About jillhowiesonuwaeduau

Dr Jill Howieson is an Associate Professor at the University of Western Australia's Law School. Jill teaches, researches and practices in dispute resolution and mediation. In 2018, Jill established the UWA Mediation Clinic to provide mediation service and action research.

Elections, Reflections and DR Connections

Written by Laurence Boulle

Hey Canada, did you VOTE?

[Free Image from Creative Commons]

 

The lengthy vote-counting procedures for the recent Australian federal election is about to conclude, creating opportunities for reflection and analysis.

There are manifest differences between political elections and the familiar forms of dispute resolution: this is noted but not developed here, other than citing the truism that there are many moving parts in mediations, litigation or arbitrations, on one hand, and electoral systems on the other, such that much depends on a viewer’s subjective perspectives on the two.

Similarities between the two systems might at first appear less prominent than the differences yet  are arguably of interest to those undertaking  daily dispute resolution duties. Followers of the ADR Network have previously read (in prose) about the associations between Poetry and Mediation and the question arises as to whether there are connections between Elections and well-known DR systems. This contribution is a DR perspective on some of the moving parts in the federal elections, with potential lessons for both systems.

The core approach taken here is the systems both involve choices for participants, in one case ostensibly based on contrasting political policies and promises and in the other ostensibly based on parties’ rights, needs and priorities and their options outside dispute resolution forums. This is where the connections can be drawn – human choices are ubiquitous in social systems and despite the varying and inconsistent circumstances in which they are made they have common impulses and dynamics.  In brief, the similarities between the two systems are based on human irrationality and its exploitation.

Here I look at the elections through the eye of a dispute resolver, and then turn the gaze back on dispute resolution itself.

Idiosyncratic reflections on political matters are inevitably informed by an author’s confirmation biases and availability heuristics. As Forum devotees well know, neutrality is no longer a defining feature of DR processes, and colleagues such as Field and Crowe are about to demolish my own preferred concept of impartiality. As it is arguably better to be overt about one’s lack of neutrality, (and now impartiality!) I declare my interests at the end of the article.  (Perhaps academic authors should be more ready to declare their convictions, but that is a subject for other non-impartial contributions.)

Meta Matters

As noted above, at the meta-level elections and dispute resolution systems have at their core human decision-making, regardless of the medium, structures and procedures at hand. In both contexts there is an assumption of self-determination – that is discrete decisions are based, by respective voters and disputants, in terms of exercises in linear logic according to which they make objective assessments of costs and benefits, followed by utilitarian choices in voting, negotiating and the like. These Enlightenment notions undermine much teaching and learning in law, politics and dispute resolution.

The same notions have, however, been long abandoned in many academic and professional disciplines. Their tenure was made tenuous 400 years ago when David Hume, a product of the Enlightenment, informed us that, ‘Reason is the slave to our passions’. While Hume’s research impact assessment is not conspicuous in contemporary scholarly literature, whether political or dispute resolution, his views have been refined in contemporary thinking in many disciplines – cognitive psychology, behavioural economics and neurobiology to name a few. As observed throughout this piece, rationality in both politics and dispute resolution is jeopardised by the predictable irrationality, emotions and biases of the human mind.

At an impressionistic level, and in apparent obliviousness of A* imperatives in research networks I would contend that the recent federal election in Australia reflects, reinforces or reifies principles which have analogues in dispute resolution – and which DR practitioners require in their take-on luggage. Conversely DR practitioners might have contributions to make in political discourse when it loses its way.

Assessing Outcomes

The election outcomes were interpreted widely by winners and commentators as a ‘miracle’ and a ‘landslide’. In reality the election was decided on a relatively narrow basis. In terms of first preferences the government achieved 41.5% of the primary vote, a negative swing of 0.5%, against the opposition’s 33.3%, a swing of -1.4%. In terms of two-party preferred results the government attained 51.5%, an increase of 1.9% over the previous election. In terms of seats won and lost the government achieved a net gain of four seats over its previous tally and the opposition a net loss of four. As regards the Senate the results were also not as dramatic as portrayed in the media –  with 38.3% of the Senate vote the government increased its seats by four, but did not attain a majority, with no net change in the opposition’s Senate numbers. The outcome did, significantly, elevate the government from minority to three-seat majority status in the lower house, but did not constitute a landslide, avalanche or other earthly movement as claimed in many quarters.

