NMC 2019 Rosalind Croucher, AM, President, Human Rights Commission

We had the privilege and pleasure of an address from Emeritus Professor Rosalind Croucher, AM, President of the Human Rights Commission on day 2 of the National Mediation Conference.

Professor Croucher’s address included the following themes:

  • The history of Human Rights legislation in Australia and recent outcomes
  • The architecture of Human Rights complaint handling through the HRC and the central place of conciliation.

Professor Croucher traced the development of Human Rights legislation in Australia in its political context and provided an overview of the work of the Commission, summarised in the diagram below.

  • Animated infographic illustrating statistics from the article.

(Reproduced from the HRC website at: https://www.humanrights.gov.au/ )

Professor Croucher noted that well over 1,000 conciliations had been conducted at the HRC in the last year and reflected on the significance of conciliation for the resolution of complaints her comments echo her address to the Supreme and Federal Court Judges’ Conference 2019 in Hobart, 22 January 2019.

“So much of this work of conciliation continues unnoticed and observed over the years. The reports, required in a few instances, and only in cases of human rights complaints or ILO 111 discrimination, may attract attention—at times—because they do become public of necessity, even though the names may be protected through pseudonyms. Publicity may also happen if the individuals involved in any of the otherwise confidential processes decide not to keep them confidential.

But the Commission’s record over the years speaks for itself. For example, if we look at the number of complaints the Commission has received and conciliated over the past 20 years, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.  And these are not just numbers: for every matter there is an individual who has taken the initiative, sometimes the courageous decision, of coming to the Commission.”

(Reproduced from: https://www.humanrights.gov.au/news/speeches/ahrc-roles-responsibilities-and-challenges )

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More gems from NMC 2019

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The National Mediation Conference continues to offer us opportunities to share and learn. The pace has been remarkable and the overarching experience has been of inclusion and learning from each other.

The profoundly challenging moments of reflection have also been interspersed with lighter moments. Dinner at the winery was a relaxing event enlivened by the unexpected and, at times hilarious, poetry slam. I had not expected to be a participant but the audience was generous about my ‘Ode to Short People’.

Today was a particularly important day for me.

Attending the conference with my husband and two of my children who are mediators has been a gift. I never anticipated a family of mediators and it never occurred to me that one day we could all have a learning experience as colleagues.

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My family of dispute resolvers- Alan Limbury, me, Emma-May Litchfield and Ashley Limbury

This morning I had the joy of being in the audience as my daughter Emma-May Litchfield presented on her current research – ‘Should emotions be considered in the design and delivery of mediation training’ – under the watchful eye of her Masters’ supervisor Dr Kathy Douglas.

We are all tired by day three so we were enlivened when Emma-May engaged the room – polling our experiences as mediators, trainers of accrediting programs and as parties is mediation processes.

She challenged us to identify our own perception of whether emotion enters the room as part of the mediation process.

A starting point of her research was the requirement contained in the NMAS standards, requiring that those seeking accreditation under the standards demonstrate an ‘ability to manage high emotion’.

The Research Process

We were introduced to Emma-May’s qualitative process of interviews with 12 accredited mediators who were also trainers in accrediting programs.

Her semi-structured approach provided consistency whilst also allowing the opportunity to explore unexpected dimensions as they arose.

This led us to an overarching question she pursued as part of her work – Is the skill of dealing with emotions part of the design of accreditation training programs?

A particularly interesting outcome of the research was that the factor that determined whether training in emotions were included in the training depended on whether the trainers thought that it was important. I found this remarkable.

We were given an explanation of what might this mean via the hierarchy developed as part of Krathwohl’s Affective Domain of Objectives.

Krathwohl's Affective Domain of Objectives

Krathwohl’s Affective Domain of Objectives

Exploring the values hierarchy Emma-May used the great analogy of the path to adoption of a plastic bag free life to demonstrate the development of values – from the most basic acknowledgement of a value to the top of the hierarchy where there is active living of values.

It’s a great sensation when your children become your teachers. I am really enjoying the learning emerging from this research.

