About Dr Olivia Rundle

Dr Rundle is a senior lecturer at the Faculty of Law, University of Tasmania. She has worked as a nationally accredited mediator and a Family Dispute Resolution Practitioner. Dr Rundle is especially interested in the role of lawyers in dispute resolution processes and the policy environment that positively encourages lawyers to engage with dispute resolution. She teaches and researches in broad areas of Dispute Resolution, Civil Procedure and Family Law.

Settlement and sex: queering dispute resolution

Is settlement like sex? Should it be?

How can queer theory be applied to the field of dispute resolution?

What if disputing parties were viewed as bearers of desires rather than bearers of interests (or rights)?

Do positivity, desire, consent and feeling good distinguish alternative dispute resolution from formal legal dispute resolution processes?

Would the dispute resolution field benefit from a reminder of the playful rebellious roots upon which it was founded?

Does a focus on relational interaction encourage us to abandon our attachment to the constraints of identity and self-interest?

DDG - headshotThese are just some of the contemplations invited by Daniel Del Gobbo’s article “Queer Dispute Resolution” (2019) 20 Cardozo Journal of Conflict Resolution 283. Daniel is from the University of Toronto Faculty of Law, and part of the Australasian Dispute Resolution Research Network, reflecting the international reach of our community.

The goal of the article is to ask difficult questions and expand the theoretical terrain of the dispute resolution field. This post provides an imperfect snapshot of some interesting points – I recommend that you read the full article to fully appreciate its arguments.

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Koshy Koshy Strange things are happening these days Creative Commons Licence

 

Daniel reminds the reader of the deliberate re-framing of disputes by the dispute resolution field from the “overly formal” rights based claims to the “more natural” interest based conversation. He suggests that a slight adjustment from a focus upon interests, to desires, opens up further potential. Queer theory explores how sexuality is articulated across identity and desire, celebrating its messy, restless, non-uniform and changeable nature. Through the embracing and celebration of these characteristics of desire, a critical gaze can be better placed upon the normative expectations that can inhibit creativity.

The problem with an over-reliance upon “a crude version of liberal economic theory” in the dispute resolution field is that the maximisation of (economic) self-interest assumes that a person’s interests are “rational, predictable, and unchanging through the settlement process.” By contrast, desire is understood by queer theorists to be “irrational, unpredictable, and at least potentially changing.” Interests are, in reality,  often irrational, unpredictable and changing throughout the settlement process.

The practice of settlement, not unlike the practice of sexuality, is constituted  by the mutual interplay of the parties’ wants and desires in reaching a negotiated agreement over new and potentially pleasurable terms that may or may not come to pass. … The subject’s interests may be prone to change in the negotiation on account of the other parties’ stimulating behaviour, intervening events in the parties’ lives, and the parties’ affective responses to the bargaining environment, which may or may not have a rational basis. All that matters is that the settlement process feels good – socially, culturally, economically, legally – or that it feels better in the moment, at least, than an adjudicative process which would distribute pleasure and danger in a less satisfying way. [pp 303-304]

The mutuality of bargaining, like sex, requires that there be an ethical approach – a commitment to a process and outcomes that “feel good” for all participants. Consensual processes require recognition and support by each participant of the autonomy and self-determination of the other. This is the challenge of mutuality – it requires a commitment to act morally towards the other. Consent provides a framework to manage that problem. The basic principles of the legal doctrine of consent can be described generally as follows:

…the parties must voluntarily agree on any process that is chosen and any conclusion that is reached for the arrangement to be legal. The parties should be provided with any relevant information necessary to make informed decisions for themselves. And crucially, there must be an approximate balance of power between the parties at all times because otherwise it may be impossible to maintain the integrity of the process, prevent bad faith and unconscionable agreements, and keep the parties safe. [p 317]

However, the legal notion of consent can be critiqued (and is by critical, feminist and queer scholars) for its failure to account for societal systems of power including male dominance, capitalism, and homonormativity. Power itself is changeable, and cannot be inferred from status or identity alone – it is not possible to account for dependence and vulnerability in an orderly, fixed sense. Power can be sourced from rules, norms, and the parties’ characteristics and relationship with one another. (See discussion in our recent post about The Power of Parties in Mediation: What is the Mediator’s Role?).

Through a relational lens, the limits of “free agency” can be accounted for, without deciding for participants what a “good” outcome looks like. Rather than pretending that the complex inequalities and dynamics of power can be “balanced” between negotiating parties, “relational autonomy” recognises the influence that people have upon one another within their relationship, the growth of self within relationships, and the way care and dependence are mutually constructed. The practical challenges abound, and (unanswerable) questions are raised, including:

What relations, and legal regulation of those relations,  will enable everyone to participate most freely and equally in the creative refashioning of consensual life?

What kinds of changes are required in society before we can place more trust in consent as a legal and ethical marker for human flourishing?

How might our capacity for relational autonomy be enhanced by restructuring the foreground and background rules under which consent is given?

How can we refurbish the law of consent to better promote our capabilities to codetermine the practices of sex and settlement?

