About Dr Rachael Field

Rachael is a Professor of Law in the Law Faculty of Bond University. Her key teaching and research interests are in legal education and dispute resolution. Rachael was awarded an Australian Learning and Teaching Council Citation in 2008 and was made an ALTC Teaching Fellow in 2010. In 2010 Rachael worked with Professors Sally Kift and Mark Israel on the development of the Threshold Learning Outcomes for Law. In 2013 Rachael and Prof Nick James published a first year law text entitled "The New Lawyer". Rachael has been a member of the First Year in Higher Education Conference organising committee since 2007 and now chairs that committee. She was awarded the 2013 Lexis Nexis Australasian Law Teachers’ Association Major Prize for Teaching Excellence and Innovation jointly with her colleague James Duffy. In 2014 Rachael was awarded an Office of Learning and Teaching national Teaching Excellence Award. Rachael has also been a member of the Women’s Legal Service, Brisbane Management Committee since 1994 and has been President of the Service since 2004. In 2010 Rachael, along with the Women's Legal Service Brisbane, was commissioned by the Federal Attorney-General to design a model of family dispute resolution for use in matters where there is a history of domestic violence. This model was implemented in 5 locations around Australia for 18 months and was evaluated by the Australian Institute of Family Studies. In 2011 and 2012 Rachael was invited by the Australian Human Rights Commission to contribute to their International Program by presenting the model to bi-lateral workshops with the All China Women's Federation. Rachael completed her PhD through the Faculty of Law at the University of Sydney under the supervision of Professor Hilary Astor in 2011. Her thesis explored the notion of neutrality in mediation and offers an alternative paradigm based on professional mediator ethics. Rachael was named Queensland Women Lawyer of the Year for 2013. Research Interests • Dispute Resolution • Women and the Law • Restorative Justice • Family Law • Legal Education

System maintenance or mediating big issues?

Here is another excerpt from Chapter 12 of our recently published work: Mediation in Australia (LexisNexis, 2018):

It is a feature of the times to refer to different social phenomena as being in crisis. We read and hear about crises in the environment from deforestation to plastic pollution to space junk; crises in the conditions of over 60 million people dislocated by violence, discrimination or natural disasters; crises in democratic systems caused by corruption, authoritarianism, false facts and political apathy; crises in individuals’ sense of security, personal safety, work tenure, mental health and traditional ways of life; crises in domestic economies caused by excessive competition, tax and revenue avoidance and financialisation; crises in international customary law, treaties and conventions caused by geo-political forces and nativism; crises in reconciliation with Indigenous Australians caused by lack of constitutional or treaty recognitions; crises caused by disrupted patterns of economic ordering across national borders; and crises in wealth and income distribution and the financial dominance of a few and the poverty of the many. The legal profession too has long been said to be in crisis, and the same has been said of DR.

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Whatever the validity of the crisis claims there is little doubt that fear, anxiety and depression are widespread in Australian society, and in many others. Each of the above crises, some real and pressing and others more remote and hyperbolic, is partly a function of neoliberalist economic principles and practices which have both overt and covert implications for work, costs, cultures, health and ways of life of individuals, groups, organisations and whole societies. This is well-documented in the relevant literature.

We do not, however, depict a crisis in mediation. We rather consider it as one of several possible responses to other critical events and incidents. A question we would like to start considering is whether conflict management and DR processes in general, and mediation in particular, can provide appropriate systems and procedures for the future management of the many factors of challenge, disruption and transformation being experienced — can they support the prevention, containment, management, determination or resolution of the critical problems, conflicts and disputes which global societies face? We tentatively explore this in the context of many social institutions with ‘mediating’ functions having broken down in full or part — political parties, trade unions, churches and neighbourhood communities.

In a recent DR course conducted by one of the authors a similar list of domestic and global ‘big issues’ was provided to students. The students selected homelessness in Australia as their topic and were asked to research and consider how mediation methodology might be brought to bear on the political, economic, legal and practical dimensions of addressing the reality that over 100 000 Australians sleep rough each night. The inevitable utopian idealism aside, they were constructive and creative in probing and analysing how mediation values, procedures and techniques might be adapted and applied in these areas. In particular, they emphasised mediation’s potential role in identifying relevant parties, facilitating discussions, promoting interests and priorities, establishing supportive legal infrastructures and enhancing bargaining for mutual gains. Future progress will be reported in the literature.

