Save the Date: 7th ADR Research Roundtable 2018

Please consider saving the date for the 7th ADR Research Roundtable, which will be held at the University of the Sunshine Coast on 3-4 December 2018.

A call for papers will be issued closer to the date.   Early Career Researchers and PhD students are particularly encourage to participate – the Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics.

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National Mediation Conference 2019

canberra

Photo Credit Tim Hughes Creative commons

The date for the next National Mediation Conference has now been set. Originally the bi-annual conference was to be held in September 2018, but it was delayed.

The Board of National Mediation Conference has now confirm that the next National
Mediation Conference – NMC2019 – will convene in Canberra at the National Convention Centre on 15 – 17 April 2019. This is just before the Easter/Passover break.

A website will be established shortly and we will announce on this blog the URL.

The Board of National Mediation Conference have stated:

The Board of National Mediation Conferences Ltd is looking forward to a very successful conference in 2019, and welcomes interest and participation from the mediation community, as well as from the broader ADR community.

Regulating the Conduct of Legal Representatives in Mediation – Arguments for Maintaining the Status Quo

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.

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Image by Mohammed abushaban (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

Although lawyers are frequently called upon to represent their clients in mediation, lawyers’ professional associations have not issued additional or supplementary rules of conduct for mediation practice. Some law reform agencies[1] and commentators[2] have argued that mediation requires its own rules but discussion on the issue has stalled. In this short account of a paper delivered at the ADRRN Roundtable, I argue that the status quo – in which lawyers in mediation are governed by the current rules of conduct – should be maintained. The rules provide adequate guidance for lawyers, and adequate protection for persons impacted by mediation.

Position of legal representatives under existing rules of conduct

In the absence of specific rules for mediation, legal representatives are governed by the profession’s generic rules of conduct,[3] together with other components of the law of lawyering (including general law like the law of contract and torts; specific legislation such as the Legal Profession Legislation; and general legislation like Australian Consumer Law). In Australia, there is one set of professional conduct rules for solicitors (most state/territory rules are modelled on the Australian Solicitors Conduct Rules issued by the Law Council of Australia)[4] and another for barristers (again in most jurisdictions, they are based on model rules, the Australian Bar Rules issued by the Australian Bar Association).[5]

One accommodation for mediation has been made in the rules – the definition of ‘court’ has been extended to include ‘mediations’ (but this is not the same as making special provision for mediation and is itself a source of some confusion as to whether the drafters meant the mediation process or mediators).

The legal profession’s rules of conduct are general in their orientation. They set out general mandates for lawyers such as a duty to act with honesty, courtesy and fairness towards every person and entity with whom lawyers engage in the course of legal practice (these rules tend to encourage cooperation between practitioners); and a duty to act in the best interests of clients. The courts have held that general terms, such as that of ‘courtesy’, take their meaning from the context in which particular behaviour occurs.[6] The rules also include general prohibitions such as a duty to refrain from conduct which might lead the legal profession to be held in disrepute.

The rules also include a series of specific duties which can be categorised according to whether they are owed to courts, clients, and other parties including opponents. These include a duty never to mislead or deceive the court; a duty of confidentiality owed to clients; and a duty not to mislead opponents.

While there is a duty of honesty owed to everyone with whom the lawyer has dealings, where honesty refers to accuracy of information conveyed, there is no duty of candour ie there is no general duty to reveal information to courts, mediators, opponents and other third parties. There are exceptions where there is an obligation to speak up including the following:

  1. When dealing with a court, an advocate has a duty to inform the judge about relevant legal authorities and legislation.
  2. In ex parte applications (ie those where the other party is absent) an advocate must inform the judge of any relevant adverse matters of fact.
  3. If a practitioner has made a statement which, though true at the time it was made, has since become false, he or she must correct the statement (this was the rule offended by Messrs Mullins and Garratt).[7]
  4. A practitioner also has an obligation to correct a statement which is misleading because of the absence of some qualifying statement (this exception covers half-truths).

