CHOICE OF DISPUTE RESOLUTION FORUM – 500 words

Welcome, new neighbour

From the sounds of my ceiling,

You are dinosaur.

Dinosaur Neighbor Haiku, Reddit, <https://www.reddit.com/r/pics/comments/pmdtu/dinosaur_neighbor_haiku/>.

I enjoyed the Harvard exercise. Seeing how, both in my group’s scenario and in the other’s, certain types of issues consistently lending themselves to particular fora was a valuable insight. The tension for me however was between the commercial imperative of the firm to make money and what might best suit the client’s interests. This comes out of my undergraduate training in business and my experience working in the private sector, but in legal practice, there is a duty to the client that supersedes this. Perhaps the resolution of this tension is that there is a conflict building a reputation for client-focused outcomes enhances business for the firm. Maybe this is simply too focused on money and commercial arrangements.

In our group’s scenario I jumped to the assumption that the property disputes would be the most fractious, which has been my experience hearing about them from friends and colleagues but completely missed the fact that neighbours have an on-going relationship so it is in their interests to at least try to work things out. In practice, I should not make assumptions about the nature of clients’ relationships with other parties as I might miss opportunities for more amicable resolutions and not get the best outcome for my client.  

In my limited legal experience in employment law, I have noticed that advising clients about whether they should litigate in the Magistrates’ Court or pursue a med-arb process in the Fair Work Commission (FWC)/WAIRC usually centres the discussion around where they are most likely to win (i.e. a win/lose situation) and the costs of each venue. These are important but in discovering their ideal outcome part of my reflective practice should be to add in consideration of what forum best meets what they want to achieve.  The question arises as to whether I will ever see those relationship instinctually? Maybe all I can do is train myself over time to do it – or have someone with me who is better at than me. Perhaps I am better suited to another area of practice? My strengths tend to be more related to factual analysis so perhaps the take-home message is to look for area that plays to those strengths such as banking and finance.

This fits with Sander and Goldberg’s view that “run-of-the-mill tort claims” (and by inference contractual claims) are better handled through arbitration rather than a trial. Hamilton also recommends mediation in employment matters. In the employment law context, the system aims to preserve the relationship, so mediation would often be the better method if it is possible to repair the relationship. Often what comes through is that the employee felt that their skills contribution was not recognised. Knowing that I need to interrogate my assumptions, drill down and get to what is fundamental driving a client and knowing that that will shape what method of dispute resolution I recommend is definitely something I took away from the exercise. 

Sander F & Goldberg S, In Practice Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, Negotiation Journal January 1994, p49.

Hamilton, R 2009, Selecting an ADR Forum, Corporate Business Council Journal, <https://ccbjournal.com/articles/selecting-adr-forum>.

ARB-CON-ARB EXERCISE – 500 words

Through the door, running

Hair flowing magically

Welcomes me, my dog.

Baalak Baburo, <https://www.poetrysoup.com/poem/warmest_welcome_1045756>.

Several points came up for me during the exercise. During the initial arbitration I argued my case like I was in court – putting the best possible spin on my case (I was Barbara) and trying to make Kenneth look as bad as possible (and he was doing the same to me). I really was focused on winning the arbitrator over and we both got quite passionate as we spoke. (Bediou et al.) I think this was because we both assumed putting our best case partly meant rubbishing the other party’s. The assumption I had was that because arbitration more closely resembled litigation, that adversarial mode of presenting was the best one to adopt. This probably comes out of mix of what I have seen of litigation in popular culture and my own competitive drive. Looking back, at this stage we were talking at, rather than to each other. Perhaps the nature of the forum promotes extrinsic motivation. (Ryan & Deci)

Underpinning this is the deeper assumption that having being asked to state my case, it was about me, when in reality the rational thing to do would to have been to focus more on Lulu’s needs rather than my own ego or not frame Lulu’s needs in a way the suited my desires. What I take away from that phase was that in practice getting appropriate rules for the arbitration can greatly assist the process, particularly if they make it less adversarial. Which as Camilla pointed out is one of the great advantages of arbitration. It also flows into the design of the dispute resolution process, perhaps arbitration was not appropriate since this was not technical dispute as in IBM v Fujitsu (Stork) or the Hancock case but more like Pittorino v Meynert – a family matter.

Things changed when we moved into the conciliation phase, we shifted to a more intrinsic motivation; (Reiss) recognising that each of us had legitimate interests and that we could potentially accommodate them. Shifting the emphasis from presenting our cases to trying to work things out meant a much richer conversation centred around Lulu’s needs. The assumptions I had was that as Barbara and Kenneth had been together so long they would had had enough residual feeling for each other that they could use those emotions in a positive way to get a fair outcome with good conciliation. This comes from my own experience because even when someone has wronged me or hurt me, allowing vulnerability in to relationship was what deepened it to begin with and even if things cannot be worked out you can at least see why a person might hold the position they do. The importance of getting to that stage for how a party feels about a process was something I definitely took away. After that when the arbitrator ruled against me I still felt the outcome was fair because the process had been fair which goes to what Dr Richard Wally talked about on day one. 