Mediation has some initial form in regard to major social issues. It is used in one or other of its manifestations in everything from community to political disputes and from commercial to international conflicts. It has had direct and indirect influences on peace-keeping and truth and reconciliation systems, on the emergence of practices such as collaborative law, conflict coaching, negotiation acumen, dispute prevention and nudge practices and in specialist dispute areas such as family law, workplace relations, elder law, industry bodies, consumer complaints, end-of-life decisions and higher degree supervision. Even where mediation’s influence is indirect it is arguable that its institutionalisation in the legal system and accession into mainstream thinking has made these innovations more acceptable.

It is true that mediation has influenced many areas of societal thinking and social practice, but it has also been tainted or at least compromised by some of these challenges. We have tracked some of these influences in Mediation in Australia — influences which cause mediation to be more mandatory and manipulative, more evaluative and short-term focused, and more an instrument of other objectives and less of its own normative imperatives.

Nonetheless mediation, as a form of private ordering, has long been criticised for keeping important issues away from the public gaze. In relation to the big issues, mediation as we have known it has predominantly system maintenance functions, not dissimilar to equivalent DR procedures in traditional societies. A separating couple, for example, may agree on appropriate parenting arrangements for the children without redressing, or even addressing, past issues of abuse; franchisees may make a mediated exit from a franchise system without having received substantive justice on matters of misrepresentation, wage theft and inadequate franchisor support; new migrant workers may be compensated for injuries sustained in poorly-paid manual labour without any amelioration of the conditions for other workers in this sector; and a defamation action might be resolved between a celebrity and media proprietor without consideration of the media’s power and influence in society. In these cases, mediation can provide settlements, and sometimes justice for individuals and businesses involved, without providing communitarian changes or contributing to systemic benefits. This creates predicaments of conscience for some practising mediators.

Overhead view of stethescope on top of note pad

Here there might be an apposite analogy from the field of health science. Individual ‘private health’ treatment of those suffering from malaria, lung cancer, obesity or cardiac weakness does not itself diminish or remove the causes and incidents of the diseases in question. In relation to both communicable and non-communicable illness it is only ‘public health’ systems which can address systemic causes and symptoms and bring preventative measures into place in matters such as smoking, junk food and sugary drinks. Individual ‘private’ mediations, by analogy, have symptomatic and not systemic consequences and there is as yet a limited ‘public health’ role or application of mediation.

It can be contended, in defence, that mediation and conciliation do have systemic effects where statutory agencies nudge parties towards statutory norms, applicants feel empowered and respondents commit to redeeming their wanton ways, and there are, albeit remote, demonstrative effects for those outside the mediation room. Even in individualistic societies there are communal networks which transmit outcomes, lessons and messages. Nonetheless, individual private processes cannot alone change public communal factors and we consider in our next blog post how the elements of mediation might be used to address the big issues.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.123rf.com/stock-photo/crisis.html?sti=nd1ou56enpjuo4c7ma|; https://www.123rf.com/stock-photo/public_health.html?imgtype=0&oriSearch=crisis&sti=mxf449cbiav6j4hfk2|&mediapopup=84107140
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Rethinking party self-determination

In Mediation in Australia (LexisNexis, 2018) we repeatedly refer to self-determination as the remaining legitimising value proposition underlying contemporary mediation, having noted the disappearance of voluntarism, the end of neutrality’s reign and, to some extent, the compromisation of the promise of confidentiality in mediation — characteristics that have not stood the test of time. The self-determination principle has also been affected by some of the drivers and imperatives referred to in our previous blog post. We endorse the principle of self-determination as a defining feature and aspiration of all mediation — albeit with restrictions identified and discussed further in the book. We are now reflecting on whether even this principle is becoming contingent, given the rise of combined processes such as med-arb and arb-med, the displacement of facilitative mediation by evaluative and advisory systems and the prevalence of settlement conferencing under the guise of mediation.

self-determination image

Consider, by way of illustration, the case of a workers’ compensation claimant who had suffered physical injuries in a work accident in a highly pressured and competitive operating environment. After receiving weekly payments for several years, he brought common law negligence proceedings against his employer, claiming damages for past and future loss of wages, the only heads of damage allowed by statute. The matter was referred to mandatory mediation and his counsel commenced negotiations with a claim of $450 000. An insurer served as respondent under the subrogation principle and the employer was not present. The sequential rounds of negotiation progressed as follows:

Round Claimant’s Offers Insurer’s Offers
1. $450 000` $75 000
2. $425 000 $90 000
3. $400 000 $100 000
4. $390 000 $125 000
5. $370 000 $140 000
6. $350 000 $150 000
7. $300 000 $175 000
8. $300 000 $200 000
9. $280 000 $250 000
10. $265 000 $250 000
11. $250 000 $250 000

The conundrum arising in this situation, replicated in innumerable Australian contexts each day, is how to categorise the process as a DR system. The exercise was conducted in a cultural context involving limited mediator involvement and well-worn precedential channels. Nominally it falls into the settlement model of mediation where the self-determination principle remains a legitimising principle. There might, however, seem to be little in the way of authentic self-determination for the claimant. The mediation took place eight years after the workplace injury, it was highly legalised with solicitors acting for both parties and counsel for the claimant, the procedure operated predominantly on a shuttle basis and it was allocated four hours of mediation time. The complainant’s choices involved a complex risk analysis as he could continue on weekly benefits and medical payments until the age of 67 and was obliged to make a final ‘certificate’ offer if there was no settlement. If such a claimant succeeds at hearing but receives less than their certificate offer they may be denied recovery of their own costs; if they receive less in damages than the insurer’s certificate offer they are potentially liable to pay the respondent’s costs, despite succeeding on the liability question. There was also some uncertainty over the claimant’s future health condition despite his having reached maximum medical improvement.

In this situation the legally-advised claimant, well informed by counsel, did provide informed consent to the insurer’s final proposal when it became locked-in at the $250 000 figure. Our query relates to whether he was involved in an authentic self-determination exercise, given his limited bargaining power, the difficult risk assessment involved and the fact that he was negotiating against himself in the last three rounds. While a single anecdote does not itself challenge established theory, this example illustrates a current trend and exposes the forces impacting on party self-determination in mediation.

We see three possible responses to the categorisation conundrum. The first option is to massage the already flexible concept of self-determination to accommodate the claimant’s situation: despite his having no real control over the outcome we could contend that self-determination can be satisfied by the residual factor of bestowing or withholding consent from the other side’s repeated ‘top line’. This could be an ideological response designed to maintain a sense of principle in the mediation system as always involving self-determination for each side. However, it involves potential abuse of ordinary language and invites a lack of congruence between the theory and practice of mediation. This is the flexible option in which the meaning of self-determination is expanded.

A second option is to remove such practices from mediation’s definitional ambit on the basis that it has forfeited the final defining principle of the system, namely authentic self-determination for parties. This would involve finding alternative, non-mediation designations for such practices, something the DR community has considered for decades. While conciliation is an obvious response to the search, we have two problems with this designation applying to the example provided: the first is that we defend in the book our use of mediation and conciliation as inter-changeable concepts, and the second is that the ‘conciliator’ role of advising and recommending to the parties is lacking in these situations. This is an exclusivist option in which mediation retains authentic self-determination as a defining ingredient of the system.

A third option is to acknowledge that the example does not support the self-determination principle in any meaningful sense but to continue including such practices within a generic concept of mediation. Here, it is the concept of mediation that stretches its existing elasticity to a point where it is identified by value propositions other than self-determination, namely the impartiality of mediators and informed consent for parties. This would open brand mediation to most DR options in which interveners cannot make binding decisions for the disputants. This is the inclusivist option in which the meaning of mediation is expanded to remove self-determination as the quintessential attribute of its theory and practice and it is replaced instead with the more limited notion of informed consent — this is indeed one of the ingredients of self-determination, but it has a narrower and less aspirational scope.

Our approach to the conundrum is to attempt to reconcile our aspirational and pragmatic selves. We still see self-determination as the characteristic of mediation that makes it distinctive and imposing, although its incidence is often a question of degree. The concept itself derives from theories of both democracy and international relations and was part of mediation’s creation and development — the factor that enables it to have empowering and transformative effects. We don’t envisage a valuable and viable concept of mediation in the future that is without the notion of self-determination at its centre. We do not support the exclusivist view that anything other than facilitative mediation cannot be considered mediation, but some level of common understanding of what ‘mediation’ means is needed so that legal and DR professionals and parties have clarity about what the system does and does not offer. Moreover, without some precision as to what constitutes the core aspects of mediation systems and how they operate, an ethical framework for appropriate practice remains illusory. Mediation and its underlying theory have to stand for something; the process does not have to bend to pressure to be all things to all people.

