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.

Roundtable Wrap Up and Handover of Leadership Roles

Well, what a fabulous 48 hours were had at Latrobe University in Melbourne, Victoria on Monday 9th December and Tuesday 10th December 2019! The ADRRN Roundtable is a deliberately rigorous and kind gathering of dispute resolution related researchers who are brave enough to share their work in progress for face to face review by peers. Especially delightful is the growth in participation by early career researchers, including PhD candidates. It seems that word has got out that there is something pretty special on offer.

Associate Professor Lola Akin Ojelabi of Latrobe University and Jackie Weinberg of Monash University were our most excellent hosts. Lola is a founding member of the network. Jackie has completion of her PhD in sight. Jackie came along to the ADRRN Roundtable earlier in her PhD journey and mentioned at the Roundtable opening the value she now places on that experience.

Papers presented and discussed

Many of the people who presented work at the Roundtable have prepared posts that will be rolled out here over December and January. Two posts have already been made – if you missed them see Rosemary Howell and Emma Lee’s The story of a collaborative journey – through the lens of reimagining the conflict narrative using lessons from Indigenous Australians and Emilia Belluci’s The future of ODR: what are the benefits and drawbacks of F2F negotiation, and its applicability to future ODR design?

Handover of Leadership Roles

Reflective of the evolution of the network, we are pleased to announce a change of roles from 2020.

These changes have been reflected on our About page.

For a refresher, see also and explainer of our approach to membership.

When is the next Roundtable?

The 9th Roundtable of the ADRRN will be held in February 2021 in Newcastle, New South Wales, Australia. The exact date will be announced in early 2020 when the Call for Papers will be posted on adrresearch.net.

For an indication of what kind of content is considered relevant for ADRRN Roundtables, see the 2019 Call for Papers and our list of papers workshopped at the 8th Roundtable. We are a broad interest group, drawing together work from a range of disciplines and processes, provided they fall into the spectrum of processes that resolve disputes (other than the formal trial process) or research about conflict and its management.

The future of ODR: what are the benefits and drawbacks of F2F negotiation, and its applicability to future ODR design?

This post is by Dr. Emilia Bellucci, Deakin Business School, whose paper was workshopped at the ADRRN Roundtable at Latrobe University on 9-10 December 2019. This is the first of a series of posts related to the Roundtable.

ODR systems provide support to negotiations by facilitating communication online and in some circumstances even provide solutions to the dispute.  An ODR is considered successful if the outcome represents a similar or better outcome to an ADR process, inferring ODR processes should mimic F2F negotiations.  In a recently published paper (Bellucci et al 2019), my colleagues and I report on an ODR study whereby we replicated Boland and Ross (2010)’s finding that the propensity to resolve a dispute is directly related to the EI (Emotional Intelligence) of disputants.  Boland and Ross’ (2010) study involved F2F (Face to Face) negotiation, whereas our negotiations were conducted online.  Underlying this paper was the assumption that F2F is the preferred format of negotiation, and therefore our findings supported the idea that a successful ODR was one which replicated F2F mechanisms.

In this research I want to challenge this assumption.  Why is F2F negotiation the preferred option for negotiation? Do F2F negotiations achieve better outcomes?

In attempting to answers these questions, we need to understand the seminal differences between communicating electronically and in person. These include the use of verbal and non-verbal cues to express ideas, solutions and feedback. Whilst verbal communication is often supplemented by non-verbal cues, such as body language and facial expressions, I am most interested in the effect of non-verbal communication (which is typically missing in an ODR) on a negotiation. 

Facial expressions (smiles, frowns), crossed arms, learning forward or back, micro expressions are all examples of non-verbal communication.  These expressions, together with the spoken word may reveal a disputant’s joy, anger, sadness, happiness with the negotiation.  Whilst emotions revealed during the negotiation may be used to move a negotiation forward, resolve impasses and settle on amicable solution, they can also be used to deceive and unfairly influence the negotiation.  