The National Mediation Conference 2019 opens

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The National Mediation Conference opened in Canberra yesterday and it has already given us memorable experiences.
From the opening plenary sessions the tone was set for us to experience the ‘Over the Horizon’ conference theme.

Honeyman Christopher Honeyman gave us some language that was repeated throughout the day – ‘no tools and no rules’. His humour encouraged us to engage with his message that part of mediation’s value lies in the difficulty we experience with definitions and rules – offering us the opportunity of being infinitely flexible (within ethical boundaries) whilst also delivering a process that is situation specific. His parting encouragement for ‘keeping a sense of doubt about the right thing to do’ is something I am still reflecting on.

Oscar Honeyman was followed by Aboriginal and Torres Strait islander Social Justice Commissioner June Oscar AO of the Australian Human Rights Commission who introduced herself to us as a proud Bunuba woman.
Commissioner Oscar gave us a warm Bunuba welcome and then explained (in what she described as her second language) that her welcome to us was in support of her intention to support our understanding of indigenous ways of being and governing. The ceremonial welcome is part of keeping us connected and supports the cultural imperative of actively keeping peace and avoiding disputes.
She spoke of a ‘web of being’ which reflected a whole of life approach to mediation where everyone and everything in the community is accountable – providing lessons to sustain ‘societal health and wellbeing.’
Connection was a continuing theme and Oscar talked about ‘song lines and stories that keep us connected’. She shared her own important stories of mediating in her community at Fitzroy Crossing. She used her stories to introduce us to what she views as the basis of indigenous mediation – ‘deep listening’.
This phrase has struck a chord with the mediation community gathered for the conference and it continues to be a reference point of presentation after presentation.
Naming is powerful and now that we mediators have been given this powerful naming, we can be sure that when we use it we recall Oscar’s words:
‘Deep listening stops us from imposing our own ideas and imposing the outcome we want – it creates an important space so we have the opportunity to be exposed to the thoughts and feelings expressed by others.’

(PDF version of Oscar’s paper will be available on the NMC2019 website)

Invitation to Participate – Study to understand the use of international commercial arbitration

The Commonwealth Secretariat is conducting a Study on challenges to accessing international commercial arbitration across the Commonwealth, and potential solutions (http://thecommonwealth.org/arbitration-study). The Secretariat was requested to conduct the study by Senior Officials of Commonwealth Law Ministries at their meeting in London in October 2018.

The aim of the study is to understand the use of international commercial arbitration in addressing commercial disputes across the Commonwealth, as well as ways in which member countries may strengthen the accessibility and effectiveness of international commercial arbitration. The study will be authored by a group of distinguished arbitration experts, advised by a task force representing arbitration expertise from every region of the Commonwealth.
As part of the study stakeholders are asked to fill out relevant questionnaires:
arbitrator, counsel, business, academic (closed).

The Study is expected to be completed for consideration at the meeting of Commonwealth Law Ministers in late 2019 and will be publicly available on the Commonwealth Secretariat website.

Teaching Mediation through Video and Peer Discussion

Legal education in Australia increasingly acknowledges the need to teach about technology and law schools have included elective and core curriculum dealing with such issues (Judy Gutman and M Riddle, ‘ADR in Legal Education: Learning by Doing’ (2012) 23 Australasian Dispute Resolution Journal194; Kathy Douglas, Josephine Lang and Meg Colasante, ‘The Challenges of Blended Learning Using a Media Annotation Tool’ (2014) 11(2) Journal of University Teaching and Learning Practice 1, 3-4). There are now subjects that provide the opportunity to build computer apps (applications) to solve legal problems and core courses include information on issues such as smart contracts and blockchain. For example, FineFixer, an application devised to help the public implement strategies to deal with fines, was initially developed by RMIT University students in an elective course and was later made available through the Moonee Valley Legal Service, funded by a grant from the Victoria Law Foundation.  Higher education is evolving with faculty increasingly engaged ‘with options and technologies, including collaboration tools, video and media’ where video, as a visualisation media, taps into ‘the brain’s inherent ability to rapidly process visual information, identify patterns, and sense order in complex situations.’ (New Media Consortium and EDUCAUSE, NMC Horizon Report: 2018 Higher Education Edition (2018) 11 March 2019, 35)  ADR teaching also needs to adopt the latest technology in teaching about areas such as negotiation, mediation, arbitration and collaborative law.

