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.

Multicultural Implications in Mediation: Part I

Multicultural Implications in Mediation

Part I: Issues and Challenges

Niharika Ahuja

This is Part I 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.

Mediation is a tool that helps to bridge the gap between differences, and this requires knowing and respecting the culture of people that you meet.[1]

Many Western nations have seen a rapid growth of individuals from a diverse range of cultures, religions, and beliefs over recent decades. In Australia, over 43 percent of the population were born overseas from over 200 different countries and are now permanently settled in the country.[2] Due to the increasing cultural diversity in many countries, maintaining social order requires cultural sensitivity and respect towards the particular issues or lifestyles of minority groups. This is not only relevant in our social or justice system but also in mediation.

As one of the key features of mediation is communication, it is critical that mediators and the parties understand each other’s cultural experiences. However, this may put mediators in a difficult position. On one hand, mediators are obligated to remain neutral between the parties. At the same time, however, it is crucial for the parties’ background and emotions to be understood and accommodated, which may require active steps on the part of the mediator. Allowing for flexibility in responding to cultural issues within the mediation process can help to achieve the important social objective of maintaining social order across cultural differences.

The mediation process

Mediation involves the voluntary attendance by both parties to resolve their dispute with the guidance of a third party, the mediator. In the introduction to the process, clarification is given regarding the roles of the mediator and the parties. It is clarified that the mediator is there to direct the process, while the parties are in control of the substantive or content issues. This is to ensure that mediators do not overstep their limits by imposing any value judgments on the parties and their dispute.

The opening statements allow parties to ‘tell their story’ by explaining the concerns that have brought them to the mediation. Researchers and mediators have given particular attention and value to this stage to see how it allows the parties to achieve their version of justice by articulating their concerns.[3] What is worth noting here, however, is that the parties are disclosing these statements to the mediator, who is considered the figurehead or authority throughout that session. Therefore the parties may feel the need to display their story according to what would resonate with the mediator the most.

One of the most significant and valued communication strategies used by mediators is rephrasing. Rephrasing promotes understanding between the parties by encouraging them to rephrase their assertive emotions and statements into neutral interests. An important concern at this stage of the mediation is that some cultures prefer to express or deal with conflicts in an emotional rather than neutral or rational way. This potential challenge would require the mediator to have the skills to guide the mediation according to how the parties are accustomed to resolving it in their cultural tradition.

The role of Western culture

Morgan Brigg has undertaken valuable research on how the mediation process is shaped by Western culture.[4] Brigg notes that the Western ideology adopts a different approach to selfhood as opposed to other cultures. The Western ideology is mainly that conflict is destructive and can only be resolved by peace and harmony. This is problematic, as many cultures have a different perception and way of resolving or not resolving conflicts, as will be discussed in more detail in my next blog post.

What is important to acknowledge is that this ideology has heavily influenced and dominated the way mediation is conducted. Aside from the mediator’s own perception being molded by these ideologies, the actual process, and organisation of the mediation may reflect a Western approach to conflict. For instance, mediators are the most satisfied with the process when the parties have reached an actual agreement between them. This satisfaction is dependent on the fact that mediators perceive their duty as resolving conflicts by peace and harmony, in accordance with the Western ideology.

My next post will further explore the role of cultural differences in shaping responses to conflict, looking particularly at the experiences and challenges faced by Aboriginal and Torres Strait Islander people in the mediation process.

[1] Alessandra Sgubini, ‘Mediation and Culture: How Different Cultural Backgrounds Can Affect the Way People Negotiate and Resolve Disputes’, Mediate.com (March 2006) <https://www.mediate.com/articles/sgubinia4.cfm>.

[2] Siew Fang Law, ‘Culturally Sensitive Mediation: The Importance of Culture in Mediation Accreditation’ (2009) 20 ADRJ 162, 162.

[3] See, for example, Isabelle R Gunning, ‘Diversity Issues in Mediation: Controlling Negative Cultural Myths’ (1995) Journal of Dispute Resolution 68.

[4] Morgan Brigg, ‘Mediation, Power and Cultural Difference’ (2003) 20(3) Conflict Resolution Quarterly 289.

The central role of party self-determination in mediation ethics

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.

