Learning from Aboriginal Knowledge Systems in ADR

I teach Clinical Legal Education, Civil Procedure, and Alternative Dispute Resolution at Adelaide Law School. Aboriginal communication preferences provide a ready contrast to the orthodox client interviewing practices that are used in the Australian legal system. This year I partnered with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Exploring the idea of knowledge systems made me appreciate the influence that my  Euro-centric upbringing, education and legal training has on teaching and mediation practice.  This discussion is the start of more detailed work with the Mobile Language Team that seeks to make law students and lawyers aware of their own and others’ cultural preferences .

In this discussion I often use the term “Aboriginal” as it is preferred in my state of SA. I mean no disrespect to others who prefer the terms Indigenous or First Nations.

Aboriginal and European knowledge systems

Indigenous knowledge describes the accumulation of knowledge and philosophy by societies over millennia. The term applies to pre-industrial societies and is typified by communities that have a predominantly oral tradition, exist synergistically with land and environment, and often live in communal or extended family groups. Guidance for life is often in the form of complex rules about relationships, land use, and behavior, and these rules are illustrated through place, landscape, stories, and spirituality. Indigenous knowledge systems often see the world as a cyclical phenomenon, with environment, people, experiences, stories laws and knowledge existing on a holistic plane,  rather than as a linear movement from ‘then’ to ‘now’.   Context, circumstance, and the perspective of the actor/s, means that knowledge is perpetually adaptive within broad frameworks. In contrast, Western European knowledge structures typically take a linear approach, with the past often representing “primitiveness” and the present seen as the apex of achievement. Proof – whether of historical fact, scientific hypothesis, or psychological condition, is critical, and rests on the written and evidentiary record. Colonial expansion of Europeans over the past 400 years has resulted in the hierarchical individualistic commercial and scientific values that underpin much Western culture being indelibly stamped on colonized nations and ways of life.

After centuries of being ignored,  recent decades have seen gradual national and international recognition that Indigenous knowledge is rich, relevant and comprehensive, with enormous value to modern day science and land management (Pascoe 2018, 12-13; Nakata 2007, p.9).

Anglo-Australian legal culture

Aboriginal and Anglo-European world views differ as much in law and dispute resolution as in other areas. Anglo European law rests on the foundational presumption that individual rights always exist in tension with the interests of the state and the community. The right of the individual to self-determination in their own personal, commercial, economic, religious, lifestyle and other interests must be actively asserted.  This reflects the cultural value attributed to commercial success and individual achievement, described by Lander as a ‘predatory’ culture that infuses both legal and governmental systems (Lander 2002, p.245).

Aboriginal cultural values are differently framed.  Whilst individuals are valued there are expectations of humility, collectivism, knowledge sharing, responsibility to nature and the environment, and the interconnectedness of all aspects of life and environment . A simple comparison might liken Anglo-centrist legal philosophy to the primacy of the individual and Aboriginal legal philosophy to the primacy of the community in sync with the environment.  Behrendt identifies key differences describing  Anglo-Australian culture as individual, hierarchical, and competitive; and Aboriginal culture as communal, egalitarian, and cooperative (Behrendt 2008, p. 93).

In the traditional Anglo-Australian context, laws are rigid and inflexible. Rights are determined by adversarial process in which parties present evidence of facts to a single  decision maker. This decision maker evaluates the evidence to decide if alleged facts are proven, and then determines how the law will apply to the proven facts. The existence of proven facts, and the application of the law, are the only relevant considerations. Loosely described as a ‘win lose’ competition, there is seldom a middle ground, and no scope for context, emotion, third party interests, or diverse non legal outcomes.

Larissa Behrendt provides a summary of the most visible differences between legal cultures:

Traditional Aboriginal dispute resolution Contemporary Anglo Australian litigation
Oral complaint

Emotional informal response

Disputants may live together

Jury of elders

Experience age and wisdom required in an arbitrator

No rules of evidence

Procedure evolves with dispute

Process occurs with family or clan present

Disputants and family address arbitrators

Time not an issue

Informal “circle” culture

Settlement discussed with disputants

Informal communal appeal

Written complaint

Controlled formal response

Disputants often strangers

Occasionally jury of peers

Formal legal training, experience, and reputation required for appointment as arbitrator

Fixed rules of evidence

Precise procedure

Process occurs with strangers, or no observers, present

Legal representatives address arbitrator

Deadline intensive

Formal court culture

Judgment delivered

Formal appeal process

 

(Behrendt 2008, p. 93)

Mediation is an important alternative to Anglo Australian court process. Looking at Behrendt’s table (above) it is very clear that mediation comes between the two sides of the table, and aligns with Aboriginal approaches.  Even so, mediation may continue to unwittingly apply Euro centric norms. In the following discussion I examine four of these perceptions: timing, mediator selection, communication preferences, and participants.

Time

Court process in Australia is tightly controlled. Even mediation, the least court-like approach, follows an orthodox series of  steps, and often occurs in a single meeting that might last a few hours, or a few days. Time and efficiency in Western society, including the legal system, is seen as a critical element of justice delivery.

Traditional Aboriginal dispute resolution processes are not linked to time frames. The process is entirely flexible, and may be decided by the parties, not the mediator. Experienced Aboriginal mediators trained in orthodox mediation, but attuned to the circular approach to time that informs Aboriginal culture, suggest that the choice and sequence of process should be given to the participants, not the mediator. They also suggest more flexibility in the phases of mediation, rather than an expectation that it will all occur in a discreet time frame (Kelly 2008 p. 224). This flexibility in process may be more useful to parties who need time and space to consider new ideas and rethink their issues and options.

Mediator choice

The use of independent neutral third parties to mediate or adjudicate disputes is a cornerstone of Anglo European dispute resolution philosophy. In Aboriginal culture this is not so often the case. The cultural respect accorded to elders in communities means that they are presumed to be suited to working with the parties to resolve the matter, even if they are closely connected to the parties and familiar with the context (Grose 1995 p. 334). This practice is noted in other pre industrialized societies around the world where social hierarchy is an important element in dispute resolution (Merry 1982, pp. 30-31). Aboriginal practice recognizes that deep cultural respect for elders will influence compliance with outcomes and result in community satisfaction. It also means that the dispute is controlled within community (Ciftci and Howard-Wagner 2012 p. 84).

Communication

There are cultural differences in communication style and preference (Ciftci & Howard-Wagner, p. 82). Direct linear questioning designed to elicit facts and timelines typifies Anglo-Australian legal practice, and court process (Eades 2012, p. 481). Whilst much less formal, mediators often rely on open ended questioning to elicit responses from parties  with a view to establishing a story that is coherent in terms of Western narrative discourse. Aboriginal discourse avoids direct questioning, is more responsive to less direct ways of eliciting information, and may have rules about who can speak for or about different people or issues. (Eades 2012, pp. 479-492).

Participants

Mediation in Anglo-Australian disputes reflects the Western presumption that privacy is valued above all. Mediation is private and confidential, limited to the mediator and the disputing parties. In Aboriginal dispute resolution the individual is seen as part of a larger social group.  All members of that group may be involved in resolving the dispute, reflecting the importance of relatedness and consensus building (Sutton 2010, p.5). Whilst this is the practice in many land title claims where there are multiple people interested in a claim, it is not a typical feature of mediation process in the normal course.

Learning from Aboriginal culture

One of the challenges in learning from Aboriginal practices is that many of the ideas in Aboriginal culture flow from the importance of  relatedness community and environment, from hierarchical respect for elders, and from a non-competitive world view.  Euro-centric communities have ceased to share the same extent or depth of relatedness between dozens if not hundreds of kin, and the competitive perception that there is a right and a wrong outcome to any disagreement dissuades collaboration.

