Changing the frame – new empirical research listens to the voices of consumers

The Dispute Resolution field has been enriched by some significant research into process and practice. However, empirical research canvassing the views of end-users of Dispute Resolution services remains significantly uncharted territory.

The early research on negotiation styles and their impact by Gerald R Williams and later Andrea Kupfer Schneider  distinguished cooperative/problem solving and competitive/adversarial styles. This research demonstrated the interesting and unsurprising result that cooperative/problem solving attorneys emerged with better working relationships and left less value on the table. However, the research was of lawyers reflecting on the behaviour of other lawyers. Clients, the real consumers of their services, were nowhere to be seen.

More recently we have had the gift of The Global Pound Conference Series 2016-17 comprising 28 events in 22 countries. The main purpose of this program was ‘to generate conversations and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’. The entire DR industry was represented, including parties, and each audience participated in data gathering which included answering 13 open text questions. This program has left us with some significant empirical research resulting from the meticulous analysis of the 7 North American events consolidated into The North America Report. In particular, one of the four key insights explored was the ‘needs, wants and expectations’ of the parties.

This is a big step.

We now have the voice of consumers emerging in significant and influential DR research, revealing a growing recognition that the use of the term ‘ADR’ has become increasingly irrelevant.  Supporting this reframing, the report recommended changing the nomenclature to DR ‘to reflect the cultural shift occurring within commercial DR and the need to place parties at the centre of the process…’ 

Dr Anna Howard’s new text

Now we have some important new work which adds more insight into how the consumers of DR services see things. Although its title indicates a focus on mediation in EU cross-border disputes, this text draws on rigorous empirical research with findings relevant wherever commercial mediation thrives.

As the title promises, this text achieves two important and inter-related things – it explores a significant opportunity to change the frame (the lens through which we have been viewing mediation) through listening to disputants (in-house counsel, who are the clients who actually choose which process to select for resolving business conflict).

The book opens with this provocative quote from an in-house counsel interviewee – ‘The fundamental problem about mediation is that it’s a good idea and nobody uses it’. This is the perfect entry point for a detailed examination of why the promise of mediation has not been the success story the EU and other jurisdictions were hoping for.

Exploring this conundrum leads to the realisation that the problem lies in the way that mediation has been framed as an alternative to litigation. This ‘either/or’ approach did not sit well with the decision makers as they reflected on the most appropriate process. Their lens is far more holistic – they observe a range of related and overlapping processes. This continues the theme we first saw explored in the North America Report, leading us to the concept of DR as an all-inclusive continuum of processes.

Dr Howard’s research digs deeper into the ‘framing’ and identifies that the pursuit of resolution is seen by users as beginning with negotiation. Changing the frame shows us that it is time to bring negotiation into the foreground as the ‘go-to’ process. Framing the changes means that mediation can be seen as part of an iterative process in which mediation can be reframed as ‘assisted and extended negotiation’.

As a negotiation academic and researcher, this text has particular significance for me. Returning negotiation to its rightful place on the continuum and recognising the value its principles bring to all processes in which it may be applied seems the perfect research-validated way to set the record straight.

National Mediation Conference 2021: Submissions closing soon

Old Telegraph Station, Alice Springs (A. Boyle 2021)

Submissions for presentation at NMC2021 – closing soon

There is less than one week to submit your proposal for presentation at the 2021 National Mediation Conference to be held in Alice Springs from 1 – 4 September.  The extended proposal submission deadline is 14 March 2021.

The conference is designed to accommodate the needs of those who may not be able to travel to Alice Springs by providing opportunities for both face-to-face and online presentations.

NMC2021 provides an opportunity for all those with an interest in mediation and DR to share knowledge, skills and ideas with a focus on learning about the role of conflict management in achieving true reconciliation.  The conference theme, “One Story”, describes the situation when a conflict has been resolved and no longer exists, when everyone walks away with a single, mutually respectful story.  The theme also reflects a broader perception of the commonalities among all people, and has application across all areas of DR.

