About Emma-May Litchfield

practitioner and academic in the ADR space

It’s time we started talking about neurodiversity in dispute resolution

This Blog provides a platform to showcase new and emerging research in the field of dispute resolution. As such, I have invited Danielle and David Hutchinson who have an interest in neurodiversity, including its implications for mediation, to write a piece. Thank-you for sharing, Danielle and David.

three skulls 5e271a18e3ddc8eba8bdb4f4_neurodiverse-talent

By Danielle Hutchinson[1] and David Hutchinson[2]

Research into neurodiversity is on the rise. As the concept makes its way into the zeitgeist, it’s time for us to start thinking about the many implications for mediation.

What is neurodiversity?

Neurodiversity is an overarching term that refers to the variation in people’s behaviours and traits arising out of neurodevelopmental difference. While there is still debate about what differences fall under this umbrella, it typically includes autism spectrum disorder[3][4] (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyscalculia, dyspraxia and Tourette’s syndrome[5].

Within the current understanding, neurodiversity differs from mental Illness in that it is not about a person’s state of mental health or wellness. Instead it is a healthy state that is simply neurologically distinct from that of ‘neurotypicals’. One of the common features of neurodiversity is that the difference between strengths and weaknesses are often magnified. For example, there may be an unusually large disparity between a person’s verbal reasoning and their working memory. While the variation is unique to each neurodiverse person, a familiar trope is that of the absent-minded professor. Diagram 1 shows common strengths and weaknesses for each condition[6].

neurodiversity model

Diagram 1

Why is this important to mediators?

Research into neurodiversity is still in its early days. However, it is starting to become apparent that that this disparity between finding some things extremely easy and other tasks almost impossible, can lead to confusion, frustration and misunderstanding in a range of contexts. This can be particularly so where the neurodiverse person has chosen not to share their diagnosis or is unaware of their neurodiversity.

Unfortunately, recent research into neurodiversity has shown that it is not uncommon for “employers, work coaches and authority figures to conclude that the individual is ‘not trying’, when undertaking particular tasks. Inconsistent performance is mistaken for a bad attitude or poor motivation, which leads to discrimination and perceptions of unfairness on behalf of the individual.”[7]

Given the potential for conflict to arise in such situations, and current estimates that as much as 30% of the population may have some form of be neurodiversity[8], it seems inevitable that as mediators we will need to consider the different ways that neurodiverse people make meaning of their interactions with others. More importantly, if we are to ensure that our practices are truly inclusive, we must start to consider the ways in which our practices may be premised on neurotypical assumptions.

For example, the following table outlines a few differences common to ASD and/or ADHD that may be misinterpreted as the neurodiverse person being deliberately difficult or as demonstrating traits of a high conflict personality.[9]

Difference Traits that may impact on traditional mediation techniques
Alexithymia
  • Difficulty experiencing, identifying and expressing emotions
  • Challenges with introspection, observing own mental and emotional processes, and/or identifying and responding to emotions in others
  • May struggle to communicate emotions to others
Black and white thinking
  • Polarised thinking patterns e.g. an argument or lack of agreement means the end of a friendship
  • Difficulty picking up on nuances and non-verbal gestures
  • Literal interpretation of conversations or agreements
Cognitive rigidity
  • Strong preference for rules and routines
  • Difficulty changing mental states or thinking about things in a different way
Executive functioning
  • Difficulty with tasks such as planning, problem solving, organisation, time management and working memory
Impulsiveness and inhibition
  • Acting without thinking things through or accounting for potential consequences
  • Difficulty allowing others to speak uninterrupted
  • Emotional self-regulation
Rejection sensitivity
  • Extreme sensitivity to being criticised or rejected, whether real or perceived
Sensory sensitivity
  • Can manifest as hyper or hypo-sensitivity
  • Bright lights, noise or smells can be distracting or distressing and inhibit ability to engage in activities

When we consider the typical facilitative mediation, it becomes apparent that we may have unintentionally set some neurodiverse people up to fail.

Where to next?

Each of these neurodevelopmental conditions manifests uniquely in each person, hence the catchphrase, “When you have met one neurodiverse person, you have met one neurodiverse person”. As mediators, it is not our role to diagnose or make assumptions. However, it is important that our practices are inclusive and can enable the full participation of all people involved. In providing an inclusive environment we can start harnessing the many strengths of neurodiverse participants to find mutually beneficial and sustainable outcomes for all.

