst three columns. ese include: the category of DR process, the role of the third-party intervenor in the process and the functional focus, or in other words, the purpose or purposes of the process. e nal column of the matrix then identi es the common practical manifestations of each DR category.

The category of DR processes 3.25 As noted above, one of NADRAC’s important legacies is the identi cation of three core categories of DR process in its iconic publication Dispute Resolution Terms: the facilitative, advisory and determinative categorisations. ese categories contribute to the rst of the DR descriptive elements in the matrix. Facilitative DR processes were de ned by NADRAC as: ‘processes in which the dispute resolution practitioner assists the parties to identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement about some issues or the whole dispute’.46 Examples of facilitated processes were identi ed as mediation, facilitation and facilitated negotiation. NADRAC de ned advisory processes as: ‘processes in which a dispute resolution practitioner considers and appraises the dispute, and provides advice as to the facts of the dispute, the law and in some cases possible or desirable outcomes, and how these may be achieved’.47 Illustrative processes in this category included expert appraisal, case appraisal, mini-trial and early neutral evaluation. Determinative processes were de ned by NADRAC as: ‘processes in which a dispute resolution practitioner evaluates a dispute (which may include the hearing of formal evidence by the parties) and makes [page 76]

a determination’.48 Arbitration, expert determination and private judging were provided as examples, to which the matrix offered in this book adds litigation. 3.26 e matrix also includes some DR process categories not in NADRAC’s original trio, namely, assisted DR processes (where assistance in managing or resolving a dispute is provided by a partisan third party, and the parties in dispute maintain a signi cant level of autonomy in deciding how they will apply the assistance in determining their own outcome); transformative DR processes (which are less outcome focused and oen have a therapeutic or relational aspect that transforms the parties and/or the dispute in some way); and blended DR processes (which combine two or more distinct approaches into one system). For completeness, the matrix also includes methods that parties adopt that don’t involve a third party of any sort, such as self-help approaches. Speci c processes within these categories, as identi ed in the matrix, are discussed in more detail in Chapter 4.

The roles and functions of third-party intervenors 3.27 e second of the three key descriptive elements of DR processes in the matrix focuses, in column two, on the roles and functions of the thirdparty intervenors involved. NADRAC’s (extended) DR process categorisation is also useful for this differentiation: namely, describing DR processes in terms of the role of third parties who intervene as assisters, facilitators, advisers, determiners and transformers.49 3.28 In assisted and facilitated processes, third-party intervenors will assist the parties in dispute by adopting a supporting, helping role. Lawyers, for example, assist individual parties as their partisan advocate or representative in processes such as assisted negotiation, where they support their client to negotiate with the other side, usually on the basis of their legal expertise in the speci c area in dispute. In facilitated DR processes, the third party will assist by conducting the relevant process and managing its procedures in a non-partisan manner on behalf of both parties, and oen without an advisory role. In both assisted and facilitated DR contexts, the third-party intervenor does not have a determinative role in relation to the

content or outcome of disputes. Rather, in both assisted and facilitated processes, the parties themselves have signi cant input and contribute to the shape of the nal outcome. e ethical practice of lawyers supporting clients in assisted negotiations is guided by the conduct rules for solicitors and barristers.50 Mediators (both lawyers and non-lawyers) who practise under the NMAS are guided by the practice standards of that system.51 [page 77] 3.29 In advisory processes, third-party intervenors investigate relevant events, ascertain disputed facts and listen to the respective parties’ arguments. As with facilitated processes, they manage the DR process on behalf of both parties in a non-partisan way. During and at the culmination of the process they provide opinions, advice or recommendations on disputed facts, and applicable legal or other norms; and they oen advise on potential or appropriate dispute outcomes. In many of the advisory forms of DR process, such as conciliation, the third-party intervenor is required to have experience and expertise in the subject matter of the dispute. 3.30 In determinative processes, independent, non-partisan third-party intervenors, such as arbitrators or judges, establish relevant facts through prescribed formal procedures, identify the law or other norms relevant to the circumstances, and make objective determinations on who should have a nding made in their favour. Determinations are binding, or presumptively binding, on disputants. ird-party intervenors in determinative processes have expertise in the subject matter of disputes or in the norms relevant to making determinations (such as the law). e expertise of the intervenor is oen augmented by technical opinions from experts and arguments from parties and their advisers or representatives. ird-party intervenors in determinative contexts require skills in conducting fair procedures, in maintaining their independence and in making rational and reasoned decisions. 3.31 Transformative processes are intended to achieve more than mere resolution or management of issues in dispute, aiming instead to change

aspects of relationships and mind-sets relevant to a dispute. Transformative intervenors therefore usually need quali cations and skills in relevant behavioural sciences. Transformative intervenors, such as social workers and psychologists, can also operate as third parties in facilitated and advisory processes. 3.32 ird-party intervenors do not always stay within the boundaries of these four categories. Some Australian mediators, particularly in legal and commercial mediations, become advisory in their interventions and retired judges may be engaged as ‘mediators’ speci cally because of their capacity to evaluate the law, facts and evidence and recommend appropriate outcomes to the parties. Arbitrators can assume facilitative functions before or while conducting their determinative processes. And conciliators, who are presumptively intended to bring normative in uences to bear on parties, are not precluded from assuming facilitative roles. e boundary predicament is exacerbated by the reality that in all DR categories practitioners come from different professional disciplines, each with its own values, goals and priorities. e de nitional categories emphasise the primary roles of intervenors, but secondary functions can and do arise beyond these de nitional bounds. [page 78]

The purpose of DR processes 3.33 DR processes can also be differentiated from one another according to their purpose and this is the third key descriptive element used in the matrix.52 In this context, Gary Furlong’s con ict analysis model is useful.53 is model delineates the functional focus of DR systems into those that address the parties’ interests, those based on the parties’ rights, and those based on issues of power. For the purposes of the DR matrix, a preventionfocus is also included. Describing DR processes in terms of the elements of prevention, interests, rights and power highlights some of the different reasons particular DR approaches may be attractive or valuable in different contexts for parties. Parties who seek to avoid disputes, for example, would

clearly be drawn to prevention-focused processes; interests-focused processes are positively indicated for parties who have needs and interests that require reconciliation; rights-focused processes are useful for parties who will bene t from an evaluation of the legal merit of relevant claims; and power-focused processes generally suit more powerful parties, who can use the process to achieve the outcome they seek. 3.34 DR processes that have a focus on the prevention of con ict or disputes are useful when attempting to ensure that disputes do not emerge in the rst place by establishing structures and procedures for dealing early with issues or problems.54 Prevention-focused DR encourages approaches and activities designed to anticipate and forestall problems through systems of planning, and through establishing effective lines of communication, as well as avoidance and deterrence strategies. Prevention-focused DR systems are essentially future-looking in their orientation, but oen build on past experience. Assisted, facilitative and transformative processes have the strongest preventative orientation, but virtually all DR processes can be used with this purpose. For example, a de nitive determination in a matter may well prevent a dispute from escalating or prevent further issues arising. 3.35 Interests-focused DR processes provide opportunities for the parties in dispute to explore needs and interests that underpin the positions they hold.55 e complexity that positions and interests add to the nature of disputes was discussed in Chapter 2. To recap, positions relate to what the parties want in terms of an outcome to a dispute, and interests relate to why they want that outcome. For example, ‘I want my ex-partner to let me keep the family dog (position) because at night I feel scared and anxious alone [page 79] in the house (interest)’. Processes that allow exploration of interests, needs and priorities, as well as positions, have the potential to assist the parties to move away from what might seem intractable stances. is is because while positions are oen incompatible, interests may in fact be compatible and, and once those interests are on the table, it may be possible to generate

creative options that meet the different needs of the parties, and expand the possible remedial responses to a dispute. Parties can engage in interestsfocused DR processes on their own, but this can be difficult when positions are entrenched. Assistance from intervenors, such as mediators, is a valuable intervention to ensure a focus on interests. Dialogue, negotiation, compromise and accommodation can be used to reconcile (at least some of) the parties’ individual perspectives in order to move towards mutually satisfactory outcomes, or to achieve a reduction in the number of matters in issue. Interests-focused processes are relevant to many diverse disputes at a range of levels, from personal to business and from local community to national or global institutional levels. Past events and legal rights have less direct signi cance in these processes, and any focus on power is potentially reduced or managed, especially if a third-party, non-partisan intervenor is involved. e DR processes on the matrix that best support inclusion of an interest-focus include: assisted, facilitative, advisory, transformative and blended processes. 3.36 In rights-focused DR processes, disputes are determined according to which party is entitled to prevail in terms of the applicable (oen legal) rights and obligations. Parties who concentrate on their rights commonly de ne their dispute in terms of their legal position, that is, their legal right to receive what they want. For this reason, rights-focused DR processes accommodate the parties taking a positional and oen in exible approach to resolving the dispute and allow for a result in which one party wins and the other loses.56 A rights-focus can manifest in assisted negotiations, but oen the parties in dispute, commonly through an expert representative or legal advocate, submit normative arguments to authoritative third-party individuals or institutions, who then make decisions as to which party is right and wrong about their claims. Rights-focused DR processes focus predominantly on past events and the party who has the law, or other normative standards, on their side will prevail, regardless of existing underlying needs and interests, and sometimes notwithstanding relative power resources. For example, a rightful claimant in an insurance matter may prevail, despite the greater resource power held by the insurance company. DR processes where a rights-focus can be found include assisted, advisory, determinative and blended processes.

3.37 Power is a complex concept, especially in the context of DR.57 Power is rarely an absolute notion because almost every party will have at least some source, or even multiple sources, of power available to them whatever the DR process in which they are [page 80] engaged. In power-focused DR processes, however, the relative power of the parties is critical because essentially it can be determinative of the dispute’s outcome. Processes focused on the parties’ relative power provide an environment in which the disputing parties engage in contests of strength through argument, political competition, referenda, industrial action, armed con ict or other power-based activities. It is because these contests operate at the power level that more powerful parties inevitably prevail and weaker, less powerful parties might be overpowered, regardless of the parties’ respective needs and interests, rights and duties, or other objective norms.58 3.38 e following is illustrative of the differences among the above categories: e board of a not-for-pro t organisation puts in place a series of procedures, such as extensive communications to volunteer staff, regular meetings for volunteers and employees and mandatory educational programs on workplace roles and responsibilities and compliance obligations for all parties (prevention). Where disputes arise between individual employees and volunteers, the organisation’s policies and procedures oblige both sides to engage in discussions and negotiations designed to accommodate their respective needs and priorities (interests). If the interests-based processes do not resolve matters, there is provision for a third party external to the organisation to determine who is right and wrong according to the relevant policies and procedures and to make a binding decision (rights). Finally, where there is continued con ict or recalcitrance by either party, managers may exercise their prerogative powers to discipline the employee or volunteer, or both (power). 3.39 For both individuals and institutions, an interest-focus is generally less costly and damaging and potentially more bene cial than a rights-focus,

which in turn is more advantageous than power approaches. Although a focus on prevention might have high set-up costs in the short term, it may well result in lower costs in the intermediate and longer terms.59 Con ict theory holds that where an inclusive DR scheme, as might be found in a professional association, industry body or human resources system, focuses predominantly on prevention and interests it is likely to involve fewer transaction costs, less relationship strain and greater satisfaction with outcomes, and of course it will reduce the likelihood of disputes occurring in the rst place. 3.40 Although interests-focused approaches are now commonly recognised as oen able to produce optimal results for parties in dispute, some circumstances might not be suitable for these methods. For example, a rights-focus in a court or tribunal is likely to be most appropriate where there are allegations that constitutional rights or fundamental liberties have been contravened. Likewise, issues of signi cant social [page 81] policy, such as human surrogacy or marriage equality, are less easily managed by interests-based processes. Rather, they require power contests through political systems or popular referenda for authoritative determinations. Needless to say, more than one focus may be appropriate for the same set of circumstances. 3.41 Lawyers, although conventionally associated with the rights-focus of adversarial advocacy, litigation and other determinative processes, can be involved in each of the four categories, as is shown throughout this book. For example, lawyers oen adopt preventative approaches in the transactional work they do for clients. ey are also involved in interestsbased approaches in negotiation and settlement work, as well as in the range of advocacy roles adopted in processes such as mediation and collaborative practice. Further, lawyers are, or should be, experts in understanding power relations in disputes and how to manage them.60

The Australian DR matrix 3.42 e DR matrix proposed in this book is structured using the three key descriptive elements of DR processes discussed above. Combining these elements together in the matrix assists with understanding both the nature and the complexity of DR process options in ways that are relevant to contemporary professional practice in Australian DR and legal communities. 3.43 e matrix, found in Table 3.1 below, explains the nature of the third-party intervenor’s role, identi es the focus of the process (prevention, interests, rights and power), and lists the processes most commonly associated with each category. e processes identi ed in the matrix are discussed in more detail in Chapter 4 and the most signi cant processes of different categories are then each discussed in a devoted chapter in Part II. Table 3.1 — The DR Matrix Categories ‘Processes’ without a thirdparty intervenor

Intervenor There is no thirdparty intervenor.

Purposes Prevention Interests Rights Power

Processes Lumping it Walking away Selfhelp approaches such as do-ityourself activities Seeking information or initial advice Unassisted negotiation

[page 82] Categories Assisted (partisan) DR processes

Intervenor The third party is a partisan intervenor focused on assisting a party and contributing

Purposes Prevention Interests Rights Power

Processes Assisted negotiation Collaborative practice Con ict

to managing the process and content of the dispute. The partisan third party provides advice and advocacy (for the party they represent).

coaching Partnering Alliancing Counselling

Facilitated (nonpartisan) DR processes

The third party is a non-partisan intervenor focused on facilitating the process, while the parties (or their representatives) manage the content of the dispute. The nonpartisan third party does not generally provide advice or an evaluation of the merits of each party’s position. The third party does not make a determination/decision for the parties.

Prevention Interests Rights Power

Facilitative mediation Facilitation Conciliation Counselling Good offices, brokering

Advisory DR processes

The third-party intervenor conducts the process and in uences the outcome by providing advice. They do not make a determination/decision for the parties.

Interests Rights Power

Conciliation Case/expert appraisal Neutral evaluation Evaluative mediation Factnding

[page 83] Categories Determinative DR processes

Intervenor The third-party intervenor conducts process and

Purposes Rights Power

Processes Arbitration Expert determination Adjudication

determines the outcome (makes a decision for the parties).

Dispute Review Boards Litigation

Transformative DR processes

The third-party intervenor conducts the process and supports transformation with less focus on the outcome per se.

Interests Prevention

Therapy Con ict coaching Transformative mediation Therapeutic mediation

Blended DR processes

The third-party intervenor combines different functions. They conduct the process and may or may not make a determination/decision for the parties.

Interests Rights Power

Negotiationarbitration Mediationarbitration (medarb) Mediationarbitrationmediation (medarb-med) Arbitrationmediation (arbmed) Arbitrationmediationarbitration (arbmed-arb)

Conclusion 3.44 is chapter demonstrates that the difficulties associated with describing and de ning DR are sometimes signi cant. However, the chapter also suggests a DR matrix that provides a way of mapping the processes according to the DR process category and the roles and functions of the third-party intervenor, while still acknowledging the complexities created by the purpose focus of processes in terms of prevention, interests, rights and power. 3.45 For DR practitioners and lawyers providing contemporary legal services, a knowledge of this matrix is fundamental to competence in ethically and successfully advising parties, managing processes and representing clients. Further, an ability to apply the matrix in practical legal

contexts is critical to appropriate and effective advocacy for the bene t of a client’s interests. For this reason, the matrix is offered as a tool in the contemporary resources available for effective, responsible and ethical legal practice in DR contexts. 1.

Nancy Neslund used the term ‘matrix’ in the context of describing DR systems in 1990: see Nancy Neslund, ‘Dispute Resolution: A Matrix of Mechanisms’ (1990) Journal of Dispute Resolution 219. Taxonomies are acknowledged as a useful way of assessing the characteristics of DR methods: Robert Baruch Bush, ‘De ning Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66(3) Denver University Law Review 335.

2.

DR knowledge is now part of the new advocacy role for lawyers which is discussed in more detail in Chapter 12. See, eg, David Newton, ‘Alternative Dispute Resolution and the Lawyer’ (1987) 61(9) Australian Law Journal 562; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH, 2010); Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011); Donna Cooper, ‘e “New Advocacy” and the Emergence of Lawyer Representatives in ADR’ (2013) 24(3) Australasian Dispute Resolution Journal 178; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian Dispute Resolution Journal 242; Julie Macfarlane, e New Lawyer: How Clients are Transforming the Practice of Law (University of British Columbia Press, 2nd ed, 2017) ch 5; Kathy Douglas, ‘e Role of ADR in Developing Lawyers’ Practice: Lessons from Australian Legal Education’ in Avrom Sherr, Richard Moorhead and Hilary Sommerlad (eds), Legal Education at the Crossroads: Education and the Legal Profession (Routledge, 2018); Jacqueline Weinberg, ‘Keeping Up with Change: No Alternative to Teaching ADR in Clinic. An Australian Perspective’ (2018) 25(1) International Journal of Clinical Legal Education 35; Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis Butterworths, 2018) 116–24; Tania Sourdin and Margaret Castles, ‘Is the Tail Wagging the Dog? Finding a Place for ADR in PreAction Processes: Practice and Perception’ (2020) 41(2) Adelaide Law Review 479.

3.

A brief history of NADRAC, and other key Australian DR organisations and bodies, is provided in Chapter 3.

4.

See, eg, Becky Batagol, ‘Dumb Decision — e Closure of NADRAC’ (12 November 2013) ADR Research Network .

5.

is point is made by many scholars. See, eg, Jack Effron, ‘Alternatives to Litigation: Factors in Choosing’ (1989) 52(4) Modern Law Review 480, 480–97; Yves Dezaley and Bryant Garth, ‘Fussing about the Forum: Categories and De nitions as Stakes in Professional Competition’ (1996) 21(2) Law and Social Inquiry 285; Kathy Mack, Court Referral to ADR: Criteria and Research (NADRAC, 2003) 26; Maurits

Barendrecht and Berend R de Vries, ‘Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market for Dispute Resolution Services?’ (2005) 7(1) Cardozo Journal of Con ict Resolution 86; Frank EA Sander and Lukasz Rozdeiczer, ‘Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a MediationCentered Approach’ (2006) 11(1) Harvard Negotiation Law Review 7. e Australian Productivity Commission recommended in 2014 that common de nitions about legal services be adopted in order to ‘maximise the usefulness of legal services data sets, [and] reform in the collection and reporting of data’: see Productivity Commission, Access to Justice Arrangements, Report No 72 (2014) recommendation 25.2. Carrie Menkel-Meadow acknowledges the difficulties in de nitions of DR in Carrie MenkelMeadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38(2) South Texas Law Review 407, 408. 6.

NADRAC, Dispute Resolution Terms: e Use of Terms in (Alternative) Dispute Resolution (Australian Government, 2003) 1.

7.

Ibid.

8.

Ibid 1–2.

9.

See Boulle, (n 2) 15–17. is distinction is also made by NADRAC, (n 6) 2.

10.

Eric Green was arguably one of the rst to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Case Litigation: An Alternative Approach’ (1978) 11(3) Loyola of Los Angeles Law Review 493. See also Australian Law Reform Commission (ALRC), Review of the Adversarial System of Litigation ADR — its Role in Federal Dispute Resolution, Issues Paper 25 (1998) section 2; Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 982010 (2010) , citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991–92) 15(1) Holdsworth Law Review 20.

11.

See Frank EA Sander, ‘Varieties of Dispute Processing’ in A Leo Levin and Russel R Wheeler (eds), e Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979) 84.

12.

Most notable were debates about whether arbitration could properly be included within the suite of ADR processes. See further Chapter 10 on arbitration.

13.

NADRAC, (n 6) 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012) 5.

14.

See, eg, Newton, (n 2).

15.

Brunet, eg, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62(1) Tulane Law Review 1, 10.

16.

Robert A Baruch Bush, ‘De ning Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66(3) Denver University Law Review 335, 343.

17.

For example, Galanter noted ‘the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation’: Marc Galanter, ‘A Settlement Judge Not a Trial Judge: Judicial Mediation in the US’ (1985) 12(1) Journal of Law and Society 1.

18.

Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1(1) Australian Dispute Resolution Journal 31.

19.

Owen M Fiss, ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073, 1075 commenting: ‘I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets’.

20.

Sir Laurence Street, ‘e Language of Alternative Dispute Resolution’ (1992) 66(4) Australian Law Journal 194. Street’s preference for the term ‘additional’ did not imply rejection of emphasis on litigation, which he considered a ‘fundamental element’ of Western democracy. Rather, he viewed ADR as ‘supportive’ of litigation. See also, eg, Mavis Maclean, ‘Family Mediation: Alternative or Additional Dispute Resolution?’ (2010) 32(2) Journal of Social Welfare and Family Law 105; David Spencer, Principles of Dispute Resolution (Lawbook, 2011) 3. Further, eg, the term ‘additional dispute resolution’ was used in s 268(1) of the Resource Management Act 1991 (NZ). However, that section now refers to ADR as ‘alternative dispute resolution’.

21.

See, eg, Paul Lynch, ‘e Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of e Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53.

22.

e term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive — see, eg, the Civil Procedure Act 2010 (Vic) ss 66–69. See also Department of Justice, Victoria, New Directions for the Victorian Justice System 2004– 2014: Attorney General’s Justice Statement (Victorian Government, 2004) 33 where it is said that ADR is increasingly referred to as ‘appropriate dispute resolution’, ‘in recognition of the fact that such approaches are oen not just an alternative to litigation, but may be the most appropriate way to resolve a dispute’, citing ch 4 of the Victorian Law Reform Commission, Civil Justice Review: Report (2008) 212. See also, eg, Jeffrey S Wolfe, ‘Across the Ripple of Time: e Future of Alternative (Or, is it Appropriate) Dispute Resolution’ (2000) 36(4) Tulsa Law Journal 785; Carrie MenkelMeadow, ‘Alternative and Appropriate Dispute Resolution in Context: Formal, Informal, and Semiformal Legal Processes’ in Peter T Coleman, Morton Deutsch and Eric C Marcus, e Handbook of Con ict Resolution: eory and Practice (John Wiley, 3rd ed, 2014) ch 50.

23.

is expression is more limited in that it speci cally refers to steps taken during the performance of a construction project by those responsible for delivery of the project rather than by outside third parties. See, eg, Douglas Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law Journal 31, 33.

24.

See, eg, David Hollands, ‘FIDIC’s Provision for Amicable Settlement of Disputes’ (1989) 6(1) International Construction Law Review 33. See also the International Chamber of Commerce, Rules of Arbitration, in force as from 1 January 2021 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods .

25.

It is worth noting that in NADRAC’s 2003 publication Dispute Resolution Terms, (n 6), the subtitle of the work was: ‘e use of terms in (alternative) dispute resolution’. However, note also, eg, that in Tasmania the Alternative Dispute Resolution Act 2001 (Tas) remains in force at the time of writing. Further, in some contexts, ‘ADR’ is part of a broader concept of ‘resolution processes’. For example, in the Civil and Administrative Tribunal Act 2013 (NSW) s 37 is headed, ‘Tribunal to promote use of resolution processes’ and permits the Tribunal to use (or require parties to proceedings to use) any one or more ‘resolution process’. It de nes resolution process as ‘any process (including, eg, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings’: s 37(2). I also respectfully acknowledge that my esteemed colleague, Professor Tania Sourdin, prefers to continue to use the term ‘alternative dispute resolution’ in her much cited and prescribed work, Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020).

26.

Anne Bihancov, What is an Example of a Good Dispute Resolution Clause and Why? (February 2014) Civil Justice Research Online. For example, the Civil Dispute Resolution Act 2011 (Cth) s 6 requires applicant parties to le a statement explaining the genuine steps that have been taken to resolve the matter before ling in the Federal Court.

27.

In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: e Alternative (Carswell omson Professional Publishing, 1994). See also Debra Baker, ‘Juvenile Mediation — Innovative Dispute Resolution or Bad Faith Bargaining’ (1995) 27(4) University of Toledo Law Review 897; Holly Dare et al, ‘Toward Better Outcomes for Families rough Innovative Dispute Resolution Programs in England’ (2019) 57(3) Family Court Review 368. Another formulation is ‘less-drastic’ forms of dispute resolution: see William Fox, International Commercial Agreements (Kluwer Law International, 3rd ed, 1998) 213. See also Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014).

28.

See Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: e Case of Divorce’ (1979) 88(5) Yale Law Journal 950. Mnookin and Kornhauser called for ‘theoretical and empirical research concerning how people bargain in the shadow of law’ in order to provide ‘a richer understanding of how the legal system affects behavior, and [to] allow a more realistic appraisal of the consequences of reform proposals’: ibid, 997. See also Herbert Jacob, ‘e Elusive Shadow of the Law’ (1992) 26(3) Law & Society Review 565; Chinwe Umegbolu, ‘Bargaining in the Shadow

of the Law: e Facts of Divorce as ey Stand Today’ (2020) e Arbitrator and Mediator (online). But see also Carrie Menkel-Meadow, ‘Lawyer Negotiations: eories and Realities — What We Learn from Mediation’ (1993) 56(3) Modern Law Review 361, 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law in uences out-of-court settlements. See further Annie de Roo and Rob Jagtenberg, ‘“Shadow of the Law” or “Shadow of the Settlement”: Experiences with the Dutch Act on Collective Settlement of Mass Damage (WCAM)’ in Alan Uzelac, Cornelis Hendrik (Remco) van Rhee (eds), Transformation of Civil Justice: Unity and Diversity (Springer, 2018) 249–63. 29.

See NADRAC, (n 6). Note the title of NADRAC’s de nitions publication changed from Alternative Dispute Resolution De nitions in 1997 to Dispute Resolution Terms: e Use of Terms in (Alternative) Dispute Resolution in 2003. See also ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7.

30.

NADRAC, Dispute Resolution Terms, (n 6) 6.

31.

Ibid 4, 6 and 7.

32.

Leonard Riskin quoted George Box as saying ‘All models are wrong, but some are useful’: George EP Box, ‘Robustness in the Strategy of Scienti c Model Building’ in Robert L Launer and Graham N Wilkinson (eds), Robustness in Statistics (Academic, 1979) 201, 202. See Leonard L Riskin, ‘Decisionmaking in Mediation: e New Old Grid and the New New Grid System’ (2003) 79(1) Notre Dame Law Review 1.

33.

See Sourdin, (n 25). See also, eg, Alysoun Boyle, ‘Effectiveness in Mediation: A New Approach’ (2017) 12 e Newcastle Law Review 148; Alysoun Boyle, ‘SelfDetermination, Empowerment and Empathy in Mediation: Rehumanising Mediation’s Effectiveness’ (2020) 15 e Newcastle Law Review 35.

34.

e Irish Law Reform Commission added preventative, collective and court-based categories to those of facilitative, advisory and determinative: Law Reform Commission, Ireland, (n 10) 41.

35.

Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective (Cavendish, 2004) 21.

36.

e Productivity Commission, (n 5) 99–100, notes in its analysis of survey evidence that 30 per cent of respondents with legal problems take neither action nor advice, and that not taking action could be a completely rational response to a situation.

37.

See Spencer, (n 20).

38.

Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) 418.

39.

Richard E Miller and Austin Sarat, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15(3-4) Law and Society Review 525.

40.

Ibid 545.

41.

A grievance is de ned as an ‘individual’s belief that he or she (or a group or

organization) is entitled to a resource which someone else may grant or deny’. It may lead to a claim, but the parties may also walk away from a grievance: ibid 527. 42.

Catherine R Albiston, Lauren B Edelman and Joy Milligan, ‘e Dispute Tree and the Legal Forest’ (2014) 10 e Annual Review of Law and Social Science 105, 105. See also Kate Curnow, ‘e Dispute Tree or the Dispute Pyramid?’ ADR Research Network Blog (2015) .

43.

Ibid.

44.

Note also that such representations can constructively assist with a legal practitioner’s obligation to advise clients of alternatives to fully contested adjudication as required by r 7.2 of the Australian Solicitors Conduct Rules (24 August 2015) which at the time of writing are currently under review; and by r 36 of the Legal Profession Uniform Conduct (Barristers) Rules 2015.

45.

e matrix was originally devised together with Laurence Boulle for a previous iteration of this work. See Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis Butterworths, 2017) ch 2.

46.

NADRAC, (n 6) 7.

47.

Ibid 4.

48.

Ibid 6.

49.

For an application of this categorisation to family dispute resolution, see Donna Cooper, ‘e Family Law Dispute Resolution Spectrum’ (2007) 18(4) Australasian Dispute Resolution Journal 234. See also Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER 303 in which McKinnon J accepted a similar classi cation of determinative (arbitration, binding expert valuation and third-party certi cation) and non-determinative processes (negotiation, mediation, expert appraisal and nonbinding mediator rulings).

50.

See (n 44).

51.

See National Mediator Accreditation Standards: Approval Standards (2015), 2 .

52.

See generally Leigh Robertson and Mieke Brandon, Con ict and Dispute Resolution (Oxford University Press, 2007) 55–82. See also Carrie Menkel-Meadow, ‘What is an Appropriate Measure of Litigation? Quanti cation, Quali cation and Differentiation of Dispute Resolution’ (2021) 11(2) Oñati Socio-Legal Series: “Too Much Litigation?”: Facts, Reasons, Consequences, and Solutions 320.

53.

For a discussion of this model, see Gary T Furlong, e Con ict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing and Resolving Con ict (Wiley, 2nd ed, 2020).

54.

Louis M Brown is widely acknowledged as originating the idea of preventive law in his book Preventive Law, published in 1950, and his article Louis M Brown, ‘e Law

Office: A Preventive Laboratory’ (1956) 140(7) University of Pennsylvania Law Review 940. 55.

On interests-based negotiation, see Boulle, (n 2) 127–8.

56.

Deborah R Hensler, ‘Suppose It’s Not True: Challenging Mediation Ideology’ (2002) Journal of Dispute Resolution 81. See also Rhain Buth, ‘Zombie Mediations’ (2015) 26(2) Australasian Dispute Resolution Journal 104.

57.

See, eg, Hilary Astor, ‘Some Contemporary eories of Power in Mediation: A Primer for the Puzzled Practitioner’ (2005) 16(1) Australasian Dispute Resolution Journal 30. See also Boulle, (n 2) 203–4. See also Mieke Brandon and Rachael Field, ‘An Analysis of the Complexity of Power in Facilitative Mediation and Practical Strategies for Ensuring a Fair Process’ (2020) e Arbitrator and Mediator 33.

58.

See also Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy, Style, Skills (LexisNexis Butterworths, 3rd ed, 2015).

59.

See generally William Ury, Jeanne Bret and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Con ict (Jossey-Bass, 2003) 30–53.

60.

See, eg, Susan D Carle, ‘Power as a Factor in Lawyers’ Ethical Deliberation’ (2006) 35(1) Hofstra Law Review 115.

[page 85]

Chapter 4 The Dispute Resolution (DR) Processes on the DR Matrix Chapter contents Introduction Unassisted approaches to DR Assisted (partisan) DR processes Facilitated (non-partisan) DR processes Advisory DR processes Determinative DR processes Transformative DR processes Blended DR processes Conclusion

4.1 4.3 4.17 4.55 4.75 4.97 4.111 4.116 4.122

Introduction 4.1 is chapter introduces a full range of dispute resolution (DR) processes as listed on the matrix proposed in Chapter 3. As discussed in Chapter 1, to be effective and efficient providers of contemporary professional DR and legal services, practitioners must have the capacity to engage in a meaningful evaluation of DR systems, and be able to apply that knowledge to advising and advocating for their clients.1 is requires an understanding of the different attributes of each of the various DR processes and a full [page 86] appreciation of what each process has to offer. e variety of available DR systems, with differing strengths and shortcomings, creates a diverse range

of choices and process options. Some choices are informed, or constrained, by regulatory frameworks or codes of conduct and others are as unfettered as market choices, unrestricted in some dimensions but subject to affordability, access and supply. 4.2 In this chapter, the DR processes included on the DR matrix in Chapter 3 are de ned and described in order to highlight their similarities and differences, and some of their practical applications are brie y noted. Where appropriate, references to NADRAC’s de nitions are included.2 e most signi cant and commonly used DR processes will be discussed in more detail in dedicated chapters in Part II of the book including negotiation, mediation, conciliation, arbitration and litigation. ese processes constitute the principal processes of DR practice and of DR lawyering, and can be used as standalone systems or in combination with one another.

Unassisted approaches to DR 4.3 e rst category on the DR matrix concerns unassisted approaches to DR. Essentially, there is no ‘process’ per se with these approaches and the disputants manage the situation themselves, without any partisan or nonpartisan intervention by a third party. e matrix lists the key approaches in this category as including: lumping it (or in other words, accepting the status quo), walking away, self-help approaches (such as do-it-yourself activities and seeking information or initial advice, for example, from an online source or community advice service), and unassisted negotiation. Of these, self-help activities and unassisted negotiation are discussed further below. 4.4 Unassisted approaches to DR can illuminate for the parties their respective interests, rights and power sources in ways that can be deployed to decide what further action should be taken in relation to a dispute. For example, information or advice can be used preventatively to avoid a dispute from arising or becoming more serious, or it can lead a person to one of the other processes on the matrix. Unassisted negotiations, for example, can be used with a prevention or interests focus, but they can also address the parties’ positions in terms of rights or entitlements (with the proviso in this context that these matters should not be high stakes). In unassisted

approaches to DR, the power balance between the parties should be relatively equal with even access to [page 87] resources, information and knowledge; and an absence of personal or structural power inequality is also optimal.

Self-help activities 4.5 Parties in dispute almost always resort to self-help in some degree, dealing initially with a con ict situation or dispute, or parts of it, without professional advice or assistance. is could involve a decision to deal with the full handling of the situation on their own, or accessing initial information independently to inform decision-making about possible next steps, and best approaches to risk mitigation. Indeed, even when disputants do seek external assistance in managing or resolving their dispute, initial decisions are almost always self-directed. 4.6 In practical terms, self-help in relation to con ict or disputes can involve, for example, a person writing to or emailing another party, engaging in a negotiation face-to-face, by phone or over the internet, or taking other action, informal or formal, in which they assume the predominant responsibility for settling or resolving the matter. Individuals can conduct their own investigations into dispute situations, consult online information services, apply for access to official information from government agencies,3 and undertake many other activities on their own. For example, a purchaser armed with knowledge of the Australian Consumer Law4 from the Australian Competition and Consumer Commission (ACCC) website might elect to use this information in attempting, on their own, to settle or resolve a dispute with a seller.5 4.7 In an age of increasing access to information, people are commonly using websites to access information or advice before undertaking various activities on their own.6 It is impossible to estimate how many people or

businesses resort to self-help when confronted by legal problems and disputes. However, doing so can save time [page 88] and money, increase awareness about rights and remedies, and assist with tackling the human tendency to avoid dispute situations and ensure matters are addressed.7 4.8 Self-help approaches re ect a philosophical mood of contemporary times which embraces party autonomy and respects the capacity of individuals, when armed with appropriate and accurate information and guidance, to deal effectively and efficiently with their own disputes. For example, this philosophy is found in workplace and nancial dispute contexts, and in some DR clauses in contracts, where initial internal or individual attempts to resolve issues are required, such as talking to the other person rst, before a matter can legitimately be escalated to a facilitated or determinative process.8 Illustrative examples can be found in the New South Wales Strata Schemes Management Act 1996 and the Community Land Management Act 1989 which both set out processes for resolving disputes, starting with ‘talking about it’;9 and in the Victorian owners corporations context, many disputes are dealt with informally and early, sometimes with a ‘quiet word’ from the caretaker or building manager.10 To some extent the mediation process itself re ects the value proposition of self-help, namely that parties should be able to make their own decisions with the process guidance of mediators and without thirdparty intervenors imposing decisions on them.11 4.9 Many state, community and industry agencies provide general assistance to those wanting to access legal, procedural and decision-making information. e ACCC website, referred to above, is a good example of a positive shi in the amount [page 89]

of information that is being made available online. To some extent this shi has been a response to budget and funding issues. Legal aid bodies throughout the country, for example, are increasingly unable to represent individual clients in legal proceedings and are moving instead to making generalised information and fact sheets available online.12 Community legal centres also now commonly provide legal information and resources via their websites as a means of supporting access to justice.13 Women’s Legal Service Brisbane, for example, offers a range of freely accessible information and resources.14 4.10 While these forms of information do not constitute ‘advice’ per se, because they are not provided in the speci c factual context of a particular matter, they are still a cost-effective way of ensuring access to baseline information that can help parties to make informed decisions for themselves. One proviso about the usefulness of such resources, however, concerns how well equipped the individuals reading them are to interpret and apply the information to their own circumstances without assistance from an expert adviser, such as a lawyer. Nonetheless, when information is accompanied by explanations, case studies and illustrations, the mystique of a dispute situation, or of the legal system, can be reduced and parties can be empowered to act on their own behalf. 4.11 It is also important to note that more tailored advice and assistance for self-help parties is also provided through community legal centres, via employed legal staff and also by volunteer lawyers on a pro bono basis. e Justice Connect organisation, for example, has a ‘self-representation service’ for parties who are not represented, are unable to afford private legal assistance and are ineligible for legal aid.15 e service provides xed-time legal assistance for the preparation of documents and completion of court forms, for parties in bankruptcy, discrimination and judicial review matters in various states and territories. 4.12 When lawyers provide assistance in relation to only part of an overall DR process this is referred to as the ‘unbundling’ of legal services.16 Lawyers might do so [page 90]

within the context of a normal solicitor–client retainer for one party, but with their services restricted, for example providing assistance up to the nalisation of pleadings for pending litigation. e unbundling and disaggregation of legal services is likely to be a growing future reality for the legal profession with activities increasingly shared between solicitor and client.17 4.13 Further, some individual law rms make signi cant pro bono contributions to the community, and others are increasingly making legal information and case-law updates publicly available on the rm’s website. Lawyers are therefore involved in a range of approaches that assist parties with self-help DR strategies, and the self-help DR category does have some direct relevance for legal practitioners. Particularly for lawyers practising in the community legal sector or on a pro bono basis, there are many opportunities to be involved in information or advice provision in ways that will assist a party with deciding on preventative measures that might be adopted, whether they will attempt unassisted negotiations or selfrepresentation in a process, or whether or not they should pursue a matter further in terms of seeking more formal representation and advocacy in addressing their interests and/or pursuing their rights. So, although self-help is identi ed as an ‘unassisted’ approach, it can involve levels of provided assistance. 4.14 Aside from the philosophy of self-help expanding its reach, it has, for some, become an approach of necessity due to barriers to accessing formal legal representation and advocacy. Individuals who conduct matters themselves before courts and tribunals are generally referred to as ‘selfrepresented litigants’, ‘litigants in person’ or ‘pro se’ litigants.18 ere has been a steady increase in the numbers of self-represented litigants in Australia, and around the world, in recent decades.19 Some courts and tribunals [page 91] now provide speci c assistance for self-represented parties; the Supreme

Court of Victoria, for example, has a coordinator in its Registry who provides procedural advice, information about DR processes, and referrals to organisations providing free legal advice to self-represented litigants.20 In some tribunals, moreover, lawyers and other advisers are precluded from representing clients, or can do so only with the tribunal’s consent, and parties are presumptively expected to conduct their own cases.21 Indeed, it is perhaps even the case that parties in areas such as mental health and migration law might achieve better outcomes from courts and tribunals without lawyers because procedures are to some extent directed towards assisting them to appear in person without a third-party representative.22

Unassisted (direct) negotiations 4.15 Unassisted (direct) negotiation is another DR approach that can be managed by the individual parties involved without a third-party intervenor.23 In unassisted [page 92] negotiations the parties themselves control all the aspects of their informal negotiation activities, including the exchange of information, the communication methods adopted, the identi cation and determination of relevant facts and, of course, the outcome. In unassisted negotiations the parties communicate directly with each other about the relevant issues in contention, in an attempt to nd a solution through consensus that both parties can live with. Unassisted negotiations are organised by the individuals involved and can occur at any time and in any location that suits them. Such discussions can take place synchronously (for example, in person, by phone, or via a cloud-based video or audio-conferencing platform) or asynchronously (for example, using email, chat, texts or a discussion forum). Unassisted negotiations have no time restrictions, and it is possible also that they have no costs associated with them. 4.16 It is important to note that unassisted approaches to negotiations are not limited to dispute contexts. ey occur on a daily basis across every

country around the world as individuals navigate relationships, transactions, and all manner of matters relating to life and coexistence in families, organisations, communities and societies. Some individuals have inherent and instinctive skills in communication and negotiation. Others, however, struggle with this aspect of life. For this reason, communication and negotiation skills should possibly form a bigger part of the curriculum of compulsory primary and secondary schooling. Unassisted negotiations may indeed fail if one or both of the parties do not have the requisite skill sets. e theory and practice of negotiation is discussed in more depth in Chapter 7 and is as relevant to unassisted negotiations as it is to assisted negotiations.

Assisted (partisan) DR processes 4.17 e second category on the DR matrix concerns assisted processes which involve a third-party intervenor who advises and represents one of the parties in con ict or in a dispute as a partisan advocate for their individual interests. e matrix lists the key approaches in this category as including: assisted negotiation, collaborative practice, con ict coaching, partnering, alliancing and counselling. For example, lawyers support individual parties as their partisan advocate in assisted negotiation, by helping them to negotiate with the other side, or managing the entire negotiation for them, using their legal expertise.24 In this category of process, the partisan third-party intervenors for each side do not have a determinative role in relation to the content or outcome of a dispute; rather, the parties themselves have signi cant input to the nal outcome, based on the advice of the third-party intervenor. Assisted DR processes have the potential to [page 93] be positively interests-focused, but rights and power are also relevant and can impact on both the operation of such processes as well as on the outcomes reached. Further, as assisted processes can help to resolve matters

before more formal DR processes are needed, they can also be thought of as preventative in nature. As noted above, the negotiation process is discussed in more detail in Chapter 7, so the focus in this section is on the other listed assisted processes, with only a brief introduction afforded to assisted negotiation.

Assisted negotiation 4.18 As has been noted a number of times already in this book, negotiation is a foundational process used by DR practitioners in all contexts, and by lawyers both in transactional and in DR legal work. As such, it is a process and skill relevant to all other DR processes on the matrix, including litigation, as the discussion in Chapter 7 makes clear. 4.19 Assisted negotiation (also sometimes referred to as supported or indirect negotiation) is a process in which third-party advocates, agents or representatives assist individuals or groups, each with some capacity to in uence the other, to communicate and interact together with the goal of making joint decisions on issues, con icts or problems affecting them.25 Menkel-Meadow has said that ‘[w]hen people negotiate they engage in a particular kind of social behaviour, they seek to do together what they cannot do alone’.26 4.20 Assisted negotiation is certainly a relational and reciprocal process of supported ‘communication and information exchange, directed towards joint decision-making’.27 Assisted negotiations may involve two disputants (bilateral negotiations) with each disputant individually represented, or potentially with one disputant self-represented. ey can also involve a larger number of disputants (multilateral negotiations), again with all, or some, individually represented by their own advocate. Party control of the dispute, the procedure and the outcome is relatively high in assisted negotiation (especially when compared with some of the other DR approaches). However, party control is not necessarily absolute as negotiations take place in a climate of rules, both social and legal,28 in the context of the partisan advocates’ advice, and against a background of other process options for resolving disputes, including litigation.

[page 94]

Collaborative practice 4.21 e terms ‘collaborative practice’ (CP) and ‘collaborative law’ (CL) are generally used synonymously, although CP indicates more clearly that professionals other than lawyers (such as accountants, business and nancial advisers, social workers, psychologists, counsellors and child consultants) are important additional participants (depending on the nature of the issues in dispute) to lawyers in this approach, working in an integrated and interdisciplinary way together.29 (For efficiency, in this section, the general approaches encapsulated in CP and CL are referred to collectively as CP, unless CL, speci cally, is being discussed.) 4.22 CP purports to restore parties to the centre of decision-making in the management or resolution of their dispute and aims to ensure they have authentic responsibility for the decisions that are made.30 It challenges the notion of lawyers acting as zealous advocates of the parties’ legally framed positions, promoting instead non-adversarial client-centred lawyering.31 CP approaches are consistent with the philosophy of practices that are centred on the rule of law — for example, the protection of parties’ legal positions and rights — but are also committed to maintaining the pursuit of positive problem-solving and addressing the parties’ mutual needs and interests.32 With the inclusion of so much expert advice, CP approaches seek to address issues of power imbalance in achieving outcomes;33 and they can also be considered a preventative measure, for example, if their use delimits issues needing more formal resolution. [page 95] 4.23 Although Stu Webb is credited with rst conceptualising CL in 1990 in the family law context,34 many tie the origins of CL back to the pioneering work of Nester Kohut in the context of therapeutic family law;35 and Pauline Tesler is also regarded as one of the founders of the CL

movement.36 e notion of collaborative negotiation and problem-solving has, however, been built into the foundations of the negotiation and DR movements for many years.37 In this respect, CP represents a manifestation of larger changes in law and legal institutions promoting values such as humanism, the relevance of emotion and feelings and the importance of maintaining relationships.38 CP is designed to be exibly responsive to the parties’ particular circumstances, emphasising the transparency of operations and respectful professional interactions. 4.24 Training for CP began in Australia in 200539 and the system was supported by both the federal government and the Family Court. e Family Law Council also endorsed the practice and recommended the development of national guidelines. e Law Council of Australia established a collaborative practice committee in 2008, in addition to its ADR committee, and in 2011 promulgated CP practice guidelines for lawyers.40 us although CP was initially positioned outside formal aspects of the legal system, it was soon located partly within it. [page 96] 4.25 Nevertheless, CP remains a voluntary approach that operates, unlike many iterations of contemporary mediation, largely outside the constraints of legislation and court systems. It is a form of structured assisted negotiations, usually within a contractual framework, drawing (as was noted above) on the expertise of a range of diverse professional experts and advisers. Participants oen, and particularly in CL practice, sign a Participation Agreement which regulates the procedure and operation of the process, including the functions and responsibilities of all involved.41 Every participant, including lawyers, commits to operating in good faith, to making information available and to conducting themselves in a cooperative problem-solving way.42 As such, CP approaches operate with the intention of focusing the parties’ attention on actually achieving settlement rather than just constituting a step on the way to court. Participants are required to avoid conduct antithetical to the philosophy of collaboration, such as

threatening litigation, taking advantage of the other’s tactical mistakes or engaging in negotiation subterfuge.43 4.26 A particular feature, usually of CL more speci cally than CP more generally, is the inclusion in the lawyers’ retainer of a clause which disquali es them from acting for their clients in ensuing litigation if the parties fail to reach a settlement outcome through the process.44 is feature is designed, in part, to incentivise the parties to settle. However, it is also intended to limit the use of the process as a ‘ shing expedition’, and attempts to bypass the con dentiality principle in later litigation, and to reduce opportunities for other forms of process abuse. e disquali cation factor is, however, one of the more controversial features of CL, particularly for lawyers who contend that it could undermine long-term relations they have with particular clients, and increase costs.45 [page 97] 4.27 Once it has been agreed between the parties that a CP approach is to be used for a particular dispute, the professional teams work together to establish the collaborative procedures and protocols. e interdisciplinary nature of CP allows for a focus on the ‘psychological, social, emotional, and relational consequences’,46 as well as nancial and other consequences, of various courses of legal action in efforts to resolve or manage a dispute. CP creates a negotiation environment that has the potential to generate creative outcomes, and the exibility of the approach also allows for adaptations to address the particular needs of the parties, for example by introducing con ict-coaching elements (discussed below) during the preparatory stages. 4.28 In CP there is no independent intervenor, such as a mediator or facilitator, managing the conduct of the process per se.47 Rather, the process is coordinated by the expert advisers themselves. Lawyers do tend to take a lead coordinating role, sometimes operating as quasi-facilitators in managing the various meetings. As a result, there is no guarantee that adversarial, competitive and even destructive features will not still creep into the operation of these systems. Much depends in this regard on the

attitudes, skill sets and goodwill of the lawyers and different professional experts involved. e parties generally jointly select and fund common experts for the process, to avoid partiality and the duelling-experts phenomenon.48 4.29 While there is no prescriptive procedure for CP approaches there are notional stages and phases.49 For example, in practice usually between four and seven meetings are held among the parties and their advisers and supporters, with progress reviews undertaken between sessions. e meetings are governed by the protocols identi ed in the Participation Agreement. ey are usually conducted with parties and advisers personally present in plenary face-to-face sessions,50 providing at least six potential lines of direct communication within the group, and the parties are directly involved. [page 98] 4.30 Inevitably, there are critiques of CP systems. While they ostensibly remove the threat of litigation as a pressure tactic within the process, the focus on settlement could, paradoxically, add to pressures to settle, particularly for vulnerable parties.51 Informality is always a double-edged sword for weaker parties in DR processes and there is concern that in CP it could disadvantage the rights of weaker parties, particularly in the absence of a mediator or conciliator to manage power dynamics.52 CP approaches are also very resource demanding and expensive (with the inclusion of so much professional expertise). In CL, as noted above, the parties must agree to instruct different lawyers if the dispute is not settled by the process, which adds more cost and delay to achieving an outcome. e cost of CP suggests that it is appropriate only for those with signi cant means to pay for its elaborations on ordinary negotiations (the additional expert professional assistance).53 ere are also practical and ethical challenges in key aspects of the process, such as the disclosure obligation, the good faith requirement and, particularly, the disquali cation element.54 4.31

ese critiques perhaps explain the relatively slow uptake of CP in

practice, particularly by the legal profession.55 In all jurisdictions, CP is most commonly used in family disputes,56 but in the Australian family law context CP is subject to an additional disadvantage. As there is no registered Family Dispute Resolution Practitioner intervening in the process, it cannot deliver the section 60I certi cates that are required as proof of a genuine effort to resolve matters if a party later wishes to le parenting proceedings in the Family Court.57 Outside the family law context, such as in commercial contexts for example, CP has had even more limited uptake.58 is [page 99] might be a result of the concerns identi ed above. Or perhaps it re ects the in uence of lawyers as gatekeepers to processes on the matrix, and an absence of understanding and awareness of the potential bene ts of CP.59 4.32 Nonetheless, CP allows for the integration of the shadow of the law with other disciplinary perspectives to produce a holistic and informed outcome; and its effectiveness has been established in Australian evaluations of CP, although these have been of limited extent.60 e studies cast favourable light on values such as self-determination, constructive DR and the scope for creative outcomes in the family context, as well as CP’s potential to achieve healing impacts for families. 4.33 In some ways, CP can be seen as an initiative of lawyers to selfregulate their own conduct and promote clients’ interests in DR settings — but like other forms of DR innovation it is yet to be driven by client demand. It is ironic that CP attempts to accommodate some of the value ideals originally claimed for ADR but it has an exclusivity built into it — relying on lawyers (although not restricted to them). For CP to advance in practice in future, however, there is perhaps a need for some of the drawbacks of the approach to be addressed, and lawyers need to be more thoroughly educated and trained (starting at law school) in the procedures and logic of CP systems and in the interest-based problem-solving approaches they promote.

Con ict coaching 4.34 Con ict coaching is not a term included in NADRAC’s discussion of DR processes, because it is an approach that has predominantly developed post-2003 (when Dispute Resolution Terms was published). Con ict coaching is designed to assist and empower parties in con ict to engage effectively independently in DR processes.61 [page 100] 4.35 Con ict coaching is based on similar assumptions to executive, personal and business coaching involving, in a dispute situation, the provision of skilled help in communication, negotiation, consensus-building and problem-solving.62 is is a direct coaching role, quite different, for example, from the less direct educative role that mediators engage in when they inform clients about the mediation process and (to some extent) provide bipartisan ‘coaching’ on negotiation, communication and problemsolving skills in intake, party preparation processes and their own introductory statements. 4.36 Con ict coaching is based on specialised knowledge and expertise about the nature of con ict, the dynamics of dispute evolution, dispute escalation and de-escalation and appropriate DR interventions.63 It involves one-on-one (but also potentially collective) development of knowledge and techniques prior to parties or groups engaging in other DR processes, such as one-off negotiations, facilitations or mediations. It can be particularly helpful for parties entering mediation when they are unrepresented.64 It is also relevant in the context of continuous con ict management systems within organisations.65 [page 101] 4.37 Con ict coaching shares some theoretical assumptions with mediation and collaborative practice. For example, it promotes constructive

management of disputes and supports the capacity of disputants to develop DR skills. Con ict coaching operates on the basis that disputants, duly empowered, can use the knowledge, techniques and attitudes gained through a con ict coach to participate competently and con dently, representing their own interests, in diverse DR forums. It is essentially an adjunct to other DR systems, and while it is oen associated with negotiation and facilitated processes, such as mediation, it can be connected to any DR system. 4.38 As is the case with other DR processes, there is no single analytical model of con ict coaching and it can be used for different purposes and follow different procedural stages. e process is conducted predominantly through one-on-one interactions between coach and client in which the quality of the interpersonal relationship they develop is critical to the effectiveness of the coaching process over time. Con ict coaching has many possible applications in different areas, from family disputes to employee assistance programs. 4.39 e role of coach has many potential elements to its nature with no real boundaries. A con ict coach can be a teacher, a trainer, a supporter and an adviser. Con ict coaches are quali ed in aspects of the con ict phenomenon discussed in Chapter 2. ey come from different disciplinary and professional backgrounds, including the law. Con ict coaching training has generic dimensions that can assist all DR practitioners in ful lling their own responsibilities in DR practice. Issues of quality and ethics are always of concern in the development of new unlicensed or unregulated practices — and this includes con ict coaching. e existing associations of con ict coaches, both domestic and international, provide some degree of selfregulation on issues of quality66 and ethics.67 Australian training in the area was provided initially by overseas providers and is now provided mainly through bodies such as the Resolution Institute using the services of local trainers.68 is is, however, an essentially unregulated occupation where quality assurance and accountability are realised mainly through market dynamics. 4.40 Con ict coaching can positively support the participation of disputants in DR processes by helping them to overcome the cognitive

distortions, negative thinking and faulty reasoning which accompany much decision-making in con ict contexts.69 Coaching can take place before, during the course of, or even re exively aer a DR event, but it is usually used in anticipation of the assisted party engaging in a forthcoming DR process. [page 102] 4.41 As with all facets of con ict and its management, there are crosscultural dimensions to con ict coaching. In relation to Indigenous Australians, for example, con ict coaches require understandings of kinship relations and contextual dimensions of disputes to a greater extent than is required for non-Indigenous coaching.70 Coaching can also be geared to the different ideologies and theories underlying the various DR processes on the matrix, such as problem-solving, narrative theory or positional bargaining.71 4.42 While con ict coaching has been in operation for over two decades in Australia there is as yet no evidence of extensive demand for the services of con ict coaches. ere are also no extensive studies on its effectiveness. is is an area of potential research focus in the future in order to better inform the development and uptake of con ict coaching.

Partnering and alliancing 4.43 Partnering and alliancing are assisted processes found predominantly in the construction industry.72 ey are most commonly concerned with the governance of long-term construction contracts, focusing more on dispute prevention than dispute management and resolution. ey represent similar value propositions to collaborative practice.73 e common factor in the two processes is the emphasis on enhancing communication among key players throughout the life of a contract. Both approaches are interest-based in their focus, operate without independent intervenors and have professionally supported parties. ey have, at their core, structured transactional negotiations.

4.44 NADRAC de ned partnering as: ‘the development of a charter based on the parties’ need to act in good faith and with fair dealing with one another. e partnering process focuses on the de nition of mutual objectives, improved communication, the identi cation of likely problems and development of formal problem-solving and dispute resolution strategies’.74 [page 103] 4.45 Partnering was introduced to the Australian construction sector and its lawyers in the early 1990s for both public and private sector projects with a view to avoiding and minimising, for the life of a project, time- and resource-demanding disputes.75 It commonly involves the parties to a project meeting before the project starts to discuss common interests and agree on procedures for effective interaction and project completion. e approach is based on an agreed charter which encapsulates the parties’ commitment to dealing in good faith with one another, and de nes mutual objectives. e charter also establishes communication and transparency protocols, and identi es potential problems and strategies for managing them in a timely way. e partnering group can include a range of project stakeholders, including principals, other contractors, clients, unions and even community members — indeed, anyone considered relevant to issues speci c to the particular project. 4.46 At the heart of partnering is the consensuality principle, as it is intended that the identi ed stakeholders will convene to make joint decisions on procedures and strategies that will further their individual and joint interests. Where participants require independent assistance to communicate and collaborate, this can be provided by an independent facilitator, with the effect of turning the unfacilitated partnering process into a facilitated system. While the focus in partnering is on dispute prevention, the early meetings and charter can also establish DR processes for dealing with future disputes that may arise. 4.47

While partnering is mostly used in construction project contexts, it

has also been used to some extent among government agencies. ere is some evidence supporting the effectiveness of partnering,76 and it has been used to good effect in parts of Asia and North America in particular. It is not yet widely evident in Australia, however. Concerns about the process are expressed in the literature77 and problems have been found in its application.78 For example, while partnering relies on good faith in its implementation this can be a problematic standard once difficulties arise and lawyers sometimes fall back on the stipulated rights, duties and remedies in the principal contract and its DR provisions. 4.48 Alliancing, also sometimes referred to in the construction industry as relationship contracting, shares with partnering the same theoretical underpinnings of consensual decision-making, participation and collaboration to prevent disputes from emerging in the rst place, and to manage them rapidly once they do occur, [page 104] but involves a higher level of structural integration and risk-sharing.79 e idea is to share responsibilities and risks in a way that will obviate the need for negligence or breach claims, and the system attempts to restrict access to courts except in egregious circumstances, by agreement. As Greg Rooney explains: ‘e parties, in contracting not to allow a dispute to remain in an unresolved state, effectively limit the opportunity for courts to review their commercial activity’.80 4.49 Alliancing commences in the development of the contract where the emphasis is on an appropriate mix of parties and building relationships among them. is approach replaces competitive price tendering which can be prone to engendering disputes because competition is high and margins are small. e parties agree on benchmarks for performance in the different aspects of the project and on equitable risk-sharing among all parties.81 Alliance parties are intended to pool their resources for mutual bene t in the effective performance of the project. e contractor is provided with performance-based remuneration to align the different parties’ nancial

interests more closely and establish incentives for cooperating. A separate alliance contract, or speci c alliance provisions in the main contract, establish an Alliance Board which is comprised of representatives from all participating parties. e contract also provides structures for identifying the best available resources, and optimising the achievement of contributions from each participant. e alliancing approach therefore limits the need for DR clauses and for external facilitation through an emphasis, like partnering, on dispute prevention through relationships, mutuality and collaboration and by aligning interests, both nancial and non- nancial.82 Where disagreement or [page 105] disputes do emerge, the emphasis is on their immediate management without external intervention. 4.50 While alliancing has not been used extensively in Australia its potential effectiveness has been shown, as well as in construction projects, in the oil and gas industries where projects are complex and involve long-term relationships in ongoing circumstances that are fundamentally uncertain.83 However, as with all good ideas relating to dispute management there are front-end transaction costs in both partnering and alliancing. ese might seem tempting to avoid in competitive economic contexts, despite the likelihood of high costs for dealing with subsequent disputes that might have been avoided in the rst place.

Counselling and related assistance 4.51 Counselling is another form of an assisted process involving a thirdparty intervenor in a partisan advisory capacity for individual disputants.84 Parties in dispute might avail themselves of counselling, therapy and related forms of skilled assistance to strengthen themselves emotionally or psychologically in relation to engaging in a DR process. Counsellors can contribute to the resolution or management of disputes by assisting a party to manage difficulties with the cognitive, emotional or behavioural

dimensions of a dispute. Of course, in practice, the range of counselling and therapeutic forms of assistance are diverse and much, perhaps even most, forms of counselling are not necessarily concerned with con ict or disputes. However, forms of counselling such as cognitive behavioural therapy have implications for DR in changing the ways in which people perceive and behave. Much counselling and therapy takes place with a single client, but as is discussed in the section on facilitated processes below, two or more persons can also be involved in couples and group processes. 4.52 In the legal domain, mediation and conciliation are sometimes equated with counselling (or social work), perhaps because mediators and counsellors use similar [page 106] intervention tools relating to language, communication and behaviour.85 In most DR contexts, however, it is important to distinguish between counselling and DR processes.86 e primary objective of engaging in counselling is to address longer-term issues of behaviour, emotional growth and moral development, whereas the primary objective of most DR processes, especially in legal contexts, is to make practical decisions and solve legal and other life problems. Further, the focus in most DR practice is not on personal change or acceptance, as it is in counselling; and DR practice is oen not concerned with the causes and sources of con ict, whereas this is a routine part of counselling. Counselling also requires a therapeutic relationship between the practitioner and the client, which is not found in other DR processes. Further, counselling is more concerned with the past in order to understand the present and change the future, whereas some forms of DR focus more on the future and deal with the past only insofar as it may explain the present and assist with decision-making for the future.87 It is important for lawyers to be aware of the bene ts of counselling in the DR context because they may need to refer a client to counselling in order to assist them to cope with the dynamics of a dispute and the processes adopted for its resolution or management.

4.53 Counsellors and therapists, unlike con ict coaches, have quali cations in psychology, social work or other behavioural science disciplines.88 e kind of assistance provided by counselling cannot be provided by lawyers owing to respective professional boundaries (unless they have the relevant additional quali cations).89 Nevertheless, lawyers can, if attuned to their clients’ needs for dealing with underlying con ict situations, be responsible for referrals to these forms of non-legal skilled, professional help. In some contexts, these forms of assistance are institutionalised. For example, in family law matters respective courts can refer parties to court counsellors.90 As noted previously, there are always overlaps and demarcation questions between counselling and therapy, on one hand, and particular DR processes, on the other, in particular where [page 107] transformative mediation and collaborative practice involve behavioural scientists as the intervenors. 4.54 While counselling is normally associated with emotional and psychological issues, there are instances of the structured provision of other forms of counselling, such as nancial counselling.91 For example, rural nancial counselling may be provided to farmers facing foreclosure of the family farm as part of their preparation for participating in a debt restructuring mediation.92 As with other forms of counselling, this service is an adjunct to the DR process proper and empowers the relevant party with appropriate information and tools — such as nancial and accounting tools — to support effective participation in a DR process. Innovations in the provision of counselling services include online initiatives.93

Facilitated (non-partisan) DR processes 4.55 Facilitated (non-partisan) DR processes listed on the matrix include facilitative mediation, facilitation, conferencing, counselling, family dispute resolution, good offices, and brokering. Conciliation also has facilitative aspects but is discussed under the category of advisory processes (and also

in more detail in Chapter 9). In these processes it is the role of the intervenor to be non-partisan and to facilitate the process for the parties fairly and even-handedly, allowing the parties (or their representatives) to be focused on the substantive issues in dispute and the negotiation of outcomes. e intervenor generally refrains in facilitated processes from providing advice or an evaluation of the merits of each party’s position, and they do not make a determination for the parties. 4.56 ese processes can ful l preventative purposes, especially when they delimit the issues in contention or contribute to the maintenance or improvement of ongoing relationships. ey are also oen conducted in the shadow of the law, and so are informed by rights, while not being limited to positions and entitlements. A strength of facilitated processes is that they can be used for interest-based purposes, allowing for the parties’ mutual needs and interests to be satis ed rather than providing for one party to win over the other. Certainly, they can be used by powerful parties to achieve their desired outcome as against a weaker party, and an awareness of a party having such intentions would be a counter-indicator for anyone advising them on appropriate process options for their matter. Power is a complex and nuanced issue in facilitated [page 108] processes and lawyers oen have an important role to play in the management of power dynamics. Expert facilitation skills on the part of the third-party intervenor are also required when there are power differentials if a negotiation environment in which both parties are given a voice is to be created and fair outcomes reached.

Facilitative mediation 4.57 e quintessential facilitated, interest-based DR process is facilitative mediation.94 e most current de nition of facilitative mediation in Australia is found in the National Mediation Accreditation System (NMAS) which states:

Mediation is a process which supports the self-determination of participants in which the 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.95

4.58 Unless other meanings are apparent from the context, the NMAS de nition informs references to facilitative mediation in this book. is de nition highlights the supportive role of mediators, the focus on parties’ interests, the fundamental value proposition of party self-determination, the central role of the disputants in the process, and the ultimate objective of participant decision-making. 4.59 Despite the centrality of the NMAS de nition to understandings of facilitative mediation in Australia, the existence of a range of competing models of the mediation process prevents a single clear de nition of ‘mediation’ itself. Kathy Douglas noted some years ago that the de nitional waters of mediation are ‘murky’ because from a practice perspective, mediation procedures are almost in nitely varied.96 Indeed, one of mediation’s advantages as a process is that it is exible and responsive to the varying [page 109] needs of diverse parties. is means that several de nitions and models of mediation are unavoidable, with the models differing widely in their scope, application and the role assumed by mediators. Indeed, Riskin has championed a view of mediation as including ‘any kind of facilitated negotiation’.97 Given the diversity of its practice it is not uncommon for mediation to be de ned in broad terms in legislation. 4.60 Mediation now plays a central role in contemporary DR and legal contexts, and for some people, non-adversarial forms of DR are synonymous

with mediation.98 It is critically important that modern DR practitioners and lawyers understand not only how mediation differs from other processes on the matrix but also the variations between diverse models of mediation and what each has to offer their clients. For this reason, Chapter 8 is dedicated to discussing mediation and its form in more detail.

Facilitation 4.61 Another facilitated non-partisan process is facilitation.99 is term covers a range of procedures and intervenor activities, usually in the context of problems arising among a number of individuals, within community groups or in organisations.100 NADRAC de ned facilitation as: … a process in which the parties (usually a group), with the assistance of a dispute resolution practitioner (the facilitator), identify problems to be solved, tasks to be accomplished or disputed issues to be resolved. Facilitation may conclude there, or it may continue to assist the parties to develop options, consider alternatives and endeavour to reach an agreement. e facilitator has no advisory or determinative role on the content

[page 110] of the matters discussed or the outcome of the process, but may advise on or determine the process of facilitation.101

4.62 e process of facilitation involves intervenors becoming engaged in con ict situations, or before problems have materialised, with the objective of impartially assisting the individuals and groups involved to make appropriate decisions. Facilitation covers a range of different procedures and intervenor behaviours, usually in the context of collections of individuals, communities or organisations with differing needs or competing factions.102 e term has been used to refer to minimal type interventions, such as mere logistical support for disputing parties, as well as to more extensive interventions, such as custom-designed procedures and protocols. However, in most cases facilitation refers to a relatively open-ended arrangement in which facilitators assist respective parties in dispute, or in anticipation of disputes, to identify issues to be dealt with, to massage disputes into better

shape than they were in, and to agree on joint courses of action — which could involve endeavouring to agree on some or all matters of contention. 4.63 Facilitation is designed to enhance empowerment and recognition. It is also on the early intervention end of the DR spectrum, with an emphasis on planning and educational actions which might prevent the emergence of con ict, or the escalation of con ict or a dispute once it has emerged. In this sense, facilitation can be used for problem-solving and consensusbuilding.103 4.64 Facilitators will generally have similar knowledge, skills and techniques to those of mediators and the distinction between mediation and facilitation can sometimes be a ne one. Facilitators are third-party nonpartisan independent outsiders, but they can also be appointed to the role because, for example, they are experts in the subject matter in question, such as industrial psychologists in labour-management relationship-building programs. In any event, it is important in facilitation that the facilitator has legitimacy as a non-partisan intervenor as regards all the various parties and participants, as this is critical in contexts where groups and factions are polarised.104 [page 111] 4.65 Facilitation is oen used in public interest disputes where there are multiple parties and many issues, for example, in planning, land use, environmental matters and location of sensitive facilities such as prisons and mobile phone towers.105 It can also be used in workplaces, in voluntary associations and non-government organisations, and in other groups requiring cohesion and relationship-building.106 Facilitation has a further application in corporate decision-making where it can promote business objectives in contract negotiations, in joint ventures, in partnering arrangements in construction projects, and in cross-cultural collaboration.107 Facilitation can also take place outside dispute situations, for example, where facilitators are engaged to chair community meetings or public interest consultations.108 ey can be conducted with only one side in

a dispute where assistance is required in gathering information, fact- nding, intra-group decision-making and negotiation preparation, and for dealing with intra-group con ict where there are several people on one side of the dispute.109 4.66 Facilitators provide leadership and expertise, for example, by facilitating procedures for multi-party engagement, arranging public consultations, conducting voting, and dealing with external constituents and stakeholders, and the media. Facilitators assist parties with developing customised processes and protocols for negotiation and decision-making, and can help them with communication, group participation, creative problem-solving and transparent decision-making. Facilitators have a wide range of contributions, but they stop short of making a determination or [page 112] decision for the parties. For this reason, facilitation is classi ed as an interest-based facilitated process, comparable to mediation. 4.67 Facilitation services in Australia have tended to be provided by, and effectively had their genesis in, community justice programs,110 with a focus on public interest matters in which governments have signi cant stakes, there is a community interest and pressure, and in which the media is oen involved. As a discrete process, facilitation has never really been a prominent feature of the Australian DR landscape; however, in the future it should indeed have greater prominence. Facilitation has signi cant positive potential in contemporary society where political processes and policymaking are dominated by lobbyists with speci c agendas and moneyed interest groups, and in which increasing pressures are caused by competition, uncertainty and insecurity.111 While facilitation has the same advantages as mediation in terms of being interest-based in its focus, and problem-solving in its orientation, it has the added dimension of being a group-based process. Its emphasis on public participation and community engagement on speci c public interest projects is something that in the

future should have much to offer contemporary societies throughout the world.

Conferencing 4.68 Conferencing is another form of facilitated non-partisan DR. e terms ‘conference’ and ‘conferencing’ are used to refer to meetings in which parties consider issues in dispute, usually with the involvement of facilitators or other third-party intervenors, and sometimes with additional advisers or experts. NADRAC de ned conferencing as: … a general term, which refers to meetings in which the parties and/or their advocates and/or third parties discuss issues in dispute. Conferencing may have a variety of goals and may combine facilitative and advisory dispute resolution processes.112

4.69 is de nition re ects that the forms and objectives of conferences vary widely and potentially overlap with facilitation, mediation, conciliation and neutral evaluation.113 e context of individual matters will determine a particular conference’s objectives, procedure and style. For example, facilitators and participants might voluntarily agree to a round-table conference to discuss contested issues, without a predetermined agenda; or attendance at a conference might be statutorily mandated. For example, in Queensland personal injury proceedings require conferences between parties to relevant litigation as part of pre-hearing procedures, and the parties may [page 113] elect to involve mediators.114 Aer completion of document disclosure the litigants are required to sign certi cates of readiness for a conference and to bring relevant documentation to enhance settlement opportunities.115 ese obligations do not preclude courts from referring parties to further DR later in litigation proceedings. Another example of variation in conferencing systems is found in the use of the term by Legal Aid in Queensland, where the term ‘conferencing’ refers to family law DR processes that fall somewhere between facilitated and advisory forms of mediation.116 Greater

clarity about the scope of conferencing would be useful for users and assist with the accuracy, for example, of reporting on conferencing in annual reports and with the design of surveys of the effectiveness of conferencing.117 4.70 Conferencing terminology is particularly used in restorative justice processes in the criminal law context, where mediation-type processes are used instead of, or as part of, formal criminal procedures.118 is is another area in which lawyers require new knowledge and skills, particularly, for example, in advising, preparing and representing juveniles required to appear in conferencing systems.

Family dispute resolution (FDR) 4.71 FDR is a speci c form of facilitated DR used in the family law system, pursuant to the Family Law Act 1975 (Cth). e Act de nes FDR broadly as: a process (other than a judicial process): (a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and (b) in which the practitioner is independent of all of the parties involved in the process.119

4.72 While a range of different facilitated DR processes satisfy this de nition, family mediation is the most commonly adopted approach, although it has been suggested that FDR and mediation should not be con ated or equated.120 is is because FDR has some distinct features such as a statutorily required focus on the best interests of children, and the requirement for practitioners of FDR to satisfy regulatory accreditation [page 114] requirements. As FDR is a signi cant component of mediation practice in Australia, it is discussed further in Chapter 8.

Counselling 4.73 Counselling was discussed above in the category of assisted partisan DR processes as the focus in much counselling work is on supporting an individual client in a dispute with therapeutic assistance. Nevertheless, some counselling effectively constitutes a facilitated non-partisan DR process when it takes place with two or more persons, for example, as couples or group counselling.

Good offices and brokering 4.74 Good offices and brokering are a further form of facilitated DR process involving non-partisan third-party intervenors who attempt to assist all sides to a dispute. e terms ‘good offices’ and ‘honest brokers’ were originally used mainly in the context of international relations where a dignitary, institution or country would play a facilitative DR role outside of formal channels or regulatory structures. Today the World Trade Organization’s dispute settlement procedures use the terms ‘good offices, mediation and conciliation’ in the same provisions.121 e reality of contemporary times is that mediators, facilitators and other intervenors now play the role of honest brokers and the term ‘good offices’ is not oen encountered in practice.

Advisory DR processes 4.75 e advisory processes listed on the DR matrix include conciliation, case and expert appraisal, neutral evaluation, evaluative mediation and factnding. e third-party intervenor facilitates the process and supports communications between the parties. ey also assist the parties with the exploration of interests, issues and emotions — matters that may well be outside the scope of what is strictly legally relevant to the dispute. e expertise of the third-party intervenor, and their authority to offer advice on the parties’ rights and positions, provides the parties with important information to enable them to weigh up their relative positions and interests. 4.76

In advisory DR systems, third-party intervenors usually have

expertise in the subject matter of disputes and base their advice, recommendations or opinions on that expertise. In formulating their advisory views, the intervenor takes into account the facts, the evidence, the law and likely outcomes in other DR fora, such as tribunals and courts. e views expressed in advisory processes are generally not binding on the parties; rather, they constitute reference points for subsequent negotiations and settlement efforts. ird-party intervenors in advisory processes are generally non[page 115] partisan in their provision of advice, and do not make a determination or decision for the parties. e fact the third party in advisory DR processes is in uential, but remains non-determinative, is an important aspect of this DR category. 4.77 As noted above, advisory processes can integrate a focus on both interests and rights. Issues of power in advisory processes can impact outcomes, and as with the facilitated processes, lawyers have an important role to play in supporting equilibrium between parties where there is a power imbalance. In the future it is anticipated that advisory processes will increasingly be part of how lawyers engage in more effective and efficient legal service provision. e advisory processes listed on the matrix are de ned and described brie y below and the key advisory process — conciliation — is discussed further in Chapter 9.

Conciliation 4.78 Conciliation is the most difficult of the DR processes to clearly de ne because the term is used variably and sometimes indiscriminately in relation to a broad range of processes, and with application to a wide range of disputes, creating de nitional confusion. For example, there have been extensive debates over the similarities and differences between conciliation and mediation.122 Sometimes the term conciliation is used generically to include all consensual facilitated and advisory processes without distinction

among them. Sometimes it is used as a synonym for mediation. For example, in international instruments such as the UNCITRAL Model Law on International Commercial Conciliation, ‘conciliation’ is used as an umbrella term to include mediation.123 Further, the World Trade Organization’s dispute settlement procedures use the terms mediation and conciliation in the same provisions,124 and WTO agreements do not make distinctions between them. In yet other situations conciliation is used to refer to a process distinct from mediation in terms of the more ‘interventionist’ roles of conciliators on matters of content and outcome. All de nitions of conciliation, however, exclude determinative roles for conciliators, unless arbitral functions are added at subsequent stages in a blended system. Conciliation therefore shares with mediation attributes of facilitating interest-based decision-making between [page 116] the parties, as well as an absence of authority to impose decisions on them. e advisory function of the conciliator also means that conciliation and evaluative mediation are effectively very alike. 4.79

NADRAC de ned conciliation as follows:

Conciliation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the conciliator), identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. e conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. e conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement.125

4.80 In Australia, the term conciliation has been used in relation to industrial disputes for over a century.126 Conciliation Commissioners were appointed in 1926 under amendments to the Conciliation and Arbitration Act 1904 (Cth). Initially, conciliation in this context closely resembled arbitration and it has perhaps remained more directive than conciliation processes used in other contexts.127 e term conciliation is now found in

statutory DR schemes involving anti-discrimination, workplace, workers’ compensation and family law matters, where attendance at conciliation conferences is usually compulsory for one or both parties. Many federal and state tribunals have statutory obligations to attempt to conciliate disputes coming before them before they adjudicate binding decisions. Where tribunals can make determinations if matters do not resolve in conciliation, the procedure, interventions and outcomes in [page 117] the conciliation are likely to be strongly in uenced by relevant legislation, and — if conciliation is conducted by tribunal members — in uenced by their professional responsibilities under the legislative scheme. 4.81 Conciliation is used in this book to denote a DR process in which disputing parties are assisted by independent conciliators, through a variety of interventions, and with the provision of advice and information, to make decisions to resolve or settle their disputes. Conciliators’ interventions include, potentially, the same range of facilitative functions associated with the responsibilities of mediators, and to these are added advisory, evaluative and recommendatory roles.128 Any advice given or recommendations made are not binding on disputants and conciliators cannot impose outcomes on resistant parties.129 ey can, however, express views to, and advise, them on issues of content and outcome, for example by advancing opinions on the law, facts and evidence, making recommendations for settlement terms and being altogether more encouraging of parties to reach agreements than occurs in facilitative or transformative mediation models.130 4.82 e absence of consistent de nitions and descriptions and the dualistic facilitative/advisory nature of the conciliator’s role make the process difficult to categorise within the matrix system. Given the description of conciliation adopted for this book, however, and given the reality that much Australian conciliation entails that parties operate in a normative framework from the outset of the process, it is treated in this

book as an advisory and evaluative process, notwithstanding its facilitative aspects.131 Conciliation is one of the signi cant DR processes used in DR [page 118] and legal contexts in Australia and Part II of the book includes a dedicated chapter to understanding it more deeply — Chapter 9.

Expert appraisal, neutral evaluation, case appraisal 4.83 Expert appraisal, neutral evaluation and case appraisal are advisory DR processes for situations requiring third-party intervenor expertise on technical, scienti c or legal issues which parties and their advisers are unable to resolve themselves.132 ese processes have applications in matters such as building disputes where engineers and builders contest construction methods or the quality of materials. ey can address problems caused by partisan experts on each side furnishing con icting opinions, as in personal injuries cases where specialists provide inconsistent medical reports. Intervenors overcome these problems by using their expertise to form views on technical and/or specialist issues, including on contested questions of law. e third-party intervenor’s views constitute the ‘voice of experience’ and therefore guide and in uence the parties in reaching settlements, or in deciding to move to a determinative process such as private arbitration or adjudication. ese processes are designed to encourage timely and costeffective settlement and to avoid prolonged and expensive alternatives such as litigation. 4.84 NADRAC de ned early neutral evaluation as ‘a process in which the parties to a dispute present, at an early stage in attempting to resolve the dispute, arguments and evidence to a dispute resolution practitioner. at practitioner makes a determination on the key issues in dispute, and most effective means of resolving the dispute without determining the facts of the dispute’.133 Case appraisal was de ned by NADRAC as ‘a process in which a dispute resolution practitioner (the case appraiser) investigates

[page 119] the dispute and provides advice on possible and desirable outcomes and the means whereby these may be achieved’.134 And expert appraisal was de ned as ‘a process in which a dispute resolution practitioner, chosen on the basis of their expert knowledge of the subject matter (the expert appraiser), investigates the dispute. e appraiser then provides advice on the facts and possible and desirable outcomes and the means whereby these may be achieved’.135 4.85 Expert appraisal, neutral evaluation and case appraisal, unlike conciliation, are not necessarily associated with a statutory framework and the intervenors do not have the normative responsibilities which conciliators derive from relevant legislation. However, statutes do use the terms ‘expert appraisal’ and ‘neutral evaluation’ both with and without de nition. Overall, this usage is consistent with the de nitions offered above, but sometimes with slight differences, for example, in relation to limitations on the intervenor’s powers, which need to be accounted for in the speci c dispute context.136 For practical purposes, the differences are not particularly signi cant, however. Of more signi cance is the ability of courts and tribunals to choose between, for example, neutral evaluation and mediation in making external referrals because this choice determines the level of intervention of the third party.137 4.86 Referrals by courts and tribunals to advisory processes can be made with or without the parties’ consent,138 and are usually driven by a view that the costs of litigation are likely to be disproportionate to the bene t gained, and it is likely the appraisal will produce a compromise or abandonment of the claim. Only rarely is the parties’ consent required for such referrals.139 Referral does not operate as a stay of proceedings.140 e regulatory framework usually provides that evaluators can either be agreed on by the parties or appointed by the relevant court, and the selection method could impact on the entity that bears their costs.141 Respective statutes have similar provisions relating to privilege, secrecy and exoneration from liability for evaluators and appraisers as those applying to statutorily regulated mediators.142

[page 120] 4.87 Outside their normal statutory settings, the advisory processes can be triggered by DR clauses in agreements or by parties’ ad hoc choices once a dispute arises. In either eventuality it is usual for the parties to commit to speci c rules relating to the conduct of the process, for example those of the Resolution Institute.143 e clauses or choices may relate to an entire dispute, or to only a part of it such as the damages component. 4.88 While the evaluative and advisory processes are encountered in many tribunals and specialist bodies, only four jurisdictions make provision for them in civil litigation.144 ere are variations in relation to whether parties can apply for referrals or the court can make them of its own initiative, whether there is court control over who performs the intervention or it is based on party choice, and the extent to which enforceability derives from consent, a decision of the court or through contract enforceability. In most contexts the standard settlement privilege applies, and in some cases evaluators and appraisers have a statutory immunity.

Fact- nding 4.89 Another investigative, advisory form of DR is that of fact- nding which has been de ned by NADRAC as a process in which: … the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the investigator) who makes a determination as to the facts of the dispute, but who does not make any nding or recommendations as to outcomes for resolution.145

4.90 Fact- nding involves systematic investigations into the relevant history and circumstances of disputes. Ideally this process should be undertaken by persons independent of disputants, such as external consultants. 4.91 All DR requires some degree of fact- nding, although it is also possible to ‘negotiate’ fact scenarios for the purposes of reaching settlements. Many of the processes in the DR matrix include a fact- nding element, however unobtrusive it might be. In legal disputes, lawyers and

specialists, such as forensic accountants, investigate the facts, but usually as partisan advocates on behalf of their own clients. Courts rely on factual information from these sources, provided through witnesses, documents and other sources of evidence, and base their factual ndings on what can be con icting views of the facts. It is surprising, therefore, that there is not more use of dedicated and independent fact- nding procedures to provide secure foundations for parties to engage effectively in subsequent DR processes. is is a possible future direction for DR in legal practice. [page 121]

Ombud institutions 4.92 e term ombud (or ombudsman) refers to both an institution and to the head of the relevant ombud body.146 In terms of the categories used in this book, ombuds perform non-binding advisory functions, which operate at the level of both rights and interests. As ombud procedures oen commence with investigations into relevant facts and their legal signi cance they can also be seen as combined fact- nding and advisory systems. Ombuds institutions do not, however, have de nitive and determinative powers. 4.93 ere are three broad categories of ombud in Australia. e rst are referred to as parliamentary ombuds in that their predominant roles relate to the investigation of government officials and departments who are difficult to hold to account and whose activities are not easy for legislatures to scrutinise. e second category are industry ombuds established by respective industry bodies, mainly in the banking, insurance and other nancial sectors, as well as in universities and other educational institutions.147 e third are statutory ombuds which investigate and facilitate complaints and disputes involving professionals, other individuals and government agencies.148 In all cases, ombuds have some degree of independence from the institutions whose activities they investigate, although in the case of industry ombuds this autonomy is constrained by the

involvement of respective industry bodies in their funding and management. 4.94 While the jurisdiction and procedures of ombuds differ from one situation to another, they have several features in common. ey all become active at the speci c behest of consumers or citizens with complaints against, or disputes with, an institution over which the respective ombud has jurisdiction. ey conduct initial investigations into relevant issues, more along inquisitorial than adversarial lines, and they seek to elicit cooperation from the body being investigated. e ombud’s investigation culminates in a report on the merits of the case and it may include advice or recommendations for the further progress of the complaint or dispute. Most ombuds also provide negotiation assistance and mediation services to help parties come to their own settlements. While they generally do not have jurisdiction to make binding determinations, their actual in uence can be extensive. 4.95 All DR processes can have incidental impacts on the prevention and management of future disputes, for example through the operation of precedent in courts and [page 122] tribunals. In the case of ombuds institutions, however, there is an explicit dimension of this nature in their roles, for example to systemically improve customer service in an industry or administrative procedures in state agencies. us, their opinions and recommendations may impact not only on the dispute at hand but also on broader policies and practices. 4.96 Lawyer advocates do not have signi cant roles to play in relation to the operations of ombuds institutions. However, lawyers oen work as ombuds officials, investigating facts, advising on legal matters and recommending procedural options. Further, lawyers advise their clients on the ombuds institutions as a DR option in relevant circumstances and sometimes assist clients with articulating complaints or disputes, or with the procedures associated with approaching an ombud. Courts are occasionally

called on to review ombuds’ procedures, ndings and recommendations — an eventuality which tends to mould their work in a legal form. Ombuds institutions thus contribute not only to the settlement and resolution of disputes but also to the scrutiny and accountability of industries and agencies in line with the rule of law. Ombuds can also be considered a DR option promoting access to justice because the service is paid for by government, an industry body or a professional association. If a party achieves no success in this forum, they have recourse to other DR processes.

Determinative DR processes 4.97 Determinative DR processes involve an expert, authoritative thirdparty intervenor making a binding decision for the parties in an ‘umpiring’ role.149 Key processes in this category include arbitration, expert determination, adjudication, dispute review boards and litigation. Determinative processes are focused on the rights of parties and the relative (oen legal) merits of each party’s position in a matter. e respective interests of the parties are rarely a relevant consideration in such processes. e parties’ relative power is pertinent to their capacity to prevail, particularly in terms of having the resources to invest in the process. For example, a party with more nancial power will have greater capacity than an impecunious party to invest in the costly exercise of seeking expert advocacy for an independent determination. Although determinative processes are not generally considered in the context of the preventative classi cation, it is possible that the clarity provided by a formal determination on a matter may prevent further disputing between the parties. Each of the processes listed on the matrix is de ned and described brie y here. e two most signi cant determinative processes, arbitration and litigation, are dealt with in more detail in Chapters 10 and 11. [page 123]

Arbitration 4.98

Arbitration is a process in which the parties present evidence and

arguments to one or more arbitrators, who conduct hearings and then make determinations, referred to as awards, on disputed issues.150 In privately organised arbitration the parties have signi cant latitude in determining the scope and nature of the proceedings. However, the speci c eld of Australian commercial arbitration is subject to the requirements of uniform legislation in each state and territory.151 ere are also systems of courtordered or -annexed arbitration in which judges can provide some of the regulatory framework for an arbitral process. 4.99 Arbitral awards are usually based on relevant legal rules and principles; however, it is possible, with the parties’ consent, for principles of good business practice or the demands of equity and fairness in the circumstances to also be factored into determinations. e fact that arbitrators have the role of making binding decisions means that they require expertise in the subject matter of disputes. Arbitration, like other determinative processes, places more emphasis than facilitated processes on documentation, the presentation and testing of evidence, and the submission of arguments on facts and law. Although signi cantly more formal than assisted, facilitated and advisory processes, arbitration shares with those approaches a exibility in procedure. For example, arbitrations can be organised exibly, conducted privately and in con dence, and they can be governed by the parties’ own norms. In Australia, arbitration was originally associated with industrial, building and construction disputes. It is now also commonly encountered in commercial and family law matters and remains an important process on the DR matrix. As noted above, further discussion of arbitration can be found in Chapter 10.

Expert determination 4.100 Expert determination is a process in which parties present their case to a DR practitioner who has been chosen because of their expertise and specialist knowledge in the subject matter of the dispute, and the expert makes a determination.152 Like arbitration, this process has a predominantly rights focus and leads to outcomes that [page 124]

are binding on the respective parties and enforceable by them; but it is less regulated than arbitration.153 Expert determination is most suitable for disputes of a technical nature where the evidence is not signi cantly in dispute and there are no major issues of law requiring resolution. It is used in dispute situations where experts can identify and de ne problems to be managed, tasks to be accomplished or issues to be resolved. 4.101 Expert determination is commonly triggered by DR clauses in commercial contracts,154 and is regulated by contract as regards rules of procedure, practitioner liability and prospective judicial review of outcomes.155 Essentially the procedure involves a comprehensive or attenuated ‘hearing’ in which parties and advisers provide evidence, which is followed by a written, binding decision. Expert determination is also used internationally. For example, the World Intellectual Property Organization (WIPO) has rules for expert determination which de ne the system as ‘a procedure in which the parties submit a speci c matter (for example, a technical question, valuation of IP assets, establishment of royalty rates) to one or more experts who make a determination on the matter’.156

Adjudication 4.102 In a generic sense, ‘adjudication’ is a DR term referring to all processes, statutory or contractual in origin, in which intervenors make binding decisions for the parties on the basis of relevant facts and principles. In this sense it is a rights-based determinative process, similar to litigation and arbitration, and judges and arbitrators are sometimes referred to as ‘adjudicators’.157 Sometimes the term in this broad sense is used interchangeably with litigation.158 As adjudication notionally shares many attributes with other determinative processes, the identi cation or designation of a process as ‘adjudication’ is therefore really a term of art associated with particular statutory and industry systems. [page 125] 4.103

NADRAC de ned adjudication consistently with the broad

meaning of the term as: … a process in which the parties present arguments and evidence to a dispute resolution practitioner (the adjudicator) who makes a determination which is enforceable by the authority of the adjudicator. e most common form of internally enforceable adjudication is determination by state authorities empowered to enforce decisions by law (for example, courts, tribunals) within the traditional judicial system. However, there are also other internally enforceable adjudication processes (for example, internal disciplinary or grievance processes implemented by employers).159

4.104 In practice, adjudication also has a narrower connotation associated with speci c DR approaches, mainly in the construction sector. For example, it is used in disputes over building-related payments and is regulated by state legislation which intends the process to provide quick and inexpensive management of disputed claims, and to avoid subcontractors, suppliers and consultants remaining unpaid for lengthy periods of time (and in effect acting as bankers to principal contractors). Essentially, the relevant laws create new statutory rights for payment recipients and parties are disallowed from contracting out of them.160 Technically, adjudicators’ decisions under the various Acts in the construction context are not nal but they become binding unless one or both parties take the matter to court or deal with it privately, for example through bilateral negotiations. In reality, the time and cost imperatives in this industry lead to most adjudications being accepted by the parties. Moreover, adjudicated results can be administratively registered in court, and they are then enforceable as court judgments. Various private agencies in Australia, such as the Resolution Institute and the Australian Disputes Centre, can enable access to adjudication services. 4.105 Adjudication is also referred to in some tribunal contexts, although not always with precise de nitions. For example, the President of the Queensland Civil and Administrative Tribunal (QCAT)161 can determine that speci ed matters be heard and decided by adjudicators.162 In the NSW Civil and Administrative Tribunal (NCAT),163 adjudication is used in relation to strata title and community scheme disputes.164 [page 126]

4.106 Adjudication also operates outside of statutory and court contexts. e Press Council of Australia, for example, is an industry body which deals with, among other things, complaints against industry members.165 Complaints can relate to factual errors, editorial biases or breaches of speci c standards (for example, on reporting suicides) in both hard copy and electronic publications. e Council investigates complaints, attempts to facilitate outcomes between complainants and publishers, and can make nal adjudications on whether publications have breached industry Standards of Practice. Adjudication in the Press Council can have an obligatory nature, but in other industry contexts adjudication is nonobligatory, for example, for speci ed domain name disputes under the Australian Domain Administrator.166 Adjudication is also deployed in some international disputes, in particular in construction contract con icts with international institutions providing lists of approved adjudicators for the guidance of parties and advisers.167 4.107 As with the other determinative DR processes, adjudication purports to bring to the fore the value of justice and the process goals of procedural justice, substantive justice and independence. Related to these goals are the principles of objectivity, consistency and nality. However, nality is never an absolute value and both contractual and statutory forms of adjudication could be overturned through judicial review.

Refereeing 4.108 e determinative DR process of refereeing is still found in some contemporary legislation, although the concept has largely been overtaken by other DR practices.168 For example, the Western Australian strata title scheme permits designated referees to make a range of orders involving strata companies and others involved in strata scheme disputes.169 Procedural fairness requirements apply to referees’ investigative and evidential powers and there is limited provision to appeal their decisions to the Western Australian District Court. Where this does not occur, a referee’s decision is binding on respective strata title parties, making this a rightsbased determinative process. More generally, however, the use of referees is now less signi cant than it was.

[page 127]

Dispute review boards 4.109 Some industries have developed dedicated DR systems to suit their particular circumstances. For example, dispute review boards (DRBs) have been developed in the construction industry where tendering is competitive and margins are low on infrastructure projects for communication and transportation relating to, for example, airports, bridges, tunnels, and the like.170 In these situations, con ict between principals and contractors is virtually inevitable, because of uncertainties over weather and on-site conditions, the complexity of projects and underlying contracts, the numbers of parties involved, the high business risks, and the extended duration of working relationships. Disagreements can also arise over the quality of work, compliance with speci cations, variations, costs blow-outs and time delays.

Litigation 4.110 e determinative process of litigation involves a court hearing of a contested matter by an independent judicial officer, appointed under the authority of the state, and following a complex set of legal, procedural and evidentiary rules designed to provide a fair procedure for all parties.171 Litigation was not de ned in NADRAC’s Dispute Resolution Terms, indicating that as late as 2003, despite developments in DR practices, there was still a dichotomy between litigation and ‘ADR’ processes. As noted earlier, however, this book includes litigation in the DR matrix, because it is directly relevant to the context of DR practice and DR-related activities and responsibilities in lawyering. e developments in the expansion of nonadversarial DR process options are important, but litigation remains a necessary and important option on the matrix; for example, to effectively challenge an opposing party or to enforce or defend a legal right or entitlement. It is evident, however, that despite the vast amount of resources invested by government in formal court systems, the majority of initiated litigation proceedings do not proceed to trial and are settled by negotiated

agreements between parties before being heard and decided by a judge. is means that contemporary understandings of litigation identify the process as appropriate only where the special characteristics of litigation are required, or where less formal and less adversarial approaches have not resulted in outcomes. See Chapter 11 for further discussion of litigation as a DR process. [page 128]

Transformative DR processes 4.111 Transformative DR processes involve intervenors supporting the transformation of both disputing parties in themselves, and the relationship between them, depending on the circumstances of a particular dispute. is category of DR process is therapeutic in nature, requiring the third-party intervenor to align with each of the parties. Such alignments allow them to support the parties’ dialogue about the dispute, and to unpack and reframe the elements of the dispute with the ultimate goal of reorienting the parties towards each other. e transformative DR processes listed in the DR matrix include therapy and counselling, con ict coaching, transformative mediation and therapeutic mediation. Transformative processes are relational, interests-based and aim to remove power dynamics to provide scope for the parties to realign their relationship in the context of deeper understandings of a dispute. Rights-based approaches are not a feature of this type of DR category. Transformative processes can, however, be used preventatively to address problems and issues in ways that will avoid the escalation of a dispute or con ict.

Counselling and therapy 4.112 e terms counselling and therapy were discussed earlier in relation to assisted (partisan) DR processes because they generally refer to therapeutic treatment for individual parties in a one-on-one consultation with a professionally quali ed counsellor, psychologist or other therapist. ese approaches are not necessarily associated with DR practice,

particularly in legal contexts, but they have signi cant value in assisting parties to deal with the challenges, ambiguities and uncertainties relating to disputes and DR proceedings. Such approaches might also transform the ways in which the parties perceive, experience and behave in dispute situations. e potential of such approaches can only be properly harnessed if DR practitioners and lawyers have the necessary knowledge and skills to assess when it may be appropriate and necessary to refer a client to a form of counselling or therapy to better enable and empower the client’s constructive engagement with the relevant DR process.

Con ict coaching 4.113 Con ict coaching was discussed above, also in relation to assisted (partisan) DR processes. It has potentially strong transformative dimensions in that it is a process that aims to equip parties before they participate in DR processes with the appropriate knowledge, skills and attitudes which will assist them to perform more effectively.

Transformative mediation 4.114 Transformative mediation places a high priority on the empowerment of the parties involved in a dispute by supporting mutual understandings of the dispute’s genesis and nature and reciprocal recognition of each party’s needs and interests by the [page 129] other.172 ere is less emphasis than in other forms of mediation on speci c procedures, problem-solving and outcomes and more emphasis on the responsive conduct of the process and the realignment of relationships. Generally, transformative mediation requires skills deriving from disciplines and professions other than the law, such as counselling, social work and psychology, but it is also employed in legal and other domains.173 As an

important model of mediation, this process is discussed in more detail in Chapter 8.

Therapeutic mediation 4.115 erapeutic mediation is another non-legal form of mediation that focuses on understanding the root causes of a dispute in order to improve the parties’ relationship and their dispute resolution skills for the future. erapeutic mediation is most commonly used in dispute contexts where the parties need to have an ongoing relationship, for example, in parenting disputes. erapeutic mediation can lead parties from feeling emotionally distressed about a dispute to feeling emotional relief, both because of the emotional healing that can occur through the process, and also because the process can lead to the reaching of agreement about a possible plan of action. Along with transformative mediation, therapeutic mediation is discussed again in Chapter 8.

Blended DR processes 4.116 e terms ‘hybrid’ and ‘blended’ have become part of the DR lexicon. ey denote that the systems in question are comprised of more than one primary process such as negotiation, mediation or arbitration.174 Such systems are possible because of [page 130] the inherent exibility of less formal primary processes, and they provide arrangements responsive to different situational needs. ey hold signi cant potential, particularly in the context of legal practice, to address not only the parties’ rights but also their interests, while also assisting with the management of power relationships. In such processes the parties authorise (non-partisan) third-party intervenors to change the nature and scope of their role and the focus of the process in prescribed circumstances. is

book uses the term ‘blended DR processes’. Key blended processes include med-arb, arb-med and arb-med-arb. 4.117 As the nomenclature suggests, med-arb is a sequential combination of mediation, in one of its forms, followed by an arbitration. Med-arb provides an initial interest-based process, but if this does not achieve the desired settlement, it has the scope to nevertheless ensure a rights- and merits-based outcome — something that non-determinative processes are unable to guarantee. It purports to provide the best of two worlds, although not without complications. A further iteration of med-arb includes a return to mediation aer the arbitration phase in order to negotiate any necessary operationalisation of the nal agreement reached. is is known as med-arb-med. 4.118 In arb-med, intervenors rst conduct an arbitration and decide on the outcome, and then ‘restart’ the DR process by conducting a mediation. In order to make the second phase as ‘authentic’ as possible, arbitrators do not disclose to the parties their rst-phase decisions. If mediation settles all issues the arbitral decision is discarded, but if there is no mediated settlement the original arbitral decision becomes a determination binding on the parties. Arb-med can operate in private contexts or in the setting of formal justice forums. An example of the latter is that offered by the QCAT.175 While there is little information on the extent of its private usage, arb-med appears not to be widely used in Australia or abroad. 4.119 Where mediation is introduced through a window in an arbitration proceeding, the process is called arb-med-arb.176 is system commences as arbitration and is then transformed into mediation on some or all of the disputed issues. If the mediation produces an agreed settlement the arbitration is resumed and the settlement is incorporated into an award. If there is no mediated agreement the arbitration resumes and continues in the usual way. is combination works best in contexts where [page 131] approaches to the two primary processes are less distinct and more aligned.

In such circumstances, it can make sense for the same intervenor to assist parties throughout the sequence of DR procedures. Arb-med-arb can also be used for cross-border DR so the arbitration component can provide enforceability across jurisdictions.177 4.120 Processes can be combined or blended in a range of other ways. For example, negotiation followed by arbitration, or expert determination followed by conciliation, while mediation, arbitration and adjudication can be integrated into another system through contractual arrangements.178 Some parties might wish to negotiate or mediate aer specialised factnding or expert recommendations on technical aspects of a dispute, such as intellectual property or medical issues. ere can be creativity in blended systems to cater to the speci c parties’ needs and the circumstances of different categories of disputes. Information on the extent of the use of blended processes is available in the context of tribunals and statutory agencies but less so in private DR settings. From available information, it seems that despite the wide range of possibilities, med-arb is the most prevalent of the blended processes. However, in a exible and uid world some might argue that litigation itself has become a blend of traditional and innovative features. 4.121 Blended processes have the potential to address the parties’ interests, rights and also their power relationship. For example, commencing a DR process as a mediation will allow the parties to focus initially on reconciling their relative interests. However, if the mediation process fails to achieve settlement, then moving to a more advisory or determinative process, such as conciliation or arbitration, with the assistance of the same or another intervenor, will allow for a determination based on the parties’ positions and the relative merits of their legal rights and entitlements. In such circumstances, the determination can also be informed, however, by the third-party intervenor’s understanding of the parties’ interests. As is the case with all advisory and determinative categories of DR process, power dynamics are relevant to blended processes. Blended processes are discussed in more detail in Chapter 10.

Conclusion

4.122 e variety of available DR systems listed on the DR matrix, with differing strengths and shortcomings, creates a diverse range of choices and process options for clients, legal advisers, courts, tribunals and industry bodies. Some choices are informed, or constrained, by regulatory frameworks or codes of conduct and others are as unfettered as market choices, unrestricted in some dimensions but subject to affordability, access and supply. [page 132] 4.123 DR practitioners must understand the nature and purpose of each of the processes, as must lawyers providing contemporary legal services, because this knowledge is fundamental to an ability to ethically, professionally and successfully support and advise parties and clients. Further, an ability to apply the matrix in practical legal contexts is a critical component of contemporary legal advocacy. For this reason, the discussion of the matrix components in this chapter is offered as a valuable resource available for effective, responsible and ethical practice in DR contexts. 1.

As noted in Chapter 3, DR knowledge is now part of the new advocacy role for lawyers which we discuss in more detail in Chapter 12. See, eg, David Newton, ‘Alternative Dispute Resolution and the Lawyer’ (1987) 61(9) Australian Law Journal 562; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH, 2010); Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011); Donna Cooper, ‘e “New Advocacy” and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(3) Australasian Dispute Resolution Journal 242; Julie Macfarlane, e New Lawyer: How Clients are Transforming the Practice of Law (University of British Columbia Press, 2nd ed, 2017) ch 5; Kathy Douglas, ‘e Role of ADR in Developing Lawyers’ Practice: Lessons from Australian Legal Education’ in Avrom Sherr, Richard Moorhead and Hilary Sommerlad (eds), Legal Education at the Crossroads: Education and the Legal Profession (Routledge, 2018); Jacqueline Weinberg, ‘Keeping Up with Charge: No Alternative to Teaching ADR in Clinic. An Australian Perspective’ (2018) 25(1) International Journal of Clinical Legal Education 35; Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis Butterworths, 2018) 116–24; Tania Sourdin and Margaret Castles, ‘Is the Tail Wagging

the Dog? Finding a Place for ADR in Pre-Action Processes: Practice and Perception’ (2020) 41(2) Adelaide Law Review 479; Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020). 2.

NADRAC, Dispute Resolution Terms: e Use of Terms in (Alternative) Dispute Resolution (Australian Government, 2003), which further developed the de nition of terms as they had been articulated in NADRAC, Alternative Dispute Resolution De nitions (Australian Government, 1997). See also National Alternative Dispute Resolution Advisory Council (NADRAC), Your Guide to Dispute Resolution (Commonwealth Government, 2012) 7–8. e Guide lists NADRAC’s National Principles for Resolving Disputes: ‘Self-responsibility is the rst step’. is rst principle states: ‘To resolve your dispute, you need to take responsibility for: being clear about what is in dispute, genuinely trying to resolve the dispute, and seeking support when you need it’: 9.

3.

For example, through Freedom of Information laws (also known as right to information in some jurisdictions) in Commonwealth, state and territory jurisdictions. See, eg, . See also Robert Hazell and Ben Worthy, ‘Assessing the Performance of Freedom of Information’ (2010) 27(4) Government Information Quarterly 352; Ben Worthy, Peter John and Matia Vannoni, ‘Transparency at the Parish Pump: A Field Experiment to Measure the Effectiveness of Freedom of Information Requests in England’ (2017) 27(3) Journal of Public Administration Research and eory 485.

4.

See Australian Competition and Consumer Act 2015 (Cth) Sch 1.

5.

See .

6.

In the medical context, see, eg: Pamela Hartzband and Jerome Groopman, ‘Untangling the Web — Patients, Doctors, and the Internet’ (2010) 362(12) New England Journal of Medicine 1063; Dorothe Kienhues, Marc Stadtler and Rainer Bromme, ‘Dealing with Con icting or Consistent Medical Information on the Web: When Expert Information Breeds Laypersons’ Doubts About Experts’ (2011) 21(2) Learning and Instruction 193; S Anne Moorhead et al, ‘A New Dimension of Health Care: Systematic Review of the Uses, Bene ts, and Limitations of Social Media for Health Communication’ (2013) 15(4) Journal of Medical Internet Research 85; Purvi L Shroff, ‘Internet Usage by Parents Prior to Seeking Care at a Pediatric Emergency Department: Observational Study’ (2017) 6(2) Interactive Journal of Medical Research e5075; Ben O’Mara, Devaki Monani and Gemma Carey, ‘Telehealth, COVID-19 and Refugees and Migrants in Australia: Policy and Related Barriers and Opportunities for More Inclusive Health and Technology Systems’ (2021) International Journal of Health Policy Management (in press). In the legal context, see also Law and Justice Foundation of New South Wales, Best Practice Guidelines for Australian Legal Websites .

7.

See, eg, Jorge Amieva, ‘Legal Advice Given Over the Internet and Intranet: How Does

this Practice Affect the Lawyer-Client Relationship’ (2001) 27(2) Rutgers Computer & Technology Law Journal 205; Peter B Maggs, ‘Free Legal Advice on the Internet’ (2006) 34(3) International Journal of Legal Information 483; Catrina Denvir, Nigel J Balmer and Pascoe Pleasence, ‘Sur ng the Web — Recreation or Resource? Exploring How Young People in the UK Use the Internet as an Advice Portal for Problems with a Legal Dimension’ (2011) 23(1) Interacting with Computers 96; John Wagner Givens, ‘Justice Online? Lawyers and Legal Advice Websites in the People’s Republic of China’ (2019) 37(2) Wisconsin International Law Journal 207; Jonathan Crowe et al, ‘“I’ll Just Google at!” Online Searches and the Post-Separation Family Law Information Experience’ (2019) 44(2) Alternative Law Journal 108. 8.

For an example examined in a judgment, see WTE Co-Generation v RCR Energy Pty Ltd [2013] VSC 314 (21 June 2013) [21]–[47].

9.

See, eg, . e Owners Corporation Act 2006 (Vic) makes provision for multi-tiered DR processes, starting with dispute prevention by provision of information and advice. See also Kathy Douglas, Christina Platz and Robin Goodman, ‘Co-Housing Disputes: Strategies for Harmonious Con ict Resolution?’ (2021) 31(1) Australasian Dispute Resolution Journal 37.

10.

See Rebecca Leshinsky et al, ‘What Are ey Fighting About? Research into Disputes in Victorian Owners Corporations’ (2012) 23(2) Australasian Dispute Resolution Journal 112, 118–19; Rebecca Leshinsky et al, ‘Dispute Resolution under the Owners Corporation Act 2006 (Vic): Engaging with Con ict in Communal Living’ (2012) 2(1) Property Law Review 39; Kathy Douglas and Rebecca Leshinsky, ‘Ethical Concerns for Owners Corporation Managers who Informally Mediate in Owners Corporation Disputes: e Need for a Community of Practice’ (2017) 35(1) Law in Context: A Socio-Legal Journal 118.

11.

On the values and goals of DR, see Chapter 5 and on the value propositions underlying mediation speci cally, see Chapter 8.

12.

Australian Legal Aid Offices now have signi cant libraries of fact sheets in relation to a range of matters available online. See, eg, Legal Aid Victoria ; Legal Aid Queensland ; Legal Aid New South Wales ; Legal Aid Tasmania .

13.

See also Lola Akin Ojelabi, ‘Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice — Part I’ (2011) 22(2) Australasian Dispute Resolution Journal 111; Lola Akin Ojelabi, ‘Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice — Part II’ (2011) 22(3) Australasian Dispute Resolution Journal 173.

14.

See .

15.

See . e aim of the service is to assist unrepresented parties understand their rights and responsibilities, and to empower them to present their case.

16.

Unbundling can take place in all DR contexts — see, eg, Robert E Hirshon, ‘e Importance of Unbundling Legal Services’ (2002) 40(1) Family Court Review 13; Franklin R Gar eld, ‘Unbundling Legal Services in Mediation: Re ections of a Family Lawyer’ (2002) 40(1) Family Court Review 76. See also Michael Robertson and Lillian Corbin, ‘To Enable or to Relieve? Specialist Lawyers’ Perceptions of Client Involvement in Legal Service Delivery’ (2005) 12(1) International Journal of the Legal Profession 121; Alicia M Farley, ‘An Important Piece of the Bundle: How Limited Appearances Can Provide an Ethically Sound Way to Increase Access to Justice for Pro Se Litigants’ (2007) 20(3) Georgetown Journal of Legal Ethics 563; Nina Van Wormer, ‘Help at Your Fingertips: A Twenty-First Century Response to the Pro Se Phenomenon’ (2007) 60(3) Vanderbilt Law Review 983; Forrest S Mosten, ‘Collaborative Law Practice: An Unbundled Approach to Informed Client Decision Making’ (2008) Journal of Dispute Resolution 163; Jessica Steinberg, ‘In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services’ (2011) 18(3) Georgetown Journal on Poverty Law Policy 453; D James Greiner, Cassandra Pattanayak and Jonathan Hennessy, ‘e Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future’ (2012) 126(4) Harvard Law Review 901; Julian Sher and Paul D Evans, ‘Getting Unbundling Right’ (2017) (Nov) Brief 24; Paul D Evans, ‘Getting Unbundling Right: e Retainer’ (2019) (Oct) Brief 9; Garry A Gabison, ‘Harmful Unbundling’ (2020) 39(1) Journal of Law & Commerce 1; Lawrence Alexander et al, Anticipating Changes in the Delivery of Legal Services and the Legal Profession (Law Society of British Columbia, 2020).

17.

is is the phraseology of Richard Susskind, Tomorrow’s Lawyers (Oxford University Press, 2013) 29–38.

18.

See, eg, William Fotherby, ‘Law that is Pro Se (Not Poetry): Towards a System of Civil Justice that Works for Litigants Without Lawyers’ (2010) 16(1) Auckland University Law Review 54.

19.

See generally, eg, John Dewar, Barry Smith and Cate Banks, ‘Litigants in Person in the Family Court of Australia’, Family Court of Australia Research Report No 20 (2000); Rosemary Hunter, Jeff Giddings and April Chrzanowski, Legal Aid and SelfRepresentation in the Family Court of Australia (Socio-Legal Research Centre, Griffith University, 2003); Peter Wulf, ‘Court-Ordered Mediation in the Planning and Environment Court: Does it Assist Self-Represented Litigants?’ (2007) 18(3) Australasian Dispute Resolution Journal 149; Elizabeth Richardson, Tania Sourdin and Nerida Wallace, Self-Represented Litigants: Literature Review (Australian Centre for Court and Justice System Innovation, 2012); Chad Silver, ‘Aiding the Plight of Self

Represented Litigants: Admission to the Magistrates Court’ (2013) 20(1) Murdoch University Law Review 22; Jess Smith and Victoria Worrell, ‘Assessing the Impact of Self-Represented Litigants’ (2015) 37(9) Bulletin (Law Society of South Australia) 15; Margaret Castles, ‘Self-Represented Litigants: A Major 21st Century Challenge’ (2015) 37(9) Bulletin (Law Society of South Australia) 14; Liz J Richardson, Geneviere Grant and Janina Boughey, e Impacts of Self-Represented Litigants on Civil and Administrative Justice: Environmental Scan of Research, Policy and Practice (AIJA, 2018); Fatos Selita, ‘Unrepresented Litigants in Modern Courts — Ordeal by Combat’ (2018) 6(1) Legal Issues Journal 1; Jane Wangmann, Tracey Booth and Miranda Kaye, Self-Represented Litigants in Family Law Proceedings Involving Allegations about Family Violence (ANROWS, 2020); Kate Leader, ‘From Bear Gardens to the County Court: Creating the Litigant in Person’ (2020) 79(2) Cambridge Law Journal 260; Paul Sigar, ‘Unrepresented Litigants in South Australia: A Successful Pre-trial Framework?’ (2021) 43(2) e Bulletin 24. See also for the UK perspective, Kim Williams, ‘Litigants in Person: A Literature Review’, Research Summary 2/11 (Ministry of Justice, 2011); Chris Bevan, ‘Self-Represented Litigants: e Overlooked and Unintended Consequence of Legal Aid Reform’ (2013) 35(1) Journal of Social Welfare and Family Law 43. 20.

See .

21.

See, eg, Penelope Weller, ‘Taking a Re exive Turn: Non-Adversarial Justice and Mental Health Review Tribunals’ (2011) 37(1) Monash University Law Review 81; Aaron Rathmell, ‘e Relation Between Function and Form in the Main Federal Industrial Tribunals’ (2011) 53(5) Journal of Industrial Relations 596; Terry Carney, ‘Australian Mental Health Tribunals — “Space” for Rights, Protection, Treatment and Governance?’ (2012) 35(1) International Journal of Law and Psychiatry 1.

22.

See, eg, the Mental Health Review Tribunal in Queensland ; Paul Sheiner, Litigants in Person Management Plans: Issues for Courts and Tribunals (AIJA, 2001).

23.

See, eg, NADRAC, Your Guide to Dispute Resolution, (n 2) 11. See also I William Zartman (ed), e Negotiation Process: eories and Applications (Sage Publications, 1978); Lawrence Susskind and Jeffrey Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes (Basic Books, 1987); Jeffrey Z Rubin and Frank EA Sander, ‘When Should We Use Agents? Direct vs. Representative Negotiation’ (1988) 4(4) Negotiation Journal 395; David Churchman, Negotiation: Process, Tactics, eory (University Press of America, 1995); Edna Sussman, ‘Why Mediate? e Bene ts of Mediation Over Direct Negotiation and Litigation’ (2009) 6(1) Transnational Dispute Management (online); Larry Crump, ‘Negotiation Process and Negotiation Context’ (2011) 16(2) International Negotiation 197; Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Penguin, 3rd ed, 2011); Deborah M Kolb and Jessica L Porter, Negotiating at Work: Turn Small Wins into Big Gains (Wiley, 2015); Eliane Karsaklian, e Negotiation Process (Austin Macauley, 2020).

24.

NADRAC’s Dispute Resolution Terms uses the term ‘indirect negotiation’ and de nes it as ‘a process in which the parties to a dispute use representatives (for example, lawyers or agents) to identify issues to be negotiated, develop options, consider alternatives and endeavour to negotiate an agreement. e representatives act on behalf of the participants, and may have authority to reach agreements on their own behalf. In some cases the process may involve the assistance of a dispute resolution practitioner (the facilitator) but the facilitator has no advisory or determinative role on the content of the matters discussed or the outcome of the process, but may advise on or determine the process of facilitation’, (n 2) 8.

25.

See generally on approaches to negotiation as a process, Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation Strategy Style Skills (LexisNexis Butterworths, 3rd ed, 2015). See also sources cited in (n 23).

26.

Carrie Menkel-Meadow, ‘Towards Another View of Legal Negotiation: e Structure of Problem Solving’ (1984) 31(4) UCLA Law Review 754, 755.

27.

Simon Roberts, ‘e Path of Negotiations’ (1996) 49(1) Current Legal Problems 97, 99.

28.

Eisenberg argues that negotiated outcomes are heavily informed by legal and social ‘principles, rules and precedents’: Melvin Eisenberg, ‘Private Ordering through Negotiation: Dispute Settlement and Rulemaking’ (1976) 89(4) Harvard Law Review 637, 650. See also, eg, Robert H Mnookin, ‘Divorce Bargaining: e Limits on Private Ordering’ (1985) 18(4) University of Michigan Journal of Law Reform 1015; Andrew Hutchinson, Alan Rycro and Michelle Porter-Wright, ‘Private Ordering and Dispute Resolution’ (2018) 135(2) South African Law Journal 324.

29.

On the North American origins of CP, see Sheila M Gutterman, Collaborative Law: A New Model for Dispute Resolution (Bradford Publishing, 2004). See also, eg, John Lande and Gregg Herman, ‘Fitting the Forum to the Family Fuss: Choosing Mediation, Collaborative Law, or Cooperative Law for Negotiating Divorce Cases’ (2004) 42(2) Family Court Review 280; John Lande, ‘An Empirical Analysis of Collaborative Practice’ (2011) 49(2) Family Court Review 257; Connie Healy, Collaborative Practice: An International Perspective (Routledge, 2017); Pauline Collins and Marilyn Scott, ‘e Essential Nature of a Collaborative Practice Group for Successful Collaborative Lawyers’ (2017) 28(1) Australasian Dispute Resolution Journal 12.

30.

See Marilyn Scott, ‘Collaborative Law: Dispute Resolution Competencies for the “New Advocacy”’ (2008) 8(1) Queensland University of Technology Law and Justice Journal 233. See also Maxine Evers, ‘e Ethics of Collaborative Practice’ (2008) 19(3) Australasian Dispute Resolution Journal 179; Caroline Counsel, ‘What is this ing Called Collaborative Law?’ (2010) 85 Family Matters 77; John Lande and Forrest S Mosten, ‘Before You Take a Collaborative Law Case’ (2010) 33(2) Family Advocate 31.

31.

See Julie Macfarlane, ‘Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project’ (2004) Journal of Dispute Resolution 179; Julie Macfarlane, e Emerging Phenomenon of Collaborative Family Law: A

Qualitative Study of Collaborative Family Law Cases (Department of Justice Canada, 2005); Harry L Tindall and Elizabeth G Wood, ‘Uniform Collaborative Law Act — An Introduction’ (2014) 48(1) Family Law Quarterly 53. 32.

Anne Ardagh and Guy Cumes, ‘e Legal Profession Post-ADR: From Mediation to Collaborative Law’ (2007) 18(4) Australasian Dispute Resolution Journal 205, 210.

33.

John Lande and Forrest S Mosten, ‘Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law’ (2010) 25(2) Ohio State Journal on Dispute Resolution 347.

34.

Stuart G Webb and Ron Ousky, e Collaborative Way to Divorce: e Revolutionary Method at Results in Less Stress, Lower Costs, and Happier Kids — Without Going to Court (Penguin Books, 2007). See also Stu Webb and Ron Ousky, ‘History and Development of Collaborative Practice’ (2011) 49(2) Family Court Review 213. NADRAC’s discussion of DR terms does not refer to collaborative law or collaborative practice: see NADRAC, Dispute Resolution Terms, (n 2) and NADRAC, Your Guide to Dispute Resolution, (n 2).

35.

Nester C Kohut, erapeutic Family Law: A Complete Guide to Marital Reconciliation (Family Law Publications, 2nd ed, 1968).

36.

Pauline H Tesler, ‘Collaborative Law: What It Is and Why Lawyers Need to Know About It’ in Dennis P Stolle, David B Wexler and Bruce J Winick (eds), Practicing erapeutic Jurisprudence (Carolina Academic Press, 2000) 187; Pauline H Tesler, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association, 2001); Pauline Tesler, ‘Collaborative Family Law’ (2004) 4(3) Pepperdine Dispute Resolution Law Journal 317; Pauline H Tesler, ‘Collaborative Family Law, the New Lawyer and Deep Resolution of Divorce-Related Con icts’ (2008) Journal of Dispute Resolution 83.

37.

See, eg, Lorraine Lopich, ‘Collaborative Practice: “We Already Do at”’ (2007) 9 ADR Bulletin 172.

38.

Alexandria Zylstra, ‘A Call to Action: A Client-Centered Evaluation of Collaborative Law’ (2010) 11(3) Pepperdine Dispute Resolution Law Journal 547; Henry Kha, ‘Evaluating Collaborative Law in the Australian Context’ (2015) 26(3) Australasian Dispute Resolution Journal 178; Martha E Simmons, ‘Collaborative Law at 25: A Canadian Study of a Global Phenomenon’ (2016) 49(2) UBC Law Review 669. See also, eg, Susan Daicoff, ‘Law as a Healing Profession: e Comprehensive Law Movement’ (2006) 6(1) Pepperdine Dispute Resolution Law Journal 1, and the discussion of the comprehensive law movement in Chapter 14; Dafna Lavi, ‘Can the Leopard Change His Spots —Re ections on the Collaborative Law Revolution and Collaborative Advocacy’ (2011) 13(1) Cardozo Journal of Con ict Resolution 61; Katherine Wright, ‘e Evolving Role of the Family Lawyer: e Impact of Collaborative Law on Family Law Practice’ (2011) 23(3) Child & Family Law Quarterly 370.

39.

Notable pioneers in Australian CP practice are Marilyn Scott and Anne Ardagh. e

Australian Association of Collaborative Professionals represents practitioners of CP and advocates for advancements in the approach: . See also the International Academy of Collaborative Professionals . 40.

Law Council of Australia, Australian Collaborative Practice Guidelines for Lawyers (LCA, 2011).

41.

See, eg, Marilyn Scott, ‘Collaborative Law: A New Role for Lawyers’ (2004) 15(3) Australasian Dispute Resolution Journal 207; William H Schwab, ‘Collaborative Lawyering: A Closer Look at an Emerging Practice’ (2004) 4(3) Pepperdine Dispute Resolution Journal 351, 358. See also William F Coyne, ‘e Case for Settlement Counsel’ (1999) 14(2) Ohio State Journal on Dispute Resolution 367; David A Hoffinan and Rita S Pollak, ‘“Collaborative Law” Looks to Avoid Litigation’ (2000) 28 Massachusetts Lawyers Weekly 1989; Larry R Spain, ‘Collaborative Law: A Critical Re ection on Whether a Collaborative Orientation Can Be Ethically Incorporated into the Practice of Law’ (2004) 56(1) Baylor Law Review 141.

42.

See, eg, David A Hoffmant and Andrew Schepard, ‘To Disclose or Not to Disclose? at is the Question in Collaborative Laws’ (2020) 58(1) Family Court Review 83.

43.

Joshua Isaacs, ‘A New Way to Avoid the Courtroom: e Ethical Implications Surrounding Collaborative Law’ (2004) 18(3) Georgetown Journal of Legal Ethics 833; Sherrie R Abney, Avoiding Litigation: A Guide to Civil Collaborative Law (Trafford Publishing, 2005); Gary L Voegele, Linda K Wray and Ronald D Ousky, ‘Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better Outcomes’ (2006) 33(3) William Mitchell Law Review 971; Elizabeth F Beyer, ‘A Pragmatic Look at Mediation and Collaborative Law as Alternatives to Family Law Litigation’ (2008) 40(1) St Mary’s Law Journal 303.

44.

See, eg, Scott R Peppet, ‘e Ethics of Collaborative Law’ (2008) Journal of Dispute Resolution 131.

45.

See, eg, Law Council of Australia, (n 40). See also John Lande, ‘Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disquali cation and Process Control in a New Model of Lawyering’ (2003) 64(5) Ohio State Law Journal 1315; Christopher M Fairman, ‘A Proposed Model Rule for Collaborative Law’ (2005) 21(1) Ohio State Journal on Dispute Resolution 73; Brian Roberson, ‘Let’s Get Together: An Analysis of the Applicability of the Rules of Professional Conduct to Collaborative Law’ (2007) Journal of Dispute Resolution 255; John Lande, ‘Principles for Policymaking about Collaborative Law and Other ADR Processes’ (2007) 22(3) Ohio State Journal on Dispute Resolution 619; Christopher M Fairman, ‘Growing Pains: Changes in Collaborative Law and the Challenge of Legal Ethics’ (2007) 30(2) Campbell Law Review 237; Peppet, (n 44); John Lande and Forrest S Mosten, ‘Collaborative Lawyers’ Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients’ Informed Consent to Use Collaborative Law’ (2010) 25(2) Ohio State Journal on Dispute Resolution 347; Pamela Deck, ‘Law and Social Work:

Reconciling Con icting Ethical Obligations Between Two Seemingly Opposing Disciplines to Create a Collaborative Law Practice’ (2016) 38(2) West New England Law Review 261. 46.

See, eg, Daicoff, (n 38); Lauren Behrman, ‘Roles for Psychologists in Collaborative Divorce Practice’ in Steven Wal sh (ed), Earning a Living Outside of Managed Mental Health Care: 50 Ways to Expand your Practice (American Psychological Association, 2010).

47.

See, however, Claudia Lanzetta, ‘Mediation/Collaborative Law: Exploring a New Combination in Alternative Dispute Resolution in Cases of Divorce and Domestic Violence’ (2018) 20(2) Cardozo Journal of Con ict Resolution 329.

48.

Emily Kwok and Dianna T Kenny, ‘Misattributed Paternity Disputes: e Application of Collaborative Practice as an Alternative to Court’ (2015) 26(3) Australasian Dispute Resolution Journal 127.

49.

See, eg, Sourdin, (n 1) ch 4; Family Law Council, Collaborative Practice in Family Law: A Report to the Attorney-General (Family Law Council, 2006). See also Susan Daicoff, ‘Collaborative Law: A New Tool for the Lawyer’s Toolkit’ (2009) 20(1) University of Florida Journal of Law and Public Policy 113. Law societies around Australia provide information about collaborative practice on their respective websites.

50.

In this respect, CP differs procedurally from the tendency of some mediators to divert to ‘shuttle’ and convey messages back and forth between mediation parties located in different rooms.

51.

Tesler, ‘Collaborative Family Law, the New Lawyer and Deep Resolution of DivorceRelated Con icts’, (n 36). See also Margaret B Drew, ‘Collaboration and Coercion: Domestic Violence Meets Collaborative Law’ (2012) 1 Irish Law Journal 27; Patricia Easteal, Jessica Herbert and Jessica Kennedy, ‘Collaborative Practice in Family Law Matters with Coercive Control-Type Family Violence: Preliminary oughts from the Practitioner Coalface’ (2015) 5(1) Family Law Review 13.

52.

In the family law context, it might be necessary to have an apprehended violence order or protection order in place before the process commences to alleviate this concern. See, eg, Michaela Keet, Wanda Anne Wiegers and Melanie Morrison, ‘Client Engagement Inside Collaborative Law’ (2008) 24(2) Canadian Journal of Family Law 145; Barbara Glesner Fines, ‘Ethical Issues in Collaborative Lawyering’ (2008) 21(1) Journal of the American Academy of Matrimonial Law 141; Nancy Ver Steegh, ‘e Uniform Collaborative Law Act and Intimate Partner Violence: A Roadmap for Collaborative (and Non-Collaborative) Lawyers’ (2009) 38(2) Hofstra Law Review 699.

53.

Daye Gang, ‘Collaborative Practice and Poverty: Contextualising the Process and Accommodating the Market’ (2016) 27(3) Australasian Dispute Resolution Journal 158.

54.

Evers, (n 30).

55.

See Kha, (n 38); Luke Salava, ‘Collaborative Divorce: e Unexpectedly

Underwhelming Advance of a Promising Solution in Marriage Dissolution’ (2014) 48(1) Family Law Quarterly 179; Shelby Timmins, ‘Family Law: inking Outside the Box: Collaborative Practice in Family Law’ (2017) 31(March) LSJ: Law Society of NSW Journal 88; Laurence Ravillon, ‘e Art and Science of Negotiation in the New French Contract Law: Is It a Premise of Collaborative Law’ (2017) International Business Law Journal 651. 56.

See Tesler, ‘Collaborative Family Law’, (n 36).

57.

On this pre-action requirement, see further discussion in Chapter 8.

58.

However, see, eg, Sherrie Abney, Civil Collaborative Law: e Road Less Travelled (Trafford Publishing, 2011); Sherrie Abney, ‘Moving Collaborative Law Beyond Family Disputes’ (2013) 38(2) Journal of the Legal Profession 277; Alexandria Zylstra, ‘Collaborative Law and Business Disputes: A Marriage of Equals’ (2015) 17 Atlantic Law Journal 1. Further, in some dispute contexts the term collaborative practice is used more generically, as in Carrie Menkel-Meadow, ‘Getting to “Let’s Talk”: Comments on Collaborative Environmental Dispute Resolution Processes’ (2008) 8(3) Nevada Law Journal 835.

59.

Gay G Cox and Robert J Matlock, ‘e Case for Collaborative Law’ (2004) 11(1) Texas Wesleyan Law Review 45. e development of the Uniform Collaborative Law Act in the US indicates that awareness and use of CL there is higher: Herbie J DiFonzo, ‘A Vision for Collaborative Practice: e Final Report of the HOFSTRA Collaborative Law Conference’ (2009) 38(2) Hofstra Law Review 569; Forrest S Mosten and John Lande, ‘e Uniform Collaborative Law Act’s Contribution to Informed Client Decision Making in Choosing a Dispute Resolution Process’ (2009) 38(2) Hofstra Law Review 611; Diana M Comes, ‘Meet Me in the Middle: e Time is Ripe for Tennessee to Adopt the Uniform Collaborative Law Act’ (2010) 41(3) University of Memphis Law Review 551.

60.

See, eg, Anne Ardagh, ‘Evaluating Collaborative Law in Australia: A Case Study of Family Lawyers in the ACT’ (2010) 21(4) Australasian Dispute Resolution Journal 204; Anne Ardagh, ‘Repositioning the Legal Profession in ADR Services: e Place of Collaborative Law in the New Family Law System in Australia’ (2008) 8(1) Queensland University of Technology Law and Justice Journal 238.

61.

See Samantha Hardy, Con ict Coaching Fundamentals: Working with Con ict Stories (Routledge, 2022). See also Taylor Carden, ‘Guest Editorial: Workplace Con ict Strategies: Con ict Coaching Versus Mediation’ (2018) 6(1) Journal of Con ict Management 1. Coaching is sometimes referred to as ‘dispute resolution for one’ (DR1). See, eg, Alan Tidwell, ‘Problem Solving for One’ (1997) 14(4) Mediation Quarterly 309. See also Ross Brinkert, ‘Con ict Coaching: Advancing the Con ict Resolution Field by Developing an Individual Disputant Process’ (2006) 23(4) Con ict Resolution Quarterly 517; Ross Brinkert, ‘Con ict Coaching and the Organizational Ombuds Field’ (2010) 3(1) Journal of the International Ombudsman Association 47; Ross Brinkert, ‘Con ict Coaching Training for Nurse Managers: A Case Study of a

Two-Hospital Health System’ (2011) 19(1) Journal of Nursing Management 80; Ross Brinkert, ‘State of Knowledge: Con ict Coaching eory, Application, and Research’ (2016) 33(4) Con ict Resolution Quarterly 1; Noelene Salmon, ‘Cutting Edge … Cutting the Cost: e Business Case for Con ict Coaching in a Government Workplace’ (2017) 28(1) Australasian Dispute Resolution Journal 64. 62.

See, eg, Richard R Kilburg, Executive Coaching: Developing Managerial Wisdom in a World of Chaos (American Psychological Association, 2000); Cinnie Noble, ‘Resolving Co-Worker Disputes rough “Coaching Con ict Management”’ (2001) 14(16) Canadian HR Reporter 18; Cinnie Noble, ‘Con ict Coaching: A Preventative Form of Dispute Resolution’ (2002) 15(1) Interaction (also at ); Paul Potrac and Robyn Jones, ‘Power, Con ict, and Cooperation: Toward a Micropolitics of Coaching’ (2009) 61(2) Quest 223. ere is some criticism of the terminology of ‘con ict coaching’, with its focus on con ict and not on resolution. e CINERGY model is named con ict management coaching — see Cinnie Noble, Con ict Management Coaching: e CINERGY Model (Cinergy Publishing, 2012).

63.

On the theoretical bases for con ict coaching in cognitive therapy, attachment theory and neuroscience, see, eg, Karen Prime, ‘Using Con ict Coaching to Support People to Develop a Secure Mind in Relation to Con ict’ (2015) 26(2) Australasian Dispute Resolution Journal 111, 112–14. See also Brinkert, (n 60); Tricia S Jones and Ross Brinkert, Con ict Coaching: Con ict Management Strategies and Skills for the Individual (Sage Publications, 2008); Lorraine Segal, Teaching People to Fish in the Sea of Con ict: e Bene ts of Con ict Coaching (January 2011) Mediate.com ; Julie Starr, Brilliant Coaching: How to Be a Brilliant Coach in Your Workplace (Prentice Hall, 2nd ed, 2012); Judith Herrmann, ‘A Comparison of Con ict Coaching and Mediation as Con ict Resolution Processes in the Workplace’ (2012) 23(1) Australasian Dispute Resolution Journal 43; David Brubaker et al, ‘Con ict Resolution in the Workplace: What Will the Future Bring?’ (2014) 31(4) Con ict Resolution Quarterly 357; Susan Medway, ‘Con ict Coaching in Indigenous Australian Settings — Sharing the Lessons from Mediation’ (2015) 26(1) Australasian Dispute Resolution Journal 38; Julie Starr, e Coaching Manual (Pearson Education, 4th ed, 2016). See also Hardy, (n 61).

64.

See Laurence Boulle, Mediation — Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011) 173–7.

65.

Judith Hermann, ‘A Comparison of Con ict Coaching and Mediation as Con ict Resolution Processes in the Workplace’ (2012) 23(1) Australasian Dispute Resolution Journal 43.

66.

See the International Coach Federation Core Competencies on communication, relationship-building, goal setting and accountability. ese are not restricted to con ict coaches.

67.

For example, the International Coach Federation has promulgated the ICF Professional

Standards — Code of Ethics — see . 68.

See . See also, eg, and .

69.

See Chapter 2.

70.

See, eg, Medway, (n 63) 39–41.

71.

See John Winslade and Ashley Pangborn, ‘Narrative Con ict Coaching’ (2015) 2 Con ict and Narrative: Explorations in eory and Practice 90.

72.

See, eg, John Tyrril, ‘e Dark Side of Partnering’ (1998) 9(3) Australian Dispute Resolution Journal 165; Edwin HW Chan et al, ‘Patterns in the Use of Dispute Resolution Methods in the International Construction Industry’ (2005) 16(1) Australasian Dispute Resolution Journal 65; Aaron M Anvuur and Mohan M Kumaraswamy, ‘Conceptual Model of Partnering and Alliancing’ (2007) 133(3) Journal of Construction Engineering and Management 225. See also Tak Wing Yiu, ‘Forces to Foster Co-Operative Contracting in Construction Projects’ (2007) 18(2) Australasian Dispute Resolution Journal 113; Sarah E Hilmer, ‘Hong Kong’s Mediation Pilot Scheme for Construction Disputes’ (2007) 18(1) Australasian Dispute Resolution Journal 37.

73.

See Australian Competition and Consumer Commission (ACCC), Benchmarks for Dispute Avoidance and Resolution — A Guide (ACCC, 1997) 20.

74.

See NADRAC, Dispute Resolution Terms, (n 2) 9.

75.

See, eg, David Johnson, ‘Partnering in Government Contracts: e Ultimate in Dispute Resolution’ (1990) 1 World Arbitration and Mediation Reporter 141; Nick Gaede, ‘Partnering: A Common Sense Approach to Preventing and Managing Claims’ (1995) International Construction Law Review 74; Scott Laycock, ‘Back to Back Contracts and Partnering’ (1996) 48 Australian Construction Law News 43. e term ‘partnering’ does not denote a legal partnership or joint venture and risk allocation remains as per the construction contract.

76.

See Hedley Smyth and Stephen Pryke (eds), Collaborative Relationships in Construction: Developing Frameworks and Networks (Wiley-Blackwell, 2008) 245–6.

77.

See Tyrril, (n 72); John Dorter, ‘Partnering — ink it rough’ (1997) 13 Building and Construction Law 23.

78.

See Australian Construction Industry Institute, ‘Taskforce — Models for Success: A Research Report to the Construction Industry Institute Australia (Executive Summary)’ (1997) 52 Australian Construction Law Notes 49.

79.

ere are some nuances of terminology here — as is evident from the title of Greg Rooney’s paper, ‘e Project Alliancing and Relationship Contracting Experience’ (Paper presented at the ird Asia Paci c Mediation Forum Conference, Institute of Advanced Studies in Development and Governance, University of South Paci c, Fiji, 26–30 June 2006). See also Doug Jones, ‘Alliance Contracts — A Glimpse of the

Future’ (1988) 10 Australian Construction Law Bulletin 1; M Motiar Rahman and Mohan M Kumaraswamy, ‘Contracting Relationship Trends and Transitions’ (2004) 20(4) Journal of Management in Engineering 147; Fiona Yan Ki Cheung et al, ‘Relationship Contracting in Australia’ (2005) 11(2) Journal of Construction Procurement 123; JS Koolwijk, ‘Alternative Dispute Resolution Methods Used in Alliance Contracts’ (2006) 132(1) Journal of Professional Issues in Engineering Education and Practice 44; Pertti Lahdenperä, ‘Making Sense of the Multi-Party Contractual Arrangements of Project Partnering, Project Alliancing and Integrated Project Delivery’ (2012) 30(1) Construction Management and Economics 57. 80.

Rooney, (n 79) 1.

81.

is approach occurs in the context of the use of standard contracts such as the AS11000: . AS11000 is the standard contract introduced by Standards Australia in 2015 to provide general guidance for legal contracts in all sectors of industry, including construction, engineering, health, manufacturing and infrastructure. It supersedes AS2124-1992 and AS4000-1997. Commentary on AS11000 says that it ‘will provide a broadly balanced approach to risk allocation in plain language. e changes in AS11000 cover a variety of issues. Importantly, they include a new early warning procedure based upon an express good faith obligation, which is intended to assist in the management and resolution of disputes’: Sarah Davies, Australia: Good Faith Under the New Standard Contract AS11000 in the Building and Construction Industry (1 July 2015) ClarkeKann Lawyers .

82.

As Rooney observes, alliancing requires parties to place their existing contractual agreement into the top drawer and shut it. e parties then enter into a without prejudice renegotiation of their commercial relationship using the principles of project alliancing. Rooney provides Australian examples, (n 79) 8, 10–11.

83.

Ibid 5.

84.

See, eg, Karine Hamilton and Pamela Henry, ‘e Role of Counselling in FDR: ReDrawing Professional Boundaries’ (2011) 22(3) Australasian Dispute Resolution Journal 166. See also Elly Robinson, Online Counselling, erapy and Dispute Resolution: A Review of Research and its Application to Family Relationship Services (Australian Institute of Family Studies, 2009). Note, however, that in UK research parents in family law disputes referred to ‘counselling or personal development as an additional distraction from the con ict’: Liz Trinder and Joanne Kellett, ‘Fairness, Efficiency and Effectiveness in Court-Based Dispute Resolution Schemes in England’ (2007) 21(3) International Journal of Law, Policy and the Family 323. See also Michael Meltsner, ‘e Jagged Line Between Mediation and Couples erapy’ (1993) 9(3) Negotiation Journal 261; Robert Rubinson, ‘Client Counseling, Mediation, and Alternative Narratives of Dispute Resolution’ (2004) 10(2) Clinical Law Review 833; Shirli Kopelman, Ashleigh Shelby Rosette and Leigh ompson, ‘e ree Faces of Eve: Strategic Displays of Positive, Negative and Neutral Emotions in Negotiations’

(2006) 99(1) Organizational Behavior and Human Decision Processes 81; Nsisong Anthony Udoh and Kudirat Bimbo Sanni, ‘Supplanting the Venom of Litigation with Alternative Dispute Resolution: e Role of Counsellors and Guidance Professionals’ (2015) 43(5) British Journal of Guidance and Counselling 518. 85.

All dispute resolution processes, including litigation, could have therapeutic bene ts despite this not being their primary objective.

86.

See, eg, Hamilton and Henry, (n 84).

87.

See Linda Fisher and Mieke Brandon, Mediating with Families (omson Reuters, 4th ed, 2018).

88.

For a critical perspective, see Liz Bondi, ‘“A Double-Edged Sword”? e Professionalisation of Counselling in the United Kingdom’ (2004) 10(4) Health and Place 319.

89.

For a critical analysis of the relationship between social science and family law in Australia, see Zoe Rathus, ‘e Role of Social Science in Australian Family Law: Collaborator, Usurper or In ltrator?’ (2014) 52(1) Family Court Review 69.

90.

Commonly called ‘family consultants’. See also, eg, Jennifer McIntosh, Diana Bryant and Kristen Murray, ‘Evidence of a Different Nature: e Child-Responsive and Less Adversarial Initiatives of the Family Court of Australia’ (2008) 46(1) Family Court Review 125. For a critical analysis of the available literature and research on the work of family consultants in the context of family report writing in Australia, see Samantha Jeffries, ‘In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the “Expert” Assessments at Guide Judicial Determinations’ (2016) 5(1) Laws 14. See also Rachael Field et al, ‘Family Reports and Family Violence in Australian Family Law Proceedings: What Do We Know?’ (2016) 25(4) Journal of Judicial Administration 212; Zoe Rathus et al, ‘“It’s Like Standing on a Beach, Holding Your Children’s Hands, and Having a Tsunami Just Coming Towards You”: Intimate Partner Violence and “Expert” Assessments in Australian Family Law’ (2019) 14(4) Victims and Offenders 408.

91.

Financial counselling also has signi cant potential to be used constructively in a preventative way. See, eg, Nicola Brackertz, ‘e Impact of Financial Counselling on Alleviating Financial Stress in Low Income Households: A National Australian Empirical Study’ (2014) 13(3) Social Policy and Society 389.

92.

Rural Financial Counsellors provide nancial counselling under the Farm Debt Mediation scheme through the Rural Assistance Authority of the New South Wales Department of Primary Industries . See also the Farm Debt Mediation Act 1994 (NSW).

93.

See, eg, Naomi Augar and John Zeleznikow, ‘Developing Online Support and Counseling to Enhance Family Dispute Resolution in Australia’ (2014) 23(3) Group Decision and Negotiation 515.

94.

See generally Boulle, (n 1) and Boulle and Field, (n 1). NADRAC (Dispute Resolution

Terms, (n 2) 9) de ned mediation as follows: ‘Mediation is a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. e mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or subject to an existing contractual agreement. An alternative is ‘a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator) negotiate in an endeavour to resolve their dispute’. 95.

National Mediator Accreditation System, (2015) 2 .

96.

Kathy Douglas, ‘National Mediator Accreditation System: In Search of an Inclusive De nition of Mediation’ (2006) 25(1) e Arbitrator & Mediator 1, 8. See also John Wade, ‘Mediation — e Terminological Debate’ (1994) 5(3) Australian Dispute Resolution Journal 204.

97.

John Feerick et al, ‘Symposium: Standards of Professional Conduct in Alternative Dispute Resolution’ (1995) Journal of Dispute Resolution 95, 102.

98.

Boulle re ects this primacy when he discusses other DR processes in comparison to mediation: see Boulle, (n 1) 137–76. See also Boulle and Field, (n 1) ch 1.

99.

Note that the term ‘facilitation’ is used here to refer to a practice model of DR, while ‘facilitated’ and ‘facilitative’ are abstract categorisations of more than one process. Facilitation is a facilitated process. e term facilitation can be used in both broad and narrow senses. In the broad sense it denotes a range of DR processes which include facilitation and mediation. In the latter it refers to a single system which is distinguishable from mediation. See generally Tina Spiegel, ‘Mediation and Facilitation for Land Uses’ (1997) 8(4) Australian Dispute Resolution Journal 282; John Tyrril, ‘Facilitation: Corporate Decision-Making and Dispute Resolution’ (1998) 9(1) Australian Dispute Resolution Journal 22; Bernadine Van Gramberg, ‘Facilitation in the Workplace: An Exploratory Case Study’ (2001) 12(3) Australasian Dispute Resolution Journal 171; Robin Saunders, ‘Mediation and Facilitation — Commonalities and Differences’ (2009) 20(2) Australasian Dispute Resolution Journal 104; Marc D Kilgour and Colin Eden (eds), Handbook of Group Decision and Negotiation: Volume 4 (Springer Science & Business Media, 2010); Mieke Brandon, ‘Group Facilitation and Multi-Party Mediation’ (2010) 21(3) Australasian Dispute Resolution Journal 171; John Merrills, International Dispute Settlement (Cambridge University Press, 2011); Boulle, (n 1) [5.33]–[5.35]; John Woodward, ‘Encouraging Dialogue Between Large and Diverse Groups: e Emerging Field of Facilitation’ (2016) 27(1) Australasian Dispute Resolution Journal 58.

100. See generally Marg O’Donnell, ‘e Development and Delivery of Facilitation Services in Queensland, 1990 to 1996’ (1997) 8(3) Australian Dispute Resolution Journal 162.