In alphabetical order, the conference streams are:

  1. Approaches to conflict in First Nations and Indigenous contexts, including community-based conflict management;
  2. Business and construction; workplace and employment;
  3. Community-focused mediation, and other community-focused processes;
  4. Conciliation, including statutory and industry programs;
  5. Court-connected DR services, including services associated with courts and tribunals;
  6. Dispute system design, online DR, and technological innovations;
  7. Elder mediation, and other specialist areas of practice;
  8. Family mediation and dispute resolution, including FDR;
  9. Peace-making, peace-building, transitional justice, reconciliation, and civil society;
  10. Research, training, and education: building a rigorous evidence base for DR;
  11. Restorative and innovative approaches to conflict.

The Conference Design Committee is fully conscious of the contributions made by intercultural and multicultural considerations to the enrichment of all DR sectors and will give preference to proposals that include them.  The Committee will also give priority to the following criteria:

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

To submit your proposal, please contact the Conference Organiser (by phone or email) who will email a link to you:

Rosie Fall, Conference Organiser

Ph: 08 8942 3388

email: events @associatedadvertising.com.au


					

Mediation standards in Australia – uncovering what actually happens

Alan Limbury

This blog post has been made on behalf of its author, Alan Limbury of Strategic Resolution and was originally published on the Kluwer Mediation Blog on 22 February 2021. It is republished in accordance with Kluwer’s editorial guidelines. The original post can be found here.

Photo by fauxels on Pexels.com

Given the confidential nature of mediation, it is a rare set of circumstances that allow us to catch a glimpse into the mediator’s craft. The current review of the professional standards governing Australia’s accredited mediators provides one such opportunity, The review seeks, to the extent permissible, to uncover what practitioners are actually doing, including the extent to which their knowledge and skills change with experience and in response to the various contexts in which they practise.

What is being reviewed?

After several years of discussion and community consultation, in 2008 a voluntary National Mediator Accreditation System (NMAS) was adopted in Australia. It comprises a set of Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator and a set of Approval Standards which specify the training, assessment, personal qualities and experience required for renewal of accreditation. The system also sets out the qualifications required of Recognised Mediator Accreditation Bodies (RMABs) in order to accredit mediators in accordance with the NMAS. The NMAS was last reviewed in 2015.

The current review

Last year the Mediator Standards Board (MSB), which oversees the system, engaged Danielle Hutchinson and Emma-May Litchfield of Resolution Resources (RR) to lead the NMAS Review 2020-21 in order to evaluate the effectiveness of the NMAS and consider what changes and additions need to be made.

Drawing on well-established techniques from the field of education and psychometrics, RR has adopted a collaborative and data-driven approach. The Australian DR community can therefore feel confident that any recommendations arising out of the review are evidence-based, informed by expert practitioners and reflect the variety of processes and contexts in which practitioners typically operate.

The NMAS Review 2020-21 Process

The process provides a number of opportunities for interested stakeholders to contribute. In particular, it includes widespread consultation involving reference groups, workshops and surveys amongst MSB members, RMABs, training organisations, mediators, community groups, professional associations and other experts in the field.  Information collected from these events will be subject to rigorous data analysis to identify a range of patterns including the way that practice may evolve with experience or as it is applied in different contexts. This type of psychometric analysis, though well-established in other disciples, it not typically used in the dispute resolution sector. This presents an exciting opportunity for the MSB, which is expected to consider the recommendations in mid-2021.

Reference groups

In the first stage, five Reference Groups sought to identify areas for possible amendment to the current standards in relation to First Nations Mediators; Diversity and Inclusion; MSB Member Organisations (including RMABs and training organisations); Non-NMAS Processes (including conciliation, family dispute resolution, hybrid processes and restorative practice); and Institutions with an interest in NMAS (including courts/tribunals, higher education and institutional dispute systems).

Based on my interest in the role of the mediator in hybrid processes such as med-arb and arb-med-arb, I was invited to contribute my thoughts to the Non-NMAS Processes Reference Group. I worked with fellow contributors to identify areas within the NMAS which might address the practice of “switching hats” whereby the same person may act as both mediator and arbitrator in the same dispute, without jeopardising their impartiality as mediator or the enforceability of any arbitral award. An example of the kind of problems that can arise in this area is here.

Workshops

The second, recently completed, stage involved a series of day-long virtual Workshops. Participants, of which I was privileged to be one, represented a cross-section of the mediation community. The object was to flesh out the work done in the Reference Groups. The key focus areas were Professional Knowledge, Practitioner Skills, Professional Engagement and Professional Ethics and Responsibilities.