[1]Danielle Hutchinson is a lawyer, mediator, author and co-founder of Resolution Resources. Danielle has lived experience of neurodiversity and, in consultation with experts in the field, is investigating neuroinclusive practices in mediation.
[2] David Hutchinson is an autistic researcher and writer in the field of autism
[3] Difference as opposed to disorder is now being used by some researchers in the field e.g. Fletcher-Watson & Happe (2019) and preferred by many in the ASD community
[4] The DSM-5 now includes Asperger’s Syndrome within ASD as ASD1. Even so, many people identify strongly with being an ‘Aspie’ and the term remains in use for those who wish to identify as such.
[5] First coined in 1998 by Australian sociologist, Judy Singer in research into Autism. While there is no formal definition, the term has been adopted broadly and is widely accepted as encompassing the neurodevelopmental disorders described above; see also ‘What is Neurodiversity?’ National Symposium on Neurodiversity at Syracuse University (webpage, 2011) https://neurodiversitysymposium.wordpress.com/what-is-neurodiversity/
[6] Neurodiversity, Dyslexia Scotland (webpage)  https://www.dyslexiascotland.org.uk/sites/default/files/library/Neurodiversity%20Model_SDMar16.pdf
[7] Ashley Weinberg & Nancy Doyle, Psychology at work: Improving wellbeing and productivity in the workplace (British Psychological Society, 2017) 44.
[8] ‘Neurodiversity and other conditions’, ADHD Aware (web page, 2018)  https://adhdaware.org.uk/what-is-adhd/neurodiversity-and-other-conditions/
[9] See the work of Bill Eddy and Grant Lester on high conflict personalities and the vexatious litigant.

Seven Keys to Unlock Mediation’s Golden Age

As co-editor of the ADR Research Network Blog this month, I have invited Michael Leathes to talk about an international collaboration that he curated called The Seven Keys to Unlock Mediation’s Golden Age. Leathes’ original 2010 article, 2020 Vision – Where In The World Will Mediation Be In 10 Years, has inspired 40 dispute resolution thinkers — users, practitioners and scholars — to look a further 10 years into the possible development of mediation, not to predict the future, but to help invent it. I invited Michael to tell us more…

Seven car keys

An overview of the Seven Keys by Michael Leathes

As modern mediation enters its 5th full decade, it is timely to admit an inconvenient truth: global uptake of mediation appears to have plateaued far short of its potential. Is the mediation field around the world just going to do the same things over and over while hoping for a major uptick in growth? Einstein famously called this “insanity”.

Several great thinkers have memorably noted that the way to predict the future is to invent it. But this is a challenge in a deeply fragmented, highly competitive, often misunderstood field. The Seven Keys to Unlock Mediation’s Golden Age aims to mobilise an international conversation about how the field can trigger exponential growth over the next 10 years.

The introduction by Professor Nadja Alexander and Lela P. Love exhort stakeholders to imagine a new order illustrated by over 20 peer-reviewed propositions by 40 writers in 16 countries. Seven contributors are Australasians. Each piece is no longer than 1,111 words. The propositions are clustered into Seven Keys: Leadership, Data, Education, Profession, Technology, Government and Usage. They intersect to create what Professors Alexander and Love characterise as a whole greater than the sum of its parts.

Dr Rosemary Howell and Alan Limbury, with Ken Cloke and Joan Goldsmith, frame the work with a plea for the main players to come together and provide collaborative, mediative leadership with both a unified vision for the field and a clear mission and path to achieve it. A vision and mission that empower stakeholders to become the owners, and not merely renters, of the field’s future. The propositions that follow this call for mediative leadership all describe elements that can help shape the vision and implement it through the mission and include:

  • Generating credible science to support mediation skills and processes and to develop new theories from empirical and other field-sourced research data
  • Repeating the Global Pound Conference series periodically
  • Developing a “Negotiation Index” app packed with instant wisdom and evidence to aid mediators and parties
  • Widely teaching mediation as a core subject
  • Training mediators more thoroughly, not least in culture and neuroscience
  • Ensuring mediation is publicly respected as a true professional practice
  • Seeing mediators openly declare what they believe
  • Subscribing to a Code of Disclosure
  • Leveraging technology more effectively
  • Engendering visible Government engagement, including walking the talk and implementing the Singapore Mediation Convention
  • Proactively marketing mediation to users
  • Promoting mediation to facilitate deal making
  • Increasing peer mediation programs in schools
  • Promoting the value of women mediators
  • Making mediation a pre-requisite to litigation and more systemically encouraged and fused in arbitration
  • Helping inexperienced mediators gain a practice foothold with mentoring and practice programmes, and finally
  • If the main players collaborate to share leadership internationally and develop a single vision with a credible mission and a comprehensive budget, it should be fundable on a worldwide scale – it’s been done before!

