Contemporary Conflict Mapping

Contemporary Conflict Mapping

Claire Holland* and Rikki Mawad**

* Claire Holland is the Director of the James Cook University (JCU) Conflict Management and Resolution Program. She is a senior lecturer and researcher in Alternative Dispute Resolution (ADR) and conflict resolution processes.

** Rikki Mawad is a Conflict Management and Communications Consultant, and a lecturer in the JCU Conflict Management and Resolution Program.

This blog post discusses new perspectives on conflict analysis and conflict mapping. The authors invite commentary around a more contemporary conflict mapping matrix that integrates modern perspectives and practices.

Why Map Conflict?

 At its most basic level, Gary Furlong, author of The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict, states managing conflict effectively is a two-step process:

  1. Assessing conflict
  2. Deciding what action (or inaction) to take to address it.[1]

Assessing conflict, also known as conflict analysis or “conflict mapping,” is a process of reviewing a conflict context through a third party/neutral lens by following a logical, structured review process. The mapping acts as a guide for the intervening party to design a process that meets the parties’ substantive, procedural and psychological needs.[2] The overarching aim of conflict mapping is to increase comprehension and clarity of the situation and facilitate appropriate and well-considered conflict management or conflict resolution strategies.

When there is lack of clarity or poor understanding of the conflict and time pressures to make decisions, people and systems tend to react to conflict rather than respond. This has the effect of escalating conflict rather than moving towards resolution or positive change. Due to time pressures, lack of resources, and lack of access to support systems, for many individuals and organisations there is limited scope for reflection on the underlying causes of the conflict. Adequate consideration of underlying conflict causes can inform choices on how to respond to a person or situation, and the likely impact of those choices on future interactions or occurrences. Mapping a conflict prior to an intervention is a key step in setting the intervention up to succeed. Conflict mapping and making considered choices may end up saving individuals and organisations time, money and energy by identifying the best forum and appropriate practitioner or intervention team at the outset.

Existing Approaches and Perspectives on Conflict Mapping

Models of conflict mapping, such as Shay Bright (PhD) The Conflict Mapping Chart, list specific elements for consideration. Bright, drawing on the Wehr Conflict Mapping Guide[3] and Sandole’s Three Pillar Approach,[4] leads the reviewer through the six key pillars of a conflict framework, which includes identifying and analysing:

  1. Conflict parties;
  2. Conflict history;
  3. Conflict context;
  4. Party orientation;
  5. Conflict dynamics; and,
  6. Conflict intervention.[5]

Under each heading, it is possible to include additional models and maps for analysing, diagnosing and intervening in conflict. Furlong highlights eight models for analysing conflict: 1) The circle of conflict; 2) The triangle of satisfaction; 3) The boundary model; 4) The interests/rights/power model; 5) The dynamics of trust; 6) The dimensions model; 7) The social styles model; and 8) Moving beyond conflict.[6] These conflict analysis models are often also considered in light of overarching conflict theories such as negotiation theory, mediation and practice frameworks, human needs, conflict transformation, theories of change, and peacebuilding.

The mapping process involves considering theory, research, and understanding of conflict to provide greater clarity about the conflict situation, understanding of the needs, interests, goals, and resources of different parties to the conflict, and awareness of options for interventions to move towards resolution or engage in effective ongoing conflict management. As Daniel Druckman states in his seminal text Doing Research: Methods of Inquiry for Conflict Analysis, there are aspects of both art and science in the field of conflict analysis and resolution.[7] While maps, charts and tools can be scientifically followed, the ‘art’ of interpreting and applying information is a learned skill. A contemporary conflict matrix that expands Bright’s model with a seventh and eighth pillar aims to increase the factors for consideration in conflict analysis, allowing greater opportunity to identify and design appropriate intervention strategies that accommodate the realities of the parties and structures in which the conflict exists.

Building on Bright’s Framework: Pillars 7 and 8

Pillar 7: Multidisciplinary Knowledge

The authors suggest that there is merit to adding a seventh pillar in Shay Bright’s Chart, Multidisciplinary knowledge, which is to bring in elements of neuroscience, emotional intelligence and trauma-informed approaches to managing conflict at an intrapersonal level through to a transnational level. What is currently lacking is a clear and structured conflict analysis chart that includes consideration of party’s psychologies, worldview formation, self-analysis, and additional models analysing cultural considerations and emotional states – particularly for enduring conflict that involves ongoing uncertainty for parties. Many established conflict theories use a rational mind approach that focuses on individualistic and neoliberal response to conflict. The majority of well-known and cited authors in the conflict management and resolution field are US based researchers who, while having worked globally, often bring an Anglo Christian, male perspective to conflict mapping and interventions. An unintended effect from potential unconscious bias, is that key elements of a conflict that relate to elements such as gender, race, religion, and sexuality may not be properly considered in both the mapping or intervention. Clear articulation in mapping tools for greater cultural and emotional intelligence in conflict analysis and intervention design are important for a more holistic analysis. If outcomes such as true party self-determination are important, then consideration of resolution options that are co-designed with the parties to that conflict, culturally appropriate, and representative of the party’s actual needs, interests and priorities, will arguably be more sustainable.

Bringing in the work of practitioners, researchers and emerging thinkers such as Daniel Kahneman[8], Daniel Goleman,[9] Van der Kolk[10] and Brene Brown[11] for example (and to name only a few), gives the conflict practitioner a new lens and additional pillar to mapping the conflict, designing and delivering the best fit intervention. One example of including multidisciplinary knowledge in the conflict mapping process, would be to consider Dr Brene Brown’s grounded theory social research into courage, vulnerability, shame and empathy as a lens to help both people in conflict and third parties assisting with conflict to grow the options for resolution. Brene’s recent work in Dare to Lead for example, is a key asset to conflict managers.[12] Brown talks about harnessing the power of empathy to understand ourselves and others as a way to change perspective and open space for difficult conversations. Brown’s work around rumbling, leaning into hard conversations, and BRAVING are incredibly complimentary for conflict management practitioners and in helping anyone understanding, navigate and more productively work with conflict.

As a way to add to hallmark features of conflict management processes, the BRAVING inventory modernises the conflict theory principles of non-judgment and choice theory and provides a framework for growing connection through empathy and understanding which generates options for transformation and resolution of conflict at various levels and across contexts.

Pillar 8: The Practitioner and the Process

The authors also suggest an eighth pillar to the Shay Bright Conflict Map, The Practitioner and the Process, that looks at the macro and micro skills required of a practitioner for an effective intervention. Along the lines of fitting the ‘forum to the fuss’, it is important to consider fitting the ‘practitioner to the process’. Depending on the outcome of the conflict analysis, there may be a good reason to require certain practitioner characteristics, knowledge or skills. In order to best serve the parties and support a conflict management or resolution process that considers and adapts to the parties needs, interests and priorities, there may be evidence-based and/or practice informed reasons for seeking practitioners who have certain characteristics (for example age, gender, race, or religion) or knowledge and skills (for example, contextual understanding, cultural competency, emotional intelligence, trauma informed practice, working with vulnerability and shame).

Without a high level of emotional and cultural intelligence, the conflict management practitioner designing and delivering an intervention could hinder options for resolution or transformation of the conflict. Practitioner micro skills may also play an important role in establishing psychological safety and meeting party’s needs.

