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.

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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.

How judges see ADR – searching for clues

Judges Scrabble

Photo: Creative Commons – Blue Diamond Gallery under licence

The judicial mind has never been particularly accessible to me. Perhaps the requirements of objectivity and neutrality impose opinion-censoring constraints or perhaps the judiciary tends to have a preference for the law and the facts.

Whatever the reason, it is difficult to get a sense of ‘the view from the bench’ about the ADR space in which we research, teach and practise.

There are some judicial views that are well known.

We do know there is a continuing theme of judicial approval for the ‘cheap and quick’ features which are so emphasized by legislatures and courts’ administration and which were arguments promoted vociferously by early ADR advocates as a means of garnering support.

The 2009 speech to the profession by the Chief Justice of the Supreme Court of Victoria (as she then was) The Hon. Marilyn Warren included powerful advocacy for ADR. She dwelt on the significant reduction in court lists achieved via ADR and the ‘extraordinary’ saving in court time and resources – a more elegant version of the ‘cheap and quick’ cost benefit analysis.

This theme was repeated in 2012 in an important paper by The Hon. P A Bergin SC, Chief Judge in Equity of the Supreme Court of New South Wales (as she then was).

She endorsed mediation as a:

‘cost-effective and efficient mechanism for resolving disputes. Mediation is pursued in large part because of its potential to significantly reduce the practical and financial burden of a dispute’.

We do have some other evidence about how judges see ADR.

We know that judges also have concerns about ‘ripeness’ and warn against matters being referred to mediation before the dispute is ripe – which generally means, in their view, after the pleadings are closed and very substantial costs have already been incurred.

Warren reports:

‘Judicial experience tells us that in litigation it is a bit like picking fruit.  We need to pick the “mediation peach” when it is ready – too early it will be hard to penetrate the fruit; too late it is over-ripe.  The judicial art is to time the “sweet moment”.’

Bergin also enters the ripeness discussion, referring to her own 2007 research. This suggested that settlement was more likely to occur if mediation was attempted late in the proceedings, although she does acknowledge her sample was limited and that it did not take into account mediations that are resolved before proceedings are issued.

The endlessly interesting litigious adventures of Gina Rinehart and her family have also provided some obiter by Brereton J on the ripeness  issue noting:

‘So far as mediation is concerned, sooner or later – as with most commercial and family disputes – it may well be desirable that these proceedings be referred for mediation. But in my view, they are not ripe for that yet. Further disclosure will have to take place before the proceedings can be referred for mediation’.

We also have a few glimmers of insight into how judges see mandatory mediation.

In her same paper, Bergin reflects on legislative imperatives to mediate and acknowledges the value in attempts to remedy power imbalances but overall displays some scepticism about its susceptibility to exploitation.

‘The characteristics of certain disputes justify legislation deeming that good faith involves a requirement to mediate first in the context of those disputes. It is another thing entirely to conclude that good faith requires disputants to Mediate First in all cases.’

Warren added:

‘In my experience forcing parties to mandatory mediation early is arbitrary and often clumsy.’

So apart from some tasty crumbs dropped into a few keynote addresses and the odd piece of obiter, we don’t have a strong sense of how judges view ADR.

However the recently released AIJA study – ‘Court-Referred Alternative Dispute Resolution: Perceptions of Members of the Judiciary’ – hopefully marks the beginning of a new appetite to conduct research revealing the judges’ perspective on key elements of ADR.

The research, conducted by Dr. Nicky McWilliam of the University of Technology, Sydney, and Dr. Alexandra Grey of Macquarie University Law School, drew data from 104 judges from various jurisdictions about whether and how they considered and encouraged ADR in cases over which they presided. Defining referral as including suggesting ADR by ‘nudging’ and referring parties to ADR with or without their consent, the study also looked at:

  • the availability and use of ADR in assisting court proceedings;
  • whether or not there were prerequisites to ADR referral, in particular judges’ awareness of parties’ interests as well as knowledge of the process itself; and
  • judges’ personal assessments of ADR’s ability to
    • achieve unique results and
    • impact workload and judicial satisfaction positively.

The differences and similarities which emerged in judicial behaviour and perception were fascinating. Two particular issues, on which there appeared quite a degree of agreement, drew my attention:

  • most judges believe that referring matters to ADR processes requires them to have an understanding of:
    • ADR;
    • the nature of the case;
    • jurisdiction and the tier of court involved; and
    • parties’ needs and interests.

Further, the research revealed that most Supreme Court judges in the Equity and Common Law Civil Divisions are motivated to consider referral to ADR by their overriding purpose of “facilitating the just, quick and cheap resolution of the real issues in the proceedings”.

Interestingly, despite their view that an understanding of ADR was important, the study revealed that 75 per cent of responding judges had no ADR training despite most having been appointed since court-referred ADR had been legislated and during a period when ADR was well used. The authors note:

‘While it may be argued that judges appointed in an age where ADR is common do not need training that surely underrates the contribution training can make: not everything can be, or is best left to be, learnt by osmosis.’

They gently suggest that increased training may enhance decision-making regarding the many factors shown in the study to affect judicial perceptions of whether or not court-referred ADR is appropriate and to share experiences of how court-referred ADR is being considered and used by other judges.

  • Judges (particularly Supreme Court judges) were also concerned with timing – a version of the ‘ripeness’ issue – and expressed concern about referring cases to ADR “too early”, worrying that early referral may mean that one side’s case may yet be unclear and that even a position paper may not remedy this.