The Promise and Challenges of International Tax Treaty Arbitration

Double Taxation

Double taxation imposes a significant barrier to global trade and investment. Traditionally, bilateral tax treaties (of which Australia has concluded more than 40) have attempted to eliminate double taxation, but disputes often arise about how these treaties should be interpreted and applied.

International organisations such as the OECD have sought to encourage the use of mandatory arbitration clauses to resolve these matters. However, this move has met with significant resistance from member nations.

In a recent post at austaxpolicy.com, Michelle Markham explores the reasons for this resistance and argues that arbitration of international tax disputes presents significant advantages to both governments and taxpayers.

Read the full post here: http://www.austaxpolicy.com/recurring-resistance-tax-treaty-arbitration-dispute-resolution-mechanism/

What comes after neutrality in mediation ethics?

impartiality

This post previews Rachael Field and Jonathan Crowe’s forthcoming book, Mediation Ethics: From Theory to Practice, to be published next year by Edward Elgar. The book analyses the shortcomings of current neutrality-centred approaches to mediation ethics and seeks to answer the question of what might replace them.

Mediation is becoming more and more prominent internationally as a key form of dispute resolution for legal and other disputes. In some jurisdictions, participating in mediation is a compulsory pre-filing requirement in particular kinds of legal matters. Many benefits have been claimed for mediation as a mode of resolving disputes, including its informality, flexibility, less adversarial nature and focus on the parties and their interests. The growth of this form of dispute resolution has produced a considerable academic literature, but the theoretical foundations of mediation ethics have been relatively neglected.

Discussions of mediation ethics have traditionally focused heavily on the notions of mediator neutrality or impartiality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. There is now a significant body of academic literature questioning whether mediators can ever truly be neutral and asking whether the concept of neutrality serves to mask the mediator’s actual power and influence. A number of authors have argued that it can be beneficial for vulnerable parties if mediators are prepared to play a more proactive role in appropriate cases.

The centrality of neutrality in mediation ethics, then, has increasingly been questioned and undermined. There is, however, a lack of consensus on what should replace it. The question is pressing given both the increasing reliance on mediation by domestic legal systems and a growing perception of mediation as an emerging profession. A traditional hallmark of a profession is its ability to self-regulate by applying communal standards of conduct. The idea of mediation as a profession therefore requires the mediation community to be able to articulate its core ethical standards. What, then, comes after neutrality? Can the concept be modified in response to these concerns or should mediation ethics have a different focus?

The present book offers a response to these questions. It develops a new theory of mediation ethics that emphasises the nature of mediation as a relational process. We argue that the focus of mediation ethics should move away from the untenable notions of neutrality and impartiality and towards a focus on enabling party self-determination. We supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the needs of the parties. This provides the basis for a new picture of the mediation community as a community of practice with its own internal standards of excellence. We build on this theory to present a vision of what it means to think about mediation as a profession.

Chapter 1 opens the book by introducing the current paradigm of mediation practice, discussing the most commonly employed models of mediation and the extent to which they assume mediator neutrality or impartiality. Chapter 2 gives an overview of the historical development of codes of meditator conduct in the United States and elsewhere, showing how the facilitative model of mediation, with its ideals of neutrality and party self-determination, serves as an implicit yardstick for many forms of mediation practice. Chapter 3 then discusses the ideals of neutrality and party self-determination in more detail, examining how these notions are understood in the mediation literature, and considering the interaction between them.

Chapter 4 critically examines the notion of mediator neutrality, concluding that the dominant neutrality-centred approach to mediator ethics is at odds with the realities of mediation practice and is therefore untenable. In particular, the demands of neutrality place mediators in a position where they are unable to respond to the needs of individual parties without stepping outside the ethical boundaries of their role. Chapter 5 further problematises existing approaches to mediation ethics by considering the ways in which the relative informality of mediation may disadvantage inexperienced or vulnerable participants by requiring them to negotiate an unfamiliar genre of discourse. This provides the springboard for the new model of mediation ethics outlined in the subsequent chapters.