Joanna Kalowski concludes with Many Paths, One Way. She calls upon the world’s leading stakeholders in mediation to chart the new future, adopt and build upon the Seven Keys as a springboard, and develop it collaboratively with energy and enthusiasm on a global scale.

Seven Keys to Unlock Mediation’s Golden Age was serialised on Mediate.com in June and July 2020.
The complete downloadable pdf of the Seven Keys is anticipated to be made available as part of the mediate.com 25th Anniversary in September 2020 as a no-charge e-book. Once published, the work may be reproduced in accordance with a Creative Commons licence provided within the document.
Interviews with many of the Seven Keys’ contributors have also been recorded and will be made available in conjunction with this publication.

 

Could COVID-19 see the end of Halsey?

The continuing development of ADR processes has brought with it a significant growth in litigation which explores issues such as  enforceability, good faith negotiation and cost sanctions for failing to mediate. These cases add to our understanding of how the field of ADR is continuing to develop.

With this in mind we have been fortunate to receive permission from Alan Limbury, Senior Fellow,  Melbourne Law School, to reproduce his recent Kluwer Blogpost. Please read Alan’s blogpost below.

Future-300x203

Written by Alan Limbury, Kluwer Arbitration Blog 22 June 2020

 

The impact of the COVID-19 pandemic on the administration of justice has led to commendable judicial innovation, such as the use of virtual hearings, while much of the workload has been postponed until the resumption of face to face hearings is declared safe.

In a message to judges in the UK Civil and Family Courts in March, the Lord Chief Justice said:

“It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned. I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.”

Unless or until overturned by legislation or judicial decision, the situation in the UK is governed by the 2004 decision of the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11 May 2004) , in which Dyson LJ (with whom Laws LJ and Ward LJ agreed) said:

“…it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 [of the European Convention on Human Rights].”

In 2010 the European Court of Justice differed, holding that a mandatory out-of-court settlement procedure is not contrary to European law so long as it does not result in a binding decision, does not cause a substantial delay in litigating, does not oust the court’s jurisdiction due to limitation periods and is not excessively costly: Rosalba Alassini and others v Telecom Italia SpA and others.

That was not the end of Halsey however, because Dyson LJ continued:

“Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:

‘The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.’”

Comment: that unfortunately erroneous passage from the White Book fails to address the substance of Harvard Professor Frank E A Sander’s well-known and compelling statement: “There is a difference between coercion into mediation and coercion in mediation.”

Dyson LJ went on:

“If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is not, of course, obliged to take at face value the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it… we reiterate that the court’s role is to encourage, not to compel.”

Halsey established a regime whereby the courts may impose cost sanctions against successful litigants on the grounds that they unreasonably refused to engage in ADR. Such penalties are, of course, necessarily imposed after the decision on the merits of the case, whereas a power to order parties into mediation would be exercised before the final decision.

Even before the 2010 Alassini decision, Sir Anthony Clarke, in The Future of Civil Mediations, (2008) 74 Arbitration 4, 419 said:

“It is of course a cliché that you can take a horse to water but whether it drinks is another thing entirely. That it is a cliché does not render it the less true. But what can perhaps be said is that a horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it. Litigants being like horses we should give them every assistance to settle their disputes in this way. We do them, and the justice system, a disservice if we do not.”

Using the same cliché, in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013) , Sir Alan Ward said:

“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey…”

A year later, in Bradley & Anor v Heslin & Anor [2014] EWHC 3267 (Ch) (09 October 2014) , Norris J said:

“…The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”

In its 2017  Interim Report on ADR and Civil Justice , the Civil Justice Council ADR Working Group said at 9.32:

“… if the Working Group were free to choose we would be minded to allow judges to make orders in particular cases compelling an unwilling party or unwilling parties to attend a mediation or engage in some form of ADR.”

In its 2018  Final Report, the Working Group refrained from suggesting such a course, instead advocating increased encouragement into ADR at various stages and, at 9.24, proposing a system, as in British Columbia, in which a formal Notice to Mediate from one party to another triggers mediation by a mediator on a court-approved panel. The court is not involved unless the parties cannot agree on the mediator or otherwise seek its intervention.