Queer theory “seldom lends itself to easy solutions,” but applying its lens to settlement provides an opportunity to shake up the underlying assumptions, fears, limitations and normative expectations that influence the practice of settlement. What if there were new ways of doing dispute resolution that recognise properly the changeability, subjectivity and inherent unreasonableness of humans, and the unevenness we inevitably bring to our relationships and settlement processes?

Daniel Del Gobbo concludes:

…negotiation is not a struggle that should constrain our equality seeking, but a process that can expand our imaginative possibility and transformative reach if we conduct yourselves responsibly. In my view, that is what “queer dispute resolution” looks like. [p 327]

Theoretical examinations don’t provide neat or easy solutions, but they invite us to reflect on our field and to invent better ways of doing our work. Perhaps dispute resolution theory could benefit from a bit of “queering” to ruffle our feathers and challenge us to think in different ways. Like sex, settlement provides a wonderful opportunity for a mutually pleasurable experience, is sometimes mutually agreeable but less than fantastic, but also has risk of abuse or unfair advantage being taken by one party against the other.

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The Power of Parties in Mediation: What is the Mediator’s Role?

This guest post has been contributed by network member Robert Angyal SC. Robert is a barrister, mediator and arbitrator. Mediation habeen a substantial part of his practice since 1991. His publications include Chapter 13 in M. Legg (ed.) Resolving Civil Disputes (LexisNexis Butterworths 2016), “Advocacy at Mediation:  An Oxymoron or an Essential Skill for the Modern Lawyer?” This post is partly drawn from an earlier post on LinkedIn.

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https://www.maxpixel.net/Muscles-Show-Popeye-Sailor-Man-Spinach-37118

  1. Outline of post

This post presents some new ideas about the mediator’s role with respect to the power of parties in mediation, which it is hoped merit further research.  It provides a taxonomy of types of power possessed by parties in mediation and reflects on the relevance of these powers. It questions whether a mediator can in fact know where power lies in any particular mediation and points out that, even if this can be known, power is not static, but dynamic; it can move around over time. Some commentators contend that, where there is a significant imbalance in party power, mediators have a duty to level up the parties’ power; others assert that they have a duty not to do this. The post explains that this debate is entirely academic because, in practice, power-levelling is either impossible or prohibited. Nevertheless, and reassuringly, the post concludes by explaining that mediators can perform a very constructive role with respect to the parties’ power.  If they do, parties’ self-determination will be augmented.

  1. A taxonomy of party powers in mediation

Power of parties in mediation comes in a variety of types. The following taxonomy almost certainly is not exhaustive.

Financial power: Big Bank v. Freddie Farmer: huge financial resources v. not very much at all.

Forensic power: Senior Counsel, junior barrister, law firm partner and employed solicitor v. suburban practitioner or no lawyer at all.

Substantive power: Party A’s case seems strong to overwhelming on the facts and the law. Party B’s case seems weak to hopeless.

Negotiating power: Party A is a sophisticated and experienced negotiator. Party B is an first-time participant in mediation. Party A has invested significant resources in preparing for the mediation. Party B has skimped on preparation in the hope of an early settlement. Party A is realistic about its prospects. Party B is wildly optimistic about its prospects. Party A does all the talking. Party B is interrupted/cut short.

Moral power: Party A’s position is in the public interest/promotes sobriety/will slow global warming. Party B’s position cheats widows and orphans/promotes tax evasion/threatens old-growth forests.

Gender power: Women may not ask for as much as men. Women “are more concerned with care issues whilst men are preoccupied by notions of justice” (Rachel Field, Mediation and the Art of Power (Im)Balancing, 12 QUTLJ 264 at 267 n. 21 referring to Carol Gilligan, “In a Different Voice: Psychological Theory and Women’s Development Harvard Univ. Press, Cambridge 1982).

For a very different taxonomy, with eight categories of power, see Omer Shapiro, ”Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics (2009) 24 Ohio State Journal on Dispute Resolution 3.

  1. The relevance of power in mediation

Power is relative. If two Big Banks face off against each other, there probably will not be much disparity in power. If both parties to the dispute are female, there is no disparity in gender power.

Further, because there are different sources of power, a party’s power from one source may be either augmented or diminished by power from another source.  For example, Big Bank may possess enormous financial power but, in a particular mediation, it may have little substantive power (i.e., its substantive case is weak) and, because it is poorly represented, it may lack forensic power.  How in this situation one quantifies the overall power of Big Bank is beyond the scope of this post.

Power in mediation can be seen as the ability to get what you want from the other party. In the context of mediation, this probably means getting the other party to sign the settlement agreement that you want.

A party always has the right to end a mediation without agreeing to anything. Given a large disparity of power between the parties, however, this may not be a realistic alternative for the weaker party.  If it is not realistic, the greater power of the other party remains relevant.

  1. Can the mediator know where power lies in mediation?

All theories requiring a mediator to take action with respect to unequal power of the parties are based on an implicit but unarticulated assumption:  That, in a particular mediation, the mediator can identify where power lies.

