‘Linking Your Thinking’ To Satisfy Your Clients

This post by Emma-May Litchfield and Danielle Hutchinson originally appeared on the Global Pound Conference Blog.

Global Pound Conference Blog

Небесные струныDo you want to make sure that your commercial clients are happy with the dispute resolution services you are providing? Are you committed to tailoring your business to meet their needs? Irrespective of whether your clients are ‘dispute-savvy’ or still finding their way into the world of commercial dispute resolution, there are things that you can do to make sure you meet their expectations.

The Global Pound Conference is travelling around the world asking commercial users, judges, mediators, lawyers, academics and government officials to share everything they know about the best ways to meet the expectations of commercial clients. After analysing the feedback from the first 350 respondents, we have identified three steps that can help you meet the expectations of your commercial clients.

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3 Signs That You (Or Your Clients) Are Dispute-Savvy

This post by Emma-May Litchfield and Danielle Hutchinson originally appeared on the Global Pound Conference Blog.

Global Pound Conference Blog

display concepts with clipping pathWhether you are a dispute resolution practitioner or a commercial operator, you know that some manage to navigate the commercial dispute resolution world more effectively than others. What distinguishes those who thrive from those who barely survive?

The answer may be simpler than you think, but the implications of understanding this could have a big impact on the way you approach commercial disputes.

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How Should We Think About Mediation Ethics?


This post summarises some themes of my keynote address at the recent National Mediation Conference, entitled ‘Two Models of Mediation Ethics’. (Thanks to Emma-May Litchfield for the photo.)

It is becoming increasingly common to speak about mediation as a profession. There is broad agreement among sociologists as to the main hallmarks of a profession. These include institutionalised education and training; a body of specialised knowledge and expertise; professional licensing; workplace autonomy; a communal code of ethics; and peer to peer accountability. Mediation in Australia now fulfils many of these yardsticks. Specialised mediation courses are offered by universities and other institutions. Many of these courses are designed to fulfil the requirements of the National Mediator Accreditation Scheme (NMAS). Shared ethical codes exist in the form of the Practice Standards associated with NMAS, as well as codes maintained by other bodies, such as the Law Council of Australia.

Why, then, might some people think that mediation in Australia still falls short of being a profession? One concern might relate to the absence of a coordinated process for professional discipline. The Mediator Standards associated with the NMAS are maintained by the national Mediator Standards Board (MSB), but the MSB does not hear complaints or impose disciplinary sanctions. Complaints must instead be directed to the Recognised Mediator Accreditation Body (RMAB) to which the mediator belongs. There are more than thirty-five such bodies recognised by the MSB and their complaints processes vary widely. Can it really therefore be said that mediation has the kinds of accountability processes that characterise a profession?

This is a complex and important question. It raises deep issues about how we think about professional ethics, both in terms of where ethical standards come from and how they are enforced. This issue, in turn, signals questions about the nature of the mediation community. Should a professional community ideally have a centralised body that promulgates and enforces ethical standards? Or is a more decentralised model sometimes appropriate? If mediation increasingly views itself as a distinctive profession, does this necessarily mean we should move towards a more coordinated model of professional discipline? Does legal regulation have a role to play in ensuring universal accreditation and disciplinary processes?

These are questions the mediation community must ask itself as part of its process of growth, maturity and professionalisation. My suggestion is that we need to distinguish two different models for thinking about mediation ethics and decide, as a professional community, which path we wish to follow. The first option is the regulatory model familiar from its adoption by the legal profession. The regulatory model assumes that ethical rules will be drafted by influential members of the profession and promulgated as a code binding upon all. The standards contained in the code will be taught as part of a standardised accreditation process, often linked to licensing and enforced by legal regulations. Formal complaints about breaches will be adjudicated by a body of practitioners with the power to impose professional sanctions, such as suspension or withdrawal of accreditation.

An alternative way of thinking about professional ethics is what I call the practice model. The practice model begins with the insight that intuitive judgments lie at the heart of ethical discourse. Ethical standards, on this view, do not arise when they are formulated by a body of experts. Rather, they emerge and evolve over time as members of a professional community respond to ethical scenarios. The decisions made by individual practitioners are repeated and internalised when the same situations recur over time. These judgments are then shared and reinforced through communication with other members, who may have had similar experiences. As a result, certain kinds of responses come to be widely shared within the group. The members of the group may then reflect individually and collectively upon these responses, expressing them as principles that are adopted as guides for future conduct.

