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

Lockdown Dispute Resolution 101 #18: Effective communication strategies – Reframing in lockdown: Part 2

In post # 17 we discussed the mediator’s tool of reframing. Reframing is the third of the five elements of the communication skill set represented by the acronym LARSQ – after listening and acknowledging. The first post on reframing explained the skill and its functions. This post explores what reframing looks like in order to assist with developing reframing as a skill we can use in our lockdown communications and negotiations. Putting the skill of reframing into practice can help us to prevent, manage and resolve disputes in lockdown.

Reframe 4

Revisiting reframing

Reframing is a responsive communication strategy that is closely related to active listening. The goal of reframing is to change a frame of reference in order to get the people we are communicating with to think differently about matters, or at least to get them to see things in a different light. A successful reframe leads to changes in perspective or perception for the parties. This altered attitude can lead to the necessary changes in behaviour for constructive communication and interaction. While the original frame of reference may have had a negative effect on the management or resolution of a dispute, the new frame of reference will be conducive to constructive communication.

Reframing in action

Reframing serves a number of different functions. In their book Mediation Skills and Techniques, Laurence Boulle and Nadja Alexander show how a mediator would bring these functions to life by way of a table of examples. The examples are based on a hypothetical dispute between a buyer for a boardroom furnishings company and a supplier contracted to provide high-end luxury fabric for upholstering executive furniture. The fabric was delivered one week late and was the wrong shade and texture. The buyer had requested grey woven silk but the supplier had delivered fuchsia faux silk.

Function

of the reframe

Party statement Mediator’s reframe
It can detoxify language by removing accusations, judgments and verbal stings and barbs. ‘The supplier is hopeless. His stupidity has put me in an awkward situation with my most important client.’ ‘It sounds like you are under serious time constraints from your clients to deliver? And you seem concerned with the way the fabric was supplied to you?’
It can focus on the positive by removing references to negatives and other destructive elements in the language. ‘This mistake with the shade and the texture will cause me huge financial losses …’ ‘So getting the right fabric is very important to you?’
It can focus on interests by removing references to positions and solutions and reframing to underlying needs and requirements. ‘As I said, my claim is $400,000 and there is no padding in that figure.’ ‘So what’s important for you is to cover your deposit and other expenses as well as financial and potential business losses that flow from this incident?’
It can focus on the future by removing references to the past and reframing to future needs and interests. ‘I should have known that this would happen. He was always late, never returned my calls and never listened to my instructions properly.’ ‘So in dealing with suppliers in the future, punctuality, good communication and responsiveness will be important factors?’
It can highlight the general themes in a specific statement. ‘He is such an idiot. I told him that I wanted grey woven silk and he knew my client needed it by Friday!’ ‘So you are concerned that your client’s specific requests have not been met and your reputation has been affected?’
It can focus on details, specific terms and concrete actions rather than general sweeping statements. ‘Their current ordering procedure is a hopeless mess.’ ‘So you would prefer a system for dealing with orders with some checks built into it?’
It can mutualise problems by avoiding one-sided definitions and reframing to dual-sided formulations. ‘His careless mistake has made me look like an idiot among my clients and my colleagues.’ ‘It sounds like both of you need to consider how to deal with the damage done to your respective business reputations.’
It can soften and qualify demands, threats and negotiation ‘bottom lines’. ‘If he does not pay me $400,000 within the next seven days I’ll see him in court.’ ‘So you seem keen to have the matter sorted out promptly through an appropriate financial settlement.’
It can turn an absolute demand or a position into one possible option. ‘I insist that he supplies me with the correct fabric immediately and compensates me for this nightmare with $190,000, and I expect a full apology.’ ‘So at this point in time your preferred option comprises delivery of the grey woven fabric, a financial component and an acknowledgment of the error. Is that right?’

Reframe 5

Reframing in lockdown

 Here are some examples of how we can reframe negative statements when we are communicating and negotiating in lockdown. We explored some of these in an earlier post (#4).

 

‘He’s telling lies.’                                      ‘You doubt the accuracy of some of what he’s said?’

‘It’s all her fault.’                                      ‘So you had different expectations of her?’

‘I have my rights.’                                     ‘So you wish to exercise your options?’

‘I have a serious grievance

against them.’                                            ‘You feel strongly about the situation?’

‘He abused me verbally.’                       ‘So you felt his language was inappropriate?’

‘His repair work was shoddy.’               ‘Your perspective is that the work wasn’t done according to specifications?’

‘I can’t stand it when …’                         ‘You feel uncomfortable with …’

‘She totally ignored me.’                        ‘You’re saying there wasn’t enough consultation?’

‘We had no room to move.’                  ‘You felt that you had limited options?’

‘I think he was stealing.’                         ‘In your view some funds could not be accounted for?’

‘I’ll destroy you in court.’                       ‘So litigation is a potential option for you?’

Reframe 6

Appropriate reframing is a powerful tool for communication but it is not an easy skill and needs to be practised! We can also learn some standard reframes – as the above examples illustrate – to ensure that we personally adopt a positive perspective on how we frame our communications with others.

In the next post we explore the next element of LARSQ – summarising – and consider how it can help our lockdown communications and negotiations in homes and virtual offices.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #19: Effective communication strategies – Summarising

Acknowledgements

Mediation skills and techniquesThe content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.47-6.54 with the kind permission of the authors. Thank you Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

Reframe image 1: Gina Prosch

Reframe image 2: Hunch

Reframe image 3: Thrive Global

Lockdown Dispute Resolution 101 #17: Effective communication strategies – Reframing in lockdown: Part 1

Reframe 3

In post # 16 we discussed the mediator’s tool of acknowledgement as an important way to provide feedback to the people we are communicating with in lockdown that we are understanding the messages they are communicating to us. Acknowledgement is the second of the five elements of the communication skill set represented by the acronym LARSQ – after listening.

This post focuses on the next element of LARSQ – reframing. Reframing is a complex and important communication skill – so it will take two posts to cover it properly. This first post explains reframing and the second assists with developing the skill of reframing. Understanding reframing and being able to enact it in lockdown communications can play an important part in the prevention, management and resolution of disputes.

Understanding reframing

Reframing is closely related to active listening. It is a responsive communication strategy. People communicate within a frame of reference based on how they see the world in terms of culture, experiences and sense of justice. The goal of reframing is to change this frame of reference in order to get the people we are communicating with to think differently about matters, or at least to get them to see things in a different light. Reframing is based on the fact that the language we use affects how we perceive the world (see also post # 4). By changing the type of language we use, we can change perceptions – and changed perceptions can then lead to changed behaviour – which is required for the prevention, management and resolution of disputes in lockdown.

Reframe 2When mediators reframe, they are engaging in a translation exercise through which they change the communication by moving it from one type of language to another. The intention is that the second language version is more palatable to the parties and more conducive to collaborative problem-solving.

Reframing takes place through mediators using different words, concepts and terms, using altered emphases and intonations, and otherwise qualifying what the parties have themselves said in order to provide a new frame of reference. Reframing not only changes the words being used but also changes the context of the parties’ statements. For example, this change might be from positive to negative, from positions to interests or from the past to the future. The shift in emphasis can help parties consider a more constructive frame of reference.