Bediou, B., Mohri, C., Lack, J., & Sander, D. (2011). Effects of outcomes and random arbitration on emotions in a competitive gambling task. Frontiers in psychology, 2, 213. https://doi.org/10.3389/fpsyg.2011.00213.

Stork, A. (1988). The Use of Arbitration in Copyright Disputes: IBM v Fujitsu High Technology Law Journal, 3(2), 241-265.

Richard M. Ryan, Edward L. Deci, 2000, Intrinsic and Extrinsic Motivations: Classic Definitions and New Directions, Contemporary Educational Psychology, Vol 25, Iss 1, Pages 54-67,

Rinehart & Anor v Hancock Prospecting Pty Ltd (S143/2018).

Pittorino v Meynert [2002] WASC 76.

Reiss, S. (2012). Intrinsic and Extrinsic Motivation. Teaching of Psychology, 39(2), 152–156.

THE FIRST NEGOTIATION EXERCISE – 495 words

When everything is

on the table, then nothing

is off the table.

The Haiku Pundit, <https://haikupundit.wordpress.com/tag/negotiation/>.

Looking back, I see that as the school’s representative, I was going was going in with a number of assumptions.

To begin with, I thought the consultant would be more willing to budge on his fee because of us being a public school. Underpinning that were values I have about the importance of education generally and public schools in particular as they educate the next generation, can be a powerful force for social advancement and give someone a start in life. I assumed he would hold those values as well and they would influence his position. It was clear from the discussion that while he may have shared those values, they did not necessarily inform his position. (Felstiner) 

I also assumed that he would infer we were not flush with cash as a public school plus the benefit of getting the contract would potentially outweigh a fee reduction. This glosses over the fact that this not always the case, which may well have been what he would have had in his mind. I did end up communicating that to him which was a point he took into consideration but making constraining factors explicit to other party is definitely something I will do in future negotiations. (Brett & Gelfand)

Should price have been the starting point for the discussion? (Alavi et al.) Due to the information gap in our notes, I wanted to see if there was a possibility of him moving on price first. This was also what he did so we initially were haggling over price when we could have better spent that time looking at other options more fully. Partly there was a bit of ego there; if I had succeeded I would have delivered on my brief for the superintendent, which goes to reputation being a motivating factor. What I would now do is include that in part of my analysis of both sides’ interest prior to negotiating and try to have an interest-based negotiation when we sat down together.

Once we realised what a sticking factor price would be and how neither us had a lot of room negotiate it surprised me how quickly we started looking at alternative solutions in quite a positive way – this fed into the interest-based negotiation in the afternoon quite well. (Bazerman)

So practically, what I would do differently now?

To some extent the lack of preparation for both of us was a factor in how the discussion went. However, understanding that both parties will bring assumptions to the table, I would try to make mine explicit and try to understand what theirs might be. Knowing now that positions are signifiers of interests, I would also try to guess what theirs might be – are there any we have in common to build on? What ideas based off those could I put forward? This knowledge plus the tool for preparing for a constructive negotiation will inform my negotiation preparation and approach in future.

Felstiner, William L. F., The Emergence And Transformation Of Disputes: Naming, Blaming, Claiming... , Law and Society Review, 15:3/4 (1980/1981) p.631.

Brett, Jeanne & Gelfand, Michele. (2006). A Cultural Analysis of the Underlying Assumptions of Negotiation Theory. Frontiers of Negotiation Research.

Alavi, S., Habel, J., Schwenke, M. et al. Price negotiating for services: elucidating the ambivalent effects on customers’ negotiation aspirations. J. of the Acad. Mark. Sci. 48, 165–185 (2020). https://doi.org/10.1007/s11747-019-00676-4.

Bazerman, M. H. (1983) ‘Negotiator Judgment: A Critical Look at the Rationality Assumption’, American Behavioral Scientist, 27(2), pp. 211–228. doi: 10.1177/000276483027002007.

ABORIGINAL DISPUTE RESOLUTION – 491 words

Boomerang

My fingers read

Its journey

Roberta Beary, 2009 Haiku #311, The Dreaming Collection, 

<http://users.mullum.com.au/jbird/dreaming/ozku-P-first.html>.

I was struck by how collaborative Richard’s presentation was – we were invited into the learning experience by sharing with our classmates and him our thoughts. This opened up lines of conversation that would not have been had if it had just been done in a standard lecture format.

I was also struck by the idea of life as upwards spiral and that if you stuff up you go back to the centre of it. The community rallies around you just they do when you are a child or elderly and you ultimately pass on knowledge to the next generation. To some extent this has similarities to the heroic journeys that the protagonists in Homeric epics go on or the Jungian architype of the explorer. In my own life passing on things that I know to my nephew links him to me because he’s using knowledge that I thought him. As you move through different stages of life, your role shifts. Similarly, Aboriginal people’s knowledge about how to live links them to their ancestors and strengthens both culture and their families. This is accelerated by the shared song lines of neighbouring people making knowledge open source.