So now, thanks to the AIJA, we are beginning to collect more reliable data about the judges’ perspective of ADR, starting with their perceptions of court-referred ADR.

This is great news for those of us who wish to influence how judges see things and to build their peripheral vision about the promise of mediation. Thoughtful research about how judges see things now provides us with a place to begin.

 

Online Dispute Resolution (ODR) in the classroom – Lessons from Millennials

ODR has consistently been in the news since the early 90s. It has popped up again this week as the ICC reported that the videos of its significant ODR conference in 2017 are now available from its online library.

ODR has also been appearing consistently in undergraduate and postgraduate programs of Australian law schools.

At UNSW I have been able to take the opportunity to teach in an ‘Active Learning Space’ where students work in small groups at pods around the walls complete with individual large screens. Individual computers connect to each screen promoting group activity and enhancing my supervision opportunities. This is a great space in which to combine experiential learning with developing creative ways to teach and experiment with the new developments in the field.

As I have built my skills in using this space I have been congratulating myself on having found a way to keep students away from their mobile phones and other distracting devices and deeply engaged in transparent, collaborative, group learning.

For all my self-congratulations, in the end I have discovered it is the students who have given me the lesson. Let me explain.

For some years, part of the experiential program has included an introduction to ODR. Teaching ODR is not new and there are numerous online reports of how these curricula have developed. There are some great Australian examples to be proud of.

I embraced this field several years ago, with my undergraduate class, with a simple conflict resolution exercise. It primarily depended on email with students working from different locations. It was challenging and hard to manage.

I explored an international exercise with a former student now running a dispute resolution program in an American university. This was a disaster – whilst my students obtained marks as part of their class assessment, his students took the class as an ‘extracurricular’ exercise and, understandably, lacked commitment and persistence when international communications became challenging. I have abandoned this for the present but I know it is in the future to be revisited.

Over time, the exercise has gradually added more platforms and devices where we explored synchronous experiences such as Skype and asynchronous experiences such as email combined with Skype, private channel YouTube recordings and email. It was challenging and still required intervention offline when things went off-track.

Recently, through the generosity of Modron, I was given the opportunity to use my classroom as a Beta site for exploring Modron’s close to seamless online program for dispute resolution. Students were able to appoint a mediator, negotiate fees, execute a mediation agreement, conduct a full mediation session complete with confidential caucuses, execute a settlement agreement and pay the mediator using a single piece of software.

It wasn’t perfect but it was a considerable enhancement from what had been serving as an ODR experience previously. Students did get bumped off the system from time to time through technical teething difficulties but we were well aware we were engaged in a beta test and recognised that what we were doing was helping to iron out some of the software issues.

The exercise took several hours over the elapsed time of a day and I saw it as a useful experience which gave students a glimpse into the future world which would be of their making. I thought the students would have endorsed it wholeheartedly.

But there was a significant lesson waiting for me as I debriefed the exercise.

ODR debrief

This photo shows the early comments from the 6 mediation groups as they began to record their comments for our debrief session. By the time the debrief was completed we had filled 3 whiteboards!

Students characterised ODR as something that had a value in particular circumstances.

However, as the debrief continued, they shared much more significant insights namely:

  • ODR and technology have a place in the greater field of ADR as one tool and NOT as a complete replacement for other modes of resolution. ADR is an ‘and, and, and environment – not ‘either or’
  • ADR offers an important opportunity for meaningful in-person encounters that facilitate exploring and rebuilding a shared narrative. Some things can’t be achieved effectively online and it would ‘destroy the innate value of mediation if important in-person experiences were replaced by the drive for increased efficiency.’ Sometimes it is more important to be effective rather than efficient.
  • Except for unusual circumstances where parties require to be separated, in-person processes, with clients present, are ALWAYS preferable.

I owe the millennials an apology for my assumption they prefer life on devices, disconnected from human exchanges.

What a great lesson. The future is in good hands!

 

 

 

 

 

 

Experiencing the Potential of Mediation

The Australian ADR academic community is committed to ensuring that ADR is embedded across the syllabus of Australian Law Schools. This has been assisted by the agreement that ADR will be delivered within Civil Procedure as part of the Priestley 11.

This is an important achievement and owes some of its success to the efforts of our own ADR Research Network members who have championed the change – including, for example, Rachael Field and Kathy Douglas. As part of building the value of ADR teaching and learning, we continually seek opportunities for students to experience the potential of ADR processes, and to develop as practitioners whose skills are relevant nationally and internationally.

The ICC International Commercial Mediation Competition is one such opportunity. An annual event offered in Paris, the ICC now also offers an annual Asia-Pacific Commercial Mediation Competition, for teams who wish to compete with our Asia-Pacific neighbours.

I am just back from Paris where the 4 team-members from UNSW, were this year’s  competition winners.

ICC 2018 winners (1)

Team UNSW ICC Winners 2018. Photo Credit: ICC, with permission

Approached by Kluwer to blog about the competition and the opportunities it provides to students internationally, I was delighted share my views about its enduring value which stretches far beyond the competition itself.

My blogpost includes seven insights that provide a foundation for successfully coaching a team as I have had the privilege to do for the past 12 years. I also hope my insights might be a resource for those who are teaching negotiation, mediation and dispute resolution at a tertiary level.

See you in Paris 2019!