The rules establish a kind of hierarchy of obligations. The lawyer’s paramount obligation is to the court and the administration of justice (which is, in essence, a duty owed to society and not to an individual judge). The lawyer’s secondary obligations are owed to his or her clients. If there is a conflict between duties owed to the court (and the administration of justice) and those owed to a client, the duties owed to the court must prevail. The lawyer’s tertiary obligations are owed to third parties. If there is a conflict between a duty owed to a client and a duty owed to a third party, the duty to the client will usually prevail. Some authors point to this aspect of the regulatory system governing lawyers and argue that the rules give insufficient weight to the interests of other parties. However, the law of lawyering recognises that there may be circumstances where a breach of a duty owed to a third party – such as breach of an obligation not to mislead, is so serious as to amount to a breach of the duty owed to the administration of justice. In this way, the law recognises that lawyers in negotiation should refrain from assisting a client by ‘unconscionable’ means and from aiming to achieve ‘unconscionable’ ends.[8]

In my opinion, taken together these provisions are suitable for the regulation of lawyer conduct in mediation. Given the nature of mediation, it is the rules governing communications which are of most importance. In essence, the rules provide that: a lawyer is not generally required to reveal information, but if he or she chooses to speak,[9] the information conveyed must be accurate. This is a very effective measure for it is impossible for a party to put a case, or to respond to an opponent’s case, without making some statements.

Problematic aspects of proposals for new rules

There have been calls for the promulgation of rules of conduct requiring higher standards of disclosure, good faith participation, a duty of cooperation and an (unspecified) duty of fairness, and use of non-adversarial interest-based negotiation. There are problems with these proposals, including the following:

  • lack of consensus among proponents for change over the appropriate standard of disclosure required in mediation.
  • lack of consensus over, and uncertainty attached to, the meaning of concepts such as good faith and cooperation.
  • difficulty in articulating rules of this nature with any precision and in specifying what is and what is not acceptable behaviour.
  • difficulties of monitoring and enforcing compliance with rules of the kind proposed together with possible inroads which might be made into the confidentiality of the mediation process.
  • destruction of the informality and flexibility which are hallmarks of mediation.[10]

There are a range of problems with proposals for legal representatives to use interest-based negotiation and to be less adversarial in their conduct. They include the following:

  • parties need partisan legal representation in mediation to protect and enhance self-determination and its underlying requirement of informed consent. Parties need to know their legal rights and obligations.
  • every negotiation will involve some positional negotiation and every negotiation benefits from some element of competition.
  • every negotiator must choose, within the changing dynamics of negotiation, where they should be at any given moment in time on the ‘tightropes of negotiation’, treading a line between honesty as against misrepresentation; openness as against non-disclosure and cooperation as against competition.

These problems may not be insurmountable but more focused discussion involving all stakeholders is required. In the interim, the current rules of conduct provide adequate guidance for lawyers in mediation and adequate protection for the parties and other persons impacted by a mediation. The existing rules of conduct allow legal representatives to exercise discretion in relation to matters such as candour, cooperation and the approach to negotiation that they adopt at any given moment in time. This is perfectly consistent with the nature of mediation with one mediation likely to be different from the next. Despite the diversity of mediation practice, the legal representative’s basic position remains the same and this is reflected in the current rules of conduct. A lawyer remains an advocate for the client’s interests but he or she recognises that some disclosure is necessary for a productive mediation, and that cooperation with an ‘opponent’ and settlement is sometimes in the client’s best interests. Save for the fact that the drafters need to clarify the meaning of ‘mediation’ in the definition of court, the current professional conduct rules are ‘about right’.

[1] For instance, the Australian Law Reform Commission recommended the development of standards of conduct for legal representatives in ADR processes in its Managing Justice Report issued in 2000: see the Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [3.119]. Also see National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, A Report to the Attorney-General (February 2011).

[2] In Australia, see Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 2nd ed, 2014) 217-25. In the US, see Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards’ (2002-2003) 39 Idaho Law Review 399, 413-4; Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyers’ Responsibility’ (1997) 38 South Texas Law Review 407, 410.

[3] See generally, Bobette Wolski, ‘An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Drafters and a Response to Jim Mason’ (2013) 16 Legal Ethics 182.

[4] Australian Solicitors Conduct Rules were adopted by the Law Council of Australia in June 2011 and last updated in 2015. The rules, as adopted, differ slightly in each jurisdiction.

[5] These rules also differ slightly in each jurisdiction. See, for example, in Victoria and NSW, the Legal Profession Uniform Conduct (Barristers) Rules 2015, commencing operation on 1 July 2015 and current at 2 September 2016.

[6] Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 (11th September 2009) [43] (Higgins CJ, Gray and Refshauge JJ).

[7] See Legal Services Commissioner v Mullins [2006] LPT 012 (23 November 2006); Legal Services Commissioner v Garrett [2009] LPT 12 (1 May 2009).

