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

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.

Mediation research in 2020

Photo copyright 2020 A. Boyle

This month the ADRRN blog focuses on research and is seeking your input about interesting and innovative approaches to studies of mediation.  This post sets the research context by summarising some of the key knowledge gaps and research constraints. Although the blog will focus on mediation, a process that has enjoyed a relatively long research focus, it is likely that there are similar knowledge gaps in relation to other DR processes, and that investigations of them have similar constraints.

Your ideas

Post descriptions of your research projects that have incorporated interesting or innovative approaches.  What was innovative?  How did that affect the whole project and its results?

Knowledge gaps – mediation

Last year, attendees at the National Mediation Conference in Canberra responded to a survey seeking ideas for future mediation research.  Most participants were practicing mediators and the most frequently submitted idea was “to find out what works”: mediators wanted to know more about the mediator skills and techniques that lead to durable agreements.  They also wanted to know which mediator style, or model of practice, is the most effective.  Both of these knowledge gaps are widely recognised.  

Other key knowledge gaps about mediation include a lack of information about mediation outside courts and tribunals and beyond institutional programs and services – in other words, a lack of information about private mediation.  There is also limited information about specialist mediation services such as those for addressing disputes arising from natural disasters or from resource management or from artistic misappropriation.

Very little is known about influences on the mediation process itself and on the role of the mediator, and how those influences might affect what happens during the mediation.  Such influences are likely to include the context and setting of the mediation, the experience and status of the disputants and their advisers, and the experience and status of the mediator.  In addition, despite widespread assumptions about mediator skills, it is not known what mediators actually do (ie their actions and microskills) and what might influence their choice of what to do.  

There are many knowledge gaps in models or styles of mediation practice, such as which mediator actions are typical of each model; how settings and contexts influence the mediator’s choice of model or style; and, among mediators who do apply recognised models of practice, how consistently those models are applied. 

A significant knowledge gap exists about people’s attitudes to conflict and to its management, including responses to “mediation” in Indigenous and other diverse cultural and socio-economic settings.

In some ways, the gaps in what is known about mediation are likely to limit investigations of the process’s effectiveness.

Some constraints on traditional research

Research support and funding

One important constraint on mediation research is the limited funding and support it receives.  Future research innovations are likely to need to be very cost effective if they are to be supported.

Lack of conceptual clarity

It is widely acknowledged in the mediation literature that there is not a clear and consistent understanding of what is meant by the term “mediation”  In addition to the well-reported lack of definitional clarity about mediation, it is not always clear how much of the preliminary work is included when researchers investigate “mediation”; how much of the post-mediation period is included in terms of the delay before implementing an agreement; or how much of a longer time-lag is included that might inform an investigation of mediation’s long-term effectiveness.  Nor is there regular consideration of the duration of a mediation as a component of the process: for example, whether the concept of mediation can include a process that lasts a full day as well as a process that occurs during several sessions convened over separate days, as well as a process that lasts one hour.

There is not consistency or clarity about what constitutes a mediation outcome, what that outcome might contribute to establishing the “effectiveness” of the mediation, and whether a focus on outcomes detracts from consideration of the mediation process itself and what happens within it.  For example, outcomes may be limited to the achievement of an agreement and/or the terms of that agreement, or they might include the disputants’ levels of satisfaction (with the mediation process and/or the mediator and/or the outcomes), or they might include positive changes in the disputants’ communication with each other, or they might include positive changes in the disputants’ relationship with each other, or they might include the matter being removed from a court or tribunal list – or they might include any combination of these. 

Finally, there is not consistency in what constitutes a mediator’s style, or approach, or model of practice.  For example, many investigations of mediator style have been limited to checking that certain key stylistic indicators are reported to have occurred during the mediation, such as “Did the mediator facilitate conversation between the disputants?”  Answering “yes” to the question does not provide information about what the mediator did or about what happened; importantly, it does not provide information about how the researcher chose to interpret the meaning of “facilitate”. 

Representative diversity in research participants

Mediation confidentiality is often cited as a reason for limiting researcher access to the process, including to basic mediation data, and to mediation participants.  These limitations constrain researcher access to a broad sector of the community and prevent their views from informing what is known about mediation.

Researchers recognise that the people who participant in empirical studies tend to be selected from readily accessible sources, including structured mediation programs such as those associated with courts and tribunals.  In most studies, various parts of the population are not differentiated for the purposes of the study.  For example, there is very little differentiation of research data according to socio-economic status, or educational attainment, or sex, or age-groups. 