Developing self-awareness and skills building are essential parts of education and professional development for conflict resolution practitioners. Self-awareness is an element of emotional intelligence, as defined by Daniel Goleman. Emotional Intelligence can be referred to as EI or EQ. For the purposes of this blog we will use the term EQ. At its most basic definition, EQ is the ability to understand and manage your own emotions, and recognise and manage the emotions of other people around you. Daniel Goleman first wrote about EQ, and introduced an EQ framework of four generic domains: self-awareness; self-management; social awareness; and relationship management.[13] The five dimensions of emotional intelligence Goleman suggests are self-awareness; self-regulation; motivation; empathy and social skills. The importance of EQ and using EQ in leadership and communication has been increasingly researched and discussed by academics and practitioners over the past 30 years. It is recognised that EQ can be trained,[14] higher EQ positively impacts academic grades and performance[15] and influences conflict styles.[16]

Applying an EQ lens across the conflict map can increase both party, self, issue and other awareness as well as ensure that an intervening party is positioned to de-escalate and effectively ‘climate control’ the process. The less we understand ourselves and our own emotions, the less likely we are to recognise and understand other people’s and the entire conflict situation. This leads to challenges with empathy, general social skills and can also create and escalate conflict.

A lack of EQ in parties and practitioners can lead to conflict escalation rather than regulation and resolution. Without self-regulation, we cannot control or redirect our thoughts, feelings and actions and therefore are trapped in a cycle of reacting rather than responding. The inability to self-regulate then  inhibits our levels of motivation, resilience and achievement and our relationships with others, and could also thwart the sustainability of a negotiated outcome. Once a practitioner understands themselves, their emotions, and their motivations they can work on developing skills to assist others in self-regulation, social skills, communication and emotional management. A growth mindset, recognising that talents and skills can be developed overtime and through hard work, is an important frame of mind.[17] Applying a level of self-assessment on behalf of the conflict practitioner to the conflict at hand, recognition of what the situation may call for based on the conflict map, and recognition of one’s ability and skillset, can help determine who might be the best person to intervene in a certain situation.

In conclusion, there are new opportunities to apply the work of emerging scholars and practitioners from different disciplines into our understanding of conflict. It is important that practitioners remain up to date with new understandings, emerging research, and ideas that can inform the field of conflict management and resolution.

 

 

References

[1] Furlong, G. (2005). The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict. Canada: John Wiley & Sons, p 2.

[2] Described by the triangle of satisfaction in Moore, C. (2003). The Mediation Process, Third Edition, San Francisco: Jossey-Bass.

[3]Willmot, W.W., and J.L. Hocker. 2001. Interpersonal Conflict. New York: McGrawHill.

[4] Sandole, D. J. (1998). A comprehensive mapping of conflict and conflict resolution: A three pillar approach. Peace and Conflict Studies5(2), 4.

[5] Bright, S. (2001). The Conflict Mapping Chart. Retrieved September 1, 2020. Available at https://www.in-mediation.eu/wp-content/uploads/file/ConflictMapping.pdf

[6] Furlong, G. (2005). The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict. Canada: John Wiley & Sons.

[7] Druckman, D. (2005). Doing research: Methods of inquiry for conflict analysis. Sage Publications, p 3.

[8] Kahneman, D. (2011). Thinking, fast and slow. Macmillan.

[9] Daniel Goleman is a Psychologist, Author and visiting scholar at Harvard University see further http://www.danielgoleman.info/

[10] Van der Kolk, B. A. (2015). The body keeps the score: Brain, mind, and body in the healing of trauma. Penguin Books.

[11] Dr Brene Brown is an Author and Researcher at the University of Houston, see further https://brenebrown.com/

[12] Brown, B. (2018). Dare to Lead: Brave Work. Tough Conversations. Whole Hearts. Penguin, Random House (UK)

[13] Goleman, D. (2011). The brain and emotional intelligence.

[14] Mattingly, V., & Kraiger, K. (2019). Can emotional intelligence be trained? A meta-analytical investigation. Human Resource Management Review29(2), 140-155.

[15] MacCann, C., Jiang, Y., Brown, L. E., Double, K. S., Bucich, M., & Minbashian, A. (2020). Emotional intelligence predicts academic performance: A meta-analysis. Psychological Bulletin146(2), 150.

[16] Gunkel, M., Schlaegel, C., & Taras, V. (2016). Cultural values, emotional intelligence, and conflict handling styles: A global study. Journal of World Business51(4), 568-585; Chen, H. X., Xu, X., & Phillips, P. (2019). Emotional intelligence and conflict management styles. International Journal of Organizational Analysis; de Villiers, J., Marnewick, A., & Marnewick, C. (2019, June). Using emotional intelligence during conflict resolution in projects. In 2019 IEEE Technology & Engineering Management Conference (TEMSCON) (pp. 1-6). IEEE; Rahim, M. A., Psenicka, C., Polychroniou, P., & Zhao, J. H. (2002). A model of emotional intelligence and conflict management strategies: A study in seven countries. International Journal of Organizational Analysis10(4).

[17] Dweck, C. S. (2008). Mindset: The new psychology of success. Random House Digital, Inc.; Dweck, C. (2016). What having a “growth mindset” actually means. Harvard Business Review13, 213-226.

A case for coaching: Measuring effectiveness

A case for coaching: Measuring effectiveness*

Claire Holland** and Tina Hoyer***

*The views expressed in this blog are those of the authors and do not necessarily reflect those of the Australian Taxation Officer or James Cook University.

** Claire Holland is the Director of the JCU Conflict Management and Resolution Program. She is a senior lecturer and researcher in Alternative Dispute Resolution (ADR) and conflict resolution processes.

*** Tina Hoyer is an adjunct lecturer with the JCU Conflict Management and Resolution Program. Tina lead the ATO In-House mediation service and is currently a serving Squadron Leader for the Royal Australian Air Force as a Dispute Resolution Manager.

This blog is a summary of the presentation by Claire and Tina at the 8th ADR Research Network Roundtable, La Trobe Law School, La Trobe University Melbourne Australia, 2019.

The Australian Taxation Office (ATO) is proposing to trial an innovative ‘case coaching’ model designed specifically for ATO auditors and objections officers (“ATO officers”) to build and strengthen their dispute resolution skills, tax technical capability and corporate knowledge.[1]  Designing, implementing and choosing to incorporate a coaching model as part of everyday business is a significant investment for any organisation. The investment is not just in terms of direct financial outlays, but also indirect costs, such as staff time, staff engagement (buy-in vs disengagement), and staff experience. Therefore, it is vital the effectiveness (or not!) of a coaching model is measured to determine its cost, benefits and expected outcomes in order to:

  • justify the time and cost to the organisation of implementing a coaching program; and,
  • identify weaknesses and strengths in the individual coaches and the coaching program overall so improvements and adjustments can be made.

Coaching programs are often only evaluated at a superficial level, if at all.[2] That is, evaluation is conducted by way of a questionnaire to gauge the reactions of the participants of the program. For coaching to gain sustainable credibility, it has been recommended evaluation should occur not only to gauge the reaction of the participants but also to measure:

  • Learnings: that is, the knowledge, skills and attitudes that result from the program and which were specified as learning or developmental objectives;
  • Behaviour: aspects of improved job performance that are related to the learning objectives; and,
  • Results: relating the results of the program to organisational objectives and other criteria of effectiveness.[3]

Thorough evaluation of coaching programs is also important to build the credibility of coaching as a profession and to contribute to the research on approaches to formal evaluation of coaching programs. The research will assist with consideration of the adoption of the case coaching model as part of the ATO’s business as usual processes, as well as for the potential uptake of similar internal case coaching models by other large organisations (government and private sector).

How will the case coaching model be evaluated?

