About Jonathan Crowe

Jonathan Crowe is Professor of Law at Bond University. His research explores the philosophical relationship between law and ethics, looking at issues such as the nature and foundations of legal obligation and the role of ethics in legal reasoning.

Could politicians benefit from mediation?

Last week’s post explored whether mediation could play a direct role in democratic deliberation. This would involve bypassing politicians to create consensus on social issues. This week’s post explores a more modest proposal. Could mediation help resolve policy impasses among lawmakers?

Tim Kaine, a former Governor of Virginia and Hillary Clinton’s Vice Presidential running mate, proposed this idea in a panel discussion in 2018. Kaine learned the power of mediation as a lawyer and, as Governor, would often bring in trained mediators to resolve policy disputes within government.

Kaine suggests that federal lawmakers could also benefit from mediation. Facilitative mediation aims to avoid positional bargaining and rights-based language in favour of articulating interests. This makes it more likely parties will compromise on their initial positions and reach a mutual agreement.

Mediation among lawmakers could help overcome stalemates in the legislative process. It could also reduce partisanship. Mediation involves listening to the other parties articulate their concerns in a non-adversarial way. This could help foster understanding and common ground across political divides.

However, Kaine also reflects upon why politicians may resist mediation. ‘In policy,’ he explains, ‘there is often a political motive to keep a dispute going than resolve it.’ Politicians benefit from concealing or denying common ground. They use disagreements to raise funds, energise their base and assign blame.

These factors give politicians disincentives to listen to people they don’t agree with. Kaine observes that ‘listening is the lost art in life right now’ and ‘people don’t feel like anybody listens to them.’ Mediators, by contrast, ‘are trained listeners.’ They ‘are trained to find commonalities that people can’t see.’

A further benefit of mediation in politics, as Robert Benjamin notes, could be to encourage a more constructive approach to conflict among the general public. Benjamin argues that ‘[l]eadership style … directly influences the willingness or hesitancy of people to consider negotiation or mediation … in daily life.’

If political leadership values deliberation, inclusion and consensus, then we might expect to see these values throughout the community. On the other hand, if politicians prioritise power over compromise and depict all disputes as zero-sum games, then mediation may be devalued across society as a whole.

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Could mediation transform democracy?

Mediation is commonly conceived as a mechanism for resolving disputes that would otherwise be settled through the courts. However, could mediation potentially be used for reaching agreement on other social issues—including those that would be decided by the executive or parliament? A recent interesting article by Richard Schmitt in the Journal of Social Philosophy explores this possibility.

Democratic decision-making is generally associated with the electoral process. Recent discussions have also explored the prospects of deliberative democracy, where elections are supplemented or even replaced by joint deliberation among citizens. Schmitt argues that mediation represents a third possible type of decision-making mechanism that has been neglected in the literature on democratic theory and practice.

Schmitt discusses some examples of groups that rely on mediation to make collective decisions. His main example is the Society of Friends (or Quakers). The Quakers, Schmitt notes, ‘have developed techniques over several centuries which allow groups to deliberate together without the conversation degenerating into bitterness and shouting, instead reaching agreements that meet no opposition’ (233).

At a Quaker business meeting, as Schmitt describes it, members sit quietly until moved to speak. They say their piece, but do not seek to defend their perspective against others. They merely offer it for consideration by the group. Members also do not criticise the viewpoints offered by others. ‘The focus’, Schmitt observes, ‘is not on “giving reasons”’ as is so often the case in deliberative democracy (234).

Members do not raise their voices, interrupt or try to win an argument. Instead, they silently consider what they have heard. At some point, an attempt is made to articulate the consensus of the meeting. Members may suggest amendments to this formulation. At the end, if nobody objects, the consensus will be adopted, not because everyone necessarily agrees, but because ‘no one is deeply troubled by it’ (234).