Where reframing is successful it leads to changes in perspective or perception for the parties and, as indicated, the altered attitude or view of the dispute can lead to the changes in behaviour necessary for constructive communication and interaction. While the original frame of reference may have had a negative effect on the management or resolution of a dispute, the new frame of reference will be conducive to constructive communication and problem-solving.

It’s important to emphasise that reframing is more than just a terminological exercise; it is about re-orienting the whole tone of the discussions. Where a party points out what is wrong, the mediator asks them to indicate what would be right for them. Where a party continually emphasises what they don’t want, the mediator gets them to talk about what they do want. Where a party goes on about what the other party wants, the mediator asks them to state what they themselves want.

There is similarity between reframing and the design of jokes. A joke-teller encourages a certain point of view but when the punchline is delivered the listener sees the preceding story in a different light. On the face of it, the punchline is incongruous but when the listener catches the joke by seeing the previous narrative in a new light, then the incongruous becomes congruous. The humour is caused by surprise, relief or delight, which occurs when the punchline is delivered, and the listener has to change his or her erroneous prior expectations. In other words, a scene is first described from one viewpoint and then rearranged, sometimes by a single word. Likewise, mediators have the capacity through reframing to restructure parties’ perceptions of a dispute situation. In joke-telling the switch-over is temporary and gives rise to humour whereas in mediation it can be long-lasting and give rise to insight. While the joke-teller reframes to achieve laughter, the mediator reframes to contribute to problem-solving.

The functions of reframing

Reframing can serve a number of different functions, though no single reframe can perform each one of the functions simultaneously. Nor is reframing a continuous form of mediator intervention; it is used selectively where it can perform one of the stated purposes. The various functions of reframing include:

Reframe 1

  • detoxifying language by removing accusations, judgments and verbal stings and barbs;
  • focusing on the positive by removing references to negatives and other destructive elements in the language;
  • focusing on interests by removing references to positions and solutions and reframing to underlying needs and requirements;
  • focusing on the future by removing references to the past and reframing to future needs and interests;
  • highlighting the general themes in a specific statement;
  • focusing on details, specific terms and concrete actions rather than general sweeping statements; and
  • mutualising problems by avoiding one-sided definitions and reframing to dual-sided formulations.

Potential challenges in reframing

There are potential challenges with the process of reframing. Problems arise if a mediator does not carry out the reframe appropriately, or when a suspicious or distrustful party finds it an alienating experience. In either event the party’s subjective assessment will be the same, namely that the reframing intervention has not contributed constructively to the mediation discourse. Therefore:

  • Reframing is a difficult art and if performed badly may be seen as mere parroting of what the parties say. (‘Why do you keep repeating everything I say …?’)
  • Reframing could be seen as manipulative. (‘That’s not what I said, you keep twisting my words …’)
  • Reframing could be perceived as the mediator favouring one party and losing his or her non-partisan role. (‘You seem to be agreeing with the other side all the time …’)

Nevertheless, appropriate reframing is a powerful mediator intervention and it can be readily improved through practice. One of the golden rules for avoiding the potential problems is to consciously maintain impartiality in the reframing role and to use the intervention in relation to both parties’ communications. However, it takes some trial and error to achieve the correct balance.

In the next post we explore what reframing looks like and how it can fulfil the functions listed above so that the skill can be developed for more effective lockdown communications in homes and virtual offices.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #18: Effective communication strategies – Reframing in lockdown: Part 2

Acknowledgements

Mediation skills and techniquesThe content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.47-6.54 with the kind permission of the authors. Thank you Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

 

Reframe image 1: The Office of Rabbi Sacks

Reframe image 2: Lisa Christiansen

Reframe image 3: NJlifehacks

Lockdown Dispute Resolution 101 #16: Effective communication strategies – using the skill of acknowledgement in lockdown

Acknowledgement 1

In post # 15 we noted the importance of reflecting skills for achieving active and effective listening in lockdown. When we enact reflecting skills we give feedback to the person we are communicating with about our understanding of their message. We can do this, for example, by summarising accurately facts, feelings and interests, by asking empathic questions and by using particular verbal cues. Another important way to provide feedback that we are understanding messages being communicated to us is to acknowledge the facts, feelings and interests present in the message.  Mediators use acknowledgement consistently throughout the facilitation of a mediation session.

Acknowledgement is one of the five elements of LARSQ – which stands for listening, acknowledging, reframing, summarising and questioning. This post focuses on the importance of acknowledgement for effective communication and for the prevention, management and resolution of disputes in lockdown.

Acknowledging

Acknowledgement 2

Acknowledgement is an important part of communication because it is critical to human engagement and attention. When a person’s emotions, needs, interests, fears and priorities are acknowledged they feel heard and recognised, they feel understood (even if not agreed with) and they feel as though what they are experiencing matters and is valued. When people feel heard and understood, they are more likely to cooperate, collaborate and engage in constructive problem-solving. This is why acknowledgement is a critical key to preventing, managing and resolving disputes in lockdown.

It isn’t hard to show acknowledgement, however it can be easy to forget to acknowledge the person we are communicating with. We discussed reflective listening verbal cues as acknowledgement in post #15. We can use phrases such as ‘It sounds as though that’s been a difficult time for you?’ ‘What you are saying is that you feel a strong sense of frustration about the situation?’. Or ‘It sounds like the main priority for you is …?’. We can also do something as simple as nodding our head or offering words of acknowledgement from our attending skills set: for example, ‘I see …’, ‘Uhuh …’, ‘Yes …’, ‘Oh really?’. Reframing, summarising and asking empathetic questions are additional ways to achieve acknowledgement (we discuss these skills in coming posts).

In a mediation, a mediator acknowledges each of the parties and also encourages the parties to acknowledge each other. When we don’t have a mediator present to help us in our homes and virtual offices in lockdown, we have to use our dispute resolution agency to reflect on the situation and experience of the person we are communicating with and recognise that experience. Engaging our capacity to acknowledge others requires (at least) 2 things. First, a willingness to acknowledge and engage with emotions; and second, we need to be able to empathise with others.

Acknowledging emotions

Michal Alberstein in an article entitled ‘Forms of Mediation and Law: Cultures of Dispute Resolution’ published in 2006 (cited below) noted that an emphasis on recognising, and allowing the expression of, emotions is a unique characteristic of mediation. Emotions are rarely acknowledged, for example, in adversarial processes like litigation. It is part of the art of mediation to be able to acknowledge emotion in a controlled way, so that the expression and recognition of emotion brings relief and enhances the quality of communications, as opposed to disrupting and damaging communications.

Albertsein says that emotions are an ‘integral part of the conflict picture’, they are important sources of information, and they have a rational level which supports parties in developing their understanding of each other. Bush and Folger have famously said that ‘there are facts in the feelings’. Fisher writing with Shapiro about emotions, has said that emotions can present important positions, needs and interests which cover real concerns that need to be answered and addressed.