The evaluation of the case coaching model will be both on a formative (that is, during the planning and delivery phase of the coaching program) and a summative (at the end of the coaching program) basis.[4]  Based on program logic design concepts[5] and the theory of change[6], the anticipated outcomes of the case coaching for the key stakeholders will be the main focus of the evaluation. The key stakeholders and their anticipated outcomes have been identified following qualitative data collection which captured the views and opinions of ATO senior leaders and potential participants of the case coaching project and the most popular themes extracted.

There were five key stakeholders of the case coaching program identified, being the individual ATO officers coached, the coaches (ie. their managers or technical leaders), taxpayers, the ATO and the overall community. The overarching aim of the case coaching is to ensure ATO officers are well-prepared for their interactions with taxpayers and are approaching the interaction with an appropriate mindset with a view to preventing or resolving the tax dispute.[7] If this is achieved, there will be beneficial short, medium and long term outcomes not only for the individual ATO officers but also the coaches (ie. their managers or technical leaders), taxpayers, the ATO and the overall community (being the five key stakeholders of the case coaching program).

The anticipated outcomes of the case coaching model

(i)                  ATO case officers being coached

In the short term (immediate), the main anticipated outcome of the case coaching is to ensure the ATO officer is approaching the case with an appropriate mindset. That is, ideally the ATO officer should be open to listening to the taxpayer and willing to change their initial assessment/approach to the case, consider other options if appropriate, with a view to earlier resolution of the tax dispute. If these outcomes can be achieved, it will lead to the ATO officer improving their critical soft skills, a sense of satisfaction that they have made the “right decision,” (i.e. it is within the law, ATO policy, and/or has a fair and reasonable outcome), improved technical and corporate knowledge in the medium term (6 months).

Long term (6 months plus) there will be improvement in workplace culture, greater job satisfaction, improved staff experience.

 (ii)                The coach

In the short term, the coach will gain an awareness of any skills gap as well as confidence the “right decision” is being made and the ATO officer is prepared for their interaction with the taxpayer. The coaching is likely to add time however this should improve over time as staff become more experienced as a result of the coaching. Therefore in the medium term, case cycle times should be reduced. The coach should also observe an improved staff experience which is likely to mean less unplanned leave, improved staff performance, increased efficiencies.  All this in the long term will led to an improved workplace culture and overall job satisfaction.

(iii)              Taxpayers

In the short term, taxpayers may feel they have been heard and respected. Through feedback, reports and word of mouth taxpayer statements, other benefits include: feeling the process was transparent and managed appropriately; the outcome was fair (even if the taxpayer is unhappy with the result); improved awareness of taxation obligations; and greater certainty in taxation maters. This will lead to greater taxpayer confidence in the taxation system.

(iv)              The ATO

In the short term the coaching is aimed at ensuring the ‘right decision’ is being made (i.e. it is within the law, ATO policy, and/or has a fair and reasonable outcome). A medium term aim is to resolve disputes at an earlier stage of the within the ATO dispute system, thereby saving costs. Effective coaching may ultimately lead to less complaints and litigation. A benefit for the ATO may also be improvements in the sharing of corporate knowledge; improved staff culture; improved reputation of the ATO; and long term, a more efficient taxation system.

(v)                Community

The long-term goal for the community will be a general feeling of consistency and fairness in the taxation system and community confidence in the ATO.

The case coaching model is anticipated to complement the ATO’s sophisticated Dispute System Design (DSD) and the ATO’s internal use of ADR methods, including in-house facilitation (mediation), the dispute assist program, and independent review. For further information on the model and ATO DSD see the upcoming publication Holland, C. & Hoyer, T. (in press). A case for coaching: Influencing cultural change at the ATO. Dispute Resolution Review.

[1] For further information in relation to the case coaching model will be available in upcoming publication Holland, C. & Hoyer, T. (in press). A case for coaching: Influencing cultural change at the ATO. Dispute Resolution Review.

[2] Gray, D. E. (2004). Principles and processes in coaching evaluation. International Journal of Mentoring and Coaching, 2(2), 1-7.

[3] Gray, D. E. (2004). Principles and processes in coaching evaluation. International Journal of Mentoring and Coaching, 2(2), 1-7.

[4] Grover, S., & Furnham, A. (2016). Coaching as a developmental intervention in organisations: A systematic review of its effectiveness and the mechanisms underlying it. PloS one, 11(7), p 6.

[5] A logic model is a graphic depiction (road map) that presents the shared relationships among the resources, activities, outputs, outcomes, and impact for your program. It depicts the relationship between your program’s activities and its intended effects.

[6] A theory of change shows how you expect outcomes to occur over the short, medium and longer term as a result of your work. It can be represented in a visual diagram, as a narrative, or both.

[7] A main focus of the ATO’s reinvention program

Call for participants – Mediation Research Project

Participants required for mediation research project

Mediator Neutrality, what does it mean to you? Assistance is sought from practising mediators conducting civil law mediations in NSW to participate in academic research. The research project is concerned with mediators’ understanding of neutrality in the context of self represented parties. The study explores mediators’ understanding of neutrality and fairness and how they inform the practice of mediation. The research will also investigate the challenges and opportunities of mediation when parties in mediation do not have legal representation. This study is part of a doctoral research project by Svetlana German (bio below). If you are a mediator in NSW and are willing to participate in a one hour interview Svetlana would love to hear from you!  For further information or to indicate your interest in participating please go to www.mediationresearchproject.com or email Svetlana directly (her details are also on the website)

Bio: Svetlana is currently undertaking her PhD at UTS in the area of mediation and this study is part of her doctoral research. Svetlana is a barrister and an academic. She was called to the bar in 2013 and practiced at 10th Floor Selborne Wentworth Chambers. Svetlana teaches at the University of Notre Dame Australia and holds the Quentin Bryce Law Doctoral Scholarship at UTS. She has a Masters of Law from Columbia University, and science and law degrees from the University of New South Wales. She has practised as a commercial lawyer in Sydney (Allens Linklaters) and is an accredited mediator in New York and with the National Accreditation Mediation System (NMAS) and is registered with the Commonwealth Attorney Generals Department as a Family Dispute Resolution Practitioner (FDRP).

ADR: Bringing Islam into the conversation

This Blog presents an opportunity to showcase the work of our students as the next generation of researchers and dispute resolvers. I am delighted to post another example here. Over to you, Zaynab..

islam and ADR blog

written by Zaynab Gul

I am Zaynab – an Australian, a Muslim, or better put: a true blue Muzzie. Over the last two and a half months, I studied ADR and the very useful role that it plays in resolving conflicts between parties outside the confines of the court system. The more I learnt about the purpose of ADR within the Australian framework, the more I wondered why a process that is commended for its flexibility fails to accommodate for cultural and religious practices.

Zaynab

Zaynab Gul

Given just how diverse Australia’s population is, it’s not hard to see why our state and federal legislations sideline culture and religion to create a uniform set of rules and regulations. But in an area like ADR, where the processes are no doubt more flexible and informal, it would make sense for Australian’s to be able to draw on their personal values and beliefs and use them to inform the approach taken to dispute resolution.

Our country’s ADR system didn’t come out of the blue. Instead, the western world’s interest in ADR first sparked in the 1960’s, and has developed over the recent decades to form ADR as we know it today. Though the 60’s may have given birth to ideas around ADR in the west, the practice itself existed amongst cultures and religions for many years prior.