Key to our dialogue and work for the day was shifting our focus beyond the minimum threshold for accreditation, a perspective which tends to produce a compliance mindset.  Instead, participants were asked to contemplate and articulate the distinguishing features of mediator practice as typically manifested in those who are newly NMAS accredited, those who are proficient and those who would be considered expert.

These levels of practitioner sophistication were further considered in the differing contexts of conciliation, family dispute resolution, court or tribunal annexed mediation, restorative practice, hybrids and diversity.

The rationale for considering varying degrees of practice together with processes which have historically fallen outside the NMAS is to enable the development of a standards-referenced framework which identifies the extent to which knowledge, skills, values and obligations may be common across processes and contexts. This also means that processes and contexts requiring specific knowledge, skills or expertise can also be properly recognised.

This way of thinking about mediator practice is difficult. This is especially so for the expert, who must bring to consciousness elements of their craft that have long since become intuitive. With this in mind, RR developed a suite of pre-workshop materials to help us orient our thinking towards this new way of reflecting on and conceptualizing the evolution of one’s practice. The materials included sample scales of mediator knowledge, skills and attitudes and very useful guidelines for describing quality.

Surveys

The next step in the process is to synthesise the information generated via the reference groups and the workshops to inform the development of the NMAS Review Survey. This survey will be the main instrument for consultation and will be open to all interested stakeholders within the Australian DR community in mid-2021.   The data collected via the survey will then be analysed, using a range of psychometric techniques. The findings from this analysis will form the basis of the recommendations to the MSB.

In this way, every person who completes the survey will play a vital part in the NMAS Review 2020-21 and lend their voice to the future of dispute resolution in Australia.

The United States: unbarring the way forward

(This article is posted by Cameron McPhedran)

The future of United States democracy can be found in a prison. But not in the way that we might anticipate.

San Quentin Prison, January 2016:

A murderer and the wife of a murdered police officer speak. They deliver a united message on building change ten months shy of the US general election.

Phillip Melendez advocated that change “means cultivating emotional intelligence, cultivating empathy and compassion. And all of that teaches us to look outwards to our communities.”  

 Dionne Wilson forecast, “the goal of public safety can be achieved without tearing each other apart but it’s going to take all of us working together… we can do better, and we must.”

In 2021 with Joe Biden as President, these comments strike as clarion calls of the need for both a more effective US justice system, and a more nuanced public debate. San Quentin has endured a mass outbreak of COVID-19, in 2020 the US bore witness to yet more racialised violence, and white nationalists began 2021 by storming the Capitol building. What is striking about the comments, however, is who delivered them and the circumstance of their relationship.

Restorative justice:

Melendez and Wilson were not transformed into allies by luck. They participated in a diverse range of rehabilitation strategies utilised at San Quentin. Restorative justice is at the heart of them.

Restorative justice is an intervention where affected parties come together to discuss how a criminal act impacts upon them, and how they can move forward collectively constructively. It views engagement as more effective than retribution, and may be used to replace or to augment criminal justice sanctions.

Dionne Wilson- healing through leadership:

Wilson’s husband Nels Neimi- a Californian policeman- was murdered in July 2005. After successfully campaigning that his killer Irving Ramirez be executed, Wilson remained broken. She reflected that “when the joy of ‘winning’ that verdict evaporated, the real misery set in.”

Wilson began caucusing with women in the Californian prison system as part of victim/offender education groups organised by the Insight Prison Project. This work included discussing how offenders could be accountable for their actions, express empathy for victims, and repair their own traumas.  

Dionne Wilson, restorative justice and criminal law reform advocate.

Whilst complex and challenging work for all involved, victim offender education groups often empower all parties: Wilson reflected that instead of “seeking my healing in the misery and death of another human being… [the] key to my healing was connecting with people who were learning to find their own humanity.” Since this time, she has since served as a co-facilitator for victim offender education groups at San Quentin and has advocated for criminal justice law reform, especially around repealing the death penalty.

Philip Melendez- renewing his purpose:

In 1998, Philip Melendez was nineteen when he killed two people, in response to his father being stabbed. His brother had previously been murdered and violence was commonplace in his community.

Restorative justice at San Quentin helped Melendez fully acknowledge and take responsibility for his wrongdoing. After he began his engagement with restorative justice, he mediated in intra-prison gang disputes and committed to victim awareness programs. Changes in Californian law saw Melendez released in 2017. Since that time, he has served as the Director of Organizing for the organisation Re:Store Justice, which works to empower prisoners and communities through restorative justice and policy advocacy.