In practice, several factors constrain the mediator’s ability to do this.The factors include:

  • The mediator has limited knowledge of the facts, knowing only what the parties have chosen to tell her/him.
  • The mediator has limited knowledge of the relevant law.
  • The mediator has limited knowledge of the parties’ interests and needs, again knowing only what the parties have chosen to tell him/her.
  • Financial power: Big Bank has to make a profit. Throwing good money after bad makes no more sense for Big Bank than for Freddie Farmer. Having financial power thus does not necessarily mean that it will be exercised.
  • Forensic power: There are good silks and not-so-good silks. There are some brilliant suburban practitioners.  And, in any event, the forum is a mediation, not an adjudication.
  • Substantive power: How can the mediator, often with very limited information, understand the respective strengths of the parties’ positions?
  • Negotiating power: This is partly within the mediator’s control.
  • Moral power: Opinions on moral issues differ.
  • As noted in the previous section, power from one source may be increased or decreased by the party’s power (or lack of it) from another source.
  1. Power is not static; it can and does move around during the mediation

Even if a mediator is able to identify where power lies in a particular mediation, it may not remain there. Consider a farm debt mediation where the farm has been mortgaged to Big Bank and the mortgage payments are substantially in arrears.

As long as the value of the farm exceeds the amount borrowed plus accrued interest and costs, Big Bank can be uncompromising and will probably negotiate only about how much time the farmer has to pay the mortgage debt – failing which it will padlock the farm gate and put a “Mortgagee Sale” sign on it.  There seems no doubt where power lies.

If, however, it transpires that the value of the farm is less than the amount secured over it, the power relationship is quite different.  The bank’s legal powers are the same, but exercising them will result in the bank’s recovering only part of what it is owed. The farmer’s personal covenant on the mortgage probably is worthless.  A large amount may thus have to be written off. Heads may roll in the Rural Lending Department of Big Bank.

In the second scenario, the bank may become interested in all sorts of settlements that:

  • Require the willing participation of the farmer;
  • Require the bank (at least for now) to forego recovery;
  • Require the bank to lend more money; and
  • In effect, require a joint venture between Big Bank and the farmer.

Possibilities include:

  • Subdivision of the farm for sale as hobby farms;
  • Novel crops with high value like blueberries; and
  • Investing in irrigation, pasture improvement, new barns, new dams and new fencing to improve the productivity and value of the farm.

In the second scenario, paradoxically, the farmer’s weakness has become a source of power.

Consider a simpler example: the mediation of a personal injury claim. The plaintiff, supported by cogent and thorough medical reports, claims to have an incapacitating and permanent back injury sustained at work.  Liability is not in dispute.  The plaintiff is in an obviously powerful position.

Then the defendant insurer produces a recent surveillance video, showing the plaintiff lifting weights at a gym. Power instantly shifts to the defendant.

The plaintiff then establishes that the video shows not him, but his twin brother, a triathlete. Power instantly shifts back to the plaintiff. 

  1. Competing theories about power in mediation

There are two principal theoretical approaches to mediators’ duties in working with power imbalances.

Theory One: The mediator has a duty to balance the parties’ power

  • One party to a mediation may be significantly more powerful than the other.
  • A significant power difference between the parties may lead to one party dominating the process.
  • A significant power difference between the parties may lead to a settlement that largely favours the more powerful party’s needs and interests.
  • This is unfair. At the extreme, the result is coerced.
  • One of the functions of mediation is to redress unequal bargaining power.
  • The mediator therefore has a duty to the process and/or to the parties to try to balance the parties’ power in the mediation.

See, for example:  Ali Khaled Qtaishat, Power Imbalances in Mediation (2018) 14 Asian Social Science No. 2 75 at 79; Rachel Field, supra, at 269-270; James South, Heather Allen and Sean McTernan, Balancing Power in Mediation (CEDR – The Second European Mediation Congress) at 3, 4, 6, 9, 14; Amrita Narine “Power Imbalances in Mediation Student Note, Harvard Negotiation Law Review 2017 at 9ff.

Theory Two:  The mediator has a duty not to balance the parties’ power

  • Mediation theory and most mediation agreements require the mediator to be neutral and impartial towards the parties.
  • Neutrality” means that the mediator is disinterested in the outcome of the dispute.
  • Impartial” means that the mediator treats the parties in an equal and even-handed way.
  • Disparities in bargaining power are a fact of life inside and outside the mediation.
  • If the mediator were to take steps to lessen the power of the more powerful party or to increase the power of the less powerful party (or both), in order to affect the outcome of the mediation, she or he would not be acting in a neutral or an impartial way.
  • The mediator therefore has a duty to the process and/or to the parties not to try to balance the parties’ power in the mediation.

See, for example, Rick Voyles, “Managing an Imbalance of Power (2004); and Susan Douglas, “Neutrality, Self-Determination, Fairness and Differing Models of Mediation” (2012) 19 James Cook University Law Review 19.

  1.  In practice, power-balancing is either impossible or prohibited

The debate between the two theories of power-balancing is fascinating but, it transpires, entirely academic.  This is because a practical and a legal problem prevent putting power-balancing into practice.

The practical problem:

If a mediator disclosed in their mediation agreement or at the preliminary conference that they intended to engage in attempts at levelling up the power of the parties, it is almost certain that they would not be hired as the mediator.  Why would a party spend lots of money preparing for the mediation, on conferences with solicitors and counsel and on preparation of position papers, and then commit to spend yet more money on a mediator whose stated aim was to dissipate the very advantages that had arisen from their careful preparation?