It is often assumed that unanimity is not possible in democratic decisions. Majority rule is always needed. However, Schmitt argues that the example of the Quakers shows this to be false. It is possible to achieve unanimity, even if not everyone agrees on everything, if the right kind of decision-making process is followed. This also requires, of course, that participants follow shared ground rules in good faith.

The process followed by the Quakers, as Schmitt observes, has much in common with mediation. It avoids rights-based discussions or positional bargaining. Instead, it allows participants to articulate their viewpoints without interruption, then encourages them to reach an outcome everybody can live with. The aim is not for someone to win, like in  court, but for everyone to walk away with something they can accept.

One shortcoming of Schmitt’s article is that his discussion of mediation is a bit out of date. For example, he describes the mediator as a ‘professional neutral’ without acknowledging the current lively debates about whether mediator neutrality is desirable or possible (237). Nonetheless, he captures some of the key features of mediation, such as the role of ground rules and the focus on exploration and option generation, showing their potential application to group decisions.

Mediation generally involves a relatively small number of parties. However, Schmitt argues that it can be applied to larger social groups. He discusses some examples of this, such as an effort by the Centers for Disease Control to reach consensus among 110 stakeholders from organisations with different views on HIV/AIDS. The mediators divided the stakeholders into teams and guided them through a facilitative process. This was successful in producing areas of consensus across the whole group.

Schmitt raises and responds to a possible objection to mediation as a democratic process. The worry is that mediation may be undemocratic, because it involves small groups making decisions on behalf of the whole community (243). Schmitt argues this is not necessarily a problem, provided that the small groups are representative, well informed and transparent. The general public can give feedback and views to the stakeholders directly involved in the mediation.

Schmitt’s response to this challenge, in my view, overlooks another, more radical possibility. What if we think of society not as one big group, but as a collection of many, overlapping smaller groups? If these smaller groups adopted mediation as a way of seeking consensus on specific issues, then one might expect areas of consensus to emerge organically in the community as a whole. (I explore this kind of possibility in my own current work on small justice.)

Could mediation transform democracy? Does it offer a genuine alternative to the electoral process and existing forms of political deliberation? The prospect of mediated outcomes taking over political discourse may seem far fetched in the current political environment with its partisanship, bargaining and rancour. However, mediators have always been innovators and risk-takers. It seems fitting that they could also be the ones to reshape democracy as we know it.

The Empty Idea of Mediator Impartiality

Jonathan Crowe and Rachael Field

RF and JC ImageMediation ethics has traditionally given a central role to the notion of mediator neutrality. The idea that mediators are ethically obliged to be neutral, however, has come under increasing attack in recent decades. Numerous scholars have argued that traditional views of mediator neutrality are unrealistic and unhelpful for mediation practice.[1] This is because they overlook the humanity of the mediator and ignore the reality of power imbalances in the mediation process. It is unrealistic for mediators to be wholly neutral, because they are human beings with their own perspectives and biases. Mediator neutrality is also unhelpful to the parties, because it robs the mediator of the ability to intervene actively in the process where needed and ensure that all parties achieve meaningful self-determination.

Some authors, such as Laurence Boulle,[2] have suggested that these criticisms can be avoided by shifting the focus from mediator neutrality to mediator impartiality. It may not be realistic, the argument goes, for mediators to be entirely neutral, but they can and should aspire to be impartial between the parties. This shift from neutrality to impartiality was taken up in the work of the National Alternative Dispute Resolution Advisory Council (NADRAC) and subsequently incorporated into the National Mediator Accreditation System (NMAS) of 2015.

We argue in a recent article, however, that this shift from neutrality to impartiality is unconvincing and lacks practical efficacy.[3] There are two main reasons, in our view, why focusing on mediator impartiality does not solve the problems confronting the traditional paradigm of mediator ethics. The first is that the distinction is too technical to make a real difference in how the mediation process is understood in practice. The distinction speaks perhaps to people who are steeped in the details of mediation terminology, but not to the ordinary party who comes to mediation for assistance with managing or resolving their dispute, seeking a transparent, fair and ethical process. Indeed, for most people, neutrality and impartiality mean the same thing, with the terms often used interchangeably.

