About Dr John Woodward

Associate Lecturer at the University of Newcastle, PhD in lawyers' engagement with court-connected mediation. Practicing lawyer, mediator, and arbitrator for the Local Court of NSW.

Restorative Justice – Another Dimension

brass colored and black table decor

Photo by Anthony Acosta on Pexels.com

In his recent autobiographical work The Pursuit of Justice[1] former NSW District Court Judge, Michael Finnane QC gives a rather frank account of his experiences as a judge and provides a rare insight into the thought processes which go through the mind of a judge in sentencing offenders in NSW.  A recurring theme throughout the book is the constant frustration that he felt as a judge at the limited options available to him for dealing with problems which, although presented in the cloak of criminal conduct deserving of denunciation and punishment, were really much more about how our society deals with the inequities of health, education, poverty and social disadvantage.  One chapter of the book recounts numerous tragic stories of serious crime committed by people who lived in appalling circumstances, many of them clearly without any insight into the gravity of the conduct in which they had engaged or the effect that it had on others in the community around them.  The author concludes the chapter by saying:

“These stories highlight a problem in our society in New South Wales that there are no proper mental institutions which provide accommodation, care and treatment for people with severe mental disorders.  Many of these people, because of their disorders, cannot look after themselves, cannot manage money, run out of funds and then resort to crime just to stay alive.  Some are lucky enough to get support from generous people in the community, but many of them have no friends or family.”

Similar concerns have been expressed by other members of the judiciary and magistrates.  A recent interview with a Children’s Court Magistrate revealed similar concerns about the problem of charging children with criminal offences in relation to inappropriate sexual behaviour arising out of school yard romances or dysfunctional family relationships.

It seems that there is a large gap between the truly malevolent conduct of the determined criminal and the behaviour of normally functioning, well-balanced and productive members of society.  Into that broad gap fall a large number of people who are affected by poverty, illness, disability and maladjustment and find themselves before the courts charged with criminal offences because, for too long, they have struggled without assistance or without adequate assistance to combat these problems which are not of their own making and, in the end, have committed crimes that, in some cases might have been entirely preventable had they received appropriate assistance in a timely manner.  Too often the sentencing remarks of judges include a sad recital of tragic personal backgrounds and a litany of handicaps that would challenge the most robust citizens in society.

All too frequently media reports of serious and spectacular crime are met with calls for harsher penalties and there are politically opportunistic promises to crack down on crime and make “law and order” an issue at the next election.  Such rhetoric makes many false assumptions.  It assumes that all members of society have equal access to opportunity, resources, health, education, disability support and the support of a loving family network (the equity assumption).  It assumes that all offenders make rational, considered and pre-meditated decisions to commit crime (the criminal intent assumption) and, most of all, it assumes that there is a direct and proportionate relationship between the harshness of the penalty and recidivism (the penalty assumption).  None of these assumptions is correct.

As to the equity assumption, the Bureau of Crime Statistics and Research (BOCSAR) evidence discloses that, for the period from April 2018 to March 2019 the rate of non-domestic assaults within the Sydney city area and the inner western suburbs area to Beaconsfield were greater than 566 per 100,000 of population but reduced to less than 166 per 100,000 in the lower north shore and around Belleview Hill, Dover Heights and Vaucluse.  A map depicting the incidents of assaults per 100,000 of population is shown below.

Figure 1

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Image source: NSW Bureau of Crime Statistics and Research (BOSCAR)

Of course the evidence is only as to one type of crime and there are other weaknesses with the use of this map including the assumptions about the affluence of Sydney’s inner west and the lower north shore.  However, the map does give some indication of the prevalence of that crime in a small though densely populated part of NSW.

As to the criminal intent assumption the statistical evidence is more difficult to establish.  It is interesting to note, however, that invariably the official reports of judgments handed down in the Criminal Law List of Common Law Division of the Supreme Court of NSW contain harrowing narratives of the kind described by Finnane in his book.

As to the penalty assumption the BOCSAR evidence is that the recidivism rate for non-custodial penalties is about 20% for adults and between 42% and 44% for juveniles as set out in the following table.

​2015 ​2016 2017
​Adults 20.3% 20.8% 20.6%
Juveniles 44.6% 42.0% 44.3%

Table 1

By contrast the recidivism rate for offenders who have been incarcerated is around 39% to 40% for adults and as high as 64% for juveniles as illustrated in the following table.

 

​2015 ​2016 2017
​Adults 39.8% 39.4% 40.7%
Juveniles 63.4% 63.4% 64.4%

Table 2

Two questions arise from this story.  Firstly, why does any of this matter to a community of ADR researchers and, secondly, if it does matter, what can be done to address these problems?

Dealing with the first question first, it seems entirely plausible that our attention to restorative justice and restorative practices in modern dispute resolution discourse may as well focus on addressing the root causes of criminal and anti-social behaviour in the broader context in addition to the immediately presenting problem of reconciling a victim to an offender in the form of victim-offender mediation or conferencing or circles or other restorative practices of the kind advocated by King, Freiberg, Batagol and Hyams in the book  Non-Adversarial Justice (Federation Press 2009).     Every victim-offender mediation which succeeds in making a victim feel even slightly better or does something to restore their lost dignity or restore them to their former position is a good thing.  How much better a place the world would be if we were able to extend restorative principles to encourage improvement in health, education and social welfare in order to remove the occasion for criminal delinquency and promote a healthier, better informed and better resourced society which reflected upon its failings and was more active in restoring equity to those who stumbled because they were unable to keep up.