There are, I think, three key features of mediation that make it particularly hospitable to the practice model of professional ethics outlined above. First, mediation is an inherently relational process. The regulatory model mirrors, to some extent, the traditional focus of legal practice on litigation—a hierarchical, formalistic and coercive form of dispute resolution. Mediation, by contrast, has often been presented as offering a more relational alternative to the adversarial norms of the courtroom process. Mediation takes many diverse forms, but at its core lies the simple idea of parties sitting down together and discussing their interests in a structured format. Mediation, in this sense, places a heavy emphasis on what the French philosopher Emmanuel Levinas calls the face-to-face encounter with the other. This makes it particularly well suited to generate meaningful discourse about ethical responsibilities.

Second, mediation has long been regarded as a relatively unstructured form of dispute resolution—certainly by contrast to litigation and the courtroom environment. It is unstructured both in the sense of being relatively informal in its procedures and in the sense of not being governed by substantive rules for resolving the dispute at hand. Mediation, of course, is not entirely unstructured: mediators will often set out ground rules and disputes may implicitly take place in the shadow of the law. Nonetheless, this feature of mediation makes it a far more dynamic environment than many other forms of dispute resolution. Mediators are innovators: the process enables them to try new things and evolve their practices over time.

A third feature of mediation that lends itself to the practice model is its interest-based focus. It is commonly accepted that whereas litigation focuses on legal rights and duties, mediation focuses on the interests of the parties. This enables mediation to retain its flexibility and forge a workable outcome in each dispute. The interests-based focus of mediation also makes it hospitable to a model of professional ethics that views ethics as a set of shared responsibilities, rather than a set of formal rules imposed from above. Ethics, understood in this way, can be responsive to the needs and interests of all those affected by the mediation process. It need not be constrained by the feasibility or desirability of formal attributions of blame.

It is important for the mediation community—including both practitioners and scholars—to reflect upon its distinctive attributes and avoid complacency about its shared values. If mediators want their community to be defined by relationality, dynamism and shared responsibility, rather than by hierarchies and formal rules, they need to be able to articulate that vision and fight for it. They should not simply accede to the widespread assumption that a mature professional ethics equates to a regulatory model. The mediation profession needs to have an ongoing dialogue about the prospect of centralised licensing and regulation (as has occurred in other jurisdictions) and ask whether that is really what its members want. It is up to the mediation community to determine its shared goals and values—and whether these are best realised through a regulatory or practice-based approach to ethical life.

Co-creating mediation models to meet cultural needs: two trainers’ perspectives

This post has been contributed by Judith Herrmann and Claire Holland, who are both lecturers in the Conflict Management and Resolution program at James Cook University (JCU).


Judith and Claire presented at this year’s National Mediation Conference. They discussed their personal experiences with developing training for mediators in different cultural settings overseas, including the Thailand-Burma border and the Central African Republic (CAR). Claire and Judith reflected on how their studies in conflict management and resolution as well as their mediation training in Australia had assisted them in developing training modules in these different settings. They evaluated which skills and procedural features of the Australian facilitative mediation model they found to be of greatest use and which procedures needed to be modified to be applicable to the specific locations in which they worked.

The Australian mediation standards are based on a “Western” approach to dispute resolution, such as maintaining confidentiality, managing power imbalances, maximising self-determination, etc. and not all of them necessarily find exact application in other cultural settings. The concept of creating a ‘safe space’ to talk, for example, has a different meaning in a refugee camp compared to the Australian context. Also, the idea of having a third party with ‘no vested interest in the outcome’ is unrealistic in remote villages, such as in CAR, where village chiefs are often the accepted providers of all conflict resolution processes. Additionally, maintaining confidentiality can be both impractical and undesirable in particular contexts. When discussing how mediation could work for culturally specific conflicts, such as adultery or witchcraft, mediation practices taught in the western mediation models are especially challenged.