101. See NADRAC, Dispute Resolution Terms, (n 2) 7. 102. See generally Tyrril, (n 99); Christine Hogan, Understanding Facilitation: eory and Principles (Kogan Page, 2009); Shirli Kirschner and David Moore, ‘“What’s the Problem?” Choosing an Optimal ADR Process for Resolution of Con ict’ in Michael Legg (ed), e Future of Dispute Resolution (LexisNexis Butterworths, 2012) 10; Michele Hardiman and Jan Dewing, ‘Using Two Models of Workplace Facilitation to Create Conditions for Development of a Person-Centred Culture: A Participatory Action Research Study’ (2019) 28(15–16) Journal of Clinical Nursing 2769; Rebekkah Middleton et al, ‘Unpacking and Developing Facilitation’ in Kim Manley, Valerie J Wilson and Christine Oye (eds), International Practice Development in Health and Social Care (Wiley, 2021) 131–46. 103. See Laurence Susskind, ‘Consensus Building and ADR: Why ey are Not the Same ing’ in Michael Moffitt and Robert Bordone (eds), e Handbook of Dispute Resolution (Jossey-Bass, 2005) 367. 104. See Saunders, (n 99). In some commercial contexts there is now a role for ‘trust facilitators’ in multi-party contexts. See, eg, Luiz F Mesquita, ‘Starting Over When the Bickering Never Ends: Rebuilding Aggregate Trust Among Clustered Firms rough Trust Facilitators’ (2007) 32(1) Academy of Management Review 72; Mads Bruun Ingstrup, ‘e Role of Cluster Facilitators’ (2010) 4(1) International Journal of Globalisation and Small Business 25. 105. See David Holst, ‘Consultation Process Seen as Model for the Future’ (2002) 4(10) ADR Bulletin Article 2; Roberta Mead, ‘When People are Heard, the Healing Begins’ (2004) 7(2) ADR Bulletin Article 3. See also Gerald W Cormick, ‘Strategic Issues in Structuring Multi-Party Public Policy Negotiations’ (1989) 5(2) Negotiation Journal 125; Chris Huxham (ed), Creating Collaborative Advantage (Sage, 1996); Rosemary O’Leary and Susan Summers Raines, ‘Lessons Learned From Two Decades of Alternative Dispute Resolution Programs and Processes at the US Environmental Protection Agency’ (2001) 61(6) Public Administration Review 682; Anthony Dorcey and Timothy McDaniels, ‘Great Expectations, Mixed Results: Trends in Citizen Involvement in Canadian Environmental Governance’ in Edward Parson (ed), Governing the Environment: Persistent Challenges, Uncertain Innovations (University of Toronto Press, 2001) 247; Sandra Cheldelin and Terrence Lyons, ‘Facilitation and Consultation’ in Sandra Cheldelin, Daniel Druckman and Larissa Fast (eds), Con ict (Continuum, 2nd ed, 2008) 317; Menkel-Meadow, (n 58). 106. Robin Gregory, Tim McDaniels and Daryl Fields, ‘Decision Aiding, Not Dispute Resolution: Creating Insights rough Structured Environmental Decisions’ (2001) 20(3) Journal of Policy Analysis and Management 415. 107. See Simon Priest, Michael Gass and Lee Gillis, e Essential Elements of Facilitation (Learning Unlimited, 2000); omas Stipanowich and J Ryan Lamare, ‘Living with “ADR”: Evolving Perceptions and Use of Mediation, Arbitration and Con ict

Management in Fortune 1,000 Corporations’ (2014) 19(1) Harvard Negotiation Law Review 1. 108. See Mieke Brandon and Leigh Robertson, Con ict and Dispute Resolution: A Guide for Practice (Oxford University Press, 2007) 65–6; Ruth Charlton, Dispute Resolution Guidebook (Lawbook, 2000) 8–9; Michael M Burgess, ‘From “Trust Us” to Participatory Governance: Deliberative Publics and Science Policy’ (2014) 23(1) Public Understanding of Science 48. 109. See, eg, Stacy Langsdale et al, ‘Collaborative Modeling for Decision Support in Water Resources: Principles and Best Practices’ (2013) 49(3) Journal of the American Water Resources Association 629; Kelly E Maxwell, Biren Ratnesh Nagda and Monita ompson, Facilitating Intergroup Dialogues: Bridging Differences, Catalyzing Change (Stylus Publishing, 2012); Woodward, (n 99). 110. See O’Donnell, (n 100). 111. See also Woodward, (n 99). 112. See NADRAC, Dispute Resolution Terms, (n 2) 6. 113. See further Tania Sourdin, Five Reasons Why Judges Should Conduct Settlement Conferences (AIJA, 2010). See also Buttigeig v Melton [2004] VCAT 868. 114. Personal Injuries Proceedings Act 2002 (Qld) ss 36–39. Section 38(1) provides: ‘e compulsory conference may be held with a mediator if all parties agree’. Parties can dispense with the conference ‘for good reason’: s 36(4). 115. Personal Injuries Proceedings Act 2002 (Qld) s 37. 116. Catherine Caruana, ‘Dispute Resolution Choices: A Comparison of Family Dispute Resolution, Family Law Conferencing Services and Collaborative Law’ (2010) 85 Family Matters 80. 117. See Tania Sourdin, Mediation in the Supreme and County Courts of Victoria (Department of Justice (Vic), 2009) (iii), recommendation 9, vi. 118. See generally Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014) ch 3. 119. Family Law Act 1975 (Cth) s 10F. 120. Watton v Smart [2014] FCCA 2826, [58] (Harman J). 121. See ‘Understanding on Rules and Procedures Governing the Settlement of Disputes’, Annex 2 of the WTO Agreement, art 5 . 122. See, eg, Mieke Brandon and Tom Stodulka, ‘A Comparative Analysis of the Practice of Mediation and Conciliation in Family Dispute Resolution in Australia: How Practitioners Practice across both Processes’ (2008) 8(1) QUT Law and Justice Journal 194 in which the authors argue that despite fundamental differences in well-accepted de nitions used to describe both mediation and conciliation, there is increasing similarity in the role of the third-party facilitator in these processes. e NADRAC

2012 guide mentions a number of times that conciliation and mediation, and the respective roles of mediators and conciliators, are similar: NADRAC, Your Guide to Dispute Resolution, (n 2) 15. See also, Australian Dispute Resolution Advisory Council, Conciliation Report (ADRAC, 2021). 123. UNCITRAL Model Law on International Commercial Conciliation art 6. e corresponding rules envisage more ‘interventionist’ roles for conciliators in that they can formulate potential terms of settlement, submit them to parties for comment and redra them — see UNCITRAL Conciliation Rules arts 7 and 13. 124. See Understanding on Rules and Procedures Governing the Settlement of Disputes, Annexure 2 of the WTO Agreement, art 5 . 125. NADRAC, Dispute Resolution Terms, (n 2) 5. e de nition also notes that ‘there are wide variations in meanings for “conciliation”, which may be used to refer to a range of processes used to resolve complaints and disputes including: Informal discussions held between the parties and an external agency in an endeavour to avoid, resolve or manage a dispute; combined processes in which, eg, an impartial party facilitates discussion between the parties, provides advice on the substance of the dispute, makes proposals for settlement or actively contributes to the terms of any agreement’. NADRAC asserted the distinction between mediation and conciliation should be considered as follows: ‘“mediation” is a purely facilitative process, whereas “conciliation” may comprise a mixture of different processes including facilitation and advice’. NADRAC considered that the term ‘mediation’ should be used where the practitioner has no advisory role on the content of the dispute and the term ‘conciliation’ where the practitioner does have such a role. NADRAC noted, however, that ‘both “mediation” and “conciliation” are now used to refer to a wide range of processes and that an overlap in their usage is inevitable’: NADRAC, Dispute Resolution Terms, (n 2) 3. 126. e federal government has constitutional power ‘to make laws for the peace, order and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’: Constitution of Australia 1901 (Cth) s 51(xxxv). See also Anthony R Beech, ‘Mediation — Transforming the Industrial Relations Landscape’ (2009) 10(8) ADR Bulletin 1. 127. See, eg, James Macken and Gail Gregory, Mediation of Industrial Disputes (Federation Press, 1995); Mark Bray and Johanna Macneil, ‘Mediation and Conciliation in Collective Labor Con icts in Australia’ in Martin C Euwema, Francisco J Medina and Ana Belén García (eds), Mediation in Collective Labor Con icts (Springer, 2019) 247– 63. See also William K Roche, Paul Teague and Alexander JS Colvin (eds), e Oxford Handbook of Con ict Management in Organizations (Oxford University Press, 2014). 128. Conciliation has been referred to by David Bryson as ‘mediation within a legal framework’ but he also points to nuances in the system — David Bryson, ‘And the

Leopard Shall Lie Down with the Kid: A Conciliation Model for Workplace Disputes’ (1997) 8(4) Australasian Dispute Resolution Journal 245. See also David Bryson, ‘Mediator and Advocate: Conciliating Human Rights Complaints’ (1990) 1(3) Australian Dispute Resolution Journal 136. See also Margot Rogers and Tony Gee, ‘Mediation, Conciliation and High Con ict Families: Dialogue with a Dead Horse’ (2003) 14(4) Australasian Dispute Resolution Journal 266; James Cameron and Grant Davies, ‘Compensation through Conciliation: Payments Made rough the Office of the Health Services Commissioner’ (2014) 25(2) Australasian Dispute Resolution Journal 109; Donna Cooper and Deborah Keenan, ‘A Model to Use When Representing Clients in Conciliation Conferences in the Queensland AntiDiscrimination Commission’ (2018) 29(2) Australasian Dispute Resolution Journal 126. 129. ere is an exception where an add-on function allows conciliators to make partial determinations, as in the Accident Compensation Conciliation Service in Victoria — see . 130. Sourdin, (n 1) ch 6. 131. Nevertheless, the facilitative aspects of conciliation should not be overlooked as they are not incidental elements. Conciliation training is also oen located within the paradigm of interest-based self-determination and party autonomy associated with mediation theory and training. Facilitation is therefore a necessary element of the conciliation process, but not necessarily its primary, and by no means its only, element. For example, the Health Care Complaints Act 1993 (NSW) describes conciliators’ roles, inter alia, as bringing parties together for the purposes of promoting discussion, negotiation and settlement of complaints and assisting them, without imposing determinations, to reach agreement: s 49. ese are classic facilitative functions. See on conciliators’ facilitative functions: Rosalie Poole, ‘Facilitating Systemic Outcomes through Anti-Discrimination Conciliation and the Role of the Conciliator in is Quest’ (2016) 27(1) Australasian Dispute Resolution Journal 49. 132. See Sourdin, (n 1). See also Laurence Street, ‘Binding and Non-Binding Expert Appraisal’ (1990) 1(3) Australian Dispute Resolution Journal 133; David Spencer, ‘Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales’ (2000) 11(4) Australasian Dispute Resolution Journal 237; Wayne D Brazil, ‘Early Neutral Evaluation or Mediation — When Might ENE Deliver More Value’ (2007) 14 Dispute Resolution Magazine 10; Wayne D Brazil, Early Neutral Evaluation (American Bar Association, 2012); John Lande, ‘e Revolution in Family Law Dispute Resolution’ (2012) 24(2) Journal of the American Academy of Matrimonial Lawyers 411; Barry Edwards, ‘Renovating the Multi-Door Courthouse: Designing Trial Court Dispute Resolution Systems to Improve Results and Control Costs’ (2013) 18 Harvard Negotiation Law Review 281; Andrew Coffey, ‘e AFL Tribunal System — An Insider’s Perspective on Early Neutral Evaluation, Arbitrary Power and Judicial Intervention’ (2013) 24(4) Australasian Dispute Resolution Journal 230; Sai On

Cheung, ‘Contractual Use of Alternative Dispute Resolution’ in Sai On Cheung (ed), Construction Dispute Research: Conceptualisation, Avoidance and Resolution (Springer International Publishing, 2014) 319; Natalie Knowlton and Melinda Taylor, ‘A New Out-of-Court Process for Divorce and Separation’ (2014) 43(2) Colorado Lawyer 5; Michael Walton, ‘A Critical Evaluation of ADR in the Queensland Planning and Environment Court’ (2014) 25(1) Australasian Dispute Resolution Journal 20; F Merlin William and Shane S Smith, ‘Overturning Appraisal Awards for Bias and Seeking Discovery from Appraisers’ (2015) 44(July) e Brief 48; Alexander Duffy and Maree Casey, ‘e Efficacy of Using Independent Experts in Dispute Resolution Clauses: Are they Practical for Complex Disputes?’ (2018) 37(2) Australian Resources and Energy Law Journal 6; Laurence Street, ‘e Court System and Alternative Dispute Resolution Procedures’ (2018) 29(2) Australasian Dispute Resolution Journal 85. 133. NADRAC, Dispute Resolution Terms, (n 2) 6. 134. Ibid 7. 135. Ibid. 136. See, eg, Alternative Dispute Resolution Act 2001 (Tas) s 3; Land and Environment Court Rules 2007 (NSW) Pt 6.2(1). See also Explanatory Memorandum, Civil Dispute Resolution Bill 2011 (Cth) 7. 137. Alternative Dispute Resolution Act (Tas) s 5. Referral discretions are based on what the court considers appropriate circumstances for either party. In the case of neutral evaluation, no party consent is required. 138. See, eg, Land and Environment Court Rules 2007 (NSW) s 6.2(2). While this is a more general point, rather than speci c to the advisory processes, it is arguable that courts should in appropriate cases make referrals to ‘dispute resolution’ rather than evaluation or appraisal and permit the parties to decide on their DR process — see Angela Bowne, ‘Reforms to Civil Justice: Alternative Dispute Resolution and the Courts’ (2015) 39 Australian Bar Review 275, 283. 139. See, eg, Civil Proceedings Act 2011 (Qld) s 43. 140. See Supreme Court Rules 2000, No 8 (Tas). 141. In the New South Wales Land and Environment Court, external evaluators are funded by the parties but there is no charge if Commissioners of the court perform the evaluation. 142. Alternative Dispute Resolution Act 2001 (Tas) ss 10, 11, 12. 143. See . 144. ese are Queensland, the Australian Capital Territory, Tasmania and Victoria. 145. NADRAC, (n 2) 7. 146. Ibid 9. See also, eg, Bassina Farbenblum and Laurie Berg, ‘Migrant Workers’ Access to

Remedy for Exploitation in Australia: e Role of the National Fair Work Ombudsman’ (2017) 23(3) Australian Journal of Human Rights 310. 147. See Rachael Field and Michael Barnes, ‘University Ombuds: Issues for Fair and Equitable Complaints Resolution’ (2003) 14(3) Australasian Dispute Resolution Journal 198. 148. On ombuds offices in Australia and New Zealand, see . An example of this third category of ombuds institution is the Australian Small Business and Family Enterprise Ombudsman (SBFEO). is body has both advocacy and assistance functions in relation to enterprises falling within its jurisdiction: Australia Small Business and Family Enterprise Ombudsman Act 2015 (Cth) s 13. 149. See Michael Palmer and Simon Roberts, Dispute Processes — ADR and the Primary Forms of Decision-Making (Cambridge University Press, 3rd ed, 2020). 150. NADRAC, Dispute Resolution Terms, (n 2) 4: arbitration is: ‘a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a determination’. 151. See, eg, Commercial Arbitration Act 2013 (Qld). 152. NADRAC, Dispute Resolution Terms, (n 2) 7. e Law Societies and Bar Associations also provide information about, and model clauses for, expert determination for their members. See also Logan Campbell, ‘Final and Binding Expert Determination and the Discretion to Stay Proceedings’ (2005) 16(2) Australasian Dispute Resolution Journal 104; Troy Peisley, ‘Impugning Expert Determination: When Does an Error Justify Setting Aside a Determination?’ (2011) 22(4) Australasian Dispute Resolution Journal 247; Case Note, ‘e Binding Nature of an Expert Determination’ (2012) 23(1) Australasian Dispute Resolution Journal 3; Edward Shaw, ‘Resolve to Resolve: A Review of the RICS Dilapidations Scheme for Expert Determination’ (2015) 3(4) Journal of Building Survey, Appraisal and Valuation 317; Alisa Taylor, ‘With Great Power ere Must Also Come Great Responsibility: Reining in Unbridled Expert Determinations’ (2017) 28(3) Australasian Dispute Resolution Journal 196. 153. NADRAC’s de nition of expert determination was as follows: ‘a process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner, who is chosen on the basis of their specialist quali cation or experience in the subject matter of the dispute (the expert) and who makes a determination’: NADRAC, Dispute Resolution Terms, (n 2) 7. 154. See, eg, the Australian Disputes Centre DR Sample Clauses 2019 at , and Model Dispute Resolution Clauses provided for in the Fair Work Regulations 2009 (Cth) regs 6.01, 6.03B. 155. See Anna Hood, ‘Commercial Contracts, Lawyers and Alternative Dispute Resolution; A Proactive Habit’ (1998) 9(2) Australian Dispute Resolution Journal 129, 134. 156. See . 157. Consider, eg, Julian Gruin, ‘e Rule of Law, Adjudication and Hard Cases: e Effect

of Alternative Dispute Resolution on the Doctrine of Precedent’ (2008) 19(3) Australasian Dispute Resolution Journal 206. 158. See Michael Morley, ‘Avoiding Adversarial Adjudication’ (2014) 41(2) Florida State University Law Review 291; Louis Kaplow, ‘Multistage Adjudication’ (2013) 126(5) Harvard Law Review 1179. For an interesting perspective on a preventative adjudicatory role for the courts, see Samuel L Bray, ‘Preventive Adjudication’ (2010) 77(3) University of Chicago Law Review 1275. 159. NADRAC, (n 2) 4. 160. See Building and Construction Industry Security of Payments Act 2009 (Tas) s 3. See also, eg, Construction Contracts (Security of Payments) Act 2004 (NT). For commentary on this legislation, see Cameron Ford, ‘(In) Security of Payments’ (2010) 1 Northern Territory Law Journal 165. See also and compare with the legislation in the eastern states of Australia such as the Building and Construction Industry Security of Payment Act 1999 (NSW), Building and Construction Industry Security of Payment Act 2002 (Vic), Building and Construction Industry Security of Payment Act 2009 (SA), Building and Construction Industry Security of Payment Act 2009 (Tas) and the Building and Construction Industry (Security of Payment) Act 2009 (ACT). 161. See . 162. Queensland Civil and Administrative Tribunal Act 2009 (Qld) Pt 4 ss 195–206AA. 163. See . 164. See Strata Schemes Management Act 1996 (NSW) and Community Land Management Act 1989 (NSW). ere is jurisdiction for adjudication for stipulated categories of disputes, such as the validity of meetings, enforcement of by-laws and insurance variations. See also the information for complainants at . 165. See . 166. See . Providers of this form of DR include the Resolution Institute and World Intellectual Property Organization. It is sometimes referred to as arbitration and the intervenors as panellists. 167. For example, the Geneva-based International Federation of Consulting Engineers provides a list of approved dispute adjudicators for international engineering disputes — see . 168. See, eg, David Spencer, ‘Case Notes: Whether a Referee Should Allow the Costs of a Negligent Solicitor; and Mediation Media Watch’ (2014) 25(2) Australasian Dispute Resolution Journal 69; David Spencer, ‘ADR Case Notes: A Matter Inappropriate for Mediation; and, to Adopt or Not to Adopt … A Referee’s Report’ (2020) 30(3) Australasian Dispute Resolution Journal 184. 169. Strata Title Act 1985 (WA). 170. One of the earliest forms of court-connected ADR in Australia was in the

construction list in the Victorian Supreme Court, commencing in the mid-1980s — see generally John Tyrril, ‘Construction Industry Dispute Resolution’ (1992) 3(3) Australian Dispute Resolution Journal 167. See also John Flood and Andrew Caiger, ‘Lawyers and Arbitration: e Juridi cation of Construction Disputes’ (1993) 56(3) Modern Law Review 412; Doug Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law 31; Paula Gerber and Brennan Ong, ‘21 Today! Dispute Resolution Boards in Australia: Past, Present, Future’ (2011) 22(3) Australian Dispute Resolution Journal 180. 171. George L Priest, ‘Selective Characteristics of Litigation’ (1980) 9(2) Journal of Legal Studies 399. 172. Robert A Baruch Bush and Joseph P Folger, e Promise of Mediation: e Transformative Approach to Con ict (Jossey-Bass, revised ed, 2005). See also Joseph Folger and Robert Bush, ‘Transformative Mediation and ird Party Intervention: Ten Hallmarks of a Transformative Approach to Practice’ (1996) 13(4) Mediation Quarterly 263. See further Michelle Brenner, Steven Segal and Natasha Serventy, ‘What is Transformative Mediation?’ (2000) 11(3) Australian Dispute Resolution Journal 155; Micheline Dewdney, ‘Transformative Mediation: Implications for Practitioners’ (2001) 12(1) Australasian Dispute Resolution Journal 20; Mary Anne Noone, ‘e Disconnect Between Transformative Mediation and Social Justice’ (2008) 19(2) Australasian Dispute Resolution Journal 114; Mark Dickinson, ‘e Importance of Transformative Mediation to the Internal Workplace Mediation Program’ (2011) 22(2) Australasian Dispute Resolution Journal 95. 173. See, eg, Lisa B Bingham, ‘Transformative Mediation at the United States Postal Service’ (2012) 5(4) Negotiation and Con ict Management Research 354; Erin D Saxon, Peacemaking and Transformative Mediation: Sulha Practices in Palestine and the Middle East (Springer, 2017). 174. See, eg, David Kwok, ‘Is Hong Kong Ready for Med-Arb?’ (2015) 26(1) Australasian Dispute Resolution Journal 9; Aziah Hussin, Claudia Kuck and Nadja Alexander, ‘SIAC-SIMC’s Arb-Med-Arb Protocol’ (2018) 11(2) New York Dispute Resolution Lawyer 85; Weixia Gu, ‘Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med (-Arb) and Its Global Implications’ (2019) 29(1) Washington International Law Journal 117; Linda D Elrod, ‘e Need for Con dentiality in Evaluative Processes: Arbitration and Med/Arb in Family Law Cases’ (2020) 58(1) Family Court Review 26; omas Stipanowich, ‘Arbitration, Mediation and Mixed Modes: Seeking Workable Solutions and Common Ground on Med-Arb, Arb-Med and Settlement-Oriented Activities by Arbitrators’ (2020) 26 Harvard Negotiation Law Review 265; Nancy A Welsh, ‘Switching Hats in Med-Arb: e Ethical Choices Required to Protect Process Integrity’ in Omer Shapira, Mediation Ethics: A Practitioner’s Guide (ABA Book Publishing, 2021) 213–39. 175. See .

e Singapore International Mediation Centre has the following clause for arb-med176. arb: ‘All disputes, controversies or differences … arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and nally resolved by arbitration … in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC) … e parties further agree that following the commencement of arbitration, they will attempt in good faith to resolve the Dispute through mediation at the Singapore International Mediation Centre … in accordance with the SIAC-SIMC Arb-Med-Arb Protocol … Any settlement reached in the course of the mediation shall be referred to the arbitral tribunal … and may be made a consent award on agreed terms’. See . 177. e arrangement is aimed at attempting to secure the advantages of the Convention on the Rights and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959) (‘e New York Convention’). 178. See, eg, Troy Peisley, ‘Blended Mediation: Using Facilitative and Evaluative Approaches to Commercial Disputes’ (2012) 23(1) Australasian Dispute Resolution Journal 26.

[page 133]

Chapter 5 Values and Goals in Dispute Resolution Chapter contents Introduction Understanding values and goals A philosophical framework for DR values and goals: Democracy and the rule of law The core values of contemporary Australian DR: Justice, party autonomy and community Justice as a value of DR The DR value of party autonomy The DR value of community Conclusion

5.1 5.8 5.20 5.28 5.31 5.66 5.82 5.106

Introduction 5.1 e values and goals of dispute resolution (DR) systems are important dimensions of the use and operation of the processes on the DR matrix. An understanding of these values and goals is critical to ethical, effective and efficient DR practice, in all contexts. Values and goals are sometimes confused or con ated but while they may overlap, they are not identical. is chapter explores the values and goals of DR methods generally, and acknowledges that some are particular to certain processes on the matrix. With links to the history of Australian DR discussed in Chapter 6 which follows, this chapter presents a contemporary picture of the philosophy and theory underpinning the use of DR systems in Australia. 5.2 It is natural that perceptions of the place of DR in various forms of professional practice, and of the values and goals of that practice, are informed by the particular lens of the diverse DR disciplines. For lawyers,

for example, risk assessment and analyses of legal rights and remedies feature prominently in their understandings of, and attitudes towards, the various DR processes.1 e therapeutic professions have [page 134] far more relationally oriented perspectives.2 In any event, and whichever professional background a DR practitioner has, the practice of DR can only be enhanced by shared understandings of DR process values and goals. 5.3 In Chapter 1, the contemporary imperatives impelling the legal profession, in particular, to forge new ways of working for a sustainable future were discussed, along with the importance of the role of lawyers as DR professionals in the future. ese imperatives are changing lawyers’ assessments of DR systems. While advice on the substantive law, and predictions of litigated outcomes informed by legal analysis and reasoning, remain relevant to how legal disputes are managed and resolved, it is no longer sufficient for lawyers to rely predominantly on assessments of a case’s legal merits to advise about which DR process to utilise. Rather, lawyers also require sophisticated understandings of the nature of con ict and disputes (considered in Chapter 2) and of the values and goals of different systems across the DR matrix. ey also need to be able to integrate these understandings into their analysis of clients’ disputes and of how best to address a client’s legal, and oen also their extra-legal, position, needs and interests. Lawyers lacking this ability will fail their clients as they will be unable to provide DR assistance that is accurate, effective, ethical and costefficient. 5.4 In keeping with the provenance of this work, Astor and Chinkin’s Dispute Resolution in Australia, this chapter takes a critical and evaluative approach to considering the values and goals of DR and aims, going beyond the standard rhetoric. In particular, this chapter seeks to establish strong foundations for the necessary extension of DR expertise and practice as required for the future of the DR and legal professions. is calls for a robust examination of DR values and goals and the development of a theoretical

framework that will support a community of DR professionals who think and question, and have the capacity to welcome and engage with, critical perspectives. To paraphrase Astor and Chinkin: no apology is made for pursuing this approach because questions must be asked about DR and legal institutions for the efficacy of professional practice. Critical perspectives are not always comfortable, yet engaging with them in relation to DR values and goals will ultimately strengthen the practice of DR generally, and of legal DR in particular. 5.5 As has been noted a number of times in the preceding chapters of this book, DR processes other than litigation are no longer recent phenomena in Australia. e history of DR discussed in Chapter 6 shows that DR has achieved a degree of public familiarity and accepted usage. ere is also now a positive relationship between scholars and practitioners that continues to inform the development of DR, particularly in legal contexts. Even a decade ago, many of the non-litigation processes on the DR matrix were still considered relatively new areas of endeavour, but they are now an established component of the Australian legal landscape. ere is no longer legitimate concern [page 135] that critical perspectives on DR will threaten its stability because the discipline has, essentially, ‘found its feet’. And yet it is still fair to say that the depth and breadth of DR theory has not developed in ways that fully support the acceptance and use of DR in the Australian legal system. DR practice remains ahead of its theory, notwithstanding the efforts of Australian and international scholars over a sustained period.3 e connection between theory and practice is considered further in Chapter 12. 5.6 Astor and Chinkin stated in their 2002 edition that ‘in theory ADR does not advocate a particular ideology’.4 is chapter argues, however, that in fact the values and goals of DR do represent an ideology, one that is consistent with a more prominent place for non-adversarial approaches to

lawyering and a view that an increasingly signi cant role for DR within legal practice is merited. is ideology serves to justify strengthening the commitment to DR practice generally, and the legal profession’s commitment to DR practice, in particular, because it is grounded in two core philosophies of our legal system — democracy and the rule of law. 5.7 is chapter begins by de ning the nature of values and goals relevant to DR practice, situating them within the framework of the rule of law in Australia’s democratic legal and political systems. Next it explores the values of DR processes in more detail, integrating a discussion of the goals that are most relevant to each value. e varying degrees to which the values and goals are satis ed in the practice of different DR processes on the matrix is then considered and evaluated. is analysis is extended in the chapters in Part II for each of the most signi cant DR processes utilised in practice. Finally, the chapter discusses how the values and goals explored in this chapter must be understood by DR practitioners, and by DR lawyers in particular, if clients are to be appropriately advised on the best approaches to managing or resolving their dispute.

Understanding values and goals 5.8 e discussion in this chapter distinguishes between the values of DR systems and their goals or objectives. Values and goals can overlap and appear similar, but values and goals are not the same thing.5 It is necessary to appreciate how and why they [page 136] are different in order to build a deep understanding of the principles and imperatives of DR systems. 5.9 Values are meaningful beliefs or philosophies that can be ‘used as standards for evaluating ideas and behaviour’.6 Values have their foundations in a range of ethical, ideological, social or aesthetic perspectives. Ethical values, for example, can include commitments to equality, justice or

honesty; ideological values may include beliefs in accountability, innovation or resilience; social values can stem from beliefs in the merits of generosity and effective communication and collaboration; and aesthetic values include respect for things like creativity, serenity and fun.7 5.10 Values are at the centre of both personal and professional identities. ey illustrate what persons, institutions, disciplines and systems stand for, what they represent. Values have potentially signi cant in uences on behaviour and decision-making. ey guide judgments on what is acceptable and appropriate in both personal and professional contexts. Krieger’s empirical work with American law students and legal professionals identi ed the values considered to be most meritorious as: patience, decency, fairness, humility, courage, caring, integrity, willingness to work hard for worthwhile goals, and helpfulness to others (family, friends, clients or community).8 5.11 A goal, by contrast, is an articulation of an ambition, objective, intention or plan. Goals, unlike values, are something that can be completed or ‘ticked off ’; they can also be changed or reset to better respond to values. Values, on the other hand, are more consistent anchors of beliefs and perspectives. 5.12 Goals and values have an important connection. If a goal is to have efficacy and be achievable, it should be congruent with, and informed by, a value or set of values.9 Values provide motivation to achieve a goal, because values give goals purpose, direction and merit. For example, it may be my goal to introduce 10 new clients to my rm this nancial year. If this goal is informed by values such as an accountable and responsible work ethic, commitment to building positive professional relationships and a concern to give back to a rm which has supported my professional development, then my goal will be easier to achieve because I am motivated to do what is necessary to make the goal a reality by the values that underpin the activity. 5.13 It is not possible, even at a high level of abstraction, to identify core values that apply consistently across all practices represented on the DR matrix. ere is no

[page 137] absolute answer to the question, ‘What are the values of DR practice?’. Much depends on the perspective of the questioner, the purpose for asking the question and the disciplinary lens that contextualises the question. It was noted above that practitioners from different DR related professions are likely to highlight and prioritise different values of DR practice. Even if there could be agreement on a core set of values for DR systems, the way that DR values manifest themselves in the reality of day-to-day practice is unlikely to be consistent. is is because DR processes are practised by individuals who, as diverse beings who are human, bring different interpretations to the meanings of particular values, and different approaches to, and perspectives on, how they should be put into practice. Further, although this chapter makes a distinction between DR values and goals, that distinction can sometimes be vague or blurred. 10 ese issues re ect the complexity of the DR matrix and the variations in the processes within its categories. 5.14 is complexity is evident in the Access to Justice Interim Report published in the UK in 1995, in which Lord Woolf articulated a list of ‘principles’ which he suggested the civil justice system should meet if access to justice is to be achieved. Exemplifying the troublesome nature of terminology and its accuracy in this context, the ‘principles’ include both values and goals of DR. Lord Woolf stated that the civil justice system should: (a) be just in the results it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of particular cases allows; and (h) be effective: adequately resourced and organised.11

5.15 Justice and fairness are classi ed in this work as values and they are, or should be, values of most DR systems. However, efficiency in cost and time, the understandable, responsive and effective nature of DR processes, and the provision of certainty, are what here would be categorised as goals of DR systems — goals that are aspired to or achieved by different processes with varying levels of success but motivated by a wish to enact justice and fairness in the system. [page 138] 5.16 e National Alternative Dispute Resolution Advisory Council (NADRAC) in its seminal 2001 report Framework for Standards listed a range of ‘objectives’ of ADR which again con ated both values and goals. ADR was said to have ‘objectives’ such as resolving or limiting disputes in an effective and efficient way; providing fairness in procedure; achieving outcomes that are broadly consistent with public and party interests; and contributing in some way to broader societal goals, such as community development, human rights, justice and security.12 5.17 In 2011, two years before it was decommissioned, NADRAC published a set of ‘principles’ entitled National Principles for Resolving Disputes which, it said, ‘address people involved in disputes and government and service providers’ and ‘set out a fundamental approach to dispute resolution that is consistent with better access to justice’.13 e principles included recognition that: people have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility; disputes should be resolved in the simplest and most cost-effective way; people who attend a dispute resolution process should be actively involved in the resolution of the dispute; people in dispute should have access to information to enable and inform their choices; people in dispute should aim to reach an agreement but they should not be required or pressured to do so if they believe it would be

unfair or unjust — in which case they should have access to courts and tribunals; effective, affordable and professional ADR services which meet acceptable standards should be readily available; and terms describing dispute resolution processes should be used consistently to enhance community understanding of, and con dence in, them.14 5.18 Another approach to developing a framework for understanding the values and goals of DR practice was provided by the 2014 Productivity Commission Report. e Commission’s suggested policy framework for the civil justice system was ultimately goal-focused, distinguishing between ‘overarching objectives’ and discrete systems’ goals. e Commission stated that the ‘overarching objective’ of the civil justice system should be to ‘… contribute to the well-being of the Australian community by fostering social stability and economic growth and contributing to the maintenance of the rule [page 139] of law’.15 It suggested that this objective could be achieved if the system satis es the following three goals: (1) the rule of law is upheld and individual and property rights are protected; (2) public institutions and policies ensure timely, least-cost and appropriate legal services are available to the Australian people, businesses and community organisations; and (3) the return from the allocation of public funding is maximised.16 5.19 A coherent synthesis of the diverse perspectives on the values and goals of DR is difficult to achieve. is chapter aims for clarity in the discussion below by using the term values to denote meaningful beliefs for evaluating behaviour; and the term goals to denote more instrumental ambitions, objectives or intentions. As the chapter unfolds, the importance of this difference will emerge, and it will become increasingly evident why

an understanding of the value and goal elements of DR theory is so important to DR practice, including in relation to approaches such as the diagnosis of disputes and advising clients. DR’s values and goals are also important because they inform a positive professional identity for DR practitioners from all disciplines, including law (this identity is discussed more fully in Chapter 14).

A philosophical framework for DR values and goals: Democracy and the rule of law 5.20 To provide a philosophical framework for identifying a core set of values and goals for contemporary DR legal practice, this chapter refers to established thinking on the purpose and place of the rule of law in a liberal democracy, and to the ‘core substantive values of democratic governance’.17 ese concepts help to clarify the foundational purpose of the operation of DR systems in our society, particularly in terms of the prevention, management and resolution of legal disputes. 5.21 is approach requires a clearly de ned concept of democracy, something which is far from straightforward. Many words of scholarship are devoted to the de nition and analysis of democracy, and a detailed consideration of this literature is well beyond the scope of this work. For the purposes of this chapter, then, the following general working de nition of democracy is adopted: [page 140] … a system of governance in which rulers are held accountable for their actions in a public realm by citizens, acting independently through the competition and cooperation of their elected representatives.18

5.22 A comprehensive or ‘thick’ perspective on democracy is also adopted for the discussion in this chapter. is is more than simply ‘majority rules’ and includes principles relating to both the substance, as well as the procedures, of democratic governance.19 A simple majoritarian model of democracy, emphasising a ‘thinner’ notion with a focus on property rights,

is not particularly useful to a DR analysis or to understanding the place of DR within a democratic system based on the rule of law.20 5.23 At the risk of oversimplifying a complex concept, democracy in a society such as Australia lays claim to characteristics such as a breadth of political inclusion, absences of arbitrary state action, relative equality among citizens and the protection of liberty and autonomy within a context of collective responsibility and accountability.21 e purpose of democracy is to support the freedom, voice and participation of its citizenry which entails that some con ict and disputation is inevitable, or even welcome,22 in a society subscribing to democratic ideals (see further discussion on the nature of con ict in Chapter 2).23 However, democracy is also the go-to societal structure for providing stability, order and peace.24 As Diamond has said, democracy makes peace possible because it recognises diverse identities while also providing legal protections for group and individual rights.25 e political institutions at the centre of democracies empower citizens by devolving decision-making power, while also encouraging and enabling bargaining and accommodation.26 [page 141] 5.24 e orderly management of disputes is therefore a critical feature of democratic governance, a feature enabled by the rule of law. e rule of law in democracies such as Australia ensures a consistently peaceful and ordered society because it puts in place a network of accessible, fair and usually open and accountable institutions and procedures that allow for citizens to address sources of dispute and con ict. Some of these institutions and procedures are part of the formal justice system, others are practised through private ordering. 5.25 Justice Hayne has said that the two most important premises of the relationship between DR and the rule of law are: ‘ rst, that each party may choose whether to submit the dispute to external resolution rather than reach an agreement with the opposite party, and, secondly, that there is an established and accessible body to resolve the dispute by application of …

known and predictable laws’.27 His Honour elaborates that ‘a court system established by the State must be and remain the centrepiece of dispute resolution in accordance with the rule of law’.28 5.26 ese views commendably focus on party self-determination and the need for the state to provide appropriate approaches for the resolution of disputes. Of course, litigation will always remain an important component of the DR matrix; however, facilitative and advisory processes are also at the centre of the relationship between Australia’s rule of law and DR. It is no longer the courts alone that help de ne our society as one that is civilised, preventing routine disputes from escalating into violence and social chaos.29 It is more commonly the diverse range of additional, appropriate DR methods that perform this societal role.30 5.27 e critical role of DR in ensuring that democracy works means that the values of democracy should be congruent with, and in fact inform, the values of DR. While scholars debate the exact nature of democracy, they are in relative agreement about the core substantive values found within democratic systems of law and governance. ese values are generally considered to include ‘personal autonomy, participation, accountability, transparency, rationality, equality, due process, and the promotion of a strong civil society’.31 e sections that follow draw on these values of democracy to identify and explore three core values of DR that align with the operation of the rule of law in Australia: justice, party autonomy and community.32 [page 142]

The core values of contemporary Australian DR: Justice, party autonomy and community 5.28 ere are high expectations of DR processes in the Australian community and its civil justice system, and these expectations are difficult to meet. is will be emphasised in the discussion of the history of Australian DR in Chapter 6. at chapter will demonstrate that despite signi cant

progress over recent decades to inculcate community DR, and to renew and refresh the way the civil justice system operates, the DR system at large, and the way it is managed by governments, and used by lawyers and citizens, continues to need improvement. 5.29 Concerns persist, for example, about the costs of DR, both in relation to state resources invested in determinative processes, and costs to individuals who seek assistance with managing or resolving disputes through processes across the matrix. Concerns also continue about the reality of access to just and fair outcomes to legal and other disputes in Australian society. Worryingly, there seems also to be some continuing resistance within the system to fully embracing non-adversarial DR processes that for some (particularly perhaps legal professionals of longstanding) remain unfamiliar or are still seen as not adequately protecting parties’ legal rights. 5.30 Using the umbrella concepts of justice, party autonomy and community, this section proposes a framework of values for the promotion of greater awareness, acceptance and sanctioning of DR theory and practice generally, as well as for supporting the achievement of the various goals of DR (discussed later). e framework connects with the values of democracy as they relate to upholding the rule of law in Australian society. e goals of DR processes are then situated within this framework and discussed in terms of their respective application and successful implementation. e intention of the chapter is both to contribute to informing an appreciation of DR values and goals on the part of DR professionals, with a particular hope of in uencing understandings and attitudes within the legal profession, as well as to make a positive contribution to informing future developments and reform in Australian DR systems.

Justice as a value of DR 5.31 ‘Justice’ is an important philosophical and intellectual element of any framework of DR values, and arguably a foundational driver and motivator for all DR processes in the matrix.33 e notion of justice should inform day-to-day DR practice, both within

[page 143] legal contexts and outside them. Core to democratic systems of law and governance, the concept of justice denotes participation, accountability, transparency, rationality, equality and due process.34 5.32 e development of a framework of DR values, with justice as a critical element, calls for a clear conception of justice itself in the DR context. Justice is, however, a complex and nuanced notion, famously difficult to conclusively de ne.35 Nancy Welsh has lamented that justice is ‘increasingly marginalized as a sweet, old-fashioned notion’,36 perhaps because it is ‘so unde nable and unattainable that thinking about it generates more self-doubt than clarity’.37 Stuart Hampshire, in his book Justice Is Con ict, concludes that there may never be agreement on a universal concept of justice.38 Julie Macfarlane has recounted that a lawyer participant in her research, when asked to differentiate between a ‘good’ outcome and a ‘just’ outcome, responded: ‘ere’s no justice; it’s just a game. What are you, new? at’s a really funny question’. Another lawyer said: ‘Justice is way too deep for me’.39 5.33 Grand theories of justice, such as John Rawls’ complex theory of the fundamental principles necessary for a just and morally acceptable society, are perhaps too broad and abstract to assist in building a useful, meaningful and accessible DR values framework.40 Rawls’ restatement of his theory in 2001 as justice as fairness,41 and Ronald Dworkin’s [page 144] theory of ‘law as integrity’ are closer to the mark in terms of integrating understandings of fairness into explaining the concept of justice.42 5.34 It is oen useful to consider how legal dictionaries de ne difficult concepts. Dictionary de nitions of justice include ‘rightfulness’, ‘fairness’, ‘that which is deserved’, and ‘a moral value generally supposed to be the end to which laws are the means’.43 Rightfulness and fairness denote goals of DR

provision that include timeliness, affordability, accessibility, intelligibility and understandability. As Chapter 6 will illustrate, litigation is sometimes said to be ‘unjust’ in these ways and DR processes other than litigation are oen presented as mechanisms to address this injustice. On the other hand, DR systems other than litigation that are more efficient and accessible are also less certain to protect citizens’ legal rights and entitlements, and could be considered ‘unjust’, or ‘second-class’ justice in that sense.44

The ‘ rst-class’, ‘second-class’ justice debate 5.35 e identi cation of ‘classes’ of justice and the juxtaposition of rstand second-class justice has been a part of the DR literature since at least the 1980s.45 e general distinction between the two classes of justice is generally stated as: people receive ‘second-class justice’ when they cannot afford to go to court, when they are forced to use ‘ADR’ processes, and, as a result, are required to collaborate and compromise; while those who can harness the authority of the law, and have the opportunity to ‘win’ their case, receive ‘ rst-class’ justice.46 In the 1980s Abel led the argument that underprivileged parties are more likely than pecunious parties to be referred to ADR schemes, and that such schemes offered the rhetoric of party empowerment and autonomy but did not always deliver this in reality.47 5.36 A system or process that is ‘second-class’ is one that is ‘a cut below the best’, ‘second rate, inferior or mediocre’.48 A conviction that DR processes other than litigation offer second-class justice centres on the view that litigation provides the model of rst[page 145] class justice.49 e ‘umpire’ model that litigation represents certainly has deep roots in Western conceptions of justice.50 5.37 Identifying litigation as ‘ rst-class’ assumes that it is a cut above the rest, rst rate, superior, exceptional and excellent. Aspects of the nature of litigation that contribute to this view include its transparency, accountability,

consistency and its ability to impose enforceable state-sanctioned outcomes. ese are all positive aspects of litigation, as is discussed in Chapter 11, but do they place litigation above other processes in a hierarchy of justice quality? 5.38 NADRAC summarised the bene ts and safeguards of fairness and justice in litigated processes as follows: Power imbalances between the participants can be ameliorated by legal representation. Procedural and evidentiary rules ensure that each person has a chance to present their case and to challenge the arguments and evidence of the other person. ere are enforceable procedures which ensure that each person has access to relevant evidence so that the dispute is decided on the basis of appropriate disclosure of information. ere is a well-quali ed and respected third party decision maker who evaluates the evidence and arguments of the parties and who makes a decision according to established principles. e process of litigation is open and observable and decisions are subject to appeal.

5.39 Judith Resnik has identi ed the ‘valued features’ of determinative processes, such as litigation, as relating to due process. For example: Rules of procedure bestow individual autonomy and opportunities for the litigants to persuade the decision-maker of the rightness of their case. For decision-makers, procedure provides a concentration of power in judicial decision-making; a diffusion and reallocation of power through the use of juries, appellate courts and hearings de novo; impartiality and visibility; rationality and norm enforcement; ritual and formality. Adjudicative decision-making has the valued features of nality and revisionism, economy (in the sense of low direct costs) and consistency yet differentiation.51 Resnik does not claim this list to be comprehensive, nor that the features should always be accorded equal weight. She accepts that there are tensions among them, and the features are not always prioritised in the same way at all times. Further, a number of the features are disputed or can be found in processes in addition to litigation (the characteristics of litigation are discussed further in Chapter 11).

[page 146] 5.40 Chief Justice of the Supreme Court of Western Australia between 2006 and 2018, the Honourable Wayne Martin AC has been fond of analogising the court system, albeit through a critical lens, with a commonly known rst-class vehicle. He has said, for example, that the system is: A Rolls Royce of justice systems in the sense that it is the best that money, a lot of money, can buy. But there isn’t much point in owning a Rolls Royce if you can’t afford the fuel to drive it where you want to go. You can polish it, admire it and take pride of ownership from it but it doesn’t perform its basic function sitting in the garage. … It might be time to consider trading our Rolls Royce for a lighter, more contemporary and more fuel-efficient vehicle which will get us where we need to go just as effectively and perhaps more quickly.52

5.41 It is a simplistic view, however, to elevate litigation above other DR processes in a hierarchical sense of ‘justice’. ‘Justice’ is certainly not achieved solely through one approach or one process. Further, the actual use of litigation does not accurately correlate with its high regard as a just DR system. As discussed in Chapter 3, sociological research reveals that most citizens do not commonly have recourse to the courts,53 and so public perceptions of justice, and particularly of the nature of rst-class justice offered by the courts, cannot typically be seen as shaped by personal or real experience. Further, as will be established in Chapter 6, the last 30 or so years of advocacy for non-adversarial forms of DR, and for civil justice process reforms, evidence widespread recognition that litigation, while undoubtedly an important aspect of the DR matrix, has oen failed to provide any sort of justice for the general citizenry, let alone rst-class justice. While litigation represents notions of objectivity, rationality, consistency and formal equality before the law, inaccessible justice is justice denied. Justice through the courts is perhaps more an ideological ‘vibe’, as one of Australia’s most famous lawyers might [page 147] say.54 Further, according to Deborah Rhode, critics of the justice offered by

DR systems other than litigation need to consider how oen and on what terms ‘ rst-class’ justice is really available.55 Carrie Menkel-Meadow astutely reminds us that ‘legal justice is not always actual justice’.56 5.42 It is apparent then that to construct a robust values framework for the DR processes represented in the matrix, an understanding of justice is required which is relevant across DR contexts, and which deals with the challenges of a perceived hierarchy in different classes of justice provided by different processes.57 Such a framework needs to deal realistically with issues of access to justice. It must balance the importance of maintaining a legal doctrine of precedent as part of justice under the rule of law58 with the need for less public and formal forms of DR which are more humane and provide individually tailored outcomes.59 e framework also needs to address concerns about the relationship between private settlement and the public enforcement of rights.60 5.43 Constructing this framework is far from a simple task. As the former Chief Justice of the Federal Court of Australia, the Honourable Michael Black AC, has said: We should maintain the search for that elusive point of equilibrium at which the competing pulls of cost, speed, perfection and fairness are balanced in a way that produces substantial and accessible justice — not perfection, but nevertheless processes and outcomes readily recognisable as substantial justice according to law.61

e framework offered below is clearly not perfect, but it does offer a potentially workable articulation of the operational values of the processes on the DR matrix, drawing on notions of fairness, procedural and substantive justice, informed consent and independent intervenors who are non-partisan to the parties’ relative positions and interests.

The DR values framework: Justice as fairness 5.44 As the discussion above indicates, much of the DR literature about justice connects or con ates ‘justice’ with notions of fairness. NADRAC, for example, noted that the words justice and fairness ‘are essentially interchangeable’.62 e word ‘fair’

[page 148] is mentioned 179 times in volume 1 alone of the Productivity Commission’s 2014 Report on Access to Justice, oen in conjunction with words such as ‘justice’, ‘equity’, ‘transparency’, ‘openness’, ‘dignity’ and ‘reasonableness’. Martin Frey has said that ‘a just result must be a fair result’.63 And Cecilia Albin in her seminal article ‘e Role of Fairness in Negotiation’ identi ed fairness as a ‘slippery concept’, having a practical, contextualised and individualised nature and in uential in DR across diverse cultures and disciplines.64 5.45 It is not possible to identify all the elements of fairness in DR as a concept of justice with universal acceptance.65 As Albin says, ‘fairness is an element of acceptability’,66 and acceptability is something which is judged subjectively. In DR processes other than litigation, acceptability is oen expressed in terms of ‘what the parties can live with’.67 e outcome may not be perfect but (as the procedural justice literature referred to later attests)68 if the procedure arriving at it is considered to be fair, the outcome is more likely to be acceptable to the parties. A concept of justice as fairness in a DR values framework must therefore be responsive to the relevant context and the subjective perspectives of the individual parties in dispute. 5.46 Nevertheless, a postmodern, wholly subjective blank canvas of individual perceptions of acceptability is not a satisfactory conception of fairness as a value for DR. erefore, it is necessary to identify some core elements of fairness across DR systems. e signi cant body of scholarship and literature on the topic of fairness points to three fairness-related goals for DR that contribute to the achievement of the macro value of justice in DR contexts. ese goals are: procedural justice (fair process), substantive justice (fair outcomes) and non-partisan conduct on the part of any thirdparty intervenor (referred to by some commentors as impartiality). e assertion in the framework is that if a DR process achieves these fairnessrelated goals, then whatever [page 149]

the process is, and wherever it sits on the matrix, it can be regarded as true to the value of justice. e sections below discuss these fairness goals in turn to elucidate the nature of justice in DR systems for the DR values framework.

Fairness in DR — the goal of procedural justice 5.47 e DR processes on the matrix have diverse and not always consistent procedural safeguards, and this is possibly why there has been a tendency for discussions about fairness, particularly in relation to processes other than litigation, ‘to focus entirely or substantially on process and procedure’.69 Procedural justice refers to an objective assessment of, and the parties’ experience of, the relevant DR system as fair. Fundamental principles of due process and natural justice require that parties are not treated unequally, oppressively or arbitrarily.70 Due process requires that the parties are aware, in advance of participating in a DR system, of the procedural rules that guide their participation.71 Processes that are procedurally just are also ones that ‘are proportionate to the problems experienced, easy to access and understand, and treat people fairly’.72 5.48 Since the original work on procedural justice and fairness by John ibaut and Laurens Walker more than 30 years ago, there has developed a signi cant body of scholarly literature on perceptions of fairness in relation to processes that generate outcomes or decisions.73 Keith Allred summarises the research on procedural justice as informing us that when parties have some input in the design of a process, and when [page 150] they feel that their voice has been heard and considered, they are more likely to feel that the process is a fair, procedurally just one.74 is leads consequentially to satisfaction with outcomes, a willingness to settle, a willingness to abide by an agreement, and feelings of trust, commitment and cooperation.75

5.49 ere are different procedural fairness elements in DR processes across the matrix. For example, litigation provides procedural justice through formal proceedings, rules of evidence and rights of appeal to protect parties against unfair, arbitrary, idiosyncratic or erroneous outcomes. Ideally, parties should also feel that they have a voice in litigation (although that voice is articulated by their legal representative). However, party experiences of litigation as foreign, alienating, isolating and abstract can compromise this sense of fairness.76 e very formality of proceedings, and the predominance of legal representatives, may mean that parties feel unheard, or even somewhat irrelevant to the process. Further, rules about who may speak in court, when they can speak and what they can say are remote from ordinary conventions of social interaction and discursive communication. It is those who are in control of the proceedings — judges and lawyers — who feel most at ease in court environments, because they are familiar with the language conventions and norms of communication. Lay people may feel they are playing a minor supporting role, even in their own cases. 5.50 On the other hand, in less formal and more directly participative processes such as mediation and conciliation, parties may feel they have more genuine opportunities to voice their views and have them heard. ey may be better satis ed by a structure for the respectful identi cation and discussion of issues, and the presence of an independent intervenor focused on enabling each party to productively explore issues and outcomes. Such processes do not provide access, however, to some of the other procedural safeguards present in litigation.77 5.51 e participative aspects of procedural justice relating to voice and process design are much more easily satis ed by the less formal and more exible facilitated and advisory DR processes, and also by systems in which there is no independent third-party intervenor. It is more difficult to see these aspects satis ed in determinative systems, [page 151]

but in fact every process on the DR matrix has the potential to be operationalised so that participating parties feel heard and that they have been treated fairly procedurally. 5.52 Choosing an appropriate DR process requires a balancing of the various characteristics of procedural justice with individual parties’ perceptions as to what is fair. Such choices could involve a complex interaction of the law, the personal needs and interests of respective disputants, government policy and politics, and professional and commercial interests. For this reason, as is said quite oen throughout this work, the professional practice of 21st century DR practitioners and lawyers increasingly demands knowledge, skills and attitudes that enable the provision of informed, meaningful and cost-effective advice to clients about forum selection in their speci c dispute context. 5.53 e procedural justice literature, including cross-cultural and intergroup research, makes connections between procedural fairness and outcome fairness (or substantive justice). e relationship between perceptions of a DR process as fair and acceptance of outcomes reached through that process is important. Substantive justice and acceptance of an outcome are not the same thing. However, as the discussion of substantive justice as a fairness-related goal in DR systems illustrates below, substantive justice is much more complex than simply the upholding of obligations, rights and entitlements according to law.

Fairness in DR — the goal of substantive justice 5.54 Different processes on the DR matrix have more or less capacity to deliver ‘substantive justice’. From a legal perspective, notions of substantive justice are commonly based on legal rights and entitlements. Nancy Ehrenreich argues, for example, that: … a substantive justice approach focuses on positive rather than negative rights and liberties, emphasizes substantive, not formal, understandings of both legal rules and the human interactions they regulate; de nes fairness in (re)distributive, not proceduralist, terms; and acknowledges its own contingency and normativity.78

5.55

ere is an assumption that the primary DR process serving notions

of substantive justice is litigation, along with other formal determinative processes. is is partly because the case law developed through litigation is a process that publicly enunciates many of the common legal values and norms for society. It is also a corollary [page 152] of the state-sanctioned, public authority of courts to make binding decisions on the basis of laws made democratically and to prescribe enforceable outcomes. 5.56 However, the function of courts and of judges is not simply to adjudicate on disputes. Under the rule of law, judicial adjudication is also a signi cant element in the regulation of societal relations.79 Litigation is a public method of social ordering using public resources and publicly appointed officials whose power is de ned and conferred by law.80 Further, the rapid pace of statutory law reform means that there are many areas of law in particular need of interpretation. e task of courts is not simply to maximise parties’ objectives, or even to keep the peace, but to explain and give force to rules which are themselves public and subject to challenge.81 In addition, litigation not only provides precedents, but the formal justice system reinforces community standards through public statements of legal principle and civic condemnation of violations of the law. 5.57 Informal DR processes, such as mediation, have been criticised, for example by Owen Fiss (but also by many others), for removing important legal issues from the public agenda and enabling private ordering and settlement, putting the achievement of substantive justice potentially at risk as a result.82 It has been said that ‘positive law norm enforcement is subordinated in the ADR process’ because ‘compromise predominates’.83 In DR processes other than litigation, some of the great advantages to disputants, such as faster, cheaper and private justice, can be seen as potentially signi cant disadvantages to third parties and to society because they challenge substantive justice. For a society that has traditionally valued the public development of legal norms through precedent, DR’s focus on

individualised justice through settlement can be considered problematic because when signi cant cases are settled in private, the future development of legal principles is impeded. As David Luban has opined: e sticking point with settlements is not truth but openness. Parties consummate settlements out of the public view. e facts on which they are based remain unknown, their responsiveness to third parties who they may affect is at best dubious, and the goods they create are privatized and not public. Settlements are opaque.84

[page 153] 5.58 It must also be remembered that the public articulation of legal norms by courts is relevant to, and importantly informs, private ordering because the ‘shadow of the law’85 offers a basis for negotiations in processes other than litigation: e principal contribution of courts to dispute resolution is providing a background of norms and procedures against which negotiation and regulation in both private and governmental settings take place. is contribution includes, but is not exhausted by, communication to prospective litigants of what might transpire if one of them sought a judicial ruling. Courts communicate not only the rules that would govern adjudication of the dispute, but possible remedies and estimates of the difficulty, certainty, and costs of securing particular outcomes.86

erefore, although diverse process options are available across the DR matrix, the need in some cases for authoritative rulings of the courts remains.87 Nevertheless, the number of cases which require the development of precedent is likely to be small.88 5.59 e reality, however, is that substantive justice is not the sole jurisdiction of the courts. Any DR process in which outcomes are informed by the shadow of the law has the potential to be substantively just; and every DR process in the matrix can be informed by the shadow of the law (discussed further in Chapter 12). us, in all processes, from those in which there is no independent intervenor through to those resulting in determinations, substantive justice can be achieved. In particular, for example, in processes other than determinative ones, the law can inform how the parties’ needs and interests are met in relation to, or balanced

against, their rights and entitlements. As Marc Galanter has argued, the availability of the law as articulated through court decisions bestows ‘bargaining endowments’ on the parties, through which they can assess their ‘substantive entitlements conferred by legal rules’.89 e [page 154] role played by lawyers in supporting this assessment by the parties, particularly in terms of enabling informed consent, is critical to the achievement of substantive justice. e next section therefore considers the relationship between informed consent and the achievement of procedural and substantive justice, particularly in relation to processes other than litigation.

Fairness, justice and informed consent 5.60 e key to the relationship between the fairness goals of DR relating to procedural and substantive justice is the notion of informed consent. e meaning of informed consent has been explored extensively in the theoretical and clinical legal literature,90 but less so in the context of DR.91 Generally, outside of litigation, informed consent is relevant to the efficacy of both process and outcome, and denotes an adequate understanding of each to enable genuine participation and decision-making. Informed consent in DR contexts might be de ned as: ‘the extent to which the participants in the process are cognisant of, and fully understand, the choices available to them’.92 Informed consent is therefore also a part of the notion of consensuality, which, as Bobette Wolski says, implies more than simply an ability ‘to accept or reject a particular outcome’ because it should re ect the parties’ preferences.93 For Hilary Astor, the foundation for the idea of mediation’s capacity to maximise party control, for example, is the notion of consensus through informed consent,94 noting that a party experiences control through ‘participatory, knowledgeable and consensual decision-making’.95 us, informed consent is related to party autonomy

(discussed further below) but it has also been described as ‘a means of achieving the fundamental goal of fairness’.96 [page 155] 5.61 Informed consent makes fair and principled procedures and outcomes possible because it promotes parties’ human dignity,97 and serves as a check on power, particularly in informal DR contexts, by preventing manipulation or coercion.98 Where informed consent is compromised in a process, so too is the credibility and legitimacy of that process as being one that offers procedural and substantive justice. However, where informed consent is achieved, then the process can be experienced as principled and fair, and the parties can decide for themselves if the outcome is also principled and fair. It is therefore critical that, in non-determinative processes across the DR matrix, there are safeguards to ensure that parties experience the autonomy and dignity of informed consent to achieve the goals of procedural and substantive justice. Lawyers, again, have a critical role to play, because one of the ways in which this can be achieved is through legal advice and advocacy (the shadow of the law). See also Chapter 12 for discussion of an approach to achieving informed consent in DR processes that supports the achievement of fairness and justice in DR systems.

Fairness in DR — the goal of ethical intervention 5.62 Impartiality is a term that has long been associated with fairness in DR processes across the matrix, because it has denoted ethical interventions on the part of a third-party intervenor.99 Impartiality has also been expressed variously as neutrality and independence. e ethic of impartiality has traditionally been focused on ensuring that third-party intervenors operate free from ‘favoritism, bias or prejudice’.100 is requires, for example, disclosure of actual and potential grounds of bias and con icts of interest; and withdrawal from a process if impartiality becomes compromised. In litigation the independent judge provides impartial

adjudication — but arbitrators, conciliators and mediators have all traditionally drawn on the goal of impartiality, to ethically legitimise their interventions in parties’ disputes.101 5.63 Undoubtedly, an independent intervenor in DR processes must act in a non-partisan way towards the parties and treat them even-handedly. However, there is a substantial body of literature questioning the notions of neutrality and impartiality, particularly in the context of mediation,102 and this author has long doubted whether the notion of impartiality can legitimately be equated with fairness, especially in the facilitated and advisory DR processes.103 Further, for example, as the discussion [page 156] of Aboriginal approaches to DR in Chapter 6 demonstrates, there may be cultural requirements for an external party to intervene in a dispute in ways that are inconsistent with the notion of impartiality. 5.64 In a different work on mediation ethics, I suggest, along with my colleague Jonathan Crowe, a new ethical paradigm for mediation; one in which fairness results from ethical interventions that, in context, support the principles of the mediation as a DR system; namely, upholding relational party self-determination. Further discussion can be found on new ways of perceiving DR ethics in Chapters 8, 12 and 13. 5.65 While complex, and requiring further discussion elsewhere in this book, ethical intervention can be noted here as critical for achieving fairness in DR systems, therefore constituting an important contributing component of the DR value of justice and the DR values framework. It is also consistent with the DR values of party autonomy, and of community, which are discussed next.

The DR value of party autonomy 5.66 Of the core substantive values found within democratic systems of law and governance, the value of personal autonomy has central relevance to

DR systems and their legitimacy.104 In liberal democracies, individual autonomy is associated with equality among citizens and the protection of rights and liberties. e value of party autonomy is discussed in this section, rst by explaining the ways in which autonomy can be seen as an important value in DR contexts, and second by exploring two key goals associated with party autonomy — participation and self-determination. (Noting, however, that these goals are not met consistently across the processes represented on the matrix and DR scholarship is somewhat con icted about the ways in which these goals are enacted, or become real, in practice.) 5.67 e word autonomy derives from the Greek ‘autonomia’, which means the ‘freedom to live by one’s own laws’.105 Autonomy is a familiar concept in a range of disciplines including political science (for example, referring to governments of sovereign states having the right to self-govern), philosophy (for example, Kant’s doctrine of the categorical imperative), and law (where party autonomy is critical, for example, to the notion of a free contract).106 Autonomy is also a concept that has been studied in detail in the discipline of psychology as relevant to human behaviour [page 157] and wellbeing, particularly through self-determination theory (SDT) — a branch of educational and positive psychology.107

Understanding the value of autonomy in DR through SDT 5.68 SDT can inform our understanding of autonomy in the DR context by helping us to appreciate the strengths and vulnerabilities of human beings. SDT is a meta-theory, complex and multifaceted.108 Yet it is a theory that is intuitive and easy to understand, as it explains how humans connect with their social environment, the motivations associated with human growth, adaptation and development, and the challenges that difficult environments, such as con ict or dispute environments, or being in DR processes, pose for human motivation and wellbeing.109 SDT can illuminate how parties in DR contexts manage the interplay between their internal

needs, values and motivations, and it can explain why the participation and self-determination goals of the autonomy value are important in DR contexts. 5.69 In terms of what SDT can add to our understanding of the value of party autonomy within DR, there are two elements to consider. e rst is autonomy as one of the basic psychological human needs; the second is autonomy as a key to forms of constructive motivation. 5.70 Basic psychological needs theory (BPNT), a sub-theory of SDT, has identi ed that the experience of autonomy, along with experiences of competence and relatedness, are central and fundamental human needs. According to this theory, a person experiences autonomy when they subjectively experience their behaviour to be self-governed, volitional and congruent with their beliefs, values and interests.110 Competence is experienced when a person feels they have a level of ability, or even [page 158] mastery, that they can harness in coping with tasks and challenges.111 Relatedness concerns meaningful and reciprocal relations with others.112 If a DR environment supports a party’s experience of autonomy, competence and relatedness it is more likely to contribute to their psychological wellbeing.113 A person who is psychologically well, as was noted in Chapter 2, is in a better position to make rational and informed decisions in DR systems. 5.71 It can be argued that DR processes such as mediation and conciliation satisfy BPNT, and particularly the autonomy component, because they provide environments that are ‘autonomy-supportive’, rather than ‘controlling’. ese processes can be argued as also satisfying the other two elements of BPNT because they offer environments that are ‘wellstructured’, rather than ‘chaotic and demeaning’ (thus supporting competence), and relatively ‘warm and responsive’ (thus supporting relatedness).114 Determinative processes are less likely to be considered ‘autonomy-supportive’ (at least in terms of supporting an experience of self-

governed or volitional behaviour in the process, or supporting behaviour that is congruent with a party’s beliefs, values and interests). Determinative processes are also less likely to be considered ‘warm and responsive’, and although they offer environments that are ‘well-structured’, these environments may challenge a party’s sense of competence and relatedness as they may be experienced by the parties as ‘demeaning’, or even as ‘cold and neglectful’.115 5.72 A second relevant understanding of autonomy from SDT relates to motivation. Autonomous motivation is summarised by Vansteenkiste, Niemiec and Soenens as involving: … the regulation of behavior with the experiences of volition, psychological freedom, and re ective self-endorsement; the behavior has an internal perceived locus of causality.116

Autonomous motivation can be distinguished from controlled motivation, which involves the regulation of behaviour with the experiences of pressure and coercion to think, feel, or behave in particular ways; the behavior has an external perceived locus of causality.117

[page 159] 5.73 Autonomous motivation is positively associated with ‘persistence, performance, social functioning, and physical and psychological wellness’,118 whereas controlled motivation is not. For this reason, DR processes that support the parties’ experience of a sense of personal volition and psychological freedom are better able to harness a party’s internal perceived locus of causality, or in other words, their intrinsic motivations. Informal processes that are facilitated or advisory, or processes that actively involve parties’ participation such as assisted negotiations, are arguably supportive of parties’ autonomy — they are certainly more supportive of autonomy than determinative processes. 5.74 Drawing from liberal ideology, determinative processes are in fact based on a theory of party autonomy, in that it is the parties who decide

whether they will initiate proceedings and they also decide about the nature and terms of their action and statement of claim.119 Although, of course, defendants in civil processes, and offenders in criminal processes, have very little capacity for autonomous choice in terms of whether or not they will engage with the system. Further, as discussed in relation to procedural fairness, the lived experience of parties in determinative processes may not accord with a strong sense of autonomous control in relation to their involvement. Rather, they may feel that the lawyers, judges and other expert participants have ‘taken over’ the dispute and that the DR environment is foreign and alienating. 5.75 Party autonomy is an important value of DR processes. Although all processes across the matrix have the potential to facilitate experiences of party autonomy, satisfying what is known of the concept through SDT appears to be easier in facilitative and advisory processes, as opposed to determinative processes. Nevertheless, opportunities arise for all DR processes to better enhance their overall efficacy in relation to the satisfaction of the values framework through enabling party autonomy.

Achieving the value of autonomy in DR — the goal of party participation 5.76 Active party participation in DR processes is one way to achieve the value of party autonomy. e connection between autonomy and wellbeing, articulated above, is relevant to explaining the procedural justice research connecting party voice and satisfaction with perceptions of processes as fair and just. It has been noted that while courts are ostensibly based on notions of party autonomy and participation, they may in fact be experienced as places of anxiety, fear and emotional upheaval where a party’s participation is minimised and their individual voice is lost. Facilitated and advisory processes are inherently more likely to be places of empowerment through participation, although their capacity to ful l their full potential in this regard depends signi cantly on how they are conducted and the skills and values of the relevant practitioners and

[page 160] advisers involved.120 As noted earlier, Chapter 12 offers an approach to achieving informed consent which acknowledges the importance of quality participation for parties in DR processes, and for realising the value of party autonomy in DR practice. 5.77 e participative aspect of party autonomy could be discussed in much more detail, but it is sufficient at this point to note that a party’s experience of participation in a DR process is key to achieving a sense of autonomy. For example, autonomy is supported through active engagement in negotiations, and through structures that support the party’s voice and facilitation of their informed consent in relation to process and outcome. For DR practitioners and lawyers, having the skills to support active party participation in DR processes is becoming more important, not least because it is what the parties want, but also because the DR values framework (which informs understandings of how DR upholds the rule of law in Australia’s democracy) requires this sort of client support.121 Indeed, supporting party participation is a relatively straightforward way in which to achieve the value of autonomy, and arguably easier than satisfying the more complex notion of party self-determination (which in fact includes participation), discussed next.

Achieving the value of autonomy in DR — the goal of party self-determination 5.78 e notion of self-determination in DR contexts is an important component of the value of autonomy relating to the maximisation of party control.122 Party self-determination is not as directly relevant to litigation as it is to facilitated and advisory processes, or processes in which there is no independent intervenor. Party self-determination in DR processes other than litigation essentially has four core characteristics: rst, active and direct participation by the parties in communicating and negotiating; second, party choice and control over the substantive norms that guide their decision-making; third, party involvement in the creation of options for

settlement; and fourth, party control over whether to come to an agreement, and the terms of any ensuing agreement.123 [page 161] 5.79 e attainment of party self-determination allows the parties to experience autonomy and human dignity through, for example, self-respect, creativity and self-responsibility.124 It supports a sense of procedural justice as well as substantive justice by promoting party empowerment through party control and choice.125 Achieving the goal of party self-determination requires some activism and intervention on the part of DR intervenors.126 Such levels of activism are relatively controversial in some DR systems, such as mediation. e acceptance of higher levels of active intervention to achieve the values and goals of DR is one of the challenges for DR ethics, and particularly for ethical practice in non-determinative processes. ese issues are discussed further in Chapter 13. Skilled legal representation and advocacy for parties within DR processes can also contribute signi cantly to achieving party self-determination; and this is discussed further in chapters on the key DR processes in Part II of the book. 5.80 Before moving to discuss the value of community, it is important to think critically about how the value of autonomy is put into practice. As noted above, the potential for party autonomy exists in relation to all DR processes, but particularly in non-determinative systems. is assertion, however, has been questioned by scholars, most notably Abel, who has persuasively argued that rather than support parties’ autonomy, informal, non-determinative DR processes in reality have the capacity to expand state control over disputes.127 e attributes of informalism potentially steer parties towards processes in which it could be said that autonomy is more rhetorical than real, and the levels of coercion experienced by parties are in fact disguised. Abel has also argued that the autonomy rhetoric of informal processes mutes resistance to the procedures of these processes, and silences demands for the protections of formal justice, notably due process in the sense discussed in relation to litigation above.

5.81 It is important to emphasise the signi cant role that lawyers play in addressing these sorts of criticisms of non-determinative processes and in making it possible to uphold the DR values of justice and autonomy. Lawyers have the potential to do this through legal representation, advice and advocacy and through enabling informed consent for their clients. ese issues are connected to the new ethical paradigm for DR practice, discussed in Chapter 13. ey also highlight why the role of lawyers is so signi cant in bringing the values and goals of DR systems to life. is is also true of the DR value of community, discussed next. [page 162]

The DR value of community 5.82 In liberal democratic societies there is an inevitable tension between individual rights and freedoms and community responsibilities and duties. It is for this reason, among many others, that within the substantive values of such societies the promotion of a strong civil society through effective DR processes is centrally important.128 e value of community is therefore a critical element of the DR values framework. 5.83 Understanding the meaning of civil society is important to this discussion. ‘Civil society’ is a term that has its own special meaning in the political science world. In that context it is used to refer to ‘the realm of social organization that is self-generating and self-supporting and that exists outside the state and the marketplace’.129 In the 21st century, the use of the term in this way has apparently enjoyed ‘a robust renaissance in academic and policymaking circles’.130 is is said to involve politicians of various persuasions arguing for more of the welfare and social service responsibilities of government to be taken over by voluntary and private organisations, for example churches, charities and non-government organisations. e analysis here of the value of community within a DR values framework does not adopt this meaning of civil society, but this perspective nevertheless does have some relevance to the theory and practice of DR. is is because the concept of ‘civil society’ includes grass-

roots entities, such as community and neighbourhood associations, and these groups, as discussed in Chapter 6 in relation to community DR, have a proud place in the history of DR that continues to this day. In this way, the community justice focus of DR, which is arguably intrinsically virtuous and pro-democratic in its values, has potential to inform political and social renewal in democratic systems.131 5.84 e focus here, however, is on the democratic aspiration of a civil society for the maintenance of social order, and the contribution to achieving this that effective DR systems can make by providing opportunities for the rational and reasonable [page 163] management and resolution of disputes.132 is value is encapsulated in the thinking on access to justice as a key process goal of DR systems that seek to enact the value of community.

The value of community — access to justice in a civil society 5.85 ‘Access to justice’ is a catchphrase that ‘generates enthusiasm because it represents an ideal that is fundamental to a society based on the rule of law and contains an implicit promise that the ideal is achievable’.133 e term ‘occupies a virtually unchallenged place in the political and legal lexicon’ because it lies ‘at the heart of a just society’.134 Former Federal Attorney-General the Honourable Robert McClelland noted that access to justice is ‘central to the rule of law’, ‘integral to the enjoyment of basic human rights’, ‘an essential precondition to social inclusion’ and ‘a critical element of a well-functioning democracy’.135 As a leading authority on access to justice in Australia, Ronald Sackville has said that access to justice is ‘universally regarded as an important objective of the civil justice system’, notwithstanding ‘the apparently endemic inability of the Australian legal system to attain that objective’.136

5.86 What does the term access to justice denote? It is a phrase that has been variously de ned.137 Essentially it represents notions of ‘equality, liberty, human rights and justice which underlie access to information, access to courts, access to legal representation, and equality before the law’.138 As Bryant Garth and Mauro Cappelletti have put it, the words ‘access to justice’ focus attention on two basic purposes of the legal system under the auspices of the state: namely, the vindication of rights and the resolution [page 164] of disputes.139 A system that provides ‘access to justice’ allows all people to approach institutions in order to vindicate their rights along with achieving dispute resolution outcomes that are individually and socially just.140 5.87 As with the discussion of the DR values of justice and party autonomy, above, it is important to acknowledge that the achievement of the value of community through the goal of access to justice is an aspiration for legal and social systems that in reality may not ever be fully realised. is is despite signi cant efforts and achievements in civil justice reform in Australia,141 some of the history of which is documented in Chapter 6, and despite the fact that ‘strategies for increasing access to justice are not in short supply’.142 For example, barriers to enforcing or protecting rights through formal components of the legal system can be addressed by better resourcing. 5.88 e international movement associated with access to justice has proposed various methods for overcoming its barriers. Some seek to widen access to the formal justice system (for example, through increased availability of legal aid) while others seek to change the law through innovative public law processes.143 Advocating for the latter, Deborah Rhode believes that ‘legal procedures and support structures’ should be ‘designed to maximize individuals’ opportunities to address law-related problems themselves, without expensive professional assistance’.144 She suggests that this requires ‘increased simpli cation of the law; more self-help initiatives; better protection of unrepresented parties; greater access to non-

lawyer providers; and expanded opportunities for informal dispute resolution in accessible out-of-court settings’.145 Others, in contrast, see lawyers as the answer: ‘Lawyers, and lawyers for all, are essential to the functioning of an effective justice system’.146

Achieving access to justice through DR 5.89 In terms of the goal of enabling access to justice in society, the role for DR systems across the matrix, and particularly for systems other than litigation, is to ensure that citizens are equally able to access satisfactory ways of settling or resolving disputes. Satisfactory systems will be ones that ful l the values already discussed above in relation to justice and party autonomy, and that meet their associated goals. [page 165] 5.90 Abel, as noted previously, has been one of the trenchant critics of alternative DR processes, but even he has acknowledged the progressive potential of (A)DR in addressing some of the barriers to justice access. He writes of informal non-determinative processes that they: … offer equal access to the many rather than unequal privilege to the few, operate quickly and cheaply, permit all citizens to participate in decision making rather than limiting authority to the professionals, are familiar rather than esoteric, and strive for and achieve substantive justice rather than frustrating it in the name of form.147

5.91 e following paragraphs consider brie y how processes in the DR matrix contribute to the DR value of community by supporting the goal of access to justice with a focus on the issues of costs, delay and protection of the vulnerable.

Achieving access to justice through DR: Affordable DR 5.92 When thinking about the costs of DR, it is important to consider who is bearing those costs. In any dispute there may be diverse cost bearers, for example, the parties, the state, the taxpayer or third parties. Measures

that reduce costs to one of the players may increase costs to another. For example, case management and alternative or innovative approaches in the courts may reduce costs to the state and taxpayers, but they may in fact increase those for individual litigants.148 5.93 One of the roles for DR systems, especially the informal nondeterminative processes, in supporting the goal of access to justice and upholding the value of community, is to offer appropriate means of managing and resolving disputes that are less costly. Whether this is achieved in practice depends, however, on the circumstances. For example, costs may well be saved, and affordable DR achieved, if a dispute has been correctly diagnosed as appropriate for management or resolution through a particular process, and if the relevant parties are adequately prepared to participate constructively in that process, and have received sound legal and other advice. However, if the contrary is true, if the dispute is not suitable for the relevant process and if parties are ill prepared or not well advised, then costs may not be saved, they may in fact be exacerbated, simply adding to the ultimate nancial burden of a determinative outcome. Less formal DR systems such as conciliation and mediation are likely to be cheaper than litigation, and if they lead to the lasting resolution of a signi cant part of a dispute, they will also save future costs. However, if an outcome is not achieved through them and a matter [page 166] must go on to court, then the expenses of both non-determinative and determinative processes must be met.149 5.94 is indicates that if DR systems other than litigation are effectively to save costs and be part of the access to justice agenda, disputes must be appropriately assessed and dealt with through the most suitable DR process. Matters should not end up in non-determinative systems simply because there are limited available public funds or because governments are failing to provide adequate legal services. Positive and negative indicators for the

diagnosis of speci c DR systems for particular disputes are discussed in the chapters of Part II.

Achieving access to justice through DR: Timely DR 5.95 e issue of delay in the formal justice system, as illustrated by the discussion in Chapter 6 about efforts to reform civil justice systems, has been a matter of political concern in Australia for many years and the subject of numerous inquiries, reports and proposals. Efforts to achieve timely DR outcomes by reducing delays tend to be focused on the practices and procedures of litigation. For example, initiatives have been introduced to deal with the backlogs of court lists and speed the progress of cases (including case-management initiatives, special call-overs, referral to DR and settlement weeks). 5.96 Delay is an access to justice issue not least because of the adage that justice delayed is justice denied.150 e impact of delays is connected with issues of cost, as when ‘delays increase the parties’ costs it puts great pressure on the economically weak to abandon their claims or settle for much less than that to which they are entitled’.151 In this respect, delay is not always a systemic problem as it is not uncommonly used as a procedural tactic within the adversarial paradigm of litigation.152 5.97 Furthermore, a focus on delay as a systemic problem can unduly emphasise efficiency at the expense of quality. As Astor and Chinkin have pointed out, not all delay is inappropriate, unreasonable or unnecessary — some delays are associated with the realities of the time needed to achieve quality outcomes; for example, in terms of adequate preparation for, and engagement with, the rigours and requirements of DR processes. It is inappropriate, unreasonable or unnecessary delay that is the problem.153 [page 167] 5.98 Certainly, the use of DR systems other than litigation has some potential to address the delays associated with litigated proceedings, and

thereby to improve access to justice. As with the issue of costs savings, however, whether this is achieved or not is dependent on the circumstances of a dispute. For an individual case where parties use an appropriately diagnosed DR process and a settlement is achieved that both sides can live with, that DR method is likely to have saved time. A mediator, conciliator or arbitrator, as the case may be, is usually available within a few weeks or even days. However, as with costs, if the DR method is not appropriate for the dispute and if the parties are ill prepared or ill advised, then rst using an informal DR approach may simply exacerbate the time taken to resolve or manage the dispute. e important role of lawyers in advising and guiding parties on these issues is again a critical factor.

Achieving access to justice through DR: DR that empowers the vulnerable 5.99 e concerns about costs and delays in accessing justice inevitably highlight the issue of the relative power of parties in dispute. Traditionally, litigation has been seen as having an advantage over other DR systems in terms of better protecting or empowering parties who are at a power disadvantage.154 is is because of the procedural safeguards discussed above as part of the value of justice. However, it is also true that litigation is inaccessible for many vulnerable or less powerful parties. 5.100 It is noted throughout this book that power is a complex and nuanced issue. Usually, no single party has all the power and parties have access to different sources of power at different times during their involvement in a DR process. Imbalances of power can at times be as much a result of perception bias or a failure to adequately identify sources of power. A black and white view that a less powerful party is endowed with fewer bargaining chips and that consequently she or he will suffer in negotiating a settlement, and inevitably receive an unjust outcome, is too unsophisticated for contemporary DR theory and practice. On the other hand, all DR systems should take seriously, and attend appropriately to, potential access to justice detriments to vulnerable parties. 5.101 Litigation can certainly be seen as awed in not providing real equality and can be accused of providing only a comforting liberal illusion

of notional equality.155 Arbitration and expert processes may present similar challenges to litigation for less powerful parties. On the other hand, for example, facilitated processes may operate on awed assumptions that the parties’ access to sources of power is roughly equal,156 [page 168] and may also be fairly accused of not providing sufficient structural protections for vulnerable parties.157 5.102 Issues of power in DR are deserving of far more detailed analysis — and are integrated throughout the chapters of this book, particularly in relation to each of the individual DR processes discussed in the chapters of Part II. For now, it is sufficient to note that in terms of the goal of access to justice, no single DR system has a monopoly on being able to address, or appropriately manage, issues of power, or of power discrepancy, between parties. Again, it comes down to the need for appropriate assessment and diagnosis of disputes, and the provision of advice and guidance to parties to allow them to participate effectively in a process and to experience informed consent within it.158 DR systems across the matrix should be adequately resourced to provide the supports that will create substantive equity for the parties in that particular process.159 Oen this will require the adequate resourcing of legal representation. 5.103 Ultimately, the ability of any DR system to intentionally promote the goal of access to justice depends, to a signi cant degree, on the knowledge, skills and attitudes of the lawyers and DR professionals involved in advising about and conducting the respective processes. e extent to which power can be balanced in DR processes should always be the subject of expert and professional assessment. Having said that, in the context of 21st century lawyering, the DR systems that are advisory in nature and formally integrate legal advice and other protections such as legal advocacy and representation (for example, conciliation and advisory forms of mediation) increasingly represent the best process design for achieving a balanced approach to access to justice. Advisory informal processes are an

important way of achieving the access to justice goal of the community value of the DR values framework.160 5.104

A decade ago, Sackville wrote:

Australia has had too many ad hoc, repetitive and ineffectual inquiries into access to justice. ere have been too few rigorous empirical studies evaluating programs and charting their progress over time. Too few studies have attempted to cross boundaries and derive lessons from studies and experiments on service delivery have been conducted largely in isolation from each other. Too many good ideas have been lost for want of an informed and independent institutional advocate. Now would be a good time to take to heart some of the lessons of the last three and a half decades.161

[page 169] 5.105 It is now perhaps time to stop inquiring into access to justice and, as Sackville suggests, get on with implementing strategies known to be effective. is requires systemic advances, such as the allocation of sufficient resources to the effective and efficient practice of DR systems across the matrix. It also requires professional initiatives — particularly from DR professionals and lawyers — to ensure that DR systems uphold the important value of community in Australian society through promotion of the goal of access to justice.

Conclusion 5.106 is chapter has offered a values framework for DR processes across the matrix. Using the elements of justice, party autonomy and community, it draws on the place of DR within democracy and the rule of law. e framework responds to the challenges of perceptions of hierarchy in relation to the quality of justice available through various processes, as well as to issues of access to justice. It seeks to provide a theoretical foundation for the efficacy of practice across all processes. 5.107 For each of the framework’s value elements there are a number of process goals that have been discussed. e value of justice has the process goals of procedural justice, substantive justice and ethical intervention by

third parties. e value of party autonomy has the process goals of party participation and self-determination. e value of community has the process goal of access to justice. 5.108 e enactment of this values framework, along with its more practical goals, requires knowledgeable and skilful DR practitioners and lawyers with the right attitudinal approaches. As gatekeepers of DR processes, and critical advisers and advocates, lawyers in the 21st century have important roles to play in putting the values framework into practice and making it a reality. However, their work must be supported by adequate government responses to reforms of the civil justice system, which includes sufficient resourcing in the availability of diverse DR and legal services. 1.

See, eg, Bobette Wolski, Skills, Ethics and Values for Legal Practice (Lawbook, 2009) ch 1.

2.

See, eg, Jane A Waldron et al, ‘A erapeutic Mediation Model for Child Custody Dispute Resolution’ (1984) 3 Mediation Quarterly 5; Marian Roberts, Mediation in Family Disputes: Principles of Practice (Routledge, 4th ed, 2015).

3.

See, eg, Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards’ (2002) 39(2) Idaho Law Review 399. Laurence Boulle referred to mediation as ‘practice in search of theory’ in his rst edition of Mediation Principles, Process, Practice (LexisNexis Butterworths, 1996). See also, eg, Joseph B Stulberg, ‘e eory and Practice of Mediation: A Reply to Professor Susskind’ (1981) 6(1) Vanderbilt Law Review 85; Robert D Benjamin, ‘e Physics of Mediation: Re ections of Scienti c eory in Professional Mediation Practice’ (1990) 8(2) Mediation Quarterly 91; Dorothy J Della Noce, ‘From Practice to eory to Practice: A Brief Retrospective on the Transformative Mediation Model’ (2004) 19(3) Ohio State Journal on Dispute Resolution 925; Laurence Boulle, Mediation Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011); Rachael Field and Jonathan Crowe, Mediation Ethics: From eory to Practice (Edward Elgar, 2020).

4.

Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths, 2nd ed, 2002) 35.

5.

See, eg, Steven C Hayes et al, ‘Acceptance and Commitment erapy: Model, Processes and Outcomes’ (2006) 44(1) Behaviour Research and erapy 1.

6.

Wolski, (n 1) 13. See also Clive Seligman and Albert N Katz, ‘e Dynamics of Values Systems’ in Clive Seligman, James M Olson and Mark P Zanna (eds), e Psychology of Values: e Eighth Ontario Symposium on Personality and Social Psychology (Lawrence Erlbaum Associates, 1996) 53.

7.

Ibid.

8.

Laurence S Krieger, ‘e Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness’ (2005) 11(2) Clinical Law Review 425, 436.

9.

Kennon M Sheldon et al, ‘e Independent Effects of Goal Contents and Motives in Well-Being: It’s Both What You Pursue and Why You Pursue It’ (2004) 30(4) Personality and Social Psychology Bulletin 475.

10.

In Yosaph v Mammo [2002] NSWSC 585, [10], Barrett J referred to the ‘beauty’ of mediation being its exibility of process in a dispute involving members of the same family.

11.

See Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellor’s Department, 1995); (); Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellor’s Department, 1996). See also Editorial Note, ‘e Woolf Report’ (1995) 3(2) International Journal of Law and Information Technology 144.

12.

NADRAC, Framework for Standards: Report to the Commonwealth Attorney-General (Commonwealth of Australia, 2001) 13–14.

13.

NADRAC, National Principles for Resolving Disputes (Commonwealth of Australia, 2011) 1.

14.

Ibid.

15.

Productivity Commission, Access to Justice Arrangements (Report No 72 Vol 1) (Australian Government, 2014) 143.

16.

Ibid.

17.

Richard C Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’ (2004) 67(1/2) Law and Contemporary Problems 279, 282. Indeed, Richard C Reuben’s body of work develops this perspective eloquently. See, eg, ‘Public Justice: Toward a State Action eory of Alternative Dispute Resolution’ (1997) 85 California Law Review 577; ‘Constitutional Gravity: A Unitary eory of Alternative Dispute Resolution and Public Civil Justice’ (1999) 47(4) UCLA Law Review 949; ‘Democracy and Dispute Resolution: Systems Design and the New Workplace’ (2005) 10 Harvard Negotiation Law Review 11.

18.

Philippe C Schmitter and Terry Lynn Karl, ‘What Democracy Is … and Is Not’ in Larry Diamond and Marc F Plattner (eds), e Global Resurgence of Democracy (John Hopkins University Press, 2nd ed, 1996) 49, 49–50.

19.

inner de nitions of democracy emphasise procedure over substance with a focus on majoritarianism in government. See Arend Lijphart, Patterns of Democracy — Government Forms and Performance in irty-Six Countries (Yale University Press, 1999); Matthijs Bogaards, ‘Comparative Political Regimes: Consensus and

Majoritarian Democracy’ in William R ompson (ed), Oxford Research Encyclopedia of Politics (Oxford University Press, 2017) (online); Brigitte Geissel and Ank Michels, ‘Participatory Developments in Majoritarian and Consensus Democracies’ (2018) 54(2) Representation 129. 20.

Arend Lijphart, inking about Democracy — Power Sharing and Majority Rule in eory and Practice (Routledge, 2008); Laurence Boulle, South Africa and the Consociational Option (Juta, 1985); Arend Lijphart and Carlos H Waisman, ‘e Design of Markets and Democracies: Generalizing Across Regions’ in Arend Lijphart and Carlos H Waisman (eds), Institutional Design in New Democracies (Routledge, 2018) 235–48.

21.

See, eg, Charles Tilly, Democracy (Cambridge University Press, 2007).

22.

Mary Parker Follett, ‘Constructive Con ict’ in Pauline Graham (ed), Mary Parker Follett: Prophet of Management: A Celebration of Writings from the 1920s (Harvard Business School Press, 1996) 67.

23.

Dean Pruitt and Sung Hee Kim, Social Con ict: Escalation, Stalemate, and Settlement (McGraw-Hill, 3rd ed, 2004).

24.

See, eg, Donald Horowitz, ‘Democracy in Divided Societies’ (1993) 4(4) Journal of Democracy 18.

25.

Larry Diamond, e Spirit of Democracy: e Struggle to Build Free Societies roughout the World (Times Books, 2008).

26.

Ibid.

27.

Justice Hayne, ‘Dispute Resolution and the Rule of Law’ (Paper delivered at the SinoAustralian Seminar, Beijing, 20–22 November 2002). See High Court of Australia .

28.

Ibid.

29.

Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’, (n 17) 285.

30.

is was acknowledged decades ago: Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: e Case of Divorce’ (1979) 88(5) Yale Law Journal 950.

31.

Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’, (n 17) 282.

32.

e word community is used here to denote civil society. In his Politics Aristotle used the phrase civil society to refer to a ‘community’ in the sense of a polis made up of free and equal citizens living under the rule of law.

33.

Some of the in uential early works on this topic in the DR eld include Richard Abel (ed), e Politics of Informal Justice (Academic Press, 1982) vol 1; Jerold Auerbach, Justice Without Law (Oxford University Press, 1983); Roger Matthews (ed), Informal Justice? (Sage, 1988); Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical

Subject’ (1989) 66(3) Denver University Law Review 437; Sally Engle Merry and Neal Milner (eds), e Possibility of Popular Justice: A Case Study of Community Mediation in the United States (University of Michigan Press, 1993). 34.

Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’, (n 17) 282. See also, eg, Udechukwu Ojiako et al, ‘An Examination of the “Rule of Law” and “Justice” Implications in Online Dispute Resolution in Construction Projects’ (2018) 36(2) International Journal of Project Management 301; Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108.

35.

ere is a vast literature on the concept of justice from Plato’s Republic (trans Robin Water eld) (Oxford University Press, 1984) through to one of Dworkin’s last and most expansive works — Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011) and Eric Heinze, e Concept of Injustice (Routledge, 2013). For example, the Productivity Commission noted: ‘“Justice” is what people are seeking access to’ but it is a concept that ‘can be easier to recognise than to de ne’: Productivity Commission, (n 15) 75. See also, eg, Ronald L Cohen, ‘Distributive Justice: eory and Research’ (1987) 1(1) Social Justice Research 19; Amartya Sen, ‘What Do We Want from a eory of Justice?’ (2006) 103(5) e Journal of Philosophy 215; Gustavo Pereira, Elements of a Critical eory of Justice (Springer, 2013); Onora O’Neill, ‘e Method of a eory of Justice’ in Otfried Höffe (ed), John Rawls: Eine eorie der Gerechtigkeit (Akademie Verlag, 2013) 25–40; Robert Meister, Justice is an Option: A Democratic eory of Finance for the Twenty-First Century (University of Chicago Press, 2021).

36.

Nancy A Welsh, ‘Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice eories’ (2004) 54 Journal of Legal Education 49, 49.

37.

Ibid 50.

38.

Stuart Hampshire, Justice Is Con ict (Princeton, 2000) 4.

39.

Julie Macfarlane, e New Lawyer: How Settlement is Transforming the Practice of Law (UBC Press, 2nd ed, 2017).

40.

Namely, enjoyment of the most extensive basic liberty possible (without compromising the liberty of others), and social and economic positions to everyone’s advantage and open to all. See, eg, John Rawls, A eory of Justice (Harvard University Press, revised ed, 1999); Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal eory (Oxford University Press, 3rd ed, 2012).

41.

See John Rawls, Justice as Fairness: A Restatement (Belknap Press, 2001).

42.

See Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) and Ronald Dworkin, Justice in Robes (Harvard University Press, 2006). See also Morton Deutsch, Distributive Justice: A Social Psychological Perspective (Yale University Press, 1985); Michael L Moffitt and Robert C Bordone, e Handbook of Dispute Resolution (Jossey-Bass, 2005) 90.

43.

For example, see the CCH Macquarie Concise Dictionary of Modern Law (CCH, 1988).

44.

Martin A Frey, ‘Does ADR Offer Second Class Justice?’ (2001) 36(4) Tulsa Law Journal 727.

45.

Abel, (n 33). See also, eg, Auerbach, (n 33) and Boulle, (n 3) Mediation Principles, Process, Practice (3rd ed) 209–10. See also, eg, Maurice Rosenberg, ‘Second Class Justice’ (1981) 1 Windsor Yearbook of Access to Justice 294; omas Christian, ‘Community Dispute Resolution: First-Class Process or Second-Class Justice’ (1986) 14(3) NYU Review of Law & Social Change 771; Richard Susskind, ‘Economy-Class Justice’ in Richard Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019).

46.

See, eg, Stephen B Goldberg et al, Dispute Resolution: Negotiation Mediation & Other Processes (Wolters Kluwer, 7th ed, 2020). See also Mauro Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access-toJustice Movement’ (1993) 56(3) e Modern Law Review 282; Francis Regan, ‘Dilemmas of Dispute Resolution Policy’ (1997) 8(1) Australian Dispute Resolution Journal 5, 14–15.

47.

Ibid.

48.

Frey, (n 44) 728.

49.

Richard A Posner, ‘e Role of the Judge in the Twenty-First Century’ (2006) 86(5) Boston University Law Review 1049, 1057 referring to Richard A Posner, Law, Pragmatism, and Democracy (Harvard University Press, 2003) 284–6.

50.

Posner makes consistent reference to the judge as ‘umpire’ in Posner, ‘e Role of the Judge in the Twenty-First Century’, (n 49).

51.

Judith Resnik, ‘Tiers’ (1984) 57(6) Southern California Law Review 837, 844–59.

52.

Wayne Martin, ‘Bridging the Gap’ (Address to the National Access to Justice and Pro Bono Conference, Melbourne, 11–12 August 2006); Wayne Martin, ‘Improving Access to Justice through the Procedures, Structures and Administration of the Courts’ (Address to the Australian Lawyers Alliance Western Australian State Conference, Perth, 21 August 2009); Wayne Martin, ‘Access to Justice’ (Speech delivered at the Notre Dame University Eminent Speakers’ Series Inaugural Lecture, Fremantle, 26 February 2014). See also e New Lawyer, ‘Justice an Easily Admired, Yet Inaccessible Rolls Royce: Chief Justice’, e Lawyers’ Weekly (27 August 2009) . is analogy has been used by others also, eg, Donna Cooper, ‘When Rolls Royce and Holden Justice Collide: An Analysis of the Operations of the Federal Magistrates Service in Queensland in the Family Law Arena’ (2003) 3(2) QUT Law and Justice Journal 1, 27. In this article Donna Cooper refers to an interview conducted by Damien Carrick for e Law Report, Radio National, with Diana Bryant, Michael Chesterman and others about the Federal Magistrates Court (FMC) on 3 July 2001 where the FMC (later called the Federal Circuit Court, and from 1 September 2021 called the Federal Circuit and Family Court of Australia) is

referred to as ‘an everyman’s court, not trying to be the Rolls Royce model of justice, but a quick, speedy, cheap functioning court of justice’, 11. 53.

is research has existed for some time — see, eg, Russell Smith and Sally LloydBostock, Why People Go to Law: An Annotated Bibliography of Social Science Research (Centre for Socio-Legal Studies, Oxford, 1990); Hazel Genn, Paths to Justice: What People Do and ink About Going to Law (Oxford University Press, 1999) 246–8.

54.

Dennis Denuto said ‘In summing up, it’s the Constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe, and … no that’s it … it’s the vibe. I rest my case’: e Castle (Directed by Rob Sitch, 1997).

55.

Deborah L Rhode, Access to Justice (Oxford University Press, 2004) 42.

56.

Carrie Menkel-Meadow, ‘From Legal Disputes to Con ict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context’ (2004) 54(1) Journal of Legal Education 7, 8.

57.

Edgar Allan Lind and Tom R Tyler, e Social Psychology of Procedural Justice (Plenum Press, 1988); Welsh, (n 36).

58.

David Luban, ‘Settlements and the Erosion of the Public Realm’ (1995) 83 Georgetown Law Journal 2619.

59.

See discussion in Boulle, (n 3) Mediation Principles, Process, Practice (3rd ed) 210–12 regarding ‘mediation’s alternative justice model’.

60.

Silbey and Sarat, (n 33).

61.

Michael Black cited in the Productivity Commission Report, (n 15) 92.

62.

NADRAC, Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth Government, 1997) 20. See also Cecilia Albin, Justice and Fairness in International Negotiations (Cambridge University Press, 2001).

63.

Frey, (n 44) 727.

64.

Cecilia Albin, ‘e Role of Fairness in Negotiation’ (1993) 9(3) Negotiation Journal 223, 223.

65.

Ibid. Carrie Menkel-Meadow, ‘Whose Dispute Is It Anyway: A Philosophical and Democratic Defense of Settlement (In Some Cases)’ (1995) 83(7) Georgetown Law Journal 2663.

66.

Albin, (n 64) 225.

67.

Menkel-Meadow, (n 65).

68.

Brain research also now tells us that it is important for humans to perceive that they are being treated fairly. is is because being treated fairly is said to ignite the brain’s reward circuitry. See, eg, Stuart Wolpert, Brain Reacts to Fairness as it Does to Money and Chocolate, Study Shows (21 April 2008) UCLA Newsroom Science + Technology . See also, eg, E Allan Lind, ‘Fairness Heuristic eory: Justice Judgments as Pivotal Cognitions in Organizational Relations’ (2001) 56(8) Advances in Organizational Justice 88;

Golnaz Tabibnia, Ajay B Satpute and Matthew D Lieberman, ‘e Sunny Side of Fairness: Preference for Fairness Activates Reward Circuitry (and Disregarding Unfairness Activates Self-Control Circuitry)’ (2008) 19(4) Psychological Science 339; Constant D Beugré, ‘Exploring the Neural Basis of Fairness: A Model of NeuroOrganizational Justice’ (2009) 110(2) Organizational Behavior and Human Decision Processes 129; Katherine McAuliffe et al, ‘e Developmental Foundations of Human Fairness’ (2017) 1(2) Nature Human Behaviour 1; Laura Niemi, Emily Wasserman and Liane Young, ‘e Behavioral and Neural Signatures of Distinct Conceptions of Fairness’ (2018) 13(4) Social Neuroscience 399; Keith J Yoder and Jean Decety, ‘Me First: Neural Representations of Fairness During ree-Party Interactions’ (2020) 147 Neuropsychologia 107576. 69.

NADRAC, (n 62) 20.

70.

See, eg, E Allan Lind, ‘Procedural Justice, Disputing, and Reactions to Legal Authorities’ in Austin Sarat et al (eds), Everyday Practices and Trouble Cases (Northwestern University Press, 1998) 177; Tom R Tyler and E Allan Lind, ‘Procedural Justice’ in Joseph Sanders and V Lee Hamilton, Handbook of Justice Research in Law (Kluwer Academic/Plenum Publishers, 2001) 65. See also, eg, Debra L Shapiro and Jeanne M Brett, ‘Comparing ree Processes Underlying Judgments of Procedural Justice: A Field Study of Mediation and Arbitration’ (1993) 65(6) Journal of Personality and Social Psychology 1167; Nancy A Welsh, ‘Making Deals in Court-Connected Mediation: What’s Justice Got to Do with It?’ (2001) 79(3) Washington University Law Quarterly 787; Nancy A Welsh, ‘Disputants’ Decision Control in Court-Connected Mediation: A Hollow Promise Without Procedural Justice’ (2002) Journal of Dispute Resolution 179; Nancy A Welsh, ‘Reconciling Self-Determination, Coercion and Settlement in Court-Connected Mediation’ in Jay Folberg, Ann Milne and Peter Salem (eds), Mediating Family and Divorce Disputes: Current Practices and Applications (Guilford Press, 2004); Heathcote W Wales, Virginia Aldigé Hiday and Bradley Ray, ‘Procedural Justice and the Mental Health Court Judge’s Role in Reducing Recidivism’ (2010) 33(4) International Journal of Law and Psychiatry 265; Tinneke Van Camp and Jo-Anne Wemmers, ‘Victim Satisfaction with Restorative Justice: More than Simply Procedural Justice’ (2013) 19(2) International Review of Victimology 117; Tom R Tyler and Robert J Bies, ‘Beyond Formal Procedures: e Interpersonal Context of Procedural Justice’ in John S Carroll (ed), Applied Social Psychology and Organizational Settings (Psychology Press, 2015) 77–98; Matthew Radburn and Clifford Stott, ‘e Social Psychological Processes of “Procedural Justice”: Concepts, Critiques and Opportunities’ (2019) 19(4) Criminology & Criminal Justice 421.

71.

Carrie Menkel-Meadow, ‘Judges and Settlement. What Part Should Judges Play?’ (1985) (Oct) Trial 24, 26.

72.

Productivity Commission, (n 15) 7.

73.

See, eg, Laurens Walker et al, ‘Reactions of Participants and Observers to Modes of Adjudication (1974) 4(4) Journal of Applied Social Psychology 295; John ibault and

Laurens Walker, Procedural Justice: A Psychological Analysis (Erlbaum, 1975); Lind and Tyler, (n 57). 74.

Keith G Allred, ‘Relationship Dynamics in Disputes: Replacing Contention with Cooperation’ in Moffitt and Bordone, (n 42) 83, 91.

75.

Ibid.

76.

Tania Matruglio, Plaintiffs and the Process of Litigation: An Analysis of the Perceptions of Plaintiffs Following eir Experience of Litigation (Civil Justice Research Centre, 1994) 52–8 and Executive Summary at (viii), showed that one of the most frequent comments of plaintiffs in personal injury cases related to the stress and trauma of litigation. See also, eg, Richard A Bryant and Allison G Harvey, ‘e In uence of Litigation on Maintenance of Posttraumatic Stress Disorder’ (2003) 191(3) e Journal of Nervous and Mental Disease 191; Sara C Charles, Adverse Events, Stress and Litigation: A Physician’s Guide (Oxford University Press, 2005); Michaela Keet, Heather Heavin and Shawna Sparrow, ‘Anticipating and Managing the Psychological Cost of Civil Litigation’ (2017) 34(2) Windsor Yearbook of Access to Justice 73; MaryElizabeth Tumelty, ‘Exploring the Emotional Burdens and Impact of Medical Negligence Litigation on the Plaintiff and Medical Practitioner: Insights from Ireland’ (2021) Legal Studies (online).

77.

Richard Delgado et al, ‘Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution’ (1985) 6 Wisconsin Law Review 1359.

78.

Nancy Ehrenreich, ‘Foreword: Conceptualizing Substantive Justice’ (2010) 13(3) Journal of Gender, Race and Justice 533, 535. See also, eg, Ellen Waldman and Lola Akin Ojelabi, ‘Mediators and Substantive Justice: A View from Rawls’ Original Position’ (2016) 30(3) Ohio State Journal on Dispute Resolution 391; Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ in Richard Bellamy (ed), e Rule of Law and the Separation of Powers (Routledge, 2017) 95–115; Hanoch Dagan and Avihay Dorfman, ‘Substantive Remedies’ (2020) 96(2) Notre Dame Law Review 513.

79.

Lon Fuller, ‘e Forms and Limits of Adjudication’ (1978) 92(2) Harvard Law Review 353.

80.

It has been succinctly described as a ‘public good … a bene cial product that cannot be provided to one consumer without making it available to all’: David Luban, ‘Settlements and the Erosion of the Public Realm’ (1995) 83(7) Georgetown Law Journal 2619.

81.

Raz emphasises that laws should advise citizens in a ‘publicly ascertainable way, of standards required by the organized society’: Joseph Raz, e Authority of Law (Clarendon Press, 1979) 246–7.

82.

See, eg, Owen Fiss, ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073. See also the writing of Abel, (n 33), Luban, (n 80) and Judith Resnik’s work, eg, ‘Failing Faith: Adjudicatory Procedure in Decline’ (1986) 53(2) e University of Chicago Law Review

494; ‘Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III’ (2000) 113(4) Harvard Law Review 924; ‘Diffusing Disputes: e Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’ (2014) 124(8) Yale Law Journal 2804; ‘Reorienting the Process Due: Using Jurisdiction to Forge PostSettlement Relationships among Litigants, Courts and Other Aggregate Litigation’ (2017) 92(4) NYU Law Review 1017. 83.

Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62(1) Tulane Law Review 1, 14.

84.

Luban, (n 80) 2648.

85.

Mnookin and Kornhauser, (n 30); Herbert Jacob, ‘e Elusive Shadow of the Law’ (1992) 26(3) Law and Society Review 565; Bren Neale and Carol Smart, ‘“Good” and “Bad” Lawyers? Struggling in the Shadow of the New Law’ (1997) 19(3) Journal of Social Welfare and Family Law 377; John Wade, ‘Forever Bargaining in the Shadow of the Law — Who Sells Solid Shadows? (Who Advises What, How and When?)’ (1998) 12(3) Australian Journal of Family Law 256; John Zeleznikow et al, ‘Bargaining in the Shadow of the Law — Using Utility Functions to Support Legal Negotiation’, in Proceedings of the 11th International Conference on Arti cial Intelligence and Law (Palo Alto, California, 4–8 June 2007) 237–46; Becky Batagol and ea Brown, Bargaining in the Shadow of the Law: e Case of Family Mediation (emis Press, 2011); Grant Strother, ‘Resolving Cultural Property Disputes in the Shadow of the Law’ (2014) 19 Harvard Negotiation Law Review 335; Erin York Cornwell, Emily S Taylor Poppe and Megan Doherty Bea, ‘Networking in the Shadow of the Law: Informal Access to Legal Expertise rough Personal Network Ties’ (2017) 51(3) Law & Society Review 635; Jonathan Crowe et al, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40(3) Sydney Law Review 319; Susanne K Schmidt, e European Court of Justice and the Policy Process: e Shadow of Case Law (Oxford University Press, 2018); Chinwe Umegbolu, ‘Bargaining in the Shadow of the Law: e Facts of Divorce as ey Stand Today’ (2020) (March) e Arbitrator and Mediator (online).

86.

Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Ordering’ (1981) 19 Journal of Legal Pluralism 1. See also Mnookin and Kornhauser, (n 30) and the works cited, (n 85).

87.

Menkel-Meadow, (n 71) 26.

88.

Ibid.

89.

Marc Galanter, ‘Worlds of Deals: Using Negotiation to Teach About Legal Process’ (1984) 34 Journal of Legal Education 268, 269.

90.

See, eg, Jessica W Berg et al, Informed Consent: Legal eory and Clinical Practice (Oxford University Press, 2001); David Luban, ‘Paternalism and the Legal Profession’ (1981) 3 Wisconsin Law Review 454. Further, the nature of informed consent in the lawyer–client relationship is treated comprehensively in legal ethics texts as a complex issue, particularly in the US literature. See, eg, John omas Noonan and Richard W

Painter, Professional and Personal Responsibilities of the Lawyer (West Publishing Company, 1997); Deborah L Rhode, David Luban and Scott L Cummings, Legal Ethics (Foundation Press, 6th ed, 2013); Deborah L Rhode, Professional Responsibility: Ethics by the Pervasive Method (Aspen Law and Business, 2nd ed, 1998). In legal contexts, self-determination is said to be ‘expressed through the legal doctrine of informed consent’: Jacqueline M Nolan-Haley, ‘Self-Determination in International Mediation: Some Preliminary Re ections’ (2006) 7(2) Cardozo Journal of Con ict Resolution 277, 277. See also Ruth R Faden and Tom L Beauchamp, A History and eory of Informed Consent (Oxford University Press, 1986). 91.

Jacqueline M Nolan-Haley, ‘Informed Consent in Mediation: A Guiding Principle for Truly Educated Decision-Making’ (1999) 74(3) Notre Dame Law Review 775, 799.

92.

Leda M Cooks and Claudia Hale, ‘e Construction of Ethics in Mediation’ (1994) 12(1) Mediation Quarterly 55, 62.

93.

Bobette Wolski, ‘Voluntariness and Consensuality: De ning Characteristics of Mediation?’ (1997) 15(3) Australian Bar Review 213, 214.

94.

See Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part I’ (2000) 11(2) Australian Dispute Resolution Journal 73. See also, however, Jonathan Crowe and Rachael Field, ‘e Problem of Legitimacy in Mediation’ (2008) 9(1) Contemporary Issues in Law 48; Field and Crowe, (n 3).

95.

Nolan-Haley, (n 90) 278.

96.

Nolan-Haley, (n 91) 787, 840.

97.

Ibid 781.

98.

Ibid 778.

99.

See Field and Crowe, (n 3) ch 4 and the literature cited there.

100. Model Standards of Conduct for Mediators 2005 (US), 3. See also Ethical Standards for Mediators, developed by the Law Council of Australia. 101. See Boulle, (n 3) Mediation Principles, Process, Practice (3rd ed) [3.36], [12.29]. See also the further discussion of impartiality and ethical third-party intervention in relation to the processes discussed in the chapters of Part II of this book. 102. See for a comprehensive discussion Field and Crowe, (n 3). 103. See, eg, Rachael Field, ‘A Paradigm Shi for Mediation Ethics: From Neutrality to Party Self-Determination’ (PhD thesis, University of Sydney, 2011); Rachael Field, ‘Mediation Ethics in Australia — A Case for Rethinking the Foundational Paradigm’ (2012) 19 James Cook University Law Review 41; Jonathan Crowe and Rachael Field, ‘e Empty Idea of Mediator Impartiality’ (2019) 29(4) Australasian Dispute Resolution Journal 273; Field and Crowe, (n 3) and the literature cited there. 104. Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’, (n 17) 282. 105. Shorter Oxford English Dictionary. 106. See further, eg, Marc Weller and Stefan Wolff (eds), Autonomy, Self-governance and

Con ict Resolution: Innovative Approaches to Institutional Design in Divided Societies (Routledge, 2005). 107. Christopher Niemiec, Richard Ryan and Edward Deci, ‘Self-Determination eory and the Relation of Autonomy to Self-Regulatory Processes and Personality Development’ in Rick Hoyle (ed), Handbook of Personality and Self-Regulation (WileyBlackwell, 2010) 169; Maarten Vansteenkiste, Christopher P Niemiec and Bart Soenens, ‘e Development of the Five Mini-eories of Self-Determination eory: An Historical Overview, Emerging Trends, and Future Directions’ in Timothy C Urdan and Stuart A Karabenick (eds), e Decade Ahead: eoretical Perspectives on Motivation and Achievement (Emerald Group Publishing, 2010) 105; Edward L Deci et al, ‘Self-Determination eory: An Approach to Human Motivation and Personality’ (2013) . 108. SDT incorporates ve sub-theories of motivation and human behaviour as part of the meta-theory — Cognitive Evaluation eory, Organismic Integration eory, Causality Orientations eory, Basic Needs eory and Goal Content eory. It is beyond the scope of this work to explain SDT theory in any further detail here. However, scholars of DR can only bene t from further engagement with it. 109. Niemiec, Ryan and Deci, (n 107) 175. 110. Ibid 176. is section draws on Anna Huggins’ LLM (Research) in relation to SDT and the self-management threshold learning outcome for law: Anna Huggins, ‘Implementing the Self-Management reshold Learning Outcome in Australian Legal Curricula: Insights from Self-Determination eory’ (Master of Laws by Research esis, QUT, 2013). See also Anna Huggins, ‘Autonomy Supportive Curriculum Design: A Salient Factor in Promoting Law Students’ Wellbeing’ (2012) 35(3) University of New South Wales Law Journal 683. 111. Lawrence S Krieger, ‘e Most Ethical of People, the Least Ethical of People: Proposing Self-Determination eory to Measure Professional Character Formation’ (2011) 8(2) University of St omas Law Journal 168, 172. 112. Niemiec, Ryan and Deci, (n 107) 176; Krieger, (n 111) 172. 113. See Richard M Ryan and Edward L Deci, ‘Self-Determination eory and the Facilitation of Intrinsic Motivation, Social Development and Well-being’ (2000) 55(1) American Psychologist 68; Richard M Ryan and Edward L Deci, ‘Overview of SelfDetermination eory: An Organismic Dialectical Perspective’ in Edward Deci and Richard Ryan (eds), Handbook of Self Determination Research (University of Rochester Press, 2002); Richard M Ryan and Edward L Deci, ‘Self-Determination eory and the Role of Basic Psychological Needs in Personality and the Organization of Behavior’ in Oliver P John, Richard W Robins and Lawrence A Pervin (eds), Handbook of Personality: eory and Research (Guilford Press, 3rd ed, 2008) 654. 114. Vansteenkiste, Niemiec and Soenens, (n 107) 131–2. 115. Ibid.

Ibid 118. See also, Richard M Ryan and Edward L Deci, ‘Intrinsic and Extrinsic 116. Motivation from a Self-Determination eory Perspective: De nitions, eory, Practices, and Future Directions’ (2020) 61 Contemporary Educational Psychology 101860 (online). 117. Vansteenkiste, Niemiec and Soenens, (n 107) 118. 118. Ibid 120. 119. See, eg, Louise Ellen Teitz, ‘e Hague Choice of Court Convention: Validating Party Autonomy and Providing an Alternative to Arbitration’ (2005) 53(3) e American Journal of Comparative Law 543. 120. Astor and Chinkin, (n 4). 121. Compare, however, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) Queensland University of Technology Law and Justice Journal 77. 122. Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part II’ (2000) 11(3) Australasian Dispute Resolution Journal 145; Hilary Astor, ‘Mediator Neutrality: Making Sense of eory and Practice’ (2007) 16(2) Social & Legal Studies 221. 123. Nancy A Welsh, ‘e inning Vision of Self-Determination in Court Connected Mediation: e Inevitable Price of Institutionalisation?’ (2001) 6 Harvard Negotiation Law Review 1, 4. Note also that Welsh writes of changes that have resulted to the notion of self-determination as a result of the institutionalisation of mediation through the courts. As a result, the practice of mediation in some court-annexed contexts appears to resemble lawyer settlement negotiations. e thin vision of selfdetermination in that context, where the parties simply choose from a range of options put to them, is not the notion of party self-determination intended here. 124. Gerald Dworkin, e eory and Practice of Autonomy (Cambridge University Press, 1988) 122. 125. Joseph B Stulberg, ‘Facilitative Versus Evaluative Orientations: Piercing the “Grid” Lock’ (1997) 24(4) Florida State University Law Review 985, 990. 126. See Field and Crowe, (n 3). 127. Abel, (n 33) ch 10, ‘e Contraindications of Informal Justice’ 270. 128. Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’, (n 17) 282. 129. Omar G Encarnación, ‘Tocqueville’s Missionaries: Civil Society Advocacy and the Promotion of Democracy’ (2000) 17(1) World Policy Journal 9, 10. 130. Ibid 9 referring to the following literature on positive appraisals of the relationship between civil society and democracy: eg, Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals (Penguin, 1994); Don E Eberly (ed), Building a Community of Citizens: Civil Society in the 21st Century (University Press of America, 1994); Brian O’Donnell, Civil Society: e Underpinnings of American Democracy (University Press of America, 1999). And to some of the more critical literature: omas Carothers,

‘Civil Society’ (1999–2000) 117 Foreign Policy 18; David Rieff, ‘e False Dawn of Civil Society’, e Nation (22 February 1994); Alan Wolfe, ‘Is Civil Society Obsolete?’ (1997) 15(4) Brookings Review 9. See also, eg, Peter McLaverty, ‘Civil Society and Democracy’ (2002) 8(4) Contemporary Politics 303; Elin Royles, Revitalising Democracy? Devolution and Civil Society in Wales (University of Wales Press, 2007); Amaney A Jamal, Barriers to Democracy (Princeton University Press, 2009); John Keane, Civil Society: Old Images, New Visions (John Wiley & Sons, 2013); Helmut K Anheier, Civil Society: Measurement, Evaluation, Policy (Earthscan, 2013); Catherine Albiston, ‘Democracy, Civil Society, and Public Interest Law’ (2018) 2 Wisconsin Law Review 187; Jefferey M Sellers, Anders Lidström and Yooil Bae, Multilevel Democracy: How Local Institutions and Civil Society Shape the Modern State (Cambridge University Press, 2020). 131. Paraphrasing Encarnación, (n 129) 10. 132. Benjamin R Barber, A Place for Us: How to Make Society Civil and Democracy Strong (Macmillan, 2004). 133. Ronald Sackville, ‘Access to Justice: Towards an Integrated Approach’ (2011) 10(2) e Judicial Review 221, 232, referring to Commonwealth legislation which confers greater case management powers on federal courts entitled the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). See also, eg, Mary Anne Noone, ‘Access to Justice Research in Australia’ (2006) 31(1) Alternative Law Journal 30. 134. Ronald Sackville, ‘Some oughts on Access to Justice’ (2004) 2(1) New Zealand Journal of Public and International Law 85, 86. 135. Robert McClelland, ‘A Strategic Framework for Access to Justice in the Federal Justice System’ (Foreword) in Access to Justice Taskforce: Report (Commonwealth of Australia, 2009) ix. 136. Sackville, (n 133) 221. See also Deborah L Rhode, ‘Whatever Happened to Access to Justice?’ (2009) 42(4) Loyola of Los Angeles Law Review 869 and the other papers in this special issue of the Loyola of Los Angeles Law Review entitled Access to Justice: It’s Not for Everyone. See also, eg, Earl Johnson Jr, ‘Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies’ (2000) 24(6) Fordham International Law Journal 83. 137. Productivity Commission, (n 15) 76. See also Access to Justice Advisory Committee, Access to Justice — An Action Plan (AGPS, 1994). 138. Lola Akin Ojelabi, ‘Improving Access to Justice through Alternative Dispute Resolution: e Role of Community Legal Centres in Victoria, Australia’ (Research Report, Faculty of Law and Management, La Trobe University, September 2010) 10. See also Lola Akin Ojelabi, ‘Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice — Part I’ (2011) 22(1) Australasian Dispute Resolution Journal 111; Lola Akin Ojelabi, ‘Community Legal Centres’ Views on ADR as a Means of Improving Access to Justice — Part II’ (2011) 22(3) Australasian Dispute Resolution Journal 173.

139. Bryant G Garth and Mauro Cappelletti, ‘Access to Justice: e Newest Wave in the Worldwide Movement to Make Rights Effective’ (1978) 27(2) Buffalo Law Review 181, 182. 140. Ibid. See also Productivity Commission, (n 15) 74. 141. Noone, (n 133); Noone and Akin Ojelabi, (n 34). 142. Deborah L Rhode, ‘Access to Justice’ (2001) 69(5) Fordham Law Review 1785. 143. Christine Parker identi es four waves of access to justice reform: legal aid, public interest reform, informal justice (ADR) and competition policy — Christine Parker, Just Lawyers (Oxford University Press, 1999) 32–41. Some of the public law reform institutions themselves draw on the techniques of informal justice. 144. Rhode, (n 142) 1816. 145. Ibid. 146. Robert W Sweet, ‘Civil “Gideon” and Justice in the Trial Court (e Rabbi’s Beard)’ (1997) 42 e Record 915, 924. 147. Abel, (n 33) 310. See also Kathy Mack, ‘Alternative Dispute Resolution and Access to Justice for Women’ (1995) 17(1) Adelaide Law Review 123. 148. Australian Law Reform Commission (ALRC), Managing Justice — A Review of the Federal Justice System, Report No 89 (2000) [4.20], 262. See also, eg, James S Kalikak et al, ‘Just, Speedy and Inexpensive? An Evaluation of Judicial Case Management under the Civil Justice Reform Act’ (1997) 49(1) Alabama Law Review 17, 30. 149. In Hill v Hill (Unreported, Supreme Court of New South Wales, Young J, 19 May 1997) the Supreme Court commented on the high costs in the case and added that these included the costs of an earlier unsuccessful mediation. 150. Tania Sourdin and Naomi Burstyner, ‘Justice Delayed is Justice Denied’ (2014) 4(1) Victoria University Law and Justice Journal 46; Debra Gardner, ‘Justice Delayed is, Once Again, Justice Denied: e Overdue Right to Counsel in Civil Cases’ (2007) 37(1) University of Baltimore Law Review 59. 151. Garth and Cappelletti, (n 139) 190. 152. Productivity Commission, (n 15) 15–16. 153. Astor and Chinkin, (n 4) 59. 154. Fiss, (n 82). 155. Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculations of the Limits of Legal Change’ (1974) 9(1) Law and Society Review 95; Fuller, (n 79); Carrie MenkelMeadow, ‘Do the “Haves” Come out Ahead in Alternative Judicial Systems?: Repeat Players in ADR’ (1999) 15(1) Ohio State Journal on Dispute Resolution 19, 26. 156. See, eg, discussion in Chapter 8. 157. For example, see Rachael Field, ‘Using the Feminist Critique of Mediation to Explore “e Good, e Bad and e Ugly” Implications for Women of the Introduction of

Mandatory Family Dispute Resolution in Australia’ (2006) 20(5) Australian Journal of Family Law 45. 158. Donna Shestowsky, ‘Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea’ (2004) 10(3) Psychology, Public Policy and Law 211. 159. For an excellent illustration of this problem, see Andrea Durbach, ‘Test Case Mediation — Privatising the Public Interest’ (1995) 6(4) Australian Dispute Resolution Journal 233. 160. Compare this position with Frank EA Sander and Lukasz Rozdeiczer, ‘Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a MediationCentered Approach’ (2006) 11 Harvard Negotiation Law Review 1. 161. Sackville, (n 133) 236.

[page 171]

Chapter 6 A Short History of Dispute Resolution in Australia Chapter contents Introduction Indigenous DR in Australia In uences on the development of Australian DR The people and organisations of non-adversarial DR in Australia Shaping the future of DR in Australia Conclusion

6.1 6.8 6.17 6.66 6.83 6.89

Introduction1 6.1 Societies and legal systems are dynamic and dispute resolution (DR) approaches and systems inevitably evolve and change with them. DR practice, both internationally and in Australia, has been shaped by many in uences over time, such as political in uences, the doctrinal content of the law, legal philosophical approaches and by domestic and global economic trends. e history of DR reveals evolving social and legal practices that have been responsive and adaptive to the dynamics of a changing world. 6.2 In 20th century Australia, litigation was generally viewed as the dominant, state-sanctioned way of resolving disputes, with mediation and other non-adversarial DR processes becoming increasingly established but still referred to as ‘alternatives’ — particularly in legal contexts.2 More recently, as a result of diverse social, political and legal pressures, nonadversarial DR approaches are seen more and more, along with [page 172]

litigation, as a suite of legitimate and constructive process options on the DR matrix, as discussed in Chapters 3 and 4. As the historical development of litigation is well documented elsewhere, this chapter focuses on the history of forms of DR other than litigation.3 6.3 Consideration of the history of DR in Australia is important. History is sometimes associated with looking backwards — to attitudes, methods and approaches that may be considered dated, old-fashioned or lacking relevance to contemporary times. However, the history of DR matters because the legacies of the past matter. It is not only useful to know and understand how we have arrived at the present juncture in the development of DR, it is indeed essential to have this knowledge and understanding because through it we can not only appreciate and contextualise the present practice of DR but also intelligently contribute to the formulation of its future. Certainly, history lends ‘richness and depth to scholarly discussions about modern methods of dispute resolution’,4 but more importantly, as Carr famously wrote: ‘e past is intelligible to us only in light of the present; and we can fully understand the present (and to this could be added “and positively in uence the creation of the future”) only in light of the past’.5 6.4 e historical account of DR in this chapter is offered thematically, rather than in a chronological series of dates and facts, unpacking the story of how Australian DR has evolved.6 is approach enables the DR community to learn from the past, and avoid reinventing the wheel. It can remind us of the ideas and approaches that have been jettisoned over time, and help us to appreciate why those ideas and approaches were discontinued or replaced. e history of DR is relevant to, and informs, many other aspects of this book, such as the Australian DR matrix, the values and goals of DR, the various bene ts and disadvantages of different DR systems, the required competencies of DR practitioners, the development of DR ethics, and the critical place of DR in democratic societies governed by the rule of law. [page 173]

6.5 e history of DR is therefore deeply relevant to its future practice in Australian society, informing decisions as to the legacies that are worth preserving or adapting, as well as in uencing innovation and the creation of new directions. In particular, consideration of DR’s history can assist the legal profession to manage the future challenges for the sustainability of lawyering and legal service delivery; clarifying why DR is central to ethical, effective and efficient legal practice, and to the authenticity and integrity of a professional identity based on the role for lawyers as managers of con ict, resolvers of disputes and problem-solvers in diverse ways.7 ese ideas were introduced in Chapter 1 and they link the chapters throughout the book. 6.6 e consideration of the history of DR in Australia in this chapter focuses on the following themes: Indigenous DR; international in uences on the shaping of Australian DR; community-based non-adversarial DR; reform of the civil justice system and the institutionalisation of nonadversarial DR;8 and the people and organisations of Australian DR. Two additional matters also warrant historical overview; namely, the regulation and professionalisation of non-adversarial DR and the developments in scholarship and theory which inform its practice. e rst issue is dealt with in Chapter 13 on DR ethics. Discussion of the second issue is integrated throughout the chapters of this book. 6.7 e themes outlined above are explored in this chapter predominantly from an Australian perspective. ere is of course a much broader international context to the history of DR that has informed local developments, but this is too vast a topic to treat comprehensively in this chapter. e title of this chapter also acknowledges that the consideration of the historical shaping of Australian DR is only a brief sketch of key elements. e discussion of some of the issues raised here is extended in other chapters of the book. However, we recognise the limitations of this account and reiterate the call of Astor and Chinkin for legal and social historians to research and analyse more rigorously the history of DR in Australia, and internationally.

Indigenous DR in Australia 6.8

DR in Australia has ancient antecedents which all Australian DR

practitioners and lawyers should appreciate if they are to practise in ethically and culturally competent ways.9 Australia’s Aboriginal people have resolved disputes without [page 174] recourse to adversarial processes like litigation, or anything resembling them, since time immemorial.10 At the time of Australia’s colonisation, Aboriginal people had well-developed systems of law based on kinship structures, which prescribed rights and obligations over a wide spectrum of activities.11 ese traditional methods of dealing with disputes were not recognised by the colonisers because they were not [page 175] accessible through recorded forms and their norms did not resemble the latter’s own DR mechanisms.12 6.9 Australia’s colonisers failed to acknowledge the legal and DR systems in place when they arrived partly because they could not appreciate either the diversity in pre-colonisation Aboriginal society — with more than 500 different nations (tribal groups) speaking different languages and practising different traditions — or the cultural commonalities, including the shared cultural values and practices across Aboriginal nations.13 Some of the shared values and practices concern ‘the spiritual connection to country that derives from creation stories’; the importance of relationships between and within nations; a different concept of family to that of Western peoples based on kinship; respect for country (the land); respect for law, culture and governance through oral narratives; and the role of Elders as custodians of those narratives and as the holders of power and authority within the various nations.14 6.10 Behrendt and Kelly point out that ‘dispute resolution in pre-invasion Aboriginal culture re ected the values of the people’.15 ey provide a useful

summary of how traditional Aboriginal values contrasted with the values of the colonisers, contributing to a lack of understanding between Aboriginal and non-Aboriginal people — particularly in relation to legal, governance and DR systems — which it could be said has continued over time to the present day. For example, the Aboriginal value of custodianship of land can be contrasted with the Anglo-Australian value of proprietorship of land; Aboriginal oral laws and history can be contrasted with the emphasis in Anglo-Australian culture on written laws and history; communal, egalitarian and cooperative values can be contrasted with individualistic, hierarchical and competitive values; the Elder orientation present in Aboriginal societies is not found as strongly in Anglo-Australian communities; and the Aboriginal concepts of extended family and nonspeci c parenting are not mirrored in Anglo-Australian approaches to nuclear families and speci c parenting.16 6.11 In traditional Aboriginal societies, disputes arose predominantly in relation to breaches of customary or cultural obligations, for example failing to observe sacred law or ceremonies, breaching kinship or marital obligations or acting unlawfully against another person.17 Grievances were dealt with in many different ways across nations, but they were informed by the common values described above and oen with reliance on the authority of Elders and their exercise of powers of in uence and intervention [page 176] in order to peacefully resolve matters.18 Social pressure was oen harnessed as an effective DR tool, and there was also a strong presence of women as authoritative DR intervenors, particularly in relation to breaches of kinship or spiritual obligations.19 Although there were no courts, as exist in Western legal systems, many Aboriginal nations had systems of councils exercising a similar function, albeit operating in less formal ways.20 Restitution featured prominently in the resolution of disputes, as did sanctions such as threats of sorcery, exile and spearing. 6.12

In their second edition, Astor and Chinkin argued that Aboriginal

DR methods have not been given the attention they merit because they have not been well understood. For example, the use of clubbing or spearing as a sanction in traditional Aboriginal cultures has not been contextualised in terms of such punishments taking place in societies where there were wellestablished means of moderating and controlling violence, where other means familiar to Western industrial societies (such as nes and imprisonment) were not available or would have been regarded as cruel and unusual, and where attitudes to pain and hardship have been asserted to be different.21 6.13 Drawing on the above discussion of traditional Aboriginal cultural values, it is clear that the relational, contextualised and community-oriented approaches to DR adopted in Aboriginal cultures appear to be consistent with the values and goals of many of the non-adversarial processes on the DR matrix (see Chapter 5 for discussion of the values and goals of contemporary DR). It is important, however, to acknowledge critical differences between Western approaches to informal DR and traditional Aboriginal approaches.22 For example, the notion of the mediator as an independent non-partisan intervenor is not replicated in the way Elders operate as intervenors in Aboriginal disputes.23 at is, Aboriginal Elders oen know the parties to the dispute in which they are intervening and may have perspectives on what would be appropriate outcomes.24 Approaches to communication, by Aboriginal parties and intervenors, may also be different.25 6.14 It is important, therefore, to be cognisant of difference in relation to the implementation of Western DR methods in Aboriginal contexts, such as with native title disputes.26 We cannot assume that because some of the values associated with the [page 177] practice of contemporary non-adversarial DR methods have a synergy with traditional Aboriginal values that these methods are automatically suitable for use with Aboriginal people.27 Issues such as systemic power imbalances

created by Aboriginal experiences of hundreds of years of historic dispossession and economic disadvantage entail that care must be taken in ensuring that Aboriginal participants have the time and resources to participate effectively in order to reach just outcomes.28 Brigg argues that speci c steps need to be taken to mitigate the operation of power in these circumstances and to respond to cultural difference in ethical ways.29 In particular, care is needed to ensure that ‘the application of mainstream ADR processes to Aboriginal disputants’ does not prioritise values underlying the litigation system.30 Further, assumptions should not be made about common understandings as to the nature of DR processes such as mediation.31 Behrendt and Kelly comment, for example, that ‘white mediators oen desire to stick to a precise procedure, and refuse to be (in their words) “side-tracked” by a new issue that has not formally been listed as one of the issues for discussion in the mediation’.32 Further, for example, even though mediation is a relatively informal environment, nonIndigenous mediators may oen retain the use of fairly formal (even legalistic) communication methods that may not be recognised by, or communicate effectively with, Aboriginal participants. 6.15 e Report of National Alternative Dispute Resolution Advisory Council’s (NADRAC’s) Indigenous Dispute Resolution Committee noted that: … customary and western practices overlap and, although customary processes can be supported in some instances, new Indigenous-speci c services and practices may be required to address contemporary problems. Mainstream agencies also need to address the barriers faced by Indigenous people in using their services. Dispute resolution practices should take into account: additional intake and preparation issues, the selection

[page 178] of practitioner(s), differing concepts of time and place, attendance and representation at ADR sessions, and changes to conventional processes and ground rules.33

6.16 e contemporary practice of DR in Australia has not yet been much in uenced by the Aboriginal DR narrative. is is something that

needs to change in the future, as there is much to learn from the wisdom of this tradition. Some of these potential lessons are explored in the nal section of this chapter. e next section considers how DR has been shaped in Australia by some of the international in uences.

In uences on the development of Australian DR 6.17 e narrative of Australia’s Aboriginal DR traditions is thousands of years old. It is also true that the history of DR — internationally — is long and varied ‘in almost all cultures of the world’.34 To illustrate the longevity of DR and its ancient global antecedents we could begin in 1800 BC, as Jerome Barrett did in his work A History of Alternative Dispute Resolution: e Story of a Political, Cultural and Social Movement, by referring to the Mari (now contemporary Syrian) kingdom’s use of mediation and arbitration in crossborder disputes.35 is very early example of using consensual and collaborative DR processes makes clear that mediation-like processes have been part of many diverse cultures around the world for thousands of years. 6.18 e major in uences on the development of contemporary Australian DR practice are more recent. ese in uences, as discussed below, are important. However, it should be noted that Australia itself has been an international leader for decades in relation to civil justice reform and the adoption and promotion of a diverse range of non-adversarial DR methods.36 ese processes have long been recommended and promoted in different sectors across the Australian legal system and government. Activity in Australia was certainly in uenced and informed by the wave of enthusiasm for ADR (as it then was) in other Western legal jurisdictions in the 1970s and 1980s, but it is important to acknowledge and remember that an accurate global picture of the [page 179] history of DR, particularly of processes other than litigation, involves signi cant cross-jurisdictional in uence and fertilisation, with Australia oen leading the way.

6.19 Much of the energy for ADR around the world, but particularly in Western industrialised societies, came from proponents of the access to justice movement,37 who struck a chord with the public by contrasting positive perceptions of ADR with negative perceptions of litigation and the formal justice system.38 ey argued that the might of the formal justice system was not necessary to resolve many types of disputes, which could be better managed or resolved by ordinary people empowered by the ‘new’ methods of ADR.39 Litigation was argued to be expensive and inaccessible, promoting or exacerbating con ict, and removing control of disputes from the disputing parties. e so-called ‘litigation explosion’40 was seen as a waste of personal and state resources for very little real bene t to disputants or to society.41 Stempel claimed in fact that the [page 180] history of ADR ‘is a reaction to the perceived excesses and shortcomings of litigation’.42 In short, the formal justice system was criticised for not adequately addressing the needs of disputants and for exacerbating social problems.43 Lawyers were seen as complicit in these systemic failings. 6.20 It was also the case, however, that support grew for ADR in Western legal systems because ADR methods were perceived as introducing a new paradigm of DR, something that was a superior alternative to litigation.44 ADR methods, for example, were argued to be responsive to the needs of the parties, consensual, as well as quick and inexpensive. Processes such as mediation were said to ‘provide more creative, particularized, exible and participative solutions to problems than the more traditional and adversary legal system could offer’.45 In providing a new DR paradigm, ADR methods were applauded for embracing party self-determination and principled negotiation,46 and for rejecting reliance on an external intervenor’s determination, along with the concomitant imposition of a binary win/lose outcome. ADR was also seen as supporting relationships, particularly relationships disturbed by con ict. For example, Lon Fuller described a central quality of mediation in his seminal work of 1971 as:

… its capacity to reorient the parties towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.47

6.21 Brunet described the ‘ rst wave’ of thinking about ADR in the US as displaying ‘an almost evangelic fervour’, but this evangelism was followed by a ‘more balanced and sceptical second wave of analysis’.48 Across Western liberal democracies in the 1970s [page 181] and 1980s there was therefore what might be regarded as a critical enthusiasm for ADR with two distinct drivers. e rst was the community justice movement — a grassroots, peer-based, non-legal and antiestablishment movement seeking to reclaim access to justice for the populace — which resulted in the establishment and development of DR services such as neighbourhood justice centres.49 e second driver involved the legal establishment itself taking a critical look at its own processes and procedures and nding much room for improvement. is second driver was manifested in calls for civil justice reform by users of legal services, the legal profession, the judiciary and government, and resulted in DR being institutionalised in Western legal systems in manifold ways. e sections below explore how these two key elements have contributed to shaping the history of Australian DR, considering both international in uences and Australian developments.

Community-based DR 6.22 e rst key international in uence on the development of DR in Australia was the community justice movement. is movement was committed to notions of community participation and empowerment of the populace in democratic systems of government.50 Its provenance lay in ‘the powerful “people” movements of the 1960s and early 1970s which saw communities and groups within communities reacting against state control

and the regulation of people’s lives’, and advocating for those who felt relatively powerless in the face of institutionalised forces.51 6.23 Drawing on the positive new paradigm offered by ADR, proponents of community justice, or popular justice as it was also known,52 were seeking ways of assisting and empowering people to effectively and efficiently manage disputes arising in their local community that were not otherwise dealt with well by the formal justice system.53 ese included neighbourhood disputes (oen referred to as ‘backyard [page 182] disputes’), family disputes, workplace disputes, school disputes and victim– offender matters. Neighbourhood or community justice centres were established to provide local DR services run by ordinary people drawn from the community, committed to empowering others to resolve matters according to community norms or their particular needs.54 Mediation was generally the chosen method of resolution, promising consensual decisionmaking without the controlling and expensive in uence of professionals, such as lawyers. 6.24 Community-based DR drew its inspiration from idealised notions of neighbourhoods and small-scale societies where a community of shared experiences and interests could be said to exist.55 e architects of neighbourhood justice supported replacement of: … the formality of the court with the informality of the neighbourhood, principles of law with general considerations of morality and shared responsibility, win or lose outcomes with compromises, and the coercion and authority of the state with the social pressures of the group or the community.56

Australian developments in community-based DR 6.25 As noted earlier in this chapter, community-oriented DR processes in Australia were originally used by Aboriginal Australians thousands of years ago. e introduction of community-based systems in the 20th century was effectively a reincarnation of age-old approaches to DR.

Nonetheless, it is conventional to begin an account of contemporary ADR with a discussion of community justice systems, and it is certainly true that community justice was a signi cant progenitor of the development of Australian DR. In uenced particularly by developments in the US, the New South Wales Government was the rst to engage with the idea of providing community-based DR through neighbourhood justice centres.57 In 1979 it set up a pilot project, involving the establishment of three Community Justice Centres (CJCs),58 and the state parliament enacted the Community Justice Centres (Pilot Project) Act 1980 (NSW) to govern the initiative. Aer a positive review, the CJC became a permanent [page 183] service under the Community Justice Centres Act 1983 (NSW) and it continues to present times.59 6.26 Other jurisdictions followed suit and there are now publicly funded or not-for-pro t community justice programs offering DR services in all Australian states and territories.60 ey include: e Con ict Resolution Service (Australian Capital Territory);61 Dispute Resolution Centres (Queensland);62 Dispute Settlement Centre (Victoria);63 Community Mediation Services (South Australia, Western Australia and Tasmania); e Community Justice Centre (Northern Territory);64 and e Aboriginal Mediation Service (Western Australia). 6.27 A key intention of all these services, whether operated by government or nongovernment agencies, is to contribute to ensuring access to justice for people who cannot otherwise afford to access the formal justice system, or whose issues are not suitable for that system. While continuing to deal with neighbourhood, family and workplace disputes, as well as minor civil and criminal matters, these organisations are also now dealing with, for example, child protection matters, interpersonal disputes involving technology and social media, and community disputes within committees,

clubs and incorporated associations. Some organisations also provide facilitation services for public interest and multi-party matters, and some offer speci c services or programs in the areas of Aboriginal and Torres Strait Islander mediation. 6.28 As has been noted, the community justice movement sought to establish an alternative paradigm of DR external to the formal justice system, with champions who supported an ideal of community decisionmaking and local and accessible DR mechanisms, both responsive to the needs of communities and empowering those [page 184] communities and the individuals within them.65 e reality of the operation of such services is that they also contribute to saving resources within the justice system by dealing with less serious matters, and freeing up the courts and police to focus their limited resources on more serious matters.66 6.29 e community justice movement has been a signi cant in uence in the history of Australian DR, and community-based programs continue to offer invaluable and much-needed DR services to the community. Prominent people in the Australian community DR movement, such as Wendy Faulkes, foresaw early on, however, that the fervour and enthusiasm for community justice would be hard to sustain,67 particularly given that the development of many programs has been dependent on state funding and government policy initiatives. Over time the historical importance of the community justice movement in Australia will probably be judged mainly as a positive in uence on, and catalyst for, the acceptance of non-adversarial DR methods more broadly in Australian society and their institutionalisation in the Australian legal system. 6.30 It may indeed be no exaggeration to say more broadly that the community justice movement has been overtaken by developments in reforms to the civil justice system. In the 21st century, DR is now signi cantly institutionalised and is increasingly attached — loosely or

rmly — to the formal justice system. e next section turns to consider how the history of civil justice reform has shaped Australian DR.

DR and civil justice reform in Australia 6.31 e civil justice reform agenda is the second key in uence on the development of DR in Australia. It is generally accepted that under the rule of law in Western liberal democracies the civil justice system is a public good which contributes to social and economic wellbeing, social order, the peaceful resolution of disputes and the protection of rights, and which provides a safeguard against arbitrary government action.68 e civil justice system is open and publicly accountable, and it plays a part in establishing and reinforcing civic values and norms.69 e system also supports economic activity, [page 185] because a strong system of laws provides a framework that is ‘pivotal to the functioning of markets’ and thriving economies are supported, for example, by ensuring the security of property rights and investments.70 6.32 e achievement of the public good of civil justice around the world has, however, long been plagued by struggles to overcome access to justice problems, the cost of the system and inefficiencies in its operation. It was rst thought that community justice programs, as discussed above, might contribute positively to addressing these issues — and they have to some extent. However, the need for reform of the civil justice system continues globally,71 and online developments are an important part of the adoption of new approaches.72 6.33 A tension in the civil justice reform project involves the appropriate place for private DR outside the court system, particularly as DR becomes more institutionalised over time. As with the arguments for DR in the community context, non-court processes are oen promoted in debates about civil justice reform as helping to save costs and resources for society,

as well as offering bene ts to individual disputants such as providing them with a level of autonomy in resolving their disputes, allowing them to resolve disputes informed by their own needs, interests and values, and potentially producing quicker results.73 However, counter-arguments to this position have been posited for decades. Abel and Resnik, for example, have long argued that informal justice has numerous shortcomings,74 such as a failure to uphold the legal rights and entitlements of parties in dispute, and Genn criticises the way that enthusiasm for DR as a panacea to shortcomings in the civil justice system in the UK has resulted in ‘official pressure to divert civil disputes to private DR, accompanied by a troubling anti-adjudication rhetoric’.75 [page 186] 6.34 International developments in civil justice policy provide important contexts for the institutionalisation of DR into the operations of the Australian legal system.76 ere is much interesting history that could be canvassed. However, as this is unfortunately beyond the scope of this work, the focus here is on two key historical events that signi cantly informed the shaping of civil justice reform in Australia and the institutionalisation of DR: rst, the Pound Conference in the US,77 and second, the Woolf Inquiry in the UK.78 6.35 e 1976 National Conference on the ‘Causes of Popular Dissatisfaction with the Administration of Justice’ held in St Paul, Minnesota, was a particularly pivotal event in the shaping of civil justice reform.79 is conference is known as the Pound Conference because it took its title from a paper presented by Roscoe Pound at the same location in 1906.80 e Pound Conference brought together judges, government officials, legal practitioners and academics, with a keynote presentation by the Chief Justice of the United States at the time, Warren Burger, in which he noted society’s dissatisfaction with litigation as a DR process. Burger said that litigation is ‘too costly, too painful, too destructive, too inefficient for a truly civilised people’.81 At the conference Professor Frank Sander famously

espoused a vision of American justice in which ‘courts have many doors’ leading to a range of process choices along the DR spectrum.82 6.36 One of the distinguishing features of the Pound Conference was that it sought to ‘undertake the long view’;83 that is, to see beyond the immediacy of speci c challenges in the administration of justice, in order to explore ‘future, broader problems that are developing, but less immediately pressing’.84 e practical impact of the conference was to generate, among the judiciary, court administrators, the legal profession and the legal academy, support for a stronger emphasis on ADR methods in the civil justice system. ADR was seen as offering a way of addressing the expense, inaccessibility and delay [page 187] associated with litigation, and as also offering a more holistic and humane approach to resolving disputes. 6.37 e standing of the Pound Conference as a signi cant in uence on the shaping of DR around the world is evident in the 2016–17 initiative of the International Mediation Institute. Named aer the original conference, the Global Pound Conference series aimed to improve ‘access to justice and the quality of justice around the world in civil and commercial con icts’.85 e series involved more than 36 events in 26 countries, under the banner: Shaping the Future of Dispute Resolution and Improving Access to Justice. Australia was one of the jurisdictions involved in the initiative. 6.38 As noted above and discussed in more detail below, Australia has been actively reforming its civil justice system to better integrate DR methods other than litigation for decades. Reform projects around the world have informed how Australia has shaped the institutionalisation of DR, and Australia’s approaches have also guided developments internationally.86 Another important international in uence on the shaping of DR’s institutionalisation in Australia was the Woolf Inquiry in the UK.87 In 1995 Lord Woolf was appointed to conduct a review of the civil justice system in England and Wales — the 63rd such review in 100 years.88 e Woolf

Inquiry began in 1994 as a project to produce a uni ed set of procedural rules for the High Court and County Courts but became a full review of a perceived ‘crisis’ in civil justice as a result of a 1995 survey by the National Consumer Council. at survey found that three out of four people involved in serious legal disputes were dissatis ed with the civil justice system, saying it was too slow, too complicated, unwelcoming and outdated.89 6.39 Lord Woolf ’s remit was to address the key problems of cost, delay and the complexity of accessing justice through the civil justice system. His recommendations covered a wide range of reforms, from judicial case management to greater cooperation and less adversarialism. ADR was named as central to the efficacy of the new system. As Genn states, the Final Report argued that: [page 188] … court proceedings should be issued as a last resort, that all cases should be settled as soon as possible, and that ADR should be tried before and aer the issue of court proceedings in order to achieve early settlement.90

6.40 Lord Woolf also noted, drawing on the input of Susskind, and as we highlighted in Chapter 1, that ‘technology would be a catalyst for radical change’.91 e report has been in uential internationally, cited in ongoing critiques of civil justice systems around the world.92

Australian developments in civil justice system reform 6.41 In the 2002 second edition of Dispute Resolution in Australia, Astor and Chinkin noted that ‘ADR is now to be found within the formal justice system which has adopted it and made it its own’.93 Since then this position has been further consolidated so that it is now fair to say that, although there is more that could be done, DR is now rmly institutionalised in the Australian civil justice system. 6.42 ere are a number of lenses through which the institutionalisation of DR in Australia’s civil justice system can be explored. First, there have

been numerous government reviews and reports recommending ADR as part of the answer to the problems experienced within the system. Second, there are certain areas of legal endeavour, such as commercial law, family law and industrial relations matters, where the institutionalisation of DR processes has long been part of their history. ird, as we noted in Chapter 1, the courts themselves have increasingly integrated DR into their operations, and the requirement that parties provide evidence to various courts of DR efforts before they are entitled to le proceedings is now more and more a part of the statute book. Finally, the institutionalisation of DR has occurred through the expansion of the civil justice system to tribunals and ombuds. 6.43 Government reviews and reports: Over the years there have been numerous reviews of the Australian civil justice system, and DR processes (other than litigation) almost always form part of their recommendations for effective and efficient reforms. For example, the 1994 Access to Justice Report produced by the Access to Justice Committee led by Ronald Sackville QC;94 the Justice Statement of May 1995;95 the 1999 [page 189] Australian Law Reform Commission’s (ALRC) Managing Justice Report;96 the Federal Civil Justice System Strategy Paper of 2003;97 and the 2009 NADRAC report: e Resolve to Resolve — Embracing ADR to Improve Access to Justice in the Federal Jurisdiction.98 is report noted, even in 2009, that: ADR remains signi cantly under-utilised in many areas, and its overall use can be patchy and idiosyncratic. ere is still very limited knowledge of ADR among the broader Australian community. Even where there is awareness of ADR, there appears to be a limited appreciation of different ADR processes, which is demonstrated by signi cant inconsistencies in how processes are described and understood.99

6.44 e report made in uential recommendations to encourage greater use of ADR systems and to increase awareness about ADR; for example, recommending the introduction of legislation requiring ‘genuine steps to be

taken by prospective parties to resolve the dispute before court or tribunal proceedings are commenced’.100 is recommendation resulted in the enactment of the Civil Dispute Resolution Act 2011 (Cth) which now requires pre-trial actions involving stronger efforts to settle matters.101 6.45 Further, in 2009 the Commonwealth Attorney-General’s Department also commissioned another Access to Justice Taskforce which produced A Strategic Framework for Access to Justice in the Federal Civil Justice System;102 and in 2014 the Productivity Commission published its report on Access to Justice Arrangements.103 6.46 Individual states in Australia have also undertaken initiatives around civil justice reform. In Queensland, for example, the Litigation Reform Commission, established following the 1991 Fitzgerald Inquiry, signi cantly in uenced the recognition of non-adversarial DR systems and oversaw their introduction into the Queensland courts and relevant civil procedure legislation and rules.104 For example, the Courts Legislation Amendment Act 1995 (Qld) provided for court-connected mediation and case appraisal [page 190] in all Queensland courts. Four years later, aer the Commission’s abolition, the Uniform Civil Procedure Rules 1999 (Qld) were introduced. Applying also to the three levels of Queensland courts, the Rules sought to support ‘just and expeditious resolutions of the real issues in civil proceedings at minimum of expense’ and were intended to avoid ‘undue delay, expense and technicality’.105 Similar legislation can be found now in all state jurisdictions. 6.47 In Victoria, the 2004 Justice Statement outlined directions for reform of Victoria’s justice system, such as making courts more accessible, improving the use of technology, increasing access to out-of-court DR and reforming the legal profession to be more efficient, accountable and responsive to legal consumers’ needs.106 e Victorian Law Reform Commission (VLRC) conducted a further review of access to justice in Victoria, releasing the report — Civil Justice Review — in 2008;107 and in

2016 the Victorian Government’s Access to Justice Review Volume 1 Report and Recommendations was published. 6.48 e achievement of an affordable, timely, fair and rigorous civil justice system is an ongoing project that still seems some time away for Western liberal democracies, including Australia. Nevertheless, the pathway for such a system has been rmly established with DR processes, and their values and goals, as a central feature. It should be remembered, however, that although the system as a whole has taken some time to reach this point, speci c areas of legal practice have long embraced methods other than litigation for the resolution and management of disputes. In the next section the institutionalisation of DR is considered through the lens of three speci c legal disciplines — commercial, family and industrial relations law. 6.49 DR in Australian legal practice: Although NADRAC’s Resolve to Resolve Report noted the need for a more consistent and less idiosyncratic use of ADR systems in the Australian civil justice system,108 it should be acknowledged that DR processes other than litigation have been used for many years in a number of areas of legal practice. is section illustrates that there is much continuity over time in terms of the implementation of DR approaches in elds such as commercial, family and industrial relations law. 6.50 e commercial sector has always been a signi cant user of alternatives to the formal justice system. It has used arbitration for many centuries and craed its own system of laws and procedures, known as the lex mercatoria, for use among merchants [page 191] and traders.109 ere is also now a signi cantly broader appreciation for and experience of other DR processes in commercial contexts. e use of DR processes and techniques by organisations such as the Australian Competition and Consumer Commission and the Australian Taxation Office have contributed to this, and there has been growth in the use of DR by small- and medium-sized business enterprises, in construction, mergers and acquisitions, restructuring, consumer disputes and complaints

handling.110 DR systems other than litigation have therefore become pervasive in many commercial law areas.111 6.51 Arbitration is probably the most notably continuously used DR process in the commercial context, having been employed in Australia since colonial settlement.112 In the 1970s and 1980s there were particular initiatives for the promotion of domestic and international commercial arbitration such as the introduction of the International Arbitration Act 1974 (Cth), the establishment of the Institute of Arbitrators Australia in 1975 (which provided a professional organisation for the development of an arbitral identity and for the training of arbitrators), and the passage of the uniform Commercial Arbitration Acts by all states from 1984 onwards, with the most recent versions introduced in 2010.113 International commercial arbitration has subsequently been promoted by the Australian Centre for International Commercial Arbitration which was opened in Melbourne in 1985, and also by the Australian Disputes Centre.114 [page 192] In 1990 the federal government established the International Legal Services Advisory Council (ILSAC) which contributed to developing Australia’s international commercial DR expertise and services. ILSAC was abolished at the same time as NADRAC in 2013 as part of efficiency measures. 6.52 In terms of family law, there has been a strong emphasis on the resolution of disputes by means other than litigation since the inception of the Family Court of Australia in 1975. Before that court was established there had been signi cant criticism of the ‘legalistic procedures which face married couples should they turn to the law to resolve their interpersonal problems’.115 e new court was designed to be a ‘helping court’ with active pre-divorce and post-divorce counselling facilities to assist, where appropriate, with the reduction in DR processes of bitterness and distress and the alleviation of ongoing post-separation problems.116 Members of the court’s judiciary were chosen for their experience and understanding of family problems. Judges sought to develop a new type of court where they

would act with a minimum of formality, coordinating the work of ancillary specialists, encouraging conciliation and only applying the adjudicative powers of the court as a last resort.117 e new Family Court judge was intended not to be a counsellor but ‘should control proceedings, advance optional solutions and create the “climate” for settlement’.118 6.53 e Family Court and its legislation are two of the most reviewed areas of legal practice in Australia.119 e family law jurisdiction is a very difficult one to get right from a policy perspective and the court is oen a point of focus for people unhappy with the system or angry about a particular outcome for their own matter. e court has not been able to ful l all of the initial intentions for it, but it has always utilised a range of DR methods with a strong emphasis on counselling and conciliation. is emphasis was embodied in the Family Law Act 1975 (Cth) and has been maintained and developed, with the DR provisions of the Act expanded and forti ed considerably since 1975. For example, in 1995 new provisions renamed ADR as ‘Primary Dispute Resolution’ (PDR),120 meaning that mediation, conciliation and counselling were to be regarded as the rst and predominant methods of resolving family law disputes, [page 193] with litigation recognised as the exception rather than the norm. e most recent and signi cant developments in relation to the institutionalisation of DR in the family law system were introduced by amendments to the Act in 2006.121 ese amendments, among other things, encourage more cooperative parenting aer separation, and have created an even greater shi of focus from court action to DR methods. In particular there is a preling requirement for evidencing efforts through Family Dispute Resolution to resolve parenting matters before proceedings can be initiated in the court.122 6.54 On 1 September 2021, the Family Court of Australia and the Federal Circuit Court were merged into the Federal Circuit and Family Court of Australia. e website for the new court states that it ‘provides a modern,

transparent and more efficient system of justice aimed at assisting parties through the process as safely quickly and fairly as possible without undue cost and delay. e court will continue to embrace innovation and technology to operate on a truly national basis. In particular, we aim to change the culture and conversation around family law litigation’; and it also states that ‘Court proceedings should be a last resort. e court expects people to make genuine attempts to engage in dispute resolution, to avoid the time, cost and stress associated with litigation’.123 e court is offering a new court-based family dispute resolution (FDR) conferencing process and it is anticipated that orders to attend such conferences will be made increasingly frequently. In addition, stronger requirements for pre-action genuine steps to be taken to resolve matters have been introduced.124 [page 194] 6.55 Industrial relations law is another area of legal practice that illustrates the continuity of DR in Australia.125 Conciliation has been used to deal with industrial relations disputes in Australia for more than a century.126 At federation the Commonwealth Parliament was given power ‘to make laws … with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’.127 Conciliation emerged over time to become central to the operation of federal industrial relations, both in the formation of industrial awards and agreements and in the resolution of disputes.128 In the latter context, conciliation was used closely in tandem with arbitration. Parties were strongly encouraged to reach agreement, but where they could not, the industrial arbitrator would make a decision. Enterprise bargaining, union amalgamations, internal disputes within unions, employment disputes involving senior executives and certain matters under state industrial legislation have all contributed to increased institutionalisation of DR in the industrial arena.129

Institutionalisation of DR through the courts

6.56 Courts at both federal and state levels now use DR in many different ways. When court-connected schemes were rst introduced they oen involved temporary initiatives designed to reduce court lists by dealing with classes of cases deemed suitable for mediation or some other DR process. For example, to tackle backlogs of civil [page 195] cases, ‘Settlement Weeks’ (which involved a concentrated effort to settle cases using negotiation and mediation) were introduced in New South Wales and Queensland,130 with similar programs in Victoria. ‘Law Week’ now occurs nationally every year and is oen used as an opportunity to discuss and promote awareness about the various DR systems available for the resolution of legal disputes. 6.57 As discussed in Chapter 1, all courts now have the power to refer matters to DR processes such as mediation and case appraisal, although debates continue about the propriety of mandating cases for mediation and the appropriate criteria for referral.131 Nonetheless, the extension of nonlitigation DR processes to the operation of the courts is one of the most striking and signi cant developments in DR’s recent history.132 6.58 It is beyond the scope of this chapter to detail the statutory authority for ways in which DR is integrated into all courts within the Australian courts system, but the Federal Court provides a good illustration. Both the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 provide the basis for referrals of matters by the Court to ‘assisted dispute resolution’, including predominantly mediation, arbitration and conferences of experts.133 Further, the Civil Dispute Resolution Act 2011 (Cth), mentioned above, was enacted to ensure that parties at the federal level take ‘genuine steps’ to resolve disputes before civil proceedings are instituted.134 As the then Attorney-General Robert McClelland explained in the Second Reading Speech for the legislation: the Act does not intend to displace courtreferred alternative DR; rather, the intention is to encourage parties ‘to genuinely negotiate before commencing litigation’ and to

[page 196] ‘genuinely turn their minds to what they can do to attempt to resolve the matter’.135 e then Victorian Attorney-General Robert Clark said similarly in the Second Reading Speech introducing the Civil Procedure and Legal Profession Amendment Act 2011 (Vic) ‘it is common sense and good practice for parties to attempt to resolve their dispute: without resorting to litigation if there is a reasonable prospect of success in such an attempt’.136

Institutionalisation of DR through tribunals and ombuds 6.59 An additional signi cant development in the institutionalisation of DR in the Australian civil justice system is the increasing use of DR processes in the context of tribunals and ombuds offices. 6.60 A number of tribunals have been established to deal with a wide range of disputes outside the courts.137 While many of these tribunals have the core aim of providing expert or specialist decision-making, additional aims generally also include the provision of cheap, accessible, informal and non-adversarial justice. For example, the objectives of the Administrative Appeals Tribunal administered pursuant to the Administrative Appeals Tribunal Act 1984 (Cth) are to have: … an independent Tribunal to review administrative decisions … in an informal and expeditious manner; and permit a broad range of persons whose interests are affected by a decision to participate in a proceeding.138

6.61 Tribunals were once considered ‘alternative’ forums in the civil justice system but are now well integrated into it, along with a range of nonadversarial procedures such as preliminary conferences, directions hearings and conciliation.139 For example, procedures in discrimination disputes provide for recourse to conciliation before [page 197] matters proceed to tribunal hearing,140 and the National Native Title

Tribunal has a strong focus on mediation.141 It is becoming almost routine for new statutory schemes which establish tribunals or agencies to provide for non-adversarial approaches within their procedures. All the ‘super tribunals’, such as the Victorian Civil and Administrative Tribunal (VCAT),142 the Queensland Civil and Administrative Tribunal (QCAT), and the State Administrative Tribunal (SAT) in Western Australia,143 have less adversarial processes embedded into their procedures. By way of example, QCAT combined 18 tribunals and 23 jurisdictions into a single super tribunal in 2010. Section 4(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) relating to the tribunal’s functions says that to achieve the objects of the Act the Tribunal must: ‘encourage the early and economical resolution of disputes before the tribunal, including, if appropriate, through alternative dispute resolution processes’. e creation of super tribunals around Australia has been identi ed as one of the most important structural reforms in the civil justice system and in administrative justice.144 6.62 In Australia, ombuds institutions have been used since the 1970s to deal with complaints by individuals against various state instrumentalities.145 e Office of the Ombudsman in Western Australia was the rst ombuds established in Australia, championed by the then Premier John Tonkin through the Parliamentary Commissioner Act 1971 (WA). As well as the Commonwealth Ombudsman there are now ombuds for each state and the Northern Territory. e Productivity Commission reported in 2014 that ombuds offices in Australia resolve more than threequarters of a million (773,000) disputes each year.146 [page 198] 6.63 Parliamentary ombuds have general jurisdiction over government departments, and some have specialist jurisdiction (such as health services or police). While the precise powers of each ombuds office vary, the general role of an ombud is to investigate complaints against government agencies, and to contribute to improving public administration.