The second question is how we deal with these problems.  Undoubtedly this is a much more complex and difficult question to answer and one which would occupy more space than be accommodated in this post.  In the first instant, we as academics and researchers can do much to educate the broader community both about the myths surrounding the causes of crime and anti-social behaviour and about the benefits to be gained by considering issues of crime and anti-social behaviour holistically and from an integrative perspective so that all of the causative influences are brought to account.  At some point the penny has to drop that increasing crime rates are not just about more socially unacceptable behaviour by more individual people.  They represented a systemic failure of society to provide more appropriate resources and funding to address these problems.

Secondly, we need to persuade governments that there should be a proper level of investment into the health, education, training and useful employment of people who are incarcerated.  In short, this means a proper level of investment into corrective services.  Those invested with the management of corrective services should understand that recidivism is a failure of the system – not a failure of the individual.  There is an abundance of evidence from abroad that a more enlightened approach to corrective services produces better results.    As an example, by comparison with the recidivism rates reported above, Norway, which boasts the most advanced corrective services system in the world, has a recidivism rate of 20%, about half that of NSW and less than one third of that reported in the USA which reports a recidivism rate of 68%.

Guided by a “Principle of Normality” under which imprisonment is regarded as deprivation of liberty but nothing more, life inside prison is designed to be as close as possible to life outside.  Prison officers are educated in a range of disciplines including social welfare and psychology.  Prisoners are taught a range of skills to assist them in their rehabilitation and receive vocational training to assist with employment prospects.

These principles bear some resemblance to those advocated by Justice Nagle in the NSW Royal Commission into Prisons when he said:   ”People are sent to prison as punishment, not for punishment.”  Norwegians cast their tactical approach to incarceration as a “good neighbour policy” – treat people like dirt and they will become dirt.  Treat them like human beings and they will act like human beings.

These principles are also consonant with the principles advocated by the Restorative Justice movement which is gaining strong momentum in the City of Newcastle NSW.  In a recent article by Professor John Anderson and Dr Nicola Ross of the University of Newcastle, the authors said:

“Restorative cities implement interdisciplinary restorative practices and restorative justice measures across a range of systems including education, justice, welfare, child protection and health to achieve positive results for residents, particularly the most vulnerable members of the community such as children and youth. Ultimately these cities are working towards and achieving a transformational change in culture and the social fabric of their cities using mediations, conferences and relationship-building exercises to encourage the resolution of disputes and disagreements through productive communication, to address inappropriate and harmful behaviours and to create community wellbeing in a caring and inclusive culture.”  (J Anderson and N Ross A Restorative City for NSW – Could Newcastle be a Model? (2018) 27 JJA 74)

 

If even some of these objectives could be achieved, there would be cause for great optimism that many of the matters of which Judge Finnane complained might be removed from the criminal law landscape in New South Wales.  It is to be hoped that this will be so.

[1] M Finnane The Pursuit of Justice (New Holland Publishers 2018)

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Living in the Age of Rhetoric – Challenges for mediators

The term “rhetoric” has changed its meaning over time. According to the Oxford English Dictionary it has its origins in Greek antiquity and was defined by Aristotle to mean: the faculty of observing in any given case the available means of persuasion” and since the mastery of art was necessary for victory in a case at law or for passage of proposals in the assembly or for fame as a speaker in civil ceremonies, he called it “a combination of the science of logic and of the ethical branch of politics.” Rhetoric typically provided heuristics for understanding, discovering, and developing arguments for particular situations, such as Aritstotle’s three persuasive audience appeals: logos, pathos and ethos. the five canons of rhetoric of phases of developing a persuasive speech were first codified in classical Rome: invention, arrangement, style, memory and delivery.

In modern usage, the word “rhetoric” has come to mean language designed to have a persuasive or impressive effect, but which is often regarded as lacking in sincerity or meaningful content. The Oxford English Dictionary uses the example: “All we hear from the opposition is meaningless rhetoric.” It is in this latter context that the the word is used in this post.

The problem of rhetoric in dispute resolution discourse was encapsulated in a recent story which appeared in the morning media of 19th July 2019, when it was reported that residents have been prevented from occupying a fourth Sydney apartment building because of safety concerns with respect to toxic substances on the land including heavy metals, hydrocarbons, asbestos and contaminated ground water. the problem, according to a City of Sydney spokesperson, is that the developer had not complied with the conditions of the development consent requiring it to remediate the site before commencing construction work. The Council understands that this is “…a most frustrating situation for all terrace and apartment owners.”

The developer’s website marketing material claims that the property comprises “…amongst the most desirable residences ever to grace (the suburb’s) leafy village streets” and that (the Company) enjoys “…a strong reputation in all facets of property development” established over the past 15 years describing this as its “flagship” project. To consumers who continue to live in rented premises, have their goods and furniture in storage and have extended their mortgages while they await completion of their new homes, this is no doubt all rhetoric which serves only to rub salt into the wound and inflame hostilities.

To exacerbate matters it appears that, in answer to complaints about the long delays in completing the project (now fifteen months overdue for completion), the developer had misrepresented that the cause of the delay was due to “unforeseen planning issues” without disclosing the truth that it had failed to remediate the contaminated soil prior to commencing consruction as the Council required.

This scenario exemplifies what appears to be a burgeoning problem in the exchange between those who have been aggrieved and those who aggrieve them. It is the abandonment of good will and accountability in favour of baseless, meaningless weasel words euphemistically described in contract litigation as “puffery.” It is a feature of this manner of communication that, whilst superficially it seems to offer everything, in substance it promises nothing and anything that it does promise can never be measured so that no obligation is actually created.

