ADR Exam Prep notes PDF

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ADR BINDER Topic Glossary Week 1 Week 2 Week 3 Week 4 Week 5 Week 6 Week 7 Week 10 Week 11 Week 12 Week 13 Video playlists

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Cases Capricorn

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Ipoh Pihiga Tapoohi

Theory: Introduction to Alternative conflict dispute resolution Theory: Litigation and alternative processes Skills: listening Theory: Negotiation Skills: Negotiation Theory: Mediation and role of empathy Skills: Mediation Theory: Family mediation and Less Adversarial Trial (LAT) and conciliation in discrimination disputes Theory: Arbitration and expert appraisal/determination Theory: Hybrid processes Theory: ADR standards, qualifications, ethics and the courts Working it out ADR Brene Brown - empathy Sir Laurence Part 1 Sir Laurence Part 2 Scholarship dispute Mediation in the Federal Court of Australia LAT Part 1 – Justice Dessau LAT Part 2 – Justice Collier LAT Part 3 – Justice Le Poer Trench LAT part 4: Research by Joanna Kalowski and Jennifer Mcintosh Pathways to resolution: conciliation process of the Australian Human Rights Commission Chemical company supplied defective chemicals and plaintiff suffered loss Development agreement between parties Shareholders in real estate and settlement deeds Two sisters involved in complex dispute over deceased mothers’ estate

Page number 3 4 17 26 42 58 68 78 91 98 106 119 125 126 127 128 129 130 131 132 133 134 135 136 Page number 139 141 142 144

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GLOSSARY AAT = Administrative Appeals Tribunal ACCC = Australian Competition and Consumer Commission ACDC = Australian Commercial Disputes Centre (1985) ACR = Association for Conflict Resolution ADC = Australian Dispute Centre ADRA = Australian Dispute Resolution Association (1987) ADRJ = Australasian Dispute Resolution Journal 2|Page

ADT = Administrative Decisions Tribunal AHRC = Australian Human Right Commission AIATSIS = Australian Institute of Aboriginal and Torres Strait Islander Studies ALRC = Australian Law Reform Commission ALS = Australian Legal System BAM = Best Alternative to Mediation BATNA = Best Alternative to a Negotiated Agreement CAA = Commercial Arbitration Act 2010 (NSW) CALD = Culturally and Linguistically Diverse CISM = Critical Incident Stress Management

CMC = Computer Mediated Communication DRA = Dispute Resolution Advisor EDR = Early Dispute Resolution or External Dispute Resolution EMAN = Elder Mediation Australasian Network ENE = Early Neutral Evaluation FDR = Family Dispute Resolution FDRP = Family Dispute Resolution Practitioners FTF = Face To Face HREOC= Human Rights and Equal Opportunity Commission IAMA = Institute of Arbitrators and Mediators Australia (1975) IFAMP = Indigenous Facilitation and Mediation Project IMI = International Mediation Institute ITLOS = International Tribunal for the Law of the Sea JRC = Justice Resource Centre LAT = Less Adversarial Trial LEADR = Lawyers Engaged in Alternative Dispute Resolution MLATNA = Most Likely Alternative to a Negotiated Agreement MSB = Mediator Standards Board

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NADRAC = National Alternative Dispute Resolution Advisory Council (1995) NCAT = NSW Civil and Administrative Tribunal NMAC = National Mediator Accreditation Council NMAS = National Mediation Accreditation Scheme NMC = National Mediation Centre ODR = Online Dispute Resolution RATS = Realistic Alternatives to Settlement RMABs = Recognised Mediation Accreditation Bodies RMBO = Reasonable Mutually Beneficial Outcomes SCRAM = Schools Conflict Resolution and Mediation UKCFM = United Kingdom College of Family Mediation UNCITRAL = United Nations Commission on International Trade Law UNCLOS = United Nations Convention on the Law of the Sea

VLRC = Victorian Law Reform Commission WAM = Worst Alternative to Mediation WATNA = Worst Alternative to a Negotiated Agreement WIPO = World Intellectual Property Organisation

