Chapter 2: Dispute Resolution Matrix PDF

Chapter 2 The Dispute Resolution Matrix...

Chapter 2 The Dispute Resolution Matrix Chapter contents Introduction2.1 What was alternative dispute resolution (ADR)? What is DR? 2.8 Spectrums, pyramids, trees and a matrix  2.14 DR typologies 2.23 An Australian DR matrix 2.38 Self-help approaches 2.48 Processes without impartial intervention 2.51 Facilitated DR processes 2.67 Advisory DR processes 2.89 Determinative DR processes 2.106 Transformative DR processes 2.121 Blended DR processes 2.125 Conclusion2.132 Introduction 2.1 This chapter introduces a full range of dispute resolution (DR) processes and proposes a matrix for understanding how they relate to one another.1 As we 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 the demands of their professional work context.2 Copyright © 2016. LexisNexis Butterworths. All rights reserved. 1. 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, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335. 2. Early Australian writing on the issue of lawyers and ADR includes: David Newton, ‘Alternative Dispute Resolution and the Lawyer’ (1987) 61 Australian Law Journal 562. DR knowledge is now part of the new advocacy role for lawyers which we discuss in more detail in Chapter 11. See, eg, Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law (University of British Columbia Press, 2008) ch 5; Donna Cooper, ‘The “New Advocacy” and the Emergence of Lawyer Representatives in ADR’ (2013) 24 Australasian Dispute Resolution Journal 178; Donna Cooper, ‘Assisting Future Lawyers to Conceptualise 33 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 33 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  2.1 Australian Dispute Resolution: Law and Practice This entails isolating and understanding the different attributes of each of the various DR mechanisms, including the courts, and appreciating fully what each process has to offer. 2.2 In this chapter each process is defined, described and illustrated, and compared briefly with others to highlight similarities and differences. Later chapters give more detailed attention to the specific nature, operation and practice of the most significant processes in Australian and international contexts. The purpose of this chapter is to introduce DR processes, providing foundational knowledge about them. The chapter also explains how we use particular terms to reference and discuss different DR methods throughout the book. 2.3 The DR processes most relevant for lawyers are negotiation, mediation, conciliation, expert appraisal, arbitration and litigation. These can be referred to as the principal processes available to lawyers and they can be used as stand-alone systems or in combination with one another. Negotiation, mediation and litigation receive particular attention, albeit for different reasons. Negotiation is a foundational process used by lawyers both in settling transactions and in managing and resolving disputes; it is a process and skill relevant to all other DR processes, including litigation. In the chapters that follow we explore particular ways in which negotiation manifests itself as a critical suite of knowledge, skills and attitudes for lawyers. Mediation also plays a central role in contemporary DR contexts and for some people, though not the authors, alternative dispute resolution (ADR) is synonymous with mediation.3 There are, however, different models and styles of mediation and it is important that 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.4 Litigation is significant because, for lawyers and society as a whole, it sits at the apex of the DR hierarchy where it enjoys legal stature, social symbolism and a point of reference for other processes — although, as shown throughout this book, it is very limited in terms of its preponderance as a DR system. 2.4 During its 1995–2013 tenure the National Alternative Dispute Resolution Advisory Council (NADRAC) was a major force in defining and facilitating understandings of DR processes, as it was in promoting consistent DR policies in law, Copyright © 2016. LexisNexis Butterworths. All rights reserved. government and society.5 The disestablishment of NADRAC was unfortunate and misguided. Its definitions and scholarly contributions to the Australian DR literature and policy development remain relevant and valuable, but its sad demise means that this significant body of work is frozen in time and will not be the living, developing their Dispute Resolution Advocacy Role’ (2013) 24 Australasian Dispute Resolution Journal 242; Samantha Hardy and Olivia Rundle, Mediation for Lawyers (CCH, 2010); Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis Butterworths, 3rd ed, 2011). 3. Boulle reflects this primacy when he discusses other dispute resolution processes in comparison to mediation: see Boulle, above n 2, 137–76. 4. On this see Chapter 7 on facilitated processes. 5. We give a brief history of NADRAC, and other key DR organisations and bodies, in Chapter 3. 