Acknowledging emotions 1

In lockdown communications and negotiations, we shouldn’t be afraid of emotions – not of our own emotions nor of the emotions of the person we are communicating with. However, we do need to follow Fisher and Ury’s famous adage of ‘separating the people from the problem’. That is, we need to enact the principle of depersonalization so that emotions are managed constructively.

Professor Kathy Douglas and Dr Clare Coburn published a great article on emotions in mediation in 2014 (cited below). Kathy and Clare are dear friends and colleagues of the ADR Research Network. Kathy is Dean of the Graduate School of Business and Law at RMIT University and was also part of the co-founding cohort of the Network in 2011. Kathy and Clare’s article presents research on emotion in mediation conducted with mediators working with the Victorian Civil and Administrative Tribunal (VCAT). In the article they note the importance of an acknowledgement of the emotional impact of conflict on a person because it can result in increased understanding and also self-understanding. That is, when parties hear their own perspective and emotion reflected back to them by a mediator they develop a deeper self-awareness. Kathy and Clare note that it can also assist the other party to hear the emotional perspective of their ‘opponent’ in ways that may deepen their understanding.

I saw the magic of acknowledgement in this way when mediating with Associate Professor Libby Taylor in the Bond Family Dispute Resolution Clinic. Libby and I are co-directors of the clinic in which we both practice as accredited FDRPs. Libby and I are also co-directors of the Bond Dispute Resolution Centre – started by Professor Laurence Boulle and others back in 1989.

Libby and I were mediating a parenting dispute between two separated young parents who had a toddler. They both clearly loved the toddler very much but they were at odds about a number of issues relating to his care and parenting. The father raised a particular concern about the toddler’s nutrition. He felt the mother was not firm enough about ensuring the child ate fruit and vegetables. In the mediation the father was able to express this concern to the mother and his communications indicated he was very angry about the current state of affairs. fruit and vegetables 1

We asked the mother to tell the father how hearing this made her feel. She explained to the father that she struggled with getting the toddler to eat fruit and vegetables. She felt as though the father was judging her and saying that she was a bad mother and this made her feel very sad and upset. The father was able to acknowledge this sadness, saying that it wasn’t his intention to make her sad and that he thought she was actually a very good and caring mother – his focus was squarely on being concerned about the child’s best interests in relation to the issue of nutrition. The mother was able to acknowledge his focus and share that her focus was also on the child’s best interests. The young parents were able to exchange their different perspectives.

After extensive discussion, the father apologised saying – ‘I’m sorry I’ve been so hard on you about this’. He was able to engage with his own emotions around the issue of nutrition and explained that his own mother had been very strict with him when he was a child – and this was a strong influence in terms of how he looked at the issue of nutrition for children. The mother, knowing her former mother-in-law and her personality, was able to acknowledge that she understood where the father was coming from and that perhaps his own experiences around food in childhood had been difficult. From there Libby and I could begin to help the parents develop a plan about how the toddler’s nutrition could be managed in the different households into the future. The air in the mediation room seemed to clear after these acknowledgements. The parties’ faces seemed relieved and ‘lighter’. Communication on other issues also became easier as a result.

In their article Kathy Douglas and Clare Coburn document some of the empirical research data from interviews with the VCAT mediators. One participant said: ‘Acknowledging [the parties’] emotions is very important … because that’s the very thing that’s been overwritten. If people say [to them], ‘Get a life, get real!’ [That] just shuts people down and they feel that they haven’t been heard. They think: nobody has taken any notice of what I’m trying to say so it’s not very important’ (p.130).

Acknowledging emotions 2

Acknowledgement and empathy

An ability to engage with emotions in lockdown communications and to acknowledge the experience and situation of the person we are communicating with also requires a level of empathy.

Empathy is the ability to put yourself in the shoes of another, to understand things from their perspective. Empathy extends beyond recognition and understanding of another’s feelings and experience: it acknowledges and values the other person’s fundamental human needs. Having empathy for someone is not the same as agreeing with them. It’s also different from feeling sympathetic or compassionate towards them. Instead, when we are empathetic, we convince the person we are communicating with that we have entered their world of understanding. When we use empathic questions, or reflect back with an empathic acknowledgement, we show the other person that we have made an effort to engage with and comprehend what they have said. Acknowledgement, empathy and recognition between people in communications and negotiations can overcome a crisis in interactions.

Empathy 1As human beings, we all have a basic capacity for empathy, and we are also socialised to extend that capacity because in every culture, even though empathy may manifest in diverse ways, some level of empathy is important to the quality of human relations. In order to harness the communication benefits of empathy, we must be present in our communications with others, paying attention and prepared to engage and connect. Listening empathically means that we are focused on what the other person is saying, observing, feeling, needing and requesting.

We noted above that summarising and paraphrasing are ways in which positive acknowledgement might be made by confirming understanding. If someone asks in a conversation ‘Do you know what I mean?’ we could simply reply ‘Yes I understand’. But if we paraphrase what they have said we can convey a much deeper sense of understanding. In expressing empathy, non-verbal communication aspects (see post #5) such as the tone of our voice, are also important. An authentic reflection of our efforts to consciously listen for and understand the feelings, needs and interests of the person we are communicating with can only be communicated with a sincere tone. Further, it’s always better to ask if we have accurately understood, rather than claim that we have understood.

It is important to distinguish sympathy from empathy. Sympathy involves emphasizing our own emotional experience in response to the emotional experience of the person we are communicating with. Empathy on the other hand, involves a focus on care and attention to the other’s distinct individual experience. Having sympathy involves showing concern, perhaps feeling sorry for the plight of a person; whilst empathy is a much more significant affective response of care and consideration for another person’s emotional experience that facilitates and supports interpersonal connection and therefore effective communication. Importantly, as the young parents experienced in the anecdote above, the reception of adequate empathy will be evident in communications when a release of tension is sensed.

As we noted in post #15, some people are just naturally better communicators than others. Some people are inherently and instinctively able to acknowledge the people they are communicating with throughout their communications. But it doesn’t matter if we aren’t a ‘natural’ at acknowledgements. We can change that by learning to employ the skills and strategies discussed in this post. Again, these challenging times of lockdown demand that we harness our dispute resolution agency in this way.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #17: Effective communication strategies in lockdown – reframing.

References

Joseph P Folger and Robert A Baruch Bush, ‘Transformative Mediation and Third‐Party Intervention: Ten Hallmarks of a Transformative Approach to Practice’ (1996) 13(4) Mediation Quarterly 263.

Daniel L Shapiro, ‘Negotiating Emotions’ (2002) 20 Conflict Resolution Quarterly 67.

Roger Fisher and Daniel L Shapiro, Beyond Reason: Using Emotions As You Negotiate (Penguin Random House, 2005).

Michal Alberstein, ‘Forms of Mediation and Law: Cultures of Dispute Resolution’ (2006) 22 Ohio State Journal on Dispute Resolution 321.

Roger Fisher, William Ury and Bruce Patton, ‘Getting To Yes: Negotiating Agreement Without Giving In (Penguin, 2011).

Kathy Douglas and Clare Coburn, ‘Attitude and Response to Emotion in Dispute Resolution: The Experience of Mediators’ (2014) 16 Flinders Law Journal 111.