In retaining the self-determination principle, we acknowledge that in situations such as that of the claimant above it has a more limited connotation, namely that a party’s informed consent to an outcome satisfies the requirement — in this sense we adopt some of the flexible approach. One might indeed speculate as to whether the deep self-determination supposition of facilitative and advisory processes asks too much of parties who are disoriented and confused by conflict and the ambiguities of choice they are experiencing at a time when they are most in need of professional guidance and advice. It arguably places too much responsibility on parties who are not functioning in optimal ways and are least able to be rational and creative in approaching the challenges of their dispute and their choices in mediation.

While it might be contended that determinative DR processes are more appropriate for such persons, practical realities often entail that they must use mediation. We contend that it is better to reconsider a theoretical element of mediation than to manage the dissonance between unrealistic theory and pragmatic practice. As discussed in Chapter 1 of the book, the exclusivity camp has long advocated for the term ‘mediation’ to be restricted to practices committed to the authentic application of the self-determination principle in contexts in which mediators are predominantly facilitative in their endeavours and they add value in communication and negotiation dimensions, and in which parties derive procedural and emotional benefits from the process involved. Many first-generation, family, workplace and community mediators were taught and trained in terms of this conceptualisation of the process and remain committed to it in practice. The National Mediator Accreditation System (NMAS) is also primarily based on this concept.

By contrast, the inclusivity camp of mediators comprises those who, while they might not have relinquished the strong value ideations of the exclusivists, nonetheless acknowledge that what is designated as ‘mediation’ in practice should be regarded as mediation, subject to two essential qualifiers — first, that mediators do not have any power or responsibility to make binding determinations for parties; and second, that parties provide informed consent in relation to any mediated settlement agreement. We identify in this regard, with respect to the exclusivists and in acknowledgment that our own convictions have been challenged in reaching this position, with the inclusivist camp. We contend that the battle for exclusivity has effectively been lost and the identifying characteristics of that model are too circumscribed and difficult to police to maintain a meaningful connection between practical realities and theoretical constructs. This is not to preclude the development of future values and objectives for mediation, for example in becoming more normative in nature, a contributor to the Rule of Law or even a surrogate for other forms of democratic expression. Those developments, however, lie in the future.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.drsyrasderksen.com/blog/romantic-relationships-what-self-determination-theory-says

 

Drivers of change in dispute resolution

Professor Laurence Boulle and I are really pleased to report that Mediation in Australia is now in print. This Blog is an excerpt from Chapter 12 in which we offer some perspectives on issues for DR moving into the future.

IMG_6355 (002)

The various and sometimes contradictory influences on DR theory and practice come from different perspectives such as economics, sociology, politics and social psychology. Some of these influences have, at the macro-level, been drivers of past changes in mediation. These have included global financial volatility and its debt repercussions, high levels of competition in economic, social and political arenas, changing power relations in global politics and international relations, reductions in capacities of the state, privatisation and enhanced leverage for corporations, and narrow measurements of efficiency in court, tribunal and DR services such as mediation.

Economic forces, and economic ways of construing the world, have had, and continue to have, profound impacts on many facets of mediation practice. Economistic thinking in governments, corporations, industry and DR providers has led to reduced preparation, intake and screening, shorter duration of sessions and increased daily caseloads for conciliators, limited use of co-mediation, more impersonal interactions by mediators through virtual means, reduced collegiality among practitioners who are isolated from one another, pressures for mediators to be persuasive, evaluative and advisory to increase settlement rates, costs penalties for inappropriate mediation conduct, incorporation of blended and arbitration arrangements into mediations to ensure they are not futile exercises, pre-action procedures designed to pre-empt court proceedings and provision of mediation services by courts, tribunals and commissions. A pervasive political myth of scarcity, in a social reality of over-abundance, purports to legitimise many of these phenomena.

Economic imperatives have also contributed to the occurrence of the ‘risk society’. This involves governments, employers and corporations shifting many of the functions and safeguards they formerly provided onto the shoulders of citizens and consumers — who bear the burden of the resultant risks. This is manifested in financialisation in most areas of modern life, non-permanent and short-term employment, contractual complexity in dealing with telcos and utilities and the relentless speed of social and economic discourse and intercourse. The risk society has witnessed the abandonment of many features of the former social contract. The results for citizens and consumers include asset risks (such as house or superannuation values), employment risks (such as lack of work tenure), financial security risks (in terms of bank predations) and consumer risks (as in being unwittingly upsold online). As these scenarios suggest, there are deep pulses of potential disputation in the risk society.