In the building development story recited above, the developer issued a statement saying that it was “…working with Council to ensure that buyers could begin enjoying their new homes as soon as possible…” Farm from providing any measure of comfort to consumers, this language serves only to generate added hostility and further inflame the conflict. It is, as Don Watson said in his book Death Sentence: The Decay of Public Language (Random House 2003) “the superb indifference that the powerful have for the weak.”

In mediation discourse the language of rhetoric is resistant, non-commital and dangerous and puts the mediator on notice of an absence of good will or a poor approach to integrity based negotiations or both of these factors.

The language of rhetoric is sometimes expressed in terms of vague generalities from disputants who make offers that are contingent on external events over which they have no control. “Perhaps we could do something like that but it would depend on what our insurers say…” or “We acknowledge that there has been a breakdown in the system and we will be investigating it fully.” The message that is conveyed in all these situations is that there is nothing specific which can be done and the respondents to the claim just need a little more time to think how to escape the dilemma without being held accountable.

In my PhD research there was a hint of complaint, mainly from lawyers, who spoke of receiving instructions to formalise agreements made at mediation which were incapable of enforcement because they lacked precision or were contingent and featured vague promises that were unclear as to their content or as to the manner and timing of their implementation. In some cases the mediator had simply noted the general nature of the “agreement” without sufficiently reality checking the strength of the arrangements with the parties to ensure that they were satisfied that they had an enforceable agreement. In one case a research respondent reported that a mediator had just torn off the printed strip containing the electronic whiteboard notes and provided a copy to each of the parties as evidence of the agreement. Of course, this is not to suggest that mediation agreements must always be enforceable. That, however, is a decision which should be made positively and advisedly.

It is unclear at the time of writing this post whether there hs been research into this area of disputant behaviour. However, it seems that, at least anecdotally, there is an increasing prevalence of the use of rhetoric in response to legitimate consumer complaints and that DR practitioners and theorists could benefit by considering this as a topic for further research.

Mediation in Chains #ADRRN18

This post celebrates the second day of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account.

We live posted this blog today.

John will be presenting a paper in the topic of this blog post today.

Party self-determination has traditionally been valued as a core fundamental element of mediation.  Under this vision, it was assumed that parties would be the principal actors in mediations to resolve their disputes, that they would actively and directly participate in communication and negotiation, that they would choose and control the substantive norms to guide the process of their decision making, that they would create the options for settlement and that they would control the final decision as to whether or not to settle the dispute.[1]

chains

Mediation in chains: photo courtesy Jev55 CC BY-NC 2.0

As mediation has developed and become integrated with the traditional justice system as a dispute resolution option, the emphasis on self-determination has diminished somewhat in the context of conversations around what the law would do and how the dispute would be resolved at court.  This is an understandable response because, as mediation theory recognizes, one of the significant empowering elements of any mediation is to calculate the best alternative to a negotiated answer (BATNA).  In the context of a court-connected mediation that consideration obviously includes the possibility that if the dispute is not resolved by agreement, it will be determined by a court, a fact of life which cannot be ignored.

This trend of diminishing emphasis on self-determination prompted Harvard Professor Nancy Welsh to question whether we should consider redefining the notion of self-determination and to recognize that evaluative mediation is becoming more accepted in the court-connected context where, inevitably, lawyers will have a greater role in advising their clients and recommending a settlement that aligns with what the courts would order if the dispute is not resolved at mediation.  Welsh’s solution was to suggest that the effects of what she calls “muscle mediation”[2] might be ameliorated if we modified the current existing presumptions about the finality of mediation and imposed a mandatory three day “cooling off” period during which any of the mediating parties would be free to opt out of the mediation agreement.

Empirical evidence gathered in the form of personal interviews with litigation lawyers in New South Wales in 2016-2017 has confirmed the existence of a trend away from disputant self-determination in court-connected mediation and a tendency for lawyers to take control of mediation sessions and to discourage disputant participation and, in some cases, to refuse to allow their clients to speak at all during mediation sessions.

It is also evidenced by the return of lawyers to mediation events, the persistence in using adversarial language and terminology in mediations and the preference among lawyers for the selection of retired judges or senior counsel as mediators in their clients’ disputes.  The research revealed that it is quite common for disputing parties to attend mediation events accompanied by both solicitors and barristers and to be prepared to say nothing unless questioned by their own legal representatives.

In a forum which is designed to focus attention on parties’ joint interests and consensus building, it is common for lawyers to “open” by reading “position statements” which, contrary to the spirit of mediation, traverse the legal issues, to declare their clients’ superior positions and then go on to announce magnanimously that they are “here today to compromise and to settle the case.”

Unsurprisingly, in mediations where this is a typical scenario, the parties then separate into break-off rooms and the mediation continues as a shuttle mediation where negotiations proceed on a zero-dollar basis and end up somewhere in the middle.

The research revealed that these behaviours are prompted by lawyer persistence in clinging to a defensive posture where nothing is given away and no concessions are made except for a pre-considered and planned purpose.

As mediator respondents to the research pointed out, this runs contrary to the principles of integrative bargaining and consensus building which are valued by mediation theory.  It does nothing to  “…allow a full and frank discussion about what is going on for the parties.” [3]

The research also revealed that lawyers give very little thought to the choice of a mediator, very little advice to their clients about what to expect in mediation or how to prepare for it, and little or no thought to anything which might be regarded as extraneous to the legal case (the non-legal factors).[4]  Mediation is therefore presented to the disputant in a rather negative way as being a last ditch effort to achieve an outcome without having to go to the trouble and expense of actually proving the case in court (or the risk of having it proved against you, as the case may be).