While such a scheme would undoubtedly be useful, both in disposing of cases and in increasing awareness of ADR, the missing element is what I see as the clearly desirable power of the court, as it considers appropriate, to order parties into mediation whether or not they consent. In my 2018 Kluwer blog, I touched upon the way in which Australian courts use their statutory power to make such orders.

In his recent article Mediation – Don’t panic in the Pandemic – be prepared , Colin Manning, mediator, says:

“If, as seems likely, there is a risk that the courts will become overwhelmed by a wave of commercial cases, a combination of the number of adjourned cases built up during the lockdown together with a rush of new litigation arising from the pandemic, then there will be lengthy delays to hearings and trials. It must be possible that the judges will have to take practical steps to ease the pressure. One obvious step is to require all parties to engage, or re-engage in some form of ADR, almost certainly mediation, as a condition of bringing or continuing litigation.”

Perhaps the pressure caused by the COVID-19 pandemic makes this time for the UK to dump Halsey and adopt this approach.

 

The GPC North America Report – reading between the ines

It is my pleasure to share Dr Rosemary Howell‘s most recent Kluwer Blogpost with the ADR Researcg Network community. I thank Rosemary for her continued and important contribution to the Global Pound Conversation.

Written by Dr Rosemary Howell

NA report cover

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

Beresford, Daisy Radcliffe, 1879-1939; Interior of the Great Hall, Guildhall, LondonInterior of the Great Hall, Guildhall, London

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

 It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

 We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

The GPC North America Report – reading between the lines

I am thrilled to share this post by Dr Rosemary Howell which first appeared in the Kluwer Mediation Blog of February 22nd, 2020.

I would like to take the opportunity to thank Rosemary for her continued support and important contribution to the Global Pound Conversation.

NA report cover

By Dr Rosemary Howell

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

Beresford, Daisy Radcliffe, 1879-1939; Interior of the Great Hall, Guildhall, LondonInterior of the Great Hall, Guildhall, London

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

 It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

 We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

Coming Soon—suite of North American GPC reports

Written by Danielle Hutchinson. First posted on the International Mediation Institute  Blog in November 2019.

NA globe

Initiated by IMI, the GPC Series 2016-17 was a collection of 28 conferences held in 22 countries across the globe. It was conceived as an opportunity for members of the commercial community to come together and engage in dialogue about commercial dispute resolution (DR), as well as collect actionable data that could be used to challenge the status quo.

A suite of eight GPC North America reports has been created as part of an IMI project funded by the AAA-ICDR Foundation. These reports focus on the findings from the data collected at GPC events across North America between 2016-17. All the reports will be made available on the IMI website.

The GPC North America suite of reports present findings from data that has never been analyzed before.

Clear features of each city have become apparent and similarities and differences between jurisdictions have surfaced. Distinct and actionable recommendations in relation to the findings have emerged. These recommendations have the potential to make a significant impact on the future of commercial DR in North America.

Some results may be expected. Others may be quite surprising.

There are seven reports that present local findings for each city that hosted a GPC event in North America. Each of these reports explores the characteristics of users of DR in each jurisdiction, how the market responds to their needs, obstacles and challenges facing commercial DR and provide a vision for the future.

The final regional report is the culmination of the findings and provides a comparative analysis of jurisdictions across North America.

The complete suite of reports includes:

  • The GPC Austin Report
  • The GPC Baltimore Report
  • The GPC Los Angeles Report
  • The GPC Miami Report
  • The GPC New York Report
  • The GPC San Francisco Report
  • The GPC Toronto Report
  • The GPC North America Report

We look forward to your response to these reports in the ongoing Global Pound Conversation and thank the delegates at the North American GPC events for providing the insights that may prompt us to challenge the status quo.

For further information about the GPC and its supporters please see under ‘Research’ in the main menu above. Learn more about the GPC >.

 Process design: driving the bus with your client

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our third guest is Catherine Davidson, who has practised as a commercial litigator and mediator both nationally and internationally. Catherine has mediated over seven hundred commercial and workplace disputes. She is a trainer for the ADC and has delivered negotiation and mediation workshops in a number of law schools in India and China.

I invited Catherine to write a piece about her work in designing collaborative commercial processes to meet the both the needs of her clients and the outcomes sought.

Over to you, Catherine…

bus

by Catherine Davidson

This blog is a reflection on working collaboratively with two separate clients in terms of co-designing the process, documentation and roles.

