UNSW builds its ADR footprint and the ADR Research Network welcomes a new member

The UNSW Law Faculty is full of surprises.
Headed by our energetic Dean, Professor George Williams, (whose weekly schedule leaves me exhausted) we have been lucky to attract accomplished academics with a remarkable diversity of talents.

Some years ago we persuaded Lisa Toohey to join us from the University of Queensland with her unusual combination of expertise in ADR and Trade Law.
Lisa has recently taken a role as Professor and Deputy Dean (Research) at the University of Newcastle’s Law School. Happily she has retained her relationship with UNSW in an adjunct role but has left a big pair of shoes to fill.

We are delighted that we have now been joined by Professor Amy Cohen – an accomplished international academic who is upholding our tradition of diversity with specialties in ADR and Food Law. Amy comes to us on secondment from the Moritz College of Law at Ohio State University.

Amy Cohen

Her CV is remarkable.
Amy has held visiting professorships at Harvard Law School; Osgoode Hall Law School; the University Of Turin Faculty Of Law; and the West Bengal National University of Juridical Sciences. She has held fellowships from the Radcliffe Institute for Advanced Study at Harvard University; the American Institute of Indian Studies at the University of Chicago; the Fulbright Program; and the Collegio Carlo Alberto. She has also been a visiting scholar with UNSW and with Cornell Law School.
Before joining the Moritz faculty, Amy taught at the Kathmandu School of Law in Nepal as a Fulbright scholar; clerked on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado; and worked on community development initiatives in Ghana, Nepal, and Thailand.
Along the way Amy was a student and Teaching Assistant of Professor Frank E.A.Sander, whose work was a cornerstone of the development of ADR as we know it today.
She was recruited to join Ohio State University and has continued to be supported by the remarkable Professor Nancy Rogers – former Attorney General of Ohio; a former Dean of the Ohio State University Moritz College of Law  and the former holder of the Michael E. Moritz Chair in Alternative Dispute Resolution at the Moritz College of Law. Professor Rogers’ contributions to ADR in general and mediation in particular have been an international influence.

Her academic approach
Amy uses the study of informal dispute resolution to understand broader shifts in law and society. For example, her recent work has focused on alternatives in the US criminal justice system. One set of articles examines specialised prostitution courts in New York City in the wake of international anti-sex trafficking campaigns and criticisms of broken windows policing. They trace how misdemeanour criminal courts increasingly use informal and consensus-based procedure to administer new forms of social welfare and social control.

Her next work – a genealogy of American restorative justice, beginning with ‘new left’ activism in the 1960s and 1970s and tracing secular/religious, anti-statist/statist, left/right translations over time, including how today restorative justice has captured the attention of institutions devoted to principles of economic freedom and limited government (a recent blog post about that article is here).

We welcome Amy to the ADR Research Network and look forward to her joining us as a fellow blogger. She tells me she is eager to join local conversations about how “alternative” ideas and practices influence regulatory governance; criminal justice reform; and civil court practice.

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Court Managed Expert Evidence – Using ADR techniques to enhance the integrity and utility of expert evidence in the Land Court

Fleur Kingham

Fleur Kingham – President Land Court of Queensland

The National Mediation Conference 2019 continues to provide rich material for learning and reflection some weeks after the it concluded. This blogpost from Fleur Kingham, President, Land Court of Queensland provides a great taste of the challenging and thought-provoking session she delivered.

What has ADR got to do with expert evidence?