Data collection and measurement

An additional constraint concerns how key concepts (such as those mentioned above) are to be measured or whether they are even measurable.  For example, it is very difficult to devise a reliable measure for ascertaining levels of disputant satisfaction, or whether the disputants’ communication with each other has improved (either during the mediation or more durably).  There are many aspects of research design that are known to interfere with the reliable collection and measurement of data, including various types of inherent bias (on the part of the participants, the research setting, and the anticipated reporting of the research), and the influence of the researcher’s own experience and preferences.

Research approaches

Mediation research needs some innovative approaches, and over the next couple of weeks, this blog will consider this issue.

Resources

Three articles for further reading about innovative research approaches.  One looks generally at developments in empirical research in the behavioural sciences, and two report on the incorporation of psychometric modelling in surveys distributed in legal settings.

Druckman, D., and W. Donohue, ‘Innovations in Social Science Methodologies: An Overview’ (2020) 64(1) American Behavioral Scientist 3.

Pleasence, P., and N. Balmer, ‘Measuring the Accessibility and Equality of Civil Justice’ (2018) 10 Hague Journal on the Rule of Law 255.

— , ‘Development of a General Legal Confidence Scale: A First Implementation of the Rach Measurement Model in Empirical Legal Studies’ (2019) 16(1) Journal of Empirical Legal Studies 143.

A student journal – in parts (2)

Amazon smoke © A. Boyle

Days Three – Six 

The Amazon hangs over everything here, and today, literally so, with bleak, smoked air.  It smells quite different from Australian bushfires (all those eucalypts) and, at first this morning, I wondered if it was “merely” pollution in such an enormous city.  It truly is a “pall” of smoke.

Last week, one of the Brazilian delegates explained to me that Amazonia (its Portuguese name) has its own rainforest-generated climate typified by regular downpours.  Some call it “our river in the sky”.  So there are two rivers: on the ground is the Amazon itself and, in the sky, is the rain. It is said that, with all that has been happening over recent years, the river in the sky does not flow as much and, because it relies on the forest (which is so damaged), it may never flow again.

Although this School still has a couple of days to go, I am sending this today – it takes only a few minutes to arrive, but it actually isn’t delivered in Australia until thirteen hours from now.

Back to my homework.  Embarking on this journal was a purposeful exercise: I wanted to gain some insight into what students experience when they have to do a journal. In preparation, I have re-read Olivia’s articles, Tania’s guidelines, various references (including: P. Brown, H. Roediger, and M. McDaniel, Make It Stick: The Science of Successful Learning, [Belknap Press, Harvard University, USA, 2014],) and my own ‘Guide to Reflective Learning’ (2018-19).  This time I have read them from the viewpoint of a student rather than an assessor/marker. Needless to say, I have gained some insights that will inform my future teaching/instruction.  For example, it is a rigorous undertaking that requires constant concentration during the day, and the capacity for honest self-reflection in the evening.  It is far less for the faint-hearted than I had fully realised.  In terms of a contribution to ADRRN, I did hope that this task would contribute something to our collective knowledge, about what we teach, and how we teach it.  Though in the form of a much more self-conscious experiment than a controlled study.

This international “workshop” on Science and Innovation Diplomacy: there are three key ideas about journals that I have gained from my time here:

  • Having to write a journal forces me to concentrate much more throughout the day;
  • It also forces me to slow down and truly think about all that happened during the day; and
  • I have to sort between all that happened during the day, and what actually mattered to me.

I know that any amount of reading in the area tells me about the importance of journals as learning tools; however, now I have experienced how much keeping a journal has enhanced my own retention of information. 

Presidents of three universities © A. Boyle

What I understand from this whole Sao Paulo event is that Global South countries are seeking avenues to become equal players in the world despite their lack of competitive clout.  By concentrating on scientific and technology expertise, they aim to build transnational collaborations that are as strong as the Global North’s economic dominance.

There are three stand-out ideas for me:

  • The importance of a collaborative, respectful approach to building international relations;
  • Developing transnational relationships based on shared expertise rather than on the basis of politics; and
  • Recognising common purpose that needs no “ownership”.

As concepts, these are not entirely new to me, because they are similar to the concepts that underlie mediation.  As a member of this group here in Sap Paulo, I have witnessed and experienced the strength that comes from genuinely mutual recognition and acknowledgement.  This is not about the social desirability of doing the right thing in order to “look good”; “looking good” is out of place here.  Instead, it is about creating collaborative expertise.  For me, it echoes the sense of self-determination that is fundamental to (my own view of) mediation.