This practical problem is fatal to any theory of power-balancing because – no matter how compelling the theory in favour of power-balancing may be – a mediator who honestly discloses their intended role almost certainly will never have an opportunity to perform it.

The legal problem:

The legal problem is even worse.  Assume that the mediator did not disclose in the mediation agreement that they intended to take such steps as in their discretion seemed appropriate to increase the power of the less powerful party, at the expense of the more powerful party, and instead held herself out as neutral and impartial. Attempting power-balancing in this situation not only would breach the mediation agreement but would also render entry into it misleading and deceptive conduct in trade and commerce, in breach of s. 18 of the Australian Consumer Law, which applies to mediators. [note 1]

Even if the mediator said nothing on the issue in the mediation agreement, that silence itself probably would constitute misleading and deceptive conduct, for the reason that the role of mediator gives rise to an expectation in the parties and their lawyers that the mediator will be neutral and impartial, whereas the mediator always intended to act contrary to the expectation but failed to disclose their intention. [note 2]

Thus a mediator who discloses that they intend to engage in power-balancing is very unlikely to be hired as a mediator.  On the other hand, a mediator who intends to engage in power-balancing but does not disclose their intention to the parties will probably breach the mediation agreement and almost certainly will breach the Australian Consumer Law.  It follows that, unless mediators are prepared to engage in prohibited conduct that may render them liable in damages, they will not in practice have an opportunity to balance parties’ power.

note 1: The definition of “trade and commerce” in s. 2(1) of the Law states that it includes “any business or professional activity (whether or not carried on for profit”. The definition of “services” in s. 2 of the Law includes “benefits … under… a contract for or in relation to the performance of work (including work of a professional nature).” The confidential and “without prejudice” regime imposed by most mediation agreements cannot exclude the Lawbecause s. 96 provides that the Law has effect despite any stipulation in any contract or agreement to the contrary.”

note 2: See, e.g., Demagogue Pty Ltd v Ramensky(1992) 39 FCR 31 at 32; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd(2010) 241 CLR 357; [2010] HCA 31 at [16]-[33]; and Porges v Adcock Private Equity Pty Ltd[2019] NSWCA 79 at [109]-[110].

  1. Does a mediator have any role with respect to power imbalances?
  • For the reasons in section 7, the mediator probably has no realistic alternative to taking the parties as she or he finds them.
  • That does not mean the mediator has to leave the parties in the position in which she or he finds them. Although mediators cannot engage in power-balancing, they nevertheless can play a very useful role with respect to parties’ powers.
  • Reality testing by the mediator in private of the parties’ positions may significantly affect their approach. Likewise, reality testing about the durability or enforceability of proposed settlement agreements may affect their approach.
  • Is there a contradiction between taking the parties as you find them and attempting to shift the parties’ positions towards each other so they can settle their dispute?
  • There is no contradiction: It is a hallmark of legitimate reality testing that mediator does not upset existing power imbalances.
  • It is the hallmark of illegitimate reality testing that it does upset existing power imbalances by (for example) providing a party with legal knowledge that it has not invested in unearthing (“There’s a recent High Court decision on limitations that is right on point and which means that the other party is out of time.”). This is illegitimate behaviour because it is not neutral or impartial. Acting other than in a neutral and impartial way creates a risk for the mediator of losing credibility/losing influence/being fired.
  • Instead, the mediator should accept existing power imbalances and assist each party – given the imbalances – to analyse the strengths and weaknesses of its position and of the other side’s position. This analysis can also help a party determine whether offers received or contemplated are better or worse than the party’s BATNA.
  • Women tend to value relationships more than men and thus, for fear of damaging a relationship, a woman may be inclined to ask the other party for less (or offer to pay them more) than a man who has the same BATNA (Babcock & Laschever, “Women Don’t Ask: Negotiation and the Gender Divide”, Princeton University Press 2003). Where appropriate, the mediator can help a party to understand that this is what she is doing. The mediator thereby helps her understand the nature and effect of gender power.  By doing this, the mediator enables the female party to decide consciously whether she values the relationship more than the best possible outcome of the dispute, rather than unconsciously making this decision.
  • The mediator can assist a party to make realistic concessions or to capitalise on a strength itpossesses. This is not balancing power; it is recognising realities about power.
  • Viewed this way, the mediator’s tasks with respect to party power can be seen as (i) helping each party to understand what power they have and how and when they should use that power and (ii) helping them understand what power the other party has and how and when it might use it.
  • These tasks not only are consistent with being neutral and impartial but also they help the parties to participate effectively in the mediation and thus augment their self-determination.
  1. A comforting conclusion

Reality testing is a core activity for a mediator. The mediator can employ it to help parties themselves to identify issues around power and to exercise their own decision-making about how they deal with it.  This enhances party self-determination.

Viewing the mediator’s role with respect to party power this way means that the patient, careful, earnest mediation of disputes remains a useful and important task. Practising mediators like me will be comforted by this recognition of the value of what they do for a living.