Teachers of mediation have often relied on videos to demonstrate mediation skills to prepare for role-plays. However, merely watching a video may not be as effective as also engaging with peers. The watching of video, combined with a subsequent online discussion of mediation skills, can enhance student learning as students become active rather than passive learners. After watching videos and discussing the legal skills online, students can later be asked to demonstrate these skills in role plays. Our article in the latest edition of the Australasian Dispute Resolution Journal discusses an example of the use of video and online discussion to scaffold learning about mediation (Kathy Douglas, Tina Popa and Christina Platz, ‘Teaching Mediation Using Video and Peer Discussion: An Engaged Video Learning Model’ (2019) 29(3) Australasian Dispute Resolution Journal 182). Students watch a video of a mediation, discuss the mediator interventions online and then undertake role plays at an intensive weekend seminar. The scaffolding of student learning through watching the video and subsequent online discussion prepares students to demonstrate the mediation skills. The article concludes with a model of ADR learning with video that serves as a useful guide to implementing active video learning activities. This model can be used to make further videos such as specific contexts of mediation that is family, workplace or community mediations. The model could be used to develop videos on other ADR options such as conciliation, arbitration and collaborative law. We hope this model might assist the ADR community to use technology effectively in their teaching of ADR skills and theory.

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[pixabay, free image, mohamed_hassan]

NMC2019

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OMG       YOU’RE NOT REGISTERED YET???

This will be a remarkable event.  Not only 11 national and international Plenary Speakers.  Not only more than 130 national and international presentations.  Not only more than 500 delegates to catch up with, or to lose yourself among.

But also a Welcome Function with views to die for.  A cocktail party with the Australian Government Solicitor.  An informal dinner at a smokehouse that just happens to be a winery, too.  A (competitive) poetry slam.  And a farewell function to wrap it all up.

Pre-conference workshops to refresh your practical skills.  Not only traditional presentations, but opportunities to contribute and to take part: mini-workshops, collaborative conversations, interactive panels.  Child-inclusive FDR; ethical complexities in Elder Mediation; perspectives on leadership; unexpected applications for restorative practice; what’s happening in conciliation; research and you; younger people, older people, and everyone else.  And illuminations from other countries, other cultures, other societies.

And three journals calling for papers from the conference: the ADRJ, The University of Newcastle Law Review, and the Bond Law Review.

And the ADRRN NMC2019 Blogfest.

Phew!  Thank goodness the Easter break is so close – you’ll have earned a rest.

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[© A. Boyle 2018]

Get on to it, before it’s too late:

http://nmc2019.com.au/

Please do contribute to our Indigenous Delegate Support Fund while you’re registering.

Understanding the Brexit dilemma – How negotiation games provide analytical tools

Brexit

Picture Credit – Wikimedia Commons

When Professor Roger Fisher of Harvard Law School’s Program on Negotiation published ‘Getting to Yes’  in 1981, Game Theory was well developed.

It was firmly in the grasp of mathematicians and economists – not lawyers.

First advanced by mathematicians  in1944, more mathematicians followed, developing a game model of co-operation and conflict. This was later enhanced–  given a prison-sentence scenario and named The Prisoners Dilemma.

Nobel Prize – winning John Nash made further enhancements, giving us the Nash equilibrium – a model of problem solving to analyse and resolve the prisoner’s dilemma game.

By the time ‘Getting to Yes’ was published, game theory was a strong part of economic theory and analysis. Business schools had wrested it from the mathematicians and installed it in mainstream business programs.

Researcher followed researcher – developing and enhancing what has become known as the field of distributive negotiation.