Another new thing I learned was the impact of sitting in a circle where you see all the other members of the community in contrast to the western style courtroom where you can avoid looking at the other party. I hadn’t really thought about this before but I can see why it matters – so much of human communication is non-verbal, seeing the other person face on lets you see how they react to what you say and gives you a truer insight into their inner world than their words alone which can lead to a better outcome for the parties. (Strang et al.) This links in with Aboriginal notions of justice equating to balance – a better outcome is a more balanced outcome. (Marchetti & Daly)

The holistic nature of Aboriginal dispute resolution was a point I struggled to fully grasp. Western-style dispute resolution tends to focus on the points of contention between the parties one by one, the Aboriginal focus on how interpersonal relationships tie in to the land itself is a real point of difference with many other cultures. The gap between the two systems reminded me of the story of the 5 blind men trying to describe an elephant by touching different parts of it. Each one is not necessarily wrong, but they miss the bigger picture. It was interesting to see an entirely different perspective on a subject to what I was used to – and indeed would never have even thought to be a factor in resolving a dispute. It will be something that I will have in mind dealing with Aboriginal clients when I am in practice in the future because it might lead to a better outcome than could otherwise be achieved by reducing an issue to its constituent parts. 

Strang, Heather & Sherman, Lawrence & Angel, Caroline & Woods, Daniel & Bennett, Sarah & Newbury-Birch, Dorothy & Inkpen, Nova. (2006). Victim Evaluations of Face‐to‐Face Restorative Justice Conferences: A Quasi‐Experimental Analysis. Journal of Social Issues. 62. 281 - 306. 10.1111/j.1540-4560.2006.00451.x.

Marchetti E & Daly K 2004. Indigenous courts and justice practices in Australia. Trends & issues in crime and criminal justice no. 277. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/tandi/tandi277.

THE CONFLICT RESOLUTION CONTINUUM – 420 words

Animal nature

Resents higher ideals

Who is the victor?

Noah Body,

<https://www.poemhunter.com/poems/conflict/page-1/40002039/>.

The lecture on conflict really spoke to me because it was a deep dive into an initiable part of life (and of course was the basis for the whole unit) presented in rich and systematic way. One of things I found most interesting was Henderson Power & Associates’ conflict resolution continuum. I had never thought conflict resolution in that way before. I started to think about some of the significant conflicts I have had and what sort of things I typically do in those situations. Often, I have been keen to avoid conflict or end up being the one whom compromises which often does not serve me.

Partly this comes out of my personality – when I did the Big 5 personality test (Poropat) I scored high on agreeableness so which often means I seek to be cooperative rather than get my way. So, I could see that I leant more to the passive end of the scale but as Gehani & Gehni (at 392) point out, Follet saw conflict as potentially a “legitimate and valuable expression of differences that can be made to work for the progress of the group”. This was another point that was new for me Also the point about how the likelihood of a lose/lose outcomes increased as the conflict resolution was one that struck home for me – ultimately those outcomes do not serve anyone. Interestingly Park & Antonioni found that personality and conflict behaviour can be separate and Schneewind & Gerhard found that conflict behaviour forms within the first year of a marriage, suggesting that behaviours can vary across relationships.

So my take-away from that reading and that part of the lecture is I do not have feel hamstrung by my personality and shifting to a more active form of resolution when conflicts arise – even though it puts me out of my comfort zone – increases the chances of a win-win outcome. 

In a legal practice setting understanding the conflict resolution continuum and the management/resolution approach continuum in the introductory dispute resolution lecture mean that I would inform them of the likelihood of a better outcome coming from a more active approach. This is particularly if they to fully resolve not just issue/s at hand, but any deeper underlying conflicts coming from their interests. Of course, though, the choice of dispute resolution design will involve other factors such as whether there is an on-going relationship, or whether there are niche technical issues in dispute and so on.

Heejoon Park, David Antonioni, Personality, reciprocity, and strength of conflict resolution strategy, Journal of Research in Personality, vol 41(1) 2007, Pages 110-125,

Poropat, A. E. (2009). A meta-analysis of the five-factor model of personality and academic performance. Psychological Bulletin, 135(2), 322–338.

R. Ray Gehani & Rashmi Gehani (2007) Mary Parker Follett's Constructive Conflict: A “Psychological Foundation of Business Administration” for Innovative Global Enterprises, International Journal of Public Administration, 30:4, 387-404, DOI: 10.1080/01900690601153148.

Schneewind, K.A. and Gerhard, A.‐K. (2002), Relationship Personality, Conflict Resolution, and Marital Satisfaction in the First 5 Years of Marriage. Family Relations, 51: 63-71.