Reminder about how to be a part of our network

Hello Australasian Dispute Resolution Research Network (ADRRN) followers, I thought it might be time to inform/remind you about our approach to membership. Basically, this network is entirely voluntary and members (you) bear the responsibility to keep in touch with us, because we don’t keep a membership list. I’m sure you understand why – we all have quite enough administrivia in our lives already, and the ADRRN couldn’t possibly keep track of where people move to as they follow their exciting ADR related careers. We like to see it as an innovative and inclusive way to run an organisation. There are no membership fees, no backroom membership deals, no paperwork, and no hierarchy. We use technological platforms and each individual can decide how it suits them to participate. Everyone’s a grown up who keeps themselves informed about the aspects of the network that they are interested in.

Keeping connected

To join the ADRRN, follow us here (at http://adrresearch.net). Our blog is our public face and the way we communicate our work to the world.

That’s it! Done.

Now, to make sure you don’t miss out, think about how it suits you to follow us. Options include:

  1. set up an email alert about each of our posts to your email account, you can control how frequently and when the email is sent;
  2. follow us on Twitter @ADRResearch, every article on the WordPress site is automatically posted to Twitter;
  3. follow us on Facebook.

You, our members, are important to us. We want you to follow our blog, our twitter account, to consider joining our annual Roundtables, to contribute content by commenting or posting, and to otherwise be part of this community.

RoundtablesADR Roundtable Dec 2018 Sunshine Coast

Our 2019 Roundtable will be held at Latrobe University in Melbourne, hosted by Lola Akin Ojelabi and Jackie Weinberg. You can see the Call for Papers for more information. Our Roundtables are not like other conferences – we insist that the work be in progress and the papers are discussed rigorously with a view to helping the author improve their work before it is finalised. It’s amazing what can be achieved when everyone is brave enough to participate in this mutually supportive process. See reflections on our last Roundtable at Open letter of thanks and appreciation #ADRRN18.

 

When you have submitted your abstract, you will be contacted by email from adrresearch@gmail.com. Communication by email will happen before and immediately after the Roundtable for participants only. Please note, that email list is not an ADRRN membership list! A new email list is created each year and the gmail account lies dormant except in relation to Roundtables.

Contributing to our online content

Please think about how you might like to contribute your ideas to the network.

The easiest way is to re-post and/or comment on Twitter, WordPress or Facebook.

You might like to create a post (see suggestions and guidelines below). You can email me Olivia.Rundle@utas.edu.au. I am overall editor in charge of the blog, and I coordinate the many people who also volunteer their time to keep our network active. Each month one or two members ensure that regular posts are made. As a courtesy, we coordinate timing of posts with the monthly editors. We can discuss joining you as a regular author or you might like to volunteer to take on editing for one month.

Suggested content

See Becky’s very helpful piece about academic blog posts. We prioritise posts that share scholarly ideas and talk about research in the DR field. Some approaches to content that have worked for our blog in the past include:

  • Summarising a more substantial academic piece of writing (either by the original author or someone else);
  • Introducing a new idea that you intend to pursue in your research, perhaps by responding to a current issue or event;
  • Introducing a Dispute Resolution researcher by profiling them and their work
  • Sharing a call for papers for a research conference
  • A series of posts over a month that draw from a new publication
  • Guest posts by students, drawing from quality work they have submitted for assessment
  • Reports about conferences or research meetings
  • Stories about the process of research.

Guidelines for content

  1. The ADRRN blog can only be used to share our own or others’ academic work. The blog should not be used to promote our commercial practices in law or dispute resolution.
  2. Blog posts work well as half way points between conference papers and academic articles. They can be used to spark ideas for conference papers or articles or to summarise published work. For PhD students, a blog post summarising a chapter of your thesis could work also. You could set blogging as an assessment task for your students and then publish the best ones.
  3. Ideally a blog post is between 500-2,000 words.
  4. Try to use hyperlinks rather than endnotes wherever possible. Reference open access materials wherever you are able, or at least link to the place where a publication can be purchased. Many of our readers do not have access to university library subscription databases.
  5. Try to include photos/images in your post. It is important not to breach copyright restrictions. You could use a photo that you have taken yourself or you could use photos that are open access/licensed under Creative Commons or which are out of copyright. All of the State Libraries in Australia have picture libraries that are searchable and which have photos with minimal copyright restrictions. (Always check the terms of use of the photo in the library record when you search and attribute as required). We love using old photos with some kind of tangential relevance only to the post. Or you can check out compfight.
  6. Post during Australian business hours, ideally between 8-10am AEST. Use the scheduling feature to optimise posting time.

I hope this is helpful and I look forward to your continuing involvement with the ADRRN, in your own preferred way.

Can Judges Mediate? CASE NOTE: Wardman v Macquarie Bank

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[Free Image by Augusto Ordonez, Pixabay]

On 10 April 2019, Judge Dowdy of the Federal Circuit Court published his reasons for refusing to make a consent order that an employment law matter be referred to mediation by a Judge.

