Mediation and DR research in 2020 – Part 2

November 2020 (c) Alysoun Boyle

Who can do research?

Anyone can be a researcher, as shown by the diverse work undertaken by the Australian Citizen Science Association (<https://citizenscience.org.au/>) where current projects include a selection of wildlife and environmental censuses, ongoing assessment of bushfire recovery in Queensland and NSW, and responses to restrictions associated with the spread of the coronavirus (Covid-19) (see <https://citizenscience.org.au/ala-project-finder/>).

While citizen science does provide opportunities for the field of mediation and DR research, so, too, do collaborative research networks.

Collaborative research networks

While it is prudent to have a research team that includes trained and experienced researchers from more than one discipline, team members can also be from quite diverse personal and professional backgrounds, increasing the scope of the team’s work, and contributing to credibility of any project.  One useful step in this area could be the development of “collaborative research networks”.  The ADRRN could be seen as a collaborative research network and the Law and Society Association (USA) uses them to facilitate researcher collaboration. 

Where stakeholders become involved in collaborative research networks, they become involved in what we, as researchers, are doing, and they contribute to what our research achieves.  Collaborative research networks could be more diverse if they were to include researcher members as well as interested people from other professions such as lawyers; policy-makers; mediation/DR program and service administrators; mediators and practitioners; and, of course, disputants (or potential disputants).  Such diverse networks would create strong relationships between researcher and end-users, providing a rich source of information for research proposals, research design, and research methods (in particular for empirical studies).

The perspectives of mediation and DR “consumers” (ie disputants and potential disputants) are an important (and missing) component of research design.  Their input could be accessed through the inclusion of community members (or representatives) from a variety of social and cultural settings.  An example is the routine inclusion of consumer health representatives on committees overseeing the provision of health services in Australian States and Territories, as well as in many other countries.

Collaborative research networks can be established to oversee specific projects; however, they can also be ongoing discussion and information forums.

Collaborative studies of “effectiveness”

Collaborative research networks are likely to be a valuable research “tool” for overcoming some of the constraints mentioned in last week’s Blog.  For example, they lend themselves to exploration of key effectiveness measures in mediation, including measures of participant satisfaction.  A network could explore how mediation effectiveness, and participant satisfaction, are defined and measured in various settings (eg services in association with courts/tribunals; with community-based services; with business and construction services; with family services; with ombudsmen; with workplace and employment disputes; with environmental disputes; and the various approaches of different social and cultural groups).

In discussions among its members, a collaborative research network could investigate the influence that differing interpretations of “effectiveness” might have on the nature of the mediation process, the role of the mediator, and the participation of the disputants.  In turn, this could lead to the emergence of a common understanding of effectiveness that accommodates a range of contextual details and facilitates comparative studies of effectiveness across different mediation settings.

Collaborative studies of models and styles of mediation practice

Collaborative research networks could provide a forum for the exploration of models and styles of mediation practice.  Grounded theory provides a useful basis for examining some key issues in mediation.  In summary, grounded theory is a research approach in which the researcher observes and collects information (avoiding the influence of their own pre-conceptions and views) from which a subsequent theory is developed, with further research examining the feasibility of that theory.  Using a grounded theory approach, a network could discuss relevant issues among its members such as: ascertaining the key actions and techniques that mediators consider are associated with each recognised model or style; clarifying with program and service administrators the influence of policy directives on preferred models and styles; and exploring the influence of setting, context and mediation participants on a mediator’s choice of model or style.

Collaborative access to mediation

One constraint on mediation research not included in last week’s Blog is the effect of confidentiality on researcher access to mediation.  Although the National Mediator Accreditation System does allow access for research purposes, many programs and services do not.  Interpretations of confidentiality can prevent access to baseline data, to observations of mediation, and to surveys of mediation participants, creating an obvious and significant gap in what can be known about the practice of mediation. 

Where members of a collaborative research network include lawyers, program and service administrators, mediators, and disputants, those members could explore approaches for enabling research access that do not compromise the integrity of the mediation process, or of mediation programs and services.

Collaborative ethics

Another constraint not included in last week’s Blog is the restrictive effect of ethics approvals for studies of mediation.  The effects emerge from the complex process of seeking ethics approval, as well as from the limitations imposed by approval conditions.  Were ethics bodies to be included in a collaborative research network, it might be possible to develop ethical guidelines for mediation research that maximise researcher access to relevant information while protecting the rights of mediation participants. 

One research approach might be for research project teams to include mediation participants and representatives of ethics bodies who participate throughout the whole research undertaking rather than ethics bodies’ involvement and input being limited to a single approval issued before the research commences.

Benefits of collaborative networks

There are clear benefits to a research approach based on collaboration among diverse participants, including access to a broad range of diverse perspectives, increased richness in research design, and the limited costs of having such networks.  An indirect benefit relates to research support.  Where sector stakeholders understand the research process, they are likely to be more supportive of it.  Collaborative research networks have the capacity to involve stakeholders in research projects and expose them to important concepts and ideas about mediation and DR, and, in particular, to the conceptual frameworks of research, and of qualitative empirical research in particular.  Such participatory exposure might enable a shift in research focus in this field – away from quantitative analysis of settlement rates confirming that mediation “works”, and towards qualitative approaches designed to provide more nuanced information about how and why the process works.  Such a shift could be a major contribution to the refinement of public policy in this area. 

Such a shift in research focus might also contribute answers to the perennial question of “what works” in mediation practice.

This entry was posted in Dispute resolution by AlysounBoyle. Bookmark the permalink.

About AlysounBoyle

Alysoun is a PhD candidate at the Newcastle Law School, University of Newcastle, where she is conducting metaresearch of empirical studies of mediation, in an effort to find out more about mediator effectiveness. In addition to ADR Research Network, she is a founding member of ADRAC, and a member of the American Association for the Advancement of Science (AAAS), and the Law and Society Association (USA). She was a member of the American Bar Association (ABA) Section of Dispute Resolution Task Force on Research on Mediator Techniques until that Task Force's disbandment following publication of its Final Report in 2017. She is a Director of National Mediation Conferences Ltd. Alysoun is an experienced DR practitioner and educator/trainer. She is also the Call Out Officer for her local brigade in the NSW Rural Fire Service. Contact: alysounboyle@gmail.com

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