In the multicultural society of Australia today, there are numerous cultures, some with strong family and community connectedness. Many close-knit African communities value community adhesion above individual rights. Many Asian cultures traditionally prioritize respect, community harmony, and protocols for indirect communication over confrontational direct approaches (Sourdin 2020, p 642). Individuals of any culture who don’t happen to be educated in the written, fact based, chronological approach to conveying stories favored by Western educated professionals are not attuned typical Western discourse structures.  Many people need time to reflect, to consult with others, and to re-evaluate their position as they move forward. People must expose their lives to disinterested strangers, rather than people whom they trust and respect.

Conclusion

Whilst court processes are rigid and slow to change, ADR options like mediation are flexible and adaptive. However they may unwittingly be informed by traditional Anglo centric perspectives.  There is no one way of approaching dispute resolution, and mediators are nothing if not imaginative and adaptive. Aboriginal culture offers valuable insight into  ways that can support process and theory in this dynamic context.

Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination

By Dominique Allen

“ADR represents a symbolic harking back to a lost age when caring for others within a communal setting was of pre-eminent importance; it constitutes a reaction against the alienating and competitive style of dispute resolution fostered by an adversarial system.”

– Margaret Thornton, The Liberal Promise (Oxford University Press, 1990, 147)

Image: Unsplash

This year marks 30 years since Emerita Professor Margaret Thornton published The Liberal Promise, a critique of anti-discrimination law in which she argued that liberalism, in the form of anti-discrimination law, will be unable to achieve equality because it can do little to disrupt the power structures that maintain inequalities in society.

As Thornton writes, anti-discrimination law does not give people a right to be free from discrimination; it gives them a right to complain about their treatment. Now – as then – a person who has been discriminated against is required to lodge a complaint at their local equality agency or at the Australian Human Rights Commission. The agency must attempt to conciliate the claim before the complainant can proceed to a civil tribunal or to the Federal Court (other than in Victoria). Courts and tribunals usually attempt to resolve claims via mediation also.

In the chapter she devotes to conciliation, Thornton says that she is ‘equivocal’ about it. Her primary concern was that as the process is confidential, it can have little impact on discrimination in society; its effect is limited to the parties. She didn’t suggest that courts are the ideal forum for discrimination claims though. She writes that complainants find courts “hostile and alienating”, litigation is not well suited to dealing with the types of issues that arise in a discrimination claims, it is costly, and courts are not well equipped to deal with power imbalances, which are common in these disputes. Thus conciliation serves a valid purpose.

In this post, I consider whether Thornton’s concerns about conciliation still apply, drawing on interviews I conducted with barristers and solicitors in Melbourne and conciliators at the Victorian Equal Opportunity and Human Rights Commission in 2017-2019.

One of Thornton’s primary concerns was that although discriminatory acts take place “in the public arena”, the dispute resolution process does not allow public scrutiny of these acts. They must be dealt with confidentially and in a “non-threatening privatised environment”. A public hearing is a last resort.

I share her concern, particularly because in the three decades that have passed, the problem has been compounded by an increased use of confidentiality clauses (often termed Non-Disclosure Agreements).

My research revealed that confidentiality clauses are regularly included in settlement agreements. They prevent the complainant from discussing the nature of the complaint and the terms of settlement. Some are worded so tightly that they prevent the complainant from discussing the claim with anyone, even with a close family member. It is difficult for the law to have an educative effect when claims are privatised and hidden in this way.

However, the process may well educate on an individual level. Conciliators said that just by participating in the dispute resolution process and listening to the complainant talk about their experience, respondents can be educated about their legal obligations and may well introduce changes to their business or workplace as a result. In this way, the process itself becomes part of the solution and a way of addressing harm.

An advantage of conciliation, Thornton writes, is that it creates a space where complainants can achieve small victories which would be “unlikely, if not impossible” within the formal legal system. My interviewees confirmed this. They said that through conciliation, complainants negotiate changes to working arrangements, access to goods and services, modifications to the delivery of education, and compensation payments far in excess of what the tribunal is likely to award. The tribunal, by contrast, orders compensation, often at low amounts which may not be enough to cover the complainant’s legal fees.

So am I equivocal about conciliation? In my view it is an effective way for the parties to resolve the underlying issues that caused the dispute and potentially reach a shared understanding of what happened. They may even be able to maintain a relationship going forward, which is very important in the employment and education contexts.

Being heard and knowing that their complaint has been taken seriously is often very important to complainants. Litigation will not give them that opportunity. Nor are courts likely to make the systemic orders which are needed to tackle discrimination, whereas respondents do agree to wider outcomes at conciliation.

I’m in favour of conciliation with the qualifier that we must be aware of its limitations. Confidentiality precludes the law’s development, it may allow ‘repeat offenders’ to continue undetected and it hides the prevalence of discrimination in the community. We need to find ways to alleviate its limitations.

The balance has yet to be struck between the parties’ desire to contain the complaint and the community’s interest in knowing about the types of discrimination that still exist and how discrimination is being addressed.

What do ‘lay’ people know about justice?

Justice League Entrance

This post is from Charlie Irvine, from the University of Strathclyde in Glasgow, where he is the Course Director on the LLM/MSc in Mediation and Conflict Resolution.  Charlie’s profile is online at https://www.strath.ac.uk/staff/irvinecharliemr/ 

This post is based on his recent publication in International Journal of Law in Context [1]
Image: “Justice League Entrance” by cogdogblog is licensed under CC BY 2.0

 

In June 2017 I travelled from Scotland to attend a symposium on ADR and Justice at La Trobe University, Melbourne.  Being midway through a PhD it seemed an unmissable opportunity to meet other researchers ploughing the same furrow.  It certainly was, and I’m grateful to Lola Akin Ojelabi and Mary Anne Noone for organising it, but in academic life exciting foreign travel usually comes at a price. Three years later they are both to be congratulated for inspiring, editing and contributing to a special edition of the International Journal of Law in Context. I describe my contribution below.  

‘Lay’ people

University teachers faced with marking hundreds of papers have been known to find some crumbs of comfort in students’ more eccentric answers.  I’m not immune to this guilty pleasure, recently learning that ‘another form of ADR is arbitrary.’  More seriously, I am sometimes struck by a common theme among first year law students.  Here are three examples:

‘One of the major drawbacks of mediation is that lay people are in control of justice.’

‘Lay individuals are not capable of concluding rationally justified outcomes.’

‘How will a lay person truly know what is right and wrong if they have no in-depth knowledge of the law?’

However crudely put, these remarks suggest that a few months of legal study are sufficient to persuade young people that the rest of humanity (‘lay’ people)  lack the capacity to achieve or even reason about justice.

When lay people are the decision-makers: mediation

For those of us who practice mediation these sentiments are frustrating.  My clients seem to do a great deal of thinking about justice, and are quite capable of rejecting economically advantageous settlements if they view them as unjust or unfair.  Justice, or resisting injustice, can trump self-interest.

It is not only students who question whether mediation can deliver just outcomes.  A good many lawyers and judges are mediation sceptics and a thriving cottage industry within legal scholarship is devoted to demonstrating its shortcomings.[2]  Even supporters of mediation tend to stress other benefits like cost, speed and good process, leaving justice well alone.

However, academics like a gap because our research can fill it.  A review of the critical literature highlights a gap in our understanding of mediation.  While a lot of attention has been paid to settlement rates, satisfaction, mediator behaviour and procedural fairness,[3] very little research focuses on parties’ reasoning about justice.  And yet each time a case settles both sides must have good reasons for doing so.  What can we learn from their thinking?  I was particularly interested in mediations with unrepresented people, given that represented parties may well defer to their legal advisors.

The research

Scotland has not been particularly receptive to mediation. Some of our most prominent judges have made pointed speeches praising litigation and decrying anything that might divert cases away from the courts.[4]  At the small claims level, however, things are more open and mediation schemes have been operating in the country’s two largest courts since 1999 and 2014 respectively.  These presented an opportunity to interview mediation consumers who experienced relatively little legal or judicial endorsement of the process.  In the end I interviewed 24 people; the article is based on my initial analysis of five interviews.  Qualitative research is less concerned about large, representative samples than in-depth exploration of a complex topic.