WEEK ONE - INTRODUCTION TO ADR Objectives – These are only broadly addressed in the lecture… and some not addressed at all. 1. Trace the history of ADR in Australia. 2. Appreciate the impact of changes in dispute resolution upon the legal system of Australia. 3. Explain the importance of an evaluative approach to ADR. 4. Stimulate thought and consider a method of dispute resolution different to the traditional adversarial process. 5. Outline how humour, perception and hope can play a role in effectively resolving disputes. When is humour inappropriate? LECTURE NOTES CONFLICT 

Christopher Moore:

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All societies, communities, organisations and interpersonal relationships experience conflict at one time or another in the process of day to day interaction.

o Conflict is not necessarily bad, abnormal or dysfunctional. It is a fact of life. o Conflict and disputes exist when people are engaged in competition to meet goals which are perceived to be or actually are incompatible. o Conflict may go beyond competitive behaviour and acquire additional purpose of inflicting physical / psychological harm on opponent – it is then that the negative and harmful dynamics of conflict exact their full costs. 

Jeremy Gormly SC (chair of NADRAC) o nothing wrong with dispute… It is normal. Indeed, it is an expression of the basic right to differ. In this sense dispute is closely related to freedom of speech. o The right to express views is part of the fabric of free society and of healthy relationships. o Unresolved disputes are costly, damaging and debilitating. They interfere with ordinary discourse. Bring productive activity to a halt. Generate animosity. Fracture otherwise good human relationships. Can interfere with any field of activity in which resolution does not occur. o We recognise a right to dispute but also recognise a need and an obligation to resolve disputes o Only tiny slither of disputes make it to court, and many disputes are resolved by negotiation / ADR before determination is made in court o Courts and Judges have been one of the great supporters of ADR. Actively encourage people to solve disputes outside of the court process.

WHY TEACH ADR 

Many people are unable to develop an effective process; deal with the psychological barriers to settlement; or develop integrative solutions on their own. They often need help to resolve conflict.

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Knowledge of mediation (ADR) enhances law students lawyering skills (even if they never mediate in practice) by enabling them to think in problem solving mode and to consider underlying needs and interests.

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Guttman et al.

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a qualitative study of ADR teaching in two law schools concludes that ADR courses put back everything law school took out, reintegrating humanity and common sense into the dispute resolution process.

Completely different approach to the adversarial system. ADR completely separate.

BIG PICTURE MISCELLANEA 

Fictional case of Jarndyce v Jarndyce – dispute went on for so long that the estate / wealth all chewed up in legal fees.

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Western Australian Argyle diamond mines formed a Participation Agreement with the Traditional Owners based on ADR principles, anticipating disputes and making concessions accordingly (addressing Traditional Owner’s interests) so that work could proceed.

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Survey in Catholic school addressing bullying – 97.5% had experienced some form of bullying in their career.

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Another litigation case involving teacher – Judge commented that “one shudders to think of the cost of this appeal…. As the courts have settled many of the principles in workplace cases……litigants should mediate in cases such as these. Mediation is infinitely preferable – great pity neither form of mediation has occurred or if it has, it has not produced a result.”

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Even in class-action – mediation can be preferable. Eg Equine Influenza outbreak in 2007, class action went into mediation.

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Centro Class Action o what is most surprising about the $200million settlement is that it didn’t come sooner. “When you strip away the lawyers and their carefully crafted views of liability, insert the commercial heads of the parties and the root to a settlement became just a little easier” o Intervention of one of Australia’s top corporate lawyers, Leon Zwyer, acted independently to get the commercial heads of centro, price waterhouse and funders behind the class action to sign a deal that was previously seen as hopeless. o Example of a lawyer committed to ADR settling a $200 million claim through an alternative process.

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“How to become a Wild lawyer” E. Rivers o Linear vs holistic 6|Page

