System maintenance or mediating big issues?

Here is another excerpt from Chapter 12 of our recently published work: Mediation in Australia (LexisNexis, 2018):

It is a feature of the times to refer to different social phenomena as being in crisis. We read and hear about crises in the environment from deforestation to plastic pollution to space junk; crises in the conditions of over 60 million people dislocated by violence, discrimination or natural disasters; crises in democratic systems caused by corruption, authoritarianism, false facts and political apathy; crises in individuals’ sense of security, personal safety, work tenure, mental health and traditional ways of life; crises in domestic economies caused by excessive competition, tax and revenue avoidance and financialisation; crises in international customary law, treaties and conventions caused by geo-political forces and nativism; crises in reconciliation with Indigenous Australians caused by lack of constitutional or treaty recognitions; crises caused by disrupted patterns of economic ordering across national borders; and crises in wealth and income distribution and the financial dominance of a few and the poverty of the many. The legal profession too has long been said to be in crisis, and the same has been said of DR.

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Whatever the validity of the crisis claims there is little doubt that fear, anxiety and depression are widespread in Australian society, and in many others. Each of the above crises, some real and pressing and others more remote and hyperbolic, is partly a function of neoliberalist economic principles and practices which have both overt and covert implications for work, costs, cultures, health and ways of life of individuals, groups, organisations and whole societies. This is well-documented in the relevant literature.

We do not, however, depict a crisis in mediation. We rather consider it as one of several possible responses to other critical events and incidents. A question we would like to start considering is whether conflict management and DR processes in general, and mediation in particular, can provide appropriate systems and procedures for the future management of the many factors of challenge, disruption and transformation being experienced — can they support the prevention, containment, management, determination or resolution of the critical problems, conflicts and disputes which global societies face? We tentatively explore this in the context of many social institutions with ‘mediating’ functions having broken down in full or part — political parties, trade unions, churches and neighbourhood communities.

In a recent DR course conducted by one of the authors a similar list of domestic and global ‘big issues’ was provided to students. The students selected homelessness in Australia as their topic and were asked to research and consider how mediation methodology might be brought to bear on the political, economic, legal and practical dimensions of addressing the reality that over 100 000 Australians sleep rough each night. The inevitable utopian idealism aside, they were constructive and creative in probing and analysing how mediation values, procedures and techniques might be adapted and applied in these areas. In particular, they emphasised mediation’s potential role in identifying relevant parties, facilitating discussions, promoting interests and priorities, establishing supportive legal infrastructures and enhancing bargaining for mutual gains. Future progress will be reported in the literature.

Mediation has some initial form in regard to major social issues. It is used in one or other of its manifestations in everything from community to political disputes and from commercial to international conflicts. It has had direct and indirect influences on peace-keeping and truth and reconciliation systems, on the emergence of practices such as collaborative law, conflict coaching, negotiation acumen, dispute prevention and nudge practices and in specialist dispute areas such as family law, workplace relations, elder law, industry bodies, consumer complaints, end-of-life decisions and higher degree supervision. Even where mediation’s influence is indirect it is arguable that its institutionalisation in the legal system and accession into mainstream thinking has made these innovations more acceptable.

It is true that mediation has influenced many areas of societal thinking and social practice, but it has also been tainted or at least compromised by some of these challenges. We have tracked some of these influences in Mediation in Australia — influences which cause mediation to be more mandatory and manipulative, more evaluative and short-term focused, and more an instrument of other objectives and less of its own normative imperatives.

Nonetheless mediation, as a form of private ordering, has long been criticised for keeping important issues away from the public gaze. In relation to the big issues, mediation as we have known it has predominantly system maintenance functions, not dissimilar to equivalent DR procedures in traditional societies. A separating couple, for example, may agree on appropriate parenting arrangements for the children without redressing, or even addressing, past issues of abuse; franchisees may make a mediated exit from a franchise system without having received substantive justice on matters of misrepresentation, wage theft and inadequate franchisor support; new migrant workers may be compensated for injuries sustained in poorly-paid manual labour without any amelioration of the conditions for other workers in this sector; and a defamation action might be resolved between a celebrity and media proprietor without consideration of the media’s power and influence in society. In these cases, mediation can provide settlements, and sometimes justice for individuals and businesses involved, without providing communitarian changes or contributing to systemic benefits. This creates predicaments of conscience for some practising mediators.