Acknowledgements:

Acknowledgement image 1: Alamy

Acknowledgement image 2: RAFREYES

Acknowledging emotions image 1: Developing Minds

Fruit and vegetables image: American Heart Association

Acknowledging emotions image 2: Retail Doctor

Empathy image: Charity Village

 

Lockdown Dispute Resolution 101 #15: Effective communication strategies – listening to each other in lockdown

We have touched on many useful communication approaches in the sequence of recent posts on learning from the art of mediation for the prevention, management and resolution of disputes in lockdown. Nationally accredited mediators are experts in the practice of the mediation process. They are also required to be experts in communication (their own approaches to communication) and in facilitating the communication of others.

Clouds 1This next sequence of posts continues our learning from the theory and practice of mediation – with an emphasis on specific skills for effective communication. We are focussing on five key skills denoted by the acronym LARSQ. LARSQ stands for listening, acknowledging, reframing, summarising and questioning. The LARSQ approach to understanding and enacting effective communication is a common feature of mediation training. If we can train ourselves in lockdown to use LARSQ techniques regularly in our everyday communications, we will be better able to prevent, manage and resolve disputes.

Listening Emoji 1Effective listening

In a fairy-tale world we would listen to each other carefully and effectively all the time. We would hear factual and content-related messages accurately and we would hear and engage with the messages ‘between the lines’ – those messages relating to emotions, feelings, concerns, interests and underlying needs, hopes and priorities. In such a world we wouldn’t need mediation because mediators would not be required to remind people to listen to each other to achieve proper understanding and acknowledgment.

Lockdown is not a fairy-tale world and we are all waiting to be relieved of its restrictions. In lockdown we are communicating with each other in the context of difficult circumstances – often facing emotional, intellectual and financial challenges. We don’t have a mediator with us everyday to promote effective listening, so we need to harness our dispute resolution agency (see post #2) and all the things we can learn from the art of mediation, to approach our communications with others in lockdown intentionally and in an informed way – so that they are constructive, productive and effective.

A good mediator will spend most of their time listening to the parties. In lockdown communications we need to invest time in carefully listening to each other. Effective listening involves more than simply hearing spoken words. It involves paying attention to, and properly understanding, the various meanings of messages by engaging attentively and being in the moment of communication. This involves: grasping facts and information analytically and picking up on the emotional content, broad narrative patterns and the themes the other person is conveying.

Causes of ineffective listening

Listening may prove to be ineffective due to the following factors relating to the speaker, the listener and the environment of communication:

  • Causes of ineffective listening relating to the speaker include — inaudibility, annoying mannerisms, irritating tone, inappropriate pace of delivery, personal presentation, contentious content.
  • Causes of ineffective listening relating to the listener include — discomfort, fatigue, focused on responding rather than listening, ignorance of subject-matter, psychological deafness, emotional involvement, inability to absorb, judgmental attitude, device distraction.
  • Causes of ineffective listening relating to environmental factors include — external noise, bad lighting, poor acoustics, uncomfortable seating, lack of temperature control, outsider interruptions.

We can contribute to achieving effective listening by avoiding as many of these causes of ineffective listening as possible.

Listening effectively

Listening effectively is hard work. It is not a passive exercise. This is why the term ‘active listening’ is commonly used to describe effective listeners. Active listeners are physically attentive, concentrate on and encourage the other speaker, display an attitude of interest and concern, are non-judgmental, are not be preoccupied with responding to or questioning the other speaker, and are not distracted by ‘non-relevant’ matters.

A Master Listener concentrates not only on spoken words and sentences but on the speaker’s patterns of thought, organisation of ideas and the express and implicit themes in their communication. This requires considerable effort. Paying attention is an important principle of listening effectively. Active listening is critical for the activation of the other elements of LARSQ – such as being able to acknowledge emotions and feelings properly, and being able to summarise, reframe and ask questions appropriately.

Active listening 1

Elements of active listening

Active listening can be broken down into three key elements – attending skills, following skills and reflecting skills:

  1. Attending skills include: being present in the moment with the person you are communicating with, both physically and psychologically, making them feel important and engaging their trust by using physical attention, displays of interest, appropriate body movements, and encouraging noises (for example, ‘I see …’, ‘Uhuh …’, ‘Yes …’, ‘Oh really?’).

Gerard Egan (2014, 134) refers to the macro-skills of listening in terms of the acronym SOLER:

  • Squarely face the person to show involvement.
  • Adopt an Open posture, literally and metaphorically.
  • Lean towards the person at times.
  • Maintain Eye contact most of the time (if culturally appropriate).
  • Relax, be natural in these behaviours.
  1. Following skills include: indicating that you are following the speaker by providing cues, not interrupting, asking clarifying questions, taking notes, summarising and refraining from being judgemental or giving advice.
  2. Reflecting skills involve: giving feedback to the speaker about your understanding of their message; identifying and acknowledging facts, feelings and interests; summarising accurately facts, feelings and interests; asking empathic questions. Friends and colleagues of the ADR Research Network – Mieke Brandon and Leigh Robertson (2007, 151–2) – suggest the following verbal cues as ways to initiate reflecting skills:
  • ‘You sound/feel as though …’
  • ‘You’re saying you believe …’
  • ‘What you are saying is …’
  • ‘Your point/perspective is …’
  • ‘It sounds like …’
  • ‘It seems …’
  • ‘From where you stand …’
  • ‘The main concern for you is …’

Engaging with body language (see posts # 5) is also an important element in active listening. Non-verbal communication can confirm a verbal message, contradict it or scramble it. In our lockdown communications we should aim to identify, clarify and acknowledge the messages in non-verbal behaviours. Much will depend on context.

Acting listening 2

Detracting from effective listening

We are only human after all and lockdown communications can sometimes be difficult and tense, even with our best efforts. There are many diverse natural impulses which might detract from our achieving effective listening. Here is a sample:

  • Focusing on facts and information and ignoring feeling and emotions.
  • Asking too many questions, in particular closed, leading or cross-examining questions.
  • Moralising.
  • Falling into reassurance mode.
  • Falling into an advisory mode.
  • Judging the other person.
  • Lapsing into clichés.
  • Slipping into sympathy (as opposed to empathy – see post #16), hooking into the other person’s emotions, values or judgments.
  • Engaging in self-exposure.
  • Interrupting or finishing other people’s sentences.

Difficult communication situations

The discussion above is premised on the assumption that communications are occurring when people are together – face-to-face. Communication may prove to be even more of a challenge in non-face-to-face environments. For example, on the phone – if we are just using audio – we are entirely dependent on verbal and vocal communication and are unaware of the speaker’s visuals and body language. In these situations we need to make even more of an effort to achieve effective communication.

Effective listener 1

Some people are just naturally better communicators than others. Some people are inherently and instinctively active and effective listeners. But it doesn’t matter if we aren’t a ‘natural’ at effective listening. We can change that by independently learning to employ the skills and strategies discussed in this post. This is what our dispute resolution agency demands of us in these challenging times of lockdown.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #16: Effective communication strategies in lockdown – acknowledging.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation: Skills and Techniques (LexisNexis, 2020) Chapter 6 (paras 6.40-6.46) with the authors’ permission. Many thanks Laurence and Nadja!