Ideally, mediation training and conflict resolution tools are developed with the needs of the recipients of the service in mind. When creating training resources that meet local needs it is important to consider how far the definition of ‘mediation’ can be stretched and what innovations can be adapted within the process that are supported by literature and informed by practice.

Judith and Claire highlighted challenges for practitioners who are trained in a “Western” mediation model and who are working in culturally diverse settings where the client’s prior experience and expectations of ‘mediation’ may differ greatly from the views of the practitioner/trainer. Judith and Claire flagged the importance of being flexible in one’s approach to meet the needs of the participants of a process, and to innovatively and creatively adapt one’s knowledge and skills to different contexts. The presentation also highlighted the benefits of sharing experiences with practitioners and academics to contribute to the conversation of the evolving nature of mediation practice.

Judith and Claire concluded that their postgraduate studies in Conflict Management and Resolution were invaluable in developing their ability to analyse and respond creatively to issues in various cultural settings.  Judith completed her studies at JCU, where she is now the Director of the Conflict Management and Resolution program. This program builds students’ knowledge and skills in analysing, managing and resolving conflict, with subjects such as negotiation, mediation, facilitation, group conferencing and conflict coaching. Courses on offer include a Masters, a Graduate Certificate as well as Professional Development options. JCU offers flexible study with online subjects and optional weekend block-mode classes. If you are interested in doing any further study in Conflict Management and Resolution, check out the JCU program at  www.jcu.edu.au/conflictresolution

The plight of PacLII: a call for action

Because the shadow of the law plays a part in most disputes, the ability to access law is essential for negotiators and (some) dispute resolution practitioners. Otherwise, the legal merits of a dispute cannot be assessed as one of the measures by which parties decide whether or not to resolve their matter in a particular way.

In Australia, AustLII provides an open access platform from which anyone can access legislation (both Acts of Parliament and subordinate legislation), case law from all jurisdictions (including many tribunals), and a plethora of secondary materials such as journal articles. There are alternative reporting services that many researchers who are affiliated with a university can access via a paid subscription service.

In the small states of the Pacific, the Pacific Islands Legal Information institute
(PacLII) provides the equivalent open access database paclii-2-0-logo-smallof legal materials. There are no comparable or comprehensive subscription services.  If PacLII was diminished, there would be dire consequences for academics, legal and dispute resolution practitioners, and people who want to research the law in Pacific Island jurisdictions.

At the Australasian Law Teachers’ Association Conference in July in Wellington, New Zealand, University of the South Pacific  (USP) lecturer and new Director of PacLII Anita Jowitt spoke to conference delegates at the closing session. Anita alerted us to the fact that from 1 July 2016 PacLII’s funding is no longer assured. Whilst USP is continuing to support PacLII, options for the future sustainability of PacLII need to be explored quickly, and sustainability strategies implemented.  Anita noted that the Pacific Islands are in many senses a frontier of law, and support for PacLII also includes becoming part of the community of people who research and publish on Pacific law.

What to do

This post is intended to raise awareness of the problem. Readers are encouraged to consider how they can contribute to providing support for PacLII. Options might include:

  • Making a financial contribution or starting fundraising to contribute to PacLII;
  • Joining new research networks that PacLII is launching (the Pacific Constitutions Research Network paclii.org/pcn/index.html is now open);
  • Contacting Anita and exploring other options such as tasking or sponsoring students with some of the work required to maintain PacLII (through internships etc).

Anita made it clear in her presentation that she wants to take a problem solving approach to the situation. She is open to ideas.

Anita can be contacted jowitt_a@vanuatu.usp.ac.fj

National Mediation Conference 2016



The bi-annual National Mediation conference is being held at the Gold Coast with pre-conference workshops beginning on Sunday 11 September.  The conference itself runs from Monday 12 September to Wednesday 13 September and there is also a Dispute Resolution Research Forum being held at Bond University on Thursday 14 September.  A number of members from the Australian Dispute Resolution Research Network will be presenting aspects of their research (a copy of the program can be found here):

Susan Armstrong – A session on “Family Dispute Resolution in multicultural and multifaith Australia – What does it mean for Australian Muslims?