In the Land Court of Queensland, ADR objectives, skills and techniques are at the heart of its procedure for managing the pre-trial preparation of expert evidence.
With the aspiration of enhancing the integrity and utility of expert evidence, the President of the Land Court adopted Practice Direction 3 of 2018, supplemented by the Guidelines for Expert Evidence.
The procedure for Court Managed Expert Evidence, or CMEE for short, brings together two very familiar processes in civil litigation – active case management and meetings and joint reports by the experts. The innovation lies in how those processes are connected, located within a without prejudice framework and supervised by a convenor, who is either a member or the Judicial Registrar of the Court.
The impetus for this procedure is twofold – the importance of expert evidence to its cases and enduring concerns about the quality of expert evidence led before the Court.
Expert evidence is central to the resolution of most matters that come before the Land Court. It is a specialist court with jurisdiction to hear disputes about the terms of access to and compensation for use of land for mining and other resource developments, compensation for the compulsory acquisition of land, cultural heritage disputes and appeals about land valuations. Expert evidence is involved in nearly all cases and, in some, the only issues in dispute involve expert evidence.
The Court has the same concerns that have motivated courts and tribunals to become increasingly interventionist in the management of expert evidence. Those concerns include bias (conscious or unconscious), the complexity of the information, the incomprehensibility of technical reports, and the risk of competing expert reports passing like ships in the night.
The CMEE Convenor’s role is procedural, facilitative, neutral, and expert. The CMEE Convenor cannot decide any substantive matter and cannot make directions without the parties’ consent. They facilitate communications about pre-trial preparation of expert evidence and seek to build consensus between the parties and their lawyers about the necessary steps. It is expert in the sense that the CMEE Convenor is an expert in the Land Court’s procedure and has content expertise in the Court’s jurisdiction. It is not evaluative, except to the extent that suggestions about process might involve the Convenor applying their expertise to help the parties move through process stalemates.
The objectives of the CMEE process are familiar to an ADR practitioner:
• To resolve, reduce and manage disagreements to a minimum; and
• To prepare for either mediation or more focussed preparation for the trial with reduced issues.
The Convenor uses the ADR skills of convening, facilitating, and managing disputes. The CMEE Convenor assists the experts during their meeting process to understand their role and the Court’s expectations. They facilitate the experts’ discussions and preparation of their joint expert report. In Queensland, once the experts start their meeting, they must proceed without further instruction from the lawyer/party who engaged them. This can create a dilemma if the experts need further instruction or information or need more time to complete their work. The CMEE Convenor can facilitate communications with the lawyers as a group. This ensures the confidentiality of the expert evidence process is not a barrier to meaningful communication and further instruction (without inappropriate influence) where required.
The CMEE Convenor also facilitates communications between the experts and the lawyers/parties and the Court. The CMEE Convenor will identify when something needs to be taken from the expert meeting to the lawyers for direction. The CMEE Convenor will also ensure that any matter that needs to be resolved on the record can be brought back to the member managing the case.
ADR techniques are central to the work of the CMEE Convenor: to clarify, find common ground and to explore solutions. The CMEE Convenor does not mediate a resolution between the experts. They use constructive controversy to encourage deliberative discussions aimed at creative problem solving. The CMEE Convenor ensures the experts address the same issue, with reference to the same material and that, if they differ, it is clear why they differ and to what extent. Many differences between experts, at the end of the day, prove to be immaterial to their ultimate opinion. The CMEE Convenor encourages the experts to identify what differences between them are material to the outcome of their opinion.
The CMEE process is relatively new. An international team of ADR academics will evaluate it in due course. To date, CMEE appears to be well received by the parties/lawyers and their experts. The President considers it has resulted in more focussed preparation of better quality expert evidence.

Can Poetry teach us about Mediation?

NMC2019One of the best features of the national Mediation Conference 2019, with 7 separate streams jam-packed with sessions, was the extraordinary variety of themes and presenters.
Days after the conference has ended I am still revisiting the ideas that were shared and the challenges to my view of what ADR is and might be.

BrysonIt is probably unsurprising that David Bryson, a colleague with qualifications in Politics, History, Psychology, Social Anthropology and Organisational Change signaled his intention to present us with a decidedly different conference session.
He described his surprise when the NMC organising committee accepted the idea he had proposed (somewhat provocatively) for this session – and his subsequent challenge to deliver something that until then had been just a playful idea.
Session participants, were surprised also – but certainly not disappointed.