Dispute resolvers are familiar with what is at play here – assessments and perceptions, whether positive or negative, of DR settlements are a function more of expectations than of outcomes. Managing expectations is a prime responsibility for dispute resolvers and their representatives, designed to counter the optimistic over-confidence and confirmation bias commonly agitating their clients. The election evidenced the same disjunction between expectations and outcomes: a series of consecutive opinion polls over several years created solid expectations of an opposition win, which was confounded in reality by a combination of voter choices and vagaries of the preferential electoral system. For mediators and other dispute resolvers it confirms the importance of expectation management in the face of optimistic over-confidence and confirmation bias among clients and their advisers.

Framing Options for Choices

Expectations are created or managed, in part, by how options are framed and choices are presented to voters in electoral contexts. This is particularly significant in the contemporary ‘attention economy’ where there are infinite simultaneous and sequential demands being made on the consciousness of our finite brains. In this context the human brain can be overwhelmed by the demands of navigating uncertainty, and simple, and simplistic, frames of reference and slogans are more conducive to engineering intended outcomes than complex frames and complicated analyses, however profound. Despite their extraordinary potential powers human brains like ‘neat and orderly’ and can have difficulties coping with uncertainty.

In the federal election campaign the government used the slogan ‘Building our economy, securing our future’. The terms, however imprecise, have concrete associations and a wholesome tactile affect (and are linked to loss aversion referred to next). The opposition’s mantra was ‘A fair go for Australia’, a slogan more abstract and intellectual in content and tone. Needless to say there were many other ‘frames’ from both mainstream and minor parties during the campaign, relating to taxes, economic management, budget fairness, migrants and generational equity – sub-slogans beneath the shadow of the others. All parties framed their policies with different degrees of spin, transparency or concealment. Politicians and their minders are inveterate framers and reframers and remind us again of the power of words and language in decision-making contexts – people act in terms of their perceptions and perceptions are in part a function of language.

Dispute resolvers are, or consider themselves to be, the gold medallists in reframing: from positions to interests, from the past to the future and from one side’s toxic terminology to neutral language more palatable to the other. Framing and reframing are sometimes regarded as the quintessential skills of mediators and conciliators, designed to shift cognition in order to change behaviour. However even for veteran dispute resolvers there are salutary lessons from the election – how people perceive the world determines how they operate within it. Framing and reframing in both electoral and dispute resolution contexts challenges the assumed rationality of human decision-making.

Rationality and Affect

The rationality of the cognitive brain does not, in politics, disputes or life, inevitably prevail over emotions, whether instinctual or induced by rhetoric. We live in an age in which emotion often trumps rationality and feelings trump facts. Fear is the predominant feeling in both human and non-human animals and perceived relief from fear is a major motivator of choices and behaviours. The government made extensive use of terms such as ‘security’, ‘building’, ‘growth’ and ‘economic management’, terms likely to promote reward rather than retreat responses. Slogans relating to ‘taxes’, ‘pensioners’, ‘refugees’ and ‘shiftiness’, also heard during the campaign, had their own negative connotations, likely to invoke in some voters powerful, albeit unconscious, fear and retreat responses. Rational reasoning and argumentation are frequent casualties of the biases and heuristics referred to in this note. Indeed, political argument feels sometimes more like conflict – the proper domain of dispute resolvers.

