About Dr Susan (Sue) Douglas

Sue is a lecturer in law at the University of the Sunshine Coast. She teaches Business Law and Employment Law and her research interests are primarily ADR and Employment Law. Sue is committed to access to justice and volunteers at the Suncoast Community Legal Service.

6th ADR Research Roundtable 2017

**submission date for abstracts extended until 3 July 2017**

The ADR Research Network is pleased to announce details of:

The 6th ADR Research Network Round Table

Monday 4 December to Tuesday 5 December 2017

Hosted by the Legal Issues Centre, University of Otago, Dunedin, New Zealand

Call for Paper Proposals

The Australasian Dispute Resolution Research Network is pleased to be hosting its sixth annual research round table on 4-5 December 2017. This year we are very excited to be expanding across the Tasman to New Zealand, to be hosted by the Legal Issues Centre, University of Otago, Dunedin. The round table will be held two days immediately prior to the Law and Society of Australia and New Zealand Conference at University of Otago, 6-9 December 2017.

The round tables are designed to encourage a collaborative and supportive research environment in which papers are workshopped and discussed in detail. Papers in draft form are distributed one month ahead of time to participants, to enable thoughtful and constructive quality feedback. In 2017 we will also be asking you to draft a short (1,000 words max) blog post about your paper prior to the roundtable. On the day, speakers are given up to 30 minutes for presentation, with 30 minutes for feedback and discussion. Two primary commentators will be appointed for each paper.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposal will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

There will be a limit to the number of papers able to be part of the round table discussions. A panel will select round table papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

* Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;

* The round table will include a spread of participants across stages of career; and

* A well-balanced range of work will be presented at the round table to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Deadline for paper proposals: 3 July 2017 (300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification: 31 July 2017

Draft (full) papers + blog post due: 30 October 2017 (to send to participants early Nov.)

For further information, please contact:

Conference Convenors and 2017 Network Presidents: Sue Douglas and Becky Batagol via adrresearchnetwork@gmail.com (monitored twice weekly)

About the Australasian Dispute Resolution Research Network

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at http://www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact blog editor Dr Becky Batagol, at Becky.Batagol@monash.edu.

Membership of Australasian Dispute Resolution Research Network

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter, but engagement on these platforms is not necessary to keep track of blog activity.

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Power in mediation

Traditionally, as we all know, mediators were identified as neutral third parties and mediation itself was defined as involving the intervention of a third party neutral. Neutrality has been widely criticised to the extent that it no longer appears as a  defining feature or even an ethical requirement in the National Mediation Accreditation Standards (NMAS). An early construction of the idea of neutrality was that it meant mediators exercised no power in mediation.

We have come along way from this early view about power in mediation. Scholarly critique and practitioners’ reflections have debunked the idea that mediators have no power. Questions remain however about the sources of mediator power and the proper limits of its exercise. Traditionally mediators attributed power to the process of mediation itself, and constructed the parties’ voluntary consent to engaging in the process as giving them authority (legitimised power) to control that process. This approach was consistent with constructing mediators as neutral as to the content of mediation but in control of the process.

The distinction between process and content in mediation no longer appears in the NMAS. This change is consistent with the development of ‘newer’ models of mediation, namely, narrative and transformative models, extending the traditional  problem-solving (facilitative and evaluative) models. Postmodern constructions of power are more consistent with these later models. At the same time facilitative and evaluative models are the most commonly practised, with practitioners’ sometimes incorporating ‘aspects’ of narrative and transformative approaches.

Authority to mediate is increasingly mandated by legislation. But the scope of mediator power is only loosely delineated in the broad definitions of mediation itself. Questions about the mediator’s role in ensuring substantive fairness in addition to procedural fairness raise further questions about the scope of mediator power and its proper exercise. Questions of mediator ethics equally pose questions about how much power mediators should have and how they should exercise it.

What is the basis of mediator power? What is its proper scope? How should it be constrained and directed?

What are your thoughts?

Some food for thought (a few selected,but not an exhaustive list of relevant,references):

Astor, H. 2005, “Some Contemporary Theories of Power in Mediation: A Primer for the Puzzled Practitioner”, Australasian Dispute Resolution Journal, Vol. 16, pp. 30-9.

Bagshaw, D. 2003, “Language, Power and Knowledge”, Australasian Dispute Resolution Journal, Vol. 14, pp. 130-41.

Bayliss, C. and Carroll, R. 2002, “The Nature and Importance of Mechanisms for Addressing Power Differences in Statutory Mediation”, Bond Law Review, Vol. 14, pp. 285-318.

Bayliss, C. and Carroll, R. 2005, “Power Issues in Mediation”, ADR Bulletin, Vol. 7, no. 8, pp. 134-38.

Field, R. 1996, “Mediation and the Art of Power (Im)balancing”, QUT Law and Justice Journal, Vol. 12, pp. 264-73.