Bryson bookA published poet himself, David delivered a session on ‘ADR Lessons from the Art of Poetry’ (subtitled (Poetry Lessons from the art of ADR).
His idea was that in some ways ADR and poetry share the same space although they have different frames.
He used the example of how poetry and ADR both rely heavily on words and on navigating meaning through the use of metaphor, with poetry adding the influence of imagination.
He used the language of ‘encode’ (from the deliverer) and ‘decode’ (from the receiver) to explore the intention/reception dynamic which is often a significant element in a mediation process. He engaged us further by sharing some lines of poetry which invited the audience to explore the intricacies of language.
Bryson used the unexpected concept of ‘sweet and correct formality’ to continue his exploration of concepts linking poetry and mediation.

New language for mediators
He developed this idea through his notion of ‘the ‘thoughtful machinery’ of poetry, giving us:
• Structure of lines
• Rhythmic energy and
• Repetitive sounds
He demonstrated how we can also find the ‘sweet and correct formalities of mediation’ where:
• Words are channeled in form and purpose in process
• Language is directed into negotiation elements
• Interpretations [need to be] filtered for heuristics and mind tricks and
• Social dynamics of conflict [can be explored]
We were certainly being engaged in a very different but compelling frame in which (using unexpected analyses) Bryson described mediation and poetry as sharing the common elements of:
• Multi-level meanings
• Emotional drop, below the surface
• Images of truth about humans enlivened to take greater weight; especially by the use of metaphors.

Learning from poetry
Using extracts from a series of poems, Bryson encouraged us to explore these elements – an analytical framework quite different from more conventional analytical frameworks that we are accustomed to bring into mediations with us.
Continuing his theme of comparisons he gave 3 further examples:
Multi- level meanings (using poetry to encourage our exploration of a range of possible meanings)
The emotional drop (through naming and listening)
The use of metaphors
This example was the most powerful – exploring, through the language of poetry, how mediators change the frame by changing the metaphor. A memorable example was changing the metaphors of conflict from war or entrapment (such as armed with the facts; between a rock and a hard place) to journeying and collaboration (such as first steps towards an agreement; where do we go from here?).
Bryson finished by encouraging us to think about becoming poet mediators. A big challenge and one that seemed to be taken up very energetically at the Poetry Slam – a very unexpected highlight and hotly contested highlight of the Conference Dinner.

More gems from NMC 2019

NMC2019

The National Mediation Conference continues to offer us opportunities to share and learn. The pace has been remarkable and the overarching experience has been of inclusion and learning from each other.

The profoundly challenging moments of reflection have also been interspersed with lighter moments. Dinner at the winery was a relaxing event enlivened by the unexpected and, at times hilarious, poetry slam. I had not expected to be a participant but the audience was generous about my ‘Ode to Short People’.

Today was a particularly important day for me.

Attending the conference with my husband and two of my children who are mediators has been a gift. I never anticipated a family of mediators and it never occurred to me that one day we could all have a learning experience as colleagues.

NMC2019family

My family of dispute resolvers- Alan Limbury, me, Emma-May Litchfield and Ashley Limbury

This morning I had the joy of being in the audience as my daughter Emma-May Litchfield presented on her current research – ‘Should emotions be considered in the design and delivery of mediation training’ – under the watchful eye of her Masters’ supervisor Dr Kathy Douglas.

We are all tired by day three so we were enlivened when Emma-May engaged the room – polling our experiences as mediators, trainers of accrediting programs and as parties is mediation processes.

She challenged us to identify our own perception of whether emotion enters the room as part of the mediation process.

A starting point of her research was the requirement contained in the NMAS standards, requiring that those seeking accreditation under the standards demonstrate an ‘ability to manage high emotion’.

The Research Process

We were introduced to Emma-May’s qualitative process of interviews with 12 accredited mediators who were also trainers in accrediting programs.

Her semi-structured approach provided consistency whilst also allowing the opportunity to explore unexpected dimensions as they arose.

This led us to an overarching question she pursued as part of her work – Is the skill of dealing with emotions part of the design of accreditation training programs?

A particularly interesting outcome of the research was that the factor that determined whether training in emotions were included in the training depended on whether the trainers thought that it was important. I found this remarkable.