The second problem with the distinction between neutrality and impartiality is that the notion of impartiality, as defined by authors such as Boulle, still encounters many (if not all) of the challenges that beset the traditional concept of neutrality. Boulle’s identification of impartiality with fairness, we would argue, is too simplistic. Treating parties with different and complex power dynamics between them in a way that prioritises ‘even-handedness [and] objectivity’,[4] as those terms are usually understood, will favour the more powerful party, in a way that would not be allowed by a genuinely fair process. This is because such an approach will generally entail giving the parties identical or similar treatment, even where they are differently situated or face distinct challenges. The notion of impartiality, in this respect, invites a similar critique to the more traditional idea of neutrality.

It would be possible to avoid this objection to mediator impartiality by interpreting the ideas of even-handedness and objectivity in a more creative and non-traditional way. This would involve saying that mediators can be even-handed and objective even if they treat the parties differently, provided that they do this in an ethically appropriate manner. However, this way of understanding mediator impartiality is of little assistance to mediators and parties in grasping the ethical framework, unless it is supplemented with a more detailed account of when mediator interventions are ethically appropriate. The basis for such an account, we suggest, has to come from some more fundamental ethical notion, rather than from impartiality itself. The idea of mediator impartiality is therefore empty: it either reproduces the traditional problems of mediator neutrality or offers little guidance on the mediator’s ethical role.

Merely shifting the emphasis to mediator impartiality fails to solve the dilemmas posed by the concept of neutrality. A more fundamental rethinking of mediation ethics is needed if we are to avoid the shortcomings of the traditional paradigm.  We suggest in our forthcoming book, Mediation Ethics: From Theory to Practice, that the better approach is to cease to treat mediator neutrality or impartiality as a guiding value of mediation practice, instead emphasising party self-determination. This framework recognises and legitimises the ethical choices mediators routinely make in response to information deficits or power imbalances, rather than seeking to shoehorn them into a modified version of the traditional paradigm.

[1] See, for example, Rachael Field, ‘Mediation and the Art of Power (Im)balancing’ (1996) 12 Queensland University of Technology Law Journal 26; Hilary Astor, ‘Rethinking Neutrality: A Theory to Inform Practice – Part I’ (2000) 11 Australian Dispute Resolution Journal 73; Rachael Field, ‘The Theory and Practice of Neutrality in Mediation’ (2003) 22(1) Arbitrator and Mediator 79; Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, 2004).

[2] Laurence Boulle, Mediation: Principles, Process, Practice (Butterworths, 1996) 19-21; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 2nd ed, 2005) 30-36; Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 3rd ed, 2011) 71-80.

[3] Jonathan Crowe and Rachael Field, ‘The Empty Idea of Mediator Impartiality’ (2019) 29 Australasian Dispute Resolution Journal 273.

[4] Boulle, Mediation: Principles, Process, Practice (1st ed) 19.

Expanding the Concept of the Shadow of the Law in Family Dispute Resolution

Shadow of law

The literature on informal dispute resolution and family law has long recognised the influence of the shadow of the law on legal option generation and negotiations outside the courtroom. The term ‘shadow of the law’ was first coined by Robert Mnookin and Lewis Kornhauser in an influential 1979 article in the Yale Law Journal. They used the term to refer to the impact of substantive law on informal negotiations and dispute resolution processes, with particular emphasis on family law matters.[1] Even in informal dispute resolution contexts, Mnookin and Kornhauser observed, the law still provides the implicit backdrop and framework for negotiations.

Later authors have added sophistication and depth to Mnookin and Kornhauser’s analysis.[2] None of this research, however, directly answers the question of how participants in family dispute resolution in the current digital age source their information about the legal context. A recent article by Rachael Field, Lisa Toohey, Helen Partridge, Lynn McAllister and myself sets out to explore this issue through an empirical study of participants in family dispute resolution.[3] The information gathered through this research helps us to better understand the sense in which family dispute resolution may be said to take place in the shadow of the law.