More importantly for me personally, I have discovered a sense of what it might be like for the majority of the world’s people most of the time: as a delegate here, I have experienced their frustration at not having a voice, not being heard, and not being understood by those (our) much richer countries.  People in my learning group have voiced their frustrations: “Can you explain to me why Africa gets so much more attention than Latin America?”  Though I do have to remember that Brazil has some racial problems, too (as a Nigerian delegate has explained to me).

Although any flow of funding is very important, I am now aware that of far greater value are the mutual recognition and respect inherent to the success of these collaborative relationships.  Although I have always been aware of these, I have not before seen it as starkly as here, perhaps because I have not before been in the situation of being so very out-of-place.  When I think of “culture”, I think of personal and social settings (and all that they entail).  Here, I am learning that global positioning is a key cultural identifier, regardless of personal or social setting (by global positioning, I am referring to the Global South and Global North).  

We have a major task to complete before Friday.  We have been allocated to small groups for devising the preliminary wording of guidelines for establishing the transnational collaborative relationships that are fundamental to the approach of science and innovation diplomacy (the focus of being here).  Typically, such relationships include at least government, universities, and private business.  The group I have been allocated to: “Private Sector of Developed Countries” (no stereotyping there …), and we will craft input for the document that reflects the views of private companies.  Other groups include: “Academia”, “Government”, “International Organisations” (e.g., UN agencies), and “Civil Society”.  On Thursday, all the groups will come together and, using their own ideas, jointly develop a document to be known as The Sao Paulo Framework for Science and Innovation Diplomacy.  A mass negotiation if you like, though perhaps not as well planned as it could be.

I have had a remarkable time here: formal learning, informal learning, meeting people I would never otherwise meet.  Today I tried to identify what, in particular, stands out for me from all that I have experienced; and what has been my personal learning?  What I found was not a surprise; I’ve been aware of it from the first day: it’s about being from the Global North, about not speaking Portuguese, about being the oldest delegate, about being white.  But I hadn’t realised what it means for me.

OMG.  It doesn’t matter what I do or say here, I have no choice but to STAND OUT.  My “discomfort zone” made so very unavoidable.Keeping a journal has been a valuable lesson for me, and it’s time I came home.

Futbol © A. Boyle

A Student Journal – in parts

© 2019, A. Boyle

Innovation and Science Diplomacy School, Sao Paulo School of Advanced Studies, University of Sao Paulo

Day One

When I read students’ submitted journals in mediation courses, or as part of university DR courses, Day 1 regularly has comments about being unfamiliar with the course subject (e.g., “I feel completely out of my depth in this course –  it is unlike anything I’ve ever done before”) and uncomfortable with having to do a daily journal (e.g., “The two things I dislike about this course are having to do this journal, and having to do group work and role plays”); “out of my comfort zone” is a common phrase.

Being selected for this event at the University of Sao Paulo presented an unbeatable opportunity for me to subject myself to the journal – to gain some experience in, and some empathy for, the situation that students describe.  I have never been to Sao Paulo before (nor do I speak Portuguese), I know almost nothing about the topic, and I did not know any of the other attendees, who seemed to have travelled from many countries.  Everything about the experience was way beyond my “comfort zone”.

I am here at the School to learn, and to see if I can get the beginnings of an international alliance of researchers who will help bring fresh ideas to how we conduct mediation research.

Today started 30 minutes late and we were encouraged to mill around the coffee, meeting each other.  Conversation starters were pretty straight forward: “Where are you from?”, closely followed by “How long did you have to travel?”  By the end of the day, writing this up, I realised that I had spoken to people from: Albania, Armenia, the Balkans, Benin, Colombia, El Salvador, India, Iran, Nigeria, South Africa, Sweden, UK, Uruguay, USA, and, of course, from all over Brazil.  And, of course, the other delegate from UoN.  There is a noticeably different atmosphere with so much true diversity and a complete absence of homogeneity.

Key information from today

(i) Being introduced to the key concepts of Science Diplomacy and Innovation Diplomacy:

  • The primacy of international relations that are based on equity, and on the value of human rights;
  • Using the common language of science to connect peoples and cultures; and
  • The importance of collaboration at all levels. 

(ii) Emphasis on cooperation and interpersonal influence; and 

(iii) Key repeated words throughout the day: trust, bridge-building, and peace.

This is not stereotypical science, I thought. Perhaps I will have to abandon stereotypes.  The sciences that delegates bring with them include: agriculture, oceanography, bio-chemistry, biodiversity, molecular science, chemistry, chemical engineering, mechanical engineering, genetics, and, of course, climate sciences.  And I did find a professor of Law who had travelled from Edinburgh.