We were given an explanation of what might this mean via the hierarchy developed as part of Krathwohl’s Affective Domain of Objectives.

Krathwohl's Affective Domain of Objectives

Krathwohl’s Affective Domain of Objectives

Exploring the values hierarchy Emma-May used the great analogy of the path to adoption of a plastic bag free life to demonstrate the development of values – from the most basic acknowledgement of a value to the top of the hierarchy where there is active living of values.

It’s a great sensation when your children become your teachers. I am really enjoying the learning emerging from this research.

The National Mediation Conference 2019 opens

NMC2019

The National Mediation Conference opened in Canberra yesterday and it has already given us memorable experiences.
From the opening plenary sessions the tone was set for us to experience the ‘Over the Horizon’ conference theme.

Honeyman Christopher Honeyman gave us some language that was repeated throughout the day – ‘no tools and no rules’. His humour encouraged us to engage with his message that part of mediation’s value lies in the difficulty we experience with definitions and rules – offering us the opportunity of being infinitely flexible (within ethical boundaries) whilst also delivering a process that is situation specific. His parting encouragement for ‘keeping a sense of doubt about the right thing to do’ is something I am still reflecting on.

Oscar Honeyman was followed by Aboriginal and Torres Strait islander Social Justice Commissioner June Oscar AO of the Australian Human Rights Commission who introduced herself to us as a proud Bunuba woman.
Commissioner Oscar gave us a warm Bunuba welcome and then explained (in what she described as her second language) that her welcome to us was in support of her intention to support our understanding of indigenous ways of being and governing. The ceremonial welcome is part of keeping us connected and supports the cultural imperative of actively keeping peace and avoiding disputes.
She spoke of a ‘web of being’ which reflected a whole of life approach to mediation where everyone and everything in the community is accountable – providing lessons to sustain ‘societal health and wellbeing.’
Connection was a continuing theme and Oscar talked about ‘song lines and stories that keep us connected’. She shared her own important stories of mediating in her community at Fitzroy Crossing. She used her stories to introduce us to what she views as the basis of indigenous mediation – ‘deep listening’.
This phrase has struck a chord with the mediation community gathered for the conference and it continues to be a reference point of presentation after presentation.
Naming is powerful and now that we mediators have been given this powerful naming, we can be sure that when we use it we recall Oscar’s words:
‘Deep listening stops us from imposing our own ideas and imposing the outcome we want – it creates an important space so we have the opportunity to be exposed to the thoughts and feelings expressed by others.’

(PDF version of Oscar’s paper will be available on the NMC2019 website)

Understanding the Brexit dilemma – How negotiation games provide analytical tools

Brexit

Picture Credit – Wikimedia Commons

When Professor Roger Fisher of Harvard Law School’s Program on Negotiation published ‘Getting to Yes’  in 1981, Game Theory was well developed.

It was firmly in the grasp of mathematicians and economists – not lawyers.

First advanced by mathematicians  in1944, more mathematicians followed, developing a game model of co-operation and conflict. This was later enhanced–  given a prison-sentence scenario and named The Prisoners Dilemma.

Nobel Prize – winning John Nash made further enhancements, giving us the Nash equilibrium – a model of problem solving to analyse and resolve the prisoner’s dilemma game.

By the time ‘Getting to Yes’ was published, game theory was a strong part of economic theory and analysis. Business schools had wrested it from the mathematicians and installed it in mainstream business programs.

Researcher followed researcher – developing and enhancing what has become known as the field of distributive negotiation.

Fisher’s ideas about interest-based negotiation (called integrative negotiation) were influenced by but separate from the distributive work of the business schools.

Fisher embraced The Prisoners Dilemma and other games in his teaching.

He often used the famous Negotiation Auction game, demonstrating how emotion and ego can override rational behaviour in negotiation. In this game, players bid for, say, a $10 note. Bids start low and then move surprisingly close to $10 as the competitive emotions kick in. The rules require that the top two bidders must pay their final bid although only the highest wins. Consistently the last two bidders pay more than the face value of the note, trapped in an ego-driven battle in which emotion overrides reason.