Field, R. 2000, “Neutrality and Power: Myths and Reality”, The ADR Bulletin, Vol. 3, No. 1, pp. 16-20.

Mayer, B. 1987, “The Dynamics of Power in Mediation”, Mediation Quarterly, Vol. 16, pp. 75-86.

Wade, J. 1994, “Forms of Power in Family Mediation and Negotiation”, Australian Journal of Family Law, Vol. 6, pp. 40-57.

Emotional intelligence in mediation practice

James Duffy published a valuable piece in 2010 probing the value of emotional intelligence for mediation practice. Emotional intelligence (EI) is an established conceptual framework for harnessing the impact of mediator’s emotions in a purposive and positive way in practice. What is EI? It is a conceptual framework emanating from positive psychology and made popular by the work of Dan Goleman. EI emphasises reflective practice in relation to the emotional dimensions of intra and interpersonal experience.

EI has great potential as a framework for incorporating existing practice in relation to the emotional experiences of mediators and parties. It’s reflective emphasis resonants with established practice and developing theory about reflective practice in mediation. Its inclusion of intra and inter personal dimensions enable consideration of both a mediator’s reflection on his/her own emotional responses and the interplay of emotions within mediation sessions.

There are several models of EI. Goleman’s model is the most accessible in terms of its relative succinctness and practical application. The five components of EI developed by Goleman are depicted in the table below, which identifies them according to two dimensions and includes Goleman’s definitions.

  COMPONENTS OF EI  
Intrapersonal dimensions Self awareness The ability to recognize our moods, emotions and drives and their effect on others.
  Self regulation The ability to control or redirect disruptive impulses and moods

The propensity to suspend judgment – to think before acting

  Motivation A passion to work for reasons that go beyond money and status

A propensity to pursue goals with energy and persistence

Interpersonal dimensions Empathy The ability to understand the emotional make up of other people

Skill in treating people according to their emotional reactions

  Social skills Proficiency in managing relationships and building networks

An ability to find common ground and build rapport

Table 1: Adapted from Goleman (2004: 3)

 

Whatever model is ascribed to, emotional intelligence is foremost about feelings. To be emotionally intelligent signals an ability to monitor feelings our own and those of others, and to use this information to respond in appropriate and effective ways.  EI is recognised as a set of learned skills that can be incorporated into educational programs, including mediation training. It’s food for thought !

 See

Goleman, D. 2004. ‘What Makes a Leader?’ Harvard Business Review, January: 1.

Goleman, D. 1998. Working with Emotional Intelligence. New York: Bantam.

Goleman, D. 1995. Emotional Intelligence. New York: Bantam.

Duffy, J. 2010. ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ 10 (1) Law and Justice Journal  44-61.

 

The Revised NMAS: Select issues

Revision of the National Mediator Accreditation System (NMAS) effective from 1 July 2015 will remove the requirement for mediators to demonstrate understanding of neutrality as an ethical competency. In addition, reference to the distinction between the process of mediation and its content and outcome have been omitted from the revised system. This distinction has been integral to the classic, facilitative model of mediation. The distinction was also central in understanding the role of the mediator as in control of the process of mediation but neutral as to its content and outcome.The principle of self-determination, referenced in the revised definition of mediation and newly included as an ethical competency, appears more explicitly as a central, guiding principle. Over time, neutrality and party self-determination have been central principles in defining and guiding the relationship between mediator and parties.

How will this relationship be constructed moving forward? This is the subject of my presentation at the ADR Ethics for Practitioners Symposium to be held at La Trobe University, School of Law and the Dispute Settlement Centre on 19 June 2015. The title of the presentation is: ‘Ethics in mediation: Centralising relationships of trust’.

I will advocate that relationships of trust can and should be the core organising principle of mediation practice. Furthermore, those relationships can and should be constructed from a socio-legal perspective that incorporates principles associated with both fiduciary and therapeutic relationships. This thesis is based upon empirical data of actual practice and incorporates existing practice principles. It  therefore has immediate relevance for practitioners.

Development of this thesis has been the result over time of my examination of neutrality, self determination and reliance on the distinction between the process of mediation and its content and outcome as a central organising principle of practice. Papers tracing that development are referred to below.

Douglas, S (2013-12) ‘Neutrality, self-determination, fairness and differing models of mediation’ James Cook University Law Review, Special edition on conflict and dispute resolution, (19), 1-20.

Douglas, S (2012) ‘Constructions of neutrality in mediation’, Australasian Dispute Resolution Journal, 23 (2), 80-88.

Douglas, S (2009)’Questions of mediator neutrality and researcher objectivity: Examining reflexivity as a response’, Australasian Dispute Resolution Journal, 20 (1), 56-66.

Douglas, S (2008) ‘Neutrality in mediation: A study of mediator perceptions’, Queensland University of Technology Law and Justice Journal, 8 (1), 139-157.