6.64 Ombuds ascertain whether an allegation of maladministration can be made out, and if so, they then make recommendations for appropriate redress. e power of the ombuds office lies in its independence and impartiality in conducting investigations into government departments and its willingness to make recommendations.147 As the Commonwealth Ombudsman has said of the office: In reality, we are leaders in building better public administration. We have a critical place between government and the public, and we are a safety net for members of the community. Ombudsman schemes are an integral part of a framework that provides access to justice, to consumers as well, and we contribute signi cantly to the standards of public administration. We promote good governance, accountability and transparency through oversight of government administration and service delivery.148

6.65 ere is also an ongoing trend towards the greater use of ombuds to deal with complaints in speci c industries. For example, private industry ombuds exist for the telecommunications, energy and water, nancial services, insurance, public transport, and produce and grocery industries. ese ombud schemes investigate complaints from customers about companies within the industry, according to the requirements of their constitution. e industry members establish and fund the scheme, which usually charges industry members according to the number and perhaps in addition, or in the alternative, in relation to the complexity of the complaints it receives.149

The people and organisations of non-adversarial DR in Australia 6.66 e history of DR in Australia is a narrative of visionary people, their commitment to effective, humane and efficient DR, and their impact on practice. Another important element in considering the development of DR in the Australian legal system, in [page 199] industry and in the broader Australian community over time, has been the

range of bodies and organisations advocating for non-adversarial DR approaches, in uencing DR policy and supporting the development of the community of DR practitioners. It is not possible to provide tributes to all the signi cant people or organisations behind the shaping of Australian DR. e brief and limited exploration of this element of DR history therefore focuses on the following key bodies: NADRAC and the Australian Dispute Resolution Advisory Council (ADRAC), e Resolution Institute, the Bond Dispute Resolution Centre and the Australian Disputes Centre. e Mediator Standards Board is also an important DR organisation and is considered in more detail in Chapter 13 on DR ethics. Other organisations that are also signi cant include the National Mediation Conference and the Australian Dispute Resolution Association.150

NADRAC and ADRAC 6.67 As a result of the 1994 Access to Justice Advisory Committee’s Report,151 discussed above, NADRAC was established in 1995 as an independent advisory council to the Commonwealth Attorney-General on matters relating to ADR. e inaugural Chair was Professor Hilary Astor, Abbot Tout Professor of Dispute Resolution at the University of Sydney and author (with Christine Chinkin) of the works that preceded this book. Between 1995 and 2013, NADRAC provided the Federal Attorney-General with ‘policy advice on the development of high quality, economic and efficient ways of resolving disputes without the need for a judicial decision’.152 Issues within the remit of the Council’s advisory role included: ADR process standards, training and quali cation requirements, the suitability of ADR processes, professional disciplinary mechanisms, evaluation of the quality, integrity, accountability and accessibility of ADR services and programs, programs to enhance awareness of ADR services, the need for data collection and research on ADR, and the use of ADR processes to manage case ows within courts and tribunals.153 6.68 NADRAC was a policy advisory body and not a peak organisation, standards setting agency or implementation body. Nevertheless, during NADRAC’s tenure there was no other viable peak body for non-adversarial DR organisations providing a national voice on ADR for government.

Although other ADR organisations and bodies existed (such as LEADR, IAMA and the National Mediation Conference), arguably none had the breadth and depth of representation and expertise across ADR elds that existed within NADRAC. So as ADR became increasingly integrated, across the 1980s, 1990s and 2000s, into the operations of Australia’s legal system and the community [page 200] more broadly at both state and federal levels, NADRAC became the leading source of independent advice to government,154 its representative and independent character making it uniquely placed to promote ADR in Australia and contribute to access to justice in the Australian legal system. 6.69 Importantly, NADRAC received bipartisan political support, with both Labor and the Coalition governments recognising the signi cance of its expert advice as more and more federal funds were devoted to ADR services.155 NADRAC played a critical role in ensuring that these public funds were expended wisely on government DR services, as well as attending to the quality and efficiency of those services, and that the needs of vulnerable people were protected in their operations. 6.70 One of NADRAC’s most important contributions to contemporary DR in Australia was through its research and publications. As noted earlier, NADRAC’s library of around 45 reports, papers and guides made a signi cant contribution to Australia’s DR literature on topics such as: de nitions of ADR processes, DR in family law, issues of fairness and justice in DR, and the development of standards for DR. NADRAC’s research and position on standards for ADR played a central role in informing the creation of the National Mediator Accreditation System (NMAS) and the Mediator Standards Board (MSB). NADRAC’s published work continues to be an important resource in Australia. 6.71 As has been mentioned earlier in this book, in November 2013 the Australian Government, to the surprise and consternation of everyone in the DR community, announced the abolition of NADRAC, saying that its

functions would be absorbed into the federal Attorney-General’s Department. e decommissioning of NADRAC was said to be part of the newly elected Liberal Government’s delivery of its ‘election commitment to reduce the cost of unnecessary and inefficient regulation on business and the community by at least $1 billion each year’.156 However, as Becky Batagol (writing for the ADR Research Network Blog) argued shortly aer the announcement was made, the intention to achieve streamlining in government and reduce duplication through the abolition of bodies such as NADRAC was a misguided ‘dumb decision’.157 As Batagol said at the time: e work of NADRAC is unique in Australia in working towards a high quality, accessible, integrated federal ADR system. Its role cannot be adequately replaced by individual

[page 201] players within the justice system, either the courts, tribunals, dispute resolution practitioners, lawyers, academics or even the Attorney-General’s Department.158

6.72 e abolition of NADRAC was certainly short-sighted and a false economy, especially given the ongoing dilemmas with access to justice issues and the cost of litigation in the Australian legal system. Had it been retained, NADRAC could have continued to promote appropriate, high-quality DR as part of the changing imperatives of the Australian legal system and the realities facing the delivery of effective and efficient legal services in the 21st century. As Batagol lamented: ‘ere are serious questions about the direction of Australia’s civil justice policy. e demise of NADRAC means we have less independent, reliable information and advice to help answer those questions’.159 6.73 In 2015 some of the former members of NADRAC, including its nal Chair Jeremy Gormly SC, established the Australian Dispute Resolution Advisory Council (ADRAC) to succeed and adapt the functions of NADRAC. ADRAC was incorporated in April 2015.160 e mission of the new autonomous council according to its current charter is to: (a) Undertake inquiry, thought and the provision of information on managing and

resolving disputes, with an emphasis on alternative/assisted dispute resolution (ADR); (b) Promote knowledge, understanding and use of ADR mechanisms, principles and values; (c) Play a leading role in the development and promotion of appropriate methods of resolving and managing disputes, including through the use of ADR mechanisms, principles and values; (d) Monitor ADR-related internationally;

developments

and

techniques

nationally

and

(e) Work cooperatively with other organisations with similar objects.161

6.74 ADRAC is an important and positive development, illustrating the dedication, commitment and tenacity of DR leaders in Australia. e DR community continues to wait for news from government about the provision of funding for ADRAC in similar terms to NADRAC, or in the alternative for the full recommissioning of NADRAC itself. [page 202]

The Resolution Institute 6.75 e Institute of Arbitrators and Mediators (IAMA) was founded in 1975, with the objectives of promoting and facilitating the settlement of disputes by arbitration and other forms of non-curial DR. IAMA provided services and training in DR processes, including arbitration, mediation, conciliation, adjudication and expert determination. As a membership organisation it also provided communication between arbitrators, mediators and other dispute resolvers on matters of common interest and conducted certi cation programs for admission to professional membership of the Institute. 6.76 LEADR originally stood for Lawyers Engaged in Alternative Dispute Resolution but subsequently dropped the lawyer reference and became an acronym in its own right. It became one of Australia’s leading national organisations engaged in DR education, training and service provision. LEADR was established as a result of a conversation at a ‘hotel breakfast

table on a rainy morning in Melbourne in early 1988’.162 For many years LEADR’s vision was focused on its identity as an association of and for lawyers, ‘serving the community by promoting and facilitating consensual dispute resolution, and acting as an agent of change in re-de ning the role of lawyers as professional problem solvers by being at the cutting edge of ADR’.163 LEADR was one of the key providers of DR training and professional development in Australia. It subsequently broadened its scope to also promote the services of dispute resolvers other than lawyers. 6.77 In 2014, LEADR and IAMA merged as a not-for-pro t organisation with more than 4000 members in Australia, New Zealand and the AsiaPaci c region. e new organisation was named e Resolution Institute, representing and supporting a community of mediators, arbitrators, adjudicators, restorative justice practitioners and other DR professionals.164 e Resolution Institute: keeps members informed through its website, newsletter and events; develops the skills of DR practitioners through high-quality mediation training and accreditation as a Registered Mediation Accreditation Body (RMAB); supports state and regional chapters and special interest groups; promotes the use of mediation and DR to prevent, manage and resolve con ict and disputes in businesses, workplaces, families and communities; provides a voice for DR practitioners; and assists organisations to develop effective DR processes. [page 203]

The Bond University Centre for Dispute Resolution 6.78 Sydney University was the rst tertiary institution to begin teaching in the DR eld, with the Law School offering an ADR elective as an academic subject from the late 1980s. Over the next two decades many universities, predominantly but not exclusively through their law schools, began offering undergraduate and postgraduate subjects in DR elds, and in

some cases dedicated Master of Dispute Resolution degrees.165 For the most part, these were academic subjects with some skills training also offered. 6.79 e new Faculty of Law at Bond University introduced DR electives from the inception of its programs and in 1989 established the Dispute Resolution Centre (DRC) for professional development training and education.166 Over the next decades the DRC developed a national reputation for training, teaching and research, offering courses, workshops and seminars throughout the country. ese have covered basic, advanced and specialist mediation and con ict management courses leading to NMAS accreditation, and also short courses in FDR which allow successful participants to be registered as FDRPs through the Federal AttorneyGeneral’s Department. e DRC has also conducted courses in other jurisdictions, such as New Zealand and Hong Kong, and consulted to government and the private sector domestically and abroad. 6.80 While the focus of the DRC has been mainly on professional development programs, it also convenes conferences and its members publish widely. To be renamed the Bond Centre for Dispute Resolution in 2022, the Centre has launched an LLM in FDR and a new journal — the Dispute Resolution Review. Other universities, such as the University of Western Australia in Perth, have also established DR centres, and in some cases these are Recognised Mediator Accreditation Bodies (RMABs) under the NMAS. Bodies such as the DRC bene t from their place within scholarly institutions and continue to be well recognised in the DR community.

Australian Disputes Centre (ADC) 6.81 e ADC was rst established as the Australian Commercial Disputes Centre (ACDC) in 1986 by the then New South Wales AttorneyGeneral, Terry Sheahan, and the Honourable Sir Laurence Street, Chief Justice of the New South Wales Supreme Court from 1974–88.167 e aim of the ACDC was to encourage the use of non-curial DR processes in Australia. It was one of the rst ADR providers in the country [page 204]

and became recognised for the provision of DR services in business, government and legal communities, working in cooperation with other ADR organisations. In 2003 it developed a Memorandum of Understanding with the Australian Centre for International Commercial Arbitration (ACICA), and also took on responsibility for the secretariat functions of the Australian branch of the Chartered Institute of Arbitrators (CIArb). e ACDC became the nominated authority for a variety of industry dispute schemes, including the Credit Ombudsman Service (previously the Mortgage Industry Ombudsman Scheme) and the Credit Union Dispute Resolution Centre. In 2010 the ACDC extended its operations internationally as the Australian International Disputes Centre (AIDC) promoting Australia as a viable seat for international arbitration. 6.82 In 2015 the ACDC and AIDC responded to the demands of increased globalisation by integrating their domestic and international services and becoming the Australian Disputes Centre (ADC). e ADC is a DR service provider that seeks to advance the practice and quality of DR services such as mediation, conciliation and arbitration in Australia and internationally.168 e mission of the ADC is ‘to provide an ADR centre of excellence that is the rst choice for Australian and international organisations and individuals seeking to resolve, or learn how to resolve, con ict and disputes’.169

Shaping the future of DR in Australia 6.83 is brief thematic account has acknowledged both the historical shaping of DR in Australia, as well as the in uence of international developments. A knowledge of the history of DR in Australia informs an understanding of what works and what elements of DR constitute the foundations of effective contemporary practice. Learning from this history can inform the future of DR practice and lawyering, clarifying why DR holds the key to the future sustainability of the legal profession. 6.84 In terms of the themes explored in this chapter, there are a range of learnings that can be applied to assist in scoping out the future of Australian DR. For example, Australia’s Indigenous DR history tells us that we must challenge some of the established norms of non-adversarial DR processes,

such as the current assumptions found in traditional ethical and procedural approaches. It also suggests that we need to attend more thoroughly in the future to participant diversity, and focus on the importance of community and relationships and the use of DR to protect them where possible. is requires lawyers and DR practitioners to understand and challenge some of their own cultural perspectives and the possible norms, prejudices and stereotypes that may exist among them. [page 205] 6.85 We learn from the history of community mediation that many of the foundational aspirations of non-curial DR practice as an alternative to litigation, and as a mechanism for the empowerment of the citizenry, still have efficacy. And yet we also learn from the way in which community mediation has to some extent been overtaken by the institutionalisation of DR in the legal system that the traditional approaches of community mediation, such as the facilitative mediation model, are imperfect, particularly for the resolution of legal disputes for which parties may need and call for higher levels of advice and support than the facilitative model strictly allows.170 Positively, the history of community mediation reminds us of the value of multidisciplinary practice and that DR is not the domain of just one profession. In the future, DR practice, lawyering and legal practice will all bene t from increased cross-disciplinary collaboration. Further, we learn from community DR that individuals and parties in dispute can be educated and empowered to prevent disputes and better manage and resolve less complex matters. DR education will be an important part of primary and secondary schooling in the future,171 and universities will integrate DR education into the core requirements of a range of undergraduate degrees, not least of which will be the law degree. 6.86 From the history of reforms to the civil justice system we learn that DR has an important ongoing role in, and is central to, an integrated civil justice system that is effective and efficient. Non-litigation forms of DR are clearly necessary for the efficacy of the operation of such systems in Western liberal democracies and the full range of processes on the DR matrix will

increasingly be harnessed. is history also warns us of the tenacity of adversarial culture and perspectives and that more must be done, particularly within the legal profession, to alter the dominant culture that continues to privilege adversarialism.172 is cultural change will require constructive dialogue between the legal academy and the legal profession so that, beginning at law school, a more comprehensive and wide-ranging form of advocacy can be inculcated into legal education, into legal practice in general and more speci cally into the practice of all processes on the DR matrix. We know from the history of civil justice reform that legal systems are slow to change. However, increasing levels of DR competence must continue to be integrated into day-to-day legal services (both transactional and DR practice) and also into the institutions of the law, and particularly the courts — systematically and consistently. 6.87 From the specialist areas of law, we learn that DR has a longestablished record of working well to produce responsive and effective outcomes and that this record can be used to support the cultural change that the history of the civil justice system highlights as necessary. We also learn that non-litigation DR approaches are what clients oen need and want, but that they also want higher levels of advice and support in such [page 206] approaches. e importance of market theory — of supply and demand — will have a strong in uence on developments in the future. And from the history of the people and organisations of DR in Australia we learn that robust advocates and communities of practice are necessary for a sustainable DR profession and for DR to operate with efficacy in the practice of law. 6.88 e future of DR will undoubtedly involve increased institutionalisation, specialisation, professionalisation, legalisation and regulation.173 Innovation in DR will follow a largely evolutionary path and private entrepreneurialism will extend the scope of DR practice into the areas of con ict prevention, complaints handling, coaching, disputes management and problem-solving. Online dispute resolution (ODR) is

already familiar and becoming increasingly sophisticated in the way that it is used, but new technologies and social networking systems will continue to rapidly change the processes and procedures of DR, and approaches to dialogue and discourse (see Chapter 12).174 ere will be greater recognition of diversity in the operation of DR and its practice is likely to become borderless as jurisdictional boundaries bend. e legal profession, as is said many times throughout this work, will need to catch up with the demands of industry and clients and provide the sorts of DR services for which they call.

Conclusion 6.89 is chapter has offered a brief thematic history of DR to show how some traditions have continued and how others have been broken, or need to be broken, while still others guide us to new pathways. e chapter seeks to provide a logical connection across different themes and contexts, and through time, exploring what we know of Australian DR today and how DR and legal practitioners can actively and constructively contribute to shaping what is to come. 6.90 An understanding of the linkages between past, present and future is a basic requirement for functional literacy in any discipline or profession. Indeed, the history of DR explored in this chapter informs this entire work. Ultimately, the history of DR (and the practice of DR and law) features the stories of people played out in context. With the narrative of the development of Australian DR in mind, the DR community can look to shaping the future of the DR profession. 1.

is chapter draws in some instances directly from the second edition of Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths, 2002). See also generally Leib Leventhal, ‘e Foundation and Contemporary History of Negotiation eory’ (2006) 17(2) Australasian Dispute Resolution Journal 70; Sarah Hilmer, ‘Mediation in the People’s Republic of China: History and Recent Developments’ (2010) 21(2) Australasian Dispute Resolution Journal 104; Grant Morris, ‘Towards a History of Mediation in New Zealand’s Legal System’ (2013) 24(2) Australasian Dispute Resolution Journal 86.

2.

See, eg, Christine McCarthy, ‘Can Leopards Change eir Spots? Litigation and Its

Interface with Alternative Dispute Resolution’ (2001) 12(1) Australasian Dispute Resolution Journal 35; Brendan French, ‘Dispute Resolution in Australia — e Movement from Litigation to Mediation’ (2007) 18(4) Australasian Dispute Resolution Journal 213. 3.

See, eg, Hans Julius Wolff, ‘e Origin of Judicial Litigation Among the Greeks’ (1946) 4 Traditio 31; Stephen C Yeazell, ‘Group Litigation and Social Context: Toward a History of the Class Action’ (1977) 77(6) Columbia Law Review 866; Lawrence M Friedman, ‘Litigation and Society’ (1989) 15(1) Annual Review of Sociology 17; Lawrence M Friedman and omas D Russell, ‘More Civil Wrongs: Personal Injury Litigation, 1901-1910’ (1990) 34(3) American Journal of Legal History 295; Christopher Brooks and Michael Lobban (eds), Lawyers, Litigation & English Society Since 1450 (A&C Black, 1998); Vincy Fon and Francesco Parisi, ‘Litigation and the Evolution of Legal Remedies: A Dynamic Model’ (2003) 116(3) Public Choice 419; Ronald KL Collins, ‘Litigation Scholarship’ (2013) University of Washington School of Law Research Paper 2013–22.

4.

Valerie A Sanchez, ‘Towards a History of ADR: e Dispute Processing Continuum in Anglo-Saxon England and Today’ (1996) 11(1) Ohio State Journal on Dispute Resolution 1.

5.

Edward H Carr, What is History? (Cambridge University Press, 1961) 69.

6.

See, eg, Jerome Barrett (with Joseph Barrett), A History of Alternative Dispute Resolution: e Story of a Political, Cultural and Social Movement (Jossey-Bass, 2005). See also Boulle’s review of this work: Laurence Boulle, ‘A History of Alternative Dispute Resolution’ (2005) 7(7) ADR Bulletin 1 where he said: ‘Ultimately texts such as these provide a big picture of the emergence and maturity of ADR, with interesting illustrations and anecdotes … constituting a useful source of reference’. In Astor and Chinkin’s two editions of Dispute Resolution in Australia, the history of DR was bound together with both the context and theory of DR.

7.

See, eg, Pauline Collins, Dalma Demeter and Susan Douglas, Dispute Management (Cambridge University Press, 2021).

8.

See also Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014).

9.

See Loretta Kelly et al, ‘Legal Practitioners Working More Effectively with Aboriginal Clients: Promising New Cultural Competency Training by Legal Aid NSW’ (2013) 8(5) Indigenous Law Bulletin 3. See also, eg, Alex Ackfun, ‘Aboriginal Mediation: A Personal Perspective’ (1993) 1 Qld ADR Review 2; Christine Nolan, ‘ADR in Aboriginal and Islander Communities: e CJP’s Experience’ (1993) 2 Qld ADR Review 8; Peter Grose, ‘Towards a Better Tomorrow: A Perspective on Dispute Resolution in Aboriginal Communities in Queensland’ (1994) 5(1) Australian Dispute Resolution Journal 28; Marg O’Donnell, ‘Mediation within Aboriginal Communities: Issues and Challenges’ in Kayleen Hazlehurst (ed), Popular Justice and Community Regeneration (Praeger Press, 1995); Kurt Noble, ‘Mediating with Aboriginal Families: Workshop Conference Paper’ (Paper presented at the 3rd National Conference on

Family Mediation, Sydney, 1995); Mick Dodson, ‘Power and Cultural Difference in Native Title Mediation’ (1996) 3(84) Aboriginal Law Bulletin 8; Karen Pringle, ‘Aboriginal Mediation: One Step Towards Re-Empowerment’ (1996) 7(4) Australian Dispute Resolution Journal 253; Scott Beattie, ‘Is Mediation a Real Alternative to Law? Pitfalls for Aboriginal Participants’ (1997) 8(1) Australian Dispute Resolution Journal 57; Loretta Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’ (2002) 5(14) Indigenous Law Bulletin 7; Linda Fisher, ‘“Healing rough Yarning”: Training Issues in an Indigenous Family Mediation Program’ (2003) 14(2) Australasian Dispute Resolution Journal 105; National Alternative Dispute Resolution Advisory Council (NADRAC), Indigenous Dispute Resolution and Con ict Management (Commonwealth of Australia, 2006); Loretta Kelly, ‘Community Mediation Services: Towards Good Practice Mediation for Aboriginal People’ (2006) 8 ADR Bulletin 189; Loretta Kelly, ‘Elements of a “Good Practice”: Aboriginal Mediation Model: Part 1’ (2008) 19(3) Australasian Dispute Resolution Journal 198; Loretta Kelly, ‘Elements of a “Good Practice”: Aboriginal Mediation Model: Part II’ (2008) 19(4) Australasian Dispute Resolution Journal 223; Larissa Behrendt and Loretta Kelly, Resolving Indigenous Disputes: Land Con ict and Beyond (Federation Press, 2008); Toni Bauman and Juanita Pope (eds), Solid Work You Mob Are Doing: Case Studies in Indigenous Dispute Resolution and Con ict Management in Australia (Federal Court of Australia, 2009); Mary Graham, Morgan Brigg and Polly O Walker, ‘Con ict Murri Way: Managing through Place and Relatedness’ in Morgan Brigg and Roland Bleiker (eds), Mediating Across Difference Oceanic and Asian Approaches to Con ict Resolution (University of Hawaii Press, 2011) 75; Phil Venables, Report on its Development, Implementation and Transition to Community Management 2012: Working Towards a Mediation Model, Responsive to the Needs of Extended Families in Discrete, Remote Aboriginal Communities in Queensland (Dispute Resolution Branch, 2012); Karine Hamilton and Pamela Henry, ‘FDR in Prisons: Meeting the Needs of Aboriginal Clients’ (2013) 24(4) Australasian Dispute Resolution Journal 224; Neha Sharma, ‘Mirror, Mirror on the Wall, Is ere No R(e)ality in Neutrality Aer All? Re-thinking ADR Practices for Indigenous Australians’ (2014) 25(4) Australasian Dispute Resolution Journal 231; Susan Medway, ‘Con ict Coaching in Indigenous Australian Settings — Sharing the Lessons from Mediation’ (2015) 26(1) Australasian Dispute Resolution Journal 38; Peter Condliffe, Con ict Management: A Practical Guide (LexisNexis Butterworths, 5th ed, 2016) 231–9; Morgan Brigg et al, ‘Gununa Peacemaking: Informalism, Cultural Difference and Contemporary Indigenous Con ict Management’ (2018) 27(3) Social & Legal Studies 345; Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108; Rachael Asher, ‘Unresolved Injustice: An Examination of Indigenous Legal Issues in Australia’ (2020) 4(2) Udayana Journal of Law and Culture 146. e focus in this section is limited to Australia’s Aboriginal people and their history of DR. See also, eg, for perspectives beyond Australia, Karen Drake, ‘Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation’ (2020) 48(4) Federal Law Review 570;

Habeeb Abdulrauf Salihu, ‘Possibilities for the Incorporation of African Indigenous Procedures and Mechanisms of Dispute Resolution in the Administration of Criminal Justice in Nigeria’ (2020) 23(4) Contemporary Justice Review 354; Nokukhanya Ntuli, ‘Africa: Alternative Dispute Resolution in a Comparative Perspective’ (2018) 22 Con ict Studies Quarterly 36. 10.

David Spencer has referred to 40,000 years of consensual Aboriginal problem-solving — see David Spencer, ‘Mediating in Aboriginal Communities’ (1997) 3 Commercial Dispute Resolution Journal 245. See also Larissa Behrendt, Aboriginal Dispute Resolution (Federation Press, 1995); Behrendt and Kelly, (n 9).

11.

ALRC, Aboriginal Customary Law and the Substantive Criminal Law, Research Paper No 6 (1982) 34–6. See also Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (Federation Press, 2003); Larissa Behrendt et al, Aboriginal and Torres Strait Islander Legal Relations (Oxford University Press, 2019); Larissa Behrendt, Indigenous Australia for Dummies (John Wiley & Sons, 2021).

12.

e colonisers failed to recognise all aspects of Aboriginal social ordering, leading them to perceive the territory as unoccupied and to introduce their own law: see Mabo v Queensland (No 2) (1992) 175 CLR 1.

13.

Behrendt and Kelly, (n 9) 86.

14.

Ibid 86–92. See also NADRAC, (n 9).

15.

Behrendt and Kelly, (n 9) 96.

16.

Ibid 93. See also Ronald Berndt and Catherine Berndt, e World of the First Australians: Aboriginal Traditional Life — Past and Present (Aboriginal Studies Press, 1988).

17.

Behrendt and Kelly, (n 9) 94. See also NADRAC, (n 9).

18.

Behrendt and Kelly, (n 9) 94.

19.

Ibid 94–5. See also Peggy Brock (ed), Women, Rites and Sites: Aboriginal Women’s Cultural Knowledge (Routledge, 2020).

20.

Berndt and Berndt, (n 16) 348.

21.

Astor and Chinkin, (n 1) 12–13 referring to ALRC, (n 11) 34–6.

22.

See Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’, (n 9).

23.

See, eg, Sharma, (n 9).

24.

See Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’, (n 9) 8.

25.

Dodson, (n 9) 8.

26.

Ibid. See also Kevin Dolman, ‘Native Title Mediation: Is it Fair?’ (1999) 4(21) Indigenous Law Bulletin 8; Craig Jones, Aboriginal Boundaries: e Mediation and Settlement of Aboriginal Boundary Disputes in a Native Title Context, National Native

Title Tribunal Occasional Paper Series — No 2/2002 (Research Unit of the National Native Title Tribunal, 2002); Geoff Clark, ‘Mediation Under the Native Title Act 1993 (Cth): Some Structural Considerations’ (2003) 9 James Cook University Law Review 74; Chris Davies, ‘Native Title in Queensland Twenty-Five Years Post-Mabo’ (2017) 23 James Cook University Law Review 103. 27.

See, eg, the following statement on the Queensland Government’s website : ‘Mediation is more in tune with the traditional ways of settling disputes in Aboriginal and Torres Strait Islander communities than the legal and criminal justice system. Mediation helps communities: keep ownership of disputes, use elements of customary law and practice, nd solutions that are in keeping with their cultural values’.

28.

Dodson, (n 9) 8. See also Harry Hobbs, Indigenous Aspirations and Structural Reform in Australia (Bloomsbury Publishing, 2021).

29.

Morgan Brigg, ‘Mediation, Power, and Cultural Difference’ (2003) 20(3) Con ict Resolution Quarterly 287. See also Morgan Brigg and Kate Muller, ‘Conceptualising Culture in Con ict Resolution’ (2009) 30(2) Journal of Intercultural Studies 121.

30.

Behrendt and Kelly, (n 9) 96.

31.

See, eg, Kelly, ‘Mediation in Aboriginal Communities: Familiar Dilemmas, Fresh Developments’, (n 9); Madeline Sauvé, ‘Mediation: Towards an Aboriginal Conceptualisation’ (1996) 3(80) Aboriginal Law Bulletin 10; Beattie, (n 9).

32.

Behrendt and Kelly, (n 9) 97.

33.

NADRAC, (n 9) 1.

34.

Christopher W Moore, e Mediation Process: Practical Strategies for Resolving Con ict (Jossey-Bass, 4th ed, 2014). See also, eg, Richard L Abel, ‘A Comparative eory of Dispute Institutions in Society’ (1973) 8(2) Law and Society Review 217; Laura Nader and Harry F Todd (eds), e Disputing Process: Law in Ten Societies (Columbia University Press, 1978); Sanchez, (n 4); Carrie Menkel-Meadow, ‘Introduction: What Will We Do When Adjudication Ends?: A Brief Intellectual History of ADR’ (1997) 44(6) UCLA Law Review 1613.

35.

Barrett, (n 6).

36.

For example, Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellor’s Department, 1995). is work recognised developments in Australia — particularly in recommendation 62 of the Report which suggested that: ‘Developments abroad particularly those in the USA, Australia and Canada, in relation to ADR should be monitored’. is recommendation was repeated in the nal report in recommendation 295: Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellor’s Department, 1996).

37.

See, eg, Mauro Cappelletti and Bryant Garth, ‘Access to Justice: e Newest Wave in

the Worldwide Movement to Make Rights Effective’ (1978) 27(2) Buffalo Law Review 181; David Udell, ‘Building the Access to Justice Movement’ (2018) 87 Fordham Law Review Online 142; Lauren Sudeall, ‘Integrating the Access to Justice Movement’ (2018) 87 Fordham Law Review Online 172; Jacqueline Nolan-Haley, ‘Does ADR’s Access to Justice Come at the Expense of Meaningful Consent’ (2018) 33(3) Ohio State Journal on Dispute Resolution 373; Jacqueline Nolan-Haley, ‘International Dispute Resolution and Access to Justice: Comparative Law Perspectives’ (2020) 2 Journal of Dispute Resolution 391; Noone and Ojelabi, (n 9). See also discussion of access to justice in Chapter 5 as a goal of the DR value of community. 38.

is positioning of ADR and the formal justice system in opposition to each other has never been particularly helpful. As Astor and Chinkin noted in their second edition: ‘e concept of the “formal justice system” is sometimes used in rather rubbery and imprecise ways. Sometimes it has been used as a synonym for adjudication, with the advantages of ADR being counterposed to the problems of adjudication. is use of the term overlooks the fact that the majority of disputes handled by lawyers and courts are not adjudicated. We use the term to encompass courts, tribunals, lawyers’ activities around litigation, and the activities of the police and other agencies associated with litigation. However, even with such a broad de nition the term remains imprecise. For example, many tribunals would argue that they are (or perhaps were originally conceived as being) part of the informal alternatives. We also note that there is no clear dividing line between ADR and the formal justice system’: (n 1) 4.

39.

See, eg, Stempel’s review in 1993 of changes in political and public sentiment towards adjudication and the development of the contemporary ADR movement: Jeffrey W Stempel, ‘New Paradigm, Normal Science, or Crumbling Construct? Trends in Adjudicatory Procedure and Litigation Reform’ (1993) 59(3) Brooklyn Law Review 659, 662–4.

40.

For an analysis of the ‘litigation explosion’ at the root of these perspectives, see the comprehensive collection of works by Marc Galanter: ‘Reading the Landscape of Disputes: What We Know and Don’t Know (And ink We Know) about our Allegedly Contentious and Litigious Society’ (1983) 31(1) UCLA Law Review 4; ‘e Day Aer the Litigation Explosion’ (1986) 46(1) Maryland Law Review 3; ‘An Oil Strike in Hell: Contemporary Legends About the Civil Justice System’ (1998) 40(3) Arizona Law Review 717, 737–40 in which he concludes that there is little evidence to support claims that litigation has signi cantly damaged the prosperity of the US or its ability to compete; ‘e Turn Against Law: e Recoil Against Expanding Accountability’ (2002) 81(1) Texas Law Review 285, 285–7 in which he notes a decline in per capita litigation from the 1880s to 1960s. See also, eg, Walter K Olson, e Litigation Explosion: What Happened When America Unleashed the Lawsuit (Truman Talley Books, 1991); John Lande, ‘Appreciation of Marc Galanter’s Scholarship’ (2008) 71(2) Law and Contemporary Problems 147.

41.

See also, eg, Jack B Weinstein, ‘Some Bene ts and Risks of Privatization of Justice through ADR’ (1996) 11(2) Ohio State Journal on Dispute Resolution 1.

42.

Jeffrey W Stempel, ‘Re ections on Judicial ADR and the Multi-Door Courthouse at Twenty: Fait Accompli, Failed Overture, or Fledgling Adulthood’ (1996) 11(2) Ohio State Journal on Dispute Resolution 297, fn 2.

43.

For example, Menkel-Meadow has argued that mediation and other forms of ADR became popular because ‘the courts were not meeting the needs and underlying interests of parties and others (particularly those outside of the “case”) so that other non-dyadic and non-adversarial formats which better met the interests of the parties were necessary’: Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38(2) South Texas Law Review 407, 417.

44.

In 1996 Stempel argued for the term ‘ADR’ in preference over ‘DR’ because he said it is important to remember how the term ‘ADR’ ‘can serve to subconsciously remind the world, particularly the legal profession, that litigation is not the be-all and end-all of con ict management’: Stempel, (n 42) fn 2.

45.

Menkel-Meadow, (n 43) 417. See also Carrie Menkel-Meadow, ‘e Many Ways of Mediation: e Transformation of Traditions, Ideologies, Paradigms and Practices’ (1995) 11(3) Negotiation Journal 217, 223.

46.

Menkel-Meadow has commented that ‘as formalism spawned realism, the rigidity of rules and the “limited remedial imagination of courts” gave re-birth to the more exible and hybrid forms of mediation, mini-trials and settlement conferences which were intended to provide not only more exible process but more party-sensitive and complex solutions than the traditional litigated outcome’: Carrie Menkel-Meadow, ‘Toward Another View of Legal Negotiation: e Structure of Problem Solving’ (1984) 31(4) UCLA Law Review 754, 791.

47.

Lon Fuller, ‘Mediation: Its Forms and Functions’ (1971) 44(2) Southern California Law Review 305, 325.

48.

Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62(1) Tulane Law Review 1.

49.

Linda Singer, Settling Disputes: Con ict Resolution in Business, Families, and the Legal System (Westview Press, 2nd ed, 1994).

50.

Richard Abel (ed), e Politics of Informal Justice (Academic Press, 1982) vol 1.

51.

Wendy Faulkes and Robyn Claremont, ‘Community Mediation: Myth and Reality’ (1997) 8(3) Australian Dispute Resolution Journal 177, 178. See also Eric Stevenson, ‘e Use of Community Mediation in the Family Mediation Centre (NSW)’ (1990) 1(1) Australian Dispute Resolution Journal 24.

52.

See, eg, Samuel Walker, Popular Justice: A History of American Criminal Justice (Oxford University Press, 1980); Sally Engle Merry, ‘Popular Justice and the Ideology of Social Transformation’ (1992) 1(2) Social & Legal Studies 161; Peter Fitzpatrick, ‘e Impossibility of Popular Justice’ (1992) 1(2) Social & Legal Studies 199; Christine B Harrington and Sally Engle Merry, ‘Ideological Production: e Making of

Community Mediation’ in Carrie Menkel-Meadow (ed), Mediation: eory, Policy and Practice (Routledge, 2001) 501–27; Carol Harlow, ‘Public Law and Popular Justice’ (2002) 65(1) Modern Law Review 1. However, see also, eg, John Hund, ‘Critique of Abel on Popular Justice and the Alexandra Treason Trial’ (2008) 17(4) Social & Legal Studies 475. 53.

See, eg, Anne Bottomley and Jeremy Roche, ‘Con ict and Consensus: A Critique of the Language of Informal Justice’ in Roger Matthews (ed), Informal Justice? (Sage, 1988) 87; Timothy Hedeen, ‘Institutionalizing Community Mediation: Can Dispute Resolution “Of, By, and For the People” Long Endure?’ (2003) 108(1) Penn State Law Review 265.

54.

Sally Engle Merry and Neal Milner (eds), e Possibility of Popular Justice: A Case Study of Community Mediation in the United States (University of Michigan Press, 1993).

55.

Sally Engle Merry, ‘e Social Organisation of Mediation in Non-Industrial Societies’ in Richard Abel, (n 50) 17. See also, eg, Linda Baron, ‘Commentary: e Case for the Field of Community Mediation’ (2004) 22(1–2) Con ict Resolution Quarterly 135; Patrick G Coy and Timothy Hedeen, ‘A Stage Model of Social Movement CoOptation: Community Mediation in the United States’ (2005) 46(3) e Sociological Quarterly 405; Timothy Hedeen et al, ‘Setting the Table for Mediation Success: Supporting Disputants to Arrive Prepared’ (2021) 1 Journal of Dispute Resolution 65.

56.

Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66(3) Denver University Law Review 437, 443.

57.

Wendy Faulkes, ‘e Modern Development of Alternative Dispute Resolution in Australia’ (1990) 1(2) Australian Dispute Resolution Journal 61.

58.

Ibid; Janice Williams, ‘Community Justice Centres: Marking 10 Years of Service’ (1990) 28(11) Law Society Journal 48.

59.

John Schwartzkoff and Jenny Morgan, Community Justice Centres: A Report on the NSW Pilot Project (Law Foundation of New South Wales, 1982). See also .

60.

A range of other community DR services also exist; however, it is difficult to discover the precise nature and extent of such services as there is no centralised source of information about all forms and locations of community justice in Australia.

61.

See .

62.

e Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General (which began as the ADR Division in 1990) oversees six DR centres which offer DR services, including civil and criminal mediation and child protection conferencing. ey also have a signi cant training component for the community in con ict management. e DR Centres operate under the Dispute Resolution Centres

Act 1990 (Qld). See also . 63.

See . e Noble Park Family Mediation Centre has been operating in Melbourne since 1985 under federal funding and is now part of the larger offering of services through FMC Mediation and Counselling Victoria.

64.

See .

65.

Faulkes, (n 57) 67; Faulkes and Claremont, (n 51); Wendy Faulkes, Mediation and Community Based Dispute Resolution: Report to Winston Churchill Memorial Trust (Winston Churchill Memorial Trust, 1983). See also Lois Bryson and Martin Mowbray, ‘Community: e Spray-On Solution’ (1981) 16(4) Australian Journal of Social Issues 255; Roman Tomasic, ‘Mediation as an Alternative to Adjudication: Rhetoric and Reality in the Neighbourhood Justice Movement’ in Roman Tomasic and Malcolm Feeley (eds), Neighbourhood Justice: Assessment of an Emerging Idea (Longman, 1982) 215.

66.

David Bryson, ‘Victoria’s Neighbourhood Mediation Centres Project’ (1987) 12(3) Legal Services Bulletin 108.

67.

Faulkes, (n 57) 67.

68.

Geoffrey L Davies, ‘Civil Justice Reform in Australia’ in Adrian Zuckerman (ed), Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (Oxford University Press, 1999); Hazel Genn, ‘What Is Civil Justice For? Reform, ADR, and Access to Justice’ (2012) 24(1) Yale Journal of Law and the Humanities 397, 397; Paula Hannaford-Agor, ‘Bene ts and Costs of Civil Justice Reform’ (2018) 54(1) Court Review 26. See also, eg, Sarah E Hilmer, ‘Mediation in the Amended Civil Justice Reform of Hong Kong’ (2009) 20(2) Australasian Dispute Resolution Journal 120; Shala Ali and Felicia Lee, ‘Resolving Financial Disputes in the Context of Australian and Canadian Civil Justice Reform’ (2011) 22(2) Australasian Dispute Resolution Journal 125.

69.

Genn, (n 68) 397.

70.

Ibid.

71.

Ibid. See also, eg, Productivity Commission, Access to Justice Arrangements, Report No 72 (2014); Victoria State Government, Access to Justice Review Volume 1 Report and Recommendations (August 2016); Danielle Root and Maggie Jo Buchanan, ‘5 Principles for Civil Justice Reform’, Centre for American Progress (19 December 2019).

72.

Richard E Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019). See further discussion about online developments in the chapters in Part II and also Chapter 12.

73.

Lord Woolf, (n 36).

74.

Richard Abel, (n 50). Judith Resnik’s work includes Judith Resnik and Dennis E Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011); Judith Resnik and Linda

Greenhouse (eds), ‘e Invention of Courts’ (2014) Daedalus: Journal of the American Academy of Arts and Sciences (Special Issue); Judith Resnik, ‘Diffusing Disputes: e Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’ (2015) 124(8) Yale Law Journal 2804; Judith Resnik, ‘A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations’ (2017) 96(3) North Carolina Law Review 605; Judith Resnik and David Marcus, ‘Inability to Pay: Court Debt Circa 2020’ (2019) 98(2) North Carolina Law Review 361; Judith Resnik, ‘Mature Aggregation and Angst: Reframing Complex Litigation by Echoing Francis McGovern’s Early Insights into Remedial Innovation’ (2021) 84(2) Law and Contemporary Problems 231. See also discussion in relation to the values of autonomy and community in Chapter 5. 75.

Genn, (n 68) 398.

76.

See, eg, the Blair Report from Ontario: Robert A Blair et al, Civil Justice Review: Supplemental and Final Report (Ontario Civil Justice Review, 1996).

77.

A Leo Lepin and Russell RA Wheeler, e Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

78.

See Lord Woolf, (n 36). See also Arthur Marriott, ‘Breaking the Dispute Resolution Deadlock: Civil Litigation and ADR in the United Kingdom and Beyond’ (2006) 17(3) Australasian Dispute Resolution Journal 157.

79.

See Frank EA Sander, Varieties of Dispute Processing (Address given at the Pound Conference on Causes of Dissatisfaction with Justice, 1976), reprinted in Lepin and Wheeler, (n 77). e conference was sponsored by the American Bar Association, the Conference of Chief Justices, and the Judicial Conference of the United States — which enhanced the standing and impact of its deliberations and outcomes.

80.

Roscoe Pound, ‘e Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 29(10) American Bar Association Reports 395.

81.

See Frank EA Sander, ‘Varieties of Dispute Processing’ (1976) 70 Federal Rules Decisions 111, fn 96.

82.

Ibid 130.

83.

Clifford J Wallace, ‘Judicial Reform and the Pound Conference of 1976 (Review of e Pound Conference: Perspectives on Justice in the Future)’ (1982) 80(4) Michigan Law Review 592, 594.

84.

Ibid 594.

85.

See .

86.

Ali and Lee, (n 68).

87.

See Lord Woolf, (n 36). See also Garry D Watson, ‘From an Adversarial to a Managed System of Litigation: A Comparative Critique of Lord Woolf ’s Interim Report’ in Roger Smith (ed), Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s

(Legal Action Group, 1996); Michael Zander, ‘e Woolf Report: Forwards or Backwards for the New Lord Chancellor?’ (1998) 64(2) Arbitration: e International Journal of Arbitration, Mediation and Dispute Management 118. See also NADRAC, e Resolve to Resolve — Embracing ADR to Improve Access to Justice in the Federal Jurisdiction (Commonwealth of Australia, 2009), ‘Schedule 4 Lord Woolf Reforms — Pre-Action Protocols’, 173. 88.

Emily Allbon et al, Elliott and Quinn’s English Legal System (Pearson, 19th ed, 2019).

89.

National Consumer Council, Seeking Civil Justice: A Survey of People’s Needs and Experiences (National Consumer Council, 1995).

90.

Genn, (n 68) 401.

91.

Lord Woolf, ‘e Woolf Report’ (1996) 4(3) International Journal of Law and Information Technology 268–81. See also Productivity Commission, (n 71) 19.

92.

See, eg, Blair et al, (n 82); Caroline Sage, Ted Wright and Carolyn Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, 2002); Bobette Wolski, ‘Reform of the Civil Justice System Two Decades Past — Implications for the Legal Profession and for Law Teachers’ (2009) 21(3) Bond Law Review 192; Productivity Commission, (n 71).

93.

Astor and Chinkin, (n 1) 43.

94.

Access to Justice Advisory Committee, Access to Justice: An Action Plan (AGPS, 1994).

95.

Attorney-General’s Department, e Justice Statement (Commonwealth of Australia, 1995).

96.

ALRC, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (1999). In the 830 pages of the Report the acronym ‘ADR’ is mentioned 201 times.

97.

Attorney-General’s Department, Federal Civil Justice System Strategy Paper, Executive Summary (AGPS, 2003).

98.

See NADRAC, (n 87).

99.

NADRAC, (n 87) 1.

100. Ibid 7. 101. e aims of the Act are to ‘change the adversarial culture oen associated with disputes; to have people turn their minds to resolution before becoming entrenched in a litigious position; and where a dispute cannot be resolved and the matter proceeds to court, to ensure that the issues are properly identi ed, thereby reducing the time required for a court to determine the matter’: Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth) 4. e Act requires parties to le a ‘genuine steps statement’ at the time of ling the application to commence a civil proceeding: Civil Dispute Resolution Act 2011 (Cth) s 6(1). 102. Access to Justice Taskforce Attorney-General’s Department, A Strategic Framework for Access to Justice in the Federal Civil Justice System (Commonwealth of Australia, 2009) recommendation 5.1.

103. Productivity Commission, (n 71). 104. See, eg, Litigation Reform Commission, Report of Alternative Dispute Resolution Division (LRC, 1992) 1. See also David Paratz, ‘e History of Mediation in Queensland’ (2015) 74 Hearsay: Journal of the Bar Association of Queensland . 105. Uniform Civil Procedure Rules 1999 (Qld) r 5. 106. Attorney-General (Victoria), Justice Statement (Victorian Government, 2004). See also Jason Silverii, ‘Justice Statement Sketches Victoria’s Future’ (2004) 78(7) Law Institute Journal 20. 107. Victorian Law Reform Commission, Civil Justice Review — e Victorian Law Reform Commission Report (2008). 108. NADRAC, (n 87). 109. Ole Lando, ‘e Lex Mercatoria in International Commercial Arbitration’ (1985) 34(4) International & Comparative Law Quarterly 747; Keith Highet, ‘Enigma of the Lex Mercatoria’ (1988) 63(3) Tulane Law Review 613; Roy Goode, ‘Usage and its Reception in Transnational Commercial Law’ (1997) 46 International and Comparative Law Quarterly 1; Ralf Michaels, ‘e True Lex Mercatoria: Law Beyond the State’ (2007) 14(2) Indiana Journal of Global Legal Studies 447; Klaus P Berger, e Creeping Codi cation of the New Lex Mercatoria (Kluwer Law International, 2010); Gilles Cuniberti, ‘ree eories of Lex Mercatoria’ (2013) 52(2) Columbia Journal of Transnational Law 369; Orsolya Toth, e Lex Mercatoria in eory and Practice (Oxford University Press, 2017). 110. David Holst, ‘Mediation Makes Business Sense: e Ampol/Caltex Merger’ (1997) 8(2) Australian Dispute Resolution Journal 109. 111. See, eg, Sandy Caspi Sable, ‘Changing Assumptions about Mediation in Commercial Matters: Resolving Disputes and (Re)Building Relationships’ (2001) 12(4) Australasian Dispute Resolution Journal 275; Michael Legg, ‘Mediation of Complex Commercial Disputes Prior to Litigation: e Delaware Court of Chancery Approach’ (2010) 21(1) Australasian Dispute Resolution Journal 44; Troy Peisley, ‘Blended Mediation: Using Facilitative and Evaluative Approaches to Commercial Disputes’ (2012) 23(1) Australasian Dispute Resolution Journal 26; Adele Carr, ‘Broadening the Traditional Use of Mediation to Resolve Interlocutory Issues Arising in Matters Before the Courts’ (2016) 27(1) Australasian Dispute Resolution Journal 10; Stacey I Strong, Legal Reasoning Across Commercial Disputes (OUP, 2020). 112. e English Arbitration Act 1697 provided a procedure whereby parties to a civil action could refer their matter to arbitration and have the ensuing award enforced as a judgment of the court. 113. See Cameron Miles, Sam Luttrell and Stephen McComish, Understanding Australia’s New Domestic Arbitration Regime: A Comparison of the Australian State Commercial Arbitration Acts and the New Model Commercial Arbitration Bill, Chartered Institute of

Arbitrators Australia. Consider also, eg, Nadav Prawer, Nussen Ainsworth and Matt Harvey, ‘Not Commercial but Good Sense: e Case for Facilitating Faith-Based and Community Arbitration in Australia’ (2018) 28(4) Australasian Dispute Resolution Journal 252. 114. See, eg, Richard Garnett, ‘International Commercial Arbitration in Australia: Legal Framework and Problems’ (2008) 19(4) Australasian Dispute Resolution Journal 249; Luke Nottage and Richard Garnett (eds), International Arbitration in Australia (Federation Press, 2010); Richard Garnett and Luke Nottage, ‘What Law (If Any) Now Applies to International Commercial Arbitration in Australia?’ (2012) 35(3) UNSW Law Journal 953; Albert Monichino and Alex Fawke, ‘International Arbitration in Australia: 2014/2015 in Review’ (2015) 26(4) Australasian Dispute Resolution Journal 192; Michael Elliott, ‘e Danger in Prescribing the Publication of International Commercial Arbitration Awards in Order to Cure a Stagnating Common Law’ (2020) 30(2) Australasian Dispute Resolution Journal 113. 115. Senate Standing Committee on Constitutional and Legal Affairs, Report on the Law and Administration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974, Parliamentary Paper No 133 (1974) [27]. 116. Ibid [34]. 117. Ibid [35]. 118. Ibid [39]. 119. See, eg, Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (ALRC Report 135, 2019) and the history of many other reviews cited there. 120. Family Law Reform Act 1995 (Cth); see also Attorney-General’s Department, Delivery of Primary Dispute Resolution Services in Family Law (AGPS, 1997). 121. Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). 122. Family Law Act 1975 (Cth) s 60I. For a critical perspective of these reforms, see Rachael Field, ‘Federal Family Law Reform in 2005: e Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution’ (2005) 5(1) QUT Law and Justice Journal 28; Rachael Field, ‘Using the Feminist Critique of Mediation to Explore “e Good, e Bad and e Ugly” — Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20(5) Australian Journal of Family Law 45. See also Linda Fisher and Mieke Brandon, Mediating with Families (omson Reuters, 4th ed, 2018). See further, eg, Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners and Co-Operative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Rachael Field, ‘FDR and Victims of Family Violence: Ensuring a Safe Process and Outcomes’ (2010) 21(3) Australasian Dispute Resolution Journal 185; Pamela Henry and Karine Hamilton, ‘FDR Practitioners Working in the FRC System: Issues and Challenges’

(2011) 22(2) Australasian Dispute Resolution Journal 103; Mieke Brandon and Linda Kochanski, ‘FDR Using a Multigenerational Approach: e Role of Grandparents — Entitlement or Privilege?’ (2011) 22(3) Australasian Dispute Resolution Journal 159; Karine Hamilton and Pamela Henry, ‘e Role of Counselling in FDR: Re-Drawing Professional Boundaries’ (2011) 22(3) Australasian Dispute Resolution Journal 166; Mieke Brandon and Linda Kochanski, ‘e Child’s Voice in FDR: Mediation and Child-Informed Practice’ (2015) 26(3) Australasian Dispute Resolution Journal 168; Andi Doerr, ‘Beyond Resolution — Conceptualising the Shi from Resolution to Defusion in FDR’ (2017) 28(1) Australasian Dispute Resolution Journal 27; Bethaina Dababneh, ‘Post Separation: How Can FDR Positively In uence the Impact of Culture on the Lives of Children?’ (2021) 31(1) Australasian Dispute Resolution Journal 52; Mieke Brandon, ‘Introducing Relationship Mediation for FDR Practitioners and Other Experienced Mediators in 2021’ (2021) 31(1) Australasian Dispute Resolution Journal 63. 123. See . 124. See Sch 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and compare with s 6 of the Civil Dispute Resolution Act 2011 (Cth). 125. See, eg, Andrew Boon, Peter Urwin and Valeriya Karuk, ‘What Difference Does it Make? Facilitative Judicial Mediation of Discrimination Cases in Employment Tribunals’ (2011) 40(1) Industrial Law Journal 45. See also, eg, James Macken, ‘Mediation in the Field of Industrial Relations’ (1997) 8(3) Australian Dispute Resolution Journal 158. 126. Conciliation, mediation and arbitration are said to have been the most important means of settling labour disputes since the onset of industrialisation and modern labour relations. See International Labour Organisation, Labour Dispute Prevention and Resolution . 127. Constitution of Australia 1901 (Cth) s 51(xxxv). 128. For example, the Queensland Industrial Relations Commission administers the Industrial Relations Act 1999 (Qld), resolving industrial disputes by conciliation and where necessary by arbitration. 129. Chris Provis, ‘Mediation and Conciliation in Industrial Relations: Re ections from Australia’ (1997) 21(4) Labor Studies Journal 81; Bernadine Van Gramberg, ‘ADR and Workplace Justice: Just Settlement?’ (2003) 14(3) Australasian Dispute Resolution Journal 233; John F Bourke, ‘Voluntary Arbitration? e Victorian Experiment’ (2006) 17(1) Australasian Dispute Resolution Journal 38; Joellen Riley, ‘Workplace Dispute Resolution under the Fair Work Act: Is ere a Role for Private Alternative Dispute Resolution Providers?’ (2009) 20(4) Australasian Dispute Resolution Journal 236; Mark Dickinson, ‘e Importance of Transformative Mediation to the Internal Workplace Mediation Program’ (2011) 22(2) Australasian Dispute Resolution Journal 95; John Niland and Keri Spooner, ‘Structural Change and Industrial Relations: Australia’ in

Alan Gladstone et al (eds), Labour Relations in a Changing Environment (De Gruyter, 2015) 215; Joel E Cutcher-Gershenfeld and Joe Isaac, ‘Creating Value and Mitigating Harm: Assessing Institutional Objectives in Australian Industrial Relations’ (2018) 29(2) e Economic and Labour Relations Review 143; Mark Bray and Johanna Macneil, ‘Mediation and Conciliation in Collective Labor Con icts in Australia’ in Martin Euwema et al (eds), Mediation in Collective Labor Con icts (Springer, 2019) 247; David Stewart, ‘Alternative Dispute Resolution in the Employment and Industrial Field’ (2020) (Autumn) Bar News: e Journal of the NSW Bar Association 54; Christian L Ibsen, ‘Conciliation, Mediation and Arbitration in Collective Bargaining in Western Europe: In Search of Control’ (2021) 27(1) European Journal of Industrial Relations 23. 130. See Christine Chinkin and Micheline Dewdney, ‘Settlement Week in New South Wales: An Evaluation’ (1992) 3(2) Australian Dispute Resolution Journal 93; Laurence Boulle, ‘Testing the Mettle — Queensland’s First Settlement Week’ (1993) 4(1) Australian Dispute Resolution Journal 5. 131. See, eg, Kathy Mack, Court Referral to ADR: Criteria and Research (NADRAC, 2003); Kathy Mack, ‘Court Referral to ADR: e Legal Framework in Australia’ (2004) 22(1) Law in Context: A Socio-Legal Journal 112. See also Tania Sourdin, ‘Alternative Dispute Resolution and the Courts’ (2004) 22(1) Law in Context 1; Melissa Conley Tyler and Jackie Bornstein, ‘Court Referral to ADR: Lessons from an Intervention Order Mediation Pilot’ (2006) 16(1) Journal of Judicial Administration 48; Dorcas Quek, ‘Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing a Court-Mandated Mediation Program’ (2009) 11(2) Cardozo Journal of Con ict Resolution 479; Jacqueline Nolan-Haley, ‘Mediation Exceptionality’ (2009) 78(3) Fordham Law Review 1247; omas F Bathurst, ‘e Role of the Courts in the Changing Dispute Resolution Landscape’ (2012) 35(3) UNSW Law Journal 870; Vicki Waye, ‘Mandatory Mediation in Australia’s Civil Justice System’ (2016) 45(2–3) Common Law World Review 214; Shahla F Ali, Court Mediation Reform: Efficiency, Con dence and Perceptions of Justice (Edward Elgar Publishing, 2018); Margaret Ross, ‘Embedding Mediation in Scottish Civil Justice — Riding the Tide for a Cultural Shi?’ (2021) 40(1) Civil Justice Quarterly 41. 132. For further commentary on the issue of court-connected DR, see also, eg, Michael Redfern, ‘A Place for the Courts in the Dispute Resolution Process’ (2005) 16(1) Australasian Dispute Resolution Journal 79; Rhain Buth, ‘Limits to the Quantitative Data on Court-Connected Mediation in Federal Courts of Australia’ (2009) 20(4) Australasian Dispute Resolution Journal 229; John Woodward, ‘Court Connected Dispute Resolution — Whose Interests are Being Served?’ (2014) 25(3) Australasian Dispute Resolution Journal 159. 133. See Federal Court of Australia, Assisted Dispute Resolution . 134. See ALRC, Managing Discovery: Discovery of Documents in Federal Courts, Final

Report (2011) ch 11 — ‘Pre-Action Protocols and Other Alternatives to Discovery’. 135. Commonwealth, Parliamentary Debates, House of Representatives, 30 September 2010, 270 (Robert McClelland). See also Hilary Astor, ‘Making a “Genuine Effort” in Family Mediation: What Does it Mean?’ (2008) 22(2) Australian Journal of Family Law 102; Hilary Astor, ‘Genuine Effort in Family Dispute Resolution’ (2010) 84 Family Matters 61; Joshua Taylor, ‘It’s Time to Abolish the Genuine Effort Certi cate in Family Dispute Resolution’ (2019) 33(1) Australian Journal of Family Law 29. 136. Victoria, Parliamentary Debates, Legislative Assembly, 10 February 2001, 307 (Robert Clark). 137. See, eg, Michael Black, ‘e Courts, Tribunals and ADR: Assisted Dispute Resolution in the Federal Court of Australia’ (1996) 7(2) Australian Dispute Resolution Journal 138; Guy Cumes, ‘Separation of Powers, Courts, Tribunals and the State’ (2008) 19(1) Australasian Dispute Resolution Journal 10; Case Note, ‘Negotiating in Good Faith in the National Native Title Tribunal and Postponing Mediation to Wait for Evidence’ (2013) 24(1) Australasian Dispute Resolution Journal 3; Kathy Douglas and Becky Batagol, ‘e Role of Lawyers in Mediation: Insights from Mediators at Victoria’s Civil and Administrative Tribunal’ (2014) 40(3) Monash University Law Review 758; erese MacDermott and Denise Meyerson, ‘Australian Tribunals and Alternative Dispute Resolution: A Procedural Justice Perspective’ (2018) 37(4) Civil Justice Quarterly 443; Noone and Ojelabi, (n 9) 112; Tania Sourdin and Margaret Castles, ‘Is the Tail Wagging the Dog? Finding a Place for ADR in Pre-Action Processes: Practice and Perception’ (2020) 41(2) Adelaide Law Review 479. 138. Administrative Appeals Tribunal Act 1984 (Cth) s 4. 139. Sourdin and Castles, (n 137). 140. Rosalie Poole, ‘Facilitating Systemic Outcomes through Anti-Discrimination Conciliation and the Role of the Conciliator in this Quest’ (2016) 27(1) Australasian Dispute Resolution Journal 49. 141. Robert French, ‘e National Native Title Tribunal — Early Directions’ (1994) 5(3) Australian Dispute Resolution Journal 164; Case Note, (n 137); GD Meyers (ed), Implementing the Native Title Act: e Next Step: Facilitating Negotiated Agreements (National Native Title Tribunal, 1997); Peter Sutton, ‘Mediating Con ict in the Age of Native Title’ (2010) 1 Australian Aboriginal Studies 4. 142. e Victorian Civil and Administrative Tribunal (VCAT) was established under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and began operations on 1 July 1998, amalgamating 15 boards and tribunals to offer a ‘one-stop shop’ dealing with a range of disputes. 143. e SAT in Western Australia was established to make the legal process in administrative matters more efficient, exible and informal. See David Parry, ‘Structure and Restructure, the Rise of FDR and Experts in Hot Tubs — Re ections on the First Decade of the State Administrative Tribunal of Western Australia’

(Presentation to the Council of Australasian Tribunals, National Conference, Melbourne, 2015) 3. 144. Rebecca Ananian-Welsh, ‘Cats, Courts and the Constitution: e Place of SuperTribunals in the National Judicial System’ (2020) 43(3) Melbourne University Law Review 852. 145. Marc Hertogh and Richard Kirkham (eds), Research Handbook on the Ombudsman (Edward Elgar Publishing, 2018); Linda C Reif, Ombuds Institutions, Good Governance and the International Human Rights System (Brill, 2020); Naomi Creutzfeldt, ‘e Role of Ombuds — A Comparative Perspective’ in Maria F Moscati, Michael Palmer and Marian Roberts (eds), Comparative Dispute Resolution (Edward Elgar Publishing, 2020). 146. See Colin Neave, ‘Access to Justice — Where do Ombudsmen Fit in?’ (Address by the Australian Commonwealth Ombudsman with Professor Ron Paterson, NZ Ombudsman, ANZOA Conference, Wellington, 30 April 2014); Julina Beqiraj, Sabina Garahan and Kelly Shuttleworth, Ombudsman Schemes and Effective Access to Justice: A Study of International Practices and Trends (International Bar Association, 2018); Chris Field, ‘e Ombudsman in the 21st Century’ (2018) 43(1) University of Western Australia Law Review 43. See also Parliamentary Commissioner Act 1971 (WA); Ombudsman Act 1972 (SA); Ombudsman Act 1973 (Vic); Parliamentary Commissioner Act 1974 (Qld); Ombudsman Act 1974 (NSW); Ombudsman Act 1978 (Tas); Ombudsman Act 1980 (NT). 147. For a discussion of the ombuds role and its relationship to mediation, see Shirley Weigand, ‘A Just and Lasting Peace: Supplanting Mediation with the Ombuds Model’ (1996) 12(1) Ohio State Journal on Dispute Resolution 95; Chris Gill et al, Models of Alternative Dispute Resolution (ADR): A Report for the Legal Ombudsman (Queen Margaret University Consumer Insight Centre, 2014). See also Rachael Field and Michael Barnes, ‘University Ombuds: Issues for Fair and Equitable Complaints Resolution’ (2003) 14 Australasian Dispute Resolution Journal 14. 148. Colin Neave, ‘Exploring the Role of the Commonwealth Ombudsman in Relation to Parliament’ (Senate Occasional Lecture, 28 November 2014). 149. Australian and New Zealand Ombudsman Association, Ombudsman Services in Australia and New Zealand, . 150. See, eg, Paul Lewis, ‘Conference note — “An Aural Survey”: Language at the National Mediation Conference’ (2006) 17(3) Australasian Dispute Resolution Journal 166; Editorial, ‘National Mediation Conference Overview’ (2017) 28(1) Australasian Dispute Resolution Journal 3. See also Anne Ardagh, ‘Australian Dispute Resolution Association: Its History and Its People’ (2016) 27(4) Australasian Dispute Resolution Journal 252. 151. Access to Justice Advisory Committee, (n 94). See also Access to Justice Taskforce, (n 102).

152. NADRAC, Framework for Standards (Commonwealth of Australia, 2001) 1. 153. Ibid 1–2. 154. In addition to the Chairperson of NADRAC, the other 13 members of the Council came from a broad range of types of involvement with DR, including courts, tribunals, community mediation, the legal profession and family mediation providers. 155. e Council was established by the federal Labor government to advise the then Attorney-General Michael Lavarch. Subsequent Coalition governments supported its continuation. 156. Tony Abbott, ‘Boosting Productivity and Delivering Effective, Efficient Government’ (Media Release, 8 November 2013). 157. Becky Batagol, Dumb Decision — e Closure of NADRAC (12 November 2013) ADR Research Network . 158. Ibid. 159. Ibid. 160. See . 161. See ADRAC, Charter, cl 1. 162. ose present included Julian Riekert, Alan Limbury, Gerald Raesath, Michael Klug, Greg Vickery, Oscar Shubb, Harold Werksman, Jennifer David, Tony de Fina, Michael Pryles, Michael Pickering and Laurence Boulle. See Alan Limbury et al, ‘Recollections of LEADR’s Beginnings’ (2013) 24(3) Australasian Dispute Resolution Journal 133. 163. Ibid 135. 164. See . 165. Among the prominent providers of these courses were the University of Technology Sydney, the University of Western Australia, Queensland University of Technology, and the University of New South Wales which at the time of writing had an extensive suite of DR offerings. By 2016 almost all Law Schools in the country had offerings of some sort. 166. e DRC was founded at a conference in February 1989 convened by Laurence Boulle. Its rst patron was Sir Laurence Street and its rst Director was Laurence Boulle. Other prominent DR practitioners and academics (including pracademics) to become part of the DRC include John Wade, Pat Cavanagh and Bobette Wolski. e Centre for Dispute Resolution as it will be known from 2022 is currently co-directed by Libby Taylor and Rachael Field. 167. See . 168. Ibid. 169. Ibid. 170. e different models of mediation are discussed in more detail in Chapter 8.

171.

See, eg, Jocelyne Chirnside, Empowered for Life: Equipping Children to Deal with Everyday Con ict and Bullying (Chirnside, 2015).

172. See, eg, King et al, (n 8). 173. Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011) 9. 174. See, eg, Richard Susskind, e End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, revised ed, 2010); Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013).

PART II Key Dispute Resolution Systems: Theory, Practice and Variations

[page 209]

Chapter 7 Negotiation Chapter contents Introduction Negotiation as a DR and transactional process and skill Conclusion

7.1 7.3 7.68

Introduction 7.1 is chapter focuses on negotiation — both as a DR process with a range of possible approaches and also as a speci c skill set that is critical to effective DR practice and lawyering across all processes on the DR matrix.1 e term ‘negotiation’ derives [page 210] from the Latin negotiare, which is comprised of two parts — neg (not) and otium (ease) — and this connotation is as valid now as it was when the Romans coined it more than 2000 years ago.2 7.2 Negotiation is a ubiquitous human activity, and an important life skill, as human beings are effectively negotiating every day in all manner of diverse contexts.3 It is also not entirely absent from non-human animals.4 It occurs between innumerable players and in respect of countless matters, such as between nation states over access to maritime resources, between nanciers and corporations over debt restructuring, among relatives over deceased estates, and even within individuals as they ponder and consider the wisdom of personal or professional options facing them.5 e methods of negotiation are as varied as its manifestations. It could involve informal

discussions over tea or coffee, exchanges of text messages between geographically remote individuals, or formal business meetings around boardroom tables. is chapter begins considering negotiation as a process — identifying the key models and approaches.

Negotiation as a DR and transactional process and skill 7.3 Negotiation is a process with the potential to manage, settle and resolve many kinds of con ict situations and disputes.6 It is central to the work of all DR practitioners, including lawyers, and it could be contended, without much hyperbole, that wherever other DR processes, and especially litigation, are deployed it is generally because [page 211] negotiation options have not been attempted, adequately harnessed or used effectively or successfully. However, lawyers also sometimes initiate formal legal options as a strategy even when they hope, or perhaps even feel con dent, that informal negotiations will actually result in an effective response to the dispute.7 7.4 An extensive literature provides insights into all facets of negotiation, from its theoretical frameworks to its practical operation, and offers a rich source of knowledge for lawyer negotiators.8 Besides the academic literature, there are ‘best-selling’ texts on various ways of negotiating, some portraying it as an ‘art’ and others as a ‘science’. e scholarly literature on negotiation has long drawn on related disciplines, including game theory, communication, economics, sociology and anthropology, from which negotiation theory is partly derived.9 More recent literature on the subject has been in uenced by cognitive psychology and neuroscience, both of which highlight the unconscious motivations and cognitive and social biases which affect all parties in decision-making settings, including negotiations.10

[page 212] 7.5 Given that mediation is essentially a framework for negotiations in which there is a third-party non-partisan intervenor, many of the themes dealt with in Chapter 8 are also applicable to the treatment of negotiation in this chapter, and vice versa. A necessary disclaimer, however, is that this chapter can necessarily provide only a limited insight into the many dimensions of negotiation theory and practice.

De nition and purposes of negotiation 7.6 Negotiation was de ned in Chapters 3 and 4 as a process in which two or more parties, each with some capacity to in uence the other, interact together with the objective of making joint decisions on issues affecting both. Negotiation can operate as a form of self-help, and it can also involve professional or other support and assistance.11 It differs from the DR processes referred to in later chapters in that there is, by de nition, no independent intervenor — in this sense it is an unfacilitated process. Where there is an impartial and independent intervenor supporting the negotiations, it is referred to as facilitated negotiation — mediation, facilitation and conciliation are forms of facilitated negotiation. 7.7 Where negotiation takes place between the parties alone it can be referred to as unassisted negotiation.12 Where lawyers, experts, specialist negotiators or other advisers also participate as partial advocates, representatives and resource persons, it can be referred to as assisted or supported negotiation. Facilitated negotiations in mediation and conciliation occur whether or not parties are assisted by professional advisers or supporters, although it is usual in legal mediations and conciliations for lawyers to support their clients in these facilitated forms of negotiation. Further differentiation can be made in terms of whether negotiations are bilateral in nature, involving only two disputants, or multilateral, involving more than two, and as to whether they are single-issue (for example, over the compensation payable for a personal injury), or multiple-issue (for example, over access, noise, congestion, compensation and safety where a new airport is to be constructed). Negotiation can be used for many

different purposes and in the context of this book two distinct purposes are considered; namely, [page 213] negotiation to settle or resolve disputes, or negotiation for the purpose of transacting agreements for the future. Negotiation should also be seen, however, in terms of a wider range of functions, for example in relation to its preventative and con ict and dispute management dimensions.13

The diverse dimensions of negotiation 7.8 As with other DR processes, negotiation has diverse dimensions.14 In popular culture the concept has connotations of give and take, of concessions and compromise, and of bargaining and trade-offs between parties, each with some degree of in uence and power at their disposal.15 At more re ned levels the dimensions of negotiation include principles of mutuality, reciprocity and consensuality, as well as notions that negotiations are concerned with ‘joint consent’, that outcomes are ‘mutually acceptable’, or that the process involves ‘collective decision-making’.16 Negotiation therefore shares with mediation a normative claim with regard to the relative autonomy of the parties involved, which denotes at the least that the process supports party self-determination such that an external intervenor has no authority to make binding determinations for them, and more positively that they have in uences and choices in respect of negotiated outcomes.17 In these senses, negotiation is a form of ‘private ordering’ of affairs which courts, tribunals and other state institutions will enforce when necessary intentions and formalities are present.18 7.9 In reality, negotiation’s normative and aspirational dimensions might not be evident in some settings.19 e resource powers of one party and the relative weakness [page 214]

of the other, and external nancial or social realities facing one or both sides, could mitigate against aspirations of mutuality and reciprocal bargaining. us franchisees with cash- ow difficulties and tenancy problems and with no prospects of satisfactory outcomes through other DR processes might have little bargaining power and, in contravention of the relative autonomy principle, might have to accept what the franchisor offers because they cannot assume the risks facing them away from the negotiating table.20 e extent to which, as a matter of de nition, negotiation requires real ‘bargaining’ among parties with some power or in uence is questionable, at least where there is a major power imbalance among the parties.21 e same reality also undermines some of mediation’s normative and aspirational dimensions. 7.10 Transactional negotiations, discussed further below, are also affected by discrepancies between normative claims and commercial realities and there may be little authentic bargaining in the ‘negotiation’ of contemporary standard-form agreements, such as employment, insurance or travel contracts. is is particularly the case with respect to ‘click-wrap’ agreements concluded online.22 Here consent is only nominal in nature and the majority of those clicking ‘I agree’ have no capacity to negotiate deviations from standard terms and conditions and they merely acquiesce with what is being offered. Authentic transactional negotiations, in the sense of bargaining, give and take and reciprocal trade-offs among approximate equals, occur in circumstances such as where large corporations negotiate joint ventures with each other, or state agencies and industry bodies negotiate standards in a particular economic sector.23 7.11 Negotiations are never entirely one-sided, however, in that all parties must, at least nominally, accept negotiated outcomes before they become effective, notwithstanding that they were pressured, overpowered or coerced in the process. In this narrow sense negotiation is a consensual system unlike the determinative processes considered in Chapters 10 and 11. [page 215]

Models and styles of negotiation 7.12 Negotiation does not present a single analytical model, having both different theoretical frameworks and different approaches in its practice. Regular negotiators make choices among the different approaches and can develop skills and techniques associated with each.24 e literature has, however, traditionally referred to two archetypal negotiation models, both very broad in nature. e rst is known as positional negotiation (also referred to as adversarial, competitive, distributive or zero-sum negotiation) and the second is referred to as principled negotiation (or integrative, collaborative problem-solving, or constructive negotiation). Positional negotiation has been associated with lawyers and legal processes and in the words of Carrie Menkel-Meadow it is an approach in which: … what one party gains the other must lose. Resources are limited and must be divided. Information about one’s real preferences must be jealously guarded. If the negotiation fails, the court will declare one party a winner, awarding money or an injunction. Successful negotiations represent a compromise of each party’s position on an ordinary scale of numerical (usually monetary) values.25

7.13 e positional model of negotiation is regarded as presumptively appropriate where parties are dealing with a single issue, such as money, without other signi cant interests and needs in play, and there is limited likelihood of ongoing relations between [page 216] them.26 It involves each party using a range of doubt-creating tactics to persuade and induce the other side to make more concessions than the rst party: the tactics include arguments over the law, evidence and facts, various forms of persuasion and in uence, and threats, bluffs and other strategies designed to advance their own cause and undermine that of the opposition. In this model of negotiation, anticipated outcomes are a compromise point on the spectrum between the parties’ opening proposals.27 It is also possible that positional bargaining will conclude without reaching any agreement or outcome at all.

7.14 Positional negotiation has the advantage of dealing with single-issue disputes in ways that are understood, accepted and even expected in certain cultural, business and legal contexts and of being potentially efficient in doing so — classically, for example, in negotiations where the parties have no future relationship to maintain.28 Positional bargaining has the disadvantage that it may overlook important needs and interests of the parties in its zero-sum approach to distribution of what is being negotiated — what one party gains will always be at the cost of the other’s loss.29 It can also involve a hardening of attitudes and behaviours because of the negative tactics involved in attempting to extract concessions from the other side and it can lead to long-term deterioration in parties’ attitudes towards each other.30 It is also susceptible to power tactics by a party with the resources to be overbearing and intimidating towards the other.31 7.15 e second negotiation model, referred to as the principled or problem-solving approach,32 acknowledges that in any DR context there are different categories of [page 217] human need — economic, social, psychological, moral and communal.33 By focusing on a wide range of needs and interests within a negotiation situation, this approach eschews attempts to force compromise between single opposing demands as occurs in positional bargaining.34 Problemsolving negotiation focuses instead on identifying respective parties’ needs and interests, and objectives and priorities, and aiming for creative solutions that attempt, through expanding available resources, to meet as many needs as possible, for example by exploration of acknowledgments, reputational needs, moral commitments and future business arrangements.35 It focuses on expanding resources, creating value and bargaining for mutual gains, as distinct from value claiming, xed-sum thinking and zero-sum bargaining as is associated with positional negotiations. 7.16 Negotiators in this approach are tasked with using interpersonal skills to create environments that are sensitive and diplomatic as regards the

personal and subjective dimensions of disputes, while being assertive on the objective problems themselves. is style, it is contended, minimises the prospects of one or both parties feeling denigrated or disparaged, which could jeopardise the possibility of a negotiated settlement.36 7.17 While the problem-solving model of negotiation has theoretical attractions, and provides the normative basis for mediation, it has also attracted criticism.37 e reality of many negotiations is that one or both parties may not be amenable to considering all sides’ interests and only seek to prevail in terms of their own perceived rights and needs. Moreover, many parties to negotiation are motivated by needs for vindication [page 218] or desires for retribution and these factors are not easily accommodated in problemsolving approaches. 7.18 Problem-solving is most viable where all parties have some commitment to it, there are shared interests, and future relationships need to be considered; where the converse is true, this approach is less likely to succeed, particularly where a dominant party is able to impose its will on the other.38 Even where there is a commitment to problem-solving, and circumstances are conducive to its use, the reality is that there can sometimes be zero-sum distributive problems over nite resources towards the end of negotiations, at which point a gain for one party will constitute a loss for the other. Even the prospect of this eventuality may cause parties to be cautious in opening themselves up to problem-solving approaches.39 7.19 Structural factors can also work against problem-solving approaches in negotiation; for example, where there is only a single issue, typically the quantum of money, over which to negotiate and the absence of future relations mitigates against factoring in wider needs, interests and priorities. Moreover, the transaction costs of problem-solving, with the research, preparation, skills and persistence it involves, might make simplistic positional bargaining attractive, particularly in small-value disputes or where there is an established culture of negotiating in that way.

7.20 Another set of critiques relates to the ubiquitous issue of relative bargaining power, where a seriously weaker party has limited capacity to induce others into problem-solving mode.40 A stronger party, moreover, may have an established practice of, and commensurate reputation for, making limited concessions to others in positional bargaining and might perceive few attractions in conceding advantages deriving from their negotiating habits and reputation. No techniques, including those deployed by mediators facilitating negotiations, can guarantee a redress of inequality in negotiating power that will induce both sides to engage in problemsolving strategies.41 is critique is subject to the converse argument, dealt with elsewhere in this work, that power does not always translate directly into in uence in DR or transactional processes. [page 219] 7.21 ere are also concerns that the problem-solving negotiation model is more ideological than evidence-based in nature — there is limited proof as to its extensive use and effectiveness, even when negotiations are facilitated by mediators.42 Questions arise as to whether speci c approaches can ensure or promote some of the ideal negotiation outcomes referred to above. us, an adversarial positional negotiation conducted in a competitive environment might reach simplistic monetary compromises which leave unexplored value-adding solutions such as future business relations and positive publicity for both sides. Questions further arise as to whether the way in which the negotiations are conducted can induce parties to achieve a deeper acceptance of settlements and preclude attempts to undermine them later. 7.22 In reality, these are somewhat academic issues for repeat negotiation players, such as insurers, governments and lawyers, faced with the pressures of managing multiple les efficiently, and such a situation can lead to what is termed low-intensity positional bargaining with little time and few resources to expend on interests, collaboration and creative outcomes.43 Moreover, in some cultural contexts (including the subcultures of business and law) there are expectations of quick bargaining towards clear and decisive monetary

outcomes, in terms of the maxim that ‘time is money’, and negotiation approaches and techniques are geared to these imperatives. While the notion of ‘efficiency’ might, in this context, have only short-term perspectives and overlook long-term advantages, it remains the reality that problem-solving negotiation has limits in terms of its practical applications. 7.23 Nonetheless, problem-solving negotiation remains a signi cant aspiration for negotiators and its ‘uncommon’ skills are taught in tertiary education and professional development programs around the country. It is the model on which mediation theory and the standards in the National Mediator Accreditation System are premised, and it provides a positive alternative option to positional negotiation.

The elements of DR negotiation 7.24 Transactional negotiations are the most common aspect of the practice of negotiation in both domestic and international contexts and in legal practice generally. Negotiations in DR contexts constitute the second most common form of negotiation practice. e knowledge, skills and attitudes negotiators need for success in transactional negotiations share many similarities with those for DR negotiations. While elements of both transactional and DR practice, particularly in lawyering, are addressed throughout [page 220] this work, the focus is predominantly on negotiation pro ciency in DR contexts. In this section some of the key elements of negotiation in DR practice are discussed.

Nature and motivation 7.25 In DR negotiations there is an existing con ict situation between the parties. ey are no longer doing a deal but dealing with a dispute. DR negotiation, when it is a standalone process per se, is distinguishable from

most other DR systems in terms of the absence of an independent nonpartisan intervenor conducting the process. In cases where negotiations are facilitated by such an intervenor, the system evolves into mediation or conciliation. In supported negotiations, professionals who are partisan and partial in their concern to promote the interests of one of the parties, and other supporters, are present to assist. is approach can be contrasted with unassisted negotiation where the parties operate without advisers or representatives in their respective camps.44 Negotiation in legal contexts is oen a standalone process but as indicated in the matrix in Chapter 3, and in other places throughout this book, negotiation is also an integrated aspect of almost all the processes and systems on the matrix. It is, for example, a critical component of mediation, conciliation and various stages of arbitration and litigation. 7.26 e parties may, of course, have very different motivations for engaging in DR negotiations.45 Apart from genuine desires for settlement, motives can include avoidance of adverse publicity, concerns about litigation costs, delaying tactics or attempts to solicit information from and about the other side. Optimally, however, the parties will enter negotiations predominantly to achieve settlement of their differences, and they will be advised to do so by their legal counsel.

Negotiation impacts 7.27 In terms of their impact, negotiations are processes in which individuals or organisations make decisions that primarily affect and impact themselves, but in some contexts the outcomes of negotiations have implications for outsiders as well. e difficulty in this situation is that parties external to a matter cannot, in terms of privity of contract principles, derive enforceable rights or obligations from processes in which they were not direct parties and from outcomes to which they did not consent.46 [page 221] 7.28

Many negotiations are conducted on a private and con dential basis,

and they do not become part of the public record, as court proceedings do. Even when negotiations enter the formal justice system, such as when one party brings proceedings over the validity of a negotiated settlement or seek its recti cation, there are restrictions on disclosing what was discussed in the negotiations by virtue of the common law ‘without prejudice privilege’ which precludes evidence being led on what transpired in good faith attempts to settle proceedings.47 7.29 e without prejudice privilege is a well-established example of common law courts encouraging the efficacy of negotiated settlements, and supporting parties who seek to avoid the time, costs and uncertainty of litigation. e courts have also articulated a public interest in supporting DR processes such as negotiation, partly to release court time.48 As to whether the negotiation and other DR transaction costs should be included as costs of the proceedings, even where they were unsuccessful, the better view is that they should be, even where the court did not refer the parties to the process in question.49 e cumulative effect of these judicial policies is to reinforce the parties’ intentions as regards the impacts of their negotiation endeavours.

Participants 7.30 In the context of commercial and legal negotiations, the participants comprise different combinations of disputants and professional advisers, who are predominantly solicitors and barristers. e roles of both personal and professional supporters could range from mere moral support arising from their physical presence at the negotiation table, to advisory support on legal, accounting or technical matters, through to professional advisers conducting most of the negotiations themselves. Professionals can and do also act as authorised agents and representatives for disputant principals and, with the authority to settle, can conclude negotiated settlements in their absence. Another variation is for representatives of corporations, community organisations or ad hoc groups to negotiate on behalf of the respective entities, with settlements still requiring approval and rati cation by the constituent group. 7.31

e differing roles and perspectives of partisan supporters can

change the nature of negotiations and the level of control retained by parties. In legal negotiations, the locus of control and power can shi from parties to legal advisers, resulting in the process becoming more legalistic and adversarial and less problem-solving in nature.50 [page 222] In other contexts, family members, union officials, accountants or specialist negotiators could be involved in providing support from their respective perspectives, impacting the process according to their relevant disciplines and experience. As regards the skills, techniques and tactics of all participants in negotiations, these are dealt with in practical texts on the subject.51

Negotiation preparation 7.32 Texts and manuals on the subject emphasise the importance of negotiation preparation.52 While preparing for negotiation makes eminent sense, as it does in most other endeavours of life, it can easily be overlooked in pressured legal practice.53 While expending time and resources on preparation may determine the success or failure of negotiations, it can be difficult to identify speci c forms of preparation and their tangible potential bene ts in such an open-ended enterprise. ere are two basic forms of preparation for negotiation: generic preparation which equips parties for all negotiation circumstances, and speci c preparation which is relevant to a particular negotiation. 7.33 Generic preparation for negotiation requires education, experience and re ective practice, sometimes over lengthy time periods. e elements of generic preparation indicate that experience alone does not equate with expertise. Generic preparation includes developing knowledge on predictable features of most negotiations, such as patterns of concessionmaking, appropriate forms of communication, creating and claiming value, conditional linked bargaining, effective risk analysis and crossing the last gap.54 is knowledge, and associated skills, can be learned and developed

for application in many, if not most, negotiation situations and in this sense preparation at this level is generic in nature. 7.34 Speci c preparation for a forthcoming negotiation involves parties determining and understanding their own rights, interests and priorities in their concrete [page 223] circumstances. It entails identifying interests that are paramount as opposed to those that are contingent, and differentiating among those that the party must obtain, would like to obtain and does not mind whether they obtain or not. A good negotiated outcome will involve parties attaining their priority needs and conceding on those of less importance, the latter becoming tradeable items in the bargaining process. A similar appraisal is made of the other side’s rights, interests and priorities, though these will be tentative assumptions and not ‘facts’. 7.35 Once interests, rights and priorities have been determined or estimated, negotiation parties can consider, in exible and creative ways, different options for settlement. While some negotiations will appear to have only one set of options, such as monetary settlements, negotiations in commercial, family, neighbourhood, workplace and organisational disputes might entertain a range of potential options. Negotiators should assess all the available options as far as possible in advance of entering a negotiation in terms of circumstantial realities and viability: that is, their practicality, efficiency, cost-effectiveness, and so on. Information and computer technology can contribute to preparation activities by providing negotiation assistance in the form of dedicated algorithms for particular circumstances.55 7.36 Lawyers might have speci c preparation obligations for negotiations. eir general responsibilities include investigation of relevant facts and documents and research of the applicable law. en, in the light of the available facts and applicable law, lawyers advise clients on their rights and obligations, on evidential issues and on likely court outcomes should a

dispute go to trial aer unsuccessful negotiations. In well-worn areas of the law, this preparation will be relatively easy; for example, in personal injury and workers’ compensation situations there are multiple precedents and settlement parameters which are relatively con ned. However, even where there has been adequate preparation on relevant legal principles and precedents, uncertainties might remain over the facts and evidence because they rely on the exigencies of witnesses and experts, their performances in giving evidence and their responses to cross-examination. Nonetheless, the advice of lawyers on these issues, prior to entering negotiations, can assist clients to assess their risks in relation to different courses of action open to them, both within and outside the negotiation context. Other forms of preparation concern predicting negotiating tactics during negotiations and the division of responsibilities, where relevant, among lawyers and other team members. [page 224]

Negotiation procedure 7.37 Negotiation procedure refers to the way the system proceeds through various stages or phases — its form as opposed to its content. e literature, skills books and training courses on the subject attempt to identify various analytical stages in negotiation: organisational matters on venue and timing, provision of information and document exchange, introductions and opening presentations, agenda setting, issue exploration, consideration of options, narrowing of differences, bargaining, trade-offs and agreements, draing of settlement terms and termination.56 ese formulations mimic the ‘standard’ mediation process.57 However, the immense variety in negotiation circumstances precludes any neat formulation of its stages or phases. Moreover, there is no independent facilitator to structure the process even if there is an agreed procedure. In short, the negotiation process is highly variable and there may be many ‘steps forward’ and ‘steps backward’ as it unfolds. It might, in addition, be

difficult to say when negotiations really began, and when they have nally concluded. 7.38 Negotiation procedures must, at the least, accommodate some form of communication between respective parties, without which there can be no authentic negotiation.58 ere have always been different modes of communication between negotiating parties, such as face-to-face conversation, exchange of correspondence and telephonic dialogue. New technologies have increased the modes available to negotiators who can operate through exchanges of emails, through video-conferencing and its elaborations and through the use of chat spaces, skype or dedicated websites.59 [page 225] A single negotiation conducted over different times and in different places could use two or more of these modes. If negotiating parties break direct communications between themselves, as where states sever diplomatic relations with each other or former spouses stop conversing altogether, negotiations can only proceed if conducted indirectly through legal representatives, agents or informal intermediaries. 7.39 ere may in some cases need to be preliminary ‘talks about talks’ to achieve consensus on how negotiations are to be conducted, for example, in terms of who will attend, agenda items, the extent of publicity, seating arrangements, and so on. Process and procedure disputes can always arise over matters such as document disclosure, the involvement of additional participants such as experts, authority to settle or the breadth of the negotiation agenda. In respect of such differences, more powerful parties might assert their will over weaker parties or there might be a collaborative ad hoc negotiation over the respective procedural issue. A party’s control over the negotiation procedure may not be absolute, however, particularly where there is some regulatory control over the conduct of the negotiation process.

Negotiation scope and content 7.40 e scope of negotiations can focus on whatever issues the parties agree upon. ere are no formalities in relation to agendas and no jurisdictional restrictions. e full gamut of disputes, con icts, complaints and problems are all potentially amenable to being addressed through the negotiation process, with no formalities, such as the technical requirement of a ‘dispute’, as exists in determinative processes.60 7.41 e content of negotiations refers to the actual issues over which the parties are negotiating and bargaining, namely the factual circumstances of a dispute and the substantive issues which need to be managed or resolved. As already noted, there are few restrictions on the substantive issues over which parties can choose to negotiate. It goes without saying, however, that some issues cannot be legally or morally negotiated — for example, the trafficking of children or trade in endangered species, which will be neither lawful nor enforceable in formal justice systems because they breach criminal codes, principles of morality and public policy, and relevant international law standards, even when negotiated by nation states.61 ere are other instances where the law potentially intrudes into the content of what is negotiable by individuals, businesses and government agencies. For example, there would be legal restrictions on the implementation of negotiated agreements that, while not intrinsically criminal in nature, might be tainted by coercion or duress in their making. [page 226] 7.42 e content of negotiations is also con ned to ‘negotiable’ issues. It is easy to identify matters over which there is self-evident negotiability, such as the amount of compensation to be paid for medical negligence, or the time at which a parent will return the children to the parent they live with aer spending time with them. It is less easy to identify issues that are nonnegotiable, other than at a moral or ethical level. In some cultures, personal relationships, such as entering into marriage, would be regarded as nonnegotiable, while in others there could be extensive negotiations over

arranged marriages.62 Likewise, surrogacy arrangements might be regarded as matters susceptible to negotiation in some jurisdictions but not in others. In the criminal justice system, it might be thought in some quarters that matters of guilt and sentencing should not be negotiable, but in many jurisdictions these matters are, as a matter of practice, negotiated.63 Even on human rights issues, philosophical discourse, buttressed by legal policy and principle, might identify non-negotiable rights and liberties, but realities and resources might introduce extensive debate and bargaining over contested rights issues in educational or health service contexts before they are scheduled to be dealt with in advisory or determinative processes. 7.43 Another dimension of non-negotiability arises when a party indicates that it is not prepared to negotiate, nor even prepared to consider, certain issues, such as the interstate relocation of children in a parenting dispute. If this is indeed the case, and the recalcitrant party cannot be persuaded otherwise, the other party might have to seek a determination of the non-negotiable issue outside of negotiation, such as in court. In a looser sense, issues might be categorised as non-negotiable where one side refuses to communicate with the other, for example state security agencies refusing to talk with hostage-takers. is highlights the basic negotiation reality that there has to be direct, facilitated or brokered communication in order for negotiations to take place. Nonetheless, negotiations can still occur where a party initially insists that an issue is non-negotiable,64 particularly where there is no other option for ending a problem and negotiation is ultimately the only way forward. It is clear, however, that decisions [page 227] to engage in negotiations and about the content of negotiations can be complex and involve hard questions of policy, ethics and tactics.65

Negotiation outcomes and effectiveness 7.44 As regards outcomes, it is intrinsic to the nature of negotiations that they may produce no agreement at all, and therefore no nalisation of a

dispute, unlike determinative processes.66 ere is no outcome, for example, where one party unilaterally terminates or walks out of negotiations or where both parties mutually agree that there will be no settlement in the circumstances. While these may appear to be ‘failed’ DR processes, negotiations may still be productive in de ning, re ning or limiting the issues on which further dispute resolution is required, suggesting the value of negotiators draing lists of agreed issues and those on which the parties need to work further. Other bene ts from a ‘failed’ negotiation might include, for example, gaining time, obtaining new information or having had exposure to the likely strengths and weaknesses of the other party as a potential witness. 7.45 Where negotiations do produce settlements, different criteria exist for assessing their effectiveness. Effectiveness could be measured in terms of substantive factors such as whether settlements are within the normal ‘range’ of outcomes for such disputes,67 or are outside the range because of the dominant in uence of powerful parties in forcing others into settlement. Substantively unfair outcomes may endure, or may be short-sighted and short-lived if a party has the resources and legal grounds for overturning agreements, or has business networks for occasioning subsequent damage to the other side. Effectiveness could also be measured in terms of factors pertaining to the procedure of a negotiation such as whether the process was fair for all parties, it provided opportunities to speak and be heard and it avoided adversarial and destructive tactics. Here, the values and goals of DR discussed in Chapter 5 are important, including those relating to dignity, such as recognition of the status of all parties involved, acknowledgment of their individual dilemmas and an overall sense of security and safety in the negotiation room. ese second-order dimensions of effectiveness explain why mediators can potentially contribute signi cantly to negotiations even without advising parties on substantive issues. 7.46 Negotiated outcomes should, ideally, satisfy as many of each side’s interests as possible, or at least allow them to attain their main objectives, and to do so in a process that is efficient, has minimal transaction costs and preserves personal or business

[page 228] relationships.68 Conversely, outcomes should not result in unworkable agreements, leave value on the negotiating table, incur disproportionately high transaction costs or impair business or personal relations. Negotiated agreements should also not damage unrepresented third-party interests, such as those of ratepayers in planning negotiations or subcontractors in construction projects.69 7.47 Reference was made in Chapter 2 to the distinction between parties’ interests and positions in dispute situations. e identi cation of interests allows negotiating parties in assessing proposed outcomes to determine whether they advance their real needs and priorities, compared with reactive responses at the positional level which may take negotiations down an unproductive path. e literature recommends that parties assess options and alternatives in terms of objective criteria, such as market values, the shadow of the law, industry standards or simple common sense.70 However in the heat of negotiations this may be more difficult than it appears. Even ostensibly objective criteria, such as the law or an expert’s assessment, may not be accepted by all sides. Certainly, a partisan legal opinion obtained by one negotiator is not likely to be accepted as objective by the other, who may in any event have obtained their own ‘equal and opposite’ legal advice. e same considerations apply to the opinions of other experts, such as doctors, engineers and accountants.71 7.48 Nonetheless, the invocation of external, objective standards can be useful in assisting negotiating parties to concede to external norms and avoid appearances of conceding to the other side’s wishes. Moreover, in some cases the objective standards may work against arbitrary outcomes and prove to be in uential in breaking negotiation impasses.72 is line of thinking might lead to parties agreeing on a single mutually acceptable expert, or on a process for obtaining an objective assessment, both of which might assist the negotiations. 7.49 Another basis for determining the ‘value’ of what is on offer in a negotiation is to compare it with the best possible outcome away from the negotiation table. It makes

[page 229] sense that if what is being offered at negotiation is better than the best a party could attain elsewhere it would be wise to accept it, and the converse is also true. 7.50 is notion has been immortalised in the concept of the Best Alternative to a Negotiated Agreement (BATNA).73 In determining their BATNA, negotiating parties must appraise their most optimal position if there were no negotiated agreement — in legal contexts the best alternative option may comprise a successful litigation outcome with maximum costs recovery. is is a more uid and complex notion than the parties’ simplistic ‘bottom lines’ with which they entered negotiations, as new information may have surfaced which renders them more vulnerable, or more powerful, in terms of asserting their legal rights than previously thought. Where it appears, for example, that a witness or expert on the other side might be highly in uential in a future determinative process, it would be wise for the respective negotiator to change their assessment of what is on offer in light of a less favourable BATNA. Likewise, the nancial and legal resources and destructive power of the other side might indicate that abandoning a claim is the best course of action. In short, BATNAs can change during the course of negotiations, requiring reassessment of proposals being offered. While prospective delays, nancial outlays, opportunity costs and the uncertainty of litigation might suggest a poor BATNA in comparison to what is on offer at the negotiation table, the converse also applies, and a negotiating party might assess they can do better through outside channels than through accepting what is on offer. 7.51 e objective of the BATNA exercise is for parties to consider factors other than money, such as personal priorities, business imperatives and public reputation. Nevertheless, making wise negotiation decisions can be complex and complicated. Some lawyers undertake cost-bene t analyses which measure costs against the likelihood of litigation success, but this might be a simplistic approach as cost-bene t exercises are prone to cognitive and social biases which may lead to unrealistic assessments and expectations. In addition, it may be hard for negotiators to be realistic about

the ‘pain of litigation’ at some distant point in the future, as the mind is inclined to project current hopes and expectations into future expectations. A sophisticated risk analysis, which links the costs and bene ts of negotiation options to life choices in matters of personal health, business viability, certainty, stress reduction, good commercial relations, reputation, and the like, is the best way of addressing these difficulties, and this is a specialised exercise in itself.74 [page 230]

Transactional negotiation 7.52 Transactional negotiation involves parties developing rules, principles and procedures for determining their future rights and obligations and how they behave towards and interact with each other during the period of a contract or other relationship.75 Transactional negotiation can be undertaken informally for social purposes, such as atmates developing cohabitation rules they do not intend to be legally binding, sometimes referred to as ‘so law’;76 it can also occur formally for legal purposes, such as the negotiation of a lease agreement between the atmates and their landlady to establish ‘hard law’ with enforceable rights, duties and remedies. It is not only domestic negotiations which lead to so law outcomes — they are found in industry guidelines designed to impact members’ behaviours and practices and in codes of conduct developed by transnational corporations on environmental, health and employment issues. ese norms also constitute so law in that they are produced through the self-regulated negotiations of those expected to comply with them and their enforcement is in the power of the same actors, without external compulsion. Despite their limited legal status, they can be effective forms of regulation through the expectations they create and the moral compliance they secure among relevant target groups.77 us transactional negotiations can work effectively in a preventative way.78 7.53 Where transactional negotiations are intended to create legally binding agreements they are usually precursors to the draing and signing

of contracts involving individuals, corporations or the state.79 Negotiations could also precede other forms [page 231] of rule-making such as a national constitution, a parliamentary statute or subsidiary regulations affecting a speci c community.80 7.54 Factors of power are as signi cant in transactional negotiation as in DR negotiation, notwithstanding the absence of a con ict between the parties when they commence. Individuals, rule-making agencies and treaty negotiators can all engage in positional or problem-solving styles, and frequently engage in both.81 Where transactional negotiations are intended to create legally binding outcomes, they conclude with the draing and signing of contracts, deeds of agreement or treaties involving individuals, corporations or states.82 At the international level, negotiations between states, between states and non-state entities and among global institutions can lead to high-level treaties or conventions on trade and investment topics,83 to so law agreements such as codes of corporate conduct and industry standards or to resolutions of international institutions such as the United Nations.84 7.55 As has already been noted, transactional negotiations can have a preventative quality in that they oen provide the basis for later DR negotiation.85 In times of heightened dispute resolution awareness, a contemporary feature of transactional negotiations is the inclusion of DR procedures for use in future con icts or disputes over performance obligations. ese procedures, designed to prevent problems over appropriate DR processes when disputes arise, might themselves be the subject of [page 232] intense and protracted negotiations. e agreed procedures may involve

reviewing contractual duties at prescribed dates or clarifying vague and generalised language in circumstances short of actual disputes. 7.56 All agreements involving transactional work that are relevant to long-term business relationships among negotiating parties, such as treaties, joint ventures, construction projects and business partnerships, require ongoing iterations of negotiation and renegotiation. e continuing negotiations serve to massage the relationship, clarify ambiguous responsibilities and prevent disputes from emerging.86 ey may also have unintended consequences: for example, business parties may develop understandings that appear to suit current needs but differ from the terms of the original negotiated agreement, a disjunction which may later give rise to disputes, particularly where lawyers become involved. Indeed, some commercial players pay limited attention to the negotiation of formal legal terms, preferring to rely on mutual understandings, accepted conventions within their economic sector, risk management strategies and preservation of business reputations.87 7.57 While transactional negotiations are usually conducted without independent assistance, an external party could facilitate the process, for example where a government agency facilitates rule-making by industry bodies or a private facilitator assists parties to negotiate on the conditions of a merger or the terms of a joint venture agreement.88 is morphs negotiation into a form of facilitated process.

Negotiation ethics 7.58 Negotiation has traditionally been regarded as a relatively unregulated sphere of social activity but this is now less the case than it once was. Despite the absence of independent intervenors supervising negotiations, there can be external regulation of negotiation conduct, behaviours and ethics. From being a largely unregulated system there has over time been a trend towards greater regulation of negotiation, through, for example, statutory prescriptions, contractual obligations, standards in industry codes, court referral orders and professional conduct rules. 7.59

An initial form of regulation (which was mentioned in Chapter 1)

involves statutory requirements that parties attempt DR options prior to taking more formal steps such as issuing legal proceedings. For example, before Federal Court proceedings can be commenced prospective plaintiffs are required to lodge a ‘genuine steps’ statement [page 233] specifying how the parties have attempted to reach resolution of the dispute.89 While the legislation does not stipulate negotiation, any genuine steps attempts are likely in practice to involve negotiation of some sort, whether it is unassisted negotiation, supported negotiation or negotiation in a mediation context. 7.60 A second form of regulation exists where there is regulatory compulsion to negotiate and conduct standards are imposed on the negotiation endeavours — these could relate to duties of disclosure, good faith obligations or reasonable endeavours requirements for all negotiation parties. An illustration is found in the Native Title Act 1993 (Cth) where parties involved in native title claims are required to negotiate in good faith in situations where there can be signi cant differences in access to resources, funding, information and legal expertise.90 7.61 A further regulatory possibility is found where courts make external referrals to DR processes and the order regulates their operation. In practice, however, referrals are only made to negotiation, which is nested in systems of mediation or conciliation, and not in its standalone form, so that this form of regulation in reality applies to facilitated negotiation occurring in those facilitated or advisory contexts. 7.62 Apart from external regulation of negotiations, parties might themselves regulate through contract how they deal with disputes arising in the performance of contractual obligations. is could include a negotiation element as the rst stage of a multi-tiered process, oen conditioned by a good faith or reasonable endeavours requirement.91 For example, a convening clause in the original agreement could require the parties, in the event of a dispute, to confer and negotiate over how they will deal with it.

is could result in the parties selecting to refer a dispute to arbitration, in which case further negotiation will be required over the arbitrator’s identity and powers, the seat and law of arbitration, the issues to be arbitrated and applicable arbitral rules.92 is possibility illustrates the pervasiveness of negotiation within DR systems. 7.63 Lawyers in negotiations can also be regulated by obligations to advise clients on relevant procedural options if negotiations are not effective and on the estimated costs of proceeding to processes such as arbitration or litigation. For example, as mentioned in Chapter 1, under r 7.2 of the Australian Solicitors Conduct Rules: [page 234] A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation.93

7.64 An indirect form of lawyer regulation is found in general professional obligations, for example the duty not to make statements which grossly exceed legitimate assertions as to the rights or entitlements of clients or not to use tactics that go beyond legitimate advocacy and are designed to embarrass or frustrate other parties.94 While not focused on negotiation in particular, and while seldom invoked in relation to negotiation practices, these standards are potentially applicable in the situations under discussion. 7.65 An increasingly important issue, particularly in legal negotiations, concerns the ethical standards applicable to negotiators.95 Nested within the regulatory regimes for negotiation, referred to above, there can be express or implied ethical imperatives, for example to disclose information or to negotiate in good faith. More complicated are negotiating tactics which raise potential ethical issues, such as exaggerations, withholding information and using tricks, threats and duplicitous tactics, not all of which might constitute contractual defences against the enforcement of negotiated agreements.96

7.66 Leaving aside questions of personal morality or business ethics pertaining to negotiation tactics, the question arises as to how codes of conduct for lawyers and other professionals deal with these eventualities. Traditionally, professional codes have been silent or had only indirect implications for lawyers’ negotiation behaviour but some general obligations have been broad enough to cover negotiation, for example in relation to candour, con ict of interest or con dentiality issues. us, misleading the other side through non-disclosure of relevant information in negotiation could constitute professional misconduct.97 Lawyers, aer all, do have professional obligations not only to pursue their clients’ best interests but also broader responsibilities to the courts, to the rule of law and to the administration of justice.98 As professional conduct rules have [page 235] relatively generalised statements concerning fairness and candour in negotiations, it has been contended for some time that there should also be a code of ethics for lawyer negotiations, which would include professional sanctions for breaches.99 7.67 In reality, all ethical codes have limits in terms of their potential impacts on negotiation practice. Not only do applicable norms tend to be abstract in their formulation and generalised in their reach but the normal privacy and con dentiality of many negotiations mitigates against their effective enforcement. In this context, the internal ethics of lawyers and scrutiny by their clients, as well as broader reputational interests, might be more likely constraints on unethical negotiation behaviours.100

Conclusion 7.68 is chapter has described, analysed and evaluated the process of negotiation in both DR and transactional contexts. While it can be contended that, in its many forms and styles, negotiation is itself the most common method of problem-solving and resolving disputes, it also constitutes the centre of gravity in other DR systems, in particular mediation

and conciliation. Moreover, the ubiquity of negotiation in business and law entails that it is interspersed in the procedural niceties of arbitration, adjudication and litigation, as well as in the various blended DR systems. Once parties are operating within these processes there might be a series of negotiations over different procedural and substantive issues, and this could lead to negotiated settlements outside the strict parameters of the formal DR process in question. erefore, while negotiation can be a standalone process, it can also be an integral part of other formal and informal DR processes. For this reason, it can be considered as the most fundamental of the DR options. 1.

See particularly Nadja Alexander, Jill Howieson and Kenneth H Fox, Negotiation: Strategy, Style, Skills (LexisNexis Butterworths, 3rd ed, 2015); Peter Condliffe, Con ict Management (LexisNexis Butterworths, 6th ed, 2019) ch 6; Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 4th ed, 2020) ch 2. See also, for a small sample of the large body of available scholarship and literature on negotiation: Melvyn Eisenberg, ‘Private Ordering rough Negotiation: Dispute Settlement and Rulemaking’ (1976) 89(4) Harvard Law Review 637; Herb Cohen, You Can Negotiate Anything (Eden, 1980); Leo Hawkins, Michael Hudson and Robert Cornall, e Legal Negotiator: A Handbook for Managing Legal Negotiations More Effectively (Longman, 1991); Robert H Mnookin and Lawrence E Susskind (eds), Negotiating on Behalf of Others: Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians, and Everybody Else (Sage, 1999); Robert Mnookin, Scott Peppet and Andrew Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Belknap Press, 2000); Howard Raiffa, John Richardson and David Metcalfe, Negotiation Analysis: e Science and Art of Collaborative Decision Making (Harvard University Press, 2002); I William Zartman and Jeffrey Z Rubin, Power and Negotiation (University of Michigan Press, 2002); Leib Leventhal, ‘e Foundation and Contemporary History of Negotiation eory’ (2006) 17(2) Australasian Dispute Resolution Journal 70; John Wade, ‘Negotiating with Difficult People’ (2010) 2(2) Faulkner Law Review 221; Roger Fisher, William L Ury and Bruce Patton, Getting To Yes: Negotiating Agreement Without Giving In (Penguin, revised ed, 2011); Dean G Pruitt, Negotiation Behavior (Academic Press, 2013); Leigh ompson, e Mind and Heart of the Negotiator (Pearson, 6th ed, 2014); Ho-Won Jeong, International Negotiation: Process and Strategies (Cambridge University Press, 2016); Richard G Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People (Penguin, 3rd ed, 2018); Andrea Kupfer Schneider and Christopher Honeyman (eds), Negotiation Essentials for Lawyers (ABA, 2019); Roy J Lewicki, David M Saunders and Bruce Barry (eds), Essentials of Negotiation (McGraw-Hill/Irwin, 7th ed, 2020); Stephen B Goldberg et al, Dispute Resolution: Negotiation, Mediation, and Other

Processes (Aspen Law & Business, 7th ed, 2020); Carrie Menkel-Meadow, Andrea Kupfer Schneider and Lela Porter Love, Negotiation: Processes for Problem Solving (Wolters Kluwer, 3rd ed, 2020); Michael McHugh, ‘Mediation and Negotiation in Legal Disputes’ (2021) 31(2) Australasian Dispute Resolution Journal 104; D Marc Kilgour and Colin Eden, Handbook of Group Decision and Negotiation (Springer, 2nd ed, 2021). See also Susan Hackley, ‘Vale Professor Roger Fisher’ (2012) 23(4) Australasian Dispute Resolution Journal 232. 2.

See Arthur Lall, Modern International Negotiation (Columbia Press, NY, 1966) 6.

3.

Maxine Evers, ‘Children of the 21st Century: Are ey Skilled in the Art of Negotiation?’ (2005) 16(2) Australasian Dispute Resolution Journal 116.

4.

is point was also made in the discussion of con ict in Chapter 2. See, eg, Hans de Waal, Our Inner Ape (Granta Publications, 2005) for various examples of how primates ‘negotiate’ and ‘conciliate’ their con icts in the wild.

5.

Intra-personal negotiation is the corollary of intra-psychic con ict referred to in Chapter 2.

6.

See, eg, Pervez N Ghauri and Jean-Claude Usunier (eds), International Business Negotiations (Emerald Group Publishing, 2nd ed, 2003); Tom Altobelli, ‘Negotiation at the Small End of Town: Some Negotiating Behaviours of Small Business’ (2004) 15(1) Australasian Dispute Resolution Journal 14; Christian Bühring-Uhle, Lars Kirchhoff and Gabriele Scherer, Arbitration and Mediation in International Business (Kluwer Law International, 2006); Andrea Kupfer Schneider and Nancy Mills, ‘What Family Lawyers are Really Doing When ey Negotiate’ (2006) 44(4) Family Court Review 612; Julie Macfarlane, ‘e Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law’ (2008) Journal of Dispute Resolution 61; Lawrence S Bacow and Michael Wheeler, Environmental Dispute Resolution (Springer Science & Business Media, 2013); Claire Holland and Donnalee Taylor, ‘Was at Said with a Smile? Factors In uencing Effective Online Negotiations’ (2016) 27(2) Australasian Dispute Resolution Journal 103; Katherine Curnow et al, ‘Negotiation and Regulation of Land Access Agreements: Lessons from Queensland’ (2017) 10(2) e Journal of World Energy Law & Business 117.

7.

See Jay Folberg and Dwight Golann, Lawyer Negotiation: eory, Practice and Law (Aspen Law & Business, 2006); Bobette Wolski, Skills, Ethics and Values for Legal Practice (Lawbook, 2009); Charles B Craver, Effective Legal Negotiation and Settlement (LexisNexis Butterworths, 2012); Michaela Keet, ‘Litigation Risk Assessment: A Tool to Enhance Negotiation’ (2017) 19(1) Cardozo Journal of Con ict Resolution 17.

8.

Many of the classic texts on negotiation are cited in (n 1). See also, eg, Daniel Druckman, Negotiation: Social Psychological Perspectives (Sage Publications, 1977); Philip H Gulliver, Disputes and Negotiation: A Cross Cultural Perspective (Academic Press, 1979); Leib Leventhal, ‘e Foundation and Contemporary History of Negotiation eory’ (2006) 17(2) Australasian Dispute Resolution Journal 70.

9.

See, eg, Steven J Brams, Negotiation Games: Applying Game eory to Bargaining and Arbitration: Volume 2 (Psychology Press, 2003); James D Miller, Game eory at Work (McGraw Hill, 2003); Richard L West and Lynne H Turner, Introducing Communication eory: Analysis and Application (McGraw-Hill, 2006); Alan G Sanfey, ‘Social Decision-Making: Insights from Game eory and Neuroscience’ (2007) 318(5850) Science 598; Phillip Glenn and Lawrence Susskind, ‘How Talk Works: Studying Negotiation Interaction’ (2010) 26(2) Negotiation Journal 117; Steven J Brams, Game eory and Politics (Courier Corporation, 2011); Johannes Wagner, ‘What Makes a Discourse a Negotiation?’ in Konrad Ehlich and Johannes Wagner (eds), e Discourse of Business Negotiation (De Gruyter Mouton, 2011) 9–36. Marianne Dainton and Elaine D Zelley, Applying Communication eory for Professional Life: A Practical Introduction (Sage Publications, 2014); Ingmar Geiger, ‘From Letter to Twitter: A Systematic Review of Communication Media in Negotiation’ (2020) 29(2) Group Decision and Negotiation 207; Zheng Tang, ‘International Judicial Cooperation in Game eory’ (2020) 11(4) Journal of International Dispute Settlement 522; Amy Rose Grubb et al, ‘From Deployment to Debrie ng: Introducing the DIAMOND Model of Hostage and Crisis Negotiation’ (2021) 22(1) Police Practice and Research 953.

10.

See Chapter 2 for further discussion. See also Jeffery Z Rubin and Bert R Brown, e Social Psychology of Bargaining and Negotiation (Academic Press, 1975); Dean G Pruitt, Negotiation Behavior (Academic Press, 1981); Clark Freshman, Adele Hayes and Greg Feldman, ‘e Lawyer-Negotiator as Mood Scientist: What We Know and Don’t Know about How Mood Relates to Successful Negotiation’ (2002) Journal of Dispute Resolution 1; Chris Guthrie, ‘In uence: Principles of In uence in Negotiation’ (2004) 87(4) Marquette Law Review 829; Chris Guthrie and David F Sally, ‘e Impact of the Impact Bias on Negotiation’ (2004) 87(4) Marquette Law Review 817; Leigh ompson, Margaret Neale and Marwan Sinaceur, ‘e Evolution of Cognition and Biases in Negotiation Research: An Examination of Cognition, Social Perception, Motivation, and Emotion’ in Michele J Gelfand and Jeanne M Brett (eds), e Handbook of Negotiation and Culture (Stanford Business Books, 2004) 7–44; Andrea Caputo, ‘A Literature Review of Cognitive Biases in Negotiation Processes’ (2013) 24(4) International Journal of Con ict Management 374; Michele J Gelfand and Joshua C Jackson, ‘Cultural Psychology of Negotiation’ in Dov Cohen and Shinobu Kitayama (eds), Handbook of Cultural Psychology (e Guilford Press, 2nd ed, 2020) ch 24. See also Deanna Foong, ‘Emotions in Negotiation’ (2007) 18(3) Australasian Dispute Resolution Journal 186; Ken Skinner, ‘Emotion in Mediation’ (2015) 26(4) Australasian Dispute Resolution Journal 241; Jayr Teng, ‘Emotion and its Role in Negotiation — Valuable Tool or Unnecessary Hindrance?’ (2015) 26(1) Australasian Dispute Resolution Journal 51.

11.

See, eg, Jonathan R Cohen, ‘Adversaries? Partners? How about Counterparts? On Metaphors in the Practice and Teaching of Negotiation and Dispute Resolution’ (2003) 20(4) Con ict Resolution Quarterly 433; Christopher Honeyman, James Coben and

Giuseppe De Palo, Rethinking Negotiation Teaching (Lulu.com, 2009); Nikola Simkova and Zdenek Smutny, ‘Comparison of Unassisted and Smart Assisted Negotiation in B2B Relationships from the Perspective of Generation Y’ (2019) 10(8) Information 263. 12.

e term ‘self-mediation’ is occasionally used in the workplace context to refer to employees with a long-term and interdependent relationship sorting matters out themselves — see Mieke Brandon and Leigh Robertson, Con ict and Dispute Resolution: A Guide for Practice (Oxford University Press, 2007) 59–60.

13.

Kathy A Bryan, ‘Why Should Businesses Hire Settlement Counsel’ (2008) Journal of Dispute Resolution 195; Carol Zeiner, ‘Getting Deals Done: Enhancing Negotiation eory and Practice through a erapeutic Jurisprudence/Comprehensive Law Mindset’ (2016) Harvard Negotiation Law Review 21; Forrest S Mosten, ‘Lawyer as Peacemaker: Building a Successful Law Practice Without Ever Going to Court’ (2009) 43(3) Family Law Quarterly 489; Paolo Davide Farah, ‘Sustainable Energy Investments and National Security: Arbitration and Negotiation Issues’ (2015) 8(6) e Journal of World Energy Law and Business 497.

14.

Pruitt, (n 1).

15.

Carrie Menkel-Meadow, ‘Legal Negotiation in Popular Culture: What are We Bargaining For?’ in Michael Freeman (ed), Law and Popular Culture (Oxford University Press, 2005); David Kahane, ‘Dispute Resolution and the Politics of Cultural Generalization’ (2003) 19(1) Negotiation Journal 5. Compare with Michael Asimow, ‘Popular Culture and the Adversarial System’ (2007) 40(2) Loyola of Los Angeles Law Review 653.

16.

Fisher, Ury and Patten, (n 1).

17.

See also Chapter 4 and Chapter 8.

18.

Masters v Cameron (1954) 91 CLR 353, 360. See also David P Baron, ‘Private Ordering on the Internet: e eBay Community of Traders’ (2002) 4(3) Business and Politics 245; Howard Fink and June Carbone, ‘Between Private Ordering and Public Fiat: A New Paradigm for Family Law Decision-Making’ (2003) 5(1) Journal of Law and Family Studies 1; Jaime Dodge, ‘e Limits of Procedural Private Ordering’ (2011) 97(4) Virginia Law Review 723; Judith Resnik, ‘Diffusing Disputes: e Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’ (2014) 124(8) Yale Law Journal 2804; Margaret Jane Radin, ‘e Fiduciary State and Private Ordering’ in Paul B Miller and Andrew S Gold (eds), Contract, Status, and Fiduciary Law (Oxford University Press, 2016); Carlo Vittorio Giabardo, ‘Private Justice: e Privatisation of Dispute Resolution and the Crisis of Law’ (2020) 4 Wolverhampton Law Journal.

19.

Paul J Taylor and WA Donohue, ‘Lessons from Hostage Negotiation’ in Andrea Kupfer Schneider and Christopher Honeyman (eds), e Negotiator’s Fieldbook (American Bar Association, 2006) 667.

20.

See, eg, Levent Altinay and Maureen Brookes, ‘Factors In uencing Relationship Development in Franchise Partnerships’ (2012) 26(4) Journal of Services Marketing 278; Adam Ship and Danny McMullen, ‘e Legal Relevance of Bargaining Power in US and Canadian Franchise Litigation: A Comparative Perspective North and South of the Border’ (2015) 34(4) Franchise Law Journal 571.

21.

Rebecca J Wolfe and Kathleen L McGinn, ‘Perceived Relative Power and its In uence on Negotiations’ (2005) 14(1) Group Decision and Negotiation 3; Jennifer R Overbeck, Margaret A Neale and Cassandra L Govan, ‘I Feel, erefore You Act: Intrapersonal and Interpersonal Effects of Emotion in Negotiation as a Function of Social Power’ (2010) 112(2) Organizational Behavior and Human Decision Processes 126.

22.

Cynthia Torevasei, e Protection of Consumers in Browse Wrap and Click Wrap Contracts (University of Johannesburg, 2019); Tom Mozingo, ‘Revisiting the Enforceability of Online Contracts: e Need for Unambiguous Assent to Inconspicuous Terms’ (2019) 43(3) Seattle University Law Review 1065; Stephen Mason, Electronic Signatures in Law (University of London Press, 4th ed, 2017).

23.

John L Graham et al, ‘Buyer-Seller Negotiations Around the Paci c Rim: Differences in Fundamental Exchange Processes’ (1988) Journal of Consumer Research 48.

24.

Roy J Lewicki, Stephen E Weiss and David Lewin, ‘Models of Con ict, Negotiation and ird Party Intervention: A Review and Synthesis’ (1992) 13(3) Journal of Organizational Behavior 209; Bruce Barry and Raymond A Friedman, ‘Bargainer Characteristics in Distributive and Integrative Negotiation’ (1998) 74(2) Journal of Personality and Social Psychology 345; Christopher Halburd, ‘On the Manner of Negotiating with Princes: Principled Negotiation During the Reign of the Sun King’ (2002) 13(4) Australasian Dispute Resolution Journal 223; Bianca Beersma and Carsten KW De Dreu, ‘Integrative and Distributive Negotiation in Small Groups: Effects of Task Structure, Decision Rule, and Social Motive’ (2002) 87(2) Organizational Behavior and Human Decision Processes 227; David A Hoffman, ‘A Primer on Successful Negotiation’, Boston Law Collaborative (2003); Olivier Barreteau, Christophe Le Page and Patrick D’Aquino, ‘Role-Playing Games, Models and Negotiation Processes’ (2003) 6(2) Journal of Arti cial Societies and Social Simulation (online); Anthony Haly, ‘e Personal Injuries Proceedings Act Qld — Principled Negotiation or Enforced Compromise?’ (2003) 14(3) Australasian Dispute Resolution Journal 222; Just Balstad, ‘What Do Litigants Really Want? Comparing and Evaluating Adversarial Negotiation and ADR’ (2005) 16(4) Australasian Dispute Resolution Journal 244; Mary Power, ‘Negotiation in the News: e Role of Newspaper Reporting in the Broader Social Acceptance of Principled Negotiation’ (2006) 17(1) Australasian Dispute Resolution Journal 20; Tony Bogdanoski, ‘Medical Negligence Dispute Resolution: A Role for Facilitative Mediation and Principled Negotiation?’ (2009) 20(2) Australasian Dispute Resolution Journal 77; Mark Dickinson, ‘An Evaluation of Non-Adversarial Models of Negotiation’ (2009) 20(4) Australasian Dispute Resolution Journal 212; Murillo de Oliveira Dias, ‘e Four-Type Negotiation Matrix: A Model for Assessing Negotiation Processes’ (2020) 8(5) British Journal of Education 40. See

also Carolyn Brooks, ‘Don’t Fence Us In’ (1998) 9(2) Australian Dispute Resolution Journal 94; Janice Nadler, Leigh ompson and Leaf Van Boven, ‘Learning Negotiation Skills: Four Models of Knowledge Creation and Transfer’ (2003) 49(4) Management Science 529. 25.

Carrie Menkel-Meadow, ‘Toward Another View of Legal Negotiation: e Structure of Problem Solving’ (1983) 31(4) UCLA Law Review 754, 756–7. See also Noam Ebner and Yael Efron, ‘Moving Up: Positional Bargaining Revisited’ in Honeyman, Coben and De Palo, (n 11) 251–68; Alexander, Howieson and Fox, (n 1) ch 2.

26.

Russell Korobkin, ‘Against Integrative Bargaining’ (2007) 58(4) Case Western Reserve Law Review 1323.

27.

David Luban, ‘Bargaining and Compromise: Recent Work on Negotiation and Informal Justice’ (1985) 14(4) Philosophy and Public Affairs 397; Avishai Margalit, On Compromise and Rotten Compromises (Princeton University Press, 2009).

28.

See, eg, Deborah R Hensler, ‘Glass Half Full, a Glass Half Empty: e Use of Alternative Dispute Resolution in Mass Personal Injury Litigation’ (1994) 73(7) Texas Law Review 1587; Jennifer K Robbennolt, ‘Attorneys, Apologies, and Settlement Negotiation’ (2008) 13 Harvard Negotiation Law Review 349.

29.

Bruce Patton, ‘Negotiation’ in Michael L Moffitt and Robert C Bordone (eds), e Handbook of Dispute Resolution (John Wiley & Sons, 2012) 279–303. Noam Ebner and Yael Efron, (n 25); Pieter TM Desmet, David De Cremer and Eric van Dijk, ‘In Money We Trust? e Use of Financial Compensations to Repair Trust in the Aermath of Distributive Harm’ (2011) 114(2) Organizational Behavior and Human Decision Processes 75.

30.

Edward W Miles, ‘Gender Differences in Distributive Negotiation: When in the Negotiation Process Do the Differences Occur?’ (2010) 40(7) European Journal of Social Psychology 1200; Kathleen M O’Connor and Josh A Arnold, ‘Distributive Spirals: Negotiation Impasses and the Moderating Role of Disputant Self-Efficacy’ (2001) 84(1) Organizational Behavior and Human Decision Processes 148.

31.

Peter Drahos, ‘When the Weak Bargain with the Strong: Negotiations in the World Trade Organization’ (2003) 8(1) International Negotiation 79; Gerben A Van Kleef et al, ‘Power and Emotion in Negotiation: Power Moderates the Interpersonal Effects of Anger and Happiness on Concession Making’ (2006) 36(4) European Journal of Social Psychology 557.

32.

is approach is associated with the writings of Fisher, Ury and Patton, (n 1). See also Alexander, Howieson and Fox, (n 1) ch 3. While this model is focused mainly on negotiation and mediation it has applications in all forms of dispute resolution and management — see, eg, Judith E Innes, ‘Consensus Building: Clari cations for the Critics’ (2004) 3(1) Planning eory 5; Jim Hilbert, ‘Collaborative Lawyering: A Process for Interest-Based Negotiation’ (2009) 38(4) Hofstra Law Review 1083; Courtenay Atwell, ‘A eory of Interest-Based Dispute Management in Business Format Franchising’ (2015) 26(2) Australasian Dispute Resolution Journal 94.

33.

See Carrie Menkel-Meadow, ‘Lawyer Negotiations: eories and Realities — What We Learn from Mediation’ (1993) 56(3) Modern Law Review 361; Jacqueline M NolanHaley, ‘Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective’ (2002) 7 Harvard Negotiation Law Review 235; John Winslade, ‘Mediation with a Focus on Discursive Positioning’ (2006) 23(4) Con ict Resolution Quarterly 501.

34.

Andrea Kupfer Schneider, ‘Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation’ (2002) 7 Harvard Negotiation Law Review 144.

35.

Menkel-Meadow, (n 25) 840.

36.

Jayr Teng, ‘Emotion and its Role in Negotiation — Valuable Tool or Unnecessary Hindrance?’ (2015) 26(1) Australasian Dispute Resolution Journal 51.

37.

See, eg, Korobkin, (n 26). See also, eg, Jefferey Senger, ‘Tales of the Bazaar: Interestbased Negotiation Across Cultures’ (2002) 18(3) Negotiation Journal 233; Robert B McKersie, ‘Bargaining eory Meets Interest-Based Negotiations: A Case Study’ (2008) 47(1) Industrial Relations: A Journal of Economy and Society 66; Iyad Rahwan et al, ‘A Formal Analysis of Interest-Based Negotiation’ (2009) 55(3) Annals of Mathematics and Arti cial Intelligence 253; Gregory Brazeal, ‘Against Gridlock: e Viability of Interest-Based Legislative Negotiation’ (2009) (3) Harvard Law and Policy Review Online; Philippe Pasquier et al, ‘An Empirical Study of Interest-Based Negotiation’ (2011) 22(2) Autonomous Agents and Multi-Agent Systems 249; Bobette Wolski, ‘e New Limitations of Fisher and Ury’s Model of Interest-Based Negotiation: Not Necessarily the Ethical Alternative’ (2012) 19 James Cook University Law Review 127; Johanna Macneil and Mark Bray, ‘ird-Party Facilitators in InterestBased Negotiation: An Australian Case Study’ (2013) 55(5) Journal of Industrial Relations 699; Alexander, Howieson and Fox, (n 1); Jan A Van Laar and Erik CW Krabbe, ‘e Role of Argument in Negotiation’ (2018) 32(4) Argumentation 549; Mark Young, ‘Fighting for Our Principles: Interests vs Values in Con ict Resolution’ (2018) 5(1) Journal of Mediation & Applied Con ict Analysis 678.

38.

Fisher, Ury and Patten, (n 1).

39.

Faten Ghosn, ‘Getting to the Table and Getting to Yes: An Analysis of International Negotiations’ (2010) 54(4) International Studies Quarterly 1055.

40.

See, eg, John Woodward, ‘Tipping the Scales — To What Extent Does the Presence of Power Imbalances Detract from the Efficacy of Principled Negotiation?’ (2015) 26(2) Australasian Dispute Resolution Journal 86. See also Emily T Amanatullah, Michael W Morris and Jared R Curhan, ‘Negotiators who Give Too Much: Unmitigated Communion, Relational Anxieties and Economic Costs in Distributive and Integrative Bargaining’ (2008) 95(3) Journal of Personality and Social Psychology 723; Mark Dickinson, ‘An Evaluation of Non-Adversarial Models of Negotiation’ (2009) 20(4) Australasian Dispute Resolution Journal 212.

41.

See, eg, Hilary Astor, ‘Some Contemporary eories of Power in Mediation: A Primer for the Puzzled Practitioner’ (2005) 16(1) Australasian Dispute Resolution Journal 30;

Mieke Brandon and Rachael Field, ‘An Analysis of the Complexity of Power in Facilitative Mediation and Practical Strategies for Ensuring a Fair Process’ (2020) (March) e Arbitrator and Mediator 33. 42.

See, eg, Menkel-Meadow, (n 33) 377; Laura Nader, ‘Controlling Processes in the Practice of Law: Hierarchy and Paci cation in the Movement to Reform Dispute Ideology’ (1993) 9(1) Ohio State Journal on Dispute Resolution 1; Carrie MenkelMeadow, ‘Why Hasn’t the World Gotten to Yes? An Appreciation and Some Re ections’ (2006) 22(4) Negotiation Journal 485.

43.

Michael J Greig, ‘Nipping them in the Bud: e Onset of Mediation in Low-Intensity Civil Con icts’ (2015) 59(2) Journal of Con ict Resolution 336.

44.

is form of negotiation was discussed in Chapter 4.

45.

See, eg, Carsten KW De Dreu and Peter J Carnevale, ‘Motivational Bases of Information Processing and Strategy in Con ict Negotiation’ (2003) 35 Advances in Experimental Social Psychology 235; Gerben A Van Kleef, Carsten KW De Dreu and Antony SR Manstead, ‘e Interpersonal Effects of Emotions in Negotiations: A Motivated Information Processing Approach’ (2004) 87(4) Journal of Personality and Social Psychology 510.

46.

See, eg, Michael Furmston, Cheshire, Fifoot and Furmston’s Law of Contract (Oxford University Press, 17th ed, 2017); Lindy Willmott et al, Contract Law (Oxford University Press, 5th ed, 2018); Stephen Graw, An Introduction to the Law of Contract (omson Reuters, 10th ed, 2020).

47.

is is a function of the common law without prejudice principle and the con dentiality clause inserted in most commercial settlements. e without prejudice principle is discussed in Susan Blake, Julie Browne and Stuart Sime, A Practical Approach to Alternative Dispute Resolution (Oxford University Press, 2014). See also the discussion in Chapter 13 on ethics and Rachael Field and Neal Wood, ‘Con dentiality: An Ethical Dilemma for Marketing Mediation?’ (2006) 17(2) Australasian Dispute Resolution Journal 79.

48.

See, eg, Charlick Trading Pty Ltd v Australian National Railways Commission [2010] FCA 629 [92].

49.

See Higgins v Nicol (No 2) (1972) FLR 34; Subway Systems Australia v Ireland (No 2) [2013] VSC 693 (13 December 2013).

50.

See, eg, Jerold Auerbach, Justice Without Law (Oxford University Press, 1983).

51.

See, in particular, Alexander, Howieson and Fox, (n 1); Wolski, (n 7). See also Wade, (n 1).

52.

Hence the adage that the three most important negotiation ingredients are, ‘Prepare, prepare, prepare’. See, eg, Andrea Kupfer Schneider, ‘Teaching a New Negotiation Skills Paradigm’ (2012) 39(1) Washington University Journal of Law and Policy 13; R Hanson Lawton, ‘Negotiation from Strength: Advantage Derived from the Process and Strategy of Preparing for Competitive Negotiation’ (2013) 14(4) Pepperdine Law

Review 13; Bruce Patton, (n 29) 279–303. See also, eg, Caroline Maughan and Julian Webb, Lawyering Skills and the Legal Process (Cambridge University Press, 2nd ed, 2005); Adrian Wallwork, ‘Preparing for a Negotiation’ in Adrian Wallwork, Meetings, Negotiations, and Socializing: A Guide to Professional English (Springer New York, 2014); Morten Lindholst, Anne Marie Bülow and Ray Fells, ‘e Practice of Preparation for Complex Negotiations’ (2018) 4(1–2) Journal of Strategic Contracting and Negotiation 119. Benjamin Franklin is widely quoted as saying: ‘By failing to prepare, you are preparing to fail’. See also Alexander, Howieson and Fox, (n 1) ch 5. 53.

is is an anecdotal comment based on Professor Laurence Boulle’s 30 or so years of facilitating negotiations.

54.

See generally the works cited in (n 1). See also John Wade, ‘Crossing the Last Gap’ in Kupfer Schneider and Honeyman, (n 1) 467; John Wade, ‘e Last Gap in Negotiations: Why is it Important? How can it be Crossed?’ (1994) 6(2) Australian Dispute Resolution Journal 92; John Wade, ‘Expanding the Concept of Legal Knowledge (Yet Again): Some Strategies for Reopening Deadlocked Negotiations’ (2000) 11(1) Australian Dispute Resolution Journal 25.

55.

See, eg, Peter Condliffe, Brooke Adams and John Zeleznikow, ‘Providing Online Decision Support for Owners Corporations Disputes’ (2011) 22(2) Australasian Dispute Resolution Journal 84; Arno R Lodder and John Zeleznikow, ‘Arti cial Intelligence and Online Dispute Resolution’ in Mohamed S Abdel Wahab, M Ethan Katsh and Daniel Rainey (eds), Online Dispute Resolution: eory and Practice A Treatise on Technology and Dispute Resolution (Eleven International, 2012) 73–94; Litan Ilany and Ya’akov Gal, ‘Algorithm Selection in Bilateral Negotiation’ (2016) 30(4) Autonomous Agents and Multi-Agent Systems 697; Jeremy Barnett and Philip Treleaven, ‘Algorithmic Dispute Resolution: e Automation of Professional Dispute Resolution Using AI and Blockchain Technologies’ (2018) 61(3) e Computer Journal 399; John Zeleznikow, ‘Using Arti cial Intelligence to Provide Intelligent Dispute Resolution Support’ (2021) 30 Group Decision and Negotiation 789.

56.

See, eg, Fisher, Ury and Patten, (n 1), Alexander, Howieson and Fox, (n 1) ch 10. See also Michael Palmer and Simon Roberts, Dispute Processes: ADR and the Primary Forms of Decision Making (Butterworths, London, 1998) 71–4; Craver, (n 7). See also Alexander, Howieson and Fox, (n 1) ch 4.

57.

For example, some negotiation learning suggests that in the rst phases the areas of discussion are widened and options are broadly explored, aer which the process is narrowed in the direction of an agreed settlement. See, eg, Laurie R Weingart and Mara Olekalns, ‘Communication Processes in Negotiation: Frequencies, Sequences and Phases’ in Gelfand and Brett, (n 10) 143–57; Mara Olekalns, Jeanne M Brett and Laurie R Weingart, ‘Phases, Transitions and Interruptions: Modeling Processes in Multi-Party Negotiations’ (2003) 14(3/4) International Journal of Con ict Management 191. See, eg, Alexander, Howieson and Fox, (n 1) and Chapter 8.

58.

See, eg, Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques

(LexisNexis, 3rd ed, 2020) ch 6. See also, eg, Cezarina A Tofan, ‘Importance of Communication in Negotiation Process’ (2018) 4(2) Issues in Economics and Business 27; Betteke Van Ruler, ‘Communication eory: An Underrated Pillar on Which Strategic Communication Rests’ (2018) 12(4) International Journal of Strategic Communication 367; Marc Helmold et al, Successful International Negotiations (Springer International Publishing, 2020). 59.

See, eg, David A Larson, ‘Technology Mediated Dispute Resolution (TMDR): Opportunities and Dangers’ (2006) 38(1) University of Toledo Law Review 213; David A Larson, ‘Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR’ (2005) 21(3) Ohio State Journal on Dispute Resolution 629; Arno R Lodder and John Zeleznikow, Enhanced Dispute Resolution rough the Use of Information Technology (Cambridge University Press, 2010); Colin Rule, ‘Technology and the Future of Dispute Resolution’ (2015) 21(2) Dispute Resolution Magazine 4; Kamal Halili Hassan et al, ‘e Use of Technology in the Transformation of Business Dispute Resolution’ (2016) 42(2) European Journal of Law and Economics 369; Riikka Koulu, Law, Technology and Dispute Resolution: e Privatisation of Coercion (Taylor & Francis, 2019); Alyson Carrel and Noam Ebner, ‘Mind the Gap: Bringing Technology to the Mediation Table’ (2019) (2) Journal of Dispute Resolution 1; Orna RabinovichEiny and Ethan Katsh, ‘Blockchain and the Inevitability of Disputes: e Role for Online Dispute Resolution’ (2019) (2) Journal of Dispute Resolution 47; Elisabeth Wilson-Evered and John Zeleznikow, Online Family Dispute Resolution: Evidence for Creating the Ideal People and Technology Interface (Springer Nature, 2021).

60.

See Chapters 10 and 11.

61.

e doctrine of ius cogens prohibits agreements which con ict with peremptory norms of international law and would cover agreements on slavery, genocide and many others. See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 53, 64. See also Ian Brownlie, Principles of Public International Law (Oxford University Press, 9th ed, 2019).

62.

On the issue of culture in negotiation, see, eg, Bee Chen Goh, ‘Understanding Chinese Negotiation’ (1993) 4(3) Australian Dispute Resolution Journal 178; Bee Chen Goh, ‘Cross-Cultural Perspectives on Sino-Western Negotiation’ (1994) 5(4) Australian Dispute Resolution Journal 268; Ross Buckley, ‘Cross-Cultural Commercial Negotiations’ (1995) 6(3) Australian Dispute Resolution Journal 179; Simon Young, ‘Cross-Cultural Negotiation in Australia: Power, Perspectives and Comparative Lessons’ (1998) 9(1) Australian Dispute Resolution Journal 41; Sunny Zhongmin Hou, ‘Negotiation in China — Stereotypes and Fallacies’ (2000) 11(3) Australian Dispute Resolution Journal 163; Wendi L Adair and Jeanne M Brett, ‘e Negotiation Dance: Time, Culture and Behavioral Sequences in Negotiation’ (2005) 16(1) Organization Science 33; David Jenaway, ‘Culture and Negotiation: e Role of Morality’ (2008) 19(1) Australasian Dispute Resolution Journal 49.

63.

ese practices are sometimes referred to as ‘plea bargaining’. See, eg, G Nicholas Herman and Zachary C Bolitho, Plea Bargaining (Juris Publishing, 5th ed, 2020). See also Shawn D Bushway and Allison D Redlich, ‘Is Plea Bargaining in the “Shadow of the Trial” a Mirage?’ (2012) 28(3) Journal of Quantitative Criminology 437; Jenny Roberts, ‘Effective Plea Bargaining Counsel’ (2013) 122(100) Yale Law Journal 2650; Regina Rauxloh, Plea Bargaining in National and International Law (Routledge, 2014).

64.

For example, in legal negotiations lawyers oen indicate that a certain dollar amount is their ‘ nal bottom line’ but they may well continue to negotiate beyond this point over time.

65.

For example, President Mandela only negotiated with the South African government when they had conceded on most of his preconditions for talks.

66.

See the extensive general references in (n 1). See also Johannes Gettinger, Sabine T Koeszegi and Mareike Schoop, ‘Shall We Dance? — e Effect of Information Presentations on Negotiation Processes and Outcomes’ (2012) 53(1) Decision Support Systems 161; Nela Mircică, ‘Constructive Communication in Effective Negotiation’ (2014) 13 Analysis and Metaphysics 64; Pruitt, (n 1).

67.

In legal negotiations the range is generally based on predictions of what a court or tribunal might order in the circumstances.

68.

ese views are re ected in the in uential text by Fisher, Ury and Patton, (n 1).

69.

See, eg, Sai Cheung, Kenneth Yiu and Ryan Chung, ‘e Use of a Decision Support Tool in Construction Dispute Negotiation’ (2005) 16(3) Australasian Dispute Resolution Journal 170; Issaka Ndekugri and Sai On Cheung, ‘Negotiating Responsibility for Project Change in Collaborative Working Environments’ (2005) 16(4) Australasian Dispute Resolution Journal 271.

70.

Ibid.

71.

is can give rise to the ‘duelling experts’ phenomenon. See, eg, Laurence Boulle, ‘Duelling Experts in ADR’ (1999) 1(9) ADR Bulletin ; John Wade, ‘Duelling Experts in Mediation and Negotiation’ (Paper presented at the 6th National Mediation Conference, Canberra, 18–20 September 2002); John Wade, ‘Dueling Experts in Mediation and Negotiation: How to Respond when Eager Expensive Entrenched Expert Egos Escalate Enmity’ (2004) 21(4) Con ict Resolution Quarterly 419. See also Patricia D Galloway, ‘Using Experts Effectively and Efficiently in Arbitration’ (2012) 67(3) Dispute Resolution Journal 26; Stephen J Yanni, ‘Experts as Final Arbiters: State Law and Problematic Expert Testimony on Domestic Violence in Child Custody Cases’ (2016) 116(2) Columbia Law Review 533.

72.

Fisher, Ury and Patten, (n 1) 153.

73.

Ibid 101–11. See also Woodward, (n 40) 90. On the effective use of a BATNA, see: Minyi Li et al, ‘Automated Negotiation in Open and Distributed Environments’ (2013) 40(15) Expert Systems with Applications 6195; Jennifer W Reynolds, ‘Breaking

BATNAs: Negotiation Lessons from Walter White’ (2015) 45(2) New Mexico Law Review 611; Gregory J Marsden and George J Siedel, ‘e Duty to Negotiate in Good Faith: Are BATNA Strategies Legal’ (2017) 14 Berkeley Business Law Journal 127; Elayne E Greenberg, ‘e Changed BATNA’ (2019) 12(1) NYSBA New York Dispute Resolution Lawyer 7; Prachi Bhatt, ‘BATNA: Perceived Leverage through Positive Illusion in Con icts’ (2019) 28 Con ict Studies Quarterly 16. 74.

For the best example, see John Wade, ‘Systematic Risk Analysis for Negotiators and Litigators’ (2001) 13(2) Bond Law Review 1.

75.

See, eg, Scott Peppet, ‘Transactional Mediation: Why Don’t We Use Mediators in Deals?’, Colorado Lawyer (September 2003); Wendi L Adair and Jeanne M Brett, ‘e Negotiation Dance: Time, Culture and Behavioral Sequences in Negotiation’ (2005) 16(1) Organization Science 33; Hui Zhou, ‘Body Language in Business Negotiation’ (2009) 3(2) International Journal of Business and Management 90; Yaakov Weber, Tal Belkin and Shlomo Yedidia Tarba, ‘Negotiation, Cultural Differences and Planning in Mergers and Acquisitions’ (2011) 16(2) Journal of Transnational Management 107.

76.

‘So law’ has a speci c meaning in the context of governance systems and international regulation, referring to a range of non-legally binding arrangements and instruments. See, eg, Alan Boyle, ‘So Law in International Law-Making’ in Malcolm D Evans, International Law (Oxford University Press, 4th ed, 2014) 118; Chris Brummer, ‘Why So Law Dominates International Finance — and Not Trade’ (2010) 13(3) Journal of International Economic Law 623; André Sobczak, ‘Are Codes of Conduct in Global Supply Chains Really Voluntary? From So Law Regulation of Labour Relations to Consumer Law’ (2006) 16(2) Business Ethics Quarterly 167; Roberta S Karmel and Claire R Kelly, ‘e Hardening of So Law in Securities Regulation’ (2008) 34 Brook Journal of International Law 883. However, the use of the term is expanding. See, eg, Allison Christians, ‘Hard Law and So Law in International Taxation’ (2007) 25(2) Wisconsin International Law Journal 325; Mio Fredriksson, Paula Blomqvist and Ulrika Winblad, ‘Con ict and Compliance in Swedish Health Care Governance: So Law in the “Shadow of Hierarchy”’ (2012) 35(1) Scandinavian Political Studies 48.

77.

See Arie Freiberg, e Tools of Regulation (Federation Press, 2010) 1–24; Arie Freiberg, Regulation in Australia (Federation Press, 2017).

78.

See Chapter 3.

79.

See, eg, Arend Lijphart, ‘Constitutional Design for Divided Societies’ (2004) 15(2) Journal of Democracy 96; Aeyal M Gross, ‘e Constitution, Reconciliation, and Transitional Justice: Lessons from South Africa and Israel’ (2004) 40(1) Stanford Journal of International Law 47.

80.

Samuel Kernell, ‘Presidential Veto reat as a Negotiating Instrument with the Bicameral Congress’, Working Paper (Department of Political Science, University of California at San Diego, 2006) SSRN .

81.

See Grant Morris, ‘To What Extent is the New Zealand Treaty of Waitangi Settlement Process “Interest-Based Negotiation?”’ (2012) 23(2) Australasian Dispute Resolution Journal 120.

82.

e term ‘rule-making negotiation’ is used to refer to situations in which government agencies create participatory structures for external parties’ involvement in making rules which the agencies are authorised to promulgate and enforce. See, eg, Scott R Furlong and Cornelius M Kerwin, ‘Interest Group Participation in Rule Making: A Decade of Change’ (2005) 15(3) Journal of Public Administration Research and eory 353; Herwig CH Hofmann, ‘Negotiated and Non-Negotiated Administrative RuleMaking: e Example of EC Competition Policy’ (2006) 43(1) Common Market Law Review 153. e process is sometimes referred to as regulatory negotiation — or reg– neg. See, eg, Ragnar E Löfstedt, ‘Regulatory Negotiation: e Case of International Paper’s Hydrodam Re-Licensing Procedure’ (2003) 5(4) Risk Management 37; Jeffrey S Lubbers, ‘Achieving Policymaking Consensus: e (Unfortunate) Waning of Negotiated Rulemaking’ (2008) 49(4) South Texas Law Review 987; Sara Rinfret and Jeffrey Cook, ‘Environmental Policy Can Happen: Shuttle Diplomacy and the Reality of Reg Neg Lite’ (2014) 24(2) Environmental Policy and Governance 122.

83.

Treaties are sometimes regarded as contracts between the respective nation states, and sometimes as constitutions because of their extensive scope and difficulty of amendment — see David Schneiderman, Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (Cambridge University Press, 2008).

84.