The United States, a democracy in tatters?

It is easy to write off the relevance of restorative justice to wider society. It is a mechanism that relies on the voluntary commitment of people who have experienced hardship or trauma, revisiting these experiences. It requires listening, carefully and openly, to those who often have very different life backgrounds from one’s own. It is precisely these qualities that make restorative engagement, albeit challenging, exactly what the United States needs right now.

The polarities between Democrat and Republican, Southern and Northern, white and people of colour, undocumented and passport carrying, and other such divisions are seen as representing irreconcilable differences among Americans. These divisions, are, from the outside, ravaging the country.

Legislators and policy makers need to be able to reach consensus about evidence, to be responsive to the social good in their governance. The bipartisanship that aided Australia in the early stages of its Covid policy response has not been seen at any stage in the United States.

Covid- and racial injustice- has shown that delivering public safety is a community responsibility. This becomes impossible when social trust is broken.  An analysis of the decline befalling the United States over recent years found that nations high on the World Values Survey measure of interpersonal trust- China, Australia, most Nordic countries- delivered both better policy responses and public compliance with them than the United States.

Biden Era Washington DC:

The events of 2020 and the initial stages of 2021 suggest that it would be easy to resort to despair for the United States this year. However, a new president has been elected and statements of condemnation about the Capitol attack and its aftermath resounded among both Democrats and Republicans. Linking the United States to the Europe he emigrated from, Arnold Schwartznegger’s compared the Capitol riot with the 1938 Kristallnacht killings in Germany.

The impact of Covid and racial injustice show that the United States must fight for a renewed civil sphere, for accountability with compassion. Events at the US Capitol show that fighting for justice is both necessary, and a daily, task.

Marcus Henderson, chief editor of San Quentin News

The only way out of COVID-19 and civic breakdown for the United States is together, through the sustained and committed dialogue among groups who are different to each other.

Restorative justice proves that this changes lives. When empathy, forgiveness and hope endure, a brighter political culture is possible.

Cameron McPhedran participated in the Restorative Justice Roundtable at San Quentin Prison whilst on university exchange in 2013. He works in community mediation for the NSW Government. These views are his own.

Cameron aspires to specialise in DR for the LGBTIQA+ community.

CREATING A WORLD IN BALANCE: REFLECTIONS ON THE 9th ADRRN ROUND TABLE AND CIVIL JUSTICE RESEARCH CONFERENCE

On 1st and 2nd February 2021, the University of Newcastle hosted the 9th ADRRN Round Table and Civil Justice Research Conference. The proceedings brought together online twenty six leading world scholars from around Australia, New Zealand, Bangladesh and the United Kingdom to present papers and discuss themes of topical interest to dispute resolution.

A theme which emerged from conference papers, and which is taken up in this post, is the reconciliation of competing interests which are valued by the traditional justice institutions and dispute resolution theory respectively. In her paper “Is Civil Dispute Resolution all about how best to balance competing objectives?” Sonya Willis observed that the most efficient solutions lack procedural protections and the fairest solutions come at a cost which makes them unjust or just plain unavailable. Juxtaposing four conflicting imperatives of civil dispute resolution, (efficiency and due consideration; certainty and flexibility; privacy and openness and autonomy and control) the author argues that acknowledging those imperatives involves acceptance that they are irreconcileable and that achieving optimal outcomes through ADR means striking a balance in which some measure of each value is sacrificed in the interests of achieving an overall better outcome than would otherwise be available under the competing imperatives.