Edward’s Game

Using case studies, Fisher refined this game into something he named ‘Edward’s Game’ – although sadly he did not explain who Edward was nor publish his analysis.  Playing it in class with Fisher, we experienced an addictive game where the proponent has something desired increasingly fiercely by other competing negotiators. The proponent’s pitch is ‘I won’t tell you what I want – you just keep putting offers on the table and I will tell you when it is enough’.

The seductive quality of the game increases with the negotiator’s desire for what is at stake. In the domestic setting we often observe Edward’s Game when one party anxiously seeks forgiveness from another who refuses to indicate what forgiveness will require.

Edward’s Game is the gift that goes on giving.

It provides a terrific frame to test and analyse international dilemmas that appear completely irrational.

Brexit through the lens of Edward’s Game.

Brexit is playing out in the House of Commons, while the world watches in dismay. It is evident that no-one, except the economists who are commenting, the EU and the horrified public, is behaving in a way that can be explained  by the rational, analytical tools of game theory.

Edward’s game has been playing for quite a while.

May clearly has a powerful interest in being seen to honour her promise of being the Prime Minister who implements the public vote to leave. To complicate matters, there is more than one Edward’s game being played out. This makes her negotiation task so much more difficult because the different interests she has to satisfy in order to ‘win’ are in conflict. Some interests use Brexit blocking as a tool to pursue a more devious agenda of self-promotion and derailing of May’s leadership. Some interests relate to overturning the ‘leave’ decision and some interests relate to being unwilling to do anything which might be seen to be ‘giving in’ to the Europe that Brexiteers had vowed never to be seen to agree with again.

May keeps putting more on the table.

She went back to the EU to negotiate an extension. The warring parties would not agree and more of her own party defected to a new independent group with different interests again.

Receiving intelligence that a uniting interest of key decision-makers was her demise, she offered a new solution. She would resign if the proposal negotiated with the EU were approved. No luck.

She is now talking of a further extension which shows no signs of meeting sufficient approval yet for a motion to be passed in the house – but watch this space.

Negotiating Edward’s game successfully

Fisher constantly demonstrated to us willing participants in his game how difficult it was to ‘win’ without giving away more than the value on offer. This is what is happening with Brexit also.

Fisher proposed 3 tools for ‘winning’ Edward’s game. How might they work in this scenario?

  1. Go to yourBATNA– but, leaving it so late, what could have been May’s BATNA has deteriorated into a WATNAand would end in lose/lose – a very bad outcome.
  2. Change the players– May has signalled willingness to resign as the price for approval of her deal but it is too late. Divisions are so entrenched it would be near impossible to find an acceptable leader with the numbers to get May’s deal through. She has been experimenting with another version this week – collaborating with Labour leader Jeremy Corbyn. A good outcome seems very unlikely.
  3. Change the game– May has already been cycling through Fisher’s seven elements. She has tried ‘relationships’ but her antagonists are prepared to risk all key relationships in their bid to block her. She has tried to brainstorm ‘options’ but masterful Edward’s Game players won’t play. She has tried ‘standards’ but apparently the regulatory pain of a hard Brexit is bearable if it will block her deal. Seems hard to see where to go from here.

Edward’s Game provides a great opportunity for using negotiation tools to explain the apparently irrational. As world leaders in many places showcase their Edward-like skills, commentators and analysts need to name the game early so that constituencies can be encouraged to find common interests quickly and avoid discovering that both the battle and the war have been lost.

What Would YOU Know About It? Some thoughts on gaining experience as a young mediator

This post by Haley Weir originally appeared on the Kluwer Mediation Blog

                                              what-would-you-know-about-it-image

It was a phrase I’d imagined silently echoing in the minds of parties, co-mediators and solicitors, but this was the only time I had heard it vocalized.

It was uttered during one of my first coordinator roles in the civil courts of Scotland, where my role was to inform and promote the services of the mediation clinic to parties pursuing litigation under Simple Procedure. I was nervous to say the least. The aim of the role seemed unclear and, as an inexperienced mediator, I lacked authority and confidence.