Dispute resolvers have long operated with the understanding that all decisions have an emotional base, despite the apparently rational logic of the ‘law, facts and evidence’. When the cognitive brain does come into the equation it is not reason which overrides existing feelings but the reason-induced countervailing emotions which cause disputants to change their minds.  The rational mind is, however, important in providing justifications for decisions reached on an emotional basis – it allows us to validate and defend decisions, such as settling for less than our legal ‘entitlement’, in order to diminish our cognitive dissonance – to have factors with which to convince friends, loved ones and workmates, about the probity of our decisions. Despite the differences in electoral politics dispute resolvers can reinforce understandings of human behaviour in their domains from observing voting behaviours in the campaign.

Averting Loss and Seeking Gain

Linked to the framing and predictable irrationality factors is the reality that people are motivated more by fear of loss than they are by the hope of gain – part of the primitive survival instinct still prevalent in current times. We are loss averse beings, which got homo sapiens through difficult physical circumstances in history to where we are today. The loss/gain balance in the federal election was not one-sided, both sides appealing to both elements of the equation. However the meta-context in today’s state of the nation is a prevailing sense of loss perceived by many people – as a consequence of competition policies, employment insecurity, stereotypes of migrants, wage stagnation and uncertain futures, inducing a paradoxical scarcity syndrome in one of the most affluent countries in the world. However real or not these factors might be perceptions are more important than facts, and facts on matters such as environmental realities and inter-generational equity don’t speak for themselves. Where there is already a wide-spread social perception of loss and fear in groups wanting to feel secure it is easy to exploit this in election situations.

Dispute resolvers are again well-versed in the art of addressing the factors of risk aversion and risk-seeking behaviour. They know that disputants see the world not how it is but how they are. They are, or should be, experts in mitigating perceptions of loss by reframing to gain such that parties will accept settlements to avoid unknown risks. They know that judgments about risk are, unobligingly, often based on identities and beliefs, not on careful evaluation of available evidence. Belief perseverance can prevail even where facts change (‘I expected X to happen but it didn’t which goes to show that it will’) and public commitments to beliefs tend to lock them in. This is an area where dispute resolvers still have much to learn.

Experts and Expertise

Today science and expertise have lost much of their acceptance and legitimacy.  This is a complex phenomenon with many contributing causes but it is apparent in political elections and to a lesser extent in dispute resolution – referred to as expertise deficiency.  Expertise is a product of slow analytical methodologies and can provide complex outcomes, whereas politicians can be quick and simple – if not simplistic. The views of scientists, by their nature, tend to be general in form and do not always take good account of the feelings and circumstances of particular individuals. Moreover statistics from scientists, economists and lawyers, don’t resolve disputes in themselves –  they provide a basis for managing different conflict circumstances. In combination these factors have caused experts, particularly academics and increasingly scientists, to be regarded and described as privileged elites – even by the true elites. Increasingly scientists are seen as having and promoting their own agendas which do not accord with those of the ‘non-elites’. This is an ironic situation for science since experts and expertise cannot resolve democratic questions but their contributions should be able to narrow and define conflicts. The reaction against and disbelief in science and experts is a trend in many political and religious contexts, here and abroad.

This phenomenon has some resonance in dispute resolution situations. Legal representatives can be tempted to take the ‘inside view’ in relation to the probabilities of a client’s success at a future hearing – as opposed to starting their assessment with the ‘external’ base rate for the that kind of case, before taking account of the its peculiar features. While lawyers are themselves experts theirs is not an expert-based methodology. Courts have come some way in mitigating the ‘duelling experts’ phenomenon by creating systems for conjoint evidence and other dispute resolution systems have creatively managed their use of experts. In short, the displaced reliance on expertise found socially and politically is not as prevalent in dispute resolution systems, but the appearance of expertise deficiency elsewhere is a cautionary note for dispute resolvers.

The Time Factor

In terms of decisions with consequences in the intermediate- or long-term future there is a latent bias in human decision-making. It involves the propensity of most people to over-value current economic or other factors of value even when there is promise of greater value in the future – the intertemporal utility function. In the political context it means that current jobs in one industry, however short-term their tenure, are valued more highly than job forecasts in an emerging economic sector. There was abundant evidence of this in the election in relation to employment options in different areas of energy production, present and future. It is partly a function of the ‘marketisation’ of contemporary thinking – people are more likely to calculate the value of things in real time.