The problem for mediation advocates is that, whether we like it or not, lawyers will continue to have a dominant role in advising their clients about the wisdom of court-connected mediation, its forms and processes, its benefits and shortcomings. They are gatekeepers[5] and their views of mediation will continue to influence consumers of legal services whose perceptions of mediation will be viewed through the prism of their lawyers’ advice.

We know from the researches of sociology that lawyer attitudes about disputant participation play a substantial role in determining both the attitudes of their clients to mediation and the likelihood of its success.  In 1986, Carnevale and Isen established by experiment that research respondents encouraged by “positive affect” responded more favourably to bilateral negotiation, achieved better outcomes and were more committed to outcomes than were those who were not encouraged or who were primed with “negative affect.”[6]

If lawyers speak indifferently, or even disparagingly, of mediation then, even when it is ordered by a court or mandated by regulation, the mediation experience is likely to be diminished for the disputants.  If, on the other hand, lawyers speak positively about mediation and advocate its integrative nature and expansive opportunities for dispute resolution, then the process and the disputants’ mediation experience will be enhanced.

The challenge for us as mediators is to encourage co-operative behaviours and to honour the value of disputant dialogue and active participation in mediations.  The challenge for us as educators is to  ensure that there is ongoing access to appropriate educational opportunities for lawyers who are in litigation practice.  If we are not able to achieve those objectives, court-connected mediation will to a large extent remain mediation in chains.

[1] N Welsh The Thinning Vision of Self-Determination in Court-connected Mediation: the Inevitable Price of Institutionalization? 6 Harv Negot L Rev 1 2001

[2] Ibid p 7

[3] R33 mediator respondent to the research

[4] S Hardy and O Rundle Mediation for Lawyers (CCH 2010) 117

[5] J Dewar Family Law and its Discontents (2000) 14 International Jnl of Law, Policy and the Family 59 at 76; G Dimopoulos Gateways, Gatekeepers or Guiding Hands: The relationship between Family Relationship Centres and legal practitioners in court management and court process (2010) 24 Australian Journal of Family Law 176; F Donohue Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes  (Dissertation in partial fulfilment for the degree of PhD, University of California, 1997)

[6] P Carnevale and A Isen The Influence of Positive Affect and Visual Access on the Discovery of Integrative Solutions in Bilateral Negotiation Organizational Behaviour and Human Decision Processes 37, I- 13 (1986) at p 7

 

Are we nearly there yet? Reflections on the HDR journey

As we move towards the middle of this my fourth year of PhD candidature, my thesis submission date is drawing rapidly nigh and the anxiety level is elevated a notch,  I thought it might be useful to reflect on the journey thus far and to share with you some of the highlights and low points of the journey although, thankfully, of the latter there is little to report.

child drawing

Image: ‘Child Drawing’ by The Naked Ape, Creative Commons, CC BY-NC-ND 2.0

I think it is fair to say that the journey may never have commenced at all, had it not been for the blindingly obvious conclusion after thirty years of legal practice as a commercial litigator, that the solutions being offered to litigants by the traditional justice system were somewhat less than ideal.  Clients were complaining that the court could not offer the relief they were seeking, the costs of “winning” were prohibitively high and most of the cases in which I was instructed were resolved on some basis well before they reached a hearing.  Try as I might, I could never quite be convinced of the claim that the public interest in having the courts “…explicate and give force to the values embodied in authoritative texts…” (1) or otherwise declare the law for the benefit of the public good, had any real relevance to some of the mundane and routine cases in which I was involved.  In fact, of all of the hundreds of cases in which I acted throughout my career as a lawyer, only two found their way into the law reports.

And so it was that, armed with the vision of a broader view of justice and a transcript of my Masters in Dispute Resolution, I arrived at the academy with a request to be admitted to the RHD program.  It is worth noting at this juncture that the welcoming and supportive culture of the academic community generally and my academic supervisors especially, has been nothing short of outstanding and I believe it is a tribute to their encouragement and support that I have persevered this far.

I am happy to say that my first year of candidature was both vigorous and productive.  Together with my colleague Armin Alimardani I represented the Faculty of Law at UNSW in the Three Minute Thesis competition where we both performed without distinction but were grateful for the experience.  The formulation of an appropriate research question, the preparation of a proposal and writing of a literature review  occupied most of the year and did much to clear my thoughts about the path that lay ahead.  I was delighted to discover that others had trodden the path I sought to travel and there was a rich and abundant supply of research evidence in the general dispute resolution field.  The filtering of this material was as fascinating as it was challenging and the effort was well rewarded because it placed me in an excellent position to approach the confirmation examination with confidence and to receive and consider the reviewers’ comments constructively.  Other features of the year included attendance at a compulsory course on research methodology and the acceptance for publication of the first of three articles which have appeared in the Australasian Alternative Dispute Resolution Journal.

The clear highlight of 2015 was the opportunity of presenting a paper at the 4th ADRN Roundtable at UNSW in September, an event which I shall long remember because it was there that I was introduced to the members of this research network, a group of like-minded thinkers, researchers and teachers who share my passion for a broader framework of justice.  I have attended each of our roundtables since and hope to do so again this year. It is, I think, an important and integral part of the aspiring academic’s learning experience to have the opportunity to present his or her research at as many roundtables and conferences as possible.  It provides an opportunity for practice at presenting, an opportunity to review the work of others and to receive comments and review of one’s own work in a supportive and non-threatening environment.    It also encourages collaboration and the formulation of collaborative networks such as the ADRRN.  For the RHD candidate, it also provides a much needed point of human contact with other researchers.  The road to a PhD can be a lonely journey at times and it is a good thing to meet with others professionally and socially to exchange thoughts and ideas about what is happening in the research discipline.  For me, the ADRRN roundtable is an end-of-year reward for diligence throughout the past year.