o Fiction in legal reasoning that the world operates in a linear “cause and effect” way. Causation in relation to damages law a good example of this. o Based on “Newtonian” world view – but world is complex system of energy that does not operate in a linear way. o Adversarial system based on presumption that is a linear approach (ie cause and effect) and only way to resolve things is adversarial system to see which one wins. o Author claims “Lawyers more comfortable commenting on ideas and proposals by others than creating ideas and proposals of their own” o Historically – Profession as opposed to occupation - seen as having wider role in society beyond immediate needs of clients and making money. Law has changed from “professional role” to business to an “insurer of last resort – an indemnity policy to claim against if the deal goes wrong.” o Easy to lose touch with what it means to be a professional o Former US Supreme court judge Warren Berger: Lawyers will evolve to become reconcilers, not warriors. Healers, not hired guns. o How can lawyers take up their role of healers of the planet? Lawyers have individual and collective challenge to work out how to do this. o Author cites one factor for leaving practice is increasing discomfort as acting as a hired gun for clients who’s values she did not share. o Indian poet Tagore – “There are 4 rooms – mental emotional spiritual and physical. I will spend more time in some than others but to be healthy I must visit each room at least once a day”. o Lawyers spend most of their time in the mental room. o

To become a wild lawyer we need to integrate all four dimensions into our lives

o This is a paradigm shif in the way that lawyers function.

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DISPUTE RESOLUTION 3 forms of dispute / conflict resolution 1. Reconciling Interests – to identify and focus on underlying reasons behind people’s positions or demands. Looks at needs, concerns, desires, fears. 2. Determining Rights – usually by some independent standard such as statute law, precedent law or socially acceptable standards. Process can be by public or private adjudication. (courts etc) 8|Page

3. Who is most Powerful – threat of costs, use of intimidation, one party overbears other, examples include war, strikes etc. 

ADR is primarily interest based.

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Adversarial is primarily rights based

FORMATION OF DISPUTES

P. Akon model: Starts with grievance – aggrieved makes a complaint – once complaint is made it is either resolved or there is conflict – if conflict is unresolved then there is a dispute.

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Being aggrieved = feeling of something being not fair or not right.

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Complaint = an expression of dissatisfaction or concern about goods services action or inaction

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Conflict = to be at odds with or inconsistent with someone. P Akon thinks conflict is a disagreement about the concern. Once you express your concern and there is a disagreement about it, it becomes a conflict.

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Dispute = P Akon thinks it is best to say unresolved conflict. (rather than quarrel)

Topical: Astor & Chinkin – resolution of disputes “The Dispute Pyramid”

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Huge baseload of disputes going on in society.

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Comparatively small number that go to litigation due to all the ADR processes.

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The number of matters being resolved through alternate processes are increasing hence reducing number of cases that go to a hearing.

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Topical: HOW I RESPOND TO CONFLICT – exercise on Moodle. P649 Sourdin

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Topical: Paper by P R Callaghan SC - “Roles and Responsibilities of lawyers in mediation” o David Spencer 1998 - “A lawyer’s duty is to advise the client of all available options to resolve the dispute, not just the litigious option” o Law Institute Journal 1987 - “It is now incumbent for the lawyer to stop shopping just in the corner shop where only litigation is available, and to take clients through the shopping centres, where a whole range of ADR techniques are available” o In an article published by Hammond and Hausmann: “As pragmatic practitioners we know that trial is not necessarily the right answer. Ambrose Bierce once said that litigation is a machine which you go into as a pig and come out a sausage! …..overindulgence on this type of charcuterie can seriously damage your business financial health”

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THE HISTORY OF ADR IN AUSTRALIA 

40-60000 years ago First Nations People – anthropologists say societies would cease to exist unless dispute resolution processes were in place. This is where ADR started.

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100BC Ancient Greece – developed laws for conciliation and arbitration

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1697 – Parliament of Westminster passed the Arbitration Act of UK

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1788 – Colonisation of Australia. Any law from England was transplanted into Australia.

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1901 – Conciliation & Arbitration Act (Cth) was passed

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1984 – Uniform Commercial Arbitration Act

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1989 – Sir Lawrence Street retired as chief justice and began mediating

Rest of timeline of events can be found in custom text book, (Lexis Nexis) p7-8. **Exam Question: When was ADR introduced into NSW? ADR came to Australia (and hence NSW) with colonisation in 1788, since all British laws were put into place when first fleet arrived. HUMOUR IN MEDIATION 

Victor Borg says – “Laughter is the shortest distance between two people”

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Mark Twain – “humour is mankind’s greatest blessing”

