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

Fairness and Mediation: A Contribution to the Debate

Thank you Joanne Law for your thoughtful contribution to the debate on Mediation and Fairness on :

Really interesting, if somewhat cynical perspective on the question of fairness in mediation by Robert Angyal.

I would take a different perspective and narrow my focus down to mediation in accordance to the National Mediator Accreditation System practice standards and ethics.

The generally accepted meaning for ADR is Alternative Dispute Resolution (alternative to court) but I am with the crew who are working towards ADR meaning Appropriate Dispute Resolution. That shifts the focus from Court as the benchmark or expected approach to resolving disputes as is implied by looking at other than court as alternative and puts court where it belongs as the last resort in the continuum when people and their advisors are incapable of resolving the issues without a decision maker.

We have an unfortunate tendency to use acronyms in our industry which is not ideal, especially if we don’t identify what the letters mean.

In mediation we avoid assumptions in our language when we mediate and I hope most mediators have their ears tuned in to hear assumptive language and use clarifying questions to open the assumptions up to scrutiny.

I feel that Mediation should be facilitated in accordance with the ethics established in our NMAS standards and in the case of family law mediators regulations not arbitrary moral norms. There is a huge assumption in believing that moral norms has any type of universality as morality isn’t universal. It’s a product of upbringing, religious norms and life experiences etc.

Does the list of criteria given for assessing civil disputes really cover appropriate criteria? Those given were “efficiency, cost, access, speed, compliance with the rules of natural justice, and so on.”

I would add effectiveness in resolving the dispute, increasing understanding and improving communication.

If we take the definition of mediation from the NMAS Standards it is “Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding, (b) identify, clarify and explore interests, issues and underlying needs, (c) consider their alternatives, (d) generate and evaluate options, (e) negotiate with each other; and (f) reach and make their own decisions.

A mediator does not evaluate or advise on the merits of, or determine the outcome
of, disputes. (there is a proviso that recognises the more evaluative or advisory end of the spectrum. Footnote in the standards: For a mediator using a blended process, which may involve the provision of advice see Section 10.2 of the Practice Standards)

If we lived in the ideal world I would like to create people wouldn’t be mediating based on fear of the risks associated with litigation that they have rushed into but instead go to mediation first, share their perspective of what they need to resolve the dispute and work towards something that can be considered as acceptable by both.

So for me a fair outcome is within the range of somewhere between the best possible outcome and the worst case scenario for both. And that they are able to work through the decision making in a respectful process where they are not coerced, bullied or pushed into a feeling that they have no other options.

Rather than thinking about fair as being a single outcome perhaps we could think of it as an outcome that those involved can accept without regret.

When I am training mediators I coach them not to use language like “Are you happy with the outcome?” which reminds them of their best case scenario which is likely to be closer to the other parties worst case scenario. Instead if you ask “Is that acceptable to you?” people can think about does the outcome fit within the range they believe is reasonable. Because for me the answer to the question “who decides what is fair?” should be those who have to live with the agreement reached.

The questions asked at the end are questions that have multiple answers depending on the style of mediation. Settlement negotiation mediation may work as described but other types of civil mediation are used instead of and without any intention of going to court.

Why does mediation work?
How does mediation work?

For mediation where lawyers are included in the process.

How can I effectively represent a client at mediation?

By empowering your client rather than speaking for them and definitely by finding out what they want rather than pushing them into what you think they can get if you push hard enough.

What are the ethical limits on my advocacy at mediation?

My thinking is why do lawyers think that mediation is a process where they need to be advocating rather than assisting with problem solving?

Whatever happened to the National ADR Principles: A Reply by Robert Angyal SC

Robert Angyal SC has posted a detailed and thought provoking response to the most recent ADR Research Network Blog Post on the National ADR Principles – so I have posted it here on Robert’s behalf. Many thanks Robert for your engagement with the Blog! And thanks to Vesna and Teresa who also posted comments! Keep the comments coming!