Taking Islamic law as an example, over 1,400 years ago, the Qur’an not only established ADR as a tenet of civil justice, but also codified it with clear rules and regulations. There are also traces of ADR present in the customary law of our country’s first people. So, if ADR has been tried and tested for many centuries amongst various religions and cultures, why is the Australian ADR space so reluctant to recognise and learn from them?

Reshaping the ADR space?

As an Australian Muslim, I expect to be supported in being able to practice my religion, so long as it is in line laws of the land. Ancient Islamic law features processes like Sulh (which can be likened to western mediation) and Tahkim (the equivalent of arbitration). Though the nitty gritty of the rules may differ between the west and Islam, the basics are pretty much the same; both encourage the efficient and peaceful resolution of disputes.

A peaceful co-existence of religious based ADR and a western legal framework is not impossible. It’s been done for decades in the UK in response to the country’s growing number of Muslim migrants. There is a growing number of Muslims in Australia, given that Islam is the second most prevalent religion in our country.

Whether it be through the establishment of state sanctioned Islamic tribunals or the backing of religious mediators, there are many ways in which Islamic ADR can be recognised in Australia. As a country, we encourage diversity and are happy to embrace it in terms of food and entertainment, but when it comes to law, there’s clear hesitation.

It’s a long shot to call for a drastic change overnight. The first step for us all is to foster comfortable conversations about change and acceptance in an area like ADR where the law has the benefit of flexibility.

 

 

It’s time we started talking about neurodiversity in dispute resolution

This Blog provides a platform to showcase new and emerging research in the field of dispute resolution. As such, I have invited Danielle and David Hutchinson who have an interest in neurodiversity, including its implications for mediation, to write a piece. Thank-you for sharing, Danielle and David.

three skulls 5e271a18e3ddc8eba8bdb4f4_neurodiverse-talent

By Danielle Hutchinson[1] and David Hutchinson[2]

Research into neurodiversity is on the rise. As the concept makes its way into the zeitgeist, it’s time for us to start thinking about the many implications for mediation.

What is neurodiversity?

Neurodiversity is an overarching term that refers to the variation in people’s behaviours and traits arising out of neurodevelopmental difference. While there is still debate about what differences fall under this umbrella, it typically includes autism spectrum disorder[3][4] (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyscalculia, dyspraxia and Tourette’s syndrome[5].

Within the current understanding, neurodiversity differs from mental Illness in that it is not about a person’s state of mental health or wellness. Instead it is a healthy state that is simply neurologically distinct from that of ‘neurotypicals’. One of the common features of neurodiversity is that the difference between strengths and weaknesses are often magnified. For example, there may be an unusually large disparity between a person’s verbal reasoning and their working memory. While the variation is unique to each neurodiverse person, a familiar trope is that of the absent-minded professor. Diagram 1 shows common strengths and weaknesses for each condition[6].

neurodiversity model

Diagram 1

Why is this important to mediators?

Research into neurodiversity is still in its early days. However, it is starting to become apparent that that this disparity between finding some things extremely easy and other tasks almost impossible, can lead to confusion, frustration and misunderstanding in a range of contexts. This can be particularly so where the neurodiverse person has chosen not to share their diagnosis or is unaware of their neurodiversity.

Unfortunately, recent research into neurodiversity has shown that it is not uncommon for “employers, work coaches and authority figures to conclude that the individual is ‘not trying’, when undertaking particular tasks. Inconsistent performance is mistaken for a bad attitude or poor motivation, which leads to discrimination and perceptions of unfairness on behalf of the individual.”[7]

Given the potential for conflict to arise in such situations, and current estimates that as much as 30% of the population may have some form of be neurodiversity[8], it seems inevitable that as mediators we will need to consider the different ways that neurodiverse people make meaning of their interactions with others. More importantly, if we are to ensure that our practices are truly inclusive, we must start to consider the ways in which our practices may be premised on neurotypical assumptions.

For example, the following table outlines a few differences common to ASD and/or ADHD that may be misinterpreted as the neurodiverse person being deliberately difficult or as demonstrating traits of a high conflict personality.[9]

Difference Traits that may impact on traditional mediation techniques
Alexithymia
  • Difficulty experiencing, identifying and expressing emotions
  • Challenges with introspection, observing own mental and emotional processes, and/or identifying and responding to emotions in others
  • May struggle to communicate emotions to others
Black and white thinking
  • Polarised thinking patterns e.g. an argument or lack of agreement means the end of a friendship
  • Difficulty picking up on nuances and non-verbal gestures
  • Literal interpretation of conversations or agreements
Cognitive rigidity
  • Strong preference for rules and routines
  • Difficulty changing mental states or thinking about things in a different way
Executive functioning
  • Difficulty with tasks such as planning, problem solving, organisation, time management and working memory
Impulsiveness and inhibition
  • Acting without thinking things through or accounting for potential consequences
  • Difficulty allowing others to speak uninterrupted
  • Emotional self-regulation
Rejection sensitivity
  • Extreme sensitivity to being criticised or rejected, whether real or perceived
Sensory sensitivity
  • Can manifest as hyper or hypo-sensitivity
  • Bright lights, noise or smells can be distracting or distressing and inhibit ability to engage in activities

When we consider the typical facilitative mediation, it becomes apparent that we may have unintentionally set some neurodiverse people up to fail.

Where to next?

Each of these neurodevelopmental conditions manifests uniquely in each person, hence the catchphrase, “When you have met one neurodiverse person, you have met one neurodiverse person”. As mediators, it is not our role to diagnose or make assumptions. However, it is important that our practices are inclusive and can enable the full participation of all people involved. In providing an inclusive environment we can start harnessing the many strengths of neurodiverse participants to find mutually beneficial and sustainable outcomes for all.

[1]Danielle Hutchinson is a lawyer, mediator, author and co-founder of Resolution Resources. Danielle has lived experience of neurodiversity and, in consultation with experts in the field, is investigating neuroinclusive practices in mediation.
[2] David Hutchinson is an autistic researcher and writer in the field of autism
[3] Difference as opposed to disorder is now being used by some researchers in the field e.g. Fletcher-Watson & Happe (2019) and preferred by many in the ASD community
[4] The DSM-5 now includes Asperger’s Syndrome within ASD as ASD1. Even so, many people identify strongly with being an ‘Aspie’ and the term remains in use for those who wish to identify as such.
[5] First coined in 1998 by Australian sociologist, Judy Singer in research into Autism. While there is no formal definition, the term has been adopted broadly and is widely accepted as encompassing the neurodevelopmental disorders described above; see also ‘What is Neurodiversity?’ National Symposium on Neurodiversity at Syracuse University (webpage, 2011) https://neurodiversitysymposium.wordpress.com/what-is-neurodiversity/
[6] Neurodiversity, Dyslexia Scotland (webpage)  https://www.dyslexiascotland.org.uk/sites/default/files/library/Neurodiversity%20Model_SDMar16.pdf
[7] Ashley Weinberg & Nancy Doyle, Psychology at work: Improving wellbeing and productivity in the workplace (British Psychological Society, 2017) 44.
[8] ‘Neurodiversity and other conditions’, ADHD Aware (web page, 2018)  https://adhdaware.org.uk/what-is-adhd/neurodiversity-and-other-conditions/
[9] See the work of Bill Eddy and Grant Lester on high conflict personalities and the vexatious litigant.

Learning from our First People – using Yarning to Resolve Conflict

earthy comments

This Blog presents an opportunity to showcase the work of our students as the next generation of researchers and dispute resolvers. I am delighted to post another example here. Over to you, John..

