ADR in Australian Legal Education

Alperhan Babacan and Oz Susler

Dr. Alperhan Babacan holds Honours degrees in Law and Political Science, a PhD and a Graduate Certificate in Tertiary Teaching in Learning. Dr Babacan is admitted as a Barrister and Solicitor of the Supreme Court of Victoria and High Court of Australia and has extensive experience in legal practice and legal education. In academia, Dr Babacan has held various senior positions including as Chair of Criminology at Navitas, deputy head of School at Swinburne university and as Director of the Juris Doctor program at RMIT University. Dr Babacan has extensive experience in unit and course development, accreditation and review. He has published very widely in areas of law, criminology and teaching and learning in the higher education sector with a specific focus on the scholarship of learning in legal education.

Much has been written about the benefits of ADR in legal education across the globe and in Australia.  Various reports over the last forty years have criticised the emphasis placed on  traditional Australian legal education – on the teaching of legal rules and doctrine and the focus on analysis and synthesis of these rules, coupled with the adversarial approach to legal education in the absence of skills training. The common thread running through these reports was that law graduates lacked practical legal experience and that there was a need to better align the provision of skills training and education around legal rules and theory in the legal education curriculum, so that students were provided with both academic knowledge and skills necessary for legal practice. The reports encouraged law schools to incorporate specific legal skills into the law curriculum.

Since the 1980s, law schools in Australia have incrementally incorporated the teaching of skills that form the basis of legal practice, evident through the introduction of clinical legal education (CLE) and alternative dispute resolution (ADR). The teaching of ADR to law students provides them with alternative dispute resolution options within an ethical framework, counters the formation of an adversarial legal identity and its vocational nature greatly assists to effectively impart lawyering skills. The most common forms of ADR that are taught in Australian law schools is mediation and negotiation.

In order to effectively build legal skills and to counter the formation of an adversarial legal identity, ADR needs to be included as a stand-alone and significant element of the law curriculum. Yet in Australia, there has been resistance to including ADR in the law curriculum[1] and differing approaches adopted by law schools to incorporate ADR in the law curriculum: it can be included as a specific ADR unit, incorporated into a particular law unit or can form part of a CLE unit.  Generally, ADR is included as an ‘add on’ to law courses with a minimalist approach taken by many law schools to its meaningful inclusion in the curriculum. This approach reflects the convergence of two competing functions of Australian legal education: the provision of education to law students with knowledge of rules and legal theory on the one hand, and the instilling of legal practice and alternative skills on the other.  James advances that legal education in Australia does not consist of a ‘stable and consistent body of knowledge and practices’ (James, 2004) and is characterised by six dominant competing discourses.[2]

He describes these discourses as ‘modes of power-knowledge’ and identifies these as doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism.[3]  These six approaches to legal education reflect the competing manner in which skills training is offered in the law curriculum, particularly with respect to the minimalist approach taken by law schools to include ADR in the law curriculum. In recognition of the importance of the key role ADR can play in ‘learning by doing’ and developing lawyering skills, La Trobe University Law School is one of the few law schools in Australia where Dispute Resolution has been included as a compulsory first year law unit.  

There have been calls for the inclusion of ADR as a mandatory part of the law curriculum.[4] These calls are highly justified given that ADR has been a mandatory feature of litigation processes for a considerable period of time. In addition, the inclusion of ADR as a meaningful aspect of the law curriculum will greatly assist law schools to meet the requirements of the Threshold Learning Outcomes (TLOs), developed and adopted by the Council of Australian Law Deans (CALD) in 2009. The TLOs reflect what a Bachelor of Laws graduate is expected to ‘know, understand and be able to do’ as a result of learning and cover areas relating to: knowledge (TLO 1), ethics and professional responsibility (TLO2), thinking skills (TLO 3), research skills (TLO 4), communication and collaboration (TLO 5), and self-management (TLO 6).[5]  

Over the years, some law academics have been advocating for the meaningful inclusion of ADR into the legal education curriculum. Such an undertaking needs to be informed by best practice and evidence and necessitates the allocation of resources by law schools.  Serious consideration needs to be given by law schools to include ADR in the law curriculum in a comprehensive manner to ensure that students are effectively educated and trained for legal practice.  