This is a conundrum that has long troubled both civil justice and dispute resolution theorists. In 1997 it prompted former High Court Chief Justice Brennan to express concern that the diversionary procedures offered by dispute resolution processes would deliver “…a cheaper but a less satisfying form of justice.” (G Brennan Key Issues in Judicial Administration (1997) 6 Journal of Judicial Administration 138 at 141). It troubled Justice Ronald Sackville when he wrote that the functions performed by the courts cannot always be discharged in a manner that is compatible with heightened expectations of cheap and swift justice. (R Sackville: Reforming the Civil Justice System: the Case for a considered approach in Stacy and Lavarch (eds) Beyond the Adversarial System (Federation Press 1999 p35). Perhaps it also troubled Professors Jonathan Crowe and Rachael Field when, in their paper “Intuition and Artestry in Mediation: Implication for Mediator Ethics, they observed that mediators should not only meet minimum standards of competence but should attain higher levels of expertise. Drawing upon social scientific research on intuitive decision making, the authors argue that such research has important implications for how mediators respond to ethical dilemmas. They propose a guided framework for mediation practice that “leaves room for mediators to exercise and enhance their capacity for ethical judgment.” If mediators are to engage in the exercise of addressing a balancing of competing interests between efficiency and due consideration, between certainty and flexibility, between privacy and openness and between autonomy and control, it makes sense that they should be properly equipped to exercise that judgment in a sophisticated manner with emotional maturity and from a sound ethical framework.

The balancing of competing civil dispute resolution imperatives in practice and the methodology employed by mediators to resolve ethical dilemmas, like so much of mediation practice, are largely unknown quantities. This is largely because of the confidentiality provisions surrounding mediation and the private nature of the process. In her paper “Evaluating Mediators – stepping off the beaten track” Dr Alysoun Boyle reported on the key outcomes of a major analysis of empirical studies into mediation using a metaresearch framework. She reported that: “…in the absence of significant changes in research approach and design, there is unlikely to be any increase in what is known – including about what mediators do in mediation, how they might influence what happens during mediation and how they might influence the achievement of mediated outcomes and their content.” The author proposes a significant review of the research methodology to be employed in approaches to research into dispute resolution practices and observes that there may well be opportunities for leadership roles for bodies such as the ADRRN Network.

Though held online for the first time in 2021, the ADRRN Round Table and Civil Justice Research Conference was again successful in delivering an impressive suite of research documents which will no doubt inform civil justice and dispute resolution research into the future. This brief post has drawn attention to one of many themes which were explored during the conference. We hope to feature others in coming weeks.

State of the Art: Program from the 9th Australasian Dispute Resolution Research Network Roundtable and advance notice of the 10th Roundtable

Photo by CQF-Avocat on Pexels.com

One of the greatest joys of academic work is the opportunity to discuss big ideas with colleagues. To really get into the details of another person’s work, think through the issues together, and receive critique on our own work – all in a supportive, engaged group.

For nine years, the ADR Research Network has offered precisely that opportunity to established academics and early career researchers from around Australia. Since that first meeting, our membership and scope has expanded, and this year we welcomed participants from Australia, New Zealand and the United Kingdom. And for the first time, the Roundtable was combined with another established research and teaching conference, the Civil Justice Research and Teaching conference, which has been the main meeting of academics who teach and research in what is sometimes known as ‘civ pro’ (civil procedure) – or more commonly these days ‘civil justice’ or ‘civil dispute resolution’.

We look forward to the 10th Research Network meeting, which is scheduled for February 2022 at Bond University on the Gold Coast. As always, we invite early career researchers and especially PhD students to take part, and encourage any readers who are also supervisors to extend that invitation to their students. A call for papers will be made on this site towards the end of 2021.

In the meantime, here’s the conference program from the 9th meeting, which provides an insight into the range of topics covered this year, together with the abstracts of the papers and the bios of the presenters. Keep an eye out for much of this excellent work coming out in journal articles and other formats throughout 2021.

Pandemic Possibilities: Current Research on Technology and Dispute Resolution

Photo of the conference program showing an aerial view of Newcastle Australia

The 9th Australasian Dispute Resolution Research Network Roundtable, held this year in conjunction with the Civil Justice Research and Teaching Conference, was held on 1-2 February and hosted by the University of Newcastle Law School.

Every year the Roundtable provides a unique perspective on the ‘state of the art’ in dispute resolution research – and this year was no exception. For the benefit of those who could not attend, this post draws insights from one section of the many conference papers – those focussed on the technological change that has been hastened by COVID-19.