34 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 34 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  The Dispute Resolution Matrix 2.6 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,6 do not play the same unifying role for the DR community as NADRAC did as they deal predominantly with mediation in its various forms and not with the wider ambit of DR processes.7 In this chapter, therefore, references are consistently made to NADRAC’s definitions but other appropriate literature and sources are also referred to. 2.5 Definitions are always potentially important in law and in legal processes and lawyers like to work with robust definitions. Such definitions, however, can be difficult to isolate in the dynamic and evolving areas of DR theory and practice. Definitions are designed to provide clarity, consistency and a level of certainty as to how DR processes are understood and practised. Definitions help to classify knowledge, create and manage appropriate expectations, develop meaningful training and accreditation systems, and delineate responsibility, liability and other legal issues. Those who advise parties about accessing DR processes (such as lawyers, social workers, psychologists and law enforcement agencies) need to know what is encompassed by a term in order to give appropriate advice and adequately assist parties to prepare for participating 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 processes they offer, advocate or adopt. For example, contractual DR clauses used by lawyers require some consistency of meaning, and to achieve effective training and evaluation of DR interveners there must be commonalities in how relevant concepts are understood among respective parties. 2.6 Definitions of DR processes are also needed because they efficiently convey basic information about the central elements of each: for example, what service- providers’ obligations are in relation to their practices and what users’ roles entail.8 This is important for communications among lawyers, as peers within the same profession, and it is essential for the efficacy of lawyers’ communications with judges, arbitrators and mediators. Further, a clear understanding of terms is desirable when lawyers communicate with clients from diverse backgrounds who are not necessarily familiar with the language of law or DR. Moreover, definitions are required across societies and jurisdictions where similarly designated processes may be understood Copyright © 2016. LexisNexis Butterworths. All rights reserved. and practised very differently one from another. For these reasons this chapter focuses 6. See, eg, and further discussion of the MSB in Chapter 12. 7. See. 8. This point is made by many scholars. See, eg, Jack Effron, ‘Alternatives to Litigation: Factors in Choosing’ (1989) 52 Modern Law Review 480, 480–97; Yves Dezaley and Bryant Garth, ‘Fussing about the Forum: Categories and Definitions as Stakes in Professional Competition’ (1996) 21 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 Cardozo Journal of Conflict Resolution 86; Frank EA Sander and Lukasz Rozdeiczer, ‘Matching Cases and Dispute Resolution Procedures: Detailed Analysis Leading to a Mediation- Centered Approach’ (2006) 11 Harvard Negotiation Law Review 1. 35 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 35 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  2.6 Australian Dispute Resolution: Law and Practice on key definitional issues in DR, though as shown in the following pages definitions are sometimes frustratingly elusive in this area of professional and societal activity. 2.7 Introductions to, and explanations of, DR processes can adopt either definitional or descriptive approaches.9 Definitional approaches provide conceptual and theoretical understandings of each process, while descriptive approaches portray the realities of each in its practical operation. The definitional approach tends to be more abstract in nature and the descriptive approach more concrete and practice centred. Given the existence of great diversity in the operation of DR processes, this book adopts a ‘definitions-plus’ approach: the current chapter provides basic definitions, supplemented by brief descriptive illustrations, and later chapters portray more comprehensively the contours of actual practice 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 modified 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. As we explain later, each process can share significant features with others, and two or more processes can be interconnected in their operation. What was alternative dispute resolution (ADR)? What is DR? 2.8 Defining DR is not an easy task.10 There are many different processes that fall under the ambit of ‘DR’, and to complicate matters there is much internal diversity within processes which have the same label. When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR). The 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.12 While ADR was originally associated 9. See Boulle, above n 2, 15–17. 10. Eric Green was arguably the first to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Copyright © 2016. LexisNexis Butterworths. All rights reserved. Case Litigation: An Alternative Approach’ (1978) 11 Loyola of Los Angeles Law Review 493. The Australian Productivity Commission has also recommended that common definitions 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. 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 98-2010 (2010) , citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991–92) 15 Holdsworth Law Review 20. 11. See Frank EA Sander, Varieties of Dispute Processing in A Leo Levin and Russel R Wheeler (eds), The 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 9 on arbitration. 