Image result for image for the good news and the bad news

The post asks, “Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both?” There are several problems with the question itself.

First, what is meant by “ADR”? To this writer, ADR means going to court because the primary dispute resolution process, mediation, has not resulted in settlement of the underlying dispute. This is because mediation is ubiquitious in modern Australian civil dispute resolution. I think, however, the author of the question meant something different by “ADR”.

The second problem with the question is this: Is it a question which calls for a description of how mediation actually is practised in Australia and an assessment whether it leads to fair results – that is, does it call for a descriptive answer? Or is it a question about how mediation should be practised in Australia – that is, does it call for a normative answer based on moral norms about how the practise of mediation should be conducted?

If the question is a normative one, it leads to two more questions: First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all? We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

The third problem with the question “Is mediation about a fair process or about a fair outcome?” is the biggest one: It assumes that mediation is fair (descriptive) or should be fair (normative). It doesn’t admit the possibility that mediation might not be about fairness in either sense. You’re saying, I know, “Hang on, of course mediation is meant to be fair; that’s why people do it rather than going to court.”

I have two sorts of bad news for you. The first bad news is that in any particular case, the question “Is mediation fair?” is unanswerable, for lots of reasons. The biggest reason is that the parties will disagree about what’s fair. That’s why they’re having a mediation in the first place. If they could agree about what’s fair, they wouldn’t need a mediation or a mediator. Given this and the fact that mediations always are conducted in private, even if a third party could find out the outcome of a particular mediation, how could they form an opinion as to whether it’s fair?

The second piece of bad news is that my empirical observation, based on mediating for 30 years, is that parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome. They’re mediating because, and mediation works because, they are worried stiff about continuing the underlying legal proceedings. They are worried because litigation is very expensive, very destructive of relationships, very time-consuming and drawn-out and – most scary of all – very unpredictable as to result, with costs usually following the very unpredictable result. Losing means you get nothing out of the proceedings except the obligation to pay not only your costs but also the winner’s costs.

So the reason they are mediating is to mitigate the huge risks inherent in conducting civil litigation. To put it bluntly: Many parties to civil litigation can’t afford to lose – but they have no way of knowing with any certainty whether they will lose or win. They are looking for a way to avoid taking the risk of losing.

Some parties are even worse off: They can’t afford to run the legal proceedings to judgment but neither can they afford to call a halt to the proceedings, because a party who discontinues proceedings almost always has to pay the costs to date of the other side. They are caught in a costs trap, from which they need to find an escape. Mediation offers hope of an escape.

What this means in practice is that fairness is not a concept that’s relevant in mediation. Typically, a party will settle at mediation if the settlement being offered to them is better than the risk-laden nightmare of continuing the underlying legal proceedings. That’s the calculus that drives mediations towards settlement in my experience. It means that a lot of cases settle on terms that might shock outsiders: Plaintiffs sacrifice their causes of action and claims for damages in exchange for being released from the obligation to pay the defendant’s costs. Defendants who could defeat the plaintiff’s claim at trial pay plaintiffs to go away – because, the defendant knows, it will cost a lot of money to defeat the plaintiff’s claim but those costs won’t be recoverable from the plaintiff. So, as long as the case can be settled for less than the defendant’s irrecoverable costs, it’s cheaper to settle than to win the case. Fairness doesn’t enter the picture.

So can we abandon questions about fairness in mediation as irrelevant? They only distract attention from difficult and important questions about mediation, such as:

  • Why does mediation work?
  • How does mediation work?
  • How can I effectively represent a client at mediation?
  • What are the ethical limits on my advocacy at mediation?

Robert Angyal SC
4 July 2021

Another interesting post from Robert is in the wings – so keep an eye out for that one!

Whatever happened to the National ADR Principles?

Premium Photo | Green fern leaf on a white background

In 2011 the National ADR Advisory Council (NADRAC) formulated a set of National ADR Principles (included in the 2012 publication Your Guide to Dispute Resolution) as follows:

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals.

6. Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them.

On 14 September 2016, the ADR Advisory Council (NADRAC’s supercedent) noted in a published paper on their website that: ‘ADR is founded on ideas – it is intrinsically ideological. The ideas which underpin ADR are neither scientific nor inert – they comprise an unmistakeably value-laden set of principles’. 

ADRAC went on to ask the following questions which continue to be relevant and challenging for the DR community in Australia.

Can the principles be combined to arrive at the following four core values:

1. personal responsibility – based on the ability to make informed choices

2. proportionality – between dispute and process

3. fairness and integrity – as to process (query as to outcome)

4. public confidence.

Are there core values missing from this list?

Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both? And whose assessment of ‘fair’ is to be applied in any instance: is it to be evaluated from the perspective of the law, society, or the participants?

Please share your views!

Acknowledgements: Fern

The Dispute Tree or the Dispute Pyramid?

Thank you to Kate Curnow for her 2015 Blog – the all-time 5th most viewed Blog on DR for the ADR Research Network. Brilliant.

The Australian Dispute Resolution Research Network

In ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, Albiston, Edelman and Milligan propose replacement of Miller and Sarat’s dispute pyramid with a dispute tree.  They further suggest the stages of the emergence and transformation of disputes – that is, naming, blaming and claiming (Felstiner W et al, “The Emergence and Transformation of Disputes: Naming, Blaming Claiming” (1980-81) 15 (3-4) Law and Society Review 631) – be conceptualised as non-linear and fluid.

Why a Dispute Tree?

The dispute pyramid was proposed by Miller and Sarat in: Miller RE and Sarat A, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525:

Dispute Tree

Albiston, Edelman and Milligan argue the metaphor of a tree with many branches better reflects the non-linear and dynamic nature of dispute resolution as well as the legal and non-legal means by which people may seek to…

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Dumb decision— The Closure of NADRAC

This is the fourth most viewed Blog of the ADR Research Network – a personal favourite of mine! Associate Professor Becky Batagol writing at the end of 2013 to protest the defunding of NADRAC. A feisty, passionate Blog – which still applies today. Let’s all call for funding for ADRAC!!

The Australian Dispute Resolution Research Network

Last Friday, the Australian government announced the abolition of NADRAC, the National Alternative Dispute Resolution Council.  NADRAC’s functions will be absorbed into the federal Attorney-General’s Department.

Whichever way you look at it, the abolition of NADRAC  just doesn’t make sense.

An account of the reasons is dutifully provided on the NADRAC homepage.

Following the Australian Government’s announcement on 8 November 2013 to abolish or rationalise a number of non-statutory bodies, the National Alternative Dispute Resolution Advisory Council will close. The closure of this group is a whole-of-government decision that was taken to simplify and streamline the business of government.

NADRAC advises the Attorney-General and federal courts and tribunals on dispute resolution matters and also provides high quality dispute resolution information to the Australian public and dispute resolution community.  One of NADRAC’s central roles is promoting Alternative Dispute Resolution (ADR) within the Australian community.

From NADRAC’s own website we can see something…

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Unpacking the “adversarial advocate”

We are continuing to showcase the top 10 most viewed blogs of the ADR Research Network. We’re up to the third most viewed blog. A thought provoking blog on an important DR issue by our esteemed colleague and friend Dr Olivia Rundle.

The Australian Dispute Resolution Research Network

The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?

Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.

“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the…

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The central role of party self-determination in mediation ethics

This month we are revisiting the top 10 ADR Research Network Blog views of all-time. Jon Crowe and I are honoured to come in at number 2 with this post from December 2017. I’m also pleased to say that our book, Mediation Ethics: From Theory to Practice, was published in 2020.