Overhead view of stethescope on top of note pad

Here there might be an apposite analogy from the field of health science. Individual ‘private health’ treatment of those suffering from malaria, lung cancer, obesity or cardiac weakness does not itself diminish or remove the causes and incidents of the diseases in question. In relation to both communicable and non-communicable illness it is only ‘public health’ systems which can address systemic causes and symptoms and bring preventative measures into place in matters such as smoking, junk food and sugary drinks. Individual ‘private’ mediations, by analogy, have symptomatic and not systemic consequences and there is as yet a limited ‘public health’ role or application of mediation.

It can be contended, in defence, that mediation and conciliation do have systemic effects where statutory agencies nudge parties towards statutory norms, applicants feel empowered and respondents commit to redeeming their wanton ways, and there are, albeit remote, demonstrative effects for those outside the mediation room. Even in individualistic societies there are communal networks which transmit outcomes, lessons and messages. Nonetheless, individual private processes cannot alone change public communal factors and we consider in our next blog post how the elements of mediation might be used to address the big issues.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.123rf.com/stock-photo/crisis.html?sti=nd1ou56enpjuo4c7ma|; https://www.123rf.com/stock-photo/public_health.html?imgtype=0&oriSearch=crisis&sti=mxf449cbiav6j4hfk2|&mediapopup=84107140
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NMC2019 – PhD Research Reports

NMC2019 logo and brand

The next National Mediation Conference will convene in Canberra on 15-17 April next year.  the Conference streams include one devoted to DR research: Research, Education, and Training: Building a rigorous research base for DR.  Although the stream will have a broad focus on the many facets of DR research and education, the Conference Design Committee is keen to provide an opportunity for conference delegates to gain an appreciation of what is happening in current DR research round Australia.  To this end, they have suggested that a specific session be included in that stream, and that it be dedicated to reports from current PhD candidates for whom some aspect of DR is the focus of their research.  The research project does not have to be completed in order to be included in the session.  Nor does participation in this session require the submission of a formal Abstract for the conference.

The session is expected to provide conference delegates with a sense of what is happening in DR research, and to provide current researchers with a sense of what their research colleagues are doing.

If you are a PhD candidate focusing on one or more aspects of DR and you would like to participate in this session, please email me directly at: alysounboyle@gmail.com   If you know someone else who is a PhD candidate and might be interested in participating, please encourage them to email me.

Conference website: https://nmc2019.com.au/

Alysoun Boyle, Chair, NMC2019 Conference Design Committee, Co-Convenor, NMC2019

Rethinking party self-determination

In Mediation in Australia (LexisNexis, 2018) we repeatedly refer to self-determination as the remaining legitimising value proposition underlying contemporary mediation, having noted the disappearance of voluntarism, the end of neutrality’s reign and, to some extent, the compromisation of the promise of confidentiality in mediation — characteristics that have not stood the test of time. The self-determination principle has also been affected by some of the drivers and imperatives referred to in our previous blog post. We endorse the principle of self-determination as a defining feature and aspiration of all mediation — albeit with restrictions identified and discussed further in the book. We are now reflecting on whether even this principle is becoming contingent, given the rise of combined processes such as med-arb and arb-med, the displacement of facilitative mediation by evaluative and advisory systems and the prevalence of settlement conferencing under the guise of mediation.

self-determination image

Consider, by way of illustration, the case of a workers’ compensation claimant who had suffered physical injuries in a work accident in a highly pressured and competitive operating environment. After receiving weekly payments for several years, he brought common law negligence proceedings against his employer, claiming damages for past and future loss of wages, the only heads of damage allowed by statute. The matter was referred to mandatory mediation and his counsel commenced negotiations with a claim of $450 000. An insurer served as respondent under the subrogation principle and the employer was not present. The sequential rounds of negotiation progressed as follows:

Round Claimant’s Offers Insurer’s Offers
1. $450 000` $75 000
2. $425 000 $90 000
3. $400 000 $100 000
4. $390 000 $125 000
5. $370 000 $140 000
6. $350 000 $150 000
7. $300 000 $175 000
8. $300 000 $200 000
9. $280 000 $250 000
10. $265 000 $250 000
11. $250 000 $250 000

The conundrum arising in this situation, replicated in innumerable Australian contexts each day, is how to categorise the process as a DR system. The exercise was conducted in a cultural context involving limited mediator involvement and well-worn precedential channels. Nominally it falls into the settlement model of mediation where the self-determination principle remains a legitimising principle. There might, however, seem to be little in the way of authentic self-determination for the claimant. The mediation took place eight years after the workplace injury, it was highly legalised with solicitors acting for both parties and counsel for the claimant, the procedure operated predominantly on a shuttle basis and it was allocated four hours of mediation time. The complainant’s choices involved a complex risk analysis as he could continue on weekly benefits and medical payments until the age of 67 and was obliged to make a final ‘certificate’ offer if there was no settlement. If such a claimant succeeds at hearing but receives less than their certificate offer they may be denied recovery of their own costs; if they receive less in damages than the insurer’s certificate offer they are potentially liable to pay the respondent’s costs, despite succeeding on the liability question. There was also some uncertainty over the claimant’s future health condition despite his having reached maximum medical improvement.

In this situation the legally-advised claimant, well informed by counsel, did provide informed consent to the insurer’s final proposal when it became locked-in at the $250 000 figure. Our query relates to whether he was involved in an authentic self-determination exercise, given his limited bargaining power, the difficult risk assessment involved and the fact that he was negotiating against himself in the last three rounds. While a single anecdote does not itself challenge established theory, this example illustrates a current trend and exposes the forces impacting on party self-determination in mediation.

We see three possible responses to the categorisation conundrum. The first option is to massage the already flexible concept of self-determination to accommodate the claimant’s situation: despite his having no real control over the outcome we could contend that self-determination can be satisfied by the residual factor of bestowing or withholding consent from the other side’s repeated ‘top line’. This could be an ideological response designed to maintain a sense of principle in the mediation system as always involving self-determination for each side. However, it involves potential abuse of ordinary language and invites a lack of congruence between the theory and practice of mediation. This is the flexible option in which the meaning of self-determination is expanded.

A second option is to remove such practices from mediation’s definitional ambit on the basis that it has forfeited the final defining principle of the system, namely authentic self-determination for parties. This would involve finding alternative, non-mediation designations for such practices, something the DR community has considered for decades. While conciliation is an obvious response to the search, we have two problems with this designation applying to the example provided: the first is that we defend in the book our use of mediation and conciliation as inter-changeable concepts, and the second is that the ‘conciliator’ role of advising and recommending to the parties is lacking in these situations. This is an exclusivist option in which mediation retains authentic self-determination as a defining ingredient of the system.

A third option is to acknowledge that the example does not support the self-determination principle in any meaningful sense but to continue including such practices within a generic concept of mediation. Here, it is the concept of mediation that stretches its existing elasticity to a point where it is identified by value propositions other than self-determination, namely the impartiality of mediators and informed consent for parties. This would open brand mediation to most DR options in which interveners cannot make binding decisions for the disputants. This is the inclusivist option in which the meaning of mediation is expanded to remove self-determination as the quintessential attribute of its theory and practice and it is replaced instead with the more limited notion of informed consent — this is indeed one of the ingredients of self-determination, but it has a narrower and less aspirational scope.