What is Science Diplomacy and Innovation Diplomacy? 

What I learnt today is that no-one is quite sure what Science Diplomacy and Innovation Diplomacy are.  They all agree that it is about the use of science as a tool of diplomacy, the application of the unencumbered language and interests of scientists to create non-political alliances between countries; groups of scientists who work together to build bridges between their countries, especially where there are problematic political relations.  They create commonalities where none seemed to exist. These are things that I can understand. 

During the presentations, one example was mentioned more than once: over some years, scientists from Cuba and from the USA worked together on a range of projects, building trust with each other – in the full knowledge that Fidel Castro was very supportive of science and scientists. Apparently, it was this collaboration that led to President Obama relaxing travel to Cuba by US citizens. Each time this story was mentioned, it included mention of the current President and all that he has done to reverse that development – including banning the scientific collaborations.

What really stood out for me from today?

The constant emphasis on cooperation, trust, bridge-building.  The undoing of my stereotypes about scientists.  Here was a room full of highly idealistic people showing no sign of any kind of stereotype, even though they represent probably every branch of science.

And the group work.  Yes, of course, we had to do some group work.  We have been given a long-term task in which each group is to develop a strategy for bringing Science Diplomacy to assist with a major international crisis (each group gets to decide what sort of crisis to deal with – our group chose water).  We must complete the task – and report on it – before the end of this School.

Dr Marga Gual Soler, InnSCiD, University of Sao Paulo, 2019     © 2019, A. Boyle

Day Two

Today it was quite cool, and the sky monotone beige.  Many of the buildings here have that grey mouldiness typical of older tropical cities.  One important thing, though, Sao Paulo knows how to make coffee.  The hotel has beautiful coffee; even the university venue has beautiful coffee.

We all travel together in mini-buses from the hotel to the university and back again in the evening – a matter of safety here in Sao Paulo. This morning, riding in the bus and hearing all the languages, I was struck again by the diversity.  There is truly an air of excitement among people – everyone is openly very pleased that they were selected to attend this School. Last night, a small group of us went to a workmen’s street-side bar on a back lane behind the hotel, where we sat at three rickety tables and talked over the day amid bottles of local beer, supplied by the bar’s cheerful proprietress.  If this is how students wind down, I think we instructors have it very tough.  When I was back in my hotel room, I also realised just how isolated we instructors are.  Meanwhile, at the bar, in response to a question, I had mentioned briefly my own purpose in having applied to attend, and was surprised that people were genuinely interested in my, as yet unformed, plan.

The content of Day Two’s presentations was still focused on giving us an overview of Science Diplomacy.  Two presentations stood out for me: 

Dr Marga Gual Soler: she is a Science Diplomat, and something of a heroine here.  She advises the European Union on its Science Diplomacy strategy, and, in November, she leads the first all-women expedition to Antarctica to publicise Science Diplomacy and the climate emergency.  During her presentation, she said that, at its core, Science Diplomacy is flexible and creative, responsive to each situation and context.  Now what does that remind me of?  She also talked about the importance of capacity building to deal with future problems.

Professor Edouardo Viola: he gave a one hour presentation that tracked the political and economic contexts of climate change between the 1990s and now.  He showed the links between economic ups and downs, and countries’ responses to the various climate conferences.  He showed the links between political stability and countries’ responses to the various climate conferences.  And the links between the crisis in democracy and the rejection of scientists, the rejection of expertise.  Depressing in some ways, while, for me, so valuable to be given such a clear perspective on how we have arrived at this point.  And to see that, even in widely divergent fields, context has such strong influence over our collective decision-making.

During the day I have been thinking about the application of all these concepts in my own work.  There are so many commonalities between what is being said here and what happens around mediation, such as the importance of:

  • Trust and cooperation;
  • People to people contact;
  • Long-term capacity-building; and
  • People’s ability to overcome their differences.

This event continues until Friday next week.  I have so much more to learn, yet I am already discovering that mediators and scientists share such deep humanistic values. I wonder what else we have in common?

Part 2 will follow later this week…

NMC2019

NMC2019-banner

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.

Pickle_Puppy_cropped

[© 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.

Who to Ask: Transferability of Findings Reported in Empirical Studies of Mediation

This is a summary of a research paper presented at the ADRRN Roundtable convened at the University of the Sunshine Coast in December 2018; comments made by ADRRN colleagues have been taken into account in this summary.  The research paper reports on one component of a much larger research project in which a systematic appraisal is being conducted of a selection of articles describing empirical studies of mediation

image001

[Vektor ID 563739124/Shutterstock.com]

When I am reading an article about an empirical study of mediation effectiveness, I want to know whether I should incorporate into my mediation practice the techniques, strategies, and behaviours that are described in the article as having been effective.  In other words, how transferable are they?