The Australian Dispute Resolution Research Network

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable…

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There is a time and place for mediation but a bullying allegation in the workplace is not one

This month we’re revisiting some of the most viewed ADR Research Network blogs. This Blog by Carmelene Greco – Monash law student studying Non-Adversarial Justice with Associate Professor Becky Batagol in 2016 was posted in 2017 and has the most all time views – 13, 260 – of all our posts. Congratulations Carmelene!

The Australian Dispute Resolution Research Network

 By Carmelene Greco

 

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

bully Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

Workplace bullying is notoriously difficult to define and there is still no nationally…

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Lockdown Dispute Resolution 101 #25: Effective communication strategies in lockdown – self-management: Part 2 – reflective practice

Coronavirus World Lockdown End: An Open Lock With A World Map AnThe reality of the stressful nature of life in lockdown as a result of COVID-19 is that the quality of our communications and negotiations is under pressure. We need to harness our dispute resolution agency, and employ positive strategies and methods from the art of mediation, in order to ensure we do our best to prevent, manage and resolve disputes. We also need to practice self-management, for example by building our resilience skills, so that we protect our psychological well-being and ensure we have the right attitudes and energies for lockdown living.

In this last post for the Lockdown Dispute Resolution #101 series we consider a second aspect of self-management – reflective practice. Mediators regularly engage in reflective practice. For example, after Associate Professor Libby Taylor and I have conducted a co-mediation in the Bond Family Dispute Resolution Clinic, we always debrief together and reflect on what went well and what we could have done differently or better. We ensure our feedback to each other is honest but constructive and it’s always a very rich learning experience.

The self-management skill of reflective practice can help us to manage and cope with stress as we endure the impact of COVID-19.  It can also enhance our capacity to communicate and negotiate effectively.

Reflective practice

Reflective practice is a positive cognitive process that we can all use to enhance our capacity for self-management and our interactions with others in lockdown. Reflective practice helps us to strategically and thoughtfully identify gaps between our existing knowledge, skills and values, and those we want to gain or develop. Reflective practice can also help to maintain our psychological well-being because it supports emotional intelligence which in turn supports balance, happiness and self-regulated behaviour. Once you know how to do reflective practice it is hard to unlearn – it’s a valuable skill that has application in both our personal and professional lives.

Donald_Schon

Donald Schön

There is a substantial body of scholarly literature and research on reflective practice. Chris Argyris and Donald Schön published the first scholarly work in the area of reflective practice in 1978. Schön was one of the leading thinkers in reflective practice until his untimely death in 1997 at the age of 66.

After considering a range of theorists’ work on reflective practice, Russell Rogers devised the following definition. Reflective practice is:

a cognitive and affective process that (1) requires active engagement on the part of the individual; (2) is triggered by an unusual or perplexing situation or experience; (3) involves examining one’s responses, beliefs, and premises in light of the situation at hand; and (4) results in integration of the new understanding of one’s experience.

The attributes of a reflective practitioner are all the sorts of attributes we need to be effective communicators and negotiators in lockdown. For example, reflective practitioners learn from experience; identify personal and professional strengths; identify areas for improvement; identify their needs; develop goals; implement strategies to achieve goals; acquire new knowledge and skills more effectively and efficiently; better understand their own beliefs, attitudes and values; are self-motivated, self-directed, and more confident; cope well with uncertainty and anxiety; exercise sound judgment; are able to accept and constructively process critical feedback; and are committed to life-long learning (Davies, 2012).

Theory into Practice

Putting theory into practice

The theory of reflective practice certainly sounds positive. There are many ways to put this theory into practice. One reflective practice model that is easy to enact has been developed by Graham Gibbs. This model involves 6 steps:

  • First, identify an experience or situation that requires reflection. For example, my difficult Zoom communication with a work colleague today.
  • Second, describe that experience or situation by asking ‘What happened?’ This is not an analysis of the situation – merely a description. For example, my colleague was agitated that a decision had been made without consulting her and expressed this in an aggressive way towards me. I responded defensively.
  • Third, explore your reactions and feelings in relation to that situation or experience by asking ‘How did I feel about the situation?’ For example, I felt really angry that she accused me of poor collegiality without asking for more information about the situation. I felt upset that she had spoken to me so aggressively. I felt I had to let her know that and defend myself.
  • Fourth, analyse and evaluate the situation or experience by asking questions like: ‘What could I have done differently?’ ‘Was the experience similar or different to previous experiences?’ For example, I could have remained calmer and used empathy to understand where my colleague was coming from. I could have asked more clarifying questions rather than responding defensively. I could have used LARSQ more effectively to lift the quality of the interaction. I could have acknowledged the colleague’s upset and suggested we pursue the conversation at another time.
  • Fifth, make some conclusions about the situation or experience, starting with general conclusions and moving to conclusions that are more specific to you and your own personal situation or way of working. For example, I want to avoid this sort of communication exchange with any colleagues in the future. With this particular colleague I want to reach out to apologise for my defensive response, revisit what happened and ensure a better communication process that will settle the issues.
  • Sixth, use all the steps above to create a personal action plan for yourself, using questions like: ‘How will you manage a similar experience next time?’ What will you do differently, what will you do the same?’ ‘What have you learned from the situation?’ ‘What steps can you take to make the most of this learning experience?’ For example, I’ll talk with my mentor about what happened and seek some further feedback from them. I’ll work to fix the relationship with this colleague. I’ll aim to set ground-rules for communications when a colleague appears to be approaching the situation aggressively. 

Gibbs 1

Reflective practice is a skill that is best learned by doing. To become a competent reflective practitioner, we need an established structure and framework, such as Gibbs’ model above, to guide our reflections. We also need to commit to that framework and allocate dedicated time in our busy schedules to ensure that we actually put reflection into practice.

Being a reflective practitioner has lots of positive flow-on impacts for coping with the challenging circumstances of COVID-19 and life in lockdown. Reflective practice can help us to be more effective as communicators and negotiators, and ensure that we do our best to prevent, manage and resolve disputes.

Mediation skills and techniquesThank you: This series of posts was only possible through the collegial generosity of ADR Research Network members. Thank you to Professors Laurence Boulle and Nadja Alexander for very kindly allowing me to use and adapt Chapter 6 of their Mediation Skills and Techniques (Lexis Nexis, 3rd ed, 2020) for many of the posts. This book is a must-have for any dispute resolution practitioner, and anyone interested in extending their dispute prevention, management and resolution skills. Thank you also to my co-authors James Duffy and Dr Anna Huggins for writing Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) with me. Elements of this work were used for the development of a number of posts. Thank you also to Professor Jonathan Crowe for allowing me to use aspects of our forthcoming work Mediation Ethics: From Theory to Practice (Edward Elgar, 2020). Mediation Ethics

Finally, a big thank you to the ADR Research Network members who are a wonderful, collegial and scholarly community of practice – you are all an inspiration. Thank you especially to Dr John Woodward our President for 2020 (who generously let me encroach into his Blog Editor month of May); and to Nussen Ainsworth – convenor of the ADR Research Network Blog for 2020.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 4.

Lockdown image: Inside Sources

Donald Schön: infed

Gibbs Reflective Practice Model: Cambridge International Education

Theory into practice: Pinterest

Lawyering and PPI

See also:

Chris Argyris and Donald Schön, Organization Learning: A Theory of Action Perspective (Addison Wesley, 1978).

Samantha Davies, ‘Embracing Reflective Practice’ (2012) 23 Education for Primary Care 9.

Graham Gibbs, Learning by Doing: A Guide to Teaching and Learning Methods (Oxford Centre for Staff and Learning Development, 1988).

Russell Rogers, ‘Reflection in Higher Education: A Concept Analysis’ (2001) 26(1) Innovative Higher Education 37.

Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983).

Donald A Schön, Educating the Reflective Practitioner (Jossey-Bass, 1987).