References

  1. Collins, P. 2015. “Resistance to the teaching of ADR in the legal academy”,  Australasian Dispute Resolution Journal, 26(2): 64-74.
  2. James, N ‘Australian Legal Education and the Instability of Critique’ (2004) 28 Melbourne University Law Review 375-405.
  3. Ibid.
  4. See e.g. Duffy, J. and Field, R. 2014. “Why ADR must be a mandatory subject in the law degree : A cheat sheet for the willing and a primer for the non-believer”, Australasian Dispute Resolution Journal,25(1): 9-19.
  5. Threshold Learning Outcomes. 2010.  Learning and Teaching Academic Standards Project  Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, Australian Learning and Teaching Council.
    <https://cald.asn.au/wp-content/uploads/2017/11/KiftetalLTASStandardsStatement2010.pdf>.



Negotiation and Political Economy

I just wanted to share a recent post on the Law and Political Economy blog describing my new article, “A Labor Theory of Negotiation: From Integration to Value Creation.”  I’d be delighted for your feedback. Here’s an excerpt from that post that captures some of the argument:

Integration has remained a key organizing concept in negotiation theory, but its meaning has changed over time as the ways in which capitalism is organized and understood have changed. Today, the term integration is synonymous with economic value creation: a negotiation is integrative when it has the potential to leave all parties better off based on their own standards of value than whatever deal they were contemplating initially. In other words, integration means that—because of some added negotiation technique—there are more subjective units of value for negotiators to allocate than they otherwise could have accessed without deploying this technique: that is, the parties have expanded the pie before dividing it.

But integration did not initially rest on a neoclassical economic analytic. It originated with Mary Parker Follett, a late Progressive era thinker. Follett developed a socialist theory of negotiation in response to early twentieth century labor struggle (at least if we take socialism to mean the democratization of power and authority in economic life). Follett aimed to address a particular unifying question: how can labor and capital assume “collective responsibility for production”? Integration served as a hopeful answer: it meant “you can be for labour without being against capital; you can be for the institution.” From this perspective, a negotiation is integrative when—by participating in and also structuring a shared institutional context—all groups find that their desires are working to achieve the same overarching ends.

–Amy J. Cohen, UNSW & Ohio State University

Does Choice of Dispute Resolution Method Affect the Application of the Law?

An Open Question in Australia, Regarding the CISG

The ADRRN Blog encompasses the diverse methods of ADR, arbitration being one of them. This week my colleague Ben Hayward has kindly contributed an article in relation to a significant multilateral treaty utilised in international commercial arbitration known as the CISG. The article is a timely one as we celebrate the 40th year of the CISG. Thank you Ben.

Dr Ben Hayward is a Senior Lecturer in the Department of Business Law and Taxation at the Monash Business School, and completed his PhD at the Monash Law Faculty in 2015. He has previously worked at the Deakin Law School, and in private practice at Arnold Bloch Leibler Lawyers & Advisers. I thank Ben for his contribution to this week’s blog.

This image has an empty alt attribute; its file name is light-bulb-image-for-bens-article.docx.jpg
Photo: Nroose/ Public domain

Author: Ben Hayward

Substantive law doesn’t feature regularly on the Australian Dispute Resolution Research Network blog.  Nevertheless, in today’s post, I’d like to look at one instance where substantive law and choice of dispute resolution method may collide.  This concerns the United Nations Convention on Contracts for the International Sale of Goods: commonly referred to as the CISG.

The CISG is a substantive law treaty developed by the United Nations Commission on International Trade Law. It seeks to harmonise international sales law, around the globe.  Differences in national sales laws are thought to create barriers to trade, increasing merchants’ costs of doing business.  If merchants deal with the same sales law across national borders, their costs of doing business are reduced, and trade is encouraged.

What does this have to do with choosing between dispute resolution methods? There might be a difference in the way the CISG is applied: though at present, we don’t know.

