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.