The Covid19 pandemic required courts, tribunals and dispute resolution providers to rapidly ‘pivot’ to keep providing services during the pandemic. As Dr Joe McIntyre observed in his paper,

The last five years have seen significant developments in the use of digital justice technology globally. Australia has, in contrast, been relatively slow moving in embracing the use of such technologies to improve the efficiency and accessibility of its courts. The sudden shutdown required to respond to the 2020 global pandemic forced jurisdictions around the country to rapidly cobble together technological solutions to allow emergency access to the courts to continue…

Joe’s paper highlighted what he sees as a potential upside of the pandemic-driven technology shift – that we might be might be willing to shift our mindset to embrace a broader conception of the role of a court. His paper also highlighted some of the practical work he’s been doing on an online mechanism for resolution of tenancy bond disputes.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

The Roundtable provided early insights into some of the excellent empirical work undertaken during 2020 on the disruption and innovation seen internationally in the civil justice sphere.

Associate Professor Genevieve Grant undertook a study of 37 lawyers about their experiences of hearings undertaken both online and by phone. Her findings reflected a wide range of experiences and both the advantages and disadvantages of hearings at a distance.

In New Zealand, Dr Bridgette Toy-Cronin has been looking – both pre- and post- pandemic at the telephone mediation of rental disputes. While this research was already important in 2019, it has acquired new urgency during 2020 as telephone mediation has become more widespread. While the ‘low tech’ solution of telephone can make it accessible for those not able to engage with video technology like zoom, the medium presents its own unique challenges.

Tayne Redman, is a lawyer at the Accessible Justice Project, which is an organisation established bythe University of Adelaide and law firm Lipman Karas – and which operates as a not-for-profit law firm. Tayne’s presentation highlighted the intense community demand for innovative and cost-effective delivery of legal services – now more than ever for the ‘missing middle’ who can neither afford legal advice nor are eligible to receive legal aid.

My own research, currently still at the stage of data analysis, unintentionally examines the impact of covid on innovation in law firms and legal education. Like many researchers, my team collected data during 2020, which meant that participants’ thoughts were naturally attuned to the impact of the pandemic. That study, designed to understand how legal actors conceptualise and respond to ‘innovation’ has highlighted the beneficial effect that a rapidly emergent situation can have on innovation. Not only is the speed of innovation, by necessity, sped up, the need for rapid change can dampen the impact of path dependency and lessen resistance to change.

What, then, is the way forward for the legal profession, legal institutions, lawyers and academic in this new environment? I think it’s summed up beautifully by one of my interviewees, the Dean of a large law school:

It’s important to consider the relationship between research and its contribution and its community – it’s at its best when there’s mutual understanding. We have brought a sense of mutual understanding much more clearly back into the frame as a result of COVID-19.

We need to focus on what communities and businesses need, and to design solutions that meet those needs. We need to keep building new and innovative partnerships between the academic sector, the public sector and the private sector, and bring lots of voices into the conversation. We also need to carefully evaluate solutions that have been implemented quickly, before allowing temporary fixes to become more permanent. It is reassuring that there is so much important research from the Network continuing in 2021.

Managing Societal Conflicts

Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Managing Societal Conflicts: Identity, Social Inclusion and Values” (2020) 30 (3) Australasian Dispute Resolution Journal, 193 – 202).

Social/Societal conflicts are those that are fluid, moving from stage to stage, from emergence to escalation and de-escalation, and then to resolution. They include many small conflicts which interlock, with parties engaging in various strategies for the achievement of their goals.[1] Societal conflicts are not always large-scale violent conflicts attracting the attention of the international community. They relate to social problems which may include issues around identity, race, gender, culture and class.

Image by Free-Photos from Pixabay

Conflict can arise in relation to values (Culture), goals (basic needs/Nature) and interests (Structure) and is a combination of attitudes, behaviour and contradictions.[2] Galtung goes further to identify various forms of violence within society. Violence is defined simply as ‘any avoidable insult to basic human needs’.[3] Basic needs, according to Galtung, include survival, wellness, freedom and identity needs. [4] Violence includes direct violence, cultural violence and structural violence. Direct violence is a form of physical violence directed by one person at another or at a group, which injures physically. Structural violence exists when institutions and systems employ discriminatory practices toward a group and cultural violence exists when discriminatory practices are not condemned by mainstream groups or government institutions.[5] Galtung argues that direct violence can result when injustices are woven into the social structure of society and there is polarisation (social distance) and frustration.[6] Frustration can lead to violence[7] but regardless of the absence of violence, conflict may exist, lying covertly under existing structures.  The flame of conflict can be fanned by negative societal discourses embedding prejudices, stereotypes and ethnocentrism.