36 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 36 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  The Dispute Resolution Matrix 2.10 with mediation, it came to include other processes such as neutral evaluation and case appraisal. This resulted in NADRAC defining 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 2.9 The NADRAC approach emphasised that ADR was understood in contradistinction to litigation. This 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; binding versus non-binding processes. These sorts of binary distinctions have always been simplistic and confining, and have long (and rightly) been acknowledged as such.14 The 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 historically and socially misleading in terms of the extent of litigation’s contribution to overall DR systems.17 There is, however, another sense in which litigation enjoys a normative ‘primacy’ in legal DR: 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. 2.10 In the early 1990s Julian Riekert, one of Australia’s founding writers in the area, identified three descriptors of ADR: first, 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 Copyright © 2016. LexisNexis Butterworths. All rights reserved. 13. NADRAC, Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution (Australian Government, 2003) 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012) 5. 14. See, eg, Newton, above n 2. 15. Brunet, eg, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62 Tulane Law Review 1, 10. 16. Robert A Baruch Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335, 343. 17. For example, Galanter has 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 Journal of Law and Society 1. 37 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 37 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  2.10 Australian Dispute Resolution: Law and Practice intervention of an outside party.18 Riekert’s first definition continued the trend of defining ADR by reference to its alternative status to litigation.19 ADR was thus positioned for many years as the alternative option, and 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.20 To redress these perceptions there were suggestions that ADR should be understood as signifying ‘additional’,21 ‘assisted’,22 ‘appropriate’,23 ‘administrative’24 or ‘amicable’ DR.25 2.11 It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR has long been inaccurate.26 The processes understood to fall within its ambit are no longer ‘alternative’ or ‘marginal’ because they are in fact often the primary, dominant 18. Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1 Australian Dispute Resolution Journal 31. 19. This, however, did not include socially disproved methods of dispute resolution such as coercion. Another critique of the word ‘alternative’ is that it implies undesirable deviance from a norm, as in ‘alternative life style’; in this sense too it was argued that labelling the new developments as ‘alternative’ processes was unfortunate. However, for others the concept ‘alternative’ carried the positive implication of difference from convention. In common parlance ‘alternative’ has a wide range of connotations, from approving notions of something different to the staid and conventional, to derogatory senses of deviation from the accepted and normative. 20. Owen M Fiss, ‘Against Settlement’ (1984) 93 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’. 21. Sir Laurence Street, ‘The Language of Alternative Dispute Resolution’ (1992) 66 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 David Spencer, Principles of Dispute Resolution (Lawbook, 2011) 3. 22. See, eg, Paul Lynch, ‘The Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of The Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53. 23. The term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive — see, eg, the Civil Procedure Act 2010 (Vic) s 77. 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 often 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. Copyright © 2016. LexisNexis Butterworths. All rights reserved. 24. This expression is more limited in that it 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. 25. 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 2012 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods. 26. In some contexts ‘ADR’ is part of a broader concept of ‘resolution processes’. For example 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 defines 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. 38 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 38 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  The Dispute Resolution Matrix 2.13 or mainstream systems for resolving and managing conflicts and disputes, and are often sought out by the parties or mandated by DR clauses or by legislation.27 Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatment of disputes, notwithstanding its normative influence 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 deserve.28 2.12 While the term ADR remains widely used and recognised, 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 definitional questions and over what is and what is not included in generic terms in the field. It is propitious 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, as we discuss in Chapter 10. 