See also: Mieke Brandon and Leigh Robertson, Conflict and Dispute Resolution: A Guide for Practice (Oxford University Press, 2007).

Gerard Egan, The Skilled Helper: A Problem-management and Opportunity-development Approach to Helping (Brooks/Cole Cengage Learning, 2014)

Clouds image: Australian Mediation Association

Listening Emoji: Emoji Request

Active listening image 1: Medium Relationships

Active listening image 2: TechTello

Effective listener image: Alexis Maron

The members of the ADR Research Network have written widely on effective communication in dispute resolution contexts. See for example:

Pauline Collins, Victor Igreja, Patrick Danaher (eds), Nexus Among Place, Conflict and Communication in a Globalising World (Palgrave Macmillan, 2019).

Peter Condliffe, Conflict Management: A Practical Guide (LexisNexis, 6th ed, 2019)

Michael King et al, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014)

David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and Materials (Thomson Reuters, 4th ed, 2018)

Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 6th ed, 2020)

Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (Thomson Reuters, 2nd ed, 2009)

 

 

 

Lockdown Dispute Resolution 101 #14: Learning from the art of mediation – what do mediators do with conflict that can help us in lockdown?

As we’ve seen in this series of posts about learning from the art of mediation, there is so much we can discover about the prevention, management and resolution of disputes in lockdown from the theory and practice of the mediation process.

Mediator functions relating to conflict

Nationally accredited mediators in Australia have to have knowledge and skills in relation to conflict. How mediators manage conflict will vary in practice depending on their particular model of mediation. Generally speaking, however, mediators aim to:

  • legitimise the common realities of conflict (see posts #12 and #13),
  • normalise the presence of conflict in the dynamics between the parties,
  • and validate the emotions that accompany a relationship where conflict is present.

Normalising conflict 1

It can be said of mediators that they should be the equivalent of medical specialists in all matters of conflict management, prevention and resolution. It is one of their key functions in the mediation process to manage the expression of conflict and the acknowledgement of emotions. These things are important because they are often pre-conditions for reaching resolution.

Conflict resolution image 1

In lockdown we can adopt some of a mediator’s practices. For example, following the general principles above, we can acknowledge with the person we are communicating with that conflict is normal and that it doesn’t have to be a negative thing; that we can use conflict constructively to learn from each other, or to deepen the relationship, or to adopt new and better practices. We can acknowledge that conflict doesn’t feel pleasant and that it can cause angst and anxiety, but this is experienced mutually and not just by one person. And we can expressly commit to giving our best efforts to communicate effectively in order to prevent, manage or resolve a conflict.

Taking from the mediator’s toolkit we can:

  • Allow ourselves to express conflict but ensure that we remain controlled about how we do that. When we don’t have a mediator to pull us up on respectful and appropriate conduct, or to remind us of the ground rules for communication, we need to enact our dispute resolution agency (see post #2) and do this for ourselves. We need to be mindful of the impact that both our verbal and body-language have on the person we are communicating with (see posts #4 and 5).
  • Avoid using phrases like ‘get to the point’ or ‘let me finish’. It’s important to be aware of, and acknowledge, that a natural conversation involves ebbs and flows of interaction and speaking and a certain amount of respectful interruption. A mediator usually manages this exchange but when they’re not present, we need to intentionally do it for ourselves.
  • Analyse the conflict and the dispute it may have led to (see post #13) and adopt a clear structure for discussions (using an agenda). Conflict can seem overwhelming sometimes but if we break it down into its elements and manage each of those elements individually, we are more likely to achieve some progress. Even if we don’t arrive at a complete resolution, we may achieve partial progress – a step at a time – which then can build into a positive outcome of more comprehensively managing or resolving a dispute or conflict. This is how mediators approach conflict.
  • Go back to common ground, or recognize elements of partial agreement, as positive indicators of progress and an ability to cooperate and be on the same page. Common ground is a good foundation on which to build a commitment to managing or resolving the dispute or conflict. Common ground might involve, for example, matters that are already agreed on, shared values, or shared commitments (such as a love for children, or a commitment to keeping the business viable). Mediators often revert to common ground when the parties’ communications are stuck or hit an impasse.

Toolbox image 1

In post #12 we noted that sometimes conflict has moved to a more complex level known as ‘high conflict’. The management of high conflict requires a significant skill level and expertise. If in lockdown we find ourselves in a situation of high conflict it is probably a good idea to bring in the help of an external third-party mediator, so that their sophisticated understanding of the nature and challenges of high conflict can allow it to be managed effectively. A list of nationally accredited mediators is available through the Mediator Standards Board.

In summary, if we are open to giving ‘permission’ for conflict’s expression, subject to our judgment as to its impact and consequences, and if communications in conflict are managed constructively, we can do some of a mediator’s work and achieve real relief of tension, better attention to achieving resolution and the possibility of an enhanced future relationship. Whilst these things are usually managed by a mediator in the mediation process, it’s necessary for us to manage them ourselves if we are to successfully prevent, manage and resolve disputes in lockdown.

From tomorrow we start a sequence of posts on specific skills for effective communication, which is so important to preventing, managing and resolving disputes. In mediation training contexts we commonly use the acronym LARSQ to denote these skills. LARSQ stands for listening, acknowledging, reframing, summarising and questioning.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #15: Effective communication strategies – listening.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) Chapter 6.

Image 1: Harvard Business Review

Conflict resolution image: Charles Stone

Toolbox image: 123RF

 

Lockdown Dispute Resolution 101 #13: Learning from the art of mediation – analysing conflict and disputes

The prevention, management and resolution of disputes in lockdown calls not only for an understanding of dispute resolution knowledge, skills and techniques – and of the art of mediation. It also calls for an appreciation of the nature and causes of conflict and disputes, and ways in which conflict and disputes might be appropriately analysed.

In the last Lockdown Dispute Resolution 101 post we defined the terms ‘conflict’ and ‘dispute’ and explored how in dispute resolution theory, disputes are commonly understood to be a concrete manifestation of conflict. In this post we focus on developing a deeper awareness of the nature of conflict and disputes. This leads us to some key questions we can ask in lockdown in order to better respond to conflict and disputes.

Many disciplines, for example the disciplines that make up sociology, investigate, research and analyse the nature and dimensions of conflict and disputesSociology image 1.  However, this knowledge is not usually something we learn at school or through other public education avenues. There is a strong argument for a broader public education project on dispute resolution knowledge and skills. This is because everyone in communities – both domestic and global – at some point has to deal with conflict and disputes and their consequences.

Conflict and disputes are natural and everyday phenomena encountered in homes, communities, boardrooms, parliaments and war zones around the world.

They are played out vicariously in the news media, television, theatre and computer games. Interestingly, disputes and conflict are not absent from non-human animals’ behaviours as well.

Fighting gorillas image

No matter who the participants are, conflicts and disputes all involve a level of incompatibility among the parties involved, whether over objectives, resources, strategies, perceptions or other inconsistent preferences. These incompatibilities can lead to disagreement and disagreement can lead to a struggle where each side pursues its own preferences in ways not acceptable to the other. At this stage conflict has become a dispute.