Dispute resolvers have partially come to terms with the intertemporal utility function with clients often over-valuing current financial outcomes even where later settlements would involve a greater quantum. For this reason experienced mediators do not over-do their ‘litigation misery’ speeches as clients cannot, in real time, project their current expectations and feelings into a future which could be two years away. Dispute resolvers are also familiar with the ‘time-value’ of money and the ‘endowment effect’ and how these can distort parties’ decision-making in negotiations. Needless to say time factors are easier to address in discrete dispute resolution events than in the clamour of national elections.

Style and Trust

People are influenced by those who are likeable and personable and show kinship with those they are attempting to influence. Conversely, they are less impressed by those who seem remote, wordy and abstract in their communication styles. Politicians are not exactly in a highly-trusted profession, like those who protect and rescue (think nurses and ambos) but everything is relative and protective and empathic language can well lead to respect, then trust. As the politico Napoleon advised, ‘…it’s not what’s true that counts but what people think is true’, and ‘affinity truth’ is a function of the style and perceived trustfulness of communicators. ‘In-group vs out-group’ thinking reinforces notions of trust and distrust in the political domain – the rise of tribal politics aggravates antipathy toward the Other, as was evident in warrior electoral rhetoric (and sense of relief once it was over).

Dispute resolvers are aware of the need to establish trusting relationships with clients, and of how easy it is for trust to be lost. Trust in mediators and mediation procedures by each side provides a bridge between parties who distrust each other. However some features of dispute resolution processes could have trust-defeating effects, particularly the use of shuttle meetings and avoidance of direct contact among parties. This tendency in some dispute resolution cultures enhances the ‘in-group/out-group’ syndrome experienced in contemporary politics. There are probably still lessons to be learned in this department by open-minded dispute resolvers.   resolvers

DR Teaches About Elections, Elections about DR

There are many moveable parts in popular elections, some operating at conscious levels and others motivating electors unconsciously. No simple reduction can be made about why electors decide and choose in particular ways. However the cognitive and social biases and other heuristics referred to in this piece emphasise the non-deterministic nature of human decision-making in both electoral and dispute resolution circumstances. Needless to say some of these factors coincide with one another and others are mutually inconsistent but elections provide evidence of the expanding knowledge base required in the dispute resolution disciplines.  And dispute resolvers have a significant knowledge bases, experiences and techniques to contribute to the understanding of political behaviour, particular in relation to the effects of biases and emotions in human decision-making. At the end of the day homo politico and homo disputatio might not be not that far removed.

That declaration: in the recent federal election the author worked for Getup in Warringah and for the Greens in Macpherson.

Laurence Boulle is Director of Independent Mediation Services Pty Ltd and Belle Wiese Professor of Legal Ethics at Newcastle Law School. He is grateful to Tony Spencer-Smith for insightful observations on a first draft.

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Mediation, Mediator, Mediation – Part III

Part III of Greg Rooney’s three part series.  Part II is available here 

There is much of the Newtonian thinking underpinning those promoting the dispute resolution (DR) product.  This can be seen in Boulle and Field’s recent blogs [1]where they connect measurement with understanding, a classic Newtonian concept. For example ,Boulle and Field propose that it is only by evaluation and measurement that the legitimacy and credibility of mediation can be assessed. This is based on the Newtonian concept that the world is ordered and that if enough research is done and a full understanding of a situation is achieved then the future can then be predicted.

The challenge to this Newtonian view of the world can be seen in the replication movement in which many of the significant social science experiments of the past are being repeated with vastly different results from the original conclusions.[2] This is because nothing is repeatable in a complex environment. It has thrown into doubt the validity of much of the so-called evidence-based research and observational case studies carried out in the social science field. This has become a significant problem for academia.

The Newtonian view of the world has been superseded by modern physics; particularly, the laws of thermodynamics and the emerging awareness of quantum physics. These offer far better explanations of what is happening and more importantly why the world has changed so much.