The research question with which I am concerned is how lawyers are engaging with court-connected mediation.  In her optimistically titled work, The New Lawyer: How settlement is transforming the practice of law (2) Julie Macfarlane explores the reasons why lawyers have traditionally acted in an adversarial manner in response to conflict and dispute.  She says that it is a cultural issue and that we (lawyers) behave as we do because of our “legal professional culture.”  She posits the existence of three core elements of legal professional culture which guide our thinking and steer us towards adversarial competition whenever a dispute arises.  Those elements are, firstly, the default to a rights based system of justice, secondly a belief in justice as process and thirdly a belief in the superiority of the lawyer as expert.  Using a data collection instrument designed to capture the presence of those elements in research respondents and with ethics approval sought and obtained, I set off in the Spring of 2016 to drive to various country centres throughout New South Wales to speak to lawyers about their views on court-connected mediation.  I spoke with each respondent for an hour, recorded the interviews with their permission on my smartphone and transcribed the interviews later.  (For anyone who may be contemplating this as a strategy for the future, be warned: the transcription time to interview time is 6:1 so for every hour of interview you can expect to spend six hours transcribing).

The verdict is in.  The qualitative data has been analysed and the interviews studied.  In many respects the results are not surprising.   They align with other research done in other places and at other times.  The good news is that, even over the past five years or so, we lawyers have made some progress in embracing court-connected mediation although at times with a begrudging acceptance and a resignation that it is here to stay and we may as well get used to it.  Particular themes emerged and are dealt with in my thesis.  They include, notably, the much vexed issue of disputant participation and the issue of confidentiality.  Understanding of how lawyers grapple with these issues is of particular interest to me because they go a long way to explaining what Olivia Rundle calls “the dilemma of court-connected mediation.”  Other themes which emerged from the data were the inclusion in mediation narrative of non-legal material and the question of whether, in court-connected mediation, mediators should be facilitative or directive.  A better understanding of these issues will give lawyers and their clients a better understanding of mediation and a more satisfying mediation experience.

So, as I turn into the straight for the final run home to what I hope will be a successful conclusion, I am sometimes reminded of family holidays and long car journeys and colouring books when my children would ask: “Are we nearly there yet?” and their mother would patiently reply: “Nearly there.  Just a little while to go. Just keep drawing in your book.  I’m sure you can make it a little better.” 


(1) O. Fiss Against Settlement 93 Yale LJ 1073 1983-1984 at p 1085

(2) J. Macfarlane The New Lawyer: How settlement is transforming the practice of law (Vancouver UBC Press 2008)

 

 

The Journey from Babel to Pentecost: The Significance of Language in Dispute Resolution Theory

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.

babel_pieter-brueghel_eu

https://www.bing.com/images/search?view=detailV2&ccid=ZtvEawvY&id=FD78F6BB8B33CCB01A68625D237AB6C7CC44C7BB&thid=OIP.ZtvEawvY7xZwOwMnriXicwEsB5&q=Tower+Babel+Today&simid=607989503463458173&selectedIndex=174

“How small, of all that human hearts endure,

That part which laws or kings can cause or cure”

Oliver Goldsmith The Traveller

For thousands of years humankind has used language to co-operate in the development of communities, societies and civilizations.  Numerous language scholars including Chomsky[1], Tomasello[2] and Pinker[3], have proffered theories about the development of language but its true origins remain hidden in the mists of time.  An Old Testament biblical text tells the story of the ancient inhabitants of Babylon co-operating in the construction of a tower so tall and magnificent that it would reach up into the heavens and give them direct access to God.  According to the legend, God was so enraged by their attempt to usurp his authority that he made each of them speak a different language so that they could no longer understand or communicate with each other and their construction efforts were frustrated.

The story inspires reflection on the extent to which we depend on language in our relationships with others in society whether at the personal, community or international level.  My paper that I workshopped at the ADRRN round table in New Zealand takes up this theme and considers, by reference to some of the recent language literature and to my PhD research data, how language influences human relationships and its capacity for peace making and conflict resolution.  It uses examples taken from various historical settings to illustrate how language has informed human behaviour in significant and powerful respects. It concludes that dispute resolution best practice has recognized and implemented appropriate strategies for reframing poor communication techniques, but some of those practices are yet to achieve universal acceptance in some areas of mediation especially where the process is being conducted in connection with litigation.

There is another more recent story, this time from the New Testament history of early Christianity, in which the disciples of Christ stood on a balcony in Jerusalem at Pentecost time preaching to hordes of visitors who had gathered in Jerusalem from the whole of the then known world.  According to the legend, although the speakers addressed their homily in Hebrew, each of the visitors was able to hear the speaker in his own tongue, thereby completing a perfect line of communication.  I have concluded in my paper that, whilst we have done much as dispute resolution practitioners to advance the cause of peace and conflict resolution through addressing language issues and reframing toxic, negative and unhelpful language, there is still work to be done and our journey from Babylon to Pentecost is not yet over.