At the more prosaic level, at an everyday mediation with an everyday mediator, parties and advisers might be dealing with the consequences of economic forces which are largely unseen and certainly not agents in the room. For example, a mediation might be dealing with the flow-on effects of competitive globalisation on workers’ safety and health standards, or the impact of the voracity of financial institutions on family separations or the tensions within commercial leases ultimately caused by disruptive online commerce. These forces place immense pressure on mediators, their clients and advisers, but are destined to continue while the macro-forces persist. The extent to which mediation can be upgraded to deal with the ‘big issues’ is dealt further in Chapter 12 of Mediation in Australia. Ironically the risk society also requires more individuals and businesses to make their own mediated decisions resulting from exposures to risk, requiring some reassessment of the concept of party self-determination. Party self-determination is the subject of our next Blog.

Rachael Field and Laurence Boulle

Mediation in Australia: A Bibliography

Last week Prof Laurence Boulle and I were really happy that our new book Mediation in Australia went to print. As we note in the Preface: The book began as a fourth edition of Laurence’s Mediation: Principles, Process, Practice but in the process a new work developed. My favourite chapter is Chapter 12 titled ‘Authors Unplugged’ where ‘we ‘think what we like’ and ‘write what we think’ and hope that a few readers may ‘like what we write’. In the coming weeks of July I’ll be adding some excerpts from that Chapter which I hope you’ll find interesting.

In this Blog though we want to share something from the book that might be useful to all DR researchers – the bibliography. Many stellar scholars from the ADR Research Network members will see your works listed there. This document is the proof so apologies if there are any errors.

Perhaps this will save us all time if we can add it to our Endnote:

Mediation in Australia Bibliography

With warmest wishes to all DR researchers globally

Rachael

Symposium: Law Without Lawyers, Bond University

Australian Dispute Resolution Research Network members may be interested in this  upcoming seminar at Bond University’s Centre for Professional Legal Education on Thu. 19 October 2017 10:00 am – 4:00 pm

Bookings (free) made hereRSVP by 29 September 2017. Due to limited spaces, registration is essential.

Symposium: Law Without Lawyers?
19 October 10.00am-4.00pm, 

University Club Restaurant, Bond University, 14 University Drive, Robina, QLD 4229, View Map

It has been predicted that emergent technologies such as artificial intelligence, ‘lawbots’, smart contracts, automated dispute resolution services and the like will soon replace human lawyers in the delivery of some, most or even all legal services. How persuasive is this claim, and if it does have merit, what are the implications of ‘law without lawyers’ for the rule of law, for justice, for the community, and for law students and lawyers themselves?

Bond University’s Centre for Professional Legal Education (CPLE) will investigate these questions in a one day symposium titled ‘Law Without Lawyers?’. The symposium will explore in depth the likely impact of technological innovation on the practice of law, and the implications – both positive and negative – of the possibility that legal services will be delivered without the direct involvement of human lawyers. The symposium will include a keynote address, a panel discussion and debate, and an interactive workshop. Morning tea, lunch and afternoon tea will be provided.

Legal practitioners will be eligible to earn up to 3 CPD points for their attendance at the symposium.

Bookings (free) made hereRSVP by 29 September 2017. Due to limited spaces, registration is essential.

Bond Law Review: Special DR Edition available now – http://epublications.bond.edu.au/blr/

The special edition of the Bond Law Review brings you a selection of scholarly papers presented at the bi-annual National Mediation Conference held in September 2016 at the Gold Coast, Queensland. It’s available online and at no cost at: http://epublications.bond.edu.au/blr/.

Presentations at the Conference included discussion of the latest research and developments across the spectrum of forms of dispute resolution. The content of the conference, and of this special edition, is of interest to mediators, dispute resolution and restorative justice practitioners, facilitators, conciliators, educators, trainers, conflict coaches, arbitrators, adjudicators, academics, researchers, managers, administrators and anyone else who is interested in and involved in helping people in dispute

The 2016 conference brought together more than 500 participants and many delegates from across Australasia and the world. The theme for the conference was: “Thought, Innovation and Creativity: The Next Decade”. Key focuses included what practitioners know and how they know it; thinking about thinking; reflecting on how innovation, education and training of practitioners occurs in self-determinative through to determinative processes; and considering how flexibility and creativity can be observed in response to the diverse needs of clients in order to provide a future of best practice in managing conflict. In contemporary times, it is vital that practitioners consider standards, professionalism, ethical practice and self-care in order to continue to meet the challenge of their working environment. Mindfulness and reflective practice were prominent considerations – the importance of remaining mindful of and reflecting on our own reactions and the reactions of the participants within the dynamics of their communication about their dispute was highlighted, particularly in terms of minimising potential complaints, as well as in relation to avoiding practitioner burn out.