The laws of thermodynamics hold the best scientific explanation of the disruptive world we live in.  Thermodynamics is a branch of physics that is the study of systems. The first law of thermodynamics is that nothing is created or destroyed; it simply changes form.  The second law of thermodynamics asserts that this change is always in the direction of decay and that all natural processes lead to an overall increase in disorder. It is why human beings, and nature in general, cannot reverse the ageing process.

As this change occurs nothing is lost or destroyed. It is simply reconstituted in another form which then becomes the new paradigm, before it too starts to decay. Disruption is therefore a normal part of reality rather than the ordered Newtonian view of the world that existed pre-2007.

The emerging understanding of quantum physics also impacts on our understanding of the complex world we now inhabit.  It is a branch of physics which is highly uncertain and interconnected and where change occurs depending on the position of the observer. It breaks down the Newtonian link between cause and effect.

The answer to what will happen in the future in a complex environment cannot be found through analytical thinking. Outcomes cannot be predicted because in a complex environment every element is interconnected and constantly co-constrain each other. It evolves in random by constant modification never in the same way twice.  Therefore we can only understand what is happening in retrospect. Because no two contexts are the same it is impossible to forecast or predict what will happen. Joining the dots in advance is an illusion.

This is a significant challenge for academia and theorists.

Conclusion

So tomorrow morning the traditional ‘process’ (non-evaluative) mediators will again go off to work where they will try to remain totally present in the moment to observe the dynamics of the interaction between the parties.  They will probe first and then sense and respond to the reaction and they will try and suspend any attachment to their memories, desires and the need to understand what is happening and will try and not be deterred by blockages and impasses.  They will allow their intuition to guide them through the session rather than letting the mechanical side of their brain be the master.[3]

These are the same soft skills that leaders and managers in the commercial world need to use to manage the flow of networks between people in the way that allows for the safe space for minority views, diverging opinions, conflict and internal disruption to emerge. They require a higher state of alertness and the ability to provide a real-time response to emerging patterns and behaviours. This is the best pathway to creating strategic surprises and opportunities.

For the legal community in general and the ‘dispute resolvers’ in particular, the answer to restoring value for the legal product in the new economy is not to push aside or try to diminish the traditional mediation movement but to embrace it, and welcome it as the path to acquire the necessary soft skills to constructively engage with the fluidity, ambiguity and complexity of the new age.

I therefore suggest that rumours of the death of mediation and the significant role of the traditional process mediator are greatly exaggerated.

____________________________________________________________________________________________

[1] Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes. Posted on 24/08/2018 by Dr Rachael Field excerpts from Laurence Boulle and Rachael Field, from Mediation in Australia (LexisNexis, 2018)

[2] https://www.nature.com/articles/d41586-018-06075-z

[3] Mc Gilchrist, I. The Master and His Emissary, 2009, Yale University Press.

 

Greg Rooney has been a mediator in private practice in Australia for 27 years and has since 1995 taught mediation and allied ADR subjects in a number of universities and private institutions in Australia and internationally. Greg has over the last 14 years mediated over 200 face-to-face meetings between religious leaders and individual victims of sexual abuse within a number of Christian religious institutions in Australia as well as abuse within the Australian Defence Force and the South Australian Police Force. Greg, together with colleagues Margaret Ross and Barbara Wilson, have since 2012 run an annual Mediation Retreat in Tuscany, Italy.  www.gregrooney.com.au

Many thanks to Greg for his inspiring and thought-provoking posts this month.

Mediation, Mediator, Mediation – PART II

Greg Rooney

(Part II of Greg’s blog following from last week’s Part I)

In response to the challenge of trying to provide value to the new collaborative economy the legal profession has sought to rebrand itself to try to recover commercial relevance. It has looked to the trusted mediation movement as its path to restoring that lost trust. The legal profession has sought to rebadge itself by dumping the designation “litigators” and replacing it with “Dispute Resolvers” (DR) now with lofty ideals:

“Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.” (Boulle and Field) (1)

It is ironic that the long-term criticism of traditional mediation by the legal profession has been that it is too ‘touchy-feely’ and into “healing, wholeness, harmony and optimal human functioning” the very thing that it is now trying to champion DR as.

