Drivers of change in dispute resolution

Professor Laurence Boulle and I are really pleased to report that Mediation in Australia is now in print. This Blog is an excerpt from Chapter 12 in which we offer some perspectives on issues for DR moving into the future.

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The various and sometimes contradictory influences on DR theory and practice come from different perspectives such as economics, sociology, politics and social psychology. Some of these influences have, at the macro-level, been drivers of past changes in mediation. These have included global financial volatility and its debt repercussions, high levels of competition in economic, social and political arenas, changing power relations in global politics and international relations, reductions in capacities of the state, privatisation and enhanced leverage for corporations, and narrow measurements of efficiency in court, tribunal and DR services such as mediation.

Economic forces, and economic ways of construing the world, have had, and continue to have, profound impacts on many facets of mediation practice. Economistic thinking in governments, corporations, industry and DR providers has led to reduced preparation, intake and screening, shorter duration of sessions and increased daily caseloads for conciliators, limited use of co-mediation, more impersonal interactions by mediators through virtual means, reduced collegiality among practitioners who are isolated from one another, pressures for mediators to be persuasive, evaluative and advisory to increase settlement rates, costs penalties for inappropriate mediation conduct, incorporation of blended and arbitration arrangements into mediations to ensure they are not futile exercises, pre-action procedures designed to pre-empt court proceedings and provision of mediation services by courts, tribunals and commissions. A pervasive political myth of scarcity, in a social reality of over-abundance, purports to legitimise many of these phenomena.

Economic imperatives have also contributed to the occurrence of the ‘risk society’. This involves governments, employers and corporations shifting many of the functions and safeguards they formerly provided onto the shoulders of citizens and consumers — who bear the burden of the resultant risks. This is manifested in financialisation in most areas of modern life, non-permanent and short-term employment, contractual complexity in dealing with telcos and utilities and the relentless speed of social and economic discourse and intercourse. The risk society has witnessed the abandonment of many features of the former social contract. The results for citizens and consumers include asset risks (such as house or superannuation values), employment risks (such as lack of work tenure), financial security risks (in terms of bank predations) and consumer risks (as in being unwittingly upsold online). As these scenarios suggest, there are deep pulses of potential disputation in the risk society.

At the more prosaic level, at an everyday mediation with an everyday mediator, parties and advisers might be dealing with the consequences of economic forces which are largely unseen and certainly not agents in the room. For example, a mediation might be dealing with the flow-on effects of competitive globalisation on workers’ safety and health standards, or the impact of the voracity of financial institutions on family separations or the tensions within commercial leases ultimately caused by disruptive online commerce. These forces place immense pressure on mediators, their clients and advisers, but are destined to continue while the macro-forces persist. The extent to which mediation can be upgraded to deal with the ‘big issues’ is dealt further in Chapter 12 of Mediation in Australia. Ironically the risk society also requires more individuals and businesses to make their own mediated decisions resulting from exposures to risk, requiring some reassessment of the concept of party self-determination. Party self-determination is the subject of our next Blog.

Rachael Field and Laurence Boulle

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About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

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