When appraising the transferability of the results of an empirical study in any field of research, two key factors are taken into account: the study’s identification of its broad sample population, and its selection of study subjects from that population.  Where neither the sample population nor the selected study subjects are appropriately representative, there is a significant reduction in the external validity of the study’s results.  In this context, it is important to establish what might be a representative mediation population.

It has been said that mediation can ‘… play a role in virtually every significant area of social conflict’ (K. Kressel, The Mediation of Conflict: Context, Cognition, and Practice, in: P. T. Coleman, M. Deutsch, and E. C. Marcus (Eds), The Handbook of Conflict Resolution: Theory and Practice (3rdEdition, Jossey-Bass, USA, 2014), p 817).  This suggests that a representative mediation population is the broad diverse community, all of whom are actual and potential mediation participants.  When mediation researchers select people to participate in their studies, it can be assumed that they are choosing subjects who represent that broad diverse community. Yet analysis of the selected mediation literature suggests that this is not the case: mediation researchers rarely mention population representativeness, and appear to choose their study subjects from a very limited range of groups (or programs):

  • Mediator and non-mediator participants in some court-connected mediation programs;
  • Mediator and non-mediator participants in some structured community mediation programs;
  • Mediator and non-mediator participants in some programsdesigned for family/custody disputes; and
  • University students (where the studies are of simulated mediation).

As the list shows, subject diversity in mediation research is restricted by the research’s own limited focus on a selection of government funded services and programs, as well as services provided through public institutions.  This focus leaves other services, and participants, largely unexamined.

The lack of representative diversity in study subjects applies to the mediator as well as non-mediator participants, and it is only one of many issues claimed by mediation researchers to affect how they are able to do their work.

The issues that have been described can be categorised as follows:

  • Obstacles (preventing certain empirical research from being undertaken): the lack of access to adequate funding; ethical restrictions that prevent rigorous examination of mediation practices and thus limit what is known about mediation,potentially disadvantaging future mediation clients;
  • Impediments(making it difficult to conduct certain empirical research): the nature of the mediation process itself (including confidentiality restrictions); the increasing incidence of mediation research being conducted in law schools where there is limited social research experience and expertise; the lack of consistent research methodologies; definitional problems (e.g., the meaning of “mediation” itself, the variety of models of practice, and the various measures of mediation effectiveness); external influences on research purpose and design (such as interest groups, funders, and researcher affiliations); and reputational concerns of potential subject mediators (i.e., if they participate in a particular study, what might be reported about them?);
  • Recurrent flawsin research design have been noted to include: heavy reliance on data collection from mediator and non-mediator self-reports; and the inherent tension between funder preferences for relatively cheap/quick studies, and protection of research rigour; and,
  • Persistent gapswhere little is known about: private mediation; mediation outcomes other than settlement;individual mediator behaviours, or microskills; how mediator values and preferences influence what they say and do in mediation; systemic issues that might influence the mediation process, and what mediators say and do within it; and the lack of comparative studies (i.e., investigations of similar mediator approaches in different contexts, or of different mediator approaches in the same context).

Other potential problems that are not mentioned often in the mediation literature include:

  • How the researcher’s own preferences and experience might influence:
    • Research design,
    • Choice of data collection methodologies,
    • Method of data analysis, and
    • Study subjects’ responses;
  • The lack of gender, race, ethnic, and socio-economic differentiation in the selection of study subjects, in the collection of data from and about research subjects, and in the analysis of that same data. In addition, not enough is known about the demographic differences between mediators in any context, nor about how those differences might affect what mediators say and do, and affect the responses and behaviours of non-mediator participants.

It has been observed that, in all fields, there is pressure on academics to publish as frequently as possible, with their research ability being assessed by the numberof published items rather than by the qualityof reported studies.  In the mediation field, this issue is compounded by the relative lack of specialist mediation publications, and the lack of sufficient mediation knowledge in other publication areas where mediation researchers do publish (e.g., law journals, business journals, social science journals); the latter can result in valuable articles not being published at all, and/or their value not being recognised.  Also, it has been suggested that publishers give preference to articles that confirm mediation’s outcome effectiveness.

Any of the above issues can influence the context and setting of an empirical study of mediation, as well as the research design and its scope, the nature of the research data that is collected, the methods used to collect the data, and the focus of the data analysis.