But societal conflicts, as with any other type of dispute, can be functional in that they can promote social change, facilitate reconciliation of legitimate interests, discourage premature decisions for fear of antagonism and foster group solidarity.[8] Realising positive outcomes however requires cooperative processes.  Processes in which frank and open conversations can be had regarding underlying issues including value-differences, perceived divergence of interests and needs.[9]

A conflict resolution approach designed to achieve social change based on social justice values would require a vision of what a just society looks like.[10]  A just society, it is argued, is one where justice, freedom, equality and peace are core values. A society that emphasises the need for addressing societal conflict by engaging with underlying causes of conflict. A conflict resolution process that will inject values (justice, freedom, equality and peace)[11] into the conflict conversation to bring about a change; a change that will end the cycle of conflict. Not all conflict resolution processes have the injection of values at their core, but restorative justice processes could be useful in this regard.

Restorative justice is an approach to conflict resolution used where a community has been harmed by the action of one of its own.  This approach is used mostly in relation to criminal offending but the values underlying it are useful in the context of societal conflicts where a section of the community may be feeling excluded and undervalued;[12] where people and relationships have been violated and the goal is to seek healing and put right the wrongs. It is process in which taking responsibility is important. The goal must be clear and centred on achieving social justice, and the forum must be designed to provide an opportunity for genuine and honest conversations about the implications of negative public discourses on peoples, including minority groups. It must include taking steps to redress the situation where possible.


[1] Louis Kriesberg ‘The State of the Art in Conflict Transformation’, Berghof Handbook of Conflict Transformation, Article, [50-69] available online at https://www.berghof-foundation.org/fileadmin/redaktion/Publications/Handbook/Articles/kriesberg_handbook.pdf   

[2] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 22.

[3] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[4] Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35-36.

[5] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 29; Johan Galtung and Dietrich Fischer, ‘Violence: Direct, Structural and Cultural’ in Johan Galtung, Pioneer of Peace Research, (Springer Briefs on Pioneers in Science and Practice, Springer, Berlin, Heidelberg, vol 5, 2013) 35.

[6] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

[7] Johan Galtung, ‘Peace by Peaceful Conflict Transformation – The TRANSCEND Approach’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge, 2007) 18.

Dean G Pruitt and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement (McGraw Hill, 2004) 10-11.

[9] Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Wiley & Sons, 2004) 172.

[10] Alicia Pfund (ed), From Conflict Resolution to Social Justice – The Work and Legacy of Wallace Warfield (Bloomsbury Academic, 2013) xxxii.

[11] Lola Akin Ojelabi and Tania Sourdin, ‘Using a Values-Based Approach in Mediation’, 2011 (22) Australasian Dispute Resolution Journal 258.

[12] Brenda Morrison and Eliza Ahmed, ‘Restorative Justice and Civil Society: Emerging Practice, Theory, and Evidence’ (2006) 62 (2) Journal of Social Issues 209. The paper refers to a values-oriented conception of restorative justice.

Human Dignity, Autonomy and Dispute Resolution

Lola Akin Ojelabi

(Adapted from Lola Akin Ojelabi, “Dignity and Culture in Dispute Resolution” (2020) 8 (1) Griffith Journal of Law and Human Dignity 1, 52 – 84).

Human dignity is central to solving human problems including disputing. It is also important in dispute resolution and management. While there are different conceptions of dignity, human dignity as the capacity of humans to reason and make free moral decisions is synonymous with individual autonomy or the capacity for self-determination. This conception of human dignity  yielding to self-determination is critical in modern mediation/dispute resolution. Another conception of dignity is substantive dignity – ‘the enforcement of substantive values … living in a certain way[1] particularly the  aspect that promotes ‘access to social and economic goods, enabling one to maintain a certain minimum standard of living’.[2] Arguably, the whole idea of promoting access to justice is based on this conception of human dignity. Access to justice is referred to as the right of individuals to access processes for the efficient and effective resolution of their disputes.[3] In decision-making processes, valuing human dignity should lead to conclusions that accord human worth; giving recognition to individuals’ basic need for esteem and respect.  