[8] Murray L Schwartz, ‘The Professionalism and Accountability of Lawyers’ (1978) 66 California Law Review 669, 671.

[9] Of course, the lawyer must comply with the duty of confidentiality owed to a client and will, in most circumstances, need to obtain the client’s consent to reveal the information.

[10] Reed Elizabeth Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987-1988) 1 Georgetown Journal of Legal Ethics 311, 319.

Invitation to participate in ILERA Study Group on Third Party Neutrals in Dispute Resolution

Third Party Neutrals in Dispute Resolution Study Group

International Labor and Employment Relations Association (ILERA)

World Congress 2018

July 23-27, 2018, Seoul, South Korea

This post has been contributed by Professor Johanna Macneil, ADR Research Network member and Assistant Dean, Teaching and Learning, Faculty of Business and Law at the University of Newcastle.

Image of Seoul for ILERA conference, no 3

We would like to invite your participation in the newly-established Third Party Neutral in Dispute Resolution Study Group of the International Labor and Employment Relations Association (ILERA). In particular, we would like to invite you to join us in our first session together at the ILERA World Congress in Seoul in July.

PARTICIPATION IN THE STUDY GROUP

The Third Party Neutrals in Dispute Resolution Study Group is open to everyone interested and involved in labour and employment dispute prevention, resolution, adjudication, arbitration, mediation-arbitration, conciliation and mediation. That includes third party neutrals, practitioners, policy makers and regulators as well as academics. Co-Chairs are Chris Albertyn, mediator and arbitrator, (see http://www.albertyn.ca) and Deputy President Anna Booth of Australia’s federal industrial tribunal, the Fair Work Commission (see http://www.fwc.gov.au).

A small, provisional Study Group Committee of academics and practitioners has been established, before its expansion and formal confirmation at the Seoul ILERA World Congress, 23-27 July 2018.

SCOPE OF THE STUDY GROUP

The Third Party Neutrals in Dispute Resolution Study Group invites everyone interested in how third parties are involved in the prevention and settlement of disputes in the labour and employment field to join us.

Participants in the Study Group may be interested in any or all of the following:

  • the study of labour and employment issues and disputes arising at different levels:
    • at international level (over employment standards, over labour agreements as part of trade agreements);
    • at a national level (between confederations of trade unions and employers);
    • at a regional or sectoral level (between trades, trade union federations and employer
      associations);
    • at an enterprise or plant level (between trade unions and particular employers); or
    • between individual employees and individual employers;
  • all methods used to prevent or resolve those disputes which involve assistance or intervention by a third party, either a court, a state agency or an agreed private resolution mechanism;
  • all types of resolution, that is, either binding and determinative, or advisory, or facilitative, including what are deemed alternative forms of dispute resolution (ADR);
  • remedies available across jurisdictions, and under what forms of labour law, especially when considered in comparative perspective;
  • all types of outcomes sought or achieved which, along with the resolution of a dispute, may include effects on relationships, individual, group, organisational, industry, or societal measures;
  • comparative study, looking at differences in the methods of dispute resolution, and in the varieties of institutions in different jurisdictions and countries used to prevent or settle labour and employment disputes; or
  • any other new or emerging issues in relation to the work of third parties in the labour and employment field.

ILERA WORLD CONGRESS

The initial opportunity to pursue these studies and discussions will be at the ILERA World Congress in Seoul July 23-27, 2018 

Session in the formal program, 24-27 July
We will have a session allocated in Seoul during the formal program, at which some papers will be presented on the role of the third party neutral. If you would like to present a paper in our organised session, please send an abstract, consistent with the guidelines on the conference website, by NO LATER than 25 January 2018, to our academic co-ordinator Professor Johanna Macneil at Johanna.macneil@newcastle.edu.au, copied to the co-ordinator of the study group,
Chris Albertyn at chrisalbertyn@icloud.com.

Meeting of the Third Party Neutrals in Dispute Resolution Study Group
We will also arrange an opportunity to discuss plans for future meetings of the Study Group, for continued interaction between practitioners and academics on areas of common comparative interest. Even if you don’t have a paper for this conference, we would warmly welcome your ideas about participation in the future. (Please note, this will be arranged at a convenient time during the formal program, not on 23 July when other study group meetings are held.)

More information
More information about the Seoul conference is provided via the ILERA 2018 website. If you have any questions about the study group activities, please email Chris Albertyn or Johanna Macneil.