Our approach to the conundrum is to attempt to reconcile our aspirational and pragmatic selves. We still see self-determination as the characteristic of mediation that makes it distinctive and imposing, although its incidence is often a question of degree. The concept itself derives from theories of both democracy and international relations and was part of mediation’s creation and development — the factor that enables it to have empowering and transformative effects. We don’t envisage a valuable and viable concept of mediation in the future that is without the notion of self-determination at its centre. We do not support the exclusivist view that anything other than facilitative mediation cannot be considered mediation, but some level of common understanding of what ‘mediation’ means is needed so that legal and DR professionals and parties have clarity about what the system does and does not offer. Moreover, without some precision as to what constitutes the core aspects of mediation systems and how they operate, an ethical framework for appropriate practice remains illusory. Mediation and its underlying theory have to stand for something; the process does not have to bend to pressure to be all things to all people.

In retaining the self-determination principle, we acknowledge that in situations such as that of the claimant above it has a more limited connotation, namely that a party’s informed consent to an outcome satisfies the requirement — in this sense we adopt some of the flexible approach. One might indeed speculate as to whether the deep self-determination supposition of facilitative and advisory processes asks too much of parties who are disoriented and confused by conflict and the ambiguities of choice they are experiencing at a time when they are most in need of professional guidance and advice. It arguably places too much responsibility on parties who are not functioning in optimal ways and are least able to be rational and creative in approaching the challenges of their dispute and their choices in mediation.

While it might be contended that determinative DR processes are more appropriate for such persons, practical realities often entail that they must use mediation. We contend that it is better to reconsider a theoretical element of mediation than to manage the dissonance between unrealistic theory and pragmatic practice. As discussed in Chapter 1 of the book, the exclusivity camp has long advocated for the term ‘mediation’ to be restricted to practices committed to the authentic application of the self-determination principle in contexts in which mediators are predominantly facilitative in their endeavours and they add value in communication and negotiation dimensions, and in which parties derive procedural and emotional benefits from the process involved. Many first-generation, family, workplace and community mediators were taught and trained in terms of this conceptualisation of the process and remain committed to it in practice. The National Mediator Accreditation System (NMAS) is also primarily based on this concept.

By contrast, the inclusivity camp of mediators comprises those who, while they might not have relinquished the strong value ideations of the exclusivists, nonetheless acknowledge that what is designated as ‘mediation’ in practice should be regarded as mediation, subject to two essential qualifiers — first, that mediators do not have any power or responsibility to make binding determinations for parties; and second, that parties provide informed consent in relation to any mediated settlement agreement. We identify in this regard, with respect to the exclusivists and in acknowledgment that our own convictions have been challenged in reaching this position, with the inclusivist camp. We contend that the battle for exclusivity has effectively been lost and the identifying characteristics of that model are too circumscribed and difficult to police to maintain a meaningful connection between practical realities and theoretical constructs. This is not to preclude the development of future values and objectives for mediation, for example in becoming more normative in nature, a contributor to the Rule of Law or even a surrogate for other forms of democratic expression. Those developments, however, lie in the future.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.drsyrasderksen.com/blog/romantic-relationships-what-self-determination-theory-says

 

Drivers of change in dispute resolution

Professor Laurence Boulle and I are really pleased to report that Mediation in Australia is now in print. This Blog is an excerpt from Chapter 12 in which we offer some perspectives on issues for DR moving into the future.

IMG_6355 (002)

The various and sometimes contradictory influences on DR theory and practice come from different perspectives such as economics, sociology, politics and social psychology. Some of these influences have, at the macro-level, been drivers of past changes in mediation. These have included global financial volatility and its debt repercussions, high levels of competition in economic, social and political arenas, changing power relations in global politics and international relations, reductions in capacities of the state, privatisation and enhanced leverage for corporations, and narrow measurements of efficiency in court, tribunal and DR services such as mediation.

Economic forces, and economic ways of construing the world, have had, and continue to have, profound impacts on many facets of mediation practice. Economistic thinking in governments, corporations, industry and DR providers has led to reduced preparation, intake and screening, shorter duration of sessions and increased daily caseloads for conciliators, limited use of co-mediation, more impersonal interactions by mediators through virtual means, reduced collegiality among practitioners who are isolated from one another, pressures for mediators to be persuasive, evaluative and advisory to increase settlement rates, costs penalties for inappropriate mediation conduct, incorporation of blended and arbitration arrangements into mediations to ensure they are not futile exercises, pre-action procedures designed to pre-empt court proceedings and provision of mediation services by courts, tribunals and commissions. A pervasive political myth of scarcity, in a social reality of over-abundance, purports to legitimise many of these phenomena.