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 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 we have a great diversity of processes available both within and outside the courts. There is also a realisation that whilst 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.29 2.13 Our approach in this book is to avoid the term ‘alternative’ in identifying DR processes other than litigation, and simply to refer to DR as encompassing all processes, including litigation.30 ADR remains an historical term of art, recognised and understood by many within the legal and justice communities, but it is no longer a Copyright © 2016. LexisNexis Butterworths. All rights reserved. 27. Anne Bihancov, What is an Example of a Good Dispute Resolution Clause and Why? (February 2014) Civil Justice Research Online. 28. In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: The Alternative (Carswell Thomson Professional Publishing, 1994). 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). 29. Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. But see Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities — What We Learn from Mediation’ (1993) 56 Modern Law Review 361, 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law influences out of court settlements. 30. See NADRAC, above n 13. Note the title of NADRAC’s definitions publication changed from Alternative Dispute Resolution Definitions in 1997 to Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution in 2003. See also ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7. 39 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 39 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  2.13 Australian Dispute Resolution: Law and Practice relevant or accurate descriptor for the future of DR practice, especially in legal contexts. It is used in this text only to reflect its use in cases or legislation or where its historical legacy makes it appropriate. Spectrums, pyramids, trees and a matrix 2.14 As noted above it is daunting to construct a concise definition of DR that is also comprehensive and accurate in relation to all processes in their different guises. NADRAC defined DR broadly as referring ‘to all processes that are used to resolve disputes, whether within or outside court proceedings’.31 However, DR would be a dangerous acronym if it were used to conceal the complexities of the individual processes within its ambit. So recognition of these complexities is important to the efficacy of definitions and descriptions of DR. 2.15 Although NADRAC defined 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.32 No model or approach to categorising DR processes is perfect,33 but finding ways to categorise processes is necessary because DR theory, professional discourse and scholarship cannot progress without some agreement as to the basic classification of key terms. Further, as we increasingly seek to better understand how DR processes work in practice through empirical research,34 the efficacy of our methodologies depends on some clarity about the features of the processes being examined and the ability to differentiate processes from one another. For this reason we adopt and add to NADRAC’s categories later in this chapter.35 First, however, it is useful to consider some of the methods that have been suggested for appreciating the differences among, and distinguishing the features of, DR processes. 2.16 The DR spectrum represents in linear form key processes available for managing and resolving disputes. The spectrum moves from informal, consensual and less interventionist approaches at one end to formal, less consensual and more interventionist processes at the other. The spectrum ‘correlates with increasing third Copyright © 2016. LexisNexis Butterworths. All rights reserved. party involvement, decreasing control of the parties over the process and outcome, 31. NADRAC, Dispute Resolution Terms, above n 13, 6. 32. Ibid. 33. Leonard Riskin quoted George Box as saying ‘All models are wrong but some are useful’: George EP Box, ‘Robustness in the Strategy of Scientific 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: The New Old Grid and the New New Grid System’ (2003) 79 Notre Dame Law Review 1. 34. See Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 5th ed, 2016). 35. The Irish Law Reform Commission added preventative, collective and court-based categories to those of facilitative, advisory and determinative: Law Reform Commission, Ireland, above n 10, 41. 40 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 40 9/29/2016 2:54:19 PM Created from uql on 2024-11-21 00:33:10.  The Dispute Resolution Matrix 2.19 and, usually, an increasing likelihood of having the relationship between the disputants deteriorate during and after resolution of the dispute’.36 Expertt Negotiation n Mediation Conciliation Arbitration Litigation appraisal Party control_____________________________________________External control Informal_______________________________________________________Formal Consensual____________________________________________________Coercive 2.17 In terms of responses to conflict and disputes, ‘walking away’, which could be said to fall at the most informal end of the spectrum, is the first possible choice. While walking away from a dispute is one of a range of possible response options, it is clearly not a process itself, and for this reason ‘walking away’ has not been included on the spectrum above.37 The first proper process on the spectrum is negotiation, followed by mediation, conciliation, expert appraisal, arbitration and finally litigation. A more detailed and process-inclusive spectrum could also include conflict coaching, partnering, collaborative law, dispute review boards, facilitation, conferencing, expert determination, early neutral evaluation case appraisal and refereeing.38 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. 