Regards
ILERA Third Party Neutrals in Dispute Resolution Study Group

The importance of the intake process in workplace disputes

Pauline Roach.pngThis post was written by Pauline Roach and is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017. Pauline was involved closely in the development and implementation of the system at the Roads and Maritime Services of New South Wales described here.

 

 

This post provides an overview of the dispute resolution program developed and introduced at the Roads and Maritime Services (RMS), formerly the Roads and Traffic Authority of NSW. In 2003, a review of the organisations’ grievance policy was undertaken.  Following this review the organisation sought to develop a corporate culture where the principles of alternate dispute resolution (ADR) could succeed and were accepted by staff.  The aim was to assist in the early identification, management and resolution of workplace disputes.

The current literature supports the view that workplace dispute resolution is more effective when it is supported by the whole organisation rather than used in a one off context.  (Sourdin T. 2016; Astor H, Chinkin C 2002; McKenzie D 2015; Saundry R, Latreille p, Dickens l, Teague P, Urwin P & Wibberley G 2014). The RMS system was a good example of a whole of organisational dispute management strategy.

At RMS, a tailored dispute resolution strategy was developed for each dispute. The most appropriate dispute resolution intervention was applied after a preliminary assessment. Mediation was one of a package of ADR tools, policies and procedures which were integrated into a range of human resource policies. The available dispute management strategies included: the disputants, manager and/or workgroup participating in conflict coaching (pre and post mediation), dispute counselling, mediation, referral to human resources for advice, or referral for legal advice.

Prior to any dispute resolution intervention a detailed intake interview was conducted. The intake interview was conducted seven to ten days prior to the dispute resolution process to which the matter would be referred.  Intake was a critical component of the dispute resolution strategy. The intake interview was divided into two significant sections: one to gather information from the organisations’ perspective and the other to prepare the disputant to fully participate in the dispute resolution process.

  1. ORGANISATIONAL PERSPECTIVE

From the organisations’ perspective it was important to establish the following:

  • is dispute resolution appropriate?
  • are the issues a breach of policy or current legislation?
  • should the matter be referred to human resources for investigation and / or disciplinary action?
  • What previous action has the organisation taken to resolve the issue?

The intake process involved interviewing the disputants, the manager and possibly the union representative to obtain a history of the dispute.  This also provided an opportunity to begin considering the most appropriate dispute resolution practitioner for the matter.

  1. DISPUTANTS’ PERSPECTIVE

From the disputants’ perspective the intake process:

  • obtain a history of the dispute;
  • identify the people involved;
  • build a rapport with the disputants and reassure them that the ADR practioners do not take sides;
  • introduce the concepts of dispute resolution and ensure they understand the dispute resolution process;
  • assist the disputants to focus on outcomes;
  • reality check outcomes or do the disputants just want to punish the other person;
  • identify factors that may prevent resolution – power imbalance between the parties, is there a threat of violence?
  • Gain agreement on date, time and location for the session.

The intake process intended to increase the likelihood of the ADR intervention succeeding.  It aimed to ensure that the disputants understood the process, had the information they needed and that the right people were sitting around the table. It required an organisational commitment to allow participants the time to engage in a thorough intake process.

Over a nine year period RMS developed and implemented a holistic dispute resolution process, with a rigorous intake process. Mediation was part of a system of dispute resolution tools that were integrated into a wide range of the organisation’s policies. Resolution of workplace disputes requires a strategic and explicit cultural change rather than a piece meal approach. The intake process is a critical tool in achieving this.

The Journey from Babel to Pentecost: The Significance of Language in Dispute Resolution Theory

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.

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“How small, of all that human hearts endure,

That part which laws or kings can cause or cure”

Oliver Goldsmith The Traveller

For thousands of years humankind has used language to co-operate in the development of communities, societies and civilizations.  Numerous language scholars including Chomsky[1], Tomasello[2] and Pinker[3], have proffered theories about the development of language but its true origins remain hidden in the mists of time.  An Old Testament biblical text tells the story of the ancient inhabitants of Babylon co-operating in the construction of a tower so tall and magnificent that it would reach up into the heavens and give them direct access to God.  According to the legend, God was so enraged by their attempt to usurp his authority that he made each of them speak a different language so that they could no longer understand or communicate with each other and their construction efforts were frustrated.