Findings

Participants were keen to discuss their thinking.  Not being repeat players in the courts the experience of mediation left a vivid, if not always pleasant, memory.  When asked about what they sought or why they settled they rarely mentioned the law.  However, they expounded a number of themes lawyers will recognise, either as legal doctrines or aspects of practical lawyering.  These included:

  • Restitution – ‘I’m quite happy to take … not be out of pocket from what I intended’
  • Punishing bad behaviour
  • Teaching someone a lesson – ‘he needed to learn that he can’t just get away with things’
  • Holding businesses to account – one participant regretted mediation’s privacy and wished for an ombudsman
  • Pragmatism and tactics – assessing your adversary’s strengths, weaknesses and stubbornness
  • Risk – when you go to court, it’s a 50/50, there’s no guarantees’
  • Empathy for the other party
  • The urge to be, or be seen to be, a fair person (see next paragraph).

Self-presentation[5]

Interviewees are not impartial reporters, and Barnett Pearce warns researchers to watch out for the work language is doing: ‘The world is made, not found.’[6]  An interview is a unique social event and it is reasonable to ask why participants chose some themes and not others.  What were they up to?  What did they want me to understand?

I noticed most tended to answer a question I hadn’t asked: ‘What kind of person are you?’  They seemed particularly keen to portray themselves as fair; e.g. I’m fair … it’s my personal position, you know what I mean’ or I said, this is where I will meet and I said, I think this is fair.’   This self-presentation may play an important role in mediation’s success.  People generally[7] want to see themselves as fair; they probably want the interviewer (me) to see them as fair; and there is a good chance they would also like the mediator to see them as fair.  Perhaps this is why mediation’s success rates and compliance are often greater than sceptics anticipate.

Conclusion

I am not suggesting that these non-lawyers had suddenly developed the capacity for legal reasoning.  Rather, my goal was to counter the reflex dismissal of non-lawyers’ capacity for justice.’[8]  This research reminds us that law and justice are not identical.  A lack of training in legal reasoning does not necessarily mean a lack of interest in or capacity for justice reasoning.

What makes mediation challenging and interesting is that, at least at the low-value end of the justice system, it provides people with the opportunity to determine not only the outcomes to their disputes, but the criteria by which those outcomes are evaluated.  It turns out those criteria amount to more than simple self-interest and include a strong urge to be seen as a fair person.

Paying more attention to ordinary people’s justice reasoning may provide valuable clues about the sort of societal norms on which any legitimate legal order must be based.  In the article I argue that theories of justice would do well to take account of this reasoning, proposing that natural law theory’s emphasis on human rationality explains mediation outcomes better than legal positivism, with its emphasis on state backed rules.  Far from being one of mediation’s drawbacks, giving lay people a voice in justice may prove one its most important contribution.

References

[1] Irvine C, ‘What Do “Lay” People Know About Justice ? An Empirical Enquiry’ [2020] International Journal of Law in Context 1-19, DOI 0.1017/S1744552320000117

[2] I summarise the main themes in the article, pp. 2-7.

[3] For example: Charkoudian L, Eisenberg DT and Walter JL, (2017) ‘What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court’ 35 Conflict Resolution Quarterly 7-45

[4] See Irvine C, (2012) ‘Scotland’s “Mixed” Feelings about Mediation’ SSRN e-library https://ssrn.com/abstract=2713346

[5] Goffman E, (1959) The Presentation of Self in Everyday Life (London: Penguin Books)

[6] Pearce WB, (2006) ‘Doing Research From the Perspective of the Coordinated Management of Meaning (CMM)’ Available from: https://www.taosinstitute.net/Websites/taos/files/Content/5692988/Overview_of_CMM_in_Research_version_2.0.pdf  (accessed 10 June 2018), p. 7

[7] At least as far as these unrepresented people were concerned.  I interviewed two legal professionals later in the study, and both appeared to regard fairness and justice as puzzling and none of their business.

[8] Irvine 2020 (n. 1) p. 1

Of Dry Cleaning, Arbitration, and International Commercial Courts: When Courts Can Learn From ADR

By Dr Benjamin Hayward and Dr Drossos Stamboulakis

‘Those of you who have been to a dry cleaner in the United States may have seen a sign that says, “Fast.  Good.  Cheap.  Pick two.”  What this means is that you can have your dry cleaning good and fast, but it won’t be cheap.  Or you can have it good and cheap, but it won’t be fast.  Or you can have it fast and cheap, but in that case it won’t be good.  What you can’t have is all three …

Some people … seem to think that what applies to dry cleaning doesn’t apply to international arbitration.” [1]

Image: Cosmocatalano, public domain

Alternative dispute resolution might be alternative to the courts, but that doesn’t mean it’s disconnected.

International commercial arbitration and the courts have an important, and mutually beneficial, relationship.  Arbitration relieves pressure on our civil justice system.  Courts use their powers to support the arbitral process and enforce arbitral awards.  Arbitration and the courts also can – and do – learn from each other.

This last notion might seem strange, given that arbitration was traditionally seen as quicker and cheaper than litigation.  The reality now, however, is that both arbitration and litigation can be time consuming and expensive.  In light of this reality, both dispute resolution mechanisms have sought to improve their procedures over time.  When arbitration innovates, courts learn.  And when courts innovate, arbitration learns too.

All the while, both dispute resolution mechanisms must also deal with inevitable tensions arising between speed, quality, and cost.

In recent years, a number of international commercial courts (ICCs) have been established around the world.  To take just two examples, there are ICCs in Singapore and also in China.  They exist as part of those countries’ regular (national) court systems, but they specialise in hearing international commercial cases.  Australia doesn’t yet have an ICC.  Establishing an Australian ICC has been proposed, though the idea is also controversial for some.

If an Australian ICC was to be established, in the future, what could it learn from arbitration?

Potentially, quite a lot: especially given that ICCs aim to attract disputants, and as a result, they might draw inspiration from some of arbitration’s ‘distinctive features’.

One of those features is the power held by parties to select their arbitrators.  Of course, you can’t pick your judge in court.  However, an ICC can be constituted by judges having a range of international backgrounds and having specialist international expertise.  Arbitration is also renowned for its procedural flexibility.  An ICC might take a more flexible approach to the taking of evidence, and the process of proving foreign law.  ICCs may similarly allow for representation by foreign lawyers.  An ICC might further learn from arbitration’s capacity to offer more limited discovery than traditional litigation.

As courts, however, ICCs also bring with them their own benefits.  They include, for example, the judiciary’s contribution to the ongoing development of commercial law via the doctrine of precedent, and its ability to offer greater and more directive case management features designed to promote proportionality in the pursuit of civil justice.  ICCs can also more readily act beyond the parties’ autonomy, such as by joining third parties to proceedings where beneficial and expedient to do so.

Though historically thought of as rivals, arbitration and the courts have always learned from each other. The genesis of ICCs merely makes this process explicit, shedding light on the ongoing and conscious hybridisation of dispute resolution procedures in commercial dispute resolution.  It is this potential for greater responsiveness to the needs of commercial disputants, premised upon procedural innovation in the pursuit of just and efficient outcomes, that underpins the potential of a future Australian International Commercial Court.

– – –

[1] Jennifer Kirby, ‘Efficiency in International Arbitration: Whose Duty Is It?’ (2015) 32(6) Journal of International Arbitration 689, 690.

The authors are members of the Monash University Faculty of Law’s Commercial Disputes Group.

Challenges and Opportunities for Asia-Pacific International Arbitration: Symposium Report, and News on a Forthcoming Publication

By Dr Benjamin Hayward, Professor Luke Nottage, and Dr Nobumichi Teramura

Photo: Faypearse, Creative Commons

On Friday 15 November 2019, Sydney Law School hosted the ‘Challenges and Opportunities for Asia-Pacific International Arbitration’ symposium.