I had a week where I was approached by two clients wanting commercial facilitation. Interestingly both came from the major project space and each was made up of multiple parties. They both wanted a collaborative process and signalled they were street smart about how to approach disputes from the outset.

Seeing the design of the process as a two-way street, I ‘jumped on the bus’. I now share what I noticed and what we did.

Case Study 1

The first approach was by the engineer who was one of the four parties to a Project Development Agreement (PDA) for a hydroelectric scheme. The project was at its very early stages. The relationship with one member of the consortium had broken down, the others were of the view that this party had not delivered on its obligation to secure the land for the project.

Trust had broken down. Attempts to negotiate independently had failed.

They all agreed that one party’s interest needed to be ‘sold’ to the others or vice versa, so the landowner could then pursue the project. Unfortunately, perceptions about the commercial value of the project had been a major issue.

Reshaping the existing relationship was key to the commercial outcome for the project.

This client actively collaborated in the design of the process. He invited me after initial discussion to do a ‘reverse brief’ scoping process, documentation, timing and costs. There were to be no lawyers at the facilitated meeting.

We edited my Facilitated Meeting Guidelines document so he could insert language that was specific about intention — ‘with a view to resolving how the parties will proceed with the project; independently via one party buying the other’s interests or together’. I noted he had been quite specific about the options for resolving. And suggested it might be helpful to add a sentence that includes “or as the parties might otherwise agree” in order to leave scope. This invitation was declined and spoke to client need for autonomy.

Expectations about individual engagement were also explicit ‘with a view to achieving a mutually acceptable commercial conclusion to the current misalignment.’

There was similar collaboration when designing the process. After the shape of the preliminary meetings was agreed a clear expectation was set that we would only proceed to the next stage of a group meeting if each party had indicated a “sufficient intent to get a deal”. It was also agreed that during the face to face meeting we would document agreement as it developed.

Case Study 2

The second approach was from the lawyer for one of the parties to a Contractor Joint Venture for a commercial project involving a contract for the supply of a product found to be defective.

In requesting the facilitation, she highlighted her client wanted repair of the defective product under obligations in the contract. She felt a facilitated meeting with all parties and lawyers while the Director of the foreign supplier was visiting Australia could be a ‘circuit breaker’ for the dispute which was ‘brewing’. The defective product was fundamentally important to the construction of the project, so preservation of this relationship was key. This lawyer was experienced in these kinds of disputes was on the front foot about timing and tailoring an opportunity that could accommodate an ‘emotional’ party.

This client was also very clear about the purpose of the facilitation process. She expressed a desire to understand why the supplying party — a long-established family company — consistently had an emotional response to requests under the contract. She wanted to link the potential of that understanding with ways to preserve and improve the contractual relationship. The language of the Guidelines document remained more open and she prioritised the meeting as an essential part of the supplier’s visit. Timeframes were tight and having everyone cooperate to make time was a challenge with long lines of delegated authority autonomy was an issue.

Reflections

There was a common driver that saw both name commercial facilitation as the desired process.

Both disputes arose from what Geoff Sharp calls relational contracts where the “contracts are underpinned by a relationship requiring more than simply what is written in the contract – and often it is that trust and confidence is vital for the business of the contract to work” (Sharp, 2019).

Some of the nine specific characteristics of a relational contract were referenced in the language of expectation used by both clients.

These two experiences of ‘street smart’ or what has been identified in previous blogs here as dispute-savvy clients meant I was able to design a sophisticated process to meet their needs (Litchfield & Hutchinson, 2016).

Both clients were very pragmatic and practical about their limitations as outlined and communicated regularly with me. Each sought practical ways to manage hurdles in the process design. The bigger picture was always about the commercial success of both projects.

Working with clients in an organic and client-led way, I found these collaborative experiences engaging and fulfilling. Working with clients who are agile and proactive is refreshing. I asked for client feedback and was pleased to note appreciation of the “sophistication of approach” and that I was “client-focused and responsive”. I later stumbled upon the Mixed Mode Taskforce checklist of criteria for mixed modes process design. I recommend this very helpful checklist for all those interested in working collaboratively to design commercially viable dispute resolution processes for dispute-savvy clients.

Collaboration and Mediation with the Unwilling: “Bringing the Horse to Water”

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our second guest is Marguerite Picard who developed the MELCA Method – a collaborative approach to Family Dispute Resolution. Marguerite is an Accredited Family Law Specialist who teaches collaborative practice, and presents in Australia and internationally. She is a member of the international and federal collaborative practice associations (IACP & AACP) and president of the Victorian Association of Collaborative Professionals.