Because the CISG is intended to apply the same way in all jurisdictions where it is adopted – currently 94 States – its interpretation requires sensitivity to that international context.  According to Art. 7(1) CISG:

In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

This provision sets out a rule of autonomous interpretation.  The CISG is to be given its own meaning, rather than being read in light of any particular State’s regular domestic law.  In Australia, therefore, we shouldn’t treat the CISG as if it replicates the rules in the Goods Act 1958 (Vic): even though this might be tempting, where this is the law we’re most familiar with.

Does the choice between dispute resolution methods impact the extent to which such internationally-minded interpretations are achieved?  This is an open question in Australia, and one that I hope to explore in my future research.

Litigation and international commercial arbitration are two different dispute resolution processes that both involve the application of substantive law.  Judges and arbitrators both interpret the CISG, where it applies in the cases they decide.

While the CISG came into force in Australia in 1989 – over 30 years ago – we still don’t have many Australian court cases concerning the Convention.  One of the most highly regarded international databases, the Albert H Kritzer CISG Database, records 28 Australian decisions.  In research I recently conducted for a forthcoming Melbourne University Law Review article, I identified an additional 5 cases via Lexis Advance: bringing the total to 33.  Even still, some of these are appeal decisions, some involve parties opting out of the CISG’s operation, and still others only mention the CISG in passing.  As I address in my forthcoming article and also in prior scholarship, Australian court cases directly applying the CISG tend to take a parochial approach to its interpretation.  It’s not uncommon for judges to equate the Convention’s operation to that of Australia’s ordinary Sale of Goods Acts: even though this is inconsistent with Art. 7(1) CISG’s interpretative rule.

What about the situation in arbitration?  Nearly 20 years ago, Jacobs, Cutbush-Sabine and Bambagiotti suggested that the CISG’s ‘modest treatment’ in Australian case law might be attributed to ‘the prevalence of arbitration, and particularly international arbitration, as a means of resolving dispute[s], although there is no empirical evidence of this’.

If CISG cases involving Australian businesses are being arbitrated rather than litigated, are those arbitral proceedings approaching the Convention in a more internationalist spirit?

At present, this remains an open question.  There is still no empirical evidence concerning the CISG’s use in arbitration involving Australian parties.  Since international arbitration is private/confidential, arbitral awards are not on the public record in the same way that court judgments are.  International evidence does suggest that arbitration is the primary forum for resolving international trade disputes, in a quantitative sense.  Since arbitrators may be chosen for their particular expertise, we might hypothesise that they would be more likely to take the CISG’s international context into account in their decision-making.  Nevertheless, one international study addressing the ‘quality’ of CISG analysis in arbitral awards (compared to court judgments) concluded that the relationship between the Convention and arbitration was ‘a picture of disinterest and neglect … rather than a fruitful marriage’. [1]

The CISG is intended to benefit merchants and their international trading activities.  In future research, I hope to assess the extent to which choices made by Australian businesses between dispute resolution methods impact the Convention’s achievement of this goal.

[1] Petra Butler, ‘CISG and International Arbitration – A Fruitful Marriage?’ (2014) XVII International Trade and Business Law Review 322, 323, 356.

Do consumers and businesses want the benefits of rule of law without the costs of rule of law?

Among its multiple purposes, this Blog offers a space to highlight emerging research in the discipline of dispute resolution. To this end, I have invited Vivi Tan who is undertaking her PhD on the integration of information and communication technologies into dispute resolution processes and its ramifications. Thank-you for sharing Vivi.

Vivi Tan is a PhD student at Melbourne Law School. She researches across fields of consumer protection law, contract law and dispute resolution system and design, including alternative and online dispute resolution.  Her thesis explores the integration of information and communication technologies into judicial and extrajudicial dispute resolution processes and their implications for dispute resolution regulation and practice as well as for consumer protection law. Vivi has also taught Obligations and Contracts in the JD course and is currently teaching in the subject of Artificial Intelligence, Ethics and the Law. She is also an active member of the Centre of Artificial Intelligence and Digital Ethics.

By Vivi Tan

Much of the progress in relation to the implementation of publicly enforced ODR systems is mainly evident in North America[1], the US[2], the UK[3], the EU[4] and China[5]. The types of ODR systems implemented vary according to their level of automation[6] and their positioning within the broader existing legal system or framework. Closer to home, we have seen ODR pilots being undertaken by tribunals such as NCAT and VCAT. A number of studies, commentaries and reports have also unanimously promoted the use of ODR.[7] This reflects the ongoing recognition that ODR can potentially augment and improve existing consumer ADR mechanisms as well as tribunal or judicial dispute resolution mechanisms.