The proponents of the DR push have gone much further than a simple rebranding exercise. They have chosen to question and diminish the intent and identity of the traditional mediation movement.

Firstly, Boulle and Field (1) suggest that despite mediation’s versatility and diversity of applications it is not clear how mediation will respond to the challenges ahead. Secondly, they suggest it follows that this uncertainty for the future somehow renders mediation vulnerable to being subverted, rejected and replaced or modified beyond recognition.  They then conclude that because of this uncertainty for the future we should not pine for or have nostalgic sentiment for mediation’s (presumably lost or invalid) original intent and identity.

The real intent of the Dispute Resolution movement is revealed by the assertion that:

“It will be necessary to use research to ensure that if evaluative mediation becomes the normative approach, as well it might, that quality-control and ethical frameworks exist to prevent rogue mediators making de facto determinations.”  (Highlights inserted) Boulle and Field (1)

The recent Global Pound conferences were essentially a public relations exercise to pursue this end. It is the promotion of evaluative mediation and allied semi-determinative processes as the pre-eminent conflict resolution process by, in part, commandeering the high value of mediation in the eyes of the community. I am not sure the commercial world is buying this makeover, particularly when it still built on an adversarial solution focused culture that is not in harmony with modern economic drivers.

I would argue that the traditional non-evaluative ‘process’ approach to mediation is far more in tune with the modern collaborative economy. It is an experiential approach which gives the parties the time and space to step back and allow patterns to emerge. The mediator can sense and respond to these patterns.  This creates the potential for new opportunities to emerge out of the interaction that can lead to innovation and creativity. It can help repair disrupted trust which is the central foundation of the modern economy. It is mediating for the emergence of the new rather than providing an evaluation of the parties’ respective positions in order to close the gap.

The core facilitative skills that mediators acquire through the practice of sensing and responding to the immediacy of the moment equip them with the exact soft skills that the commercial world needs to manage in this complex environment. This is reflected in the fact that most MBA courses run throughout Australia have now been redesigned to incorporate soft skills as a core component of their coursework. Further, the big four accounting firms have created legal departments based on a collaborative non-litigious approach to providing legal expertise.

  1. Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes  Posted on 24/08/2018 by Dr Rachael Field.  Excerpts from Laurence Boulle and Rachael Field, from Mediation in Australia (LexisNexis, 2018)

(This is Part II of Greg’s three part series.)

Greg Rooney has been a mediator in private practice in Australia for 27 years and has since 1995 taught mediation and allied ADR subjects in a number of universities and private institutions in Australia and internationally. Greg has over the last 14 years mediated over 200 face-to-face meetings between religious leaders and individual victims of sexual abuse within a number of Christian religious institutions in Australia as well as abuse within the Australian Defence Force and the South Australian Police Force. Greg, together with colleagues Margaret Ross and Barbara Wilson, have since 2012 run an annual Mediation Retreat in Tuscany, Italy.  www.gregrooney.com.au

Mediation, Mediator, Mediation – PART 1

by Greg Rooney

Greg Rooney Portrait 0686Mediation has an identity issue – but it’s not its fault.

Mediators – and the profession they practise called mediation – merely sit as innocent bystanders observing how the modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established professions and commercial and social institutions.

We now live in a time where a world of connectivity and fluidity has replaced the 20th– century Newtonian concepts that are linear, predictable and deterministic.  This is a world driven by the rise of the World Wide Web in 1990, powered by the Google search engine in 1996 and the power of social networking starting with Facebook in 2004.

The world dramatically changed again in 2007 when Napster introduced the first sharing platform heralding the beginning of the collaborative sharing economy.  Then came Airbnb and Uber, both in 2008.  We now have transparent and open data networks that are available free of charge to anyone with an Internet connection.