I invited Marguerite to write a piece about her work in Collaborative Practice.

Over to you, Marguerite…

horse Marguerite

By Marguerite Picard

Well-meaning lawyers everywhere are familiar with the game of chasing ex-spouses round and round, to bring them to the negotiating table to reach a settlement. It is frustrating and costly.

An ex-spouse might be afraid because of issues of power, control and violence, or they may not have had the support or the time to move towards accepting the end of the relationship. There are many other reasons why people dread the thought of any form of divorce negotiations. Working out practical arrangements at the end of a marriage or relationship isn’t something anyone looks forward to. We can all understand these realities.

However, there are very good reasons for people to engage in self-determined conversations about arrangements for their children and their property after separation, because the research tells us that people who make their own decisions, with or without facilitation, are overwhelmingly the happiest with the outcomes. Perhaps, if people recognised that reality, they would not run the risk of other people making decisions for them, as a result of their refusal to have sensible and early conversations.

The 2018 Report of the Family Court tells us that 20,000 applications are issued in the court each year. As it happens that number represents only some 30% of separating couples.[1]. It seems that the majority of couples know that a court is not the place to be, although how much of that is about being priced out of legal services is unknown.

There has been a decrease in the number of court applications for children’s matters since 2006, which reflects the establishment of Family Resolution Centres. It has been shown that 73.6% of couples show high levels of satisfaction with this form of mediation. [2]

Of those who have no assistance with negotiations about children’s living arrangements, 89% are satisfied with the arrangements they make. [3]

It is property matters that now dominate the caseload of the Family Court, which is due mainly to the Court gaining jurisdiction over de facto property matters in 2009 (Victoria).  It is interesting and telling that people find it easier to co-operate about their children than they do about their money.

[1] Kaspiew, Moloney, Dunstan and De Maio: ‘Family Law Court Filings 2004-5 and 2012-13’ (2015).

[2] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

[3] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

 

If you would like to contact Marguerite or find out more about Collaborative Practice, please visit her website.

Early intervention – an encouraging case study.

I am re-posting Dr Rosemary Howell’s Kluwer Mediation blogpost from September. It is an important indicator of how sophisticated ADR has become. No longer simply an alternative to litigation, but also an embedded mechanism that supports employee self-determination as early as possible before workplace issues escalate.

Thanks for sharing, Rosemary!

By Rosemary Howell

Mediation is certainly featuring in the international news right now.

This week Giuseppe De Palo posted an enthusiastic message about workplace conflict resolution. He congratulated the Office of the Ombudsman for UN Funds and Programmes as it prepares to establish a world-wide panel of mediators to make mediation “the first, natural step to take in pursuing informal resolution to workplace conflict”.
This is an achievement to be celebrated. However, it is disappointing that early intervention processes which precede mediation, particularly in the workplace environment, are not getting the same enthusiastic press.
The concept of early intervention is not new. Indeed I have written about it in an earlier blog. Readers may recall reference to the Civil Litigation Research Project (CLRP) in the early 1980s which investigated the apparent explosion of disputes in the civil justice system in the USA.
The project discovered that disputes are not ‘found objects that arrive fully formed’. It validated earlier research  analysing the stages of a dispute. It demonstrated that, even before a dispute begins to form, there are opportunities for early intervention which offer significant savings in time, cost and, perhaps most significantly, human relationships.

Sarat pyramid

The Dispute Pyramid – Adapted from Miller & Sarat 1980

Despite the research and the conversations, until now I have been unable to find useful examples of early intervention at work, especially in an institutionalised environment where we can track uptake, outcomes and party responses.

A case study
Recently I was fortunate to discover a useful case study which adds some interesting and valuable enhancements to the early intervention process.
Introduced two years ago by the Department of Health & Human Services (DHHS) in Victoria, Australia (whose vision is to achieve the best health, wellbeing and safety of all Victorians so they can lead a life they value) the program, as with all effective programs, has been evolving as the Department evolves. It uses the language of facilitation. Services are provided by a workplace facilitator. The program has not been widely publicised. I was fortunate to discover it via my daughter, an accredited mediator, facilitator and coach who has recently been appointed to the role of workplace facilitator. Through her recommendation to investigate this well-thought out and continually evolving program, I have found a case study to explore.
Located within the Employee Wellbeing and Support space, the program (which supports 11,000 people!) was created in response to requests for a pathway to resolve matters involving inappropriate behaviour and conflict as an alternative to the usual formal Departmental processes. This approach has led the Department to offer a range of options called “employee wellbeing supports”.