The event addressed a range of dispute resolution issues: international commercial arbitration, investor-State dispute settlement (including investor-State mediation), and the rise of international commercial courts.  Academics, practitioners, and (both current and former) judges were in attendance: ensuring that a wide spectrum of views were addressed throughout the day.

The symposium focused on dispute resolution in the Asia-Pacific region.  This is a topic of significant interest to the Australian arbitration community.  As far back as 2009, the then-Attorney General Rob Hulls introduced reforms to Australia’s International Arbitration Act aiming to promote Australia as a regional dispute resolution hub.  More than 10 years later, this is a goal to which Australia still aspires.

The symposium addressed arbitration in the Australian, New Zealand, Japanese, Indonesian, Hong Kong, and mainland Chinese contexts.  It followed a counterpart event hosted by the University of Hong Kong in July 2019.

The symposium’s international comparisons provide much food for thought for the Australian arbitration community, as we seek to continually improve the local landscape.  For example, what degree of confidentiality should be preserved in Australian arbitral proceedings?  And what lessons can we learn from arbitration experience, in the region, relating to the possible future establishment of an Australian international commercial court?

A collection of papers presented at both events will be published in late 2020 (or early 2021) in a Kluwer volume titled New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution.  Details of the volume, including links to pre-publication versions of some papers, are available here.

Of particular interest in the Australian context will be:

* Professors the Hon Marilyn Warren and Clyde Croft’s chapter titled ‘An International Commercial Court for Australia: An Idea Worth Taking to Market’;

* Albert Monichino SC and Nobumichi Teramura’s chapter ‘New Frontiers for International Commercial Arbitration in Australia: Beyond the “(Un)Lucky Country”’;

* Luke Nottage addressing ‘Confidentiality and Transparency in International Arbitration: Asia-Pacific Tensions and Expectations’; and

* Luke Nottage and Ana Ubilava’s chapter on ‘Novel and Noteworthy Aspects of Australia’s Recent Investment Agreements and ISDS Policy’.

Readers of this blog might also be particularly interested in Stacie Strong’s chapter titled ‘Promoting International Mediation Through the Singapore Convention’, that Convention also having been addressed at the December 2019 ADRRN Roundtable.  This chapter will mention some empirical data from a study addressing the use of mediation in resolving international commercial disputes.

Interestingly, while Australia’s geographic isolation is thought to be impeding its emergence as a regional dispute resolution hub, COVID-19 has led to the rapid adoption of virtual hearings in civil litigation and in arbitration.  The pandemic may have unintentionally highlighted a means by which Australian arbitration and an Australian international commercial court could flourish in the region: notwithstanding the unavoidable ‘social distance’ between Australia and our neighbours.

These recent developments, post-dating the symposium, will be addressed in the forthcoming Kluwer volume.  They will be of great interest to those invested in Australia’s potential as a venue for international commercial dispute resolution.

International Commercial Arbitration, its Application of the Law, and the Flexibility of its Process

By Dr Benjamin Hayward

Photo: Dennis Jarvis, Creative Commons

In a previous contribution to the ADRRN Blog, I argued in favour of taking a little bit of flexibility away from international commercial arbitration.

In my previous post, I noted that while arbitration is ADR, it remains a type of formal dispute resolution.  It also involves application of the law.  Still, where a contract doesn’t include a choice of law clause, arbitrators have to identify the law they will apply.  My doctoral research explored the significant discretion arbitrators have in this regard.

That discretion is a problem if parties chose to arbitrate because they want enhanced certainty about their legal rights.  It’s even more problematic in some particular categories of case where arbitrators have to identify the governing law even after the parties tried to agree on this issue themselves.

I’ve been thinking a bit more about this topic following a recent episode of The Arbitration Station podcast, which included a really great discussion about becoming an arbitrator.  Co-host Brian Kotick made some interesting observations about this issue, set in the context of how arbitrators decide their cases:

‘[I]t’s all discretionary at the end of the day and you can’t really predict universally what’s to be decided … I think it depends on how you approach being an arbitrator.  I know some arbitrators, their approach is “I’m only going to decide on the arguments – legal arguments and factual arguments – that are presented to me”.  And if you take that approach I think it’s much easier because your intellectual curiosity will not lead you in the wrong direction …

Another approach is finding justice – “capital J justice” – in which case you’re going to kind of take a more active role, do your own independent research perhaps … in which case it’s much more difficult of a task …”

So is arbitration about applying the law, or is it about more general notions of commercial justice?  Or is the true position somewhere in between?  Parties can specifically agree to give arbitrators the power to decide based on principles of equity and fairness, but this is extremely rare.  What, then, is the best view of arbitration’s decision-making process where they don’t do so?

In 2013, the High Court of Australia decided a constitutional challenge to the validity of an important part of Australia’s International Arbitration Act.  In upholding the legislation, it conceptualised the role of courts in enforcing arbitral awards as holding the parties to their initial agreement to arbitrate: rather than merely rubber-stamping arbitrators’ legal analyses.  The Court also held that there is no strict legal rule, in international commercial arbitration, that arbitrators must apply the law correctly.

This gets us part-way to the answer.  For a bit more, we can look to the grounds for challenging arbitral awards.

Under the Model Law and the New York Convention, both adopted in Australia, these grounds don’t include an error of law.  They do include public policy grounds.  Public policy doesn’t cover arbitrators’ ordinary legal errors, but it might cover very significant infringements of fundamental legal principles, such as the rule against double recovery.

Of more interest to me, however, is the ground relating to arbitrators not following the parties’ agreed procedure.  Application of the law is a matter of substance, but identifying what law to apply in the first place is a procedural question.  As I’ve discussed previously on this blog, arbitration laws and rules give arbitrators significant discretion in identifying the governing law.  However, they do still set out at least broad frameworks for making that decision.

While potential mistakes in the law’s application are just part and parcel of choosing arbitration as a form of ADR, in my view, parties remain protected against arbitrators violating the procedure required for identifying that law in the first place.

This is an idea I’ve been interested in for a while now.  What does it say about the exact nature of decision-making in international commercial arbitration?  I’m not yet sure, but I’m looking forward to exploring that question in my future research.

Out Now! Field and Crowe, Mediation Ethics: From Theory to Practice

Out now!

Mediation Ethics: From Theory to Practice, the new book by long-time ADR Research Network members Rachael Field and Jonathan Crowe, has now been published by Edward Elgar.

Mediation Ethics

Traditional ideas of mediator neutrality and impartiality have come under increasing attack in recent decades. There is, however, a lack of consensus on what should replace them. Mediation Ethics offers a response to this question, developing a new theory of mediation that emphasises its nature as a relational process.

The authors argue that mediation ethics should move away from the untenable notions of mediator neutrality and impartiality and towards a focus on party self-determination. They supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the unique needs and interests of the parties. This new paradigm provides the basis for a picture of the mediation profession as a community with its own internal standards of excellence, as well as a more sophisticated and realistic ethical framework for mediation practice.

Academics in law, social work and psychology will appreciate the book’s nuanced account of the dynamics of mediation as a dispute resolution process. Mediation practitioners, including lawyers, social workers and counselors, will find the book a practical and helpful guide to addressing ethical dilemmas. And students of mediation will benefit from the book’s clear and up to date overview of the development and principles of mediation ethics.