Lockdown Dispute Resolution 101 #24: Self-management strategies in lockdown: Part 1 – Building resilience

Stress 1

There is no doubt that living in lockdown can be stressful. The BBC has reported on a recent UK Office for National Statistics survey which suggests that people in lockdown are more worried about their mental wellbeing than their general health. Just under two-thirds of 16- to 69-year-olds surveyed were most affected by boredom, stress and anxiety and the inability to make plans. If simply experiencing life in lockdown is stressful, it is logical to infer that lockdown communications and negotiations are impacted by this stress, and that our ability to prevent, manage or resolve disputes in our homes and virtual workplaces may well be compromised.

In these last two posts for the Lockdown Dispute Resolution #101 series we consider two aspects of self-management that can help us to manage and cope with stress as we endure the impact of COVID-19.  In this post we consider the nature of stress and some basic resilience skills that we can adopt to improve our stress management capacity. In the final post for the series we consider reflective practice as a self-management tool that can help us to cope with the dynamics and pressures of lockdown. Self-management strategies are critical to effective communication and negotiation in lockdown.

Stress 2Understanding stress

Stress is something that we all experience as we navigate our daily lives. Indeed, it is an inevitable part of life to experience strains, burdens, difficulties and unexpected change.

 

There are some important things to understand about stress:

  1. Not all stress is the same. There are high levels of stress, low levels, and mid-range levels of stress. Stress varies on a continuum according to factors like duration and intensity.
  2. Different people may experience different levels of stress in response to the same stressor. A situation becomes more or less stressful depending on an individual person’s cognitive appraisal of a situation and their relative ability to deal with that situation.
  3. Not all stress is harmful. Within the range of levels of stress, moderate stress can actually work out for many people to be quite a positive thing. Positive stress is known as eustress, while negative stress is known as distress.
  4. Experiencing too much stress is referred to as ‘hyperstress’. ‘Hypostress’ on the other hand concerns experiencing too little stress. In lockdown we can experience both hyperstress – feeling overwhelmed by too many new and different challenges and clashing priorities, as well as hypostress – feeling bored, unchallenged or unstimulated.
  5. A moderate level of stress can be helpful because it can help build our capacity to deal with challenges; and it can prompt us to think creatively and resourcefully when dealing with difficulties.
  6. Stress can impact us and manifest in a range of ways. For example, we can experience headaches; muscle tension or pain; chest pain; fatigue; stomach upset; sleep problems; anxiety; restlessness; lack of motivation or focus; irritability or anger; or sadness or depression.
  7. If high levels of stress are experienced over a prolonged period of time this is known as chronic stress. Chronic stress can have a damaging impact on our physical and mental health, and can even lead to serious health problems, such as depression and heart disease.
  8. Importantly, stress can be managed. We need to intentionally manage stress if we are to prevent it from affecting our health in a negative way.
  9. We all need to keep an eye on our stress levels in lockdown, and if we sense that they are consistently too high, then we need to proactively take positive steps to address them.
  10. It’s also important in lockdown for us to look out for other people and to check-in with them if we have concerns.

Resilience

Resilience 1Intentionally managing our stress in lockdown involves quite practical, common sense approaches and strategies around building our resilience. Resilience is a capacity to cope well under pressure, as well as an ability to respond and endure in situations of adversity. In other words, resilience skills help us to manage and prevent stress.

Watson and Field refer to research that identifies a range of positive characteristics of resilient people (2011, 399). For example, resilient people are socially competent, flexible, able to empathise, have good communication skills and a sense of humour. They are good at problem solving. They have an ability to think abstractly, reflectively and flexibly. They are autonomous, having a strong sense of independence and internal locus of control. Resilient people are purposeful and positive about the future. They are creative, have an ability to gain positive attention, are optimistic even in the midst of adversity, and have a sense of what a meaningful life means for them. Resilient people nurture relationships and take advantage of support. And they have a positive self-concept, self-awareness and self-understanding.