The Sheriff’s strong critiques of a contractor’s failure to complete the building of a deck (over many years) had been heard, and it was suggested to the parties that they speak to the mediators present, in the hope of resolving the issue with no further legal action.

– Cue me.

I believed this case was ideal for mediation. I introduced myself to the two gentlemen involved in the claim, explaining the potential benefits of mediation. It soon became apparent, by the respondent’s resistance, that he was uninterested in my pitch.

I continued my presentation and expressed my enthusiasm for mediation, until I was met with that phrase:

“What would YOU know about it?”

Fair enough – what do I know about the construction of a deck? Very little, and I was quick to articulate this to the respondent, adding, “Though, I am assured YOU know quite a bit on the matter, which is far more relevant to this case.”

I attempted to recover by reiterating that my role, as a mediator, was to facilitate a meaningful conversation between the parties, and that the subject matter, content and interests were determined by the parties and not myself.

But, as you may have guessed, this case did not mediate. It is doubtful that the Sheriff who would hear the case would have an exhaustive knowledge of deck construction either and the matter would ultimately come down to contract law, not construction. However, the participants had a lack of trust in both the mediation process, and in my experience and ability as a young mediator.

Perhaps, I have been mediating for longer than I realized. I was sought out on the playground to advise and resolve disputes such as, “Whose turn was it, really?” I dabbled in mediation before I knew the term (though my argumentative and opinionated personality did not reflect a high standard of impartiality).

I went on to explore the concept of issues and crisis management as a module in public relations in my undergraduate studies, before moving to my postgraduate studies, where I discovered mediation and alternative dispute resolution.

The field offered me the opportunity to combine my interests in working with people, taking a thoughtful approach, problem solving and creativity. Once commencing my studies abroad in Scotland, I continued to develop these skills while learning to implement strategy and theory into the practice. After clocking the necessary hours as a student mediator and meeting other requirements, I began to take on cases as a lead, co-mediating with current or past students in the Master’s program.

During these cases, it was assumed (more than once) that I was the trainee there to observe and learn from my more experienced counterpart. It didn’t matter that I was conducting, guiding and facilitating a majority of the process. People expected our ages to correspond with our experience level. My age spoke for – and continues to – speak for me as a learner, not as a mediator.

So, as a young mediator, what DO I know?

• I know how to be reflective on my thoughts, actions, feelings and how to convey these to others in an effective, impartial, genuine manner.

• I know that dealing with sensitive, complicated human emotions and interactions requires constant learning, adaptation and creativity, all of which I have a strong passion to continue pursuing.

• I believe that social intelligence learned through curiosity, and a strong desire to understand human behaviour, has assisted me in learning about people’s motivations and expectations. I have the compassion to commit time and sincerity to the cause and outcome of mediation.

• After time spent in the hallways and courtrooms of Simple Procedure, I have inadvertently learned more about the construction of decks (as well as showers, fences, window treatments, and doors for that matter!). I will learn about many content areas that cause dispute but mediation is about being heard, acknowledging needs and wants and arriving at a solution that maintains dignity.

• More importantly – I have developed an awareness of the need for sustainable conflict management skills. I work with and strive to use the mediation skills of open questioning, impartiality and listening both actively and passively. Parties are experts in their lives and what solutions they can accept, conflict is normal with problem solving as the key to conflict resolution.

• Lastly, I know I can’t possibly know everything about conflict and people management. Parties in mediation come from their own contextual backgrounds and they are the experts when it comes to their conflict and potential resolutions that would, or would not, suit them. Your curiosity and interest as a mediator show the parties that you are present, impartial and there not to enforce, but to guide them through the issues.

I urge young mediators (myself included) to continue to pursue opportunities for mediation experience and remind themselves of what we can bring to the table. I believe that young mediators have the skills and potential to contribute to the field and hope that employers and organizations can see this worth with offers of opportunities to provide the most coveted skill of all, experience.