One of the language barriers that I perceive is between the dispute resolution field and the legal profession. What is of concern in the dispute resolution narrative is that the significant advantages which continue to accrue to disputants by learning the skills of respectful discourse and positive problem-focused communication, so familiar to dispute resolution practitioners, do not yet appear to have been successfully communicated to (or adopted by) the legal profession to where, paradoxically, many disputants first turn for a solution to their disputes.  As recently as this week (14th December, 2017), during a speech addressing justice issues arising from the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commissioner, Justice McClelland, referred disparagingly to lawyers as a potential source of redress for survivors of child abuse.  He said:

“In some cases the aggressive hand of the lawyer was engaged, ensuring that an appropriate and just response to a survivor was not possible.”[4] 

The clear inference from the Royal Commissioner’s remarks is that engagement of a lawyer, far from facilitating access to justice, ensures that just outcomes are impossible.  Like the builders in the Tower of Babel legend, the suggestion is that clients and dispute resolution practitioners are speaking to lawyers but they either do not understand us or they do not wish to hear.  The challenge for us, it seems, is to establish effective lines of communication and to speak persuasively so that they are convinced of the necessity for principled dispute resolution solutions.  Only then will our journey have been completed.

This paper is very much in draft form and in need of significant work.  When it has been completed it is my hope that it will be submitted for publication in a peer reviewed journal such as the Australasian Dispute Resolution Journal.

[1] N Chomsky Powers and Prospects: Reflections on Human Nature and the Social Order (London, 1996, Pluto Press p.30)

[2] M Tomasello, B Velischkovskii, D M Rumbaugh (eds) The Cultural Roots of Language Communicating meaning: The Evolution and Development of Language Mahwah, N.J.: L. Erlbaum. ISBN 978-0-8058-2118-5. OCLC

[3] S. Pinker, P Bloom (1990). “Natural language and natural selection”. Behavioral and Brain Sciences. 13 (4): 707–784. doi:10.1017/S0140525X00081061.

[4] As reported in the Newcastle Morning Herald on 15th December, 2017 at p 6

Reflections on a work in progress: Some observations from the field

This post provides some brief, almost random, reflections on the progress of my research project which is being undertaken at the University of New South Wales. The first part of the post comprises a short description of the project and its rationale.  There is then a brief description of the methodology followed by a narrative of the empirical work done to date.  Finally, I have identified a few triumphs and challenges which have featured in the project up to this point.

The project

The research project in which I have been involved over the last eighteen months concerns the way in which lawyers have responded and are responding to the challenges presented by the introduction to mainstream justice institutions of mediation as an “alternative” means of ending disputes.

The rationale

This is an important subject for research because, in a world where the basis of our cohabitation as social beings in an ordered society is dictated within a framework of rules, rights and obligations and where there is increasing competition for increasingly limited resources, people who find themselves in conflict invariably still consult lawyers. It might therefore be considered that lawyers will continue to be gatekeepers of many dispute resolution processes into the foreseeable future.[1] Lawyers’ traditional role in the western justice system has been to advise their clients about the law and to assert or defend legal rights in courts and tribunals according to legal principles (either well established or developing) which provide predictability and certainty with respect to our rights and responsibilities.  It is an activity which has been jealously guarded by lawyers for centuries and one which assumes that disputes are inherently competitive in nature and must therefore be brought to an end by coercive determination after a decision maker has analysed the merits of competing claims and pronounced judgment.

In recent years, since it has become fashionable for scholastic learning to reach across traditional borders and embrace the wisdom offered by other disciplines such as psychology and sociology, we have learned that sometimes, resorting to the courts for an answer, whilst it may clarify people’s rights and declare the law, does not always provide a solution to the problem for which the lawyer was first consulted. Scholars from a range of disciplines including Sociology, Anthropology and Psychology, to name a few, have taught us that human conflict and dispute resolution can be understood from many different perspectives.  Conflict has been described as: “…a struggle over values and claims to scarce status, power, and resources, a struggle in which the aims of opponents are to neutralize, injure, or eliminate rivals”[2] and as a “…perceived divergence of interest, or a belief that parties’ current aspirations cannot be achieved simultaneously.”[3] It is not simply a question of applying a set of legal formula to a given problem and arriving at an answer which can be universally applied to guide people’s relationships and behaviour into the never ending future.  As the anthropologist Kevin Avruch explains, conflict is a feature of all human societies and an aspect of all social relationships. How we perceive its causes will determine the theories and practices which we adopt in its resolution.[4]

Encouraged by these developments, many academics have sought to extend this knowledge through research designed to improve our understanding of how new and more broadly based notions of dispute resolution might be engaged in conjunction with the law and the formal institutions of justice to assist people to improve the quality and experience of dispute resolution solutions.[5]

What this project aspires to achieve is to provide some authoritative research on how lawyers themselves are coping with the transition from the rule based, dichotomised practice of litigation in a competitive environment to what Macfarlane calls “the new advocacy”[6] in which lawyers will perceive their role more broadly than merely fighting on their clients’ behalf.  The “new lawyers” will assist their clients to engage with conflict and will provide their clients with an understanding of how conflict develops and evolves over time, how it is managed, how to function strategically and implement jointly agreed outcomes.[7]  The question which necessarily arises from this ambition is how lawyers will fill this new role and how they will become equipped and acquire the skills necessary to provide this support.

Methodology

Adopting a qualitative methodology and armed with a list of questions which form the basis of a semi-structured interview, I have embarked on the task of asking lawyers what they think about their role as lawyers, how they perceive the idea of settlement, the extent of their engagement with “non-legal” issues such as emotional and economic interests and when they think that cases should be referred to ADR including, specifically, mediation. I am also asking lawyers some cultural questions about how they perceive the effect on their reputations of engagement with dispute resolution and what values and attributes they perceive to be necessary in aspiring young lawyers.