2.18 As Field, Duffy and Huggins say about the spectrum: it is certainly a valuable instrument in a lawyer’s toolkit of practice. It 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, benefits and disadvantages.39 2.19 There is, however, potential risk that the relatively basic and unsophisticated representation of options on the spectrum might be misunderstood as understating Copyright © 2016. LexisNexis Butterworths. All rights reserved. the complexity of available DR processes, and the internal diversities within them, and result in over-generalisations about or distortions of the nature of the various processes. 36. Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective (Cavendish, 2004) 21. 37. The Productivity Commission, above n 10, 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. 38. See Spencer, above n 21. These processes are discussed in more detail later in this chapter. 39. Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis Butterworths, 2014) 405. 41 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 41 9/29/2016 2:54:21 PM Created from uql on 2024-11-21 00:33:10.  2.19 Australian Dispute Resolution: Law and Practice The spectrum is a useful tool for initial understanding, but it should only be used as a starting point. 2.20 Organising approaches other than the spectrum have been suggested. For example, in 1980 Miller and Sarat proposed the dispute pyramid.40 They 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’.41 In their data they found that for every 1000 grievances42 there were, in ascending order, 718 claims, 449 disputes, 103 lawyer-assisted matters and 50 litigated matters. This pyramid emphasises the point that litigation, whilst important, is not the process through which most disputes are resolved or managed. Like the spectrum, however, this approach offers a limited and relatively simplistic representation that does not accurately denote the true complexity of methods for the management of disputes. As Albiston, Edelman and Milligan note, ‘the dispute pyramid approach left important processes undertheorized and understudied’.43 2.21 In 2014 Albiston, Edelman and Milligan proposed a new organising approach with the concept of a dispute tree. This 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 flowers and fruit or may wither and die. Not only dispute trees but also their forests are subjects for study.44 2.22 While we support representations of DR approaches as non-linear and fluid, and acknowledge the contribution to DR theory and thinking that the DR spectrum, dispute pyramid and other models have made, and continue to make, our view is that all available representations, including the one we offer here, are limited in some way. Nevertheless, in the next section we propose a DR matrix with two inter-locking typologies, based firstly on the focus of the DR process and secondly on the roles and functions of respective interveners. DR typologies Copyright © 2016. LexisNexis Butterworths. All rights reserved. 2.23 A typology is a classification in terms of general type. The two typologies suggested here are designed to assist with analysing and assessing DR processes 40. Richard E Miller and Austin Sarat, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525. 41. Ibid 545. 42. A grievance is defined 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. This material is more fully dealt with in Chapter 5. 43. Catherine R Albiston, Lauren B Edelman and Joy Milligan, ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, 105. 44. Ibid. 42 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 42 9/29/2016 2:54:21 PM Created from uql on 2024-11-21 00:33:10.  The Dispute Resolution Matrix 2.26 and their ‘fit’ for particular disputes. The intention of the typologies is that, when combined, they inform the structure of the DR matrix so as to offer a more nuanced and sophisticated depiction of DR processes which harnesses theory and scholarship in a practically useful way. Typology 1: DR process focus 2.24 DR processes can be differentiated from one another according to the focus of the respective process. The relevant focus will depend to some extent on how conflict is analysed and understood by the relevant actors. A model for analysing conflict that illustrates how processes provide different foci for dealing with disputes is the interest/rights/power model,45 to which we have added the element of prevention to create a typology in which there are four focus-related categories.46 This typology highlights some of the different reasons that parties seek out particular DR approaches: prevention-focussed processes, for example, are for parties who seek to avoid disputes; interest-focussed processes assist parties to reconcile their needs and interests; rights- focussed processes provide parties with an