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.

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.

ADR Reading List: Tania Sourdin, Alternative Dispute Resolution

John Woodward’s recommendation for the ADR Reading List is Tania Sourdin, Alternative Dispute Resolution (4th ed, Thomson Reuters, 2012).

I would have to say that the book which opened my eyes to the possibilities of ADR (after 30 years of legal practice as a litigator) and which encouraged me to read more widely was Sourdin’s book on Alternative Dispute Resolution.  I also like Spencer and Hardy’s Dispute Resolution in Australia

ADR Reading List: Lang and Taylor, The Making of a Mediator: Developing Artistry in Practice

Sam Hardy’s contribution to the ADR Reading List is Michael D Lang and Alison Taylor, The Making of a Mediator: Developing Artistry in Practice (Jossey-Bass, 2000).

What I love about this book is its focus on artistry and reflective practice — for me two things that underpin any theoretical knowledge of mediation or other conflict resolution processes or intervention (and also, for that matter, any DR research). I think this is essential reading for any beginning conflict resolution practitioner — and indeed for any experienced conflict resolution practitioner!

ADR Reading List: Bargaining in the Shadow of the Law

Kate Curnow recommends a number of items for the ADR Reading List today relating to the issue of bargaining in the shadow of the law.

Bargaining in the shadow of law theory and research into why the ‘haves’ come out ahead have been key to shaping my DR research because of what they show about the role and nature of ‘law’ in dispute resolution.

In terms of bargaining in the shadow of law, obviously the classic original piece by Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950 is a must read.

Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Themis Press, 2011) contains a great analysis of subsequent development of Mnookin and Kornhauser’s original theory by other authors and further refinement of the theory itself through empirical research.

On the why the ‘haves’ come out ahead, a great starting point is Marc Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95.

ADR Reading List: Tom Tyler, ‘The Quality of Dispute Resolution Procedures and Outcomes’

Our next item in the ADR Reading List is from Becky Batagol, who recommends Tom Tyler, ‘The Quality of Dispute Resolution Procedures and Outcomes: Measurement Problems and Possibilities’ (1989) 66 Denver University Law Review 419.

I really like this piece, despite its age, because it cuts through what is often presented when measuring the quality/success/effectiveness of a dispute resolution process. Tyler argues that agreement rates and participant satisfaction have a seductive quality but should be avoided as sole measures of process quality. I often recommend this to PhD students as a starting point for their research into a particular dispute resolution process and Tyler’s approach has been central to the design of some of my own research projects.

ADR Reading List: Winslade and Monk, Narrative Mediation

Today’s ADR Reading List recommendation comes from Kathy Douglas, who recommends John Winslade and Gerald Monk, Narrative Mediation: A New Approach to Conflict Resolution (Jossey-Bass, 2000) to new researchers.

Even if the model is not widely practised, the discussion of the theory is worth the trouble.

ADR Reading List: Peter T. Coleman, The Five Percent: Finding Solutions to Seemingly Impossible Conflicts

This month the ADR Research Network blog will feature a series of posts sharing members’ reading recommendations for both new and experienced researchers.

The first item on our ADR reading list comes from Olivia Davis, who recommends Peter T. Coleman, The Five Percent: Finding Solutions to Seemingly Impossible Conflicts (Public Affairs, 2011).

He takes a systems view of conflicts and discusses the powerful effects that context has on a conflict, and also the limitations of tackling problems in a rational problem-solving way. He suggests looking for ways to disrupt the dynamic of the conflict, rather than attempting to resolve the manifesting issues.

ADR Research Network Blog for October

This month the ADR Research Network blog will feature a series of occasional posts from our members responding to the following questions:

What book or article has most influenced your approach to researching dispute resolution and why?

What book or article would you most recommend to beginning researchers in the dispute resolution field?

We hope to offer both new and established researchers some helpful tips for further reading!

Playing the Mediation Language Game

This post presents an overview of a paper by myself and Rachael Field which I presented at the recent ADR Research Network Roundtable, entitled ‘Learning to Play the Language Game: Confronting the Hidden Challenges of Family Mediation’.

Mediation is becoming more and more prominent as a mode of dispute resolution in family law matters. There are many benefits that can be claimed for mediation as a mode of resolving family disputes, including its informality, flexibility and less confrontational nature. These benefits make mediation a potentially suitable method for resolving many types of post-separation issues. However, even while offering parties the opportunity of consensual, non-adversarial dispute resolution, mediation can also present them with significant challenges.

The greatest of these challenges perhaps arise where parties in family mediation must negotiate on their own behalf, since lawyers are either not present or are excluded from the process. Mediation in the absence of legal representation requires parties to effectively articulate their own stories, interests, issues and concerns, as well as potentially those of their children. Participants in family mediation are expected to be reasonable, engaged and effective negotiators at a time in their lives – post-separation – which is, in many cases, one of the most chaotic, difficult and emotional.