Conflicts and disputes are seldom static in nature – they tend to be living organisms involving internal dynamics and fluctuating environmental pressures. The best approach is to prevent disputes from eventuating from conflict. The preferred option if a dispute does arise is, of course, to resolve it. This is not always possible, especially in lockdown. However often, if we adopt strategies from the art of mediation, we can steer a middle path – which is to manage the dispute so that although it may not be completely resolved, the parties involved can live with the situation, and continue their relationship with each other, whatever that might look like.

As we noted in post #12, while the definitive DNA of conflict is yet to be revealed there is increasing knowledge and understanding about the phenomenon. Some commentators refer to three potential aspects to a dispute – the cognitive, the emotional and the behavioural.

DNA image

The cognitive component involves the perceptions, beliefs and understandings of people in dispute. People have a range of subjective perceptions that their needs are not being met because of – what they perceive to be – the incompatible and unreasonable activities of others. For example, in a post-separation parenting situation a parent waiting for their children to be returned after visiting the other parent may perceive that parent to be inconsiderate and unreasonable for not getting the children home on time.

The second dimension is the emotional – which involves the subjective feelings of people in dispute situations, including those directed at others. For example, the waiting parent is upset, frustrated or angry because every week there are delays in returning the children, or because they are now going to be late in getting the children to their sport commitment.

Both the cognitive and emotional facets of conflict might not be known to others if they are suppressed and are not articulated by the party experiencing them. This is not the case with the third dimension, the behavioural, which comprises the external and observable actions which parties in dispute take in expressing their feelings, articulating their views on the situation’s rights and wrongs and pursuing concrete actions in attempting to get their needs met. In the above example, the parent might remonstrate the recalcitrant party, seek legal advice or attempt to get the parenting arrangements changed.

Cognitive emotional behavioural

The dimensions of conflict and disputes may overlap, but also they need not coincide with one another. Thus a small business owner may have negative perceptions (cognitive) about a dispute situation with a large supplier, but chooses to suppress their sense of injustice or to withdraw from the situation (behaviour) for emotional relief (emotion); alternatively they might negotiate a settlement and implement its terms (behaviour) but still regard themselves as having been unfairly treated (cognitive) or experience prolonged anger towards the supplier (emotion).

The emotional and psychological dimensions of conflict are related to the grieving process which parties experience after a significant loss. Where a person has suffered the loss of a limb, their job or their hopes for being able to purchase a house, they are likely to experience some or all of the stages or phases of grief.  These include shock, denial, anger, bargaining and sadness, but they do not occur in a neat linear fashion.

For example, after the breakdown of a relationship, a spouse might be in shock (‘I don’t know why this happened’) or denial (‘They’re just going through a phase, everything will be fine’) – and this means it is not easy to negotiate or make appropriate decisions about things like parenting arrangements or the division of matrimonial property. The grief and loss process may have to be managed before negotiations can be effective. Once a person has reached the ‘acceptance’ stage of the grieving process in relation to conflict or a dispute they are more able to create new meanings for their lives. This is when people are best able to participate authentically in dispute resolution processes such as mediation.

Parties’ beliefs and the meanings they attach to past events affect all the dimensions of conflict and disputes. Where parties are acting out in contested situations their attitudes and behaviours are predicated on beliefs about what they deserve or can reasonably expect. This can be founded on on life experiences, on what others have told them or on their professional advice.

For example, changes in welfare regulations may lessen the benefits for senior citizen Ruby. However, Ruby may have a strong sense of entitlement to benefits, based on her many years of work, on serving with distinction in the military and on paying taxes throughout her life. These together create subjective beliefs as to what is right and wrong in her situation and brings her into conflict, and potential dispute, with welfare agencies and government. Beliefs are not easy to change. This is an area where a mediator or conciliator can bring value through their third-party intervention in a dispute. They are able to acknowledge Ruby’s beliefs and understand their significance for her perceptions and behaviour – and as a result of this acknowledgement Ruby may be assisted through the dispute process.

Perception 1Perceptions and subjectivity are therefore important factors in conflict and disputes.  However, conflict situations with the potential to turn into concrete disputes may not do so because they exist only in the perception of one or both parties and not in actual reality – for example two employees perceive themselves to be competitive rivals for one position whereas neither is realistically in line for it. This can be referred to as pseudo conflict in which parties’ perceptions or expectations are false or based on incorrect fears or unjustified apprehensions. False conflicts are based on stereotypes about others in terms of their personal or group attributes, for example about management or unions, or about refugees and security officials, and these can be accentuated by continuing ignorance or withholding of information, or by rumours, confirmation biases and wilful blindness.  There may be little basis to the conflict in reality but it is played out by one or more parties as if there was. With both pseudo conflict and false conflict, the sharing of correct information, the provision of an explanation, or righting a misperception or a misunderstanding can help to resolve the situation.

Key questions to ask ourselves in lockdown to analyse disputes

A deeper understanding of conflict and disputes can inform some key questions we need to ask to analyse a dispute in lockdown. Using our dispute resolution agency means we need to adopt structured and intentional approaches to dealing adequately with a dispute rather than operating merely on gut-feeling.

Question mark 1

Here are some questions to help us to think methodically through the elements of a dispute in lockdown:

  1. Who are the relevant people involved in the dispute?
  2. Why are they in dispute?
  3. Why have past attempts at resolving the dispute failed?
  4. On a scale of 1-10 how is each party coping with the dispute (and the conflict underlying the dispute)?
  5. What are the parties’ positions?
  6. What are the parties’ underlying interests, needs, fears and concerns?
  7. What would life look like if the dispute continues unresolved?
  8. What are some possible options for resolution?
  9. Which ones are realistic?
  10. What ‘package’ of options could optimally satisfy each party?

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #14: Learning from the art of mediation – mediators functions relating to conflict.

Highlighting Works of some of the ADR Research Network Members

See here a sample of the works on conflict and dispute resolution in Australia – many of which are authored by current members of the ADR Research Network:

Bobette Wolski et al, Skills, Ethics and Values for Legal Practice (Thomson Reuters, 2nd ed, 2009)

David Spencer, Lise Barry and Lola Akin Ojelabi, Dispute Resolution in Australia: Cases, Commentary and Materials (Thomson Reuters, 4th ed, 2018)

Tania Sourdin, Alternative Dispute Resolution (Thomson Reuters, 6th ed, 2020)

Peter Condliffe, Conflict Management: A Practical Guide (LexisNexis, 6th ed, 2019)

Michael King et al, Non-Adversarial Justice (The Federation Press, 2nd ed, 2014)

Michael Mills, Commercial Dispute Resolution: A Practitioners’ Guide to Successful ADR (Thomson Reuters, 2018)

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Australian Dispute Resolution: Law and Practice (LexisNexis, 2017) Chapter 5. See also, Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) Chapters 1 and 4.