In particular, many of the issues are likely to influence the researcher’s access to appropriately representative populations, and, ultimately, the transferability of the study findings, and their relevance to practicing mediators.  It is important for the future practice and development of mediation that some of these issues are openly acknowledged and addressed.

The ADRRN is a valuable, respectful, and friendly forum in which mediation researchers can discuss their work with their peers.  It is also a forum in which mediation researchers can consider the above issues.  For example:

  • What are the options for improving mediation researchers’ understanding about social science research methodologies?
  • How to identify realistic and creative research funding and support that enables:
    • Access to a broader and more representative population of subjects for empirical research;
    • Access to diverse mediation settings and diverse research subjects;
    • Empirical investigations that are more complex and innovative than evaluations of mediation outcomes; and
  • How to encourage the dissemination of, and access to, mediation research, without being guided solely by results and findings?

NMC2019 – PhD Research Reports

NMC2019 logo and brand

The next National Mediation Conference will convene in Canberra on 15-17 April next year.  the Conference streams include one devoted to DR research: Research, Education, and Training: Building a rigorous research base for DR.  Although the stream will have a broad focus on the many facets of DR research and education, the Conference Design Committee is keen to provide an opportunity for conference delegates to gain an appreciation of what is happening in current DR research round Australia.  To this end, they have suggested that a specific session be included in that stream, and that it be dedicated to reports from current PhD candidates for whom some aspect of DR is the focus of their research.  The research project does not have to be completed in order to be included in the session.  Nor does participation in this session require the submission of a formal Abstract for the conference.

The session is expected to provide conference delegates with a sense of what is happening in DR research, and to provide current researchers with a sense of what their research colleagues are doing.

If you are a PhD candidate focusing on one or more aspects of DR and you would like to participate in this session, please email me directly at: alysounboyle@gmail.com   If you know someone else who is a PhD candidate and might be interested in participating, please encourage them to email me.

Conference website: https://nmc2019.com.au/

Alysoun Boyle, Chair, NMC2019 Conference Design Committee, Co-Convenor, NMC2019

National Mediation Conference 2019: Call for Abstracts

NMC2019 logo and brand

 

The Conference Design Committee has released the Call for Abstracts for NMC2019.  The dedicated website provides guidelines, key dates, and an electronic submission pro forma.  Only electronic submissions will be accepted, and they must arrive by the due date of 5 October this year:

https://nmc2019.com.au/call-for-papers/

There are eleven Conference Streams (in alphabetical order):

  • Approaches to Indigenous dispute management and decision-making processes.  Key words: Governance; peace-building; evaluation; effective policy & services.
  • Business and construction, workplace and employment.  Keywords: DR clauses in contracts; business, construction and workplace arbitration; industrial and employment DR; innovation in business and workplace DR; international commercial dispute resolution; evidence in commercial and business disputes.
  • Community-focused mediation, and other community-focused processes.  Keywords: Conflict coaching; alternative approaches; environmental DR; multi-party, consultative, and whole-of-community processes; innovative approaches; evidence-based approaches.
  • Conciliation, including public and private advisory processes, and statutory programs.  Keywords: Evidence-based approaches; conciliation, evaluative mediation, advisory dispute resolution, hybrid dispute resolution; statutory programs and processes; conciliation training, standards, and accreditation.
  • Court-connected DR services, including services associated with courts and tribunals.   Keywords: Mandatory DR; judicial DR; artificial intelligence; theoretical frameworks; evidence-based approaches; current developments.
  • Dispute System Design, online DR, and technological innovations.  Keywords: Theoretical frameworks; current developments; sociocultural influences; innovative approaches & applications; artificial intelligence; evidence-based approaches.
  • Elder mediation and other developing specialist areas of practice.   Keywords: Elder mediation; age-related issues; Elder abuse; Elder law; new specialist approaches; evidence-based approaches.
  • Family mediation and dispute resolution, including Family Dispute Resolution (FDR).   Keywords: Child inclusive and child focussed processes; family and domestic violence; parenting plans, including shared parenting; parental responsibility; property and financial matters; mandatory FDR; confidentiality; lawyer assisted FDR; family group conferencing.
  • Peace-building, transitional justice, reconciliation, and civil society.   Keywords: Sociocultural influences, including: intra-cultural, cross-cultural and multi-cultural approaches; discourse analysis; evidence-based approaches; innovative approaches.
  • Research, training, and education: building a rigorous evidence base for DR. Keywords: Research design, empirical methodologies, program evaluations; standards & accreditation; innovative research; evidence-based approaches to training and education.
  • Restorative justice and other innovative approaches.  Keywords: Circles, conferencing, mediation; theoretical frameworks; current developments; innovative approaches; evidence-based approaches.