John Lidbetter

My name is John Lidbetter. I am a fourth year Actuarial Studies and Law student at UNSW. I began learning about yarning whilst studying ‘ADR in Practice’, a law elective at UNSW taught by Dr Rosemary Howell. I am extremely grateful for Rosemary’s guidance and assistance on this topic. I welcome any comments or suggestions the reader may have.

Conflict resolution is not new. All cultures have a conflict resolution tradition, offering opportunities for learning to current academics and practitioners. Australia’s First Peoples have powerful tools to resolve conflict; these techniques have been refined over centuries, which provide opportunities for us to do things differently and better in the ADR space.

This blogpost focuses on Aboriginal traditions of yarning. Yarning involves written and oral storytelling, which emphasises joint discussion of the past in order to build a relationship between the storyteller and listener.[i] Digging into the literature reveals some powerful benefits which Yarning makes accessible to ADR professionals. In particular, yarning provides effective strategies and tactics which enable us to more deeply understand other parties’ perspectives. Additionally, Western forms of ‘narrative mediation’ already acknowledge and adopt narrative practice – recognising the benefits of storytelling. These benefits are worth digging into a bit more deeply.

Yarning to promote mutual understanding

Why are we compelled by stories which arouse our emotions? One explanation is that emotional stories invite us to empathise with the storyteller’s perspective. If we can empathise with the storyteller, we may become more inclined to listen and understand the individual’s point of view. Yarning provides a medium to communicate emotion and understand competing perspectives as it involves describing experiences and personal stories. For example, Tara June Winch’s novel, The Yield, illustrates the impact of returning to a home that is becoming repossessed by a mining company. Through describing personal experience, Winch creates a connection with the audience which invites readers to learn from the storyteller’s message. In Winch’s case, we begin a process of understanding the cultural significance of land for Indigenous peoples.[ii] In the ADR space, the learning opportunities are limitless; telling stories allow us to listen and understand each other’s’ perspectives – facilitating the resolution of conflict.

Repetition and Silence

However, to resonate with another person’s perspective, we must be able to digest the information. To digest new ideas, we often need time to pause and think. If we have time to process what is said, we become better equipped to understand our counterparty’s perspective and brainstorm ideas. However, studies suggest that Anglo-cultures view silences and pausing negatively – inhibiting our capacity to retain information.[iii] Learning from yarning may help resolve this deficiency.

In the Aboriginal yarning context, pauses are not interpreted negatively; instead, silence is used to reflect.[iv] Furthermore, repetition is often used in yarning to reinforce the underlying structure and logic of new ideas.[v] By incorporating silence and repetition into our repertoire, we enable ourselves to understand complex factual scenarios and interests to a greater extent. In doing so, we become more likely to understand our counterparty’s perspective – assisting in the resolution of conflict.

Inclusive Language

It is often easier to work together on a problem when both parties feel included in the process. Yarning provides subtle techniques which enable our counterparty to feel engaged in the conversation. For example, in the historical novel, Dark Emu, Bruce Pascoe uses plural personal pronouns such as ‘we’, ‘our’ and ‘us’ in his dialogue.[vi] By including the audience, the reader does not feel alienated or accused. Instead, inclusive language avoids what Fisher and Ury describe as ‘the people problem’.[vii] By separating the people from the problem, we ensure both parties fight the same issue, together. We could all benefit from including, rather than excluding our counterparty as it facilitates collaborative discussion which may facilitate conflict resolution.

How Does Narrative Mediation Incorporate Yarning?

Despite the apparent benefits arising from yarning, how can we know that storytelling techniques will translate to successful conflict resolution in the ADR space? Well, we can consider the use of storytelling in Western ‘narrative mediation’ contexts. Narrative mediation styles have incorporated aspects of yarning. The important similarity between yarning and narrative mediation is the joint emphasis upon telling personal stories. Both processes promote the power of storytelling as an ends in itself, which inadvertently facilitates successful conflict resolution. Neither processes pressure parties into settlement, which frees individuals to focus upon mutual understanding, rather than bargaining. In doing so, narrative mediations enable parties to reconcile their differences through utilising the power of joint discussion of personal stories. As a result, narrative mediation processes are highly successful in resolving conflict due to the acknowledgement of the power of yarning.

Where do we go from here?

Learning and adopting new forms of communication styles is difficult. However, adding yarning to our repertoire may allow us to better resolve conflicts and maintain stronger relationships. The main benefit of telling our stories is that it humanises the conflict. At its core, conflicts are relationship-based. We can disarm and relieve tensions through sharing our personal perspective. In doing so, we may create a connection and achieve mutual understanding, which better equips us to resolve conflict. Interestingly, there is scarce academic research concerning yarning in the context of dispute resolution, or its connection to Western forms of narrative mediation. Consequently, this blogpost aims to spark discussion and further research about how we can maintain better relations with others through acknowledging and learning from yarning.

[i] Lynore Geia, Barbara Hayes and Kim Usher, ‘Yarning/Aboriginal storytelling: Towards an understanding of an Indigenous perspective and its implications for research practice’ (2013) 46(1) Contemporary Nurse 13, 15; Dawn Bessarab and Bridget Ng’andu, ‘Yarning about Yarning as a Legitimate Method in Indigenous Research’ (2010) 3(1) International Journal of Critical Indigenous Studies 37, 38; Tyson Yunkaporta, ‘Aboriginal pedagogies at the cultural interface’ (PhD Thesis, James Cook University, 2009) xiii.
[ii] Tara June Winch, The Yield (Hamish Hamilton, 2019) 33–4.
[iii] Michael Walsh, ‘Conversational styles and intercultural communication: an example from northern Australia’ (1991) 18(1) Australian Journal of Communication 1, 2.
[iv] Ilana Mushin and Rod Gardner, ‘Silence is talk: Conversational silence in Australian Aboriginal talk-in-interaction’ (2009) 41 Journal of Pragmatics 2033, 2033.
[v] Tyson Yunkaporta, ‘Aboriginal pedagogies at the cultural interface’ (PhD Thesis, James Cook University, 2009) xvii.
[vi] Ibid 14.
[vii] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (Houghton Mifflin Harcourt, 2nd ed, 1992) 13.

Seven Keys to Unlock Mediation’s Golden Age

As co-editor of the ADR Research Network Blog this month, I have invited Michael Leathes to talk about an international collaboration that he curated called The Seven Keys to Unlock Mediation’s Golden Age. Leathes’ original 2010 article, 2020 Vision – Where In The World Will Mediation Be In 10 Years, has inspired 40 dispute resolution thinkers — users, practitioners and scholars — to look a further 10 years into the possible development of mediation, not to predict the future, but to help invent it. I invited Michael to tell us more…

Seven car keys

An overview of the Seven Keys by Michael Leathes

As modern mediation enters its 5th full decade, it is timely to admit an inconvenient truth: global uptake of mediation appears to have plateaued far short of its potential. Is the mediation field around the world just going to do the same things over and over while hoping for a major uptick in growth? Einstein famously called this “insanity”.

Several great thinkers have memorably noted that the way to predict the future is to invent it. But this is a challenge in a deeply fragmented, highly competitive, often misunderstood field. The Seven Keys to Unlock Mediation’s Golden Age aims to mobilise an international conversation about how the field can trigger exponential growth over the next 10 years.

The introduction by Professor Nadja Alexander and Lela P. Love exhort stakeholders to imagine a new order illustrated by over 20 peer-reviewed propositions by 40 writers in 16 countries. Seven contributors are Australasians. Each piece is no longer than 1,111 words. The propositions are clustered into Seven Keys: Leadership, Data, Education, Profession, Technology, Government and Usage. They intersect to create what Professors Alexander and Love characterise as a whole greater than the sum of its parts.