Building resilience

The following ideas for building resilience, and ensuring we manage and prevent stress levels from becoming too high, might seem simple or obvious. However, they are tried and tested and found in lots of well-being work. Most of us already know that these approaches are positive, but sometimes we need to be reminded to put them into action.

Being active

There are many benefits to being physically active. Not only is exercise a critical part of a healthy lifestyle, physical activity also boosts endorphin levels which make us feel good. We don’t have to become a marathon runner overnight, or take up activities we don’t enjoy. Even short bursts of activity can help us to feel better, concentrate better and become more productive. We just need to do some physical exercise every day, keep it simple and enjoyable and choose something that works best for us.

Eating well

It is a given that nutrition is a critical component of well-being. Eating well (so that blood sugar levels are in order) and keeping hydrated, are more important to managing stress levels than might be imagined. We need lots of fresh fruit and vegies, cereals, grains, nuts and proteins, and not a lot of junk food, alcohol and sugary foods in large quantities.

Prioritising relationships

Relationships are important to well-being. We know this from a lot of the positive psychology research which confirms that relationships, and being connected positively to others such as family and friends, are critical for most people to thrive as human beings.

Keeping things in perspective

Managing stress requires us to keep things in perspective. This means allowing things sometimes to be ‘good enough’ rather than ‘perfect’. Keeping things in perspective also involves prioritising the different elements of life and focusing energy on the most important elements. It means acknowledging that mistakes, failure and disappointment are all a part of a life lived well, and often present very valuable learning opportunities. It means aiming for a balanced life and integrating life, work and play. And it means having reasonable expectations of ourselves and others, and knowing, and being able to capitalise on, our own personal strengths.

Asking for help 

There are lots of different support systems in society and in our communities and with friends and families that we can identify. What’s important is being able to reach out for support when we need it and asking for help. Sometimes a conversation with a GP is helpful.

Rest and sleep

Sleeping well daily is critical to well-being and stress management. Individual people are different in terms of how much sleep they need to refresh, and sleep needs also differ depending on our age. The National Sleep Foundation has done extensive research into sleep. They suggest that an adult who is 18 years or older needs between 7–9 hours of sleep a day. Being stressed can cause difficulties in getting to sleep. Having a sleep routine can help. For example, planning the end of the day to include wind down time — preferably for 30 minutes before going to sleep — can be helpful.

Relaxing

Learning to relax is important to managing stress, building resilience and well-being. Yoga or Tai Chi are great ways to relax. Other strategies for relaxing include for example: mindfulness meditation, breathing exercises, exercising, and listening to music. The main thing is to work out what works for you. It could be a combination of things.

Positive self-talk

Positive self-talk can help to avoid negative thinking induced by stress.  Using positive self-talk can help build confidence and affirm a sense of having a capacity to cope. It can also help with reaching goals. For example, simply saying to ourselves: ‘I can do this!’.

Coping with disappointment and setbacks

A particular subset of resilience skills relate to getting over disappointments and setbacks in life. Setbacks are challenging but such experiences can be used constructively. We need to avoid blaming or being too hard on ourselves. We are only human and setbacks are a part of life. If we don’t ever feel disappointed, how will we understand what it is to feel truly happy and elated?

Resilience 2

COVID-19 and life in lockdown are challenging. It’s a time when we need to be the most effective communicators and negotiators, and ensure that we prevent, manage and resolve disputes. Managing stress through enacting some basic resilience-building strategies is a simple proactive intentional way that we can harness our dispute resolution agency.

Final Blog: Lockdown Dispute Resolution 101 #25: Self-management strategies in lockdown: Reflective practice

Acknowledgements

Lawyering and PPIThe content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 9.

See also, Penelope Watson and Rachael Field, ‘Promoting Student Wellbeing and Resilience at Law School’ in Sally Kift et al (eds), Excellence and Innovation in Legal Education (LexisNexis, 2011) 389.

Stress image 1: WebMD

Stress image 2: Medium

Resilience image 1: Medium

Resilience image 2: Positive Psychology