Critical Acclaim

‘This book provides a thought-provoking re-examination of two of mediation’s central characteristics, neutrality and impartiality, setting out a fresh ethical framework for achieving mediation’s primary objective, namely, consensual, informed party-controlled decision-making. This book, drawing on a rich body of theory and research, will provide a valuable resource for all those interested in the theory and practice of mediation.’
– Marian Roberts, family mediator and author

‘In Mediation Ethics, Rachael Field and Jonathan Crowe deconstruct the foundation of modern mediation ethics and then reconstruct it in a creative and insightful way. They analyze the problems created by deriving mediation’s ethical framework from a commitment to neutrality and impartiality and argue instead for a focus on empowerment and self-determination. In doing so, they not only provide a much more useful approach to ethical decision making but they also point to a new way to think about the practice of mediation itself. This is an extremely useful, well reasoned, and well presented contribution to the conflict engagement field.’
– Bernie Mayer, Creighton University, US

Contents

1. Introduction: The Need for a New Paradigm of Mediation Ethics

2. The Foundational Paradigm of Contemporary Mediation

3. The Development of Mediation Ethics

4. Neutrality and Party Self-Determination

5. The Myth of Mediator Neutrality

6. The Empty Idea of Mediator Impartiality

7. Party Self-Determination and the Mediation Language Game

8. Ethics and the Mediation Profession

9. A New Conceptual Framework for Mediation Ethics

10. Four Guidelines for Ethical Mediation Practice

11. Conclusion: Towards an Appropriate Ethical Paradigm for Mediation

For more information (or to order your copy), see https://www.e-elgar.com/shop/mediation-ethics.

Politics and Politicians from a Dispute Resolver’s Perspective A Bigger Picture’ in Review

This article is submitted by Professor Laurence Boulle, eminent professor and teacher of dispute resolution at universities throughout Europe, Africa, North America and Australasia.

Perspectives

Politics and government are complicated affairs. So are many forms of dispute resolution (DR). The two social systems have different premises: DR is about building a consensus that did not previously exist, while politics is about competing for the levers of state power. There are, however, exceptions and qualifications to the dominant operational mode of each pursuit, and inevitable similarities between them. This piece examines the views and insights of a major Australian politician from a DR perspective.

Malcolm Turnbull’s book, A Bigger Picture (Hardie Grant Books, 2020), received a hostile reception in the conservative media – which had in turn been censured in the book. A prime minister’s autobiography, however, is an important potential contribution to social understanding – it emanates from the source, so to speak. This work is revelatory, analytical, polemical and sometimes confronting. Prospective readers also require a health warning – the work is just shy of 700 pages in length and could fell an intruder not maintaining their physical distance.

Diligent dispute resolvers examine the world in search for evidence relevant to their own extensive knowledge base. These days this involves a focus on personal and institutional biases – for example confirmation biases, the availability heuristic, the hindsight bias and other cognitive and social patterns. This mediator preoccupation annoys friends and family but focuses our inquisitive instincts in the way we observe political discourse, popular culture or classical literature. Biases and heuristics abound in all autobiographies, as they do in DR writers.

In taking up this book, I was keen to see how the author (albeit not NMAS-accredited) commented on, or self-assessed, his role as a conflict manager, negotiator, conciliator and dispute resolver. Here the work provides much to ponder, analyse and evaluate in the course of its compelling narrative.

Politics

We know that party politics in parliamentary systems of government, as in traditional common law systems, is intensely partisan and adversarial in nature. We have also known, though not quite as obviously, that adversarialism can sometimes be as intense within a political party as it is across party lines. These propensities are confirmed in the Turnbull memoirs through frequent references to policy, personality and politics being played out as much on intra-party as on inter-party lines. This is a fine reminder for dispute resolvers not to not overlook the presence of hawks, doves and moderates (John Wade’s enduring terms) within negotiating teams, and sometimes also among each team’s stakeholders outside the DR room.

In terms of agents external to formal political processes, Mr Turnbull ventures an assessment that will be accepted by some and rejected by others – such is the tribal nature of current Australian politics. In the author’s assessment the right-wing media – print, electronic, televised – has assumed the status of a ‘political party’ on issues such as energy, refugees and the environment. They lack, however, responsibilities associated with electoral and other accountability systems designed to monitor and discipline those within the formal political processes.

This is a significant theme in the work and is a reminder for those working with disputes, whether small or large in size and consequence, that external stakeholders can be deal-makers or deal-breakers and need to be included appropriately in the respective process. This is easy neither in politics nor in mediation but could be substantial in achieving settlements – and maintaining them. This task is potentially easier for mediators than for prime ministers.

Power

The former PM is unrepentant in admitting that he was involved in ‘many political punch-ups … never being shy of confrontation’. This suggests he was not reluctant to exercise his dispatchable power in politics, and also in business.

Power is also a major factor in international relations. Australia’s long involvement in middle eastern countries has always been a power-centred intervention, based on military capability, powerful allies and political choices, and it was strongly endorsed by the former PM.

Some reflection here, with his own considerable power of intellect, might have caused the former PM to examine Australia’s past and current roles more critically. After all, the power invasions and occupations of Afghanistan and Iraq have been regarded as serious failures in many forums, including in the US. Here politics has the same problem of the sunk costs bias often found in DR contexts: it induces parties to continue the ‘good fight’ because of what they have already lost in the past as opposed to making decisions in terms of what they might gain in the future. In mediation settings, a potential counter to the sunk cost bias is the reality-testing function of interveners, something less easy to broker in international relations.

 Mr Turnbull was, on occasions, able to use power interventions of a less militant kind. He pushed, for example, for the regulation of export controls on Australian gas when all prior attempts at negotiations had failed. This, despite regulation not complying with dominant ideologies relating to the role of markets. Necessity, as we know, can the mother of invention, though the confirmation bias is always potentially present in one person’s account of social developments.

Power plays were also evident in the leadership challenges within Mr Turnbull’s Liberal Party. A leadership challenge is a process in which intra-party power dynamics determine outcomes definitively, without mediator-like nuances of options, concessions and mutual gains. Here the former PM was twice a winner and twice a loser, the force of numbers in each case dictating loss and gain, without any middle ground.

Dispute resolvers understand the place of power interventions in appropriate conflict circumstances, but usually only after preventative, interest-based and rights-focused interventions have failed.  ‘Branch-stacking’, openly admitted to in the book, is a peculiarly power-driven political strategy within parties, but it has potential DR analogues: enlarging a client’s professional adviser team, strategically lacking settlement authority, bringing intentional ambiguities into offers and making irrevocable commitments elsewhere (and other ‘tricks’ of negotiation well documented by Hal Abrahamson). The tricks, in politics and DR, may lead to short-term gains but cause long-lasting damage to relations, credibility and the legitimacy of respective institutions.

Rights

As a lawyer Mr Turnbull was no stranger to asserting clients’ rights and remedies in dispute contexts. This is epitomised by the Spycatcher case in which he and his wife Lucy Turnbull took on, and defeated, the might of the British state in the Australian courts.  This was not the occasion for compromise, despite some potential attractions for the client. However while strong legal research and assiduous advocacy are important sources of power, court outcomes are ultimately based on legal rights, duties and remedies.

While often regarded as a consummate barrister, Mr Turnbull in fact spent a relatively short time at the Sydney bar prosecuting, or defending, rights-based outcomes for clients. The gravitational pull for him was towards banking, business and investment where power and interests are more likely to be the dominant intervention modes. These are also the theatres of intense negotiation and bargaining. 

Negotiation

Negotiation, in the ideal world, is less about power and rights and more about commercial, personal and national interests. As regards Donald Trump, author of a negotiation text, the former PM engaged with him on at least two substantive matters: the ‘swap’ of Australia’s off-shore refugees for other refugees in the US and the lifting of tariffs on our steel exports to that country.

Both of these negotiations are framed in terms of ‘trade-offs’ for mutual gain, despite one involving desperate humans and the other inanimate steel (though the jobs issue was also relevant in relation to exports). Mr Turnbull claims, with seeming justification, to have trumped the negotiator-in-chief in each situation. In cryptic form the following lessons were adduced from the negotiation experiences:

  • ·      Do not be sycophantic with bullies, as leaders of some governments are – rather be up-front, frank and stand up to them from the start.
  • ·      Take pains to establish good personal and working relations before commencing negotiations on the substantive issues.
  • ·      Focus on interests and needs, in particular those of the other side, as a basis for problem-solving and settling differences.

