About Dr Lola Akin Ojelabi

Dr Akin Ojelabi is a Senior Lecturer in the School of Law, La Trobe University. Her research interests are in the fields of conflict resolution including alternative dispute resolution (ADR) and international law. Her ADR research focuses on issues of fairness and justice, in particular, access to justice for vulnerable/disadvantaged citizens, process design, and culture. In the field of international law, her interest is in the role of international institutions, particularly the United Nations, in the resolution of disputes and how international law principles promote peace and justice globally.

Researcher Profile: Meet Alysoun Boyle

Plaza de la Revolucion Havana (2)About Alysoun

I am an off-campus PhD candidate at the University of Newcastle – having just moved from Monash University.  I am also a Director and Fellow of Resolution Institute, and was the national vice-president of IAMA before its integration with LEADR.  I am an ADR practitioner and trainer, especially mediation training, and a Senior Mediator Member of the ACT Civil and Administrative Tribunal (having designed the mediation program that ACAT uses), and am on the mediator panels for the ACT Supreme Court and for the Arts Law Centre of Australia.  I am also a member of the ADR Advisory Council (ADRAC), of the Law and Society Association (USA), and of the American Bar Association Task Force on Research into Mediator Techniques.  Prior to entering the world of ADR, I worked in various public service positions, including as a senior policy advisor on illicit drugs, advising the then ACT Chief Minister; in that capacity, I conducted an extensive international consultation process that informed the ACT Government’s proposal for a trial of medically prescribed heroin.  I live on a mountain property in a small, remote community in NSW, where I am the Training Officer for, and an active member of, the local fire brigade.  My son lives and works in Seattle (USA), and I have immediate family in Sydney, and in Switzerland. 

Thesis Research Project

My research topic arose from my mediation practice and my training of mediators: what is it that makes some mediators so much better, or more effective, than others?  I am concentrating my research on review and analysis of existing empirical studies of mediation and of mediator techniques, and have been very fortunate to have access to a compilation of almost 90 reports from such studies that was pulled together by the ABA Task Force on Research into Mediator Techniques.   I am constantly updating and rewriting my research questions, but, in essence, they are:

1. What is known about mediator influence over participant behaviour and participant perceptions, including perceptions of mediation effectiveness?

2. What is known about what mediators actually do in mediation that is so influential?

3. How can mediator behaviour and levels of influence be effectively measured and analysed?

4. What differences might it make to existing theories about mediation, existing mediator practices, and existing mediator training regimes if specific mediator behaviours (rather than models of practice, or styles and approaches) were found to be key predictors of mediation effectiveness?

What is most exciting for me about my research?

I am thoroughly enjoying learning about mediation research, meeting ADR researchers (in Australia and overseas), and gaining insight into, and understanding about, the characteristics of very effective mediators. I am currently working with a US academic on a report to be presented by the ABA Task Force, and that is certainly an exciting project.  Last year, I attended a compulsory seminar on the philosophy of law and that activated every curiosity neuron in my brain, which is always an exciting event; however, the most exciting aspect of my research has been learning about the unfamiliar world of academic research: its social norms, its language and its rules.  It has been something of a cross-cultural experience for me. 

What challenges have I experienced with my research?

It seems to me that everything I have done around this research project has been a challenge.  For example, I have had to learn how to turn ideas into formal research questions; how to write in an academic style; how to consistently apply strict citation styles.  I have also had to master some of the infinite capacities of the internet so my off-campus attendance is neither isolating nor an obstacle.
While learning how to be an academic researcher has been exciting for me, it has also been a challenge.  Although I have conducted many graduate and post-graduate ADR courses at universities, these have always been in the form of 3 or 5 day intensives, rather than extended, regular university attendance.   Becoming an academic researcher is quite different from parachuting in for an intensive and then jumping back out.

Where would I like to go after I finish my research project?

Once this project is completed, I would like to progress to empirical study of mediator behaviour to identify, or confirm, what very good mediators actually do that makes them so much better.  Some commentators have referred to the ‘black box’ of mediation*, and I would like to see that dark, mysterious container opened so researchers can properly study what actually happens in a mediation, and mediators can use accessible research findings to improve their practice techniques.
On the other hand, my family owns a very small, mediaeval house in a perched village in Provence (built in around 1100AD), and I would really enjoy some time on its balcony, listening to the bees in the lavender, the church bells in the distance, and the rhythms of local greetings.   