Reflecting on the work of other researchers (particularly Zariski) it seemed to me that an enquiry of this kind would not be well served by a quantitative survey seeking specific responses to predetermined questions followed by a statistical analysis of the results returned.

In the first place, the available information suggested that the legal community is “surveyed out” and suffering from “survey fatigue” which increases the likelihood of a low response rate and reduction in the validity of the data when considered as a statistical representation of a wider population.

Secondly, and a related issue, is that it was considered that a personal meeting with the respondents would provide an opportunity for the researcher to engage with the respondents in a manner which would encourage them to be more responsive to the study and to be more forthcoming and sincere in their responses to the survey questions.

Thirdly, given the broad range of factors which might influence lawyers in their thinking about mediation and its relationship with legal professional culture, it was considered that a more qualitative approach was justified. This is because the subtle nuances of professional practice cannot always be accommodated by a survey questionnaire and it was considered that the respondents should be given an opportunity of “venting” in a way that cannot be achieved by ticking a box.

Whilst the study is still in its infancy (seven interviews having been conducted and transcribed), there are some clear themes emerging and some challenges to be overcome.

Some emerging themes

Dealing firstly with the emerging themes, it should be said that the lawyers to whom I have spoken are far from being a homogenous group. Some are commercial lawyers who act either for plaintiffs or defendants in a variety of commercial causes. Some are family lawyers and some are personal injury lawyers.  One is a workplace relations lawyer who acts both for employers and employees and another is an in-house lawyer who acts only for his underwriter employer as a defendant in professional indemnity insurance claims.   One is employed by a large national law firm.  The others are employed mainly in small to medium sized regional law firms in the Newcastle and Lake Macquarie regions of New South Wales.  All were familiar with facilitative mediation and some had attended numerous mediation events as lawyer advocates, although some were also largely unaware of other forms of ADR such as early neutral evaluation.  A number of respondents were themselves accredited mediators.  In those cases, respondents were asked to consider the questions from their perspectives as lawyers rather than as mediators.

All respondents to date have been gracious in giving up their time for the interview and no interview has been conducted under pressure of the lawyer’s time or haste due to the need to meet other commitments. All respondents have been forthcoming with their personal views which, in some cases, have been expressed strongly and in some cases with surprising frankness regarding some quite sensitive personal issues.

As might be expected in a study which involves a large measure of self-reporting, all respondents have reported positively in relation to the idea of mediation, though there were significantly divergent views about the efficacy of mediation and how the process ought to be run.  A recurrent theme throughout has been a criticism of the facilitative nature of mediation and the absence of coercive pressure from the mediator to settle.  Speaking of his view of how mediation ought to be conducted, one respondent had this to say:

I want a mediator who is going to be proactive in resolving the issues. They are the ones who are successful and they are the ones who …….They are the ones who have results and some satisfaction between the parties and you really need to push hard to get a settlement.

Another respondent said this:

I have a view that it’s good for the mediator to have a view. I think that one of the first things that’s taught to mediators at mediation school is not to have a view – they are just there to facilitate the parties coming together….And I am quite happy to pay all the money to get a mediator who will have a view and who will be respected, such as a retired judge or retired senior counsel or, they don’t have to be a senior counsel, but have been a barrister for a long time. And I certainly believe that to express a view a mediator needs to express the view in a controlled way but I am of the view that mediators with a view are very helpful to the resolution.  If a view is expressed in the right way at the right time it is very helpful.

It is too early in the study to draw any firm conclusions about the underlying assumptions which underpin these sentiments. However, it is noteworthy that criticisms of mediation theory and the facilitative nature of dispute resolution in general were invariably cast in the language of distributive or ‘zero-sum’ bargaining.[8]  In response to questions asking about what matters should be considered in formulating resolution proposals, most respondents spoke of “the range” or the anticipated determination should the matter run to trial.  It was only later when the interrogator asked specifically about non-legal issues, that some respondents were prompted to introduce a conversation about emotional concerns, litigation stress, financial anxiety, appetite for risk, health issues and other contextual concerns which are implicit in most cases of conflict.Even then, those concerns were usually introduced in a distributive manner and equated with a direct cost or at the expense of what a client might otherwise have expected to receive “within the range.”

That is not to say that legal matters should be disregarded. Clearly, when a case is being litigated one of the major concerns of the parties must be what will happen if they fail to reach agreement and the case has to be determined.  However, the point here is that most respondents showed a tendency to be preoccupied with the anticipated court outcome and this may have had the effect of excluding from their consideration other potential extra-legal solutions which might have been available in a mediation or other ADR process.

Triumphs

Even at this early stage of the study, it is possible to identify both some triumphs and some challenges. Assuming the glass to be half full, let us look briefly at some of the triumphs.

It is important in any qualitative study which comprises personal interviews that the interviewer is able to prepare well for the interview, manage the interview capably and confidently, engage with the respondent and ask meaningful and thought provoking questions which will elicit the sort of information which is required to give meaning to the study. None of this comes naturally. It is a learned skill which is acquired only with practice and reflection.  Even after thirty years of legal practice in which many hours of professional time were spend interviewing people in various situations for different purposes, it was nevertheless of benefit to have had the opportunity of undertaking an interview techniques workshop under the tuition of Professor Simon Halliday at the University of New South Wales.  Participation in that workshop has paid significant dividends in that the course of the research interviews has been efficient, painless, comfortable, engaging and incisive in that much valuable information has been disclosed and the interviews themselves have been well received.