The parties in Wardman & Ors v Macquarie Bank Ltd [2019] FCCA 939 applied for consent orders to resolve some procedural matters and refer the substantive dispute to mediation by a Judge, pursuant to s 34 of the Federal Circuit Court Act 1999 (Cth) and rule 45.13B of the Federal Circuit Court of Australia Rules 2001 (Cth). Rule 45.13B(2)(a) explicitly anticipates that an order referring a proceeding to mediation may order that the mediator appointed be a Judge:

…(2) The mediator for the mediation must be: (a) a Judge; or…

Nonetheless, Dowdy J contacted the parties informing them that he believed he should not make an order that a Judge act as a mediator. Instead, he made an order for a Registrar to act as mediator. His Honour’s reasoning for his refusal to appoint a Judge as mediator can be summarised by the following 3 propositions:

  1. Mediators and Judges perform distinct roles
  2. Acting as a mediator is incompatible with the Constitutional role of a Judge (and Rule 45.13B(2)(a) is invalid)*
  3. Judges are not qualified to act as mediators

1. Mediators and Judges perform distinct roles

Source of authority

  • The Constitutional power to mediate is the Conciliation power in s 51(xxxv).
  • A Judge exercises judicial power under s 71 of the Constitution.

Facilitation of consensus v determination of dispute

  • Mediators aim to resolve disputes by consensus.
  • Judicial power is an elusive concept, but at its core is the power to decide controversies (ie, to determine the outcome of disputes).

Context of decision-making

  • Mediation is typically private, confidential, informal and non-adversarial.
  • Judicial power must be administered in public and reasoning must be published. The judicial process is primarily adversarial.

2. Acting as a mediator is incompatible with the Constitutional role of a Judge

Judicial power must be exercised according to judicial process

  • Judicial process requires (with limited exceptions) open and public inquiry, application of rules of natural justice, identification of law and facts, and application of law and facts to decide the outcome (see Grollo v Palmer).
  • Mediators meet in private, sometimes with only one party at a time, do not decide facts or law, do not make decisions, mediated decisions are not required to be made according to legal principles, and neither reasons nor decisions are published.

Judges cannot perform functions incompatible with judicial power

  • Judges cannot exercise non-judicial functions that would prejudice their capacity to discharge effectively the judicial powers of the Commonwealth
  • Rule 45.13B should be read to preclude a Judge who has presided over a mediation from subsequently hearing or determining the case.

[31] If I had acted as a mediator in this case as requested by the parties I would have sterilised and rendered inoperable my judicial power to hear and determine the case. In other words, by agreeing to act as a mediator I would have undertaken a function which was incompatible with, and which would have precluded me from, discharging my obligation as a Judge to hear and determine a matter which in the regular course had be docketed to me by the registry of the Court.

Courts and Judges cannot and do not provide advisory opinions

  • Judge Dowdy referred to Plaintiff M68/2015 v Minister for Immigration and Border Protection as authority for the proposition that Chapter III Courts and Judges cannot provide advisory opinions.
  • Mediators in court-connected mediations “invariably” provide advisory opinions.

[32]…parties to a mediation invariably expect the mediator to give his or her views on their respective prospects in the context of the existing or foreshadowed litigation which the mediation is seeking to obviate and on the reasonableness of any proposed settlement. This is the case whatever the kind or model of mediation being undertaken. It is particularly the case that economically weaker and more vulnerable parties desire the opinion of the mediator on such matters.

Mediation is not a traditional function of courts

  • Some functions other than the adjudication of rights were traditionally exercised by courts and therefore fell within the concept of judicial power contemplated by the authors of the Constitution. For example, administration of trust assets, winding up companies, maintenance and guardianship of infants, grants of probate, and making of rules of court.
  • The process of mediation cannot be accepted to have been a traditional or historical feature of the powers exercised by courts.

Mediation functions are distinct from judicial power

  • This proposition was confirmed by the Boilermakers case – a power to prevent and settle disputes by conciliation and arbitration is completely outside the realm of judicial power.
  • Although mediators and Judges both practise fairness, patience, courtesy and procedural fairness, only a Judge determines a justiciable issue.
  • Because the power to mediate falls outside judicial power, Dowdy J concluded that:

[38]…neither Parliament nor the Judges of this Court can make rules of court that authorise or require a Judge of this Court to act as a mediator

  • While Courts and Judges regularly encourage settlement and adjourn hearings to allow settlement negotiations to occur, it is not considered appropriate for Judges to participate in those negotiations themselves.
  • There is no inherent connection between mediation, conciliation and legal proceedings, as not all mediators are legally trained and not all mediations occur in connection with litigation.
  • Mediation is not incidental to the exercise of judicial power.

3. Judges are not qualified to act as mediators

  • Mediation is a craft that requires specific education and training, as well as accreditation and ongoing professional development.
  • Eminence, judicial ability and legal knowledge and experience do not necessarily equip Judges to act as a mediator.
  • Judicial Registrars of the Federal Circuit Court are trained and accredited mediators.
  • There are thousands of appropriately qualified and accredited mediators who could conduct private mediation at an affordable cost.
  • It is inappropriate to appoint a Judge to mediate a case merely to access the authority of the Judge to induce or extract a settlement.
  • Judges should give exclusive primacy to their judicial role rather than acting as a mediator in cases before the Court.
  • Judges have busy dockets and it is unjustifiable to take time out of the activity of judging in order to act as a mediator.
  • Judges should not risk being called as witnesses about what happened in private mediations.
  • If a Judge acting as a mediator gave an evaluation of the legal case, and a Judge acting as a Judge subsequently decided differently, the standing of Courts and Judges would be diminished.