* For example, see: L. B. Bingham, ‘Transformative Mediation at the United States Postal Service’ (2012) 5 Negotiation and Conflict Management Research, p 363; L. Charkoudian, ‘Just My Style: The Practical, Ethical, and Empirical Dangers of the Lack of Consensus about Definitions of Mediation Styles’ (2012) 5 Negotiation and Conflict Management Research, pp 371 and 380; J. A. Wall, Jr, and S. Chan-Serafin, ‘Processes in Civil Case Mediations’ (2009) 26 Conflict Resolution Quarterly, p 262. 

Advertisements

Cross-cultural conflict interventions

Apart from obvious issues such as language and those associated with being present in an unfamiliar territory, a conflict resolution practitioner must be sensitive to cultural issues relating to the ‘way of doing things around here’ and the extent to which the conflict is embedded in cultural ways of knowing.

A conflict resolution practitioner needs to be ‘culturally aware’ of, and ‘culturally sensitive’ to, the issues involved in the conflict including transportability and applicability of culturally distinct models of conflict resolution to a culturally constructed conflict. An awareness of, and sensitivity to, cultural issues would make the conflict resolution practitioner culturally competent, but the conflict resolution practitioner must also be culturally fluent.

Cultural fluency extends beyond both cultural sensitivity and awareness. It requires an awareness of one’s own cultural biases, assumptions, prejudices and stereotypes, and how those might impact on the conflict resolution process. Practitioners intervening in conflict situations must be aware of how their motives, actions, and expectations are culturally engendered and affect the conflict resolution process and the outcome.

Intervention must also include consideration of the ways in which culture becomes embedded in conflict and is politicised. The ability of the conflict resolution practitioner to use various techniques of intervention and to be creative is crucial to the resolution of cross-cultural conflicts. Intervening in cross-cultural conflict situations could be challenging because of the diversity and complexity of issues, but it is clear that intervention requires that conflict resolution practitioners be flexible, creative and fluent.

A-66__Construcción_del_puente_sobre_el_río_AlmonteRetoc

“Construcción del puente sobre el río Almonte” By Yeza (Own work) [Public domain], via Wikimedia Commons

You are welcome to share your experience as a third party in a conflict/dispute involving cultural issues including approach, skills and lessons learned.

 

 

 

 

 

 

 

Researcher Profile: Meet Rebecca Edwards

Rebecca EdwardsAbout Rebecca

Rebecca Edwards is currently completing her PhD at La Trobe Law School, Bendigo. Rebecca has been employed on a sessional basis in the School of Law for the last 9 years teaching a large number and broad range of subjects including Dispute Resolution. Prior to this work, Rebecca practiced as a lawyer for over 10 years in rural and regional Australia, working predominantly for legal aid clients (both as a private solicitor and as an employee of Victoria Legal Aid), as well as a two year period working of the Kimberly Land Council as a Native Title Lawyer in Broome, WA, and a 3 month stretch as a volunteer legal analyst at the United Nations Criminal Tribunal for Rwanda based in Arusha, Tanzania. Rebecca now balances work and study with family life with her two primary school aged children, a number of board roles and the running of a small farm where the family raise small-scale free-range, grass-fed, ethically raised pork, lamb and beef and duck eggs.

Rebecca’s research

Consistent with its philosophy to support unrepresented litigants, in June 2009 the Victorian Civil and Administrative Tribunal (“VCAT”) implemented a pilot strategy in mandated mediations involving an unrepresented litigant and a mediator who is not a Tribunal member (known as a panel mediator). The strategy was to provide parties in these mediations with a cooling off period of two business days, enabling them to withdraw from a meditated agreement without penalty.

Through the use of electronic surveys of mediators and telephone interviews with disputants, Rebecca is attempting to discover whether VCAT’s innovation actually does provide support to unrepresented litigants. Her two main research questions are:

  • whether the unusual and innovative provision of a cooling off period following a mediation is utilised by unrepresented disputants (i.e. do disputants actually seek advice about their mediated agreement subsequent to the mediation?)
  • whether the provision of a cooling off period following a mediation empowers unrepresented disputants (i.e. regardless of whether disputants speak to anyone about the mediated outcome, do they feel better about the outcome knowing that they can withdraw from it without penalty for a certain period of time)

The research is currently at the stage of analysing the data with final write up expected later this year.

 Papers and presentations

Rebecca first presented a draft paper on her research at the ADR roundtable in Sydney in September 2016. A more up-to-date paper was presented at the Asia Pacific Mediation Forum’s Conference, in Lombok, Indonesia in February 2016. With luck and hard work, a solid draft of the thesis is expected to be completed by the end of this year.