There are, therefore, obvious challenges facing unrepresented parties in family mediation, particularly those with little prior knowledge of the process. It might be thought that these problems are counteracted by the relatively informal character of the mediation environment. However, the family mediation environment, despite its relative informality, is structured by underlying conventions and expectations that are often opaque to inexperienced participants.

Ludwig Wittgenstein’s notion of a language game offers a way of thinking about the underlying conventions in different forms of social discourse. Wittgenstein notes that language fundamentally influences – and, indeed, constructs – the ways in which people interact. Language is linked to social behaviour and to the social dynamic. Effective communication, then, becomes a matter of understanding the applicable social context and knowing how to play the relevant language game.

Mediation researchers and practitioners need to pay attention to the language game of mediation in order to help parties navigate the process. Party preparation can play an important role in enabling inexperienced participants to engage effectively in family mediation and protecting vulnerable parties from being disadvantaged by hidden expectations. Helping parties understand the language game of family mediation represents a critical new focus of family law practice.

The Role of Intuition in Mediation

I read with interest Greg Rooney’s paper on ‘Rebooting Mediation by Detaching from the Illusions of Neutrality, Just Outcomes and Balanced Power’. Rooney is a very experienced practitioner and teacher of mediation. His paper proposes ‘to reboot the profession of mediation by championing the proposition that mediators are not neutrals. They bring their own personal history and professional expertise to the process of assisting parties who are in dispute.’

The reason Rooney gives for rejecting neutrality is that it ‘is physically impossible to attain as a personal attribute for a mediator or a practitioner in any other profession or field.’ This is, of course, not a new point: scholars have been critiquing the notion of neutrality in mediation for some time. However, Rooney builds on his rejection of neutrality to offer some interesting insights about the role of intuition in guiding mediation practice.

I agree with Rooney that neutrality is not a helpful ideal to guide mediation practice and ethics, although I think he sometimes overstates the point. For example, he contends that efforts to balance neutrality against other aims of the mediation process are flawed because ‘you cannot be half neutral or unbiased in the much the same way as you cannot be half pregnant. You are either neutral or unbiased or you are not.’

However, even if the ideal of absolute neutrality is unattainable, it is surely true that some mediators are more neutral or unbiased than others. A mediator who deliberately and openly intervenes in the process to favour one party is likely to be less neutral than one who tries hard to be balanced, even though both will be influenced to some extent by personal biases. Neutrality, then, is potentially a matter of degree.

The point remains, however, that the ideal of absolute or pure neutrality is not a helpful practical guide for mediators in shaping their practices. A similar observation applies to the ideas of just outcomes and balanced power. Some outcomes are more just than others and some power dynamics are more unbalanced than others. Mediators can sometimes influence these variables in helpful ways. However, the pure ideals of absolute justice and absolute power balance are unlikely to be helpful guides to mediators in practice.

Rooney helpfully observes that mediation is both dynamic and diachronic (my terms, not his). The mediator herself influences the dynamics between the parties, which are constantly shifting over time. This means that ideals such as neutrality ‘have to be assessed within the context of the fluidity of moment to moment events’. This is another reason why a perfect state of neutrality or balanced power is unattainable in practice.

The misleading focus on neutrality in mediation, Rooney argues, has led to a model of mediation training where the focus is on guiding or transforming the parties rather than on developing the mediator’s own capacity for self-awareness. Rooney suggests that more attention should be paid to how mediators make decisions about how to behave. Mediators should cultivate their capacity for mindfulness and self-reflection.

‘The first step’ in this process, Rooney argues, ‘is for practising mediators to be conscious of what they are thinking’. Another way of putting this might be that mediators should develop their capacity for reflexivity: the ability to recognise one’s subjectivity and viewpoint when assessing a situation. Rooney describes the self-aware mediator as entering a ‘state of reverie’ where she can draw intuitively on knowledge from past experiences.

The underlying point here – leaving aside Rooney’s excursions into Buddhist philosophy and The Legend of Bagger Vance – is to highlight the central role of intuition in shaping mediation practice. Intuition, Rooney notes, ‘can produce a rich source of data which is immediate and specific to the parties at that particular point in time’. Intuitive judgments, then, are tailored to particular cases in a way that general principles and values cannot be. These judgments can then form the basis for further self-reflection and refinement of practice.

The role of intuitions in mediation ethics was a central focus of my recent article on ‘Ethics and the Mediation Community’ in the Australasian Dispute Resolution Journal. I have also explored the role of intuitive judgments in law more generally. I agree with Rooney that this represents an important and neglected focus of mediation research. It is heartening to see sustained and insightful reflection on this issue by such an experienced mediator.

Further reading

Jonathan Crowe, ‘Ethics and the Mediation Community’ (2015) 26 Australasian Dispute Resolution Journal 20

Jonathan Crowe, ‘The Role of Contextual Meaning in Judicial Interpretation’ (2013) 41 Federal Law Review 417

Jonathan Crowe, ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011)