Economic imperatives have also contributed to the occurrence of the ‘risk society’. This involves governments, employers and corporations shifting many of the functions and safeguards they formerly provided onto the shoulders of citizens and consumers — who bear the burden of the resultant risks. This is manifested in financialisation in most areas of modern life, non-permanent and short-term employment, contractual complexity in dealing with telcos and utilities and the relentless speed of social and economic discourse and intercourse. The risk society has witnessed the abandonment of many features of the former social contract. The results for citizens and consumers include asset risks (such as house or superannuation values), employment risks (such as lack of work tenure), financial security risks (in terms of bank predations) and consumer risks (as in being unwittingly upsold online). As these scenarios suggest, there are deep pulses of potential disputation in the risk society.

At the more prosaic level, at an everyday mediation with an everyday mediator, parties and advisers might be dealing with the consequences of economic forces which are largely unseen and certainly not agents in the room. For example, a mediation might be dealing with the flow-on effects of competitive globalisation on workers’ safety and health standards, or the impact of the voracity of financial institutions on family separations or the tensions within commercial leases ultimately caused by disruptive online commerce. These forces place immense pressure on mediators, their clients and advisers, but are destined to continue while the macro-forces persist. The extent to which mediation can be upgraded to deal with the ‘big issues’ is dealt further in Chapter 12 of Mediation in Australia. Ironically the risk society also requires more individuals and businesses to make their own mediated decisions resulting from exposures to risk, requiring some reassessment of the concept of party self-determination. Party self-determination is the subject of our next Blog.

Rachael Field and Laurence Boulle

National Mediation Conference 2019: Call for Abstracts

NMC2019 logo and brand

 

The Conference Design Committee has released the Call for Abstracts for NMC2019.  The dedicated website provides guidelines, key dates, and an electronic submission pro forma.  Only electronic submissions will be accepted, and they must arrive by the due date of 5 October this year:

https://nmc2019.com.au/call-for-papers/

There are eleven Conference Streams (in alphabetical order):

  • Approaches to Indigenous dispute management and decision-making processes.  Key words: Governance; peace-building; evaluation; effective policy & services.
  • Business and construction, workplace and employment.  Keywords: DR clauses in contracts; business, construction and workplace arbitration; industrial and employment DR; innovation in business and workplace DR; international commercial dispute resolution; evidence in commercial and business disputes.
  • Community-focused mediation, and other community-focused processes.  Keywords: Conflict coaching; alternative approaches; environmental DR; multi-party, consultative, and whole-of-community processes; innovative approaches; evidence-based approaches.
  • Conciliation, including public and private advisory processes, and statutory programs.  Keywords: Evidence-based approaches; conciliation, evaluative mediation, advisory dispute resolution, hybrid dispute resolution; statutory programs and processes; conciliation training, standards, and accreditation.
  • Court-connected DR services, including services associated with courts and tribunals.   Keywords: Mandatory DR; judicial DR; artificial intelligence; theoretical frameworks; evidence-based approaches; current developments.
  • Dispute System Design, online DR, and technological innovations.  Keywords: Theoretical frameworks; current developments; sociocultural influences; innovative approaches & applications; artificial intelligence; evidence-based approaches.
  • Elder mediation and other developing specialist areas of practice.   Keywords: Elder mediation; age-related issues; Elder abuse; Elder law; new specialist approaches; evidence-based approaches.
  • Family mediation and dispute resolution, including Family Dispute Resolution (FDR).   Keywords: Child inclusive and child focussed processes; family and domestic violence; parenting plans, including shared parenting; parental responsibility; property and financial matters; mandatory FDR; confidentiality; lawyer assisted FDR; family group conferencing.
  • Peace-building, transitional justice, reconciliation, and civil society.   Keywords: Sociocultural influences, including: intra-cultural, cross-cultural and multi-cultural approaches; discourse analysis; evidence-based approaches; innovative approaches.
  • Research, training, and education: building a rigorous evidence base for DR. Keywords: Research design, empirical methodologies, program evaluations; standards & accreditation; innovative research; evidence-based approaches to training and education.
  • Restorative justice and other innovative approaches.  Keywords: Circles, conferencing, mediation; theoretical frameworks; current developments; innovative approaches; evidence-based approaches.