The latest iteration in this change is the development of the ‘Internet of Things’ which is a network of physical devices, including vehicles, home appliances and other items embedded with electronics, software, sensors, actuators and connectivity, which enables these things to connect with each other and exchange data. As an example Uber’s computers share traffic data with Google Maps computers.

The complexity caused by this connectivity has upended the Newtonian concept that the world is ordered and measurable and that having knowledge of the past will allow a computation of the future.  Many organisations and professions, including the legal profession, still rely on a fixed Newtonian view of the world and wonder why they are being disrupted to their detriment.

The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours.  The sharing economy relies on the willingness of users to be trustworthy and to trust each other.  The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.

We therefore require a new way of thinking and operating that can work with this complexity.

This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s.  They will work with the uncertainties of the conflict they are mediating and hopefully come up with ‘good enough’ resolutions.  They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These ‘soft’ skills are now in high demand in the commercial world.

It is the established professions and the commercial and social institutions that are having the identity crisis. They are in a scramble to find meaning and understanding to try to fit in with this new reality.

No profession is more under threat from this new world order than the legal profession.

Since the 1980s it has moved from being a trusted profession based on the application of scale costs, which moderated the profession’s financial self-interest, to a commercial business model built on time costing to maximise dollar return through promoting (litigation finance) and extending disputes by means of the adversarial culture. The problem is not so much the high legal fees, although it is an issue, it is the pursuit of the adversarial approach to drive those extra fees. This keeps their clients stuck in the conflict zone far longer than is commercially necessary. This has turned out to be a huge self-inflicted wound.

It has left the profession exposed and unprepared for the arrival of the open sharing economy built on trust and maintained by the soft skills of managers and their advisors.

This is Part I of a three part series by Greg

What’s in a frame? Power, control and desire in the experience of family mediation.

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We bring our readers another blog post, written by Assoc Prof Jill Howieson. The post is version of paper presented at the just concluded ADR Research Network Roundtable, 4 -5- December 2017 #ADRRN2017. Happy reading!

“By the tragic gap I mean the gap between the hard realities around us and what we know is possible — not because we wish it were so, but because we’ve seen it with our own eyes.” —Parker J. Palmer

In 2011, I wrote on the Kluwer Mediation blog. I wrote about the same transcripts from the family mediations that I have analysed for this paper. In 2011, I wrote that I was reading about desire in these transcripts. I had returned to my 1985 language, literature and culture textbook, Modern Literary Theory, and to psychoanalytic and linguistic theories to try to understand what I was reading.

I was drawn particularly to Lacan and Foucault, and their analysis of language. A few years on and Parker J Palmer captivates me with his notion of the tragic gap –“the gap between the hard realities around us and what we know is possible.

Now these concepts converge. Jacques Lacan’s lack, or the “endless chain of signifiers” that we use in pursuit of a ‘real’ satisfaction or desire; Michel Foucault’s recognisable objects (or hierarchies) of importance, and the practices that derive from them that we create to uphold power; and Parker J Palmer’s tension gap, where we “faithfully hold the tension between reality and possibility.” These are all concepts that can inform our understandings about mediation.

Firstly, I wondered if we as mediators do not ‘faithfully hold the tension’; namely, the tension between what parties say they want and what they desire. The present analyses of the transcripts suggests that mediators can create tight frames for their mediation discourses and thereby impose a control on the parties’ language, and thus on their needs and desires – or at least their acknowledgement of their needs and desires.

The Foucauldian analysis alerted us to the power that mediators can create through their language. It showed that a mediator’s language could create recognisable objects or hierarchies of importance, which has the effect of elevating these objects and giving them power. The mediators in the study were able to elevate the status of various ‘objects’ including the notion of ‘good parents’ who will compromise and come to agreements, and parents who displayed calm rational ways of disputing or negotiating through their choice of words. By elevating these objects, the mediators could control the practices that flowed from them. For instance, where the mediators accorded importance to the notion of ‘good parents’ and excluded ‘naughty parents’ from the discourse, this empowered the mediators to push the ‘naughty parents’ into attending child-focussed sessions.