The Organizational Ombudsman
Initial development was based on the concept of the Organizational Ombudsman drawn from the Institutional Ombudsman Association (IOA) framework.
At a high level the Organizational Ombudsman role involves both supporting parties and promoting institutional learning about enhancing conflict resolution processes.
This contemplates that in interactions with parties the emphasis will be on:
• Listening and understanding.
• Identifying interests and developing options to support them.
• Coaching parties towards direct engagement.
• Facilitating informal resolution and referring parties to other more formal avenues for resolution where this becomes necessary.
Beyond the parties, the role also offers independent insight to the organisation about opportunities for systematic change. It is a ‘source of detection and early warning’ of new issues that require the organisation’s attention.

The role of the Workplace Facilitator
It has been wise of DHHS to use the IOA framework. It is steeped in relevant research, has international recognition and support and brings a useful legitimacy to the role. An exploration of how the role is operating two years on also demonstrates that the Department has had the wisdom to allow the role to transform and be enhanced in response to stakeholder feedback.
This has produced a number of changes. Already located in the ‘Wellbeing’ space the role has now been moved into the Health, Safety and Wellbeing Support Unit. This has overcome some of the challenges of the more isolated role – giving the facilitator a familiarity with and access to other services that are available to support parties. These are terrific tools which enhance the opportunities for the workplace facilitator to offer truly situation-specific support and referral which includes:
• A peer support network
Trained volunteers available to support individuals needing help – not trained counsellors but a confidential service based on active listening, clarification and referral to appropriate support services as a ‘first port of call’ resource.
• An employee wellbeing support program
This is often called an EAP (Employee Assistance Program) in other organisations. This is a ‘more than just counselling’ resource provided by an external provider which includes a manager assist offering that provides unlimited bespoke coaching services and a conflict assist coaching service for employees
• Teamwork programs
Early intervention is party driven. Sometimes the coaching element of the role encourages parties to realise that there could be value in bringing the workplace facilitator into the team environment to support the team in dealing well with differences.

The significance of confidentiality
Two years on, other significant feedback is influencing the operation of the role. Parties are reporting that their confidence in the confidentiality of the process influences their willingness to seek support. They want an interaction that is not reportable on content. As a consequence, should it emerge during the facilitation that there is a need to report, the workplace facilitator does not step into the reporting space but offers coaching to the party in how the party might take this action.

Data collection
Every program needs to confirm its value via appropriate data collection. However data collection needs to be managed extremely sensitively. This is particularly important in an environment where the program’s credibility relies on parties’ confidence that there will be no consequences flowing from their decision to engage and that no reporting back to the organisation can ever result in them being identified. Parties will not access a process if there is the slightest concern that confidentiality will be breached, whatever the intention.
The response has been to refine the reporting outcome so that data is captured according to common themes rather than individual cases. This still allows the collection of data which can inform the DHHS about key concerns whilst ensuring that confidentiality has priority.

What are the important lessons from this project?
Two messages strike me as significant:
• The location of this program in the Employee Wellbeing space (which itself sits within Occupational Health and Safety), rather than with other formal Human Resources programs, makes it plain that there is a relationship between human wellbeing and an ability to deal well with differences

  • This is not a conventional workplace mediation program. We know that by the time parties get to mediation there is often a fully blown conflict which, in the workplace, has serious employment consequences if it does not end well. This program does offer the opportunity for facilitated conversations. However, the initial emphasis is on a skills transfer via coaching to give participants the confidence to engage in difficult conversations before fully blown conflict breaks out.

Watch this space!

Designing for disputes: 3 lessons I learnt creating an online dispute resolution system 

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our first guest is Winona Wawn who currently works at the Fair Work Ombudsman in the Behavioural Economics Education team. Winona is a mediator and has a Masters’ in Dispute Resolution (DR) from UNSW.

I invited Winona to write a piece about her work designing and implementing DR systems and mechanisms, which she initially undertook for AirTasker (Australia’s largest online marketplace for services).

Over to you, Winona…

By Winona Wawn

‘Conflict is inevitable’ is one of my favourite sayings. As our world becomes increasingly digital, so does our need for resolving disputes online.