See, eg, John J Kirton and Michael J Trebilcock, Hard Choices, So Law: Voluntary Standards in Global Trade, Environment and Social Governance (Routledge, 2016); Andreas Rasche, ‘“A Necessary Supplement” — What the United Nations Global Compact Is (and Is Not)’ in Karin Buhmann, Lynn Roseberry and Mette Morsing, Corporate Social and Human Rights Responsibilities: Global, Legal and Management Perspectives (Palgrave Macmillan, 2011) 52. See also, eg, Itay Fischhendler, ‘When Ambiguity in Treaty Design Becomes Destructive: A Study of Transboundary Water’ (2008) 8(1) Global Environmental Politics 111.

85.

See also Chapter 2.

86.

As is found in Dispute Boards discussed in Chapter 4.

87.

See Stewart Macauley, ‘Non-Contractual Relations in Business’ in Vilhelm Aubert (ed), Sociology of Law (Penguin Books, 1969) 194. See also, eg, Peter T Coleman, Morton Deutsch and Eric C Marcus (eds), e Handbook of Con ict Resolution: eory and Practice (John Wiley & Sons, 3rd ed, 2014).

88.

See, eg, David Holst, ‘Mediation Makes Business Sense: e Ampol/Caltex Merger’ (1997) 8(2) Australian Dispute Resolution Journal 109.

89.

See Civil Dispute Resolution Act 2011 (Cth) s 6 (form 16).

90.

Native Title Act 1993 (Cth) s 31. See also, eg, Western Australia v Taylor (1996) 134 FLR 211; Backreef Oil Pty Ltd and Oil Basin Ltd/John Watson on behalf of Nyikina and

Mangala/Western Australia [2012] NNTTA 98. Needless to say, this breadth of factors does not always lead to proof of bad faith on the evidence. See also, eg, Jim Parke, ‘Lawyers as Negotiators: Time for a Code of Ethics?’ (1993) 4(3) Australian Dispute Resolution Journal 216; John Zeleznikow and Emilia Bellucci, ‘Legal Fairness in ADR Processes — Implications for Research and Teaching’ (2012) 23(4) Australasian Dispute Resolution Journal 265. 91.

On dispute resolution clauses, see, eg, Robert N Dobbins, ‘Practice Guide: e Layered Dispute Resolution Clause: From Boilerplate to Business Opportunity’ (2005) 1 Hastings Business Law Journal 161; Peter Wiese, ‘Dispute Resolution Clause’ (2015) 42(11) Brief 33.

92.

See Chapter 10 for a discussion of arbitration.

93.

See also the discussion of the Australian Solicitors’ Conduct Rules 2015 in Chapter 13.

94.

See Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 ss 34.1.1, 34.1.3.

95.

See Robert Angyal and Nicholas Saady, ‘Legal Lying?’ (2021) 21(2) Pepperdine Dispute Resolution Law Journal 355. See also, generally, Wolski, (n 7) 530–55.

96.

See, eg, Angyal and Saady, ibid. See further Francesca Gino and Catherine Shea, ‘Deception in Negotiations’ in Rachel Croson and Gary E Bolton (eds), e Oxford Handbook of Economic Con ict Resolution (Oxford University Press, 2012) 47–60; Edward G Wertheim, ‘e Truth about Lying: What Should We Teach About Lying and Deception in Negotiations: An Experiential Approach’ (2016) 8(2) Business Education Innovation Journal 64; Joseph P Gaspar, Redona Methasani and Maurice Schweitzer, ‘Fiy Shades of Deception: Characteristics and Consequences of Lying in Negotiations’ (2019) 33(1) Academy of Management Perspectives 62; Stephanie Jung, ‘Acceptable Lies in Contract Negotiations’ (2021) (2) Journal of Dispute Resolution 6.

97.

See Legal Services Commissioner v Mullins [2006] LPT 012 discussed further in Chapter 13 and Bobette Wolski, ‘e Truth About Honesty and Candour in Mediation: What the Tribunal Le Unsaid in Mullins’ Case’ (2012) 36(2) Melbourne University Law Review 70.

98.

See, eg, the Australian Solicitors’ Conduct Rules 2015.

99.

See, eg, Ysaiah Ross, Lawyers’ Responsibility and Accountability in Australia (LexisNexis Butterworths, 5th ed, 2010) 523–4. See also Law Council of Australia, Guidelines for Lawyers in Mediations (LCA, 2011) which provides a code of behaviour covering lawyers’ negotiation conduct in mediation.

100. See, eg, discussion of the lawyer’s moral compass in Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2nd ed, 2019) chs 6 and 7. See also the discussion in Chapter 13.

[page 237]

Chapter 8 Mediation Chapter contents Introduction Understanding mediation Mediation models Mediation process and practice Preliminary mediation activities Post-mediation activities Variations in process and procedure Mediator functions and capabilities Applications of mediation Contentious issues in mediation Lawyers in mediation Conclusion

8.1 8.2 8.22 8.35 8.59 8.72 8.73 8.93 8.99 8.113 8.123 8.125

Introduction 8.1 Chapter 7 discussed the models, process methods and skill sets associated with negotiation. Conciliation is dealt with in the following chapter, followed by arbitration and litigation in Chapters 9 and 10. is chapter explores the mediation process. It extends the de nition of mediation from that provided in Chapter 4, considers some of the core value propositions that inform the practice of mediation, and brie y identi es the key models of mediation, as well as the standard structure and procedures of the process. Further, the role of mediators and lawyers in mediation is explored, and some of the more common applications of mediation are considered, along with some of the controversial issues in relation to its practice. e issue of ethics is brie y noted throughout this chapter and developed further in Chapter 13 in relation to DR more broadly.

Understanding mediation 8.2 Mediation has become one of the most prominent and best-known forms of DR in contemporary Australia. It is used in diverse forms of legal practice, from informal DR contexts to more formal settings such as tribunals and courts. It is also widely practised outside the law in professions such as social work, family therapy, counselling and psychology. [page 238] 8.3 In terms of the future sustainability of legal service delivery, and the possibility of a positive professional identity for lawyers, it was noted in Chapter 1 that mediation is increasingly a process with which lawyers are required to engage. Clients, for example, are demanding that their legal advocates have knowledge and skills in mediation, as well as other more collaborative and less adversarial approaches, in order to assist them with managing and resolving their disputes.1 Further, governments, via policy development and the statute book, are increasingly requiring parties to engage in some form of non-adversarial DR, oen mediation, before being allowed to le proceedings in a court.2 In addition, as DR becomes a xture in law school curricula and in continuing professional development programs, more and more lawyers are genuinely seeing the diverse bene ts for their clients of the use of mediation. 8.4 Mediation was de ned in Chapter 4 as a process in which a nonpartisan third party intervenor facilitates communications and negotiations between parties without any authority to make a decision or binding determination about their matter.3 e National Mediator Accreditation System (NMAS) provides the leading de nition of mediation in the current Australian context as follows: 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.4

8.5 It was indicated previously that there have always been challenges in de ning the mediation process.5 is is because the traditional functions of a mediator, that is, [page 239] assisting parties to identify the disputed issues between them, helping them to consider options for dealing with them and facilitating agreements, can manifest in numerous and diverse ways. Not only are there different models of mediation, as discussed below, but there is limited information on what actually occurs in mediation practice, given the general con dentiality and privacy of the way it operates. Indeed, it is important to acknowledge that what occurs in the real world of day-to-day mediation practice varies signi cantly depending on the individual practitioner, their professional orientation and values, and their level of experience and expertise.6 8.6 e NMAS de nition of mediation refers to the facilitative model of the process, and this has been the de ning and paradigmatic model of mediation since the 1970s. However, increasingly evaluative and advisory approaches are being used, particularly in legal contexts.7 It is anticipated that mediation will become a more advisory (and perhaps also evaluative) practice in the future and depart from the facilitative orthodoxy evident in the NMAS de nition.8 is raises important questions around the regulation of mediation practice under NMAS and training requirements for accredited mediators.

Party autonomy, party self-determination, participation 8.7 Chapter 5 articulated a values and goals framework for DR grounded in the important place of DR within democratic systems of law and governance, and informed by the DR objectives of the rule of law. e framework was articulated at a relatively high level of abstraction in order to encompass the suite of processes found across the DR matrix. is

framework included the value elements of justice, party autonomy and community. Process goals were identi ed for each of these value elements. e process goals of procedural justice, substantive justice and impartiality were identi ed for the justice value; the process goals of party participation and self-determination were identi ed for the autonomy value; and the process goal of access to justice was identi ed for the value of community. 8.8 Different values have been associated with the mediation process over time.9 In terms of the values and goals framework, the mediation process, as de ned above, connects with all three key values — justice, party autonomy and community — and [page 240] also with all of their related goals (in one way or another). at is, mediation has the goals of procedural justice, substantive justice and fairness, party participation and self-determination, and access to justice. 8.9 Interestingly, some of the values that have traditionally been associated with mediation, such as voluntariness, neutrality and con dentiality, do not feature in the framework. is is because they have now become obsolete or quali ed in nature.10 For example, mediation used to be de ned as a ‘voluntary’ process.11 However, this is no longer an accurate description, given the numerous contexts in which participation in mediation is now mandatory or quasi-mandatory for parties.12 Mediation is still ostensibly ‘voluntary’ at the exit point in the sense that the parties can choose whether to agree to outcomes and a decision or determination is not imposed on them. Nevertheless, while consensus between the parties remains a de ning element of mediation, there can still be elements of in uence or pressure that can force a party’s hand in terms of agreeing or settling a matter.13 For these reasons, it is misleading to de ne mediation as voluntary without signi cant quali cations. 8.10 Mediator neutrality is another quali ed traditional value of the mediation process. Neutrality has been a foundational concept for liberal legal ideologies in Western democracies that has been associated with

fairness and justice in terms of third-party intervenors, such as judges, being independent and non-partisan in their participation in DR processes.14 Indeed, mediator neutrality has had a legitimising function for mediation as an ‘alternative’ form of DR.15 I have argued elsewhere, however, that mediator neutrality is not a viable or acceptable indicator of ethical [page 241] practice or fairness in mediation.16 In this work, mediators are not de ned as neutral; rather, they are referred to as non-partisan intervenors.17 is means that they have no direct interest in mediation outcomes themselves, and they have an ethical obligation to conduct the process without bias and even-handedly as between the parties involved. Mediator ethics is discussed further in Chapter 13. 8.11 Con dentiality is also oen portrayed as a key value of mediation.18 However, there are many exceptions to con dentiality such that no claim can be made that mediations are universally con dential.19 Nonetheless, con dentiality retains its importance for the mediation process insofar as it restricts the extent to which mediated discussions and settlements can be externally reviewed aer the mediation. us, con dentiality is justi ed in terms of the self-determination principle. 8.12 Mediation’s underlying values and principles have played a signi cant role in establishing the legitimacy of the process in Western society. Formal justice systems, [page 242] such as courts and tribunals, derive their legitimacy directly from the constitutional order and authority of the state, along with the attributes of objectivity and independence. Mediation, by contrast, is a private system. It does not occur in public arenas, and it is not necessary for mediated agreements to accord with legal norms. e private nature of the practice of

mediation creates a need for other sources of legitimacy for the system. e elements of the framework of values and goals for DR systems, articulated in Chapter 5, are a source of legitimacy for the processes on the DR matrix, including mediation, establishing their validity in democratic systems where justice, party autonomy and community are upheld under the rule of law. 8.13 e value of party autonomy (and its related goals of selfdetermination20 and party participation) are of particular importance to the legitimacy and efficacy of the mediation process, linking with concepts of party control and party empowerment.21 Party autonomy in mediation denotes that it is the mediating parties themselves who have the agency to make independent decisions, and that they can do so in terms of their own personal and commercial interests and priorities regardless of (or informed by the shadow of) any legal or other rights, entitlements, duties, obligations and remedies. In mediation, provided the agreement is lawful, any outcome is possible in giving joint expression to the value of party autonomy. So, for example, in a mediation involving alleged defamation, any statutory or common law rights, defences or remedies could be waived or surrendered by either of the parties in coming to an agreement which meets their needs and interests — provided it is not unlawful. 8.14 e value of party autonomy also infers the direct participation of the parties in mediation. Indeed, no other DR process, other than negotiation and collaborative practice, accommodates as much direct party involvement in resolving their own dispute.22 e importance of party participation in mediation is based on the assumption that, in all DR contexts, the parties are the experts in their own dispute, and they have the capacity to determine the best ways in which the dispute might be expeditiously and appropriately resolved. Menkel-Meadow’s work in defence of private settlement makes [page 243] a strong case for recognising that, even if an outcome does not re ect legal

norms, it might represent the most just and fair outcome from the parties’ perspectives.23 8.15 For these reasons, the value of party autonomy provides a strong justi cation for the mediation system and its procedure. Parties can narrate, discuss, confer and negotiate with each other throughout the process with relative exibility and informality. e supported and facilitated, but autonomous, discussions allow the parties to reach better outcomes concerning their rights and interests than can be achieved by the imposition of the judgment of ‘blind’ outsiders such as arbitrators or judges.24 In addition, mediation provides an environment for the further achievement of the participation goal of the value of party autonomy because the parties also have some degree of input into mediation procedures in respect of matters such as timing, venue and adviser involvement, and sometimes involvement in the choice of mediator as well. 8.16 ere are, however, a number of quali cations to the operation of the value of party autonomy in mediation. First, party autonomy is a relational concept in that it applies equally to both parties.25 A single party does not determine the outcome on their own, or solely with their individual interests in mind. Rather, outcomes are achieved by the parties in conjunction with each other in order to arrive at a mutually agreeable conclusion. For this reason, bringing the value of party autonomy to reality in mediation is likely to require a level of compromise or concession.26 Two mediating parties cannot, by de nition, be entirely self-determinative and autonomous simultaneously as the perspectives of each party are tempered by the presence, needs and powers of the other. e relational nature of party self-determination in mediation means that the parties can ‘achieve more of what they want by trading for what they value more but what the other party values less’.27 Claims that compromise is ‘unseemly’, or indicates ‘weakness of will, morality or principle’,28 assume that all disputants value the same [page 244]

things equally.29 In fact, a relationally self-determinant outcome for the parties can be one that allows each party to maximise their own individual goals. 8.17 Second, the reality of power and its impact on the negotiations in mediation means that one party might be able to manage the power dynamics between the parties to achieve an outcome dominated by their interests. at is, a party who can harness the sources of power available to them more effectively may be able to persuade and in uence the other party, and thus achieve a greater balance of self-determination in their own favour. is situation does not represent relational self-determination, nor the value of party autonomy in action. Rather, in this situation, only one party experiences self-determination — the more powerful party — and the resultant outcome may be neither just nor fair. 8.18 ird, it is a reality of current mediation practice, particularly in legal contexts, that many mediators are indeed performing advisory and evaluative functions, however overtly or subtly, and this might be regarded as interfering with or nudging parties away from self-determination. However, an activist role for the mediator could in fact be seen as assisting the parties to achieve self-determination, especially where a power imbalance exists as discussed above. For example, mediators might provide information or help the parties achieve a realistic understanding of a proposed agreement, alternatives to it and the risks associated with each.30 ey might do this by using clarifying and probing questions,31 by hypothesising or raising concerns,32 or they might give an opinion or make a suggestion, prediction or recommendation of some sort.33 Rather than interfering with the parties’ self-determination, this might in fact be a support for it. Some mediators also share the experience of outcomes from other mediations to inform the range of options that the parties might generate.34 8.19 Indeed, in the real world of mediation, experienced ‘master’ mediators are more likely to have the necessary ‘analytical and intuitive skills and strategies’ to support party self-determination through advice, opinion, information or suggestions.35 In practice,

[page 245] mediators, particularly expert mediators, do not necessarily use the facilitative model of mediation (discussed further below) all the time.36 is means, in terms of the diverse models of mediation, that ‘bright line criteria for identifying mediation practice as good or bad, legitimate or illegitimate, pure or vulgarized’ are almost impossible to identify.37 As is discussed further in Chapter 13, an ethical mediator is one who works to make party self-determination real, whatever model of the process they are practising, and this may very well include the provision of advice or evaluation. Nevertheless, the private nature of the mediation process creates an environment in which mediators are relatively unaccountable for the ethics and efficacy of their chosen approaches to activism and intervention in the mediation process, and this is a cause for some concern, particularly when vulnerable parties are involved. 8.20 Fourth, in mediations where lawyers are representing and advocating for their clients, they oen adopt a dominant role, taking over option generation, option assessment and evaluation, and decision-making; this can limit client participation at the mediation table and impede party self-determination,38 because the dynamics of principal–agent relationships can interfere with, or perhaps effectively preclude, authentic autonomy for the client.39 On the other hand, however, when lawyers possess the necessary DR knowledge, skills and attitudes to support an effective role for their own and their client’s participation in the mediation environment (these are the knowledge, skills and attitudes that are so critical to contemporary lawyering), it is possible for them to enable selfdetermination for their client and bring the party autonomy value [page 246] to reality in the mediation context. is can be done by providing timely legal advice, reality checking and advising of risks and bene ts in relation to options on the table, and helping parties with creative option generation for

mutually agreeable outcomes, as well as achieving clarity on their bottom line.40 When lawyers adopt a supportive advocacy role in mediation they can enhance the quality of self-determination for their client through ensuring informed consent.41 According to Weckstein, ‘informed consent is not only compatible with the principle of self-determination but essential to it’.42 is is because ‘a disputant who is unaware of relevant facts or law that, if known, would in uence that party’s decision cannot engage in meaningful self-determination’.43 8.21 Finally, as illustrated elsewhere, there are in some contexts statutory obligations on mediators and mediating parties which could be argued as undermining the self-determination principle. ey include the increasing loss of voluntariness (discussed above) through the mandating of participation in mediation prior to ling matters in court and the extension of judicial authority to compel litigating parties to sit at the mediation table.44 Despite these limitations the value of party autonomy remains a signi cant part of the legitimating ideology of mediation, promoting the dignity of individuals, responsibility for choices and ownership of outcomes reached.45 For this reason, party self-determination is supported by codes of conduct and ethical requirements for mediators, including the NMAS Practice Standards which de ne mediation in terms of the ‘selfdetermination of participants’.46 However, negotiation and collaborative practice also provide appropriate structural systems for professionals and clients to bring to life the value of party autonomy and its party selfdetermination and participation goals.

Mediation models 8.22 e mediation literature identi es several models of mediation which differ according to theoretical and practical variables.47 e critical distinction between the models [page 247] lies in the role of the mediator and, in particular, in the level of any active

intervention on the part of the mediator in terms of providing opinion, advice or an evaluation of the parties’ matter. Alison Taylor has said that the models are ‘as diverse as apples and pineapples’.48 In the Australian context, the four key models identi ed by Boulle — settlement mediation, facilitative mediation, evaluative mediation and transformative mediation — are commonly referred to.49 Dorothy Della Noce, writing in the US, refers to facilitative mediation, evaluative mediation and transformative mediation as ‘the big three’.50

Facilitative mediation 8.23 Facilitative mediation is generally regarded as the paradigmatic model of the mediation process.51 In facilitative mediation, the mediator’s focus is on assisting the parties to move through a consensus-building and problem-solving procedure. e mediator supports the parties to identify their personal and commercial interests and priorities and attempt to develop creative settlements to deal with both their past differences and future relations. Facilitative mediation involves a dedicated mediation procedure, with a number of clear sequential stages. Each of the stages has a speci c function in terms of enabling the mediator to manage and support the parties’ communication endeavours, facilitate their negotiations and act as an ‘agent of reality’ in relation to the assessment and evaluation of options for agreement. e goal of this model is to achieve resolution of the dispute at hand through a problem-solving procedure which is facilitated in a fair, non-partisan, and responsive way and which maintains or even improves personal and commercial relations between the parties. 8.24 e value of party autonomy and the process goals of party selfdetermination and participation (discussed above) are at the heart of the facilitative model, linking back to the egalitarian and democratic origins of the modern mediation process. e mediator’s fair and non-partisan conduct of the process is seen as the key support for party autonomy and mediators have traditionally, at least theoretically in the facilitative model, been excluded from actively advising the parties in the process or evaluating the relative merits of the parties’ positions. However, as noted above, advisory mediation

[page 248] is becoming more and more the norm, particularly in legal contexts of practice, and the parties are oen seeking more than just a process facilitator when they seek out a mediator to assist with their matter. 8.25 Nevertheless, facilitative mediation continues to inform the content of the ethical codes and standards of practice of mediation in the key Western jurisdictions of practice, including Australia.52 For this reason it is the model used for most mediation training programs, and its elements are discussed in more detail below, as the other models of mediation apply or divert from these elements to varying degrees. For this reason, the facilitative model is regarded as the ‘traditional’ model of mediation, to the extent that if a model of mediation diverts too far from the facilitative approach, its legitimacy as a form of mediation may be called into question.

Advisory and evaluative mediation 8.26 In advisory and evaluative models of mediation, mediators deploy their expertise in the substantive issues in dispute to evaluate the legal and other merits of the situation and to guide and in uence parties to outcomes which fall within the appropriate range of outcomes (as might be suggested, for example, by legal norms and the shadow of the law) for the particular area of disputation.53 e main objective is to achieve settlement of the matter which accords with (or is at least informed by) external [page 249] norms and principles (such as the relevant law), although the parties’ subjective needs, interests and priorities should also inform any resulting outcome. 8.27 It has been noted a number of times that this model of mediation represents a signi cant proportion of mediation practice. As John Keltner has said, ‘the focus of mediation in the real world is about reaching

agreement, not transforming people’.54 As Leonard Risken has noted, in this mediation model the parties have some of the ‘decision-making burden’ lied from them and in this sense they are supported in coming to a selfdetermined agreement. 8.28 While this work argues that advice, suggestions, information and evaluations have the potential to support party self-determination, the general concern with this model of mediation is the possibility that the mediator’s advice or evaluation may operate as a de facto decision. For this reason, safeguards are necessary for the protection of party selfdetermination when this model is being used. ese protections are discussed in more detail in Chapter 13.

Transformative mediation 8.29

Bush and Folger de ne transformative mediation as:

… a process in which a third party works with the parties in con ict to help them change the quality of their con ict interaction from negative and destructive to positive and constructive, as they explore and discuss issues and possibilities for resolution. e mediator’s role is to help the parties make positive interactional shis … by supporting the exercise of their capacities for strength and responsiveness, through their deliberation, decision-making, communication, perspective taking, and other party activities.55

8.30 is model focuses on the parties’ personal and relationship issues, which are dealt with therapeutically,56 with an emphasis on empowerment and recognition [page 250] for the parties. e idea of ‘empowerment’ refers to each side clarifying their needs, discovering what resources they have and making informed decisions about the situation at hand. e notion of ‘recognition’ refers to each party understanding their different perspectives on the dispute, seeing things from the other’s point of view and acknowledging the other. When the parties experience an empowerment shi, they feel heard, understood and valued

and this then allows them to experience a recognition shi.57 When a recognition shi occurs, a party has the capacity to expand their ‘focus from self alone to include the other’.58 8.31 While settlement may result in a transformative mediation, it is only a sub-aim of the process, coming second to its positive relational and therapeutic orientation. is orientation draws on the perspective that when parties are in con ict, they oen end up behaving ‘towards themselves and others in ways that they nd uncomfortable and even repellent’.59 is impact on their behaviour is said to be an interactional crisis which is even more important to address than the parties’ rights or interests.60 For Bush and Folger, it is ‘help in overcoming that crisis [which] is a major part of what parties want from a mediator’.61 Transformative mediation therefore, through supporting the parties to overcome the interactional crisis, helps them to achieve closure and to be able to move on with the relational downward spiral of the con ict reversed and constructive interaction restored.62 [page 251]

Practice contexts for the models 8.32 Much of the mediation literature, and approaches to mediator training, use the facilitative model as the benchmark.63 Facilitative mediation is commonly used in community, family, interpersonal and workplace disputes and, as noted earlier, it is the model at the normative heart of both the Australian NMAS and Family Dispute Resolution (FDR) practice. However, the aspirations of the model do not necessarily match the needs of practice, policy or the participants in other areas. For example, more interventionist and directive approaches are increasingly found in a range of civil and commercial dispute contexts, oen with retired judges or senior barristers conducting the process.64 is is a discernible trend in contemporary mediation in Australia and it has implications for the legalisation of the system, the roles of lawyers and understandings of what the mediation process actually entails.

8.33 It cannot be assumed, however, that one mediation model or style is always associated with or appropriate for a particular category of dispute. Family disputes can involve commercial disputation over business interests, trusts, superannuation and taxation issues which might incline them towards an advisory or evaluative mediation model, while commercial disputes, say between franchisors and franchisees, oen have underlying personal, relationship and emotional issues calling for facilitative or transformative approaches. Moreover, a single mediation may embrace aspects of two or more approaches, commencing for example in the facilitative style but moving to a more advisory or evaluative approach over time and as the issues are narrowed. 8.34 With all the provisos articulated above in mind, the facilitative model is still recognised as providing a useful example of the possible stages of the process that have proven over time to have efficacy in supporting parties to resolve or manage a dispute. For this reason, it is used in the next section to illustrate the elements of the process and procedure of mediation.

Mediation process and practice 8.35 e context and circumstances of individual mediations, the training and styles of mediators, the extent of mediation regulation, and to a lesser extent client and lawyer expectations, all determine the exact contours of mediation process and practice.65 In this section, a common denominator version is provided of usual, but not absolute, structural elements of the system. Mediation has been described in the literature in [page 252] terms of anything from three to 12 stages (or phases) but is dealt with here in terms of seven customary, though not inevitable, elements based on the facilitative model, with preliminary matters such as intake, and postmediation matters, dealt with in the sections below.

Mediator’s opening statement

8.36 A mediation commonly commences with an introduction and opening presentation from the mediator. is includes welcoming the parties and making appropriate introductions; explanation of the nature of the mediation process; the procedure to be followed and relevant terms and conditions (such as procedural ground rules). Importantly, the mediator explains their role and its limitations — for example, that they will not be making a decision for the parties or acting as referee, judge or arbitrator, and that they are restricted predominantly to facilitating the parties’ own decision-making. 8.37 Speci c conditions for the mediation progressing are also introduced at this stage. ese include nalising the Agreement to Mediate, if not settled previously, and addressing the fairness, con dentiality and without prejudice principles and their limits. In some mediation contexts, such as FDR, there are statutory requirements in terms of certain inclusions in the opening statement, and mediators need to be aware of these and ensure they comply with them.66 e mediator also makes clear that nothing will be binding between the parties until reduced to writing and signed at the mediation or when further legal action is taken to convert the mediated agreement to a contract, trust deed or consent order to be led in court. 8.38 A particularly important aspect of the introductory phase in terms of setting the conditions of the mediation and building a positive environment for negotiation is the establishment of ground rules for the meeting. Discussion about the ground rules secures the parties’ pledge to engage in respectful communication and conduct for the meeting. Most commonly, the ground rules include commitments to having only one person speak at a time (that is, no interruptions) and respect for the process and the mediator’s authority in facilitating the mediation. 8.39 e mediator’s opening statement allows the mediator to establish their credibility, credentials and authority as managers and facilitators of the process. Mediators also use this aspect of the process to build rapport with the parties, to generate trust in themselves and the process, and to emphasise that they are non-partisan in facilitating the process as between the parties. Further, mediators respond to questions or anxieties, and model to the parties and their advisers openness and transparency, good listening,

courtesy, respect and other effective communication skills. e length and detail of the content of a mediator’s opening statement will partly depend on the nature and extent of their pre-mediation contact with the parties. [page 253] 8.40 In legal mediations, the parties’ legal representatives should be familiar with the process and the nature of mediator functions. Nothing the mediator says in the opening statement should be new or novel for them. Legal advocates also need to prepare their clients to adequately engage in the mediation by educating them prior to the inception of the process, particularly where mediation participation has been mandated or compelled by statute or courts. Preparing clients adequately to enter the mediation process can dispel common errors of expectation, such as that mediators make authoritative decisions; and can clarify for clients the role expectations of them in the process.

Initial statements by the parties 8.41 Following the mediator’s opening statement, each of the parties (or sometimes their representative) is provided with an opportunity to present to the mediator, in the hearing of the other party but without interruption, the history and nature of the dispute, including the issues each considers important or relevant. Initial statements made to the mediator are intended to be relatively short versions of their narrative or version of events, with an opportunity for subsequent ampli cation in later stages of the process. is stage is designed to be informative for mediators, to allow each side to hear the other’s statement, and to provide opportunities for each party to be heard and feel that they have had a voice. To clarify their understanding and enhance parties’ sense of being heard, mediators oen summarise each statement back to the respective party, using non-judgmental language in the process. 8.42 Where lawyers are present in legal mediations they oen make the opening statements on behalf of clients.67 In the current climate of practice,

these statements tend to be legalistic and adversarial versions of events and the disputed issues, and can operate as precursors to positional bargaining.68 To address this, and in accordance with the mediation value of party autonomy and the goals of self-determination and participation, mediators usually ask the parties to supplement their representatives’ statements. Even better practice could be for the parties to be prepared and supported by their lawyers to give their initial statement themselves. 8.43 One pertinent matter of strategy for parties, and for lawyers preparing, advising or representing parties in mediation, concerns the power of the party statement as narrative.69 Using discourse theory, and the work of Cobb and Riin on narrative theory, Astor has argued that the story-telling process of mediation creates opportunities for [page 254] certain party narratives to become dominant and to colonise alternative narratives.70 One way for a party to achieve dominance in their narrative is to be thoroughly prepared to make their statement so that it is a ‘believable, coherent and culturally resonant narrative about the dispute’.71 If one party’s narrative appears less coherent compared with the other party’s narrative, this may have the impact of destabilising and marginalising it.72 8.44 Another powerful narrative dynamic in mediation, identi ed by Cobb and Riin as relevant to party statement making, concerns the power of the rst narrative.73 e party who makes their initial statement rst may set the dominant narrative for the negotiations because the second party’s narrative is delivered subsequent to the rst and therefore inevitably by reference to it and in the context of its parameters. Further, the party who makes their statement rst has the opportunity to portray themselves positively and the other party or parties negatively. Attempts on the part of the second party to escape from this negative position, according to Cobb, rarely succeed because of the difficulty of pushing back against the power of the rst story, and the tendency of the second party to ‘buy in’ to that story to some extent.74 If the second speaker is unable to construct an

independent narrative that matches the believability, coherence and cultural resonance of the rst narrative, then the negotiations, and consequently the resulting mediated agreement, are more likely to be constructed around, or at least in uenced by, the narrative of the rst speaker.75 is power of the rst narrative in the party statement making phase of mediation shows how important it is for parties to be prepared and con dent to engage with their role and responsibilities in the process, and particularly as custodians of their own narrative. 8.45 At the end of the party statements, and in addition to summarising the statements for clarity, it is good practice for mediators to identify common ground between the parties, namely the issues on which agreement already exists and on which there need be no disputation. For example, in a business partnership dispute it could be common ground that the business was pro table for a long time, that adjustments are needed in the light of changing market conditions and that both partners would prefer to manage their differences in the private context of mediation rather than go to court. e objective of this element of the process is to provide foundations of agreement, with the concomitant positive feelings of connection, achievement and consensuality, ahead of what might be difficult negotiations to follow. [page 255]

Agenda setting 8.46 When the parties have had the opportunity to share their initial statements, the mediator should have acquired sufficient information about the dispute, and the issues in contention, to be able to develop an agenda for the ensuing discussions and negotiations.76 Agenda setting involves de ning the issues to be discussed in a neutral, mutual and problem-solving fashion, and in language that is suited to the parties, avoiding legalese or jargon. e agenda for the mediation should be comprehensive and based on the parties’ concerns rather than the evaluative views of the mediator, and it should be expressed in language that is non-judgmental and conducive to constructive

discussion, negotiation and problem-solving. What is appropriate language for the agenda will depend very much on the circumstances of a particular mediation, the background and experience of the participants and the presence or absence of any legal representatives. 8.47 Once a tentative agenda is established (commonly on a whiteboard or on screen if negotiating online) a mediator will then assist the parties (with each having an equal contribution) to identify the order in which they will address each of the agenda items, re ecting their priority for each of the parties. In some circumstances, it will be a good strategy to encourage the parties to address the most difficult issues rst while their energy and engagement levels are high. In other circumstances, the parties might be better assisted to address some of the more minor and easily managed or low stakes issues rst, thus reinforcing the momentum of the negotiations by building on the identi cation of common ground and moving the parties towards a positive frame for the discussion of more difficult or contentious matters later in the process. 8.48 As noted above, many mediators display the agenda visibly on a whiteboard or other visual medium, and during the following stages of the process it becomes a useful point of reference providing structure and focus in the proceedings. However, in many legal disputes a mediation-style agenda is neither visually portrayed (nor even perhaps developed) with the mediator leading the parties directly into discussions on liability and damages issues, traditional categories in legal dispute processing. As lawyers become increasingly cognisant of the bene ts of the dispute system design elements of models such as facilitative mediation, however, they are more likely to use the agenda stage of mediation far more strategically and effectively.

Discussion and exploration 8.49 Once the agenda has been set and the items on it prioritised, the mediator then uses the agenda as the framework and reference point for the systematic and orderly discussion and exploration of each of the identi ed issues. As agreed in terms of their relative priority, the individual agenda items are addressed in turn. In this exploratory

[page 256] stage of the process, more extensive discussion and story-telling takes place than in the initial statements, with parties explaining comprehensively their version of past events and the dispute, their experiences and perspectives and subsequent consequences. Oen this discussion involves the expression of strong feelings, high levels of emotion, accusatory statements, and other forms of venting. 8.50 In this phase, mediators harness a range of communication and facilitation skills to maintain authority as they lead the process and encourage the parties to converse with each other under their guided supervision.77 If the parties become distracted or go off track, the agenda can be used as a tool to bring them back into focus. Oen in this stage the ground rules for engagement, established in the mediator’s opening statement, are invoked to maintain respectful discussions. 8.51 Where matters become heated, threatening or destructive, or reach an impasse, mediators have a range of interventions to choose from in the light of the issues at stake and the timing of the particular difficulty.78 For example, where there are high levels of expressed anger, frustration or sadness, a mediator might decide, depending on their judgment as to what is appropriate, largely to ignore the feelings, to acknowledge them and continue, to take a refreshment break, or to move into separate sessions to check individually with the parties about how they are coping with the discussions and process. Mediators also have the option to speak with the parties about their conduct or postpone to a different date. e relevant techniques that assist mediators with these responsibilities are dealt with extensively in the various skills books on mediation practice.79

Generating options, bargaining and problem-solving 8.52 In this stage, the parties develop and consider options for resolving each agenda issue, through brainstorming, option generation and lateral thinking activities facilitated by the mediator. Once options have been raised, they are evaluated, where

[page 257] possible in the light of objective data, industry practices or legal norms, and it may also be possible to seek specialist advice on possible options, if necessary through adjournments in the process. In the light of the options generated, parties can begin to bargain over those which could form the terms of a mediated settlement. In this and other problem-solving activities, a mediator can bring their voice of experience to bear on the negotiations, as well as act as agents of reality in relation to the feasibility and durability of proposed options. ey can also raise consideration of the prospects or risks for each party if they do not reach settlement, which will sometimes relate to the likelihood of success in, and the costs of, litigation.80 While negotiation, referred to in this text as the bedrock of DR,81 is apparent throughout the mediation procedure it is speci cally associated with this and the following stages.

Separate sessions 8.53 At some point aer the exploration phase, once the agenda items have been fully discussed and some options have been generated, the mediator will move the parties (and their respective advisers) into separate sessions.82 is means that one party is asked to take a break while the mediator speaks privately and con dentially with the other. e use and management of separate sessions is speci cally identi ed in the NMAS as a mediator skill.83 Separate sessions are variously referred to as ‘private sessions or meetings’, ‘separate meetings’ or ‘caucuses’. 8.54 Separate sessions ful l a range of useful purposes.84 For example, they provide the parties with some relief from engaging with each other and give them some space to vent in the absence of the other party as well as to process the negotiations and possible [page 258]

options for solution. ey also allow the mediator to check in with each party and assess any sense of vulnerability or distress. Where a party is refusing to collaborate, this can be challenged; or if a party seems to be making concessions too readily this can also be addressed. Further, options generated in the joint session can be reality tested as to their real-life practical viability, elaborated upon or packaged up for presentation to the other side when the joint session resumes. Aer separate sessions have been conducted with each of the parties, the mediators reconvene the joint session of all participants but are precluded from referring to con dential disclosures made by either side unless authorised to do so.

Final decision-making, recording and closure 8.55 In this nal stage of the process, mediators encourage the parties to move towards agreement on all possible agenda items, emphasising options, trade-offs and turning agreements in principle into detailed settlements. Where there are last-minute impasses, mediators again utilise the skills in their toolkit.85 Ultimately, however, it is the parties who have the difficult task of deciding whether to accept the best offer available to them at mediation or face the consequences in costs and uncertainty of failing to reach a settlement. 8.56 If parties reach agreement on the original agenda issues, and others which might have emerged, mediators seek to ensure that they have thought through ways in which all aspects of the agreement will operate in practice and are clear on implementation details. For example, an agreement between parents for weekend contact with children requires speci city on where, when and by whom they will be picked up to avoid future disputation on these issues. Similarly, in the international domain, agreements on disarmament proposals or the withdrawal of troops require speci c timetables and independent monitoring arrangements to be effective. Methods for implementing and dealing with contingencies, such as the consent of third parties or failure to sell property, should also be considered and agreed upon. In a time-honoured reference, mediators act as ‘agents of reality’ on such issues.86 8.57

Once agreement is nalised, mediators can assist the parties and

their advisers in recording it in accordance with their mutual requirements as to its legal status. If lawyers are not in attendance an agreement might be referred to them for scrutiny and advice. While it is preferable to have principal decision-makers and their agents at the mediation, there may in reality only be representatives present, requiring rati cation [page 259] by outside boards, government agencies or community organisations. Procedures for seeking authorisation and consent from outside bodies should be built into the mediated settlement. 8.58 Where there is no agreement, or only partial agreement, some mediators assist the parties to record the agreed agenda, the areas of agreement and items on which agreement is yet to be reached. is may assist them in post-mediation negotiations or in other DR processes such as expert appraisal or arbitration. is approach is designed to avoid the abandonment of progress achieved and settlements secured, thereby ensuring that parties are not required to start further DR initiatives from the beginning.

Preliminary mediation activities 8.59 e outline above of the structure of a ‘generic’ mediation process focuses on the mediation meeting itself. ere can, in addition, be signi cant preliminary mediation activities before this meeting takes place.87 8.60 e actual extent and nature of preliminary activity depends on the context of each mediation, the mediator’s preferred style, the nature and complexity of issues in dispute and the available time and resources. Where mediators are subject to a code of conduct, they may be obligated to perform speci ed preliminary functions to ensure compliance with the code. e NMAS Practice Standards, for example, require mediators to provide participants with a description of the mediation procedure as well as

information on the provision of feedback on, or lodging complaints about, mediator performance.88 8.61 Preliminary activities can commence where both parties have consented to mediation or have been ordered to participate in the process.89 Community mediation organisations tend to have trained staff who undertake structured intake and screening procedures, decide on the suitability of a dispute for mediation, and allocate cases to individual mediators.90 is role is generally referred to as an ‘intake officer’. Where mediation is aligned with court and tribunal proceedings, some of the preliminary work is also undertaken by dedicated staff from the respective institution. Mediators [page 260] who are sole practitioners undertake their own pre-mediation preparation in less structured and more eclectic ways.91 8.62 ree broad categories of functions are performed in pre-mediation preparations.92 e rst is that of investigating the circumstances of the parties and their dispute to ascertain if mediation is an appropriate DR option.93 is is a higherorder level of diagnosis than that of the disputants and their advisers on its suitability. Mediation will be absolutely inappropriate where one or both parties lack capacity to make mediated decisions, for example because of intellectual or mental health reasons.94 It will be presumptively inappropriate where there are extensive power disparities between parties or where one or both could be injured or suffer serious disadvantage through participation. In these situations, the diagnosis is either that mediation should not be used inappropriately and referrals are made to other services, or that adjustments need to be made to the mediation procedure, such as accommodating guardians or support persons and ensuring security at the mediation venue and safety throughout the process.95 8.63 e second function of the preliminary activities is to provide mediators with the necessary information to assist them in conducting the

process and arranging for the receipt, and exchange among the parties, of documents, expert reports and other relevant information.96 In legal mediations, mediators will request relevant court documents and correspondence, and sometimes also con dential mediation-dedicated documents such as position or issue papers and estimates of costs if a matter proceeds to trial. 8.64 e third function is to provide an opportunity for mediators to inform, educate, prime and otherwise ready the parties, including on an individual basis, for the communications, negotiations and decision-making ahead, particularly where they have been referred to mediation on compulsory terms.97 Some of the preparatory [page 261] functions can be conducted in pre-mediation conference sessions involving the mediator, parties and advisers.98 is is, however, increasingly rare in Australia and most preliminary work is done through correspondence, phone and email.

Mediator selection and appointment 8.65 Mediator selection or appointment is another signi cant preliminary matter.99 In legal and commercial contexts where mediation is contractually impelled, the respective lawyers strongly in uence mediator selection, and clients tend to accede to this advice. One of the factors for lawyers’ consideration concerns the model of mediation they wish to procure in furtherance of their client’s interests. For example, in a dispute turning on the interpretation and application of succession legislation on which the lawyer considers the law to favour their client’s position, they might regard evaluative mediation to be appropriate and suggest the appointment of a retired judge. In these contexts, however, consensus between both sides is required in relation to mediator engagement and this may require premediation negotiations among lawyers and parties.

8.66 Mediation organisations and service providers manage panels of quali ed mediators for the purposes of appointment and the Mediator Standards Board administers a National Register of mediators accredited under the NMAS.100 Statutes, courts and tribunals might require mediator appointments to be made from one of these panels or lists.101 Where parties cannot agree on the identity of a mediator, contractual provisions include fallback arrangements in terms of which an institution or professional body makes the nomination. As regards mediations established by courts and tribunals, these bodies can nominally make appointments in their discretion, but oen defer to party agreement on the matter. Some agencies and legal aid authorities, however, retain full discretion and parties have only a negative veto over mediator appointments, for example where there are concerns about a con ict [page 262] of interest.102 Where service providers conduct intake and screening procedures the information acquired at these stages can determine or affect mediator choice in relation to factors such as experience, professional background, gender, ethnicity and age, to enhance the legitimacy of the process. For example, in construction disputes there may be pressure to appoint mediators with engineering quali cations because they can expertly comprehend the issues in dispute, including technical matters relevant to the area.103 In family mediations there can be systems of mediator matching, typically with the gender of co-mediators matching the gender of the parties.104 In other situations, such as employment or organisational mediations, quali cations in law or behavioural science may be indicated.

Organisational preparation 8.67 Seemingly prosaic, but potentially critical, organisational matters relating to venue, timing, participants and amenities are interspersed with the other preliminary matters. ese include proposed attendances at mediation, where ideally the real decision-makers and advisers should be

personally present. is is not, however, always feasible, in which case representatives participate on their behalf, for example for a community organisation or corporation. In these circumstances there is an imperative for agents to have a mandate and authority to settle, and authority might be an express condition in the Agreement to Mediate. Even here the goal might be frustrated by the complex nature of organisations, mandates, delegations and authority requirements, and courts have held that authority at the mediation table is not a necessary requirement of an obligation to mediate in good faith.105 8.68 In complex multi-party mediations in environmental, native title and other public interest matters, preliminary attention is given to additional factors: identifying spokespersons for the various interest groups and their negotiation mandates, establishing how participating groups will make binding decisions, and deciding how con dentiality will be modi ed to accommodate communication between [page 263] representatives and their respective communities.106 A mediation conducted without some degree of participation or involvement by those with direct interests in a dispute and its resolution will be a fruitless exercise if they subsequently disengage from or disrupt mediated settlements.

The role of lawyers, advisers and support people 8.69 A nal aspect of preliminary preparatory activities for mediation involves consideration of the role of lawyers, additional professional advisers and other participants and support people.107 Unless there is some regulatory restriction on lawyers’ participation this is something that can be agreed among the parties, if necessary, with the mediator’s assistance. Lawyers’ actual responsibilities can vary considerably, from initial assistance consistent with self-help arrangements to full engagement before, during and aer mediation.108

8.70 Depending on the nature of the dispute, and the respective characteristics and vulnerabilities of the parties in a given matter, a request might be made for a support person to attend a mediation with a party. Any additional people attending a mediation need to be agreed to by all parties. Mediators are sometimes reluctant to allow additional people in the process because they may have a disruptive in uence, or there may be unintended consequences from including them. For example, in acrimonious parenting matters, new partners oen struggle to contribute positively to the process.

Agreement to Mediate 8.71 e preparatory steps referred to above culminate in an Agreement to Mediate — a document signed by the parties and the mediator, and sometimes also by advisers.109 ese are standardised agreements provided by agencies coordinating mediation services or customised instruments developed by individual mediators. e Agreement to Mediate customarily regulates the roles and responsibilities of mediators, parties and advisers, explains the requirements of con dentiality and their exceptions, and addresses issues of fees and disbursements, disclosure and good faith obligations, the mediator’s immunity, and any special terms and conditions, such as agreements being binding only when reduced to writing and signed by the respective parties. [page 264]

Post-mediation activities 8.72 In some contexts, a mediated settlement agreement confers on one or more participants the bene t of a cooling-off period; here mediators need to contact the respective parties to ascertain their intentions aer the designated period has elapsed.110 In matters referred from courts and tribunals, parties oen intend to have settlement agreements converted into consent orders, which can again be mediator-facilitated. In these situations, mediators are also required to provide mediation reports, but these tend to be of a perfunctory nature in relation only to parties’ participation in the

process and its outcomes, without references to their conduct or good faith compliance. In yet other circumstances there may be a continuing role for the mediator in terms of monitoring performance or becoming re-engaged at the request of a party alleging non-compliance by the other, or where the parties need to continue negotiations or renegotiate an issue or issues. ese and other variations might require continued postmediation mediator assistance, facilitation or oversight.

Variations in process and procedure 8.73 ere are several prospective variations in the ‘generic’ mediation process outlined above.111 Some of the key considerations include choosing between joint or separate sessions, deciding whether shuttle, electronic, online or telephonic/text modes of mediation are desirable, and assessing when adjournments, suspension or termination is necessary.

Joint sessions or separate sessions 8.74 e term ‘joint session’ refers to meetings at which mediators, the respective parties and their advisers or supporters are all together in the same location at the same time. Here, togetherness connotes a physical dimension, but joint sessions could also be held in a virtual environment where mediation is being conducted online. Most mediations in Australia are conducted with at least some joint sessions but in legal DR contexts in particular, their use has diminished over time. 8.75 Joint problem-solving sessions are at the heart of facilitative and transformative models of mediation, and some iterations of these models are conducted only in joint mode. Joint sessions are also expressly entertained in the NMAS Practice Standards.112 [page 265] 8.76 As noted above, in most settings mediators convene with the parties individually, together with their advisers, on a con dential basis in separate

sessions at some point in the meeting, usually aer the exploration and option generation phases.113 ese sessions have a range of diverse functions; for example, they allow parties to raise matters they wish to discuss with the mediator in private, to vent emotionally and to discuss the viability of settlement options. ey also enable mediators, depending on their preferred levels of intervention, to encourage or assist the development of options and to provide appropriate support to less con dent parties; for example, by assisting them to engage in creative option generation, reality test options, frame settlement proposals and consider the risks of failing to settle in mediation.114 Mediators can also convene separate meetings with the respective advisers alone, with both parties in the absence of their advisers, and with individuals of either category in carrying out their process management role.115 8.77 Some mediation providers regard separate meetings as indispensable features of the system, even where mediation is progressing well and the parties are moving towards settlement.116 ey are regarded as safeguard devices in family mediations for allowing disclosure of sensitive issues regarding violence or abuse which a party is afraid to raise in joint session.117 In these contexts the pattern of mediators meeting separately with each side may have been set through individual preparatory contacts before the mediation meeting; separate sessions can then occur midmediation to help parties progress their negotiations, and in the closing stages to assess the implications and durability of pending settlements. In some circumstances, most or all of a mediation is conducted through separate sessions in a system styled ‘shuttle mediation’.

Shuttle mediation 8.78 Shuttle mediation denotes a system in which mediation is conducted exclusively, or predominantly, with the parties and their advisers located in different physical or virtual locations and mediators move between them conveying information, proposals and other messages from one side to the other, and back again.118 [page 266]

8.79

NADRAC de ned shuttle mediation as:

… a process in which the parties to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement without being brought together. e mediator has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted. e mediator may move between parties who are located in different rooms, or meet different parties at different times for all or part of the process.119

8.80 Shuttle mediation is a pragmatic necessity where parties are located remotely from one another and it would be disproportionately costly to bring them together, for example businesses in different countries disputing over a commercial supply agreement. It is a legal necessity where parties are precluded from being in proximity with each other, for example where a court protection order or apprehended violence order has this effect. It is an expedient arrangement where parties have had a destructive relationship in the past and there could be safety issues or extreme confrontation if they were in the same room together.120 It is a diplomatic imperative in international mediations where intermediaries need to operate covertly and shuttle diplomacy behind closed doors is the best political way of dealing with the entities involved.121 In all these situations it is appropriate for mediators to move back and forth between respective parties as they attempt to facilitate agreements on the issues dividing them. 8.81 Another manifestation of shuttle mediation is found in legal contexts in Australia. e legal profession has developed a culture of mediators resorting to a shuttle approach immediately aer their opening presentation and parties’ initial statements.122 None of the above justi cations necessarily apply in these settings, but there is arguably a settled expectation in legal culture that this is how mediation transpires. Lawyers accustomed to this culture become supportive of it, contending, variously, that they do so ‘on our client’s instructions’, that joint sessions can cause clients to ‘weaken their own case’, or that shuttle mediation allows maximal conferment between client and lawyer.123 e ‘shuttle culture’ is therefore used extensively by mediators in advisory and evaluative mediation models. While there is no

de nitive evidence on the strengths and shortcomings of shuttle mediation in these circumstances, it falls short of many [page 267] of mediation’s claimed value propositions, particularly the value of party autonomy with its related goals of party self-determination and participation, discussed above. It should also be noted that it falls short of the principles underlying the NMAS Practice Standards.

Electronic, online and telephonic/text approaches 8.82 As indicated elsewhere in this text, all DR processes, from negotiation to litigation, now use electronic technologies to some degree, and they may over time, and particularly aer the impact of the Covid-19 pandemic, be conducted predominantly through these channels.124 Online DR is generally referred to as ‘ODR’, ‘e-DR’ or cyber-mediation.125 Although in mediation the online approach has traditionally been the exception to the dominant offline method, the use of online mediation is now growing in a range of contexts, and it can also be used as part of a multi-forum procedure. Various digitalised forms of communication are routinely used in mediation for preliminary [page 268] matters, the provision and exchange of information, for contract settlement and other approaches to preparing the parties for participation in the process, and are now so common as to warrant no special treatment. 8.83 More signi cant are situations in which mediations are conducted predominantly through online services, because of geographic remoteness or efficiency or safety imperatives, such as those arising due to Covid-19.126 Online mediation service-providing agencies or commercial operators provide virtual spaces for mediators and parties127 which replicate offline

mediation in having sites for joint communications between mediators and all parties, and separate sites for con dential communications between mediator and individuals. Here the technology has been designated the ‘fourth party’ in the mediation process.128 DR processes other than mediation which can be predominantly document-based arrangements, such as arbitration and expert determination, are well suited to being conducted online.129 8.84 Online mediation and other forms of ODR are used for disputes arising out of e-commerce transactions, as extrapolations of the original contracting methods, and increasingly in relation to con icts generated offline, such as consumer complaints and leasing disputes.130 One advantage of online mediation is that it can be conducted in asynchronous time, while video-conferencing, chat rooms and the like provide for mediation communications to occur synchronously.131 Among the disadvantages of some online systems are the inability of mediators, and the parties and advisers, to observe and react to other participants’ non-verbal messages and other signals.132 ere is also reduced capacity for mediators to establish rapport through interpersonal skills and there are limits on the use of visual aids for structuring agendas and facilitating the negotiations. 8.85 In the online environment there are also concerns about the authenticity of participants using the relevant technology and about security, power and con dentiality issues.133 Moreover, all technology has differential impacts cross-culturally — referred [page 269] to as the ‘digital divide’ impediment for those without access to the internet or without skills relevant to this domain.134 ere are also inevitable concerns over consumer protection, quality assurance and practice standards in new and emerging technology environments, leading to attention to appropriate regulation of the system.135 8.86 Some concerns about ODR can be mitigated through the use of conventional or web-based video-conferencing, now deployed for many

forms of meetings and court and tribunal proceedings.136 Alternatively, a single mediation could be conducted through multiple forms, such as faceto-face or online mediums, supplemented by email and telephone or text communications, each of which might modify parties’ behaviours in different ways.137 8.87 In the face of valid concerns about the impacts of online mediation on the system’s underlying values and goals stand two confronting realities. e rst is that mediating online may be the only efficient and feasible medium for conducting the process, particularly during and post the Covid19 pandemic, and the second is that demographic groups who have grown up using technology for information, education and social interaction might readily assume that disputes should be managed through this vehicle as well.138 e development of standards for ODR and interoperability among different systems is also contributing to the legitimacy of its future development.139 However, despite its advantages and prospects, the take-up of online mediation has not yet been as great as was anticipated in the early 2000s. Part of the reason may be that lawyers and other gatekeepers have been slow in moving to promote this medium to clients.140 8.88 More established technologies have been used in mediation for some time. For example, in a number of areas, face-to-face meetings have been replaced by mediation conducted over the phone, with retention of the joint and separate session methodology.141 Telephone mediation is designed to prevent parties from having to [page 270] access the same locality as mediators and to provide other economic efficiencies in the system.142 Some tribunals and other agencies provide mediation by telephone to disputants, with face-to-face meetings only convened in exceptional circumstances.

Adjournments, suspension and termination

8.89 Adjournments in mediation procedures are a function of client need and mediator discretion.143 Adjournments are sometimes dictated by the circumstances: the necessity for negotiation team members to consult with one another, requirements for professional advice or to obtain an authority to settle, demands for further information, documents or input (from pay slips to valuations), and considerations relating to health, comfort, childcare or ight schedules. e duration of adjournments is the length of a proverbial piece of string — from a matter of minutes where a party needs tissues and tea to several months in complex, multi-party and multi-issue mediations.144 In all cases of adjournment, mediators take care to preserve the original agenda and to document areas of agreement before adjourning. In making a decision to adjourn, mediators are certainly conscious of the reality that breaks can lead to both progress and regression in the parties’ negotiating stances. 8.90 In terms of suspension and termination in the mediation context, the terminology can operate ambiguously or interchangeably. e term suspension is usually used to refer to situations in which mediators decide to conclude a mediation for reasons other than that there has been agreement or there is unlikely to be an agreement. e NMAS refers to four possibilities warranting suspension:145 (a) a mediation participant is unable or unwilling to participate or continue; (b) a participant is misusing mediation; (c) a participant is not engaged in mediation in good faith; (d) the safety of one or more participants may be at risk. 8.91 Some of the occasions for suspension involve signi cant judgments on the part of mediators. For example, in relation to process abuse it may become obvious that one side is probing for information and refusing to engage in problem-solving, while in relation to good faith obligations a party might disclose in a separate session that they will agree to the other side’s proposal because they are leaving for Brazil the next day. Mediators may, however, have no more than a suspicion that something along these lines is amiss and they would be required to consult with or confront a relevant

[page 271] party con dentially before making the suspension call.146 Moreover, where mediators suspend for these, and related, reasons, they are required to avoid citing reasons to one party which may jeopardise the safety, or involve a breach of con dence, of the disclosing party. 8.92 Where mediation concludes with a mediated settlement agreement, or it is apparent that there will be no settlement without the suspending factors listed above, mediators are required to terminate the process. Termination with some degree of formality is important to indicate that the parties’ rights and duties under the Agreement to Mediate, for example, the con dentiality obligation and the mediator’s responsibilities, have come to an end and any further discussions or negotiations then take place under a different guise.147 Where mediation is concluded without full settlement, mediators are advised to encourage participants to consider alternative procedures for achieving settlements or resolutions.148

Mediator functions and capabilities 8.93 e immense variety in mediation’s context and procedures make it clear that there can be no de nitive account of a mediator’s functions.149 A corollary of the party autonomy value, as well as of the legitimacy of mediation in societal perceptions, is that there are limits to the system’s overall functions and capabilities. At the same time, individual mediators might have signi cant potential power, even though they lack formal authority to make binding decisions, and there is some importance in the extent of their actual interventions and how they undertake these.150 8.94 e de nition of mediation in the NMAS Practice Standards lists mediator functions from the perspective of the participant activities which are supported by mediators.151 at is, it is helpful to revisit the de nition of mediation in the NMAS which says that mediators help the parties to: (a) communicate with each other, exchange information and seek understanding; (b) identify, clarify and explore interests, issues and underlying needs;

[page 272] (c) (d) (e) (f)

consider their alternatives; generate and evaluate options; negotiate with each other; and reach and make their own decisions.

8.95 e Standards also refer to certain functions that are not part of mediators’ repertoire, and therefore, by implication, remain part of the parties’ role. In particular, based on the value of party autonomy, mediators do not determine the outcome of disputes or make a decision for the parties.152 8.96 In terms of a mediator’s formal functions, these are clearly very different to those of judges and other adjudicators or determiners of disputes. While mediators control and manage the process of mediation, which is itself a source of power, this power is inherently limited due to the exible nature of the process involving some level of process control coownership with the parties and their legal representatives or advisers. Other sources of mediator power depend on the context.153 For example, where parties have voluntarily agreed to be part of a mediation, they delegate some of their power to the relevant mediator, but this delegation is not evident to the same extent in mandatory mediations. e growing credibility and reputation of the mediation system itself confers associational power on individual mediators, as do mediators’ skills in managing disputants’ con icts and their expertise in the substantive eld of dispute. As mediators come to establish rapport and trust with the parties, their capacity to assist, support and in uence is also prone to increase. Power may also derive from the fact that mediators lose nothing, except some professional prestige, if no agreement is reached. Mediators can, and do, invoke this reality to rmly consign responsibility for settlements to the parties, inducing them, where appropriate, to ‘act in mature and responsible ways’.154 8.97 Mediator power also derives from their knowledge base. Mediators are a potential source of knowledge in relation to common con ict patterns, universal biases in decision-making and constructive ways of moving parties

through DR procedures. is knowledge enables mediators to educate and coach parties in appropriate communication and negotiation techniques, and in how to respond to the aggression, bluffs and tricks associated with hard bargaining. 8.98 Mediators can inevitably use their knowledge and power to in uence, persuade and even coerce parties into settlements, for example by exaggerating the disadvantages of litigation or threatening recalcitrant parties with termination of mediation.155 [page 273] ese potentialities are, however, constrained by self-imposed and external ethical codes,156 by anticipated negative reactions from one or both parties, including formal complaints,157 by prospective legal challenges to induced outcomes, and by the broader social structures within which mediation operates. A classical rendition of mediator power contends that it can be used vigorously in support of the process and only with a light touch in relation to the content or outcome, problematic as the process-content distinction always is.

Applications of mediation 8.99 ere are numerous applications of the different models of mediation in Australia, some of which were agged in Chapter 4, and more comprehensive accounts can be found in the specialist literature on the various areas of dispute.158 Currently, mediation is used extensively, but by no means exclusively, in the contexts outlined below.

Commercial disputes 8.100 e regular mediation of commercial disputes takes place in terms of court referral orders, industry code obligations, contractual commitments and ad hoc decisions, usually with and on the advice of lawyers.159 Courts have not been reluctant to

[page 274] refer parties to mediation even when it has been attempted before and to indicate that the court pleadings should not constrain what they consider in the process.160 In some respects mediation mimics the market in that informed commercial parties can make their own decisions on all relevant issues in terms of self-perceived interests and priorities without external regulation. In this sense it can be seen as a business system which completes, or reinforces, market principles. Mediation also provides the privacy and con dentiality, and apparent cost-efficiency and effectiveness, desired by businesses both large and small and it potentially allows them to preserve and reinforce commercial relationships, and even to renegotiate the terms and conditions of their future business associations. In these contexts, mediation tends to be evaluative and advisory in orientation.

Building and construction disputes 8.101 While arbitration was historically the preferred DR process in respect of building and construction disputes, in the present century extensive use is made of mediation in these circumstances.161 Building agreements now commonly include DR clauses which require mediation as the sole, or one in a series of, DR options when disputes arise. Further, when these matters come before various courts, oen in their building lists, or tribunals such as the Queensland Civil and Administrative Tribunal (QCAT), referrals to mediation are also likely. In the building and construction contexts, one of the perceived bene ts of mediation is the relative speed with which it can be set up and conducted, which avoids jeopardising the project timeline and its completion. ere is inevitably no monopoly for mediation in this area and some of the innovations in relation to alliancing, partnering and DR boards provide alternative options through contract or industry schemes162 — but there is a mediational dimension to all these systems. In these contexts, mediations tend to be advisory and evaluative in their focus.

[page 275]

Community disputes 8.102 As was discussed in relation to the history of DR in Chapter 6, one of the rst forms of institutionalised mediation in Australia emerged in the mid-1980s in New South Wales through the auspices of the Community Justice Centres legislation.163 Other states and territories followed suit and mediation services came to be provided throughout the country for designated disputes and disputants within community contexts, free of charge to the users. 8.103 Community mediation was a ‘peer’ mediation system in that mediator trainees were drawn from the community on a representative basis and without requirement for prior professional quali cation. is meant that co-mediators could be appointed to match the age, gender, class and ethnicity of clients. Initially, the centres provided mediation predominantly in neighbourhood disputes involving the various forms of noise, nuisance and trespass found in every neighbourhood. Over time, their range of services expanded to include family matters, commercial, planning, environmental and organisational disputes, and some centres began accepting mediation referrals from magistrates’ courts and other tribunals in minor civil disputes.164 In this context, mediation was promoted in terms of access to justice principles and the policy of managing disputes locally before they escalate into the more formal DR systems. e preferred form of mediator training and mediation practice in this context is predominantly facilitative in orientation.

Family disputes 8.104 Family disputes are another traditional area of mediation application.165 Under the guise of family dispute resolution (FDR), family mediation is currently provided [page 276]

extensively in both parenting and property matters, as well as in family provisions and related disputes. In this area mediation has an extensive history through the auspices of respective courts, rst the Family Court, then adding the Federal Circuit Court, and now operating since 1 September 2021 as the combined Federal Circuit and Family Court of Australia.166 Family mediation has also been provided by community organisations, by bodies such as Relationships Australia and by private service providers, and more recently by Family Relationship Centres operating throughout the country.167 Its use has been augmented by the current requirement that in parenting matters parties cannot le proceedings in court unless they have participated in an FDR process and received certi cation to this effect (or been exempted from this requirement).168 Mediation has long been justi ed in terms of its capacity to preserve relationships between separating parents and to provide an accessible, private and cost-effective DR system. In the main, facilitative, and to a lesser extent transformative, mediation is used in this area of practice. 8.105 Because of the delicate issues which can arise in family mediations it is a practice area in which there has been direct state regulation of mediators. While there is no restriction on which mediators can handle matrimonial property matters, a section 60I certi cate169 can only be provided in parenting matters by mediators recognised by the Commonwealth Attorney-General as Family Dispute Resolution [page 277] Practitioners (FDRPs).170 is arrangement is designed to provide quality assurance to the parties and accountability of those mediating in this important and difficult area of DR practice. Other regulatory obligations pertain to the information which mediators and lawyers must provide to mediating parties in advance of their engagement in mediation.171 ere have also developed over time different theories of child-focused and childinclusive family mediation designed to admit the child’s voice into the process and have it inform outcomes in appropriate and safe ways.172

Industrial, employment and workplace matters 8.106 ere is a long history of mediation (and conciliation) usage for industrial disputes, though its extent has uctuated over the decades and has always been subject to political vagaries.173 In relation to employment disputes, such as allegations of unfair dismissal and victimisation, there has also been use of mediation at different times and places. For example, many workplace grievance procedures make mandatory provision for mediation as part of the overall DR system, and more informal types of mediation operate in relation to a wide range of workplace disputes.174 8.107 Currently, the Fair Work Commission at the Commonwealth level can provide a spectrum of DR services, including mediation, conciliation, arbitration and conferencing.175 For example, in unfair dismissal cases parties may agree to mediation under the auspices of the Commission and DR clauses in modern awards and enterprise agreements usually include mediation as one option in the DR scheme that they [page 278] establish. Mediation is justi ed in these areas in terms of the long-term relationships involved in many cases, productivity imperatives and costeffectiveness. e full range of mediation models is in evidence but facilitative processes have precedence in many circumstances.176

Native title claims 8.108 Native title disputes arise where original Indigenous custodians of land seek rulings on their title to traditional land and waters and the applications are resisted by respective state governments or by nongovernmental entities such as pastoralists, miners and environmentalists.177 In this context, mediation has been provided for over 20 years by both the Native Title Tribunal and the Federal Court.178 While this area of practice is not large in quantitative terms, it has a powerful symbolic and sometimes practical signi cance for those concerned.

8.109 Much of the mediation in native title cases occurs under the auspices of the National Native Title Tribunal established by statute in the mid-1990s.179 e use of mediation is justi ed in terms of its inclusivity of a wide range of participants and its interest-based and problem-solving focus, but given the complexity and duration of the cases it cannot be validated in terms of traditional cost and time factors. While facilitative and transformative mediation might seem appropriate for dealing with the longstanding relational and social issues at stake in native title claims, extensive statutory regulation and case law in this area of practice tends to render mediation evaluative in character. [page 279]

Farm debt disputes 8.110 One of the early forms of mandatory mediation in Australia was legislated into effect by the Farm Debt Mediation Act in New South Wales.180 Since then banks and other lenders who wish to foreclose on family farms are required to participate in a ‘satisfactory’ mediation before they can issue legal proceedings against the farmer. is is again not a quantitatively signi cant area of mediation practice, but it has both symbolic and practical signi cance for farmers, banks and communities concerned about matters such as the sustainability of regional Australia and food security for the future. Mediation in this context is justi ed in terms of its problem-solving focus and in practice it manifests as both facilitative and evaluative/advisory in nature. Despite its limitations, and the need for curial clari cation on jurisdictional issues,181 the system has endured for two decades and has led to the establishment of voluntary schemes in other states.182

International commercial disputes 8.111 It is not easy to gauge the extent and effectiveness of mediation in international commercial disputes. is is an area in which Australia has yet to provide legal infrastructure and resources to encourage its operation. In contrast to this, Australia has long promoted itself as a potential cross-

border arbitration seat with both Commonwealth and state governments endorsing international instruments,183 and amending domestic legislation, to attract arbitrations to this jurisdiction.184 Australia has not adopted the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018) (amending the Model Law on International Commercial Conciliation, 2002). Australia has, however, been prominent in discussions on the development of a convention on the international enforcement of mediated settlement agreements, a project also under UNCITRAL’s auspices.185 On 10 September 2021, Australia signed the Singapore Convention on Mediation, formally the United Nations Convention on International [page 280] Settlement Agreements Resulting from Mediation (adopted on 20 December 2018). is Convention is a signi cant step forward for international mediation because it will ‘facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements across borders’.186 As with other commercial mediations, those occurring across state boundaries can be justi ed in terms of time, expense and opportunity cost. Despite different cultural and legal circumstances, the evaluative model is appropriate for the issues involved, although there is some innovation in treaty-based DR systems.187 8.112 Beyond the context of international commercial DR there are also many international-level disputes that arise out of human rights and international relations con ict. It is not possible to estimate the extent to which nation states, international institutions such as the United Nations and high-status individuals are involved in mediating con icts in these elds, as these events tend to occur behind closed doors and are not to be revealed unless agreements become public.188 However, it is suggested that Australia should consider positioning itself more prominently as an honest broker in such contexts.

Contentious issues in mediation When is mediation appropriate? 8.113 A mediation issue that has long vexed policy-makers and practitioners concerns the question of when the process is appropriate or inappropriate. Mediation is clearly not suitable for all disputes or all parties. DR practitioners have important duties in terms of screening disputes in and out of mediation, and suitability for mediation and other DR processes is a matter on which legal practitioners have a signi cant ethical duty to advise their clients.189 For example, where a dispute can only result in a binary outcome it is unlikely to be appropriate for mediated negotiations and a third-party decision made by a court according to external objective criteria (such as the law) might be necessary. 8.114 One of the prerequisites for the suitability of mediation is capacity on the part of the parties. Formal legal capacity refers to parties’ ability to commit to the Agreement to Mediate, to engage with the other side and to consent to a mediated settlement agreement, and minors or persons with mental health afflictions may not be suitable for mediation for this reason. Functional capacity refers to participants being able to [page 281] express their needs, to communicate as circumstances require, and to make informed decisions. is requires some degree of knowledge and articulateness for mediation to be appropriate. In addition, parties require some ability to negotiate and problem-solve which may not avail those who, despite being normally articulate and competent, are in temporary shock, grief or denial — in which case mediation would be inappropriate until the symptoms of this state li and capacity returns. Importantly, appropriate legal representation and other professional support could assist with enhancing or building capacity. 8.115 It is no longer the case, as it used to be, that voluntary entry into mediation is regarded as an indicator of appropriateness for mediation.190

is is because parties may refuse the option to participate for reasons of ignorance, prejudice or pragmatic caution and not because of its perceived unsuitability. Parties are also sometimes prevailed upon by lawyers to refuse mediation, because the lawyers are not prepared for the process or because it does not t with their professional practice. For these reasons it is widely accepted in Australia that external agents, such as courts, tribunals and other agencies, should have authority to refer parties to mediation, even against their objections, thus giving them the burden of deciding on the suitability of mediation. 8.116 For mediation to be appropriate, however, there does need to be a level of willingness on the part of mediating parties in at least one sense, namely in being prepared to follow prescribed terms of mediation and conduct standards in negotiating outcomes to their dispute.191 An attempt by parties or advisers to use mediation as a strategic or tactical manoeuvre without serious intentions of arriving at a settlement will result in mediation being deemed inappropriate as a matter of policy. For example, in personal injury matters mediation insurers might propose mediation to glean information about the strengths and weaknesses of a plaintiff ’s case or as a delaying tactic to wear them down.192 Willingness also implies good faith preparedness to disclose information relevant to a dispute and transparency failure could amount to misuse of the mediation process to secure outcomes that are unjust, unfair and unlikely to endure. [page 282] 8.117 e question also arises as to whether willingness to compromise is a necessary condition for mediation to be appropriate. While a party might make a pre-mediation commitment to compromise, once in mediation they might decline to concede and settle for a range of legitimate reasons. Compromise may be rendered difficult by the legal realities of a situation or there may be cultural attributes unsuited to the give and take of negotiated compromise. Conversely, one party might be motivated, for example, by guilt, and concede inappropriately to the other side. In these situations, an authoritative decision-making process might be more suited to the situation.

8.118 e appropriateness of mediation timing is also a disputed concept but there are more opinions than evidence on the subject. e prevailing view is that mediation should be conducted ‘earlier rather than later’ and courts have extended this principle into situations where referrals are made before discovery has been completed, despite one or both parties’ objections.193 Establishing the existence and degree of invalidating factors is a challenging function for referral agencies, particularly as some of the indicators of non-suitability might only become apparent during mediation. Mediators and advisers could improve the factors of willingness and capacity during the process by providing information and advice, but there are limits to these forms of assistance and some cases should be declined for mediation treatment rather than taking the risk of inappropriate referrals. However, in reality the trend in Australia is that mediation has become so pervasive that there is an inclination to refer cases to the process without the scrutiny required. As some kind of compensation for this tendency, there is increasing imposition by legislation and codes of conduct of behavioural standards for the parties and their advisers in mediation.

Mediator power 8.119 Mediator power is another contentious issue in mediation.194 It was indicated previously that in terms of the structure of mediation, the mediator is ostensibly responsible for managing the process, while the parties are said to have control over the content and outcome of the matter. is structural differentiation was originally aligned with a value proposition relating to the ‘neutrality’ of mediators, a concept [page 283] much debated in the literature but now little applied in most mediation contexts.195 e non-partisan position of a mediator denotes that mediators should act even-handedly and without bias in favour of or against any of the parties; equally signi cant is the requirement that mediators avoid any con ict of interest.

8.120 e non-partisan nature of the mediator’s role is commonly referred to as ‘impartiality’ and is supported by the NMAS Practice Standards.196 To be even-handed, fair and non-partisan in the conduct of a mediation, mediators need to have insights into their own perspectives and prejudices and an understanding of the impacts these might have on mediating parties and their subtle interactions with them. e challenge here is that partiality or partisanship on the part of mediators may not be conscious to them. As discussed in Chapter 2, understandings of human decision-making reveal the potential social and cognitive biases and other heuristics operating at the subconscious level which affect choices, decisions and agreements.197 Mediators are not immune from these in uences and yet becoming aware of one’s own unconscious inclinations is a considerable professional challenge.198 8.121 As regards mediators’ conduct of the process, there are concerns about some of the different stages referred to above. For example, the function and operation of separate meetings raises controversies about the power this extends to mediators, their impact on parties’ trust in the process and how matters divulged in the sessions can be used subsequently. Likewise, the option generation phase raises questions about the extent of mediators’ responsibilities in this element of the process, especially where parties are struggling with engaging in creative option generation. ere are also different views as to how mediators should deal with impasses in parties’ negotiations and decision-making through educating, coaching, recommending or advising them. is issue re ects the reality of a lack of a bright line around the models of mediation discussed above. 8.122 Quality and standards are also contentious issues in all forms of DR and they can be promoted through a combination of market-based and regulatory factors. e mediation system has moved to a quasi-regulatory mode of quality assurance in terms of the accreditation and accountability of mediators. is has occurred under the auspices of the NMAS, an opt-in self-regulatory system developed by the mediation profession, and the FDR system which is a mandatory arrangement regulated by the Commonwealth [page 284]

Government pursuant to federal legislation. Further consideration is given to the NMAS in Chapter 13. is has been only a brief analysis of some of mediation’s critical issues and, as we noted above, more elaborate analyses occur in dedicated literature on the topic.

Lawyers in mediation 8.123 e role of lawyers in mediation is very important but also highly variable. Much will depend on the context in which the mediation is taking place, and the mediation model being used. In mediations that are aligned to courts and tribunals, or mandated by legislation, there is a strong shadow of the law and lawyers might be seen as indispensable participants by many clients, and some mediators.199 Indeed, in the most highly legalised disputes, corporations, governments and other large players might be represented by solicitors, barristers and Senior Counsel, and in some cases in-house counsel might also be present. As retired judges and senior lawyers are engaged as mediators in these contexts, not only are disputes more likely to be considered in their legalised version but the mediations are also more likely to be evaluative in nature. So integral is mediation to some court proceedings that the advocate’s immunity applying to litigation has been extended to their advocacy role in mediation.200 8.124 In terms of facilitated mediation, the role of lawyers, if the value of party autonomy is to be brought to life, should be less active and more supportive. e introduction of DR to an increasing number of law school curricula will certainly extend the competence of lawyers in the mediation advocacy role. For now, however, concerns remain that lawyers are inclined to introduce formalism into informal DR processes, with adversarial positioning and questioning, technical legal submissions, and limited attention to remedial creativity.201 Nonetheless, the role of lawyers in the diverse contexts of mediation practice is becoming more important. And, of course, lawyers themselves are also increasingly working in the role of mediators.

Conclusion

8.125 As indicated at the beginning of this chapter, mediation is a diverse process with many manifestations and iterations. e exact nature of the role and responsibilities of the mediator, parties and their advisers depends on the context of the mediation and [page 285] on the model being used. e underlying bottom line of any process called ‘mediation’, however, is that the mediator should never have any authority to impose a decision on the parties or make a binding determination for them. is capacity is found in the determinative processes dealt with in Chapters 10 and 11. 8.126 Mediation has been portrayed in this chapter as a standalone system. It can, however, also be a component element in blended processes in which a determinative element is added to the facilitative and advisory stages, such as med-arb. Conciliation is discussed in Chapter 9 and the blended models of DR are dealt with in Chapter 10. 1.

For example, the Lawyers Weekly reported in 2016 that ‘Corporate clients are increasingly embracing mediation as a method of dispute resolution, prompting lawyers to follow suit’. Felicity Nelson and Stefanie Garber, ‘Mediation Demand Driven by Client Enthusiasm’, Lawyers Weekly (30 March 2016).

2.

For example, Civil Dispute Resolution Act 2011 (Cth); Family Law Act 1975 (Cth) s 60I.

3.

For the key Australian DR works also discussing mediation, see, eg, Laurence Boulle, Mediation — Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011); David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and Materials (omson Reuters, 4th ed, 2018); Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis Butterworths, 2018); Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis Butterworths, 3rd ed, 2019); Peter Condliffe, Con ict Management: A Practical Guide (LexisNexis, 6th ed, 2019) chs 5, 7, 9, 10; Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020) chs 3, 4, 7. See also Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (omson Reuters, 2nd ed, 2009); Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014); Michael Mills, Commercial Dispute Resolution: A Practitioners Guide to Successful ADR (omson Reuters, 2018). See further Michael L Moffitt and Robert C Bordone (eds), e Handbook of Dispute

Resolution (John Wiley & Sons, 2005) Pt III; Jacqueline Nolan-Haley, Alternative Dispute Resolution in a Nutshell (West Academic, 4th ed, 2013); Karl Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (Routledge, 2013); Christopher W Moore, e Mediation Process: Practical Strategies for Resolving Con ict (John Wiley & Sons, 4th ed, 2014). See also Lon Fuller, ‘Mediation: Its Forms and Functions’ (1971) 44(2) Southern California Law Review 305. 4.

See National Mediator Accreditation System (NMAS), Practice Standards, ss 2, 9 .

5.

See, eg, Kathy Douglas, ‘National Mediator Accreditation System: In Search of an Inclusive De nition of Mediation’ (2006) 25(1) e Arbitrator & Mediator 1, 8; John Wade, ‘Mediation — e Terminological Debate’ (1994) 5(4) Australian Dispute Resolution Journal 204; Caroline Harmon-Darrow et al, ‘De ning Inclusive Mediation: eory, Practice and Research’ (2020) 37(4) Con ict Resolution Quarterly 305.

6.

See, eg, Michael Lang and Alison Taylor, e Making of a Mediator: Developing Artistry in Practice (John Wiley & Sons, 2000).

7.

ere is a relatively strong perspective in the mediation literature, especially in the United States, that evaluative mediation is ‘wrong’ or simply not mediation at all. See, eg, Kimberley K Kovach and Lela Love, ‘“Evaluative” Mediation is an Oxymoron’ (1996) 14 Alternatives to High-Cost Litigation 31; James J Al ni, ‘Evaluative Versus Facilitative Mediation: A Discussion’ (1997) 24(4) Florida State University Law Review 919, 928. In this context, Riskin’s broad de nition of mediation as also encompassing versions of active, directive practice was controversial: see Leonard L Riskin, ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed’ (1996) 1(7) Harvard Negotiation Law Review 7.

8.

NMAS, (n 4).

9.

See, eg, Boulle, (n 3) 62–90; Moore, (n 3).

10.

See, eg, Vicky De Mesmaecker, ‘Victim-Offender Mediation Participants’ Opinions on the Restorative Justice Values of Con dentiality, Impartiality and Voluntariness’ (2013) 1(3) Restorative Justice 334.

11.

Bobette Wolski, ‘Voluntariness and Consensuality: De ning Characteristics of Mediation?’ (1997) 15(3) Australian Bar Review 213; David Spencer, ‘Mandatory Mediation and Neutral Evaluation: A Reality in New South Wales’ (2000) 11(4) Australian Dispute Resolution Journal 237.

12.

See, eg, Magdalena McIntosh, ‘A Step Forward — Mandatory Mediations’ (2003) 14(4) Australasian Dispute Resolution Journal 280; Marco Piazza, ‘Mandatory Victim Offender Mediation — Valuable Fruit or Rotten Tomato?’ (2006) 17(4) Australasian Dispute Resolution Journal 233; Micheline Dewdney, ‘e Partial Loss of Voluntariness and Con dentiality in Mediation’ (2009) 20(1) Australasian Dispute Resolution Journal 17; Margaret Schmidt, ‘Exploring the Contradictions Inherent In Court-Ordered “Voluntary” Mediation’ (2013) 68(1) Dispute Resolution Journal 103; Krista Mahoney,

‘Mandatory Mediation: A Positive Development in Most Cases’ (2014) 25(2) Australasian Dispute Resolution Journal 120; Amira Galin, ‘What Makes CourtReferred Mediation Effective?’ (2014) 25(1) International Journal of Con ict Management 21; Jacqueline M Nolan-Haley, ‘Mediation: e Best and Worst of Times’ (2015) 16(3) Cardozo Journal of Con ict Resolution 731; Odd Tjersland, Wenke Gulbrandsen and Hanne Haavind, ‘Mandatory Mediation Outside the Court: A Process and Effect Study’ (2015) 33(1) Con ict Resolution Quarterly 19–34. 13.

On the four dimensions of mediation voluntariness, see Wolski, (n 11). Voluntariness was in reality a legitimating ideology for a new service.

14.

See, eg, William Lucy, ‘e Possibility of Impartiality’ (2005) 25(1) Oxford Journal of Legal Studies 3; Gerald Brennan, ‘Australian Values: Some Re ections’ (2007) 79(4) e Australian Quarterly 7; James omas, Judicial Ethics (LexisNexis Butterworths, 3rd ed, 2009). See also, however, Kathleen Mahoney, ‘e Myth of Judicial Neutrality’ (1996) 32(4) Willamette Law Review 785.

15.

Jonathan Crowe and Rachael Field, ‘e Problem of Legitimacy in Mediation’ (2008) 9(1) Contemporary Issues in Law 48.

16.

See Rachael Field and Jonathan Crowe, Mediation Ethics: From eory to Practice (Edward Elgar, 2020). See also Rachael Field, ‘Mediation and the Art of Power (Im)Balancing’ (1996) 12(1) QUT Law Journal 264; Rachael Field, ‘e eory and Practice of Neutrality in Mediation’ (2003) 22(1) e Arbitrator and Mediator 79; Kathy Douglas and Rachael Field, ‘Looking for Answers to Mediation’s Neutrality Dilemma in erapeutic Jurisprudence’ (2006) 13(2) eLaw Journal 177; Kathy Douglas, Nadia Sager and Rachael Field, ‘Hearing the Voices of Victorian Conferencing Practitioners — Views on Neutrality’ (2010) 21(3) Australasian Dispute Resolution Journal 163; Rachael Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22(1) Australasian Dispute Resolution Journal 8; Rachael Field, ‘Mediation Ethics in Australia — A Case for Rethinking the Foundational Paradigm’ (2012) 19 James Cook University Law Review 41; Jonathan Crowe and Rachael Field, ‘e Empty Idea of Mediator Impartiality’ (2019) 29(4) Australian Dispute Resolution Journal 273.

17.

Compare Boulle, (n 3) 77–9.

18.

Vicki J Vann, ‘Con dentiality in Court-Sponsored Mediation: Disclose at Your Own Risk?’ (1999) 10(3) Australian Dispute Resolution Journal 195; David Spencer, ‘ree Case Notes: e Con dentiality Factor’ (2002) 13(1) Australasian Dispute Resolution Journal 15; Amber Bernauer, ‘Con dentiality’ (2005) 16(2) Australasian Dispute Resolution Journal 135; Sarah Cole, ‘Protecting Con dentiality in Mediation: A Promise Unful lled’ (2006) 54(5) Kansas Law Review 1419; Gabrielle Hurley, ‘Mediation Where a Party Represents the Australian Government: Are there Limits to Con dentiality?’ (2006) 17(1) Australasian Dispute Resolution Journal 29; Rachael Field and Neal Wood, ‘Con dentiality: An Ethical Dilemma for Marketing Mediation?’ (2006) 17(1) Australasian Dispute Resolution Journal 79; Joe Harman,

‘Con dentiality in Family Dispute Resolution and Family Counselling: Recent Cases and Why ey Matter’ (2011) 17(3) Journal of Family Studies 204; Susan Oberman, ‘Con dentiality in Mediation: An Application of the Right to Privacy’ (2012) 27(3) Ohio State Journal on Dispute Resolution 539; Michael F Keith, ‘Con dentiality in Mediation: A Review of New Zealand Case Law’ (2013) Labour, Employment and Work in New Zealand 1; Dominik Leimgruber, ‘Con dentiality, Public Interest and the Mediator’s Ethical Dilemma’ (2013) 24(3) Australasian Dispute Resolution Journal 187; Tom Altobelli and Diana Bryant, ‘Has Con dentiality in Family Dispute Resolution Reached its Use-By Date?’ in Alan Hayes and Daryl J Higgins (eds), Families, Policy and the Law (AIFS, 2014) 195; Joe Harman, ‘Mediation Con dentiality: Origins, Application and Exceptions and Practical Implications’ (2017) 28(2) Australasian Dispute Resolution Journal 106; Joe Harman, ‘An Imperfect Protection: Attitudes of Family Dispute Resolution Practitioners to Con dentiality’ (2018) 29(1) Bond Law Review 39; John Woodward, ‘Walking the Tightrope: Exploring the Relationship between Con dentiality and Disputant Participation’ (2019) 30(1) Australasian Dispute Resolution Journal 23; Joe Harman, ‘e Protection of Con dentiality in Australian Family Law’ (2020) 58(1) Family Court Review 126. 19.

See, eg, Altobelli and Bryant, (n 18); Field and Wood, (n 18).

20.

See, eg, Rachael Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22(1) Australasian Dispute Resolution Journal 8; Mieke Brandon, ‘Self-Determination in Australian Facilitative Mediation: How to Avoid Complaints’ (2015) 26(1) Australasian Dispute Resolution Journal 44; Laurence Boulle and Rachael Field, ‘Re-Appraising Mediation’s Value of Self-Determination’ (2020) 30(2) Australasian Dispute Resolution Journal 96. See also Jacqueline M NolanHaley, ‘Self-Determination in International Mediation: Some Preliminary Re ections’ (2005) 7(2) Cardozo Journal of Con ict Resolution 277.

21.

For Astor’s classic discussion on maximising party control, see Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part I’ (2000) 11(2) Australian Dispute Resolution Journal 73; Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part II’ (2000) 11(3) Australasian Dispute Resolution Journal 145. However, see also, eg, Donald T Weckstein, ‘In Praise of Party Empowerment — And of Mediator Activism’ (1997) 33(3) Willamette Law Review 501. Further, see Crowe and Field, (n 15); Rachael Field and Jonathan Crowe, ‘e Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis’ (2007) 27(1) e Australian Feminist Law Journal 97.

22.

is participation potentially extends to spouses, advisers, support people, witnesses and friends, all of whom can, by arrangement, attend and have some involvement in mediation.

23.

See the work of Carrie Menkel-Meadow: ‘For and Against Settlement: e Uses and Abuses of the Mandatory Settlement Conference’ (1985) 33(2) UCLA Law Review 485; ‘Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted of “e

Law of ADR”’ (1991) 19(1) Florida State University Law Review 1; ‘e Many Ways of Mediation: e Transformation of Traditions, Ideologies, Paradigms and Practices’ (1995) 11(3) Negotiation Journal 217; ‘Whose Dispute Is It Anyway?: A Philosophical and Democratic Defence of Settlement (In Some Cases)’ (1995) 83(7) Georgetown Law Journal 2663. 24.

Although see Russell irgood, ‘Mediator Intervention to Ensure Fair and Just Outcomes’ (1999) 10(2) Australian Dispute Resolution Journal 142.

25.

See also Field and Crowe, (n 16) ch 4.

26.

J Roland Pennock and John W Chapman (eds), Compromise in Ethics, Law and Politics (New York University Press, 1979). For analysis of the politically democratic nature of compromise, see Alin Fumurescu, Compromise: A Political and Philosophical History (Cambridge University Press, 2013). See also Bertrand Munier and Melvin Shakun (eds), Compromise, Negotiation and Group Decision (Springer Science & Business Media, 2012); Jeffrey Z Rubin and Bert R Brown, e Social Psychology of Bargaining and Negotiation (Elsevier, 2013); Alan McCarthy and Steve Hay, Advanced Negotiation Techniques (Apress, 2015).

27.

Menkel-Meadow, ‘Whose Dispute Is It Anyway?’, (n 23) 2673 referring to George C Homans, Social Behaviour (Harcourt Brace, 1961); I William Zartman and Maureen R Berman, e Practical Negotiator (Yale University Press, 1982).

28.

Menkel-Meadow, ‘Whose Dispute Is It Anyway?’, (n 23) 2672. On the issue of negotiation requiring the compromise of principles, see, eg, David Luban, ‘e Quality of Justice’ (1989) 66(3) Denver University Law Review 381; David Luban, ‘Bargaining and Compromise: Recent Work on Negotiation and Informal Justice’ (1985) 14(4) Philosophy and Public Affairs 397.

29.

Menkel-Meadow, ‘Whose Dispute Is It Anyway?’, (n 23) 2673. See also Owen Fiss, ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073.

30.

Weckstein, (n 21) 511. See also Al ni, (n 7) 928.

31.

Weckstein, (n 21) 521.

32.

Al ni, (n 7) 934 (quoting Lela Love).

33.

Weckstein, (n 21) 503. Moberly has noted that the line between information and advice is unclear: Al ni, (n 7) 925 (Moberly). Kolb has written: ‘rough their choice of metaphors, mediators emphasise particular features of their work: the intuitive over the systematic and the unexpected over the planned’: Deborah M Kolb, e Mediators (MIT Press, 1983) 3.

34.

Weckstein, (n 21) 521.

35.

Robert D Benjamin, ‘e Physics of Mediation: Re ections of Scienti c eory in Professional Mediation Practice’ (1990) 8(2) Mediation Quarterly 91, 107. See also Debra Shapiro, Rita Drieghe and Jeanne Brett, ‘Mediator Behaviour and the Outcome of Mediation’ (1985) 41(2) Journal of Social Issues 101; Denise King, ‘Specialists in Family Law Resolution’ (1999) 10(1) Australian Dispute Resolution Journal 63, 68

referring to Randy F Kandel, ‘Situated Substantive Expertise: An Ethnographic Illustration and a Proposed Standard of Practice for Mediators’ (1998) 15(4) Mediation Quarterly 303. Compare, however, the work of Sue Douglas: ‘Neutrality in Mediation: A Study of Mediator Perceptions’ (2008) 8(1) QUT Law and Justice Journal 139; ‘Questions of Mediator Neutrality and Researcher Objectivity: Examining Re exivity as a Response’ (2009) 20(1) Australasian Dispute Resolution Journal 56; ‘Constructions of Neutrality in Mediation’ (2012) 23(2) Australasian Dispute Resolution Journal 80. See also Javier Yeo, ‘e Facilitative–Evaluative Divide: Have We Lost Sight of What’s Important?’ in Joel Lee and Marcus Lim (eds), Contemporary Issues in Mediation: Volume 1 (World Scienti c, 2016) 35; Ruth Charlton, ‘Mediation — My First Ten Years: 1982–1992’ (2019) 29(3) Australasian Dispute Resolution Journal 189. 36.

Weckstein, (n 21) 507. Riskin’s controversial grid of mediator orientations was an attempt to articulate this reality: Riskin, (n 7).

37.

Jeffrey W Stempel, ‘Beyond Formalism and False Dichotomies: e Need for Institutionalizing a Flexible Concept of the Mediator’s Role’ (1997) 24(4) Florida State University Law Review 949, 952. Stempel’s view was that the debate about the role of mediators indicates that ‘neither ironclad facilitative nor in exible evaluation enjoyed universal support’: ibid 953. See also Jane Kidner, ‘e Limits of Mediator Labels: False Debate between Facilitative versus Evaluative Mediator Styles’ (2011) 30 Windsor Review of Legal and Social Issues 167.

38.

is was judicially condoned in Gude v Stephens (Domestic Buildings) [2007] VCAT 810, which held that a physically absent respondent was ‘present’ through their lawyer. See also Chiara-Maria Caputo, ‘Lawyers’ Participation in Mediation’ (2007) 18(2) Australasian Dispute Resolution Journal 84. In a survey of lawyers Olivia Rundle found that nearly 70 per cent did not identify direct disputant participation as a bene cial factor in the mediation process, and they did not consider the principle a noteworthy feature of the system at all. Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Participation in Court-Connected Mediation of General Civil Cases’ (2009) 8(1) QUT Law and Justice Journal 77. See also Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH, 2010).

39.

On the range of lawyer roles and functions in mediation, see Hardy and Rundle, (n 38). See also Micheline Dewdney, ‘Party, Mediator and Lawyer-Driven Problems and Ways of Avoiding em’ (2006) 17(4) Australasian Dispute Resolution Journal 200. See also Woodward, (n 18).

40.

Ibid.

41.

Jacqueline M Nolan-Haley, ‘Informed Consent in Mediation: A Guiding Principle for Truly Educated Decision-Making’ (1999) 74(3) Notre Dame Law Review 775; Ruth R Faden and Tom L Beauchamp, A History and eory of Informed Consent (Oxford University Press, 1986). See also Michael T Colatrella Jr, ‘Informed Consent in Mediation: Promoting Pro Se Parties’ Informed Settlement Choice While Honoring the Mediator’s Ethical Duties’ (2013) 15(3) Cardozo Journal of Con ict Resolution 705.

See also the proposed framework for achieving informed consent discussed in Chapter 12. See also Field and Crowe, (n 16) ch 9. 42.

Weckstein, (n 21) 530.

43.

Ibid.

44.

Deborah ompson Eisenberg, ‘What We Know (and Need to Know) About CourtAnnexed Dispute Resolution’ (2016) 68(2) South Carolina Law Review 245.

45.

See, eg, Rachael Field, ‘A Mediation Profession in Australia: An Improved Framework for Mediation Ethics’ (2007) 18(3) Australasian Dispute Resolution Journal 178.

46.

NMAS, (n 4) s 2.2.

47.

See, eg, Simon Roberts, ‘ree Models of Family Mediation’ in Robert Dingwall and John Eekelaar (eds), Divorce Mediation and the Legal Process (Clarendon, 1988) 144, 144; Carrie Menkel-Meadow, ‘e Many Ways of Mediation: e Transformation of Traditions, Ideologies, Paradigms and Practices’ (1995) 11(3) Negotiation Journal 217; Carrie Menkel-Meadow, Lela Porter-Love and Andrea Kupfer Schneider, Mediation: Practice, Policy, and Ethics (Wolters Kluwer, 2005); Donna Cooper, ‘e Family Law Dispute Resolution Spectrum’ (2007) 18(4) Australasian Dispute Resolution Journal 234. Kenneth Kressel refers to ve mediator styles (integrative, evaluative, transformative, facilitative and latent cause) which can be reduced to two practice styles (settlement oriented and relationship oriented): Kenneth Kressel et al, ‘A Multidimensional Analysis of Con ict Mediator Styles’ (2012) 30(2) Con ict Resolution Quarterly 135.

48.

Alison Taylor, ‘Concepts of Neutrality in Family Mediation: Contexts, Ethics, In uence and Transformative Process’ (1997) 14(3) Mediation Quarterly 215, 216.

49.

Boulle, (n 3) 43–8. See also Moore, (n 3) ch 2; Sourdin, (n 3); Nadja Alexander, ‘e Mediation Metamodel: Understanding Practice’ (2008) 26(1) Con ict Resolution Quarterly 97; Zena Zumeta, ‘Styles of Mediation: Facilitative, Evaluative and Transformative Mediation’, Mediate.com .

50.

Dorothy J Della Noce, ‘Evaluative Mediation: In Search of Practice Competencies’ (2009) 27(2) Con ict Resolution Quarterly 193, 195.

51.

Field and Crowe, (n 16) ch 2. See also Lela P Love, ‘e Top Ten Reasons Why Mediators Should Not Evaluate’ (1997) 24(4) Florida State University Law Review 937.

52.

See, eg, Boulle and Field, (n 3) ch 7; the NMAS, (n 4); Grant Morris and Annabel Shaw, Mediation in New Zealand (omson Reuters, 2018) ch 5. In the United States, the Model Standards of Conduct for Mediators (2005) which are approved by the American Bar Association are also based on the facilitative model of mediation, as is the Dispute Resolution Committee of Resolution’s Guide to Good Practice on Mediation (2015) in the United Kingdom.

53.

See, eg, Boulle and Field, (n 3) ch 7; Field and Crowe, (n 16) 27–33 and the literature cited there. ese approaches are also similar to models such as settlement mediation

and directive mediation. See Riskin, (n 7) for the earlier version of this perspective: Leonard L Riskin, ‘Mediator Orientations, Strategies and Techniques’ (1994) 12(9) Alternatives to the High Cost of Litigation 111; and later perspectives Leonard L Riskin, ‘Decisionmaking in Mediation: e New Old Grid and the New New Grid System’ (2003) 79(1) Notre Dame Law Review 1. See also John Lande, ‘How Will Lawyering and Mediation Practices Transform Each Other?’ (1997) 24(4) Florida State University Law Review 839, 872–4; Ellen A Waldman, ‘e Evaluative-Facilitative Debate in Mediation: Applying the Lens of erapeutic Jurisprudence’ (1998) 82(1) Marquette Law Review 155; Jeffrey W Stempel, ‘e Inevitability of the Eclectic: Liberating ADR from Ideology’ (2000) Journal of Dispute Resolution 247; Roselle L Wissler, ‘To Evaluate or Facilitate? Parties’ Perceptions of Mediation Affected by Mediator Style’ (2001) 7 Dispute Resolution Magazine 35; Kenneth M Roberts, ‘Mediating the Evaluative-Facilitative Debate: Why Both Parties are Wrong and a Proposal for Settlement’ (2007) 39(1) Loyola University Chicago Law Journal 187; Dwight Golann and Marjorie Corman Aaron, ‘Using Evaluations in Mediation’ in omas E Carbonneau and Jeannette A Jaeggi (eds), Handbook on Mediation (American Arbitration Association, 2nd ed, 2010) 328; Marilyn Scott, ‘Mediation of Property Division in Late Stage Family Law Matters: A Procedural Initiative’ (2015) 26(4) Australasian Dispute Resolution Journal 232; Adele Carr, ‘Broadening the Traditional Use of Mediation to Resolve Interlocutory Issues Arising in Matters Before the Courts’ (2016) 27(1) Australasian Dispute Resolution Journal 10. See also, eg, omas J Stipanowich and Veronique Fraser, ‘e International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay Between Mediation, Evaluation and Arbitration in Commercial Cases’ (2016) 40(3) Fordham International Law Journal 839. 54.

Keltner cited in Micheline Dewdney, ‘Transformative Mediation: Implications for Practitioners’ (2001) 12(1) Australasian Dispute Resolution Journal 20, 23–4, referring to email communication between Sterling Newberry and John Keltner (15 February 2000).

55.

Robert Baruch Bush and Joseph Folger, e Promise of Mediation: Responding to Con ict rough Empowerment and Recognition (John Wiley & Sons, 1994) 65–6. See also a detailed discussion of the model and much of the key literature cited in Field and Crowe, (n 16) 20–7. Another form of therapeutic mediation is the narrative mediation model which is also discussed in Field and Crowe, (n 16) 33–7.

56.

e second edition was published in 2004: Robert Baruch Bush and Joseph Folger, e Promise of Mediation: Responding to Con ict rough Empowerment and Recognition (John Wiley & Sons, 2nd ed, 2004). ere is now a signi cant literature on transformative mediation. See, eg, Joseph Folger and Robert Baruch Bush, ‘Transformative Mediation and ird-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice’ (1996) 13(4) Mediation Quarterly 263; Robert Baruch Bush and Sally Pope, ‘Changing the Quality of Con ict Interaction: e Principles and Practice of Transformative Mediation’ (2002) 3(1) Pepperdine Dispute

Resolution Law Journal 67; Joseph Folger, Robert Baruch Bush and Dorothy J Della Noce (eds), Transformative Mediation: A Sourcebook (Association for Con ict Resolution and the Institute for the Study of Con ict Transformation, 2010). See also Zumeta, (n 49); Gary Paquin and Linda Harvey, ‘erapeutic Jurisprudence, Transformative Mediation and Narrative Mediation: A Natural Connection’ (2001) 3(2) Florida Coastal Law Journal 167; Lisa Gaynier, ‘Transformative Mediation: In Search of a eory of Practice’ (2005) 22(3) Con ict Resolution Quarterly 397. Some of the Australian literature includes: Michelle Brenner, Steven Segal and Natasha Serventy, ‘What is Transformative Mediation?’ (2000) 11(3) Australian Dispute Resolution Journal 155; Dewdney, (n 54); Mary Anne Noone, ‘e Disconnect Between Transformative Mediation and Social Justice’ (2008) 19(2) Australasian Dispute Resolution Journal 114; Mark Dickinson, ‘e Importance of Transformative Mediation to the Internal Workplace Mediation Program’ (2011) 22(2) Australasian Dispute Resolution Journal 95. See further Lisa Blomgren Bingham, ‘Transformative Mediation at the United States Postal Service’ (2012) 5(4) Negotiation and Con ict Management Research 354; Robert Condlin, ‘e Curious Case of Transformative Dispute Resolution: An Unfortunate Marriage of Intransigence, Exclusivity, and Hype’ (2013) 14(3) Cardozo Journal of Con ict Resolution 621; Robert A Baruch Bush and Joseph P Folger, ‘Response to Condlin’s Critique of Transformative Mediation’ (2013) 15(1) Cardozo Journal of Con ict Resolution 231; Richard L Skalstad, ‘Transformative Mediation Twenty Years Later: An Invitation to Discuss Post-Traumatic Stress Disorder and Legal Ethics’ (2016) 1(1) Concordia Law Review 1; Joseph P Folger and Robert A Baruch Bush, ‘Transformative Mediation: A Self-Assessment’ (2014) 2(1) International Journal of Con ict Engagement and Resolution 20; Joseph P Folger and Robert A Baruch Bush, ‘Transformative Mediation’ (2014) 2(1) International Journal of Con ict Engagement and Resolution 62; Yeju Choi, ‘Practising Insight Mediation’ (2017) 28(4) International Journal of Con ict Management 533. 57.

Sally G Pope, ‘Inviting Fortuitous Events in Mediation: e Role of Empowerment and Recognition’ (1996) 13(4) Mediation Quarterly 287, 288. See also Trina Grillo, ‘Respecting the Struggle: Following the Parties’ Lead’ (1996) 13(4) Mediation Quarterly 279.

58.

Bush and Folger, (n 55) 72.

59.

Ibid 46.

60.

Ibid 49.

61.

Ibid 46. Bush and Folger state that transformative mediation responds to the fact that ‘[t]his crisis of deterioration in human interaction is what parties nd most affecting, signi cant — and disturbing — about the experience of con ict’. Ibid.

62.

Ibid 52.

63.

See, eg, Love, (n 51); Kimberly K Kovach and Lela P Love, ‘Mapping Mediation: e Risks of Riskin’s Grid’ (1998) 3(1) Harvard Negotiation Law Review 71.

64.

Michael McHugh, ‘Mediation and Negotiation in Legal Disputes’ (2021) 31(2)

Australasian Dispute Resolution Journal 104. 65.

See Boulle and Field, (n 3). See also Boulle and Alexander, (n 3). See also Jennifer Beer and Caroline Packard, e Mediator’s Handbook (New Society Publishers, 4th ed, 2012); Ruth Charlton and Micheline Dewdney, e Mediator’s Handbook (omson Reuters, 3rd ed, 2014); Suzanne McCorkle and Melanie J Reese, Mediation eory and Practice (Sage, 2014); Boulle and Alexander, (n 3).

66.

See, eg, Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth).

67.

Hardy and Rundle, (n 38). McHugh, (n 64).

68.

e role of legal representatives in mediation is a much discussed issue, and is canvassed further below.

69.

Sara Cobb and Janet Riin, ‘Neutrality as a Discursive Practice: e Construction and Transformation of Narratives in Community Mediation’ (1991) 11 Studies in Law, Politics and Society 69. See also Sara Cobb and Janet Riin, ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16(1) Law and Society 35; Janet Riin, Jonathan Millen and Sara Cobb, ‘Toward a New Discourse for Mediation: A Critique of Neutrality’ (1991) 9(2) Mediation Quarterly 151; Sara Cobb, ‘“eories of Responsibility”: e Social Construction of Intentions in Mediation’ (1994) 18(2) Discourse Processes 165.

70.

Hilary Astor, ‘Some Contemporary eories of Power in Mediation: A Primer for the Puzzled Practitioner’ (2005) 16(1) Australasian Dispute Resolution Journal 30.

71.

Ibid 36. e importance of party preparation for participation in DR processes is discussed further in Chapter 12.

72.

Cobb and Riin, ‘Neutrality as a Discursive Practice’, (n 69).

73.

Ibid 69–71. Astor, (n 70) 36. See also Katherine A Stewart and Madeline M Maxwell, Storied Con ict Talk: Narrative Construction in Mediation (John Benjamins Publishing, 2010).

74.

Sara Cobb, ‘Empowerment and Mediation: A Narrative Perspective’ (1993) 9(3) Negotiation Journal 245, 247.

75.

Ibid 252–3.

76.

See also Mary Power, ‘Agenda Setting in Real-Life Negotiations’ (1999) 10(1) Australian Dispute Resolution Journal 30; Edwin H Greenebaum, ‘On Teaching Mediation’ (1999) Journal of Dispute Resolution 115.

77.

Kathy Douglas and David Goodwin, ‘Artistry in Mediator Practice: Re ections from Mediators’ (2015) 26(2) Australasian Dispute Resolution Journal 137. See also Clare Coburn, Becky Batagol and Kathy Douglas, ‘How a Dose of Humour May Help Mediators and Disputants in Con ict’ (2013) 24(1) Australasian Dispute Resolution Journal 18; Lang and Taylor, (n 6).

78.

See, eg, Tricia Jones and Andrea Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) 17(3) Negotiation Journal 217; Deanna Foong,

‘Emotions in Negotiation’ (2007) 18(3) Australasian Dispute Resolution Journal 186; Kathy Douglas, ‘Mediation and Improvisation: Teaching Mediators to Improvise the Storylines of Mediation’ (2007) 14(2) Murdoch eLaw Journal 133; Kathy Douglas and Clare Coburn, ‘Attitude and Response to Emotion in Dispute Resolution: e Experience of Mediators’ (2014) 16(1) Flinders Law Journal 111; Ken Skinner, ‘Emotion in Mediation’ (2015) 26(4) Australasian Dispute Resolution Journal 241; Jayr Teng, ‘Emotion and its Role in Negotiation — Valuable Tool or Unnecessary Hindrance?’ (2015) 26(1) Australasian Dispute Resolution Journal 51; Sophie Whittaker, ‘e Emotional Advantage: How Dispute Resolution Practitioners Can Embrace the Transformative Capacity of Emotion and De-escalate Con ict’ (2021) 31(2) Australasian Dispute Resolution Journal 122. See also Robyn Carroll, Alfred Allan and Margaret Halsmith, ‘Apologies, Mediation and the Law: Resolution of Civil Disputes’ (2018) 29(1) Australasian Dispute Resolution Journal 21. 79.

See, eg, Boulle and Alexander, (n 3) 136–40.

80.

is has commonly been referred to as consideration of the BATNA (Best Alternative to a Negotiated Agreement) or WATNA (Worst Alternative to a Negotiated Agreement) originating in Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (Penguin Books, 1991). See also Berend R De Vries, Ronald Leenes and John Zeleznikow, ‘Fundamentals of Providing Negotiation Support Online: e Need for Developing BATNAs’ in John Zeleznikow and Arno R Lodder (eds), Proceedings of the Second International ODR Workshop (Wolf Legal Publishers, 2005); Francisco Andrade et al, ‘Using BATNAs and WATNAs in Online Dispute Resolution’ in Kumiyo Nakakoji, Yohei Murakami and Eric McCready (eds), New Frontiers in Arti cial Intelligence (Springer, 2009) 5–18; Carmen M Cusack, ‘ADR and Yama, Yoga Sutra’s First Limb’ (2012) 23(2) Australasian Dispute Resolution Journal 131; Patricia D Galloway, ‘Engineering a Successful Negotiation’ (2012) 5(1) Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 6; John Woodward, ‘Tipping the Scales — To What Extent Does the Presence of Power Imbalances Detract from the Efficacy of Principled Negotiation?’ (2015) 26(2) Australasian Dispute Resolution Journal 86; Margaret Considine, ‘Beyond Winning: Unlocking Entrenched Con ict Using Principles and Practices of Negotiation in the Mediation Room’ (2015) 2(1) Journal of Mediation and Applied Con ict Analysis; Carrie Menkel-Meadow, ‘e Case for Mediation: e ings that Mediators Should Be Learning and Doing’ (2016) 82(1) Arbitration: International Journal of Arbitration, Mediation and Dispute Resolution 22. See also Joseph B Stulberg, ‘Mediator Misunderstanding of Bargaining Basics: Heading in an Ugly Direction’ (2015) 16(3) Cardozo Journal of Con ict Resolution 807.

81.

See Chapter 7.

82.

See, eg, Boulle and Alexander, (n 3) 151–8; Boulle, (n 3) 262–3.

83.

NMAS, (n 4) s 10(1)(b)(vii).

84.

See Boulle and Alexander, (n 3) 152.

85.

See, eg, John Wade, ‘e Last Gap in Negotiations — Why is it Important? How Can it be Crossed?’ (1995) 6(2) Australian Dispute Resolution Journal 92; John Wade, ‘Crossing the Last Gap’ in Andrea Kupfer Schneider and Christopher Honeyman (eds), e Negotiator’s Fieldbook (ABA, 2006) 467.

86.

As indicated above, this involves the mediator using their experience to probe and test a party’s positional stance, and can be incorporated in a sophisticated ‘risk analysis’. See, eg, Melissa Wai, ‘Techniques in Mediation: A Closer Look at Decision Analysis’ (2015) 8 American Journal of Mediation 45; Donald R Philbin Jr, ‘e Value of Economic Analysis in Mediation’ (2014) 23(3) Alternative Resolutions 3; Brandon, (n 55).

87.

See, eg, Moore, (n 3) ‘Part Two: Laying the Groundwork for Effective Mediation’; Boulle, (n 3) 225–34. See also NMAS, (n 4) ss 3, 9–10.

88.

Ibid.

89.

Private mediation can be initiated by an interested party contacting a service provider (oen referred to as Party A) which in turn makes contact with the other side (oen referred to as Party B) to ascertain if they are prepared to mediate. e initiation is sometimes made by both parties jointly.

90.

For example, Family Relationship Centres focus on various aspects of suitability for FDR in their in-depth intake and screening procedures. See further Sue Rice et al, ‘An Analysis of Domestic Violence Presenting to FRCs at Intake and Assessment’ (2012) 23(2) Australasian Dispute Resolution Journal 89. See also Catherine Caruana and Robyn Parker, ‘Embedding Research in Practice: Research within Family Relationship Centres in Australia’ (2009) 14 Australian Family Relationships Clearinghouse Brie ng ; Australian Government, Operational Framework for Family Relationship Centres (2014).

91.

See, eg, Elizabeth Stokoe, ‘Overcoming Barriers to Mediation in Intake Calls to Services: Research-Based Strategies for Mediators’ (2013) 29(3) Negotiation Journal 289; Rein O Sikveland and Elizabeth Stokoe, ‘Dealing with Resistance in Initial Intake and Inquiry Calls to Mediation: e Power of “Willing”’ (2016) 33(3) Con ict Resolution Quarterly 235.

92.

See NMAS, (n 4) ss 3.2, 10. In this context mediators are required to provide participants with information about the NMAS and how it can be accessed, without having to directly make it available to them. See also Jill Howieson and Lisanne Iriks, ‘Before Mediation: Designing Processes for the Next Decade — Matching Process with the Purpose’ (2017) 28(1) Australasian Dispute Resolution Journal 51.

93.

See generally NADRAC, Your Guide to Dispute Resolution (Commonwealth of Australia, 2012) 16–18.

94.

Adam T Whitten, ‘Mental Health and Capacity to Mediate’ (2011) 20(3) Alternative Resolutions 30.

95.

See the Coordinated Family Dispute Resolution Model which was designed to work with matters involving a history of domestic violence: Rachael Field and Angela Lynch, ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36(4) e Journal of Social Welfare and Family Law 392; Rae Kaspiew et al, Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution In Family Violence Cases: Final Report (Australian Institute of Family Studies, 2012).

96.

Moore, (n 3) ch 8 ‘Collecting and Analysing Background Information’.

97.

See Edna Sussman and Conna A Weiner, ‘Striving for a “Bulletproof ” Mediation Settlement Agreement’ (2015) 33(4) Alternatives to the High-Cost of Litigation 49; Karen Klein, ‘Representing Clients in Mediation: A Twenty-Question Preparation Guide for Lawyers’ (2008) 84(3) North Dakota Law Review 877; Donald R Philbin Jr, ‘e One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation’ (2008) 13(1) Harvard Negotiation Law Review 249.

98.

Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: e Supreme Court of Tasmania’ (2013) 32(1) University of Tasmania Law Review 20. See also Gregory D Kincaid, ‘What to Bring to your First Mediation Appointment: e Right Documents, Information, and Attitude’ (2012) 35 Family Advocate 20.

99.

e NMAS was designed to promote ‘quality, consistency and accountability of NMAS accredited mediators within the diversity of mediation practice in Australia. It informs participants in mediation about what they can expect of a NMAS accredited mediator’: NMAS, (n 4) 2. See also, eg, David S Ross and Barbara McAdoo, ‘Strategic Considerations in Choosing a Mediator: A Mediator’s Perspective’ (2000) 2(1) Journal of Alternative Dispute Resolution in Employment 7.

100. See NMAS, (n 4). 101. See Steve Lancken and Jay Qin, ‘Ahead of the Curve: ACT Government Endorses National Mediation Accreditation Scheme’ (2015) 236 Ethos: Official Publication of the Law Society of the Australian Capital Territory 10. 102. See, eg, Catherine Caruana, ‘Dispute Resolution Choices: A Comparison of Family Dispute Resolution, Family Law Conferencing Services and Collaborative Law’ (2010) 85 Family Matters 80. 103. Mediation theory suggests that speci c expertise in the area in dispute is not required in mediators because they conduct the process and leave matters of content to the parties. is is not re ected in Australian practice where there is increasing specialisation in relation to mediator selection. Traditionally, there has not been extensive specialisation in common law courts but judges are increasingly specialised in commercial law, intellectual property, and the like. 104. See Tony Gee and Pat Urban, ‘Co-Mediation in the Family Court’ (1994) 5(1)

Australian Dispute Resolution Journal 42; Lisa Parkinson, ‘Co-Mediation on Family Matters — Cost-Effective or Unaffordable?’ (2013) Family Law 467. 105. See the decision in Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16 in which the court held that authority was not a necessary component of the good faith obligation providing the official representing the local authority could enter legally non-binding decisions for subsequent rati cation by the council. is ran counter to earlier decisions on settlement authority — eg ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22, [13]; Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192, [34]. 106. See also Miles Hansen, ‘Parallel Mediation: Ordering the Chaos of Multiparty Mediation’ (2012) 17(2) International Negotiation 237. 107. See Rundle, (n 38); Hardy and Rundle, (n 38). 108. See Hardy and Rundle, (n 38). 109. See Boulle, (n 3) 647. See also Case Notes, ‘When Does an Agreement to Mediate Cease and When are Parties Bound by an Agreement to Settle?’ (2015) 26(1) Australasian Dispute Resolution Journal 3; Beer and Packard, (n 65). 110. For example, under the Fair Work Commission unrepresented parties in conciliation have a cooling-off period of three days: see . 111. See Boulle, (n 3) 254–63. 112. e Practice Standards provide that the mediation meeting will ordinarily include a joint session of the participants, but in commercial and legal mediations this tends to be limited in duration and in some personal injury mediations is entirely excluded: see NMAS, (n 4) ss 4.1, 10. 113. Ibid. 114. See John Wade, ‘Strategic Interventions Used by Mediators, Facilitators and Conciliators’ (1995) 5(4) Australian Dispute Resolution Journal 292. 115. See on these variations Boulle and Alexander, (n 3) 142–8. 116. A small number of mediators avoid separate sessions entirely out of concern that they could result in a loss of trust by one or both parties, preferring instead that all issues be openly discussed. 117. See Charlton and Dewdney, (n 65) 91–106. See also Sian Green, ‘Effectively Managing the Impact of Family Violence on Mediation in the Family Law Context’ (2017) 28(3) Australasian Dispute Resolution Journal 155. 118. See Boulle, (n 3) 260–2; Charlton and Dewdney, (n 65) ch 12; Anne Prior and Rosemary ompson, ‘Is To and Fro the Way to Go? A Discussion of the Practice and Effectiveness of Shuttle Mediation’ (2001) 12(3) Australasian Dispute Resolution Journal 160. 119. NADRAC, Dispute Resolution Terms: e Use of Terms in (Alternative) Dispute

Resolution (Commonwealth Government, 2003) 10. 120. Linda Kochanski, ‘All Aboard the Shuttle? Pros and Cons of the Shuttle Approach to Family Mediation’ (2015) (Nov) Proctor 40. See also Mieke Brandon, ‘Use and Abuse of Private Session and Shuttle in Mediation and Conciliation’ (2005) 8(3) ADR Bulletin Article 1; Donna Guion, ‘Domestic Violence and Mediation’ (2009) 25(3) Texas Wesleyan Law Review 545; Desmond Ellis, ‘e Family Court–Based Stepping Stones Model of Triage: Some Concerns About Safety, Process, and Objectives’ (2015) 53(4) Family Court Review 650. 121. Kyle Beardsley and Nathan Danneman, ‘Mediation in International Con icts’ in Robert Scott and Stephen Kosslyn (eds), Emerging Trends in the Behavioral and Social Sciences (Wiley, 2015). 122. See the discussion in McHugh, (n 64). 123. See Rundle, (n 38). 124. See the recommendations in the UK Civil Justice Council’s Advisory Group on ODR, Online Dispute Resolution for Low Value Civil Claims (CJC, 2015) . See also the CJC ODR Advisory Group’s response to Lord Justice Briggs Report and the Civil Courts Structure Review (December 2015). e Advisory Group’s observations focus mainly on Chapter 6 of the report: ‘e Online Court’, . See further Scott Shackelford and Anjanette Raymond, ‘Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR’ (2014) Wisconsin Law Review 615; Samantha Hardy, ‘Online Mediation: Internet Dispute Resolution’ (1998) 9(4) Australian Dispute Resolution Journal 216; Siew Fang Law and David Peter Leonard, ‘Culture Clash — Can Online Dispute Resolution be the Way Forward?’ (2008) 19(1) Australasian Dispute Resolution Journal 55; Soo Hye Cho, International Commercial Online Dispute Resolution: Just Procedure rough the Internet (ProQuest, 2009); John Zeleznikow, ‘Methods for Incorporating Fairness into the Development of an Online Family Dispute Resolution Environment’ (2011) 22(1) Australasian Dispute Resolution Journal 16; Davide Carneiro et al, ‘Online Dispute Resolution: An Arti cial Intelligence Perspective’ (2014) 41(2) Arti cial Intelligence Review 211; Pablo Cortes and Arno R Lodder, ‘Consumer Dispute Resolution Goes Online: Re ections on the Evolution of European Law for Out-Of-Court Redress’ (2014) Maastricht Journal of European and Comparative Law 1; Helen Shurven and Archie Zariski, ‘e Pros, Cons and Maybes of Telephone Mediation: A Conversation About the “Fourth” Party’ (2015) 25(3) Australasian Dispute Resolution Journal 146; Robert R Marquardt, Settling Disputes Online: Just Another Tool, or are Negotiators, Mediators and Arbitrators Approaching Extinction?, ADR Resources (online) ; Ayelet Sela, ‘e Effect of Online Technologies on

Dispute Resolution System Design: Antecedents, Current Trends, and Future Directions’ (2017) 21(3) Lewis & Clark Law Review 635. 125. Bruce L Beal, ‘Online Mediation: Has Its Time Come’ (2000) 15(3) Ohio State Journal on Dispute Resolution 735; Andrea Braeutigam, ‘Fusses at Fit Online: Online Mediation in Non-Commercial Contexts’ (2006) 5(2) Appalachian Journal of Law 275; Sarah R Cole and Kristen M Blankley, ‘Online Mediation: Where We Have Been, Where We Are Now, and Where We Should Be’ (2006) 38(1) University of Toledo Law Review 193; Martin Gramatikov and Laura Klaming, ‘Getting Divorced Online: Procedural and Outcome Justice in Online Divorce Mediation’ (2012) 14(1) Journal of Law and Family Studies 97; Julio César Betancourt and Elina Zlatanska, ‘Online Dispute Resolution (ODR): What is it, and is it the Way Forward?’ (2013) 79(3) International Journal of Arbitration, Mediation and Dispute Management 256; Maurizio Gotti and Larissa D’Angelo, ‘Mediating Disputes with Digital Media’ (2014) Law, Culture and Visual Studies 631; Anthony Fernandez and Marie Masson, ‘Online Mediations: Advantages and Pitfalls of New and Evolving Technologies and Why We Should Embrace em’ (2014) 81(4) Defense Counsel Journal 395. 126. For example, where there are legal orders in place preventing at least one party from being in the presence of the other. 127. In the latter category, see e Mediation Room at . See also generally Ethan Katish and Janet Riin, Online Dispute Resolution: Resolving Con icts in Cyberspace (Jossey-Bass, 2001). 128. Janet Riin, ‘Online Dispute Resolution: eory and Practice of the Fourth Party’ (2001) 19(1) Con ict Resolution Quarterly 117; Susan S Rainer, ‘Mediating in Your Pajamas: e Bene ts and Challenges for ODR Landscapes: Forging New ODR Systems with a Human Face’ (2006) 23(3) Con ict Resolution Quarterly 359. 129. Sami Kallel, ‘Online Arbitration’ (2008) 25(3) Journal of International Arbitration 345. 130. See, eg, Trish O’Sullivan, ‘Developing an Online Dispute Resolution Scheme for New Zealand Consumers Who Shop Online — Are Automated Negotiation Tools the Key to Improving Access to Justice?’ (2015) 24(1) International Journal of Law and Information Technology (online). See also MHM Schellekens, ‘Online Arbitration and E-Commerce’ (2002) 9(2) Electronic Communication Law Review 113. 131. Fernandez and Masson, (n 125). 132. Ibid. 133. Noam Ebner and John Zeleznikow, ‘Fairness, Trust, and Security in Online Dispute Resolution’ (2015) 36(2) Hamline Journal of Public Law and Policy 143. 134. See Law and Leonard, (n 124); Sharanya Rao, e Cultural Vacuum in Online Dispute Resolution (UniSA, 2003). 135. See, eg, Kananke Liyanage, ‘e Regulation of Online Dispute Resolution:

Effectiveness of Online Consumer Protection Guidelines’ (2012) 17(2) Deakin Law Review 251. 136. As illustrated in Franco Librizzi v Western Power Corporation (Unreported, Magistrates Court (WA), Commissioner Nisbett, 4 May 2006). 137. See Shurven and Zariski, (n 124); Charlton and Dewdney, (n 65) 145–6; Mark omson, ‘Alternative Modes of Delivery for Family Dispute Resolution: e Telephone Dispute Resolution Service and Online FDR’ (2011) 17(3) Journal of Family Studies 253. 138. Olivia Rundle, ‘A Critique of Facebook’s Dispute Systems Design: Procedural Fairness and the Problem of Power’ on ADR Research Network Blog (20 May 2016) . 139. e European Union has an initiative which attempts to develop uniform international ODR standards and which allow interoperability among ODR platforms. 140. In 2007 the Law Council of Australia provided a free trial for its members to promote the use of ODR among lawyer mediators — use was made of the Claim Room system, one of the largest online mediation sites at that time. 141. Relationships Australia has a telephone dispute resolution service for family disputes, which in practice involves mediation — . 142. For example, the Fair Work Commission generally conducts DR processes by telephone, but in complex multi-party disputes they might be conducted on a face-toface basis on Fair Work premises — see . 143. e NMAS, (n 4) s 4.2: A mediator may adjourn the meeting and conduct the mediation over multiple meetings and in different locations. 144. Some native title mediations extend over more than ve years in total. 145. e NMAS Practice Standards treat the terms suspension and termination interchangeably (s 5.1). See NMAS, (n 4) 10. 146. e Practice Standards provide that mediators should, where possible, advise of their intention to suspend a mediation: NMAS, (n 4) ss 5.2, 11. 147. In Cook v Taing [2014] VSC 428, questions arose over whether post-mediation negotiations were subject to Agreement to Mediate conditions. It was held from the mediator’s communication to court that he intended no further part in the parties’ negotiations, or from the parties’ abandonment of mediation, that the mediation had terminated. ere were therefore important differences in the nature of subsequent negotiations to those that occurred under mediation conditions and the latter could not be imposed on the negotiations. 148. See NMAS, (n 4) ss 5.3, 11. 149. See generally Boulle, (n 3) ch 8; Moore, (n 3). 150. Susan S Silbey and Sally E Merry, ‘Mediator Settlement Strategies’ (1986) 8(1) Law &

Policy 7; Bernard Mayer, ‘e Dynamics of Power in Mediation and Negotiation’ (1987) 16 Mediation Quarterly 75; Nigel Polak, ‘No Longer Neutral: Practitioner Power in Compulsory (Family) Dispute Resolution’ (2009) 20(2) Australasian Dispute Resolution Journal 88. See also Astor, (n 70). 151. NMAS, (n 4) ss 2.2, 9. 152. Ibid. An exception is made in respect of ‘blended processes’ discussed further in Chapter 10. See also, eg, Weixia Gu, ‘Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med (-Arb) and Its Global Implications’ (2019) 29(1) Washington International Law Journal 117. 153. Mayer, (n 150) 78. 154. Ibid. 155. See John Wade, ‘Forms of Power in Family Mediation and Negotiation’ (1994) 8(1) Australian Journal of Family Law 40. 156. See further discussion of ethics in Chapter 13. See also Jonathon Friedrich, ‘Philosophical Answers to Ethical Questions: Power Imbalance and the Provision of Advice in Mediation Standards’ (2009) 20(3) Australasian Dispute Resolution Journal 179. 157. See further Brandon, ‘Self-Determination in Australian Facilitative Mediation: How to Avoid Complaints’, (n 20). 158. See, eg, Boulle, (n 3) 349–44; Sourdin, (n 3). For the expanding diversity of potential applications, see also, eg, Kathy Douglas, Rebecca Leshinsky and Peter Condliffe, ‘Con ict in Strata Title Developments: e Need for Differentiated Dispute Resolution Rules’ (2016) 37(1) Adelaide Law Review 163; Wulf A Kaal and Craig Calcaterra, ‘Crypto Transaction Dispute Resolution’ (2017) 73(1) e Business Lawyer 109; Samantha Hardy, Olivia Rundle and Damien Riggs, ‘Working with Trans or Gender Diverse, Intersex and/or Non-Heterosexual Clients: Advice for Mediators’ (2017) 28(1) Australasian Dispute Resolution Journal 35; André Retrot, ‘Costs, Claims and Counter-claims or Victims, Vindication and Victory: e Real Issue and the Case for Mediation in Von Marburg v Aldred (No 3)’ (2018) 29(1) Australasian Dispute Resolution Journal 52; Mary Riley and Susan Douglas, ‘Is ere a Place for Restorative Justice in Civil Mediation?’ (2019) 30(1) Australasian Dispute Resolution Journal 14; Sinta Dewi et al, ‘e Role of International Mediation in Data Protection and Privacy Law — Can It Be Effective?’ (2019) 30(1) Australasian Dispute Resolution Journal 61; Ryan Murphy and Tania Sourdin, ‘Skilled Mediators and Workplace Bullying’ (2019) 29(3) Australasian Dispute Resolution Journal 146; Doris Bozin, Allison Ballard and Patricia Easteal, ‘ADR: Championing the (Unjust) Resolution of Bullying Disputes?’ (2019) 29(3) Australasian Dispute Resolution Journal 162; Louise Marie McDonald and Patrick O’Leary, ‘Issues of Justice in Mediated Outcomes for Survivors of Sexual Abuse in State Care?’ (2020) 30(2) Australasian Dispute Resolution Journal 105; Kathy Douglas, Christina Platz and Robin Goodman, ‘Co-Housing Disputes: Strategies for Harmonious Con ict Resolution?’ (2021) 31(1) Australasian Dispute Resolution

Journal 37; Mieke Brandon, ‘Introducing Relationship Mediation for FDR Practitioners and Other Experienced Mediators in 2021’ (2021) 31(1) Australasian Dispute Resolution Journal 63. 159. See, eg, Sandy Caspi Sable, ‘Changing Assumptions about Mediation in Commercial Matters: Resolving Disputes and (Re)Building Relationships’ (2001) 12(4) Australasian Dispute Resolution Journal 275; Michael Legg, ‘Mediation of Complex Commercial Disputes Prior to Litigation: e Delaware Court of Chancery Approach’ (2010) 21(1) Australasian Dispute Resolution Journal 44; Ann E Woodley, ‘Resolving the World’s Commercial Disputes: An Integrated Model for E-Learning and ODR’ (2012) 1(2) International Journal of Technology Policy and Law 217; Troy Peisley, ‘Blended Mediation: Using Facilitative and Evaluative Approaches to Commercial Disputes’ (2012) 23(1) Australasian Dispute Resolution Journal 26; Sophie Pouget, ‘Arbitrating and Mediating Disputes: Benchmarking Arbitration and Mediation Regimes for Commercial Disputes Related to Foreign Direct Investment’ (2013) World Bank Policy Research Working Paper 6632; Stacie I Strong, ‘Beyond International Commercial Arbitration: e Promise of International Commercial Mediation’ (2014) 45 Washington University Journal of Law and Policy 10; omas J Stipanowich and Véronique Fraser, ‘e International Task Force on Mixed Mode Dispute Resolution: Exploring the Interplay between Mediation, Evaluation and Arbitration in Commercial Cases’ (2016) 40(3) Fordham International Law Journal 839. See also Stacie I Strong, Legal Reasoning Across Commercial Disputes: Comparing Judicial and Arbitral Analyses (Oxford University Press, 2020). 160. See Cro J in Subway Systems Australia v Ireland (No 2) [2013] VSC 693 (13 December 2013). Conversely, a court could restrict the matters parties can consider in a referred mediation — see Jeray v Blue Mountains City Council [2013] FCA 545. 161. See, eg, George Golvan, ‘e Use of Mediation in Commercial and Construction Disputes’ (1996) 7(3) Australian Dispute Resolution Journal 188; Kenneth Yiu and Sai On Cheung, ‘A Review of Tactics Used in Construction Mediation’ (2004) 15(2) Australasian Dispute Resolution Journal 128; Tak Wing Yiu, ‘Forces to Foster CoOperative Contracting in Construction Projects’ (2007) 18(2) Australasian Dispute Resolution Journal 113; Paula Gerber and Brennan Ong, Best Practice in Construction Disputes: Avoidance, Management and Resolution (LexisNexis Butterworths, 2013). 162. See also discussion in Chapter 4. 163. Community Justice Centres Act 1983 (NSW). 164. For example, the collaboration in Queensland between QCAT and the Dispute Resolution Branch of the Department of Justice and Attorney-General. 165. See John Haynes and Stephanie Charlesworth, e Fundamentals of Family Mediation (Federation Press, 1996); Linda Fisher and Mieke Brandon, Mediating with Families (LawBook, 4th ed, 2018). See also, eg, Rebecca Burnett-Smith, ‘Intimate Partner Violence and Family Dispute Resolution: Some Re ections from Practice’ (2012) 23(1) Australasian Dispute Resolution Journal 36; Oyiela Litaba, ‘Developing Ethical Practice

as a Family Dispute Resolution Practitioner’ (2013) 24(1) Australasian Dispute Resolution Journal 36; Mieke Brandon, ‘Loss and Hope in Family Dispute Resolution’ (2014) 25(3) Australasian Dispute Resolution Journal 172; Marilyn Scott, ‘Mediation of Property Division in Late Stage Family Law Matters: A Procedural Initiative’ (2015) 26(4) Australasian Dispute Resolution Journal 232; Joe Harman, ‘Should Mediation Be the First Step in all Family Law Act Proceedings?’ (2016) 27(1) Australasian Dispute Resolution Journal 17. For a United Kingdom perspective, see, eg, Anne Barlow et al, ‘Mapping Paths to Family Justice — A National Picture of Findings on Out-of-Court Family Dispute Resolution’ (2013) 43(3) Family Law 306; Lisa Parkinson, ‘e Place of Mediation in the Family Justice System’ (2013) 25(2) Child and Family Law Quarterly 200; Anne Barlow, ‘Out-of-Court Family Dispute Resolution: e Lessons of Experience’ (2014) 44(5) Family Law 620; Janet Smithson et al, ‘e Moral Order in Family Mediation: Negotiating Competing Values’ (2017) 35(2) Con ict Resolution Quarterly 173; Anne Barlow, ‘Rising to the Post-LASPO Challenge: How Should Mediation Respond?’ (2017) 39(2) Journal of Social Welfare and Family Law 203; Anne Barlow et al, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Springer, 2017); Rosemary Hunter and Anne Barlow, ‘Reconstruction of Family Mediation in a Post-Justice World’ in Marian Roberts and Maria Moscati (eds), Family Mediation: Contemporary Issues (Bloomsbury Professional, 2020) 11–32; Anne Barlow and Jan Ewing, An Evaluation of ‘Mediation in Mind’ — Final Report (University of Exeter, 2020). For a Canadian perspective, see Law Commission of Ontario, Increasing Access to Family Justice through Comprehensive Entry Points and Inclusivity (Toronto, 2013). For an Irish perspective, see Sinéad Conneely, Family Mediation in Ireland (Routledge, 2017). More recently in Australia, see Fredrike P Bannink, ‘Solution-Focused Family Dispute Resolution’ (2017) 28(1) Australasian Dispute Resolution Journal 4; Andi Doerr, ‘Beyond Resolution — Conceptualising the Shi from Resolution to Defusion in FDR’ (2017) 28(1) Australasian Dispute Resolution Journal 27; Hadeel Al-Alosi, ‘Will Somebody Please ink of the Children?! Child-Focused and Child-Inclusive Models in Family Dispute Resolution’ (2018) 29(1) Australasian Dispute Resolution Journal 8; Joe Harman, ‘e Field of Dreams’ (2018) 29(1) Australasian Dispute Resolution Journal 33; Danielle JakuGreen eld, Miriam Ziegler and Nicole Ash, ‘Advanced Practice Issues for Family Dispute Resolution Practitioners: Amending Section 60I Certi cates’ (2019) 30(1) Australasian Dispute Resolution Journal 74; Donna Cooper, ‘Bringing Children Metaphorically into the Room: Strategies FDRPs can Use to Focus Parents on their Children’s Best Interests’ (2020) 30(2) Australasian Dispute Resolution Journal 126; Mieke Brandon and Linda Kochanski, ‘Client Case Management: Does It Compromise the FDR Practitioner?’ (2020) 30(2) Australasian Dispute Resolution Journal 133; Tania Sourdin et al, ‘COVID-19, Technology and Family Dispute Resolution’ (2020) 30(4) Australasian Dispute Resolution Journal 270; Joshua Taylor, ‘A Call for a MultiFramework Approach to Family Dispute Resolution’ (2020) 30(4) Australasian Dispute Resolution Journal 284; Bethaina Dababneh and Mieke Brandon, ‘Post Separation: How Can FDR Positively In uence the Impact of Culture on the Lives of Children?’

(2021) 31(1) Australasian Dispute Resolution Journal 52; Genevieve Heard, Andrew Bickerdike and Jamie Lee, ‘Family Dispute Resolution for Property Matters: e Case for Making Space’ (2021) 31(2) Australasian Dispute Resolution Journal 158. 166. For information about the combined courts, see . 167. Patrick Parkinson, ‘e Idea of Family Relationship Centres in Australia’ (2013) 51(2) Family Court Review 195. 168. ese are known as section 60I certi cates — see Family Law Act 1975 (Cth) s 60I. 169. See also, eg, Joshua Taylor, ‘A Critical Analysis of Practitioners Issuing “Not Appropriate for Family Dispute Resolution” Certi cates under the Family Law Act 1975 (Cth)’ (2020) 41(1) Adelaide Law Review 149. 170. See Family Law (Family Dispute Resolution Practitioners Regulations) 2008 (Cth) Pt 2. See also, eg, the federal government’s information on becoming a FDRP . 171. See Family Law (Family Dispute Resolution Practitioners Regulations) 2008 (Cth) Pt 3. 172. is is sometimes done through provision of a separate legal representative for the children. See Mieke Brandon and Linda Kochanski, ‘e Child’s Voice in FDR: Mediation and Child-Informed Practice’ (2015) 26(2) Australasian Dispute Resolution Journal 120. 173. See, eg, Bernadine Van Gramberg, ‘ADR and Workplace Justice: Just Settlement?’ (2003) 14(4) Australasian Dispute Resolution Journal 233; Joellen Riley, ‘Workplace Dispute Resolution under the Fair Work Act: Is there a Role for Private Alternative Dispute Resolution Providers?’ (2009) 20(4) Australasian Dispute Resolution Journal 236; Anthony Forsyth, ‘Workplace Con ict Resolution in Australia: e Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR’ (2012) 23(3) e International Journal of Human Resource Management 476; Judith Herrmann, ‘A Comparison of Con ict Coaching and Mediation as Con ict Resolution Processes in the Workplace’ (2012) 23(1) Australasian Dispute Resolution Journal 43; erese MacDermott and Joellen Riley, ‘ADR and Industrial Tribunals: Innovations and Challenges in Resolving Individual Workplace Grievances’ (2012) 38(2) Monash University Law Review 82; William K Roche, Paul Teague and Alexander JS Colvin, e Oxford Handbook of Con ict Management in Organizations (Oxford University Press, 2014); Donna M McKenzie, ‘e Role of Mediation in Resolving Workplace Relationship Con ict’ (2015) 39(1) International Journal of Law and Psychiatry 52; Emily Schindeler, ‘Mediating Workplace Con ict — Reviewing the Evidence’ (2021) 31(1) Australasian Dispute Resolution Journal 75; Elizabeth Spencer, ‘Mediating Workplace Bullying: A Re ective Case Study’ (2021) 31(2) Australasian Dispute Resolution Journal 114. 174. See generally Mieke Brandon and Leigh Robertson, Con ict and Dispute Resolution (Oxford University Press, 2007).

175. See generally . 176. On transformative mediation in the workplace, see Mark Dickinson, ‘e Importance of Transformative Mediation to the Internal Workplace Mediation Program’ (2011) 22(2) Australasian Dispute Resolution Journal 95. 177. See, eg, Robert S French, ‘e National Native Title Tribunal — Early Directions’ (1994) 5(3) Australian Dispute Resolution Journal 164; Ian Wilson, ‘Beyond Waitangi: Comparative Issues in Native Title Dispute Resolution’ (1996) 7(4) Australian Dispute Resolution Journal 271; Craig Jones, Aboriginal Boundaries: e Mediation and Settlement of Aboriginal Boundary Disputes in a Native Title Context, National Native Title Tribunal Occasional Papers Series 2 (NNTT, 2002); Case Notes, ‘e Role of the National Native Title Tribunal in Mediation’ (2004) 15(1) Australasian Dispute Resolution Journal 5; Graeme Neate, ‘Negotiating Comprehensive Settlements of Native Title Claims’ (Paper presented to the LexisNexis Native Title Law Summit, Brisbane, 15 July 2009); Susan Phillips, ‘rough the Looking Glass: e Federal Court’s Acquisition of Responsibility for Mediating Native Title Proceedings’ (2012) 3 (August) Native Title Newsletter 8; Case Notes, ‘Negotiating in Good Faith in e National Native Title Tribunal’ (2013) 24(1) Australasian Dispute Resolution Journal 3; Bryan Keon-Cohen, ‘Gongs, Gremlins and Glitches: Native Title 20 Years on, at Risk of Losing its Way’ (2013) 38(1) Alternative Law Journal 38; Toni Bauman et al, ‘Traditional Owner Agreement-Making in Victoria: e Right People for Country Program’ (2014) 18(1) Australian Indigenous Law Review 78. 178. See generally . 179. e Tribunal was established by the National Native Title Act 1993 (Cth). 180. See Farm Debt Mediation Act 1994 (NSW). 181. For example, by the High Court in Waller v Hargraves Secured Investments Ltd (2012) 245 CLR 311, over how the key term ‘farm debt’ should be construed. 182. See Geoff Charlton, ‘Farm Debt Mediation 18 Years On’ (2013) 24(2) Australasian Dispute Resolution Journal 77. 183. Australia is a signatory to the New York Convention and has adopted the UNCITRAL Model Law on Commercial Arbitration. 184. For example, through the uniform Commercial Arbitration Acts in the various states and territories — on which, see further discussion in Chapter 10. 185. For pioneering work in this area, see Bobette Wolski, ‘Recent Developments in International Commercial Dispute Resolution: Expanding the Options’ (2001) 13(2) Bond Law Review 1. Further, the Bond University Dispute Resolution Centre convened a seminar on the topic: Winnie Jo-Mei Ma et al, ‘Enforcing Cross-Border Mediated Settlement Agreements: Colloquium Held at Bond University Faculty of Law on 4 November 2013’ (2014) 7(1) Contemporary Asia Arbitration Journal 3. See also Sala Sihombing, ‘UNCITRAL Convention — Mediation’s Big Bang: Can

Mediation Challenge Arbitration’s Dominance?’ (2019) 30(1) Australasian Dispute Resolution Journal 51. 186. See . 187. See Brett Williams, ‘Appropriate Treaty-based Dispute Resolution for Asia-Paci c Commerce in the 21st Century’ (2012) 35(3) University of New South Wales Law Journal 1013. 188. On the United Nations, see Christopher Halburd, ‘Protect, Respect and Remedy: e Multiple Roles for Mediators in the United Nations Business and Human Rights Framework’ (2013) 24(2) Australasian Dispute Resolution Journal 112. See also, eg, Catherine Turner, ‘Absent or Invisible? Women Mediators and the United Nations’ (2018) 9(2) Global Policy 244. 189. See the Australian Solicitors’ Conduct Rules 2015 r 7.2. 190. See generally Bobette Wolski, ‘Voluntariness and Consensuality: De ning Characteristics of Mediation?’ (1997) 15(3) Australian Bar Review 213. 191. See Hilary Astor, ‘Making a Genuine Effort in Family Dispute Resolution: What Does it Mean?’ (2008) 22(2) Australian Journal of Family Law 102; Harry O Hobbs, ‘e Dispute Resolution Act 2011 (Cth) and the Meaning of “Genuine Steps”: Formalising the Common Law Requirement of “Good Faith”’ (2012) 23(4) Australasian Dispute Resolution Journal 249; Tania Sourdin, ‘Good Faith, Bad Faith: Making an Effort in Dispute Resolution’ (2012) 2 DICTUM — Victoria Law School Journal 19; Joshua Taylor, ‘It’s Time to Abolish the Genuine Effort and Non-Genuine Effort Certi cates in Family Dispute Resolution’ (2019) 33(1) Australian Journal of Family Law 29. 192. e con dentiality protection does not preclude parties from drawing on information revealed in mediation to plan their further litigation strategy — see AWA v Daniels (1992) 7 ACSR 759. Courts have also held that in construing challenges to con dentiality, priority will be given to provisions in legislation such as the Civil Procedure Act 2005 (NSW) s 30(4) over the more general provisions in the Evidence Act 1995 (NSW) s 131(2). 193. See, eg, Vanden Driesen v Edith Cowan University (No 2) [2012] FMCA 1169; Noun v Pavey [2014] NSWSC 429. For commentary on this controversial policy, see David Spencer, ‘Whether a Court Should Wait for Discovery to be Concluded Before Ordering Mediation’ (2014) 25(2) Australasian Dispute Resolution Journal 131, 132. ere is also scope for the use of mediation in relation to disputed interlocutory issues — see Adele Carr, ‘Broadening the Traditional Use of Mediation to Resolve Interlocutory Issues Arising in Matters Before the Courts’ (2016) 27(1) Australasian Dispute Resolution Journal 10. For judicial consideration of mediation being conducted too early, see Re Sonray Capital Markets Pty Ltd (in liq) [2010] FCA 1371. 194. Bobette Wolski has eloquently noted ‘the extent to which all mediators in uence the course and outcome of mediations’: Bobette Wolski, ‘Mediator Settlement Strategies: Winning Friends and In uencing People’ (2001) 12(4) Australasian Dispute Resolution

Journal 248, 249. See also, eg, David Greatbatch and Robert Dingwall, ‘Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators’ (1989) 23(4) Law and Society Review 613. 195. e literature on neutrality in mediation is extensive and much of it is cited in Field and Crowe, (n 16). See recently Bornali Borah, ‘Being the Ladle in the Soup Pot: Working with the Dichotomy of Neutrality and Empowerment in Mediation Practice’ (2017) 28(2) Australasian Dispute Resolution Journal 98; Mohamed Sweify, ‘Mediator’s Proposal and Mediator’s Neutrality: Finessing the Tension’ (2017) 28(2) Australasian Dispute Resolution Journal 129. 196. NMAS, (n 4). See also the discussion above. 197. See the relevant discussion in Chapters 2 and 13. See also Benjamin Allen and Tania Sourdin, ‘e Mediating Brain’ (2018) 29(1) Australasian Dispute Resolution Journal 58. 198. See Sara Cobb and Janet Riin, ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry 35, 43. 199. See, eg, Hardy and Rundle, (n 38); Jean Sternlight, ‘Lawyers’ Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting’ (1999) 14(2) Ohio State Journal on Dispute Resolution 269; Micheline Dewdney, ‘Party, Mediator and Lawyer-Driven Problems and Ways of Avoiding em’ (2006) 17(4) Australasian Dispute Resolution Journal 200. For a critical perspective, see Mark C Suchman and Mia L Cahill, ‘e Hired Gun as Facilitator: Lawyers and the Suppression of Business Disputes in Silicon Valley’ (1996) 21(3) Law & Social Inquiry 679. 200. See Stillman v Rushbourne [2014] NSWSC 730. 201. In Obyle v Ishan Ozden (1986) EOC 92-165, a teenager complainant in a sexual harassment case was extensively cross-examined by her employer’s lawyer.

[page 287]

Chapter 9 Conciliation Chapter contents Introduction Understanding conciliation Conciliation procedures Applications of conciliation Critical issues in conciliation practice Lawyers and conciliation Conclusion

9.1 9.4 9.18 9.26 9.40 9.51 9.54

Introduction 9.1 Conciliation was rst introduced in Chapter 3 as an important procedural option on the DR matrix. Conciliation is advisory in nature, with facilitative and evaluative components.1 In conciliation, the conciliator uses their knowledge, expertise [page 288] and experience in a non-partisan way to assist and guide the parties to make their own decisions. As an advisory and evaluative process, conciliation builds on the value propositions of justice, party autonomy and community that are associated with facilitative processes such as mediation, but it also meets more fully some of the process goals associated with those values including substantive justice and, perhaps unexpectedly, the goal of selfdetermination.2 erefore, advisory and evaluative systems offer informal, exible and relational processes that are also supported and guided DR opportunities — able to address the parties’ positions, legal rights and

entitlements, as well as retaining a focus on their interests, needs and priorities as signi cant and relevant factors in the system. 9.2 Importantly, conciliators do not have any authority or capacity to make binding determinations or to impose outcomes on the parties.3 eir interventions and advice may strongly inform and in uence the parties’ own negotiations and deliberations, but the nal decision remains one for the parties to make. erefore, the role of the conciliator is to provide advice to the parties on the merits of the dispute situation, the substantive content of the dispute, possible realistic and appropriate options, and solutions and procedures that will best promote an outcome that has legal efficacy while still being something that the parties each can live with. It therefore has explicit predictive dimensions, as opposed to the process-focused dimensions in systems such as mediation. is inevitably leads to a greater focus on the parties’ positions along with factual and legal issues, and less emphasis on relational or emotional factors, and interests. Similar to many other DR systems, negotiation is the predominant method utilised in conciliation for arriving at outcomes; but it is employed in a way that could be said to be more fully informed by ‘objective standards’ (such as the law) than is the case in facilitative processes.4 9.3 Conciliation has signi cant potential and is part of the trend identi ed in this book of a move away from purely facilitated processes towards facilitated and guided DR systems. is ‘facilitation-plus’ approach is increasingly employed in a range of DR contexts, but particularly in legal disputes where the shadow of the law provides useful normative criteria for creating and assessing appropriate outcomes. e similarity between conciliation and evaluative mediation is notable in this regard, with both approaches representing an extrapolation of the standard lawyer role of evaluating clients’ situations and advising them on appropriate or realistic outcomes.5 is chapter, along with the other chapters dedicated to speci c processes, explores the [page 289]

nature of conciliation as a process, the procedures that make up the system, applications of conciliation and the role of lawyers in the process.