 

DR Researcher Profile: Dr Olivia Rundle

Dr Olivia Rundle, Senior Lecturer, Faculty of Law, University of Tasmania

Olivia is a full time academic employed to research, teach and contribute to administration and community engagement. She finds research the most satisfying part of her job and enjoys sharing her knowledge gained from her research with her students (both undergraduate and research higher degree students), fellow researchers, university colleagues and the broader community.

 Why did you become interested in the dispute resolution field?

My interest was first sparked by a “baptism of fire” as a baby lawyer, when I found myself representing a client in the newly created “conciliation conference” process at the Magistrates Court. I had absolutely no idea what my role should be or what to expect from the conciliator. I had observed some mediations at the Supreme Court, but apart from that I had received no training at all in dispute resolution processes other than making submissions in court room advocacy. I don’t think I had even been formally educated in negotiation skills, let alone theory. My style of representation ended up being directed by a combination of my training as a spokesperson for my client in court and my open, conciliatory and trusting (also young and naïve) personality. My client was not disadvantaged by my openness, as the information shared was going to be revealed in any event (if it hadn’t already), but I felt very embarrassed when after I had made my “opening statement” the defendant’s lawyer merely said “I am instructed not to say anything”, and refused to engage with the process. There really wasn’t anything the conciliator could do about that. There was plenty of scope for reflection on that experience! I took myself along to be trained as a mediator. Eventually my interests in mediation, particularly its role within the formal justice system and the lawyers’ perspective and role within it, led to my PhD investigation of the Supreme Court of Tasmania’s mediation programme. In particular, I inquired about the perspectives, practices and roles taken by lawyers within that process. This topic continues to fascinate me.

 What is your particular area of dispute resolution research interest?

Legal practitioners and dispute resolution, including the ironically “adversarial” attitudes that the dispute resolution and legal professions often have towards one another (despite so many legal professionals practising as DR professionals). I have an enduring curiosity about what motivates lawyers to approach dispute resolution in the ways that they do. There is so much complexity there – including the professional identities and obligations of the participants.

 Whose research has influenced you? Why/How?

Professor Julie Macfarlane came to a National Mediation Conference during my PhD process and she had just published her book The New Lawyer. She went out of her way to be welcoming and supportive of me as a baby researcher, and this made a big impression on me. Of course, her work is so important and influential in the area of lawyers in dispute resolution, that I cannot help being influenced by it. She was also explicitly encouraging of me as an empirical researcher. I am hoping to make good on that with new projects in the next year or so! Other international names that spring to mind as having an influence (by being read and cited a lot) are Carrie Menkel-Meadow, Judith Resnik, Dame Hazel Genn, and Bobbie McAdoo.

 Closer to home I think that the work of Hilary Astor, Laurence Boulle, and Nadja Alexander have provided a solid foundation of theoretical understanding upon which my work has been based. My close collaborator Assoc Prof Samantha Hardy continues to influence me with her enthusiasm, “can do” attitude and willingness to maintain a list of “things to do” that neither of us can hope to achieve in ten lifetimes! Sam stepped in as a mentor for me when I was floundering with my PhD work. We eventually built upon the ideas that flowed from our conversations in our book Mediation for Lawyers. I think that our joint projects ever since demonstrate the benefits of being generous to someone who is emerging in your field – we have an egalitarian and honest working relationship that means we continue to push one another to produce good work.

 What dispute resolution research are you involved in at the moment?

My second area of particular dispute resolution research interest is in ways of improving dispute resolution practice. In particular, how to resolve ethical dilemmas, competing underlying values, and how to overcome our own unconscious biases that are there simply because we are human and are limited by our own life experience! My current research project, which has taken over my sabbatical this last six months, is inspired by the last of these. I am working on a co-authored book that will be a resource for any professional who works with people (yes, that broad!). Our target audience includes mediators and lawyers and the book will have specific advice for them. The book draws together social science and legal resources about the life experiences, legal treatment and conflict experiences of people of minority sexuality (gay, lesbian, bisexual, pansexual), sex (intersex) and gender (transgender, gender queer). We focus on individuals, couple relationships and parenting. Researching and writing this has been one of my most challenging projects to date and I have learnt so much. I am now getting excited about the difference that I hope the book will make for professionals and their clients, by raising awareness of the pervasiveness of cisgenderism, heterosexism and biologism and how these assumptions are inappropriate for many people. The project idea came from some research that Samantha Hardy undertook which found that among her small sample many mediators interviewed thought that they provided a great service to their clients of minority sexuality, yet demonstrated attitudes that suggested they had not. Also, the clients who were involved reported low satisfaction with the services that they had received. This demonstrated a need for better understanding among the profession. The book has been a long time coming, but I hope that it will be worth it!

 Where would you like to take your dispute resolution research work over the next ten years?