Comment

This judgment provides some very interesting insights about court-connected dispute resolution practice. Dowdy J has lived experience as a senior legal practitioner with many years’ participation in court-connected mediation and some of his reasoning is based upon that personal knowledge. In paragraph [32] quoted above,  His Honour claimed that mediating parties, particularly weaker or more vulnerable parties, invariably expect the mediator to express views about both the likely outcome of litigation and whether or not a proposed settlement is reasonable. His Honour continued:

[33] It so happens that, in the course of my practice as Counsel over the 25 years prior to my appointment to this Court I appeared at well over 125 mediations, regularly before the pioneers of mediation in Australia, being Sir Laurence Street QC and Mr Trevor Morning QC. In my experience virtually all mediators are prepared at a mediation over which they preside to advise in general terms, both on the parties’ respective prospects of success in any litigation and the reasonableness of the proposed settlement terms. Some very few mediators may decline to give their views on prospects of success, but I have never known or heard of a mediator failing to give, either expressly or at the very least impliedly, his or her approval and approbation to the settlement which successfully concludes the relevant mediation.

His Honour returned to his strong view about what litigating parties expect from a mediator:

[55]…by not evaluating the parties’ prospects of success I would have denied to them a characteristic function expected of mediators (see [32] and [33] above) which would be provided by Judicial Registrars and private mediators.

The mediations described fall far outside the concept of facilitative mediation. If evaluation is a “characteristic function” of court-connected mediation, then this should be acknowledged properly and taken into more serious consideration in training and accreditation processes. The question of whether or not litigating parties expect this style of mediation (a) because it is what they have experienced before, or (b) because it is their preference over other styles, is also worthy of interrogation. Should facilitative mediators market their services from a point of difference, instead of assuming that facilitation is understood by prospective clients as the “standard” form of mediation?

The equating of mediation with conciliation in the judgment was the means by which His Honour located the mediation function within the Constitutional powers. The definition of mediation is hotly disputed within the dispute resolution community (as is whether Dispute Resolution is preferable to Alternative Dispute Resolution). However, this judgment raises again the question of whether or not court-connected dispute resolution of the character described and expected should more appropriately be called “conciliation”, in order for it to be distinguished from other kinds of dispute resolution practice.

There is great potential for the private mediation sector to provide affordable dispute resolution services to litigants. Judge Dowdy identified many problems with using Judges to mediate, when there is a surplus of appropriately qualified and accredited practitioners available to assist parties navigate a path to settlement. What creative ways can the mediation profession use to attract the respect and legitimacy that parties are seeking when they prefer senior legal minds to act as mediators of their disputes?

*Note: The decision specifically relates to Judges who exercise the judicial power of the Commonwealth of Australia. The Commonwealth Constitution mandates separation of judicial power and the Commonwealth legislature cannot confer non-judicial functions on Judges except those that are incidental to their judicial function (see Boilermaker‘s case). The situation is different in state jurisdictions (see Kable and Momcilovic cases).

The ethics of 21st century ‘family justice’ research: Invitation to Workshop

The Australian Chapter of Family and Conciliation Courts is hosting its conference in Sydney between 15 to 17 August 2019. ADRRN members are welcome to register to attend the conference. Chapter secretary Jenni Neoh has alerted us to a workshop of particular interest to researchers in family law and family dispute resolution.

AFCC-LogoThe ethics of 21st century ‘family justice’ research, and its application to professional practice

Associate Professor Nicola Taylor, Alexander McMillan Chair in Childhood Studies, Director, Children’s Issues Centre University of Otago, Dunedin, New Zealand, Professor Judith Cashmore, University of Sydney, Sydney NSW.

This full day workshop draws together the combined expertise of three leading international researchers who have undertaken numerous studies on a diverse range of family law issues including post-separation residence and contact arrangements, relocation, international child abduction, children and young people’s views/participation, child protection, out-of-home care, child witnesses and family dispute resolution processes. The researchers will provide a unique perspective on the nuances of ethical research with families, particularly separated parents and their children, and with the family justice professionals who work with them. The workshop explores key ethical issues and complexities that have arisen for them in the research context, but which also have relevance for working with, or representing, children more generally in the family justice context. The benefits and limitations of social science research evidence in family law practice and dispute resolution will also be addressed.

Participating in this workshop is critical for all family law professionals, researchers and academics who want to better understand and discuss the role of research in the family justice field and how it applies to their practice or field. Opportunity will be given to workshop participants to raise ‘ethical’ issues they have grappled with too.