Understanding conciliation 9.4 Conciliation was discussed in Chapter 4 as a process in which disputing parties are assisted by conciliators who help them, through a range of interventions, to make decisions that settle, and sometimes resolve (or help to manage), their disputes. Among the possible interventions from conciliators, the most signi cant contribution, when seen within the broader constellation of intervenor functions, is that they overtly contribute their substantive expertise on the subject matter of the dispute — for example, on the law of negligence or the way that marital property is distributed post-separation. Conciliators are therefore neither passive facilitators nor are they determinative decision-makers but they do evaluate, advise, express opinions and make recommendations.6 is signi cant contribution is not unique to conciliators, however, as intervenors in other advisory and evaluative processes also practise in this way, such as neutral evaluators and expert appraisers, as well as evaluative and advisory mediators operating in what the National Mediator Accreditation System (NMAS) refers to as ‘blended processes’.7

Distinguishing conciliation from mediation 9.5 Conciliation is perhaps one of the most problematic of the DR matrix processes to de ne because the term is used variably and sometimes indiscriminately in relation to a broad range of processes, and with application to diverse categories of disputes.8 For example, various NADRAC documents referred to the ‘wide variations in meanings for “conciliation”’,9 the similarities in conciliation and mediation, and the respective roles of mediators and conciliators.10 ere is therefore some inevitable, and confusing, [page 290]

overlap in the usage of the terms ‘mediation’ and ‘conciliation’, and care needs to be taken to be clear in communications when using these terms, especially when advising parties and clients. 9.6 Some of the differences and similarities between conciliation and mediation were examined in Chapters 3 and 4, and it was highlighted that, particularly when traversing legal jurisdictions, it is important to be aware that the meanings of the two terms can substitute for each other. In some contexts, conciliation can be sufficiently elastic a concept to embrace everything (including mediation) from informal negotiations to systems in which intervenors make authoritative decisions — in this book referred to as determinations. It is notable that in the domain of international systems the term conciliation is oen deployed where mediation might be used in Australia. For example, UNCITRAL oen uses the terms mediation and conciliation interchangeably in its DR model laws and convention.11 9.7 In Australian legislation and court rules, de nitional subtleties are not always apparent and the terms mediation and conciliation are sometimes used interchangeably.12 Even where differences are implied through the availability of both processes in the same institutional setting, such as in workplace grievance systems, they may not be clearly distinguished.13 In reality, there is a spectrum of processes practised under the mantel of conciliation, with strongly facilitative interventions at one end [page 291] and highly evaluative interventions at the other. Further, as discussed below, in some contexts, legislation empowers conciliators to change hats and make binding decisions. Nevertheless, this is beyond the normal spectrum of roles associated with the process. 9.8 Given the overlaps and ambiguities in terminology it is usually the context which determines whether mediation or conciliation is the intended process.14 In Australia, conciliation occurs predominantly in statutory contexts in areas such as workers’ compensation,15 residential tenancies,16 anti-discrimination17 and industrial relations disputes.18 Conciliator

interventions in these contexts usually include both foundational facilitative functions akin to mediation, along with advisory or evaluative interventions to support the disputants’ decision-making without being binding on them. e advisory component includes advice on the parties’ legal rights and obligations, and the evaluative component encompasses assessment of factual matters which go to the merits of disputes, and indications of prospective outcomes from relevant determinative processes. Conciliators recommend settlement terms and ‘encourage’ parties in relation to reaching settlements. In these respects, conciliators can, to a lesser or greater degree, support, contradict or supplant the advice-giving role of lawyers. 9.9 When contrasting mediation and conciliation, one clear contextual and structural difference is that many of those who conduct the process are not private practitioners but operate as extensions of courts or tribunals, such as the Human Rights and Fair Work Commissions,19 or in the capacity of a registrar or conciliation officer.20 In this ‘official’ capacity, conciliators might be required to supply the relevant court or tribunal with a report on conciliations they have conducted, which might include their comments and evaluations on the parties’ conduct.21 In this sense, the archetypal conciliation model is one that could involve system maintenance functions with less [page 292] scope for the potentially wide-ranging outcomes accommodated in mediation systems, and with conciliators being far more directive than evaluative mediators. 9.10 According to NADRAC, the de nitional line of distinction between mediation and conciliation should be drawn at the point of advice and evaluation.22 at is, ‘mediation’ as a facilitative process should not include elements of advice, whereas ‘conciliation’ includes both facilitation and advice.23 From this perspective, the distinctive feature of conciliation centres on the integral nature of evaluation and advice, not only from the parties’

own advisers, but also from the experience and expertise of the independent intervenor. 9.11 Nevertheless, de facto advisory and evaluative trends encountered in contemporary mediation continue to blur the lines between mediation and conciliation. ese trends point to what might be identi ed as a signi cant shortcoming in orthodox facilitated processes, namely, a lack of substantive support and guidance arising from the requirement that facilitative practitioners abstain from intervening in matters of content even where this is the exact nudge or assistance the parties might require.24 While conciliation, like mediation, cannot guarantee settlements or resolutions, its evaluative and advisory components provide a more explicit framework for assisting the parties with guidance, reality testing and reassurance that may get them closer to outcomes (and potentially better informed and more appropriate results). Some would argue that the term ‘private conciliation’25 is more appropriate than ‘evaluative mediation’ for the DR processes conducted by former judges who are inclined by training and experience to be advisory and directive in the course of conducting their mediations. However, mediation remains the preferred term in practice. e contemporary prevalence of conciliation in many DR contexts, together with the trend towards evaluative mediation,26 med-arb, med-arb-med and arb-med-arb, are [page 293] manifestations of the macro-directions towards processes including expert advice and evaluation that DR is taking.27

The values and goals of conciliation 9.12 Some of the aspirational values of the conciliation process — in terms of the justice, party autonomy and community values and goals framework discussed in Chapter 5 — overlap with those of mediation. For example, in terms of the value of justice, conciliation and mediation share the goals of procedural justice and non-partisanship on the part of the third-

party intervenor. In relation to the value of party autonomy, both conciliation and mediation encompass the goals of party self-determination and party participation. And both processes also seek to promote access to justice for parties in furtherance of the value of community. True to these values, conciliation (like mediation) prioritises party participation in negotiations and agreement-making over external intervention and the imposition of a decision by a third party. 9.13 Relative party autonomy is also a critical value of both mediation and conciliation. In mediation, as discussed in Chapter 8, party selfdetermination is supported through maximising party control over the content of the dispute.28 In conciliation, party self-determination is sustained in a different way, namely through the availability and contributions of independent and non-partisan experts who assist the informed choices of parties by providing them with the necessary knowledge, advice, and thus assurance, to exercise their autonomy through informed decision-making. is guidance and reassurance are particularly welcome (and needed) where the parties themselves have little expertise in the law or other substantive issues on which they are making decisions.29 In this way, the achievement of substantive justice could be considered a more salient feature of conciliation than it is in mediation, and conciliation arguably addresses the demands of informed consent more thoroughly. 9.14 In addition to the values and goals of conciliation, norms are usually imposed on the process and its outcomes by statute. For example, in conciliation theory and practice, [page 294] legislative values such as non-discrimination and equal opportunity become additional imperatives, sometimes expressed as legal rights and obligations.30 Conciliators are required to bring the statutory norms and rights to bear in the discussions and negotiations that occur in a conciliation, and they are also expected to discourage or disallow options and outcomes which do not conform to relevant legislative policies.

9.15 Normative aspirations in statutory conciliations do not necessarily negate the parties’ own interests and priorities, provided those interests and priorities are countenanced by the legislative regime. Ultimately, conciliating parties remain in control of outcomes, as long as they are consistent with the principles and policies embodied in the respective statutory frameworks. Parties are also at liberty to disregard conciliators’ proposals or settlement recommendations — in this respect, the principle of self-determination remains an ultimate value of conciliation processes. However, parties are only usually at liberty to choose this course of action if they have the resources to pursue the resolution of the dispute further in a more formal process, such as a court or tribunal. A combination of education, recommendation and persuasion from a conciliator, and the strong shadow of statutory law, can assist parties with informed decisions about mutually acceptable options for agreement. However, these things can also potentially undermine the self-determination principle in practice, forcing parties to levels of agreed compromise that are driven more by the normative environment of the conciliation than by truly meeting their relational needs and interests in an informed way. is is particularly the case where parties cannot realistically afford to continue to a more formal process and have no real alternative option other than settling their dispute through conciliation. 9.16 Aligned to the normative standards operating within particular conciliation systems is the value proposition that disputants stand to bene t from expert opinions, legal advice and substantive recommendations in their DR endeavours, provided those opinions, advice and recommendations are informed and objective. is value assumption in conciliation is stronger and more explicit than the de facto advisory tendencies evidenced in evaluative mediation.31 Conciliation entertains the external provision of guiding, and sometimes commanding, expertise by lawyers, engineers, medical specialists and other experts. Similar assumptions are found at the international level — as with the DR documents associated with UNCITRAL.32 Another way of depicting this factor is that conciliators are ‘mediators’ in relation to facilitating agreements on parties’ differences and ‘advocates’ in respect of the context’s prevailing normative values, such as anti-discrimination or equal opportunity.33

[page 295] 9.17 Importantly, conciliation can be said to respond to the human need for security in relation to the standard pressures and intra-psychic dilemmas involved in human decision-making associated with the resolution of legal disputes.34 It achieves this by relieving parties of some of the weight of responsibility for decisions and sharing that responsibility with independent experts.

Conciliation procedures 9.18 Given the diversity of the practice of mediation, and the absence of national standards for conciliators, there is no xed procedure for the conduct of conciliations, nor are there standardised conciliator interventions.35 Statutes and other regulatory arrangements tend to provide limited information or guidance on how conciliations should operate. e most relevant legislation provides little de nition of the process and therefore it leaves the procedure largely unregulated. In order to grasp what structures and procedures are contemplated in speci c circumstances, it helps to examine what is depicted to potential users of conciliation, which oen occurs through tribunal websites.36 e challenge is compounded where an agency provides conciliation, mediation, conferencing and adjudication without comprehensively delineating the differences between them. 9.19 Conciliations generally commence with a claim, application or complaint brought by a party — perhaps an employee, tenant, consumer or trade union, as the case may be — and there is a system of intake and screening before a conciliation meeting takes place. During the preconciliation phase, conciliators, or staff attached to the respective body or institution, inform the parties about conciliation law and practice, refer them to sources of support and advice, and attempt to ensure they understand their own interests and priorities. Many conciliation systems provide extensive website information, both substantive and procedural, about their operations. Such preparation processes are important for the parties — most of whom are experiencing conciliation for the rst time —

for many reasons, including that they serve to manage any unrealistic expectations the parties may have about their legal rights or the jurisdiction of the relevant court or tribunal.37 Conciliators themselves should also be clear with disputants about the objective statutory requirements with which they have to comply and their own interpretation of particular provisions. is may [page 296] require difficult judgments about the appropriate and ethical exercise of their powers. Attendance at conciliation conferences is sometimes a compulsory requirement.38 9.20 Aer nalisation of the necessary preliminaries, conciliators commence the conciliation conference by setting the scene, explaining procedures, facilitating communications and assisting parties to negotiate towards settlement.39 In these respects, the procedure is not dissimilar to many of the key elements of the ‘orthodox’ mediation process, and many of the same skills are employed to assist the parties to negotiate in the conciliation context as are used in the mediation environment.40 As noted above, however, there can be a higher degree of structure in conciliation proceedings, with legislation in uencing and constraining outcomes. Conciliators are relatively ‘activist’ in their interventions as advisers and evaluators, and in the enforcement of the relevant applicable norms. In conciliation proceedings there is almost always a strong shadow of the law.41 A dichotomous and contradictory result of this is that party control and selfdetermination could be potentially enhanced, or possibly restricted. 9.21 Conciliation could also be a private system outside the ambit of a statute or tribunal and some service providers have DR clauses and rules appropriate for its practice.42 In reality, however, there is little known conciliation in the private sphere, and it is restricted mainly to the statutory domain.43 Evaluative mediation, by contrast, is highly prevalent in legal circles and can be seen as a form of ‘private conciliation’.44

[page 297] 9.22 In terms of the investigative, mediatory, advisory and evaluative aspects of conciliation, a minimal requirement is that each of these procedural elements is managed so as to comply with principles of procedural fairness. Conciliators are required to be non-partisan intervenors and to treat each of the parties fairly and even-handedly. Even though conciliators have responsibilities to respective legislative policies, and are part of administrative branches of government in relation to policy implementation, they must remain open to versions of events given by all the parties. In discrimination cases, by way of example, conciliation allows both parties to narrate their stories, to explain how events have impacted on them, to discuss the alleged discriminating behaviour and to listen to the other party’s version of events. Both parties are supported by the conciliator in this process, with the legislation providing the normative framework for the negotiations and their outcomes. 9.23 Every variation in communication styles and practice is found in conciliation environments, including emails, written correspondence, telephone contacts, online and face-to-face meetings. In the Fair Work Commission,45 for example, conciliators do much of their work through telephone or online contact and shuttle negotiations, with face-to-face meetings convened only for reasons of factual and legal complexity, a multiplicity of parties or if problems arise with the telephone or online conferencing options. Joint and separate meetings are held at the discretion of a conciliator. 9.24 Where conciliations result in settlements, they are recorded and constitute contractually binding outcomes from the process. Where they do not produce settlements, the disputes can progress to a relevant tribunal or commission, which will then make a determination that is binding on the parties. In terms of conciliation outcomes, there is evidence, for example in disputes relating to sexual harassment, that it has been possible to achieve a broader range of outcomes than would ordinarily result through formal tribunal procedures, that is, in the form of apologies, statements of regret or undertakings in relation to other affected parties.46 Where respondents are

open to education and change, improvements in policy and practice can be negotiated with them and can be incorporated into nal outcomes. [page 298]

Blended conciliation processes 9.25 As is now evident from examples of other DR processes, there can be melded conciliation processes where the system is combined with processes such as mediation or adjudication.47 In New South Wales and Queensland, family law ‘conferencing’ models have been used by Legal Aid bodies for many years, involving a combination of mediation and conciliation and with a distinct advisory component devised to bring parties within the ‘range’ of likely outcomes.48 ere has also been research into, and a call for, the use of a melded conciliation/mediation process for late stage family law matters dealing with property.49 Importantly, the process was identi ed as mediation–conciliation to make its advisory dimension clear.

Applications of conciliation 9.26 Conciliation operates in many dispute areas including workplace and workers’ compensation disputes, industrial and employment matters, tax, family law and antidiscrimination, health rights, equal opportunity and other human rights areas.50 In the absence of a constitutional Bill of Rights in Australia, these conciliations are important forums of rights investigation, settlement and enforcement, and therefore of the rule [page 299] of law. In this section three particular applications of the conciliation process are discussed, namely industrial and workplace matters,51 family law52 and human rights.53

Industrial and workplace applications 9.27 Conciliation has been a feature of industrial relations systems in Australia for over a century.54 It is one of the DR processes referred to in the Australian Constitution55 and the rst federal parliament exercised its powers to legislate for DR in the industrial [page 300] relations arena as early as 1904.56 Taking their lead from the Constitution, successive governments have legislated to make provision for the use of conciliation (and arbitration) in the prevention and settlement of industrial disputes extending beyond state borders. Statutes enacted in terms of the federal head of power, and many state laws on the subject, have established industrial courts and commissions with responsibilities for assisting parties to discuss and settle disputes, through ‘conciliation’ among other approaches. 9.28 In practice, industrial relations conciliations have assumed a speci c identity, with quasi-arbitral characteristics, and the commissioners of the various relevant tribunals and other conciliators operating in a highly directive way in ful lling their functions. Conciliation, together with arbitration, was designed to operate as a supported approach to determining terms and conditions of work through systems of collective bargaining among unions and employers, in this sense assuming a quasi-transactional character. It was also deployed to assist with not only the settlement of disputes, but also their prevention. Conciliation in this context tended to be located within the power- and rights-based, as well as the advisory and determinative, segments of the DR matrix.57 9.29 Despite decades of serial changes to industrial legislation, contemporary laws in this area still make provision for a process designated as conciliation.58 For example, current federal workplace legislation, the Fair Work Act 2009 (Cth), provides for conciliation, where feasible, for dealing with industrial disputes,59 and conciliations are conducted by dedicated conciliators on the staff of the Fair Work Commission (FWC).60 e FWC

has authority to deal, among other things, with disputes under the terms of awards or enterprise agreements, bargaining disputes, disputes under the general protections provisions of the legislation and unfair dismissals.61 e FWC has broad discretion over ways of dealing with matters coming to it, including through the use of mediation and conciliation or by making recommendations or expressing opinions.62 Once employees have lodged applications, the Commission noti es respective employers and both parties are advised about the date and time for a conciliation meeting.63 e legislation does not, however, require parties to attempt conciliation in [page 301] all cases before applications can proceed to adjudication. Nonetheless, conciliation is designed to avoid the need for hearings, and it involves con dential meetings, usually conducted by telephone or online in the initial phases.64 9.30 One particular area in which the FWC uses conciliation is that of unfair dismissal cases.65 In respect of these cases, the FWC website indicates that conciliators will ask parties to brie y summarise why the dismissal was fair or unfair, as the case may be, before conducting an open discussion between them, convening separate meetings with each side and discussing proposals for resolution. While this suggests a high degree of informality it is nevertheless important to have sufficient structure to particularise disputes fully in order for them to be adequately considered.66 If parties reach in-principle settlements, conciliators then prepare written agreements for signature. A negotiated settlement is not classi ed as a ‘decision’ of the FWC and therefore does not provide the basis for appeal, as is available against Commission decisions.67 If there is no agreement reached through the conciliation process, conciliators explain the next steps in Commission procedures.68 In terms of conciliator functions, conciliators can ‘actively’ help parties to reach resolution, challenge parties’ views and comment on possible outcomes, but they cannot advocate for either side nor give legal advice nor make decisions.69 Case law has reinforced the advisory nature of

this species of conciliation by expressly identifying ‘recommendations’ as legitimate conciliator functions.70 9.31 e importance of conciliation to the efficacy of DR in the industrial relations system is re ected in the fact that according to the 2019–20 Fair Work Commission Annual Report, 12,963 conciliations were held that year.71 [page 302]

Conciliation in family law 9.32 In the family law context, legislation and various court systems have long made references to conciliation, although the term has had different connotations over the decades.72 Conciliation has been a prominent method used for the resolution of family law property matters in the Family Court for some time under the Family Law Act 1975 (Cth). Court registrars commonly ful l the role of the conciliator. In this role they adopt interventionist and didactic approaches by advising on law, evidence and relevant procedures, predicting how the court would determine respective matters and suggesting possible settlement options based on cases and other law.73 9.33 e Family Law Rules provide that conciliation conferences must be conducted by judicial officers, which include court registrars (where they concern nancial issues), and by registrars and family consultants (where they involve both nancial and parenting issues).74 In all cases, conciliators are experts in relevant areas of family law and they have advisory but nondeterminative functions. Conciliating parties are required to make ‘genuine efforts’ to reach agreement on relevant issues.75 Moreover, within 28 days of a conference each party must make a genuine settlement offer to all other parties.76 Where there is no conciliated settlement, the parties may proceed to litigation and evidence of conference communications can be excluded in subsequent hearings of the same dispute.77 is scheme illustrates how conciliation is nested in an overall system designed to induce parties to

settle before hearing, an increasingly common feature of DR systems in courts, industry bodies and contractual arrangements.78 9.34 While conciliation has an extensive history in the context of family law practice, its use has largely been focused on the settlement of property matters. Now that the [page 303] concept of ‘family dispute resolution’ (FDR)79 extends more formally to property matters also, it is possible that the use and number of conciliations will reduce. Indeed, the current focus of DR in the family law system is moving more and more towards FDR and ‘genuine steps’ being taken preand post- ling.80 is will ensure that conciliation is part of the effective operation of the overall DR system with a preferred sequencing of processes, escalating in formality and the level of advisory or evaluative intervention, from negotiated approaches, to facilitative FDR to conciliation and through to judicial determinations.

Anti-discrimination conciliation 9.35 Important forms of conciliation practice are found in the various elds of antidiscrimination law.81 Where complainants allege discrimination or denial of equal opportunity,82 there are commissions and tribunals at federal, state and territory levels, [page 304] each with some degree of autonomy from their respective governments — which are frequently respondents before them. At the federal level, the Australian Human Rights Commission (AHRC) administers discrimination complaints within its jurisdiction, largely through the medium of conciliation.83 While there are variations among the anti-discrimination

jurisdictions it is possible to provide a composite account of how they operate with reference mainly to the AHRC. 9.36 Where commissions receive complaints, they can rst investigate the issues raised, during which time parties’ differences might be resolved by negotiation. Investigations are conducted by conciliation officers and there might be little practical separation between investigation and subsequent conciliation as the officers conduct interviews, seek information and conduct shuttle negotiations, online, by phone or in person, between the parties. is phase can take a few hours or it could involve protracted investigations over weeks, culminating in extensive written reports on the alleged discrimination activities.84 During this phase parties can at all times make their own agreements, provided they are compliant with applicable legislation and policy. 9.37 Where the investigative stage does not result in settlement of the matter, the relevant commission determines whether a more formal conciliation conference is appropriate before the case proceeds, at the complainant’s election, to nal hearing and determination.85 e prehearing conciliation is mandatory for all parties and is again designed to procure a facilitated settlement within the parameters of the applicable law. An important factor in the conciliation process is that respondents may not only have breached a complainant’s rights in the past but may be in continued non-compliance with applicable law, for example through practices which systemically discriminate against or victimise groups on grounds of race, sexual identity or marital status. In this context, conciliators can propose settlements which not only provide remedies to individual complainants but also require changes in respondents’ policies and practices to bring them into compliance with statutory standards and prevent future complaints. e conciliation process therefore has both resolution and formative dimensions,86 re ecting a balance between individualistic approaches to DR and collective or societal approaches associated with broader sets of relevant public interests. 9.38 Conciliations in this area are conducted con dentially, which effectively limits research and available information about their operation.

However, the AHRC’s Conciliation Register contains summaries of a selection of complaints resolved [page 305] through the institution’s conciliation process, providing some public insight into what is fundamentally a private system.87 It appears that conciliators adopt a wide range of styles and practices, with conciliation in antidiscrimination agencies being similar in many ways to mediation despite its evaluative and advisory dimensions. 9.39 ere are many other applications of conciliation, such as in disability complaints,88 bullying matters,89 aged care disputes,90 health complaints addressed by Health Care Commissioners or equivalents in different states,91 and complaints handled by various other government agencies and tribunals. In addition, there are numerous other areas of potential application for conciliation; for example, in relation to difficult end-of-life decisions that family members are required to make because of the life-prolonging capacities of modern technologies.92 As indicated previously, conciliation, as de ned here, is pluripotential in its possible applications because it combines the strengths of facilitation and independent guidance, leaving scope for self-determined resolution but increasing the likelihood of settlements through the evaluation and direction of conciliators.

Critical issues in conciliation practice 9.40 Reference is made regularly in this work to the power conundrums affecting all DR processes. Some forms of conciliation raise particular concerns around questions of power and culture.93 For example, this is the case in the anti-discrimination area where most cases involve complaints from minority, disadvantaged or non-English speaking individuals about activities of powerful respondents such as employers, educational institutions and large corporations — although smaller employers, hotels and retailers are sometimes also respondents. Despite the normative

commitments and advisory roles of conciliators, the conciliation process still requires individuals to [page 306] negotiate and make binding decisions on their needs and interests with a respondent potentially possessing signi cantly greater power, legal assistance and team presence in the conciliation room.94 Moreover, certain basic rights of human equality, dignity and security should ideally not be susceptible to negotiated outcomes or to the potential of being traded off in conciliation.95 9.41 e power issue is complicated by the blend of informal and formal factors in conciliation.96 In general terms, this blended arrangement has both strengths and shortcomings for the parties in conciliation; however, for rst-time unsupported complainants, informality can be more detrimental than bene cial.97 ere is notional protection against victimisation of complainants coming to conciliation, but they could still maintain concerns that participating in the process might make their situation worse than if they did not participate. Adding to this issue, the con dential nature of conciliation could have differential impacts and consequences.98 For complainants, it might make conciliation more attractive than invoking workplace grievance procedures or laying criminal charges with resultant publicity, albeit at the cost of not pursuing their full legal rights and deserts. For respondents, participating in conciliation could avoid negative publicity, reputational damage and an unwanted precedent, at the potential cost of being publicly vindicated through adjudication if they are in the clear.99 9.42 Notwithstanding conciliation’s tendency to deformalise justice in different circumstances, procedural issues can still be formally determined and imposed by the courts, such as in relation to the obligation for good faith participation. For example, a local council objected to a conciliation referral on the grounds, inter alia, that it had not provided any officer an authority to enter into a binding agreement on its behalf and that it could therefore not satisfy its statutory good faith obligation.100 is stance had

some support in earlier jurisprudence.101 e court, however, held that authority to settle was not a necessary component of the good faith requirement, providing the [page 307] officer at the conciliation could enter a legally non-binding agreement which could be subsequently rati ed by the council. 9.43 e con dentiality of conciliation could also potentially mask systemic problems. Respondents could admit to unlawful organisational practices in private but, reassured by the con dentiality protection, deliberately fail to take remedial measures in public, whereas the transparency surrounding public hearings and open determination might lead to systemic changes beyond the circumstances of individual complainants. is concern, however, is no more acute in the conciliation context than it is in other DR systems operating on a con dential basis. is raises questions over whose interests are served by conciliation systems, a pertinent consideration in the industrial relations and family law elds where political imperatives and efficiency considerations heavily promote conciliation to settle disputes and avoid expensive litigation. ere have also been concerns about institutional bias from conciliation authorities: while these bodies are nominally independent of respective governments, apprehensions arise where conciliation officers meet repeatedly with the same respondents and lawyers, allowing the former to identify with the latter and the latter to prospectively ‘game’ the system.102 Again, these concerns relate to all forms of private settlement that lack the transparency attributes of public adjudication. 9.44 Moreover, in some DR contexts parties and conciliators are dealing with the consequences of broad social and economic forces, and in the case of anti-discrimination cases this is normally the case since wider pressures and prejudices are routinely present. Questions therefore arise as to the effectiveness of informal consensual processes in both remedying the clients’ problems, on one hand, and tackling the broader societal issues, on the

other. Can conciliation balance settlement imperatives for quick and inexpensive processes with the resolution of applicants’ complaints as well as their empowerment, improved self-awareness and development of their skills?103 is is a challenging task. 9.45 However, conciliation is not unfacilitated decision-making by parties, no matter how disadvantaged they may be, and conciliators’ responsibilities to relevant legislative norms mean that conciliations operate in a dense shadow of the law. e respondent’s conduct is measured against standards established by relevant legislation and conciliators are, in important respects, guardians of those standards. In addition to the conciliators’ responsibilities towards the law, the respondents’ compliance with the legislation will already have been investigated by a conciliator acting on behalf of the agency established to enforce the legislation. e conciliator will have made a decision that there has, prima facie, been a legislative breach — hence it is difficult to describe conciliators as fully independent in relation to disputes in which they are involved, nor can they be impervious to the complainants’ concerns. Moreover, [page 308] the advisory and evaluative processes are usually connected to courts and tribunals, thereby strengthening the legal shadow.104 9.46 Margaret ornton summarises the dilemma of conciliation being a less formal process as follows: As a strategy, deformalisation is a double-edged sword. On the one hand, it encourages victims of discrimination to le complaints because of the guarantees of privacy and con dentiality, factors which also encourage respondents to co-operate. On the other hand, it precludes public scrutiny.105

9.47 Lawyers can reintroduce formalism into informal DR processes through legalistic arguments, adversarial conduct, cross-examination and other facets of traditional adversarial lawyering associated with determinative processes. For this reason, legal representation in conciliation is sometimes possible only with the relevant agency’s permission and where

lawyers are present, they can be restricted to limited roles in the process.106 Further attention is given to lawyers’ roles at the end of the chapter. 9.48 Finally, given the statutory and institutionally based nature of much conciliation, the question arises as to what functions conciliators can perform beyond those associated with the conciliation process. In the Administrative Appeals Tribunal (AAT), conciliators are designated officials who have no further role in a dispute if the conciliation does not result in settlement.107 In other bodies, conciliators perform multiple functions and can be involved as adjudicators if there is no settlement in a case they have conciliated — for example, in Victoria’s Accident Compensation Conciliation Service (ACCS) conciliators can make binding determinations in respect of part of a dispute, where no settlement is reached notwithstanding their advice.108 ese extended powers challenge assumptions about procedural fairness and self-determination in conciliation practice.109 9.49 Whatever the cogency of the critiques of conciliation, however, they have to be seen in terms relative to other DR processes. It cannot be assumed that all citizens are always well served by formal justice systems.110 However, as problematic as elements of the various conciliation systems might be, they could still serve the interests of some [page 309] parties to a greater extent than tribunal or court adjudication. eir relative accessibility, affordability and participatory potential, in addition to their normative assumptions referred to above, support at least some elements of access to justice under the rule of law, as discussed in Chapter 5. 9.50 In terms of outcomes, it is always possible for conciliation to produce outcomes similar to those which might be achieved through litigation or determination by a tribunal or commission, for example restitution for lost wages, reinstatement in the workplace or monetary damages. As regards the quantum of monetary outcomes, this will in part be a function of respective bargaining powers — a weaker employee may be

induced to settle for less because of the disadvantages or uncertainties of other options or ways forward, but a stronger employee may obtain more than they would have in litigation if a respondent factors into their settlement offer the nancial and opportunity costs of litigation and the bene ts of immediate and con dential resolution. As with other DR processes, conciliation can also lead to outcomes and remedies not possible through formal channels.111 ese could include, for example, apologies, access to records, statements of service, non-denigration compacts, references and, in employment contexts, the opportunity for an employee to resign rather than be dismissed.112

Lawyers and conciliation 9.51 Conciliation, as an advisory and evaluative process, provides additional functions and responsibilities for lawyers, and there is scope for the expansion of the presence of lawyers as advocates in conciliation systems. e form and values of conciliation sit well with lawyers’ sense of professional identity and conciliation-like processes are likely to be a key feature of the future of DR lawyering.113 9.52 At the transactional stage, lawyers can dra DR clauses that will trigger entry into conciliation. ey might also be involved in systems design, draing rules for the actual conduct of the process. Lawyers can also advise on the nomination of [page 310] relevant intervenors, educate clients on the process and, where a party is representing themselves, advise them in advance of their legal and procedural rights and obligations. Lawyers can also provide full-service assistance to clients; for example, by representing them during the process and again aer it in relation to the review of outcomes or the pursuit of other legal remedies. Finally, legal practitioners and retired judges can, and oen do, ful l the role of conciliator within their elds of expertise.

9.53 Despite the fact that conciliation systems can operate either with or without legal representation, lawyers are still required to be abreast of the opportunities the conciliation process might provide for clients. Lawyers should therefore be across the relevant knowledge, skills and ethics required to ensure that the client’s engagement with the process is effective, as parties in legal disputes are oen very reliant on their lawyer for information, advice and representation. Given the strong shadow of the law present in conciliation contexts, it makes good sense for lawyers, where necessary, to prepare documents, make presentations and submit written arguments. is inevitably adds a potentially legalistic, and possibly adversarial, dimension to the operation of the process, and lawyers need to ensure that personal and commercial needs and interests are not overlooked as a result.

Conclusion 9.54 e conciliation process highlights the importance of expertise in assisting and guiding parties to come to their own settlement decisions, and of the critical role of normative and objective standards which, provided they are independent and authoritative, assist the parties in analysing the relevant risks and choices.114 In many contexts, lawyers are the intervenors in conciliation processes, providing their expertise on parties’ rights and obligations, on legal procedures and on probable court or tribunal outcomes. Lawyers also have responsibilities in advising clients on the strengths and limits of conciliation as a DR process option. 9.55 Like other non-determinative DR processes, conciliation does not guarantee an outcome — because the parties are at liberty to regard or disregard the advice, opinions and recommendations they receive through the process. Guaranteed nality requires the addition of a determinative dimension. e determinative processes of arbitration and litigation are discussed in the next two chapters. 1.

See generally Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020) ch 6; Peter Condliffe, Con ict Management (LexisNexis Butterworths, 6th ed, 2019) [2.2], [7.1]; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011) ch 5. See also Pieter Sanders, e Work of UNCITRAL on Arbitration and Conciliation (Kluwer Law International, 2004). A sample of the

international scholarship on ‘conciliation’ includes: Andrea Strimling, ‘e Federal Mediation and Conciliation Service: A Partner in International Con ict Prevention’ (2002) 2(3) Pepperdine Dispute Resolution Law Journal 417; George Sayen, ‘Arbitration, Conciliation, and the Islamic Legal Tradition in Saudi Arabia’ (2003) 24(4) University of Pennsylvania Journal of International Economic Law 905; William Slate et al, ‘UNCITRAL (United Nations Commission on International Trade Law) Its Workings in International Arbitration and a New Model Conciliation Law’ (2004) 6(1) Cardozo Journal of Con ict Resolution 73; Wang Wenying, ‘e Role of Conciliation in Resolving Disputes: A PRC Perspective’ (2005) 20(2) Ohio State Journal on Dispute Resolution 421; Ashgar Mohamed and Yeak Tan Dato, ‘Mediation/Conciliation in the Malaysian Courts: With Speci c Emphasis on Settlement of Labour Disputes’ (2006) Lawasia Journal 163; Linda Reif, ‘e Use of Conciliation or Mediation for the Resolution of International Commercial Disputes’ (2007) 45(1) Canadian Business Law Journal 20; Yu Jianlong, ‘Conciliation in Action in China and CIETAC’s Practice’ (2009) 17(1) Asia Paci c Law Review 89; Shahla Ali, ‘e Morality of Conciliation: An Empirical Examination of Arbitrator Role Moralities in East Asia and the West’ (2011) 16 Harvard Negotiation Law Review 1; Jerome Uchenna Orji, ‘Law and Practice of Conciliation in Nigeria’ (2012) 56(1) Journal of African Law 87; Sha Fazaluddin, ‘Conciliation Ethics in the Qur’an’ (2016) 29(2) International Journal for the Semiotics of Law-Revue 333; Anne Ward Platt and Liam Donaldson, Conciliation in Healthcare: Managing and Resolving Complaints and Con ict (CRC Press, 2018); Daniel ürer, ‘Is Conciliation Obsolete or Démodé? Dispute Settlement as a Protracted Process of Interaction between the Parties Concerned’ in Christian Tomuschat and Marcelo Kohen, Flexibility in International Dispute Settlement: Conciliation Revisited (Brill Nijhoff, 2020) 25–36. See further, ADRAC, Conciliation: Connecting the Dots (ADRAC, 2021). At the time of writing this report had not been released — being launched on 25 November 2021. However, it is anticipated that this report will signi cantly impact the understanding and use of conciliation in Australia. 2.

e goals and values of DR systems were discussed in Chapter 5.

3.

If an expert has the capacity within a DR system to make binding decisions, then the process has become a determinative one such as arbitration or expert determination.

4.

See Mark Rankin, ‘Case Appraisal and Neutral Evaluation: e Creation of Objective Standards for Negotiating Settlement of Protracted Civil Disputes’ (2012) 1(2) Journal of Civil Litigation and Practice 91.

5.

See, eg, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015: ‘A solicitor must provide clearly and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken …’: s 7.1.

6.

Under the auspices of NCAT, conciliators, unusually, are said not to be ‘advisers’ for conciliating parties — see .

7.

See National Mediator Accreditation System (NMAS), Practice Standards (2015)

which refer to mediators using a blended process (s 10.2). For non-blended facilitative mediation, mediators are ethically precluded from evaluating or advising on the merits of disputes. Mediators with requisite knowledge and experience can provide advice to the parties, provided they have obtained their consent and do so in a manner that maintains and respects the self-determination principle: NMAS, s 10.2. See also, eg, Troy Peisley, ‘Blended Mediation: Using Facilitative and Evaluative Approaches to Commercial Disputes’ (2012) 23(1) Australasian Dispute Resolution Journal 26. See further Nadja Alexander, ‘e Chameleon Mediator’ (2004) 6(9) ADR Bulletin 165; Kenneth Kressel, ‘e Strategic Style in Mediation’ (2007) 24(3) Con ict Resolution Quarterly 251; Jonathon Friedrich, ‘Philosophical Answers to Ethical Questions: Power Imbalance and the Provision of Advice in Mediation Standards’ (2009) 20(3) Australasian Dispute Resolution Journal 179. 8.

See, eg, Rosalie Poole, ‘Facilitating Systemic Outcomes rough Anti-Discrimination Conciliation and the Role of the Conciliator in this Quest’ (2016) 27(1) Australasian Dispute Resolution Journal 49; Margot Rogers and Tony Gee, ‘Mediation, Conciliation and High Con ict Families: Dialogue with a Dead Horse’ (2003) 14(4) Australasian Dispute Resolution Journal 266.

9.

NADRAC, Dispute Resolution Terms: e Use of Terms in (Alternative) Dispute Resolution (Commonwealth of Australia, 2003) 5.

10.

NADRAC, Your Guide to Dispute Resolution (Commonwealth of Australia, 2012) 15.

11.

See, eg, the United Nations Convention on International Settlement Agreements Resulting from Mediation (the ‘Singapore Convention on Mediation’) and the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the Model Law on International Commercial Conciliation, 2002) . See also Robert N Dobbins, ‘UNCITRAL Model Law on International Commercial Conciliation: From a Topic of Possible Discussion to Approval by the General Assembly’ (2003) 3(3) Pepperdine Dispute Resolution Law Journal 529; Nadja Alexander, ‘Singapore Convention on Mediation’ (2018) SMU Research Collection School of Law (online); Timothy Schnabel, ‘e Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements’ (2019) 19(1) Pepperdine Dispute Resolution Journal 1; Eunice Chua, ‘e Singapore Convention on Mediation — A Brighter Future for Asian Dispute Resolution’ (2019) 9(2) Asian Journal of International Law 195; Sala Sihombing, ‘UNCITRAL Convention — Mediation’s Big Bang: Can Mediation Challenge Arbitration’s Dominance?’ (2019) 30(1) Australasian Dispute Resolution Journal 51. See further Sienho Yee, ‘Conciliation and the 1982 UN Convention on the Law of the Sea’ (2013) 44(4) Ocean Development and International Law 315; Laurence Boulle, ‘International Enforceability of Mediated Settlement Agreements: Developing the Conceptual Framework’ (2014) 7(1) Contemporary Asia Arbitration Journal 35; Chang-fa Lo and Winnie Jo-Mei Ma, ‘Dra Convention on Cross-Border

Enforcement of International Mediated Settlement Agreements’ (2014) 7(2) Contemporary Asia Arbitration Journal 389. 12.

See Mieke Brandon and Tom Stodulka, ‘A Comparative Analysis of the Practice of Mediation and Conciliation in Family Dispute Resolution in Australia: How Practitioners Practice Across Both Processes’ (2008) 8(1) QUT Law and Justice Journal 194.

13.

Bernadine Van Gramberg et al, ‘Con ict Management in Australia’ in William Roche, Paul Teague and Alexander JS Colvin (eds), e Oxford Handbook of Con ict Management in Organizations (Oxford University Press, 2014) 425; William Roche and Paul Teague, ‘e Growing Importance of Workplace ADR’ (2012) 23(3) e International Journal of Human Resource Management 447. See also from the United Kingdom perspective Richard Arthur Saundry et al, ‘Reframing Resolution — Managing Con ict and Resolving Individual Employment Disputes in the Contemporary Workplace’ (2014) Advisory, Conciliation and Arbitration Service (ACAS) Policy Discussion Papers (online).

14.

Conciliation has been referred to by David Bryson as ‘mediation within a legal framework’: David Bryson, ‘And the Leopard Shall Lie Down with the Kid: A Conciliation Model for Workplace Disputes’ (1997) 8(4) Australian Dispute Resolution Journal 245.

15.

e Accident Compensation Conciliation Service (ACCS) which is a statutory body established under the Accident Compensation Act 1985 (Vic) provides resources to assist parties in preparing for and understanding the conciliation process .

16.

For example, the Residential Tenancies Authority (RTA) in Queensland resolves many disputes through a conciliation conference pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Ch 6, Pt 1. See also .

17.

Many complaints received by the Australian Human Rights Commission are resolved through conciliation pursuant to the Australian Human Rights Commission Act 1986 (Cth) Pt IIB Div 1.

18.

For example, the Western Australian Industrial Relations Commission is a tribunal established under the Industrial Relations Act 1979 (WA) to deal with industrial matters in Western Australia by conciliation or arbitration. For a discussion of the scope of conciliation in this context, see Jennifer H Smith, Scope and Extent of Conciliation and Mediation to Resolve Industrial Disputes in Western Australia by the Western Australian Industrial Relations Commission (Western Australian Industrial Relations Commission, 2015) (online).

19.

See and respectively.

20.

For example, conciliation conferences in the Federal Circuit and Family Court of

Australia must be conducted by a judicial officer (see Family Law Rules 2004 r 12.07(1)). 21.

See, eg, information on conciliation for the New South Wales Civil and Administrative Tribunal .

22.

NADRAC, (n 9 and 10).

23.

See also Jodie Ball and Tracey Raymond, Facilitator or Advisor?: A Discussion of Conciliator Intervention in the Resolution of Disputes under Australian Human Rights and Anti-Discrimination Law (Australian Human Rights Commission, 2004) .

24.

See Rachael Field and Jonathan Crowe, Mediation Ethics: From eory to Practice (Edward Elgar, 2020). See further Rachael Field, ‘Mediation Ethics in Australia — A Case for Rethinking the Foundational Paradigm’ (2012) 19 James Cook University Law Review 41.

25.

Tom Altobelli, ‘Private Conciliation in Family Law’ (2002) 13(4) Australasian Dispute Resolution Journal 230; Katherine Lynch, ‘Private Conciliation of Discrimination Disputes: Con dentiality, Informalism, and Power’ (2014) 22(1) Willamette Journal of International Law and Dispute Resolution 49.

26.

Evaluative mediation has been called an oxymoron. See, eg, Kimberley K Kovach and Lela Love, ‘“Evaluative” Mediation is an Oxymoron’ (1996) 14 Alternatives to HighCost Litigation 31. See also James J Al ni, ‘Evaluative Versus Facilitative Mediation: A Discussion’ (1997) 24(4) Florida State University Law Review 919. Riskin’s grid of mediators’ roles provided acknowledgment of the variety of practices across the mediation/conciliation categories of process: Leonard L Riskin, ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed’ (1996) 1 Harvard Negotiation Law Review 7.

27.

See Donna Ross, ‘Med-Arb/Arb-Med: A More Efficient ADR Process or an Invitation to a Potential Ethical Disaster?’ in Arthur W Rovine, Contemporary Issues in International Arbitration and Mediation: e Fordham Papers (2012) (Brill, 2013) 352. See also Amalia D Kessler, ‘Delineating between Conciliation and Adjudication: A Comment on Resnik and Curtis’s Representing Justice’ (2012) 56(4) Saint Louis University Law Journal 1099.

28.

See, in particular, Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part I’ (2000) 11(2) Australian Dispute Resolution Journal 73; Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part II’ (2000) 11(3) Australasian Dispute Resolution Journal 145; Hilary Astor, ‘Mediator Neutrality: Making Sense of eory and Practice’ (2007) 16(2) Social and Legal Studies 221. See also Rachael Field, ‘A Paradigm Shi for Mediation Ethics: From Neutrality to Party Self-Determination’ (PhD thesis, University of Sydney, 2011); Field, (n 24) and Field and Crowe, (n 24).

29.

e Productivity Commission acknowledged the need for parties to have professional legal assistance in all complex matters, regardless of the DR process being used — Productivity Commission, Access to Justice Arrangements, Report No 72 vol 1 (Commonwealth of Australia, 2014) ch 2.

30.

See Hilary Astor, ‘Anti-Discrimination Legislation and Physical Disability’ (1990) 64(3) Australian Law Journal 113.

31.

See Boulle, (n 1) 44–5.

32.

See UNCITRAL, (n 11).

33.

See David Bryson, ‘Mediator and Advocate: Conciliating Human Rights Complaints’ (1990) 1(3) Australian Dispute Resolution Journal 136.

34.

See Chapter 2.

35.

Although many conciliators would nd the National Mediator Accreditation System, Practice Standards relevant to the facilitative aspects of their practice, and may well be accredited under this scheme: National Mediator Accreditation System, Practice Standards (2015) .

36.

For example, the AAT describes the conciliation process in ways very similar to the ‘orthodox’ mediation process — see .

37.

See, eg, Carol Powell, ‘Preparation for Interest Based Processes’ (June 2012) (Paper 5) ADR Tools (online). Compare also with the ndings in Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: e Supreme Court of Tasmania’ (2013) 32(1) University of Tasmania Law Review 20.

38.

For example, where the Federal Circuit and Family Court makes an order for a conciliation conference, attendance by the parties is compulsory: see the Family Law Rules 2004 r 12.11 which states: ‘Party’s attendance (1) A party and the party’s lawyer (if any) must attend each procedural hearing, case assessment conference or conciliation conference’.

39.

See also, eg, Laurence Boulle and Nadja Alexander, Mediation — Skills and Techniques (LexisNexis Butterworths, 2nd ed, 2012); Fredrike Bannink, Handbook of SolutionFocused Con ict Management (Hogrefe Publishing, 2010).

40.

See, eg, Christopher W Moore, e Mediation Process: Practical Strategies for Resolving Con ict (John Wiley & Sons, 4th ed, 2014); Linda Fisher and Mieke Brandon, Mediating with Families (omson Reuters, 4th ed, 2018). See further Deborah Tyler and Roxane Shaw, ‘Restoring Trust: e Art of Gestures in Dispute Resolution’ (2000) 3(7) ADR Bulletin 77; Daniel Bowling and David Hoffman (eds), Bringing Peace into the Room: How the Personal Qualities of the Mediator Impact the Process of Con ict Resolution (Jossey-Bass, 2003); Patricia Marshall, ‘Emotional Competence and the Mediator’ (2006) 9(2) ADR Bulletin 21; Mieke Brandon, ‘Questioning Our Questions — Expanding Facilitative Dispute Resolution Questioning Techniques’ (2011) 12(6) ADR Bulletin 132.

41.

Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: e

Case of Divorce’ (1979) 88(5) Yale Law Journal 950. 42.

See the Australian Disputes Centre conciliation clause and Guidelines for Commercial Conciliation .

43.

See, however, Lynch, (n 25); Deborah Hensler, ‘e Private in Public, the Public in Private: e Blurring Boundary between Public and Private Dispute Resolution’ in Iwo Amelung and Moritz Bälz (eds), Formalisation and Flexibilisation in Dispute Resolution (Brill, 2014) 45; Altobelli, (n 25).

44.

See Randolph L Lowry, ‘Evaluative Mediation’ in Jay Folberg, Ann L Milne and Peter Salem (eds), Divorce and Family Mediation: Models, Techniques, and Application (Guilford Press, 2004). See also, eg, Murray S Levin, ‘e Propriety of Evaluative Mediation: Concerns About the Nature and Quality of an Evaluative Opinion’ (2001) 16(2) Ohio State Journal on Dispute Resolution 267; Jamila Chowdhury, Gender Power and Mediation: Evaluative Mediation to Challenge the Power of Social Discourses (Cambridge Scholars Publishing, 2012); Eric R Galton and Lela P Love, ‘Stories Mediators Tell: e Editors’ Re ections’ (2013) 34(6) Cardozo Law Review 2409; Maxine Adams, ‘Wonder Woman vs Superman: Who Would Make a Better Mediator?’ (2013) 68(4) Dispute Resolution Journal 61. Consider also the perspective in Carole Brown, ‘Facilitative Mediation: e Classic Approach Retains Its Appeal’ (2012) 4(2) Pepperdine Dispute Resolution Law Journal 9.

45.

See .

46.

See, in relation to the Queensland Commission on Anti-Discrimination, Dominique Allen, ‘Settling Sexual Harassment Complaints — What Bene ts Does ADR Offer?’ (2013) 24(3) Australasian Dispute Resolution Journal 177. ere are also critical voices on the role of conciliation in the sexual harassment context — see Anthea Worley, Sara Charlesworth and Paula McDonald, ‘Sexual Harassment and Conciliation: Which Complaints Settle and Which Don’t’ (2013) 38(2) Alternative Law Journal 96.

47.

See Peisley, (n 7); Jeff Kichaven, ‘Med-Arb Should Be Dead’ (2009) New York Dispute Resolution 80; Andrew Davies and Jill Howieson, ‘Family Law Mediation-Style Conferencing: Creating an Opportunity in a Crisis’ (2012) 23(1) Australian Family Lawyer 13; Alan Barsky, ‘“Med-Arb”: Behind the Closed Doors of a Hybrid Process’ (2013) 51(4) Family Court Review 637; Norman Zakiyy, JT Chow and Kamal Halili Hassan, ‘Integrating Early Neutral Evaluation into Mediation of Complex Civil Cases in Malaysia’ (2014) 7 Journal of Policy and Law 138; Jacqueline Nolan-Haley, ‘Mediation: e New Arbitration’ (2012) 17 Harvard Negotiation Law Review 61.

48.

ere is a ‘coercive’ element to these conferences in some states in that the conference chair can recommend that the legally aided party be granted no further nancial assistance.

49.

See Marilyn Scott, ‘Mediation in Property Division in Late State Family Law Matters: A Procedural Initiative’ (2015) 26(4) Australasian Dispute Resolution Journal 232.

50.

See, eg, Paulo Novais and Davide Carneiro, Interdisciplinary Perspectives on

Contemporary Con ict Resolution (IGI Global, 2016). See also Robert Buchanan, ‘e Shiing Balance in Federal/State Relations: Its Impact on the Australian Judicial System’ (2012) 31(1) University of Tasmania Law Review 1; Ron McCallum, Joellen Riley and Andrew Stewart, ‘Resolving Disputes Over Employment Rights in Australia’ (2013) 34(4) Comparative Labor Law and Policy Journal 843; Paul Benjamin, ‘Beyond Dispute Resolution: e Evolving Role of the Commission for Conciliation, Mediation and Arbitration’ (2014) 35(1) Industrial Law Journal 1; Mirella Pellegrini, ‘Alternative Dispute Resolution Systems in Italian Banking and Finance: Evolution and Goals’ in Domenico Siclari, Italian Banking and Financial Law: Crisis Management Procedures, Sanctions, Alternative Dispute Resolution Systems and Tax Rules (Palgrave Macmillan UK, 2015) 131; Tania Sourdin, ‘Evaluating Alternative Dispute Resolution (ADR) in Disputes About Taxation’ (2015) 34(1) e Arbitrator and Mediator 19. 51.

See the Fair Work Act 2009 (Cth). See also Van Gramberg et al, (n 13); the Fair Work Commission and the Fair Work Ombudsman .

52.

See the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth).

53.

See the following federal Acts under which the Australian Human Rights Commission has statutory responsibilities: Age Discrimination Act 2004 (Cth); Australian Human Rights Commission Act 1986 (Cth); Disability Discrimination Act 1992 (Cth); Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth). At the state level, see Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); AntiDiscrimination Act 1996 (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 2010 (Vic); Equal Opportunity Act 1984 (WA). See also, eg, , and the links there to other Australian human rights bodies, agencies and institutions.

54.

Some of the commentary on this application of conciliation includes Jim Macken and Gail Gregory, Mediation of Industrial Disputes (Federation Press, 1995); Leigh Robertson and Mieke Brandon, Con ict and Dispute Resolution: A Guide for Practice (Oxford University Press, 2007); Lynette Harris, Alan Tuckman and Jereme Snook, ‘Supporting Workplace Dispute Resolution in Smaller Businesses: Policy Perspectives and Operational Realities’ (2012) 23(3) e International Journal of Human Resource Management 607; Elizabeth Hoffmann, Co-Operative Workplace Dispute Resolution: Organizational Structure, Ownership, and Ideology (Gower Publishing, 2012); Anthony Forsyth, ‘Workplace Con ict Resolution in Australia: e Dominance of the Public Dispute Resolution Framework and the Limited Role of ADR’ (2012) 23(3) e International Journal of Human Resource Management 476; Susan S Raines, Con ict Management for Managers: Resolving Workplace, Client and Policy Disputes (JosseyBass, 2013); Gregor Gall, New Forms and Expressions of Con ict at Work (Palgrave, 2013); Denise Currie and Paul Teague, ‘Economic Citizenship and Workplace Con ict in Anglo-American Industrial Relations Systems’ (2015) 54(2) British Journal of Industrial Relations 358. See also Judith Scott, ‘Mechanisms for Resolving Collective Bargaining Disputes in New Zealand’ (2014) 39(2) New Zealand Journal of

Employment Relations 62; David Brubaker et al, ‘Con ict Resolution in the Workplace: What Will the Future Bring?’ (2014) 31(4) Con ict Resolution Quarterly 357; Michio Nitta, ‘Labour Relations Commissions and Industrial Relations: e Era of Great Conciliators’ (2015) 12(4) Japan Labor Review 37. See generally Breen Creighton, ‘One Hundred Years of the Conciliation and Arbitration Power: A Province Lost?’ (2000) 24(3) Melbourne University Law Review 839; Joe Isaac and Stuart Macintyre, e New Province for Law and Order: 100 Years of Australian Industrial Conciliation and Arbitration (Cambridge University Press, 2004). See also Mark Bray and Andrew Stewart, ‘From the Arbitration System to the Fair Work Act: e Changing Approach in Australia to Voice and Representation at Work’ (2013) 34(1) Adelaide Law Review 21; Ana Belén García et al, ‘Mediation and Conciliation in Collective Labor Con icts’ in Martin C Euwema et al (eds), Mediation in Collective Labor Con icts (Springer, 2019) 3–16; Christine L Ibsen, ‘Conciliation, Mediation and Arbitration in Collective Bargaining in Western Europe: In Search of Control’ (2021) 27(1) European Journal of Industrial Relations 23. 55.

Section 51(xxxv) of the Constitution (1901) (Cth) allows the Commonwealth to legislate on conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. In fact, most colonies had systems of conciliation and arbitration for industrial relations matters well before 1901. See further Nicholas Aroney et al, e Constitution of the Commonwealth of Australia (Cambridge University Press, 2015); Rosalind Dixon and George Williams (eds), e High Court, the Constitution and Australian Politics (Cambridge University Press, 2015).

56.

Commonwealth Conciliation and Arbitration Act 1904 (Cth). is was one of the rst statutes enacted by the new Commonwealth parliament. See further Aroney et al, (n 55); Dixon and Williams, (n 55).

57.

See Macken and Gregory, (n 54).

58.

See Fair Work Act 2009 (Cth) s 368 entitled ‘Dealing with a dismissal dispute (other than by arbitration)’ which states that: ‘(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration). Note: e FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2))’.

59.

See Fair Work Act 2009 (Cth) s 595 which provides for the FWC’s power to deal with disputes.

60.

Many conciliators working in this area are also accredited as mediators under the NMAS.

61.

See .

62.

See Fair Work Act 2009 (Cth) s 592(2).

63.

Interestingly, it is only aer an unsuccessful conciliation that the employer can object to the original application by the dismissed employee.

64.

See .

65.

See . See also Joellen Riley, ‘Rethinking the Fair Work Protection Against Discriminatory Dismissal’ (2013) 41(1) Federal Law Review 181; McCallum, Riley and Stewart, (n 50); Benoit Freyens and Paul Oslington, ‘A First Look at Incidence and Outcomes of Unfair Dismissal Claims Under Fair Work, Workchoices and the Workplace Relations Act’ (2013) 16(2) Australian Journal of Labour Economics 295; Colleen Blignaut, ‘Effectiveness of Conciliation as an Alternative Dispute Resolution Process in Unfair Dismissal Disputes’ (PhD thesis, University of Pretoria, 2018).

66.

See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Active Tree Services Pty Ltd [2011] FMCA 535.

67.

See Brian Clothier v Ngaanyatjarra Media [2012] FWAFB 6323.

68.

In these circumstances the matter proceeds to a formal conference or hearing where binding decisions can be made. Where a conciliation raises matters not part of the original dispute, they must be made the subject of a separate application to provide the FWA with jurisdiction: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Active Tree Services Pty Ltd [2011] FMCA 535.

69.

Ibid.

70.

See CFMEU v Clermont Coal Mine Pty Ltd [2015] FWC 2023. Further, pursuant to Workers Rehabilitation and Compensation Act 1988 (Tas) s 421, the conciliator may: ‘make any recommendation to the parties that he or she considers appropriate; recommend to the Tribunal that it make an interim order in respect of any issue raised in the claim; vary or revoke a direction or recommendation made by the Conciliator; decline to make any direction or recommendation; recommend that the Tribunal refer a medical question to a medical panel’.

71.

Fair Work Commission, Access to Justice — Annual Report 2019-2020 .

72.

See generally Altobelli, (n 25). At times conciliation has had the meaning of counselling in this context. See also Joshua Taylor, ‘A Call for a Multi-framework Approach to Family Dispute Resolution’ (2020) 30(4) Australasian Dispute Resolution Journal 284.

73.

Other variations on conciliation in family law included ‘conciliation counselling’ and ‘conciliation conferencing’. Between 2000 and 2007 the Family Court used the term ‘mediation’ generically to include mediation, conciliation and counselling. See Family Law Act 1975 (Cth) s 123(1)(sg) Sch 1 item 31. See Family Law Rules 2004 (Cth) rr 12.03(4)(a), 12.07–12.08, 12.10–12.11, 12.13(3).

74.

Family Law Rules 2004 Ch 12: Conciliation conferences are ‘speci c court events’ and the conduct of a conciliation conference is prescribed by r 12.07 as follows: ‘a

conciliation conference must be conducted by a judicial officer; each party at a conciliation conference must make a genuine effort to reach agreement on the matters in issue between them; a party and a party’s lawyer must attend a conciliation conference (see subrule 12.11(1)); and evidence of a communication made at a conciliation conference may be excluded (see section 131 of the Evidence Act 1995 (Cth))’. 75.

Ibid.

76.

Family Law Rules 2004 r 10.06.

77.

See Evidence Act 1995 (Cth) s 131 in relation to mediation. See also Family Law Rules 2004 r 12.07.

78.

It also promotes compliance with international norms on children’s rights: Family Law Act 1975 (Cth) Sch 1 includes the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at e Hague on 19 October 1996. is Convention, to which Australia is a signatory, confers on member states obligations to facilitate, by mediation, conciliation or other means, solutions for the protection of the person or property of children in situations in which it applies.

79.

See Family Law Act 1975 (Cth) s 10F: ‘Family dispute resolution is a process (a) in which a family dispute resolution practitioner helps people affected … by separation or divorce to resolve some or all of their disputes …; and (b) in which the practitioner is independent of all of the parties involved in the process’. In the early 2000s family law used the term mediation in a generic sense to include conciliation, counselling, mediation and conferencing. e current generic term is ‘family dispute resolution’.

80.

See Donna Cooper, ‘e Family Law Dispute Resolution Spectrum’ (2007) 18(4) Australasian Dispute Resolution Journal 234, 240.

81.

See the Australian Human Rights Commission’s information on conciliation of complaints and disputes . See also Patricia Easteal and Keziah Judd, ‘“She Said, He Said”: Credibility and Sexual Harassment Cases in Australia’ (2008) 31(5) Women’s Studies International Forum 338; Dominique Allen, ‘Behind the Conciliation Doors: Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review 776; Patrick Parkinson, ‘Reforming Anti-Discrimination Law in Australia: Rediscovering the Middle Ground between Regulation and Freedom’ (2013) Sydney Law School Research Paper No 13/11; Beth Gaze and Anna Chapman, ‘e Human Right to Non-discrimination as a Legitimate Part of Workplace Law: Towards Substantive Equality at Work in Australia?’ (2013) 29(4) International Journal of Comparative Labour Law and Industrial Relations 355; Beth Gaze, ‘Damages for Discrimination: Compensating Denial of a Human Right’ (2013) 116 Precedent 20 in which Gaze states that: ‘Press reports and data on conciliation outcomes suggest that better outcomes can be obtained in settlement than litigation’. See further Dominique Allen, ‘In Defence of Settlement Resolving Discrimination Complaints by Agreement’

(2014) 14(4) International Journal of Discrimination and the Law 199; Tim Soutphommasane, ‘Forty Years of the Racial Discrimination Act’ (2015) 40(3) Alternative Law Journal 153; Margaret ornton, ‘e Political Contingency of Sex Discrimination Legislation: e Case of Australia’ (2015) 4(3) Laws 314; Karla Perez Portilla, Redressing Everyday Discrimination: e Weakness and Potential of AntiDiscrimination Law (Routledge, 2016); and the publications available on the Australian Human Rights Commission website . See also Donna Cooper and Deborah Keenan, ‘A Model to Use When Representing Clients in Conciliation Conferences in the Queensland Anti-Discrimination Commission’ (2018) 29(2) Australasian Dispute Resolution Journal 126; Doris Bozin, Allison Ballard and Patricia Easteal, ‘ADR: Championing the (Unjust) Resolution of Bullying Disputes?’ (2019) 29(3) Australasian Dispute Resolution Journal 162; Alysia Blackham and Dominique Allen, ‘Resolving Discrimination Claims outside the Courts: Alternative Dispute Resolution in Australia and the United Kingdom’ (2019) 31(3) Australian Journal of Labour Law 253. 82.

Under the various statutes, responsibilities for investigating alleged infringements under Australia’s anti-discrimination legislation extend to discrimination on grounds of race, nationality, religion, colour or ethnic origin, racial vili cation, age, sex or gender, sexual harassment, marital or relationship status, sexual orientation, gender identity, intersex status, actual or potential pregnancy, breastfeeding, trade union activity, criminal record, medical record, impairment or physical disability.

83.

e Human Rights and Equal Opportunity Commission was established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and its name was changed to the Australian Human Rights Commission in 2008 — see .

84.

For example, as re ected in the case of Najdovska v Australian Iron and Steel (1985) EOC 92-140.

85.

See, eg, the Queensland Human Rights Commission information, ‘All About Conciliation Conferences’ .

86.

See Anne-Marie Devereux, ‘Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission’s Use of Conciliation’ (1996) 7(4) Australian Dispute Resolution Journal 280.

87.

See .

88.

See, eg, McCallum, Riley and Stewart, (n 50). See also Paul Harpur, Ben French and Richard Bales, ‘Australia’s Fair Work Act and the Transformation of Workplace Disability Discrimination Law’ (2012) 30(1) Wisconsin International Law Journal 190.

89.

Rodney Worth and Joan Squelch, ‘Stop the Bullying: e Anti-Bullying Provisions in

the Fair Work Act and Restoring the Employment Relationship’ (2015) 38(3) UNSW Law Journal 1015. 90.

See Sue Field, ‘Human Rights and Residential Care for Older Persons — an Australian Perspective’ in Helen Meenan, Nicola Rees and Israel Doron (eds), Towards Human Rights in Residential Care for Older Persons: International Perspectives (Routledge, 2015). Compare with Rodney Lewis, ‘Law: Will a Good Dose of Litigation Improve the Aged Care System?’ (2013) (Nov/Dec) Australian Ageing Agenda 26.

91.

See also Christian Behrenbruch and Grant Davies, ‘e Power of Explanation in Healthcare Mediation’ (2013) 24(1) Australasian Dispute Resolution Journal 54; Sourdin, (n 1).

92.

See Kate Curnow and Lisa Toohey, ‘A Focus on Process: Procedures to Address Disputes about End-of-Life Decisions’ (2013) 24(1) Australasian Dispute Resolution Journal 45.

93.

See Lynch, (n 25). See also Claire Baylis, ‘Reviewing Statutory Models of Mediation/Conciliation in New Zealand: ree Conclusions’ (1999) 30(1) Victoria University Wellington Law Review 279; Sue Mahan, Restoring Justice in Colombia: Conciliation in Equity (Palgrave Macmillan, 2013); Arif A Jamal, ‘Religious Authority and Constitutional Order: A Case Study of the Conciliation and Arbitration Boards (CABs) of the Shia Imami Ismaili Community’ (2013) 2(3) Journal of Law, Religion and State 235.

94.

For example, in Boyle v Ozden (1986) EOC 92-165, a teenager complainant in a sexual harassment case was extensively cross-examined by her employer’s lawyer.

95.

See Edward Brunet, ‘Questioning the Quality of ADR’ (1987) 62(1) Tulane Law Review 1; Marc Galanter, ‘Reading the Landscape of Disputes: What We Know and Don’t Know (And ink We Know) About Our Allegedly Contentious and Litigious Society’ (1983) 31(1) UCLA Law Review 4; Katherine VW Stone, Private Justice: e Law of Alternative Dispute Resolution (Foundation Press, 2000).

96.

See, eg, Anna Chapman, ‘Discrimination and Complaint Handling in NSW: e Paradox of Informal Dispute Resolution’ (2000) 22(3) Sydney Law Review 321.

97.

Rosemary Hunter and Alice Leonard, ‘Sex Discrimination and Alternative Dispute Resolution: British Proposals in the Light of International Experience’ (1997) 42 Public Law 298; Rosemary Hunter and Alice Leonard, e Outcomes of Conciliation in Sex Discrimination Cases (Working Paper No 8, Centre for Employment and Labour Relations Law, Melbourne University, August 1995).

98.

Margaret ornton, ‘e Equivocations of Conciliation: e Resolution of Discrimination Complaints’ (1989) 52(6) Modern Law Review 733.

99.

See Claire Bayliss, ‘e Appropriateness of Conciliation/Mediation for Sexual Harassment Complaints in New Zealand’ (1997) 27(4) Victoria University of Wellington Law Review 585, 605.

100. In terms of the Land and Environment Court Act 1979 (NSW) s 34(1).

101. For example, ROI Properties Pty Ltd v Council of the City of Sydney [2010] NSWLEC 22, [13]; Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192, [34]. 102. Annemarie Devereux, ‘Human Rights by Agreement? A Case Study of the Human Rights and Equal Opportunity Commission’s use of Conciliation’ (1996) 7(4) Australian Dispute Resolution Journal 280, 284. 103. See Altobelli, (n 25) 243. 104. Brian J Preston, ‘Characteristics of Successful Environmental Courts and Tribunals’ (2014) 26(3) Journal of Environmental Law 365; Worley, Charlesworth and McDonald, (n 46). 105. ornton, (n 98) 741. 106. See Peter Urwin, Franz Buscha and Paul L Latreille, ‘Representation in UK Employment Tribunals: Analysis of the 2003 and 2008 Survey of Employment Tribunal Applications (SETA)’ (2014) 52(1) British Journal of Industrial Relations 158. 107. See . 108. See further on the ACCS . 109. See, eg, Robert A Baruch Bush and Joseph P Folger, ‘Reclaiming Mediation’s Future: Re-Focusing on Party Self-Determination’ (2015) 16(3) Cardozo Journal of Con ict Resolution 741. See also Jacqueline M Nolan-Haley, ‘Mediation: e Best and Worst of Times’ (2015) 16(3) Cardozo Journal of Con ict Resolution 731. 110. ornton, (n 108) 735. 111. Menkel-Meadow refers to the possibility of ‘remedial imagination’ in informal processes: Carrie Menkel-Meadow, ‘Toward Another View of Legal Negotiation: e Structure of Problem-Solving’ (1984) 31(4) UCLA Law Review 754, 791; Carrie Menkel-Meadow, ‘Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted or “e Law of ADR”’ (1991) 19(1) Florida State Law Review 1. See also Orna Rabinovich-Einy, ‘e Legitimacy Crisis and the Future of Courts’ (2015) 17(1) Cardozo Journal of Con ict Resolution 23. 112. See, eg, the Fair Work Commission at . 113. See also, eg, Rod K Weibord, ‘e Advisory Function of Law’ (2015) 90(1) Tulane Law Review 129. See further, eg, Donna Cooper, ‘e “New Advocacy” and the Emergence of Lawyer Representatives in ADR’ (2013) 24(3) Australasian Dispute Resolution Journal 178; Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204. 114. See Rankin, (n 4) 94.

[page 311]

Chapter 10 Expert Determination and Arbitration Chapter contents Introduction Underlying values and attributes Expert determination Arbitration International determination systems Blended processes involving arbitration Lawyer involvement in arbitration Conclusion

10.1 10.3 10.8 10.32 10.53 10.76 10.86 10.88

Introduction 10.1 is chapter describes and analyses the expert determination and arbitration systems, processes less formal than litigation, but nevertheless in which the third-party non-partisan intervenor makes an authoritative determination for the relevant parties. As indicated in Chapter 4, determinative processes operate predominantly at the level of rights and obligations and intervenors make objective and usually reasoned decisions in the light of the relevant facts, evidence and applicable norms.1 10.2 Determinative processes could currently be said to be in a relative state of ux, partly as a result of pressure from facilitative and advisory DR processes, which are now increasingly perceived as being more cost-effective and time and resource efficient. is has led to adaptations to determinative processes such as arbitration. Even litigation, as will be shown in Chapter 11, is not as singularly determinative as it was once considered to be. e

roles of lawyers, discussed at the end of this chapter, are also having to adapt in this respect. [page 312]

Underlying values and attributes 10.3 ere are distinct value propositions underlying all systems in which umpires, experts, arbitrators and other individuals or institutions make decisions that are binding on disputing parties. Determinative processes are associated with Western concepts of justice through traditional approaches to upholding the rule of law in democratic systems. In terms of the DR values framework proposed in Chapter 5, determinative processes enact the justice value strongly (with its process goals of procedural and substantive justice and fairness), but are less persuasive in terms of realising the values of party autonomy (and the process goals of party participation and selfdetermination), and community (with its process goal of access to justice). 10.4 In terms of procedural justice, determinative processes are relatively robust in replicating some of the procedural safeguards found in litigation, despite operating outside the courts and the formal justice system.2 irdparty intervenors in determinative systems are generally required to have expertise, to a greater extent than in non-determinative processes, in the knowledge, skills and attitudes relevant to conducting formal proceedings: such as hearing and processing evidence, assessing witness credibility, maintaining fairness and non-partisan approaches to all parties, and providing reasons for decisions. ese factors bring determinative processes into the domain of ‘traditional’ legalism and lawyering, and processes such as arbitration and expert determination partly emulate the proceedings in courts and tribunals. e ways in which arbitration and expert determination satisfy the process goal of procedural justice will become clearer in relation to the discussion of each process below, as will the implications for lawyers and their practice. 10.5 An arbitrator or intervenor in expert determination generally has expertise in the subject matter of the relevant dispute, although this

expertise is oen augmented by witnesses, experts and submissions from each side. e normative objective framework of the law which is so strongly present in these processes ensures that levels of certainty and predictability are possible, and a nal outcome is assured. is is a signi cant point of contrast with the facilitative and advisory processes on the DR matrix. In particular, nality is an important attribute of these systems and an especially attractive aspect of their operation for clients whose previous attempts at self-help or using facilitative or advisory processes have not produced nal settlements. Final, enforceable outcomes that have legal efficacy are therefore an attraction of expert determination and arbitration when compared with facilitated and advisory processes. 10.6 Further, the procedural fairness goal of the justice value is satis ed by the fact that arbitrators and intervenors in expert determinations are non-partisan and independent vis-a-vis the disputants and the circumstances and content of disputes. [page 313] However, this does mean that their decision-making is reliant on an adversarial system of disputants and advisers adducing evidence and documents and presenting arguments and submissions in a competitive contest to advance their own cause and undermine that of the other side. Decision-makers in these processes must decide which side has the most persuasive ‘best case’, inevitably leading to one party winning over the other, and an absence of collaborative problem-solving that is possible and present in facilitated and advisory processes. 10.7 Expert determination and arbitration are therefore less re ective of the party autonomy value found in some DR systems. For example, they do not require the parties’ consent for the realisation of outcomes. However, where arbitration and expert determination operate outside statutory or court regimes there are rudimentary forms of party consent, for example in terms of choosing to enter into the respective process and agreeing to the speci c rules and procedures under which they are to operate. While

outcomes are coercive, in the sense of being binding even where one or more parties resists them, these systems are ultimately based on the parties’ joint intention to be bound and courts will order stays of proceedings where a dissatis ed party attempts to litigate matters they previously agreed should be expertly determined in one of these systems.3 Party consent is not in evidence, however, where statutes or court orders oblige parties to engage in them. As determinative processes are also more formal and costly, they are less able to satisfy the community value and its process goal of access to justice. What this means is that determinative processes such as expert determination and arbitration play a particular role in the DR matrix which is predominantly focused on the justice value and making its three key process goals for disputants possible.

Expert determination 10.8

NADRAC de ned expert determination as:

A process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner, who is chosen on the basis of their specialist quali cation or experience in the subject matter of the dispute (the expert) and who makes a determination.4

10.9 is DR process, therefore, involves parties selecting intervenors with expertise in the subject matter of a dispute with the intention that their assessment of its merits will be nal and binding on the disputants. In this respect it is similar to adjudication, arbitration and the other determinative processes. It differs, however, in terms of its legal framework, its procedures and the effect of determiners’ decisions. [page 314]

Features and procedures 10.10 Expert determination is usually triggered by contractual DR clauses which include relevant rules for its conduct.5 e contract and rules become the operative considerations in regard to how the process is

conducted, although courts can sometimes also in uence the proceedings. In multi-tiered DR clauses this option is oen further down the sequential order of processes, being triggered only if reasonable steps to resolve the dispute through, for example, negotiation or mediation have not resulted in a resolution within the designated time periods.6 10.11 In the absence of statutory authority, an expert determiner’s authority, competencies and responsibilities rest predominantly on the terms and applicable rules of the agreement drawn up by the parties. Unlike arbitration there is no comprehensive legal delineation of the functions and responsibilities of experts,7 and unlike statutory adjudication its rules and procedures are governed by the parties and not by statute. e parties’ agreement can stipulate the procedures to be followed, the scope of matters to be covered and the determiner’s envisaged roles and responsibilities in relation to such matters as exchanges of information. While the parties’ intentions are paramount, if they are ambiguous or subsequently disputed,8 this may lead to judicial scrutiny of expert determination procedures. 10.12 Respective legal regimes usually allow expert determiners to conduct proceedings in their discretion, adopting inquisitorial roles if appropriate. ey could stipulate that witnesses, evidence and crossexamination are allowed,9 and that the rules of procedural fairness apply, tilting the process in the direction of arbitration, although not necessarily bringing the process within reach of applicable arbitration regulation.10 In terms of the requirement for determiners to furnish reasons, the High Court has held that this is again a function of the underlying contract: where the parties require determiners to provide reasons they must do so, but not in as exact a form as required [page 315] of arbitrators.11 Moreover, the obligation to provide reasoned decisions does not of itself convert a determination process into arbitration. As to the enforceability of outcomes,12 in expert determinations, unlike in arbitral proceedings, this is a function of their being treated as provisions of the

contracts from which a particular process originated. Noncompliance with a determiner’s outcome therefore constitutes a breach of contract.

Distinguishing expert determination from arbitration13 10.13 As indicated above, there is some signi cance in understanding how expert determination is differentiated from arbitration. is is predominantly because there is an extensive regulatory framework relating to the latter but relatively little regulation of the former.14 e question oen arises in relation to aspects of procedure, fairness and the evidential basis of outcomes as to whether a particular determination is subject to an arbitration regime. Each of the three aspects of procedure, fairness and the evidential basis of outcomes can be indicative of whether one is dealing with an expert determination or an arbitral process, but where some factors point in one direction and others point the opposite way, it is less easy to state with certainty which is the operative process. 10.14 ere is in truth no de nitive test for differentiating expert determination from arbitration — rather, what is needed is a full contextual analysis of parties’ agreed terms and their intentions in establishing a particular process. Parties’ labels for their chosen process are not in themselves de nitive, so a functional analysis of intentions and obligations is always required. However, where a court is satis ed that disputants did not wish to use arbitration to determine their dispute, it should really be reluctant to characterise the process as arbitration, especially where it is requested to do so by a party dissatis ed with an expert’s decision.15 [page 316] 10.15 To constitute arbitration, the parties must contemplate an inquiry of a judicial nature, for example by agreeing that the decision-maker must hear their evidence and decide upon its basis. Or, as stated in Re CarusWilson & Greene, an arbitrator must decide the dispute ‘upon evidence laid before him’.16 Moreover, all evidence on which arbitrators decide must be available to all sides in the dispute. At the same time, it is not a sub-rule of

the natural justice principle that factual conclusions need to be supported by probative evidence.17 erefore, where, for example, the DR agreement excludes, directly or indirectly, a basic element of procedural fairness such as the right to be heard, this might indicate expert determination over arbitration. As the courts have indicated,18 the arbitral function is to hear and resolve parties’ opposing contentions, while an appraisal or expert decision typically involves a form of monetary evaluation of property or of loss and damage, made through specialist knowledge or skills without any speci c requirement of a hearing. 10.16 While parties should be able to consensually avoid arbitration in favour of the less regulated and legalistic expert determination process, they need to be alert to the danger that their language could be construed as an arbitration clause subject, for example, to a relevant Commercial Arbitration Act (see below). Historically, early cases held that an expert differed from an arbitrator in that arbitrators decided a dispute that had arisen between parties while expert determiners prevented a dispute from arising.19 is point of distinction alluded to the parties’ practice of agreeing in advance of actual disputes, for example while negotiating a contract, to submit de ned categories of issues to an expert when they were unable to agree on them during the contract’s performance. e expert was then intended to provide objective and independent opinions that would bind them pursuant to the parties’ agreed terms. e aim of stipulating for the use of experts in this way was to facilitate contract negotiation and performance where disagreements threatened to prevent the effective conclusion of the agreement. More recently, however, there is more use of ad hoc expert determination once a dispute has arisen, and this point of difference is less distinct. 10.17 More generally, expert determination, as opposed to arbitration, will be indicated where there is no express or implied right to give evidence in the respective proceedings and the independent intervenor makes a decision on the basis of their personal expertise and not on the basis of evidence. Even if the parties are allowed to furnish information and make submissions to better inform the decision-maker, an

[page 317] expert is still able to give them such weight as they consider appropriate, which is less feasible in the court-aligned procedures of arbitration. 10.18 Despite forensic attempts to elucidate the differences between arbitration and expert determination, there are many overlaps between the two processes: parties intend decisions to be binding; intervenors’ jurisdiction derives from party consent; parties themselves choose the intervenors or their method of selection; and intervenors are required to conduct proceedings fairly. However, in the paragraphs that follow there are further re nements on the distinction between the two systems with a particular focus on attributes that are speci c to each process.

Procedural fairness 10.19 As expert determination is not nominally a quasi-judicial process as is arbitration, and as its independent intervenors are mainly governed by their terms of engagement, this should mean that there are fewer constraints on the conduct of the process, even in relation to procedural fairness. In an age of variety and choice of DR processes it makes sense for informed parties to be able to agree that experts are able to conduct proceedings informally without being bound by rules of procedural fairness, at least in their technical sense.20 For example, the parties might require the expert determiners to base decisions solely on the evidence provided or to ensure all parties are present at all meetings. ere could, however, be an implied term in the contract appointing the expert requiring them to act fairly as between the parties in how they conduct the process.21 Con dentiality and privacy of proceedings are also functions of the parties’ agreement in relation to entering into expert determination.22 10.20 It would be undesirable, however, if express or implied requirements of procedural fairness could alone establish that a process was arbitration, and not determination, as according to the value of justice applicable across the many genres of systems in the DR matrix, this should be an elemental requirement (in one form or another) of all contemporary

DR processes.23 As discussed below, arbitrators are required to observe principles of procedural fairness in the exercise of arbitral functions. is ows from the fact that arbitration is a fusion of private law, in the form of the agreement to arbitrate, and public law, in terms of the legislation which ensures its [page 318] enforceability.24 e question then arises as to the effect of a stipulation by the parties that experts in a purely private contractual process must also adhere to rules of procedural justice. While this might historically have been a signi cant issue, the relevant branches of law now require that natural justice principles be adhered to wherever an authority, whether public or private, makes decisions affecting individuals.25 is would include expert determiners, suggesting that procedural fairness obligations imposed by contract would not necessarily tilt the process in the direction of arbitration. erefore, an engineer or architect would still be required to deal equally with the parties and act fairly when making expert determinations for them.26 10.21 Despite some potential limitations on procedural fairness obligations in expert determination, honesty and good faith will always be required on the determiner’s part in relation to their conduct in order to render outcomes binding. Where there is bias and a lack of independence, the courts will set aside determinations,27 but ‘mere’ mistakes alone will not affect them.

Courts and compliance 10.22 One might anticipate limited supervision of expert determinations by the courts, other than in relation to jurisdictional issues or determiners not following party-derived mandates. Courts should in reality be prepared to give effect to the parties’ agreements by upholding the legitimacy of expert DR processes, recognising the long-established practices of justice systems to have recourse to experts for assistance in preventing and

resolving contractual disputes. is is generally the case in practice and courts are largely supportive of expert determination, not easily allowing parties to avoid contractual commitments to the process.28 A court has, moreover, allowed DR arrangements in which different disputed issues arising out of the same project were referred variously to both arbitration and expert determination.29 10.23 Nonetheless, the courts have had to deal with situations in which one party wishes to invalidate an expert’s decision, fails to comply with the expert’s determination or attempts to bring the process within the relevant Commercial [page 319] Arbitration Act to attract its bene ts or defences. In Baulderstone Hornibrook Engineering Pty Ltd v Kayab Holdings Pty Ltd,30 for example, the DR clause provided for multiple phases, one of which involved determination by an expert. e clause required the expert to make a ‘ nal and binding’ decision and the court held that this purported to oust the court’s jurisdiction and was therefore void.31 e referral, moreover, required decisions on questions of law which also rendered the system invalid because resolving questions of law is not part of an expert’s role. e same principle would pertain where the DR protocol required an intervenor to decide various issues according to prevailing substantive law, as opposed to the expertise for which they had been selected.32 10.24 In Capricorn Inks Pty Ltd v Lawter International (Australasia),33 a party who had agreed to a simple informal expert process to resolve a dispute was later unwilling to comply with the determination. Interestingly, both parties to this process requested that the court apply legislative provisions relating to arbitration, one to enable judicial review for alleged misconduct on the ‘arbitrator’s’ part and the other for the purpose of enforcing the outcome. e court at rst instance provided a full analysis of the differences among arbitrators, valuers, assessors and experts, rejecting the fact of an existing ‘dispute’ between parties as being indicative of

arbitration. It considered this to be only one relevant consideration and held that other factors of ‘varying weight and importance’ are equally relevant to the distinction, including the nature of the inquiry and the fact, as in this case, that the appointment was to a rm of accountants rather than to a named person, as would be required for arbitration. e Full Court approved this part of the judgment, allowing the appeal on other grounds. 10.25 e Capricorn Inks case gives guidance to parties wishing to establish an expert DR process, but it also con rms that the distinctions between expert processes and arbitration are ne ones. For example, where rules for expert determination allow parties to furnish written submissions and for discretionary conferences to be held, the process, despite the label, comes closer to providing the evidential formalities and procedures associated with arbitration. However, where parties confer discretion on an intervenor to determine how any oral proceedings should be conducted, the resultant meetings need not involve adversarial procedures in which oaths are administered and each side argues its case; the procedure could instead involve a discussion that is led and directed by the expert, characterising the intervenor’s role as investigatory and inquisitorial rather than judicial.34 ere is clearly no restriction on how the parties might agree to [page 320] inform intervenors on the facts, law and evidence, but the more this is formalised, the greater the process will assume judicial characteristics indicative of arbitration. 10.26 In summarising the cumulative effective of salient jurisprudence on the procedures and reviewability of expert determination35 Peisley suggests: If the determiner makes an error, the court will look to see if the error occurred: (a) in the exercise of a judgment, opinion or discretion, which is beyond review; or (b) in relation to the objective facts or when performing a mere mechanical or arithmetical task, in which case it is reviewable. If on review, the error is unreasonable and beyond the contemplation of ‘honest businesspeople’ then it will be set aside. …36

10.27

is breadth of judicial review is ultimately a function of the

express or implied terms of the parties’ agreement and the courts’ imposition of minimalist fairness requirements on the process. If parties prescribe extensive procedures and methodologies for expert determiners, they provide certainty and protection for themselves but open the door to greater potential for court intervention; if they provide less structural certainty and more exibility there will be a reduced basis for judicial review.37

Enforceability 10.28 As to the binding nature of the decisions of expert determiners, this is also based on the parties’ intentions as contractually expressed and on the perceived purposes of the structures and procedures they design.38 e parties might intend, for example, that an expert’s opinion on technical issues is designed to assist in narrowing their differences as a basis for ongoing negotiations, in which case it would not be intended to have a binding effect. 10.29 As indicated above, where experts act outside their contract terms, they are acting in excess of the jurisdiction conferred on them, and therefore their decisions will be subject to judicial review. Review could result in a decision being set aside, for example, where an expert determiner has acted fraudulently, in bad faith or through collusion,39 or where they have not acted fairly or in a bipartisan way.40 Experts’ decisions [page 321] can be reviewed only in terms of the contract and other common law principles, whereas arbitral awards can be reviewed on a legislative basis. Where there is no breach of express or implied terms of the contract appointing an expert determiner, a court will not set aside their determination on grounds that it was wrong or that a court would have reached a different decision. One reason for this is that a court has no power to appoint another expert and if the original decision is set aside there would be nothing to substitute in its place. is would frustrate the parties’

stated intentions in relation to the resolution of their dispute.41 erefore, in the absence of statutory enforcement provisions, as are available in the context of arbitration, enforcement of an expert’s decision must ultimately be based on the underlying contract.42

Applications of expert determination 10.30 Expert determination is suitable for disputes of a technical nature where the evidence is not signi cantly in contention and there are no major issues of law needing to be addressed. In the construction eld it is a preferred DR method where there is a single discrete issue, or a few connected questions, relating to valuations, pricing or technical engineering issues which can be resolved relatively quickly and inexpensively by an expert in the particular eld. Expert determination is used in building, engineering and construction disputes, with the involvement of engineers, architects and surveyors, as allowing for quick and relatively cheap DR, compared to arbitration.43 It is oen based on an agreed set of facts but in some cases expert determiners may also have to decide on disputed factual issues. In the tribunal context, NCAT, by way of example, can refer a costs dispute in relation to conveyancing to an expert for their assessment.44 10.31 ere is some criticism in the literature over expert determination practice, given the lack of formality and supervision in relation to the process. ere are even suggestions that it might be somewhat overused in construction disputes where arbitration could provide a more appropriate forensic approach.45 Nonetheless, it remains a signi cant area of DR practice and an important part of the DR matrix. [page 322]

Arbitration 10.32 Arbitration is the DR process that most resembles litigation, so much so that it was oen omitted from the ambit of ‘ADR’ when that term

was prominent in DR circles.46 Arbitration is also sometimes referred to as a form of private litigation.47 10.33 Arbitration as a determinative, as opposed to a facilitative or advisory, process, has a predominantly rights, as opposed to interests, focus. It is a process strongly informed and impacted by contract, legislation and arbitral rules, and it is regulated by treaties and other international instruments, and has generated an extensive accompanying case law.

De ning arbitration and identifying its attributes 10.34 Arbitration is similar to litigation in terms of its procedures, the normative requirement for outcomes and the nature of its usual remedies. In the place of a judge, a sole arbitrator, or panel of arbitrators, with some degree of procedural formality, examine documents, hear evidence from parties and experts, and consider arguments and submissions. As with judges, arbitrators determine outcomes on the basis of the evidence presented, the facts found and the applicable norms (oen based on the relevant law). However, while arbitrators are judicial-like in terms of determining the admissibility and weight of evidence and allowing crossexamination, they do not exercise judicial power as such, even when arbitration is designated by a court.48 Despite, or perhaps because of, the similarities between [page 323] them, litigation and arbitration tend to ‘compete for business’, particularly in relation to commercial disputes.49 10.35 Arbitration is different from other determinative processes because, unlike expert determination and adjudication, it is a system with extensive standardising legislation and harmonising case law, despite the variations that exist in relation to its practice in speci c areas, such as construction, intellectual property, resources or shipping matters.50 is section, however, discusses only the major characteristics and broad themes of arbitration as a

DR option as there are detailed texts on the general and specialised aspects of the subject.51 10.36 e main difference between arbitration and facilitative or advisory processes is found in the determinative role of arbitrators, and the guaranteed outcomes that arbitral proceedings provide, which are not ensured in, for example, mediation or [page 324] conciliation. e uniform Commercial Arbitration Acts (CAAs),52 however, entertain the possibility of arbitrators acting as mediators, conciliators or other intermediaries during a window in arbitral proceedings.53 is option prevails when the arbitration agreement makes provision for use of the facilitated processes or where parties’ consent in writing on an ad hoc basis for this to occur. 10.37 ere have been longstanding procedural fairness and ethical tensions about arbitrators, acting as mediators, conversing with parties separately and then making binding decisions aer ex parte disclosures that the other side cannot controvert. e CAAs now expressly provide that separate discussions are permissible provided arbitrators, for the purposes of the mediation, treat any disclosures con dentially unless the disclosing party agrees otherwise.54 Where the arbitrator, as mediator, has held separate meetings with the parties and the mediation component has terminated, they can only conduct subsequent arbitral proceedings with the parties’ consent, and this consent forestalls any later objection by a party to the composite system.55 Where separate meetings have been held and the arbitration has resumed, the arbitrator is required to disclose to all parties any information obtained from one party during the separate meetings.56 is somewhat convoluted procedure is designed to manage the ethical tensions mentioned above by way of party consent and waiver. 10.38 Arbitration is triggered by DR clauses in relevant agreements among respective parties, by ad hoc decisions once parties are in dispute or by a court empowered to refer parties to the process before hearing.57

Court-ordered arbitrations occur in terms of the discretionary powers of most courts to refer disputants to one or other DR process external to the court itself. Court-referred arbitrations normally require the parties’ consent. e rationale for this is that, unlike court-referred mediations, once parties are in arbitral proceedings they will be bound by the outcome.58 ere are, however, [page 325] exceptions to this policy, such as in the Supreme Court of Western Australia where consent is not required.59 Where arbitrations are court-referred, relevant legislation or referral orders may impose requirements on arbitrators, for example in relation to acting in accordance with equity, good conscience and the substantial merits of cases, eschewing legal standards and technicalities.60 e conduct of court-aligned arbitrations will therefore be governed by a combination of requirements in referral orders, the relevant CAA and the applicable rules under which they are conducted.61 10.39 Outside of statutory contexts and court proceedings, the parties themselves can choose to go to arbitration, either on an ad hoc basis when a dispute arises or by way of an arbitration clause in the originating agreement, for example in a building, joint venture or intellectual property contract.62 Party-directed arbitrations take place outside formal justice structures before single arbitrators or panels of three arbitrators. Arbitral awards are binding only on the parties to the case, with no precedent value beyond that matter.63 e distinguishing features of these forms of arbitration are that they are private and con dential, parties select the arbitrator(s), or at least their method of appointment, third parties lack rights of participation,64 and there is a limited basis for challenging awards.65 In these respects, private arbitrations can be portrayed as true alternatives to court systems, running in parallel, and courts have repeatedly espoused the policy of giving full effect to arbitral intentions.66 10.40

Apart from its court-directed variant, arbitration is a contract-

based process in which parties delegate authority to arbitrators to make binding determinations at the [page 326] culmination of recognised or agreed procedures. Contracted arbitration proceedings are also subject to the CAAs in each state and territory. In particular, for example, procedural operations are prescribed and compliance with the relevant Act is necessary in order for awards to be enforceable. As the CAAs are all based on the UNCITRAL Model Law on International Commercial Arbitration (the Model Law),67 they effectively provide harmonised legal regimes across state and territory jurisdictions.

Procedure 10.41 In terms of their procedural responsibilities, arbitrators’ powers re ect those of courts. ey can make initial decisions on matters of organisation, for example on the location of meetings, on documents one party seeks from the other,68 on jurisdictional matters, such as whether certain aspects of a dispute fall within an arbitration clause’s ambit, and on nal orders relating to costs. However, while arbitration panels’ functions channel those of the courts, their exact powers and responsibilities in individual cases are based on the parties’ consent and applicable arbitral rules. In broad terms, however, arbitration procedures embrace the familiar features of litigation such as adversarial contestation, leading of witnesses, testing of evidence through cross-examination and delivery of a binding outcome.69 10.42 e CAAs have the objectives of providing the parties with increased in uence over procedural matters, while also attempting to prevent delays and expenses which have bedevilled the system in the past. ey also restrict the grounds on which awards can be judicially reviewed — thereby enhancing the enforceability of awards. As a result, arbitrators have broad discretions in relation to how they gather information and conduct proceedings, provided they operate within the parameters of the CAAs.70

For example, they can rule on their own jurisdiction and even where the underlying contract is invalid the arbitration provisions within it may survive its demise, thereby allowing arbitrators to persist with an arbitral process.71 10.43 Given concerns over the delays and expense of conventional arbitral procedures, various changes in arbitration rules have, over the years, provided for more exible, expedited and ‘fast-track’ proceedings. In the Australian context fast-track arbitration rules were developed by the then Institute of Arbitrators and Mediators of Australia, and are still operated by its successor, the Resolution Institute. ey are designed to provide bene ts to arbitration users, but in a congested eld of DR players they also provide attractions vis-à-vis other processes such as expert determination and mediation. [page 327] 10.44 In terms of the substantive law to be applied in arbitration, this is again a function of the parties’ choices, in the absence of which arbitrators can apply the law they consider appropriate to the circumstances.72 erefore, the normative basis of arbitral awards can be the identical law applied by the courts in the relevant jurisdiction. e CAAs, however, also provide scope for arbitrations to be determined in terms of ‘other considerations’, over and above relevant trade usages. is is a cryptic reference to parties being able to agree that arbitrators act as amiable compositeurs73 and decide according to the equity, justice and good business sense of the situation.74 Whatever the applicable substantive norms, arbitrators must justify their outcomes in terms of them, and do so in written awards which include reasons for their decisions.75

Enforceability and the courts 10.45 e overriding objective of commercial arbitration regimes is that awards will be binding and enforceable. For this reason, the courts can set aside awards only in limited circumstances, as prescribed by the CAAs and

re ned in the jurisprudence of the courts themselves.76 ese grounds are both procedural and substantive in nature.77 Procedural grounds relate, among other things, to time limits for making applications to set aside awards, the composition of the tribunal, and failure to afford parties opportunities for full participation in proceedings. Substantive grounds include the validity of the underlying arbitration agreement, the arbitrators’ jurisdiction and awards con icting with relevant public policy. 10.46 erefore, an arbitral award can be set aside where there are expressions of partiality on the arbitrator’s part, parties have not been treated equally during the procedure, or they were denied reasonable opportunities to present their case.78 Arbitration panels must also have had rationally probative evidence for their awards in order for them to be judicially sustained. However, the setting aside of an award is a discretionary matter for the courts, and when deciding whether to set an award aside or not, they are required to balance the various competing interests at stake.79 [page 328] 10.47 ere is also scope for appeal to the courts, with the consent of the parties and leave of the court.80 Appeals are only allowed on questions of law which would substantially affect the rights of the parties and there is no general right of appeal on the correctness of awards, although the court could set aside an award if it is clearly wrong in the light of the factual ndings made by the arbitral tribunal. ere is also scope for review of interim decisions. For example, a party dissatis ed in relation to an arbitrator’s interim discovery order could seek court review of the decision, aer which the arbitration would continue in the light of the court decision.81 ese examples highlight the potential interface between arbitration and the courts, even though arbitration does have partial autonomy from formal justice systems.82 10.48 e apparent autonomy of arbitration is also undermined by the fact that arbitrations operate within a framework of regulation which provides the basis for court challenges over arbitrators’ jurisdiction,

procedures and awards. erefore, a delicate balance must be struck between the two systems. Indeed, the courts are conscious of the need to respect the capacity of arbitrators to make decisions on contested issues, on the proviso that they comply with basic principles and standards, derived largely from judicial attitudes, as to what constitutes appropriate forensic procedure. However, if arbitrators transgress the regulatory framework, the courts will intervene. is supervision of arbitrators’ functions extends to basic principles of legality and the rule of law, with the courts sometimes expressing criticism of arbitral procedures or the way they are contractually enjoined.83 Conversely, arbitrators, and disputants, are cognisant of the fact that the courts will not interfere in their activities provided they do comply with judicially endorsed procedural standards. ere remains, however, a clear interface between arbitration and the courts. 10.49 Court involvement can also be invoked in other ways: for example, where the parties have committed themselves contractually to arbitration and one side brings legal proceedings without rst arbitrating, the other can request, and in appropriate circumstances obtain, a stay of court proceedings until there has been compliance with the arbitration requirement.84 [page 329] 10.50 Generally, Australian courts have, over the years, come to take ‘proarbitration stances’, for example in interpreting the scope of arbitration agreements and upholding arbitral awards, both domestic and international.85 is has extended to the development of a presumptive principle that where a party initiates legal proceedings in a dispute which falls within the scope of an arbitration agreement, the innocent party should be awarded indemnity costs for the other’s failure to comply with their obligations.86 e underlying philosophy of this approach is that where commercial parties consent to arbitration for dealing with their disputes, they should be held to their bargain.

Applications of arbitration 10.51 One of the oldest applications of arbitration in Australia was in the industrial eld, dating to the rst decade of federation.87 However, over its history arbitration has been most closely associated with building and construction disputes. It is now also encountered in general commercial, intellectual property and family law contexts88 and institutional arbitrations are provided by a range of service providers.89 10.52 ere has, however, been a decline in the use of arbitration in some contexts, which Condliffe90 attributes to three factors: greater disputant choice of DR process, as re ected throughout this book, the proliferation of tribunals which determine disputes through relatively informal proceedings,91 and the adverse publicity visited [page 330] on arbitration when prominent cases go wrong.92 Nonetheless, arbitration can still have distinct advantages for some disputants and disputes and it remains an important feature of the DR matrix. As is clear from the analysis, arbitral awards have higher levels of direct enforceability than determinative processes such as expert determination and adjudication and they are functionally as binding as court determinations.

International determination systems 10.53 International DR processes can be categorised into similar systems that are familiar in Australian domestic DR contexts; namely, arbitration, adjudication and blended determination systems.93 ey warrant separate treatment, however, due to the different levels of enforceability of international tribunals. In the international domain, enforcement of DR outcomes is a function not only of relevant legal rules and procedures but also of international relations, political constraints and economic realities. 10.54 e various international determination bodies, and their jurisdictions, differ vastly but have in common the fact that they derive their

authority from international treaties or conventions, they primarily apply norms of international law and they have traditionally had jurisdiction only over nation states — although as shown later in relation to investment disputes this is no longer a universal feature. is is also an area in which terms do not always travel across borders from domestic to international contexts without changes of meaning. (International ‘courts’, such as the International Court of Justice, are dealt with in Chapter 11 on litigation.) 10.55 International disputes are those arising between relevant actors from two or more nation states.94 International law traditionally recognised sovereign states as the only legal entities with rights, duties and remedies. Contemporary international law, however, recognises that other entities can have some degree of international personality and standing, such as intergovernmental organisations, international nongovernment organisations (NGOs), transnational corporations, and even individuals. As a consequence, international disputes may now potentially involve one or more of these non-state actors. [page 331] 10.56 A feature of the globalised legal system since the 1990s is the increased number of international adjudicatory bodies and the enhanced use of those previously in existence.95 While this trend has been accompanied by increasing use of DR processes such as mediation and conciliation, the non-determinative processes have ourished less internationally than they have in domestic jurisdictions, although with the signing of the Singapore Convention on Mediation in 2019, this may now change.96 Nevertheless, in overall terms most international law con icts and claims are managed outside judicial fora, and diplomatic channels are more likely to be used for this purpose than determinative processes. Reference is made here to determinative arrangements in which Australia has the potential to be a party.97 10.57 International disputes have characteristics that differentiate them from domestic counterparts. ere is, for example, a limited number of

potential state disputants,98 even with the inclusion of international organisations, and these bodies are in constant interaction with one another. e longstanding interdependence of these actors has been reinforced in past decades by the forces of economic globalisation, instantaneous global communications and mass international movements of people. In these respects, disputes are less likely to be with ‘strangers’ than is the case in domestic DR contexts. is means that it is harder to view disputes in isolation from other international relationships, either between disputants themselves or in relation to other routine participants in global matters. In issues of trade, in particular, applicant and respondent states in one dispute may anticipate a reversal of roles in another. erefore, factors extraneous to the presenting issues in the actual dispute could impact signi cantly on the effectiveness of any DR process attempted, on the parts played by nondisputants and on DR outcomes. 10.58 International disputes, moreover, are usually polycentric in character, both in matters of substance and in the interests of various participants. To some degree all international actors have interests in every international economic or political dispute, even when not directly involved as parties. e public setting of international disputes, combined with the interdependence of international actors, means there are few strictly bilateral disputes, as there are in domestic contexts. Moreover, while international institutions, such as those of the various bodies of the World Trade Organization, make determinations on issues of trade law, the outcomes have political, social and economic dimensions for global society. 10.59 e predominantly statist orientation of the international legal order may reduce the effectiveness of DR processes where disputes do not t within this framework. e causes and effects of some disputes transverse state boundaries. For [page 332] example, environmental degradation, carbon pollution, contagious diseases, movement of refugees and security concerns do not t easily within

traditional concepts of state territorial jurisdiction and control, and may be immune from international DR procedures. Moreover, the true disputants may not be the countries themselves but the individuals and corporations whose interests are subsumed within the identity of a particular state. In this regard, the interests of non-state actors must be presented and advocated for by a nation state, for example under traditional rules of state responsibility for injuries to aliens. If there is no such state the interests will not be represented at all, although as already noted, there are instances where NGOs and individuals can appear in their own right before international DR bodies.

International commercial arbitration 10.60 International arbitration has several attractions as a DR process for commercial enterprises operating across national borders, greater than those of mediation, litigation99 and other DR processes.100 In the rst place there is a degree of harmonisation of arbitration procedures across many jurisdictions to the extent that this system has fewer national idiosyncracies than litigation. Harmonisation has been promoted through the UNCITRAL Model Law on International Commercial Arbitration (Model Law) which has been adopted in many states, including Australia, and which results in signatory jurisdictions enacting similar regulatory regimes for arbitration practice.101 In Australia, the salient provisions of the Model Law were incorporated into domestic law through amendments to the International Arbitration Act 1974 (Cth) (IAA),102 and revision of the aligned CAAs during a period of intensive legislative activity in relation to arbitration, both domestic and international.103 [page 333] 10.61 e second major bene t of arbitration in the international domain is that awards can usually be enforced in jurisdictions other than those in which they were made. is is a product of the New York Convention (NYC),104 which requires signatory states to provide for domestic

enforcement of ‘foreign’ awards from jurisdictions other than those of the enforcing court. As a signatory to the NYC, Australia gave effect to its principles through amendments to the IAA.105 In practical terms this commitment entails, for example, that where mining company Z in Zambia secures an arbitral award against services company A in Australia, Z can bring an application to enforce its award in Australian courts where A has assets.106 Conversely, A might bring an application locally to set aside the foreign award made in Z’s favour, in which case the enforcing court is required to consider whether there are grounds under the NYC to resist enforcement.107 10.62 ere are, inevitably, exceptions to the enforcement right, enumerated in the NYC, the Model Law and the CAAs. ese are designed to ensure the regularity and authenticity of foreign arbitral awards, as well as the right of an enforcing jurisdiction to resist enforcement because of policy considerations relevant to its legal norms and societal values. us a respondent might contend that public policy has been offended by the absence of a proper hearing,108 by lack of evidence to support an arbitrator’s ndings of fact,109 or by an award being based on an arbitrator’s own opinions.110 Modern courts, however, stress that they will only exercise sparingly their discretion to refuse foreign award enforcement, avoiding in particular the over-extensive analysis of factual ndings, as might be undertaken by appellate courts,111 in favour of upholding principles of certainty and nality for awards.112 However, nality is not the same as legality and courts will still consider the latter where awards are challenged. Outside the exceptions allowing non-enforcement, foreign award enforcement is as effective as that of domestic court judgments. [page 334] 10.63 Despite longstanding judicial policy to reinforce the nality of arbitral awards, a constitutional challenge was mounted to the Model Law in 2013.113 e contention was that because the Model Law effectively renders awards determinative in nature,114 it precludes the courts from authentically exercising their judicial powers, thereby conferring judicial power on

arbitral tribunals. e High Court rmly rejected the constitutional arguments. First, where parties voluntarily submit an international dispute to arbitration, they supersede their original rights and obligations and agree to be bound by the resultant award. is is reinforced by the principle of party autonomy, espoused by the Model Law,115 in relation to both procedural and substantive rules governing an arbitration which leave little scope for courts to set aside awards for errors of law.116 Arbitral decisionmaking, further, does not amount to an exercise of judicial power as courts can still review the validity of awards, for example in terms of public policy — as the High Court was in fact doing in the instant case. Commentators have emphasised the signi cance of the High Court’s judgment generally, and in particular its emphasis on the need to interpret the Model Law in terms of its international genesis and not in terms of narrow local factors.117 10.64 e High Court’s line of reasoning referred to in the previous paragraph affirmed the ‘arbitration friendly’ nature of the local Australian jurisdiction.118 Many holders of high judicial office, politicians and bureaucratic policy-makers, have been articulating this policy for over a decade in pursuit of Australia becoming an international arbitration hub.119 Besides these statements of intent, the amendments to the IAA Act, incorporation of the Model Law into the CAAs and the Federal Court’s inclusion of international commercial arbitration as a practice area in its National Court Framework have all contributed to the goal. As the designated court in many such cases the Federal Court has had a steady jurisprudence of interpreting arbitration clauses as liberally as possible.120 At the same time it has to be conceded that there is mixed evidence in Australian law on the pro-arbitration policy.121 [page 335] 10.65 e international dimensions of arbitration came together in a well-publicised Formula One (F1) case in 2015. In the hours preceding the Australian Grand Prix a F1 team driver, Van der Garde, sought enforcement in a Victorian court of an arbitral decision rendered earlier in Switzerland which held that he was entitled to a position on the respective team.122 He

had in fact been omitted from the team before the race in favour of two rival drivers.123 e arbitral award was somewhat inelegant: it held that the team was to refrain from conduct which could have the effect of depriving him of his contractual entitlements for the 2015 season and Van der Garde was in effect seeking speci c performance of these entitlements. 10.66 As the race was imminent, the Supreme Court heard the case as a matter of urgency. e team and rival drivers contended that the award should not be enforced in Australia in terms of the exceptions to enforcement, referred to above, contained in the IAA and the NYC. ey submitted, inter alia, that the new drivers had not been parties to the earlier arbitration proceedings and to enforce the award and deprive them of their team positions would be in breach of procedural fairness and against public policy. In rejecting the contentions, Cro J referred to the genesis of the revised Australian legislation in relation to both the Model Law and the NYC and highlighted the extent to which these instruments prioritise arbitrators’ independence, autonomy and authority. In honouring the autonomy of the previous arbitration, Cro J acknowledged that the new drivers were not involved in that proceeding, the validity of which would affect their livelihoods, but held that a court could not hold that every time persons affected by arbitral outcomes were not invited to join proceedings it would amount to a breach of procedural fairness and result in the court declining to uphold awards.124 In enforcing the award, the Victorian court granted an order identical to that of the arbitrator. 10.67 An urgent appeal against the decision of Cro J was summarily dismissed, the appellate court holding: In order to establish that the enforcement of an award would be contrary to public policy by reason of a breach of natural justice what must be shown is real unfairness and real practical injustice. Courts should not entertain a disguised attack on the factual ndings or legal conclusions of an arbitrator ‘dressed up as a complaint about natural justice’. Errors of fact and law are not legitimate bases for curial intervention. Unfairness in any particular case will depend upon context, and all the circumstances of that case.125

[page 336]

10.68 is matter illuminates the fact that foreign arbitral awards will be enforced in jurisdictions such as Australia unless there are compelling reasons for the domestic court not to do so. ere are incentives for this approach as domestic jurisdictions compete with one another in the ‘arbitration-friendly’ stakes. Much is made by commentators of the trend, particularly in the Federal Court, to conform to international arbitration policies in preference to local imperatives.126 Ideally, Australian courts need to adopt commercial, as opposed to legalistic, approaches to the interpretation of arbitration agreements, particularly where jurisdictional defences are raised, as is oen the case.

Arbitration in investment and trade disputes 10.69 From an international law perspective, the system of arbitration for cross-border investment disputes is signi cant because panels of private arbitrators can hold nation states liable at the behest of non-state actors such as transnational corporations and private individuals.127 A foreign investment dispute occurs where an investor from one country (the home state) alleges that the government of the country in which it has invested (the host state) has breached its international obligations by negatively affecting the value of its investments without providing the appropriate compensation for its losses. e alleged breach could arise, for example, from direct expropriation of factory assets or from the indirect effects of regulatory activities in areas of health and the environment. e rights, duties and remedies of foreign investors, host states and home states are regulated by international contracts and, more signi cantly for present purposes, by bilateral investment treaties (BITs) and investment chapters in trade agreements. 10.70 A standard feature of BITs is a DR clause providing for investor– state dispute resolution (ISDS). In most cases, ISDS consists of arbitration conducted by the International Centre for the Settlement of Investment Disputes (ICSID).128 ICSID also provides conciliation services for investment disputes, but these are rarely used because of host states’ concerns for national sovereignty in a negotiation context and foreign investors’ concerns over the high nancial stakes involved.

10.71 In 2012 Philip Morris Pty Ltd (PM) brought an investor claim against Australia in terms of the ISDS clause in the Australia–Hong Kong BIT.129 e claim [page 337] arose out of Australia’s ‘plain packaging’ legislation which required tobacco products to be sold in uniform packaging with graphic health messages and without any corporate branding. PM claimed that this amounted to an unconstitutional expropriation of its intellectual property rights without compensation130 — an argument rmly rejected, for the purposes of Australian constitutional and domestic law, by the High Court. is domestic validation did not preclude PM from pursuing a claim in international law that the legislation in question involved breaches of Australia’s BIT obligations. is is what it did. 10.72 e investment claim was heard through the Permanent Court of Arbitration under the UNCITRAL Arbitration Rules and, as is usual in these cases, the tribunal made several procedural orders, over issues such as where the arbitration would be held, whether the tribunal had jurisdiction,131 and how con dential the proceedings would be, all before the merits were to be considered. ese issues led to the ‘bifurcation’ of proceedings in terms of which some jurisdictional objections were heard at a preliminary stage, aer which the substantive merits would have been considered. As it transpired, the proceedings terminated on a question of jurisdiction, namely, whether the establishment of PM’s presence in Hong Kong aer the Australian Government had announced its plain packaging policy effectively denied it jurisdiction under the BIT. e arbitration panel upheld the jurisdictional defence.132 10.73 e plain packaging arbitration brought to the surface longstanding concerns over ISDS.133 Many countries, particularly in the developing world, have contended that the system is inequitable in allowing large transnational corporations to call them to account, as host countries, through arbitration for changes in their domestic policies even though,

unlike outright asset expropriation, they have only indirect effects on the value of foreign investments. Australia’s policy has uctuated in this regard. Until 2012 it supported inclusion of ISDS but in that year the government announced it would discontinue pursuing inclusion of ISDS clauses in trade and investment treaties.134 From 2013 the policy changed again, this time to a ‘case-by-case’ basis — an ISDS [page 338] clause was included in a 2013 trade agreement with Korea but not in a 2014 agreement with Japan.135 10.74 e proliferation of DR tribunals at the international level means that there can be inconsistencies not only between the international forums but between these and the domestic bodies. is is exacerbated by the choices, known as arbitrage options, which states and corporations have in terms of selecting jurisdictions that will best suit their needs and interests. For this reason, an alleged breach by a host state of a contract with a foreign investor could result in proceedings in either domestic courts or international arbitration.

Arbitration in international consumer disputes 10.75 While enforcement of arbitration decisions in relation to business, foreign investment and trade disputes has a developed legal infrastructure, these arrangements are not always appropriate for international arbitral awards arising from consumer disputes.136 In international consumer disputes the nancial stakes are relatively small and there are imperatives to avoid the high transaction costs associated with traditional arbitration, resulting in increased usage of online arbitral systems which might not always satisfy the prerequisites for enforcement under existing frameworks.137 ere are therefore arguments for bilateral arbitration treaties for the special needs of small businesses to access justice in the international space.138

Blended processes involving arbitration 10.76 ere are a number of blended processes involving arbitration combined in various formats with mediation or conciliation systems. ese blended approaches have the potential to offer the values and goals of facilitated processes with the achievement of levels of self-determination and party autonomy, along with procedural and substantive justice outcomes. [page 339]

Med-arb, med-arb-med and arb-med 10.77 Med-arb is a blended process in which mediators or conciliators initially conduct facilitative interest-based proceedings in which they support the parties to make their own decisions.139 Where these endeavours result in settlements, the proceedings conclude and the facilitated outcomes prevail. Where there is no settlement, or settlement on only some issues in dispute, the intervenors change gear and an arbitration or other likedeterminative process is conducted with a rights-based focus. e second part of the system guarantees the outcome which mediation on its own cannot provide. Where the mediation component secures some agreement, for example on the liability question, and the arbitration determines others, such as damages, the nal outcome is a combination of agreed and determined issues. 10.78 Unlike a tiered DR system in which mediation is followed sequentially by a separate and independent arbitration, there is in med-arb a structural connection between the processes, the initial mediation providing a foundation for the subsequent arbitration. ere are two key variations in med-arb procedure. In the rst, the same intervenor conducts both mediation and arbitration (med-arb (same)) and in the second, a different intervenor is engaged to conduct the arbitration (med-arb (diff)). Each variation has its strengths and shortcomings. Med-arb (same) has advantages in terms of time and resources as the same intervenor can pick up in arbitration where they le off in mediation, but it raises ethical

concerns about use in the arbitral phase of information disclosed con dentially in separate mediation sessions, although the system could be re-engineered to avoid these sessions entirely. Med-arb (diff) has the advantage that each component of the blended system can be conducted in authentic style, including the convening of separate meetings, but it requires a protocol for a second intervenor to be identi ed, appointed and briefed before the second phase begins. 10.79 Two additional med-arb approaches are also used. In med-arbmed, the process outlined above occurs but aer the determination has been made, the parties [page 340] reconvene to mediate how to operationalise the settlement outcomes. e arb-med process reverses the procedural sequence of med-arb in a composite arrangement conducted by the same intervenor. Arb-med culminates in mediation and not a determination but the arbitral decision remains determinative if there is no mediated settlement and is only super uous where this is not the case. 10.80 In 2012 QCAT introduced an arb-med system, officially designated ‘hybrid hearings’, into its extensive spectrum of DR processes.140 While no longer practised as commonly as it was, it provides an instructive example of what might be possible in the development of blended processes attached to tribunals. e relevant practice direction noted the tribunal’s obligations to deal with disputes through procedures that are accessible, fair, just, economical, informal and quick — a now common statutory injunction to tribunals and commissions, notwithstanding some inconsistencies among these imperatives. e arb-med practice direction noted that in some tribunal proceedings when parties do not reach agreement during an ‘ADR process’ it is not practical to list the matter for a later hearing date.141 e tribunal, in response, developed what it calls a ‘hybrid hearing’ process in terms of which parties rst attend a hearing and immediately thereaer participate in mediation. e initial hearing, conducted by a tribunal

member, was public, adversarial in nature and involved evidence, crossexamination and argument. At the end of the hearing, the member recorded their reasoned decision which was sealed and remained undisclosed to the parties. 10.81 A subsequent mediation then occurred, justi ed on the basis that each party had heard the evidence and arguments of the others and mediation provided them with an opportunity to create agreements themselves rather than have decisions imposed on them. is had the potential advantage that consensual outcomes can produce more creative remedies than the tribunal could order and are more likely to be honoured by the parties. Moreover, members officiating at mediation could open lines of communication between parties in ways not possible in hearings, a feature of signi cance where working relationships are to continue into the future. 10.82 As the above description indicates, the mediation element was conducted by the same QCAT member who presided at the hearing but as the decision had already been made there was no inhibition on the separate meetings with each party as occur in ‘standard’ mediation proceedings. at is, unlike in a med-arb process, members cannot be affected by separate session disclosures, their determinations already having been made. e composite system therefore faced reduced grounds for challenge for ethical and procedural fairness reasons, although statements made at the mediation [page 341] still remained con dential. ere were two possible eventualities at the mediation’s conclusion. e rst was that the parties reached terms of settlement, in which case the member recorded the outcome, made orders to give it effect and destroyed the sealed version of the initial decision. e second was that no mediated settlement agreement resulted, in which case the sealed decision was opened and read into the record and the member made orders to give it effect. 10.83

Arb-med is also available outside regulatory settings and some

service providers offer the system on a commercial basis. However, there is no sustained demand for this blended system, partly perhaps because it requires parties to commit to the resources, time and dynamics demanded by two separate processes. Med-arb, despite its critics, has secured greater support in DR markets and among policy-makers.

Arb-med-arb 10.84 e blended arb-med-arb process involves the initiation of an arbitration process, followed by its early adjournment to allow for the conduct of a mediation. At the culmination of the mediation its outcomes are brought back into the arbitral system to provide the basis of a consent award, or for arbitral proceedings to resume, as the circumstances demand.142 As noted earlier in this chapter, this system is available for domestic arbitrations in Australia in terms of the uniform CAAs. Subject to the quali cations and conditions set out in the Acts, this arrangement not only allows for the operation of arb-med-arb (same) and arb-med-arb (diff) in domestic law, but it resolves some of the procedural fairness concerns arising from the same intervenor performing more than one function in the same dispute. 10.85 Arb-med-arb used to have particular advantages for international disputes, because it could circumvent the disadvantages which mediation suffered in terms of legal enforcement across national borders. With the signing of the Singapore Convention on Mediation on 7 August 2019, however, this disadvantage of mediation has been recti ed. Some private agencies provide arb-med-arb for international disputes; for example, in Singapore the international arbitration centre and mediation centre collaborate to [page 342] provide blended processes.143 In this context, arbitration procedures are stayed so cases can be submitted to mediation and they resume on noti cation that there have been no mediated settlement agreements. Where

there is a settlement, parties can request the arbitral tribunal to make a consent award in its terms.

Lawyer involvement in arbitration 10.86 As suggested previously, determinative DR processes, such as arbitration, operate within the purview of traditional notions of legal procedures and lawyer functions. Of all the DR processes, other than litigation, they are the most compatible with adversarial, procedurally formal and legalistic lawyer behaviours. erefore, depending on the statutory context and applicable rules, they could allow lawyers to engage in all aspects of legal representation — advising, negotiation, positional bargaining, advocacy, cross-examination, procedural challenges, submissions and appeals. is does not preclude practitioners involved in the determinative processes from displaying aspects of ‘new lawyering’, such as consensus-building, interest-based negotiation, problem-solving and promoting creative remedies and outcomes. However, in arbitration in particular, lawyers have contributed to the legalism, technicality, judicial involvement and case law development at levels more extensive than in other non-court processes such as mediation or expert evaluation.144 10.87 Practice associated with the arbitration system requires lawyers to be familiar with the particular strengths and shortcomings of the process and to be able to advise clients on its appropriateness and viability in comparison to other available options. Moreover, the close connection between the domestic CAAs and the international Model Law and NYC requires Australian lawyers to be conversant not only with the implications of the global instruments for their arbitral practices but also to take account of interpretations in other jurisdictions, given the objectives of the Model Law to be applied uniformly across domestic legal systems.145 [page 343]

Conclusion

10.88 is chapter described and analysed the expert determination and arbitration processes of DR, determinative approaches, with variants, that result in nal and binding outcomes for disputants. ese processes operate predominantly at the level of rights and obligations. Expert determiners and arbitrators are usually required to make objective and reasoned decisions in the light of relevant facts, evidence and applicable norms. e next chapter deals with DR in the context of courts and tribunals conducting litigation and other hearing proceedings. 1.

See also the discussion of the range of diverse determination processes in Chapter 4 and references there. See further Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020) ch 6; Bobette Wolski, Skills, Ethics and Values for Legal Practice (omson Reuters, 2nd ed, 2009) ch 7.

2.

See NADRAC’s acknowledgment that these procedural safeguards could be lost in ADR processes: National Alternative Dispute Resolution Advisory Council, Discussion Paper on Issues of Fairness and Justice in Alternative Dispute Resolution (Commonwealth of Australia, 1997) 16.

3.

See Ipoh v TPS Property No 2 [2004] NSWSC 289 (16 April 2004).

4.

See NADRAC, Dispute Resolution Terms (Australian Government, 2003) 4. See also Alisa Taylor, ‘With Great Power ere Must Also Come Great Responsibility: Reining in Unbridled Expert Determinations’ (2017) 28(3) Australasian Dispute Resolution Journal 196; Shane Campbell, ‘Expert Determination as Dispute Resolution in New Zealand’ (2020) 30(2) Australasian Dispute Resolution Journal 142.

5.

See, eg, the model expert determination clause developed by the Queensland Law Society (QLS): and Model Dispute Resolution Clauses in the Fair Work Regulations 2009 (Cth) reg 6.01. Note, however, that as with arbitration clauses, those implementing expert determination will be of no effect if they purport to oust the courts’ jurisdiction.

6.

See, eg, the QLS model clause (n 5) 1.2(c).

7.

It is settled law that statutory provisions relating to arbitrators do not apply to expert appraisers or valuers. See Re King and Acclimitisation Society [1913] St R Qd 10, cited by McPherson J in Capricorn Inks v Lawter International [1989] QR 8, 15.

8.

Parties may make it clear that they intend to distinguish between processes but without de ning them. For example, in Abigroup Contractors Pty Ltd v Trans eld Pty Ltd and Obayashi Corp [1998] VSC 103 (16 October 1998), the clause stated: ‘Any dispute not resolved by mediation or expert determination … must be resolved by arbitration’.

9.

However, normally witnesses cannot be compelled to provide evidence in this context.

10.

Note, however, that the parties’ designation of a process as expert determination does not necessarily preclude it from being found to be an arbitration.

11.

Shoalhaven City Council v Firedam Civil Engineering Pty Ltd [2011] HCA 38, [40] (French CJ, Crennan and Kiefel JJ).

12.

For Australian commentary on the enforceability of expert determinations, see Case Notes, ‘e Binding Nature of an Expert Determination’ (2012) 23(1) Australasian Dispute Resolution Journal 3; Troy Peisley, ‘Impugning Expert Determination: When Does an Error Justify Setting Aside a Determination?’ (2011) 22(4) Australasian Dispute Resolution Journal 247; Campbell Logan, ‘Final and Binding Expert Determination and the Discretion to Stay Proceedings’ (2005) 16(2) Australasian Dispute Resolution Journal 104. See also further discussion below.

13.

See Nick Rudge and Nicholas Gallina, ‘When is an Expert Determination Process not an Arbitration?’ (2007) 117 Australian Construction Law Newsletter 47. See also Martin Valasek and Frédéric Wilson, ‘Distinguishing Expert Determination from Arbitration: e Canadian Approach in a Comparative Perspective’ (2013) 29(1) Arbitration International 63; Steven H Reisberg, ‘What is Expert Determination? e Secret Alternative to Arbitration’ (2013) 250(115) New York Law Journal 3; Gabrielle Kaufmann-Kohler and Antonio Rigozzi, International Arbitration: Law and Practice in Switzerland (Oxford University Press, 2015) 10–13.

14.

See Terry Burke and Christine Chinkin, ‘Expert Appraisal as a Viable Alternative to Arbitration and Litigation’ (1989) 6 International Construction Law Review 401; Philip Davenport, ‘Experts and Arbitrators: No In-Betweens’ (1992) 30(10) Law Society Journal 60.

15.

See Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307 on the distinction between the two in the context of legislation which proscribed arbitration clauses.

16.

Re Carus-Wilson & Greene (1886) 18 QBD 7.

17.

See TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electonics Pty Ltd [2014] FCAFC 83. is highlights arbitration’s more exible evidential imperatives than those that apply in litigation.

18.

Capricorn Inks Pty v Lawter International (Australasia) [1989] 1 Qd R 8, 39. It has long been held that a heading or label such as Arbitration in a DR clause is not necessarily determinative as to the nature of the contracted process; it all depends on the actual wording of the clause: Hammond v Wolt [1975] VR 108, 112.

19.

Re Carus-Wilson & Greene (1886) 18 QBD 7. In Sutcliffe v ackrah [1974] All ER 859 and Arenson v Casson Beckman Rutley [1977] AC 405, the House of Lords reverted to the importance of the existence of a dispute in respect of arbitration.

20.

See Sir Laurence Street, ‘Binding and Non-binding Expert Appraisal’ (1990) 1(3) Australian Dispute Resolution Journal 133, 134.

21.

In Capricorn Inks Pty v Lawter International (Australasia) [1989] Qd R 8, the

accountant expert was held to have acted outside his contract terms in receiving information from one side without the knowledge of the other. 22.

See, however, Jenny Forsberg. ‘A Certain Uncertainty: e Duty of Con dentiality in International Commercial Arbitration’ (Bachelor thesis, Lund University, 2013) .

23.

In relation to mediation, eg, procedural fairness is provided for in the National Mediator Accreditation System (NMAS), Practice Standards, cl 7 ‘Procedural Fairness and Impartiality’.

24.

See, eg, Karl E Klare, ‘e Public/Private Distinction in Labor Law’ (1982) 130(6) University of Pennsylvania Law Review 1358; Stephen J Ware, ‘Is Adjudication a Public Good? “Overcrowded Courts” and the Private Sector Alternative of Arbitration’ (2013) 14(3) Cardozo Journal of Con ict Resolution 899; Judith Resnik, ‘Diffusing Disputes: e Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’ (2015) 124(8) Yale Law Journal 2804.

25.

See Forbes v New South Wales Trotting Club (1979) 143 CLR 242, 275 (Murphy J).

26.

For example, when carrying out certi cation duties under a contract — Sutcliffe v ackrah [1974] AC 727; Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 1 QB 644, 670.

27.

See 500 Burwood Highway Pty Ltd v Australian Unity Ltd [2012] VSC 596; Glenville Projects v North Melbourne [2013] VSC 717.

28.

e Heart Research Institute Pty Ltd v Psiron Ltd [2002] NSWSC 646.

29.

See Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2008] QCA 160. Where evidence and questioning are required to assess reliability and credit, then expert determination may be an inappropriate DR process.

30.

Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1997) BCL 277.

31.

As an expert had already been appointed, the defendant was permanently restrained from proceeding with this stage of the DR process.

32.

Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (unreported, SC (WA) Heenan J, 2 December 1997).

33.

[1989] 1 Qd R 8. See Philip Davenport, ‘Expert Appraisal Challenging an Award’ (1990) 28 Law Society Journal 49.

34.

On the need for care in de ning the expert process so as to exclude a formal hearing (and arbitration), see Street, (n 20) 135.

35.

See Legal and General Life of Australia v A Hudson Pty Ltd (1985) 1 NSWLR 314; Holt v Cox [1997] NSWSC 144; and AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173.

36.

Peisley, (n 12) 257.

37.

Ibid.

38.

See Street, (n 20) 133. See also Robert Hunt, ‘e Law Relating to Expert Determination’ (2008) .

39.

Gollin v Karenlee Nominees Pty Ltd [1982] VR 493, affirmed by the High Court (1983) 49 ALR 135; cf Legal & General Life of Australia v A Hudson Pty Ltd [1985] 1 NSWLR 314.

40.

Nick Fletcher and Peter Megens, ‘When your “Independent Expert” is not so Independent’ (2013) 51(4) Law Society Journal 46.

41.

See Bruce McPherson, ‘Arbitration, Valuation and Certainty of Terms’ (1986) 60(1) Australian Law Journal 8, 11.

42.

While arbitrators are immune from actions arising out of alleged negligence, experts are not — see, eg, Legal & General Life of Australia v Hudson Pty Ltd [1985] 1 NSWLR 314.

43.

See generally Antonio A de Fina, ‘Expert Determination: Misconception and Misapplication’ (2014) 30 Building and Construction Law Journal 368.

44.

Conveyancers Licensing Act 2003 (NSW) s 44.

45.

See Paul Bradley and Stephen Boyle, ‘e Overuse of Expert Determination by the Australian Construction Industry’ (2012) 24(6) Australian Construction Law Bulletin 97, 99.

46.

Vestiges of this attitude persist — eg, the Australian Small Business and Family Enterprise Ombudsman Act 2015 (Cth) speci es that ‘ADR’ does not include arbitration (see s 4). See also, generally, Joe Isaac, e New Province for Law and Order: 100 Years of Australian Industrial Conciliation and Arbitration (Cambridge University Press, 2004); Jean-François Poudret and Sébastien Besson, Comparative Law of International Arbitration (Sweet & Maxwell, 2007); Simon Greenberg, Christopher Kee and J Romesh Weeramantry, International Commercial Arbitration: An Asia-Paci c Perspective (Cambridge University Press, 2011); Doug Jones, Commercial Arbitration in Australia (Lawbook, 2nd ed, 2013); Alex Baykitch, Arbitration Law of Australia: Practice and Procedure (Juris Publishing, 2013); Walter Mattli and omas Dietz, International Arbitration & Global Governance Contending eories and Evidence (Oxford University Press, 2014). See also Annie Leeks and Raghav Gupta, ‘Interpretation of Commercial Arbitration Acts — Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163’ (2015) 35(7) e Proctor 38; Sourdin, (n 1) ch 6.

47.

Resnik, (n 24); Stephen Antle and Michael Erdle, ‘How to Ensure Arbitration is not Just Private Litigation’ (Presentation to the Alternative Dispute Resolution Institute of Canada Annual Conference, Calgary, Alberta, 29 October 2015).

48.

See Martin CJ in Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66, [28].

49.

See Robert French, ‘International Commercial Dispute Resolution and the Place of Judicial Power’ (2014) 11(4) Judicial Review 349 on factors affecting choices between arbitration and litigation. e former Chief Justice also considers the relationship between international commercial arbitration and domestic judicial power, and why Australia should support the Hague Choice of Court Convention Agreements. See also Michael Feutrill, ‘Arbitration v Litigation’ (2014) 40(10) Brief 16 on the development of an arbitration culture to attract foreign investment in Western Australia. For a discussion of the complexities created by competing DR clauses, see Jasmine Sze Hui Low, ‘Competing Dispute Resolution Clauses: Arbitration over Litigation in Singapore?’ (2016) 27(2) Australasian Dispute Resolution Journal 119. See also Richard Calver, ‘Commercial Arbitration in Two Industries’ (1992) 3(2) Australian Dispute Resolution Journal 86; Richard Calver, ‘Commercial Arbitration: Alternative Dispute Resolution?’ (1993) 4(1) Australian Dispute Resolution Journal 34; Andrew Field, ‘e Bias Principle and its Applicability to International Commercial Arbitrations in Australia’ (1999) 10(4) Australian Dispute Resolution Journal 246; Tim Griffiths and Jacqui Mitchell, ‘e High Court and “Lower Grade” Arbitration: Westport Insurance v Gordian’ (2012) 23(2) Australasian Dispute Resolution Journal 106; omas Stipanowich and J Ryan Lamare, ‘Living with “ADR”: Evolving Perceptions and Use of Mediation, Arbitration and Con ict Management in Fortune 1,000 Corporations’ (2013) 19 Harvard Negotiation Law Review 1; Stacie I Strong, Legal Reasoning Across Commercial Disputes (OUP, 2020).

50.

See, eg, C Mark Baker and Lucy Greenwood, ‘In Search of an Exemplary International Construction Arbitration’ in Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: e Fordham Papers (2012) (Fordham Law School, 2012) 173; Jacques De Werra, ‘International Intellectual Property Arbitration: How to Use it Efficiently?’ (2012) Singapore Law Gazette 27; Gyooho Lee, KeonHyung Ahn and Jacques De Werra, ‘Euro-Korean Perspectives on the Use of Arbitration and ADR Mechanisms for Solving Intellectual Property Disputes’ (2014) 30(1) Arbitration International 91; Robert G Bone, ‘Decentralizing the Lawmaking Function: Private Lawmaking Markets and Intellectual Property Rights in Law’ (2014) 38(Supp) International Review of Law and Economics 132; Gabriël A Moens and Philip Evans, Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective (Springer International Publishing, 2015); Ioannis Avgoustis, ‘A Short Note on the Piraeus Maritime Arbitration Rules’ (2015) 31(3) Arbitration International 473; Simon Allison, ‘Choice of Law and Forum Clauses in Shipping Documents — Revising Section 11 of the Carriage of Goods by Sea Act 1991 (Cth)’ (2015) 40(3) Monash University Law Review 639; Richard Liu, ‘A Balancing Act: Section 69 of the Arbitration Act 1996’ (2018) 21(1) International Arbitration Law Review 18, 19.

51.

Much of the body of relevant literature and scholarship is cited in this chapter.

52.

See the identically named Acts in NSW (2010), Vic (2011), SA (2011), NT (2011), Tas (2011), WA (2012) and Qld (2013). A challenge to the validity of the NSW CAA was rejected in Ashjal Pty Ltd v Alfred Toepfer International (Australia) Pty Ltd [2012]

NSWSC 1306. Although the CAAs are intended for ‘commercial’ matters, this term is loosely de ned leaving it to case law to determine whether, eg, religious arbitrations fall within their scope, see Nadav Prawer, ‘Religious Tribunals and Courts of Law — Are their Decisions or Procedural Determinations Subject to Review by Secular Courts?’ (2015) 26(4) Australasian Dispute Resolution Journal 226, 228. In relation to ‘arbitrations’ conducted by sporting bodies, see Andrew Coffey, ‘e AFL Tribunal System — An Insider’s Perspective on Early Neutral Evaluation, Arbitrary Power and Judicial Intervention’ (2013) 24(4) Australasian Dispute Resolution Journal 230; James Duffy and John O’Brien, ‘e Court of Arbitration for Sport and the Shayna Jack Doping Case’ (2021) 31(2) Australasian Dispute Resolution Journal 146. 53.

For example, see the Commercial Arbitration Act 2012 (WA) s 27D. See also, eg, George Pasas, ‘e Arbitrator as Mediator: Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610’ (2019) 29(4) Australasian Dispute Resolution Journal 266.

54.

See, eg, Commercial Arbitration Act 2012 (WA) s 27(2).

55.

See, eg, Commercial Arbitration Act 2012 (WA) s 27(4), (5). If there is no such consent, arbitration can only resume under the auspices of a different arbitrator.

56.

See, eg, Commercial Arbitration Act 2012 (WA) s 27(7).

57.

Outside these circumstances even arbitrations properly so called will not be subject to the CAAs.

58.

For example, in terms of Court Procedures Rules 2006 (ACT) r 3252.

59.

Supreme Court Act 1935 (WA) s 51.

60.

For example, Mining Act 1992 (NSW) s 148(2).

61.

For example, those of the Chartered Institute of Arbitrators — see .

62.

For interesting critical perspectives on the use of arbitration clauses, see, eg, Christopher R Drahozal and Peter B Rutledge, ‘Arbitration Clauses in Credit Card Agreements: An Empirical Study’ (2012) 9(3) Journal of Empirical Legal Studies 536; Julius Getman and Dan Getman, ‘Winning the FLSA Battle: How Corporations Use Arbitration Clauses to Avoid Judges, Juries, Plaintiffs and Laws’ (2014) 86(2) St John’s Law Review 5; Linda S Mullenix, ‘Gaming the System: Protecting Consumers from Unconscionable Contractual Forum Selection and Arbitration Clauses’ (2015) 66(3) Hasting Law Journal 719; Albert D Spalding Jr and Eun-Jung Katherine Kim, ‘Should Western Corporations Ban the Use of Shari’a Arbitration Clauses in their Commercial Contracts?’ (2015) 132(3) Journal of Business Ethics 613; erese Wilson, ‘Setting Boundaries Rather than Imposing Bans: Is it Possible to Regulate Consumer Arbitration Clauses to Achieve Fairness for Consumers?’ (2015) Griffith University Law School Research Paper No 15-04.

63.

See Resnik, (n 24); Myriam E Gilles, ‘e End of Doctrine: Private Arbitration, Public Law and the Anti-Lawsuit Movement’ (2014) Cardozo Legal Studies Research Paper No

436; Michael J Broyde, ‘Faith-Based Private Arbitration as a Model for Preserving Rights and Values in a Pluralistic Society’ (2015) 90(1) Chicago-Kent Law Review 111. 64.

See also Andrew Mason, ‘Silent Parties in Arbitration: Does Rinehart v Hancock Prospecting Pty Ltd Open the Door for Increased ird-Party Participation in Arbitral Proceedings?’ (2020) 30(2) Australasian Dispute Resolution Journal 154.

65.

See also Craig Edwards, ‘Australia and Singapore — Differences in Applications to Set Aside an Arbitral Award?’ (2019) 29(4) Australasian Dispute Resolution Journal 234.

66.

See the Full Court of the Federal Court in Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214.

67.

See UNCITRAL Model Law on International Commercial Arbitration (1985 with amendments as adopted in 2006), .

68.

Section 17 of the CAAs gives arbitrators power to grant interim measures, eg, to preserve relevant evidence, when requested by the parties and subject to the requirements of the section.

69.

On the distinctions between arbitral awards and judicial determinations, see Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] FCA 1214.

70.

CAAs s 19.

71.

CAAs s 16.

72.

CAAs s 28 (2), (3).

73.

CAAs s 27(8). See also Young J in Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346, 354.

74.

Arbitrators acting in this mode may decide cases ex aequo et bono — on considerations of general justice and fairness — a concept developed from international instruments on dispute resolution. See generally Hong-Lin Yu, ‘Amiable Composition — A Learning Curve’ (2000) 17(1) Journal of International Arbitration 79.

75.

CAAs s 31.

76.

CAAs s 34.

77.

Jones, (n 46) 470–1.

78.

CAAs s 19(b). See also Jeremy Coggins, ‘Breaches of Natural Justice in Alternative Dispute Resolution of Construction Disputes’ (2013) 29(3) Business and Construction Law Journal 247.

79.

UNCITRAL Model Law on International Commercial Arbitration (1985 with amendments as adopted in 2006), arts 34, 36, . See Peisley, (n 12). See also Mango Boulevarde Pty Ltd v Mio Art Pty Ltd [2017] QSC 87; David Spencer, ‘Case Notes: Setting Aside an Arbitral Award Under the Commercial Arbitration Act and Arbitration Media Watch’ (2018) 28(4) Australasian Dispute Resolution Journal 209.

80.

CAAs s 34A.

81.

A court’s review decision might also be the subject of an appeal to a higher court of competent jurisdiction, further intermeshing arbitration with the courts and prospectively increasing delays and costs.

82.

See Resnik, (n 24); Ware, (n 24). See also Donald E Childress III, Jack J Coe Jr and Lacey L Estudillo, ‘International Arbitration and the Courts’ (2015) 43 Pepperdine Law Review 461 (Special Symposium Issue); Warren E Burger, ‘Using Arbitration to Achieve Justice’ in Julio C Betancourt and Jason A Crook (eds), ADR, Arbitration, and Mediation: A Collection of Essays (Chartered Institute of Arbitrators, 2014) 352.

83.

See the various High Court judgments in Westport Insurance Corp v Gordian Runoff Ltd (2011) 85 ALJR 1188 and the special leave application in Westport Insurance Corp v Gordian Runoff Ltd [2010] HCA Trans 233, 14. For commentary, see Griffiths and Mitchell, (n 49).

84.

is can occur in relation to both domestic and international arbitrations. See respectively Hancock v Rinehart [2013] NSWSC 1352; Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10; Amcor Packaging (Australia) Pty Ltd v Baulderstone [2013] FCA 253. VCAT held that a tribunal is a ‘court’ for purposes of staying proceedings so arbitration can take place, see Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550; [2014] VSCA 142.

85.

See, eg, Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] FCAFC 192; Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550. In the domestic context, see Western Australia v Mineralogy Pty Ltd [2020] WASC 58 in which Martin J ‘provides guidance on the procedural requirements in respect of the enforcement of domestic arbitral awards and, in particular, counsels against bringing enforcement applications on an ex parte basis’, Albert Monichino and Gianluca Rossi, ‘Ex parte Enforcement of Arbitral Awards and the Rule of Law: Mineralogy v Western Australia’ (2021) 31(1) Australasian Dispute Resolution Journal 31, 31.

86.

Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10.

87.

See Mark Bray and Andrew Stewart, ‘From the Arbitration System to the Fair Work Act: e Changing Approach in Australia to Voice and Representation at Work’ (2013) 34(1) Adelaide Law Review 21.

88.

See, eg, Arbitration in Family Law Committee, Family Law Council of Australia, Arbitration in Family Law: A Report (AGPS, 1988); Patrick Parkinson, ‘Family Law: Arbitration in Family Property Proceedings: Exploring the Potential’ (2016) 21(April) Law Society of NSW Journal 78. Arbitration can also take place in faith-based contexts where there may be cultural differences between courts and religious procedures — see Nadav Prawer, Nussen Ainsworth and John Zeleznikow, ‘An Introduction to the Challenges and Possibilities of Faith-Based Arbitration in Australia’ (2014) 25(2) Australasian Dispute Resolution Journal 91; Nadav Prawer, Nussen Ainsworth and Matt Harvey, ‘Not Commercial but Good Sense: e Case for Facilitating Faith-Based and Community Arbitration in Australia’ (2018) 28(4) Australasian Dispute Resolution

Journal 252. See also Giuseppe Carabetta, ‘Final Offer as a First Choice? Police Arbitration: A New Zealand Case Study’ (2019) 29(4) Australasian Dispute Resolution Journal 251 and Duffy and O’Brien, (n 52). 89.

See, eg, the Chartered Institute of Arbitrators . See also Steven Rares, ‘e Modern Place of Arbitration’, Celebration of the Centenary of the Chartered Institute of Arbitrators, 2015, at .

90.

Peter Condliffe, Con ict Management (LexisNexis Butterworths, 6th ed, 2019).

91.

ese tribunals have over the years been consolidated in super-tribunals, such as WCAT, SACAT, NCAT and QCAT which are headed by judges and assume the appearance of courts, reducing the difference between tribunals and traditional courts.

92.

For examples, see Condliffe, (n 90).

93.

See generally Cesare Romano, Karen Alter and Yuval Shany (eds), e Oxford Handbook of International Adjudication (Oxford University Press, 2013); Armin von Bogdandy and Ingo Venzke, In Whose Name?: A Public Law eory of International Adjudication (Oxford University Press, 2014); Karen Alter, e New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014); Ilias Bantekas, An Introduction to International Arbitration (Cambridge University Press, 2015); Won Kidane, e Culture of International Arbitration (Oxford University Press, 2017); Stephen M Schwebel, Luke Sobota and Ryan Manton, International Arbitration: ree Salient Problems (Cambridge University Press, 2nd ed, 2020); Phillip Capper, International Arbitration: A Handbook (Taylor & Francis, 2020); Gary B Born, International Arbitration: Law and Practice (Kluwer Law International BV, 2021).

94.

See John Merrills, International Dispute Settlement (Cambridge University Press, 5th ed, 2011) 20–4.

95.

See Laurence Boulle, e Law of Globalisation (Kluwer Law International, 2011) 355– 8.

96.

See .

97.

As Australia is a federation, it is the Commonwealth Government that is a member of the United Nations and is subject to rights and obligations in international law. Australia became a UN member in 1945.

98.

e UN website states that in 2021 there are 193 member states of the United Nations .

99.

As regards foreign court judgments there is provision in Australia for the registration, under de ned circumstances, of foreign judgments in terms of the Foreign Judgments Act 1991 (Cth).

100. See generally Yves Dezalay and Bryant G Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1998); Julian Lew, Loukas Mistelis and Stefan Kröll,

Comparative International Commercial Arbitration (Kluwer Law International, 2003); Margaret L Moses, e Principles and Practice of International Commercial Arbitration (Cambridge University Press, 2nd ed, 2012); Michael Elliott, ‘e Danger in Prescribing the Publication of International Commercial Arbitration Awards in Order to Cure a Stagnating Common Law’ (2020) 30(2) Australasian Dispute Resolution Journal 113; Ishrat Jahan, ‘e Legal Framework for International Commercial Arbitration in Bangladesh: Achievements and Proposed Improvements’ (2020) 30(3) Australasian Dispute Resolution Journal 215; Junayed Ahmed Chowdhury, ‘AntiArbitration Injunction — A Bangladeshi Developmental Conundrum through the Prism of Australian and Public International Law’ (2020) 30(3) Australasian Dispute Resolution Journal 224; Benjamin Teng and Hannah Williams, ‘A Curious Order and the Inherent Power to Order Stays Pending Arbitration: Rex International Holding Ltd v Gulf Hibiscus Ltd’ (2020) 30(4) Australasian Dispute Resolution Journal 295; Strong, (n 49); Albert Monichino and Alex Fawke, ‘International Arbitration in Australia: 2019/2020 in Review’ (2021) 31(1) Australasian Dispute Resolution Journal 12. 101. See UNCITRAL Model Law on International Commercial Arbitration (1985 with amendments as adopted in 2006), . 102. IAA s 16 gives the Model Law force in Australia rendering it binding on the courts. Section 2D of the IAA links it to the facilitation of international trade and commerce. 103. e link between the Model Law and the CAAs is found in many provisions of the latter which are based on the former — eg CAAs s 12, which concerns grounds for challenging arbitrator appointments, mirrors those of art 12 of the Model Law. For an appraisal of the Model Law as the Australian standard in commercial arbitration proceedings, see Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163. 104. See the Convention on the Recognition and Enforcement of Foreign Awards, signed 10 June 1958, . 105. IAA s 8 gives effect to the NYC. 106. is is a common source of application in Australian courts. See, eg, Eopply New Energy Technology Co Ltd v EP Solar Pty Ltd [2013] FCA 356 (19 April 2013) in which a Chinese company sought enforcement of an arbitral award made in Shanghai against an Australian company. 107. Both applications can be found in the same case, eg, in Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (2012) 201 FCR 209. 108. As contended, unsuccessfully, in Coeclerici Asia (Pte) Ltd v Gujarat NRE Coke Ltd [2013] FCA 882 and affirmed in Gujarat NRE Coke Ltd v Coeclerici Asia (Pte) Ltd [2013] FCAFC 109. 109. IAA s 19(b) provides that a breach of ‘natural justice’ will make an award contrary to public policy. 110. As contended in Emerald Grain Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414.

111.

Australian courts refer with approval to the views of Steyn LJ in Geogas SA v Trammo Gas Ltd [1993] 1 Lloyds Rep 215, 228, to the effect that arbitrators are the ‘masters of the facts’.

112. For example, Murphy J in Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Co Ltd (No 2) [2012] 201 FCR 1214, [34]. 113. See TCL Air Conditioner (Zhongshan) Co Ltd v the Judges of the Federal Court of Australia (2013) 87 ALJR 410. 114. In particular, arts 35 and 36. 115. In particular, arts 19 and 28 respectively. 116. However, this is not the case in all jurisdictions despite the Model Law being intended to harmonise policy among signatory states — eg, in English law judicial interference in arbitral awards is allowed for errors of law. See Arbitration Act 1996 (UK) s 69. 117. is is in line with the international policy that there should, as far as possible, be commonalities in domestic curial interpretations of identical provisions in international instruments. 118. Albert Monichino and Alex Fawke, ‘International Arbitration in Australia: 2012/2013 in Review’ (2013) 24(4) Australasian Dispute Resolution Journal 208, 209; see also Albert Monichino and Alex Fawke, ‘International Arbitration in Australia: 2013/2014 in Review’ (2014) 25(4) Australasian Dispute Resolution Journal 187, 189. For a judicial perspective, see Clyde Cro, ‘Providing Clarity to Judicial Support of Arbitration’ (2015) 89(3) Australian Law Journal 143. 119. Consider also, eg, Aayushi Singh, ‘Comparative Study of Asian Arbitration Centres vis-a-vis Public Interest and Transparency Measures’ (2019) 29(4) Australasian Dispute Resolution Journal 244. 120. Comandate Marine Corp v Pan Australia Shipping Pty Ltd (2006) 157 FCR 45, 87. 121. See Benjamin Howard, ‘Pro-Arbitration Policy in the Australian Courts — e End of Eisenwerk?’ (2013) 41(2) Federal Law Review 299. 122. e arbitration applied English law and was conducted under rules of the Swiss Chamber’s Arbitration Institution . 123. While F1 drivers in successful teams are exceptionally well paid, in lower-performing teams, drivers have to secure sponsorships, or make nancial contributions, to secure a team place. Van der Garde had been gazumped in the sponsorship league. 124. Giedo van der Garde BV v Sauber Motorsport AG [2015] VSC 80, [7]. As the court noted, this did not preclude the new drivers bringing proceedings in contract against the team. 125. Sauber Motorsport AG v Giedo van der Garde BV (2015) VSCA 37, [14], [20]. 126. For example, in cases such as Coeclerici Asia (Pty) Ltd v Gujarat NRE Coke Ltd [2013] FCA 882; Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 10; Emerald Grain Australia Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414;

TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83. 127. Albert Jan van den Berg, New Horizons in International Commercial Arbitration and Beyond (Kluwer Law International, 2005); Todd Weiler, International Investment Law and Arbitration: Leading Cases from the ICSID, NAFTA, Bilateral Treaties and Customary International Law (Cameron May, 2005); Junji Nakagawa, Transparency in International Trade and Investment Dispute Settlement (Routledge, 2013). 128. On which see . 129. See art 10. PM invoked the treaty because of the location of its subsidiary in Hong Kong, which had obtained shares in PM Australia. is was a dubious strategy as the shares were acquired aer the announcement of the plain packaging policy in Australia. 130. PM also alleged that the domestic legislation was in breach of Australia’s obligations under the covered agreements of the WTO and under the Paris Convention on the Protection of Industrial Property by virtue of the ‘umbrella clause’ in the BIT which prohibited the respective states from breaching any agreements between them, such as those contained in these two treaties. 131. e temporal aspect of ‘dispute’ was signi cant with Australia contending there was no dispute when the investment took place, the dispute having arisen only aer the investment. 132. Philip Morris Asia Ltd v e Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12 . 133. In 2014 the Greens introduced the Trade and Foreign Investment (Protecting the Public Interest) Bill in the federal parliament to prevent future inclusion of ISDS in treaties. e Bill was not enacted. 134. ere had been no arbitration clause in the trade agreement between Australia and the United States which came into effect in 2005, each state considering their investors to be adequately catered for in the courts of the other. 135. Needless to say, an ISDS provision not only allows Australia to be sued by foreign investors but for Australian investors to sue foreign host states — see Churchill Mining and Planet Mining Pty Ltd, formerly ARB/12/14 v Republic of Indonesia (ICSID Arbitral Tribunal, Case No ARB/12/14 and 12/40). 136. See, eg, Philip Johnson, ‘Enforcing Online Arbitration Agreements for Cross-Border Consumer Small Claims in China and the United States’ (2013) 36(2) Hastings International and Comparative Law Review 577; Alan S Kaplinsky and Mark J Levin, ‘Consumer Financial Services Arbitration: What Does the Future Hold aer Concepcion’ (2013) 8(2) Journal of Business and Technology Law 345; Youseph Farah and Leonardo VP De Oliveira, ‘Releasing the Potential for a Value-Based Consumer Arbitration under the Consumer ADR Directive’ (2016) 24(1) European Review of Private Law 117; Faye Fangfei Wang, Online Arbitration (Taylor & Francis, 2017);

Farshad Ghodoosi and Monica M Sharif, ‘Justice in Arbitration: e Consumer Perspective’ (2021) 32(4) International Journal of Con ict Management (online). 137. See Chinthaka Liyanage, ‘An Effective Enforcement Mechanism for Online Consumer Arbitration Awards’ (2011) 22(4) Australasian Dispute Resolution Journal 267; Wang, (n 136); Alpana Roy, ‘Online Dispute Resolution in the Domain Name Space’ (2019) 30(1) Australasian Dispute Resolution Journal 39. 138. See Petra Butler and Campbell Herbert, ‘Access to Justice vs Access to Justice for Small and Medium-Sized Enterprises: e Case for a Bilateral Arbitration Treaty’ (2014) 26 New Zealand Universities Law Review 186. 139. See generally, eg, Barry C Bartel, ‘Med-Arb as a Distinct Method of Dispute Resolution: History, Analysis, and Potential’ (1991) 27(3) Willamette Law Review 661; John W Cooley, e Mediator’s Handbook: Advanced Practice Guide for Civil Litigation (National Institution for Trial Advocacy, 2nd ed, 2006); Yolanda Vorys, ‘e Best of Both Worlds: e Use of Med-Arb for Resolving Will Disputes’ (2006) 22(3) Ohio State Journal on Dispute Resolution 871; Trevor Jason Sones, Choosing Between MedArb and Arb-Med: An Exploratory Study (University of Victoria (Canada), 2007); Richard Fullerton, ‘Med-Arb and its Variants: Ethical Issues for Parties and Neutrals’ (2010) 65(2/3) Dispute Resolution Journal 52; Martin C Weisman, ‘Med-Arb: e Best of Both Worlds’ (2012) 19(3) Dispute Resolution Magazine 40; Allan Barsky, ‘“MedArb”: Behind the Closed Doors of a Hybrid Process’ (2013) 51(4) Family Court Review 637; Brian A Pappas, ‘Med-Arb and the Legalization of Alternative Dispute Resolution’ (2015) 20 Harvard Negotiation Law Review 157; Aziah Hussin, Claudia Kuck and Nadja Alexander, ‘SIAC-SIMC’s Arb-Med-Arb Protocol’ (2018) 11(2) New York Dispute Resolution Lawyer 85; Taylor Brisco, ‘Med-Arb and Professional Sports: Could Med-Arb Work as an Effective Dispute Resolution Process in Professional Sports?’ (2018) 29(2) Marquette Sports Law Review 505; Matthew Finn, ‘Remaining the Dispute Resolution Epicentre: Is Med-Arb in Europe’s Future?’ (2021) 16(1) Construction Law International 18; Nancy A Welsh, ‘Switching Hats in Med-Arb: e Ethical Choices Required to Protect Process Integrity’ (2021) . 140. Queensland Civil and Administrative Tribunal (QCAT), Practice Direction No 1 of 2012 — Hybrid Hearings, 3 September 2012. See also Bobette Wolski, ‘QCAT’s Hybrid Hearing: e Best of Both Worlds or Compromised Mediation?’ (2013) 22(3) Journal of Judicial Administration 154; Bobette Wolski, ‘ReAssessment of QCAT’S Hybrid Hearing and Arb-Med-Arb under s 27D of the Commercial Arbitration Act’ (2014) 3(4) Journal of Civil Litigation and Practice 156. 141. Examples given are ‘one-issue’ disputes, such as animal management cases, or cases where parties have travelled a long distance to attend QCAT. 142. Donna Ross, ‘Med-Arb/Arb-Med: A More Efficient ADR Process or an Invitation to a Potential Ethical Disaster?’ in Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: e Fordham Papers (2012) (Brill, 2013) 352;

Bobette Wolski, ‘ARB-MED-ARB (and MSAs): A Whole Which Is Less than, Not Greater than, the Sum of Its Parts’ (2013) 6(2) Contemporary Asia Arbitration Journal 249; Weixia Gu, ‘Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med (-Arb) and Its Global Implications’ (2019) 29(1) Washington International Law Journal 117. Section 27D of the Uniform Commercial Arbitration Acts provides that an arbitrator can, with the agreement of the parties, act as a mediator. e rst judicial consideration of this section was in Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610 which was upheld on appeal in Ku-ring-gai Council v Ichor Constructions Pty Ltd [2019] NSWCA 2. is case exposes some potential dangers in the use of this section. See, eg, George Pasas, ‘e Arbitrator as Mediator: Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610’ (2019) 29(4) Australasian Dispute Resolution Journal 266. 143. See and . Each institution contributes its own rules to the respective component of the composite procedure. 144. is is not to overlook the reality that arbitration has a much longer legacy than other DR processes and until a few decades ago was the dominant non-court DR process. 145. As recognised in Emerald Grain Pty Ltd v Agrocorp International Pte Ltd [2014] FCA 414, [13] and Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10, [22]. Courts are under pressure to interpret restrictively provisions such as the public policy exception which might afford a basis for not enforcing an international award.