Pauline Collins – A member of the organising Committee for the conference

Jon Crowe – A plenary session on “Two Models of Mediation Ethics”

Kathy Douglas – A session on “Disputes in vertical living: Facilitating conflict resolution”

Sue Douglas – A session on “Power in mediation”

Rachael Field – A session on “Family violence: Innovations for the next decade”

Danielle Hutchinson and Emma-May Litchfield – A session on “The future of dispute resolution: A global perspective”

Lola Akin Ojelabi – A session on “Mediator attitudes toward confidentiality and public interest/policy issues: Responses from Australian and US (Californian) mediators”

Olivia Rundle – A session on “Including trans, gender diverse, intersex and/or non-heterosexual people in mediation service delivery”

Bobette Wolski – A session on “The revised NMAS Practice Standards: Mind the gaps”

This list does not include some presentations that are being delivered on the Research Forum Day, but it goes without saying that the Netowrk is also well represented at the forum.  If you are a member of the Network and I have inadvertantly left a session of yours off this list, please let me know (james.duffy@qut.edu.au) and I will add your session to the list.

The Top Six ways Twitter can help your research


 Photo Credit: Alan O’Rourke via Compfight (Creative Commons Licence 2.0)

When I initially started using twitter three ago (tweeting as TooheyL as well as one of a group on the ADR Research Network’s twitter account), I worried it might be nothing but a procrastination technique.   While this can sometimes be true, more importantly I have found that tweeting has been beneficial for my research.   So, here I’d like to present my top 6 ways that Twitter can help your research:

  1. It makes you write: Experts such as Hugh Kearns and Maria Gardener make it clear that successful researchers have writing as a feature of your daily life, not something to be done on ‘research days’. Interestingly, what you write is not nearly as important as the fact that you are putting words on a page – the hard part is beginning.   Writing two or three tweets first thing in the morning is an easy way to launch yourself into a more substantial piece straight after.   If you commit yourself to just 250 words a day, that’s 5000 words a month – in many disciplines the length of a short article.
  1. It makes you bold: Many researchers (myself included) shirk away from stating their own opinion. They tend to bury their opinions in footnotes, qualifiers, and complicated frameworks.   Twitter, because it is so short, needs to be direct, and you need to be bold.   I promise that boldness will transfer into your writing, with positive results.
  1. It adds to the impact of your research: Hashtags are a great way to alert new audiences to your research and create a buzz around workshops, conferences, and publications. For example, I recently tweeted about my colleague’s book launch, and you can see in the statistics on who saw and engaged with that single tweet.   Had I been a little more succinct (see point #4 below!) I could also have added a hyperlink to the publisher.Twitter is also a very effective means to drive traffic to your blog post.   For example, 90% of the referrals to our blog come from tweets and retweets.   It is very easy to set up new blog posts to be automatically tweeted.

    Twitter can help you demonstrate your research impact – an increasingly essential for academics across the world. Altmetrics are an increasingly important metric that tracks impact across a range of media, and show your impact on the world beyond other academic publications.

  1. It makes you succinct.   A tweet can only consist of 140 characters, fewer if you include a picture or hyperlink. (Pictures are a great addition to a tweet, and greatly increase the attention your tweet receives). With every 140 character message you compose, you are learning to contract your thoughts down to their essence. This is an exercise in discipline that flows through to your academic writing
  1. It keeps you current: Strategically following media outlets, members of parliament, NGOs, international institutions and well-connected academics mean you are at the cutting edge of news stories, current controversies, and major developments. This is especially helpful to know when to submit op-ed pieces for public outlets, such as newspapers or the Conversation.
  1. It’s great networking: Twitter can connect you with academics in your field all around the world. Rather than just following others, you have the chance to RT (reply) to tweets and engage in mini-discussions. This is especially useful if you are flying solo in your field at your own institution.   When you do travel, it’s easier to reach out to someone with whom you’re connected on Twitter, to met up face-to-face.  Introverts can use Twitter to their advantage by searching for event hashtags and keywords, and engage with conference speakers before the conference begins.

If you’re now convinced that tweeting is a great idea, there is a useful primer on how to use twitter for academic purposes on the blog of the Online Academic.