assessment of who has merit on their side; and power-focussed processes are for parties who want or need a determination of which party is more powerful. Prevention-focussed DR processes 2.25 DR processes that have a focus on the prevention of conflict or disputes involve parties or organisations attempting to ensure that disputes do not emerge in the first place by establishing structures and procedures for dealing early with issues or problems.47 This focus in a DR process works to prevent issues from evolving into disputes by encouraging approaches and activities designed to anticipate and forestall problems through systems of planning, and establishing effective lines of communication, as well as avoidance and deterrence strategies. Prevention-focussed DR systems are essentially future-looking in their orientation. Interests-focussed DR processes 2.26 Interest-focussed DR processes provide parties with the opportunity to explore Copyright © 2016. LexisNexis Butterworths. All rights reserved. the interests underlying the positions they hold in a dispute. That is, in addition to considering what they want in terms of an outcome to a dispute, they also examine why 45. For a discussion of this model see Gary T Furlong, The Conflict Resolution Toolbox: Models and Maps for Analyzing, Diagnosing and Resolving Conflict (Wiley, 2005) 20. 46. See generally Leigh Robertson and Mieke Brandon, Conflict and Dispute Resolution (Oxford University Press, 2007) 55–82. 47. For more on the nature of ‘disputes’ and ‘conflicts’ see Chapter 5. 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 ‘The Law Office: A Preventive Laboratory’ (1956) 140 University of Pennsylvania Law Review 940. 43 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 43 9/29/2016 2:54:21 PM Created from uql on 2024-11-21 00:33:10.  2.26 Australian Dispute Resolution: Law and Practice they want that outcome.48 Exploring interests, needs and priorities can assist parties to move from what might seem to be intractable positions because while positions are often incompatible, interests may in fact be compatible and it may be possible to generate creative options that meet the different needs of the parties. Parties can engage in interests-focussed DR processes on their own or with assistance from interveners. Dialogue, negotiation, compromise and accommodation are 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. Interest-focussed processes are relevant to many diverse disputes at a range of levels, from personal to business and from community to institutional levels. Past events and legal rights have less direct significance in these processes, and power has only a limited role to play. Rights-focussed DR processes 2.27 In rights-focussed DR processes disputes are determined according to which party is entitled to prevail in terms of applicable rights and duties. The relevant rights and duties are commonly determined by reference to the law and legal norms. Parties who are focussed on their rights usually define their dispute in terms of their legal position, that is, their legal right to receive what they want. For this reason rights- focussed DR processes accommodate the parties taking a positional and often inflexible approach to resolving the dispute and allow for a result in which one party wins and the other loses.49 In such processes the parties in dispute, often through an expert representative or legal advocate, submit normative arguments to authoritative individuals or institutions for them to make decisions as to which party is right and wrong in relation to the claims they make about their respective rights and obligations. Rights-focussed DR processes focus predominantly on past events and parties favoured by legal or other normative standards are deemed to prevail, regardless of their interests or power resources. Power-focussed DR processes 2.28 Power is a complex concept, especially in the context of DR.50 Power is rarely an absolute notion and every party will usually have at least some source, or even Copyright © 2016. LexisNexis Butterworths. All rights reserved. multiple sources, of power available to them whatever the DR process in which they are engaged. In power-focussed DR processes, however, the relative power of the parties is critical because it can be determinative of the dispute’s outcome. Processes focussed 48. For example, interest-based mediation is discussed in Chapter 7. On interest-based negotiation, see Boulle, above n 2, 127–8. 49. 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 Australasian Dispute Resolution Journal 104. 50. See, eg, Hilary Astor, ‘Some Contemporary Theories of Power in Mediation: A Primer for the Puzzled Practitioner’ (2005) 16(1) Australasian Dispute Resolution Journal 30. See also Boulle, above n 2, 203–4. 44 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 44 9/29/2016 2:54:21 PM Created from uql on 2024-11-21 00:33:10.  