[page 345]

Chapter 11 Litigation Chapter contents Introduction Values and goals of litigation Litigation in Australian domestic law International litigation and adjudication systems The future of litigation — online courts Lawyers and litigation Conclusion

11.1 11.3 11.10 11.72 11.92 11.95 11.98

Introduction 11.1 Chapter 10 discussed expert determination and arbitration — key determinative dispute resolution (DR) processes which culminate in authoritative and binding decisions by respective intervenors. is chapter considers the most formalised form of determinative DR — litigation. Litigation is traditionally associated with court systems, but similar procedures and methodologies are adopted by tribunals when making determinations in their respective jurisdictions. In this chapter, ‘litigation’ is used as a loose term to also include the procedures of international courts and tribunals. 11.2 e term litigation is used in this chapter to refer to the set of procedures conducted by and through courts and tribunals, commencing with the initiation of legal proceedings and culminating in a formal hearing and in a determination being made by the third-party non-partisan intervenor.1 Litigation implies formal state[page 346]

sanctioned decision-making about disputes in courts, tribunals, commissions and other determinative bodies which derive their authority from statute and not the parties’ consent. Litigation also includes the various forms of appeal from decisions of trial courts or tribunals, and, in different guises, is increasingly prevalent in international disputes. is chapter considers both the domestic and international dimensions of litigation.

Values and goals of litigation 11.3 roughout the chapters of this book, reference is frequently made to the fact that many disputes are not taken to lawyers, most matters referred to lawyers do not proceed to litigation, and most cases in which litigation is commenced do not result in hearings and judgments.2 However, while law and legal proceedings are atypical DR [page 347] phenomena in quantitative terms, litigation retains a dominant normative status in Australian domestic DR and internationally.3 11.4 In Chapter 6 it was noted that the history of DR has privileged litigation as a DR process, and it has long been considered, and still is by some, as the provider of ‘ rst-class’ justice, the Rolls Royce of DR systems.4 is classi cation has probably resulted because, of all processes on the DR matrix, litigation is the process that best integrates legal rights and duties, and relevant normative rules and precedents. e relative certainty and predictability of the litigation process and its potential outcomes, at least when compared with less formal methods, mean that litigation has a special place in the provision of justice in liberal democratic systems of government based on the rule of law. 11.5 Some of the distinctive characteristics of litigation as a key feature of civil justice systems were noted earlier. Lord Woolf ’s Access to Justice Report, for example, highlighted the principles of justice, fairness, certainty,

accessibility, efficiency and effectiveness as manifesting in litigation.5 Litigation certainly remains a critical DR process, along with [page 348] other DR approaches, for achieving the values of democratic society such as ‘personal autonomy, participation, accountability, transparency, rationality, equality, due process, and the promotion of a strong civil society’.6 11.6 In keeping with the values of democracy, the litigation process has distinct characteristics, similar to those relating to other determinative processes, such as those considered in Chapter 10. e rst is the structural independence of the courts from other agencies of government, a fundamental principle of the rule of law and constitutional democracy. e second is the procedural formality of litigation proceedings, based on notions of equality and procedural fairness towards all parties. e third is the normative basis of judicial decision-making in terms of the objective application of relevant legal rules without regard to the personal or subjective convictions of those making adjudicative decisions. is means, for example, that the courts, unlike mediators or conciliators, can apply principles of unconscionability to protect parties at a special disadvantage. Finally, the courts, and in particular appellate courts, are the nal determiners of law, evidence and fact within the legal domain. Whatever the operational de ciencies of courts, these value propositions are intrinsic to an effective civil justice system. 11.7 Certainly, the history of reform to the civil justice system demonstrates that these values are to a large extent aspirational, with issues of cost, delay and accessibility continuing to hamper the courts as true providers of justice in society. For this reason, the litigation process could be said to fall short of satisfying the DR value of community through the goal of access to justice. 11.8 Nevertheless, litigation, for those who can afford it and achieve access to it, could be argued as strongly satisfying the DR value of justice according to the procedural justice process goal (with procedural

protections achieving due process), the substantive justice process goal (being informed by normative and objective criteria provided by the law) and the fairness process goal (in terms of the independence of the judiciary). Litigation also satis es, to some extent, the value of party autonomy, at least theoretically, through the process goal of party participation, although writers such as Christie claim that lawyers compromise this goal by ‘stealing’ disputes when they take over the running of matters.7 Of course, litigation is not a DR system that can be said to support party self-determination — the other process goal of party autonomy — because it involves a third-party intervenor making a decision with which the parties are compelled to comply. 11.9 It is important to acknowledge the integrated nature of processes on the DR matrix, considering them together in making up a complete system of DR options. No one process can satisfy all DR values and goals. is is why a matrix of processes is required, with different processes offering different attributes to address the speci c DR needs of parties for the effective management or settlement or resolution of disputes. Litigation’s place on the matrix is important; and although the majority of legal disputes [page 349] will not be decided in a court, the reality is that all matters dealt with in processes other than litigation have the potential to end up in a court environment for rati cation, review, recti cation or a remedy. It should also be noted that processes such as arbitration mimic litigation’s procedures and normative orientation, and in commercial mediations parties’ negotiating positions and arguments are frequently based on how a court would construe the relevant law, facts and evidence. e ‘shadow of the law’ and its importance to effective DR practice is discussed further in Chapter 12. e following sections of this chapter explore litigation in both its domestic and international contexts.

Litigation in Australian domestic law

Traditional common law litigation 11.10 Given the ubiquity of litigation and literature on the topic this section makes reference only to broad themes in the system.8 Traditional approaches to litigation in common law adversarial systems (arguably) involve a high degree of party autonomy and correlative judicial passivity, with proceedings operating on the assumption that a third-party determination of the matter is required aer a ‘hearing’ of the issues and arguments in contention.9 Traditional litigation procedures leave the practical conduct of proceedings to lawyers representing the parties or to self-represented litigants, with parties (or probably more accurately lawyers on their behalf)10 determining what information and evidence are to be provided to the judge. Judges play mainly reactive roles in ‘umpiring’ on procedural and evidential matters before rendering nal determinations.11 [page 350] 11.11 While litigation involves extensive pre-hearing preparatory matters, such as the development of pleadings and discovery of relevant documents, it culminates in a hearing on a designated date. At the hearing, witnesses attend in person, evidence is presented mainly in oral form, witnesses are tested and cross-examined, and submissions and arguments are made on the law, the facts and the relevant evidence. Binding judicial determinations, styled judgments, conclude the process of litigation.12 11.12 Traditional litigation in Western common law countries is characterised as ‘adversarial’ in nature. As indicated in earlier chapters, the term ‘adversarial’ has had pejorative connotations in DR contexts.13 In litigation it denotes a procedure in which each party makes a best-case presentation of their side, challenges that of the other, engages in combative procedural, evidential and tactical strategies, and relies on an independent, non-partisan adjudicator to make determinations on matters of law, evidence and outcomes.14 As was discussed earlier, the civil litigation system in Australia maintains the core features of adversarialism. However,

increasingly non-adversarial features can be found in the litigation system, examples of which are discussed below. 11.13 Adversarial litigation is dependent on lawyers’ understandings of procedural and evidential technicalities, as well as their understanding of the rules and customs of professional interaction (both as between lawyers, and also with the judge) including professional protocols as to use of language, the terms of address, demeanours and dispositions.15 In adversarial systems, lawyers have considerable leeway to conduct litigation on their own terms, particularly in relation to timelines and the progression [page 351] of cases. Further, the independence of judicial officers means that the judge’s role as the independent decision-maker is removed from the tactical strategies of lawyers.16 11.14 e process equilibrium that results from the professional monopoly that lawyers have on the way the litigation system operates is challenged by the phenomenon of self-represented litigants.17 Without the bene t of a legal advocate versed in the protocols of litigation, and most commonly with no legal training themselves, self-represented litigants struggle to assume the advocacy role in the courtroom that has traditionally been played by lawyers. ese parties oen turn to assistance from court websites and the services of those who support self-help parties, and also rely heavily on guidance from judges.18 11.15 Self-representing parties can require considerable support and assistance in the courtroom. Information provided by the Queensland courts for self-represented litigants explains matters as fundamental as the protocols of standing up when the judge enters or leaves the court, and of referring to the judge as ‘Your Honour’.19 It is now well established [page 352]

that as part of a judge’s obligation to ensure a fair trial, they have a positive duty to assist self-representing litigants. e scope of this assistance depends on the ‘litigant, the nature of the case, and the litigant’s intelligence and understanding of the case’.20 11.16 In Davidson v Aboriginal and Islander Child Care Agency, the full bench of the Australian Industrial Relations Commission provided a set of guidelines as to the level of assistance that members of that Commission could legitimately provide to parties.21 Depending on the circumstances, such assistance could include: ‘identifying the issues which are central to the determination of the proceedings; drawing a party’s attention to the relevant legislative provisions and key decisions on the issues being determined; asking a party questions designed to elicit from him or her information in relation to the issues which are central to the determination of the particular proceedings; assisting a party to conform to the principle in Browne v Dunn or other procedural rules designed to avoid unfairness; and, drawing a party’s attention to the relative weight to be given to bar table statements as opposed to sworn evidence’.22 11.17 e adversarialism of common law litigation has conventionally been contrasted with the inquisitorial systems of litigation in civil law jurisdictions.23 In inquisitorial [page 353] systems, judges assume more interventionist and activist roles in the development, progression and proof of cases, in the sense of making inquiries, requisitioning evidence, calling witnesses and probing evidence.24 e active involvement of judges in supporting pro se litigants, which occurs in our adversarial system, in fact replicates much of the interventionist role of inquisitorial judges. e corollary of inquisitorial judging is a reduced role for lawyers and litigants in the prosecution of their own cases and the challenging of their opponents. For this reason, the simple dichotomy of adversarial versus inquisitorial is no longer useful or valid in the Australian DR domain.

11.18 In terms of the outcomes of litigation, these are based on the parties’ respective rights and duties and not on interests-based personal and commercial needs and concerns, as is the focus of facilitated DR processes such as mediation. In this respect, courts could be said to determine and nalise disputes, but not necessarily resolve them, and they do so with a retrospective view of the facts and law and not with the prospective relations of the parties in mind. Outcomes in litigation usually involve awards of damages to a successful plaintiff, but can also involve an order, for example, for speci c performance by a defaulting party, or a range of directives such as injunctions to prevent the occurrence of illegality or damage. Courts’ remedial options are depicted as being binary in nature with fault or culpability determining which party is successful or unsuccessful.25 In addition to receiving an order in its favour, the successful party can also be awarded costs by all courts and some Australian tribunals.26

Critiques of common law litigation 11.19 While the potential advantages of litigation as a DR system, at least for certain disputes, should not be overlooked, there have in past decades been numerous critiques of the system in common law jurisdictions, as evidenced in reports, articles and studies.27 e criticisms fall into three broad categories. 11.20 e rst category of criticism concerns the inability of courts operating traditional litigation systems to deal efficiently with heavy caseloads, with the result [page 354] of substantial delays and increased costs which must be borne directly by litigants.28 e costs and delay of traditional litigation are frequent sources of criticism,29 usually measured in quantitative terms, although judges have also noted the emotional costs of trial.30 Moreover, costs relate not only to litigants directly but also to taxpayers who fund court systems and heavily subsidise the litigation costs of court users,31 justi ed on the basis that

justice systems are a public good. Efficiency imperatives imposed by court funders, and demanded by regular court users, have resulted in changes to litigation procedures, not traditionally known for their efficiency or costeffectiveness. Expensive and time-consuming interlocutory steps, in particular, are referred to by the courts themselves as reasons for incorporating less formal DR processes into litigation.32 Interlocutory proceedings deal with speci c issues that arise in a matter, usually between when an application is led and the nal decision is given, and can embrace a wide range of activities. Much of the criticism in this area is focused on the discovery of documents, records and other information from each side which in a digital age, while more efficient than in past times, can appear endless, and very costly. While discovery is designed to allow best-case presentations from each side and facilitate truth- nding by the relevant court, it is an area in which rules have curbed some of the excesses and abuses in efforts to curtail time and costs.33 11.21 e second line of criticism relates to the internal operation of the litigation process and the gap between what it promises and what it can deliver. In relation to pleadings, for example, judges and professional bodies have long conceded that they tend to conceal rather than expose the real nature of disputes.34 e adversarial character [page 355] of proceedings can be stressful and litigants may have limited actual participation in the management of their own matter. ese factors may work to undermine notions of justice and fairness held out for litigation systems. A similar critique has been made of the binary remedies, or limited remedial imagination, available as a result of litigated proceedings, and the potential inappropriateness of the limited remedies available for complex dispute situations, such as those that involve ongoing relationships. In other words, litigation has been criticised for producing clumsy, ‘cookie-cutter’ outcomes which are not nuanced to the needs of the situation of particular matters. However, there are again changes in this area of litigation and courts can make orders on such matters as the publication of ‘corrective

notices’, or the updating of compliance programs in appropriate circumstances.35 11.22 e third category of criticism concerns the accessibility of justice delivered by traditional courts, through technical procedures and with the professional tactics and strategies associated with maneuvering within and manipulating the litigation process.36 Australia’s ‘access to justice’ movement, beginning in the 1990s, and discussed in earlier chapters, emphasised the need for litigation to be a less alienating experience, more comprehensible and more user-friendly, particularly to rst-time users. ese critiques of conventional litigation have resulted both in alternative ways of resolving disputes, and alternative ways of conducting litigation, discussed below.

Alternative approaches in litigation Case management 11.23 In 2000, the Australian Law Reform Commission (ALRC) noted in its review of the federal civil justice system that: Over the last ten years Australian courts have become more active in monitoring and managing the conduct of and progress of cases before them, from the time the matter is lodged until nalisation. Case management involves a deliberate transfer of some of the initiative in case preparation from the parties to the court, with the aim of controlling costs and ensuring the timely resolution of cases, without compromising the quality and fairness of the process.37

[page 356] 11.24 Case management reforms were partly propelled by external imperatives for courts to be efficient in regard to time and costs.38 ey were also motivated by internal recognition that changes were required to respond to some of the critiques of litigation and the injustices it caused — all Australian courts in the 1990s had serious delays and there were concerns they would exacerbate over time. More philosophically perhaps, case management entailed acceptance of the fact that litigation is not only of

interest to litigants themselves but has public interest implications in terms of how it is funded and how court resources are allocated.39 is public interest in the resourcing of justice systems has been recognised by the High Court of Australia.40 Judges have also been insistent that whatever the efficiency imperative, case management must also focus on justice, in particular in terms of its responsiveness to the needs of diverse cases and disputants.41 11.25 Early case management initiatives were most prominent in building and commercial matters in state courts. ese approaches involved streamlining court procedures, establishing dedicated Commercial Lists and Commercial Divisions in various courts, and introducing pre-trial requirements such as settlement conferences. Over time, all Australian courts have developed pre-trial procedures to promote early identi cation of disputed issues between the parties. As court control over the progression of cases has increased in all Australian jurisdictions, there has ensued a more activist role for judges, who have become increasingly willing to supervise and direct the passage of cases. While there has always been some degree of case supervision by judges,42 these changes have resulted in a far more assiduous approach to the management of the litigation process than ever before. As a consequence, there have been signi cant departures from traditional adversarial notions requiring judges to be non-interventionist in proceedings and merely to adjudicate on matters as presented by parties. [page 357] 11.26 ‘Managerial judging’, as it came to be known,43 now involves judges or court registrars taking administrative and supervisory control and directing the passage of litigation, and along the way making interventionist authoritative orders to encourage settlement, and if settlement does not ensue, to manage cases efficiently through to, and during the course of, the nal hearing. e managerial style has judges in many jurisdictions handling case dockets from their commencement through to hearing (sometimes known as the ‘single docket system’, or the ‘individual docket system’), allowing them to become familiar with each case much earlier in

its progression than occurred in traditional adversarial proceedings.44 Such approaches involve some rebalancing of functions and powers as between litigants and judges, the former losing some control over the conduct, timing and progress of litigation. As litigation has become more managed, it has inevitably lost some of its adversarial character and assumed quasiinquisitorial characteristics. 11.27 Although case management innovations have been referred to as a ‘procedural revolution’,45 over time they have become an orthodox judicial function; and this changed role for judges now requires the regular deployment of different skill sets from those traditionally associated with hearing cases and delivering judgments. In particular, case management processes require judges to have an enhanced role in identifying and narrowing issues, and judges are now provided with greater structure and guidance about how to ful l this function.46 Although originally motivated by goals of reducing court delays and backlogs, it was not long before other bene ts were proclaimed for case management systems: earlier resolution of disputes, reduction of hearing days, monitoring of caseloads, planning for court resourcing, development of IT support systems, increasing remote accessibility to courts and enhanced public [page 358] accountability. ese factors, both real and apparent, have cumulatively reduced some of the criticisms of formal justice systems.47 11.28 While many case management requirements have emanated from courts themselves through novel practice directions and amended court rules, legislation has served to reinforce and supplement these initiatives.48 is has led to immense variety in case management systems and concern over the absence of a uni ed framework for Australian courts.49 However, common forms of case management involve courts convening directions hearings at regular intervals to make pre-trial orders, deal with interlocutory matters, monitor compliance with earlier orders and assess readiness of cases for trial.50 Other case management functions include:

developing time schedules for speci c litigation events and ensuring parties adhere to them; dispensing with pleadings, when appropriate; limiting discovery and interrogatories to what is ‘proportionate’ to that which is at stake, and with the leave of the court; requiring case preparation early in proceedings with a view to identifying and narrowing the real issues, or even settling cases; engaging regularly with principal players, including litigants in person and senior practitioners; restricting the need for court appearances to ‘meaningful events’ which move cases signi cantly towards settlement or trial; and requiring evidence and submissions to be provided to court in written form and to be led before the hearing commences. 11.29 In respect of many case management matters, courts have extensive discretion to make directions, as judges may deem appropriate. In the Federal Court context, judges can even make orders that are inconsistent with the rules of court if it is in the interests of justice to do so.51 [page 359] 11.30 While case management systems commonly reduce the ability of litigants to progress automatically through litigation’s procedural stages, the exact contours of the systems have come to differ as courts have developed more specialist lists within their jurisdictions and applied ‘differential case management’ in the varying circumstances.52 Generally, more complex cases involve more interventionist management techniques by judges than do ‘ordinary’ or ‘simple’ matters coming to the courts.53 11.31 Apart from the above pre-hearing developments, changes to litigation have also involved managerial roles for judges within hearings themselves, for example, in relation to procedural steps and timeframes, and the reduction of formality and technicality.54 Judges in contemporary court hearings also: limit the use of experts, using court-appointed experts or have

experts provide conjoint evidence;55 limit the number of witnesses, requiring prior exchange of witness statements; restrict the time available for speci c aspects of hearings, such as oral evidence and cross-examination; and stipulate the length or duration of legal submissions to the court. 11.32 ere are inevitable uctuations in case management developments. Litigation has traditionally relied heavily on oral presentation and cross-examination of witnesses, but case management has tended to replace this with witnesses providing [page 360] written statements or affidavits in advance of hearings. ese documents are exchanged between the parties and an election is then made as to whether to question and cross-examine witnesses on their statements. However, in some contexts, witnesses are permitted to narrate their stories orally, in addition to their written statements, and in contested matters, oral evidence can still be preferred. 11.33 While case management initiatives create great variability in litigation procedures there is less evidence on its impacts than might be expected of systems emphasising ‘front-end’ activities instead of ‘back-end’ hearings. is suggests that stronger evaluation and longitudinal assessment of case management initiatives is called for to inform ongoing and future reforms. In particular, evidence is required about the efficacy of case management practices in reducing costs and increasing the efficiency of courts.56 11.34 In terms of the future of case management, there are innumerable advancements yet to be introduced.57 Susskind, for example, has long predicted the ‘decomposition’ of the litigation process,58 with all legal processes and events being deconstructed into distinct tasks, for potential assignment to different specialised entities. For Susskind, the overall litigation process has nine components: document review, litigation support,

legal research, project management, e-disclosure, strategy, tactics, negotiations and advocacy. While they are not premised on the disaggregation of litigation tasks, case management systems give effect to the decomposition phenomenon.

Pre-litigation requirements 11.35 Pre-litigation (or pre-action or pre- ling) requirements refer to the steps and activities prospective litigants are required to take before commencing legal proceedings.59 e policy behind such requirements is that parties should get talking [page 361] and problem-solving before they get litigating,60 and the implication of mandating such actions indicates the need for some inducement on this issue. 11.36 e key form of litigation pre-action requirement is that the parties must take ‘reasonable steps’ or ‘genuine steps’ to resolve issues in contention prior to ling their matter in a court or tribunal.61 is requirement pushes the obligation to attempt a resolution back to the disputants themselves before enabling access to the formal determination powers of a court or tribunal. For example, parties intending to litigate in a Family Court must rst engage in family dispute resolution (FDR).62 To render this requirement more than a tick-box formality, the FDR process must be conducted by a registered FDR practitioner (FDRP) who issues a ‘section 60I certi cate’ to the effect that there has been due compliance with the requirement and a ‘genuine effort’ made.63 ere are, given the difficult nature of issues arising in family contexts (particularly, for example, issues of family and domestic violence), several predictable exceptions to the pre-action requirements in this context.64 11.37 ere is some debate over what constitutes a ‘genuine effort’ or ‘genuine steps’,65 although generally they are considered to be steps that

indicate a ‘sincere and genuine attempt to resolve the dispute’, having regard to the circumstances of the persons involved, as well as those of the dispute.66 e requirement is a generalised one which takes shape in particular circumstances. ere are suggestions that the respective courts [page 362] do not themselves raise concerns over non-compliance with the requirement,67 and there is no real jurisprudence over what compliance actually entails, but litigants can, and do, raise the issue in the course of proceedings.68 A party’s failure to comply with the genuine steps requirement may be taken into account by the respective court in exercising any powers relating to proceedings, and in exercising its discretion to award costs.69 e failure of lawyers to advise and assist clients in relation to the genuine steps requirement may also be taken into account by courts in exercising their discretions over cost awards.70

‘ADR’ in court-based litigation 11.38 Decades ago, in 1992, the then President of the New South Wales Court of Appeal, Justice Kirby, suggested, in the context of neighbours disputing over a right of footway, that the dispute would be better suited to mediation: [I]t would be no misfortune if, associated with the court’s procedures, facilities were available to add the authority of the court to attempted consensual resolution, at least for cases between persons such as family or neighbours. … At present there is no such machinery. Litigation must take its chancy course.71

11.39 Since this statement there have been numerous discussion papers, inquiries, reports and recommendations in many jurisdictions resulting in all Australian courts and tribunals acquiring the capacity to align one or more DR processes to their litigation procedures. It is now accepted policy that mandatory referrals by courts to processes such as mediation and conciliation are appropriate, but the power to make referrals nevertheless constitutes a signi cant modi cation to the adversarial features of litigation.

e courts can also make general referrals to dispute resolution and allow the parties to identify their own process.72 11.40 Issues of focus in relation to court referrals to DR processes are the criteria on which referrals should be made, and the circumstances in which it would be inappropriate to make referrals. Even these considerations, however, have become niceties as many courts and tribunals have virtually rendered DR referrals a routine element in their proceedings to the extent that far from ‘ADR’ being an alternative to litigation it has become an alternative way of litigating. e implicit assumption here is that the use of the DR approaches as part of the litigation process should not be le to the discretion of clients and their lawyers and requires instead nudges, suggestions [page 363] or directives from judges. is raises questions of judicial accountability for these applications of managerial power and a former Chief Justice has suggested that decisions of judge administrators should be subject to review or to accountability via publication of periodic reports and reasons for referral orders.73 is would conform to traditional notions of the judicial role in a constitutional democracy, but the view has not yet impacted on judicial decision-making on court-connected DR. 11.41 ere can be advantages in court referrals, as opposed to voluntary noncourt ADR processes, for both parties and intervenors. In particular, protections of con dentiality and immunity will operate through legislative at where they may not be as secure in DR processes unaligned to courts or removed from legislative regulation.74 However, users of court-aligned services might feel that the shadow of the law is more intense in these contexts and that they have reduced scope to resolve disputes in nonlegalised ways appropriate to their personal and commercial needs and interests. 11.42 e following processes can be the subject of court-ordered DR referrals as part of the litigation system:

Facilitated processes — Mediation is the most frequent facilitated destination for outsourced DR functions. In the Federal Court, for example, parties can be ordered to compulsory mediation conducted by registrar mediators who are ordinarily NMAS-accredited,75 although parties can agree to use self-selected mediators at their own expense. In the South Australian Supreme Court, judges can refer parties to mediation with or without their consent and statutory con dentiality and privileges attach to these mediations.76 Advisory processes — e Federal Court, for example, has the authority to refer questions to referees for inquiry and to report back to court.77 Subject to court directions, referees have broad discretions in the conduct of their inquiries and are not bound by rules of evidence.78 Although they provide reasoned reports, the referees do not make binding determinations and referring courts can adopt, vary or reject reports.79 Acceptance is the normal practice and, unless there are serious de ciencies in the way a referee has conducted their inquiries, courts will not revisit their ndings.80 Several courts can make referrals to conciliation, and some can refer to expert appraisal, a referee or neutral evaluation, which can constitute referral options alongside mediation.81 [page 364] Determinative and other processes — Various courts and tribunals can refer disputes to arbitration and other processes such as factnding, case management conferences, settlement conferences and experts’ conferences. Each DR process takes on its identity and shape from the context in which it is used, and in all situations reports are made back to the referring court responsible for the conduct of the litigated proceedings.82

Operational factors 11.43

In terms of referrals to DR processes, there are a number of

operational factors to be considered. Is an entire matter to be referred or is the referral to be con ned to dealing with only part of the proceedings, such as an issue of timing and method of payment?83 Is the physical location of the DR process to take place within court precincts, or in a private location of the parties’ choice? Who is to be the DR practitioner? A court-based practitioner such as a registrar? Or an external DR practitioner chosen from an appointed list, or, for example, from the body of NMAS-accredited mediators? 11.44 Apart from imposing qualifying requirements for mediators and some regulation of the relevant process, courts have little real control over the quality of externally provided services, whereas tribunals with DR practitioners on staff have greater involvement in quality assurance and professional development. is is despite the fact that in the last decade there have been movements towards greater standardisation of quali cations and practice obligations in both general mediation and family dispute resolution, although the former system is not compulsory and universal.84 One of the inevitable trends in this context of exibility is that court-related mediation has become evaluative in nature and more like directive settlement conferences conducted by judges. 11.45 A further operational issue concerns the question of who is to select the DR practitioner. In some contexts, selections are made without consultation with the parties. However, more commonly, referrals are made to party-selected practitioners and only where they cannot agree will courts make the selection. As indicated above, there could also be quali cation requirements for appointees, for example that mediators are NMASaccredited.85 [page 365] 11.46 Outsourced referrals transfer cost and quality assurance risks to the litigants themselves. Party selection of external practitioners provides them with market choices, including options for non-lawyer DR specialists such as engineers in construction disputes, although the choice factor may bene t

‘repeat players’ of DR services, such as insurers, governments and employers, more than it does those using the service on a one-off basis or as self-represented users. However, the principle should be that if the courts are gatekeepers of externally provided services, they should retain responsibility for standards and quality in service delivery, in particular where external referrals are made without party consent.

Pre-appeal dispute resolution 11.47 e conduct of appeals from court judgments has traditionally displayed the same adversarial features as litigation itself, and in this context it might seem counter-intuitive for court systems to encourage settlements when one party already has a judgment in its favour. However, power dynamics and perceptions of risk change when an appeal has been lodged by the defeated party and the respective court has granted leave to appeal, and several courts offer pre-appellate mediation at this stage.86 In practice, the systems are not used to any signi cant extent, but where they are used, matters are sometimes resolved through facilitated negotiation, thereby avoiding the uncertainty, publicity and transaction costs of the appeal process. In some tribunals in Australia, and appeal courts overseas,87 there is more sustained encouragement of pre-appellate DR but as yet there is no mandatory or presumptively mandatory aspect to those available in Australian contexts.

The multi-door courthouse 11.48 e concept of the multi-door (or multi-option) courthouse (MDC) was established in the US many years ago,88 and the metaphor still has some resonance in civil justice reform discussions.89 e concept refers to a system in which disputants [page 366] are provided with information about the DR options available within the

aegis of particular courts and, aer initial triage screening, are referred by trained staff to that section of the court responsible for providing the process considered most appropriate for the dispute and disputants in question. is involves a diagnostic intervention which purports to t a suitable DR process to the features of the dispute and the needs of the parties. MDC systems aim to provide the public with simple and effective access to all DR methods, such as mediation, conciliation, expert appraisal, arbitration and litigation, in a locale that is familiar, of high status and recognised as a DR forum. 11.49 e MDC concept is based on the assumption that there are objective and de nable criteria for selecting an appropriate process for any given dispute. Relevant criteria could include the dispute’s subject matter, the need for legal and other resources, and the personal attributes of the parties; deeper level criteria could include the history of the problem, the seriousness and duration of the dispute, the legal questions involved, the extent of inter-party hostility and power disparities, and the likelihood of future relationships among those involved. is involves a complex multifactored diagnostic decision requiring speci c training and skills. e problem with the proliferation of criteria is that some may point in one direction, for example facilitative mediation, and some in another, for example expedited arbitration. Moreover, as each party to a dispute may bene t from a different forum, there is no objective science in the diagnostic process. e extensive development of case management, and the use of court referrals to different DR processes, has to some extent overtaken the MDC brand and rendered it somewhat super uous. Instead, Australian judges and court officials have acquired multiple tasks and functions over past decades, delivering much of the original concept to users of court services.90

Court-aligned DR in perspective 11.50 e extensive attachment of non-litigation DR systems to Australian courts and tribunals raises issues of theory and practice in relation to their justice credentials and service delivery. One set of questions relates to whether the systems are achieving their claimed objectives of costs

and time savings. Another relates to whether they are, vis-à-vis court hearings and adjudications, providing services of high standard and quality in both how they operate and the outcomes they provide to intended users of courts and tribunals. 11.51 In terms of the systems’ objectives, a distinction is drawn in the literature between two sets.91 One is designated the ‘quantitative–efficiency’ objective and it relates to cost-cutting, resource saving and faster and cheaper imperatives — sometimes [page 367] referred to as the ‘technocratic’ face of DR. e second is designated the ‘qualitative–justice’ objective and it relates to factors of fairness, responsiveness, self-betterment, relationship improvement and other qualitative aspects of clients’ experiences — sometimes referred to as the ‘humanistic face’ of DR.92 Most legislative frameworks accommodating court-aligned DR processes in Australia promote objectives of ‘fair, efficient, informal and quick’ DR, or terms to that effect, suggesting a mix of qualitative and quantitative criteria. However, annual reports from the same institutions inevitably convey more information on the latter than the former.93 11.52 Taken holistically, the objectives of court-aligned DR tend to focus on the use of processes appropriate to the needs of particular cases and parties, to having litigants use DR processes early in proceedings and to providing safeguards for vulnerable parties or for those not immediately involved in disputes but who will be affected by their outcomes. What is certain is that a level of cultural shi has occurred in terms of how courts and tribunals deal with disputes, aligning with changed societal expectations that diverse DR processes will be attached to the courts. In reality, however, there has been limited evaluation of court-based DR systems, in relation to both their quantitative-efficiency and qualitative-effectiveness measures. 11.53 Whatever the critiques of court- and tribunal-aligned systems of DR, these are the circumstances in which the various DR processes have

ourished. It might be contended, with some justi cation, that courts and tribunals are now the sites of the DR innovations which formerly occurred outside these bodies. While cases that settle or resolve are sometimes said to deprive courts of sources for new precedents, in reality it is likely that many of the matters managed effectively through facilitated and advisory processes would never have proceeded to hearings, and that they have been settled or resolved better than if le to linger in litigation lists. It may be that over time pre-action requirements, more rigorous case management practices and judicial dispute resolution systems will render court outsourcing redundant, but they are currently an important arena of DR practice.

Judicial dispute resolution 11.54 e preceding analysis indicates that changes in judges’ roles in case management and other facets of managerial judging have resulted in courts spending [page 368] signi cant resources on pre-trial matters as opposed to actual hearings.94 is has taken judges away, to some extent, from their predominantly ‘umpire’ role in traditional litigation, raising questions as to whether judges themselves should engage overtly in facilitated and advisory DR processes. e focus here is on serving judges conducting DR, known as judicial dispute resolution (JDR) or judicial mediation, and not on those who have already le the bench.95 ere are four broad contentions concerning serving judges acting as mediators or dispute resolvers, as opposed to determining court outcomes, outlined below.

Constitutional considerations 11.55 e constitutional considerations relating to judges acting as mediators or evaluators involve a degree of technicality and can only be

outlined here.96 e rst point relates to the separation of powers doctrine and the contention that, at least at the Commonwealth level, Chapter 3 judges are not allowed to perform non-judicial functions such as mediation. is raises questions as to the true constitutional nature of the judicial function, and its legitimate extent and scope. ere are different views in the literature on this constitutional point.97 It has been suggested that, given the High Court’s approach to appropriate boundaries for the judicial role, where judges act as mediators they may be held to be acting beyond judicial power.98 ere is, however, [page 369] no de nitive jurisprudence on this point. If mediation is regarded as an authentic judicial function, the converse constitutional argument could apply to mediators acting as extensions of the courts, namely that as nonjudges they are precluded from exercising Chapter 3 functions. It could be contended that under current systems of case management and court referrals, the ‘judicial’ role is already shared with registrars, masters, mediators, assessors and experts, as outlined in previous chapters.99 ere is, nonetheless, a political dimension to the ‘outsourcing’ of state power, namely the privatisation of authority vested in an important agent of constitutional democracy; this has potential rule of law implications for contemporary societies. 11.56 A second constitutional argument revolves around the rule of law imperative for access to justice, which is a process goal of the DR value of community. It postulates that citizens have fundamental rights to have direct access to the courts for the purpose of articulating their grievances, participating in hearings and obtaining authoritative determinations — and not for the purpose of having judges facilitate settlements. Whatever the cogency of this argument, as a matter of political theory it is based on neither exact constitutional principles nor settled jurisprudence. Moreover, a counterargument contends that there has never been direct access to judicial hearings, with legislation and court rules providing many conditions and requirements before access can occur. e establishment of pre-action

requirements, and the incorporation of DR processes into litigation proceedings, constitute new sets of conditions which need to be satis ed before full-frontal litigation can ensue. In other words, the various processes, conditions and requirements under consideration may defer, but they do not deny, access to justice.

Compatibility arguments 11.57 Compatibility issues are a ‘soer’ set of contentions than the relatively re ned constitutional law arguments considered above. At issue is the question of whether, in terms of the perceptions of litigants and the general public, it is appropriate for those occupying high judicial office to be involved in facilitating settlements among disputants and in other forms of JDR. Judges are key office-bearers in a branch of the state system, and this carries constitutional responsibilities and expectations, which do not traditionally include mediating and advising on settlements. e metaconcern here relates to con dence in the judicial branch, with the concern being that the transparent nature of orthodox judicial functions would be compromised by judicial mediations occurring behind closed doors, negatively impacting public perceptions about the integrity and impartiality of judges and courts. 11.58 A major judicial in uence and voice in Australian mediation, Sir Laurence Street, argued against judicial mediation, partly on the ground that at the heart of [page 370] the mediation process are the separate sessions in which the mediator ‘explores the perceptions, the prejudices and the objectives of each party in a free ranging examination of the merits and the prospects’.100 In the case of judges, he contended, this private access would repudiate basic principles of fairness that are fundamental to public con dence in the courts. While separate sessions are not an absolute prerequisite for successful mediation, the prevalence of shuttle mediation in legalised disputes reinforces the above

concerns. is predicament can be circumvented by having a different judge conduct the hearing should judicial mediation not achieve a settlement, avoiding disquiet about partiality on the part of an individual judge. However, there could still be concerns, from the perspective of users uninformed as to the niceties of the distinction involved, about the impartiality and fairness of court systems at large. Similar concerns would arise where communications are known to occur between a mediating court official and the hearing judge.101 Judicial views on this topic are in uential and those that have been expressed are generally opposed to the development,102 with some exceptions.103 11.59 Another aspect of the compatibility argument in JDR goes to the more subtle in uence that serving judges can have in settlement negotiation contexts. Judicial status, experience and derived state authority suggest that many lawyers and most clients would be more highly in uenced by opinions, recommendations or even a raised eyebrow from judge dispute resolvers than from non-judicial counterparts. It is easy to overlook this social psychology dimension of DR practice. Standard functions associated with separate meetings, such as testing parties’ assumptions, assisting them to evaluate strengths and weaknesses and presenting hypothetical options for their consideration, might be construed, when judicially presented, as inducements to act in accordance with the relevant suggestions. To be fair, this is not the exclusive province of judges in that other high-status mediators, such as senior barristers and retired diplomats, could also have an overbearing presence in mediation. Indeed, for some legal representatives, the dimension of judicial grandeur might be the very factor they are seeking in order to move recalcitrant clients away from their positional demands.

Performance-based questions 11.60 A third contention relates to the quality of DR services. While judges are highly educated in the law and experienced in the dynamics of court proceedings, they are not necessarily quali ed in the ner arts, and artistry, of facilitative DR processes, including their nuances of communication and subtle techniques of negotiation and

[page 371] problem-solving.104 While some contemporary judges have acted as mediators in prior legal practice, and have more likely represented clients in the process, this experience is oen accidental and does not constitute a dedicated training school for the business of conducting facilitative or advisory DR processes and other forms of JDR. 11.61 Needless to say, there could be specialised training and continuing professional development for judges in facilitative and advisory DR approaches. However, where judges are the driving force behind settlements, they have unavoidable in uence by virtue of their status and authority and the resultant perception is functional mediation knowledge and skills, techniques and attitudes are not therefore required in JDR. In this respect, evaluative or advisory mediation is likely to come further to the fore when the process is conducted through the judicial office. 11.62 e performance argument is notionally weakened by market demands for former judges to serve as facilitative DR intervenors — there are extensive solicitations for judges retired from courts and tribunals to mediate in legal, commercial and specialist disputes. is is partly explicable, however, in terms of lawyers and parties desiring a ‘provisional view’ from a former judge on how the case would fare in the judge’s former jurisdiction — no one is better equipped to provide evaluative mediation in these categories of disputes. However, JDR involves a different structural and normative involvement for serving judges conducting the respective processes and the demand argument is not as persuasive in this context. Judicial domination of mediation could also affect the desired diversity of systems of mediation deriving from the multiplicity of providers it enjoys. Conversely, the determinative judicial role could be compromised where judges are over-extensively involved in JDR.

Accountability considerations 11.63 As is the case with other professionals, mediators are subject to accreditation systems and practice standards, most obviously under the

National Mediator Accreditation System (NMAS).105 ese can give rise to complaints against practising mediators and to disciplinary or legal proceedings for negligence or professional misconduct. e quality and accountability rules and procedures could not readily be applied to judge mediators, at least not in terms comparable to those applying to non-judicial counterparts, although some principles coincide with the ethical obligations pertaining to judicial office. It is, moreover, inconceivable that there could be complaints against judges under a system such as the NMAS, and while there are channels for bringing judges to account, these are complex, rarely invoked and far removed from [page 372] everyday mediation practice.106 To some extent, this discussion is academic and hypothetical as there is not, at the time of writing, extensive JDR in Australia. 11.64 While there is a tendency to equate JDR with judicial mediation it could also comprise judges providing Early Neutral Evaluation (ENE), settlement conferences or summary trials, and there are arguably different considerations between judges being involved in the overtly advisory or determinative processes as opposed to facilitated approaches such as mediation.107

Non-adversarial justice in the courts 11.65 Many of the developments referred to above are manifestations of broader trends in the direction of non-adversarial justice (NAJ) within court systems.108 NAJ has its theoretical foundations in concepts of collaborative law, therapeutic jurisprudence, restorative justice, holistic law and the comprehensive law movement, which are discussed further in Chapter 14 in the context of DR practice and a positive professional identity. While there are different strands of thought in each of these concepts, they have in common the promotion of humanising legal processes designed to provide bene cial and educative dimensions for those participating in them,

regardless of the difficult issues they may involve. e goal of making engagements with legal systems and the courts as humanistic and positive as possible presents high ideals for all the relevant systems.109 11.66 NAJ has many vectors, including Indigenous sentencing courts, less adversarial approaches to trial as was innovated in the Family Court, victimoffender systems and other predominantly facilitated processes in civil and criminal justice systems.110 Some NAJ initiatives have been responses to endemic problems such as excessive caseloads, delays, administrative costs and high levels of offender recidivism. Examples of NAJ responses in this context occur particularly in the criminal sphere of ‘problemsolving courts’ which have developed in various Australian jurisdictions in relation to [page 373] speci ed drug offences and categories of offenders and the protocols introduced for dealing with, for example, domestic violence and mental health issues.111 11.67 ese courts move beyond narrow individualistic conceptions of crime to a wider focus on offenders’ problems, the broader family, community and societal circumstances in which they commit crimes and the possibility of restorative solutions. ey operate through collaborative as opposed to adversarial procedures and, analogously to collaborative law, draw on other disciplines such as psychology and criminology as well as law. Problem-solving courts generally attempt to divert offenders from custodial sentences into community settings where they can receive support services and may be obliged to comply with directives for professional treatment and skills development, for example. e court monitors and assesses an offender’s compliance with their obligations, and rewards and punishments can be imposed in terms of these factors. e ultimate goal of the courts is to reduce recidivism. 11.68 ere have been mixed ndings about the quality and effectiveness of the performance of problem-solving courts. e programs have been extensively surveyed and evaluated and the meta-evidence suggests that:

On balance, they are not more expensive than existing processes and in some cases have proven to be more-cost effective. Consistently, however, most evaluations show that in terms of procedural justice, satisfaction with the justice system, health and wellbeing of outcomes for offenders, victims and witness support, they are superior than the traditional processes … [W]hat they have done, systemically, is to diffuse therapeutic jurisprudence practices to the mainstream, so that many judicial practices more generally re ect the learnings of these courts in their everyday work. …112

11.69 Problem-solving courts are inevitably subject to the politics of the day. Some have been established or disestablished depending on the philosophy of the government of the day, undermined by budget restrictions or have fallen foul of ‘law and order’ lobbies which portray them as being so on crime.

Evaluation 11.70 In many ways, the integration of DR approaches into court and tribunal litigation practice is not new. Chapter 10 illustrated, for example, how the courts have long used arbitration and expert processes. In the past two decades, however, there have been more signi cant changes. One is the introduction of facilitated and advisory processes such as mediation and conciliation into environments previously characterised by adversarial practices and determinative outcomes. Another is the [page 374] willingness of the courts to be more directive in case management functions, along with the incorporation of compulsory engagement with DR processes into litigation. 11.71 Given the long history of the common law courts these developments have occurred in a relatively short period of time, leading to a range of cultural changes. From the DR perspective, these developments have given enhanced legitimacy and prominence to the various processes on the matrix, as well as providing them with some resources, at the partial cost of their being co-opted into curial and legalistic ways of operating. From the

perspective of the courts, the inclusions have not entirely changed predominant adversarial cultures, which remain intact in important essentials, but they have engaged judges in managing, diagnosing, supervising and otherwise participating in dispute management, settlement and resolution endeavours. e extent to which the integration of the systems is leading to improvement in the quality of justice remains a work in progress. However, it is clear from the changes discussed that there are no longer, if there ever were, entitlements for litigants to have judges decide all issues of fact and law in their proceedings, a reality that the courts themselves have acknowledged.113

International litigation and adjudication systems 11.72 While the term litigation is not universally used in relation to the procedures of international courts and tribunals, it is deployed here to maintain the association with domestic litigation.114 Litigation of disputes extending across national borders is conducted by international bodies, which re ects some of the trends already referred to in this chapter. As indicated in relation to other forms of international DR, discussed in Chapter 10, a signi cant difference in international litigation concerns the enforcement of outcomes, because international bodies lack the sovereign authority required for direct enforcement. is is a function not only of legal considerations but also of the dynamics of international relations, political power and economic realities. e various courts and tribunals at this level derive authority predominantly from international treaties and conventions and in their diverse jurisdictions apply the many different forms of international law. 11.73 As noted in Chapter 10, international disputes are those that arise between nation states or entities from different nation states,115 and they have characteristics [page 375] differentiating them from domestic disputes.116 International disputes,

moreover, have a polycentric character, in relation to both substantive issues and the multiple interests of the oen-multiple participants. It was also observed in Chapter 10 that, historically, international law recognised sovereign states as the sole entities with legal rights, duties and prospective remedies, but contemporary practice recognises, in varying degrees, intergovernmental organisations, international NGOs, transnational corporations and even individuals as having some degree of legal personality. As a consequence, international disputes may potentially involve both state and non-state actors. However, the predominant focus remains on nation states and the relatively closed number of actors entails a higher degree of interdependence among the parties to international DR than occurs in domestic contexts. 11.74 Needless to say, there are as many DR processes in relation to international disputes as there are in domestic legal regimes, with resultant choices and arbitrage options for state parties. e UN Security Council, for example, could make a binding determination in relation to an international dispute, but this would be seen more as a political than an adjudicative determination. In addition, there is a plurality of self-help, facilitated and advisory DR processes among which international litigation is only one option, and then sometimes a narrowly circumscribed one. 11.75 Nonetheless, a striking feature of the international legal system since the 1990s has been the increased number of international adjudicatory courts and tribunals, and the enhanced use of those already in existence.117 While these developments have been accompanied by increased nonlitigious processes, the latter have been institutionalised less internationally than has been the case in domestic jurisdictions. As in national settings, most international law claims are managed outside judicial forums, and formal diplomatic channels, or informal back-door procedures, are more likely to be used than the determinative processes referred to here. 11.76 Australia has the potential to be a disputant party in a number of the international courts and tribunals. As a federal state it is the Commonwealth Government that is a member of the United Nations, having become a member in 1945, and it is the Commonwealth

Government that is predominantly subject to the rights and obligations of international law. [page 376]

International Court of Justice 11.77 e International Court of Justice (ICJ), based in e Hague, is the judicial arm of the United Nations established in 1945.118 e ICJ is an international court of general jurisdiction, unlike newer tribunals with specialist powers in trade, intellectual property and the like. Signatory parties to the UN Charter are subject to the Statute of the ICJ which regulates its jurisdiction, procedures and remedies.119 Only nation states can be litigious parties before this body,120 but international organisations such as the UN General Assembly or the World Health Organization can request advisory opinions.121 As is the case with domestic courts, there must be an active ‘dispute’ between the respective states to found jurisdiction and domestic processes must have been exhausted before invoking the ICJ’s jurisdiction.122 11.78 Typical public international law disputes subject to the ICJ involve boundary or frontier con icts between contesting nations, nationalist groups’ claims for autonomy or independence, Indigenous assertions of selfdetermination rights and alleged violations of international human rights standards. Disputes require an ‘international’ dimension to be subject to the ICJ’s jurisdiction in the face of the frequent respondent defence of noninterference in its national sovereignty. e extensive activities of international NGOs, media exposure, diplomatic interventions and the roles of mediators and [page 377] go-betweens all contribute to a limited workload for the ICJ. Nonetheless, it has made numerous signi cant determinations on a range of disputes.123

11.79 Matters before the ICJ can be frustrated by resistance from respondent states attempting to preclude international scrutiny of their actions. e ICJ has no compulsory jurisdiction, with jurisdiction being based on the consent of the respective states.124 Under the ICJ Statute, the court’s jurisdiction is therefore consensual and contingent in nature, unlike the universal rights of access to domestic courts. In this respect, the system more closely resembles arbitration where, as shown in the previous chapter, an arbitrator’s authority is usually based on the parties’ mutual consent. e similarity is heightened in situations where parties submit disputes to the ICJ by special agreement (compromis) which de nes the parameters of their dispute. ese cases are heard by a Special Chamber of the court comprising a reduced number of judges; in one case, the court ruled that the parties themselves could select the judges from the full bench who would sit in a Special Chamber, reinforcing the similarities with arbitration.125 11.80 Judgments of the ICJ are binding on the state parties involved and the UN Security Council has authority to enforce them.126 Where states have concluded special agreements to submit disputes to the court, for example over boundary delimitations, there have been high rates of compliance with judgments, but where jurisdiction has been challenged there are lower compliance rates.127 What these contingencies highlight is that even resolutions of the Security Council are not self-enforcing and there is no international coercive apparatus for enforcement, as is the case with domestic disputes. [page 378] 11.81 As noted previously, the ICJ can render advisory opinions on international law questions when requested by transnational organisations.128 ese opinions are not binding but can constitute in uential interpretations of treaty provisions or persuasive views on other aspects of international law. An authoritative opinion on an interpretive issue could also facilitate resolution of disputes on the agenda of the UN or other international organisations. Domestic courts do not generally have capacity to provide advisory opinions and the ICJ’s role in this regard more

closely resembles expert appraisal or non-binding determination at the national level where it is up to the respective parties as to how they use the opinion in further resolution of their disputes. 11.82 In terms of the effectiveness and legitimacy of the ICJ, the court’s main focus in its adjudications is on the allocation of rights and duties between state parties. However, as alluded to above, international disputes inevitably have broader social, political and economic dimensions. For this reason, while rulings may determine the legal issues at hand, they may have limited impact in addressing or resolving actual con ict situations.129 ere is also concern that in its composition, its adversarial proceedings and its focus on rights and duties, the court has been overly Western-orientated in its style and approach. ICJ judges are elected by the UN General Assembly and Security Council and are intended to represent ‘the main forms of civilisation and … the principal legal systems of the world’.130 When the court rst commenced, this intention was far from being achieved; however, during its evolution its composition has become more representative of the countries and regions over which it has jurisdiction.131 Certainly, the court has a level of legitimacy such that having recourse to it shows that a state is serious about the dispute in question and is taking rm steps to advocate for its own citizenry. Indeed, establishing jurisdiction before the ICJ and obtaining a favourable determination can improve a state’s strategic and negotiating position, and its credibility in the ‘court’ of international public opinion. Moreover, the court’s interpretations of treaties, and of international law concepts, become part of the general body of international law which provides precedent-like norms of legal and legitimacy value for future circumstances. 11.83 In terms of other dimensions of effectiveness, ICJ litigation is expensive, time-consuming and dependent on specialist expertise.132 ere are problems of presenting [page 379] evidence before the court and doubts as to its efficacy as an adjudicative

forum where there are disputed issues of fact. However, the ICJ has salience in providing a permanent body of quali ed adjudicators to which states may have recourse when they deem it appropriate to do so. Adjudication was never intended to be the major source of international DR, but only an exceptional and unusual avenue. International adjudication cannot create world peace and justice, nor was it intended to do so. e function of international adjudication is to provide one of a number of modalities for dealing with disputes across borders that can be pursued prior to or simultaneously with other options.

Other international adjudication 11.84 An important example of other approaches to international adjudication includes the ability of corporations or individuals to bring foreign investment claims against sovereign states, and for these non-state actors to be the principal claimants in investment arbitrations.133 11.85 Another area of international DR development for non-state actors is that of human rights.134 In recent decades there has been extensive growth in the international human rights arena and in respective DR processes. Adjudication on such issues has been possible since 1991 through the First Optional Protocol to the International Covenant on Civil and Political Rights, of which Australia is a signatory.135 e Protocol allows individuals who have rst exhausted available domestic remedies to bring allegations to the UN Human Rights Committee that a signatory state is in breach of the Covenant. In the rst such case against Australia, the Committee considered the criminalisation of homosexuality in Tasmania to be in breach of Australia’s international obligations.136 Legislative steps were subsequently taken to give domestic effect to these obligations.137 Other complaints to the HR Committee have been made by Indigenous Australians by individuals alleging racial discrimination and by asylum-seekers. Australia has accepted the right of individual complaint to the UN Committee on the Elimination of Race Discrimination and the UN Committee against Torture,138 thereby allowing its domestic policies to be the subject of international determinative adjudications.

[page 380] 11.86 A further growing trend in international law is the prevalence of trade disputes between nation states, many of which are managed through the Dispute Settlement Understanding (DSU) of the World Trade Organization (WTO).139 e WTO is the multilateral organisation, based in Geneva, under whose auspice 155 member states negotiate trade treaties and resolve trade disputes. e global trading system is regulated by 15 WTO ‘covered agreements’ dealing with issues such as market access for goods, trade in services and intellectual property issues. A trade dispute arises where a WTO member alleges that another state is in contravention of its international obligations under one or other of the covered agreements. 11.87 e WTO’s dispute resolution functions have been regulated by the DSU since 1994, building on earlier foundations.140 Under the DSU, member states are entitled to bring claims against other states alleging noncompliance with the latter’s trade or trade-related obligations. e DSU prioritises non-adjudicative processes such as negotiation, good offices and mediation, and many trade disputes are resolved through diplomatic efforts outside of the WTO. Where there is no diplomatic resolution, recourse can be had to authoritative adjudication at two levels. At the rst level, a Panel is appointed to receive evidence, hear argument and provide a decision and remedy in the case, and at the second level, the Appellate Body can determine appeals from Panels on questions of law. In terms of remedies availing complainant states, the most frequent outcomes at either level are directives that offending states bring their trade measure, such as illegitimate restrictions on foreign access to their markets, into compliance with treaty obligations. Unlike the ICJ, the WTO’s DR processes are compulsory for the member states. Only WTO members can be direct parties to these disputes, although states are oen representing the commercial interests of their domestic corporations and economic champions.141 ere is also provision for states which are not direct complainants or respondents to become ‘third-party’ participants in DSU processes. 11.88 ere are other specialist bodies which operate as transnational courts with jurisdiction to adjudicate and make binding decisions on

international law matters. For example, the International Tribunal for the Law of the Sea can make binding determinations over law of the sea issues in respect of treaty states.142 Australia was a [page 381] signatory to the Convention and has appeared before the tribunal as an applicant,143 but subsequently withdrew from its arbitration and litigation systems.144 11.89 In 1998, a large number of countries, including Australia, agreed to and rati ed a statute for a permanent International Criminal Court (ICC).145 e ICC has jurisdiction over individuals accused of war crimes, genocide and offences against humanity, provided either the state where the offence allegedly occurred or the state of the accused’s nationality has accepted the court’s jurisdiction.146 e ICC has exercised jurisdiction in relation to war situations in the former Yugoslavia, Rwanda and Sierra Leone and former heads of state have not been immune from prosecution and conviction through its procedures.147 11.90 e statist orientation of the international legal order can reduce DR effectiveness where disputes do not t within this framework. e causes and effects of many disputes crisscross state boundaries: environmental degradation, climate change, public health contagions, the movement of refugees and security concerns do not t easily within traditional concepts of state territorial jurisdiction and control. e true disputants may not be states but the individuals, corporations and other entities whose interests are subsumed within the identity of a respective state. For this reason, the interests of non-state actors may be represented by a state, for example under traditional rules of state responsibility for injuries to aliens. If there is no such state, for example in the case of stateless individuals or supranational bodies, the interests will not be represented at all, although, as shown above, NGOs and individuals can be allowed to appear before the ICJ and WTO. 11.91

e international forms of adjudication, including arbitration, have

a number of de ciencies. e international legal system is largely decentralised and fragmented and based on principles of sovereign independence and consent. Nevertheless, international adjudicative processes perform an important role in the international settlement of disputes. [page 382]

The future of litigation — online courts 11.92 It may not be surprising that recent international reform developments, and adjustments required in response to the Covid-19 pandemic, have placed the future of litigation rmly online.148 In 2015, the UK’s Civil Justice Council’s Online Dispute Resolution Advisory Group handed down a report recommending, among other things, that for lowvalue civil claims a new, internet-based court service should be established and known as HM Online Court (HMOC).149 e Advisory Group argued that ‘radical new solutions are needed in these challenging times for the court system’ and predicted that the proposed HMOC would increase access to justice by providing ‘a more affordable and user-friendly service’ and also result in ‘substantial savings in the cost of the court system’.150 11.93 e Guardian newspaper reported the ‘transformative proposal for largely lawyer-free, virtual courtrooms’ as a ‘radical overhaul for the digital age’.151 e report indicates that both Canada and Holland have already implemented online litigation initiatives and calls on the UK not to fall behind international developments. Canada, for example, launched its rst online tribunal, the Civil Resolution Tribunal, in British Columbia in 2015.152 In Holland, e Hague Institute for the Internationalisation of the Law (HiiL) developed Rechtwijzer 2.0 for the Dutch Legal Aid Board, which provides automated legal guidance and access to various forms of online DR for family law matters (a version for residential tenancies is planned for the future).153 11.94 Julia Hörnle, a Professor of Internet Law at Queen Mary University of London, writing in e Conversation, has said, ‘none of this is science

ction … an online court service is necessary in order to make the civil courts more efficient but also chimes with the expectations of increasingly digitally-native court users. And it will also lead to greater access to justice, if it is implemented in a way which guarantees procedural fairness. e days of “Skype of the Bailey” have just begun’.154 e impact of the Covid-19 [page 383] pandemic has only served to reinforce this direction in litigation. ere is now no going back to the way courts operated previously, and online modalities are a feature that is here to stay.

Lawyers and litigation 11.95 While the business of law is sometimes associated with court-based litigation, the reality is that this constitutes a very small part of actual legal practice. It is the preserve of a small group of solicitors in litigation practices, barristers acting as advocates and emerging groups of solicitor advocates. An even smaller group of government, corporate and private lawyers are involved in the adjudication procedures of international courts such as the ICJ. As has been noted throughout this book, the business of lawyers is predominantly focused on con ict avoidance and dispute prevention through their transactional practices, and where they are directly involved in DR matters, lawyers are overwhelmingly engaged in the facilitated and advisory processes and in the proceedings of tribunals, commissions and other agencies with determinative powers. 11.96 In relation to the skills associated with litigation per se, lawyers draw upon specialist techniques in draing pleadings, preparing witness statements, managing the procedural technicalities of proceedings, leading and cross-examining witnesses, and making submissions and arguments on the law, the facts and the evidence. ese high-level forensic skills are complemented by tactical and strategic cras, as well as generic skills in communication, persuasion, analysis and synthesis.

11.97 e ubiquity of negotiation as a facet of lawyers’ business is also apparent in relation to litigation. Negotiation operates consistently throughout the extended process — before litigation is commenced, during proceedings and aer the hearing and judgment. Negotiating on the steps of the court among clients and lawyers is a fabled aspect of the negotiation aspects of litigation as parties review their risks in relation to the evidence of witnesses, possible delays and opportunity costs in the hearing, and indications from presiding judges. Moreover, negotiation in litigation contexts has multiple trajectories and operates between clients, between clients and their lawyers, between barristers representing each side, and even more obliquely among judges, lawyers and clients. As noted extensively in this book, negotiation is the foundation requirement for lawyers in all facets of DR including in the litigation context.

Conclusion 11.98 is chapter has focused less on traditional forms of court litigation and more on the changing contours of the functions of courts as the new roles of judges assume managerial and supervisory features. e future of litigation is likely to increasingly involve online services and strategies — and will require new forms of legal practice quite removed from litigation’s traditional origins. [page 384] 11.99 Litigation, like many other DR processes, attempts to accommodate oen inconsistent demands: justice, in the sense of fairness; efficiency, in terms of time and costs; responsiveness, in terms of accessibility and informality; independence, in terms of the objectivity of intervenor and procedure. In the view of some, it also serves to provide certainty and nality in the interests of business and commerce. Litigation also has a gravitational pull in relation to other DR processes in that they might all, even if very remotely, be drawn into its domain where an outstanding issue requires adjudication.

11.100 When litigation is compared to other processes on the DR matrix there is a tendency to overstate the differences between litigation and nonlitigation systems, as real as they are. For example, many non-litigation DR processes are premised on principles of self-determination, participation and party control. However, in differing degrees these principles are also evident in traditional litigation — parties decide on initiating and defending claims, on what evidence to adduce and on the way proceedings will be conducted. Conversely, parties in legalised mediation and other forms of informal evaluative or advisory DR might nd their participation and control over outcomes more restricted than their grand theories would suggest. ese tendencies might be drawing litigation and non-litigation forms of DR closer together in structural and even normative terms. 11.101 In the popular imagination, lawyering is associated with a form of litigation no longer apparent in actual courts and tribunals. e reality is that much ‘litigation’ involves back-room activity as judges and court personnel supervise litigants and lawyers and manage litigation proceedings through various forms of communication, orders, referrals and other modes of intervention. 1.

Legal dictionaries de ne litigation in terms such as these: ‘An action brought in court to enforce a particular right. e act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute’ (); ‘A judicial controversy. A contest in a court of justice, for the purpose of enforcing a right’ (); ‘e process of resolving disputes by ling or answering a complaint through the public court system. e nature of this complaint (including the probable outcome for each side) becomes the basis for any settlement negotiations’ (). See, eg, Jonathan Leslie and John Kingston, Practical Guide to Litigation (Routledge, 2nd ed, 1998); David Roberts, A Client’s Guide to Litigation: Understanding the Litigation Process (Pilot House Publishing, 2005); Kenneth P Nolan, A Streetwise Guide to Litigation (ABA, 2013); Greg Lascelles (ed), e International Comparative Legal Guide To: Litigation & Dispute Resolution: A Practical Cross-border Insight into Litigation and Dispute Resolution Work (Global Legal Group, 2013). See further, eg, JE Effron, ‘Breaking Adjudication’s Monopoly: Alternatives to Litigation Come to Law School: Training Issues in Dispute Resolution: ree Perspectives’ (1991) 2(1) Australian Dispute Resolution Journal 21; Rachael Field, ‘e Use of Litigation and Mediation for the Resolution of Custody and Access Disputes: A Survey of

Queensland Family Law Solicitors’ (1996) 7(1) Australian Dispute Resolution Journal 5; Christine McCarthy, ‘Can Leopards Change their Spots? Litigation and its Interface with Alternative Dispute Resolution’ (2001) 12(1) Australasian Dispute Resolution Journal 35; Arthur Marriott, ‘Breaking the Dispute Resolution Deadlock: Civil Litigation and ADR in the United Kingdom and Beyond’ (2006) 17(3) Australasian Dispute Resolution Journal 157; Brendan French, ‘Dispute Resolution in Australia — e Movement from Litigation to Mediation’ (2007) 18(4) Australasian Dispute Resolution Journal 213; Hilary Astor, ‘Australian Universities in Court: Causes, Costs and Consequences of Increasing Litigation’ (2008) 19(3) Australasian Dispute Resolution Journal 156; Tania Sourdin, ‘Making an Attempt to Resolve Disputes Before Using Courts: We All Have Obligations’ (2010) 21(4) Australasian Dispute Resolution Journal 225; Rhain Buth, ‘Responding to Resolve: Considering Pre-Action Requirements in Relation to ADR’ (2010) 21(3) Australasian Dispute Resolution Journal 179; Michael Legg, ‘Mediation of Complex Commercial Disputes Prior to Litigation: e Delaware Court of Chancery Approach’ (2010) 21(1) Australasian Dispute Resolution Journal 44; Michael Redfern, ‘Should Pre-Litigation Mediation be Mandated?’ (2012) 23(1) Australasian Dispute Resolution Journal 6; Tina Popa, ‘All the Way with ADR: Further Endorsement of ADR in Litigation’ (2015) 26(4) Australasian Dispute Resolution Journal 218; Joe Harman, ‘Should Mediation be the First Step in all Family Law Act Proceedings?’ (2016) 27(1) Australasian Dispute Resolution Journal 17; Jasmine Sze Hui Low, ‘Competing Dispute Resolution Clauses: Arbitration over Litigation in Singapore?’ (2016) 27(2) Australasian Dispute Resolution Journal 119; Ummey Sharaban Tahura, ‘Does Mandatory ADR Impact on Access to Justice and Litigation Costs?’ (2019) 30(1) Australasian Dispute Resolution Journal 31. 2.

See also the discussion of the ‘vanishing trial’ phenomenon. A brief selection of the key scholarship on this phenomenon includes: Marc Galanter, ‘e Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 1(3) Journal of Empirical Legal Studies 459; omas J Stipanowich, ‘ADR and the “Vanishing Trial”: e Growth and Impact of “Alternative Dispute Resolution”’ (2004) 1(3) Journal of Empirical Legal Studies 843; Martin H Redish, ‘Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix’ (2004) 57(5) Stanford Law Review 1329; Robert M Ackerman, ‘Vanishing Trial, Vanishing Community — e Potential Effect of the Vanishing Trial on America’s Social Capital’ (2006) (1) Journal of Dispute Resolution 165; Robert P Burns, ‘Advocacy in the Era of the Vanishing Trial’ (2012) 61(4) University of Kansas Law Review 893; Judith Resnik, ‘Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes’ (2016) 85(5) Fordham Law Review 1899; Nora Freeman Engstrom, ‘e Diminished Trial’ (2017) 86(5) Fordham Law Review 2131; Hadas Cohen and Michal Alberstein, ‘Multilevel Access to Justice in a World of Vanishing Trials: A Con ict Resolution Perspective’ (2019) 47(1) Fordham Urban Law Journal 1; Linda Mulcahy and Wend Teeder, ‘Are Litigants, Trials and Precedents Vanishing Aer All?’ (2021) Modern Law Review (forthcoming).

3.

See, eg, Judith Resnik, ‘From Cases to Litigation’ (1991) 54(3) Law and Contemporary Problems 5; Judith Resnik, e Processes of the Law: e Changing Roles of and for Courts (Foundation Press, 2004); Jacques Lenoble and Marc Maesschalck, Toward a eory of Governance: e Action of Norms (Kluwer Law International, 2003). Owen Fiss’ work on litigation and its place in democratic society is seminal: see, eg, ‘e Forms of Justice’ (1979) 93(1) Harvard Law Review 1; ‘e Social and Political Foundations of Adjudication’ (1982) 6(2) Law and Human Behavior 121; ‘e Bureaucratization of the Judiciary’ (1983) 92(8) Yale Law Journal 1442; ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073; ‘Out of Eden’ (1984) 94(7) Yale Law Journal 1669; ‘Why the State?’ (1987) 100(4) Harvard Law Review 781; ‘Justice Chicago Style’ (1987) University of Chicago Legal Forum 1; ‘e Political eory of the Class Action’ (1996) 53(1) Washington and Lee Law Review 21. See also David Luban, ‘Settlements and the Erosion of the Public Realm’ (1994) 83(7) Georgetown Law Journal 2619; Judith Resnik, ‘For Owen M Fiss: Some Re ections on the Triumph and the Death of Adjudication’ (2003) 58(1) University of Miami Law Review 173; Amy J Cohen, ‘Revisiting Against Settlement: Some Re ections on Dispute Resolution and Public Values’ (2009) 78(3) Fordham Law Review 1143; Howard M Erichson, ‘Foreword: Re ections on the Adjudication-Settlement Divide’ (2009) 78(3) Fordham Law Review 1117; Patricia Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6(3) Legisprudence 257; Russell Engler, ‘Turner v. Rogers and the Essential Role of the Courts in Delivering Access to Justice’ (2013) 7(1) Harvard Law and Policy Review 31; Kirsten Sandberg, ‘e Role of National Courts in Promoting Children’s Rights: e Case of Norway’ (2014) 22(1) e International Journal of Children’s Rights 1; Nicholas Aroney and John Kincaid, Courts in Federal Countries: Federalists or Unitarists? (University of Toronto Press, 2017); Roberto Gargarella, eunis Roux and Pilar Domingo, Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Routledge, 2017); Richard Marcus, ‘Reassessing the Essential Role of Public Courts: e American Experience’ in Alan Uzelac and CH (Remco) van Rhee (eds), Transformation of Civil Justice: Unity and Diversity (Springer, 2018) 173; Kari C Kelso and J Clark Kelso, ‘Civic Education and Civil Discourse: A Role for Courts, Judges, and Lawyers’ (2021) 21(2) Journal of Appellate Practice and Process 473.

4.

Former Chief Justice Martin used this phrase in a critical sense to denote the expense and privilege of access to litigation: see Wayne Martin, ‘Improving Access to Justice through the Procedures, Structures and Administration of the Courts’ (Address to the Australian Lawyers Alliance Western Australian State Conference, Perth, Australia, 21 August 2009).

5.

See Lord Woolf, Access to Justice: Interim Report (UK Government, 1995); Lord Woolf, Access to Justice: Final Report (UK Government, 1996). See most recently in the Australian context, Law Council of Australia, e Justice Project (LCA, 2018). See further the discussion of the history of civil justice reform in Chapter 6.

6.

Richard C Reuben, ‘Democracy and Dispute Resolution: e Problem of Arbitration’

(2004) 67(1/2) Law and Contemporary Problems 279, 282. 7.

Nils Christie, ‘Con icts as Property’ (1977) 17(1) British Journal of Criminology 1.

8.

See generally the texts on civil procedure in Australia: Sonya Willis, Civil Procedure (Palgrave Macmillan, 2012); Andrew Hemming, Colin Lockhart and Tania Penovic, Civil Procedure in Australia (LexisNexis Butterworths, 2014); Hugh Zillman, A Civil Litigation Practice Manual (omson Reuters, 2018); Roger Douglas et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019); Bernard C Cairns, Australian Civil Procedure (omson Reuters, 12th ed, 2019); David Bamford and Mark Rankin, Principles of Civil Litigation (omson Reuters, 4th ed, 2021).

9.

e notion of party autonomy in adversarial approaches to litigation is consistent with the principles of liberalism in Western democratic political theory. See, eg, A John Simmons, e Lockean eory of Rights (Princeton University Press, 1992); Ruth W Grant, John Locke’s Liberalism (University of Chicago Press, 2010). Consider also the perspectives in Nancy A Welsh, ‘Disputants’ Decision Control in Court-Connected Mediation: A Hollow Promise without Procedural Justice’ (2002) Journal of Dispute Resolution 179. See further Bobette Wolski, ‘Re-Assessment of QCAT’s Hybrid Hearing and Arb-Med-Arb under s 27D of the Commercial Arbitration Act’ (2014) 3(4) Journal of Civil Litigation and Practice 156, 168.

10.

See Christie, (n 7).

11.

Pearce, Engler and Zorza all advocate for replacing ‘the paradigm of judge as passive umpire with the paradigm of judge as active umpire’: see Russell G Pearce, ‘Redressing Inequality in the Market for Justice: Why Access to Lawyers Will Never Solve the Problem and Why Rethinking the Role of Judges Will Help’ (2004) 73(3) Fordham Law Review 969, 970. See further Russell Engler, ‘And Justice for All — Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks’ (1999) 67(5) Fordham Law Review 1987; Richard Zorza, ‘e Disconnect Between the Requirements of Judicial Neutrality and those of the Appearance of Neutrality When Parties Appear Pro Se: Causes, Solutions, Recommendations, and Implications’ (2004) 17(3) Georgetown Journal of Legal Ethics 423. See also eodore A McKee, ‘Judges as Umpires’ (2006) 35(4) Hofstra Law Review 1709; Kim Wardlaw, ‘Umpires, Empathy, and Activism: Lessons from Judge Cardozo’ (2010) 85(4) Notre Dame Law Review 1629; Chad M Oldfather, ‘Aesthetic Judging and the Constitution (or, Why Supreme Court Justices are Less Like Umpires and More Like Figure-Skating Judges)’ (2020) 72(2) Florida Law Review 391.

12.

For an interesting perspective on behavioural research and its connection with judicial decision-making practice, see, eg, omas J Miceli and Metin M Coşgel, ‘Reputation and Judicial Decision-Making’ (1994) 23(1) Journal of Economic Behavior and Organization 31; Howard Gillman, ‘What’s Law Got to do with it? Judicial Behavioralists Test the “Legal Model” of Judicial Decision Making’ (2001) 26(2) Law and Social Inquiry 465. See also, eg, Lawrence S Wrightsman, Judicial Decision Making:

Is Psychology Relevant? (Kluwer Academic/Plenum Publishers, 1999); Harry T Edwards, ‘e Effects of Collegiality on Judicial Decision Making’ (2003) 151(5) University of Pennsylvania Law Review 1639; Neil Brewer and Kipling D Williams (eds), Psychology and Law: An Empirical Perspective (Guilford Publications, 2017). 13.

See Michael King et al, Non-Adversarial Justice (Federation Press, 2nd ed, 2014). See also Australian Law Reform Commission, Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System (Commonwealth Government, 1997); Helen Stacy and Michael Lavarch (eds), Beyond the Adversarial System (Federation Press, 1999); Robert A Kagan, Adversarial Legalism: e American Way of Law (Harvard University Press, 2009).

14.

See, eg, David Ipp, ‘Maintaining the Tradition of Judicial Impartiality’ (2008) 12 Southern Cross University Law Review 87.

15.

Caroline Maughan and Julian Webb, Lawyering Skills and the Legal Process (Cambridge Press, 2nd ed, 2005) ch 6; Virginia Dunn, Professional Negligence Litigation in Practice (Oxford University Press, 5th ed, 2010). See also William H Fortune et al, Modern Litigation and Professional Responsibility Handbook: e Limits of Zealous Advocacy (Wolters Kluwer Law & Business, 2016).

16.

e relevance of an understanding of elements of psychology to effective DR practice generally was noted in Chapter 2. Psychology is very relevant to effective practice in litigation. Interestingly, there is much to be learned from sports psychology in this regard: Nicholas T Gallucci, Sport Psychology: Performance Enhancement, Performance Inhibition, Individuals, and Teams (Psychology Press, 2nd ed, 2013); Stephen Potter, e eory and Practice of Gamesmanship: Or, the Art of Winning Games without Actually Cheating (Pickle Partners Publishing, 2015); Mark H Anshel, Trent A Petrie and Jesse A Steinfeldt, APA Handbook of Sport and Exercise Psychology Volume 1 (American Psychological Association, 2019); Robert Schinke et al, ‘Sport Psychology Services to High Performance Athletes During COVID-19’ (2020) 18(3) International Journal of Sport and Exercise Psychology 269. See also Susan A Jackson and Mihaly Csikszentmihalyi, Flow in Sports (Human Kinetics, 1999).

17.

See, eg, Robert Nicholson, ‘Australian Experience with Self-Represented Litigants’ (2003) 77(12) Australian Law Journal 820; Deborah L Rhode, Access to Justice (Oxford University Press, 2004); Duncan Webb, ‘e Right Not to Have a Lawyer’ (2007) 16(3) Journal of Judicial Administration 165; Margaret McMurdo, ‘e Self-Represented Litigant in the Court of Appeal, Supreme Court of Queensland’ (2014) 24(1) Journal of Judicial Administration 13; Harlis Kirimof and Erik Dober, ‘Known Unknowns: e Overarching Obligations of Self-Represented Parties’ (2015) 25(1) Journal of Judicial Administration 28; Tania Sourdin and Nerida Wallace, ‘e Dilemmas Posed by SelfRepresented Litigants: e Dark Side’ (2014) 24(1) Journal of Judicial Administration 61; Stephen Kós, ‘Civil Justice: Haves, Have-Nots and What to Do about em’ (2016) 5(3) Journal of Civil Litigation and Practice 178; Emma Garrett, ‘e Impact of SelfRepresented Litigants on the Administration of Justice in the Federal Court of

Australia’ (2020) 9(1) Journal of Civil Litigation and Practice 34. See also Tony Woodyatt, Allira ompson and Elizabeth Pendlebury, ‘Queensland’s SelfRepresentation Services: A Model for Other Courts and Tribunals’ (2011) 20(4) Journal of Judicial Administration 225; Samara Bell, ‘Unbundled Legal Services for Self-Represented Litigants: e Data, the Impact, the Future’ (2017) (August) Bulletin (Law Society of South Australia) 26; Reg Hamilton, ‘e Fair Work Commission and Self-Represented Parties’ (2018) 8 Workplace Review 118; James Goh, ‘e SelfRepresented Litigants’ Challenge: A Case Study’ (2018) 43(1) Alternative Law Journal 48; Jane Wangmann, Tracey Booth and Miranda Kaye, Self-Represented Litigants in Family Law Proceedings Involving Allegations About Family Violence (ANROWS, 2020); Amy J Schmitz and John Zeleznikow, ‘Intelligent Legal Tech to Empower SelfRepresented Litigants’ (2021) University of Missouri School of Law Legal Studies Research Paper 2021-24. 18.

See also the discussion in Chapter 4 about the ways in which parties seek and achieve self-help in DR contexts. See, eg, Jonathan Crowe et al, ‘“I’ll Just Google at!” Online Searches and the Post-Separation Family Law Information Experience’ (2019) 44(2) Alternative Law Journal 108.

19.

See .

20.

Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341. e Full Court of the Family Court comprehensively considered the question of the extent to which a judicial officer is obliged to intervene in proceedings involving a party or parties who are self-represented in Re F: Litigants in Person Guidelines [2001] FamCA 348. e court set out a number of guidelines regarding interventions judicial officers may make without raising an apprehension of bias. e overriding task of the judicial officer is to ensure procedural fairness to all parties. e guidelines were expressed as not exhaustive and included: informing the party of procedural matters; generally explaining the right to object and claim of privilege; explaining how to question witnesses; clarifying the relevant issues; clarifying the substance of the party’s submissions and orders sought; and identifying submissions and applications that ought to be made.

21.

Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1.

22.

New South Wales Bar Association, ‘Guidelines for Barristers on Dealing with SelfRepresented Litigants’ (2011) . See also Browne v Dunn (1893) 6 R 67; and Peter W Young, ‘Browne v Dunn in Magistrates’ Courts’ (2000) 74(5) Australian Law Journal 284.

23.

See, eg, Franklin Strier, ‘What Can the American Adversary System Learn from an Inquisitional System of Justice’ (1992) 76(3) Judicature 109; Ian F Shepherd, ‘e Issue of the Inquisitorial System of Justice’ (1999) 31(1) Australian Journal of Forensic Sciences 19; Matthew T King, ‘Security, Scale, Form, and Function: e Search for Truth and the Exclusion of Evidence in Adversarial and Inquisitorial Justice Systems’

(2001) 12 International Legal Perspectives 185; Hein Kotz, ‘Civil Justice Systems in Europe and the United States’ (2003) 13(3) Duke Journal of Comparative and International Law 61; Rebecca A Anderson and Amy L Otto, ‘Perceptions of Fairness in the Justice System: A Cross-Cultural Comparison’ (2003) 31(6) Social Behavior and Personality 557; John Anthony Jolowicz, ‘Adversarial and Inquisitorial Models of Civil Procedure’ (2003) 52(2) International and Comparative Law Quarterly 281; Felicity Nagorcka, Michael Stanton and Michael Wilson, ‘Stranded between Partisanship and the Truth: A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice’ (2005) 29(2) Melbourne University Law Review 448; Louis TC Harms, ‘Demysti cation of the Inquisitorial System’ (2011) 14(5) Potchefstroom Electronic Law Journal 2; Justin Sevier, ‘e Truth-Justice Tradeoff: Perceptions of Decisional Accuracy and Procedural Justice in Adversarial and Inquisitorial Legal Systems’ (2014) 20(2) Psychology, Public Policy and Law 212; David Newlyn, ‘Adversarial vs Inquisitorial Legal Systems: Rousseau, Truth, Justice and God’ (2018) 6(5) International Journal of Research in Applied, Natural and Social Sciences 165; Halil Cesur, ‘e Analytical Value of the Adversarial-Inquisitorial Dichotomy in Approaches to Proof: e Examples of England and Turkey’ (2018) 6(2) Journal of Penal Law and Criminology 155; Anogika Souresh, ‘e Adversarial vs Inquisitorial Dichotomy in International Criminal Law: A Redundant Conversation’ (2019) 5(1) International Comparative Jurisprudence 81. 24.

Abraham S Goldstein and Martin Marcus, ‘e Myth of Judicial Supervision in ree “Inquisitorial” Systems: France, Italy, and Germany’ (1977) 87(2) Yale Law Journal 240.

25.

ere is an extensive literature on legal remedies for particular areas of law. See, eg, Geoffrey Samuel, Law of Obligations and Legal Remedies (Routledge, 2nd ed, 2001); Katy Barnett and Sirko Harder, Remedies in Australian Private Law (Cambridge University Press, 2nd ed, 2018); Wayne Covell, Keith Lupton and Louise Parsons, Principles of Remedies (LexisNexis Butterworths, 7th ed, 2018); David M Wright and Samantha J Hepburn, Remedies in Equity: e Laws of Australia (omson Reuters, 2nd ed, 2019).

26.

See Roger Quick, Quick on Costs (omson Reuter, 2002); Mark Friston, Civil Costs: Law and Practice (Jordans Publishing, 2nd ed, 2012).

27.

See, eg, Dorne Boniface and Michael Legg, ‘Cost, Delay and Justice: e High Court of Australia Recognizes the Importance of Case Management in Civil Litigation’ (2010) 39(2) Common Law World Review 157. See also discussion in Chapter 6 in relation to reform of the civil justice system in Australia and internationally.

28.

e Productivity Commission noted in 2014 that ‘while substantial reforms have been undertaken, progress has been uneven across jurisdictions and arguably court processes do not yet sufficiently ensure that unnecessary costs and delays are avoided’: Productivity Commission, Access to Justice Arrangements, Report No 14 (2014) vol 1, 15.

29.

See, eg, Telstra Corp Ltd v Phone Directories Co Pty Ltd (No 3) [2014] FCA 949.

30.

See Tom F Bathurst, ‘e Role of the Courts in the Changing Dispute Resolution Landscape’ (2012) 35(3) UNSW Law Journal 870, 871.

31.

Aon Risk Services v Australian National University (2009) 239 CLR 175, 189 (French CJ). See also Ronald Sackville, ‘e Future of Case Management in Litigation’ (2009) 18(4) Journal of Judicial Administration 211, 212; Alicia Lyons, ‘Recasting the Landscape of Interlocutory Applications: Aon Risk Services Australia Ltd v Australian National University’ (2010) 32(3) Sydney Law Review 549.

32.

See also, eg, Kylie Downes and Scott Richardson, ‘Back to Basics: Interlocutory Applications in the Federal Court’ (2013) 33(8) e Proctor 28; Anna Olijnyk, ‘Apprehended Bias and Interlocutory Judgments’ (2013) 35(4) Sydney Law Review 761; Andrew Mullane, Craig Humphris and Todd Shand, ‘Interlocutory Injunction Applications in Australia’ (2015) 10(3) Journal of Intellectual Property Law and Practice 170; Bryan Lammon, ‘Finality, Appealability, and the Scope of Interlocutory Review’ (2018) 93(4) Washington Law Review 1809; Stafford Shepherd, ‘Court, Client and Colleague: Our Duties: Interlocutory Applications’ (2018) 38(1) Proctor 27.

33.

For example, in the Federal Court ‘a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible’, Federal Court Rules 2011 (Cth) r 20.11.

34.

See Edson R Sunderland, ‘Scope and Method of Discovery before Trial: Inadequacy of the Pleadings as a Basis for Trial’ (1933) 42(6) Yale Law Journal 863; Wayne D Brazil, ‘e Adversary Character of Civil Discovery: A Critique and Proposals for Change’ (1978) 31(6) Vanderbilt Law Review 1295. See also Michael Moffitt, ‘Pleadings in the Age of Settlement’ (2005) 80(3) Indiana Law Journal 727.

35.

For example, in Australian Competition and Consumer Commission v Derodi Pty Ltd [2016] FCA 365, in which the court ordered egg producers to publish a corrective notice to the effect that they had engaged in false and misleading conduct in relation to claims their eggs were laid by hens that could move freely on open ranges when this was not the case. e producers were also required to update their consumer compliance program and pay a penalty of $300,000.

36.

See, eg, John Doyle, ‘Imagining the Past, Remembering the Future — e Demise of Civil Litigation’ (8th Gerard Brennan Lecture, Bond University, Gold Coast, 1 July 2011) 6; Law Council of Australia and Federal Court of Australia, Case Management Handbook (2014) .

37.

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report 89 (2000) 390. See the litany of reviews in the civil justice reform area referred to in Chapter 6.

38.

See generally Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed,

2020) chs 1 and 8. See also James Allsop, ‘Judicial Case Management and the Problem of Costs’ (2015) 42(4) Brief 14; Peter CH Chan and CH (Remco) van Rhee (eds), Civil Case Management in the Twenty-First Century: Court Structures Still Matter (Springer, 2021); Ibnu Sina Chandranegara, ‘Comparative Judicial Emergency Administration during Pandemic Covid-19’ (2021) 14(2) Journal of Policy and Law 27. See also the discussion of the ‘case-management revolution’ in the UK since the Wolff reforms in Neil Andrews, e ree Paths of Justice: Court Proceedings, Arbitration and Mediation in England (Springer, 2010) ch 1. 39.

Cairns, (n 8).

40.

See Aon Risk Services v Australian National University (2009) 239 CLR 175, 217–19.

41.

Murray Gleeson, ‘Managing Justice in the Australian Context’ (2000) 77 On the Bench: Perspectives on Judging 62, 66.

42.

James Wood, ‘e Changing Face of Case Management: e New South Wales Experience’ (1995) 4(3) Journal of Judicial Administration 121, 123. Many rules of court required pre-trial conferences in the 1970s and 1980s but these tended to require only nominal efforts from parties and lawyers.

43.

See Judith Resnick, ‘Managerial Judges’ (1982) 96(2) Harvard Law Review 374, 376–7. See also, eg, E Donald Elliott, ‘Managerial Judging and the Evolution of Procedure’ (1986) 53(2) University of Chicago Law Review 306; Tobias Wolff, ‘Managerial Judging and Substantive Law’ (2013) 90(3) Washington University Law Review 1027; Steven Baicker-McKee, ‘Reconceptualizing Managerial Judges’ (2015) 65(2) American University Law Review 353; Ellen E Deason, ‘Beyond Managerial Judges: Appropriate Roles in Settlement’ (2017) 78(1) Ohio State Law Journal 73. See also, eg, Chris Gill, Tom Mullen and Nial Vivian, ‘e Managerial Ombudsman’ (2020) 83(4) Modern Law Review 797.

44.

In the Federal Court, eg, see Caroline Sage, Ted Wright and Carolyn Morris, Case Management Reform: A Study of the Federal Court’s Individual Docket System (Law and Justice Foundation of New South Wales, 2002). e Federal Court now operates under the National Court Framework (NCF) with the ‘overarching purpose of civil practice and procedure and case management within the individual docket system is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible’: see ss 37M and 37N Federal Court of Australia Act 1976 (Cth) and Part 7 of the Central Practice Note (CPN-1)’ . See also, eg, Satyam Mukherjee and Ryan Whalen, ‘Priority Queuing on the Docket: Universality of Judicial Dispute Resolution Timing’ (2018) 6(1) Frontiers in Physics (online).

45.

For example, in the UK by the Court of Appeal in Dermot Grand Richard Walsh v Andre Marin Misseldine (unreported, CA (UK), 29 February 2000), para 71.

46.

For example, in the Federal Court of Australia under the National Court Framework, (n 44).

47.

Wood, (n42) 122. See also, eg, Eduardo Oteiza, ‘Case Management and Judicial Management: Five Perspectives with a Common Aim’ (2018) 8(1) International Journal of Procedural Law 5; Fuhua Wang, ‘A Brief Note on the Application of Information and Communication Technology in Civil Judicial Case Management’ in Peter CH Chan and CH (Remco) van Rhee (eds), Civil Case Management in the Twenty-First Century: Court Structures Still Matter (SpringerLink, 2021) 195–8. See also, however, Masood Ahmed and Fatma Arslan, ‘Compelling Parties to Judicial Early Neutral Evaluation but a Missed Opportunity for Mediation: Lomax v Lomax [2019] EWCA Civ 1467’ (2020) (1) Civil Justice Quarterly 1.

48.

For example, at the federal level, the Civil Dispute Resolution Act 2011 (Cth) and at the state level, eg, the Civil Procedure Act 2010 (Vic) and Civil Procedure Act 2010 (Qld).

49.

Sackville, (n 31) 213.

50.

See David Ipp, ‘Reforms to the Adversarial Process in Civil litigation — Part II’ (1995) 69(10) Australian Law Journal 790; Janet Martin, ‘Friendly Persuasion — How Mediation Bene ts Case Management: e Experience of the Supreme Court of Western Australia’ (1996) 6(2) Journal of Judicial Administration 65.

51.

Federal Court Rules 2011 (Cth) r 1.34, read with r 1.32.

52.

Wood, (n 42) 128–9.

53.

New South Wales, for instance, has specialist lists for defamation, administrative law and professional negligence actions, among others. e lists also allow the use of judges with relevant expertise. e Federal Court of Australia has eight National Practice Areas: Administrative, Constitutional and Human Rights, Native Title, Commercial and Corporations, Taxation, Intellectual Property, Employment and Industrial Relations, Admiralty and Maritime, and Criminal Cartel Trials.

54.

See, eg, Productivity Commission, (n 28) 388.

55.

e calling of expert witnesses causes concerns over cost and duration in trials. To some extent the ‘duelling experts’ phenomenon, in which each side produces its own partisan expert witnesses and non-expert judges adjudicate on the technical issues which they dispute, is accepted but it is also recognised as costly and protracted and sometimes not helpful to deciding a matter. See, eg, John H Wade, ‘Dueling Experts in Mediation and Negotiation: How to Respond When Eager Expensive Entrenched Expert Egos Escalate Enmity’ (2004) 21(4) Con ict Resolution Quarterly 419; John Wade, ‘Judicial Decision-Making in Australia — Critique and Redemption’ (2008) 11, 19. See also Megan A Yarnall, ‘Dueling Scienti c Experts: Is Australia’s Hot Tub Method a Viable Solution for the American Judiciary?’ (2009) 88(1) Oregon Law Review 311; Patricia D Galloway, ‘Using Experts Effectively and Efficiently in Arbitration’ (2012) 67(3) Dispute Resolution Journal 26. However, on the usefulness of experts on technical issues, see, eg, Terence Cole, ‘Expediting the Dispute Resolution Process — References Out of Court’ (1994) e Arbitrator 222, 223. To overcome the ‘duelling experts’ syndrome courts themselves are increasingly able to call single experts. In terms of

statutory guidelines to assist courts in decisions over the appointment of experts, see, eg, Civil Procedure Act 2010 (Vic) s 65M. Even where there are ‘duelling experts’, courts can require them to give conjoint or concurrent evidence. is is referred to colloquially as ‘hot-tubbing’. See, eg, Elizabeth Cheeseman, ‘Hot Tubbing: Concurrent Expert Evidence’ (2007) Bar News 54; Stephen Rares, ‘“Using the Hot Tub” — How Concurrent Expert Evidence Aids Understanding Issues’ (2012) 31 Civil Justice Quarterly 30; David Wilson et al, ‘Hot-Tubbing Experts: Is there Scope for the Use of Concurrent Expert Evidence?’ (2013) 8(9) Journal of Intellectual Property Law and Practice 691; Bertus de Villiers ‘“Conferral of Experts” and “Concurrent Evidence” — What do Experts ink of It?’ (2015) 42 Brief 30. 56.

See, eg, Productivity Commission, (n 28) 389–90. Greater empirical analysis and evaluation of case management procedures is possible through, eg, the Australian Institute of Judicial Administration (), the National Judicial College () and the International Framework for Court Excellence (). In contrast, the Law Council of Australia has suggested that one of the best ways of reducing litigation costs is by having less work done by expensive lawyers during legal proceedings, in particular in discovery activities: Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts, Report No 115 (2011) 16.

57.

For example, requiring costs management through parties lodging litigation budgets for court approval. See, eg, Bernard C Cairns, ‘Justice and Efficiency — the Federal Court Case Management Handbook’ (2012) 1(2) Journal of Civil Litigation and Practice 74, 75. It has been noted before that the contemporary objective of civil procedure is to pursue the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. See Federal Court of Australia Act 1976 (Cth) s 37M.

58.

See Richard Susskind, e End of Lawyers? Rethinking the Nature of Legal Services (Oxford University Press, revised ed, 2010); Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2013). See further Richard Susskind and Daniel Susskind, e Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford University Press, 2015).

59.

See Shelley Greer, ‘Should Pre-Action Protocols Be Adopted by the New Zealand Civil Justice System’ (2014) 22 Waikato Law Review 165; Tania Sourdin and Margaret Castles, ‘Is the Tail Wagging the Dog? Finding a Place for ADR in Pre-Action Processes: Practice and Perception’ (2020) 41(2) Adelaide Law Review 479; Margaret Castles, Michelle Hamlyn and Shavin Silva, ‘Pre-Action Protocols Under SA’s New Uniform Civil Court Rules’ (2021) 43(1) Bulletin (Law Society of South Australia) 26.

60.

See JMK Management Ltd v Range Resources Ltd [2012] FCA 961, [14].

61.

See, eg, Civil Procedure Act 2010 (Vic) Ch 3; Civil Procedure Act 2005 (NSW) Pt 2A. See also, eg, Civil Dispute Resolution Act 2011 (Cth) ss 6(1), 7(1). See also, eg, for some speci c contexts such as Farm Debt Mediation Act 1994 (NSW) and the Owners

Corporation Act 2006 (Vic). See also, eg, Julie Soars, ‘Genuine Steps Obligations and Pre-Litigation Requirements’ (2011) (Winter) Bar News: e Journal of the NSW Bar Association 19; Michael Chan, Julia Virgo and Karen Ingram, ‘Genuine Steps: New Federal Direction, But Way Ahead Not Clear’ (2011) 49(8) Law Society Journal: e Official Journal of the Law Society of New South Wales 56; Harry Hobbs, ‘e Dispute Resolution Act 2011 (Cth) and the Meaning of “Genuine Steps”: Formalising the Common Law Requirement of “Good Faith”’ (2012) 23(4) Australasian Dispute Resolution Journal 249; Julia Virgo and Karen Ingram, ‘e Effect of Genuine Steps Requirements on Statutory Demand Proceedings’ (2012) 50(10) Law Society Journal 32. 62.

is requirement previously only applied to parenting matters; however, with the merger of the Family Courts on 1 September 2021 it has been extended to property matters also.

63.

Family Law Act 1975 (Cth) s 60I.

64.

ese include urgent matters, where a party is unable to participate effectively (eg, due to incapacity to do so or physical remoteness from an FDRP), where the application relates to alleged contravention of existing orders made within the last 12 months and there are reasonable grounds to believe the person who allegedly contravened the order has behaved in ways that show serious disregard for their order obligations, and where the court is satis ed there are grounds to believe there has been child abuse or family violence by a party, there is a risk of family violence, or there is a risk of child abuse if there was a delay in applying to the court.

65.

See, eg, Hilary Astor, ‘Making a “Genuine Effort” in Family Mediation: What Does it Mean?’ (2008) 22(2) Australian Journal of Family Law 102; Hilary Astor, ‘Genuine Effort in Family Dispute Resolution’ (2010) 84 Family Matters 61; Hilary Astor, ‘Genuine Effort in Family Dispute Resolution’ (2010) 16(1) Family Relationships Quarterly 3; Joshua Taylor, ‘A Critical Analysis of Practitioners Issuing “Not Appropriate for Family Dispute Resolution” Certi cates under the Family Law Act 1975 (Cth)’ (2020) 41(1) Adelaide Law Review 149.

66.

Civil Dispute Resolution Act 2011 (Cth) s 4(1A).

67.

See Angela Browne, ‘Reforms to Civil Justice: Alternative Dispute Resolution and the Courts’ (2015) 39(3) Australian Bar Review 275, 280.

68.

See, eg, King Par LLC v Brosman Golf Pty Ltd [2013] FCA 640; Hookway v MID Pty Ltd [2012] FCA 1456.

69.

Civil Dispute Resolution Act 2011 (Cth) ss 11–13.

70.

Civil Dispute Resolution Act 2011 (Cth) s 12.

71.

Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343, 351.

72.

Courts do occasionally make generic referrals (see Ing Bank (Australia) Ltd v Hung [2013] NSWSC 1924) or refer different parts of a matter to different processes.

73.

Gerard Brennan, ‘Key Issues in Judicial Administration’ (1996) 6(3) Journal of Judicial

Administration 138, 141. 74.

For example, Federal Court of Australia Act 1976 (Cth) s 53B.

75.

Federal Court of Australia Act 1976 (Cth) s 53A. See also Civil Procedure Act 2010 (Vic) s 65M.

76.

Supreme Court Act 1935 (SA) s 65.

77.

Federal Court of Australia Act 1976 (Cth) s 54A.

78.

Federal Court Rules 2011 (Cth) r 28.65.

79.

Parties can apply for a report to be accepted — Shannon (in his capacity as receiver and manager of North East Wiradjuri Co Ltd) v North East Wiradjuri Co Ltd (No 3) [2012] FCA 106.

80.

On the principles for dealing with referees’ reports, see Chocolate Factory Apartments v Westpoint Finance Pty Ltd [2005] NSWSC 784, [7].

81.

See, eg, Federal Court Rules 2011 (Cth) Div 28.6 — Referral by Court to referee.

82.

DR processes are not only a function of court referrals — eg, there have been suggestions that they can also be used for interlocutory applications. See Adele Carr, ‘Broadening the Traditional Use of Mediation to Resolve Interlocutory Issues Arising in Matters Before the Courts’ (2016) 27(1) Australasian Dispute Resolution Journal 10.

83.

See Jeray v Blue Mountains City Council [2013] FCA 545.

84.

See Chapter 13 for further discussion of the National Mediator Accreditation System (NMAS) and Family Dispute Resolution Practitioners (FDRP) systems.

85.

For example, pursuant to s 35(2)(a) of the Civil and Administrative Tribunal Act 2008 (ACT) a tribunal may refer a matter to an ‘accredited mediator’. An ‘accredited mediator’ is de ned in the Dictionary as ‘a person who is entered as a mediator in the register of nationally accredited mediators maintained by the Mediator Standards Board’.

86.

See, eg, the Victorian Supreme Court (Supreme Court (General Civil Procedure) Rules 2015 (Vic) reg 64.21).

87.

For example, the Court of Appeal Mediation Scheme in the UK which is administered by the Centre for Effective Dispute Resolution .

88.

See Larry Ray and Anne Clare, ‘e Multi-Door Court House Idea — Building the Court House of the Future … Today’ (1995) 1(1) Ohio State Journal on Dispute Resolution 7. See also Frank EA Sander, ‘Varieties of Dispute Processing’ (1976) 70 Federal Rules Decisions 111, 130; A Leo Lepin and Russell RA Wheeler, e Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

89.

Another term for the concept is Comprehensive Justice Centre, see Sander in Lepin and Wheeler, (n 88) 65. e Law Council of Australia held a Multi-Door Symposium

on 27 July 2009, Canberra. See further Timothy Hedeen, ‘Remodeling the Multi-Door Courthouse to Fit the Forum to the Folks: How Screening and Preparation Will Enhance ADR’ (2011) 95(3) Marquette Law Review 941; Barry Edwards, ‘Renovating the Multi-Door Courthouse: Designing Trial Court Dispute Resolution Systems to Improve Results and Control Costs’ (2013) 18 Harvard Negotiation Law Review 281; Michal Malacka, ‘Multi-Door Courthouse Established rough the European Mediation Directive?’ (2016) 16(1) International and Comparative Law Review 127; Yongkyun Chung, ‘e Multi-Door Courthouse: Origin, Extension, and Case Studies’ (2018) 28(2) Journal of Arbitration Studies 3. 90.

See Tania Sourdin and Archie Zariski (eds), e Multi-Tasking Judge: Comparative Judicial Dispute Resolution (omson Reuters, 2013).

91.

See, eg, Carrie Menkel-Meadow, ‘Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-Opted or “e Law of ADR”’ (1991) 19(1) Florida State University Law Review 1, 10.

92.

James Al ni et al, ‘What Happens when Mediation is Institutionalized? To the Parties, Practitioners and Host Institutions’ (1994) 9(2) Ohio State Journal on Dispute Resolution 307, 309. Marc Galanter distinguishes the ‘production’ approach from the ‘quality’ approach — Marc Galanter, ‘A Settlement Judge, Not a Trial Judge — Judicial Mediation in the US’ (1985) 12(1) Journal of Law and Society 1, 8.

93.

ere is a de nite emphasis on statistics in the various Annual Reports of courts and tribunals.

94.

See, eg, Sourdin and Zariski, (n 90). See also, eg, Stacy Burns Lee, Making Settlement Work: An Examination of the Work of Judicial Mediators (Taylor and Francis, 2000); Hugh F Landerkin and Andrew J Pirie, ‘Judges as Mediators: What’s the Problem with Judicial Dispute Resolution in Canada’ (2003) 82(2) Canadian Bar Review 249; John A Agrios and Janice A Agrios, A Handbook on Judicial Dispute Resolution for Canadian Lawyers (Canadian Bar Association, 2004); Joanne Goss, ‘Judicial Dispute Resolution’ (2004) 42(3) Family Court Review 511; Hugh Landerkin and Andrew J Pirie, ‘What’s the Issue?: Judicial Dispute Resolution in Canada’ (2005) 22(1) Law in Context 25; Tania Sourdin, ‘Five Reasons Why Judges Should Conduct Settlement Conferences’ (2011) 37(1) Monash University Law Review 145; Bathurst, (n 30); Mark Edwin Burge, ‘Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution’ (2013) 15(1) Cardozo Journal of Con ict Resolution 143; Linda C Neilson, ‘At Cliff ’s Edge: Judicial Dispute Resolution in Domestic Violence Cases’ (2014) 52(3) Family Court Review 529; Shala F Ali, Court Reform Mediation: Efficiency, Con dence, Perceptions of Justice (Edward Elgar Publishing, 2018); Joe McIntyre, ‘e Judicial Form of Dispute Resolution’ in Joe McIntyre, e Judicial Function: Fundamental Principles of Contemporary Judging (Springer, 2019) 33–48.

95.

Aer retiring or resigning, many judges act as mediators, arbitrators, evaluators and expert determiners. On judicial mediation, see, eg, Jean-François Roberge and Dorcas Quek Anderson, ‘Judicial Mediation: From Debates to Renewal’ (2018) 19(3) Cardozo

Journal of Con ict Resolution 613; Michaela Keet, ‘Informed Decision-Making in Judicial Mediation and the Assessment of Litigation Risk’ (2018) 33(1) Ohio State Journal on Dispute Resolution 65. 96.

See on this topic Iain Field, ‘Judicial Mediation, the Judicial Process and Ch III of the Constitution’ (2011) 22(2) Australasian Dispute Resolution Journal 72. See also Philip Tucker, ‘Judges as Mediators: A Chapter III Prohibition’ (2000) 11(2) Australian Dispute Resolution Journal 84; Michael Moore, ‘Judges as Mediators: A Chapter III Prohibition or Accommodation’ (2003) 14(3) Australian Dispute Resolution Journal 188; Sarah Murray, e Remaking of the Courts: Less-Adversarial Practice and the Constitutional Role of the Judiciary in Australia (Federation Press, 2014).

97.

See generally Tucker, (n 96) 153.

98.

On the basis of the restricted view of judicial power articulated in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 and Kable v Director of Prosecutions (NSW) (1996) 189 CLR 51, Tucker contends that mediation cannot equate to the exercise of judicial power: Tucker, (n 96) 86–8.

99.

Peter Sallmann, ‘Change in the Adversarial System of Civil Dispute Resolution: Implications for the Judiciary’ in Charles Sampford, Sophie Blencowe and Suzanne Condlln (eds), Educating Lawyers for a Less Adversarial System (Federation Press, 1999) 14, 20.

100. Sir Laurence Street, ‘Editorial: e Courts and Mediation — A Warning’ (1991) 1(4) Australian Law Journal 203. 101. is occurred in Ruffles v Chilman (1997) 17 WAR 1. A registrar mediator disclosed to the plaintiff the hearing judge’s unfavourable view of their earlier evidence; mediation did not achieve a settlement and a new trial was ordered on the basis of the plaintiff ’s reasonable apprehension of bias caused by the disclosure. 102. For example, Marilyn Warren, ‘Should Judges be Mediators?’ (2010) 21(2) Australasian Dispute Resolution Journal 77. 103. Bruce Debelle, ‘Should Judges Act as Mediators’ (Paper presented at the Institute of Arbitrators and Mediators Australia Conference, Adelaide, 1–3 June 2007). 104. See, eg, Robert French, ‘Hands-On Judges and User-Friendly Justice’ (1992) 2(2) Australian Dispute Resolution Journal 73, 78. e future Chief Justice noted there that, ‘ultimately … there is a need for judges and other court officials involved in these processes to undergo adequate and systematic education in mediation techniques which their legal education and skills will not necessarily comprehend’. 105. See Chapter 13 for discussion of the NMAS. 106. Another form of ‘accountability’ in private mediation arises from the parties’ prospective choice of mediator, which would not be tenable with judge-mediators — although there are other contexts in which this choice is also undermined. 107. Warren, (n 102) 84.

See generally King et al, (n 13); Anna Olijnyk, ‘Non-Adversarial Justice and the 108. Remaking of the Courts’ (2015) 38(3) UNSW Law Journal 1098. See also, eg, Carrie Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ (1999) 27(1) Florida State University Law Review 153. 109. Michael King, ‘Using Restorative Justice and erapeutic Jurisprudence in Courts: A Case Study’ (2014) 41(1) Brief 14. 110. See, eg, the less adversarial trial initiative in the Family Court of Australia: Jennifer McIntosh and Caroline M Long, e Child Responsive Program Operating Within the Less Adversarial Trial: A Follow Up Study of Parent and Child Outcomes (Family Transitions, 2007); Jennifer McIntosh, Diana Bryant and Kristen Murray, ‘Evidence of a Different Nature: e Child-Responsive and Less Adversarial Initiatives of the Family Court of Australia’ (2008) 46(1) Family Court Review 125. And the more recent initiative ‘e Lighthouse Project’ for high-risk matters in the Family Courts: Michael Esposito, ‘Ground-Breaking Project to Manage High-Risk Family Law Matters’ (2020) 42(9) Bulletin (Law Society of South Australia) 33. 111. e problem-oriented courts are distinguishable from the specialised courts which pre-existed them, eg for children’s matters, coronial inquiries and so on. See, eg, Bruce J Winick, ‘Problem Solving Courts: erapeutic Jurisprudence in Practice’ in Richard L Wiener and Eve M Brank (eds), Problem Solving Courts: Social Science and Legal Perspectives (Springer, 2013) 211–36. 112. King et al, (n 13) 187. 113. See, eg, Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2012] FCA 558. 114. See generally Stacie I Strong, ‘International Litigation and Arbitration’ in Encyclopaedia of Law and Economics (Springer, 2014); Stacie I Strong, Legal Reasoning Across Commercial Disputes: Comparing Judicial and Arbitral Analyses (Oxford University Press, 2021). See also David Epstein and Charles S Baldwin, International Litigation A Guide to Jurisdiction, Practice, and Strategy (Martinus Nijhoff Publishers, 2010); Vaughan Lowe, ‘e Function of Litigation in International Society’ (2012) 61(1) International and Comparative Law Quarterly 209; Aaron Marr Page et al, ‘International Litigation’ (2013) 47(4) e International Lawyer 163; Greg Lascelles (ed), e International Comparative Legal Guide to Litigation and Dispute Resolution (Global Legal Group, 2014). 115. See John Merrills, International Dispute Settlement (Cambridge University Press, 4th ed, 2005). 116. Domestic courts do have an important role in relation to international law, however. See, eg, Anthea Roberts, ‘Comparative International Law? e Role of National Courts in Creating and Enforcing International Law’ (2011) 60(1) International & Comparative Law Quarterly 57. 117. See also Chapter 10. 118. See, eg, Andreas Zimmermann et al (eds), e Statute of the International Court of

Justice: A Commentary (Oxford University Press, 3rd ed, 2019). See also Taslim Elias, e International Court of Justice and Some Contemporary Problems: Essays on International Law (Springer, 1983); Mohamed Sameh M Amr, e Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (Kluwer Law International, 2003); Robert Kolb, e International Court of Justice (Hart Publishing, 2013); Béatrice I Bonafé, ‘Establishing the Existence of a Dispute Before the International Court of Justice: Drawbacks and Implications’ (2017) 45 Questions of International Law 3; Karel Wellens, ‘e International Court of Justice, Back to the Future: Keeping the Dream Alive’ (2017) 64(2) Netherlands International Law Review 193; Fernando Lusa Bordin, ‘Procedural Developments at the International Court of Justice’ (2017) 16(2) e Law and Practice of International Courts and Tribunals 307; Cameron Miles, ‘Provisional Measures and the “New” Plausibility in the Jurisprudence of the International Court of Justice’ (2018) British Yearbook of International Law (online); Juliette McIntyre, ‘Revisiting the International Court of Justice Procedure for the Revision of Judgments’ (2021) 42(3) Michigan Journal of International Law 479. An earlier tribunal, the Permanent Court of International Justice, had been established under the League of Nations and there had been earlier codi cations of international DR processes, starting at e Hague in the 19th century. 119. e UN Charter art 33 makes provision for the following interstate DR processes; negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or agencies, and other peaceful means of the parties’ choosing. While the processes are not de ned, all had long previous histories in international DR. ey are not mutually exclusive, and states can and do engage in a variety of processes simultaneously. 120. Statute of the ICJ art 34. 121. Statute of the ICJ art 65. 122. e court denied jurisdiction in Nuclear Tests (Australia v France; New Zealand v France) 1974 ICJ Reports 253, 457 (Orders of 20 December) on the basis that the parties had no active dispute, and in the South West Africa cases (Ethiopia v S Africa; Liberia v South Africa), Second Phase, 1966 ICJ Reports 4 (Judgment of 18 July) because the applicants had no standing. 123. For example, armed con ict in the Congo, territorial con ict between Qatar and Bahrain, genocide allegations in Bosnia and Herzegovina, NATO bombings in Yugoslavia, the death penalty in the US, boundary disputes between Sudan and newly independent South Sudan, and issues relating to the environment, self-determination, human rights and humanitarian law. is wide ambit of subject matter indicates how prominent the court has become in adjudicating disputes of signi cant international concern. 124. Statute of the ICJ art 36(1). General agreement can also be provided in advance of a treaty. Australia was one of few states that declared acceptance of the ICJ’s jurisdiction

without reservations. is led to claims against Australia by Nauru (Phosphates case, Nauru v Australia (1989) ICJ Reports 12 (Order of 18 July) and Portugal (East Timor case, Portugal and Australia (1989) ICJ Reports 90 (Judgment of 30 June). Aer these cases the Australian Government introduced reservations to its previous declaration so as to exclude the ICJ’s compulsory jurisdiction where parties agree to other peaceful means of DR, where disputes involve maritime boundary delimitations or where disputes involve resource exploitation of areas (and adjacent areas) in dispute. Many other states have made declarations but oen with broad reservations. A state can make a declaration with litigation in mind or modify the declaration to avoid litigation — Statute of the ICJ art 36(2). 125. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States) Constitution of Chamber, 1982 ICJ Reports 3 (Order of 20 January). 126. Statute of the ICJ art 59 and UN Charter art 94. 127. As is also the case where states have been granted interim relief on the basis of prima facie assertions of jurisdiction. Note that Statute of the ICJ art 41 allows the court to rule on ‘interim measures’ to preserve a party’s rights. See Rosalyn Higgins, ‘Interim Measures for the Protection of Human Rights’ (1998) 36(1&2) Columbia Journal of Transnational Law 91. 128. Statute of the ICJ arts 65–68. e court can decline to give an advisory opinion, as it did in relation to the WHO’s request in Legality of the Use by a State of Nuclear Weapons in Armed Con ict. 129. For this reason, the ICJ encourages states to use negotiation and mediation to resolve matters themselves. See Jessica Lincoln, Transitional Justice, Peace and Accountability: Outreach and the Role of International Courts Aer Con ict (Routledge, 2011). 130. Statute of the ICJ art 9. 131. In 2021 the member judges of the court came from 14 countries — USA, Russian Federation, Slovakia, France, Morocco, Brazil, Somalia, China, Uganda, India, Jamaica, Lebanon, Japan and Germany. 132. However, the court can act speedily where circumstances require it. In the Vienna Convention on Consular Relations (Paraguay v United States) 1998 ICJ Reports, involving the imminent execution of prisoners by the US in alleged contravention of the Convention, provisional measures were ordered six days aer an application was led. 133. See further discussion in Chapter 10. 134. See, eg, Ann Skelton, ‘e Role of the Courts in Ensuring the Right to a Basic Education in a Democratic South Africa: A Critical Evaluation of Recent Education Case Law’ (2013) 46(1) De Jure 1; Norman Daniels et al, ‘Role of the Courts in the Progressive Realization of the Right to Health: Between the reat and the Promise of Judicialization in Mexico’ (2015) 1(3) Health Systems and Reform 229. See also Sharon

Weill, e Role of National Courts in Applying International Humanitarian Law (Oxford University Press, 2014). 135. e original treaty was the International Covenant on Civil and Political Rights, 16 December 1966, Aust TS 1980, No 23. e Protocol (Aust TS 1991 No 39) came into operation for Australia on 25 December 1991. 136. is was the Toonen case — Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1994. 137. In the Human Rights (Sexual Conduct) Act 1994 (Cth). 138. From 28 January 1993, Australia accepted the optional right to make an individual complaint under the Convention on the Elimination of all Forms of Racial Discrimination art 14, and from 29 January 1993 the optional right under the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art 22. 139. See . 140. e Understanding on Rules and Procedures Governing the Settlement of Disputes is Annex 2 of the Agreement Establishing the World Trade Organization, Marrakesh, 15 April 1994, Australian Treaty Series 1995 No 8. See WTO, Understanding on Rules and Procedures Governing the Settlement of Disputes (2015) . See also Chapter 10. 141. For example, in the longstanding bananas dispute, the case was prosecuted by the US on behalf of its corporations who controlled the industry in central American countries. See Appellate Body Reports, European Communities — Regime for the Importation, Sale and Distribution of Bananas — Second Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/AB/RW2/ECU (26 November 2008) and Corr. 1; and European Communities — Regime for the Importation, Sale and Distribution of Bananas — Recourse to Article 21.5 of the DSU by the United States, WT/DS27/AB/RW/USA (26 November 2008) and Corr.1. 142. Established by the UN Convention on the Law of the Sea, 10 December 1982, art 287. 143. For example, Australia and New Zealand were complainants against Japan over conservation of blue- n tuna stock in Southern Blue n Tuna Case (Australia v Japan) (New Zealand v Japan) (1999) International Legal Materials 1624. e Tribunal was established under the UN Convention on the Law of the Sea, 10 December 1982. 144. See UN, Declarations and Statements (13 February 2020)

. 145. Rome, 17 July 1998, UN Doc A/Conf 183/9, in (1998) 37 International Legal Materials 999. e Statute came into effect on 1 July 2002. See, eg, Marlies Glasius, e International Criminal Court (Taylor & Francis, 2006); William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 2011); William A Schabas, e International Criminal Court: A Commentary on the Rome

Statute (Oxford University Press, 2017); Phil Clark, Distant Justice: e Impact of the International Criminal Court on African Politics (Cambridge University Press, 2018); Oumar Ba, States of Justice: e Politics of the International Criminal Court (Cambridge University Press, 2020). 146. e US is the most prominent international actor not to accept the ICC’s jurisdiction. 147. See, eg, e Prosecutor v Bemba Gombo (Judgement) (International Criminal Court, Trial Chamber III, Case No ICC-01/05-01/08, 21 March 2016). 148. See, eg, Michael Legg and Anthony Song, ‘Commercial Litigation and COVID-19: e Role and Limits of Technology’ (2020) 48(2) Australian Business Law Review 159. See also, eg, Orna Rabinovich-Einy and Ethan Katsh, ‘e New New Courts’ (2017) 67(1) American University Law Review 165; Ayelet Sela, ‘e-Nudging Justice: e Role of Digital Choice Architecture in Online Courts’ (2019) 2 Journal of Dispute Resolution 127; Ayelet Sela, ‘Diversity by Design: Improving Access to Justice in Online Courts with Adaptive Court Interfaces’ (2021) 15(1) e Law & Ethics of Human Rights 125. 149. Online Dispute Resolution Advisory Group, Online Dispute Resolution for Low Value Civil Claims (Civil Justice Council, 2015) , 3. e report should be read in conjunction with the website . See also Richard Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019). 150. Online Dispute Resolution Advisory Group, (n 149) 3. 151. See . 152. See . 153. Online Dispute Resolution Advisory Group, (n 149) 12. 154. Julia Hörnle, ‘Online Courts Must Not Compromise Fairness’, e Conversation (18 February 2015), .

PART III Dispute Resolution Praxis and Potential

[page 387]

Chapter 12 Elements of Effective Dispute Resolution Practice Chapter contents Introduction Praxis in DR Advocacy and DR praxis Informed consent in DR The shadow of the law in DR Re ective DR practice Conclusion

12.1 12.5 12.12 12.34 12.56 12.67 12.76

Introduction 12.1 e third part of this book is entitled Dispute Resolution Praxis and Potential. e emphasis in this part is on the connection between practice and theory — in other words, on praxis. Praxis essentially means the practical application of theory, or the process of enacting a theory.1 Praxis is theory in action; it involves engaging with theory in order to practise well. Praxis is a concept most familiar to the disciplines of philosophy, politics and education,2 but it is also apt in DR and legal contexts. At its [page 388] simplest, praxis means ‘action’ or ‘doing’,3 but it also includes the more complex notion of ‘conduct’ which comprises a ‘sense of morallydimensioned behaviour’.4 12.2

e connection between practice and theory is critical to the efficacy

of DR and its place in a sustainable future for DR practice and for the legal profession. DR practice, by both lawyers and other professionals, should always be informed by rigorous theoretical scholarship and philosophical underpinnings, and it should be evidence based.5 e skills and attitudes of DR are effective because of their rigorous intellectual and scholarly foundations. As Astor and Chinkin stated: … responding to and dealing with the challengers of critical and evaluative scholarship will ultimately strengthen the theory and practice of ADR. A healthy relationship between scholars and practitioners is highly desirable for the strong future development of ADR and needs to be pursued with vigour on both sides.6

12.3 As the chapters of this book evidence, there are many theories to grapple with in the DR context: theories about the values and goals of DR practice, theories about con ict and theories about the design and implementation of DR processes on the matrix. ese theories were discussed in Parts I and II of the book and they are important. ey form part of the knowledge base for professional engagement with DR practice — and they constitute critical foundational knowledge for DR practitioners and lawyers responding to the contemporary challenges of professional DR practice. is knowledge informs the building of necessary skills and supports the development of appropriate attitudes for effective, ethical and efficient DR practice. eoretical knowledge is not of great use if it cannot be applied in practice. 12.4 As this book develops into the future the topics addressed in this chapter will grow. However, for now four important issues of DR praxis are considered. First, it is [page 389] argued that theory must inform new approaches to the practice of advocacy in DR and legal contexts. Second, it is argued that new approaches to the practice of achieving informed consent in DR processes must be informed by theoretical understandings of the importance of informed consent and how it might be achieved. ird, the ‘shadow of the law’ is discussed as a

theoretical concept of signi cant practical relevance and importance in DR contexts. Finally, it is argued that theory must inform new approaches to re ective practice for DR practitioners and lawyers, supporting the harnessing of lifelong learning and effective and ethical contemporary approaches to the practical implementation of DR systems.

Praxis in DR 12.5 e deep importance of effective DR practice in legal and other contexts in Australia and internationally cannot be contested. e early enthusiasm for ‘ADR’ was at times unbounded and uncritical, but the practice of DR in Australia is now well established and its roots are strong because they have been informed by developing critiques of DR processes across the matrix and by assessments of the potential of DR, including empirical studies and evaluations. 12.6 It must be acknowledged, however, that in the development of Australian DR there has sometimes been a level of disconnect between theory and practice. is must be addressed if DR is to be able to ful l its critical role in society and in legal practice into the future. Indeed, a purposeful, intentional and rigorous approach is necessary to ensure crossfertilisation between DR theory and its practice so that the entire eld remains relevant and current. is can be considered the ‘DR praxis project’, a project that is deserving of far more attention than a single chapter in this book. Here, the importance of the DR praxis project can only be agged, highlighting some of its most signi cant elements and suggesting ways to sustain and develop the praxis of DR into the future.

The importance of critical perspectives to DR praxis 12.7 One of the key messages of Astor and Chinkin’s second edition of Dispute Resolution in Australia, published in 2012, concerned the importance of critical and analytical perspectives for the appropriate development of DR systems.7 ey argued that careful critiques are warranted because DR processes constitute signi cant interventions in people’s lives and represent Australian society’s approach to disputes and

human interaction, as well as re ecting societal attitudes to critical issues such as power, gender and race. ey highlighted the signi cant societal changes that had occurred between the publication of their rst and second editions, with their ensuing implications for both public and private ordering at local and global levels. If anything, societal change is now occurring at an ever-faster pace and the impact of [page 390] global nancial crises and the Covid-19 pandemic are far reaching and irreversible. Further, the implications of globalisation are ever more apparent in their in uence on disputing and dispute resolution, and on the delivery of legal services more broadly. Private forms of DR can be argued to potentially support the market economy agenda by providing escape from public regulation, avenues for avoidance of the supervisory and accountability elements of regulation and maximisation of freedom of choice. However, as Chapter 1 argued, DR approaches other than litigation also support access to justice and can be seen as part of the modern enactment of the rule of law in Australia’s liberal democratic society. 12.8 Astor and Chinkin noted that governments from all political persuasions can be (and have been) tempted to be uncritically positive about DR processes other than litigation. In particular, their embrace of less formal DR approaches can be attributed to a desire to reduce public spending on formal justice systems and increase the operational effectiveness and efficiency of the civil justice system. is could be seen as coming at the potential cost of compromising the quality of those processes and the outcomes reached through them.8 DR’s promises have been attractive to governments in terms of offering cheap, speedy and accessible systems. 12.9 Astor and Chinkin, as early scholarly leaders in the Australian eld, adopted a critical and evaluative approach to their analysis of processes and their practical application. ey sought to go beyond popularist rhetoric to consider carefully the diverse reasons behind

DR DR the the

signi cant growth and institutionalisation of DR since the 1970s, examining who experienced bene ts from this growth and whose interests were protected or neglected in the operation of particular DR processes. ey sought to address issues concerning the appropriate use of the diverse DR systems and to identify requirements for the provision of high-quality services. ey noted that a critical approach to DR is likely to receive mixed and sometimes negative responses — particularly from the ‘true believers’ in the professional DR community. ey wrote in 2012: Some who read the rst edition of this book thanked its authors for making them think and question. Others were less welcoming of a critical approach. ADR is still a comparatively recent phenomenon for most people. It has not yet achieved broad public familiarity and acceptance. Its practitioners are seeking to establish the reputation of a new area of endeavour and to increase acceptance and use of ADR. ey are sometimes therefore sensitive to criticisms that appear to threaten the stability of ADR before it has found its feet.9

12.10 e terminological shi from ADR to DR advocated in this book suggests that Australian DR has come a signi cant way since these concerns existed. A good number of DR processes other than litigation are now well established. ere is no doubt that [page 391] candid critical perspectives on aspects of DR, developed in large part in the signi cant body of scholarly DR literature, have played an important role in achieving this. Evaluation of the operation of DR systems has also been important, and this evidence and research base has been well documented by Tania Sourdin.10 Further, Mack and Anleu, along with Sourdin, have led the Australian evaluative work on the courts and court-annexed DR.11 ere is also a vast body of international evaluative scholarship.12 12.11 A critical analytical perspective is central to sustaining and supporting DR praxis into the future, and will assist the practice and theory of DR to keep pace with

[page 392] each other, so that DR practice does not leave its theory behind.13 is is a pertinent issue in terms of DR ethics, particularly of ethics in DR contexts other than litigation. It is important that ethical approaches keep pace with practice developments, such as market demands for more advisory and evaluative processes.14 e values and goals of DR (articulated in Chapter 5) are one of the most important reference points for making DR praxis a reality. ere will always be a need to research empirically, to evaluate and to theorise about DR systems. It is also important to draw from existing bodies of theoretical, scholarly DR knowledge to inform the praxis project. e following sections of the chapter explore the notion of DR advocacy, informed consent, the shadow of the law, and re ective practice as key DR praxis issues.

Advocacy and DR praxis 12.12 One of the areas of focus for this book is exploring the notion of contemporary lawyering and legal practice in Australia through the DR lens, and calling for a reconceptualisation of traditional approaches to the delivery of legal services and the ways of being a lawyer. Lawyers must now be more than one-dimensional adversarial warriors for rights and entitlements, although it is acknowledged that this construct of the legal persona remains entrenched in aspects of legal culture.15 Rather, for a sustainable future for the legal profession, lawyers must be multidimensional, multi-skilled, adaptable and agile practitioners in the context of all the processes across the DR matrix. 12.13 How lawyers advocate in DR contexts, and what a legal DR advocate looks like, or should look like, are arguably two of the most important areas in which a [page 393]

cultural shi is necessary for DR and legal praxis to move forward.16 It is critical that any such cultural shi is informed by the values and goals of DR and DR theory. is section explores the notion of advocacy, and new ways of thinking of advocacy that arise from client-centred practice in informal DR processes. It is suggested that both adversarial and non-adversarial advocacy knowledge, skills and attitudes are necessary for lawyers to provide legal services that ful l the DR values of justice, party autonomy and community. In Macfarlane’s words, lawyers must be able to ‘wear two hats’.17

The adversarial advocacy hat 12.14 e diverse processes in the DR matrix are all part of Australia’s DR panorama, which includes adversarial and non-adversarial advocacy elements. e importance of [page 394] determinative practices on the matrix has been acknowledged in Chapters 10 and 11. e processes of litigation, and to a lesser extent arbitration, have been associated with notions of rst-class justice, traditionally involving lawyers advocating in an adversarial sense. Advocacy remains strongly associated with the work of lawyers in determinative contexts such as courts and arbitrations. For example, the LexisNexis legal dictionary de nes advocacy as ‘the art of conducting or presenting proceedings before a court. An advocate’s work comprises argument or making speeches, examining witnesses and preparation and planning for these tasks’.18 12.15 e sites of the determinative aspects of the DR matrix, the courts and arbitration rooms, certainly continue to be important contexts for legal adversarial advocacy in action. Lawyers in these environments are upholding the values of DR by being part of a system that seeks to promote justice, in both its procedural and substantive forms. Lawyers as advocates in arbitration and litigation ght for their client’s rights and entitlements, using honed skills of argumentation and persuasion. is kind of advocacy was once a largely oral endeavour — with a focus on the lawyer’s opening

statement,19 examination-in-chief, cross-examination and closing arguments. However, courts are increasingly reliant on lawyers’ written advocacy skills also — in the form of written pleadings, evidence and submissions. 12.16 Cross-examination has oen been referred to as one of the most important and de ning features of litigation advocacy.20 References are oen made to the ‘art of cross-examination’, and to cross-examination being ‘the cornerstone of the adversary system’ and central to ensuring a procedurally fair process that determines the truth of a contest by testing, challenging and correcting the relevant evidence. e adversarial nature of courtroom advocacy becomes most apparent in cross-examination because its key purpose is to undermine and bring into doubt the opposing party’s case by exposing the aws in, and discrediting the reliability of, their evidence and attacking the credibility of their witnesses. 12.17 Adversarial advocacy is mostly encountered in determinative processes, but adversarialism is an approach and attitude that lawyers can adopt in any process on the matrix. Advocacy informed by adversarialism conceives of DR as a ‘contest’ in which securing and maximising victory are prioritised. While lawyers are increasingly [page 395] resolving and managing disputes in DR processes other than litigation, and clients are increasingly requiring new, more efficient and collaborative approaches to DR problem-solving process and practice, it is also true that these developments do not necessarily mean that lawyers consistently adopt less adversarial approaches to their DR work. Indeed, an adversarial attitude can inform lawyer engagement in any of the non-litigation DR processes, and oen does. A cultural shi away from adversarialism is required, however, if the legal profession is to enjoy a sustainable future. 12.18 Adversarial advocacy is premised on the idea that ‘the parties desire the same goals, items or values’,21 that the aim of each party to a dispute is to win de nitively and that compromise represents a loss for all.22

Adversarial advocacy involves a strong focus on parties’ respective positions (what they want) at the expense of considering their interests and how they might be mutually satis ed in ways that both parties could live with. In litigation and arbitration, judges and arbitrators have no direct concern with mutual issues or perspectives. In their intervenor roles they may refer parties to other interests-based processes, but the focus of their own process is to decide who, on the evidence and arguments put before them, deserves to win. 12.19 Adversarial advocacy in DR contexts also involves issues of power. Lawyers acting as adversarial advocates seek to be (or to create the perception that they are) more powerful than other representatives, sometimes by being confrontational or intimidating and usually by being positional and arguing up their clients’ legal rights and entitlements. is is the lawyer as ‘zealous advocate’23 — an aspect of legal identity which is potentially confused by law students and early career lawyers, and some experienced lawyers, with their ethical duties to act in clients’ best interests.24 12.20 Menkel-Meadow, however, argues that zealous adversarial advocacy is incompatible with many DR values and goals.25 Indeed, legal DR praxis, now and into the future, requires lawyers to know when it is appropriate to advocate adversarially, and also to know when nonadversarial modes of advocacy are required. Lawyers, in Macfarlane’s words, need two hats in their professional wardrobes — the adversarial and the non-adversarial — although the non-adversarial hat should arguably be worn more oen in keeping with the approach to legal professionalism advocated in this book. As Wexler has said: One can question the value of an argument culture without calling into question the indisputable value of argumentation as a crucial component of disciplined thinking.

[page 396] Similarly, one can question the value of a legal culture of adversarialism without calling into question the value — indeed sometimes even the therapeutic value — of

adversarial litigation as a crucial tool of the lawyer. e problem instead is with a legal culture that privileges argumentation and which is dismissive of other approaches.26

12.21 A concern with the persistent emphasis in legal contexts on adversarial advocacy is that it has negatively in uenced perceptions of lawyering and who lawyers are more broadly in society — perceptions reinforced through TV, lm and other forms of media. An unfortunate consequence is that all lawyers are prone to being cast as adversarial in character. is portrayal contradicts what we know many lawyers do (and what we know they should be doing) on a daily basis. e profession itself needs to be proactive in working to change this one-dimensional perception of lawyering and should seek to ensure that the role of lawyers as nonadversarial advocates is better understood in the Australian community. Only through recognising the contemporary extension of the notion of advocacy beyond adversarialism to non-adversarial modes of operating, can the role of lawyers be seen to properly address the values of DR.

The non-adversarial advocacy hat 12.22 It has been noted many times throughout this book that, in reality, many lawyers in the 21st century do most of their DR work in processes other than litigation.27 is way of operating is likely to increase into the future (as discussed in Chapter 1). e majority of lawyering is and will continue to be conducted in contexts other than the determinative processes. It follows that most lawyering involves or should involve nonadversarial forms of advocacy. Negotiation, for example, is the ubiquitous legal and DR skill and process, which is integrated across the entire DR matrix and is a focal feature of facilitated and advisory processes (which are by their nature less structurally adversarial than arbitration or litigation). Although adversarial models of negotiation exist, principled, interests-based and problem-solving models sit more appropriately in many DR methods. 12.23 Julie Macfarlane, in her work e New Lawyer, challenges lawyers to rethink their conception of advocacy, particularly in terms of the profession’s ‘public image’ and the perceived relevance of lawyers ‘to the practical solving of problems’.28 She asserts wisely that adversarial advocacy associates lawyers more closely with con ict than with its resolution.29 e

discussion above illuminates the problematic nature of a continued focus in the profession on adversarial approaches and the restricting in uence this focus can have on understandings of legal advocacy, as well as on the professional identity of lawyers (see further Chapter 14). In fact, the term ‘advocacy’ has a much [page 397] broader meaning, extending to achieving ‘public support for or recommendation of a particular cause or policy’.30 12.24 An ‘advocate’ is essentially anyone who engages in a process of persuasion for a particular interest or cause. is means that lawyers are advocates in all contexts in which they are given explicit authority to represent clients, to argue for clients and to be persuasive about their clients’ positions and interests. Basically, whenever lawyers speak on behalf of a client, they are the client’s advocate. is representational, committed and partisan role exists for lawyers in all DR processes across the matrix. As Green said more than half a century ago: Advocacy is the basis of much of a lawyer’s work. All lawyers must be advocates in some degree. Even judges must be advocates in order to support the decisions they make. I think it can be correctly said that advocacy is the lawyer’s distinctive power.31

12.25

Field, Duffy and Huggins note:

… as advocates for our clients, we represent, we facilitate, we challenge and we mobilise. As we do these things we persuasively in uence the minds of others. is process of in uence is not limited to court, but rather takes place in a range of environments such as meetings, negotiations, mediations or even, for example, on the phone or in a letter. Advocacy is in effect the art of persuasion and involves the ability to develop and present a well-reasoned and logical argument, in a range of different contexts, based on legal knowledge and an expert analysis of the client’s problem.32

12.26 Non-adversarial advocacy is no less professional and no less informed by the lawyer’s suite of expertise — legal and DR knowledge, legal and DR skills and legal and DR attitudes — than adversarial advocacy. As non-adversarial advocates, lawyers continue to have professional

responsibilities to work strategically in a partisan fashion and, in contexts of duciary duties of trust, to seek to realise the best possible outcomes for clients. is is a professional ethical obligation.33 Non-adversarial advocacy, as Macfarlane has said, ‘places the constructive and creative promotion of partisan outcomes at the centre of the advocate’s role and sees this goal as entirely compatible with working with the other side — in fact, this goal can be achieved only by working with the other side’.34 12.27 A distinguishing factor of non-adversarial advocacy is that it takes account of parties’ interests in addition to their positions. is advocacy style ‘challenges the automatic and obvious primacy of rights-based dispute resolution, preferring a more nuanced, multi-pronged strategic approach to both ghting and settling’.35 It also [page 398] makes possible the resolution of disputes more quickly, more cheaply and in mutually bene cial ways. 12.28 It is the facilitative and advisory processes on the DR matrix that create the greatest potential for the practice of this style of advocacy, but non-adversarial techniques can be employed across the matrix. For example, lawyers can use the following non-adversarial techniques in any DR process:36 developing deeper and closer working relationship with clients; helping clients engage with the con ict, as well as developing strategies to manage that con ict; focusing on principled and problem-solving approaches to negotiation and on the parties’ interests;37 being creative about helping the parties to generate options beyond the standard legal remedies available; and appreciating the importance of relational, emotional and psychological issues. 12.29 Macfarlane’s ‘new lawyer’ is someone who can wear both advocacy hats — the adversarial and the non-adversarial — when and as appropriate,

but who places signi cant and emphatic value on the non-adversarial hat. ey are someone who can decide in informed ways when each hat might be required. e new lawyer can: … conceive of their advocacy role more deeply and broadly than simply ghting on their clients’ behalf. is role comprehends both a different relationship with the client — closer to a working partnership — and a different orientation toward con ict. e new lawyer helps their client engage with the con ict, confronting the strategic and practical realities as well as making a game plan for victory. e new lawyer offers their client skills and tools for con ict analysis, an understanding of how con ict develops and evolves over time, and the experience of working continually with disputants on (perhaps similar) disputes.38

A new culture of legal advocacy in DR 12.30 DR praxis of the future, particularly in legal contexts, requires acceptance of the broader conception of advocacy. However, as noted above, traditional approaches to advocacy still dominate some aspects of legal practice and are present in how legal professional culture is replicated and taught in law schools. As discussed in Chapter 1, the law curriculum remains inherently adversarial in character, with its focus on doctrinal and substantive law taught predominantly through primary law sources centred on the precedential case law of the appellate courts and the High Court. Indeed, according [page 399] to Macfarlane, it is the commitment in legal education to adversarial advocacy that contributes to sustaining the ongoing persistence of this model in the profession.39 With a solid adversarial foundation in place, new law graduates enter a profession which continues in many ways to equate adversarial advocacy with con dence and strength and the zealous pursuit of the client’s interests. e result is that adversarial advocacy persists in legal culture and in the professional identity of lawyers. 12.31 Lawyering in the future will address this imbalance and lawyers will be able to deploy their skills and knowledge as the best interests of

clients demand through both adversarial and non-adversarial forms of advocacy, and across the processes of the DR matrix. As King et al note: For many lawyers, the ability to practise without having to adopt the aggressive persona of the litigator is a liberating experience, as no doubt there is a vast number of lawyers whose self-image as a professional does not follow the traditional adversarial model. Non-adversarial practices allow lawyers to cast off the shackles of adversarial behaviour, providing them with an opportunity to reinvent themselves (and their image) as more caring and helpful.40

12.32 Lawyers who practise in DR contexts now and into the future need to be:41 expert, professional, prepared, engaging, persuasive, logical and clear. ey also need to be present and con dent, excellent written and oral communicators, and emotionally intelligent. is way of being a lawyer advocate in all DR contexts will support a positive professional identity (see Chapter 14) because lawyers as multi-skilled, multiple-perspective legal advocates will be better able to put into practice the DR values and goals relating to justice, party autonomy and community.

Summary 12.33 A limited concept of legal advocacy focused on adversarial approaches and determinative processes is too narrow and outdated for the contemporary legal profession, and impacts negatively on the efficacy of DR practice in legal contexts. It fails to recognise the new legal climates and current demands on lawyers. Perhaps advocacy should never have been conceived of in this limited way. Nevertheless, the strong legacy of a limited notion of adversarial advocacy presents a key cultural issue in the legal profession that requires redress. ere is now a signi cant and undeniable evidence base on which to contend that lawyers require broad appreciations of both adversarial and non-adversarial styles of advocacy, depending on the needs and interests of their clients. e advocacy approach adopted in any DR process must be determined by the imperative of pursuing clients’ interests ethically. is entails the making of choices as to not only the most appropriate advocacy style to adopt (which hat to wear) but also [page 400]

as to which process on the DR matrix is best to deploy for the optimal management of a client’s issues.42

Informed consent in DR 12.34 Informed consent was discussed in Chapter 5 in relation to ensuring that the DR values of party autonomy and justice are achieved in DR processes in authentic ways.43 Informed consent is especially important in DR processes where parties do not have an adviser or legal representative. Further, in DR processes other than litigation, the informality, exibility, privacy and con dentiality of the processes can hamper the achievement of party autonomy and justice, and informed consent is a critical component of achieving appropriate consensual outcomes.44 12.35 Ensuring that informed consent is real is not an easy endeavour in any DR system and can require signi cant resources. Achieving informed consent is not the sole responsibility of the parties but is also a shared responsibility of the professionals involved in DR contexts, including lawyers in their role of representing clients, as well as independent intervenors acting as mediators or conciliators. However, DR systems generally, and the mediation process speci cally, have been criticised for failing ‘to provide for truly educated decision-making, especially where the parties do not have lawyers’.45 For this reason, the future efficacy of DR praxis requires a theoretical [page 401] framework for making informed consent achievable and real in practical senses. A possible framework is suggested below.

The meaning of informed consent in DR 12.36 It was noted in Chapter 5 that the meaning of informed consent has been explored in some detail in the medical literature46 as well as in the legal theoretical and clinical literature.47 And yet, the concept has received

relatively little scholarly attention in DR contexts.48 As discussed brie y in Chapter 5, informed consent in DR relates to the parties’ levels of comprehension about the process they are participating in, the nature of their role and responsibilities as participants, the role of any other advisers and intervenors present in the process, the nature of the issues in dispute, and the terms and consequences of proposed outcomes. In other words, informed consent in [page 402] DR systems concerns ‘the extent to which the participants in the process are cognisant of, and fully understand, the choices available to them’.49 12.37 Informed consent supports party autonomy and justice through the notions of consensuality,50 and the maximisation of party control.51 A party who experiences an ‘emphasis on participatory, knowledgeable and consensual decision-making’52 will experience party control and thus selfdetermination. Self-determination, particularly in DR processes other than litigation, is a fundamental tenet linked with the achievement of just and acceptable outcomes. Informed consent could even be said to be ‘the key to self-determination’,53 and the ‘means of achieving the fundamental goal of fairness’.54 e United Nations 2012 document Guidance for Effective Mediation, Report of the Secretary General identi es consent as one of the key factors for effective mediation, along with impartiality, preparedness and inclusivity.55 12.38 It is important to note that informed consent in the context of the proposed framework below is more than simply a precondition to participation in DR processes, or an indicator of acceptance of a professional intervention. Rather, informed consent is something that must be continuously supported and attended to throughout a party’s engagement with a DR process in order to achieve authentic party self-determination and just outcomes.56 Fair and principled procedures and outcomes are made possible through informed consent because it promotes parties’ human dignity,57 works as a check on the power of independent intervenors to

manipulate, impose or coerce outcomes,58 and otherwise supports the legitimacy of mutual outcomes that draw on [page 403] remedial imaginations59 (that is, that are outside the parameters of expected or possible legal outcomes). Informed consent is therefore essential to the efficacy, credibility and legitimacy of DR systems, and particularly of systems other than litigation. For this reason, the development of a framework for ensuring that informed consent is achieved is important. 12.39 In many DR contexts to date, informed consent has been taken to have been satis ed, particularly in facilitated and advisory processes, when parties sign an agreement to indicate that their consent is freely given.60 Reliance on this factor alone, however, is problematic in situations where the signature is potentially not a true indicator of a party’s informed consent, or re ective of an adequate level of comprehension or understanding. is could be the case, for example, where parties are vulnerable or unequal in their bargaining capacity, where they do not have access to legal or other advice, or where they feel unduly compelled for some other reason to sign.61 In such situations, party autonomy and self-determination will not have been achieved, despite apparent evidence of ‘informed consent’ in the signed agreement, and an unfair or unprincipled outcome may result. e next section discusses a proposed framework for achieving informed consent, which for these reasons is an important component of DR praxis, particularly in DR contexts other than litigation.

An approach to achieving informed consent in DR 12.40 is suggested approach for achieving informed consent in DR involves two key elements: rst, the maximisation of party control; and second, ethical activism from independent intervenors and advisers in support of informed consent.62 e

[page 404] appropriate integrated balance of these elements in achieving informed consent in individual cases depends on the circumstances and context of each dispute.

Informed consent and maximising party control 12.41 Maximising party control is a notion conceptualised by Hilary Astor as a way of understanding how party self-determination is made real in DR contexts, such as mediation.63 Astor uses the concept to indicate that the boundaries of a mediator’s interventions and actions in mediation should be guided by the ‘principle that the parties should have the maximum control possible given their context and situation’.64 12.42 In mediation, a positive tool for maximising party control, and thereby supporting informed consent, is the intake process. Intake processes occur before a party participates in mediation, and have traditionally been used to assess and review whether matters are suitable for a particular process (that is, they are a form of screening in and out of processes).65 Intake processes are therefore critical opportunities for evaluating and assessing whether ‘the forum ts the fuss’.66 Party control will be enhanced in circumstances where they are participating in a DR process that is suitable to their matter. 12.43 In 1971 Lon Fuller provided an early analysis of the favourable conditions for mediation,67 and since then there has been considerable discussion in the literature as to when mediation is appropriate for the resolution of different disputes.68 Screening processes at intake provide opportunities for matters that are inappropriate for [page 405] mediation treatment to be screened out of the process.69 Currently, mediators or intake officers make decisions to screen parties out of

mediation where they believe they do not have necessary capacity to negotiate effectively in the process. is might be the case, for example, if there is a history of family violence or abuse or a party is living with mental health or drug or alcohol abuse issues.70 12.44 Where a party is deemed to have the capacity to negotiate on their own behalf, the intake process can be used to inform them about the process, and to build trust and a cooperative approach. Intake processes are also sometimes used to establish the credibility of the mediation process, to encourage the goodwill of parties and to promote active participation in the mediation procedure.71 12.45 Most importantly, intake processes should be used to consider issues that might impact on a party’s capacity for giving informed consent,72 and to diagnose parties’ needs in terms of achieving informed consent. Such considerations are connected to, but are also different from, factors that might indicate the presence or absence of capacity to negotiate effectively. ey are issues such as a party’s ability (and willingness) to access legal, and other, professional advice; the presence or absence of a personal support network; a party’s level of education, and their understanding and knowledge of the issues involved in a dispute; and a party’s ability to access relevant information and documents. 12.46 Where an intake diagnosis aimed at assessing a party’s capacity for informed consent indicates that a particular party may nd its achievement difficult, mediators or intake officers can take steps to offer that party appropriate strategic forms of assistance directed to addressing their needs. is might mean assisting the party to access a lawyer, legal aid or a community legal service; giving the party information and support; assisting the party to nd, or referring the party to, other sources of information and advice; or making ‘warm’ (actively assisted) referrals to support services, such as counsellors or nancial advisers. [page 406] 12.47

Indeed, intake protocols can be considered as opportunities to

screen parties into mediation and also into the most appropriate mediation model for their dispute that matches their capacity for informed consent. A key intake question for mediators is therefore which mediation model will best support the parties in achieving informed consent.73 In this way, intake processes can place parties into appropriate mediation models in which their control is maximised, informed consent is rendered possible and party self-determination is realisable. 12.48 In addition to intake processes, other pre-process approaches involving party preparation can also contribute to maximising party control in DR. Preparation and coaching can support each party’s capacity to engage effectively in a DR process and thereby support informed consent.74 Preparing parties for participation in DR in ways that support informed consent requires ensuring that they understand how the process they are entering operates, as well as its values and goals, and what their responsibilities are within the process.75 It also requires ensuring that the parties have developed speci c strategies for their constructive participation.76 In relation to mediation, Sordo has suggested that ‘the most important aspect of preparing clients who have agreed to mediation is giving them sufficient information about the process and in particular its potential to settle their dispute’.77 12.49 Preparation coaching for DR participation might involve assisting a party to dra and practise their opening statement;78 to understand the functions of different phases of the process and ways of working actively with the DR intervenor; and to develop an understanding of the relevant shadow of the law to assist them reality check their preferred options and correct any potential misunderstandings about their legal rights and entitlements.79 In addition, a DR preparation coach can help a party to identify a exible spectrum of satisfactory options for the resolution of the dispute,80 to set ‘ rm bottom lines on each anticipated issue prior to mediation’,81 to identify strategies for dealing with what might be the ‘last gap’ in negotiations,82 and to be clear about a [page 407]

‘benchmark (legal or otherwise) against which to compare an emerging settlement’.83 Coaches can also assist a party to develop some targeted negotiation strategies. For example, they can help a party to develop communication skills appropriate for the process,84 and assist with the development of active listening techniques and with persuasive strategies. ey can teach methods of being attentive through body language, how to use questioning and silence effectively, and how to use verbal following skills, summarising and empathetic statements. A party can also bene t from working with a DR coach on identifying when it might be strategic to ask for breaks or be appropriate to seek termination of the process. Where a party is assisted with these issues, they will be able to negotiate with greater clarity and con dence, their control will be maximised and there will be a greater chance that informed consent will be realised. 12.50 Preparation and coaching processes to support informed consent can be offered by lawyers, DR practitioners and intake officers, and also by a range of other professionals associated with DR service provision. For example, counsellors, therapists, psychologists and social workers are also all in good positions to provide not only assistance with preparing for engagement with DR processes,85 but also strategic coaching speci cally in relation to optimising participation within them in order to achieve the best possible outcomes.86 12.51 Many DR service providers do offer some form of preparatory advice and information to assist parties to participate effectively. Indeed, the imperative for providing preparation assistance for maximising party control results from the requirement, especially in facilitative and advisory DR processes, that the parties actively participate.87 Nevertheless, there is no consistency in the provision of DR pre-process preparation. is is an issue for DR service-provider consideration because preparation maximises party control, which in turn supports the achievement of informed consent which is critical to achieving the DR values of party autonomy and justice.