The story inspires reflection on the extent to which we depend on language in our relationships with others in society whether at the personal, community or international level.  My paper that I workshopped at the ADRRN round table in New Zealand takes up this theme and considers, by reference to some of the recent language literature and to my PhD research data, how language influences human relationships and its capacity for peace making and conflict resolution.  It uses examples taken from various historical settings to illustrate how language has informed human behaviour in significant and powerful respects. It concludes that dispute resolution best practice has recognized and implemented appropriate strategies for reframing poor communication techniques, but some of those practices are yet to achieve universal acceptance in some areas of mediation especially where the process is being conducted in connection with litigation.

There is another more recent story, this time from the New Testament history of early Christianity, in which the disciples of Christ stood on a balcony in Jerusalem at Pentecost time preaching to hordes of visitors who had gathered in Jerusalem from the whole of the then known world.  According to the legend, although the speakers addressed their homily in Hebrew, each of the visitors was able to hear the speaker in his own tongue, thereby completing a perfect line of communication.  I have concluded in my paper that, whilst we have done much as dispute resolution practitioners to advance the cause of peace and conflict resolution through addressing language issues and reframing toxic, negative and unhelpful language, there is still work to be done and our journey from Babylon to Pentecost is not yet over.

One of the language barriers that I perceive is between the dispute resolution field and the legal profession. What is of concern in the dispute resolution narrative is that the significant advantages which continue to accrue to disputants by learning the skills of respectful discourse and positive problem-focused communication, so familiar to dispute resolution practitioners, do not yet appear to have been successfully communicated to (or adopted by) the legal profession to where, paradoxically, many disputants first turn for a solution to their disputes.  As recently as this week (14th December, 2017), during a speech addressing justice issues arising from the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commissioner, Justice McClelland, referred disparagingly to lawyers as a potential source of redress for survivors of child abuse.  He said:

“In some cases the aggressive hand of the lawyer was engaged, ensuring that an appropriate and just response to a survivor was not possible.”[4] 

The clear inference from the Royal Commissioner’s remarks is that engagement of a lawyer, far from facilitating access to justice, ensures that just outcomes are impossible.  Like the builders in the Tower of Babel legend, the suggestion is that clients and dispute resolution practitioners are speaking to lawyers but they either do not understand us or they do not wish to hear.  The challenge for us, it seems, is to establish effective lines of communication and to speak persuasively so that they are convinced of the necessity for principled dispute resolution solutions.  Only then will our journey have been completed.

This paper is very much in draft form and in need of significant work.  When it has been completed it is my hope that it will be submitted for publication in a peer reviewed journal such as the Australasian Dispute Resolution Journal.

[1] N Chomsky Powers and Prospects: Reflections on Human Nature and the Social Order (London, 1996, Pluto Press p.30)

[2] M Tomasello, B Velischkovskii, D M Rumbaugh (eds) The Cultural Roots of Language Communicating meaning: The Evolution and Development of Language Mahwah, N.J.: L. Erlbaum. ISBN 978-0-8058-2118-5. OCLC

[3] S. Pinker, P Bloom (1990). “Natural language and natural selection”. Behavioral and Brain Sciences. 13 (4): 707–784. doi:10.1017/S0140525X00081061.

[4] As reported in the Newcastle Morning Herald on 15th December, 2017 at p 6

Achieving substantive justice in mediation through procedural justice: An illusory or realizable goal?

Written by Dorcas Quek Anderson, Singapore Management University.

Mediation – a legitimacy deficit?

Mediation has been plagued with a problem of legitimacy.[1] Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”.[2] Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.

This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the LSAANZ Conference. I argue that there is an invaluable connection between procedural and substantive justice that should be further articulated and strengthened. However, there are also considerable inadequacies in the current mediation principles, causing weak links between procedural and substantive justice. I focus here on only one aspect of the paper – that the mediation principle of “norm education” should be further developed to enhance party autonomy and more adequately advance substantive justice.