However self-serving this assessment might be, the claimed lessons do satisfy DR principles on dealing with high conflict personalities – using relational methods of communication, introducing interest-based methods and deploying mutual gains strategies. The accounts from the political front suggest that dispute resolvers may benefit from discovering more about the intricacies of negotiations in domestic politics and international relations.

Institutions

The government of the former PM was responsible for an institutional innovation in Australian DR, namely the establishment of the Australian Financial Complaints Authority (AFCA). It is both a dispute prevention system and a forum through which clients can potentially resolve disputes with banks and other financial institutions.

Whatever its strengths and shortcomings, which will be revealed in due course, the AFCA is a classic form of institutionalised DR and access to justice. The banking enquiry had established that the use of power and control by financial institutions was detrimental to many account holders and numerous other clients. They are now afforded some statutory rights and remedies to mitigate the power dynamics of the relationship. Ironically, many DR processes and institutions have over the years been introduced through legislation in adversarial political institutions.

The former PM, however, overlooks one of the contentious features of international economic treaties, namely the investor-state dispute systems (ISDS) they routinely establish.  While Mr Turnbull long championed the Trans-Pacific Partnership, adroitly reframed by the Canadian PM to the Comprehensive and Progressive Trans-Pacific Partnership, he elides the controversial ISDS which it establishes. In general terms ISDS has potential benefits for international investing corporations at the cost of national sovereignty, parliamentary democracy and domestic regulation (remember Australia’s Plain Packaging case?).

Treaties are archetypal conflict prevention instruments, the equivalent in international relations of contracts in commercial situations. Procedurally they create systems for dealing with trade and investment conflicts, substantively they establish rights, duties and remedies, and societally they shift risks and create potential winners and losers in different economic sectors.

Here the former PM’s enthusiasm for freedom of trade and investment overlooks the power dynamics which prevail in negotiating such treaties and the inevitable losses they portend for at least some enterprises, for example manufacturers of substitutable imports. The ISDS systems, in particular, are not favoured in many jurisdictions forced to acquiesce to them because of their powerlessness, relative to the dominant treaty states. While treaties reflect, in different ways member states’ respective commercial interests and create legal rights and obligations, they are founded on confidential unfacilitated negotiations with all the power determinants that might conceal.

Science

The current pandemic highlights a significant cultural change in relation to the public influence of science and scientists. Presently national and sub-national governments in many jurisdictions are predicating their Covid-19 policies on the latest medical and scientific evidence.

This commendable practice has been entirely lacking in climate change politics. Mr Turnbull is appropriately critical of the war on science waged by former PM Abbott and others and he cites the adage that everyone is entitled to their own opinions, but not to their own facts. This is a sound principle, but susceptible drowning in the current ocean of ‘fake’ and ‘alternative’ facts.

Investigative agencies can and do examine relevant factual circumstances and are important institutions in the DR matrix. The Turnbull government long resisted an inquiry into the banking sector and it was only when under immense pressure that he was forced to appoint the Hayne Banking Commission. Nonetheless he is somewhat dismissive of its outcomes, despite admitting that he made a ‘political mistake’ in not constituting it earlier. An alternative view is that the Commission’s recommendations and the banks’ responses could be important factors in clients enforcing their rights and remedies in the face of egregious behaviour by powerful banks.

A federal Independent Commission Against Corruption (ICAC) is another agency which could investigate, prevent and manage disputes, and above all, bring transparency to the darker reaches of government. The most generous comment here would be that, like crowded court lists, there was too much to do in too limited a time to enable Mr Turnbull to manage this reform during his time in office.

He is, however, by no means oblivious to the advantages of transparency on matters of public interest. He is, for example, surprisingly critical of the Church’s stance on openness in relation to school funding, evident in his negotiations with the Catholic Archbishop of Sydney. Here the partial transparency of politics contrasts with the mostly confidential nature of DR processes such as arbitration and conciliation. In a bigger picture, facts and science can be easily trumped by values in the fiery crucible of politics.

Values

‘Value’ disputes are the bane of mediators’ lives. Here the autobiographer provides an interesting insight into respective politicians’ attitudes towards coal, carbon and climate change. After a heated carbon dispute among colleagues, one of Mr Turnbull’s own ministers, who had sat through the adversarial confrontation, indicated to him that reason would not prevail on climate because denialism is a matter of ‘religious belief’. It is difficult to negotiate over religious, and other personal, convictions, as dispute resolvers well know.

Despite long-standing credentials in relation to the environment the former PM was on the losing side of the coal conflict and a national energy policy – within his own party. However while the author burnishes his own environmental credentials, he manages only a passing reference to one of the biggest climate conflicts of the age, namely in relation to the Adani mining development in Queensland.  This gives the impression of being the availability heuristic – only in reverse.

There is a current tendency in all adversarial systems, whether in politics, law or dispute resolution, for ‘beliefs’ to trump rationality and for ‘emotions’ to trump reason. Here there is sad irony in the fact, alluded to in the book, that there was once bipartisan support in Australia for reducing emissions, yet this is currently a battleground for tribal warfare – with high emotion and limited reliance on the science. DR practitioners know too well that if commercial deals are not sealed after productive momentum ‘on the day’ they may be refought more intensely the following morning – unfortunately said practitioners were not engaged when the bipartisan support was present and willing and the momentum has now been entirely lost.

Lessons 

The biography provides some droll take-aways for dispute resolvers, for example to ‘leaven … aggression with a touch of humour’, though less so in the wry observation that in politics there is ‘no shortage of bad options’.  The roles of humour, and occasionally wryness, are much analysed in the DR literature and practitioners would concur with the author’s cryptic suggestion.

In terms of language and communication the author condemns the ‘exaggeration or oversimplification’ pervasive in political discourse – and which is also seen in some DR contexts. Mr Turnbull’s aversion to the ‘political slanging match’ would receive acclaim in most Australian households. However tribal politics leads to simplistic slogans in every corner – in Mr Turnbull’s case the well-worn mantra of ‘jobs and growth’.

Politicians from all sides are also prominent framers and reframers of language and terms (or spinners and tricksters), for example in relation to the ‘Mediscare’ and ‘retiree tax’. They do not provide good role models in these techniques for DR situations where beneficial reframing is one of the mediator’s quintessential roles. Pejorative framing leads to negative priming, which leads to simplistic claims and defences whether in litigation or mediation. Poor framing in politics and dispute resolution leads to reductionist as opposed to expansionary thinking

As regards broader justice issues, there is some foreboding for mediators in the author’s reference to the Athenian saying, ‘Justice is found only between equals in power, as to the rest the strong do as they will and the weak suffer as they must’. Here there is some poignancy in the Turnbull government’s rejection of the Uluru Statement from the Heart, a power response between grossly unequal parties.

While the author provides a logical argument for the rejection, the Uluru call is such an important part of Australia’s bigger picture that one would have liked to see more sensitivity in its treatment in A Bigger Picture. The Uluru Statement is about peace-making, about coming together after struggles of long duration. This includes jointly facing unpleasant facts about the past and making common commitments to peaceful co-existence in the future, whether through a treaty or a constitutionally recognised voice to parliament. Peace-making is the first cousin of dispute resolution and politicians have much to learn in this area.

Trust

In his final reflection Mr Turnbull indicates that he was, with the benefit of hindsight, too trusting of several of his colleagues, in particular Mathias Corman. In a Kafkaesque passage, here abbreviated by the reviewer to initials, he indicates that C and D told him not to trust J and G; J, G and C told him not to trust C and D; B told him not to distrust any of them; and everybody told him not to trust M.

Here DR 101 would have reminded the author about the prisoner’s dilemma lessons to be initially trusting on only minor issues instead of being over-trustful prematurely on major ones. In reality trust is a key factor in DR, whether the intervention is arbitration, conciliation or managerial fiat. Where trust is lacking between disputants trusted interveners can use their good offices to generate trust in the mediator or conciliator, and in the process at hand. Thus facilitators can assist parties fashion negotiated outcomes, such as between landlords and tenants in pandemic situations, by focusing them, wait for it …. on the bigger picture.