Dr Rosemary Howell and Alan Limbury, with Ken Cloke and Joan Goldsmith, frame the work with a plea for the main players to come together and provide collaborative, mediative leadership with both a unified vision for the field and a clear mission and path to achieve it. A vision and mission that empower stakeholders to become the owners, and not merely renters, of the field’s future. The propositions that follow this call for mediative leadership all describe elements that can help shape the vision and implement it through the mission and include:

  • Generating credible science to support mediation skills and processes and to develop new theories from empirical and other field-sourced research data
  • Repeating the Global Pound Conference series periodically
  • Developing a “Negotiation Index” app packed with instant wisdom and evidence to aid mediators and parties
  • Widely teaching mediation as a core subject
  • Training mediators more thoroughly, not least in culture and neuroscience
  • Ensuring mediation is publicly respected as a true professional practice
  • Seeing mediators openly declare what they believe
  • Subscribing to a Code of Disclosure
  • Leveraging technology more effectively
  • Engendering visible Government engagement, including walking the talk and implementing the Singapore Mediation Convention
  • Proactively marketing mediation to users
  • Promoting mediation to facilitate deal making
  • Increasing peer mediation programs in schools
  • Promoting the value of women mediators
  • Making mediation a pre-requisite to litigation and more systemically encouraged and fused in arbitration
  • Helping inexperienced mediators gain a practice foothold with mentoring and practice programmes, and finally
  • If the main players collaborate to share leadership internationally and develop a single vision with a credible mission and a comprehensive budget, it should be fundable on a worldwide scale – it’s been done before!

Joanna Kalowski concludes with Many Paths, One Way. She calls upon the world’s leading stakeholders in mediation to chart the new future, adopt and build upon the Seven Keys as a springboard, and develop it collaboratively with energy and enthusiasm on a global scale.

Seven Keys to Unlock Mediation’s Golden Age was serialised on Mediate.com in June and July 2020.
The complete downloadable pdf of the Seven Keys is anticipated to be made available as part of the mediate.com 25th Anniversary in September 2020 as a no-charge e-book. Once published, the work may be reproduced in accordance with a Creative Commons licence provided within the document.
Interviews with many of the Seven Keys’ contributors have also been recorded and will be made available in conjunction with this publication.

 

Could COVID-19 see the end of Halsey?

The continuing development of ADR processes has brought with it a significant growth in litigation which explores issues such as  enforceability, good faith negotiation and cost sanctions for failing to mediate. These cases add to our understanding of how the field of ADR is continuing to develop.

With this in mind we have been fortunate to receive permission from Alan Limbury, Senior Fellow,  Melbourne Law School, to reproduce his recent Kluwer Blogpost. Please read Alan’s blogpost below.

Future-300x203

Written by Alan Limbury, Kluwer Arbitration Blog 22 June 2020

 

The impact of the COVID-19 pandemic on the administration of justice has led to commendable judicial innovation, such as the use of virtual hearings, while much of the workload has been postponed until the resumption of face to face hearings is declared safe.

In a message to judges in the UK Civil and Family Courts in March, the Lord Chief Justice said:

“It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned. I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.”

Unless or until overturned by legislation or judicial decision, the situation in the UK is governed by the 2004 decision of the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11 May 2004) , in which Dyson LJ (with whom Laws LJ and Ward LJ agreed) said:

“…it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 [of the European Convention on Human Rights].”

In 2010 the European Court of Justice differed, holding that a mandatory out-of-court settlement procedure is not contrary to European law so long as it does not result in a binding decision, does not cause a substantial delay in litigating, does not oust the court’s jurisdiction due to limitation periods and is not excessively costly: Rosalba Alassini and others v Telecom Italia SpA and others.

That was not the end of Halsey however, because Dyson LJ continued:

“Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:

‘The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.’”

Comment: that unfortunately erroneous passage from the White Book fails to address the substance of Harvard Professor Frank E A Sander’s well-known and compelling statement: “There is a difference between coercion into mediation and coercion in mediation.”

Dyson LJ went on:

“If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is not, of course, obliged to take at face value the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it… we reiterate that the court’s role is to encourage, not to compel.”

Halsey established a regime whereby the courts may impose cost sanctions against successful litigants on the grounds that they unreasonably refused to engage in ADR. Such penalties are, of course, necessarily imposed after the decision on the merits of the case, whereas a power to order parties into mediation would be exercised before the final decision.

Even before the 2010 Alassini decision, Sir Anthony Clarke, in The Future of Civil Mediations, (2008) 74 Arbitration 4, 419 said:

“It is of course a cliché that you can take a horse to water but whether it drinks is another thing entirely. That it is a cliché does not render it the less true. But what can perhaps be said is that a horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it. Litigants being like horses we should give them every assistance to settle their disputes in this way. We do them, and the justice system, a disservice if we do not.”

Using the same cliché, in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013) , Sir Alan Ward said:

“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey…”

A year later, in Bradley & Anor v Heslin & Anor [2014] EWHC 3267 (Ch) (09 October 2014) , Norris J said:

“…The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”

In its 2017  Interim Report on ADR and Civil Justice , the Civil Justice Council ADR Working Group said at 9.32:

“… if the Working Group were free to choose we would be minded to allow judges to make orders in particular cases compelling an unwilling party or unwilling parties to attend a mediation or engage in some form of ADR.”

In its 2018  Final Report, the Working Group refrained from suggesting such a course, instead advocating increased encouragement into ADR at various stages and, at 9.24, proposing a system, as in British Columbia, in which a formal Notice to Mediate from one party to another triggers mediation by a mediator on a court-approved panel. The court is not involved unless the parties cannot agree on the mediator or otherwise seek its intervention.

While such a scheme would undoubtedly be useful, both in disposing of cases and in increasing awareness of ADR, the missing element is what I see as the clearly desirable power of the court, as it considers appropriate, to order parties into mediation whether or not they consent. In my 2018 Kluwer blog, I touched upon the way in which Australian courts use their statutory power to make such orders.

In his recent article Mediation – Don’t panic in the Pandemic – be prepared , Colin Manning, mediator, says:

“If, as seems likely, there is a risk that the courts will become overwhelmed by a wave of commercial cases, a combination of the number of adjourned cases built up during the lockdown together with a rush of new litigation arising from the pandemic, then there will be lengthy delays to hearings and trials. It must be possible that the judges will have to take practical steps to ease the pressure. One obvious step is to require all parties to engage, or re-engage in some form of ADR, almost certainly mediation, as a condition of bringing or continuing litigation.”

Perhaps the pressure caused by the COVID-19 pandemic makes this time for the UK to dump Halsey and adopt this approach.

 

Restoration Retribution Revenge and Forgiveness: what can Game of Thrones tell us about human needs in dispute resolution.

 

Along with millions of other viewers worldwide, I watched, reflected on, discussed, and evaluated Game of Thrones on multiple levels, to the point of being slightly embarrassed by the amount of mental energy I was spending on this exercise. The answer? Explore the theoretical bases for aspects of the series that intrigued me as a lawyer and dispute resolution practitioner.