Image by Gerd Altmann from Pixabay

Human dignity and autonomy is about the capacity of humans to reason and make free moral decisions. As noted above, it is sometimes considered synonymous with individual autonomy, that is, ‘the ability of each person to determine for himself or herself a view of the good life’[4] in other words, freedom of choice and in dispute resolution in relation to process and outcome. It is the extent to which parties are free to choose the process, select the procedure to be followed and determine the outcome of the dispute resolution process. While not all dispute resolution processes give effect to this autonomy, those that do could be referred to as dignifying processes. These processes promote party decision-making and require parties to consider other parties’ interests while aiming at a win-win solution.[5] These processes could be collaborative problem-solving or cooperative processes including negotiation and mediation in their pure forms. Principled negotiation, which also forms the basis of pure facilitative mediation has four elements: separating the people from the problem, focusing on interests and not positions, inventing multiple options prior to deciding, and applying objective criteria.[6] These elements, when fully explored, support human dignity as autonomy.

Mediation, particularly facilitative mediation, promotes the self-determination of participants.[10] Self-determination is the parties’ freedom to make decisions in their own best interest without interference from others, including other parties and dispute resolution practitioners (DRPs). Concerns about self-determination relate to the level of impartiality of DRPs, including whether they give advice to parties or pressure parties to reach a settlement. Other concerns include the extent to which a party may participate in the process, including whether they have a voice and the effectiveness of their voice in the process. The latter concern can be further explored though a consideration of factors that may limit the effectiveness of a party’s voice.[11] These factors are multiple and include lack of familiarity with process, not understanding responsibility in the process, power imbalance including informational asymmetry, access to resources, lack of understanding of legal issues and lack of access to legal representation or other professional support and the involvement of repeat players. Full exercise of individual autonomy may be inhibited by these factors. Other factors include cultural bias, stereotypes, prejudices and incorrect assumptions about a party in relation to their cultural identity, including race and ethnicity.[12]

In negotiation and mediation, parties are the ultimate decision-makers. By focusing on the problem and not the people, parties refrain from an attack on the person but focus on the problem.  In addition, negotiators must recognise that they ‘are dealing not with abstract representatives … but with human beings [with] emotions, deeply held values, and different backgrounds and viewpoints’.[7] The relationship between the parties in this process should exhume ‘trust, understanding, respect’ but of course, this is not always the case. As noted by Ury et al, people ‘are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic’, they ‘get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened’ and ‘see the world from their own personal vantage point’[8] without consideration for others. What Ury et al teach about separating the people from the problem is to avoid these human pitfalls through a focus on relationship, giving value to the other party, empathy, refraining from blaming, and face-saving among other things. This is the responsibility of parties in negotiation because they control both the process and the outcome of negotiation. Both parties have a ‘voice’ in the decision-making.[9]

In mediation, ethical standards impose responsibilities on third parties to ensure effective participation in the process.[13] Third parties must give opportunity [to parties] to speak and to be heard[14] and to enable balanced negotiation between parties[15] among other things. To accord dignity to every party in a DR process, the five core interests of any human being must be satisfied. The interests are autonomy, appreciation, affiliation, role and status. Paying attention to these interests ‘can build rapport and a positive climate for problem-solving’.[16] The reason is not far-fetched: human dignity is a universal need. [17]  Paying attention to a party’s voice is an important core need in dispute resolution and would go a long way to safeguard the dignity of parties.


[1] Neomi Rao, ‘Three Conceptions of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 at 187.

[2] Lucy Michael, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics, 12 at 22.

[3] Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009).

[4] Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One, (Princeton University Press, 1994) 57.

[5] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 11.

[6] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  11.

[7] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[8] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012)  20-21.

[9] John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975) 1-2.

[10] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 2.2. It defines mediation as a process “that promotes the self-determination of participants.  and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions”.

[11] Lola Akin Ojelabi, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459.

[12] David Kahane, ‘What is Culture? Generalizing about Aboriginal and Newcomer Perspectives’, in Catherine Bell and David Kahane (eds), Intercultural Dispute Resolution in Aboriginal Contexts, (UBC Press,  2004) 28 – 56.

[13] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4.

[14] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:5.

[15] National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4 , 7:7.

[16] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32.

[17] William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32. Autonomy is referred to as ‘the desire to make your own choices and control your own fate’.

Call for EOI: Workshops and Pilot Survey for NMAS Review 2020-21

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We are happy to report that the review of the National Mediator Standards is well underway. Reference Group participants have commenced lending their expertise towards the development of the Approval and Practice Standards Survey (The NMAS Survey).

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NMAS REVIEW 2020-21

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