The data from our study exposes the current conception of the shadow of the law as incomplete and insufficient. In particular, our results show that individuals acquire legal information of varying levels of reliability and credibility by relying on a range of formal and informal sources. Online sources are particularly influential in shaping parties’ understanding of the law, while discussions with family and friends also play an important role. Professional legal advice, by contrast, plays a relatively minor role for many participants. A significant proportion of parties do not or cannot access professional legal advice, while those who do access such advice do not necessarily regard it as the more important factor in their perceptions.

Our article therefore argues for a broader understanding of the concept of the shadow of the law and a more realistic conception of how that shadow influences the decision-making of parties in family law disputes. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). Furthermore, there is not just one shadow of the law, reflecting the current state of the positive legal materials; rather, there are multiple shadows, depending on the parties’ socio-economic backgrounds and where they are gaining their information.

Government agencies, mediation providers and others involved in providing post-separation advice and information need to be aware of the influence that the folk law exerts on parties’ expectations. For government agencies and other advisors, there is a need to provide straightforward, accessible and digestible information about post-separation options, recognising that this information is likely to be accessed alongside a multiplicity of other sources. Mediators, likewise, need to be mindful that parties to family dispute resolution may come to the process with divergent understandings of the legal framework for their dispute. Mediators may need to reflect upon their own understandings of the law and ask how closely they might match or differ from the folk law that influences the parties.

[1] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[2] See, for example, Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Federation Press, 2011); Jeremy Feigenbaum, ‘Bargaining in the Shadow of the “Law”: The Case of Same-Sex Divorce’ (2015) 20 Harvard Negotiation Law Review 245; Herbert Jacob, ‘The Elusive Shadow of the Law’ (1992) 26 Law and Society Review 565.

[3] Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319.

The Challenges of Elder Mediation: Part II

The Challenges of Elder Mediation

Part II: Problems and Solutions

D.M.

This is Part II of a two part series of posts by D.M., a current JD student at Bond University.

As mentioned in my previous blog post, there are several challenges unique to elder mediation. A significant challenge regarding capacity that elders face is an incorrect perception by the mediator or the other party of their capacity to participate in the mediation. Such perceptions are often rooted in ageism, a physical or psychological disability (such as dementia) or cognitive defects stemming from illness or distress. As a result, an elder may feel disempowered because of their dependence on their caretaker or an underlying mental health condition.

Furthermore, if the mental health issue is known to the mediator or the other party, this may create a bias regarding the elder’s capacity or the mediator may incorrectly assess the elder’s capacity, further aggravating the power disparity.[1] An addition problem is that older adults may bargain away their rights in an attempt to preserve relationships with family members who are applying pressure or coercion to obtain access to their assets. They may also be afraid of retaliation from an abuser.[2]

The role of the mediator

Mediators face special challenges in elder mediation. For example, even though ground rules are necessary in mediation, the elderly sometimes comment that they feel constrained by them. This is a complex challenge because such ground rules may also work to reduce bullying from other parties (who may include abusers). The establishment of ground rules, however, is confined to the mediation, which only yields temporary empowerment of the elderly party.[3]

Mediators may also face challenges in managing elders’ contributions. Self-determination is nourished by allowing the parties to discuss and pursue their interests, but some forms of abuse may be tough for the elderly to articulate or confront. Another issue concerns the dilemma of whether medical documentation of the elderly should be shared with the mediator. On the one hand, it may create bias concerning the elder’s capacity. On the other hand, the mediator may need this information to ensure the elder’s self-determination.