When assessing proposals, the Committee will give priority to the following criteria:

  • The introduction of new and innovative concepts not previously canvassed or fully explored in the sector;
  • Where applicable, the rigour of any research that will be included in the presentation, or on which the proposal relies;
  • The inclusion of credible demonstration of the importance of the subject matter to the mediation, or DR field, and to the preferred Conference Stream;
  • The inclusion of intercultural, cross-cultural and/or multicultural considerations;
  • The potential appeal of the proposal to a broad spectrum of delegates; the proposal should include appropriate comments if it would appeal more to one cross-section of the sector (e.g. newly trained practitioners, or experienced practitioners);
  • The demonstrated capacity of the proposal to allocate appropriate time for coverage of the topic, and, if for a panel, to include all presenters; and
  • The title of the proposal conveying to delegates what they can expect from the session.

We look forward to considering your proposals as we prepare for 2019 being a belated celebration of NMC’s 25th Anniversary.

https://nmc2019.com.au/

NMC2019 logo and brand

 

 

Some questions about empathy and rapport

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This article reports on a side-issue that has arisen within a much larger research project. A separate part of the large research project was presented to the ADRRN at its last Round Table in December 2017.

Empathy and rapport are complex aspects of human interaction, and there is a significant literature on them dating back at least to Alfred Adler in the 1920s.  The literature occurs principally in the research fields that include sociology, linguistics, neuroscience, social psychology, and cognitive psychology.  In essence, empathy is accepted as being able to identify with another person, to understand what it might be like to be that person, while simultaneously retaining your own sense of self and maintaining your own sense of emotional control.  It has been established that empathy and rapport are essential prerequisites for building trust and maintaining effective communication, and that establishing empathy will increase a person’s sense of satisfaction with business services.  Empathy has been said to be underpinned by what are called the “rules of communicative competence” by which individuals calculate the appropriate levels for relating to others depending upon cultural and personal influences at any given time.  Where one person has high levels of communicative competence, in any given situation, they remain sufficiently aware of the presence of others that their behavioural and linguistic preferences will enable them to assume an appropriate level of relationship with those other people.  These rules of communicative competence have since become better known as the “Rules of Rapport”

It is widely accepted that empathy and rapport are different states.  Research in other fields has shown that empathy plays an important role in developing rapport, rapport plays an important role in developing trust, and trust plays an important role in creating a cooperative atmosphere in which mutually beneficial outcomes can be crafted.  However, understanding and acknowledgement of the differentiations in that sequence is rare in the mediation literature, as are explanations of how the researchers intend any of the terms to be interpreted in the context of their study.

Given what is known about empathy and rapport, it is a pity that the mediation literature includes very little about what mediators actually say and do to establish an empathic relationship with and between the disputants in any particular mediation; nor what the mediators say and do that enables that empathy to contribute to building rapport and trust.  For example, researchers often report a general sense of what mediators say (e.g. the mediator described the mediation process), or of what the mediators do (e.g., the mediator created an atmosphere suitable for negotiation), yet they do not report what the subject mediator actually said or did: when the mediator described the mediation process, did they use formal or less formal language, did they speak to the disputants jointly or separately (or both), what was the mediator’s tone of voice and demeanour (It has been reported elsewhere that actual demeanour is important in the development of empathy and rapport)?  What did the mediator say and do that created a sense of the atmosphere being suitable for negotiation?

There is a reasonable amount of research outside the field of mediation that has reported on how empathy and rapport are established and the range of effects they can have (e.g., improving witness recollection, and increasing engagement in and commitment to business relationships).  It is likely that, because of mediation’s essential links to conflict, empirical studies of mediators and of mediation would be a significant contribution to knowledge about empathy, rapport and trust.  Well-designed, rigorous empirical studies could investigate: how can empathy, rapport, and trust be established in situations of conflict; how do the indicators of empathy, rapport, and trust differ in the context of conflict; how do the effects of empathy, rapport, and trust differ in the context of mediation generally (compared with other contexts); how do they differ between mediations conducted in different contexts?

How much does the establishment of empathy, and the building of rapport, influence the often-reported mediator experience of disputants and other participants reporting high levels of satisfaction with the mediation process despite not having achieved any form of settlement?

Finally, during all the emphasis on the mediator’s role in establishing empathy and building rapport, have we forgotten a different perspective: how often do the disputants seek to establish an empathic relationship with the mediator?