Chapter 6 introduces a new framework for mediation ethics that abandons the traditional emphasis on neutrality in favour of a focus on supporting party self-determination. The primary role of party self-determination in this new framework is supported by a focus on informed consent and an ethos of professionalism. Chapter 7 further operationalises this new ethical framework by offering a series of ethical guidelines that mediators can use to apply the framework in their practice. We argue for a contextual and relational conception of mediation ethics that is not rule-oriented, but encourages mediators to form appropriate and considered judgments in response to ethical challenges.

Chapter 8 then builds on this ethical framework to advance a conception of mediation as a professional community. We argue that mediation ethics is best understood as an evolving body of standards emerging over time by a process of consensus, rather than a set of rules or principles imposed from above. This picture of ethics is well suited to mediation due to its relationality and focus on the parties and their interests. The key feature of mediation, on this view, is not that the mediator is neutral or impartial, but rather that the parties are supported to achieve genuinely self-determined outcomes. This offers a more tenable basis for mediation ethics than the traditional emphasis on neutrality.

Alastair Nicholson on the family law system

Alastair Nicholson, former Chief Justice of the Family Court of Australia, was interviewed on the ABC’s Lateline program last week. The interview focused on the Commonwealth government’s upcoming review of the family law system. It contains a number of comments relevant to the role of family mediation.

For example, Nicholson identifies the adversarial nature of litigation as one of the main challenges facing the family law process:

[W]e should be moving to a much more, a much less rather, adversarial system because it seems to me that the traditional adversary system is really not suited to family law … [M]uch of the proceedings in the court are adversarial and people who want to litigate, or are encouraged to litigate by some unscrupulous representation can actually jam the system.

Although Nicholson does not think it would be helpful to ‘get lawyers out of the system entirely’, he emphasises that more needs to be done to involve people in their own disputes and address power imbalances:

I mean, there are moments in cases where the adversarial system works, but usually there is an imbalance of power in family law cases. … It’s the people who have got the deep pockets that can afford the adversarial litigation but it just doesn’t work, I believe, in family situations.

A partial solution to these issues, Nicholson suggests, is to reform the court process to prevent aggressive questioning by perpetrators of family violence and encourage judges to play a more active role in prioritising children:

So, [in the German system] they get the children’s point of view right from the start and then the whole proceeding goes through, with social workers assisting … The fact is that I think it’s a much more responsive system than ours, and it is one that we could well copy.

Nicholson also recognises the important role of mediation, particularly in making the process less expensive for the parties:

[T]here is now much more room for mediation, which was a criticism of the system in the past. … [T]he other way to make it less expensive is to resolve the issues as soon as you can. … Once you start getting into litigation and once you start coming to court, it’s going to be expensive.

Family mediation has much to offer in addressing the problems of adversarialism and cost that Nicholson identifies, as well as managing power imbalances and helping to ensure a child-focused outlook. Hopefully, the government’s review of the family law system will acknowledge and support this potential.

The full interview can be accessed here: http://www.abc.net.au/lateline/interview:-alastair-nicholson,-former-family-court/8999010.

PhD Scholarship: A Relational Theory of Procedural Justice, Macquarie University

Macquarie University is seeking a PhD candidate to join an interdisciplinary research project in law and philosophy.

The project is concerned with procedural justice in the context of resolving legal disputes. Its overall aim is to develop a theory of procedural justice that builds on relational theory in philosophy by incorporating relational concerns in the moral evaluation of legal procedures.

The theory will be used to evaluate the procedural practices of a designated legal institution (the New South Wales Civil and Administrative Tribunal).  A case study will investigate the extent to which the theory explains, justifies or provides reasons for revising the procedural practices of the NCAT.

The PhD candidate will either work on the normative aspect or the institutional legal aspects of the project, depending on their qualifications and background.

More information can be found at http://www.mq.edu.au/research/phd-and-research-degrees/scholarships/scholarships-for-domestic-candidates (click on ‘Faculty of Arts’, then ‘Philosophy/Macquarie Law School’).

‘Linking Your Thinking’ To Satisfy Your Clients

This post by Emma-May Litchfield and Danielle Hutchinson originally appeared on the Global Pound Conference Blog.