 The undisputed link between procedural and substantive justice

The link between procedural justice and substantive justice has been indisputably established by socio-psychological research examining the participants’ subjective assessment about the fairness of the dispute resolution process. Welsh, drawing from the work of Lind, Tyler and others, highlighted how positive perceptions of procedural justice would likely lead to favorable perceptions of substantive fairness and more durable agreements.[3]  Four aspects of procedural justice have been found to consistently contribute to high perceptions of justice – voice;[4] a sense of being heard and understood,[5] being treated with dignity or courtesy;[6] and being given even-handed treatment.[7] Many of these aspects strikingly mirror current mediation principles, such as mediator impartiality. The foundational mediation principle of party autonomy advances many of the above aspects of procedural justice. Self-determination involves direct participation by the parties in communicating and negotiating; party control over the substantive norms that guide their decision-making; and party involvement in the creation of settlement options.[8] Evidently, these aspects of self-determination help to give disputants the opportunity to voice their views, feel heard by the mediator and the other party and be accorded respect and a sense of dignity.

However, moving beyond parties’ perceptions of fairness, there remains the question of whether the relevant norms are actually considered within the mediation process. [9]

Substantive justice in mediation – the complex interaction of norms

My full paper examines how substantive justice is achieved through the complex interaction of a variety of norms within mediation. Some of these norms take the form of broad principles such as equity, equality and need. Other norms comprise individual preferences and values, or shared standards of a community to which the disputant belongs. Legal standards are the most common norms alluded to, given the dominance of the courts in publicly establishing norms for the society.[10] There are evidently very diverse sources of norms at play within each mediation, and not all the competing norms are given final recognition in the mediation outcome. According to the philosophy of party empowerment in mediation, it appears as if norms are determined only by the parties. In reality, many of their subjective norms are influenced by external standards.[11]

Party autonomy is exercised within limits of external norms

It is argued that there is now growing consensus that party autonomy over the mediation outcome must be exercised within the limits of certain external norms. Waldman and Akin Ojelabi observed that many mediation codes caution against excessive mediator influence, but simultaneously call for the mediator to terminate the process if an unconscionable or illegal agreement appears likely. They argue that these provisions implicitly recognise that mediation agreements must meet a minimal threshold of justice.[12]

The global sentiment encapsulated in mediation ethical codes indeed points overwhelmingly to the presence of overarching norms that limit party acceptability. The Singapore Standards oblige the mediator to withdraw from the mediation if the mediation has assumed “an unconscionable or illegal character” or is likely to result in a settlement “against public policy or of an illegal nature”.[13] This is clear endorsement of mediation taking place within the limit of public norms. The Australian Standards allude to such limits by imposing the duty to terminate when a participant is misusing the mediation, not engaging in the mediation in good faith or the participant’s safety is at risk.[14] Singapore’s Mediation Act allows a mediated settlement agreement to be recorded as a court order, except when the agreement contravenes public policy; is not capable of being enforced as an order of court; or is not in the best interest of a child.[15] Additionally, UNCITRAL’s current draft provisions for enforcement of mediated settlements do not allow enforceability where the agreement is “null and void, inoperative or incapable of being performed under the law to which parties have subjected it to”, and when enforcement would be “contrary to public policy”.[16]

A proposed mediation principle of “norm education”

In relation to critical, well-established norms that are contained in codes or are essential in certain types of mediation, the parties’ autonomy is clearly circumscribed by external norms. However, these norms may not be given effect to if mediation is characterised by adherence merely to the parties’ values. What if there are well-established norms that the parties have yet to consider? Or what if the parties’ discussions are veering close to a result that cannot be enforced, or an agreement that may infringe legal principles? In such circumstances, there is surely good reason for the mediator to educate the parties on norms.

However, there is yet to be a well-established mediation principle of “norm education”. The current mediation standards in Australia and Singapore allow the mediator to terminate the mediation if there is bad faith or misuse of the mediation,[17] or when it is likely to result in a settlement that is against public policy or is illegal.[18] The closest principle to norm education is “informed consent” in the Australian Standards, which suggests that the mediator should, as far as possible, attempt to ensure that disputants have access to sources of advice and information.[19] The principle of informed consent is, however, severely limited when it is not feasible for the disputants to obtain independent legal advice.

It is argued that there is room to allow the mediator to educate the parties on such norms where they are unaware of them, instead of only having the drastic option of withdrawing from the mediation. After all, such practices are in reality taking place in mediation practice. Waldman wrote about the norm-educating model used commonly in divorce mediations, wrongful termination and other court-referred cases mediated “in the thick shadow of the law”. She contends that the consideration of social norms in this model helps “enhance autonomy by enabling parties to make the most informed decisions possible”.[20]. It is therefore suggested that the mediation community consider the principle of norm education in relation to critical norms encapsulated in codes and legislation. Such a principle would be invaluable in advancing substantive justice. Continue reading