Influencers

Having suggested what politics might teach dispute resolvers (or reiterate for failing memories) concerning knowledge, skills and attitudes appropriate for DR, the question arises as to what the DR movement can contribute to post-pandemic politics. Many have written on this before, including Greg Rooney, Carrie Menkel-Meadow, the current writer and others.

Teachers and trainers of DR educate eager innocents about the differences between structural and behavioural aspects of conflict management. Mediation provides a structural framework premised on avoiding the adversarial partisan dynamics of litigation or arbitration, with procedures more appropriate for collaborative problem-solving. However structural changes do not alone sustain behavioural changes and old habits of positioning, posturing and punishing can and do prevail in mediation – a factor unanticipated by some eager innocents who become zealous mediation converts, for a while.

Restructuring a political system for the future is the task of political scientists, sociologists and constitutional lawyers – and politicians themselves. However dispute resolves would like to think that they can provide some potential influence on more collaborative, or at least less adversarial, structures and procedures for political engagement. This, after all, is their field of endeavour.

There do exist counter-adversarial arrangements in Australian politics: preferential voting avoids the ‘first-past-the-post’ syndrome of plurality elections and the Senate’s composition and powers require governments to negotiate continuously, at least with cross-bench or free-spirited Senators, to get their way. Other consensus inducing arrangements are functions of electoral politics and their outcomes, as opposed to constitutional requirements: coalition parties have to formulate consensual pacts and minority governments have to do compromise deals with independents or minor parties. These arrangements create non-adversarial elements in an overwhelmingly adversarial political system.

On what issues might the DR movement attempt to influence political systems into less structurally adversarial ways? Potential topics include:

  • ·      Clear identification of issues in non-binary or partisan terms
  • ·      Methods for introducing agreed factual reports and scientific expertise
  • ·      Mandatory disclosure of information to enhance transparency
  • ·      Scrutiny of and accountability for political promises
  • ·      Grand coalitions (national cabinets?), veto systems and super majority requirements on identified issues
  • ·      Further proportional representation in representative politics
  • ·      Promoting a ‘voice to parliament’ as part of inclusive nation-building.

These are familiar factors in terms of how dispute resolvers design and shape conflict management systems with a view to attaining consensus and avoiding a winner-takes-all mentality. Mediators’ brain-storming powers might also suggest factors such as regular conscience votes, longer parliamentary terms and a federal ICAC with real teeth, as opposed to mere gums.

As to how dispute resolvers might influence the structures and procedures of government and politics, that is another big question. They could, however, start immediately with negotiation training for politicians. Reigning in a manic media would require more imagination.

Conclusion

A DR perspective provides limited insights into the author’s complex, intriguing and sometimes highly personal account of his life and politics. A book such as his also raises many questions, some of which have been posed in post-publication interviews with the author. As indicated earlier confirmation and hindsight biases are always at work in this literary genre. Nonetheless a major work by a former Prime Minister provides an intriguing chronicle of the times. And for dispute resolvers it provides some insights, and gentle reminders, about the use of prevention, interests, rights and power in disciplines other than their own.

—————————————-

The author is Professor Laurence Boulle, Principal of Independent Mediation Services Ltd and can be contacted at resolveaboulle@gmail.com He is grateful to Tony Spencer-Smith (www.expresseditors.com)for wise comments on an early draft. The usual exonerations apply.

Professor Boulle is Belle Wiese Professor of Legal Ethics at the Newcastle Law School (NSW).  He has been Visiting Professor at Gent University in Belgium, the University of Capetown in South Africa and the University of the South Pacific in Vanuatu and Fiji.  His most recent book with fellow ADRN member Rachael Field is Mediation in Australia.

REFLECTIONS ON INTEGRATIVE PRACTICE AS A GUIDE TO MANAGING A CORONAVIRUS WORLD

Chevalier Charles Henri-Sanson de Longval was an executioner.  He lived from 15th February 1739 to 4th July 1806 and during his long life (for those times) he was the royal executioner of France during the reign of King Louis XVI and later the High Executioner during the first French Republic.  He administered capital punishment in the city of Paris for more than thirty years and it is estimated that, by his own hand, he executed more than 3,000 people.  With equal zeal and dedication to duty, Henri-Sanson executed the King’s would-be assassin Robert-Francois Damiens and later, the King himself.  He saw no difficulty or conflict of loyalty in despatching both the King and the King’s enemies.  He was simply a professional executioner doing his duty.  The underlying political regime for whom Henri-Sanson did his work was of no consequence.  It was, as Professor Menkel-Meadow has observed, merely an extremely professional and functional adherence to ethics. 

In this post it is suggested that current events in the context of the world Coronavirus pandemic support the view that slavish adherence to a rules based prescriptive code of ethics or conventions does not always serve us well.  The appearance of an infectious and sometimes fatal disease which ails rich and poor alike and transcends political, social and cultural boundaries, exposes the populist myth that all problems can be resolved by reference to dichotomous worldviews and ideologies.  The solution to our present health crisis will not depend on whether we are politically progressive or conservative, left or right, religious or atheist, prosecutor or accused, public or private.  Indeed much of our present predicament is reminiscent of Menkel-Meadow’s claim that truth is “…illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and most importantly, complex.” (C. Menkel-Meadow The Trouble with the Adversary System in a Postmodern Multicultural World 38 Wm & Mary L Rev 5 44 (1966)).

Perhaps in recognition of this complexity, our political leaders (in Australia at least) have declared that we will approach the pandemic problem from a bipartisan perspective and have actively worked together to formulate a comprehensive response that is best calculated, according to the evidence, to bring about an effective solution that minimises harm and allows people to return to their normal lives as soon as possible.  It has been heartening to read in the popular news media joint press statements of politicians from the two major political parties jointly urging compliance with a set of protocols which have been formulated on the basis of expert medical advice.  As Western Australia Premier Mark McGowan said: If you compare Australia to the US…We’ve had outstanding results, they’ve had awful results, and you can see that working together bears fruit. (ABC News 3.5.20)  For once, it seems, our leaders have been able to sit around the table and address the substantive issues from a problem based perspective without descending into self-serving adversarial debate about which side of politics has the answers.  At last we have been able (on this issue at least) to cast aside the useless distractions of partisan rivalry and accord primacy of attention to the nation’s interests in preference to ideological positioning and to seeking solutions rather than to win.

Although the crisis is far from over, early indications are that the collaborative manner in which the Australian government has approached the problem appears to be paying dividends.  We appear to have reached a flattening of the curve in the rate of new infections, contained the death rate to .364 deaths per 100,000 of population and contained the overall number of deaths to less than 100 in a population of 25 million.  In consequence, we are told, the public health system and infrastructure generally is able to cope with the additional strain placed upon it by the present crisis. 

By contrast, those nations of the world that have clung to their binary and oppositional worldviews and, to the extent of any inconsistency with them, have refused to accept medical evidence appear, at least anecdotally, to have been afflicted more extensively and with greater catastrophic consequences.  In the US where President Donald Trump has actively encouraged citizens to break the law by ignoring social distancing rules and gathering in rallies to protest regional lock down laws, the nation has recorded the highest number of fatalities of any nation in the world.  The number of sick and dying has clearly exceeded the capacity of the infrastructure and health system to deal with it and the President seems more intent on prioritising matters of political expediency. 

On 30th April 2020 the New York Times reported that the C.I.A., America’s international spy agency, is being pressured by the Trump administration to find “evidence” to support a conclusion, already reached, that the Coronavirus had its origin in a Chinese laboratory and was deliberately introduced by the Chinese government to further its political interests.  (“Trump Officials Are Said to Press Spies to Link Virus and Wuhan Labs” NYT 30.4.20).    