The Dispute Resolution Matrix 2.30 on the parties’ power provide an environment in which the disputing parties engage in contests of strength through argument, political competition, referenda, industrial action, armed conflict or other power-based activities. It is because these contests operate at the power level that they allow stronger, more powerful parties to prevail and weaker, less powerful parties to be overpowered, regardless of the parties’ respective needs and interests, rights and duties, or other objective norms.51 Illustrating typology 1 2.29 The differences among the above categories can be illustrated as follows: The management of a not-for-profit 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 both sides are obligated in terms of the organisation’s policies and procedures to engage in discussions and negotiations designed to accommodate their respective needs and priorities (interests). If the interest-based processes do not resolve matters there is provision for an external visitor to determine who is right and wrong according to the organisation’s policies and procedures and to render decisions binding on the parties (rights). Finally where there is continued conflict or recalcitrance by either party, managers may exercise their prerogative powers to discipline the employee or volunteer, or both (power). 2.30 For both individuals and institutions an interest focus is generally less costly and damaging and potentially more beneficial 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.52 Conflict 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 entail fewer transaction costs, less relationship strain and greater satisfaction with outcomes, and reduce the likelihood of disputes occurring in the first place. These factors are reflected in the principles of disputes system design, discussed later. Although interest-focussed approaches are now commonly recognised as often able to produce optimal results Copyright © 2016. LexisNexis Butterworths. All rights reserved. for parties in dispute, some circumstances might not be suitable for these methods. For example, where persons allege that constitutional rights or fundamental liberties have been contravened then a rights focus in a court or tribunal is likely to be most appropriate. Likewise issues of significant social policy, such as human surrogacy or marriage equality, are less easily managed by interest-based processes. Rather, they require power contests through political systems or popular referenda for authoritative 51. See also Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy, Style, Skills (LexisNexis Butterworths, 3rd ed, 2015). 52. See generally William Ury, Jeanne Bret and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict (Jossey-Bass, 2003) 30–53. 45 CR_Boulle_Australian Boulle, DisputeAustralian L., & Field, R. (2016). Resolutiondispute Law andresolution. Practice_1st ed_Press Ready_Ch02.indd LexisNexis Butterworths. 45 9/29/2016 2:54:21 PM Created from uql on 2024-11-21 00:33:10.  2.30 Australian Dispute Resolution: Law and Practice determinations. Needless to say more than one focus may be appropriate for the same set of circumstances. 2.31 Lawyers, although conventionally associated with the rights focus of adversarial advocacy, litigation and other determinative processes, can be involved in each of the four modalities, as shown throughout this book. For example, lawyers often adopt preventative approaches in the transactional work they do for clients. They are also involved in interest-based exercises in negotiation and settlement work, as well as in the range of advocacy roles adopted in processes such as mediation and collaborative practice.53 Further, lawyers are, or should be, experts in understanding power relations in disputes and how to manage them.54 Typology 2: Independent interveners’ roles and functions 2.32 A second typology of DR processes focuses on the roles and functions of independent interveners. As we noted above, a well-accepted system of categorisation in Australia established by NADRAC, is that of facilitative, advisory and determinative systems.55 For the purposes of this typology we add the transformative dimension to these three categories. 2.33 In facilitated processes interveners assist parties by conducting the relevant process and managing its procedures but have no advisory or determinative roles in relation to the content or outcomes of disputes.56 In this category interveners have the limited roles and functions of supervising or managing the relevant process in which parties participate and make their own decisions. The theory of facilitated processes holds that it allows the parties themselves to determine their own outcomes. For example, mediators acting in terms of the NMAS are intended to conduct mediations as facilitated processes which require of them a range of procedural skills, techniques and understandings, but which stop short of advisory or determinative roles.57 2.34 In advisory processes interveners investigate relevant events, ascertain disputed facts and listen to the respective parties’ arguments; during and at the culmination of the process they provide opinions, advice or recommendations on disputed facts, applicable legal or other norms, and in some instances on appropriate dispute Copyright © 2016. LexisNexis Butterworths. All rights reserved. outcomes.58 The various advisory processes require interveners to have experience 53. For further discussion see Chapter 3. 54. See, eg, Susan D Carle, ‘Power as a Factor in Lawyers’ Ethical Deliberation’ (2006) 35 Hofstra Law Review 115. 55. For an application of this categorisation to family dispute resolution see Donna Cooper, ‘The Family Law Dispute Resolution Spectrum’ (2007) 18 Australasian Dispute Resolution Journal 234. Se