Possible solutions

Appropriate responses to these challenges will differ from case to case, but some guidelines can be suggested.  Until proven otherwise, elder adults should be deemed to have full capacity to participate in mediation. However, where capacity is in doubt, this needs to be properly established and not simply assumed. One possible way to ameliorate this challenge is to hire a medical professional to make that determination. Another possible way is for a social worker to assess the party’s capacity, as they may have more relevant expertise than the mediator.[4]

Older adults are legally presumed to be capable of making decisions about their finances. However, due to ageism or cultural norms and stereotypes, as adults get older professionals may increasingly speak to family members about the older person’s financial issues rather than speaking to the older person directly. In such cases, it has been suggested that a professional in the relevant field (in this example, an accountant or financial advisor) be consulted.[5]

Mediator training and professional development also plays a key role. Mediators who deal regularly with elder parties should seek training in identifying and responding to issues concerning capacity and mental health. This training could help avoid the cost involved with consulting medical professionals in some cases, but it will also help the mediator identify when additional expertise or support is needed.

[1] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

[2] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 3, 6.

[3] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 426.

[4] Ibid 434.

[5] Braun, ‘Elder Mediation’, 6.

The Challenges of Elder Mediation: Part I

Elder Mediation

The Challenges of Elder Mediation

Part I: Foundational Concepts

D.M.

This is Part I of a two part series of posts by D.M., a current JD student at Bond University.

Elder mediation is an important and growing topic in dispute resolution. This area of dispute resolution is important because Australia’s elderly population has been projected to grow to 8.8 million by 2057 (22% of the population). This is an increase from 3.8 million (15 % of the population) today. With such a dramatic increase, the demand for elder mediation seems sure to grow exponentially in the future.

‘Elder’ can be defined as ‘a person of greater age or seniority’. In an Australian context, this might be defined as a person who is aged 75 years or over. The highest prevalence of abuse within this age group is from the age of 80–85 years. Abuse of various forms is an important driving force behind the emergence of elder mediation.[1] Abuse can manifest as financial, emotional, physical or sexual abuse or neglect.

Why mediate elder disputes?

Elder mediation, when used correctly, can be an effective preventative process for current or potential elder abuse. Mediation efficacy decreases as abuse severity increases. Thus, mediation at an earlier stage of abuse or neglect will act as a more effective preventative measure. Furthermore, elder parties often prefer mediation over litigation as it is a more discreet method of alleviating an abusive situation and it is easier to maintain the relationships between the parties.[2]

Elder parties may prefer to mediate because it is less confrontational than litigation and confronting an abuser, especially when they are also the caretaker of the elder party, can strain the relationship if the matter proceeds to litigation. Thus, mediation retains the relationship between both parties while keeping the process confidential, which further works to retain these potentially decades-old relationships.[3]

Mediation is also preferable from an ethical standpoint because one of its purposes is for the elder party (generally the weaker party) to gain self-determination. Self-determination in elder mediation is achieved by not only informing the elder party of their rights, but also helping them achieve some independence in relationship with the other party. If the mediator correctly establishes the elder’s capacity, this may also correct any ageism biases and other incorrect perceptions of this issue.

Features of elder mediation

The parties to elder mediation are often family members, friends, fellow residents of aged care homes, caregivers or any combination of these roles. As a result, the mediator must consider questions such as whether parties should meet separately with the mediator or who should be present at each stage of the mediation. Power imbalances may arise in elder mediation due to the potential existence of abuse or neglect, combined with the fact that the perpetrators in the majority of elder abuse cases are the children or caretakers of the elderly party.

The circumstances of elder mediation may pose a challenge to the focus mediation places on self-determination. Power disparities may also create a real or perceived incapacity of the elder party to enter mediations.[4] Capacity is central to a process based on the principle of self-determination which requires parties to make their own informed choices on settlement options. The issue of capacity can be influenced by mental  or physical health problems (both chronic or temporary) or ageism.

My next blog post will examine the challenges of elder mediation in more detail and recommend some possible strategies and solutions.

[1] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 5.

[2] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 425.

[3] Braun, ‘Elder Mediation’, 4.