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From a study: o Humour can have a serious role in the legal system. o Mediators used it to lighten the mood o Women (especially young women) may need to be more circumspect in their attempts to use humour o Preferred humour = Non-contentious, innocuous humour. o Self-deprecating humour can usefully lower the status of the mediator so the disputants feel empowered o Need to be careful not to trivialise the situation. Inappropriate humour can exacerbate the power differential between mediator and client

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READ BOTH PAPERS ON HUMOUR – FREQUENTLY COME UP IN EXAM. o J Forester, Responding to Critical Moments (in Negotiation) with Humour, Recognition, and Hope (2004) 20 Negotiation Journal 221

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o Kathy Douglas & Andrew Bayly, Humour in mediation: Sparking laughter through improvisation (2009) 20 ADRJ 96 MOST IMPORTANT TO NOTE: STARTING POINT is not to use humour. But if you do use it – the Golden Rule is humour must be self-deprecating. Do NOT project humour on to participants.

READINGS SOURDIN CHAPTER 1 Page 2 DESCRIPTION OF ADR Sourdin discusses the use of the word “Alternative” in ADR and looks at more recent commentary on what the A should stand for. 

Some have suggested “Appropriate”, “Assisted”, Additional”, “Affirmative”

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Sourdin notes: “These shifts are significant and signal not only a policy view about the importance of non-court dispute resolution processes, but also a recognition that such processes will often support more effective forms of dispute resolution”

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NADRAC: ADR is increasingly being seen “not as an alternative to the formal justice system, but a dispute resolution system in its own right”

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ADR is used to describe processes that maybe non-adjudicatory as well as adjudicatory which may produce binding or non-binding decisions. ADR includes processes described as negotiation, mediation, evaluation, case appraisal and arbitration

**Exam Question: What does the “A” stand for in ADR Sir Laurence Street said “alternative” no longer suitable. He said the nomenclature should be changed and referred to the “A” as “Additional” “A” = Additional (Sir Laurence Street) “A” = Appropriate (LEADR) “A” = Assisted (Other commentators) ADR practitioner as a “third party” 

ADR processes usually involve an impartial third party who assists parties in a dispute or conflict reach a decision by agreement; or makes a recommendation or decision that may be binding or non-binding

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Some exceptions exist – eg “collaborative practice” which involves a team approach and does NOT ordinarily involve a third party neutral.

Differences in processes (p5 Sourdin)

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Length of the process and formality – vast differences depending on complexity and number of parties involved. Sometimes a mediation can be more formal and lengthy than an arbitration

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Where processes incorporate different elements – for example, a conciliation may involve facilitative, advisory and determinative aspects of the resolution process.

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Role of third parties in dispute resolution models – whether mediator is able to express a view as to likely outcome, or the degree to which a third party can intervene etc. This can also vary depending on mediator (third party) style and approach to mediation. (Eg Michael McHugh including evaluative approach in mediations)

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Role of participants – who contributes to discussion: disputant, their adviser, lawyers, experts, additional interested parties etc. Needs and expectations of the participants may also vary. (Eg use of shuttle method where there is history of abuse)

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Subject of the dispute – will impact on relationship with the court system and tribunal system. May be statutory requirements that need to be adhered to. May also determine the timing of ADR interevention (eg where it is a court annexed process)

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Reporting and referral requirements - as above, if linked to court and other such processes, there may be reporting and referral requirements.

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Objectives of the process – whether used in case management, settlement of a dispute, improving relationships, improving communication skills etc

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Philosophical underpinnings – some forms of ADR founded on rational, scientific liberalistic philosophies. (eg problem-based and principled negotiation). Other forms have more relational, humanistic focus. (eg restorative, therapeutic, transformative models) which focus on relational aspects of conflict.

The ‘Winding Pathway’ – p19 Sourdin. (Discussed in week 2 lectures) Diagrammatic representation of how disputes are resolved, with litigation in courts being only small percentage. BROAD OBJECTIVES OF ADR NADRAC identified 5 common / core objectives of ADR: 1. Resolves disputes; 13 | P a g e

2. Uses a process which is considered by parties to be fair; 3. Achieve acceptable outcomes; 4. Achieve outcomes that are lasting; and 5. Uses resources effectively 3 common objectives of parties, practitioners, service providers, government and community: 1. To resolve or limit dispute in an effective and efficient way; 2. To provide fairness in proce...