Sociology circle image: Pinterest

Fighting gorillas image: Africa Adventure Safari

DNA image: Science Mag

Cognitive Emotional Behavioural image: Victorian State Government

Perception image: Psychology Today

Question mark image: Clipart Library

 

Time and Place in DR: Covid-19 and its Impacts

This post has been contributed by ADR Research Network member Professor Laurence Boulle and offers insights and wisdom from our esteemed mediation community elder – I mean that in the most respectful way Laurence! The Lockdown DR 101 series resumes on Tuesday 21st April.

Boulle Blog_20 April
In days of yore dispute resolution (DR) processes were identifiable with specific times and places. This seemed natural, logical and everlasting. Under current pandemic conditions of quarantine, physical distancing and restrictions on group meetings (referred to loosely as ‘lockdown’), the factors of time and place have been disrupted, extended and sometimes distorted to accommodate the operation of DR systems under Covid-19 realities.

Contexts determine attitudes and behaviours. The lockdown has caused some people to experience a ‘slowing’ of time, removed from the frenetic demands of commuting and appointments, alarms and dead-lines. Accustomed rhythms of the weeks, the months and the seasons have been disturbed – hours of work and relaxation, and holidays and special days, have all become less precisely time-bound than before. There is more potential opportunity for individuals and groups to re-evaluate time in terms of personal inclinations and social dynamics. This could involve (re)reading Albert Camus’ pandemic novel, The Plague (rich in space and time allusions), or finally conquering Marcel Proust’s monumental In Search of Lost Time (in seven volumes), which is appropriately themed for current times.

In reality the nature of time has always been a pluralistic, and never a unitary concept, and has been much debated by philosophers. In traditional societies notions of time are associated with mythical themes of rebirth and the cycles of nature, while industrial societies operate with linear notions of time – with the metaphor of time’s arrow racing towards us, passing through at pace and retreating into a lost past. This is not the time or place to explore these intriguing theories philosophically – dispute resolution is, after all, a most pragmatic pursuit.

Space, for its part, is traditionally associated with physical locality, something earthy, concrete and bounded. Place and time are sometimes correlated with each other, for example where time is measured in terms of spatial distance – how long it takes to walk from one village to another. However, the concept of space, as with time, has different connotations in different fields, such as physics, psychology or law. Spatial factors are highly regulated in domestic law in relation to land ownership, strata title rights and personal property – how they can be acquired, developed and alienated. In international law spatial considerations are reflected in national boundaries, maritime zones and jurisdictional limits of sovereign states, with implications for the movement of people, for travel and for trade. Space is sometimes reified in legal and economic thinking with serious consequences for those from ‘other spaces’ – asylum-seekers have trespassed spatially on Australian territory and goods are quarantined because they emanate from ‘external’ territories. Border forces enforce spatial borders, and other things besides.

As it has with time, so has the lockdown affected individuals’ and groups’ spatial patterns and practices, and by extension how we organise and experience our sense of self when it is identified with discrete spaces – my home, my club, my firm’s board room. Needless to say, there are very different experiences of pandemic space at present, with some individuals closeted singly in one-room units, others in spacious houses with veggies and views, and yet others on farmland with hectares of space and accompanying sky, bush and wildlife. Different spatial experiences under lockdown can impact the grief, fear and stress and other vulnerabilities associated with new unknown realities.

Corona virus

Time-Space in ‘Traditional’ Dispute Resolution
Time has always been an imperative of justice accessibility – ‘justice delayed is justice denied’. Or as Roman lawyers intoned, ‘Tempus fugit, ergo diem carpe’. Courts, however, have traditionally run on strict clock time, hearings starting punctually at 10.00 (a judge once warned me that, after godliness, punctuality matched the importance of cleanliness) and adjourning predominantly in terms of standard schedules and not in terms of a case’s peculiar evolutionary progression.

As regards space, the courts and jury systems were originally predicated on the presence of all relevant parties in the same court precinct at the same time, the court-room physically representing the symbolic majesty of the law. Procedural fairness required court spaces to be publicly accessible, with evidence given in the same ‘time-space’ for the benefit of all litigants, advisers and observers, without altering space to accommodate individual meetings. Case management systems, hearing adjournments, court recesses and opportunities for judgment writing did accommodate some flexibilities of time and space, subject to the demands of procedural fairness and public access to justice in each dimension.

In their first appearances in the previous century arbitration, mediation and conciliation systems were also time – and space – bound. They were identified with physical locations and with fixed (or negotiated) times for the attendance of parties and advisers, for adjournments and for termination. A variation in the space-and time-bound nature of mediation was, and continues to be, found in the convening of separate meetings for individuals in isolated spaces, in shuttle mediation where parties do not wish to, or could not lawfully, be in spatial proximity with each other, and in telephone mediations where parties are spatially separated but participate in synchronous time. Preparation before the convening of DR processes was conducted in asynchronous time and often in individual virtual spaces as interveners prepared and primed each side individually.

Other changes to time and space determinants in DR systems preceded the pandemic, predominantly during the first decades of this century. The drivers of changes were computing developments, communication technology and algorithms, on one hand, and pressures for service efficiency, measured largely in units of time and money, on the other. Courts and tribunals have for some time been using new technologies to expedite proceedings, reduce backlogs and make justice more accessible for more parties.

Arbitrators, mediators and other DR practitioners also responded to cost and time pressures by engaging technology such as emails, the internet and online services for preparing parties for the respective processes, for facilitating exchanges of documents and for managing organisational matters before participants congregated in a physical location. Pervasive efficiency goals produced strict time limits for some processes, such as arbitration conducted under expedited procedures and statutory conciliations time-limited to three hours.

More extensive changes relating to space and time were introduced in the immediate pre-virus years. Online spaces were providing for virtual mediations and arbitrations, courts and tribunals introduced electronic filing, pleadings and discovery, and distance communication was deployed for experts, criminal accused and witnesses in tribunal and court proceedings. For the first time, private and public DR platforms accommodated not only spatial distancing but also communications in asynchronous time, such as basic emailing, text-based negotiation and more sophisticated forms of on-line practice using virtual internet protocols. Thus, well before the pandemic, service-providers such as the Mediation Room (https://www.themediationroom.com/) allowed for negotiations, mediations and adjudications to occur in asynchronous times and remote places, as did large on-line business and industry institutions and providers of private services in telecommunications, finance and insurance, as well as organisations dealing with global commercial matters such as the determination of domain name disputes.

The pandemic, however, turned attention to spatial and temporal DR changes prompted more out of pragmatic and regulatory necessity than convenience and efficiency.

Lockdown 1

DR Time and Space under Lockdown
There is some irony in the current pandemic’s choice of timing, and arguably spatial presences, in that DR systems had already broken traditional bounds of time and space. Courts in Australia had been using sophisticated technology for case management, hearings and evidence, arbitrators and conciliators had adapted their systems so they could practice in their pyjamas, and commercial service-providers developed and promoted new technologies and new forms of dispute resolution. In compensation cases over money, text-message negotiations were being used in some contexts, such as where claimant teams required coffee off-site and both sides agreed to continue exchanging dollar proposals. (Based on which the author now teaches text-based negotiation in DR – another story.)

In terms of current realities, we might say that many dispute resolution services were partially pandemic-ready when the virus collided with accustomed patterns of social intercourse.