Fisher’s ideas about interest-based negotiation (called integrative negotiation) were influenced by but separate from the distributive work of the business schools.

Fisher embraced The Prisoners Dilemma and other games in his teaching.

He often used the famous Negotiation Auction game, demonstrating how emotion and ego can override rational behaviour in negotiation. In this game, players bid for, say, a $10 note. Bids start low and then move surprisingly close to $10 as the competitive emotions kick in. The rules require that the top two bidders must pay their final bid although only the highest wins. Consistently the last two bidders pay more than the face value of the note, trapped in an ego-driven battle in which emotion overrides reason.

Edward’s Game

Using case studies, Fisher refined this game into something he named ‘Edward’s Game’ – although sadly he did not explain who Edward was nor publish his analysis.  Playing it in class with Fisher, we experienced an addictive game where the proponent has something desired increasingly fiercely by other competing negotiators. The proponent’s pitch is ‘I won’t tell you what I want – you just keep putting offers on the table and I will tell you when it is enough’.

The seductive quality of the game increases with the negotiator’s desire for what is at stake. In the domestic setting we often observe Edward’s Game when one party anxiously seeks forgiveness from another who refuses to indicate what forgiveness will require.

Edward’s Game is the gift that goes on giving.

It provides a terrific frame to test and analyse international dilemmas that appear completely irrational.

Brexit through the lens of Edward’s Game.

Brexit is playing out in the House of Commons, while the world watches in dismay. It is evident that no-one, except the economists who are commenting, the EU and the horrified public, is behaving in a way that can be explained  by the rational, analytical tools of game theory.

Edward’s game has been playing for quite a while.

May clearly has a powerful interest in being seen to honour her promise of being the Prime Minister who implements the public vote to leave. To complicate matters, there is more than one Edward’s game being played out. This makes her negotiation task so much more difficult because the different interests she has to satisfy in order to ‘win’ are in conflict. Some interests use Brexit blocking as a tool to pursue a more devious agenda of self-promotion and derailing of May’s leadership. Some interests relate to overturning the ‘leave’ decision and some interests relate to being unwilling to do anything which might be seen to be ‘giving in’ to the Europe that Brexiteers had vowed never to be seen to agree with again.

May keeps putting more on the table.

She went back to the EU to negotiate an extension. The warring parties would not agree and more of her own party defected to a new independent group with different interests again.

Receiving intelligence that a uniting interest of key decision-makers was her demise, she offered a new solution. She would resign if the proposal negotiated with the EU were approved. No luck.

She is now talking of a further extension which shows no signs of meeting sufficient approval yet for a motion to be passed in the house – but watch this space.

Negotiating Edward’s game successfully

Fisher constantly demonstrated to us willing participants in his game how difficult it was to ‘win’ without giving away more than the value on offer. This is what is happening with Brexit also.

Fisher proposed 3 tools for ‘winning’ Edward’s game. How might they work in this scenario?

  1. Go to yourBATNA– but, leaving it so late, what could have been May’s BATNA has deteriorated into a WATNAand would end in lose/lose – a very bad outcome.
  2. Change the players– May has signalled willingness to resign as the price for approval of her deal but it is too late. Divisions are so entrenched it would be near impossible to find an acceptable leader with the numbers to get May’s deal through. She has been experimenting with another version this week – collaborating with Labour leader Jeremy Corbyn. A good outcome seems very unlikely.
  3. Change the game– May has already been cycling through Fisher’s seven elements. She has tried ‘relationships’ but her antagonists are prepared to risk all key relationships in their bid to block her. She has tried to brainstorm ‘options’ but masterful Edward’s Game players won’t play. She has tried ‘standards’ but apparently the regulatory pain of a hard Brexit is bearable if it will block her deal. Seems hard to see where to go from here.

Edward’s Game provides a great opportunity for using negotiation tools to explain the apparently irrational. As world leaders in many places showcase their Edward-like skills, commentators and analysts need to name the game early so that constituencies can be encouraged to find common interests quickly and avoid discovering that both the battle and the war have been lost.