[4] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

Multicultural Implications in Mediation: Part III

Multicultural Implications in Mediation

Part III: Solutions and Strategies

Niharika Ahuja

This is Part III of a three part series of posts by Niharika Ahuja. Niharika holds an LLM in dispute resolution with high distinction from Bond University. She is currently training as a family mediator in Alberta, Canada.

In order for there to be progress in implementing a culturally sensitive approach to mediation, there must be changes and improvement at all stages of the mediation process. This would involve, first, being mindful of the type of mediators that are selected to deal with multi-cultural disputes and, second, training the mediators to become competent in different types of cultural experiences. These two approaches would need to be supported by clear guidelines or requirements within the mediation training and accreditation systems.

Mediator selection is particularly important in this discussion. The type of mediator that is chosen to deal with the parties’ conflict plays an important role in how the emotions, mindset or cultural background of the parties are understood and accommodated. Selecting the appropriate mediator can also help to bridge the cultural differences between parties.[1] Harold Abramson argues, for instance, that a mediator’s credentials should include being trained to deal with cultural differences that may arise in a particular dispute and having the ability to approach the mediation in a way that fits the cultural needs of the parties.[2]

Training and accreditation

Training and accreditation processes also play an important role. In Australia, there have been inclusions of cultural sensitivity in the Practice Standards for the National Mediation Accreditation System (NMAS). In spite of this, studies show that there has been insufficient research done on how mediators can be culturally trained.[3]  Siew Fang Law found that the reason for this is due to the complex nature of culture itself, the lack of the practitioners’ or students’ motivation to deal with the complexity of cultural issues and, finally, the fact that the predominant expert theorists are male, white and from middle-class backgrounds.[4]

However, Law also posed some interesting suggestions on how these hurdles could potentially be overcome. The strongest suggestion was that intercultural training programs should be included and implemented in the accreditation training for mediators.[5] She proposes the following questions and challenges that the mediation training providers should consider:

  • Is the current mediation training program effective in producing culturally sensitive practitioners?
  • How many hours of training should be devoted to the intercultural component?
  • Are the existing mediation trainers capable of teaching intercultural mediation?
  • Are there sufficient and appropriate intercultural training resources?
  • How should intercultural mediation competence be assessed?

Competence and professionalism

The final element of this picture is mediator competence and professionalism. The ideal mediator would have to adapt and adjust the mediation according to the mix of cultures that are present in the session. However, in order for this to be possible, the mediator would be required to play an active and responsive role. As mediators have the duty to be a neutral and non-interventionist figure, this intervention would have to be dealt with cautiously. The mediator would have to exercise judgment in understanding different cultural experiences through a party’s behavior or emotions and determining how to adjust the mediation accordingly.

Law also made a list of four qualities a culturally aware and sensitive mediator should ideally possess.[6] The first was for the mediator to be self-aware and willing to learn. Secondly, the mediator ought to have awareness of the importance of reflection, in order to have the ability to question his or her cultural and practical assumptions and seek feedback on these assumptions from third parties. This would allow for mediators to recognise and understand the perspectives of others, rather than simply assuming or imposing their own viewpoint.

The third quality would be for the mediator to understand cross-cultural communication patterns and how to use interpreters and translators. This is important, as it would allow the mediator to understand how the parties in the mediation communicate and thereby avoid any misunderstandings that might otherwise occur. The last quality would be for the mediator to comprehend the relationship between language, culture, and power and to adopt a flexible attitude to accommodate for such habits throughout the mediation. Law argues persuasively that these essential skills can enhance the competency of a culturally aware mediator.

[1] Hilary Astor and Christine M Chinkin, Dispute Resolution in Australia (Lexis Nexis, 2nd ed, 2002) 253.

[2] Ibid 254.

[3] Siew Fang Law, ‘Culturally Sensitive Mediation: The Importance of Culture in Mediation Accreditation’ (2009) 20 ADRJ 163.

[4] Ibid 164.

[5] Ibid 166.

[6] Ibid 168.