After becoming a nationally accredited mediator, I joined a tech startup to develop an online dispute resolution system. It was an amazing opportunity to create a new online DR process from scratch for an open marketplace app. I was so excited to be able to help hundreds (if not thousands) of users each year resolve their conflicts.

But how do you create an online resolution experience for two angry customers who you’ve never met? How might you resolve disputes only via email?

I found by combining learnings from both dispute resolution and human centred design, it’s possible to create a purely online dispute process that works. The research which most influenced this approach was Steve Krug’s ‘Don’t make me think: A common sense approach to website usability’, the ever useful Fisher and Ury’s ‘Getting to Yes’ and Georgia Murch’s ‘Fixing feedback.’     

Below are my top three learnings from the experience. Even if you’re not into ODR, hopefully it helps you keep your practice client centred.

  1. You need to understand your clients’ needs 

Your mediation process is focussed on your clients’ needs, not yours as the mediator.

When I was starting to design the online dispute resolution process, I wanted to understand how disputes were currently being handled by the tech company. I conducted a number of user interviews with our customers who had been in disputes. Hearing first hand experiences of customer’s disputes and how we did (and did not) meet their expectations was illuminating and challenged a lot of my assumptions of what they needed.

This taught me the importance of not falling into the trap of believing your own assumptions of what your clients need – actually go out and talk to them. Survey them before your dispute resolution process starts. What are their underlying interests and expectations? What’s preventing them from resolving their own conflicts? Then start to consider how you can incorporate this into your own practice.

If you can’t survey clients (e.g. for confidentiality reasons) imagine you have a ‘best case’ scenario client. They understand each stage of the mediation process, is willing and able to negotiate with the other party and articulate their interests. Then imagine you have a ‘worst case’ client – who doesn’t understand the mediation process, who isn’t able to negotiate with the other party or articulate their needs. Channelling Fisher and Ury’s ‘Getting to Yes’, consider how their underlying interests might differ, and what positions they may typically take. How might you design a resolution process which caters for both best case and worst case parties interests equally well?

  1. Set clear expectations 

Do disputing parties demand they just want you to make a decision and get it done? How many times have you had to (patiently) explain what your role is, and isn’t as a mediator?

To help get them on the right path, your disputing parties need to know what to expect at all times. They probably need to be reminded more than once what your role is (and isn’t) and what their role is. In Krugs ‘Don’t make me think’, he emphasises the importance of websites helping users achieve their goals as directly and easily as possible, with minimal friction and frustration.

Applying these principles, I found setting clear expectations helps move the online dispute resolution process along smoothly. I had a 4 stage process that was clearly written on our website and was constantly referred to when parties were resolving their disputes. Being reminded about what’s coming next I found helped keep disputing customers engaged and aided in their understanding of how to achieve their goals of resolution as painlessly as possible.

Think about how you run your pre-mediation conference and how you move parties through the stages of mediation. Do parties know what they need to do at each stage to move onto the next? Don’t be afraid to be explicit in writing up your process so parties can follow it along before and during your mediation.

  1. Be open to feedback 

Has a client ever told you they weren’t expecting something during the mediation process? Have they mentioned they didn’t know what to say or do?

Nobody is a perfect mediator and being open to feedback and constantly improving your practice will put you in great stead. Taking on board constructive criticism can be hard for your ego but very beneficial for your mediation process and your client’s experiences. Georgia Murch’s ‘Fixing Feedback’ discusses the importance of being open to feedback to ‘nip issues in the bud’ and preventing issues from spiralling out of control quickly. Creating space for disputing parties to be honest with how their feeling (for example – if they don’t know what to do next) can help transform your practice to be truly client centred.    

For example, when conducting customer interviews, I discovered our disputes team was often asking for the same information on multiple occasions. This led to incredible frustration by our disputing customers – they didn’t feel heard, that their concerns weren’t taken seriously and they were tired of sending the same evidence again and again. This feedback led to the creation of an online form where all information and evidence was uploaded in one place before the online mediation began. This meant all the information could be easily referred to by the team, was kept confidently and resulted in a reduction in resolution time.

From my experience, having a party-centric ODR process meant faster resolution times and less frustration for all parties involved. Leveraging DR and HCD research helped me create an ODR process that aimed to better understanding party’s needs, set clear expectations and be open to feedback. Being in conflict is hard enough – and as practitioners we can take steps to design processes to make resolving conflict as painless for parties as possible.

 

If you would like to discuss ODR or user experience design, contact Winona at winona.wawn@gmail.com.