Some Readings and Sources

  1. Adler, Understanding Human Nature (Greenburg, New York, USA, 1927).
  2. J. Clark, ‘Empathy and Alfred Adler: An Integral Perspective’ (2016) 72(4) The Journal of Individual Psychology.
  3. Lietz, K. E. Gerdes, F. Sun, J. M. Geiger, M. A. Wagaman, and E. A. Segal, ‘The Empathy Assessment Index (EAI): A Confirmatory Factor Analysis of a Multidimensional Model of Empathy’ (2011) 2(2) Journal of the Society for Social Work and Research.
  4. Madsen, Therapeutic Jurisprudence in Investigative Interviews: the effects of a humanitarian rapport-oriented and a dominant non-rapport oriented approach on adult’s memory performance and psychological well-being, PhD Thesis, Department of Psychology and Logopedics, Abo Akademi University, Finland, 2017.
  5. Davis, L. Jiang, P. Williams, A. Drolet, and B. J. Gibbs, ‘Predisposing Customers to be More Satisfied by Inducing Empathy in Them’ (2017) 58(3) Cornell Hospitality Quarterly.
  6. T. Lakoff, Stylistic Strategies within a Grammar of Style (Annals of the New York Academy of Sciences, USA, 1979).
  7. Tannen, ‘Framing and Face: the Relevance of the Presentation of Self to Linguistic Discourse Analysis’ (2009) 72(4) Social Psychology Quarterly.
  8. Zaki, ‘Empathy: A Motivated Account’ (2014) 140(6) Psychological Bulletin.
  9. Holmberg and K. Madsen, ‘Rapport Operationalized as a Humanitarian Interview in Investigative Interview Settings’ (2014) 21(4) Psychiatry, Psychology, and Law.
  10. P Vallano, J. R. Evans, N. S. Compo, and J. M. Kieckhaefer, ‘Rapport-Building During Witness and Suspect Interviews: A Survey of Law Enforcement’ (2015) 29 Applied Cognitive Psychology.
  11. Holmberg and K. Madsen, ‘Rapport Operationalized as a Humanitarian Interview in Investigative Interview Settings’ (2014) 21(4) Psychiatry, Psychology, and Law.

National Mediation Conference Canberra 15 – 17 April 2019

“Over the Horizon: Expanding the Dispute Resolution Landscape”

Celebrating 25 years of NMC

 

Mountain tops 2018

The Conference Design Committee is focused on providing a landmark conference that will interest equally the seasoned professionals as well as the new comers, and has already flagged its lean towards innovation by suggesting some new integrated conference streams devoted to: innovation in the sector, indigenous issues, Restorative Justice, and research and education.  These will complement the traditional areas and topics.  The Committee is keen to see all areas of the sector being welcomed to the conference, including lawyers, conciliators, academics, and facilitators.

Members of the Conference Design Committee come from all around Australia, and include some of Australia’s top DR thinkers; there are people who have worked on previous NMC events, and people who are new to the task.  Each brings their own expertise to contribute to the design and population of the conference.  In addition to designing the conference program, they are overseeing preparation of the Call for Papers, which is scheduled for distribution in July this year, and have agreed to apply their own rigour to the final selection of presentations.  Consideration is also being given to ensuring the conference program and format can meet the needs and expectations of DR academics.

The Committee is intent on designing a conference that:

  • reinvigorates this important DR event
  • maintains a balance between practice and theory/research; between interactive and didactic presentation formats; and between formal and informal styles of presentation
  • takes into account the application of DR skills in areas that are not focused on disputes and conflict

All power to the Conference Design Committee.

NMC Ltd is a company with statutory responsibilities.  A Board of Directors has been appointed, on a voluntary basis, to oversee this aspect of the conference, and is undertaking a comprehensive review of the company’s governance, constitution, protocols, and purpose.  Although this is very much a “behind the scenes” activity, it is pivotal to NMC Ltd’s ongoing viability.  Thank you to the Board of Directors, and, in particular, to Professor Laurence Boulle AM for Chairing the Board.

Conference Logistics is the professional conference organiser for NMC2019, and they are providing valuable administrative and logistical support for both the Conference Design Committee and NMC Ltd’s Board of Directors.  Their staff are currently working on a conference design/logo that celebrates the silver anniversary, and on developing a dedicated website that will enable registration for the automatic receipt of email updates in the lead-up to NMC2019.

In summary, the Conference Design Committee is already focusing on attracting, and welcoming, all areas of the sector; ensuring that DR research is an integral part of the package; and taking an innovative approach to the design and content of what is already shaping up to be a great event.

We may have been late out of the blocks, but you can already smell the excitement.

[illustration copyright 2018 ABoyle]