Conflict about Climate Change

Screen Shot 2019-03-15 at 10.51.42 amSchool students are protesting today about the failure of politicians to take serious action in response to climate change. They are calling for action. The Global Strike for Future grew from 16 year old Swedish student Greta Thunberg‘s decision to strike on Fridays outside the Swedish parliament. She has been joined regularly for Friday protests by students in Germany, Belgium, Britain and France. Today’s global protest is happening in 112 countries including Australia. “Pupils from hundreds of schools in over 55 cities and towns across Australia are using the action to call on all politicians to stop Adani’s coal mine, say no to all new fossil fuels and power Australia with 100 per cent renewable energy by 2030.

A protest is obviously evidence of a dispute, in this case between politicians and young people, most of whom are not yet allowed to vote. It is hard for people without a right to vote to persuade democratically elected politicians. The power imbalance between the primary parties to this dispute is obvious. However, if there is, as is expected, a significant turn out in numbers, a strong message will be sent to politicians about what future voters think about their performance on climate change. The dispute has already sparked reaction from politicians in Australia, with the Prime Minister, Deputy Prime Minister, Commonwealth Education Minister and NSW Education Minister all making public statements calling for students to stay in school and not participate in the strike. The Deputy Prime Minister said in parliamentary question time that “the children should be staying in school to learn about Australian history, to learn about Australia geography“. Prime Minister Scott Morrison has called for less activism and more learning in schools. Essentially, none of these responses address the substantive concerns of the protestors, instead concentrating on the right to protest where it conflicts with the policy of compulsory school attendance. Other politicians have supported the children’s right to protest, including the ACT Education Minister.

Another argument raised against the protest is that because the people protesting are children, they are essentially being “politicised” and used by adults to push a political agenda. Students have responded assertively against such claims, reinforcing that they are expressing their own concerns. This argument plays upon the power imbalance between the parties, because the people protesting are being told that their message is less persuasive because they lack capacity to form a truly independent opinion in the way that an adult can.

The dispute has spread well beyond the two groups of politicians and school students who wish to protest. Schools have been divided in their support or non-support of their students attending, media coverage reveals a range of views for and against, and parents and children have been negotiating their way around whether or not they are allowed to or supported to participate.

The opportunities for the application of conflict management and resolution processes in this context are infinite.

  • Within families, the opportunity to engage in meaningful, respectful discussions about the issues of climate change action and protesting about it in school time has been taken in many families. There has potentially been enormous growth in the skills that both children and parents have chosen and developed in these dialogues.
  • Similarly, students, teachers, parents, and school principals have all had the opportunity to discuss the issues, negotiate possibilities, and communicate boundaries within school communities. Thinking about ways to enable different points of view to be expressed, and to manage conflicting opinions, power imbalance, and mass protest must have been an enormous challenge within schools. There is always the choice to use power to say “no”, but the civil disobedience on a mass scale that might follow then also has to be dealt with. It will be interesting to see whether schools take the opportunity for a “teachable moment” to discuss protest, school attendance and climate change action by politicians and ordinary people, and effective ways to manage conflicting points of view.
  • Politicians have an opportunity to decide how to engage with the message that the people they govern are sending them. They could decide to open a conversation, to think critically about how people under the age of 18 can meaningfully participate in political life, and to take a more collaborative approach to the conversation rather than the adversarial “for or against” approach that appears to have been adopted so far.

 

Celebrating Women in Dispute Resolution

Happy International Women’s Day 2019. You may like to flashback to our 2017 International Women’s Day post about gender issues in dispute resolution. This year, I want to celebrate the community building contributions of women dispute resolution practitioners and researchers.

Our Australian Dispute Resolution Research Network is filled with wonderful women, who strive to maintain a mutually supportive, inclusive and friendly community. Women are very well represented among our membership. Many of the prominent scholars in the dispute resolution field are women – we read their work, they supervise(d) our research training, they inspire us. (NB I thought about making a list and decided it would be way too long and could never be inclusive of all the wonderful women DR researchers!). Most of the people who have supported me in my research so far are women. I am forever indebted to them for their welcome, genuine interest, time, care, kindly communicated rigour, and fabulous company. Community is best when everyone makes an effort, and in my own experience, women are particularly adept at building and maintaining community – giving and receiving so much in the process.

In some areas of dispute resolution women appear to face substantial barriers. There is a ‘persistent and severe under-representation of women in the highest levels of international mediation, particularly at the United Nations.‘ By “highest levels” I am guessing the author is referring to the most prestigious and best remunerated international mediation opportunities. The United Nations has recognised that there needs to be equal representation of women as compared to men in international peace building processes. Under-representation of women in international dispute resolution has been given scholarly attention. Attempts to support women’s participation in international level dispute resolution processes include the Women Mediators Across the Commonwealth, a ‘platform for the peer-to-peer exchange and learning of women mediators from across Commonwealth countries.‘ Networks have been created around the globe, to support the participation of women in mediation as a peace building activity. Benefits of networks of women include: improved access to women mediators, best practice development, research and analysis, publication, better consultation with women’s groups, technical expertise, training, confidence building, and inter-generational relationship strengthening.

The example above demonstrates that where there is a will to increase women’s participation in our field, networks can be used to build capacity, confidence, community and profile.

Thank you to all you women in the ADRRN.

 

ADR rountable dec 2018cris 2

[photographs of some of our women members from the December 2018 ADRRN Research Roundtable, University of the Sunshine Coast, Queensland]