Like millions of other viewers, I felt a deep sense of moral satisfaction (sometimes expressed via air punching jubilation) when numerous villains ‘got what they deserved’. This led me to think further about the concept of ‘just deserts’ and what ‘seeing justice done’ means to humans. ADR theory focuses on collaboration, understanding, and moving forward, but do positive reactions to violent demise in this series hint at a more visceral drive to seek revenge as well? Further reflection suggested that there were interesting nuances in the way that retribution and punishment were meted out in Game of Thrones – that the manner in which various transgressors got their just deserts might be intrinsically linked to both the severity of the transgression, and their moral character. (Yes, I did spend a lot of time thinking about this series).

SPOILER ALERT – if you have missed this series and don’t want to know what happens to some of the bad guys, go straight to *

Who didn’t feel secretly jubilant when the vicious, cruel, entitled and arrogant Ramsay Bolton was left to be torn to pieces by the very hunting dogs he’d trained to cause so much cruelty to others?

Was it only me who thought that whilst Stannis Baratheon clearly had to die, he deserved a death less gruesome, as a once decent man who had lost his way, but somehow still earned a little empathy for his misguided attempts to do the right thing?

And finally, Jaime Lannister, who veered from loathsome to likeable across 8 seasons, but finally met an end that seems somehow fitting with the emergent decency that he exhibited even though he could not ultimately reconcile the moral challenges that he faced.

Anyone who has seen the series will know that this analysis could go on and on.

* End of spoilers

It seemed inevitable that all of these people (and many more) really did have to die, but I wondered how the manner of their deaths might reflect some human need for revenge and retribution in the context of broader ideas of dispute resolution.

550 years BCE, Nebuchadnezzar talked about ‘an eye for an eye’. The related concepts of retribution and revenge have become cultural historical and philosophical pillars of Western criminal punishment principles. This works as a social balance – visibly illustrating the moral standards society expects, punishing the offender as a means of deterrence, and ideally providing satisfaction in the sense of re balancing the moral wrong, to the victim.  But is there also a need for the response to deliver some emotional benefit to the sufferer?

The idea of restoration – supplanting revenge punishment and the infliction of pain and consequence on transgressors, is a more recent phenomenon in criminal justice models, and contributes to modern Western criminal punishment theory. Ideas of restoration are also deeply embedded in ADR theory, particularly in facilitative relational processes, where past wrongs are examined, and left behind as the parties move forward.

The last 20 years or so have seen a number of research papers examine the  psychological balancing of revenge, and the necessity of forgiveness by those wronged in moving from retribution to restoration. Much of this work is framed in terms of punishing criminal offending, but underlying human reactions addressed in this process are equally present in non-criminal matters.

Peter Strelan and Jan-Willem Van Prooijen [1] describe forgiveness as the replacement of negative responses with positive ones towards a transgressor. The socio-cognitive steps in this process involve the transgressor doing something to encourage forgiveness, with the victim re-evaluating their response and perhaps developing empathy for the transgressor. But the authors also found that victims who can punish the transgressor are more likely to forgive. This act of causing harm or consequence appears to be important in moving from negative to positive responses to the transgression. Based on a series of controlled empirical studies, the authors propose that “ [T]ransgressions stir emotions of anger, resentment and condemnation and so prime a fundamental human need for balance and equity: That is, transgressors should not be allowed to get away with what they did” and that “seeing offenders suffer for their actions helps victims feel better”. They also point to physiological evidence that “retaliation is an instinctual response to being transgressed against”. Rather than contrasting a “punishment” or “forgiveness” dichotomy, the authors suggest that punishment is a necessary step on the path to forgiveness .

Tyler Okimoto, Michael Wenzel and N J Feather [2] explore concepts of justice orientation to explain the revenge v forgiveness phenomenon. They suggest that people are either oriented towards retribution, or towards restoration, aligning retributive orientation with people who value unilateral authoritarian imposition of penalty, and restorative orientation with people who prefer to achieve consensus about shared values. They align personality types with these two orientations, suggesting that power plays a significant role. Retributive preferences tend to align with individual even narcissistic personality types with strong adherence to authority and group-based dominance, as well as high individual value of power and self enhancement. Whereas restorative orientation tends to align with a conceptualization of justice as a process to achieve consensus between affected parties.  A very simplistic description of these preferences might contrast competitive individual values with collaborative communal values.

Monica Gerber and Jonathan Jackson [3] define the terms a little differently, describing retribution as both just deserts or revenge. As just desserts, the transgressor pays back for the harm done and justice is achieved by the redistribution of positive and negative experience. As revenge, the victim seeks not only to restore the balance, but to retaliate against the transgressor – “vengeance involves the emotional pleasure of seeing the offender suffer”.

SPOILER ALERT – skip next paragraph

Applying GoT examples to these theories, we might align Sansa Stark’s secret satisfied smile following Ramsay Bolton’s death with the idea of vengeance linked to offender suffering, and Brienne of Tarth’s regretful execution of Stannis Baratheon as a restoration of moral and social balance following his murder of his own brother in pursuit of the Iron Throne.

Gerber and Jackson’s suggestion that emotional pleasure might connect to visible suffering of transgressors is a bold and, in some ways, quite shocking conclusion – surely modern humanity has moved beyond that base need?

ADR, particularly mediation, seeks to move away from the concept of vengeance and retribution on the offender, to a restorative model that seeks to reintroduce balance by empathy, collaboration, and consensus. Yet it seems based on this research that underneath the choreography of mediation, and the implicit presumption that parties behave decently towards each other, there might lurk a much darker and more visceral need to see the other side suffer ‘what they deserve’ in retaliation for their moral transgression.  After all, there must be some reason why the term “the sweet taste of revenge” is still  in use today.

This train of thought was prompted by the idea that the millions of modern day viewers rejoicing at the often brutal but seemingly fitting retribution that some truly reprehensible characters suffered in Game of Thrones, are the very same people that we see in facilitative ADR processes – in other words, us. If this thread of desire for vengeance retribution and the infliction of suffering is hidden somewhere in the psyche of some if not all of participants in this process, what should we do with that? Is the elephant in the room here that people might be a lot meaner, vindictive, and retaliatory than anyone cares to admit – and that this is not some moral or character flaw but exists at a deeper psychological needs level.

I have never conducted a mediation where the parties, however opposed to each other, came anywhere close to exhibiting the sort of values and behavior that we saw on Game of Thrones. Nor can I imagine comfortably prompting discussion in mediation around a party’s vengeful desire that the other party suffer miserably in consequence of their past actions. But pursuing this line of inquiry has made me realise that the idea of basic psychological human needs may be more complex than I thought.

For a lively and wide ranging review of some of the ideas in this discussion, see Arne Sjostrom 2012 “When does revenge taste sweet: a short tale of revenge.” The Inquisitive Mind, Vol 15.

References

[1]        P Strelan & J-W van Prooijen 2013 “Retribution and forgiveness: The healing effect of punishing for just deserts”, 43 European Journal of Social Psychology, Vol.43, pp. 544-553.

[2]       T Okimoto, M Wenzel & N Feather 2016  “Retribution and restoration as general orientations towards justice” European Journal of Personality, Vol 26, pp. 255-275

[3[       M Gerber & J Jackson 2013 “Retribution as revenge and retribution as just deserts” Social Justice Research, Vol 26, pp.61-80

 

Best Practice for ADR in Equal Opportunity complaints

Peta Spyrou is a Doctoral student at the University of Adelaide Law School. She won a scholarship representing a partnership between the University and the Equal Opportunity Commission of SA. This scholarship supports students who have and interest in equal opportunity and human rights to develop interdisciplinary higher degree research skills.