Informed consent and ethical activism by intervenors 12.52 e second aspect of an approach to support informed consent involves lawyers and DR practitioners playing ethically active roles. is

denotes engaging in activity that is speci cally targeted to supporting the parties’ informed consent. e key question in relation to this element of the framework concerns how a DR practitioner [page 408] can do this ethically, fairly and even-handedly.88 It is perhaps even appropriate to think of active support for informed consent as being an ethical responsibility of DR practitioners.89 12.53 e key relevant issue then is what level of activism or intervention is ethically appropriate to support the informed consent needs of individual parties. A legally represented party who has voluntarily chosen to participate in a DR process might require little active support to consent in an informed way.90 In such cases, it would be ethically unnecessary for a DR practitioner actively to interfere or intervene. By contrast, an ethical responsibility may arise for DR practitioners to provide greater intervention for an unrepresented party in a mandatory conciliation context.91 12.54 In some cases, relatively minor interventions through techniques such as summarising, questioning or reframing, or through calling separate sessions regularly, may be appropriate and adequate. Practitioners might use ‘illustrative or hypothetical problems’, drawing on their previous experiences, or they might reality test in more challenging ways.92 In other cases, stronger intervention on the part of DR practitioners may be required in the form of providing information (or perhaps even a level of what might be considered advice). Weckstein argues, for example, that DR practitioners can ‘serve as a source of pertinent information’;93 and in his view, ‘educating disputants about relevant norms and information enhances, rather than undermines, party self-determination’.94 It is of course a ne distinction in terms of what constitutes an ‘ethical provision of information and/or advice’ compared with what is unethical in this regard. It could, however, be contended that the more critical ethical distinction is that between ethical activism that supports informed consent, and unethical conduct that results

in a DR practitioner effectively imposing a decision on the parties. DR ethics are considered further in Chapter 13. [page 409]

Summary 12.55 Informed consent is the key to achieving the values of party autonomy and justice in DR systems, especially in facilitative and advisory systems. Informed consent is therefore critical to ensuring that DR processes provide parties with opportunities to reach fair outcomes that they can live with.95 A perfect conception of informed consent is unachievable. As Fletcher points out: ‘It is true that all of us are limited in how much we know about things, and how competent we are to evaluate even what little we know or think we know’.96 Nevertheless, the approach outlined here supports the achievement of informed consent, an important aspect of DR praxis.

The shadow of the law in DR 12.56 e ‘shadow of the law’ concept is important to DR praxis. e concept was introduced by Mnookin and Kornhauser as part of their analysis of how the legal system impacts the bargaining behaviours of divorcing couples. ese authors argued that ‘divorcing parents do not bargain over the division of family wealth and custodial prerogatives in a vacuum; they bargain in the shadow of the law’.97 ey suggested that legal rules and potential court outcomes provide each party with ‘bargaining chips’ in out-of-court negotiations. 12.57 e shadow of the law concept was introduced through a bargaining model in which parties are said to be in uenced by the following factors in negotiations occurring in DR contexts: their preferences; the bargaining endowments created by legal rules which indicate the

outcome a court would most likely impose if they fail to reach agreement; the degree of uncertainty concerning the legal outcome if the parties go to court, which is linked to the parties’ attitudes towards risk; [page 410] transaction costs and the parties’ respective abilities to bear them; and strategic behaviour. 12.58 e shadow of the law relies upon the predicted outcome that would be imposed by a court if a judge were deciding the matter according to the normative and objective criteria of the law. However, legal rules are oen complicated, ambiguous or discretionary and this provides ‘a bargaining backdrop clouded by uncertainty’.98 e uncertainty of the law means that the bargaining in uence of the ‘shadow of the law’ is uid.99 For example, uncertain discretionary standards affect the relative bargaining position of each party because their respective attitudes to risk and their capacity to bear transaction costs may be different.100 In this way, the shadow of the law can work to highlight the parties’ differing bargaining strengths and weaknesses in terms of how they weigh up the risks and opportunities of their matter going to court. Mnookin and Kornhauser suggested that for this reason the model must be taken as a whole if it is to illuminate how the legal shadow in uences parties in dispute and their approach to assessing various options for resolution.101 12.59 Importantly, the bargaining model suggested by Mnookin and Kornhauser was not intended to be a complete or de nitive theory.102 e term ‘shadow of the law’ has entered the DR vernacular, but the authors’ intentions were actually quite modest. ey were simply offering a model intended to create a theoretical perspective permitting ‘a broader analysis of the probable consequences’ of legal rules and procedures.103 Much relevant legal literature makes assumptions about the shadow concept offering a

complete theory. However, it was originally intended only to be a catalyst for further theory development. 12.60 ere have been two key challenges to the concept of the shadow of the law that are relevant to the legitimate place of the concept in DR praxis. First, it has been asserted that the concept overstates the role of the law; second, it has been argued that it incorrectly assumes that a perfect legal understanding of what a court would do is possible. ese criticisms are considered in turn in order to explore the rightful place of the ‘shadow of the law’ concept in DR praxis, and appropriate boundaries on its operationalisation.

Operationalising the shadow of the law: avoiding overstating the role of the law 12.61 It has been suggested that the concept of the ‘shadow of the law’ places too great an emphasis on the role of legal rules and principles by assuming the law is relevant in all negotiations.104 In other words, the central role given to the law in private [page 411] negotiations has been challenged.105 Certainly, the law plays a signi cant part in many negotiations, and particularly in legal disputes. However, the importance of the law and its relative in uence on negotiating parties may be mitigated by a number of factors such as the parties’ respective personal needs and commercial interests, differences in negotiating power between them, an unwillingness to use court processes, ambiguities in the law, moral imperatives, issues of blame and fault and the role of gender.106 12.62 Batagol and Brown, for example, found the law had limited impacts on mediated agreements and the shadow of the law was most relevant where legal proceedings were imminent or legal advice had been received.107 Wade has suggested that the law’s shadow is not relevant to parties who are not seeking to ‘rubber stamp’ or add judicial effect to their agreements.108

Consequently, parties who prefer to rely on moral, commercial or interestsbased agreements effectively choose not to bargain in the shadow of the law.

Operationalising the shadow of the law: acknowledging the uncertainty of the law 12.63 e concept of law proposed by Mnookin and Kornhauser, particularly in terms of the shadow it might cast, is criticised for being too rigid and for failing to encompass the reality of the plurality and uncertainty of the law. is criticism is focused on the way in which the shadow of the law theory takes for granted that there is a single interpretation of the law that can be provided with certainty.109 As practising lawyers will attest, the reality is that the law is far more contingent. is is because, inter alia, the law is oen discretionary in nature, it oen requires interpretation and different interpretations are possible, and in practice legal advice is oen a synthesis of a range of different considerations.110 12.64 Disputing parties’ understanding of the law can also be in uenced by a lack of access to legal representation, advice and information,111 by the existence of ‘folklore’, or by legal distortions in the media.112 erefore, a further contributor to legal uncertainty lies in the parties’ individual levels of legal understanding, or misunderstanding.113 People can only bargain effectively in the shadow of the law if the law creates a reliable shadow for them.114 As Field has suggested, the bene t of law’s shadow is only [page 412] authentically available to ‘parties who have access to good legal advice and skilled representation’.115 Consequently, power imbalances, lack of access to legal information, inability to afford lawyers and inexperience in negotiation can affect the ability of parties to make the most of law’s shadow.116 To be fair, Mnookin and Kornhauser did acknowledge that legal uncertainty affects understandings as to the potential outcomes of disputes.117 12.65

In addition, Melli et al question whether court orders actually

constitute the law’s ‘shadow’.118 For example, in the context of mandatory mediation in various legal contexts and the increases in private settlements, an additional and alternative ‘shadow’ of the law is cast by the parties’ private ordering rather than the public law.119 e issue with the alternative shadow is that private settlements are oen con dential and so its in uence is limited to legal and DR practitioners referring to similar past cases in which they have been involved. Nevertheless, it is worth considering that the shadow concept may need further development to recognise that multiple shadows may arise from multiple perspectives.120 Consequently, the shadow of the law can be seen as a more complex factor in DR praxis and one that deserves further exploration and development if it is to be effectively operationalised.

Summary 12.66 e use of the term ‘shadow of the law’ has moved signi cantly beyond that originally envisaged by Mnookin and Kornhauser’s notion of the law as the anticipated outcome if parties were to go to court. ere are credible challenges to the concept of the shadow of the law, and the term itself is contested and capable of different interpretations; moreover, the law’s shadow is not always a strong in uence on parties’ negotiations in DR processes.121 Nonetheless, much literature continues to assume the efficacy of the concept and its relevance.122 New understandings of the shadow of the law are therefore important to DR praxis and must be explicitly articulated so the term can be used with meaning and clarity. For the purposes of this work, the shadow of the law refers to underlying legal in uences, principles and information (no matter how formal or informal) which impact upon parties in DR processes. [page 413]

Re ective DR practice 12.67 Re ective practice is important to the efficacy of the praxis of all professions and not least the DR and legal professions in the 21st century.

ere is a signi cant body of theory on this doctrine which should be integrated into DR theory and practice for the ultimate effectiveness of DR praxis.123 Re ective practice supports the acquisition and development of self-management skills, it can help professionals manage the dissociative elements of professional practice, it can assist with the integration of the intellectual and emotional aspects of DR lawyering, and it can support DR practitioners and lawyers to integrate their professional identities (and to manage the various hats they need to wear).124 Re ective practice is therefore important to DR praxis, although it is not oen explicitly taught at law school and lawyers are commonly uncomfortable with the level of selfinterrogation and self-regulation that it requires.125 [page 414] 12.68 Nevertheless, re ective practice is a positive professional process that supports the effective development of DR and legal knowledge, skills and attitudes. It helps to maximise professional effectiveness and assists with the maintenance of psychological wellbeing and a positive professional identity. Re ective practice is considered a ‘rigorous art’.126 It is something that DR practitioners and lawyers can learn and re ne, and it is important to praxis because it helps turn experience into learning, theory into practice, and practice into artfulness.127 12.69 For Moon, an expert in the eld, re ective practice is a metacognitive skill128 that is more than simply the conveyance of information, or descriptive writing.129 Schön explains that a re ective practitioner is skilful and knowledgeable, but also ‘thoughtful, wise and contemplative’ and able to use ‘intuition, insight and artistry’ in their practice.130 A de nition of re ective practice is: … a cognitive and affective process or activity that (1) requires active engagement on the part of the individual; (2) is triggered by an unusual or perplexing situation or experience; (3) involves examining one’s responses, beliefs, and premises in light of the situation at hand; and (4) results in integration of the new understanding of one’s experience.131

12.70 A re ective practitioner is able to learn from experience, identify personal and professional strengths and areas for improvement, identify their needs and develop goals, implement strategies to achieve goals, acquire new knowledge and skills effectively and efficiently, and understand their own beliefs, attitudes and values. ey are self-motivated and self-directed, and personally and professionally con dent. Re ective practitioners can exercise sound judgment, accept critical feedback, adopt strategies to improve their skills and aptitudes and cope with uncertainty and anxiety.132 12.71 Re ective practice can support professionals to self-manage, to become clearer about aspects of their practice or to cope with or manage challenges more effectively. Re ective practice also provides opportunities ‘to examine and test beliefs and principles against what is being learned doctrinally’.133 ere are two key reasons why the concept of re ective practice is included in this chapter about praxis. e rst [page 415] is that re ective practice can support the development of emotional intelligence, which is critical to effective praxis in DR contexts. e second is that re ective practice can support the development of a positive professional identity, another important element of DR praxis.

Re ective practice supports emotional intelligence in DR praxis 12.72 What is emotional intelligence? Salovey and Mayer are leading researchers on the topic and they de ne emotional intelligence as ‘the subset of social intelligence that involves the ability to monitor one’s own and others’ feelings and emotions, to discriminate among them and to use this information to guide one’s thinking and actions’.134 Emotional intelligence can be said to include qualities such as self-knowledge, self-control, motivation and the ability to deal with a range of different people in diverse contexts — which DR practitioners and lawyers are required to do when interacting with clients and other professionals.135

12.73 Salovey and Mayer’s model of emotional intelligence has four elements: the perception of emotion, the ability to reason using emotions, the ability to understand emotion and the ability to manage emotions. Emotional intelligence is important to effectiveness in DR practice because it can help with the management of uncertainty, stress or anxiety, and can assist with making the most of the parties’ interactions in seeking to resolve a dispute. Schön argues that engaging in re ective practice supports the development of emotional intelligence and assist with preparing for, and managing, the stresses of professional practice.136 is is because, as James notes: ‘Re ection leads to self-awareness which is fundamental in all models of emotional intelligence’.137 12.74 Re ective practice positively assists with the development of many skills and attitudes that are relevant to becoming self-directed, independent and a lifelong learner with professional con dence and an ability to manage practice in a range of DR processes. It also improves capacity to form professional networks by connecting [page 416] with others, helping to create effective support systems and assist with the development of key skills. It is therefore critical to DR praxis.

Re ective practice supports the development of a professional identity 12.75 Chapter 14 explores the nature of a positive professional identity for DR practitioners and lawyers, and notes its complex nature. Re ective practice is a process that can help DR practitioners and lawyers with the development of the diverse components of a positive professional identity — the attributes, beliefs, values, motives and experiences that inform how professionals conceive of themselves, and how they articulate their aspirations and expectations. Re ective practice has a place in the health and social science traditions of DR, but has not traditionally been a part of legal culture, and it has not, until recently, been taught at law school.138

However, re ective practice is increasingly important because organic forms of mentoring and the professional apprenticeship processes that existed in the past are now more difficult to realise. Re ective practice also results in artistry — which can assist DR practitioners and lawyers to cope with the various challenges of DR practice and lawyering in DR contexts.139

Conclusion 12.76 In order to develop effective DR practice, all DR practitioners including lawyers need to be aware of the relationship between theory and practice and inform their practice with theory — in other words, DR practitioners and lawyers need to engage with the praxis of DR. In order to do this, the DR eld needs a strong evidence base on which to build practice informed by theory. A strong evidence base will give the claims of DR’s effectiveness credibility and quash unhelpful DR mythologies. is chapter has shown that the further development of the extant evidence base that informs DR practice is warranted, but also that existing theories can be better used to support the praxis of DR. 1.

e Macquarie Dictionary de nes praxis as ‘habit, custom; a set of examples for practice’. See . Aristotle used the word praxis to denote voluntary or goal-directed action .

2.

See, eg, Patti Lather, ‘Research as Praxis’ (1986) 56(3) Harvard Educational Review 257; Colin Lankshear and Peter McLaren, Critical Literacy: Politics, Praxis and the Postmodern (State University of New York Press, 1993); Rob Gray et al, ‘Struggling with the Praxis of Social Accounting: Stakeholders, Accountability, Audits and Procedures’ (1997) 10(3) Accounting, Auditing and Accountability Journal 325; Zygmunt Bauman, Culture as Praxis (Sage, 1999); Tami Spry, ‘Performing Autoethnography: An Embodied Methodological Praxis’ (2001) 7(6) Qualitative Inquiry 706; Richard J Bernstein, Praxis and Action: Contemporary Philosophies of Human Activity (University of Pennsylvania Press, 2011); Don Ihde, Technics and Praxis: A Philosophy of Technology: Volume 24 (Springer Science & Business Media, 2012); Liz Stanley (ed), Feminist Praxis (RLE Feminist eory): Research, eory and Epistemology in Feminist Sociology (Routledge, 2013); Rosemary Hunter, ‘e Feminist Judgments Project: Legal Fiction as Critique and Praxis’ (2015) 5(4) International Critical ought 501; Christian Pentzold, Andreas Bischof and Nele Heise, Praxis Grounded eory (Springer, 2018); Friedrich Kratochwil, Praxis: On Acting and Knowing (Cambridge University Press, 2018); Stephanie P Stobbe, ‘Peacebuilding

Techniques or Praxis’ in Sean Byrne et al (eds), Routledge Companion to Peace and Con ict Studies (Routledge, 2019) 438–48; Andrew Mamo, ‘Negotiation Pedagogy as Democratic Praxis’ (2021) 37(2) Negotiation Journal 149. 3.

Geoffrey Squires, ‘Praxis: A Dissenting Note’ (2003) 35(1) Journal of Curriculum Studies 1.

4.

Ibid 2. Many scholars across a range of disciplines refer to Aristotle’s explication of praxis in his work Nicomachean Ethics: Robert C Bartlett and Susan D Collins (trans), Aristotle’s Nicomachean Ethics (University of Chicago Press, 2011). For Aristotle, praxis was one of three basic activities of ‘free people’, the goal of which was action. See also, eg, Oded Balaban, ‘Praxis and Poesis in Aristotle’s Practical Philosophy’ (1990) 24(3) e Journal of Value Inquiry 185; Eric K Yamamoto, ‘Critical Race Praxis: Race eory and Political Lawyering Practice in Post-Civil Rights America’ (1997) 95(4) Michigan Law Review 821; Lauren Carasik, ‘ink Glocal, Act Glocal: e Praxis of Social Justice Lawyering in the Global Era’ (2008) 15(1) Clinical Law Review 55; Lolita Buckner Inniss, ‘A Review of Negotiating Justice: Progressive Lawyering, Low Income Clients, and the Quest for Social Change’ (2010) 37(3) Journal of Sociology and Social Welfare 198; Richard J Bernstein, Praxis and Action: Contemporary Philosophies of Human Activity (University of Pennsylvania Press, 2011); Richard J Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (University of Pennsylvania Press, 2011); alia Gonzalez, ‘Root to Rise: Mindful Lawyering for Social Justice’ (2017) 41(1) NYU Review of Law and Social Change 91. Aristotle distinguished between eupraxia (good praxis, good action or faring well) and dyspraxia (bad praxis, bad action or not faring well).

5.

As Kwan has said: ‘when a surgeon picks up a scalpel and cuts into a body, that is practice; but in order to know where to cut, that is theory. Agents of change need theories’: Peter Kwan, ‘Complicity and Complexity: Cosynthesis and Praxis’ (2000) 49(3) DePaul Law Review 673, 690.

6.

Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths, 2nd ed, 2002) 25.

7.

Ibid 23.

8.

Ibid ch 1.

9.

Ibid 25.

10.

Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020).

11.

See, eg, Sharyn Roach Anleu and Kathy Mack, ‘Magistrates’ Everyday Work and Emotional Labour’ (2005) 32(4) Journal of Law and Society 590; Kathy Mack, Anne Wallace and Sharon Roach Anleu, Judicial Workload: Time, Tasks and Work Organisation (Australasian Institute of Judicial Administration, 2013); Anne Wallace, Kathy Mack and Sharyn Roach Anleu, ‘Work Allocation in Australian Courts: Court Staff and the Judiciary’ (2014) 36(4) Sydney Law Review 669; Sharyn Roach Anleu, Stina Bergman Blix and Kathy Mack, ‘Researching Emotion in Courts and the

Judiciary: A Tale of Two Projects’ (2015) 7(2) Emotion Review 145; Sharyn Roach Anleu and Kathy Mack, Performing Judicial Authority in the Lower Courts (Springer, 2017); Kathy Mack, Sharyn Roach Anleu and Jordan Tutton, ‘e Judiciary and the Public: Judicial Perceptions’ (2018) 39(1) Adelaide Law Review 1; Sharyn Roach Anleu and Kathy Mack, Judging and Emotion: A Socio-Legal Analysis (Routledge, 2021). See also Tania Sourdin and Nadja Alexander, ‘Developments in ADR in Australian Courts’ in Australian Institute of Judicial Administration, Australian Courts: Serving Democracy and its Publics (AIJA, 2013); Tania Sourdin, ‘e Role of the Court in Alternative Dispute Resolution’ (2013) Asian Journal on Mediation 80; Tania Sourdin, Reforming Civil Procedure and Alternative Dispute Resolution (27 January 2015) ; Tania Sourdin, e Role of the Courts in the New Justice System (11 January 2016) ; Tania Sourdin, ‘Judge v Robot?: Arti cial Intelligence and Judicial Decision-Making’ (2018) 41(4) UNSWLaw Journal 1114; Carly Schrever, Carol Hulbert and Tania Sourdin, ‘e Psychological Impact of Judicial Work: Australia’s First Empirical Research Measuring Judicial Stress and Wellbeing’ (2019) 28(3) Journal of Judicial Administration 141; Tania Sourdin and John Zeleznikow, ‘Courts, Mediation and COVID-19’ (2020) 48(2) Australian Business Law Review 138; Tania Sourdin, Bin Li and Donna Marie McNamara, ‘Court Innovations and Access to Justice in Times of Crisis’ (2020) 9(4) Health Policy and Technology 447. See also the citations in Sourdin, (n 10) ch 8. 12.

A good selection of this work up to 2002 is cited in Astor and Chinkin, (n 6) ch 1 and some additional examples of the international research include: Tom R Tyler and Robert J Bies, ‘Beyond Formal Procedures: e Interpersonal Context of Procedural Justice’ in John S Carroll (ed), Applied Social Psychology and Organizational Settings (Psychology Press, 1990) 77–98; Jeanne M Brett, Zoe I Barsness and Stephen B Goldberg, ‘e Effectiveness of Mediation: An Independent Analysis of Cases Handled by Four Major Service Providers’ (1996) 12(3) Negotiation Journal 259; Lisa B Bingham and David W Pitts, ‘Highlight of Mediation at Work: Studies of the National REDRESS Evaluation Project’ (2002) 18(2) Negotiation Journal 135; Timothy Hedeen, ‘e Evolution and Evaluation of Community Mediation: Limited Research Suggests Unlimited Progress’ (2004) 22(1–2) Con ict Resolution Quarterly 101; Joan Kelly, ‘Family Mediation Research: Is ere Empirical Support for the Field?’ (2004) 22(1) Con ict Resolution Quarterly 1; Tim Johnston, Knowledge and Use of Mediation in SMEs (ACAS Publications, 2008); John Hellman, ‘e Occurrence of Mediation: A Critical Evaluation of the Current Debate’ (2012) 14(4) International Studies Review 591; Peter Cane and Herbert Kritzer (eds), e Oxford Handbook of Empirical Legal Research (Oxford University Press, 2012); Stephen B Goldberg et al, Dispute Resolution: Negotiation, Mediation and other Processes (Wolters Kluwer, 2014); Alysoun Boyle, ‘What is an Effective or Good Mediator: Exploring Empirical Research on Mediator Attributes and Behaviours’ (PhD thesis, Newcastle University, 2020);

Alysoun Boyle, ‘Effectiveness in Mediation: A New Approach’ (2017) 12 Newcastle Law Review 148. 13.

See Larry Fong, ‘New Paradigms in Mediation: inking About Our inking’ (1992) 10(2) Mediation Quarterly 209; Lisa P Gaynier, ‘Transformative Mediation: In Search of a eory of Practice’ (2005) 22(3) Con ict Resolution Quarterly 397; Rory RidleyDuff and Anthony Bennett, ‘Towards Mediation: Developing a eoretical Framework to Understanding Alternative Dispute Resolution’ (2011) 42(2) Industrial Relations Journal 106; Tony Bennett, ‘Workplace Mediation and the Empowerment of Disputants: Rhetoric or Reality?’ (2013) 44(2) Industrial Relations Journal 189. See also, eg, Carrie Menkel-Meadow, Dispute Processing and Con ict Resolution: eory, Practice and Policy (Routledge, 2003); Jacob Bercovitch, eory and Practice of International Mediation: Selected Essays (Routledge, 2011); Peter T Coleman, Morton Deutsch and Eric C Marcus (eds), e Handbook of Con ict Resolution: eory and Practice (John Wiley & Sons, 2014).

14.

See, eg, Rachael Field and Jonathan Crowe, Mediation Ethics: From eory to Practice (Edward Elgar, 2020).

15.

See, eg, James R Elkins, ‘e Moral Labyrinth of Zealous Advocacy’ (1992) 21(3) Capital University Law Review 735; Robin West, ‘e Zealous Advocacy of Justice in a Less an Ideal Legal World’ (1998) 51(4) Stanford Law Review 973; William H Fortune, Richard H Underwood and Edward J Imwinkelried, Modern Litigation and Professional Responsibility Handbook: e Limits of Zealous Advocacy (Wolters Kluwer, 2nd ed, 2001); Tim Dare, ‘Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ (2004) 7(1) Legal Ethics 24; Carol R Andrews, ‘Ethical Limits on Civil Litigation Advocacy: A Historical Perspective’ (2012) 63(2) Case Western Reserve Law Review 381.

16.

On the issue of new concepts of advocacy for lawyers, see, in particular, Julie Macfarlane, e New Lawyer (UBC Press, 2nd ed, 2017). is section of the chapter particularly draws from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014) ch 13. Other important contributions to the literature on legal advocacy in DR contexts include: William Simon, ‘e Ideology of Advocacy: Procedural Justice and Professional Ethics’ (1978) 29(1) Wisconsin Law Review 29; David Bryson, ‘Mediator and Advocate: Conciliating Human Rights Complaints’ (1990) 1(3) Australian Dispute Resolution Journal 136; WT Westling, ‘e Case for Trial Advocacy Training Within the Law School’ (1993) 67(4) Australian Law Journal 258; Marilyn Scott, ‘Collaborative Law: Dispute Resolution Competencies for the New Advocacy’ (2008) 8(1) QUT Law and Justice Journal 213; Donna Cooper and Mieke Brandon, ‘Non-Adversarial Advocates and Gatekeepers: Lawyers, FDR Practitioners, and Cooperative Post-Separation Parenting’ (2008) 19(2) Australasian Dispute Resolution Journal 104; Donna Cooper and Mieke Brandon, ‘Lawyers’ Role Options in Family Dispute Resolution’ (2011) 22(3) Australasian Dispute Resolution Journal 198; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise their Dispute Resolution Advocacy Role’ (2013) 24(4) Australasian

Dispute Resolution Journal 242; Donna Cooper, ‘e “New Advocacy” and the Emergence of Lawyer Representatives in ADR’ (2013) 24(3) Australasian Dispute Resolution Journal 178; Donna Cooper, ‘Representing Clients from Courtroom to Mediation Settings: Switching Hats Between Adversarial Advocacy and Dispute Resolution Advocacy’ (2014) 25(3) Australasian Journal of Dispute Resolution 150; Donna Cooper, ‘Lawyers Behaving Badly in Mediations: Lessons for Legal Educators’ (2014) 25(4) Australasian Dispute Resolution Journal 204; Deanne Sowter, ‘Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code’ (2018) 35 Windsor Yearbook of Access to Justice 401; Deanne Sowter, ‘Reframing Advocacy in Collaborative Practice’ (2020) 19(1) e Collaborative Review 7. See also, eg, Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases’ (2008) 8(1) QUT Law and Justice Journal 77; Olivia Rundle, ‘A Spectrum of Contributions that Lawyers Can Make to Mediation’ (2009) 20(4) Australasian Dispute Resolution Journal 220; Naomi Cukier, ‘Lawyers Acting as Mediators: Ethical Dilemmas in the Shi from Advocacy to Impartiality’ (2010) 21(1) Australasian Dispute Resolution Journal 59; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH, 2010); Lola Akin Ojelabi and Tania Sourdin, ‘Using a Values-Based Approach in Mediation’ (2011) 22(4) Australasian Dispute Resolution Journal 258; Olivia Rundle, ‘Lawyers’ Perspectives on “What is Court-Connected Mediation for?”’ (2013) 20(1) International Journal of the Legal Profession 33; Olivia Rundle, ‘Lawyers’ Participation in Mediation and Professional Ethical Disposition’ (2015) 18(1) Legal Ethics 46; Olivia Rundle, ‘Lawyers’ Preparation for Court-Connected Mediation: e Supreme Court of Tasmania’ (2013) 32(1) University of Tasmania Law Review 20; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38(1) UNSW Law Journal 5; Paula Baron, Lillian Corbin and Judy Gutman, ‘rowing Babies out with the Bathwater — Adversarialism, ADR and the Way Forward’ (2014) 40(2) Monash University Law Review 283; Mary Anne Noone and Lola Akin Ojelabi, ‘Ethical Challenges for Mediators around the Globe: An Australian Perspective’ (2014) 45 Washington University Journal of Law and Policy 145. 17.

Macfarlane, (n 16) 98, 117.

18.

Ray Finkelstein and David Hamer (eds), LexisNexis Concise Australian Legal Dictionary (LexisNexis, 6th ed, 2020).

19.

‘A case well opened is half won’: (1886–1887) 3 e Columbia Jurist 8.

20.

A seminal work on cross-examination is Francis L Wellman, e Art of CrossExamination (e Macmillan Company, 1903). See also, eg, Charles T McCormick, ‘Scope and Art of Cross-Examination’ (1952) 47(2) Northwestern University Law Review 177; Paul Drew, ‘Strategies in the Contest Between Lawyer and Witness in Cross-Examination’ in Judith N Levi and Anne Graffam Walker, Language in the Judicial Process (Springer, 1990) 39–64; Saul M Kassin, Lorri N Williams and Courtney L Saunders, ‘Dirty Tricks of Cross-Examination’ (1990) 14(4) Law and Human Behavior 373; Marta Baffy and Alexandria Marsters, ‘e Constructed Voice

in Courtroom Cross-Examination’ (2015) 22(2) International Journal of Speech, Language and the Law 143; H Hunter Bruton, ‘Cross-Examination, College SexualAssault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented’ (2017) 27(1) Cornell Journal of Law and Public Policy 145. 21.

Carrie Menkel-Meadow, ‘Toward Another View of Legal Negotiation: e Structure of Problem Solving’ (1984) 31(4) University of California Los Angeles Law Review 754, 764–5.

22.

See, eg, Owen Fiss, ‘Against Settlement’ (1984) 93(6) Yale Law Journal 1073.

23.

Macfarlane, (n 16) 98.

24.

For the correct articulation of this ethical concept, see the Australian Solicitors’ Conduct Rules , and the Barristers’ Conduct Rules . See also further discussion in Chapter 13 on DR ethics.

25.

Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibility’ (1997) 38(2) South Texas Law Review 407, 430, 453–4.

26.

David B Wexler, Professor of Law, University of Puerto Rico is the co-founder of the therapeutic jurisprudence movement. is passage was cited in Michael King et al, Non-Adversarial Justice (Federation Press, 2010) v.

27.

See generally ibid.

28.

Macfarlane, (n 16) 1.

29.

Ibid.

30.

Oxford English Dictionary Online: .

31.

Leon Green, ‘Advocacy and Case Study’ (1951) 4(3) Journal of Legal Education 317, 317.

32.

Field, Duffy and Huggins, (n 16) ch 13.

33.

Pursuant to the Australian Solicitors’ Conduct Rules and the Barristers’ Conduct Rules, (n 24).

34.

Macfarlane, (n 16) 109.

35.

Ibid.

36.

Field, Duffy and Huggins, (n 16).

37.

See Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy, Style, Skills (LexisNexis Butterworths, 3rd ed, 2015).

38.

Macfarlane, (n 16) 109.

39.

Ibid 98.

40.

King et al, (n 26) ch 15.

41.

Field, Duffy and Huggins, (n 16).

42.

Macfarlane, (n 16) 117.

43.

Informed consent is said to be the way in which ‘the principle of self-determination can be measured’: Jacqueline M Nolan-Haley, ‘Self-Determination in International Mediation: Some Preliminary Re ections’ (2005) 7(2) Cardozo Journal of Con ict Resolution 277, 278. See further the works cited in that article. For a sample of the discussion of informed consent across a range of DR contexts in Australia, see, eg, Tony Gee, ‘Family Mediation: A Matter of Informed Personal Choice’ (1998) 9(3) Australian Dispute Resolution Journal 179; Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part II’ (2000) 11(3) Australian Dispute Resolution Journal 145; Stephen Lancken, ‘e Preliminary Conference: Option or Necessity?’ (2000) 11(3) Australian Dispute Resolution Journal 196; Mary Anne Noone, ‘Lawyers as Mediators: More Responsibility?’ (2006) 17(2) Australasian Dispute Resolution Journal 96; Jonathon Friedrich, ‘Philosophical Answers to Ethical Questions: Power Imbalance and the Provision of Advice in Mediation Standards’ (2009) 20(3) Australasian Dispute Resolution Journal 179; Alison Finch, ‘Harnessing the Legal and Extralegal Bene ts of Mediation: A Case for Allowing Greater Client Participation in Facilitative Mediation’ (2010) 21(3) Australasian Dispute Resolution Journal 155; Rachael Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22(1) Australasian Dispute Resolution Journal 8; Lise Barry, ‘Elder Mediation’ (2013) 24(4) Australasian Dispute Resolution Journal 251; Mary Anne Noone and Lola Akin Ojelabi, ‘Insights from Australian Mediators about Mediation and Access to Justice’ (2014) 25(4) Australasian Dispute Resolution Journal 212; Bornali Borah, ‘Being the Ladle in the Soup Pot: Working with the Dichotomy of Neutrality and Empowerment in Mediation Practice’ (2017) 28(2) Australasian Dispute Resolution Journal 98; Sala Sihombing, ‘UNCITRAL Convention — Mediation’s Big Bang: Can Mediation Challenge Arbitration’s Dominance?’ (2019) 30(1) Australasian Dispute Resolution Journal 51; Laurence Boulle and Rachael Field, ‘Re-Appraising Mediation’s Value of Self-Determination’ (2020) 30(2) Australasian Dispute Resolution Journal 96. See also Field and Crowe, (n 14) ch 8.

44.

Jacqueline M Nolan-Haley, ‘Informed Consent in Mediation: A Guiding Principle for Truly Educated Decision-Making’ (1999) 74(3) Notre Dame Law Review 775, 780.

45.

Ibid 775.

46.

See, eg, Herman Segal and Richard Warner, Ethical Issues of Informed Consent in Dentistry (Quintessence, 1980); Jeffrey M Drazen, Caren G Solomon and Michael F Greene, ‘Informed Consent and Support’ (2013) 368(20) New England Journal of Medicine 1929; Sarah Burningham, Christen Rachul and Timothy Caul eld, ‘Informed Consent and Patient Comprehension: e Law and the Evidence’ (2013) 7(1) McGill Journal of Law and Health 123; Ruth R Faden, Tom L Beauchamp and Nancy E Kass, ‘Informed Consent, Comparative Effectiveness and Learning Health Care’ (2014) 370(8) New England Journal of Medicine 766; Christine Grady, ‘Enduring and

Emerging Challenges of Informed Consent’ (2015) 372(9) New England Journal of Medicine 855; Barbara Noah and Neal Feigenson, ‘Avoiding Overtreatment at the End of Life: Physician–Patient Communication and Truly Informed Consent’ (2015) 36(3) Pace Law Review 736; Erica S Spatz, Harlan M Krumholz and Benjamin W Moulton, ‘e New Era of Informed Consent: Getting to a Reasonable-Patient Standard rough Shared Decision Making’ (2016) 315(19) Journal of the American Medical Association 2063; Susan M Wolf, Ellen Wright Clayton and Frances Lawrenz, ‘e Past, Present, and Future of Informed Consent in Research and Translational Medicine’ (2018) 46(1) Journal of Law Medicine and Ethics 7. 47.

See Jessica W Berg et al, Informed Consent: Legal eory and Clinical Practice (Oxford University Press, 2nd ed, 2001). e nature of informed consent in lawyer–client relationships is treated comprehensively in legal ethics texts as a complex issue — see, eg, David Luban, ‘Paternalism and the Legal Profession’ (1981) (3) Wisconsin Law Review 454; Deborah L Rhode, Professional Responsibility: Ethics by the Pervasive Method (Aspen Law and Business, 2nd ed, 1998); John T Noonan and Richard W Painter, Professional and Personal Responsibilities of the Lawyer (West Publishing, 3rd ed, 2011); Deborah L Rhode et al, Legal Ethics (Foundation Press, 7th ed, 2016); Carrie Menkel-Meadow, ‘e Evolving Complexity of Dispute Resolution Ethics’ (2017) 30(3) Georgetown Journal of Legal Ethics 389; Jacqueline Nolan-Haley, ‘Does ADR’s Access to Justice Come at the Expense of Meaningful Consent’ (2018) 33(3) Ohio State Journal on Dispute Resolution 373; Carrie Menkel-Meadow et al, Dispute Resolution: Beyond the Adversarial Model (Aspen Publishers, 3rd ed, 2018) ch 8; Julianne Dardanes, ‘When Accessing Justice Requires Absence from the Courthouse: Utah’s Online Dispute Resolution Program and the Impact it Will Have on Pro Se Litigants’ (2021) 21(1) Pepperdine Dispute Resolution Law Journal 141. See also Ruth R Faden and Tom L Beauchamp, A History and eory of Informed Consent (Oxford University Press, 1986). In legal contexts the process goal of party autonomy is said to be ‘expressed through the legal doctrine of informed consent’: Nolan-Haley, (n 43) 277.

48.

See, however, Nolan-Haley, (n 44) 799; Lela P Love and John W Cooley, ‘e Intersection of Evaluation by Mediators and Informed Consent: Warning the Unwary’ (2005) 21(1) Ohio State Journal on Dispute Resolution 45; Michael Colatrella Jr, ‘Informed Consent in Mediation: Promoting Pro Se Parties’ Informed Settlement Choice While Honoring the Mediator’s Ethical Duties’ (2013) 15(3) Cardozo Journal of Con ict Resolution 705, 706. See also Ellen Waldman, Mediation Ethics (Wiley, 2011). See further Jacqueline M Nolan-Haley, ‘Mediation: e Best and Worst of Times’ (2015) 16(3) Cardozo Journal of Con ict Resolution 731 in which she calls for a ‘renewed appreciation of (informed) consent in mediation’, 731.

49.

Leda M Cooks and Claudia Hale, ‘e Construction of Ethics in Mediation’ (1994) 12(1) Mediation Quarterly 55, 62.

50.

Bobette Wolski, ‘Voluntariness and Consensuality: De ning Characteristics of Mediation?’ (1997) 15(3) Australian Bar Review 213, 214. See also Jay Folberg and Alison Taylor, Mediation: A Comprehensive Guide to Resolving Con icts Without

Litigation (Jossey-Bass, 1984) 10, 35; Laurence Boulle, ‘Emerging Standards for Lawyer-Mediators’ (1993) 23(6) Queensland Law Society Journal 575, 579. 51.

See Hilary Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part I’ (2000) 11(1) Australian Dispute Resolution Journal 73. See, however, Jonathan Crowe and Rachael Field, ‘e Problem of Legitimacy in Mediation’ (2008) 9(1) Contemporary Issues in Law 48.

52.

Nolan-Haley, (n 43) 278.

53.

Donald T Weckstein, ‘In Praise of Party Empowerment — and of Mediator Activism’ (1997) 33(3) Willamette Law Review 501, 503. ‘Informed consent is not only compatible with the principle of self-determination but, as this Article contends, essential to it’: ibid. ‘A disputant who is unaware of relevant facts or law that, if known, would in uence that party’s decision cannot engage in meaningful self-determination’: ibid.

54.

Nolan-Haley, (n 44) 787.

55.

United Nations, Guidance for Effective Mediation, Report of e Secretary General (2012) 3. Although it should be acknowledged that this document also uses the term consent to refer to mediation as a voluntary endeavour and this is now less relevant in Australia, as is the notion of mediator impartiality — see, eg, Jonathan Crowe and Rachael Field, ‘e Empty Idea of Mediator Impartiality’ (2019) 29(4) Australasian Dispute Resolution Journal 273; Field and Crowe, (n 14).

56.

Nolan-Haley, (n 44) 840.

57.

Ibid 781.

58.

Ibid 778.

59.

e term ‘remedial imagination’ was coined by Carrie Menkel-Meadow, ‘Toward Another View of Legal Negotiation: e Structure of Problem-Solving’ (1984) 31(4) UCLA Law Review 754, 791. Menkel-Meadow says the phrase refers to ‘the opportunity to cra solutions that do not compromise, but offer greater expression of the variety of remedial possibilities in a post-modern world’: Carrie Menkel-Meadow, ‘Whose Dispute is it Anyway?: A Philosophical and Democratic Defence of Settlement (In Some Cases)’ (1995) 83(7) Georgetown Law Journal 2663, 2675. e vastly increased range of remedial options created through pursuit of party selfdetermination in DR processes, can be, and oen is, informed by the law (see the discussion of the shadow of the law below). However, note Fiss’ view that ‘the disputeresolution story trivializes the remedial dimensions of law-suits and mistakenly assumes judgment to be the end of the process’: Fiss, (n 22) 1082.

60.

Nolan-Haley, (n 44) 779.

61.

See Trina Grillo, ‘e Mediation Alternative: Process Dangers for Women’ (1991)

100(6) Yale Law Journal 1545. 62.

is framework was originally suggested in Rachael Field, ‘A Paradigm Shi for Mediation Ethics: From Neutrality to Party Self-Determination’ (PhD thesis, University of Sydney, 2011). It is discussed further in Rachael Field, ‘Exploring the Potential of Contextual Ethics in Mediation’ in Francesca Bartlett, Reid Mortensen and Kieran Tranter (eds), Alternative Perspectives on Legal Ethics (Routledge, 2010) 203–27; Rachael Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22(1) Australasian Dispute Resolution Journal 8; Rachael Field, ‘Proposing a System of Contextual Ethics for Mediation for a Range of Mediation Models and in Both Ad Hoc and Institutional Environments’ (2017) 10(2) Contemporary Asia Arbitration Journal 293; and developed more fully in Field and Crowe, (n 14) ch 8. A version of it was offered in Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis Butterworths, 2017) ch 11.

63.

Astor, ‘Rethinking Neutrality: A eory to Inform Practice — Part II’, (n 43); Hilary Astor, ‘Mediator Neutrality: Making Sense of eory and Practice’ (2007) 16(2) Social & Legal Studies 221.

64.

Astor, ‘Mediator Neutrality: Making Sense of eory and Practice’, (n 63) 234.

65.

Rhonda Payget, ‘e Purpose of an Intake Process in Mediation’ (1994) 5(3) Australian Dispute Resolution Journal 190. See also Linda Kochanski, ‘Intake Uptake: How to Get the Most out of a Pre-Mediation Interview’ (2013) 33(9) Proctor 32; Linda Kochanski, ‘Family Dispute Resolution: e Importance of Intake’ (2011) 1(3) Family Law Review 164.

66.

See, eg, Frank EA Sander and Stephen B Goldberg, ‘Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure’ (1994) 10(1) Negotiation Journal 49; John Lande and Gregg Herman, ‘Fitting the Forum to the Family Fuss’ (2004) 42(2) Family Court Review 280; Frank EA Sander and Lukasz Rozdeiczer, ‘Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a MediationCentered Approach’ (2006) 11 Harvard Negotiation Law Review 1; Timothy Hedeen, ‘Remodeling the Multi-Door Courthouse to Fit the Forum to the Folks: How Screening and Preparation Will Enhance ADR’ (2011) 95(3) Marquette Law Review 941.

67.

See Lon Fuller, ‘Mediation: Its Forms and Functions’ (1971) 44(2) Southern California Law Review 305, 312.

68.

See, eg, Jack Effron, ‘Alternatives to Litigation — Factors in Choosing’ (1989) 52(4) Modern Law Review 480. Practice notes also provide practitioners with guidance — see, eg, Rebecca Wester eld, ‘An ADR Menu: Choosing the Best Process for the Case’ (1993) 57(4) Kentucky Bench and Bar 31; Paul Iacono, ‘Choosing the Best ADR Process’ (2000) 42(7) For the Defence 45. Joshua Taylor is currently working on a PhD thesis on this topic at the Bond University Faculty of Law. See also, eg, Joshua Taylor, ‘A Critical Analysis of Practitioners Issuing “Not Appropriate for Family Dispute

Resolution” Certi cates under the Family Law Act 1975 (Cth)’ (2020) 41(1) Adelaide Law Review 149. 69.

See Hilary Astor, Guidelines for Use if Mediating Cases Involving Violence Against Women (National Committee on Violence Against Women, 1992); Alison E Gerencser, ‘Family Mediation: Screening for Domestic Abuse’ (1995) 23(1) Florida State University Law Review 43; Alexandria Zylstra, ‘Mediation and Domestic Violence: A Practical Screening Method for Mediators and Mediation Program Administrators’ (2001) 2 Journal of Dispute Resolution 253; Elizabeth Clements and Alan Gross, ‘“Why Aren’t We Screening?” A Survey Examining Domestic Violence Screening Procedures and Training Protocol in Community Mediation Centers’ (2007) 24(4) Con ict Resolution Quarterly 413; Loretta Frederick, ‘Questions About Family Court Domestic Violence Screening and Assessment’ (2008) 46(3) Family Court Review 523; Lene Madsen, ‘A Fine Balance: Domestic Violence, Screening, and Family Mediation’ (2012) 30(3) Canadian Family Law Quarterly 343; Paulette E Morris, ‘Screening for Domestic Violence in Family Mediation: An Investigation into how Mediators Manage Disclosures of Domestic Abuse and Associated Emotions’ (PhD thesis, Brunel University London, 2015); Anne Barlow et al, ‘Entering Family Dispute Resolution’, in Mapping Paths to Family Justice (Palgrave Macmillan, 2017) 84–110.

70.

See Astor, (n 69) 7–12 and the scholarship referred to at (n 69).

71.

Payget, (n 65) 192–6.

72.

Ibid.

73.

Nolan-Haley, (n 44) 796 and fn 103.

74.

See the discussion of con ict coaching in Chapter 4.

75.

See, eg, Donna Cooper and Rachael Field, Neighbourhood Mediation Kit, available from Queensland Government .

76.

See, eg, Rachael Field, ‘Women and ADR’ in Patricia Easteal (ed), Women and the Law (LexisNexis Butterworths, 2010) 21; Field, ‘Exploring the Potential of Contextual Ethics in Mediation’, (n 61) 193.

77.

Bridget Sordo, ‘e Lawyer’s Role in Mediation’ (1996) 7(1) Australian Dispute Resolution Journal 20, 22. See also LaCrisia Gilbert, ‘Preparation of the Trial Lawyer for Mediation’ (2003) 7(1) Jones Law Review 85, 91.

78.

Gilbert, (n 77) 92.

79.

Masayuki Murayama, ‘Does a Lawyer Make a Difference? Effects of a Lawyer on Mediation Outcomes in Japan’ (1999) 13(1) International Journal of Law Policy and the Family 52, 73.

80.

Sordo, (n 77) 23.

81.

Penelope Bryan, ‘Reclaiming Professionalism: e Lawyer’s Role in Divorce

Mediation’ (1994) 28(2) Family Law Quarterly 177, 218. 82.

John Wade, ‘e Last Gap in Negotiations — Why is it Important? How can it be Crossed?’ (1995) 6(2) Australian Dispute Resolution Journal 93.

83.

Bryan, (n 81) 217–18.

84.

Gilbert, (n 77) 92.

85.

Ibid.

86.

On the importance of interprofessional relationships, at least in the family law context, see Helen Rhoades et al, Inter-Professional Relationships in a Changing Family Law System, Final Report (University of Melbourne, 2008).

87.

Cooper and Brandon, ‘Non-Adversarial Advocates and Gatekeepers’, (n 16) comment in relation to FDR: ‘… as clients are expected to take an active role in the mediation, it will greatly assist if they arrive at FRCs fully informed’: 109.

88.

Nolan-Haley, (n 42) 532.

89.

See further Field and Crowe, (n 14).

90.

Nolan-Haley, (n 44) 829–34.

91.

Ibid. Jonathan Roth eld has said: ‘If participants are not advised by lawyers, then at the very beginning of the process, the participants, in consultation with me (as mediator), need to discuss and decide how they will guard against unfair or unreasonable outcomes’: Jonathan Roth eld, ‘What (I ink) I Do as e Mediator’ (2001) 12(4) Australasian Dispute Resolution Journal 240, 245.

92.

Weckstein, (n 53) 535. Note that reality testing may be difficult to distinguish from evaluation in some instances. Golann and Aaron comment that while all processoriented mediators will be prepared to reality test, they may not acknowledge how such activity in fact exposes their own opinions and views on the merits or otherwise of various options. ey state that: ‘Reality testing is a spectrum in which the line between mere testing and evaluation is not always clear’: Dwight Golann and Marjorie Corman Aaron, ‘Using Evaluations in Mediation’ (1997) 52(2) Dispute Resolution Journal 26, 27.

93.

Weckstein, (n 53) 504.

94.

Ibid 532.

95.

Nolan-Haley and Rosenburg correlate fairness and justice in judging mediated outcomes: see Nolan-Haley, (n 44) 778 and Maurice Rosenberg, ‘Resolving Disputes Differently: Adieu to Adversary Justice’ (1988) 21(3) Creighton Law Review 801, 809.

96.

Joseph Fletcher, Situation Ethics (SCM Press, 1966) 84.

97.

Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: e Case of Divorce’ (1979) 88(5) Yale Law Journal 950, 968–9. See also, eg, Robert Cooter, Stephen Marks and Robert Mnookin, ‘Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior’ (1982) 11(2) e Journal of Legal Studies 225; Herbert Jacob, ‘e Elusive Shadow of the Law’ (1992) 26(3) Law and Society Review

565; John Wade, ‘Forever Bargaining in the Shadow of the Law — Who Sells Solid Shadows? (Who Advises What, How and When?)’ (1998) 12(4) Australian Journal of Family Law 256; Marc L Busch and Eric Reinhardt, ‘Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes’ (2000) 24(1/2) Fordham International Law Journal 158; Betsey Stevenson and Justin Wolfers, ‘Bargaining in the Shadow of the Law: Divorce Laws and Family Distress’ (2006) 121(1) e Quarterly Journal of Economics 267; Becky Batagol and ea Brown, Bargaining in the Shadow of the Law: e Case of Family Mediation (emis Press, 2011); Barak Medina, ‘Domestic Human Rights Adjudication in the Shadow of International Law: e Status of Human Rights Conventions in Israel’ (2017) 50(3) Israel Law Review 331. 98.

Mnooking and Kornhauser, (n 97) 969.

99.

Ibid 978.

100. Ibid 980. 101. Ibid 996. 102. Ibid 965. 103. Ibid 996. 104. Batagol and Brown, (n 97). 105. Ibid 56. 106. Ibid 217. 107. Ibid 261. 108. Wade, (n 97) 290. 109. Batagol and Brown, (n 97) 58. 110. John Dewar and Stephen Parker, ‘e Impact of the New Part VII Family Law Act 1975’ (1999) 13(2) Australian Journal of Family Law 1, 21. 111. Batagol and Brown, (n 97) 59. 112. See, eg, Jonathan Crowe et al, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40(3) Sydney Law Review 319. 113. Batagol and Brown, (n 97) 27; Dewar and Parker, (n 110) 18. 114. Patrick Parkinson, ‘e Diminishing Signi cance of Initial Contributions to Property’ (1999) 13(2) Australian Journal of Family Law 52. 115. Rachael Field, ‘Participation in Pre-Trial Legal Negotiations of Family Law Disputes: Some Issues for Women’ (1998) 12(3) Australian Journal of Family Law 240, 244. 116. Ibid 245. 117. Mnookin and Kornhauser, (n 97). 118. Marygold Melli, Howard Erlanger and Elizabeth Chambliss, ‘e Process of

Negotiation: An Exploratory Investigation in the Context of No-fault Divorce’ (1998) 40(4) Rutgers Law Review 1133, 1142. 119. Ibid 1147. 120. Batagol and Brown, (n 97) 272. 121. Ibid 276. 122. Margaret ornton, ‘Sex Discrimination, Courts and Corporate Power’ (2008) 36(1) Federal Law Review 31; Ruth Charlton, ‘Shared Parenting Laws See Subtle Changes in Mediation Dynamics’ (2007) 45(3) Law Society Journal of NSW 30. 123. See in particular the seminal works of Donald A Schön: e Re ective Practitioner: How Professionals ink in Action (Basic Books, 1983); Educating the Re ective Practitioner (Jossey-Bass, 1987) 13. See further, eg, John Dewey, How We ink: A Restatement of the Relation of Re ective inking to the Educative Process (Henry Regnery Co, 1933); David Boud, Rosemary Keogh and David Walker (eds), Re ection: Turning Experience into Learning (Kogan Page, 1985); Jack Mezirow (ed), Fostering Critical Re ection in Adulthood (Jossey-Bass, 1990); Max Van Manen, ‘On the Epistemology of Re ective Practice’ (1995) 1(1) Teachers and Teaching 33; Cheryl Hunt, ‘Shiing Shadows: Metaphors and Maps for Facilitating Re ective Practice’ (2001) 2(3) Re ective Practice 275; Christopher Johns, Engaging Re ection in Practice: A Narrative Approach (Wiley-Blackwell, 2006); Christine Morley, ‘Engaging Practitioners with Critical Re ection: Issues and Dilemmas’ (2007) 8(1) Re ective Practice 61; Valerie Hobbs, ‘Faking It or Hating It: Can Re ective Practice be Forced?’ (2007) 8(3) Re ective Practice 405; Linda Finlay, ‘Re ecting on “Re ective Practice”’, Practice-Based Professional Learning Paper 52’ (e Open University, 2008); Gail Edwards and Gary omas, ‘Can Re ective Practice be Taught?’ (2010) 36(4) Educational Studies 403; Janet Hargreaves and Louise Page, Re ective Practice (John Wiley & Sons, 2013); Peter Tarrant, Re ective Practice and Professional Development (Sage, 2013); Christopher Johns (ed), Becoming a Re ective Practitioner (WileyBlackwell, 5th ed, 2017); Alessandro Sicora, Re ective Practice (Policy Press, 2017); Lynelle Watts, ‘Re ective Practice, Re exivity, and Critical Re ection in Social Work Education in Australia’ (2019) 72(1) Australian Social Work 8; Fiona McDermott, Inside Group Work: A Guide to Re ective Practice (Routledge, 2020). 124. See, eg, Filippa M Anzalone, ‘Education for the Law: Re ective Education for the Law’ in Nona Lyons (ed), Handbook of Re ection and Re ective Enquiry: Mapping Ways of Knowing for Professional Re ective Enquiry (Springer Science and Business Media, 2010) 85, 86. 125. See, however, Anna Huggins, Sally Ki and Rachael Field, ‘Implementing the SelfManagement reshold Learning Outcome for Law: Some Intentional Design Strategies from the Current Curriculum Toolbox’ (2011) 21(1/2) Legal Education Review 183. See also, eg, Judy Gutman and Matthew Riddle, ‘ADR in Legal Education: Learning by Doing’ (2012) 23(3) Australasian Dispute Resolution Journal 189; Rachael Field and James Duffy, ‘Law Student Psychological Distress, ADR and Sweet-Minded,

Sweet-Eyed Hope’ (2012) 23(3) Australasian Dispute Resolution Journal 195; Pauline Collins, ‘Student Re ections on the Bene ts of Studying ADR to Provide Experience of Non-Adversarial Practice’ (2012) 23(3) Australasian Dispute Resolution Journal 204; Susan Douglas, ‘Humanising Legal Education: Lessons from ADR’ (2012) 23(3) Australasian Dispute Resolution Journal 216. See further, eg, Judith McNamara and Rachael Field, ‘Designing for Re ective Practice in Legal Education’ (2007) 2(1) Journal of Learning Design 66; Susan Douglas, ‘Questions of Mediator Neutrality and Researcher Objectivity: Examining Re exivity as a Response’ (2009) 20(1) Australasian Dispute Resolution Journal 56; Susan Armstrong, ‘Developing Culturally Re exive Practice in Family Dispute Resolution’ (2011) 22(1) Australasian Dispute Resolution Journal 30; Kelley Burton, ‘A Criterion-Referenced Assessment Rubric on Re ective Practice Designed for a Clinical Legal Education Context’ (2015) 8(1&2) Journal of the Australasian Law Teachers Association 3; Rachel Spencer and Susan L Brooks, ‘Re ecting on Re ection: A Dialogue Across the Hemispheres on Teaching and Assessing Re ective Practice in Clinical Legal Education’ (2019) 53(4) e Law Teacher 458; Simon Brooman and Sarah Stirk, ‘Who am I?: Using Re ective Practice and Self-Determination to Rede ne “Employability” in Legal Education’ (2020) 41(1) Liverpool Law Review 79. 126. Richard K Neumann, ‘Donald Schön, the Re ective Practitioner, and the Comparative Failures of Legal Education’ (2000) 6(2) Clinical Law Review 401, 407. 127. Boud, Keogh and Walker, (n 123). 128. Sally Ki, ‘Lawyering Skills: Finding eir Place in Legal Education’ (1997) 8(1) Legal Education Review 43. See also Huggins, Ki and Field, (n 125). 129. Jennifer Moon, Learning Journal: A Handbook for Re ective Practice and Professional Development (Routledge, 2006). 130. Schön, e Re ective Practitioner: How Professionals ink in Action, (n 123). 131. Russell Rogers, ‘Re ection in Higher Education: A Concept Analysis’ (2001) 26(1) Innovative Higher Education 37, 41. 132. Field, Duffy and Huggins, (n 16) ch 4; Samantha Davies, ‘Embracing Re ective Practice’ (2012) 23(1) Education for Primary Care 9. 133. Anzalone, (n 123) 86. 134. Peter Salovey and John Mayer, ‘Emotional Intelligence’ (1990) 9(3) Imagination, Cognition and Personality 185. See also Kendra Cherry, ‘What is Emotional Intelligence? De nitions, History, and Measures of Emotional Intelligence’ (19 June 2016) . 135. See, eg, Paul J Cain, ‘A First Step Toward Introducing Emotional Intelligence into the Law School Curriculum: e “Emotional Intelligence and the Clinic Student” Class’ (2003) 14(1) Legal Education Review 1, 2–3. See also, eg, Athanasios S Drigas and Chara Papoutsi, ‘A New Layered Model on Emotional Intelligence’ (2018) 8(5)

Behavioral Sciences 45; Victoria Mattingly and Kurt Kraiger, ‘Can Emotional Intelligence be Trained? A Meta-Analytical Investigation’ (2019) 29(2) Human Resource Management Review 140; Ilios Kotsou et al, ‘Improving Emotional Intelligence: A Systematic Review of Existing Work and Future Challenges’ (2019) 11(2) Emotion Review 151; Carolyn MacCann et al, ‘Emotional Intelligence Predicts Academic Performance: A Meta-Analysis’ (2020) 146(2) Psychological Bulletin 150. 136. Schön, Educating the Re ective Practitioner, (n 123) 35. 137. Colin James, ‘Seeing ings as We Are: Emotional Intelligence and Clinical Legal Education’ (2005) 8 International Journal of Clinical Legal Education 123, 138. 138. Huggins, Ki and Field, (n 125). See also, (n 125). 139. See, eg, Michael D Lang and Alison Taylor, e Making of a Mediator: Developing Artistry in Practice (Jossey-Bass, 2000); Kathy Douglas, ‘Mediation and Improvisation: Teaching Mediators to Improvise the Storylines of Mediation’ (2007) 14(2) eLaw Journal 133; Kathy Douglas and Clare Coburn, ‘Attitude and Response to Emotion in Dispute Resolution: e Experience of Mediators’ (2014) 16(1) Flinders Law Journal 111.

[page 417]

Chapter 13 Competence and Ethics in Dispute Resolution Chapter contents Introduction Competence in DR Ethics and DR Conclusion

13.1 13.2 13.34 13.103

Introduction 13.1 is chapter examines matters of competence and ethics in relation to DR processes, including issues relevant to lawyers engaged with the various systems across the DR matrix. e rst part of the chapter considers competencies and quali cations relevant to different DR professionals in Australia and explores issues of appointment, accreditation and recognition. It also considers traditional and emerging competencies for lawyers involved in DR processes as advisers and representatives. e local arrangements are compared in part with comparative and international systems. e second part of the chapter deals with issues of ethics and standards. Competence is a prerequisite for ethical conduct. However, being competent and quali ed is not a guarantee of ethical conduct. To engage in ethical conduct in DR environments lawyers must not only understand the rules about how to behave in a professional and ethical manner, they must also have the capacity to make independent ethical judgments. Such judgments require an ethical disposition, a personal ethical framework and a moral compass. Given the potentially exhaustive scope of this topic, each segment of the chapter provides illustrations from different DR processes and contexts, at

times from the perspective of intervenors and at others from the perspective of lawyers representing clients in the various processes.

Competence in DR 13.2 In this context, ‘competencies’ refers to the knowledge, skills and attitudes functionally necessary for different DR processes, and ‘quali cations’ refers to the formal requirements for accreditation or appointment as relevant intervenors. ere [page 418] is an important distinction to be made between the diverse and variable quali cations and standards of competence that are required for DR practice and the uniformly recognised and formally regulated methods of acquiring quali cations, skills and competencies for legal practice. e legal profession has well-established and -documented foundations to its regulation and a strong sense of professional integrity that underpins implementation of the regulatory system. Although the practice of DR is moving increasingly towards more formal professionalisation, it has not yet reached that point. DR practice remains commonly an adjunct to a more traditional professional identity — such as that of lawyering, social work or psychology. is complicates the relationship between quali cations, evidence of competence and quality assurance of practice for consumers of DR services.

Substantive knowledge 13.3 Substantive knowledge refers to the subject-matter content of professional activity, that which distinguishes the expertise of one profession or occupation from another; the ‘what’ of expertise and professionalism. ere are different requirements in terms of the different styles of DR system (determinative, advisory, facilitated and blended) so these are discussed in turn next. Interestingly, notwithstanding the signi cant role for lawyers in DR (and as has been noted a number of times in this work), DR is not yet a

core compulsory subject of legal education, although many in the DR and legal communities believe it should be.1 And although Practical Legal [page 419] Training (PLT) courses do include DR, this perhaps introduces law graduates too late to the DR way of knowing, doing and being. Hopefully it will be a soon-to-happen much-needed reform that the Priestley 11 will speci cally include instruction in the substantive knowledge base of DR. e next section explores some substantive knowledge competencies relating to the different DR systems on the DR matrix.

Determinative processes 13.4 All determinative processes are premised on the intervenors having substantive knowledge bases in the areas in which they are making decisions. In this context, substantive knowledge refers to matters of content as opposed to procedure on which decisions are made; for example, market access rules of international trade law, structural requirements for construction projects or legal grounds for family provisions claims. At a generalist level, substantive knowledge is a universal requirement for judges, arbitrators and adjudicators but the exact nature of this knowledge differs from context to context. 13.5 In relation to judicial competencies, there are basic requirements concerning legal quali cations and professional practical experience, but judges are oen ‘generalists’ in relation to their knowledge and expertise despite having to adjudicate on specialist matters such as information technology or medical science. In this regard, judges are reliant on substantive knowledge derived from expert reports and witnesses. However, some jurisdictions have responded to the demands of technological, social and legal complexity by establishing specialised benches in relevant areas, such as commercial, maritime and industrial law, with judges having particular expertise in these substantive areas.2

13.6 In the arbitration system, substantive legal knowledge is not a necessary condition of arbitral appointments but expertise in the content area of a dispute invariably is and many arbitrators have engineering, architectural or design expertise relevant to the building and construction projects on which they arbitrate. Moreover, the principle of consensuality allows parties to jointly select arbitrators with the particular expertise they regard as appropriate for their dispute, allowing greater potential levels [page 420] of focused industry or technical expertise than traditional court systems. Arbitrators’ quali cations are generally a matter of market recognition and client choice and not of regulatory prescription. Universities and professional bodies provide arbitration education and training, but there is as yet no national system of arbitrator quali cation and accreditation. 13.7 e Chartered Institute of Arbitrators (CIArb) has produced Practice Guidelines regarding the process of selecting prospective arbitrators by interview.3 In circumstances where parties, rather than an institution, appoint arbitrators on an ad hoc basis, the guidelines recommend conducting an interview of a prospective arbitrator on the grounds that it provides a more complete picture of the arbitrator’s expertise than a website or curriculum vitae. Given the signi cant investment that parties make in their arbitrator, it is wise that they take additional steps to ensure competence and expertise.4 13.8 Most arbitration rules in common practice, such as those of the Australian Centre for International Commercial Arbitration (ACICA), contain provisions relating to grounds and procedures for challenging the appointment of arbitrators. ese generally relate to situations in which there is doubt about an arbitrator’s impartiality or independence, but a challenge can also be based on the fact that the arbitrator ‘does not possess any requisite quali cation on which the parties have agreed’.5 13.9 Adjudicators in tribunals and commissions usually have substantive knowledge in both law and the relevant area of practice, or in one of these.

For example, commissioners on the Fair Work Commission are either former legal practitioners or non-legally quali ed experts in industrial relations, business or commerce.6 Likewise, the broad jurisdiction of the Administrative Appeals Tribunal (AAT) entails it having, besides judicial and legally quali ed members, those with expertise in areas such as accountancy, disability, medicine, migration, military affairs and social welfare.7 is [page 421] spread of quali cations and experience allows AAT panels to be constituted according to the substantive expertise required for the various disputes coming before the Tribunal. 13.10 e AAT approach is replicated at state levels with the appointment of sessional members at the Queensland Civil and Administrative Tribunal (QCAT), for example, based on a broad set of criteria loosely bounded by knowledge or experience relevant to the functions of QCAT.8 Appointments recognise community diversity, and require high levels of integrity, sound judgment and excellent communication skills. For appointment in the legal category, admission to practice in Australia is required and skills in mediation are also noted as valuable.9

Advisory processes 13.11 e advisory DR processes also rely on the substantive expertise of respective intervenors, with variations in relation to the context in which the systems operate and to some extent the expectations of the parties involved.10 Conciliators operating in statutory contexts are required to have substantive knowledge of the rules and policies of the relevant legislation, for example in anti-discrimination or workers’ compensation areas.11 Requirements for appointment as conciliators in statutory environments are oen only broadly articulated,12 and in some contexts there is only oblique reference to such requirements.13

Facilitative processes 13.12 Substantive expertise is not necessarily required in facilitative processes such as mediation. is is re ected in the approval and practice standards of the National Mediator Accreditation System (NMAS).14 Consistently with this approach, [page 422] bodies such as the NSW Small Business Commission15 and the Office of Franchising Mediation Adviser16 give priority to facilitation quali cations and experience over relevant substantive knowledge in constituting their mediator panels. 13.13 However, the creep towards advisory and evaluative models of mediation, highlighted in this book, suggests that those referring cases to mediators, in particular where referring agents are lawyers, have evident preferences for substantive expertise. Mediator selections, in turn, have drawn the system into evaluative zones, particularly where retired judges are engaged to conduct the process, implying a de facto level of expertise in matters of content. Insofar as conciliation can also be regarded as a facilitative process, there are requirements in this context for levels of substantive expertise, as noted above in relation to applicable legislative norms.

Blended processes 13.14 Blended processes are so varied in nature that it is difficult to identify consistency of substantive knowledge requirements for their practice. e actual requirements will generally match with those appropriate for the processes that are being blended, for example mediation and arbitration. ere is, as yet, no more sophisticated a system pertaining to competency standards of practice for the blended processes.

Procedural knowledge and skills

13.15 Procedural knowledge for DR methods involves practical skills and techniques, many of which are not speci c to dispute resolution alone, and are common to various disciplines and practices. Procedural knowledge relates to the ‘how’ factor, namely the organisational and procedural aspects of managing and implementing a DR process. is section considers the procedural knowledge, skills and techniques appropriate for DR practice across the matrix.

Determinative processes 13.16 Intervenors in formal determinative processes are obliged to comply with both technical procedural rules and normative rules of procedural fairness. ese are axiomatic in litigation procedures in the common law tradition and are premised on principles of formality, equality, objectivity and judicial independence. Judges ensure that all evidence and argument from each litigant is available to, and subject to challenge from, any other party, a requirement not evident in facilitative processes. e same applies to the various rules of evidence, which are binding in court processes but not in conciliation or mediation. e relevant rules are policed by the courts themselves through the doctrine of precedent although they are not immune to challenge on appeal [page 423] or to legislative modi cation. e system therefore requires procedural knowledge on the part of judges. e same pertains to members of tribunals and their determinations. In relation to procedural justice requirements, tribunal members are supervised on review by the same judges responsible for applying these principles in the courts, but there is also statutory regulation of the procedures and operations of these bodies. 13.17 In terms of skills, the determinative processes place a premium on fact- nding. is involves determinations about witness credibility, evaluating the probity of evidence and drawing of logical inferences, as a basis for applying relevant law to the facts as found. ere is a general

assumption that prior practical experience suffices, such as advocacy before courts and tribunals, but there is increasing training and professional development for judges and tribunal members on more complex issues relating to communication, gender and cross-cultural dynamics in the provision and evaluation of evidence.17 ere is, as yet, no full-scale requirement for decision-makers in determinative processes to be conversant with insights from cognitive psychology or neurobiology, both of which are increasingly recognised as relevant to human behaviour in court arenas. ere is arguably also scope for quali cations in interpersonal facilitation skills where determinative processes incorporate facilitative elements.18

Advisory processes 13.18 e advisory processes are less strictured by procedural formality than determinative processes, although their statutory frameworks might still impose procedural formalities. e advisory processes differ from determinative processes in that they involve more direct interpersonal exchanges between intervenors and disputants, and among respective disputants themselves, implying the need for greater levels of skills in these areas. As discussed below, it is not uncommon for conciliators to be accredited under the NMAS to establish their pro ciency and competence in this regard.

Facilitative processes 13.19 Facilitative processes value and emphasise the skills and techniques of assisting parties to communicate and negotiate effectively and to reach their own decisions on disputed matters. For mediators and facilitators, a range of communication, negotiation and managerial skills and techniques are apposite across different areas of practice. ese include managing meetings, acknowledging emotions, appropriate questioning, reframing negative language, summarising and paraphrasing, reality testing and [page 424]

encouraging settlement. ese are dealt with extensively in DR skills texts,19 and are also articulated in the NMAS, which is discussed below.

Recognition, training and accreditation 13.20 Astor and Chinkin noted in the 2002 edition of Dispute Resolution in Australia that one of the early pressing questions about quali cations and competency standards in DR contexts related to whether mediators are ‘born or made’.20 In the early phases of the development of contemporary mediation, those who contended that mediators are born rather than made asserted that mediators’ essential attributes have more to do with personality and natural aptitude than with training and formal quali cations. Others took the view that mediator skills are inherent in the quali cations and expertise of other professions, such as social work, psychology and law. For many years there was robust resistance to the idea that speci c quali cations are necessary for mediation practice. 13.21 e introduction of the NMAS was an innovative development that has propelled the Australian DR eld signi cantly forward in terms of practice standards and quality assurance — at least in terms of the operation of facilitative and advisory mediation. e DR community now accepts that mediator skills can be taught and learned and are more than mere matters of personality or natural talent. It is widely acknowledged that although there may be character traits that are desirable in mediators, they do not obviate the need for dedicated education and training. 13.22 Furthermore, the connection between education and serviceprovision quality is now rarely questioned — the corollary of which is that mediation education is being related to the safety of parties and fairness of outcomes, and may have impacts on the sustainability of agreements reached and on parties’ future relations and interactions. Tillet, for example, has argued that it is dangerous to reject the need for adequate training: Unskilled and incompetent attempts at con ict resolution can lead to disaster, just as attempts at surgery, engineering, or plumbing based on sincerity, good intentions and a brief introductory course are likely to cause more problems than they solve.21

For this reason, the NMAS, and the Mediator Standards Board (MSB)

that administers it, are signi cant developments in promoting competence and quality in Australian mediation practice. [page 425]

The National Mediator Accreditation System (NMAS) 13.23 In 2008, the NMAS came into operation aer a protracted consultation, draing and ‘approval’ process, legitimised through the biannual National Mediation Conferences. Aer revision in 2015, the NMAS now has ve components: the Approval Standards and Practice Standards, which comprise the original iteration, De nitions, the MSB, Recognised Mediator Accreditation Bodies (RMABs) and the National Register of Mediators.22 At the time of writing, the NMAS is undergoing a comprehensive review.23 13.24 e NMAS has four key features: 1. It is a self-regulated accreditation system developed and operated by the mediation community itself without direct state regulation. ere is currently no direct national or state-based regulation of mediators, although some individual statutes provide indirect regulation of some mediator categories.24 2. It is an opt-in system for mediators wishing to acquire the credential and does not constitute a licensing regime for those intending to practise as mediators. is principle generally means that high-status mediators with assured referral sources, such as retired judges or senior counsel, generally see few bene ts of opting into the system and instead operate in market circumstances. Where legislation or the policy of referring institutions requires only mediators accredited under the NMAS, it becomes a quasi-licensing system.25 3.

It is a devolved system operating predominantly through the RMABs which are responsible for accrediting mediators in terms of the Approval Standards, supervising the Practice Standards and

conducting disciplinary procedures in relation to alleged mediator non-compliance. 4.

It has a minimalist centralised infrastructure comprising the MSB, which is responsible for updating the standards, liaising with RMABs and maintaining the currency of the National Register of Mediators.

13.25 In terms of the Approval Standards, prospective mediators must satisfy educational requirements and successfully complete an assessment task. Once accredited, mediators have to meet continuing professional development (CPD) obligations and require re-accreditation biannually. Accreditation entitles mediators to be included on the National Register of Mediators26 and to use the post-nominal Accredited Mediator NMAS. Accreditation by one RMAB under the NMAS must be [page 426] recognised by others but there is nothing to prevent a court or professional body which is also an RMAB requiring additional attributes for accreditation by the institution in question — in the case of lawyers, for example, a minimum period of legal practice. NMAS mediators must be subject to a complaints and discipline system in relation to their Practice Standards compliance and can have accreditation suspended or cancelled for grounds stipulated in the Approval Standards.27 ese aspects of the NMAS are applied by individual RMABs.28 e MSB, for its part, is elected by its ‘members’, which comprise the RMABs and other member institutions.29 Besides its predominant functions of monitoring and modifying the Standards and maintaining the National Register as the official information source on accredited mediators, the MSB can also exercise discretionary authority to waive or suspend provisions of the NMAS on application from a RMAB.30

The Family Dispute Resolution (FDR) system 13.26

e NMAS is based on the principle of self-regulation but in the

FDR system Family Dispute Resolution Practitioners (FDRPs) are directly regulated by the state. is is an indication of the social importance and sensitive nature of family law matters and of the need to ensure only competent DR practitioners operate in the area. e Family Law Act 1975 (Cth) draws a distinction, for DR purposes, between post-separation parenting and property issues.31 Since 2006, in relation to parenting matters, court proceedings cannot be instituted, other than in exceptional circumstances, unless an FDRP has provided a ‘section 60I certi cate’.32 ere are ve different types of certi cate that can be issued to satisfy a Family Court that a person attended FDR or that explains a failure to attend or make a genuine effort. e rst type of certi cate indicates that a party did not attend FDR but that the reason for this was that the other party or parties failed or refused to attend.33 e second type of certi cate indicates that a party did not attend FDR, and the reason for this was that the FDRP, having regard to the matters prescribed by the regulations, decided that it would not be appropriate to conduct FDR in the matter.34 e third form of certi cate attests that a party attended and that all attendees made a genuine effort to resolve [page 427] the issue or issues.35 A fourth type of certi cate indicates that the parties attended but one or both parties did not make a genuine effort to resolve the issues.36 Finally, a certi cate can be issued to the effect that the person began attending FDR, but the FDRP considered, having regard to the matters prescribed by the regulations, that it would not be appropriate to continue the FDR process. With the merger of the Family Courts on 1 September 2021, pre-action DR requirements also apply to property and nancial matters.37 13.27 To be registered as an FDRP, an intended practitioner must meet the standards in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth). e Regulations require evidence of relevant quali cations and recognised competencies, for example a Vocational Graduate Diploma of Family Dispute Resolution or a certi ed postgraduate

award.38 Information on the Federal Attorney-General’s website under the heading ‘Becoming a family dispute resolution practitioner’ emphasises that registration as an FDRP requires the applicant to have ‘been assessed as competent in units that involve screening and assessing families for family violence and child abuse’.39 FDR providers such as Family Relationships Centres and Relationships Australia have additional accreditation requirements for mediators operating under their auspices. 13.28 Questions arise as to whether the NMAS and FDRP systems of competencies, accreditation and standards have improved the quality of mediation services in the respective areas. ere is little empirical evidence on this point; however, the take-up of NMAS accreditation, re ected in close to 4000 current accreditations, suggests that mediators take leads from market forces recognising the higher standards of accredited mediators, but rm claims and conclusions cannot be made. ere is also [page 428] little evidence of complaints about service quality under the NMAS,40 and even if there was reliable information there would be no comparative data for those mediating outside the NMAS system. Commentators, however, have expressed concern over levels of education and quali cation required under the NMAS,41 particularly in relation to much higher mediator requirements, for example, in some European jurisdictions.42

Conciliation processes 13.29 e NMAS does not nominally cover conciliators although mediators providing ‘blended’ services are included and have additional obligations commensurate with their advisory roles.43 Although there is some evidence that conciliators obtain mediator accreditation under the NMAS,44 in the absence of dedicated accreditation systems, such as for the FDR system or NMAS, it is le to service-providing agencies to determine their conciliators’ competencies and quali cations. Many such agencies provide CPD workshops and there are dedicated university courses on

statutory conciliation. However, given the legislative dictates under which they operate, the blend of facilitative and advisory skills they require, and the sometimes nuanced nature of conciliation work, it is arguable that there should be accreditation systems for conciliators, which would also contribute to professional recognition of this form of DR.

Some new DR competencies 13.30 As DR practice develops and becomes more sophisticated, the competencies that support superior practice become more complex. In DR contexts, professional and personal qualities become intertwined in pursuit of competent practice.

Emotion and dispute resolution 13.31 e role of emotion in the management and resolution of con ict and disputes has been noted occasionally in earlier chapters of this book.45 e literature on emotion [page 429] and DR is growing, particularly in relation to DR processes other than litigation.46 In order to manage emotions effectively in DR contexts, DR practitioners, lawyers and DR intervenors require sophisticated selfmanagement skills.47 ese skills are not necessarily innate and can be difficult to learn. Re ective practice — discussed in Chapter 12 in relation to DR praxis — is one way that self-management skills can be developed. Self-management skills include emotional intelligence and resilience.

Psychology, neurobiology and DR 13.32 Chapter 2 made reference to some of the social and cognitive biases which affect human decision-making and are potentially relevant to understanding how parties operate in DR processes. Mediators and lawyers are not required to have knowledge and skills in psychology or

neuroscience; however, there is growing professional interest in these areas. Optional CPD workshops and webinars, for example on mindfulness and neurobiology, are regularly provided for practitioners, mediators and judges. ere is also a developing body of literature in this eld, some written by lawyers, [page 430] thereby making the knowledge more accessible to a legal audience.48 New resources on neuroscience and the law also make the knowledge accessible to lawyers and dispute resolvers.49 It is unclear how the insights from psychology and neuroscience will impact on DR processes and lawyering DR practices; however, this is an exciting area of future ongoing development and interdisciplinary collaboration.

Summary 13.33 is section has focused on competence and quali cation requirements for DR practice. It highlights some limitations in formal requirements relating to DR knowledge, skills and attitudes. Some of the existing systems, as discussed, have yet to prove their efficacy in maintaining standards and promoting effectiveness in service delivery. Another important dimension of DR competency standards, training requirements and quali cations relates to the development of appropriate professional attitudes and dispositions. ese are made up, in part, by a knowledge of ethical responsibilities and the capacity to make ethically professional judgments. e ethics of DR are dealt with in the next part of this chapter.

Ethics and DR 13.34 DR competence and ethics go hand in hand because the ability to make ethical decisions is critical to competent DR practice.50 It is not possible to be ethical without

[page 431] competence, but some competent professionals are not ethical. For this reason, ethics should be part of any DR-related education, training and accreditation. 13.35 Dictionaries de ne ethics in two ways.51 First, ethics can be de ned as the plural concept of moral principles that govern how persons behave. Synonyms for this conception include: ‘moral code, morals, morality, rights and wrongs, principles, ideals, creeds, ethos, rules of conduct, standards (of behaviour), virtues, dictates of conscience’.52 Ethics as standards of behaviour guide decision-making about what is right and wrong, what ought to be done, and what is fair and appropriate. Ethical reasoning provides explanations on how and why certain approaches to difficult or challenging situations are justi able. Second, ethics can be de ned as the singular concept of the branch of knowledge that deals with moral principles. Since ancient times, philosophers have studied and interrogated moral beliefs and conduct. Ethical philosophy and epistemology aim to ensure a solid base for the moral functioning of society. Within this broad eld are three central schools of thought. e rst school concerns virtue ethics and draws on the work of Aristotle in maintaining that virtues involve a disposition to act in ways that bene t the virtuous person, as well as that person’s society.53 Virtues include justice, honesty, compassion, loyalty, charity and generosity. e second school posits that moral duties bind human action — here the [page 432] work of Kant has signi cantly in uenced thinking.54 As rational beings, humans must abide by the categorical imperative to respect other rational beings by behaving in ways that should guide all members of society. Utilitarianism is the third school, which asserts that decisions about human conduct should be guided by what would promote the greatest happiness or bene t for the greatest number of individuals.55

13.36 e ethics discussed in this chapter draw, at least to some extent, from the thinking of each of these schools. Importantly, being ethical, and doing what is right, requires more than following one’s feelings or instincts. Moreover, ethics should not be identi ed in limited ways with religion or the law, and what is ethical does not necessarily equate with what is mandated by society — even in democratic systems of government. at is, to decide what is ethical can require going beyond what society might accept or condone. Ethics and morality are closely associated56 in that ethics can be considered ‘the science of morals’.57 Yet professions usually have technical standards which promote professionalism but are not necessarily morally based.58 In professional ethical decision-making it can be important for personal beliefs to be integrated into, and yet also be distinguished from, the professional requirements of a particular situation.59 is is referred to as role differentiation.60 13.37 In the context of DR, the National Alternative Dispute Resolution Advisory Council (NADRAC) referred to ethics as ‘the attitudes and conduct of individual ADR practitioners’.61 Parker and Evans de ne ethics as being concerned, … with deciding what is the good or right thing to do — right or wrong action, with the moral evaluation of our own and others’ character and actions. In deciding what to do and how to be, ethics requires that we look for coherent reasons for our actions. [Ethics] asks us to examine the competing interests and principles at stake in each situation and have reasons as to why one should triumph over the other, or how they can be reconciled.62

[page 433] 13.38 A modern concern is to ensure that all professionals maintain ethical standards of practice.63 is is because ‘nearly every decision a worker makes, even a technical one, is actually about ethics’.64 Professional ethics in the practical sense can be taken as referring ‘to a collection of rules or standards of conduct expected of a particular professional group’.65 Professional ethics are oen articulated in codes or standards of practice, one of the purposes of which is to provide quality benchmarks against which

practitioners’ conduct can be measured. If practitioners depart ‘to a sufficiently marked degree’ from the prescribed standards they can be held to account by a regulating body or authority through reference to the code. In extreme cases of code deviation, a practitioner may be excluded from the profession.66 13.39 However, even ‘the best code of professional conduct can provide only partial direction to practitioners grappling with an ethical dilemma’.67 Levy has said that ethical codes are ‘preambular’ because they are not able to re ect the complexity of ethical issues arising in practice.68 Codes are ‘helpful but do not (and cannot) provide de nitive answers’.69 For this reason, satisfying professional practice standards requires practitioners to be able not only to follow rules but also to have an ethical disposition or intuition, a moral compass, that assists them to resolve dilemmas.70 13.40 In the legal profession, ethics provide the foundation for professional practice in Australia’s liberal democratic society governed by the rule of law.71 Societal con dence in legal practice is required for the effective administration of justice through the legal system.72 As lawyers increasingly use and practise DR processes other than litigation, and as those processes are increasingly mandated by the civil justice system, the ethical foundations of DR practice become increasingly integral to the place and standing of lawyering in Australia.73 [page 434] 13.41 e rules for lawyers’ conduct in DR contexts are articulated in very general terms and, as seen below, provide relatively sparse guidance to assist decision-making in ethically challenging contexts. is is why the discussion below on the development of a ‘moral compass’ (which can be part of a positive professional identity as discussed in Chapter 14) is also important. e next section considers ethical rules in two separate contexts — rst, the context of lawyers as client representatives in DR processes, and second, in the context of non-partisan intervenors such as facilitators or adjudicators in DR processes.

Ethical rules for lawyers representing clients in DR 13.42 Lawyers’ ethical obligations in professional practice, and therefore as representatives in DR processes, derive from three key sources:74 primary sources such as the Australian Solicitors’ Conduct Rules 2015 (ASCR),75 Legal Profession Acts in each jurisdiction, and the Legal Profession Uniform Conduct (Barristers) Rules 2015.76 Other sources of ethical conduct include common law principles emanating from professional disciplinary hearings and also personal values and principles.77 Managing the interplay of the ethical sources is complex. Moreover, ethical dilemmas do not arise in easy circumstances, usually occurring in the heat of the moment and in complex scenarios with competing issues and considerations. Even experienced lawyers acknowledge that ethical dilemmas challenge them routinely: Ethical considerations are an inherent part of practising law due to the multiple obligations solicitors owe their clients, the Courts, the profession and the public. With so many interests to serve, the right path to take is not always clear.78

e next sections consider the key primary sources of ethical rules for the conduct of Australian solicitors and barristers, which are relevant also to DR practice in legal contexts. [page 435]

Rules of ethical conduct for Australian solicitors 13.43 e ASCR commenced on 1 June 2012, introducing a national system for professional regulation across Australia’s states and territories.79 e rules speci cally apply to the work of solicitors80 and cover lawyers’ roles in DR processes. is is because ‘court’ is de ned in the ASCR glossary to mean ‘an arbitration or mediation or any other form of dispute resolution’.81 In 2015, the Legal Profession Uniform Conduct legislation came into effect in New South Wales and Victoria, as part of the Legal Profession Uniform Law. For the sake of brevity, the focus here is on the content of the ASCR. 13.44

e nature and purpose of the ASCR, which is organised under

eight headings,82 is articulated in r 2.1 which states, ‘e purpose of these Rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules’.83 Rule 2.2 emphasises that both the rules and the common law apply to determinations of whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct.84 e fundamental duties section makes clear that a solicitor’s paramount duty is to the court and the administration of justice, which prevails over any other duty. is entails that the notion of ‘zealous adversarial advocacy’ which prioritises the duty to the client (as discussed in Chapter 12) is not consistent with solicitors’ current professional ethical obligations. Fundamental duties other than the duty to the court and the law are articulated in r 4, as duties to: act in the best interests of a client in any matter in which the solicitor represents the client; be honest and courteous in all dealings in the course of legal practice; deliver legal services competently, diligently and as promptly as reasonably possible; avoid any compromise to their integrity and professional independence; and comply with these Rules and the law.85 [page 436] 13.45 Rules 4–6 emphasise that professional and ethical conduct as solicitors is grounded in integrity, honesty, loyalty and independent judgment. Solicitors must be, and must remain, t and proper persons to practise law. Rule 5 provides a categorical imperative to uphold the profession’s integrity and honour: ‘A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a t and proper person to practise law, or which is likely to a material degree to: be prejudicial to, or diminish the public con dence in, the administration of justice; or bring the profession into disrepute’.86 13.46 One of the most important rules for the DR role of lawyers is found in r 7. Rule 7.1 requires that solicitors ‘provide clear and timely advice to

assist a client to understand relevant legal issues and to make informed choices’.87 Rule 7.2 requires that clients be informed of the alternatives to litigation that are reasonably available to them.88 Rules 17–29 concern advocacy and litigation. To ensure consistency of professional standards across the profession, these sections mirror the rules that apply to barristers’ conduct in advocacy and litigation.89 Rules 30–33 are about relations with other solicitors and emphasise the importance of professional integrity and honesty. e nal substantive section of the rules relates to the management of a legal practice (rr 36–43). 13.47 As noted above, r 2.2 emphasises that the common law is also part of the regulation of ethical practice for lawyers. Common law duties include those of con dentiality and privilege, as well as duciary obligations.90 ese duties arise out of the nature of the lawyer–client relationship, which is one of trust, and the relative power imbalance between solicitors and clients. Lawyers, as duciaries of clients’ interests, must use their power, knowledge and position effectively and justly for the client’s bene t. Nevertheless, it is important to be clear that if client interests are in con ict with lawyers’ duties to the court and the administration of justice, the latter must prevail in guiding how lawyers decide to act in response to given dilemmas.

Rules of ethical conduct for Australian barristers 13.48 e Australian Bar Association is the national body bringing together the independent Bars of the states and territories. In 2010, the Association developed model conduct rules for barristers which have been adopted by state and territory Bar Associations around Australia. In 2015, the Legal Profession Uniform Conduct (Barristers) Rules 2015 came into effect in New South Wales and Victoria, as part of the Legal Profession Uniform Law. [page 437] 13.49

ere is similarity and consistency across the ethical conduct rules

for solicitors and barristers. For example, barristers also owe paramount duties to the administration of justice, they must maintain high standards of professional conduct, and they must act honestly, fairly, skilfully and with competence and diligence.91 Some rules relate speci cally to the independent nature of barristers’ work, their court advocacy roles and the special relationships with clients and the profession that these create. It is important to note that as with the ASCR, ‘court’ in this context is also de ned to mean ‘any body described as such and all other judicial tribunals, and all statutory tribunals and all investigations and inquiries … arbitrations and mediations’.92 13.50 Generally, a barrister ‘must not engage in conduct which is: (a) dishonest or otherwise discreditable to a barrister; (b) prejudicial to the administration of justice; or (c) likely to diminish public con dence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute’.93 13.51 Balancing the duties barristers owe to the court and the administration of justice, on one hand, and to clients, on the other, can be particularly complex and challenging. Ethical decisions need to be made on a daily basis that, for an in nite number of reasons, may require judgment between the two duties. Guidance as to the correct decision may not readily arise from the Rules, simply because the Rules are not able to address every possible situation that will confront a barrister in their daily practice.

A case on point: Legal Services Commissioner v Mullins 13.52 e various rules of conduct apply to the professional behaviours of solicitors and barristers across the matrix.94 However, as noted above, their application and implementation in the daily rigour of legal work is complex and not straightforward. A case on point is the 2006 matter of Legal Services Commissioner v Mullins.95 e current Barristers’ Conduct Rules are formulated differently to those that applied then, but the case remains illustrative as to the competing ethical requirements relating to disclosure and communication in DR systems. 13.53

In Mullins, a barrister was charged with professional misconduct as

a result of behaviour when representing a client in negotiation and mediation for the compromise of a compensation claim for personal injuries. e Legal Services Commissioner (LSC) found that he had ‘knowingly misled an insurer and its lawyers about his client’s life [page 438] expectancy’.96 Byrne J stated that the barrister ‘intentionally deceived’ lawyers for the other side by continuing to rely on information in reports written before counsel had learned about his client’s cancer and had appreciated that the new information was signi cant in terms of the validity of assumptions about life expectancy. Byrne J found that he did so intending that representatives for the other side ‘would be in uenced by the discredited assumption to compromise the claim: which happened’.97 Byrne J held that the fraudulent deception ‘involved such a substantial departure from the standard of conduct to be expected of legal practitioners of good repute and competency as to constitute professional misconduct’.98 13.54 Re ecting on what might constitute an appropriate penalty, Byrne J acknowledged several mitigating factors, including ‘many references from senior practitioners attesting to the respondent’s competence and good character’, as well as Mullins’ prudence in conducting research and seeking senior counsel’s advice on the issue. e judge noted that ‘there is good reason for optimism that the respondent will not set about deceiving a colleague again’ and that the ‘misconduct was not designed to derive a personal advantage’ but was driven by concerns ‘to advance his client’s interests’.99 e judge commented, however, that in Mullins’ efforts to seek advice he had ‘posed the wrong questions’,100 that the misconduct constituted a ‘grave misjudgment’ and the barrister’s resistance to the LSC’s application re ected a ‘stance’ of which he did not approve.101 e result was that Mullins was publicly reprimanded, received a ne of $20,000 and had to pay the applicant’s costs.102 13.55 Wolski, one of Australia’s leading experts on legal ethics in DR processes, is concerned that the Mullins case is used as authority for the view

that ‘legal representatives owe different standards of honesty and candour in mediation from that which they owe in litigation’ and challenges this view.103 Wolski submits that lawyers: … must not mislead or knowingly or recklessly deceive mediators (at least with respect to matters of law and fact), and they are obliged to correct a misleading statement as soon as they become aware that it is misleading. ey may even be prohibited from misleading mediators about matters such as a client’s interests, BATNAs, bottom line and negotiation strategies. As to candour, legal representatives are obliged to inform mediators of relevant binding authorities and legislative provisions of which they are aware. But there is no obligation to disclose to a mediator facts which are adverse to a client’s interests. ere are many reasons why it might be better for a client to be fully candid with a mediator (for example, it might lead to the formation of a mutually satisfactory outcome, one which is not susceptible to later attack); and it might be appropriate for legal representatives to counsel a

[page 439] client to reveal the information. What a legal representative should not do, except perhaps in the rarest of circumstances, is reveal the information without the client’s consent.104

13.56 Wolski concludes: ‘Legal representatives owe their opponents in mediation the same standards of honesty and candour as they owe to them in court (or in any other context). ey cannot mislead their opponent about material facts or law’. 13.57 e Mullins case demonstrates that ethical rules are not always helpful or easy to apply in DR environments (particularly other than litigation) and that ethical judgment is complex and impacted by diverse in uences and potential actual or perceived con icts among the various duties owed. In acknowledgment of this complexity, a number of guidelines have been developed for lawyers in various DR processes such as mediation and negotiation. e Law Council of Australia (LCA) updated their Guidelines for Lawyers in Mediation in 2011 (originally published in 2007) and in 2008 the Law Society of New South Wales published Professional Standards for Legal Representatives in a Mediation. Further, the Family Law Council and Family Law Section of the LCA have produced the Best Practice

Guidelines for Lawyers Doing Family Law Work, now in a second edition,105 and internationally the American Bar Association’s Section of Litigation developed Ethical Guidelines for Settlement Negotiations in 2002.106

Summary 13.58 is section has considered key sources of ethical rules for solicitors’ and barristers’ conduct, and these apply when lawyers act as representatives in DR processes. e conduct rules are relatively comprehensive but can ultimately only operate as guides to what ought to be done in response to the daily ethical challenges facing lawyers. Inevitably, application of the rules is troublesome in practice contexts and a lawyer’s innate ethical disposition — their moral compass, discussed below — is critical to bringing the rules to life. e bottom line of the rules, however, is that they require honesty in how lawyers act in DR professional roles, and they prohibit conduct that will bring the profession into disrepute. e next section considers the ethical rules that apply when lawyers act as independent DR intervenors.

Ethical rules for lawyers as intervenors in DR processes 13.59 In this section the rule-based systems of ethics that guide the roles of facilitative, advisory and determinative intervenors are considered, from judicial ethics through to [page 440] mediation. e professional rules discussed above also provide a regulatory backdrop to ethical decision-making in the context of the legal practice of DR.

Ethics for judges 13.60 e general rules of professional and ethical conduct binding lawyers also bind judges.107 However, the nature of the judicial role, the

important place of judging in society and the fact that judges are public faces of the legal system and accountable for upholding the rule of law, entail that there are also special rules and considerations for them. Appleby and Le Mire assert that ‘problematic judicial conduct is rare’ in Australia.108 Nevertheless, con dence in the judicial arm of government and its constitutional independence is a prerequisite for acceptance of litigation as a state-sanctioned determinative process and public order requires that judgments of judicial officers are recognised. Indeed, ‘over the last 20 years or so, the conduct of judges has come increasingly under public scrutiny, with a growing interest in standards of judicial conduct’.109 erefore, public con dence requires clarity around ethical expectations of judges and assurances the expectations are being met. 13.61 e ethical issues that arise for members of the judiciary in their judicial role centre on notions of impartiality, independence and integrity. A judge’s commitment to act impartially is part of the judicial oath to ‘do right to all manner of people according to law without fear or favour, affection or ill-will’.110 Commenting on this aspect of the oath at his swearing-in as Chief Justice of Australia, His Honour Justice Brennan explained: ‘It precludes partisanship for a cause, however worthy to the eyes of a protagonist that cause may be. It forbids any judge to regard himself or herself as a representative of a section of society. It forbids partiality and, most importantly, it commands independence from any in uence that might improperly tilt the scales of justice’.111 13.62 Judges are assisted in upholding their oath of independence and impartiality because their job security is effectively assured.112 Section 72 of the Constitution protects both the tenure and remuneration of judges and it is only behaviour of the most serious nature that will result in a judge’s removal from office, and ‘most actionable complaints call only for some form of discipline’.113 Nevertheless, the pressure on judges to be seen [page 441] to be acting ethically is signi cant and judges need to understand what is

expected of them in their role. 13.63 ere are several guiding sources on the nature of judicial ethics. e leading Australian work is Judicial Ethics in Australia by Justice James omas.114 Another important resource is the Australian Institute of Judicial Administration’s (AIJA) Guide to Judicial Conduct which was developed for the Council of Chief Justices of Australia.115 e guide is intended ‘to give practical guidance to members of the Australian judiciary at all levels’, ‘to be positive and constructive’ (in terms of indicating how ‘particular situations might best be handled’), and to promote recognition ‘that a judge is primarily accountable to the law, which he or she must administer, in accordance with the terms of the judicial oath’.116 e AIJA’s guide cites the following principles as applying to judicial conduct: upholding public con dence in the administration of justice; enhancing public respect for the institution of the judiciary; and protecting the reputation of individual judicial officers and of the judiciary.117 e guide articulates ‘three basic principles against which appropriate judicial conduct should be tested to ensure compliance with the objectives’: impartiality, judicial independence, and integrity and personal behaviour.118 A third resource is the Judicial College of Victoria’s Framework of Judicial Abilities and Qualities for Victorian Judicial Officers which de nes the standards and expectations of Victorian judges, identifying ‘the knowledge, skills, behaviours and attitudes that the Victorian judiciary are expected to demonstrate in performing their judicial role’.119 e framework is important because it provides an aid for judicial self-development and lifelong learning.120 13.64 More than a decade ago, in conversation with Justice omas, the author solicited his Honour’s view on how lawyers on appointment to the bench manage the shi from partisan advocate to impartial decision-maker. He replied, ‘e job maketh the man’. In other words, the capacity for impartiality, independence and integrity is recognised in those chosen for judicial office — the appointment is itself a catalyst for these attributes to come into play. However, the importance of judicial training is now well recognised, among other things through the 2002 establishment of the Judicial College of Victoria, which is a national leader in judicial education.

13.65 Pressure to perform ethically and the scrutiny involved in being seen to be above any in uence has resulted in some judges ‘adopting what has been described as a “monastic” lifestyle’, in the belief that public respect for the judiciary requires that [page 442] they remove themselves from non-judicial activities and limit their social contacts.121 Chief Justice Brennan acknowledged the lonely nature of judicial office emanating from the demands of independence and impartiality: When the case is heard, the judge must decide it in the lonely room of his or her own conscience but in accordance with the law. at is the way in which right is done without fear or favour, affection or ill-will. Judges sometimes appear to be remote, belonging to what have been described as ‘the chill and distant heights’. In the doing of justice that must be so. Justice is not done in public rallies. Nor can it be done by opinion polls or in the comment or correspondence columns of the journals.122

13.66 Public con dence in the judiciary involves knowing not only that judges are impeccably ethical but also competent, and that their ethical decisions are informed by a connection to the society they serve. Only through this connection can judges understand the complex issues that come before them and manage their own conduct appropriately.123

Ethics for arbitrators 13.67 Arbitrators in their determinative roles also occupy positions of responsibility to the public, to the administration of justice and to the parties.124 For this reason, and for the continued commercial con dence in arbitration as a system offering fair and impartial dispute determinations, it is critical that arbitrators act ethically. is is particularly the case in a world of global commerce and trade which has increased the complexity of ethical issues arising among diverse parties and large numbers of counsel, experts and arbitrators.125

[page 443] 13.68 Arbitrators and parties oen rely on an arbitration agreement to regulate the process and there is scant other formal regulation of ethical conduct in this DR system. e participation of lawyers representing and advocating for parties is of course covered by the rules of conduct discussed above. e absence of formal systems of ethical regulation for arbitration in international contexts has resulted in works such as Rogers’ Ethics in International Arbitration proposing a model for ethical self-regulation of arbitrators’ conduct at this level.126

Ethics for conciliators 13.69 ere is no NMAS equivalent regulating the conduct of conciliators, but speci c statutory frameworks can impose standards and other obligations on them. Lawyer conciliators are still subject to the relevant professional conduct rules discussed above.127

Ethics for mediators 13.70 In Australia, as discussed above, the key generalist system of regulation of mediator ethics is the voluntary system of the NMAS. is is because mediation is yet to be categorised as a profession in its own right.128 Boulle has commented that, ‘for some time into the future mediation will constitute both a non-professionalised service with community roots and a supplementary service for professions in other disciplines’.129 As mediation practice becomes increasingly part of the way disputes are resolved in many contexts and mediation practice comes to be recognised as a profession, mediation ethics, standards enforcement and quality assurance mechanisms regulating conduct of the process will become more important to the place of mediation in the business of DR, lawyering and in society more broadly. 13.71 e establishment of the MSB is an indicator of the movement towards a professional regulatory infrastructure for mediators.130 As noted earlier, the MSB was 10 years in the making, beginning with a 2000 NADRAC Discussion Paper entitled e Development of Standards for ADR,

followed in 2001 and 2004 respectively by the NADRAC papers, A Framework for ADR Standards and Who Says You’re a Mediator? [page 444] Towards a National System for Accrediting Mediators.131 A consultation process with the mediation community was initiated at the 7th National Mediation Conference (NMC) in Darwin in 2004 and further consultation and the development of the NMAS was led by a representative committee of professional and industry stakeholders, chaired by Professor Laurence Boulle, and involving forums in each Australian capital city. In 2007, Tania Sourdin was engaged to draw together the mediation standards and other requirements for implementing the NMAS, which was introduced in 2008. e MSB was rst constituted at the 2010 NMC in Adelaide.132 13.72 As noted before, the NMAS constitutes the only regulatory framework for Australian mediators. e NMAS Practice Standards emphasise the ethics of mediation practice through sections on procedural fairness and impartiality (clause 7), ethical conduct and professional relations (clause 8) and con dentiality (clause 9). e ethical principles applying to all accredited mediators under the Standards are stated in the NMAS as being:133 (i) competence, integrity and accountability; (ii) professional conduct; (iii) self-determination; (iv) informed consent; (v) safety, procedural fairness and equity in mediation, including withdrawing from or terminating the mediation process; (vi) impartiality, including the avoidance of con icts of interest; (vii) con dentiality, privacy and reporting obligations; and (viii) honesty in marketing and advertising of mediation and promotion of the mediator’s practice.

13.73 ese ethical principles include issues that fall into two ethical categories identi ed by Walker.134 e rst category includes issues that are ‘relatively objective and clearly de nable dimensions of the mediation process’135 such as ‘con dentiality, cost (fee disclosure), education about the process, informed consent, con ict of interest and independent advice and counsel’.136 is category is relatively easy to manage through standards, conduct rules and guidelines. e second category includes ‘more subjective and less tangible matters’ [page 445] of practice involving mediator behaviour and independence, fairness and impartiality.137 It is this more complex category of ethical concern that requires use of mediators’ ethical discretion and judgment to uphold DR values and achieve the process goals of DR. 13.74 e NMAS list of ethical principles includes numerous important issues that could be discussed and analysed at length but the scope of this work restricts the focus to discussion of two signi cant issues — mediation con dentiality and mediator impartiality.

Con dentiality in mediation 13.75 Con dentiality has long been an essential ethical cornerstone of mediation, Charlton labelling it a ‘holy untouchable tenet’.138 Con dentiality legitimises the mediation process by protecting the negotiation environment it offers and allowing parties to communicate with candour.139 [page 446] 13.76 In mediation theory, con dentiality serves two purposes. First, it reassures parties that information introduced or exchanged in the process will not be used against them later, as in subsequent litigation, and will only be divulged outside the process with all parties’ consent.140 Second, parties

are reassured that within the mediation itself their communications are secure when they meet separately with the mediator and divulge information they do not wish to have conveyed to the other party.141 ese reassurances are intended to support party trust in and engagement with the mediation process, while for mediators con dentiality is important to their facilitation of outcomes mutually acceptable to the parties.142 13.77 Section 9 of the NMAS Practice Standards deals with con dentiality as follows: 9.1 A mediator must respect the agreed con dentiality arrangements relating to participants and to information provided during the mediation, except: (a) with the consent of the participant to whom the con dentiality is owed; or (b) where non-identifying information is required for legitimate research, supervisory or educational purposes; or (c) when required to do otherwise by law; or (d) where permitted to do otherwise by ethical guidelines or obligations; or (e) where reasonably considered necessary to do otherwise to prevent an actual or potential threat to human life or safety. 9.2 Before holding separate sessions with different participants, a mediator must inform participants of the con dentiality which applies to these sessions. 9.3 With a participant’s consent, a mediator may discuss the mediation, or any proposed agreement, with that participant’s advisors or with third parties. 9.4 A mediator is not required to retain documents relating to a mediation, although they may do so should they wish, particularly where duty-of-care or duty-to-warn issues are identi ed. 9.5 A mediator must take care to preserve con dentiality in the storage and disposal of written and electronic notes and records of the mediation and must take reasonable steps to ensure that administrative staff preserve such con dentiality.

13.78 Many mediators are somewhat circumspect about the con dentiality factor in mediation, commonly including in their introduction comments to the effect that the process is con dential ‘as far as the law allows’. Mediators also have practical strategies to support the system’s con dentiality, for example by destroying their notes to remove any possibility of them being subject to subpoena in later litigation. Insofar as mediators have control over protecting the con dentiality of parties’ communications with them in mediation, the requirement is absolute — for

example, the NMAS accreditation assessment stipulates that breach of this form of con dentiality entails failure. [page 447] 13.79 In reality, mediators may comply fully with the NMAS and still nd, as a result of relevant law, that mediation con dentiality is not watertight. ere are three legal sources of con dentiality protection: statute, contract and the common law doctrine of privilege. e best assurance of con dentiality comes from statutory protection. For example, the Evidence Act 1995 (Cth) s 131 provides that evidence is not to be adduced of communications made or documents prepared in attempts to negotiate settlement of a dispute.143 However, the Act also provides 11 exceptions to this privilege. In one case, the exception relating to communications or documents relevant to determining liability for costs was upheld, despite comprehensive con dentiality clauses in the parties’ Agreement to Mediate.144 13.80 Con dentiality is also dealt with via contract clauses, invariably included in Agreements to Mediate.145 e Queensland Law Society’s model Agreement to Mediate provides:146 3.

Con dentiality and Privilege

(a) A person who acquires information, whether oral or written, in the course of the Mediation will not disclose or use that information except in accordance with this agreement unless and until disclosure is required by law or the information becomes public knowledge otherwise than by a breach of this agreement. (b) Persons who have signed this agreement may discuss information that comes to their knowledge in the course of the Mediation for the purpose of the Mediation and with professional advisers and insurers and within their respective organisations (including parent organisations) on the condition that any information is not further disclosed unless and until it becomes public knowledge otherwise than by a breach of this agreement. (c) Every admission, concession, proposal and other statement or document made, prepared or disclosed in connection with the Mediation other than a binding settlement will be entirely ‘without prejudice’ and will retain the bene t of any privilege, including legal professional privilege, that would otherwise have applied

and will not be disclosed or relied upon or be the subject of a subpoena to give evidence or to produce documents in any arbitral or judicial proceedings.

13.81 As a result of case law, however, there is reason for caution in relying on contractual protections as they cannot guarantee con dentiality. In 789Ten v Westpac Banking Corp,147 by way of illustration, the court interpreted the con dentiality provision restrictively. Public policy considerations were invoked to justify this stance [page 448] — it is difficult to defend upholding an agreement that purports to withhold evidence from public courts.148 13.82 A third protection of mediation con dentiality derives from common law privilege.149 is doctrine enables ‘parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put into evidence subsequently might impose’.150 is doctrine has served to protect the con dentiality of genuine negotiations between parties aimed at settling their dispute.151 e leading High Court case of Field v Commissioner for Railways for New South Wales held that pre-trial negotiations were covered by this privilege,152 and the principle has also been held to apply to mediation.153 e principal tension in the application of this privilege to mediation exists between ‘the importance of con dentiality to the success of the ADR process, on one hand, and the public interest in ensuring that the court has before it the best possible evidence to enable it to ascertain the truth, on the other’.154 A further consideration is that upholding absolute privilege could result in long and costly argument in subsequent litigation about the admissibility of evidence.155 13.83 It is apparent, then, that the ethic of maintaining con dentiality is important but far from straightforward. As Astor and Chinkin put it: ‘all that seems certain is that con dentiality is complex and cannot be absolute’.156

[page 449] Mediator impartiality 13.84 e NMAS identi es ‘impartiality including the avoidance of con icts of interest’ as an important ethic of mediation.157 e concept of mediator impartiality has a long history and is connected with mediator ‘neutrality’, which was discussed in Chapter 5, noting that although neutrality was, for some time, regarded as a key mediation ethic (particularly for facilitative mediation) the NMAS has now replaced it with the notion of impartiality, and for some it should be removed from the current ethical paradigm of mediation altogether.158 13.85 Impartiality has held a special place as a core ethical requirement of mediation because mediators must act fairly for DR values to be upheld, particularly those of justice and party autonomy. e Shorter Oxford Dictionary de nes impartial as ‘not favouring one more than another’, ‘unprejudiced’, ‘unbiased’, ‘fair, just, equitable’.159 Twenty years ago Boulle suggested in the rst edition of his work that impartiality refers to ‘an evenhandedness, objectivity and fairness towards parties during the mediation process’.160 NADRAC’s A Framework for ADR Standards discussed mediators’ responsibilities in relation to impartiality as grounded in retaining parties’ con dence and ensuring each side perceives the practitioner to be treating them fairly in the process.161 ese responsibilities can be demonstrated, inter alia, by conducting the process even-handedly and avoiding any appearance of partiality or bias.162 13.86 e NMAS Practice Standards (Part 7) regulate procedural fairness and impartiality. ey stipulate that mediators must:163 conduct the mediation in a fair, equitable and impartial way, without favouritism or bias in act or omission; identify and disclose any potential grounds of bias or con ict of interest before the mediation, or that emerge at any time during the process; not mediate in cases involving a con ict of interest without the informed consent of the participants, and then only if, in the mediator’s view, the con ict would not impair his or her impartial conduct of the process; support participants to reach agreements freely, voluntarily, without undue in uence and on the basis of informed consent;

provide participants appropriate opportunities to speak to and be heard by one another … and to articulate their respective interests, issues and underlying needs;

[page 450] ensure as far as practicable that participants have had sufficient time and opportunity to access sources of advice or information necessary for their decision-making; encourage and support negotiations that focus on the participants’ respective interests, issues and underlying needs and encourage participants to assess any proposed agreements accordingly and with reference to their long-term viability.

13.87 With its de nitional emphasis on maximising parties’ decisionmaking and self-determination, and through deployment of impartiality instead of neutrality, the NMAS has moved Australian mediation practice beyond what was considered by many to be ‘the neutrality dilemma’.164 To support party self-determination, the NMAS requires mediators to ‘conduct the dispute resolution process in an impartial manner and adhere to ethical standards of practice’.165 is approach resolves, to some extent, what has been referred to as the ‘neutrality myth’.166 e ethic of impartiality may also be considered as offering a way of ethically accommodating different levels of mediator intervention within the range of mediation models, a development advocated by this book for the future of Australian DR.167 Nevertheless, Field and Crowe have suggested a somewhat radical future paradigm for mediation ethics, one that is focused on the contextually ethical support of self-determination rather than on mediator impartiality.168 It is yet to be seen, however, whether this proposed paradigm will gain traction with the mediation community.169

Consequences of breaching ethical rules in DR contexts 13.88 For lawyers as party representatives there are potentially serious consequences for breaching ethical rules in DR contexts. Legal Services Commissions in each state and territory regulate professional legal conduct and have a range of penalties open to them.170 e most serious consequence of acting unethically is that a lawyer can be disbarred. As Daubney has said: ‘If we exercise the choice not to practice in accordance

[page 451] with professional ethics, we render ourselves liable to exclusion from the profession’.171 Professional exclusion is a dishonour because it involves a judgment that the individual is ‘no longer a t and proper person’ to be a member of the profession.172 ere are also less serious consequences for ndings of unethical conduct and the Mullins case provides an example of a nancial sanction and reputational impact. 13.89 As noted above, lawyers’ conduct rules remain relevant in DR contexts where they act as mediators. e NMAS provides an additional regulatory mechanism for handling complaints against mediators accredited under the system — but lawyers who are not accredited are not subject to this regime. e NMAS requires mediators to be accredited through an RMAB and RMABs must have a complaints and disciplinary procedure that can address complaints against their members.173 13.90 e discussion above makes clear that the ethical rules of conduct alone are an insufficient guide to making ethical decisions in DR contexts. For lawyers to be ethically competent practitioners of DR they must also have an innate sense of what is right and wrong: a moral compass. e next section discusses brie y what this might look like and how it might be applied.

A moral compass in DR processes 13.91 Professional rules of conduct for lawyers in DR systems are only part of the ethical panorama of DR practice. e picture is incomplete without discussion of the affective and personal ethical component — the moral compass.174 DR practice, in all contexts including legal contexts, raises challenges for professional judgment in ways that cannot be addressed through the invocation of relatively simple, abstract and aspirational rules, or codes of conduct. For this reason, ethical insight, intuition and an ethical disposition are requirements for making sound ethical decisions in DR practice. 13.92

e compass analogy is a useful way to think of an ‘individual’s

inner sense of right and wrong’,175 their natural disposition for deciding what ought to be done when at an ethical crossroads. A ‘moral compass’ is de ned as ‘a natural feeling that [page 452] makes people know how they should behave’.176 Moore and Gino use the metaphor to describe ‘the common experience of an inner voice that motivates us toward ethically sound action’.177 ey explain that the compass metaphor for internal behavioural standards implies that our moral centre is stable (a compass always points North) and its orientation clear (the needle’s direction is plain to see).178 13.93 e US Institute for Advancement of the American Legal System published a survey in 2016 under the auspices of the Educating Tomorrow’s Lawyers consortium of law schools and legal professionals.179 e survey of 24,000 lawyers covered the qualities, skills and competencies new lawyers require to succeed in today’s profession. More than 80 per cent of respondents agreed that a ‘strong moral compass’ is necessary for success as a contemporary lawyer.180

Using a moral compass in DR 13.94 Using a moral compass for ethical DR lawyering differs from rulesbased approaches.181 e compass is a contextually sensitive system, so it is possible to draw on contextual ethical methods to understand how this might look.182 Contextual ethics require agents to engage with, assess and take account of the context of situations in which decisions must be made to come to ethically justi able positions. Absolute or categorical approaches to what is good or what is the right thing to do are problematic. Contextual approaches are erudite because they do not provide simple formulae for resolving ethical dilemmas; they do not point to only one right answer to an ethical problem.183 e ethical agent must instead use their moral compass to determine what is ethically appropriate for the context of a particular challenge. e compass will have

[page 453] been effective if the person making the decision can offer sound moral reasons for it and defend their decisions as tting ethical responses.184 13.95 Using a moral compass in practice could be argued to be a more sophisticated process than simply following rules. is is because it requires competent discretionary judgments that take account of individual circumstances and respond to them re ectively and relationally.185 13.96 Simon has explored the potential of contextual ethics for the legal profession, arguing that professionalism is better satis ed by lawyers taking ‘those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice’.186 He argues in favour of ethical approaches for legal practice based on contextual judgment-making;187 and that ‘the dominance of an ethical regime that repudiates contextual judgment is both an anomaly and an obstacle to the deepest ambitions that animate legal professionalism’.188 Simon contends that a contextual approach to legal ethics provides modern lawyers with a stronger sense of professional self-conception and ‘meaningful work’ (which relate to the DR values and goals discussed in Chapter 5 and which are connected to a positive professional identity discussed in Chapter 14).189 13.97 Mediation illustrates how a moral compass could work practically.190 e key value of this process is that of party autonomy, achieved through the process goals of participation and self-determination. e NMAS in fact de nes the mediation process in terms of this value.191 A moral compass will direct mediators to take action necessary to support parties in achieving genuine and relational self-determination.192 is will involve having a process for contextual analysis, having strategies to assist parties achieve informed consent (see the framework discussed in Chapter 12) and ensuring that mediators’ actions do not impose decisions on the parties. Clause 10.2(c) of the NMAS Practice Standards further provides that ‘where a mediator uses a blended process such as advisory or evaluative mediation or conciliation, which involves the provision of advice, the mediator must ensure the advice is provided in a manner that maintains and respects the principle of self-determination’.193 However, achieving this in

practice is far from straightforward, suggesting the need for both a better developed [page 454] ethical framework that supports how contextual decisions might be made, as well as training that focuses not only on the relevant rules of ethical practice but also on how a moral compass can be used effectively in DR contexts.194

Future ethical DR paradigm 13.98 e discussion in this chapter suggests that the current DR climate offers opportunities for reforming and refreshing how DR ethics are articulated — with particular application to the ethics of DR processes other than litigation. e development of the NMAS has been one of the most signi cant initiatives in Australian DR history, but despite its acknowledgment of evaluative and advisory practices it remains rmly based on the relatively limited framework of facilitative mediation. New DR environments and expanding roles for lawyers within them create imperatives for new ethical paradigms to better guide decision-making and professional responses to ethical challenges in the practice of DR.195 is is important for three reasons. 13.99 First, a new ethical paradigm is justi ed on the basis of developments in Australian DR practice canvassed throughout this book and the realities of current market demands for DR services. As advisory forms of DR increasingly become dominant models of practice in a range of contexts, including legal contexts, a new ethical foundation for DR’s credibility and legitimacy will be required. is new paradigm must ensure that the values and goals of DR are upheld and that vulnerable parties are protected in DR’s private arena. 13.100 Second, the respected scholar and practitioner Bernie Mayer called for a recon guration of mediators’ role over 10 years ago in Beyond Neutrality: Confronting the Crisis in Con ict Resolution. e new role

envisaged by Mayer effectively requires a new ethical paradigm.196 Mayer particularly advocated for active mediator roles in empowering disputants and ‘enabling disputants to handle their own con ict’.197 For him, the DR eld in 2004 was in crisis because practitioners had ‘fallen too easily into a limited set of roles and purposes’;198 and the eld had failed to take ‘a hard and un inching look at the reasons for the limits we’ve encountered, the questionable nature of some of our most common assumptions, or the mixed results of our efforts’.199 In particular, Mayer argued that mediators need to ‘get past’ the ‘third party neutral role of the mediator’ and envisage a broader range of ethical roles.200 13.101 e third reason why a new ethical paradigm is required arises from the need for DR practitioners to be able actively and ethically to address power imbalances [page 455] between parties. is is necessary for the DR values of justice, party autonomy and community to be achievable. However, if a DR practitioner intervenes to address power imbalances between parties by using strategies that increase the power of a weaker party or reduce that of a stronger party, they are using the power of their role to be active and interventionist in ways that may not sit consistently with current expectations around impartiality. Decision-making about what ‘ought to be done’ to address power imbalances involves professional and personal value judgments that potentially have impacts on dispute outcomes.201 Practitioner activism of this sort must be seen to occur ethically if the parties’ trust is to be maintained and they are to feel assured that the intervenors’ position of power will not be abused. Yet, the current ethical paradigm of impartiality offers relatively little concrete guidance to practitioners on this difficult and contentious point. 13.102 A new paradigm will inevitably acknowledge the importance of both guiding standards in the form of rules and contextual ethical perspectives represented by the moral compass. is is a project to which

Field and Crowe have begun to turn their minds, and this work is ongoing.202

Conclusion 13.103 e matters discussed in this chapter concern the efficacy of a new age of DR practice and of lawyering with a DR focus. e legitimacy of new ways of practice will be undermined if attention is not paid to ensuring the competence and ethical capabilities of DR practitioners, including lawyers engaged in DR processes. Outside of public determinative systems, DR processes across the matrix involve varying levels of privacy and con dentiality and frequently require parties to negotiate legal rights and entitlements. ere is a risk that consumers of such services may be harmed if DR practitioners and lawyers are not appropriately trained, or if service quality does not meet rigorous ethical standards.203 Incompetent or unethical practice in DR contexts involves risks not only to practitioners as individuals but also to the public interest. A healthy future for DR in law, as well as outside of legal practice, requires competence, ethical approaches and a moral compass. is chapter has demonstrated that there are different ways in which standards can be ensured. Some are more reliable than others, and no single method will be satisfactory on its own. 13.104 In an address to the Queensland Bar Association in 1992, Justice Brennan said: e rst, and perhaps the most important, thing to be said about ethics is that they cannot be reduced to rules. Ethics are not what a lawyer knows he or she should do:

[page 456] ethics are what the lawyer does. ey are not so much learnt as lived. Ethics are the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process. If ethics were reduced merely to rules, a spiritless compliance would soon be replaced by skilful evasion. ere is no really effective forum for their enforcement save individual acceptance and peer expectation. However, among those who see themselves as members of a profession, peer expectation is sufficient to maintain the profession’s ethical code. Ethics give

practical expression to the purpose for which a profession exists, so a member who repudiates the code in effect repudiates members of the profession.204

13.105 is quotation provides an elegant segue into the book’s nal chapter, which explores the professional identity of DR practitioners and lawyers engaging in DR, the positive nature of that identity and how it can be harnessed to sustain the profession through challenges and changes now and into the future. An ethical disposition lies at the heart of such an identity and is central to a sense of meaning and purpose in DR practice and lawyering. 1.

See, eg, James Duffy and Rachael Field, ‘Why ADR Must Be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-Believer’ (2014) 25(1) Australasian Dispute Resolution Journal 9; Rachael Field and Alpana Roy, ‘A Compulsory Dispute Resolution Capstone Subject: An Important Inclusion in a 21st Century Australian Law Curriculum’ (2017) 27(1) Legal Education Review 73. See also Kathy Douglas, ‘Shaping the Future: e Discourses of ADR and Legal Education’ (2008) 8(1) QUT Law and Justice Journal 138; Kathy Douglas, ‘e Teaching of ADR in Australian Law Schools: Promoting Non-Adversarial Practice in Law’ (2011) 22(1) Australasian Dispute Resolution Journal 49; Kathy Douglas, ‘e Teaching of Alternative Dispute Resolution in Selected Australian Law Schools: Towards Second Generation Practice and Pedagogy’ (PhD thesis, RMIT University, 2012). See also a special edition of the Australasian Dispute Resolution Journal on the place of DR in legal education in 2012 which included the following: Tania Sourdin, ‘Not Teaching ADR in Law Schools? Implications for Law Students, Clients and the ADR Field’ (2012) 23(3) Australasian Dispute Resolution Journal 148; Kathy Douglas, ‘e Importance of Understanding Different Generations of ADR Practice for Legal Education’ (2012) 23(3) Australasian Dispute Resolution Journal 157; Olivia Rundle and Sarah Hiller, ‘Teaching Self-Re ection to Law Students in a Dispute Resolution Unit’ (2012) 23(3) Australasian Dispute Resolution Journal 168; Becky Batagol and Ross Hyams, ‘Non-Adversarial Justice and the ree Apprenticeships of Law’ (2012) 23(3) Australasian Dispute Resolution Journal 179; Judy Gutman and Matthew Riddle, ‘ADR in Legal Education: Learning by Doing’ (2012) 23(3) Australasian Dispute Resolution Journal 189; Rachael Field and James Duffy, ‘Law Student Psychological Distress, Alternative Dispute Resolution, and Sweet-Minded, Sweet-Eyed Hope’ (2012) 23(3) Australasian Dispute Resolution Journal 195; Pauline Collins, ‘Student Re ections on the Bene ts of Studying ADR to Provide Experience of NonAdversarial Practice’ (2012) 23(3) Australasian Dispute Resolution Journal 204; Susan Douglas, ‘Humanising Legal Education: Lessons from ADR’ (2012) 23(3) Australasian Dispute Resolution Journal 216. See also John Lande and Jean R Sternlight, ‘e Potential Contribution of ADR to an Integrated Curriculum: Preparing Law Students

for Real World Lawyering’ (2010) 25(1) Ohio State Journal on Dispute Resolution 247; Rachael Field and James Duffy, ‘Better to Light a Single Candle than to Curse the Darkness: Promoting Law Student Well-Being through a First Year Law Subject’ (2012) 12(1) QUT Law and Justice Journal 133; Andrea Kupfer Schneider, ‘Teaching a New Negotiation Skills Paradigm’ 39(1) Washington University Journal of Law and Policy 13; Bobbi McAdoo, Sharon Press and Chelsea Griffin, ‘It’s Time to Get it Right: Problem-Solving in the First-Year Curriculum’ (2012) 39(1) Washington University Journal of Law and Policy 39; John Lande, ‘Teaching Students to Negotiate Like a Lawyer’ 39(1) Washington University Journal of Law and Policy 109; John Lande, ‘e Dispute Resolution Movement Needs Good eories of Change’ (2020) (1) Journal of Dispute Resolution 121; Daniel Goldsworthy, ‘e Future of Legal Education in the 21st Century’ (2020) 41(1) Adelaide Law Review 243; Aspasia I Tsaoussi, ‘Using So Skills Courses to Inspire Law Teachers: A New Methodology for a More Humanistic Legal Education’ (2020) 54(1) e Law Teacher 1. 2.

e Federal Court of Australia has nine National Practice Areas providing wideranging areas of expertise. See . See also the curriculum for professional development for Australian judicial officers: . Additional information and resources are available at the National Judicial College of Australia .

3.

Chartered Institute of Arbitrators (CIArb), ‘Interviews for Prospective Arbitrators’ (2015) . For commentary, see Charles N Brower, Michael Pulos and Charles B Rosenberg, ‘So is there Anything Really Wrong with International Arbitration as We Know It?’ in Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: e Fordham Papers (2012) (Brill, 2013) 1– 13.

4.

See also John Cooper, Simon Bellas and Andrew Berriman, ‘Arbitral Appointments: A Better Way?’ (2015) 42(11) Brief 18; Peter Michaelson, ‘Neutral Selection: Perspectives from a Neutral’ in Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: e Fordham Papers 2014 (Brill, 2015) 11–23; Devorah Spigelman, ‘e Need for Women in Arbitration and How to Implement Diversi cation of Arbitral Appointments’ (2020) 13 American Journal of Mediation 152; Nathalie Allen and Natalie Hall, ‘“If Everyone Is inking Alike, en No One Is inking”: e Importance of Cognitive Diversity in Arbitral Tribunals to Enhance the Quality of Arbitral Decision Making’ (2021) 38(5) Journal of International Arbitration 601.

5.

See Australian Centre for International Commercial Arbitration, Arbitration Rules 2021, , cl 21. For the procedure for a challenge, see cl 22.

6.

See . Some

Commission members are appointed to Expert Panels and others have general appointments covering broad areas of expertise. 7.

e AAT operates in eight different divisions spanning its wide jurisdiction — see .

8.

See .

9.

Ibid.

10.

See the Conciliation Rules of the Rules for Dispute Resolution Processes of the Resolution Institute which state: ‘Rule 2: Appointment of Conciliator 1. Unless otherwise agreed in writing by the parties, the conciliation shall be conducted: a. by a person agreed between the parties; or b. if the parties are unable to agree on the identity of the person to be appointed, by a person nominated by the Institute, who accepts appointment as Conciliator’ .

11.

ese factors are taken into account when the respective tribunal appoints full-time conciliators to their staff or constitutes panels of conciliators to whom external referrals can be made.

12.

For example, the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 400 states: ‘(1) e chief executive officer may appoint conciliators for this Act. (2) e chief executive officer may appoint a person as a conciliator only if the chief executive officer is satis ed the person is quali ed for appointment because the person has the necessary expertise or experience. (3) Without limiting subsection (2), the chief executive officer may be satis ed a person has the necessary expertise or experience because the person has satisfactorily completed the training approved by the chief executive officer for this section’.

13.

e Human Rights Commission Act 2005 (ACT) s 56 states that the Commission has authority to ‘delegate the function of conciliation of a complaint to — (a) a commissioner other than the commissioner who is considering the complaint; or (b) a member of staff or a consultant engaged by the commission for this Act’.

14.

See .

15.

See .

16.

See .

17.

See, eg, . See speci cally NJCA, Attaining Judicial Excellence: A Guide for the NJCA (NJCA, 2019).

18.

Ibid.

19.

See, eg, Micheline Dewdney and Ruth Charlton, e Mediator Handbook (LawBook,

3rd ed, 2014) and Laurence Boulle and Nadja Alexander, Mediator Skills and Techniques (LexisNexis, 3rd ed, 2020). 20.

Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths, 2nd ed, 2002) 206–8.

21.

Greg Tillet, ‘Con ict Resolution: Training and Education’ (Paper presented to the Con ict Resolution Trainers Conference, Sydney University, 1989) 10.

22.

See the National Mediator Accreditation System (NMAS, 2015) .

23.

See .

24.

For example, the accreditation requirements for Family Dispute Resolution Practitioners discussed below.

25.

For example, the Courts Legislation Amendment Act 2015 (ACT) s 11 de nes ‘accredited mediator’ as a person who is entered as a mediator on the register of accredited mediators maintained by the MSB.

26.

Under NMAS, (n 22) Pt V cl 1, ‘e National Register is the authoritative list of all mediators accredited under the NMAS. It enables consumers, advisers and referring agents to: 1.1 check whether mediators are nationally accredited, and 1.2 obtain details of the RMAB that has accredited them’: NMAS, (n 22). In 2021, close to 4000 mediators are on the register of accredited mediators.

27.

Under NMAS Approval Standards Pt II cl 2, an applicant must ‘(h) become and remain a member of an RMAB or a member or employee of an organisation with a relevant ethical code or standard and a complaints and disciplinary procedure that can address complaints against mediators’, (n 22) 3.

28.

In 2021, there are 46 member organisations of the MSB — 39 of the 46 members are RMABs, and 30 of the 46 members provide training that meets the NMAS standards for accreditation.

29.

Universities and other tertiary institutions are educational members of the MSB without being RMABs, although the University of Western Australia’s Mediation Clinic is also an RMAB.

30.

NMAS, (n 22) Pt II cl 7: ‘Waiver by MSB in exceptional circumstances: e MSB may, conditionally or otherwise, waive compliance with any provision of the Approval Standards on application by an RMAB’.

31.

Family Law Act 1975 (Cth) Pts VII and VIII respectively.

32.

Family Law Act 1975 (Cth) s 60I.

33.

Family Law Act 1975 (Cth) s 60I(8)(a).

34.

Family Law Act 1975 (Cth) s 60I(8)(aa).

35.

Family Law Act 1975 (Cth) s 60I(8)(b).

36.

Family Law Act 1975 (Cth) s 60I(8)(c).

37.

See Family Law Practice Direction — Financial Proceedings which refers to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Sch 1. Prospective parties to proceedings are required to comply with the pre-action procedures in Sch 1 of the Family Law Rules, unless an exception in r 4.01(2) applies. ose pre-action procedures require parties to take genuine steps to resolve the dispute before proceedings are instituted. Further, a Genuine Steps Certi cate must be led with any Initiating Application (Family Law) or Response to Initiating Application seeking nancial orders.

38.

See Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) r 5. Regulation 6 provides: (1) It is an accreditation criterion that a person: (a) is not prohibited under a law of a state or territory from working with children; and (b) has complied with the laws for employment of persons working with children in each of the states and territories in which the person will provide [FDR] services; and (c) has access to a suitable complaints mechanism to which persons who use the applicant’s services as a [FDRP] may have recourse if they wish to complain about services provided; and (d) is suitable to perform the functions and duties of a [FDRP]; and (e) is not disquali ed from accreditation. (2) A person is disquali ed from accreditation if the person has been convicted of: (a) an offence involving violence to a person; or (b) a sex-related offence, including rape, sexual assault, indecent assault, unlawful sexual acts with or upon minors, child pornography, procuring or trafficking of a child for indecent purposes or being knowingly concerned with the prostitution of a child.

39.

See .

40.

Complaints against mediators are made to individual RMABs and the central MSB has information only on complaints referred to it for a recommendation or waiver of speci c provisions.

41.

See Bobette Wolski, ‘Mediator Standards of Conduct: A Commentary to the Revised National Mediator Accreditation System Practice Standards’ (2016) 5(2) Journal of Civil Litigation and Practice 109.

42.

For example, in Austria mediators require 160 hours of education, compared to 38 hours of training for the NMAS accreditation process.

43.

See NMAS, Practice Standards, (n 22) cl 10.2.

44.

For example, some RMABs, such as the Fair Work Commission, provide mainly conciliation services.

45.

See, eg, Marjorie A Silver, ‘Love, Hate and other Emotional Interference in the Lawyer/Client Relationship’ in Dennis Stolle, David Wexler and Bruce Winick (eds), Practising erapeutic Jurisprudence: Law as a Helping Profession (Carolina Academic Press, 2000) ch 13; Tricia Jones and Andrea Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) 17 Negotiation Journal 217; Lori S

Schreier, ‘Emotional Intelligence and Mediation Training’ (2002) 20(1) Con ict Resolution Quarterly 99; Roger Fisher and Daniel Shapiro, Beyond Reason: Using Emotions as You Negotiate (Viking, 2005); Clark Freshman, ‘Identity, Beliefs, Emotion, and Negotiation Success’ in Michael Moffitt and Robert Bordone (eds), e Handbook of Dispute Resolution (Jossey-Bass, 2005) 99; Peter Reilly, ‘Teaching Law Students How to Feel: Using Negotiation Training to Increase Emotional Intelligence’ (2005) 21(2) Negotiation Journal 301; Erin Ryan, ‘e Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation’ (2005) 10 Harvard Negotiation Law Review 231; Gary Friedman and Jack Himmelstein, ‘Resolving Con ict Together: e Understanding-Based Model of Mediation’ (2006) (2) Journal of Dispute Resolution 523; Tricia S Jones, ‘Emotion in Mediation: Implications, Applications, Opportunities, and Challenges’ in Margaret S Hermann (ed), e Blackwell Handbook of Mediation: eory and Practice (Blackwell, 2006) 277; Deanna Foong, ‘Emotions in Negotiation’ (2007) 18(3) Australasian Dispute Resolution Journal 186. See also, eg, Marjorie A Silver, e Affective Assistance of Counsel (Carolina Academic Press, 2007); James Duffy, ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ (2010) 10(1) QUT Law and Justice Journal 44; Kathy Douglas and Clare Coburn, ‘Attitude and Response to Emotion in Dispute Resolution: e Experience of Mediators’ (2014) 16(1) Flinders Law Journal 111; Tina Popa, ‘“No One Gets Closure In the End”: Non-Adversarial Justice and Practitioner Insights into the Role of Emotion in Medical Negligence Mediation’ (2018) 27(4) Journal of Judicial Administration 148; Rachel Low et al, ‘Emotion Regulation, Con ict Resolution, and Spillover on Subsequent Family Functioning’ (2019) 19(7) Emotion 1162; Tony Whatling, Mediation and Dispute Resolution: Contemporary Issues and Developments (Jessica Kingsley Publishers, 2021) ch 7. 46.

See Freddie Strasser and Paul Randolph, Mediation: A Psychological Insight into Con ict Resolution (Bloomsbury Publishing, 2004); Paul Randolph, e Psychology of Con ict — Mediating in a Diverse World (Bloomsbury Publishing, 2016). However, see also Sharyn Roach Anleu, Jennifer K Elek and Kathy Mack, ‘Researching Judicial Emotion and Emotion Management’ in Susan A Bandes et al, Research Handbook on Law and Emotion (Edward Elgar Publishing, 2021) ch 12.

47.

See Peter Salovey and John Mayer, ‘Emotional Intelligence’ (1990) 9(3) Imagination, Cognition and Personality 185; Daniel Goleman, Emotional Intelligence: Why it Can Matter More than IQ (Bloomsbury Publishing, 1995); Daniel Goleman, ‘Leadership that Gets Results’ (2000) 78(2) Harvard Business Review 78; Colin James, ‘Lawyer Dissatisfaction, Emotional Intelligence and Clinical Legal Education’ (2008) 18(1/2) Legal Education Review 123, 132; Daniel Goleman, Richard Boyatzis and Annie McKee, Primal Leadership: Unleashing the Power of Emotional Intelligence (Harvard Business Press, 2013). See also Colin James, ‘Seeing ings as We Are: Emotional Intelligence and Clinical Legal Education’ (2005) 8 International Journal of Clinical Legal Education 123; Daniel Goleman, ‘Emotional Mastery’ (2011) 28(6) Leadership Excellence 12; James Hunt and Martin Fitzgerald, ‘e Relationship Between

Emotional Intelligence and Transformational Leadership: An Investigation and Review of Competing Claims in the Literature’ (2013) 2(8) American International Journal of Social Science 30; Joseph Ciarrochi and John Mayer, Applying Emotional Intelligence: A Practitioner’s Guide (Psychology Press, 2013). 48.

For example, Michelle LeBaron, Carrie MacLeod and Andrew Floyd Acland, Choreography of Resolution: Con ict, Movement and Neuroscience (American Bar Association, Section of Dispute Resolution, 2013). See also, eg, Dorothy K Kagehiro and William S Laufer (eds), Handbook of Psychology and Law (Springer-Verlag, 1992); David Carson and Ray Bull (eds), Handbook of Psychology in Legal Contexts (Wiley, 2nd ed, 2003); Richard Birke, ‘Neuroscience and Settlement: An Examination of Scienti c Innovations and Practical Applications’ (2010) 25(2) Ohio State Journal on Dispute Resolution 477; Laurence Boulle, ‘Predictable Irrationality in Mediation — Lessons from Behavioural Economics’ (2013) 24(1) Australasian Dispute Resolution Journal 8; David Faigman et al, ‘Neuroscientists in Court’ (2013) 14(10) Nature Reviews Neuroscience 730; Jean R Sternlight and Jennifer K Robbennolt, ‘Psychology and Effective Lawyering: Insights for Legal Educators’ (2014) 64(3) Journal of Legal Education 365; Craig Smith, ‘Applying Findings from Neuroscience to Inform and Enhance Mediator Skills’ (2015) 26(4) Australasian Dispute Resolution Journal 249; Michael S Pardo and Dennis Patterson, Philosophical Foundations of Law and Neuroscience (Oxford University Press, 2016).

49.

See, eg, the Research Network on Law and Neuroscience: ; e Centre for Science and the Law: .

50.

See, eg, Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011); David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases Commentary and Materials (Lawbook Co, 4th ed, 2018); Peter Condliffe, Con ict Management (LexisNexis Butterworths, 6th ed, 2019); Tania Sourdin, Alternative Dispute Resolution (omson Reuters, 6th ed, 2020). See also Moffitt and Bordone, (n 45); Ellen Waldman, Meditation Ethics: Cases and Commentary (John Wiley & Sons, 2011); Jacqueline Nolan-Haley, Alternative Dispute Resolution in a Nutshell (West Academic, 4th ed, 2013); Karl Mackie (ed), A Handbook of Dispute Resolution: ADR in Action (Routledge, 2013); Christopher W Moore, e Mediation Process: Practical Strategies for Resolving Con ict (John Wiley & Sons, 4th ed, 2014); Omer Shapira, A eory of Mediators’ Ethics (Cambridge University Press, 2016); Rachael Field and Jonathan Crowe, Mediation Ethics: From eory to Practice (Edward Elgar, 2020). See also, eg, Felicity Nagorcka, Michael Stanton and Michael Wilson, ‘Stranded between Partisanship and the Truth — A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice’ (2005) 29(2) Melbourne University Law Review 448; Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38(2) South Texas Law Review 407. Bobette Wolski’s PhD thesis provides an excellent catalogue of relevant Australian and international

scholarship up to 2011: Bobette Wolski, ‘An Evaluation of the Current Rules of Professional Conduct Governing Legal Representatives in Mediation in Australia and the United States and of a Range of Proposed Alternative “Non-Adversarial” Ethics Systems for Lawyers’ (PhD thesis, Bond University, 2011). For a comparative perspective on professional ethics and standards, see Julian Webb et al, Setting Standards: e Future of Legal Services Education and Training Regulation in England and Wales: e Final Report of the Legal Education and Training Review Independent Research Team (Legal Education and Training Review, 2013); Noel Semple, Russell G Pearce and Renee Newman Knake, ‘A Taxonomy of Lawyer Regulation: How Contrasting eories of Regulation Explains the Divergent Regulatory Regimes in Australia, England and Wales and North America’ (2013) 16(2) Legal Ethics 258. See also Julian Webb, ‘Law, Ethics, and Complexity: Complexity eory and the Normative Reconstruction of Law’ (2005) 52(1&2) Cleveland State Law Review 227; Carrie Menkel-Meadow, ‘e Evolving Complexity of Dispute Resolution Ethics’ (2017) 30(3) Georgetown Journal of Legal Ethics 389; Peter Halprin and Stephen Wah, ‘Ethics in International Arbitration’ (2018) (1) Journal of Dispute Resolution 87; Carrie Menkel-Meadow, ‘Hybrid and Mixed Dispute Resolution Processes: Integrities of Process Pluralism’ in Maria F Moscati, Michael Palmer and Marian Roberts (eds), Comparative Dispute Resolution (Edward Elgar, 2020) ch 28. 51.

See, eg, .

52.

Ibid.

53.

See Alasdair MacIntyre, Aer Virtue (University of Notre Dame Press, 1981); Daniel Statman, Virtue Ethics: A Critical Reader (Edinburgh University Press, 1997); Rosalind Hursthouse, On Virtue Ethics (Oxford University Press, 1999); Julia E Annas, ‘e Structure of Virtue’ in Michael DePaul and Linda Zagzebski (eds), Intellectual Virtue: Perspectives from Ethics and Epistemology (Oxford University Press, 2003); Liezl Van Zyl, Virtue Ethics: A Contemporary Introduction (Routledge, 2018); Miguel Alzola, Alicia Hennig and Edward Romar (eds), ‘ematic Symposium: Virtue Ethics Between East and West’ (2020) 165(2) Journal of Business Ethics 177.

54.

See Immanuel Kant, Grounding for the Metaphysics of Morals (trans James W Ellington, Hackett Publishing, 3rd ed, 1993 (original published 1785)) and Onora O’Neill, Acting on Principle: An Essay on Kantian Ethics (Cambridge University Press, 2013).

55.

Robin Barrow, Utilitarianism: A Contemporary Statement (Routledge, 1991); Matti Hayry, Liberal Utilitarianism and Applied Ethics (Routledge, 2013); Ben Eggleston and Dale E Miller, e Cambridge Companion to: Utilitarianism (Cambridge University Press, 2014); Brian Boone, Ethics 101: From Altruism and Utilitarianism to Bioethics and Political Ethics: An Exploration of the Concepts of Right and Wrong (Simon and Schuster, 2017).

56.

Bobette Wolski, Skills, Ethics and Values for Legal Practice (Lawbook, 2nd ed, 2009) 52.

57.

Charles Talbot Onions (ed), Shorter Oxford Dictionary (Clarendon Press, 1973) 685.

58.

For example, the professional ethical rules about what lawyers can and cannot do which relate to professional boundaries rather than considerations of morality per se.

59.

Wolski, (n 56) 52.

60.

See Richard Wasserstrom, ‘Lawyers as Professionals: Some Moral Issues’ (1975) 5(1) Human Rights 1, 4.

61.

See NADRAC, A Framework for Standards (Australian Government, 2001) 110.

62.

Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 3rd ed, 2018).

63.

Sarah Childs Grebe, Karen Irvin and Michael Lang, ‘A Model for Ethical DecisionMaking in Mediation’ (1989) 7(2) Mediation Quarterly 133, 133.

64.

Ibid referring to Margaret L Rhodes, Ethical Dilemmas in Social Work Practice (Routledge & Kegan Paul, 1986).

65.

James omas, Judicial Ethics (LexisNexis Butterworths, 3rd ed, 2009) 9.

66.

Ibid.

67.

Grebe, Irvin and Lang, (n 63) 138.

68.

Charles S Levy, Social Work Ethics (Human Sciences Press, 1976).

69.

Grebe, Irvin and Lang, (n 63) 146.

70.

Ibid.

71.

Ainslie Lamb and John Littrich, Lawyers in Australia (Federation Press, 2011); Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (LexisNexis Butterworths, 6th ed, 2013); Stephen G Corones, Nigel Stobbs and Mark omas, Professional Responsibility and Legal Ethics in Queensland (Lawbook, 2014); Parker and Evans, (n 62). is is true in all legal jurisdictions — see Kent Kauffman, Legal Ethics (Cengage Learning, 2013); Jonathan Herring, Legal Ethics (Oxford University Press, 2014).

72.

See Queensland Law Society Ethics Centre, Legal Ethics Introductory, .

73.

See also, eg, Menkel-Meadow, ‘e Evolving Complexity of Dispute Resolution Ethics’, (n 50).

74.

See, eg, Bobette Wolski, ‘An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Draers and a Response to Jim Mason’ (2013) 16(1) Legal Ethics 182; Julian Webb, ‘Regulating Lawyers in a Liberalized Legal Services Market: e Role of Education and Training’ (2013) 24(2) Stanford Law and Policy Review 533. It is beyond this work’s scope to discuss the laws in detail. For commentary on the contemporary treatment of legal ethics, see also the extensive literature cited above.

75.

Australian Solicitors’ Conduct Rules 2015 .

76.

Australian Bar Association, Legal Profession Uniform Conduct (Barristers) Rules 2015 .

77.

Ibid.

78.

See the Law Society of New South Wales, .

79.

Australian Solicitors’ Conduct Rules, (n 75). See also, eg, Mike Emerson, ‘Alternative Dispute Resolution: Legal Ethics and Mediation: Is the ASCR Enough?’ (2014) 34(9) e Proctor 36; Bobette Wolski, ‘On Mediation, Legal Representatives and Advocates’ (2015) 38(1) UNSW Law Journal 5.

80.

e glossary de nes a ‘solicitor’ as: (a) an Australian legal practitioner who practises as or in the manner of a solicitor; or (b) an Australian registered foreign lawyer who practises as or in the manner of a solicitor: Australian Solicitors’ Conduct Rules, (n 75).

81.

Ibid.

82.

ese are, the nature and purpose of the rules, fundamental duties, relations with clients, advocacy and litigation, relations with other solicitors, relations with other persons, law practice management and a glossary of terms. See Stafford Shepherd, ‘One Nation, One Rule: An Overview of the Australian Solicitors Conduct Rule 2012’ (2012) (June) Proctor 18. is summary is cited in Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2nd ed, 2019) ch 11.

83.

Australian Solicitors’ Conduct Rules, (n 75).

84.

Ibid.

85.

Ibid.

86.

Ibid.

87.

Ibid.

88.

Ibid.

89.

See discussion below and Legal Profession Uniform Conduct (Barristers) Rules 2015, (n 76).

90.

Fiduciary duties are discussed again in the context of a positive professional identity in Chapter 14.

91.

Legal Profession Uniform Conduct (Barristers) Rules 2015, (n 76) r 15.

92.

Ibid De nitions.

93.

Ibid r 12.

94.

Steven Standing, ‘Ethical and Legal Obligations in Mediations and Other Negotiations’ (2015) 42(7) Brief 20.

95.

[2006] LPT 012 (23 November 2006). See Bobette Wolski, ‘e Truth about Honesty and Candour in Mediation: What the Tribunal Le Unsaid in Mullins’ Case’ (2012)

36(2) Melbourne University Law Review 706, citing many commentaries, case notes and texts discussing the Mullins case — see particularly fn 2. 96.

[2006] LPT 012 (23 November 2006), [1].

97.

Ibid [30].

98.

Ibid [31].

99.

Ibid [33].

100. Ibid [34]. 101. Ibid [33]. 102. Ibid [36]. 103. Wolski, (n 95) 738. 104. Ibid 738–9. 105. Law Council of Australia (2010),

. 106. American Bar Association (2002), . See also Brian C Haussmann, ‘e ABA Ethical Guidelines for Settlement Negotiations: Exceeding the Limits of the Adversarial Ethic’ (2004) 89(5) Cornell Law Review 1218. 107. See Australian Institute of Judicial Administration, Guide to Judicial Conduct (AIJA, 3rd ed, 2020); omas, (n 65); Sharyn Roach Anleu and Kathy Mack, ‘Judicial Authority and Emotion Work’ (2013) 11 Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales; Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Craing a System that Enhances Institutional Integrity’ (2014) 38(1) Melbourne University Law Review 1. 108. Appleby and Le Mire, (n 107) 3. 109. Ibid 1. 110. See, eg, the judicial oath in the Fourth Schedule of the Oaths Act 1900 (NSW). 111. Gerard Brennan, ‘Speech on Swearing in as Chief Justice’, 21 April 1995, , 1. 112. Appleby and Le Mire, (n 107) 29. 113. William omas Braithwaite, Who Judges the Judges? A Study of Procedures for Removal and Retirement (American Bar Foundation, 1971) 161. 114. omas, (n 65). 115. Australian Institute of Judicial Administration, (n 107). 116. Ibid 1.