Global Pound Conference Blog

Небесные струныDo you want to make sure that your commercial clients are happy with the dispute resolution services you are providing? Are you committed to tailoring your business to meet their needs? Irrespective of whether your clients are ‘dispute-savvy’ or still finding their way into the world of commercial dispute resolution, there are things that you can do to make sure you meet their expectations.

The Global Pound Conference is travelling around the world asking commercial users, judges, mediators, lawyers, academics and government officials to share everything they know about the best ways to meet the expectations of commercial clients. After analysing the feedback from the first 350 respondents, we have identified three steps that can help you meet the expectations of your commercial clients.

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3 Signs That You (Or Your Clients) Are Dispute-Savvy

This post by Emma-May Litchfield and Danielle Hutchinson originally appeared on the Global Pound Conference Blog.

Global Pound Conference Blog

display concepts with clipping pathWhether you are a dispute resolution practitioner or a commercial operator, you know that some manage to navigate the commercial dispute resolution world more effectively than others. What distinguishes those who thrive from those who barely survive?

The answer may be simpler than you think, but the implications of understanding this could have a big impact on the way you approach commercial disputes.

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How Should We Think About Mediation Ethics?

nmc-keynote

This post summarises some themes of my keynote address at the recent National Mediation Conference, entitled ‘Two Models of Mediation Ethics’. (Thanks to Emma-May Litchfield for the photo.)

It is becoming increasingly common to speak about mediation as a profession. There is broad agreement among sociologists as to the main hallmarks of a profession. These include institutionalised education and training; a body of specialised knowledge and expertise; professional licensing; workplace autonomy; a communal code of ethics; and peer to peer accountability. Mediation in Australia now fulfils many of these yardsticks. Specialised mediation courses are offered by universities and other institutions. Many of these courses are designed to fulfil the requirements of the National Mediator Accreditation Scheme (NMAS). Shared ethical codes exist in the form of the Practice Standards associated with NMAS, as well as codes maintained by other bodies, such as the Law Council of Australia.

Why, then, might some people think that mediation in Australia still falls short of being a profession? One concern might relate to the absence of a coordinated process for professional discipline. The Mediator Standards associated with the NMAS are maintained by the national Mediator Standards Board (MSB), but the MSB does not hear complaints or impose disciplinary sanctions. Complaints must instead be directed to the Recognised Mediator Accreditation Body (RMAB) to which the mediator belongs. There are more than thirty-five such bodies recognised by the MSB and their complaints processes vary widely. Can it really therefore be said that mediation has the kinds of accountability processes that characterise a profession?

This is a complex and important question. It raises deep issues about how we think about professional ethics, both in terms of where ethical standards come from and how they are enforced. This issue, in turn, signals questions about the nature of the mediation community. Should a professional community ideally have a centralised body that promulgates and enforces ethical standards? Or is a more decentralised model sometimes appropriate? If mediation increasingly views itself as a distinctive profession, does this necessarily mean we should move towards a more coordinated model of professional discipline? Does legal regulation have a role to play in ensuring universal accreditation and disciplinary processes?

These are questions the mediation community must ask itself as part of its process of growth, maturity and professionalisation. My suggestion is that we need to distinguish two different models for thinking about mediation ethics and decide, as a professional community, which path we wish to follow. The first option is the regulatory model familiar from its adoption by the legal profession. The regulatory model assumes that ethical rules will be drafted by influential members of the profession and promulgated as a code binding upon all. The standards contained in the code will be taught as part of a standardised accreditation process, often linked to licensing and enforced by legal regulations. Formal complaints about breaches will be adjudicated by a body of practitioners with the power to impose professional sanctions, such as suspension or withdrawal of accreditation.

An alternative way of thinking about professional ethics is what I call the practice model. The practice model begins with the insight that intuitive judgments lie at the heart of ethical discourse. Ethical standards, on this view, do not arise when they are formulated by a body of experts. Rather, they emerge and evolve over time as members of a professional community respond to ethical scenarios. The decisions made by individual practitioners are repeated and internalised when the same situations recur over time. These judgments are then shared and reinforced through communication with other members, who may have had similar experiences. As a result, certain kinds of responses come to be widely shared within the group. The members of the group may then reflect individually and collectively upon these responses, expressing them as principles that are adopted as guides for future conduct.