Emotions expressed during negotiation vary depending on the context of the dispute, and include nasty emotions (anger, jealousy), existential emotions (anxiety), emotions resulting from positive and negative life events (disappointment, happiness), and sympathetic emotions (gratitude). Research suggests positive emotions tend to contribute positively to the negotiation, while negative emotions contribute negatively to a negotiation. 

In the F2F medium, disputants reveal emotional leakage through verbal and non-verbal cues.  Whilst emotions should not be ignored in negotiation, we should not allow emotions to distance the negotiation away from the issues in dispute. Emotions should be managed so outcomes from a negotiation are reflective of the human experience.

F2F negotiation is preferred for two main reasons: 

  1. F2F is the richest form of communication. It allows for opportunities to clarify interests and positons of the parties and allows for quick feedback and opportunities to reassess options to resolve the dispute successfully. Without F2F, many fear they will accept a solution which may not reflect the best solution. 
  2. Lawyers view ODR with a healthy degree of scepticism, due predominantly to a computer’s lack of creative decision making and inability to understand complex issues. There is a place for ODR as a support to communication (ie video conferencing, email, document management etc) and to resolve small disputes such as in e-commerce (ebay, paypal) where outcomes are set. 

So how can apply the positive aspects of F2F negotiation to an ODR?  Can we have the best of both worlds? 

Here are some ideas for future research: 

  1. ODR can filter language initially by expressing negative emotion to more appropriate language conducive to creating a positive environment. Either the software or negotiators may be asked to soften their language for these purposes. Software can also manage a disputant’s emotional responses by using feedback screens to illicit emotional responses,  after which, the system can deliver responses to help disputants manage their emotion. These designs are in research currently. What may be some of the obstacles to mainstream use? 
  2. Research (one study only) suggests there is no difference between F2F and computer negotiations, specifically relating to how emotion is expressed. People were found to supplement text in ODR with emoticons, capital letters or simply wrote more thoughtfully and clearly to supplement their communication.  Future work may involve the design of an empirical study to compare the effectiveness and communication models of ODR and F2F.
  3. It is perceived that ODR processes do not support the law authentically by providing another avenue for legitimate negotiation. How can we change this perception?  

Dr. Emilia Bellucci is a Senior lecturer in the Department of Information Systems and Business Analytics at Deakin University, Melbourne Australia.  Her major research area is in Online Dispute Resolution Systems with a particular focus on electronic support of family law negotiation and mediations. Emilia completed her PhD in 2004, under the supervision of Professor John Zeleznikow, and resulted in the “Family Winner” computer program which was designed to settle family law disputes. Family Winner was the focus of much media in 2005 with a number of newspaper articles, radio station interviews and television appearances including a win on the science and technology television program, ABC’s “New Inventors”.  

Since then, Dr. Bellucci has conducted research in e-health, small to medium enterprises and has recently returned to Online Dispute Resolution with a renewed passion to make justice (through negotiated outcomes) and ODR accessible to all. Dr. Bellucci has published 16 refereed international journal articles, 3 book chapters and 29 refereed conference papers.  She has attended and presented her research at numerous international conferences and workshops. 

ADRRN Roundtable 2019 – you can join in via Twitter

The Australasian Dispute Resolution Research Network 8th Annual Roundtable starts on Monday 9th December. This year’s organisers are Lola Akin Ojelabi and Jacqueline Weinberg. We will be gathering at the La Trobe University in Melbourne, Australia.

The two day Roundtable is an opportunity to share work in progress and to benefit from generous scholarly attention to presenter’s work.

We know that the work is of interest to many who will not be with us in person. We will therefore be live tweeting next week and sharing posts on adrresearch.net about each of the papers throughout the remainder of December and January. The first was a pre-Roundtable post about Emma Lee and Rosemary Howell’s shared research journey.

On Twitter, you can find us @ADRResearch and this year’s Roundtable will use #ADRRN19. The host institution is @latrobelaw

To whet your appetites, here are the papers being presented on Monday 9th December and Tuesday 10th December 2019. Twitter handles of authors are included so you can connect.