117. Ibid. 118. Ibid. 119. Established by the Judicial College of Victoria Act 2001 (Vic). 120. Judicial College of Victoria, Framework of Judicial Abilities and Qualities for Victorian Judicial Officers (JCV, 2008), 1. 121. Australian Institute of Judicial Administration, (n 107) 1. 122. Brennan, (n 111) 1. 123. David Wood, Judicial Ethics — A Discussion Paper (AIJA, 1996) 1: judges ‘increasingly have to deal with broad issues of social values and human rights and decide controversial moral issues that legislators cannot resolve’. 124. See Carrie Menkel-Meadow, ‘Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s Happening and What’s Not’ (2001) 56(4) University of Miami Law Review 949; Jay Folberg, ‘Arbitration Ethics’ (2002) 9(1) Dispute Resolution Magazine 5; Kristen M Blankley, ‘Taming the Wild West of Arbitration Ethics’ (2011) 60(4) University of Kansas Law Review 925; Judith Resnik, ‘Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes’ (2016) 85(5) Fordham Law Review 1899; Malcolm Holmes, Luke R Nottage and Robert Tang, ‘e 2016 Rules of the Australian Centre for International Commercial Arbitration: Towards Further “Cultural Reform”’ (2016) (16/49) Sydney Law School Research Paper; Halprin and Wah, (n 50); John A Pappalardo, ‘“How Can I Not Sacri ce One for the Other?”: Balancing Expediency and Cost-Effectiveness with Reliability and Reputation in Arbitration’ (2020) 45(1) Westchester Bar Journal 187. See also Khaled Moyeed, Clare Montgomery and Neal Pal, ‘A Guide to the IBA’s Revised Guidelines on Con icts of Interest’ on Kluwer Arbitration Blog (29 January 2015) . Drawing partly on the Guide, Korea’s Commercial Arbitration Board released a revised ‘Code of Ethics for Arbitrators’ in 2016. 125. Catherine A Rogers, ‘Fit and Function in Legal Ethics: Developing a Code of Conduct for International Arbitration’ (2001) 23(2) Michigan Journal of International Law 341; Catherine A Rogers, Ethics in International Arbitration (Oxford University Press, 2014). 126. Rogers, Ethics in International Arbitration, (n 125). 127. See Alexandre Marques da Silva Martins, ‘Challenges to Transparency and Ethics in Alternatives to Arbitration in the Realm of International Investments’ (2016), SSRN: . On ethics in blended processes, see, eg, Richard Fullerton, ‘e Ethics of Mediation-Arbitration’ (2009) 38(5) Colorado Lawyer 31; Donna Ross, ‘Med-Arb/Arb-Med: A More Efficient ADR Process or an Invitation to a

Potential Ethical Disaster?’ in Arthur W Rovine (ed), Contemporary Issues in International Arbitration and Mediation: e Fordham Papers (2012) (Brill, 2013) 352– 66. 128. See, eg, Rachael Field, ‘A Mediation Profession in Australia: An Improved Framework for Mediation Ethics’ (2007) 18(1) Australasian Dispute Resolution Journal 1. 129. Boulle, (n 50) 328. 130. See . 131. For the history of the MSB and NMAS, see . 132. e MSB objectives are to develop, maintain and amend the NMAS Approval Standards and Practice Standards (the Standards), oversee application of the Standards to achieve consistency, quality and public protection in mediation services and training, support, complement and encourage members in their quest to meet their objectives in relation to the Standards, ensure that training and accreditation of mediators continues to develop, require records to be maintained of mediators accredited under the Standards and facilitate access to mediators with national accreditation — see . 133. NMAS, (n 22) cl 10.1(c). 134. Gregg B Walker, ‘Training Mediators: Teaching about Ethical Concerns and Obligations’ (1988) 19(1) Mediation Quarterly 33. See also Pamela S Engram and James R Markowitz, ‘Ethical Issues in Mediation: Divorce and Labor Compared’ (1985) 8(1) Mediation Quarterly 19. 135. Walker, (n 134) 35. 136. Ibid. 137. Ibid. 138. Ruth Charlton, Dispute Resolution Guidebook (Lawbook, 2000) 15. See generally Boulle, (n 50) ch 16. is section draws on Rachael Field and Neal Wood, ‘Con dentiality: An Ethical Dilemma for Marketing Mediation?’ (2006) 17(2) Australasian Dispute Resolution Journal 79; and Rachael Field and Neal Wood, ‘Marketing Mediation Ethically: e Case of Con dentiality’ (2005) 5(2) QUT Law and Justice Journal 143. See also Kevin Gibson, ‘Con dentiality in Mediation: A Moral Reassessment’ (1992) (1) Journal of Dispute Resolution 25; Melinda Shirley and Wendy Harris, ‘Con dentiality in Court-Annexed Mediation — Fact or Fallacy?’ (1993) 13(6) Queensland Lawyer 221; Robert Baruch Bush, ‘e Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and Policy Implications’ (1994) (1) Journal of Dispute Resolution 1; Fiona Crosbie, ‘Aspects of Con dentiality in Mediation: A Matter of Balancing Competing Public Interests’ (1995) 2 Commercial Dispute Resolution Journal 51; Virginia Goldblatt, ‘Con dentiality in Mediation’ (2000) New Zealand Law Journal 392; B Codd, ‘e Con dential Mediator’ (2002) 21(3) e Arbitrator and Mediator 35. See also Virginia Vann, ‘Con dentiality in Court-Sponsored Mediation: Disclose at Your Own Risk?’ (1999) 10(3) Australian Dispute Resolution Journal 195;

Amber Bernauer, ‘Con dentiality’ (2005) 16(2) Australasian Dispute Resolution Journal 135; Gabrielle Hurley, ‘Mediation Where a Party Represents the Australian Government: Are there Limits to Con dentiality?’ (2006) 17(1) Australasian Dispute Resolution Journal 29; Micheline Dewdney, ‘e Partial Loss of Voluntariness and Con dentiality in Mediation’ (2009) 20(1) Australasian Dispute Resolution Journal 17; Joe Harman, ‘Con dentiality in Family Dispute Resolution and Family Counselling: Recent Cases and Why ey Matter’ (2011) 17(3) Journal of Family Studies 204; Tom Altobelli and Diana Bryant, ‘Has Con dentiality in Family Dispute Resolution Reached its Use-By Date?’ (2013) Families, Policy and the Law 195; Dominik Leimgruber, ‘Con dentiality, Public Interest and the Mediator’s Ethical Dilemma’ (2013) 24(3) Australasian Dispute Resolution Journal 187; Nina Khouri, ‘Should You “Lay Bare Your Soul”? e Shiing Landscape of Mediation Privilege in New Zealand’ (2016) 27(2) Australasian Dispute Resolution Journal 111; Allan E Barsky, ‘e Ethics of App-Assisted Family Mediation’ (2016) 34(1) Con ict Resolution Quarterly 31; David Spencer, ‘Case Notes: Costs Order Against Non-Attending Party to Mediation, Costs for Breach of Con dentiality, and Mediation Media Watch’ (2017) 28(3) Australasian Dispute Resolution Journal 145; Joe Harman, ‘An Imperfect Protection: Attitudes of Family Dispute Resolution Practitioners to Con dentiality’ (2017) 29(1) Bond Law Review 39; Joe Harman, ‘Mediation Con dentiality: Origins, Application and Exceptions and Practical Implications’ (2017) 28(2) Australasian Dispute Resolution Journal 106; Joe Harman, ‘e Intersection of Family Violence and Family Dispute Resolution: Implications for Evidence Gathering and Mediation Con dentiality’ (2019) 33(1) Australian Journal of Family Law 1; Joe Harman, ‘e Protection of Con dentiality in Australian Family Law’ (2020) 58(1) Family Court Review 126. 139. Charlton, (n 138) 14. Con dentiality was dealt with in Dispute Resolution in Australia as a legal issue, but Astor and Chinkin acknowledged that it interlocks with and impacts upon mediator ethics: Astor and Chinkin, (n 20) 177–86. 140. Laurence Boulle, ‘Case Note’ (1992) 3(4) Australian Dispute Resolution Journal 272. 141. Boulle, (n 50). 142. Crosbie, (n 138) 53. 143. Evidence Act 1995 (Cth) s 131(1). 144. Evidence Act 1995 (Cth) s 131(2)(h). 145. See Boulle, (n 50) paras 16.16–16.17. 146. See QLS, Members’ Mediation Kit (2008) Appendix C, . 147. 789Ten v Westpac Banking Corp [2004] NSWSC 594. 148. As discussed in the rst edition: Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (Butterworths, 1992) 233.

149.

Geraldine Dann, ‘Con dentiality aer Unsuccessful Court-Ordered Mediation: Exemplary or Illusory’ (1997) 3(3) Commercial Dispute Resolution Journal 212. See also, eg, Eric D Green, ‘A Heretical View of the Mediation Privilege’ (1986) 2(1) Ohio State Journal on Dispute Resolution 1; Lawrence R Freedman and Michael L Prigoff, ‘Con dentiality in Mediation: e Need for Protection’ (1986) 2(1) Ohio State Journal on Dispute Resolution 37; Alan Kirtley, ‘e Mediation Privilege’s Transition from eory to Implementation: Designing a Mediation Privilege Standard to Protect Mediation Participants, the Process and the Public Interest’ (1995) (1) Journal of Dispute Resolution 1; James L Knoll, ‘Protecting Participants in the Mediation Process: e Role of Privilege and Immunity’ (1998) 34(1) Tort and Insurance Law Journal 115; Eileen A Scallen, ‘Relational and Informational Privileges and the Case of the Mysterious Mediation Privilege’ (2004) 38(2) Loyola of Los Angeles Law Review 537; Gary Meggitt, ‘Mediation Privilege’ in Moscati, Palmer and Roberts, (n 50) ch 15.

150. Field v Commissioner for Railways for New South Wales (1955) 99 CLR 285, 291, (Dixon CJ, Webb, Kitto and Taylor JJ). 151. Crosbie, (n 138) 53. 152. (1955) 99 CLR 285. 153. In AWA Ltd v Daniels t/a Deloitte Haskins and Sells (unreported, NSWSC, Rolfe J, 18 March 1992), mediation was held to be ‘somewhat analogous to “without prejudice” discussions between parties … in an attempt to settle litigation’. 154. Crosbie, (n 138) 52. 155. AWA Ltd v Daniels t/a Deloitte Haskins and Sells (1992) 7 ACSR 463, 468. 156. Astor and Chinkin, (n 148) 180. 157. See NMAS, (n 22) cl 10.1(c)(vi). is section draws from Rachael Field, ‘Mediation Ethics in Australia — A Case for Rethinking the Foundational Paradigm’ (2012) 19 James Cook University Law Review 41. See also Field and Crowe, (n 50). 158. See Field and Crowe, (n 50) and Jonathan Crowe and Rachael Field, ‘e Empty Idea of Mediator Impartiality’ (2019) 29(4) Australasian Dispute Resolution Journal 273. 159. Onions, (n 57) 405. 160. Boulle, (n 50) 19. 161. NADRAC, (n 61) 112–13. ‘Any limits on the requirement of impartiality should be clearly explained to and understood by the parties’: ibid 113. 162. Ibid. 163. NMAS, (n 22) cl 7. 164. See the discussion in Chapter 5 on neutrality and impartiality and the scholarship referenced there. 165. NMAS, (n 22) cl 7.1. 166. Greg Tillet, e Myths of Mediation (e Centre for Con ict Resolution, Macquarie

University, 1991). 167. Boulle, (n 50) 20 and 28–30. See also Bobette Wolski, ‘Mediator Settlement Strategies: Winning Friends and In uencing People’ (2001) 12(4) Australasian Dispute Resolution Journal 248, 249. 168. Field and Crowe, (n 50). 169. Dorcas Quek Anderson, ‘Mediation Ethics: From eory to Practice, Rachael Field and Jonathan Crowe. Edward Elgar Publishing, 2020’ (2021) 39(2) Con ict Resolution Quarterly 67. Note, however, that one of the world’s leading scholars and commentators on the issue of mediator neutrality, Professor Bernie Mayer, has said: ‘In Mediation Ethics, Rachael Field and Jonathan Crowe deconstruct the foundation of modern mediation ethics and then reconstruct it in a creative and insightful way. ey analyze the problems created by deriving mediation’s ethical framework from a commitment to neutrality and impartiality and argue instead for a focus on empowerment and self-determination. In doing so, they not only provide a much more useful approach to ethical decision making but they also point to a new way to think about the practice of mediation itself. is is an extremely useful, well reasoned, and well presented contribution to the con ict engagement eld’: Field and Crowe, (n 50) Backcover. 170. See, eg, the Legal Profession Board of Tasmania . 171. Martin Daubney, ‘Ethics and the Rule of Law’ (Speech given to the North Queensland Law Association Conference, Cairns, 2 June 2007) 8. 172. See, eg, the Legal Profession Act 2007 (Qld) s 60. 173. NMAS, (n 22) cl 2.1(h). 174. See William J Bennett, e Moral Compass: Stories for a Life’s Journey (Simon & Schuster, 1995); Richard A Zitrin and Carol M Langford, e Moral Compass of the American Lawyer: Truth, Justice, Power, and Greed (Ballantine Books, 1999); John B Owens, ‘Grisham’s Legal Tales: A Moral Compass for the Young Lawyer’ (2000) 48(6) UCLA Law Review 1431; Karen H Rothenberg, ‘Recalibrating the Moral Compass: Expanding inking like a Lawyer into inking like a Leader’ (2009) 40(2) University of Toledo Law Review 411; Jon M Huntsman, Winners Play by the Rules: Keep Your Moral Compass (FTPress, 2010); Philip Pettit, Just Freedom: A Moral Compass for a Complex World (WW Norton & Company, 2014); Joan Marques, Ethical Leadership: Progress with a Moral Compass (Routledge, 2017). 175. Celia Moore and Francesca Gino, ‘Ethically Adri: How Others Pull Our Moral Compass from True North, and How We Can Fix It’ (2013) 33 Research in Organizational Behavior 53. 176. See . 177. Moore and Gino, (n 175). 178. Ibid.

Alli Gerkman and Logan Cornett, Foundations for Practice: e Whole Lawyer and the 179. Character Quotient (IAALS, 2016) . e IAALS works to support alignment of ‘legal education with the needs of an evolving profession’ and to ‘develop solutions to support effective models of legal education’: . 180. Gerkman and Cornett, (n 179). See also Rachel Van Cleave, ‘Who Should be our Moral Compass Now?’, San Francisco Daily Journal (14 October 2015). 181. David Greatbatch and Robert Dingwall, ‘Selective Facilitation: Some Observations on a Strategy Used by Divorce Mediators’ (1989) 23(4) Law and Society Review 613. 182. See, eg, Charles W Morris, ‘e Total-Situation eory of Ethics’ (1927) 37(3) International Journal of Ethics 258; H Richard Niebuhr, e Responsible Self (Harper and Row, 1963); Joseph Fletcher, Situation Ethics (SCM Press Ltd, 1966); Joseph Fletcher, ‘Situation Ethics, Law and Watergate’ (1975) 6(1) Cumberland Law Review 35; Rachael Field, ‘Exploring the Potential of Contextual Ethics in Mediation’ in Francesca Bartlett, Reid Mortensen and Kieran Tranter (eds), Alternative Perspectives on Legal Ethics (Routledge, 2010) ch 9; Rachael Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22(1) Australasian Dispute Resolution Journal 8. See further Field and Crowe, (n 50). 183. Noel Preston, Understanding Ethics (Federation Press, 4th ed, 2014). 184. Ibid. 185. William Simon, e Practice of Justice: A eory of Lawyers’ Ethics (Harvard University Press, 1998) 141; Ruth Fleet urman, ‘Chipping Away at Lawyer Veracity: e ABA’s Turn Toward Situation Ethics in Negotiations’ (1990) (1) Journal of Dispute Resolution 103; Anthony E Cook, ‘Foreword: Towards a Postmodern Ethics of Service’ (1993) 81(7) Georgetown Law Journal 2457. 186. Simon, (n 185) 138. 187. Ibid 10–11. 188. Ibid 110. 189. Ibid 110, 112. 190. See also Field and Crowe, (n 50). 191. Clause 2.2 of the NMAS Practice Standards de nes mediation as: ‘a process that promotes the self-determination of participants’, (n 22) 9. 192. Moffitt and Bordone, (n 45). 193. NMAS, Practice Standards, (n 22) 14. 194. See Field and Crowe, (n 50). 195. In the context of mediation, ibid. 196. Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Con ict Resolution

(Jossey-Bass, 2004). 197. Ibid 290. 198. Ibid x. 199. Ibid. 200. Ibid xi. 201. Boulle, (n 50) 133. 202. Field and Crowe, (n 50). 203. NADRAC, Primary Dispute Resolution in Family Law: A Report to the Attorney General on Part 5 of the Family Law Regulations (1997) 8. 204. Sir Gerald Brennan, ‘Ethics and the Advocate’ (Speech delivered for the Bar Association of Queensland, 3 May 1992).

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Chapter 14 Dispute Resolution and a Positive Professional Identity Chapter contents Introduction Understanding a positive professional identity Conceptualising a positive professional identity based on DR Why a positive professional identity is important Positive professional identity formation through DR Conclusion

14.1 14.6 14.13 14.53 14.75 14.77

Introduction 14.1 is book has acknowledged that the contemporary age of globalisation, neoliberal ideology and market systems has created signi cant challenges for the practice of DR and for DR service delivery in the legal profession, both in Australia and internationally. Practitioners in the various professions associated with DR are striving to manage multiple challenges: global nancial crises, a destructive and destabilising pandemic of international impact, and negative in uences on professional and personal wellbeing across diverse sectors of societies around the world. 14.2 e legal profession is particularly challenged in this environment, especially in Western liberal democracies, to uphold the rule of law, to operate effectively as a business, and to preserve its professional values and standing. ere are, therefore, currently signi cant imperatives for new and improved visions of the DR professions generally, and of the legal profession in particular, and for a reconceptualisation of the nature and scope of DR professional practice.1 ese imperatives, noted throughout

[page 458] this work, arise from a range of sources such as changing market demands and ethical and professional responsibilities, as well as political and systemic developments, for example, in terms of reforms to the civil justice system. 14.3 is nal chapter of the book seeks to synthesise its overall thesis: namely, that DR expertise and practice (both within and outside the context of legal practice, as well as in relation to legal dispute management and transactional work) offer seminal opportunities for responding to contemporary challenges facing society. In particular, the challenges experienced by the legal profession can be addressed by rede ning and reframing the paradigms of law and legal practice through the DR lens. DR knowledge, skills and attitudes are, therefore, essential to the creation of a new paradigm that will support the future viability and sustainability of the legal profession in both domestic and global contexts. is new paradigm will involve new ways of lawyering that are creative, holistic and clientcentred, addressing not only legal, but also non-legal, issues.2 is new approach to lawyering, informed by DR theory and practice, is essential in what is an increasingly interdependent world, where the relational nature of the political, personal and commercial interactions of people serves to highlight the importance of the responsive, cooperative and collaborative focus of the values and process goals of DR articulated in Chapter 5.3 14.4 e elements of DR expertise and practice discussed in this book will undoubtedly constitute core aspects of the necessary recalibration of legal professional practice. is chapter argues, however, that this important project requires more. It demands the protection and advancement of the personal and professional wellbeing of those involved — of lawyers and, as lawyers of the future, of law students. For these reasons, this chapter focuses speci cally on examining how DR practice can support a positive professional identity for lawyers. 14.5 First, the chapter articulates a professional ideology for DR practice, one that works to provide a philosophical foundation for professional endeavours across the DR

[page 459] matrix. Second, scholarship on the comprehensive law movement is used to explore a practical framework for assigning DR practice as part of a positive professional identity for lawyers in particular and also DR practitioners more broadly.4 Next, the issue of why a positive identity is important in sustaining the personal and professional wellbeing of legal practitioners is explored, and links are made to the future viability and sustainability of the profession. e chapter concludes by arguing that the formation of a positive professional identity for lawyers should begin in law school. e focus of the chapter is on lawyers as DR practitioners but also has application to DR practitioners more broadly.

Understanding a positive professional identity 14.6 e paradigmatic changes in legal services delivery that the chapters of this book call for involve a recalibration of how lawyering is perceived, practised and experienced — shiing more fully towards an increasingly expansive, creative, holistic and responsively integrated praxis and away from what continues to be a relatively limited, rights-based and adversarial focus.5 A positive professional identity is an essential element in achieving this shi.6 14.7 Many current practitioners may already claim to possess a professional identity — even if they may have difficulty articulating what this ‘professional identity’ [page 460] exactly entails, and some may in any event not use the term ‘positive’ to describe it.7 e notion of a legal professional identity is bound up with the ‘noble profession’ notion, rst mentioned in Chapter 1, and with the altruistic objective of upholding the rule of law to promote justice in a democratic society.8 Macfarlane’s research has also identi ed that a sense of

legal professional identity derives from the ‘authority and respect that attaches to the formal legal process’,9 from the fairness of the system (if not its outcomes),10 and from the idea of the ‘lawyer in charge’,11 which Douglas explains as ‘lawyers’ sense of an entitlement or “right”, drawn from their education and expertise, to assume authority and exercise autonomy in the decisions made regarding a dispute’.12 14.8 Aspects of the identity described by Douglas and Macfarlane, particularly those embedded in assumptions of ‘power and control in the lawyer–client relationship’,13 are arguably not the positive form of identity that would advance the values and goals of DR practice articulated in Chapter 5. Yet, as Macfarlane has said, they ‘lie in the epistemology of law school and professional legal training’.14 is way of ‘knowing’ lawyering is being disrupted, not only by the new stressors and challenges that the profession has never before encountered, but also by the positive new demands on lawyers — such as the imperative for DR knowledge, skills and attitudes. In this context, a sustainable future for the law can nd strong and supporting roots in a clearly articulated positive professional identity, one that is made more culturally explicit in the legal profession, is taught at law school, and has expertise and practice in DR as one of its de ning factors. 14.9 A professional identity is difficult to de nitively de ne because it is not ‘a static concept’.15 It is rather a ‘constellation of attributes, beliefs, values, motives and experiences’ by which we explain ourselves in our professional lives.16 It helps a professional person understand what it means to be in and of a profession. For lawyers, a professional identity explains what being a lawyer in the world means today. White [page 461] et al identify three key identity elements that make up a ‘professional identity’.17 First is personal identity, which includes factors such as one’s personal history, life experiences, personality, feelings, goals and values. Second is role identity, which comprises professional functions, activities and responsibilities speci c to individual professions. ird is social identity,

which refers to the values and goals to which the profession collectively commits within a societal context. 14.10 Fruehwald states that professional identity is related to, but must also be distinguished from, both legal ethics and professionalism.18 It is a con ation of the two. e rules of professional conduct are the domain of ethics, as discussed in Chapter 13. e ability to behave in a professional manner (including being polite, appropriately attired, conscientious, thorough and timely at work) is the province of professionalism.19 According to Fruehwald, a professional identity, in contrast, ‘is a lawyer’s personal legal values, decision-making process, and self-consciousness in relation to the practices of the legal profession and legal culture’.20 ere is therefore a distinction between the personal and the structural, but also a synthesis of the two. 14.11 Other descriptions of a professional identity, speci cally in the legal context, include:21 ‘certain attitudes and habits of heart and mind that are thought critical to the practice and culture of the profession’;22 a sense of ‘professional self-consciousness and constructive introspection, and an attitude of respect and responsibility to others’;23 a sense of individual agency, internal beliefs and standards;24 contextual relationality and connection with fellow members of the profession;25 [page 462] an understanding of one’s professional role as a lawyer ‘relative to all of the stakeholders in the legal system, including clients, courts, opposing parties and counsel, the rm, and even the legal system itself (or society as a whole)’;26 and ‘the framework that a lawyer uses to make decisions’.27 14.12 When combined with personal identities, a professional identity goes to the heart of who lawyers are. As Coquilette has asserted, ‘it is a

delusion of young inexperienced lawyers to think that they can separate their personal from their professional lives and their personal from their professional morality’.28 Rather, personal and professional authenticity (as well as personal and professional resilience) derive from the interrelationship of our multiple identities, and from having each inform and support the others. ese ideas will become clearer as they are explored and developed further in the sections below.

Conceptualising a positive professional identity based on DR 14.13 Professional identity construction for individuals is a lifelong process of experiential learning, supported (and sometimes disrupted) by professional discourse and interaction.29 Professional identity construction involves continuous development, re ection, realignment and reconstruction, oen in response to contradictory and ambiguous situations and experiences which lead to self-re ection, questioning and identity shaping.30 e following sections explain more comprehensively what a positive professional identity based on DR practice might look like. First, a professional ideology for DR practice in law is discussed — an ideology which offers lawyers a foundational way of positively conceptualising DR legal practice as fundamental to their professional [page 463] identity.31 Second, the comprehensive law movement is explored as providing a range of approaches through which the ideological foundation can be enacted.

A professional ideology for DR practice 14.14 Mills noted in 1943 that every discipline has a ‘professional ideology’.32 e Oxford Dictionary de nes ideology as ‘a system of ideas and ideals’ which forms the basis of theory.33 e Collins English Dictionary

de nes it as ‘a body of ideas that re ects beliefs and interests’ which ‘underlies action’.34 A professional ideology is affected by a range of factors, including ‘purposes and objectives, professional values, and societal beliefs’, so this chapter should certainly be read in conjunction with Chapter 5 where the values and goals of DR, which are also integrated into this discussion, were articulated.35 A professional ideology for DR-focused legal practice that recognises the value of DR expertise can provide a clear sense of meaning and purpose for lawyering consistent with the core values and goals of DR. It can inform and sustain an attitude of professionalism and of expert, skilled and competent practice. It can represent a signi cant aspect of what the legal profession stands for, characterise the broader role of legal practice in society, and epitomise what the profession professes. 14.15 In Chapter 5 Astor and Chinkin’s statement (in the 2002 edition of Dispute Resolution in Australia) was noted as commenting that ‘in theory ADR does not advocate a particular ideology’.36 However, it is possible to see the values and goals of DR as representing an ideology — one that is grounded in democracy and the rule of law and one that acknowledges the signi cance of DR practice in our legal and social systems, as well as the importance of non-adversarial approaches to lawyering. 14.16 ere are a number of ways that a professional ideology for DR practice could be articulated. is chapter combines De Coste’s conceptual framework for professional responsibility with Barber’s articulation of a professional ideology in e Logic and Limits of Trust.37 De Coste’s framework consists of three elements: ‘ delity [page 464] to a particular good’; a ‘public office’; and a requirement of ‘ tness for practice’.38 Into this framework can be integrated the two elements of the ideology of professionalism developed by Barber — ‘technically competent performance and duciary obligation and responsibility’.39 ese elements are dealt with in turn below.

Fidelity to the ‘good’ of dispute resolution 14.17 e rst element of a professional ideology for practitioners of DR is delity to the good of dispute resolution, with the values and goals of DR helping to identify the ‘good’ of DR. In Chapter 5 these values and goals were discussed as being rmly situated within the framework of the rule of law in Australia’s Western liberal democracy — justice, party autonomy and community. Lawyers practising DR work to realise these values across the matrix of processes. e values are an anchor of belief and perspective, and they represent the grounding positive contribution that lawyers as DR practitioners make to society, or in other words, the ‘good’ that they profess. DR values in uence professional behaviour and decision-making, guiding professional judgments as to what is acceptable and what is ethical. e DR process goals articulated in Chapter 5 — procedural and substantive justice, fairness, self-determination and participation, and access to justice — represent the procedural objectives for putting the values into practice. Together the DR values and goals provide the foundations of DR as a societal ‘good’. 14.18 Parties who seek the services of DR practitioners are almost always in a position where they are struggling to manage or resolve their disputes themselves. is is why they need to access DR expertise. ey nd themselves without the necessary knowledge, skills and attitudes to achieve effective dispute resolution, or con ict management, on their own. Being in dispute or experiencing con ict is oen a difficult, stressful and disheartening time for people. rough their delity to the good of DR, DR practitioners not only contribute constructively to society, but they can also achieve ‘positive interpersonal and individual change’ for their clients.40 is positive impact extends to ‘healing, wholeness, harmony and optimal human functioning’.41 14.19 It is difficult to measure or quantify the exact actual bene t of DR practice for societal harmony, for the quality of business and personal relationships, and for the wellbeing of citizens. It is nonetheless the contention of this chapter that practitioners of DR, including lawyers, are contributing to sustaining an inherent public good by putting the values of justice, party autonomy and community into action.

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A public DR ‘office’ 14.20 When DR practice is seen as constituting delity to the good of the values of justice, party autonomy and community it can be considered a ‘public office’. De Coste explains that an ‘office’ is ‘a position of trust and a warrant of authority, which has as its purpose service to others’.42 A public ‘office’ of DR serves to position lawyers, and other DR practitioners and intervenors as well, as custodians and agents of the DR values, thereby contributing to a public good.43 14.21 It could be said that DR practice involves ‘an intrinsic commitment to the public good’ and a disposition ‘characterised by civil responsibility’.44 e process of helping parties to resolve or manage their con icts and disputes has a core purpose of ‘service to others’.45 e public service of DR therefore imposes on lawyers who practise DR a ‘special public responsibility’46 of professional and ethical practice. Lawyers who are DR practitioners can also be considered to be under a ‘warrant of authority’ — usually conferred either from the parties directly or by statute. 14.22 DR practitioners, including lawyers, in ful lling their public office of service to the good of assisting parties in dispute, hold ‘a position of trust’ in relation to those parties. In all DR processes, the parties trust in and rely upon the responsible, professional and ethical exercise of the practitioner’s expertise, and they trust in the competence of the practitioner (see Chapter 13). is responsibility is heightened in private and con dential processes such as mediation and conciliation, which do not have the public, statesanctioned features of accountability that are found in courts and tribunals.47 14.23 Another way of expressing a position of trust in the service of others is through the concept of a duciary relationship. In duciary relationships, ‘the party with the duciary obligation is expected to act in the interests of the other party or in their joint interests. e party with the duciary obligation should not act in his or her self-interest’.48 A duciary

acts in the interests of another person in contexts in which the exercise of a power or discretion will, in a practical sense, affect the interests of [page 466] that other person. e solicitor–client relationship is one of the traditional duciary relationships at law.49 e notion of a duciary relationship provides a higher order justi cation for DR legal practice as a public office, fortifying the foundation on which ethical DR practice and a positive professional identity can rest.

Fitness for practice 14.24 Fitness for practice as part of the framework for a professional ideology of DR includes, but goes beyond, the requirement for technical competence, to incorporate also the ethical orientations discussed in Chapter 13. Technical competence relates to discipline knowledge, skills and attitudes and a commitment to standards of performance in the DR role. It includes notions of expert knowledge, technical ability, and performance of routine professional tasks. Technical competence can be monitored because it is based on a shared knowledge of the required expertise of a profession as articulated, for example, in the Legal Professional Acts and the National Mediator Accreditation System (NMAS) Approval and Practice Standards for mediators. 14.25 Fitness for practice also comprises being free from impairment and includes professional conduct and behaviour. A person who is suited for DR practice should be a t and proper person who is committed to the values of DR, is able to consistently demonstrate conduct and behaviour that is appropriately ethical and professional, and has the requisite skills and knowledge base to practise at an appropriate standard.

The comprehensive law movement: putting the ideology for a positive professional identity for lawyers through DR into practice 14.26 e comprehensive law movement provides a way of thinking about the practical enactment of the professional ideology of DR, particularly in relation to the practice of DR by legal professionals. Daicoff is one of the leading US legal academics who writes about and advocates for the comprehensive law movement, and she has contributed a signi cant body of scholarship to the eld.50 14.27 e two key foci of the comprehensive law movement which provide a way of enacting the professional ideology of DR are rst, ‘a desire to maximize the emotional, psychological, and relational well-being of the individuals and communities [page 467] involved in each legal matter’; and second, ‘a focus on more than just strict legal rights, responsibilities, duties, obligations and entitlements’.51 In other words, lawyers practising in ways consistent with the comprehensive law framework will have a concern to optimise human wellbeing,52 and to provide holistic advocacy and advice which addresses extra-legal as well as legal factors.53 ese approaches have an important synergy with the values and goals of DR supporting the consideration of ‘rights-plus’ factors,54 as well as interpersonal relations, needs, morals, values and personal and community wellbeing. 14.28 Concrete approaches to optimising human wellbeing and achieving ‘rights-plus’ outcomes through legal services (and particularly through DR services) are articulated in the comprehensive law movement theory as nine ‘vectors’.55 e vectors involve ‘an explicitly comprehensive, integrated, humanistic, interdisciplinary, restorative and oen therapeutic approach to law and lawyering’56 and include: collaborative law,57 creative problemsolving,58 holistic justice, preventative law,59 problem-solving courts,

procedural justice,60 restorative justice, therapeutic jurisprudence and transformative mediation.61 ese nine vectors are considered brie y in turn to illustrate the professional DR ideology in action, revealing how practising DR in a holistic and humane way upholds the values of DR articulated in Chapter 5, and works for the public good of DR and law. 62 [page 468]

Collaborative law 14.29 Collaborative law is one of the most important vectors of the comprehensive law movement and has been discussed in some detail earlier, particularly in Chapter 4. at discussion is not revisited here but it is noted that the opportunity that collaborative practice offers for holistic, humane, multidisciplinary practice, as well as the opportunity for mutual and creative outcomes, is signi cant. erefore, it has much potential in contributing to a positive professional identity for lawyers through a DR lens.

Creative problem-solving 14.30 Creative problem-solving, as the name suggests, involves taking an imaginative approach to legal problem-solving.63 As the information on the Creative Problem-Solving area of concentration at the California Western School of Law states: e Creative Problem Solving area of concentration is designed to help you acquire the needed skills that demand broader and deeper understanding of people, their problems, and the consequences of confronting those problems only in narrow, legalistic ways. Lawyers of the future need training on how to think more broadly, exibly, relationally, and preventively.64

14.31 Creative problem-solving ‘takes into account a wide variety of nonlegal issues and concerns and then seeks creative, win-win solutions to otherwise win-lose scenarios’.65 It is about truly serving the client’s best interests and good lawyering. Creative problem-solving is central to what

DR lawyers do and it offers critical opportunities to enact the positive professional framework as part of a DR professional identity.

Holistic justice 14.32 Holistic justice, or holistic lawyering, is related to many other vectors in the comprehensive law movement such as creative problemsolving, restorative justice, therapeutic jurisprudence and collaborative law.66 It encompasses many forms of diverse [page 469] practice and is therefore hard to de ne. However, to paraphrase the Holistic Lawyers Association website, holistic lawyers are interested in moving the practice of law more towards a healing profession which is less based on a divisive adversarial model, embracing a holistic, mindful approach which considers legal ‘problems’ as springboards for personal transformation with positive impact on families, communities, and society more broadly.67 Holistic lawyers also identify with the role of peacemaker, and see the resolution or management of legal problems ‘as an opportunity for growth for both the client and the lawyer’.68 Holistic lawyers are oen driven by spirituality.69

Preventative law 14.33 Preventative lawyering (PL) is future focused and seeks to minimise legal difficulties and avoid the risk of future disputes and litigation.70 PL involves being proactive in putting in place steps to prevent legal problems. PL approaches can be contrasted with standard legal practices which involve reacting to a client’s problem once it has arisen. PL involves periodic legal ‘check-ups’ to identify ‘legal so spots’ or potential legal difficulties, so as to be able to strategise to avoid them.71 PL approaches not only encourage lawyers to avoid disputes and minimise the risks of litigation but also to seek ways of generating or enhancing legal

opportunities, thereby improving clients’ positions and furthering their interests in holistic ways. 14.34 Brown is regarded as the father of PL and his book Preventive Law published in 1950, and his article ‘e Law Office: A Preventive Laboratory’ published in 1956, are considered PL’s foundation works.72 According to Brown and Dauer, PL’s objective is to promote client-centred methods in order to promote lawyer and client collaborative engagement around risk assessment, planning and working proactively to avoid future legal problems.73 14.35 Analogies are oen drawn between PL and preventative medicine. It is readily accepted that preventative medicine is cost-efficient, especially when contrasted with [page 470] the costs of providing subsequent medical treatment. e same might also be said for PL in relation to legal maladies. e prevention of a legal dispute is almost certainly less costly (to individuals and the state) than having it processed through the legal system.74 Perhaps even more importantly, PL has the potential to reduce the emotional distress and anxiety that can accompany engagement with the law. 14.36 e methods used by preventative lawyers include working collaboratively in identifying potential legal difficulties, developing ways to achieve a client’s long-term goals and minimising the risk of future legal problems.75 For this reason, PL is an important vector of the comprehensive law movement with its focus on humanistic, holistic, interpersonal and collaborative approaches to lawyering.76 According to Dauer, the jurisprudential signi cance of PL is that the lawyer is focused on the needs and interests of their client and less focused on ‘rights’ per se.77 is approach emphasises the ‘rights-plus’ principle of the comprehensive law movement identi ed above.78 14.37 Stolle argues that PL and therapeutic jurisprudence (TJ) (discussed below) potentially work well together because lawyers can practise PL in

order to ensure therapeutic outcomes for clients.79 Stolle proposes the integration of TJ and PL because ‘a preventive lawyer should be sensitive to the therapeutic and psychological consequences of (legal) interactions’.80 Daicoff also argues that TJ and PL complement each other, ‘ lling potential gaps in each approach’81 in particular with PL providing a set of speci c techniques and methods to be used in achieving the goals of TJ.82 PL prioritises human relationships and promotes sensitivity to human needs and nature. Its focus on the pursuit of ‘rights-plus’ and wellbeing makes possible a positive professional identity for lawyers in their DR roles.

Problem-solving courts 14.38 According to Winick, the courts are increasingly addressing problems and issues which are social and psychological in nature.83 ese are cases that ‘require the courts to not only resolve the disputed issues of fact, but also to attempt to solve a variety of human problems that are responsible for bringing the case to court’.84 However, [page 471] courts in applying traditional adversarial processes oen nd they are restricted by legal normative paradigms such as rigid procedures, limited sanctions and remedies and a lack of adequate coordination and information-sharing within the justice system.85 14.39 A response to this predicament has been for judges to adapt conventional litigation procedures found in traditional court systems to develop new styles of judging that attempt to understand and address the underlying issues of the presenting problem and deal with them more effectively.86 ese new approaches are known as problem-solving courts or problem-solving justice.87 e practice of these courts is grounded in philosophies of restorative justice and TJ (discussed further below). ese approaches ‘share a common commitment to “humanising” the justice processes’.88 Problem-solving courts oen operate in criminal law contexts.

14.40 According to Sammon, problem-solving courts have several distinctive features: rst, they are outcome-based rather than focused on traditional court approaches such as formal procedures and precedents; second, they encourage active interactions between judges and litigants; third, they are not limited to restrictive sanctions or remedies prescribed by the law; and fourth, they are creative and innovative, in particular in terms of accessing and utilising community and other social services as alternative sanctions.89 Problem-solving courts not only impose sentences and sanctions, but are also actively involved in monitoring and ensuring compliance, seeking to respond to complex social problems that cannot be effectively dealt with by the standardised and mechanistic focus of legal norms and procedures alone.90 14.41 Daicoff sees problem-solving courts as one of the most exciting vectors of the comprehensive law movement.91 is is because they involve judges engaging in problem-solving approaches and acting more in a coaching, advisory role than as strict arbiters and decision-makers.92 Judges in problem-solving courts can be therapeutic agents,93 contributing to the wellbeing of people in disputes coming before them.94 14.42 Problem-solving courts demonstrate that new legal approaches can better address some of the problems that come before traditional court systems,95 giving [page 472] effect to consensual, collaborative and community-based procedures. Problem-solving courts also embrace creative and holistic problem-solving approaches.96 While problem-solving courts began as specialised criminal courts, such as drug treatment courts, domestic violence courts and sex offence courts, they have expanded to include community and housing courts. For example, the Magistrates’ Court of Victoria has a specialised Drug Court division providing for the sentencing and supervision of offenders with drug or alcohol dependencies who have committed offences under the in uence of either substance and require ongoing treatment.97

Problem-solving courts are an example of how a positive professional identity based on DR is possible even in adversarial contexts such as criminal litigation.

Procedural justice 14.43 Procedural justice was discussed in Chapter 5 as one of the process goals of the DR value of justice. For this reason, it is not considered further here. However, Daicoff ’s statement is notable: Procedural justice alone is not a way of practising law or administering justice, but its insights have weighty consequences for lawyers, clients, and judges. It applies to and can inform all of the approaches, traditional or comprehensive, to legal practice and the administration of laws.98

14.44 Procedural justice, along with substantive justice and fairness, make up the justice value of DR and this value is central to a positive professional identity for lawyers focused on DR.

Restorative justice 14.45 Restorative justice (RJ) is a theory about how practice in the criminal justice system can be improved, and there is now a signi cant body of scholarship devoted [page 473] to it.99 RJ is concerned with repairing the harm caused by crime by bringing together those who perpetrate criminal offences and those who are impacted by criminal acts (victims, offenders and community members). Using DR principles and procedures, RJ practice addresses how the damage caused by crime to individuals and society can be repaired. RJ has a close relationship with facilitative DR processes in civil contexts. It is an important vector of the comprehensive law movement, with the potential to contribute to a positive professional identity for lawyers centred on DR.

Therapeutic jurisprudence 14.46 Wexler and Winnick rst conceptualised therapeutic jurisprudence (TJ) in the late 1980s as an approach to studying the consequences of legal practice in mental health contexts.100 ey argued that the ‘law, legal personnel, and legal procedures have psychological effects upon the individuals and groups involved in each legal matter’.101 ey suggested using a ‘therapeutic lens’ to understand these therapeutic and antitherapeutic effects.102 TJ is now one of the most well-established vectors of the comprehensive law movement, providing a way to see the law itself (in the form of legal rules, legal procedures and the roles of legal actors) as a potential therapeutic agent.103 14.47 TJ has gained strong support from law, psychology and social science scholars.104 Freiberg has even suggested that TJ, along with other non-adversarial approaches to justice, has the potential to transform the justice system.105 Indeed, TJ is increasingly being applied in a range of legal contexts such as criminal law, family law, juvenile law, [page 474] discrimination law, health law, evidence law, tort law, contract and commercial law, workers’ compensation law, probate law and the legal profession itself.106 14.48 e overall aim of TJ is to seek ways to reduce the law’s antitherapeutic consequences and to enhance its therapeutic potential, while maintaining due process and other justice values.107 rough identi cation of the harmful elements of law that cause and exacerbate anti-therapeutic outcomes, more creative and effective legal procedures and practices can be generated and implemented.108 TJ requires lawyers to optimise the therapeutic effects of the law and the impacts on those who come into contact with the law in order to reduce anxiety, distress, depression and anger. TJ’s emphasis on psychological wellbeing, human functioning, relationships, values and non-adversarial procedures means that it is a constructive way to enact the values and goals of DR.109 TJ’s agenda

therefore supports a positive professional identity for lawyers grounded in DR.

Transformative mediation 14.49 e transformative model of mediation, discussed in Chapter 8, was developed by Bush and Folger.110 ey de ne transformative mediation as a process: … in which a third party works with the parties in con ict to help them change the quality of their con ict interaction from negative and destructive to positive and constructive, as they explore and discuss issues and possibilities for resolution. e mediator’s role is to help the parties make positive interactional shis (empowerment and recognition shis) by supporting the exercise of their capacities for strength and responsiveness, through their deliberation, decision-making, communication, perspective taking, and other party activities.111

14.50 Transformative mediation is a form of therapeutic or reconciliation mediation that focuses on empowering parties to recognise each other’s con ict perspectives, on transforming the way parties deal with their dispute, and on transforming how parties manage con ict.112 Transformative mediation’s therapeutic orientation ensures [page 475] that problem-solving is only one of its process goals, with its central aim being the facilitation of ‘empowerment’ and ‘recognition’ shis for the parties. A transformative mediator creates a negotiation environment in which the parties are each supported in experiencing a greater sense of ‘selfworth, self-determination, and autonomy’.113 14.51 Lawyers have yet to embrace the transformative model of mediation, being far more comfortable with the overtly problem-solving and bargaining approaches of the facilitative and evaluative styles. Nevertheless, transformative mediation highlights the potential of mediation as a DR system that can enable a positive professional identity for lawyers focused on DR.

Summary 14.52 According to Daicoff, the comprehensive law movement ‘ultimately provides a new model for lawyering and con ict resolution’.114 In order to practise this model, lawyers need core DR knowledge, skills and attitudes, such as ‘people skills, basic and advanced empathy, active listening, openended questioning, basic psychological sophistication, an understanding of power struggles, con ict dynamics, interpersonal interactions, boundaries and self-awareness’.115 A positive professional identity focused on the DR role of lawyers is an important element of the required new ways of being a lawyer in the 21st century. e next section articulates why a positive professional identity is so important to the future viability and sustainability of the profession by linking a DR professional identity through positive psychology to the professional wellbeing and ourishing of lawyers. ese bene ts are also pertinent to non-legal DR practitioners.

Why a positive professional identity is important 14.53 e concept of a professional identity suggested in this chapter integrates the personal (values, morals, perceptions, intuition) with the professional (concrete roles, decisions, ethics) in the broader context of a professional community. A lawyer with a positive professional identity will have a sense of congruence between their personal worldview and their sense of self within the profession; they will have a personal de nition of lawyering, be able to internalise responsibility for professional growth and self-evaluation, and have a developed awareness of individual t within the broader [page 476] system of their professional context.116 In other words, a legal professional identity integrates experience with theory, connecting ‘what professionals do’ with ‘who they are’.117 14.54

Pratt et al note the expedient nature of a focus on professional

identity: Given the historical and potentially increasing importance of professionals in all types of organizations, and given the centrality of identity in how individuals make sense of and ‘enact’ their environments, addressing issues of professional identity construction is timely.118

14.55 is section considers why developing a positive professional identity (particularly one centred on DR expertise and practice) is important for the future sustainability of the legal profession. ere are two main points to consider. e rst, from the perspective of the individuals who make up the legal profession, is that a grounded sense of professional identity will support them to be agile, resilient, responsive and re ective professionals; it will assist them to keep up with the pace of the new global context and its demands; and, as is explained further below, it will help them to ourish in their professional role. Second, from the perspective of the profession as a whole, if, as a community of practice, it is to cope with the fast pace of progress, with challenge and with change, then it needs to consist of a body of practitioners who feel they belong to an important professional endeavour, who are motivated and committed, and who experience congruence with the values of their peers and are comfortable with the paradigms and procedures of their practice. A clearly articulated professional identity can help to unify the profession through shared values, goals and purposes by supporting professional and personal empowerment.119 [page 477] 14.56 e discipline of positive psychology assists with understanding how a professional identity for lawyers, particularly in their capacity as DR practitioners, can achieve these positive impacts for individual practitioners and the profession at large.120 Positive psychology is a relatively recent addition to the broader discipline of psychology and it posits that psychology should not focus its concern simply on what has gone psychologically wrong with people; rather, the discipline should work to promote what goes psychologically right with people.121 As Seligman has

said: ‘for the last half century psychology has been consumed with a single topic only — mental illness — and has done fairly well with it’.122 at is, ‘psychology is not just the study of weakness and damage; it is also the study of strength and virtue. Treatment is not just xing what is broken; it is nurturing what is best within us’.123 14.57 Positive psychology is preventative and future focused. It assists people to create their own conditions for increased psychological wellbeing, and to harness their strengths and virtues so as to nurture what is best within themselves. It also provides guidance for structural reforms in professions, institutions and society at large. A focus on DR expertise and practice as part of a well-articulated notion of professional identity is important in promoting strength and virtue and what is best within lawyers, and in ensuring that our professional endeavours are authentic and have efficacy. Positive psychology can help promote an understanding of how a positive professional identity focused on DR can help lawyers to ourish.

Professional identity and Self-Determination Theory (SDT) 14.58 One of the important, complex meta-theories of positive psychology is Self-Determination eory (SDT).124 SDT provides a way of thinking about the importance of professional identity to the future of lawyering because it helps explain why a positive [page 478] identity can support lawyers to ourish and thrive. SDT is becoming an increasingly in uential theory beyond its home disciplines of education125 and psychology.126 e theory particularly supports a deeper understanding of self-motivation, self-determination and wellbeing.127 SDT is relevant to explaining how a professional identity and psychological wellbeing are linked. 14.59

Field, Duffy and Huggins provide this useful summary of SDT:

SDT represents an ‘organismic dialectical approach’ to explaining human motivation. Human beings are active organisms that are inherently oriented towards growth, adaptation, and development, yet vulnerable to amotivation and an absence of psychological well-being in unsupportive environments. More speci cally, SDT is comprised of ve mini-theories with the mini-theories most relevant to this article being Basic Psychological Needs eory (BPNT) and Organismic Integration eory. BPNT, which is a ‘unifying principle within SDT’, encompasses three basic psychological needs — autonomy, competence, and relatedness. All three basic psychological needs are contextual and environmental in nature. Autonomy refers to the subjective experience that an individual’s behaviour is self-governed, volitional, and congruent with their true beliefs, values, and interests. Competence refers to an individual’s sense of ability, capability, and mastery in relation to tasks and challenges. Relatedness refers to the experience of meaningful and reciprocal connections with key others. Of these three basic psychological needs, autonomy is the ‘master need’. As Krieger noted: ‘We may also consider autonomy the most important of the three basic psychological needs, since people must have a well-de ned sense of self, feel intimately connected to themselves,

[page 479] and express their core values in daily life in order to function in a consistent way and with a sense of security and grounding’.128

14.60 Martin Seligman’s ve measurable elements of wellbeing known as PERMA (discussed below) can help to make sense of this complex theory.129 is framework supports the conclusion that a professional identity centred on DR practice is positive for lawyer wellbeing and therefore is important to the future of the profession. 14.61 A disclaimer is necessary before proceeding. Positive psychology should not be confused with self-help, ‘positive thinking’ or the self-esteem movement.130 It is not about ‘making people happy all the time’ or ‘pure happiness and unbridled optimism’.131 It is an empirically grounded, serious and scholarly branch of the psychology discipline, with a scholarly refereed journal devoted to it — e Journal of Positive Psychology132 — and an international professional association — the International Positive Psychology Association (IPPA) — made up of members representing at least 80 different countries.133

PERMA, DR practice and professional identity 14.62 e PERMA framework was articulated in Seligman’s in uential book Flourish134 published in 2011. It resonates with the complex theory of SDT and makes [page 480] it accessible. e letters of PERMA each stand for one of the ve essential elements required for wellbeing: Positive emotion, Engagement, positive Relationships, Meaning and Accomplishment. is framework ‘provides researchers, practitioners and lay people with a clear “end point” of wellbeing’ (for example, life satisfaction has been found to be signi cantly correlated with positive emotion, relationships and accomplishment).135 ere have been some criticisms of PERMA; for example, its limited focus ‘on well-being outcomes rather than the inputs and processes that lead to well-being’, and for failing to ‘inform people of the processes involved in cultivating well-being’.136 Nevertheless, of the existing positive psychology frameworks, it is one that can be used effectively for the purpose of explaining why a positive professional identity built on DR practice can be said to support wellbeing and a positive professional identity for lawyers. e elements of PERMA are discussed next in turn.

Positive emotion (P) 14.63 e rst letter of PERMA stands for positive emotion which refers to hedonic feelings of happiness.137 Emotion is an important concept in psychology at large, with a signi cant body of scholarship devoted to it.138 Positive emotion has received particular attention in the positive psychology eld.139 Huppert and So, for example, have found that positive emotion is central to ourishing,140 a nding that is supported by other research.141 14.64 Fredrickson’s ‘Broaden and Build eory of Positive Emotions’ provides insights into why positive emotion is linked to wellbeing.142 Fredrickson has found that positive emotions work to broaden attention,

broaden repertoires of thought, broaden habitual action tendencies and promote social interactions. Experiencing positive emotions has been found to beget and cultivate further experiences of positive emotion in an ‘upward spiral’.143 Further, positive emotions have also been found to [page 481] increase wellbeing because they in uence social, cognitive and physical functioning positively.144 14.65 Positive emotions include peace, gratitude, satisfaction, pleasure, inspiration, hope, curiosity and love, as well as joy, interest and contentment.145 A positive professional identity focused on DR practice has signi cant potential to assist lawyers in experiencing positive emotion because it harnesses the identity of the legal profession as a ‘helping profession’, allowing lawyers engaged in DR a signi cant level of personal and professional satisfaction linked to productive problem-solving, the provision of holistic legal services and the enactment of an ethic of care. DR practice can also provide satisfaction, pleasure and ful lment as a result of assisting disputing parties to manage or resolve their con icts and disputes. Further, the practice of DR can promote positive emotions whether, at one end of the spectrum, lawyers are using DR expertise to help people to nd mutually agreeable outcomes they can live with or, at the other end, they are helping them navigate the legal system to achieve nal and enforceable outcomes of their issues. DR practice and advocacy could even be said to make possible feelings of inspiration and hope for the practice of law. ere is also potential for DR practice to inculcate a sense of gratitude in terms of having a ful lling legal career with positive purpose and impact.

Engagement (E) 14.66 A sense of engagement is also known to support wellbeing. ere are many de nitions of engagement including psychological interest, behavioural involvement and concentration/focus.146 Engagement is said to refer to ‘psychological connection to activities (for example, feeling

absorbed, interested and engaged in life)’.147 Engagement creates strong feelings of being involved and alert. Engaging work is absorbing and ful lling. Professional engagement is sometimes difficult to achieve — especially if the work context is mundane or repetitive (as much day-to-day legal work can be). 14.67 In positive psychology theory, a true and deep sense of engagement is referred to as ‘ ow’. Flow is associated with peak performance — Jackson, for example, has written of how ‘ ow’ can be harnessed to optimise the performance of elite athletes.148 Lawyers too can harness the notion of engagement, or ow, to optimise their performance and success. A positive professional identity centred on DR practice as described in this book offers an important context for nurturing the interest and engagement of lawyers. e work of assisting clients with the management, resolution and prevention [page 482] of con ict and disputes is relational, purposeful and positive, making real the potential of interest and engagement.

Positive Relationships (R) 14.68 Experiencing positive relationships is critical to our wellbeing because humans are essentially social beings. Positive relationships are said to include ‘feeling socially integrated, cared about and supported by others, and satis ed with one’s social connections’.149 Relationships are not only the domain of the personal. Relationships in our working life also matter, particularly because in professions such as the law, where long hours are oen involved, much time is spent in the company of colleagues and clients. 14.69 Positive relationships are ones that are caring, valuable, worthwhile and mutually rewarding.150 Positive relationships offer security and reassurance of support in difficult times, as well as shared joy in good times, providing a sense of purpose and meaning in life.151 ere is a growing body

of evidence nding that positive relationships are associated with many other bene ts such as affirmative emotions, work success and improved health.152 14.70 Positive relationships that are strong and healthy require a signi cant amount of effort and hard work to develop and maintain. However, an investment of time and energy in positive relationships will work to optimise wellbeing. A positive professional identity centred on DR expertise and practice has signi cant potential to support affirming relationships, and therefore to support lawyer wellbeing and success. Lawyers with DR knowledge, skills and attitudes will be better equipped to develop and maintain positive relationships in both their personal and professional lives. Further, the helping nature of DR work and the engagement it affords with assisting people to resolve or manage their matters also offer opportunities to achieve positive relationships with clients.

Meaning (M) 14.71 Meaning refers to ‘believing that one’s life is valuable and feeling connected to something greater than oneself ’.153 Seligman refers to serving interests beyond individual concerns as creating a ‘Meaningful Life’.154 Having a sense of purpose and [page 483] meaning in life contributes to wellbeing. Meaning and purpose are relevant to both our professional and personal lives, and meaning is positively associated with motivation. 14.72 Another way of expressing meaning is as altruism. Altruism can be de ned as behaviour that is unsel sh and involves concern for the welfare of others.155 Menkel-Meadow has argued that the legal profession can ‘work toward making the world a more caring and safer place’ by harnessing notions of altruism and care in the way we practise.156 e legal profession’s altruistic commitment to the rule of law in a democratic society offers an

opportunity for lawyers to nd signi cant meaning in their professional role. Adding DR to this extends the sense of purpose possible in seeing legal work as contributing not only to creating a just and orderly society, but also to supporting the wellbeing of assisted clients. For this reason, a positive professional identity grounded in DR legal practice is possible and important.

Accomplishment (A) 14.73 Accomplishment involves ‘making progress toward goals, feeling capable to do daily activities, and having a sense of achievement’.157 Accomplishment supports a sense of competence and strengthens self-belief. e practice of DR is one in which feelings of accomplishment are readily experienced. Supporting clients to resolve and manage their matters, contributing to the preservation of relationships and assisting constructive communication for clients into the future are all ways that lawyers can experience accomplishment through DR practice, and support a positive professional identity for lawyers centred on DR.

Summary 14.74 is brief consideration of the pillars of PERMA demonstrates why a professional identity built on DR practice and expertise is positive for lawyer wellbeing and therefore important to the profession’s future. e nal section of the chapter argues that the inculcation of a positive professional identity for lawyers needs to begin at law school.

Positive professional identity formation through DR 14.75 In Chapter 1, the articulation of the reshold Learning Outcomes for Law (the TLOs) in 2010 was noted as an important development in legal education, informing the design of the content and pedagogy of contemporary Australian law degrees. Signi cantly, DR knowledge, skills and attitudes can be effectively harnessed to teach and assess each of the TLOs (knowledge, ethics and professional

[page 484] responsibility, thinking skills, legal research, communication and collaboration skills, and self-management skills). In the context of the present chapter, the teaching of DR at law school can particularly be seen as supporting law students in developing self-management skills by helping with the formation of a positive professional identity.158 14.76 As was noted above, the nature of a professional identity is complex,159 incorporating how a professional person de nes themselves in their professional role, and impacted by the nature of the profession to which they belong and its place in society.160 Law school is an important site for new law students to begin the process of professional identity formation, offering them a safe place to explore what sort of lawyer they want to become and to conceptualise how they will live the life of a lawyer in their future. e process of engaging students with developing a positive professional identity through teaching DR is a strategy all law schools are encouraged to consider and adopt.

Conclusion 14.77 is nal chapter of the book considered DR practice through the lens of a positive professional identity.161 A positive professional identity is an important cornerstone for the ongoing efficacy and maintenance of high standards in contemporary DR practice, particularly in legal contexts. A positive professional identity will support not only the professional success and wellbeing of DR and legal practitioners but also their personal success and wellbeing. 14.78 Rhode has said that ‘it makes sense to view professionalism not as a xed ideal, but as an ongoing struggle’.162 It is exciting that DR, in its many iterations, offers a way to see this struggle achieve a new paradigm of legal practice, one in which DR is a fully integrated and valued element of the day-to-day reality of lawyering, and the dominant approach to responding to the rigours and responsibilities of the practice of law. It

[page 485] could be said that the legal profession is facing a moment of truth.163 Lawyers must reframe their identity, and they must respond to the serious obligation that results from the authority and power inherent in their role.164 e overall argument of this chapter is that the necessary paradigmatic shi for the legal profession will not be achievable in the 21st century domestic and global contexts, which are overshadowed by signi cant concerns about employment security, psychological distress and signi cant attrition rates, unless lawyers feel positive and purposeful about their work and their contribution to society. While the focus of the chapter has been on a positive professional identity for lawyers as DR practitioners, the principles and approaches discussed also apply positively to practitioners of DR more broadly. 1.

See generally Charles Sampford, Sophie Blencowe, Suzanne Condlln, Educating Lawyers for a Less Adversarial System (Federation Press, 1999); Caroline Maughan and Julian Webb, Lawyering Skills and the Legal Process (Cambridge University Press, 2nd ed, 2005); Ainslie Lamb and John Littrich, Lawyers in Australia (Federation Press, 2nd ed, 2011). See also, eg, Susan Daicoff, ‘e Future of the Legal Profession’ (2011) 37(1) Monash University Law Review 7; Leah WJ Teague, ‘Training Lawyers for Leadership: Vitally Important Mission for the Future Success (and Maybe Survival) of the Legal Profession and Our Democracy’ (2018) 58(3) Santa Clara Law Review 633; Vicki Waye, Martie-Louise Verreynne and Jane Knowler, ‘Innovation in the Australian Legal Profession’ (2018) 25(2) International Journal of the Legal Profession 213; Mark Fenwick and Erik PM Vermeulen, ‘e Lawyer of the Future as “Transaction Engineer”: Digital Technologies and the Disruption of the Legal Profession’ in Marcelo Corrales, Mark Fenwick and Helena Haapio (eds), Legal Tech, Smart Contracts and Blockchain (Springer, 2019) 253–72; Dan Hunter, ‘e Death of the Legal Profession and the Future of Law’ (2020) 43(4) UNSW Law Journal 1199.

2.

See, eg, Michael King et al, Non-Adversarial Justice (Federation Press, 2014) 10–11. See also Michael King, Arie Freiberg and Greg Reinhardt, ‘Non-Adversarial Justice: Introduction’ (2011) 37(1) Monash University Law Review 1, 1. See further Susan Daicoff, ‘Growing Pains: e Integration vs Specialization Question for erapeutic Jurisprudence and Other Comprehensive Law Approaches’ (2008) 30(2) omas Jefferson Law Review 551, 554.

3.

To recap, those values and goals have been identi ed as: justice (with process goals of substantive justice, procedural justice and impartiality); party autonomy (with process

goals of party self-determination and participation); and community (with the process goal of access to justice). 4.

Susan Daicoff, ‘Law as a Healing Profession: e “Comprehensive Law Movement”’ (2006) 6(1) Pepperdine Dispute Resolution Journal 1; Susan Daicoff, ‘e Comprehensive Law Movement: An Emerging Approach to Legal Problems’ in Peter Wahlgren (ed), Scandinavian Studies in Law Volume 49: A Proactive Approach (Scandinavian Institute of Law, 2006) 109; Susan Daicoff, ‘Comprehensive Law: Transformative Responses by the Legal Profession’ in Candice C Carter (ed), Con ict Transformation and Peace Education: Transformations Across Disciplines (Palgrave MacMillan, 2010); Daicoff, ‘e Future of the Legal Profession’, (n 1).

5.

See also Julie Macfarlane, e New Lawyer: How Settlement is Transforming the Practice of Law (University of British Columbia Press, 2nd ed, 2017) ch 1.

6.

e literature on professional identity is expansive. For a small sample, see, eg, Arnold Epstein, Ethos and Identity (Tavistock, 1978); K Ramsey McGowen and Lorraine E Hart, ‘Still Different Aer All ese Years: Gender Differences in Professional Identity Formation’ (1990) 21(2) Professional Psychology: Research and Practice 118; Anthony Giddens, Modernity and Self Identity (Stanford University Press, 1991); Etienne Wenger, Communities of Practice: Learning, Meaning and Identity (Cambridge University Press, 1998); Clive Chappell et al, Reconstructing the Lifelong Learner: Pedagogy and Identity in Individual, Social and Organisational Change (Routledge Falmer, 2003); Hilary Sommerlad, ‘Researching and eorizing the Processes of Professional Identity Formation’ (2007) 34(2) Journal of Law and Society 190; Steph Lawler, Identity: Sociological Perspectives (Polity Press, 2008); Anthony Elliot and Paul du Gay, Identity in Question (Sage, 2009); So a Nyström, ‘e Dynamics of Professional Identity Formation: Graduates’ Transitions from Higher Education to Working Life’ (2009) 2(1) Vocations and Learning 1; Muriel J Bebeau and Verna E Monson, ‘Professional Identity Formation and Transformation Across the Life Span’ in Learning Trajectories, Innovation and Identity for Professional Development (Springer, 2012) 135–62; Susan L Brooks, ‘Fostering Wholehearted Lawyers: Practical Guidance for Supporting Law Students’ Professional Identity Formation’ (2018) 14(2) University of St omas Law Journal 412; Sylvia R Cruess, Richard L Cruess and Yvonne Steinert, ‘Supporting the Development of a Professional Identity: General Principles’ (2019) 41(6) Medical Teacher 641; Geoffrey V Stetson et al, ‘Professional Identity Formation in Disorienting Times’ (2020) Medical Education (online); Geoffrey V Stetson and Gurpreet Dhaliwal, ‘Using a Time Out: Reimagining Professional Identity Formation Aer the Pandemic’ (2020) Medical Education (online); Ardi Findyartini et al, ‘Exploring Medical Students’ Professional Identity Formation through Written Re ections During the COVID-19 Pandemic’ (2020) 9(S1) Journal of Public Health Research (online).

7.

See, eg, Rachel Spearing and Rachael Field, ‘Well-Being and a Positive Professional Identity in the Legal Profession: A Snapshot of the UK Bar’ in Caroline Strevens and

Rachael Field (eds), Educating for Well-Being: Positive Professional Identities and Practice (Routledge, 2019) 42–57. 8.

Ibid. See further discussion in Chapter 1.

9.

Macfarlane, (n 5) 54.

10.

Ibid 55.

11.

Ibid 59–60.

12.

Kathy Douglas, ‘e Evolution of Lawyers’ Professional Identity: e Contribution of ADR in Legal Education’ (2013) 18(2) Deakin Law Review 315, 332.

13.

Macfarlane, (n 5) 60.

14.

Ibid 60.

15.

Kath Hall, Molly Townes O’Brien and Stephen Tang, ‘Developing a Professional Identity in Law School: A View from Australia’ (2010) 4(1) Phoenix Law Review 19, 30.

16.

Herminia Ibarra, ‘Provisional Selves: Experimenting with Image and Identity in Professional Adaptation’ (1999) 44(4) Administrative Science Quarterly 764. See also Franziska Trede, Rob Macklin, and Donna Bridges, ‘Professional Identity Development: A Review of the Higher Education Literature’ (2012) 37(3) Studies in Higher Education 365.

17.

Mary T White et al, ‘Perceptions of Factors Contributing to Professional Identity Development and Specialty Choice: A Survey of ird- and Fourth-Year Medical Students’ (2011) 17(1) Annals of Behavioral Science and Medical Education 18, 18. See also Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2nd ed, 2019).

18.

E Scott Fruehwald, ‘Developing Law Students’ Professional Identities’ (2015) 37(1) University of La Verne Law Review 1. See also Josephine Palermo and Adrian Evans, ‘Almost ere: Empirical Insights into Clinical Method and Ethics Courses in Climbing the Hill Towards Lawyers’ Professionalism’ (2008) 17(1) Griffith Law Review 252.

19.

Fruehwald, (n 18) 1.

20.

Ibid 1–2.

21.

Ibid 2.

22.

Barry Sullivan and Ellen S Podgor, ‘Respect, Responsibility, and the Virtue of Introspection: An Essay on Professionalism in the Law School Environment’ (2001) 15(1) Notre Dame Journal of Law, Ethics and Public Policy 117, 118.

23.

Ibid 119. See also David omson, Skills and Values: Lawyering Process — Legal Writing and Advocacy (LexisNexis Butterworths, 2013).

24.

Benjamin V Madison III, ‘e Emperor has No Clothes but Does Anyone Really Care? How Law Schools are Failing to Develop Students’ Professional Identities and Practical

Reasoning’ (2014) 17(2) Regent University Law Review 6; John Coldron and Robin Smith, ‘Active Location in Teachers’ Construction of their Professional Identities’ (1999) 31(6) Journal of Curriculum Studies 711, 711. 25.

Madison, (n 24). See also Coldron and Smith, (n 24); Martin J Katz, ‘Teaching Professional Identity in Law School’ (2013) 42(10) e Colorado Lawyer 45, 45.

26.

Ibid.

27.

Fruehwald, (n 18) 2. See also Michael G Pratt, Kevin W Rockmann and Jeffrey B Kaufmann, ‘Constructing Professional Identity: e Role of Work and Identity Learning Cycles in the Customization of Identity Among Medical Residents’ (2006) 49(2) Academy of Management Journal 235; Joshua B Barbour and John C Lammers, ‘Measuring Professional Identity: A Review of the Literature and a Multilevel Con rmatory Factor Analysis of Professional Identity Constructs’ (2015) 2(1) Journal of Professions and Organization 38.

28.

Daniel R Coquilette, ‘Professionalism: e Deep eory’ (1994) 72 North Carolina Law Review 1271, 1272.

29.

See, eg, Deanna P Dannels, ‘Learning to be Professional: Technical Classroom Discourse, Practice and Professional Identity Construction’ (2000) 14(1) Journal of Business and Technical Communication 5; Pratt, Rockmann and Kaufmann, (n 27); Holly Slay and Delmonize Smith, ‘Professional Identity Construction: Using Narrative to Understand the Negotiation of Professional and Stigmatized Cultural Identities’ (2011) 64(1) Human Relations 85; Äli Leijen and Katrin Kullasepp, ‘All Roads Lead to Rome: Developmental Trajectories of Student Teachers’ Professional and Personal Identity Development’ (2013) 26(2) Journal of Constructivist Psychology 104. See also Sanford Levinson, ‘Identifying the Jewish Lawyer: Re ections on the Construction of Professional Identity’ (1992) 14 Cardozo Law Review 1577.

30.

Päivi M Niemi, ‘Medical Students’ Professional Identity: Self-Re ection During the Preclinical Years’ (1997) 31(6) Medical Education 408.

31.

See generally, eg, Laura Nader, ‘Controlling Processes in the Practice of Law: Hierarchy and Paci cation in the Movement to Re-Form Dispute Ideology’ (1993) 9 Ohio State Journal on Dispute Resolution 1. See also the articulation of these ideas in Rachael Field and Jonathan Crowe, Mediation Ethics: From eory to Practice (Edward Elgar, 2020) ch 8.

32.

Charles Wright Mills, ‘e Professional Ideology of Social Pathologists’ (1943) 49(2) American Journal of Sociology 165. See also Francis T Cullen and Paul Gendreau, ‘From Nothing Works to What Works: Changing Professional Ideology in the 21st Century’ (2001) 81(3) e Prison Journal 313; Heather M Ouellette and Brandon K Applegate, ‘e Professional Ideology of Criminologists’ (2015) 95(3) e Prison Journal 287.

33.

Oxford English Dictionary (online) .

34.

Collins English Dictionary (online) .

35.

Frank M Loewenberg, ‘Professional Ideology, Middle Range eories and Knowledge Building for Social Work Practice’ (1984) 14(1) British Journal of Social Work 309, 320.

36.

Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths, 2nd ed, 2002) 35.

37.

See FC De Coste, ‘Towards A Comprehensive eory of Professional Responsibility’ (2001) 50 University of New Brunswick Law Journal 109; Bernard Barber, e Logic and Limits of Trust (Rutgers University Press, 1983).

38.

De Coste, (n 37). See also, eg, Tyler Cowen, ‘Law as a Public Good: e Economics of Anarchy’ (1992) 8(2) Economics & Philosophy 249; Judith Areen and Paul Marcus, ‘Law Schools and the Public Good’ (2017) Popular Media 413.

39.

Barber, (n 37) 112.

40.

Daicoff, ‘Law as a Healing Profession’, (n 4) 4.

41.

Ibid.

42.

De Coste, (n 37) 117, referring to Michael Walzer, Spheres of Justice (New York, 1983) ch 5.

43.

Barber, (n 37) 140.

44.

Noel Preston, Understanding Ethics (Federation Press, 2001) 173.

45.

Rachael Field, ‘A Mediation Profession in Australia: An Improved Framework for Mediation Ethics’ (2007) 18(1) Australasian Dispute Resolution Journal 1.

46.

omas Ehrlich, ‘Common Issues of Professional Responsibility’ (1987) 1(1) Georgetown Journal of Legal Ethics 3, 5.

47.

is is a point that has long been made by those critical of the nature of justice achievable through informal processes. See the discussion of this point in Chapter 5 and at various junctures throughout this work.

48.

Tim Smith, ‘Public Office — Public Trust: e “Forgotten” Principle?’ (Paper presented at the Integrity in Government Futures Conference, University of Melbourne, 4 December 2012) referring to Paul Finn, ‘Public Trust and Fiduciary Relations’ in Ken Coghill, Tim Smith and Charles Sampford, Fiduciary Duty and the Atmospheric Trust (Ashgate, 2012) 31. See also Paul Finn, ‘e Forgotten “Trust”: e People and the State’ in Malcolm Cope (ed), Equity: Issues and Trends (Federation Press, 1995).

49.

Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; Gibbs CJ, 68; Mason J, 96; Dawson J, 142.

50.

See the signi cant body of scholarship by Susan Daicoff on the comprehensive law movement: ‘Making Law erapeutic for Lawyers: erapeutic Jurisprudence, Preventive Law, and e Psychology of Lawyers’ (1999) 5(4) Psychology, Public Policy and Law 811; ‘e Comprehensive Law Movement’ (2004) 19(1) Touro Law Review

825; ‘Law as a Healing Profession: e Comprehensive Law Movement’, (n 4) 1; ‘e Comprehensive Law Movement: An Emerging Approach to Legal Problems’ (2006) 49 Scandinavian Studies in Law 109; ‘Growing Pains’, (n 2); ‘e Future of Legal Profession’, (n 1). See also Nigel Stobbs, ‘e Nature of Juristic Paradigms: Exploring the eoretical and Conceptual Relationship Between Adversarialism and erapeutic Jurisprudence’ (2011) 4(1) Washington University Jurisprudence Review 97; King et al, (n 2); King, Freiberg and Reinhardt, (n 2). 51.

Daicoff, ‘Law as a Healing Profession: e Comprehensive Law Movement’, (n 4) 5.

52.

Ibid 7.

53.

Ibid 9.

54.

Ibid 9. Daicoff acknowledges that the term was rst introduced by Pauline Tesler — one of the co-founders of collaborative law. See also Chapter 4.

55.

According to Daicoff, Professor omas Scheff was the rst person to use the term ‘vectors’ in relation to the emerging restorative justice and therapeutic jurisprudence movements: Daicoff, ‘Growing Pains’, (n 2) 552.

56.

Daicoff, ‘e Future of Legal Profession’, (n 1) 19; Daicoff, ‘Growing Pains’, (n 2) 1–2.

57.

Daicoff, ‘Law as a Healing Profession’, (n 4) 1.

58.

Daicoff, ‘Law as a Healing Profession’, (n 4) 1 citing omas D Barton, ‘Conceiving the Lawyer as Creative Problem Solver: Introduction’ (1998) 34(2) California Western Law Review 267; omas D Barton, ‘Creative Problem Solving: Purpose, Meaning, and Values’ (1998) 34(2) California Western Law Review 273; James M Cooper, ‘Toward a New Architecture: Creative Problem-solving and the Evolution of Law’ (1998) 34(2) California Western Law Review 297; Janeen Kerper, ‘Creative Problem-solving vs e Case Method: A Marvellous Adventure in Which Winnie-the-Pooh Meets Mrs Palsgraf ’ (1998) 34(2) California Western Law Review 351.

59.

Daicoff, ‘Law as a Healing Profession’, (n 4) 2 citing Robert M Hardaway, Preventive Law: Materials on a Non-Adversarial Legal Process (Anderson Publishing Company, 2nd ed, 1997).

60.

Tom R Tyler, e Psychological Consequences of Judicial Procedures: Implications for Civil Commitment Hearings in David B Wexler and Bruce J Winick, Law in a erapeutic Key: Developments in erapeutic Jurisprudence (Carolina Academic Press, 1996) 3.

61.

Daicoff, ‘Law as a Healing Profession’ (n 4) 2 citing Robert A Baruch Bush and Joseph P Folger, e Promise of Mediation: e Transformative Approach to Con ict (Wiley, 2nd ed, 2004).

62.

Daicoff, ‘Law as a Healing Profession’, (n 4) 1–2.

63.

Linda Morton, ‘Teaching Creative Problem-solving: A Paradigmatic Approach’ (1998) 34(2) California Western Law Review 375. See also, eg, Tamara Montag-Smit and Carl P Maertz Jr, ‘Searching Outside the Box in Creative Problem Solving: e Role of

Creative inking Skills and Domain Knowledge’ (2017) 81 Journal of Business Research 1; Gerard J Puccio et al, ‘Creative Problem Solving in Small Groups: e Effects of Creativity Training on Idea Generation, Solution Creativity, and Leadership Effectiveness’ (2020) 54(2) e Journal of Creative Behavior 453; Julie Rosseel and Frederik Anseel, ‘When Re ection Hinders Creative Problem-Solving: A Test of Alternative Re ection Strategies’ (2021) Journal of Business and Psychology (online). 64.

See and .

65.

Daicoff, ‘Law as a Healing Profession’, (n 4) 20.

66.

See the Holistic Lawyers Association . See also, eg, James M Anderson, Maya Buenaventura and Paul Heaton, ‘e Effects of Holistic Defense on Criminal Justice Outcomes’ (2018) 132(3) Harvard Law Review 819; Loretta Pyles, Healing Justice: Holistic Self-Care for Change Makers (Oxford University Press, 2018); Loretta Pyles, ‘Healing Justice, Transformative Justice, and Holistic Self-Care for Social Workers’ (2020) 65(2) Social Work 178–87.

67.

Ibid.

68.

Daicoff, ‘Law as a Healing Profession’ (n 4) 22.

69.

Ibid.

70.

See, eg, Louis M Brown and Edward D Dauer, ‘A Synopsis of the eory and Practice of Preventive Law (Part I)’ (1982) 1(1) Preventive Law Reporter 6; Louis M Brown and Edward D Dauer, ‘A Synopsis of the eory and Practice of Preventive Law (Part II)’ (1982) 1(2) Preventive Law Reporter 5; Louis M Brown and Edward D Dauer, ‘A Synopsis of the eory and Practice of Preventive Law (Part III)’ (1983) 1(3) Preventive Law Reporter 6. See also Edward D Dauer, ‘Preventive Law Before and Aer erapeutic Jurisprudence’ (1999) 5(4) Psychology, Public Policy and Law 800, 802. See also the discussion of preventative elements of the DR matrix in Chapter 3 and, eg, Lissangee Stefania Mendoza Garcia and Ruben Mendez Reategui, ‘e Exceptional Preventive Agreement: Legal Solution for Companies in Crisis Due to the Covid-19 Pandemic?’ (2021) 55 Con-texto 49.

71.

Ibid. Dennis P Stolle et al, ‘Integrating Preventive Law and erapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering’ (1997) 34(1) California Western Law Review 15, 42.

72.

Louis M Brown, ‘e Law Office: A Preventive Laboratory’ (1956) 140(7) University of Pennsylvania Law Review 940. See also Natalia Blecher, ‘Preventive Law’ in King et al, (n 2) ch 4.

73.

Brown and Dauer, (n 70). See also Stolle et al, (n 71) 16.

74.

Ibid.

75.

Ibid.

76.

Daicoff, ‘e Comprehensive Law Movement’, (n 4) 113.

77.

Dauer, (n 70) 809.

78.

Ibid. See also Daicoff, ‘Making Law erapeutic for Lawyers’, (n 4) 815, 823.

79.

Stolle, (n 71) 19–20.

80.

Ibid 19.

81.

Daicoff, ‘Making Law erapeutic for Lawyers’, (n 4) 817.

82.

Ibid.

83.

Bruce Winick, ‘erapeutic Jurisprudence and Problem-Solving Courts’ (2003) 30(3) Fordham Urban Law Journal 1055, 1055. See also, eg, Jessica K Steinberg, ‘A eory of Civil Problem-Solving Courts’ (2018) 93(6) NYU Law Review 1579; Lacey Schaefer and Mary Beriman, ‘Problem-Solving Courts in Australia: A Review of Problems and Solutions’ (2019) 14(3) Victims & Offenders 344.

84.

Winick, (n 83) 1055.

85.

Ibid.

86.

Kathryn C Sammon, ‘erapeutic Jurisprudence: An Examination of Problem-solving Justice in New York’ (2008) 23(3) St John’s Journal of Legal Commentary 923, 926. See also .

87.

Winick, (n 83) 1055; Sammon, (n 86) 923.

88.

Ibid.

89.

Sammon, (n 86) 924–6.

90.

See, eg, Greg Berman and Aubrey Fox, ‘e Future of Problem-Solving Justice: An International Perspective’ (2010) 10(1) University of Maryland Law Journal of Race, Religion, Gender and Class 1, 5.

91.

Daicoff, ‘e Comprehensive Law Movement’, (n 4) 842.

92.

Daicoff, ‘Law as a Healing Profession: e Comprehensive Law Movement’, (n 4) 34.

93.

Ibid.

94.

Ibid.

95.

Daicoff, ‘e Comprehensive Law Movement’, (n 4) 830, 831.

96.

Winick, (n 83) 1060–5.

97.

See .

98.

Daicoff, ‘Law as a Healing Profession’, (n 4) 20. See also, eg, Sonja K Ötting and Günter W Maier, ‘e Importance of Procedural Justice in Human–Machine Interactions: Intelligent Systems as New Decision Agents in Organizations’ (2018) 89 Computers in Human Behavior 27; Glenn D Walters and P Colin Bolger, ‘Procedural Justice Perceptions, Legitimacy Beliefs, and Compliance with the Law: A Meta-Analysis’ (2019) 15(3) Journal of Experimental Criminology 341; Matthew Radburn and Clifford Stott, ‘e Social Psychological Processes of “Procedural Justice”: Concepts, Critiques

and Opportunities’ (2019) 19(4) Criminology & Criminal Justice 421; Daniel S Nagin and Cody W Telep, ‘Procedural Justice and Legal Compliance: A Revisionist Perspective’ (2020) 19(3) Criminology & Public Policy 761. 99.

See generally, eg, King et al, (n 2); Field, Duffy and Huggins, (n 17) ch 15. See also . See also, eg, Restorative Justice: An International Journal (Routledge). See also Andrew von Hirsch et al (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing, 2003); Dennis Sullivan and Larry Ti (eds), Handbook of Restorative Justice: A Global Perspective (Routledge, 2006); Gordon Bazemore and Lode Walgrave (eds), Restorative Juvenile Justice: Repairing the Harm of Youth Crime (Criminal Justice Press, 1999). See further, eg, William R Wood and Masahiro Suzuki, ‘Are Con icts Property? ReExamining the Ownership of Con ict in Restorative Justice’ (2020) 29(6) Social & Legal Studies 903; Lisa A Cooper and David R Williams, ‘Excess Deaths from COVID19, Community Bereavement, and Restorative Justice for Communities of Color’ (2020) 324(15) Jama 1491; Masahiro Suzuki and Tamera Jenkins, ‘e Role of (Self-) Forgiveness in Restorative Justice: Linking Restorative Justice to Desistance’ (2020) European Journal of Criminology (online); Mimi E Kim, ‘Transformative Justice and Restorative Justice: Gender-Based Violence and Alternative Visions of Justice in the United States’ (2021) 27(2) International Review of Victimology 162.

100. Arie Freiberg, ‘Psychiatry, Psychology and Non-Adversarial Justice: From Integration to Transformation’ (2011) 18(2) Psychiatry, Psychology and Law 1, 4. See also, eg, David B Wexler, ‘e DNA of erapeutic Jurisprudence’ (2020) Arizona Legal Studies Discussion Paper 20; Kelly Frailing and Michael L Perlin, ‘Introduction to erapeutic Jurisprudence and Nonjudicial Decision Making’ (2020) 64(12) American Behavioral Scientist 1683; David C Yamada, ‘Teaching erapeutic Jurisprudence’ (2021) 50(3) University of Baltimore Law Review 425. 101. Daicoff, ‘Law as a Healing Profession’, (n 4) 11. 102. Bruce Winick, David B Wexler and Edward Dauer, ‘Preface: A New Model for the Practice of Law’ (1999) 5(4) Psychology, Public Policy and Law 795, 795–6. 103. Ibid. 104. Daicoff, ‘Growing Pains’, (n 2) 551–2. 105. Freiberg, (n 100) 4. 106. Stolle, (n 71) 17–18; Daicoff, ‘Law as a Healing Profession’, (n 4) 11–13. 107. David B Wexler and Bruce J Winick, Law in a erapeutic Key: Developments in erapeutic Jurisprudence, (Carolina Academic Press, 1996) xvii. 108. Marilyn McMahon and John Willis, ‘Neighbours and Stalking Intervention Orders: Old Con icts and New Remedies’ (1993) 20(2) Law in Context 1, 96. 109. Freiberg, (n 100) 13–14. 110. Robert A Baruch Bush and Joseph P Folger, e Promise of Mediation: Responding to Con ict rough Empowerment and Recognition (Jossey-Bass, 1994) 69. See further,

eg, Robert A Baruch Bush and Peter F Miller, ‘Hiding in Plain Sight: Mediation, Client-Centered Practice and the Value of Human Agency’ (2020) 35(5) Ohio State Journal on Dispute Resolution 591; Dafna Lavi, ‘e Promise of (Transformative) Mediation: e Transformative Model in Divorce Cases Involving Violence’ (2021) 36(1) Ohio State Journal on Dispute Resolution 65. 111. Ibid 65–66. 112. See, eg, Sally G Pope, ‘Inviting Fortuitous Events in Mediation: e Role of Empowerment and Recognition’ (1996) 13(4) Mediation Quarterly 287; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011). 113. Bush and Folger, (n 110) 87. 114. Daicoff, ‘e Comprehensive Law Movement’, (n 4) 129. 115. See Kathy Douglas and Rebecca Leshinsky, ‘Pre-Action Dispute Resolution under the Owners Corporation Act 2006 (Vic): Teaching Con ict Resolution Strategies’ (2012) 20(3) Australian Property Law Journal 224, 230. See also Rebecca Leshinsky et al, ‘Dispute Resolution under the Owners Corporation Act 2006 (Vic): Engaging with Con ict in Communal Living’ (2012) 2(1) Property Law Review 39; Kathy Douglas and Rebecca Leshinsky, ‘Ethical Concerns for Owners Corporation Managers Who Informally Mediate in Owners Corporation Disputes: e Need for a Community of Practice’ (2017) 35(1) Law in Context: Ethics in Alternative Dispute Resolution 118. 116. See, eg, Donna M Gibson, Colette T Dollarhide and Julie M Moss, ‘Professional Identity Development: A Grounded eory of Transformational Tasks of New Counselors’ (2010) 50(1) Counselor Education and Supervision 21; Julie M Moss, Donna M Gibson and Colette T Dollarhide, ‘Professional Identity Development: A Grounded eory of Transformational Tasks of Counselors’ (2014) 92(1) Journal of Counseling & Development 3. 117. Jan Jacobowitz, ‘Cultivating Professional Identity and Creating Community: A Tale of Two Innovations’ (2013) 36(3) University of Arkansas at Little Rock Law Review 319. 118. Pratt, Rockmann and Kaufmann, (n 27) 235 referring to Jean E Wallace, ‘Organizational and Professional Commitment in Professional and Nonprofessional Organizations’ (1995) 40(2) Administrative Science Quarterly 228; Karl E Weick, Sensemaking in Organizations (Sage, 1995). 119. Other professions have recognised these bene ts and promoted a positive professional identity. See, eg, nursing: Susan J Roberts, ‘Development of a Positive Professional Identity: Liberating Oneself from the Oppressor Within’ (2000) 22(4) Advances in Nursing Science 71; Esther Helmich et al, ‘Medical Students’ Professional Identity Development in an Early Nursing Attachment’ (2010) 44(7) Medical Education 674; medicine: Alan Bleakley, John Bligh and Julie Browne, Medical Education for the Future: Identity, Power and Location (Springer Science & Business Media, 2011); Pratt, Rockmann and Kaufmann, (n 27); counselling: Gibson, Dollarhide and Moss, (n 116),

Moss, Gibson and Dollarhide, (n 116); higher education: Franziska Trede, Rob Macklin and Donna Bridges, ‘Professional Identity Development: A Review of the Higher Education Literature’ (2012) 37(3) Studies in Higher Education 365; Marie Clarke, Abbey Hyde and Jonathan Drennan, ‘Professional Identity in Higher Education’ in Barbara M Kehm and Ulrich Teichler (eds), e Academic Profession in Europe: New Tasks and New Challenges (Springer, 2012) 7–21; teaching: Douwe Beijaard, Paulien C Meijer and Nico Verloop, ‘Reconsidering Research on Teachers’ Professional Identity (2004) 20(2) Teaching and Teacher Education 107–28. 120. See generally William C Compton and Edward Hoffman, Positive Psychology: e Science of Happiness and Flourishing (Cengage Learning, 2nd ed, 2013). Field, Duffy and Huggins, (n 17), explain that: ‘e term “positive psychology” is said to have been coined by Maslow in his 1954 book Motivation and Personality, in which the last chapter was titled “Toward a Positive Psychology”’. See also Martin E Seligman and Mihaly Csikszentmihalyi, ‘Positive Psychology: An Introduction’ (2000) 55(1) American Psychologist 5. 121. See, eg, William C Compton, An Introduction to Positive Psychology (Wadsworth Publishing, 2005) 1–22. 122. Martin E Seligman, Authentic Happiness (Free Press, 2002) x. 123. Martin Seligman, quoted in Compton and Hoffman, (n 121) 1. 124. SDT is discussed in detail and the key scholarship is cited in the following works: Rachael Field, James Duffy and Colin James (eds), Promoting Law Student and Lawyer Well-Being in Australia and Beyond (Routledge, 2016); Caroline Strevens and Rachael Field (eds), Educating for Well-Being in Law: Positive Professional Identities and Practice (Routledge, 2019); Judith Marychurch and Adiva Sifris (eds), Wellness for Law as Core Business (LexisNexis, 2020); Janet Chan, Michael Legg and Prue Vines, e Impact of Technology and Innovation on the Well-Being of the Legal Profession (Intersentia, 2020). See also seminal works such as Richard M Ryan and Edward L Deci, ‘Self-Determination eory and the Facilitation of Intrinsic Motivation, Social Development and Well-being’ (2000) 55(1) American Psychologist 68; Richard M Ryan and Edward L Deci, ‘Overview of Self-Determination eory: An Organismic Dialectical Perspective’ in Edward Deci and Richard Ryan (eds), Handbook of Self Determination Research (University of Rochester Press, 2002); Richard M Ryan and Edward L Deci, ‘Self-Determination eory and the Role of Basic Psychological Needs in Personality and the Organization of Behavior’ in Oliver P John, Richard W Robins and Lawrence A Pervin (eds), Handbook of Personality: eory and Research (Guilford Press, 3rd ed, 2008) 654; Christopher Niemiec, Richard P Ryan and Edward L Deci, ‘Self-Determination eory and the Relation of Autonomy to Self-Regulatory Processes and Personality Development’ in Rick Hoyle (ed), Handbook of Personality and Self-Regulation (Wiley-Blackwell, 2010) 169. 125. See, eg, Christopher P Niemiec and Richard M Ryan, ‘Autonomy, Competence, and Relatedness in the Classroom: Applying Self-Determination eory to Educational

Practice’ (2009) 7(2) eory and Research in Education 133; Christopher P Niemiec, Richard M Ryan and Edward L Deci, ‘e Path Taken: Consequences of Attaining Intrinsic and Extrinsic Aspirations in Post-College Life’ (2009) 43(3) Journal of Research in Personality 291; Hyungshim Jang, Eun Joo Kim, and Johnmarshall Reeve, ‘Why Students Become More Engaged or More Disengaged During the Semester: A Self-Determination eory Dual-Process Model’ (2016) 43 Learning and Instruction 27. 126. See, eg, its in uence on legal education and understanding lawyer and law student psychological distress: Lawrence S Krieger, ‘What We’re Not Telling Law Students — and Lawyers — at ey Really Need to Know: Some oughts-In-Acting Toward Revitalizing the Profession from its Roots’ (1999) 13(1) Journal of Law and Health 1; Kennon Sheldon and Lawrence S Krieger, ‘Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation Values, and Wellbeing’ (2004) 22(2) Behavioral Sciences and the Law 261; Lawrence S Krieger, ‘e Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness’ (2005) 11(2) Clinical Law Review 425; Kennon M Sheldon and Lawrence S Krieger, ‘Understanding the Negative Effects of Legal Education on Law Students: A Longitudinal Test of Self-Determination eory’ (2007) 33(6) Personality and Social Psychology Bulletin 883. 127. See, in particular, Deci and Ryan, Handbook of Self Determination Research, (n 124); Ryan and Deci, ‘Self-Determination eory and the Role of Basic Psychological Needs in Personality and the Organization of Behavior’, (n 124). 128. Field, Duffy and Huggins, (n 17), referring to Niemiec, Ryan and Deci, ‘SelfDetermination eory and the Role of Basic Psychological Needs in Personality and the Organization of Behaviour, (n 124) 174; Maarten Vansteenkiste, Christopher P Niemiec and Bart Soenens, ‘e Development of the Five Mini-eories of SelfDetermination eory: An Historical Overview, Emerging Trends, and Future Directions’ in Timothy C Urdan and Stuart A Karabenick (eds), e Decade Ahead: eoretical Perspectives on Motivation and Achievement (Emerald Group, 2010) 105, 131; Kennon Sheldon, Geoffrey Williams and omas Joiner, Self-Determination eory in the Clinic: Motivating Physical and Mental Health (Yale University Press, 2003); Lawrence S Krieger, ‘e Most Ethical of People, the Least Ethical of People: Proposing Self-Determination eory to Measure Professional Character Formation’ (2011) 8(2) University of St omas Law Journal 168, 174. 129. Martin Seligman is one of the most prominent and in uential gures in positive psychology and is credited as one of the founders of this discipline. See, eg, Seligman and Csikszentmihalyi, (n 120); Seligman, (n 122). Seligman’s University of Pennsylvania homepage is the website entitled Authentic Happiness . 130. Duffy, Field and Huggins, (n 17), 68 referencing Daniel S Bowling, ‘Well-Being and the Practice of Law’ (2014) Positive Psychology Center

. For a critique of the positive thinking school, see Oliver Burkeman, e Antidote — Happiness for People Who Can’t Stand Positive inking (Text Publishing, 2012) 131. Duffy, Field and Huggins, (n 17), 68 quoting Daniel S Bowling, (n 130). 132. See, eg, e Journal of Positive Psychology: About this Journal — Aims and Objectives (2013) Taylor and Francis Online . 133. International Positive Psychology Association (IPPA), About IPPA (2011) . 134. Martin Seligman, Flourish: A Visionary New Understanding of Happiness and WellBeing (Free Press, 2011). See also Felicia A Huppert, Nick Baylis and Barry Keverne, e Science of Well-Being (Oxford University Press, 2005); Felicia A Huppert and Cary L Cooper, Wellbeing: A Complete Reference Guide, Interventions and Policies to Enhance Wellbeing (John Wiley & Sons, 2014). See also, eg, Stewart I Donaldson et al, ‘Examining Building Blocks of Well-Being Beyond PERMA and Self-Report Bias’ (2020) e Journal of Positive Psychology 1; Lisa Wagner et al, ‘Character Strengths and PERMA: Investigating the Relationships of Character Strengths with a Multidimensional Framework of Well-Being’ (2020) 15(2) Applied Research in Quality of Life 307; Barbara Giangrasso, ‘Psychometric Properties of the PERMA-Pro ler as Hedonic and Eudaimonic Well-Being Measure in an Italian Context’ (2021) 40(3) Current Psychology 1175. 135. Margaret L Kern et al, ‘A Multidimensional Approach to Measuring Well-Being in Students: Application of e PERMA Framework’ (2015) 10(3) e Journal of Positive Psychology 262, 265. 136. Reuben D Rusk and Lea Waters, ‘A Psycho-Social System Approach to Well-Being: Empirically Deriving the Five Domains of Positive Functioning’ (2015) 10(2) e Journal of Positive Psychology 141, 142. 137. Kern et al, (n 135). 138. See Lisa Feldman Barrett, Michael Lewis and Jeannette M Haviland-Jones (eds), Handbook of Emotions (Guilford Press, 4th ed, 2016). 139. Sonja Lyubomirsky, Laura King and Ed Diener, ‘e Bene ts of Frequent Positive Affect: Does Happiness Lead to Success?’ (2005) 131(6) Psychological Bulletin 803; Nathaniel M Lambert, Frank D Fincham and Tyler F Stillman, ‘Gratitude and Depressive Symptoms: e Role of Positive Reframing and Positive Emotion’ (2012) 26(4) Cognition and Emotion 615; Rusk and Waters, (n 136). 140. Felicia Huppert and Timothy So, ‘Flourishing across Europe: Application of a New Conceptual Framework for De ning Well-Being’ (2013) 110(3) Social Indicators Research 837. 141. Kern et al, (n 135). See also Lyubomirsky, King and Diener, (n 139).

142. Barbara L Fredrickson, ‘e Broaden-and-Build eory of Positive Emotions’ Philosophical Transactions — e Royal Society of London Series B Biological Sciences (e Royal Society, 2004) 1367. 143. Ibid 1373. 144. Ibid. 145. Ibid 1367. 146. Kern et al, (n 135) 263. 147. Ibid 263 and 268 referring to James J Appleton, Sandra L Christenson and Michael J Furlong, ‘Student Engagement with School: Critical Conceptual and Methodological Issues of the Construct’ (2008) 45(5) Psychology in the Schools 369. 148. Susan A Jackson and Mihaly Csikszentmihaly, Flow in Sports (Human Kinetics, 1999). 149. Kern et al, (n 135) 263. 150. Ibid 266. 151. Ibid. 152. Ryan T Howell, Margaret L Kern and Sonja Lyubomirsky, ‘Health Bene ts: MetaAnalytically Determining the Impact of Wellbeing on Objective Health Outcomes’ (2007) 1(1) Health Psychology Review 83. See also Shelley E Taylor, ‘Social Support: A Review’ in Howard S Friedman (ed), e Oxford Handbook of Health Psychology (Oxford University Press, 2011) 189. 153. Kern et al, (n 135) 263. 154. Seligman, (n 134) 13. 155. Carrie Menkel-Meadow, ‘Is Altruism Possible in Lawyering?’ (1992) 8(2) Georgia State University Law Review 385, 389. 156. Ibid 386. 157. Kern et al, (n 135) 263. 158. See generally Kath Hall et al, (n 15); Kathy Douglas, ‘e Evolution of Lawyers’ Professional Identity: e Contribution of ADR in Legal Education’ (2013) 18(2) Deakin Law Review 315; Margaret Castles and Anne Hewitt, ‘Can a Law School Help Develop Skilled Legal Professionals’ (2011) 36(2) Alternative Law Journal 90. See also Rachael Field, James Duffy and Anna Huggins, ‘Supporting Transition to Law School and Student Well-Being: e Role of Professional Legal Identity’ (2013) 4(2) First Year in Higher Education International Journal 15. On SDT and its relationship to the classroom, see also Christopher Niemiec and Richard Ryan, ‘Autonomy, Competence, and Relatedness in the Classroom: Applying Self-Determination eory to Educational Practice’ (2009) 7(2) eory and Research in Education 133. 159. See also, eg, Sheldon Stryker and Peter J Burke, ‘e Past, Present and Future of an Identity eory’ (2000) 63(4) Social Psychology Quarterly 284, 286. 160. Ibarra, (n 16) 764–5.

161.

See also Field, Duffy and Huggins, (n 17), particularly chs 1 and 12; Field, Duffy and Huggins, (n 158).

162. Deborah L Rhode, ‘e Professionalisation Problem’ (1998) 39(2) William and Mary Law Review 283, 325. De Coste notes that ‘professionalism resides not in some declaration of aspiration, and still less in some hoped-for epiphany, but rather in the prosaic day-to-day decisions which are the stuff and measure of professional life’: De Coste, (n 37) 122. 163. is phrase is taken from Sol M Linowitz, ‘Moment of Truth for the Legal Profession’ (1997) (6) Wisconsin Law Review 1221. See also Richard Susskind, e End of Lawyers?: Rethinking the Nature of Legal Services (Oxford University Press, 2nd ed, 2010); Anthony T Kronman, e Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1995); Robert MacCrate, ‘e Lost Lawyer Regained: e Abiding Values of e Legal Profession’ (2017) 122(1) Dickenson Law Review 153. 164. Paraphrasing Linowitz, (n 193) 1212. McKay comments that antecedent to issues of ethics in mediation ‘is the basic question of role’: Robert B McKay, ‘Ethical Considerations in Alternative Dispute Resolution’ (1990) 45(1) Arbitration Journal 15, 21.

Index References are to paragraph numbers A Access to justice ‘access to justice’ movement …. 11.22 civil society, in …. 5.85 constitutional right to …. 11.56 DR, through …. 5.89–5.105 meaning of …. 5.86 overview …. 5.42, 5.85 rule of law and …. 5.85 traditional courts …. 11.22 Accident Compensation Conciliation Service (ACCS) conciliators …. 9.48 Accommodation meaning of …. 2.22 Accreditation conciliation processes …. 13.29 FDR practitioners …. 13.26 mediators, of …. 13.25 NMAS, under …. 13.23 Adjudication construction sector, in …. 4.104 courts, by …. 2.24 de nition …. 4.103 determinative DR process, as …. 4.102 goals of …. 4.107 industry bodies …. 4.106 tribunals, in …. 4.105 Administrative Appeals Tribunal

conciliators …. 9.48 objectives of …. 6.60 quali cations of members …. 13.9 Administrative law pre- ling DR efforts in …. 1.23 Adversarialism advocacy informed by …. 12.17 litigation, in …. 11.12 pejorative connotations …. 11.12 Advisory mediation model …. 8.26–8.28 overview …. 8.24 Advisory processes court referrals to …. 11.42 procedural knowledge and skills …. 13.18 substantive expertise of intervenors …. 13.11 Advocacy adversarial advocacy hat …. 12.14–12.21 adversarialism, informed by …. 12.17 broader conception of …. 12.30 de nition …. 12.14, 12.23 DR praxis, and …. 12.12 new culture of, in DR …. 12.30 non-adversarial advocacy hat …. 12.22–12.29 rethinking conceptions of …. 12.23 written skills …. 12.15 Advocate courts and arbitration rooms, in …. 12.15 de nition …. 12.24 lawyers as …. 12.24–12.25 work of …. 12.14 ‘zealous advocate’ …. 12.19 Alliancing commencement of …. 4.49

construction industry, in …. 4.43, 4.48 potential effectiveness …. 4.50 Alternative dispute resolution (ADR) court-based litigation, in …. 11.38–11.42 de nition of …. 3.8 descriptors of …. 3.10 ‘ rst wave’ of thinking about …. 6.20 historical term of art, as …. 3.13 history of …. 3.8 institutionalisation of …. 3.12 litigation, in contradistinction to …. 3.9, 4.110 objectives of …. 5.16 Altruism de nition …. 14.72 Appeals court judgments, from …. 11.47 pre-appeal dispute resolution …. 11.47 Arb-med blended DR process, a …. 4.118, 10.77 Arb-med-arb blended DR process, a …. 4.119, 10.84–10.85 Arbitral award enforceability …. 10.45 judicial review …. 10.42 overview …. 4.99 setting aside …. 10.46 Arbitration appeals from …. 10.47 applications of …. 10.51 arbitral awards …. 4.99 attributes of …. 10.34 authoritative determination in …. 10.1 blended processes …. 10.76 commercial arbitration …. 6.51

commercial context, in …. 6.51 contract-based process …. 10.40 court challenges to …. 10.48 court-referred …. 10.38 decline in use of …. 10.52 de ning …. 10.34–10.40 determinative DR process, as …. 3.25, 4.98 DR clauses triggering …. 10.38 DR spectrum, on …. 3.16–3.19 emotions, acknowledging …. 2.11 enforceability of awards …. 10.45 expert determination, distinguished …. 10.13–10.18 fast-track proceedings …. 10.43 investment and trade disputes …. 10.69 judicial review of awards …. 10.42 lawyer involvement in …. 10.86–10.87 less formal process …. 2.11 litigation, resembling …. 10.32 parties choosing …. 10.39 party consent …. 10.7 private litigation, as …. 10.32 procedure …. 10.41 rights focus of …. 10.33 substantive law to be applied …. 10.44 Arbitrator amiable compositeurs …. 10.44 appointment, challenging …. 13.8 court supervision of …. 10.48 determinative role of …. 10.36 ethical tensions …. 10.37 ethics for …. 13.67–13.68 expertise …. 10.5, 13.6 impartiality or independence …. 13.8 procedural fairness …. 10.20

procedure …. 10.41 quali cations of …. 13.6 selecting, by interview …. 13.7 separate discussions …. 10.37 substantive knowledge …. 13.6 Assisted negotiation de nition …. 4.19, 7.7 overview …. 4.18–4.20 Australian Centre for International Commercial Arbitration (ACICA) …. 13.8 Australian Competition and Consumer Commission DR processes, use of …. 6.50 Australian Constitution conciliation …. 9.27 judicial power …. 11.55 separation of powers …. 11.55 Australian Dispute Resolution Advisory Council (ADRAC) …. 6.66 establishment of …. 6.73 funding for …. 6.74 mission …. 6.73 Australian Dispute Resolution Association …. 6.66 Australian Disputes Centre (ADC) …. 6.66, 6.81–6.82 Australian Human Rights Commission (AHRC) conciliation by …. 9.35 discrimination complaints …. 9.35 Australian Institute of Judicial Administration …. 13.63 Australian Taxation Office DR processes, use of …. 6.50 Autonomy derivation of …. 5.67 fundamental human need, as …. 5.69, 5.70 mediation, in see Mediation parties, of mediation, in …. 8.7 value of …. 5.66–5.67

B Barristers alternatives to litigation, advising on …. 1.24 mediation and conciliation, assisting with …. 1.23 number of …. 1.13 Basic psychological needs theory (BPNT) …. 5.70, 14.59 Best Alternative to a Negotiated Agreement (BATNA) …. 7.50–7.51 Bilateral investment treaties (BITs) DR clauses …. 10.70 investment disputes …. 10.69 Philip Morris claim …. 10.71–10.73 Blended DR processes nature of …. 3.26, 4.116–4.121, 10.77 substantive expertise of practitioners …. 13.13 Bond Dispute Resolution Centre …. 6.66, 6.78–6.80 Brokering facilitated DR process …. 4.74 Building disputes arbitration …. 10.51 expert determination …. 10.30 mediation in …. 8.101 C Case appraisal advisory DR process, as …. 3.25, 4.75, 4.83 de nition …. 4.84 Case management common forms of …. 11.28 developments …. 11.32 differential …. 11.30 discretion of courts …. 11.29 early initiatives …. 11.25 efficacy, evidence of …. 11.33 functions …. 11.28 future of …. 11.34

legislation reinforcing …. 11.28 longitudinal assessment …. 11.33 procedural revolution, as …. 11.27 reforms …. 11.23–11.24 Chartered Institute of Arbitrators (CIArb) …. 13.7 Civil justice system criticisms of …. 1.35 government reviews and reports …. 6.43 principles …. 5.14 reform in Australia …. 6.31–6.55 Civil procedure non-litigation DR processes, mandating …. 1.23 Civil proceedings settlement of, before trial …. 1.21 Civil society access to justice in …. 5.85 meaning of …. 5.83 Clients expectations and demands of …. 1.36, 1.44 Coach con ict coaching see Con ict coaching DR, on …. 12.49 informed consent, supporting …. 12.50 preparation for DR processes …. 12.49 Coercive control high con ict situations and …. 2.7 Cognitive behavioural therapy …. 4.51 Cognitive biases con ict, in …. 2.46–2.50 Collaboration TLO 5 …. 1.68 Collaborative law (CL) overview …. 4.21, 14.29 Collaborative practice (CP)

critiques …. 4.30 family law, in …. 4.31 overview …. 4.21 stages and phases …. 4.29 training for …. 4.24 voluntary approach …. 4.25 Commercial disputes international …. 8.111 mediation in …. 8.100, 8.111 Communication TLO 5 …. 1.68 Community DR value of …. 5.82–5.84 Community-based DR Australian developments …. 6.25–6.30 history of …. 6.22 Community disputes mediation in …. 8.102 Community Justice Centres (CJCs) …. 6.25 Competence de nition …. 13.2 DR, in …. 13.2 human need …. 5.69 judicial competencies …. 13.5 new DR competencies …. 13.30 Competition legal profession, impact on …. 1.41 Complaints disputes, distinguished …. 2.12 legal context, in …. 2.12 management of …. 2.12 Comprehensive law movement new model under …. 14.52 professional ideology of DR …. 14.26–14.28

scholarship on …. 14.5 Conciliation advisory DR process …. 4.75 anti-discrimination …. 9.35–9.39 applications of …. 9.26 Australian Constitution, in …. 9.27 autonomy of parties …. 9.13 barristers assisting with …. 1.23 blended processes …. 9.25 commencement …. 9.19 conference …. 9.20 con dentiality …. 9.43 counselling and …. 4.52 critical issues in practice …. 9.40 de nition …. 4.79 DR spectrum, on …. 3.16–3.19, 9.1 family law, in …. 9.32–9.34 good faith participation …. 9.42 industrial disputes …. 4.80, 6.55, 9.27, 9.28 institutionalisation of …. 1.23 lawyers …. 9.47, 9.51–9.53 legal representation in …. 9.47 legislative values …. 9.14 less formal process, as …. 9.46 mediation, distinguished …. 4.78, 9.5–9.11 nature of …. 4.81, 9.1 outcomes …. 9.50 potential of …. 9.3 power conundrums …. 9.40 private system …. 9.21 procedures …. 9.18–9.25 settlements …. 9.24 statutory norms and rights …. 9.14 understanding …. 9.4

values and goals of …. 9.12 workplace applications …. 9.27 Conciliator accreditation …. 13.29 ethics for …. 13.69 non-partisan intervenor …. 9.22 role of …. 4.82, 9.2, 9.20 substantive expertise …. 13.13 Conferencing de nition …. 4.68 overview …. 4.68–4.70 Con dentiality common law privilege …. 13.82 conciliation, of …. 9.43 contract clauses …. 13.80 mediation, of …. 8.11, 13.75–13.83 statutory protection …. 13.79 Con rmation bias nature of …. 2.47 Con ict behavioural dimension …. 2.40 bilateral …. 2.32 centrality of, to lawyering …. 2.1 cognitive aspect of …. 2.40 cognitive biases in …. 2.46–2.50 complex nature of …. 2.1, 2.3, 2.36–2.43 constructive management of …. 2.68 de-escalation …. 2.51 de nition …. 2.6, 2.9 disputes, distinguished …. 2.9, 2.10 elements of …. 2.4 emotional dimension …. 2.40 escalation …. 2.51 false con icts …. 2.33

high con ict situations …. 2.7 high emotions …. 2.7 inter-institutional …. 2.32 international …. 2.32 interpersonal …. 2.32 interpersonal relationship contexts …. 2.7 intra-organisational …. 2.32 intra-state …. 2.10 key concepts and terms …. 2.2 low-level …. 2.6 meaning of …. 2.6, 2.9 meta-con icts …. 2.34 multi-party …. 2.32 neighbours, between …. 2.6 opportunities provided by …. 2.68 participants in …. 2.14–2.16 perceptions …. 2.33 power in …. 2.56–2.62 prevention of …. 3.34 pseudo con ict …. 2.33 social biases in …. 2.46 sources of …. 2.65 subjectivity …. 2.33 terminology …. 2.4–2.35 clarity of …. 2.35 understanding …. 2.28 walking away …. 3.17 Con ict coaching cross-cultural dimensions …. 4.41 overview …. 4.34–4.42 role of coach …. 4.39 self help …. 2.70 transformative DR process, as …. 4.111, 4.113 Con ict management

adversarial and non-adversarial approaches to …. 2.74 constructive …. 2.68 DR practitioner functions …. 2.80 effective …. 2.71 meaning of …. 2.29 Consensuality principle of …. 13.6 Consent informed see Informed consent Construction disputes arbitration …. 10.51 expert determination …. 10.30 mediation in …. 8.101 Consumer disputes international …. 10.75 Continuing Professional Development (CPD) mediators …. 13.25 training …. 2.27 Costs court systems, in …. 11.20 Counselling assisted process …. 4.51 DR processes, distinguished …. 4.52 facilitated non-partisan DR process …. 4.73 nancial …. 4.54 primary objective …. 4.52 therapeutic relationships …. 4.52 transformative DR process, as …. 4.111, 4.112 Counsellors lawyers bringing in …. 2.8, 2.27, 4.53 quali cations …. 4.53 role of …. 4.51 Courthouse multi-door, concept of …. 11.48–11.49

Courts adjudication by …. 2.24 caseloads in …. 11.20 court-aligned DR …. 11.50–11.53 court-connected DR processes …. 1.23 delays …. 11.20 determinations, making …. 2.24, 2.25 domestic violence …. 11.66 drug offences …. 11.66 function of …. 5.56 institutionalisation of DR through …. 6.56–6.58 lawyers as advocates in …. 12.15 legal adversarial advocacy in …. 12.15 legitimacy …. 8.12 online …. 11.92–11.94 problem-solving courts …. 11.66–11.69, 14.38–14.42 remedial options …. 11.18 structural independence of …. 11.6 Covid-19 …. 1.42, 1.45 impact of …. 8.82, 12.7 online courts …. 11.92 Creative problem-solving …. 14.30–14.31 Cross-examination art of …. 12.16 litigation advocacy, in …. 12.16 D De-escalation con ict and disputes, of …. 2.54 Delay access to justice issue …. 5.96 court system, in …. 11.20, 11.24 issue of …. 5.95 Democracy American …. 1.41

characteristics …. 5.23 de nition …. 5.21 majoritarian model …. 5.22 rule of law and …. 1.27, 5.20–5.27 Determinations courts, by …. 2.24, 2.25 Determinative DR processes court referrals to …. 11.42 justice value …. 10.3 overview …. 3.15, 3.25, 4.97, 10.1–10.2 procedural justice …. 10.4 procedural knowledge and skills …. 13.16 sites of …. 12.15 state of ux, in …. 10.2 substantive knowledge …. 13.4–13.10 underlying values and attributes …. 10.3–10.7 Discrimination conciliation …. 9.35–9.39 pre- ling DR efforts in …. 1.23 Disputants meaning of …. 2.16 Dispute resolution (DR) affordable …. 5.92 attitudes …. 1.15, 1.19 Australian legal practice, in …. 6.49 challenges facing legal profession and …. 1.46–1.50 commercial sector, in …. 6.50 core values …. 5.28–5.30 costs of …. 5.92 customised responses …. 2.8 de nition …. 3.14 development of, in Australia …. 6.17–6.21 expertise, in contemporary lawyering …. 1.26 future of, in Australia …. 6.83–6.88

future of legal profession and …. 1.51–1.73 government reviews and reports …. 6.43 history of, in Australia …. 6.1–6.7 importance of …. 1.48 innovation in …. 6.88 institutionalisation of processes …. 1.23 courts, through …. 6.56–6.58 tribunals and ombuds, through …. 6.59–6.65 knowledge …. 1.1, 1.2, 1.15, 1.19, 2.1 legal practice see DR legal practice nature of …. 1.14 new culture of legal advocacy in …. 12.30 online …. 1.49 people and organisations of, in Australia …. 6.66 practice and theory …. 12.1–12.2 praxis …. 12.1–12.2, 12.5–12.6 rule of law and …. 5.25 skills …. 1.1, 1.2, 1.15, 1.19, 2.1 technology and …. 1.49 theories …. 12.3 threshold learning outcomes and …. 1.62–1.72 timely …. 5.95 transactional lawyering …. 1.14, 1.15, 2.1 unassisted approaches to …. 4.3–4.4 unassisted (direct) negotiations …. 4.15–4.16 values …. 1.116 values and goals see Values and goals vulnerable persons, empowering …. 5.99 Dispute review boards (DRBs) …. 4.109 Dispute Settlement Understanding (DSU) …. 11.86–11.87 Disputes centrality of, to lawyering …. 2.1 complaints, distinguished …. 2.12 complex nature of …. 2.1, 2.3, 2.36–2.43

con ict, distinguished …. 2.9, 2.10 constructive management of …. 2.68 court proceedings, resolution without …. 1.21 de-escalation …. 2.51 de nition …. 2.9 diagnosis of …. 2.63–2.65 dispute pyramid …. 3.20 dispute tree …. 3.21 effective management of …. 2.71 elements of …. 2.4 escalation …. 2.51 interests …. 2.44 issues, identifying …. 2.66 key concepts and terms …. 2.2 legal disputes …. 2.9, 2.11 low-level con ict …. 2.6 maritime …. 2.10 participants in …. 2.14–2.16 positions …. 2.44 power in …. 2.56–2.62 prevention …. 2.28 sources of …. 2.65 terminology …. 2.4–2.35 clarity of …. 2.35 understanding …. 2.28 walking away …. 3.17 Domain name Australian Domain Administrator …. 4.106 disputes …. 4.106 Domestic abuse high con ict situations …. 2.7 DR legal practice appropriate DR approach …. 1.22 bene ts of …. 1.23

litigation and …. 1.16 nature of …. 1.14, 1.15, 2.1 options, advising about …. 1.25 professional ideology for …. 14.5 rule of law and …. 1.31–1.34 DR matrix Australian …. 3.42 category of DR processes …. 3.24 descriptive elements …. 3.24 overview …. 3.1, 3.23 DR practitioner accreditation …. 13.20 effective con ict management, functions in …. 2.80 ethically active roles …. 12.52–12.54 procedural knowledge and skills …. 13.15 quali cations of …. 13.3–13.13 recognition …. 13.20 substantive knowledge of …. 13.3–13.13 training …. 13.20 DR process advisory …. 3.15, 3.25, 4.75–4.77 referrals to …. 4.86 assisted …. 3.26 assisted (partisan) …. 4.17 blended …. 3.26, 4.116–4.121 category of …. 3.25 consistency in terms …. 3.6 constructive management through …. 2.69 court referrals to …. 11.40–11.42 de nitional and descriptive approaches …. 3.7 de nitive descriptions of …. 3.4, 3.5 determinative see Determinative DR processes dispute diagnosis …. 2.63–2.65 facilitated …. 4.55

facilitative …. 3.15, 3.25 hybrid …. 4.116 interest-focused …. 3.35 lawyers and …. 2.85 models …. 3.15 moral compass in …. 13.91–13.97 opening statement, practising …. 12.49 outcomes of …. 2.20 preparation for …. 12.49–12.51 coaching …. 12.49 prevention-focused …. 3.34 primary objective of …. 4.52 procedural fairness …. 5.49 process, meaning of …. 2.30 purpose of …. 3.33 referrals to …. 11.42 operational factors …. 11.43–11.46 representations of …. 3.22 rights-focused …. 3.36 spectrum …. 3.16–3.19 third-party intervenors …. 3.27–3.32 transformative …. 3.26, 4.111 Due process fundamental principles of …. 5.47 litigation, in …. 5.39 E Early neutral evaluation (ENE) advisory DR process, as …. 3.25, 4.84 de nition …. 4.84 judges providing …. 11.64 Economics legal profession, impact on …. 1.41, 1.44 Emotional intelligence de nition …. 12.72

elements of …. 12.73 re ective practice and …. 12.71, 12.72–12.74 Emotions dispute resolution, in …. 13.31 DR processes acknowledging …. 2.11 high con ict situations, in …. 2.7 traditional legal education and …. 2.8 Employment grievances …. 2.13 mediation …. 8.106 Escalation con ict and disputes, of …. 2.51 Ethical conduct ASCR, in …. 13.42 Australian solicitors, for …. 13.43–13.47 barristers, for …. 13.42, 13.48–13.51 intervenors, lawyers as …. 13.59 lawyers representing clients in DR …. 13.42 Legal Profession Acts, in …. 13.42 Legal Services Commissioner v Mullins …. 13.52–13.57 solicitors and barristers, for …. 13.42 Ethical intervention goal of …. 5.62–5.65 Ethical standards breaching, consequences of …. 13.88 negotiators, of …. 7.65 NMAS, in …. 13.72–13.74 practice, of …. 13.38 Ethics arbitrators, for …. 13.67–13.68 conciliators, for …. 13.69 de nition …. 13.35, 13.37 DR and …. 13.34–13.41 ethical activism by intervenors …. 12.52

ethical values …. 5.9 future ethical paradigm …. 13.98–13.102 judges, for …. 13.60–13.66 legal conduct rules …. 1.24 legal profession, in …. 13.40 mediators, for …. 13.70 morality and …. 13.36 NADRAC …. 13.37 negotiation …. 7.58–7.67 professional ethical obligations …. 12.26, 13.38–13.39 professional identity, distinguished …. 14.10 pro t driven lawyers and …. 1.35 revisiting …. 1.41 TLO 2: …. 1.65 Evaluative mediation advisory DR process …. 4.75 model …. 8.26–8.28 Evidence con dentiality and …. 13.79 Expert appraisal advisory DR process, as …. 3.25, 4.75, 4.83 de nition …. 4.84 DR spectrum, on …. 3.16–3.19 Expert determination applications of …. 10.30 arbitration, distinguished …. 10.13–10.18 authoritative determination in …. 10.1 courts, supervision by …. 10.22–10.26 de nition …. 10.8 determinative DR process, as …. 3.25, 4.100–4.101 enforceability of …. 10.28–10.29 features …. 10.10 judicial review …. 10.27 party consent …. 10.7

procedural fairness …. 10.19–10.21 procedures …. 10.10 reviewability of …. 10.26 Expert determiner authority …. 10.11 competencies …. 10.11 conduct of proceedings by …. 10.12 error by …. 10.26 honesty and good faith …. 10.21 reasons, furnishing …. 10.12 F Facilitated negotiation facilitated DR process, as …. 3.25 Facilitation community justice programs …. 4.67 de nition …. 4.61 empowerment and recognition …. 4.63 facilitated DR process, as …. 3.25 process of …. 4.62 public interest disputes …. 4.65 Facilitative mediation …. 4.57–4.60 model …. 8.23–8.25 overview …. 4.57–4.60 stages …. 8.23 Facilitative processes court referrals to …. 11.42 procedural knowledge and skills …. 13.16 substantive expertise of practitioners …. 13.12 Facilitators knowledge and skills of …. 4.64 leadership and expertise …. 4.66 procedural knowledge and skills …. 13.19 substantive expertise of …. 13.11 Fact- nding

advisory DR process …. 4.75, 4.89–4.91 de nition …. 4.89 Fair Work Commission …. 8.107 applications lodged with …. 9.29 authority of …. 9.29 conciliation …. 9.29–9.31 conciliators in …. 9.23 quali cations of commissioners …. 13.9 unfair dismissal cases …. 9.30 Fairness acceptability and …. 5.45 core elements of …. 5.46 DR system, in …. 5.15 impartiality and …. 5.63 justice as …. 5.44 litigated processes, in …. 5.38 outcome fairness …. 5.53 procedural see Procedural fairness procedural justice …. 5.47 Family Court of Australia inception …. 6.52 Family dispute resolution (FDR) concept of …. 9.34 conciliation …. 9.32–9.34 conferencing process …. 6.54 de nition …. 4.71 facilitative mediation in …. 8.32 FDR practitioner, by …. 11.36, 13.26 registration as …. 13.27 ‘genuine effort’ …. 11.36, 11.37 mediation …. 8.104 post-separation parenting …. 13.26 practitioners …. 8.105 processes …. 2.27

property issues …. 13.26 requirement for …. 11.36 Section 60I Certi cate …. 8.105, 13.26 system …. 13.26 Family law collaborative practice (CP) …. 4.31 dispute resolution …. 6.52 jurisdiction …. 6.53 pre- ling DR efforts in …. 1.23 Family Law Council …. 4.24 Family violence high con ict situations …. 2.7 Farm debt disputes mediation …. 8.110 Federal Circuit and Family Court of Australia mediation …. 8.104 merger of …. 6.54 Federal Court court referrals to mediation …. 11.42 referees, referrals to …. 11.42 Fiduciary relationship trust in the service of others …. 14.23 Fitness for practice …. 14.24–14.25 Fundamental attribution error nature of …. 2.48 G Genuine effort dispute resolution …. 11.36–11.37 Globalisation forces of …. 1.39 implications of …. 12.7 Goals see Values and goals Good offices facilitated DR process …. 4.74

Grief grieving process …. 2.42 Grievances de nition …. 2.13 H HM Online Court (HMOC) …. 11.92 Holistic justice …. 14.32 Homosexuality criminalisation, in Tasmania …. 11.85 Human rights complaints …. 11.85 international arena …. 11.85 just and orderly society, in …. 1.28 I Identity personal …. 14.9 professional see Professional identity role …. 14.9 social …. 14.9 Ideology de nition …. 14.14 professional see Professional ideology values and goals of DR …. 14.15 Impartiality arbitrators, of …. 13.8 ethic of …. 5.62 fairness and …. 5.63 judges, of …. 13.61 mediators, of …. 8.120, 13.84–13.87 notion of …. 5.63 Independence judges, of …. 13.61 Indigenous Australians

con ict coaching …. 4.41 Indigenous DR Australia, in …. 6.8–6.16 Industrial disputes arbitration …. 10.51 conciliation …. 4.80, 6.55, 9.27, 9.28 mediation …. 8.106 Industrial relations law …. 6.55 Informed consent achieving …. 12.35, 12.40 bene ts of …. 5.61 coaches supporting …. 12.50 consensuality …. 12.37 DR, in …. 12.34–12.55 approach to achieving …. 12.40 fairness goals and …. 5.60 intake processes …. 12.43–12.47 intervenors, ethical activism by …. 12.52 maximisation of party control …. 12.37, 12.41–12.51 meaning of …. 12.36 mediation, in …. 8.20 preparation and …. 12.49 Institute of Arbitrators and Mediators (IAMA) …. 6.75 Integrity judges, of …. 13.61 Interests disputes, in …. 2.44 International adjudicatory courts and tribunals Australia as disputant in …. 11.76 foreign investment claims …. 11.84 human rights …. 11.85 increased number of …. 11.75 International Centre for the Settlement of Investment Disputes (ICSID) …. 10.70

International commercial arbitration attractions as a DR process …. 10.60 enforcement of awards …. 10.61 Formula One (F1) case …. 10.65–10.68 UN Security Council, enforcement by …. 11.80 International Court of Justice (ICJ) advisory opinions …. 11.77, 11.81 costs of …. 11.83 effectiveness …. 11.82, 11.83 judgments …. 11.80 jurisdiction …. 11.77, 11.79 legitimacy …. 11.82 overview …. 11.77 public law disputes before …. 11.78 special agreement (compromis) …. 11.79 specialist expertise …. 11.83 International Covenant on Civil and Political Rights …. 11.85 International Criminal Court (ICC) jurisdiction …. 11.89 International determination systems DR processes …. 10.53 international determination bodies …. 10.54, 10.56 International disputes …. 10.55, 10.57–10.58, 11.73 DR processes …. 11.74 International law entities with standing …. 10.55 sovereign states …. 10.55 International Legal Services Advisory Council (ILSAC) …. 6.51 International litigation adjudication systems and …. 11.72 International Tribunal for the Law of the Sea …. 11.88 Interpersonal meaning of …. 2.31 Interpersonal con ict

meaning of …. 2.32 Intervenors DR processes, in …. 2.17 meaning of …. 2.18 third party see ird-party intervenors Intra-personal meaning of …. 2.31 Investment disputes arbitration in …. 10.69 J Judges Early Neutral Evaluation, providing …. 11.64 ethics for …. 13.60–13.66 guiding sources on …. 13.63 former, as DR intervenors …. 11.62 function of …. 5.56 impartiality …. 13.61 independence …. 13.61 integrity …. 13.61 judicial competencies …. 13.5 lonely nature of judicial office …. 13.65 ‘managerial judging’ …. 11.26 managerial roles for …. 11.31 problematic judicial conduct …. 13.60 public con dence in …. 13.66 removal from office …. 13.62 remuneration …. 13.62 roles of …. 11.13, 11.54 specialised benches …. 13.5 tenure …. 13.62 Judicial decision-making normative basis of …. 11.6 Judicial dispute resolution (JDR) accountability considerations …. 11.63

compatibility arguments …. 11.57 constitutional considerations …. 11.55–11.56 meaning of …. 2.24 overview …. 11.54 performance-based questions …. 11.60–11.62 settlement negotiation contexts …. 11.59 Judicial power Australian Constitution, in …. 11.55 Judicial review arbitral awards, of …. 10.42 expert determination, of …. 10.27 Justice access to see Access to justice classes of …. 5.35–5.42 de nition of …. 5.34 DR system, in …. 5.15 effective administration of …. 13.40 fairness, as …. 5.44 rst-class …. 5.35 holistic …. 14.32 litigated processes, in …. 5.38 non-adversarial see Non-adversarial justice second-class …. 5.35 substantive, goal of …. 5.54–5.59 value of DR, as …. 5.31–5.34 K Knowledge determinative processes …. 13.4–13.10 substantive …. 13.3 TLO 1: …. 1.64 L Law application of …. 1.4

doctrinal law …. 1.4 importance of …. 12.61 mediated agreements, impact on …. 12.62 parties’ understanding of …. 12.64 shadow of see Shadow of the law uncertainty of …. 12.58, 12.63 Law schools number of …. 1.5 practical legal training …. 1.6 undergraduate and postgraduate degrees …. 1.5 Lawyers Aboriginal and Torres Strait Islander peoples …. 1.13 adversarial advocacy hat …. 12.14–12.21 advocates, as …. 12.24–12.25 alcoholism …. 1.42 altruistic bene ts …. 1.8 arbitration, in …. 10.86–10.87 conciliation, in …. 9.47, 9.51–9.53 corporate and government legal sectors …. 1.13 depression among …. 1.42 dispute resolution processes, in …. 2.85 DR contexts, practising in …. 12.32 DR processes, in …. 2.19 estimated costs …. 7.63 future lawyering …. 12.31 gender breakdown of …. 1.13 just and orderly society, contributing to …. 1.28 litigation, involved in …. 11.95 mediation, in see Mediation moral compass …. 1.12 negotiations, in …. 7.63 ‘new lawyer’ …. 12.29 non-adversarial advocacy hat …. 12.22 oaths and affirmations by …. 1.12

practising, number of …. 1.13 prestige and social standing …. 1.8 private practice, in …. 1.4, 1.13 professional ethical obligations …. 12.26 professional identity of …. 1.44 societal privilege …. 1.8 substance abuse …. 1.42 unemployment levels among …. 1.42 ‘zealous advocate’ …. 12.19 LEADR …. 6.76 Legal education adversarial advocacy …. 12.30 adversarial nature of …. 12.30 apprenticeship model …. 1.5 dispute resolution knowledge …. 1.2, 1.50 doctrinal discipline content …. 1.57 DR …. 13.3 DR expertise …. 1.51–1.61 objectives and content of …. 1.56 preparing lawyers of the future …. 1.51–1.55 Priestley 11 core subjects …. 1.5, 1.52, 1.57 criticisms of …. 1.59 reviews of …. 1.58 skills need to practise law …. 1.60 threshold learning outcomes and …. 1.62–1.72 traditional, shortcomings of …. 1.42 university, at …. 1.5 Legal practice admission to …. 1.6, 1.12 alternatives to litigation, advising on …. 1.24 Australian, DR in …. 6.49 communication skills …. 1.15, 1.19 con ict avoidance …. 11.95 contemporary …. 1.21

court-based litigation …. 11.95 DR work …. 1.14 future of …. 1.2 innovative service provision …. 1.47 litigation …. 1.16 market forces …. 1.11 nature of …. 11.95 practising certi cate …. 1.6 private sector, in …. 1.4, 1.13 pro t-making business enterprise, as …. 1.7, 1.11 societal con dence in …. 13.40 solicitors and barristers in private sector …. 1.4 transactional work …. 1.14, 1.17, 2.83–2.84 advice and advocacy …. 1.19 business and commercial transactions …. 1.18 competencies required for …. 1.19 legal documentation …. 1.19 nature of …. 1.18 preventing disputes arising …. 1.20 Legal profession American …. 1.40 apprenticeship model …. 1.5 change, challenges of …. 1.35–1.37, 1.41, 1.44–1.46, 14.2–14.3 DR as response to …. 1.46–1.50 collaboration, emphasis on …. 1.39 crisis, in …. 1.42, 1.43, 1.46 ethics …. 13.40 future of …. 1.41–1.42 gender breakdown of …. 1.13 globalisation, forces of …. 1.39 good character requirement …. 1.12 history of …. 1.3, 1.5, 1.43 honourable history …. 1.7 innovative service provision …. 1.47

just and orderly society, contributing to …. 1.28 ‘learned and noble’ …. 1.7, 14.7 legal expertise …. 1.4 market forces …. 1.11 moral resolve, lack of …. 1.43 national pro le of …. 1.13 nature of …. 1.2 oldest …. 1.3 philosophical framework …. 1.2 proactive focus, need for …. 1.37 public image …. 12.23 radical changes to …. 1.45 rule of law, commitment to …. 1.10, 1.26, 1.27–1.34 smarter systems, using …. 1.38 social and political signi cance …. 1.11 societal transformation, keeping up with …. 1.44 society, serving …. 1.3 sustainable future for …. 12.12 tide of change facing …. 1.2, 1.37 traditional forms of work, end of …. 1.38 values …. 1.12, 5.10 revisiting …. 1.41 Legal services provision catalysts for change in …. 1.45 client- and market- responsive methods of …. 1.44 innovative …. 1.47 reconceptualisation of traditional approaches …. 12.12 technology driven …. 1.49 unbundling …. 4.12 Liberalisation legal services market, in …. 1.44 Litigants meaning of …. 2.15 self-represented …. 11.14

guidelines as to level of assistance …. 11.16 support and assistance for …. 11.15 Litigation ADR in contradistinction to …. 3.9, 4.110 ‘adversarial’ nature of …. 11.12–11.13 alternative approaches in …. 11.23 alternatives, advising clients on …. 1.24 appropriate DR approach …. 1.22 Australian domestic law, in …. 11.10 caseloads …. 11.20 characteristics of …. 11.5–11.6 civil law jurisdictions, in …. 11.17 common law …. 11.10 critiques of …. 11.19–11.22 components of process …. 11.34 contemporary legal practice, in …. 1.21 court-based, ADR in …. 11.38–11.42 critiques of …. 11.19–11.22 ‘decomposition’ of process …. 11.34 de nition …. 11.2 determinative process of …. 4.110 DR processes and …. 1.16, 11.1 DR spectrum, on …. 3.16–3.19 due process …. 5.39 nalisation of disputes through …. 1.23 rst-class justice and …. 12.14 rst-class view of …. 5.37 future of …. 11.92 hearings …. 11.11 inquisitorial systems …. 11.17 internal operation of process …. 11.21 lawyers involved in …. 11.95–11.97 ‘litigation explosion’ …. 6.19 outcomes of …. 11.18

overview …. 11.1 pre-litigation requirements …. 11.35–11.37 procedural formality …. 11.6 social ordering through …. 5.56 traditional common law …. 11.10 ‘umpire’ model …. 5.39 values and goals of …. 11.3 M Med-arb blended DR process, a …. 4.117, 10.77 Mediation adjournments …. 8.89 advisers, role of …. 8.69 advisory see Advisory mediation agenda setting …. 8.46–8.48 agreement to mediate …. 8.37, 8.71 applications of …. 8.99 appropriateness of …. 8.113, 12.43 autonomy of parties …. 8.7 relational concept …. 8.16 value of …. 8.13–8.15, 8.21 bargaining …. 8.52 barristers assisting with …. 1.23 building and construction disputes …. 8.101 central role of …. 4.60 closure …. 8.55 commercial disputes …. 8.100 common ground, identifying …. 8.45 community disputes, in …. 8.102 compromise or concession in …. 8.16 willingness …. 8.117 conciliation, distinguished …. 4.78, 9.5–9.11 conditions, setting …. 8.38 con dentiality …. 8.11, 13.75–13.83

con ict circumstances in …. 2.8 contentious issues in …. 8.113 counselling and …. 4.52 court referrals to …. 11.42 de nition …. 4.57, 8.4, 8.94 discussion and exploration …. 8.49–8.51 DR spectrum, on …. 3.16–3.19 electronic technologies …. 8.82–8.88 emotions, acknowledging …. 2.11 ethical paradigm for …. 5.64 evaluative see Evaluative mediation facilitated DR process, as …. 3.25 facilitative see Facilitative mediation family disputes …. 8.104 nal decision-making …. 8.55 rst narrative, power of …. 8.44 industrial disputes …. 8.106 informed consent …. 8.20 initial statements by parties …. 8.41–8.45 institutionalisation of …. 1.23 intake processes …. 12.42–12.47 joint sessions …. 8.74 lawyers in …. 8.3, 8.20, 8.123–8.124 role of …. 8.69 supportive advocacy role …. 8.20 legitimacy in Western society …. 8.12 less formal process …. 2.11 models …. 8.22–8.31 practice contexts …. 8.32–8.34 online …. 8.82–8.88 options, generating …. 8.52 organisational preparation …. 8.67–8.68 participation …. 8.7, 8.13 direct …. 8.14

post-mediation activities …. 8.72 power dynamics …. 8.17 preliminary activities …. 8.59–8.64 private system, as …. 8.12 problem-solving …. 8.52 process and procedure …. 8.35–8.58 variations in …. 8.73 process goals …. 8.7 quality …. 8.122 recording …. 8.55 screening processes …. 12.43 self-determination …. 8.7 separate sessions …. 8.53–8.54, 8.74 shuttle mediation …. 8.78–8.81 de nition …. 8.79 standards …. 8.122 suitability of …. 8.114 support people, role of …. 8.69 suspension …. 8.90 telephonic/text approaches …. 8.82 termination …. 8.90 therapeutic see erapeutic mediation timing of …. 8.118 transformative see Transformative mediation understanding …. 8.2 values and goals framework …. 8.8 ‘voluntary’ process, as …. 8.9 loss of voluntariness …. 8.21 Mediator Standards Board (MSB) …. 6.66, 6.70, 13.22 establishment …. 13.71 Mediators accreditation …. 13.25 activist role for …. 8.18 advisory and evaluative functions …. 8.18

appointment …. 8.65 capabilities …. 8.93 complaints against …. 11.63 conduct of the process …. 8.121 continuing professional development …. 13.25 ethical …. 8.19 ethics for …. 13.70–13.74 functions …. 8.40, 8.93–8.98 formal …. 8.96 impartiality …. 8.120, 13.84–13.87 ‘master’ …. 8.19 neutrality …. 8.10, 8.119 non-partisan intervenors, as …. 8.10 opening statement …. 8.36–8.40 panels …. 8.66, 13.12 power of …. 8.97, 8.119–8.122 Practice Standards …. 8.21, 8.60, 8.94, 8.120 retired judges …. 13.13 role of …. 4.58 selection …. 8.65 substantive expertise …. 13.12–13.13 Mini-trial advisory DR process, as …. 3.25 Moral compass DR processes, in …. 13.91–13.97 Morality ethics and …. 13.36 Motivation autonomous …. 5.72, 5.73 controlled …. 5.72 N National Alternative Dispute Resolution Advisory Council (NADRAC) …. 1.52, 3.3, 6.66 abolition of …. 6.72

bipartisan political support …. 6.69 disestablishment …. 3.3, 6.71 establishment …. 6.67 ethics …. 13.37 objectives of ADR …. 5.16 policy advisory body, as …. 6.68 principles for dispute resolution …. 5.17 research and publications …. 6.70 National Mediation Accreditation System (NMAS) …. 4.57, 6.70, 8.4–8.6 accreditation systems …. 11.63 approval …. 13.12 approval standards …. 13.25 commencement of …. 13.23 components …. 13.23 comprehensive review …. 13.23 con dentiality …. 13.77 ethical principles …. 13.72–13.73 key features …. 13.24 Practice Standards …. 8.21, 8.60, 8.94, 8.120, 13.72, 13.77 regulatory framework …. 13.72 National Mediation Conference …. 6.66 National Native Title Tribunal …. 6.61, 8.109 Native title claims …. 8.108 disputes …. 6.14 mediation …. 8.108 Natural justice fundamental principles of …. 5.47 Negotiation assisted see Assisted negotiation best possible outcome …. 7.49 content of …. 7.41 de nition …. 7.6 derivation of word …. 7.1

diverse dimensions of …. 7.8 DR process, as …. 7.3–7.5 DR spectrum, on …. 3.16–3.19 effectiveness …. 7.44 elements of …. 7.24 ethics …. 7.58 external, objective standards …. 7.48 facilitated see Facilitated negotiation human activity, as …. 7.2 impacts …. 7.27 institutionalisation of …. 1.23 interests, identifying …. 7.47 lawyers in …. 7.63 models and styles of …. 7.12 motivations for …. 7.25–7.26 nature of …. 7.25 non-negotiability …. 7.43 outcomes …. 7.44, 7.46 participants …. 7.30 positional …. 7.12–7.14 preparation for …. 7.32–7.36 principled …. 7.12, 7.15–7.23 private and con dential basis …. 7.28 problem-solving …. 7.15–7.23 procedure …. 7.37–7.39 referrals to …. 7.61 regulation of …. 7.58 regulatory compulsion …. 7.60 relative bargaining power …. 7.20 scope and content …. 7.40 settlements …. 7.45 statutory requirements for …. 7.59 supported …. 7.7 transactional negotiations …. 7.10, 7.24, 7.52–7.57

ubiquitous legal and DR skill and process …. 12.22 unassisted …. 7.7 unfacilitated process, as …. 7.6 without prejudice privilege …. 7.29 Negotiators ethical standards …. 7.65 Neighbours con icts between …. 2.6 Neurobiology DR processes and …. 13.32 Neutral evaluation advisory DR process …. 4.75, 4.83 Neutrality mediators, of …. 8.10, 8.119 notion of …. 5.63 New York Convention (NYC) …. 10.61 Non-adversarial justice courts, in …. 11.65–11.69 initiatives …. 11.66 vectors …. 11.66 O Ombudsman categories of …. 4.93 complaints in speci c industries …. 6.65 institutionalisation of DR through …. 6.59–6.65 institutions …. 4.92, 6.62 jurisdiction and procedures …. 4.94 lawyers and …. 4.96 parliamentary …. 6.63 recommendations for redress …. 6.64 Online courts future of litigation …. 11.92–11.94 Online DR mediation …. 8.82–8.88

Orders court, as ‘shadow’ of the law …. 12.65 Organismic Integration eory …. 14.59 Outcome DR process, of …. 2.20 formal …. 2.20 informal …. 2.20 P Participants con ict and disputes, in …. 2.14–2.16 negotiation, in …. 7.30 Participation mediation, in …. 8.7, 8.13–8.14 parties, by …. 5.76–5.77 Parties meaning of …. 2.15, 2.16 Partnering consensuality principle …. 4.46 construction industry, in …. 4.43, 4.45 de nition …. 4.44 government agencies …. 4.47 Perceptions con icts, in …. 2.33 PERMA framework …. 14.62 accomplishment (A) …. 14.73 engagement (E) …. 14.66 ve measurable elements of wellbeing …. 14.60 meaning (M) …. 14.71 positive emotion (P) …. 14.63 positive relationships (R) …. 14.68 Personal injuries pre- ling DR efforts in …. 1.23 Pleadings nature of disputes, concealing …. 11.21

Positions disputes, in …. 2.44 Positive psychology …. 14.56–14.57, 14.61 Pound Conference US, in …. 6.34–6.35 Power actual assertion of …. 2.59 adversarial advocacy, in …. 12.19 asymmetrical relations …. 2.62 complexity of concept …. 3.37, 5.100 con ict and disputes, in …. 2.56–2.62 context and circumstances …. 2.60 ethical conundrums …. 2.61 imbalances …. 2.56, 5.38 mediation, in …. 8.17 mediators, of see Mediators sources …. 2.58 Practical Legal Training (PLT) courses …. 13.3 DR …. 13.3 Practitioner meaning of …. 2.18 Praxis advocacy and DR praxis …. 12.12 critical perspectives, importance of …. 12.7–12.11 dispute resolution, in …. 12.5 meaning of …. 12.1 practice and theory …. 12.1–12.2 Precedent legal doctrine of …. 5.42 litigation, through …. 5.56 Press Council of Australia …. 4.106 Preventative lawyering (PL) …. 14.33–14.37 Prevention

meaning of …. 2.28 Priestley 11 core subjects …. 1.5, 1.52, 1.57–1.58 criticism of …. 1.59 DR and …. 13.3 reviews of …. 1.58 TLOs and …. 1.62 Private judging determinative DR process, as …. 3.25 Procedural fairness/justice arbitrators …. 10.20 DR processes, in …. 5.49, 14.43–14.44 expert determination, in …. 10.19–10.21 justice and …. 5.47 outcome fairness and …. 5.53 rule of law and …. 1.32 Process see DR process Productivity Commission …. 1.35, 1.61, 6.62 report …. 5.18 Professional identity concept of …. 14.9, 14.11, 14.53 DR practice, for …. 14.13, 14.16 delity to the good of dispute resolution …. 14.17–14.19 importance of …. 14.53 legal ethics, distinguished …. 14.10 legal, notion of …. 14.7 noble profession, and …. 14.7 personal identity …. 14.9 positive DR, through …. 14.75 importance of …. 14.53 understanding …. 14.6 professionalism, distinguished …. 14.10 ‘public office; …. 14.20–14.23 re ective practice and …. 12.71, 12.75

Professional ideology DR practice in law, for …. 14.14 Professional responsibility TLO 2 …. 1.65 Professionalism professional identity, distinguished …. 14.10 Professionals non-law DR …. 2.8 Professions characteristics of …. 1.9 ethical standards of practice …. 13.38 legal see Legal profession sociology of …. 1.9 substantive knowledge …. 13.3 Psychologists lawyers bringing in …. 2.8 Psychology DR processes and …. 13.32 positive psychology …. 14.56–14.57, 14.61 Q QCAT …. 6.61 arb-med system …. 10.80 building and construction disputes …. 8.101 hybrid hearings …. 10.80 quali cations of members …. 13.10 Quali cations adjudicators in tribunals and commissions …. 13.9 arbitrators, of …. 13.6 de nition …. 13.2 QCAT, members of …. 13.10 R Reconciliation meaning of …. 2.26

Refereeing determinative DR process …. 4.108 Re ective DR practice de nition …. 12.69 emotional intelligence and …. 12.71, 12.72–12.74 experience, learning from …. 12.70 metacognitive skill …. 12.69 positive professional process …. 12.68 professional identity …. 12.71, 12.75 self-management skills …. 12.67, 12.71 Relatedness psychological wellbeing and …. 5.70 Research skills TLO 4 …. 1.67 Resolution meaning of …. 2.23 e Resolution Institute …. 6.66, 6.77 Restorative justice (RJ) …. 14.45 Role differentiation …. 13.36 Role identity …. 14.9 Rule of law access to justice and …. 5.85 central tenet …. 1.27 de nition …. 1.28 democracy and …. 5.20–5.27 DR practice and …. 1.31–1.34, 5.265 indicia of …. 1.29 judicial adjudication …. 5.56 legal profession’s commitment to …. 1.10, 1.26, 1.27–1.34 liberal democratic societies, in …. 1.3 relevance …. 1.2 S Self-determination goal of …. 5.78

mediation, in …. 8.7 relational, upholding …. 5.64 Self-determination theory (SDT) …. 5.67–5.75, 14.58 summary of …. 14.59 Self help activities …. 4.5 approaches …. 3.26, 4.8 con ict coaching …. 2.70 Self-management TLO 6 …. 1.69 Separation of powers Ch 3 judges …. 11.55 judicial function …. 11.55 Settlement meaning of …. 2.21 negotiations, judicial role in …. 11.59 Shadow of the law challenges to concept of …. 12.60 concept of …. 12.56 multiple shadows …. 12.65 operationalising …. 12.61 role of law, overstating …. 12.61 Singapore Convention on Mediation …. 10.56 Small claims pre- ling DR efforts in …. 1.23 Social identity …. 14.9 Social workers lawyers bringing in …. 2.8 Subjectivity con icts, in …. 2.33 Susskind, Richard …. 1.37–1.39, 1.49 T Technology advances in …. 1.36, 1.39

legal profession, impact on …. 1.41, 1.44 technology-driven legal work …. 1.49 erapeutic jurisprudence …. 14.46–14.48 erapeutic mediation transformative DR process, as …. 4.111, 4.115 erapists lawyers bringing in …. 2.8, 2.27 erapy transformative DR process, as …. 4.111, 4.112 inking skills TLO 3 …. 1.66 ird-party intervenors roles and functions of …. 3.27–3.32 reshold Learning Outcomes for Law (TLOs) …. 1.54–1.55 DR and …. 1.62–1.72 Priestley 11 and …. 1.62 TLO 1: Knowledge …. 1.64 TLO 2: Ethics and professional responsibility …. 1.65 TLO 3: inking skills …. 1.66 TLO 4: Research skills …. 1.67 TLO 5: Communication and collaboration …. 1.68 TLO 6: Self-management …. 1.69 Trade disputes nation states, between …. 11.86–11.87 Transformative mediation de nition …. 8.29, 14.49 model …. 8.29–8.31, 14.49–14.51 transformative DR process, as …. 4.111, 4.114 Tribunals adjudication …. 4.105 adjudicators in …. 13.9 core aims of …. 6.60 establishment of …. 6.60 institutionalisation of DR through …. 6.59–6.65

non-adversarial procedures …. 6.61 ‘super’ tribunals …. 6.61 U UN Committee against Torture …. 11.85 UN Committee on the Elimination of Race Discrimination …. 11.85 UN Human Rights Committee …. 11.85 UN Security Council binding determination by …. 11.74 enforcement of ICJ decisions by …. 11.80 UNCITRAL Model Law on International Commercial Conciliation …. 4.78, 8.111, 10.60 constitutional challenge to …. 10.63 Unfair dismissal conciliation …. 9.30 mediation …. 8.107 V Values and goals conciliation, of …. 9.12 connection between …. 5.12 dispute resolution, in …. 5.1–5.7 goal, meaning of …. 5.11 ideology …. 14.15 litigation, of …. 11.3 mediation, in …. 8.8 philosophical framework for …. 5.20 principles …. 5.14 understanding …. 5.8 values, nature of …. 5.9–5.10 W Without prejudice privilege negotiations, in …. 7.29 Woolf Inquiry

UK, in …. 6.34, 6.38–6.40 Words and phrases access to justice …. 5.86 accommodation …. 2.22 adjudicate …. 2.24 adversarial …. 11.12 advisory processes …. 3.25 advocacy …. 12.14, 12.23 advocate …. 12.24 alternative dispute resolution (ADR) …. 3.8 altruism …. 14.72 antagonists …. 2.15 assisted negotiation …. 4.19 autonomy …. 5.67 Best Alternative to a Negotiated Agreement (BATNA) …. 7.50 case appraisal …. 4.84 civil society …. 5.83 client …. 2.16 collaborative law …. 4.21 collaborative practice …. 4.21 competencies …. 13.2 complaint …. 2.12 conciliation …. 4.79 conferencing …. 4.68 con rmation bias …. 2.47 con ict …. 2.6, 2.9 con ict management …. 2.29 convenor …. 2.18 de-escalation …. 2.51 democracy …. 5.21 determinations …. 2.24, 2.25 determinative processes …. 3.25 disputants …. 2.16 dispute …. 2.9

dispute pyramid …. 3.20 dispute resolution (DR) …. 3.14 dispute tree …. 3.21 early neutral evaluation …. 4.84 emotional intelligence …. 12.72 escalation …. 2.51 ethics …. 13.35, 13.37 expert appraisal …. 4.84 expert determination …. 10.8 facilitation …. 4.61 facilitative DR processes …. 3.25 facilitative mediation …. 4.57 false con icts …. 2.33 family dispute resolution (FDR) …. 4.71 fundamental attribution error …. 2.48 goal …. 5.11 grievance …. 2.13 high con ict situations …. 2.7 ideology …. 14.14 informed consent …. 12.36 interests …. 2.44 intermediary …. 2.18 interpersonal …. 2.31 interpersonal con ict …. 2.32 intervenor …. 2.18 intra-personal …. 2.32 judicial dispute resolution …. 2.24 justice …. 5.34 lawyers …. 2.19 litigants …. 2.15 litigation …. 11.2 mediation …. 4.57, 8.4, 8.94 meta-con icts …. 2.34 multi-door courthouse (MDC) …. 11.48

negotiation …. 7.6 opponents …. 2.15 the opposition …. 2.15 the other side …. 2.15 outcome …. 2.20 participants …. 2.16 parties …. 2.15 partnering …. 4.44 perceptions …. 2.33 positional negotiation …. 7.12 positions …. 2.44 power …. 2.56 practitioner …. 2.18 praxis …. 12.1 prevention …. 2.28 principled negotiation …. 7.12 process …. 2.30 professional identity …. 14.9 pseudo con ict …. 2.33 quali cations …. 13.2 reconciliation …. 2.26 re ective practice …. 12.69 resolution …. 2.23 rivals …. 2.15 role differentiation …. 13.36 rule of law …. 1.28 settlement …. 2.21 ‘shadow of the law’ …. 12.56 shuttle mediation …. 8.79 subjectivity …. 2.33 substantive knowledge …. 13.3 transformative mediation …. 8.29, 14.49 values …. 5.9 Workplace

conciliation …. 9.27 Fair Work Act 2009, in …. 9.29 grievances …. 2.13 mediation …. 8.106 World Trade Organization …. 10.58 Dispute Settlement Understanding (DSU) …. 11.86–11.87

Related LexisNexis Titles Alexander, Howieson & Fox, Negotiation: Strategy Style Skills, 3rd ed, 2015, ISBN 9780409338256 Boulle & Alexander, Mediation: Skills and Techniques, 3rd ed, 2020, ISBN 9780409348255 Boulle & Field, Mediation in Australia, 2018, ISBN 9780409347364 Condliffe, Con ict Management: A Practical Guide, 6th ed, 2019, ISBN 9780409349399 Field, Duffy & Huggins, Lawyering and Positive Professional Identities, 2nd ed, 2020, ISBN 9780409350487 Holmes & Brown, e International Arbitration Act 1974: A Commentary, 3rd ed, 2018, ISBN 9780409348132 Legg (ed), Resolving Civil Disputes, 2017, ISBN 9780409344097