In Brazil, a nation of 212 million, where President Jair Bolsonaro sacked his health minister for challenging his behaviour over the Covid-19 pandemic and where the justice minister resigned in protest at the President’s anti-scientific stance, 6,000 people have died which represents a death rate of 2.830 per 100,000 of population.  Brazilian newspapers are punctuated with horror stories of its public health system, Sistema Unico de Saude, in a state of collapse and ghoulish images of gravediggers in protective suits dumping scores of Brazilian bodies into muddy graves. 

Of course it is unfair to compare bare statistical data from this crisis without also acknowledging both the tentative nature of the data itself and the host of other variables which must be brought to account in attempting to make an accurate comparison.  The nations of the world are not all equally resourced to cope with mass outbreaks of disease and, whilst COVID-19 may be indiscriminate in its attack, its effect tends to fall most heavily on the poorer nations who are leased equipped to deal with it. 

The point to be made here though is that, regardless of the fine detail, it is becoming clear that those nations which have embarked on more focused and integrative methods of resolving the crisis have enjoyed greater success in meeting the challenge, reducing the uncontrolled spread of the disease and saving lives.  Those which have maintained their insistence upon binary worldviews, adversarialism, false dichotomies and polarisations have eschewed the science and preferred a backward-looking focus of attention to what happened in the past, attribution of blame and “holding China accountable,” all of which can do nothing to address the presenting problem.

Dispute resolution practitioners and theorists will immediately recognize within current attempts to manage the coronavirus scourge, the indicators of integrative practice – the formation of a bipartisan national cabinet, the deference to scientific and medical expertise, the free exchanges of reliable and accurate information between governments and their agencies and the appearance together at press conferences of political rivals making joint statements and advising on the results of the best information available.  They will recognize too the necessary elements that go to make a co-operative integrative framework for working through the issues – the building of relationships of trust, honesty and reliance on the integrity of people involved in discussions and the exchanges of information between them, the forbearance from resort to tactics of partisan rhetoric and cynical selection of only such information that is supportive of a particular position.

At the end of the day, there is one thing of which we may be certain.  Regardless of our worldview, the presence of coronavirus will continue to be felt throughout the world until it has been eradicated by the efforts of the informed actions of the scientific community.  It is neither a war nor a battle to be won nor the product of a malevolent enemy. It cannot be legislated away or removed by adversarialism or political expediency.  As the eighteenth century English poet, Samuel Johnson once wrote:

“How small, of all that human hearts endure

That part which laws or kings can cause or cure.

Still to ourselves in every place consign’d,

Our own felicity we make or find.” 

John Woodward

THE MIND HALF CLOSED: THE EFFECT OF CULTURE ON ATTITUDES TO COLLABORATIVE PRACTICE

This post is the first step in a paper yet to be written – a paper which has its genesis in a largely unexplored issue arising from a PhD thesis. 

Firstly, I should commence with a little background. The thesis Lawyer Approaches to Court-connected Mediation: A new case study explored the attitudes and behaviours of lawyers to the collaborative, problem-solving and constructive consensus-building models of justice which are the stuff of facilitative mediation theory.  These models call for different skills from those which traditionally populated the menu of offerings in law school curricula and different from the training that many practicing lawyers would have received in their preparation for entry into the legal profession. 

A question which arose early in the study is whether we are able, simply by introducing a new Civil Procedure Act 2005 (NSW) and its equivalent in other States, to bring about the sort of change required to effect more constructive ways of managing dispute resolution?  This question is particularly relevant where the dispute is subject to litigation or where litigation is threatened and lawyers are involved.  Issues of general practice, customs, habit and culture emerge. Happily, we can now look back with some satisfaction at the progress in legal education that we have made even over the last five years when there has been more emphasis on educating young lawyers in mediation and negotiation, and the Priestly 11 list of subjects for study by law students was amended in 2016 to include mediation as a component of civil dispute resolution.  But it was not always thus and in 2015, the intention with this study was to undertake an empirical project that involved speaking to lawyers and mediators to establish how they think that lawyers are coping with the new demands of practicing law and map the expansion of ideas about justice in NSW from adversarial zealot to include broader notions of justice such as mediation.

Armed with Professor Julie Macfarlane’s “three core elements of legal professional identity” as a framework against which to measure lawyer behaviours, the study proceeded with all the usual problems which beset PhD candidates but otherwise very much as anticipated and with results that were not greatly surprising (even allowing for confirmation bias).  Essentially the study found that lawyers generally are willing participants in mediation practice but that their approaches to mediation are circumscribed by poor understanding of mediation theory which results in unnecessarily competitive and adversarial behaviours in the mediation setting. 

What was surprising and was something that did emerge quite forcefully from the data was the fact that the quality of lawyers’ engagement with court-connected mediation throughout NSW is far from homogenous and any assumption which may have been entertained about that issue was clearly dispelled by the evidence.  The purpose of the present paper will be to revisit the data with a view to establishing any patterns of behaviour or other phenomena which would explain the differential in attitudes and perhaps to borrow from the literature of other disciplines such as anthropology (Kevin Avruch) and psychology (Nemeth and others) in an effort to understand whether any patterns which may be found to exist might be based on geographic or other socio-psychological phenomena. 

A good starting point may be to examine the cross-disciplinary literature for evidence of any studies that would explain the divergence of attitudes and behaviours exhibited by lawyers in their responses to the reality of court-connected mediation.  Interestingly, the two works initially consulted as a starting point in the enquiry, Professor Nemeth’s ‘No: The Power of Disagreement in a World that wants to get along’ (Atlantic Books, 2019),and Kevin Avruch’s ‘Context and Pretext in Conflict Resolution’ (Paradigm 2013) each commenced their work with the story of an aviation disaster where, in the case of each story, massive damage and loss of life resulted from poor communication between well experienced and professional pilots on the flight deck. In one case the pilots became so pre-occupied with resolving a malfunction with the landing gear that they failed to notice low fuel levels and, although they commented about it, they failed to address the problem and the aircraft crashed, killing ten people and injuring another twenty-three.  In the other narrative an airliner crashed into the Potomac River shortly after taking off from Washington National Airport in circumstances where the captain repeatedly ignored warnings by the co-pilot that some of the instruments didn’t “seem right.”  In both cases, the American National Transportation Safety Board (NTSB) concluded that the accident occurred because of pilot error and the prevailing “authoritarian cockpit culture” by which the authority of the captain dominated decision making in the cockpit.   In both cases it seems that cultural factors played a significant role in the events which unfolded.  Professor Nemeth opines that, in the case of the problem landing gear, the consensus of silence and the culture of deference to the authority of the captain prevented the flight crew from focusing attention to the urgent problem that the aircraft was almost out of fuel.  Similarly, in the Washington crash, Avruch concludes that the tragic outcome resulted from the flight crew’s catastrophic failure to overcome the authoritarian cockpit culture and alert the captain to the presence of the faulty de-icing problem.  The NTSB report into the crash noted that its recommendations to break down the cockpit authority culture had also been taken up in other multi-actor, high-risk settings such as hospital operating theatres where the authority of the surgeon was akin to that of the “captain” of the operating team. 

These were both dramatic examples of where culture mattered and had a direct impact on the lives of aircraft passengers and crew.  Because of the obvious implications for the future safety of aircraft travel, real and tangible steps were taken to change cockpit culture so that the cultural problem could be resolved and no longer would the traditional practice of deference to rank prevail among the flight crew in the cockpit.   In the present research it is argued that, whilst undoubtedly less dramatic, culture also matters in court-connected mediation and if the quality of mediation services is being compromised by poor attitudes and resort to adversarial behaviours, then we need to take further action to change culture so that the identification and search for parties’ interests will at last displace the lingering attachment to positional argument and an outcome consistent with what the court would order. 

With the focus of culture now firmly under the microscope the research data takes on a new dimension.  It becomes clear that not all lawyers are looking at dispute resolution options through the same lens or, as one research respondent remarked: “Lawyers are not lawyers.”  The task ahead is to ascertain whether there are regional or other cultural factors which are acting as inhibitors to the success of court-connected mediations and to consider how those issues might be addressed. Hopefully, further progress will be reported soon.