  • Tania Sourdin @TaniaSourdin “Using Technology to support ADR research – the possible and the not so possible (yet)”
  • John Zeleznikow “The Appropriate Design of Online Dispute Resolution Systems”
  • Mary Riley “Potential Cost of Failing to Heal Civilian-Police Relations”
  • Emilia Belucci “Face-to-face dispute resolution and Online Dispute Resolution – Which is preferred?”
  • Joanna Burnett “Social Work in an Adapted Family Law Mediation Program: Literature Review”
  • Tania Sourdin @TaniaSourdin and Margaret Castles “Finding a place for ADR in Pre-action process: South Australian case-study”
  • Becky Batagol @BeckyBatagol “How Can Banks Better Deal with Family Violence Disputes”
  • Laurence Boulle @LaurenceBoulle and Rachael Field @rachaelfield68 “Elections, Politics and Dispute Resolution”
  • Claire Holland @Holland_CL and Tina Hoyer “A case for coaching: How to Measure the Effectiveness of the ATO Coaching Model”
  • Alysoun Boyle @alysounb1420 “Transitional Research Alliance: Innovative Approaches to Mediation Research”
  • Rosemary Howell @RosemaryJHowell and Emma Lee “Reimagining the narrative and its special place in Conflict Resolution using lessons from Indigenous Australians”
  • John Woodward @John_woodward1 “Exploring the relationship between Confidentiality and Disputant Participation in Court-Connected Mediation”
  • Ruth McColl “A discussion on conciliation”
  • Nussen Ainsworth @nussenainsworth and Svetlana German “NMAS and Distinction between process and substance in Court-Connected Mediations”
  • Benjamin Hayward @LawGuyPI “Have post-2009 developments in Australia’s arbitration laws promoted efficient, effective and economical arbitration?”
  • Claire Holland @Holland_CL “Measuring Hope: Levels of Hope in Australian Law Students’ Experience”
  • Mark Dickinson “The Assessment of Suitability for Family Dispute Resolution”
  • Jacqueline Weinberg “Enhancing ADR Teaching and Social Justice Learning in Clinical Legal Education”
  • Dorcas Quek Anderson @DorcasQAnderson “A Matter of Interpretation? Understanding and Applying Mediation Standards”
  • Pauline Roach @Pauline80074936 “Workplace Mediation Model at the Roads and Maritime Services of NSW – 2003-2013”
  • Lola Akin Ojelabi @OOAkinOjelabi “SDG 16 (Access to Justice) and the Singapore Convention”
  • Olivia Rundle @OCRundle, Lisa Toohey @TooheyL and Samantha Hardy @DrSamHardy “Causes of Conflict in HDR Supervision Relationships”

For more information about the Roundtable see the Call for Papers. Please follow us on WordPress or Twitter and look out for the next Call for Papers if you’d like to join the 2020 Roundtable.

Webinar Alert: Co-Creating Mediation Models: Adapting mediation models when working across cultures.

Australasian Dispute Resolution Research Network member Claire Holland will deliver a webinar for Mediators Beyond Borders International (MBBI) in December. Please register by the link below if you are interested to join.

Join our conversation on Co-creating Mediation Models: Adapting Mediation Practices When Working Across Cultures by Claire Holland on Thursday, December 5, 2019, at 5:00 PM ET. In this webinar, Claire will discuss mindful approaches to meeting the needs of the participants of the mediation process.

Click here to learn more and to register.

Claire Holland is the Director of the James Cook University Conflict Management and Resolution Program, a Nationally Accredited Mediator under the Australian Standards, a mediator for the Queensland Civil and Administrative Tribunal (QCAT), and a certified conflict coach with Conflict Coaching International.

Mediators Beyond Borders International works to bring mediation and peace skills to communities around the globe so that they can, in turn, build a more peace “able” world. To this end, MBBI organizes initiatives to address three essential objectives: Capacity building, promoting mediation through advocacy, and delivering consultancy services.

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.

4334413228_6d7c35c38d_z

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.

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.

Popeye

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.