The workshops and presentations discussed many diverse ways for managing a range of processes contributing to a variety of outcomes, such as, settlement, resolution, healing, forgiveness, rebuilding relationships, renewing relationships or respectfully severing a relationship. Matters at the forefront of participants’ concerns included how to demonstrate creative techniques and innovative practice approaches by thinking ‘outside the square’, together with ethical guidelines and best practice standards in diverse practice applications.

The special edition begins with Jonathan Crowe’s conference keynote address on ‘Mediation Ethics and the Challenge of Professionalisation’. Jon discusses the regulatory and practice models of mediation ethics in the context of their suitability to address the challenge of professionalisation. He argues in favour of the practice model, concluding that the mediation profession should aim to strike a balance between the two models, while generally emphasising practice over regulation. Next, Olivia Rundle addresses the important issue of ‘Including Trans and Gender Diverse, Intersex and/or Non-Heterosexual People in Mediation Service Delivery’. Olivia’s article argues that mediators should be informed about historical as well as current legal treatment of individuals, couples and families who are trans and gender diverse, intersex and/or non-heterosexual, and be alert to the dynamics of power that arise as a result of legal non-recognition of certain family relationships. The third article in the special edition is Judge Joe Harman’s piece entitled: ‘An Imperfect Protection: Attitudes of Family Dispute Resolution Practitioners to Confidentiality’. Judge Harman discusses the utility of the confidentiality and inadmissibility of oral and written communications in Family Dispute Resolution, highlighting the tension between the confidentiality of dispute resolution processes and the desire of Courts to have access to all available evidence. The article presents and analyses a 2014/15 survey of practising Family Dispute Resolution Practitioners from private, government and community based contexts regarding their attitudes to confidentiality and its importance in Family Dispute Resolution. The final article for the special edition is by Kathy Douglas and Jennifer Hurley entitled ‘The Potential of Procedural Justice in Mediation: A Study into Mediators Understandings’. Kathy and Jennifer discuss the theory of procedural justice as a way of explaining why disputants who experience validation and respect in a decision-making process are more likely to accept the outcome of a process even if they do not agree with the result.  They argue that the Australian legal system, and mediators, are not yet adequately recognising or harnessing the potential of procedural justice. They present a qualitative study exploring the practices of mediators conducted at the Victorian Civil and Administrative Tribunal, concluding that a majority of mediators endorse the theory of procedural justice.

The special edition also contains 2 practice notes (3 in the online version) and a book review. The first practice note by Meriel O’Sullivan considers ‘The Structural Causes of Workplace Conflict: Understanding the Implications for the Mediation of Workplace Disputes’. Meriel uses a case study of a grievance to explore theories on the sources and resolution of workplace conflict. The case study highlights what happens when there is a mismatch between the sources of conflict and the conflict resolution intervention, and how this can be addressed by broadening the range of interventions utilised in a workplace. The second practice note by Keryn Foley considers the always topical issue of co-mediation in her piece ‘To Co-Mediate or Not to Co-Mediate — That is the Question’. Keryn explores the practical benefits and challenges of co-mediation, offers a new way of defining co-mediation, argues that the method requires a specific skill set, and offers several practice tips. Keryn argues that preparation is key in successfully co-mediating, as is the practice of debriefing. The third practice note by Louisa Roughsey, Frank Watt and Berry Sontag and is entitled ‘Indigenous Mediation – Is That Different?’. It is only available in the online version of the journal due to its extensive pictorial content. The practice note discusses the history, practice and challenges of the Mornington Island mediation service. Finally, the special edition concludes with a book review by Linda Fisher and Frances De Biasi of Samantha Hardy, Olivia Rundle and Damien Riggs’ book: Sex, Gender, Sexuality and the Law: Social and Legal Issues Faced by Individuals, Couples and Families. The review praises the work as a valuable resource, providing insight and extending understanding in ways that have not been achieved elsewhere.