When assessing proposals, the Committee will give priority to the following criteria:

  • The introduction of new and innovative concepts not previously canvassed or fully explored in the sector;
  • Where applicable, the rigour of any research that will be included in the presentation, or on which the proposal relies;
  • The inclusion of credible demonstration of the importance of the subject matter to the mediation, or DR field, and to the preferred Conference Stream;
  • The inclusion of intercultural, cross-cultural and/or multicultural considerations;
  • The potential appeal of the proposal to a broad spectrum of delegates; the proposal should include appropriate comments if it would appeal more to one cross-section of the sector (e.g. newly trained practitioners, or experienced practitioners);
  • The demonstrated capacity of the proposal to allocate appropriate time for coverage of the topic, and, if for a panel, to include all presenters; and
  • The title of the proposal conveying to delegates what they can expect from the session.

We look forward to considering your proposals as we prepare for 2019 being a belated celebration of NMC’s 25th Anniversary.

https://nmc2019.com.au/

NMC2019 logo and brand

 

 

Mediation in Australia: A Bibliography

Last week Prof Laurence Boulle and I were really happy that our new book Mediation in Australia went to print. As we note in the Preface: The book began as a fourth edition of Laurence’s Mediation: Principles, Process, Practice but in the process a new work developed. My favourite chapter is Chapter 12 titled ‘Authors Unplugged’ where ‘we ‘think what we like’ and ‘write what we think’ and hope that a few readers may ‘like what we write’. In the coming weeks of July I’ll be adding some excerpts from that Chapter which I hope you’ll find interesting.

In this Blog though we want to share something from the book that might be useful to all DR researchers – the bibliography. Many stellar scholars from the ADR Research Network members will see your works listed there. This document is the proof so apologies if there are any errors.

Perhaps this will save us all time if we can add it to our Endnote:

Mediation in Australia Bibliography

With warmest wishes to all DR researchers globally

Rachael

ADRRN Roundtable: Extension for submission of paper proposals to Friday 10 August

Thank you to those who have submitted paper proposals to the ADR Research Network Roundtable. In response to requests from potential contributors, the due date for paper proposals for the 7th ADR Research Network Roundtable is hereby extended to Friday August 10th.

Final draft papers are remain due by 31 October for distribution to commentators. This date in October remains firm given the need for commentators to prepare before the Roundtable.

The Australian Dispute Resolution Research Network is pleased to be hosting its seventh annual research round table in Queensland. The roundtable will be held from Monday 3rd and Tuesday 4th Decemeber at the University of the Sunshine Coast in South East Queesnland (just north of Brisbane and accessed from Maroochydore/ Sunshine Coast airport). Details of the venue and of accomodation options will be provided to those you wish to attend.
The Network welcomes proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress. A panel will select round table papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow.

Paper proposals of up to 300 words plus a short bio should be emailed to the adrresearchnetwork@gmail.com/

The following selection criteria will be applied:
• Papers taking a scholarly, critical and/or empirical perspective on an area of dispute resolution;
•  Inclusion of a spread of participants across stages of career; and
•  Presntation of  well-balanced range of work in order to provide diversity, to develop the field and to enable stimulating discussion.

Attendance at the Round Table is limited to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session. Participation is on a self-funded basis.
For further information, please:
• Read the original call of papers on the ADR Network blog of 11 April 2018
• Contact the conference convenors Sue Douglas and Lola via adrresearchnetwork@gmail.com (monitored twice weekly)