Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes

We hope you find this next excerpt from Mediation in Australia (LexisNexis, 2018) thought provoking:

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If mediation, despite its versatility and diversity of applications, is looked at as an analytical model, then it is not clear how it might endure, grow and respond to some of the big challenges ahead. There is no necessary longevity to the system we currently call ‘mediation’, although nostalgic sentiment would wish it a long and productive life. DR innovation, technological disruption, authoritarian governance and other intervening factors will not leave mediation unaffected, and the system as we know it may be subverted, rejected, replaced or modified beyond recognition.

Regardless of these prognostications, an inevitable shift will involve looking at mediation less in definitional terms or as a procedural model and more as a flexible bundle of knowledge, skills, attitudes and ethical attributes (KSAE). This bundle might have endless possibilities for future application.

As regards the knowledge factor, sound understanding of problem-solving strategies and procedures is an assumed element of current mediator competence, with potential future applications in the big issues. The skills element of KSAE will remain focused on relational engagement and communication — empathic listening, acknowledging, reframing, summarising and questioning — with new skill sets emerging from the new forms of knowledge referred to above. The attitudinal element of KSAE will emphasise the responsiveness value discussed in Chapter 2 of Mediation in Australia through the potential mediation affords to achieving justice in a democracy centred on the Rule of Law, and the promotion of party and community well-being through the resolution and management of disputes.

Finally, the ethical attributes necessary into the future will continue to include mediator impartiality, but will need to be far more contextual in response to this flexible KSAE bundle. What will be the ‘right thing to do’ in mediation will no longer be governed by abstract concepts such as neutrality but will depend on the specific DR needs and circumstances of parties, their context and the ‘fitting response’ to upholding party self-determination (defined in Mediation in Australia as including informed consent and an absence of external determination).

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Within the confinements of law and legal processing alone the KSAE have influenced the development and practices, inter alia, of collaborative law, unfacilitated negotiation, expedited arbitration, less adversarial trials, conjoint expert evidence, industry dispute schemes and judicial DR. Beyond these developments, the KSAE factors have potential applications in peace-making initiatives around the world, in political systems, in educational bodies, in international relations, in trade and investment matters, and in all situations where there are continuing interactions within cognate groups, from nuclear families to global supply chains.

The relational and responsive nature of mediation sits at the centre of the system into the future, providing a motivation for moving beyond the current focus on models of mediation, such as facilitative versus evaluative or transformative versus settlement, to a focus on the intrinsic skills, techniques and attitudes associated with an inclusive concept of the mediation system. It is in this dimension that we consider that mediation will be able to engage in, and impact on, the bigger issues.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.shutterstock.com/search/ethical

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This entry was posted in Dispute resolution by Dr Rachael Field. Bookmark the permalink.

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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