We trust that this impressive special edition, which is a new initiative for the Conference, and has been generously supported by the Bond Law Review, brings together a collection of papers on a range of topics that will inspire you.

Special editors –  Professor Rachael Field, Bond University, Ms Mieke Brandon Co- Convenor and Co- Secretary National Mediation Conference 2016, and Associate Professor Pauline Collins, University of Southern Qld and Co- Secretary National Mediation Conference 2016.

 

 

 

 

 

 

Trust and relationship building in native title negotiations

The following post is by a member of our Network – Lily O’Neill. Lily is a negotiation researcher looking primarily at native title negotiations.  She also teaches Dispute Resolution at Melbourne Law School, and presented her PhD research at the civil justice conference in Adelaide in February.

This blog post considers the importance of trust and relationship building in native title land access negotiations. It focuses on the negotiations that led to the Browse liquefied natural gas (LNG) agreements of 2011.[1] Like the literature on negotiation and mediation more broadly, building trust and good working relationships between governments, traditional owners and companies is often said to be a key potential benefit of these negotiations. Yet, as detailed here, there is a danger that negative impressions formed during negotiations can colour participants’ views of opposing parties’ motivations, even when they believe a reasonable deal has been struck.

The Browse LNG agreements, concluded by Goolarabooloo/Jabirr Jabirr traditional owners, Western Australia and Woodside Energy in mid 2011, were said to be worth $1.5 billion to traditional owners, and ‘much more positive’ than those typically achieved in negotiations between extractive industries and Aboriginal people.[2] These agreements were negotiated between 2007 and 2011.

Interviewees from all negotiation parties agreed that trust and relationship building should be important goals of native title negotiations, noting that they are particularly important attributes for implementing an agreement. Wayne Bergmann of the Kimberley Land Council, for example, said that where parties do not have a good relationship, agreements “don’t deliver half of what they should”.

However the parties viewed the negotiations in very different terms after the agreement was concluded. Negotiators from Western Australia and Woodside largely felt that while the negotiation had been “robust”, it had resulted in significant trust developing between all parties. One government negotiator described the feeling in the negotiation room as like:

“Stockholm syndrome – everyone became committed to each other in some sort of way or affected by the outcome and the desire to not see hurt, the desire to see everyone come out as a winner.”

Traditional owners and those working for them expressed a very different view. The negotiations were “long, protracted, quite bloody”, said one. Western Australia and Woodside had been “disingenuous” and had viewed traditional owners as “a thorn in their side … and they would do almost anything to get that thorn out”, said another. Of the company, a traditional owner said “you can’t take them at face value, they bullshit you.”

When interviewees were asked why parties had such different views of this aspect of the negotiations, two key reasons emerged.

The first was that traditional owners felt at a disadvantage in negotiations. A negotiator for traditional owners said:

“I think that we always had the David and Goliath, so we were very defensive.  Ready to take offense at anything, even sometimes when I don’t think they were actually intending to. If you think you are the underdog and you are fighting your way up, you have a certain attitude.”

The second was that both professional and non-professional negotiators conducted negotiations. Two senior government officials observed that traditional owners who had never experienced commercial negotiations were sometimes visibly upset by adversarial tactics because “they weren’t in on the gamesmanship of it all”. One reflected that Western Australia’s negotiation approach might have been different had they known from the outset that non-professional negotiators would be in the negotiation room.

These are lessons that are useful for all types of negotiations where trust and relationship building should be key negotiation outcomes.

[1] The information contained in this blog post is based on my PhD research: see Lily O’Neill, ‘A Tale of Two Agreements: Negotiating Aboriginal Land Access Agreements in Australia’s LNG Industry’ (PhD thesis, 2016). Available https://minerva-access.unimelb.edu.au/handle/11343/111978. This research used a comparative case study analysis to empirically examine the land access negotiations that led to agreements for Browse LNG in the Kimberley, Western Australia, and Curtis Island LNG in central Queensland. Among other data, it analysed 53 interviews conducted with negotiation participants from all negotiation parties.

[2] Ciaran O’Faircheallaigh, ‘Extractive Industries and Indigenous Peoples: A Changing Dynamic?’ (2013) 30 Journal of Rural Studies 20, 28. Note that in April 2013 Woodside announced that it was pulling out of the development option as detailed in the agreements, leaving large aspects of them likely unenforceable.