There are, I think, three key features of mediation that make it particularly hospitable to the practice model of professional ethics outlined above. First, mediation is an inherently relational process. The regulatory model mirrors, to some extent, the traditional focus of legal practice on litigation—a hierarchical, formalistic and coercive form of dispute resolution. Mediation, by contrast, has often been presented as offering a more relational alternative to the adversarial norms of the courtroom process. Mediation takes many diverse forms, but at its core lies the simple idea of parties sitting down together and discussing their interests in a structured format. Mediation, in this sense, places a heavy emphasis on what the French philosopher Emmanuel Levinas calls the face-to-face encounter with the other. This makes it particularly well suited to generate meaningful discourse about ethical responsibilities.

Second, mediation has long been regarded as a relatively unstructured form of dispute resolution—certainly by contrast to litigation and the courtroom environment. It is unstructured both in the sense of being relatively informal in its procedures and in the sense of not being governed by substantive rules for resolving the dispute at hand. Mediation, of course, is not entirely unstructured: mediators will often set out ground rules and disputes may implicitly take place in the shadow of the law. Nonetheless, this feature of mediation makes it a far more dynamic environment than many other forms of dispute resolution. Mediators are innovators: the process enables them to try new things and evolve their practices over time.

A third feature of mediation that lends itself to the practice model is its interest-based focus. It is commonly accepted that whereas litigation focuses on legal rights and duties, mediation focuses on the interests of the parties. This enables mediation to retain its flexibility and forge a workable outcome in each dispute. The interests-based focus of mediation also makes it hospitable to a model of professional ethics that views ethics as a set of shared responsibilities, rather than a set of formal rules imposed from above. Ethics, understood in this way, can be responsive to the needs and interests of all those affected by the mediation process. It need not be constrained by the feasibility or desirability of formal attributions of blame.

It is important for the mediation community—including both practitioners and scholars—to reflect upon its distinctive attributes and avoid complacency about its shared values. If mediators want their community to be defined by relationality, dynamism and shared responsibility, rather than by hierarchies and formal rules, they need to be able to articulate that vision and fight for it. They should not simply accede to the widespread assumption that a mature professional ethics equates to a regulatory model. The mediation profession needs to have an ongoing dialogue about the prospect of centralised licensing and regulation (as has occurred in other jurisdictions) and ask whether that is really what its members want. It is up to the mediation community to determine its shared goals and values—and whether these are best realised through a regulatory or practice-based approach to ethical life.

ADR Researcher Profile: Kathy Douglas

Our series of ADR Research Network blog posts for October concludes with a profile of network member, Dr Kathy Douglas.

  1. ​Introductory information:​
  • Full title and name:Dr Kathy Douglas, Deputy Head, Graduate School of Business and Law, RMIT University
  • Primary professional identity (i.e., academic, RHD student, practitioner – please include a link to your staff ID page/website): Academic (http://www1.rmit.edu.au/staff/kdouglas)
  • Institutions/Organisations that you work for: RMIT University
  • Where research fits in your professional work (i.e., your primary professional identity, or something that supplements other activity): Research in ADR is a prime focus of my work at RMIT
  1. Why did you become interested in the dispute resolution field? I took a Masters level course in ADR at Monash University and fell in love with the field.  Soon after I trained with LEADR and then began work as a sessional mediator.
  2. What is your particular area of dispute resolution research interest? Mediation theory and practice, ADR in legal education and conflict resolution and planning.
  3. Whose research has influenced you? Why/How? I think that Laurence Boulle influenced me due to his thinking about models of mediation practice and his focus on the emerging ADR field in Australia.
  4.   What dispute resolution research are you involved in at the moment? ADR in Legal Education; Procedural justice and mediation; Conciliation and industry schemes and conflict in planning in Melbourne.  I have a forthcoming article on ADR in legal education coming out in the International Journal of the Legal Profession.
  5. Where would you like to take your dispute resolution research work over the next ten years? I would mainly like to focus on better integrating the theory and practice of mediation. I like being a ‘prac-academic’.  Someone who tries to improve practice in mediation.
  6. What advice do you have for emerging dispute resolution researchers? Join the network.  It’s a wonderful group of generous academics and practitioners.