“After the book” I want to return to my focus on lawyers in dispute resolution and undertake more empirical studies to identify the drivers of lawyers’ behaviour in dispute resolution processes. I hope that over the next decade I will make contributions that lead to improvement in the field, by supporting professionals who work with clients in connection with their conflict. This includes legal practitioners, mediators, conflict coaches, and managers. Greater inter-professional understanding, critical analysis of practice, and practical suggestions are all contributions that we can make as researchers.

 Another goal that I have is to provide support for emerging dispute resolution researchers, both informally and formally as a supervisor. I am by no means a “senior” in the field, but I believe that we should step up out of our comfort zone early in our career and be accessible and genuinely supportive of others. This is how we will surround ourselves with colleagues who are prepared to give us rigorous yet kind feedback and who we truly admire. This is why I am so committed to being part of the Australian Dispute Resolution Network.

 What advice do you have for emerging dispute resolution researchers?

Tell people when you find their work helpful, ask them those silly questions, go along to conferences and other gatherings of people who research in dispute resolution. The people you meet when you are a baby researcher will become your mentors, friends, colleagues and collaborators.

 

The ‘fairness fairy’ in mediation: mediators, parties or lawyers?

Who bears the responsibility for fairness in mediation?

It is generally accepted that every dispute resolution process should have fairness as one of its goals and that there are several theories of fairness: procedural, substantive, restorative, informational, retributive, distributive etc. While mediation might not be designed to achieve all of these ideas of fairness, there is agreement that mediators are responsible for procedural fairness. This requires ensuring that parties are given the opportunity to speak and to be heard, and in addition, the opportunity to negotiate on the basis of informed consent (cl 9 NMAS Practice standards, 2012). As such, it is arguable that mediators are informational ‘fairness fairies’ in that they are required to support the parties to reach agreements on the basis of informed consent (cl 9.1 NMAS Practice Standards, 2012).

However, mediators are generally not viewed as bearing responsibility for substantive fairness: they are not substantive ‘fairness fairies’. They, on the other hand, are to support a party to assess the ‘feasibility and practicality’ of proposed agreements ‘in accordance with the participant’s own subjective criteria of fairness’ (cl 9.7 NMAS Practice Standards, 2012).The responsibility for achieving fairness thus lies with the parties. They are to satisfy themselves that they have achieved, what to them, is fair in the circumstances of their dispute. In doing this, they are supported by the mediator who is not to pressure them into any form of agreement. Parties are thus, the substantive ‘fairness fairies’: they must have ‘the eye’ for fairness of the outcome.

But it is not in all cases that parties know exactly what fairness might represent or require in their disputes. This is particularly so when they are not well or fully informed, are not in a position to obtain relevant information due to lack of resources, or have diminished capacity as result of disability etc. In these situations, what options are open to the mediator to support parties to assess the feasibility and practically of a proposed agreement? Who takes the role of the substantive ‘fairness fairy’?

Possibly the role of the ‘fairness fairy’ shifts to the support person(s) present at the mediation, or where a party is legally represented, to the legal representative who is expected to act in the best interest of her client. But are lawyers always fulfilling this role in mediations? Should the responsibility for fairness become solely that of legal representatives? Should mediators always assume that lawyers will act as ‘fairness fairies’ in mediations?

For a view on the role of lawyers in mediations, see post dated 27 March 2015: “On Mediation, Legal Representatives and Advocates by Bobette Wolski” (Post by Dr Olivia Rundle)

Mediation Quality

The benefits of mediation to society, individuals and the justice system are numerous and these make mediation a process fast increasing in popularity and usage in many quarters. There has been an increase in the use of mediation in the courts, the community sector and even within government. In Australia, mediation quality is promoted through the National Mediator Accreditation System (NMAS) Approval and Practice Standards. Research, however, shows that ensuring quality in mediation goes beyond provisions of the NMAS partly because applying the standards to ethical and practical issues that may arise in a particular context may bring to the fore conflicts between the standards. An example of such a conflict is between the requirements of self-determination and a mediator’s ethical obligation to terminate or withdraw when it appears to the mediator that the proposed outcome is so unfair that it shocks the conscience. Maintaining a balance between the two creates a further dilemma for mediators. How does a mediator address the fairness of a proposed outcome in order to make a decision regarding termination or withdrawal? To address this dilemma, mediators go beyond the NMAS, reaching out to, and making decisions based on personal values, other professional values (and obligations which they may be bound by in any case) and sometimes ask the question: Can I live with this?

What values inform [your] decision-making when faced with ethical dilemmas in mediation?

See: Justice Quality and Accountability in Mediation – a report