 

Peta’s topic looks at disability discrimination complaints in the area of education from students who have a disability that manifests in complex behavioural issues. By focusing on the different ADR complaint-handling processes and tests for direct discrimination in SA and Victoria, Peta’s research aims to determine whether different outcomes and levels of satisfaction result under different systems. It also includes data from SA students who have made complaints to the Australian Human Rights Commission. Here  Peta explains the background and focus of her research.

 

  • What motivated you to devise this topic?

My interest in this topic is multi-dimensional: My personal connection to the disability community; intellectual interest in law; interest in this unique scholarship opportunity; and recognition of the benefits of an education, (developed by my upbringing from a family full of educators), all influenced this topic.

 

In mid 2017, a colleague, who happened to be an Alumni from the University of Adelaide, received an email from the University’s Graduate Centre advertising the scholarship and partnership with the Equal Opportunity Commission. Knowing of my personal interest in both disability advocacy and Law, my colleague forwarded this email to me and encouraged me to apply.

 

My interest in disability was sparked from my part-time caring role of a young person with disabilities. My connection to him and his family for now almost nine years fostered a keen passion in the areas of human rights and equal opportunity for people with a disability. This focus and passion are complimented by my intellectual interest in law, and belief in the value of evidenced-based research informing policy recommendations.

 

  • How does this partnership between the Law School and EOC work – what do you do and where?

Scholarship recipients can undertake either a PhD or Masters qualification under a collaborative arrangement with Dr Niki Vincent, Commissioner for Equal Opportunity SA, who supervises successful recipients alongside University of Adelaide academic staff.[1]

 

As part of my application process, I consulted with Dr Vincent directly. When formulating my topic, the Commission was receiving an increasing number of complaints from students with challenging behavioural issues as a result of their disability, who were alleging disability discrimination in education.

 

Initially, I wanted to examine what was best practice for resolving these complex disputes; however, I soon realised that a significant literature gap exists. The confidential nature of the ADR processes associated with Anti-Discrimination and Equal Opportunity Commissions mean that we do not know how these statutory bodies are resolving these complaints, if at all.

 

My partnership with the SA EOC has enabled other statutory bodies to partner with us to facilitate a comparative analysis. My research currently involves the Commissions in SA, Victoria and the Commonwealth, and I conduct my research from the South Australian Commission one day a week.

 

  • What, broadly speaking, is your thesis?

Students who have a disability that results in challenging behaviours, such as violent or threatening conduct, may affect the safety and wellbeing of themselves and others.

 

Educating these students presents teachers with unique challenges given the existence of competing duties: for example, the duty not to discriminate versus duty of care obligations.

 

Despite all Australian jurisdictions containing protections for students with a disability to access education free from direct or indirect discrimination, no legislative framework expressly addresses what the appropriate balance is between competing duties, interests or principles contained within anti-discrimination; work, health and safety; human rights and educational frameworks. Additionally, because all statutory bodies seek to resolve discrimination disputes through ADR, the confidential nature of both the process and any resulting agreements compound this ambiguity. As a result, a knowledge gap exists regarding how these statutory bodies resolve these disputes.

 

My research focuses on this gap and builds on existing ADR and discrimination literature by empirically examining disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

 

The focus is on disability complaints raised by primary or secondary students who have challenging behaviours.

 

  • Could you outline the different EO structures that exist in Australia, including the use of ADR?

The dominant enforcement method under Australia’s anti-discrimination law is ‘compulsory conciliation’ at a statutory body. By this I mean that the overwhelming majority of frameworks require complainants lodge a complaint in writing to a statutory body for alleged breaches to the relevant Act. These bodies are tasked with the responsibility of upholding the objects of the legislation and attempt to settle disputes through ‘conciliation’, which is generally not defined in the Acts. If complaints cannot be resolved in this way, there is a potential for certain disputes to progress to a tribunal hearing, or federal courts if initiated with the Australian Human Rights Commission.

 

Victoria, however, has a slightly different system: It allows complaints to be lodged with either the Victorian Civil and Administrative Tribunal or with the Victorian Equal Opportunity and Human Rights Commission. Therefore, complaint lodgement at the Victorian statutory body is not a precondition to tribunal access. Even if a complaint is lodged with the Victorian Commission, the Act expressly allows for a range of different ADR processes to be used in an attempt to resolve the dispute.

 

My research investigates the intersection of the competing interests posed by students with challenging behaviours because of a disability. It seeks to determine whether the different complaint-handling processes in SA and Victoria results in any practical differences. It also compares results obtained through commissions and tribunals with outcomes of publicly available judgements. The purpose of this analysis is to examine whether the advantages of dispute resolution processes are being realised; whether one system receives higher satisfaction levels; and whether justice is achieved through non-litigious processes.

 

  • Can you explain the research plan that you are developing?

This research aims to address the literature gaps by both quantitative and qualitative means.

In working alongside the confidentiality constraints, the quantitative phase asks statutory bodies to provide data about educational complaints broadly, as well as specific data about complaints relating to students with complex behavioural issues. This initial phase is facilitated by the statutory body responding to a questionnaire which I modelled on the 1995 study conducted by Hunter and Leonard on sex discrimination outcomes (Rosemary Hunter and Alice M Leonard, The Outcomes of DIscrimination Cases (University of Melbourne, Faculty of Law, Centre for Employment and Labour Relations Law, 1995),  and after reviewing a relevant complaint (with the parent’s permission) that was lodged with the SA Commission.

 

The study’s qualitative phase aims to gauge user satisfaction on both the dispute resolution process and the outcome of the matter. This will be facilitated by semi-structured interviews with interested parties and professionals who have been involved in matters that fall within the project’s sample size. I will also use a scoping survey to determine the professionals I would like to interview. This is to ensure that the stakeholder has been involved in a matter that is relevant to my research. This second phase will also ask Commission staff to explain their complaints-handling model in relation to these disputes. It is hoped that this query will determine the scope of any issues associated with a lack of a statutory definition for conciliation, if at all.

 

  • Why do you think it is important to interview individuals as part of this exploration?

Literature suggests that people in dispute resolution settings, especially mandatory processes, often experience power imbalances leading to potential disadvantages or levels of vulnerability. Additionally, the personal circumstances of caring for a young person with disabilities may make parent advocates vulnerable negotiators in ADR settings.

 

My research examines this by giving a voice to users of relevant dispute resolution processes who are often not heard in policy development. In doing so, I will be uniquely placed to make conclusions with regard to what system best minimises the potential disadvantages of dispute resolution in complex disability discrimination disputes in education.

 

  • There is a lot of discussion about the definition and parameters of conciliation at the moment, what are your preliminary thoughts on that? What issues does that raise in your mind in relation to your research.

The absence of a universally accepted definition of conciliation may be a reason why much of the academic literature is focused on mediation, resulting in conciliation and mediation wrongly being used interchangeably. On one hand, this could mean that policymakers have created unplanned complaint-handling processes. In other words, legislatures could have created conciliation-based systems when they really meant mediation-based processes. On the other hand, the lack of a definition could provide the statutory body with broad discretion to resolve the dispute.

 

My research is in part looking at where the various complaint-handling processes lie along the ADR continuum. This may help commentators frame the discussion about the definition and parameters of conciliation.

 

  • What are you finding enjoyable about this experience? What are you learning and how do you think this will make a difference?

While I developed an interest in legal research in my undergraduate degree and through employment opportunities, being able to align my various interests and passions in a PhD topic that has the potential to assist an industry partner is an exciting aspect of my study.

 

1    Peta’s supervisors from Adelaide Law School are: Associate Professor Dr Bernadette Richards; Associate Professor Anne Hewitt and Senior Lecturer Margaret Castles.

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