Further, with their language, the mediators seemed to create frameworks for the mediation that would cause the parties to work within those discoursal frames.  Through a repetition of Court-focused words, the mediators created court-focused frames, which had the effect of creating fear in the parties and empowered the mediators to push for agreement (to keep the parties out of court).  The parties would follow the mediator’s language and tailor their conversation to suit regardless of whether this was where they wanted to go or not. For instance, a discoursal frame of court had the result of moving the parties towards plans and agreements, and took them away from their ‘real’ fears and desires.

Further, the results revealed that mediators would listen according to their mediation orientation. If mediators worked within a settlement orientated frame, then they would listen for agreements or signals that might lead to agreements and use interventions to suit, such as writing options on the whiteboard and recording agreements.  On the other hand, mediators working within a ‘best interests of the child’ framework would listen for examples about the child’s perspective and how the children might be experiencing the separation, and then choose child-focussed interventions to encourage the parents to think of themselves as parents rather than as disputants.

Essentially, it seemed that despite their best intentions, the mediators would often miss the real desires of the parties and/or ignore the power discourse that they were creating as they pushed towards certain outcomes rather than sitting in the process tension of possibility.

According to Lacan, needs, if left unattended (or are reframed), do not disappear but turn into desire. In 2011, I asked what language in mediation do we have to address the parties’ unmet needs and desires. Now, I ask, how do we even hear these desires and needs when we mask them so well with our own desires for outcomes?

If we want to hear the desires of the parties (and I am not saying that all mediators do) then we need to begin to listen differently. We need to listen for the structures of desire in mediation that tell us what it is that the parties crave. We need to sit in the process-outcome tension and listen to the repetitions; the patterns and the experience of the parties so that they can access their true selves and their true desires, and then tell us what these are if they need to.

The Lacanian analysis revealed that the parties would often repeat words or patterns of words that would give ideas about their desires:

  • their attachment desires (I haven’t found someone worth living with and having my children involved with; I don’t live with somebody that helps me share my rent, helps me share my bills).
  • desire to be a good parent or better person (But that will change in the next … probably ten weeks…that will change), or
  • a desire to give the children what they perceived they needed (I’ve always said to M and to a mediator that assessed me …They’re four boys. They need their dad).

 

These examples of repetition occurred within conversations about which school the children would go to and who would pay for the children’s after-school sport activities—they were not so easily identifiable as desires.

So, what do parties say as they seek attachment to calm their unattached selves, or calmness to keep their selves intact in the chaos of conflict? What hidden desires does their language conceal? In the transcripts, there were prolonged, sometimes nonsensical discussions about the location, denomination and even the principal of the children’s schools—signifiers perhaps? There were discussions about the children’s dental plan or child payments —masquerading as desires for closure and the ‘gestalt’ perhaps?

We can never really know, but we can guess. We can sit in the tension gap of the unfolding of meanings and the ongoing and reflexive nature of mediation. The research shows that mediators tend to focus on the agreements more so than the parties do. The parties’ conversations tended more towards an articulation of what they were experiencing rather than towards concrete agreements.  We could look at the relationship between language, outcomes and experience more closely.  As Parker J Palmer writes, tension in life is ‘inevitable, inexorable, [and] inescapable’.  We could use this tension and assist the parties to make meaning out of their situations, actions and desires; to move from the jumble of conflict – the chaos – to the destination of desire, or at least understanding their desire; to make meaning in the disorganised realm, whether of experience or thought, and sort this out into an understanding of needs.

But, what mediation language do we use? What do we use as signifiers? And what desire is repressed as we substitute our language of desire for the language of courts, or child development or parties’ needs?

In 2011, I wondered whether, in every mediation, we were selling ourselves short. I wondered whether, with our future focus, our discourse of agreement, as we shape and mould, whether we were trying to camouflage that which is continually trying to show itself – our gaps, our cracks, our ugliness, our humanity, our beauty, our desires! I think in 2017, the answer might be a resounding yes.