When lockdown first occurred, however, DR activities initially stalled. Time momentarily stood still, and spaces were vacated. Hearings were deferred to future unspecified dates and some courts locked their panelled doors. Lawyers not involved in transactional work experienced sudden drop-offs in hearings and trial-related practices. A lack of control, accompanied with some desperation, was momentarily, in the air.

The stalling was, thankfully, short-lived. Courts, commissions, arbitrators and others were quick to consider how they could continue their respective services while ensuring compliance with official lockdown requirements. The strictures of lockdown necessitated more extensive and timeous adaptations to the time-space dimensions of DR systems.
Within a short space of time some courts and commissions began conducting hearings and convening mediations with the assistance of telephone communications, video links and digital spaces. Mediators and arbitrators revised their engagement agreements to accommodate the new circumstances; for example, traditionally private and confidential mediation systems required contractual reinforcement of these principles: in virtual space, reinforced by asynchronous time, a zoom or skype meeting can be easily recorded.

The new developments provided new opportunities for commercial on-line services such as Modron and Immediation. To enhance their members’ capacity in the various virtual environments, bodies such as the Resolution Institute and the Australian Disputes Centre have increasingly offered practice-based webinars on the systems.

For entrepreneurial classes of DR practitioners, the new circumstances and the new technologies provide new potential forms of practice. For example, the national cabinet’s requirements for designated landlords and tenants to renegotiate commercial lease terms (where the tenant’s trade had been adversely affected), invited consideration of using impartial online facilitators in these deliberations. Domestic tensions, large and small, caused by family lockdowns in confined spaces could be potentially facilitated by counsellors and conciliators in pop-up DR systems. Neither the leasing or domestic categories service would be space – or time – bound and Australian practitioners could potentially offer such services in any relevant jurisdiction – subject to time differences. In both categories there could also be temporal dynamics not immediately apparent but necessitated by lockdown requirements – renegotiated leases might have to be continually re-evaluated to accommodate changing financial circumstances and domestic issues might require regular interventions of shorter duration, particularly where adolescents are involved. The new-style DR systems could be readily adapted to new dispute categories.

For some practitioners the transition to virtual dispute resolution through online technologies and platforms, whether in synchronous time or not, has been relatively easy. However, issues have inevitably arisen in these circumstances, for example in relation to moving parties from joint to separate meetings and back again, and there have been concerns relating to privacy and confidentiality (or lack thereof) of some online facilities. Practical changes have involved moving away from use of butcher’s paper and whiteboards for agendas, graphs, mud-maps and the like – here inventive use of screen-share and camera focus on the intervener’s board are used as surrogates for the original representations of visuals.

Virtual DR

Inevitably practitioners are developing tips and tricks for operating in virtual spaces, and these are also found on relevant websites. Some lessons are learned through trial and error, such as muting microphones in multi-party sessions and training the dog in quietude, some entail sound common sense, such as having part of the torso and not only head on the screen, and yet others require some technical finesse, such as simultaneous use of video, telephone and chat spaces, sharing documents and drafting deeds of release jointly. In multiple party sessions which include advisers, interpreters and others, practitioners ensure prior commitments to longer time periods than ordinarily expected.
The gear-shift to virtual DR practice invites attention to two factors indirectly related to time and space. The first is artificial intelligence which has been perched on the margins of various DR systems for some time and will be more easily engaged, for example in relation to predictive analyses, in digital spaces than in off-line DR. The incorporation of AI developments into the new virtual practices promises not only more accurate forecasting and avoidance of heuristics but additional efficiency in the time dimension.

The second indirect connection relates to the measurements in delivery of DR services. The spatial closure of courts, tribunals and commissions pushes some of the expenses of delivery onto practitioners operating in their home spaces – analogously to how airlines and fast food have pushed costs back to customers. Some mediator outlays on equipment, subscriptions and online DR training will be defrayed through tax write-offs, (and increased practice opportunities 😊), while others will be borne by practitioners themselves. The off-set of some operating expenses will result in greater efficiencies for tribunals and commissions, and constitute obstacles to reverting to off-line operations when the lockdown is no more. Moreover, virtual spatial and temporal realities might make for DR systems being easier to measure – the dreaded ‘mediation metrics’. In-built algorithms are likely to prioritise machine-measurable factors of quantity and efficiency at the neglect of the qualitative-effectiveness promises of DR systems. Metrics always measure first what is easy to compute, and these include unit costs, operating time and duration, settlement rates, and similar ‘throughputs and outputs.’

Technical and practical challenges aside, there are cultural and attitudinal assumptions in the move to non-spacial and temporally asynchronous DR practices. Aboriginal philosopher Tyson Yunkaporta (Sand Talk) writes insightfully about indigenous ways of valuing and being, of knowing and doing, all with spatial and temporal dimensions. The indigenous experience of ‘country’ is difficult to reframe from the spatial to the virtual and societies which still have partly oral cultures require high-context, or field dependent, reasoning times and spaces for their yarning. Care will be required to ensure that, in the rush to digitalise, these ways of being and doing can be accommodated in the emerging DR protocols.

Even the best protocols, however, can be alienating for some participants, whether through the formality, technicality or duration of proceedings or because of disputants’ attributes of culture, ethnicity, religion or education. Even for a seasoned dispute resolver the mildest of new technologies can be a shock – recently I gave distance evidence in committal proceedings and it was an isolated and isolating experience, yet this medium is already regularly used for bail applications and expert evidence and the disconnections could be accentuated by the new DR methodologies. Moreover in cases of interpersonal dispute resolution, such as estate and family matters, the space and time determinants could provide challenges in establishing emotional connectivity among parties and their supporters.

Time and spaceFuture Time, Future Space
As noted above, context is everything. It is not only spatial perspectives that have been disrupted by the lockdown but time as well – these are circumstances in which it is socially difficult to anticipate and plan for the future. While thoughts are always tempted to lapse into past time it is more difficult right now to reflect on future time. Time has always seemed like a quasi-infinite resource which facilitated planning in personal diaries, career, work and leave schedules, and other activities to be undertaken or achieved within designated pods of time.

Most commentators suggest that the ‘new normal’, when it eventually arrives, might be quite different from the ‘old normal’ in its political, economic and social dimensions. The same might be said for dispute resolution. If this is the case, wise heads will need to reconsider simple spatially-related rituals which engage the brain’s right hemisphere and enrich DR experiences: handshakes during introductions, physical circulation and ritualistic signing of engagement agreements, the sound, sight and tactile nature of pouring and drinking water and sharing the tissue box on the mediate table.
If the normative framework of dispute resolution changes permanently, other changes would have to follow. For example, the assumptions of the NMAS might also have to be reconsidered, and the Practice Standards amended accordingly. And space- and time-bound DR walkshops, formerly conducted alongside Sydney’s harbour or Canberra’s lake, will have to discover new environments.

There is DR uncertainty ahead. Only time will tell. Watch this space.

Laurence Boulle

You can contact Laurence at resolveaboulle@gmail.com.

Acknowledgements

Mediator image: Law.com

Corona virus image: Science Alert

Lockdown image: The Body Mechanic

Virtual DR image: ODR Europe

Time and space image: Medium.com