Ethics applications are sometimes perceived as unnecessarily bureaucratic and cumbersome, especially with low risk research where many of the ethics considerations appear to have little or no relevance to the empirical work. However, upon reflection, it is clear that they have an important role to play in reminding researchers of the need for personal organization, stringency and rigour in the manner that data is collected and the study carried out.  In the present study it was determined to make up a separate file in relation to each respondent so that appointments could be noted, email, telephone and other administrative contact could be recorded and the signed participant consent forms retained.  The file also serves as a convenient check list to ensure that all necessary action has been taken and the consent forms are signed. In this way, there is a complete record of the research which can be audited for intellectual rigour and authenticity should the need ever arise.  The system also allows easy de-identification and re-identification of data for inclusion in presentations and progress reports such as this.

Challenges

The study has also disclosed some challenges, a few of which are discussed below.

In the first place, it should be observed that, as noted above, the respondents are in no sense a homogenous group who occupy themselves in similar or even remotely related, litigious tasks throughout a routine week of legal activity. The draft list of questions to which so much thought and consideration was given in the preparation and which was approved by the Ethics Committee, totally failed to take account of the fact that some questions which address specific areas of the law such as equity cases or personal injury, simply have no application to people who have never practiced in that area of the law.  In consequence, it has been necessary to adjust the questioning “on the run” to take account of those anomalies and do so in a manner which is consistent with the Ethics Committee’s approval.  Fortunately, thanks to the foresight of the project’s supervisors, the Ethics application was framed broadly enough to accommodate this contingency.  The lesson to be learned though is a good one.  When seeking approval of a questionnaire to be used in personal interviews, it is a good idea to seek approval of questions “along the lines of the questions indicated in the draft interview” so that any minor departures from the script of the kind rendered necessary in this study can be accommodated without the need to return to the Ethics Committee for amendment of approval.

Secondly, the transcription of the audio recordings has been challenging. Each interview occupies approximately one hour.  The briefest interview occupied thirty one minutes and the lengthiest was one hour and four minutes. Every hour of interview time consumes approximately six hours of transcription time.  Consideration was given to seeking funding to outsource the transcription to professional transcription service providers but, for the following reasons, that decision has been deferred, at least for the moment.

This researcher lives under the disability of a significant hearing defect. Sometimes, it is difficult to capture every word of the interview through the medium of natural hearing, though experience has proven that recorded interviews can later be replayed at volume and any material missed collected by listening to the audio recording through headsets. Whilst this has the slight disadvantage of not being able to pursue further questioning if something important is not captured during the interview, that disadvantage is more than offset by the time saving in not having to interrupt the flow of conversation and protract the interview time by asking a respondent constantly to repeat answers given during an interview.  The task of physically transcribing the interviews, tedious though it is, allows a thorough examination of the data and identification of emerging trends that may be important to the study.

A further challenge in dealing with the transcript is one that would be familiar to all transcription typists and court reporters. It is that the spoken word is fundamentally different from the written word and that is a challenge which should be recognized and addressed by all researchers who collect data in the form of transcribed records of interview. The spoken word does not use punctuation or script or formatting and, very often, we do not speak in complete sentences.  Questions arise as to how literal the transcription should be.  For example, do we include embolalia that appears in almost all speech – or do we ignore it and try to create a clear and meaningful sentence from what may have been a hesitant and thoughtful reply which may have been reconsidered even as it was given?  An example might be: “Well, yes, I err, think that.., well, ah, let me put it this way…well let’s just go back a step…” and so on.  One respondent in the present study, anxious to ensure that he was supplying information which was of interest, kept interrupting himself mid-sentence to say: “Now if this is not answering your question, please tell me.”

A further complexity of the transition from the spoken word to the written word is the tendency of respondents who are asked to give examples of things to ply back and forth between first person and third person speech often without notice so that it becomes quite confusing to work out who actually said what to whom. An example might be: “Well he came in and said: ‘Can you act for me?’ and I said yes but he would have to give me proper instructions. You know that means completing a financial statement” and so on.

These may seem to be somewhat pedantic matters but, in the interest of preserving personal integrity, faithful reporting and intellectual rigour, they are matters which need to be addressed lest we inadvertently misrepresent the data which has been supplied to us.

In order to meet these challenges, a conservative approach has been adopted and a literal transcript of his/her interview has been provided for the approval of each respondent.

Conclusion

This is an exciting project because, although still in its early stages, there is some evidence to confirm the hypothesis that, even now in 2016, with all the accumulated wisdom and experience we have gained through research into mediation, there is a reluctance or inability on the part of the legal profession to engage with ADR on its own terms or otherwise than by reference to the established rule-based norms of the conventional justice institutions as viewed through the prism of adversarial glasses. Whether that is a trend which will continue as the research progresses remains to be seen.

 

John Woodward,

University of New South Wales

 

 

 

 

 

[1] See F Donohoe III Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes PhD Thesis, University of California, 1997

[2] L Coser The Functions of Social Conflict (New York, Free Press, 1956) at p.8

[3] J Rubin, D. Pruitt and S. Kim Social Conflict: Escalation, Stalemate and Settlement 2nd ed. (New York, McGraw-Hill, 1994) at p.5

[4] K Avruch Culture and Conflict Resolution (Washington, US Institute of Peace Press, 1998) at p.24

[5] See, for example P Condliffe Conflict in the Compact City: Preferences and the Search for Justice PhD Thesis, Victoria University, 2011.

[6] J Macfarlane The New Lawyer: How Settlement is Transforming the Practice of Law (Vancouver UBC Press, 2008) p.96

[7] Ibid p.109

[8] P Condliffe Conflict Management: A Practical Guide (4th edition, Sydney, Lexis-Nexus-Butterworths, 2012) p.174