Given the increasing realisation and implementation of ODR within formal legal systems, it is crucial that attention is given to developing and utilising a robust dispute system design (“DSD”) framework to ground the design, implementation and governance of such ODR systems. We must not only focus on the analysis of the efficiency and accessibility drivers behind ODR[8], we must use a theoretically grounded framework to rigorously analyse the suitability of an ODR system as an institution, including the substance and outcomes of the rule choices within the system, the nature and quality of procedural and substantive justice that has been designed, and whether the system can effectively deliver it.[9]

To this end, I drew upon insights from the rich discourse on DSD and developed an analytical DSD ODR framework. The use of such framework should be treated as a distinct activity that has the potential to improve the design and effectiveness of ODR systems and the overall landscape within which they sit.[10] The DSD framework can generate normative values, legal and governance considerations relating to how disputes should be resolved and through what structures. In the consumer context, the framework can be used to analyse critical questions such as whether a consumer ODR system can be designed to enhance the core objectives of consumer dispute resolution; whether its process architecture can be designed to be consistent with the principles and values that are fundamental in a publicly-sanctioned dispute resolution system and vital to the due administration of civil justice and; whether a consumer ODR system can be designed to produce appropriate substantive outcomes?

Put simply, dispute system designers can use the DSD framework to critically analyse considerations and choices relating to:

  1.  the system design (system institutionalisation)
  2. the process design (appropriateness of tools and processes to be used) and
  3. the governance design (procedural and substantive safeguards, systematic oversight and evaluation).

The design of this analytic framework is highly influenced by the contributions in the DSD field from Ury et al, Constantino and Merchant, Bingham, Ostrom, Smith and Martinez, and, from the consumer dispute resolution field, Steffek et al., Hodges et al. and Gill et al.[11] In particular, it attempts to reconcile the earlier DSD contributions, which tended to have a process design focus, with the later contributions which put more emphasis on system design and governance focus. Since a detailed analysis of the DSD framework will be beyond the scope of this article, I will instead provide a summary of what each aspect entails.

The system design aspect is primarily concerned with the institutionalisation of ODR as a dispute resolution mechanism within Australia’s consumer regulatory and policy context. Dispute system designers will need to consider the unique characteristics of consumer disputes and the kinds of goals and objectives behind consumer redress and consumer protection regulations. The designers can then consider whether there needs to be prioritisations or trade-offs amongst those goals and how they are to be reflected in the design of the system.[12] There must also be a critical analysis on the interaction between the ODR system and other dispute resolution processes in the existing consumer redress framework in order to guide the positioning and integration of ODR as either an alternative or an additional model which can augment existing mechanisms of consumer redress.

System design considerations are to be treated as primary considerations which will directly influence and shape the governance and process design considerations. The process design considerations in turn focus on process architecture behind the ODR system including the different process options (prevention, management and resolution), the different resolution approaches (rights vs interest-based, adjudication vs settlement, intermediation) as well as the different functional characteristics. For example, system designers will need to consider the extent of integration of technology such as automated- decision-making functionality or artificial intelligence and its implications on the overall system, process and governance aspects of the ODR system.[13]

Finally, it is important that system designers pay close attention to governance considerationswith a view to fully integrate them onto the process architecture and to minimise the risks that ODR presents to the preservation of civil justice values such as accessibility, legal validity, transparency and accountability.[14]  As part of a systematic oversight and governance strategy, the system must be evaluated using quantitative and qualitative criteria to measure its effectiveness in meeting its goals and its ability to provide access to procedural and substantive justice[15] for consumers.

I hope that this ODR DSD framework can be used to critically analyse the choices relating to how a consumer ODR system should be designed, how its processes should be structured and how the system and its processes can be governed and evaluated. I also hope that the framework will have broader application to other disputing contexts as well.

[1] ‘Civil Resolution Tribunal British Columbia’ <https://civilresolutionbc.ca/&gt;; ‘Condominium Authority of Ontario’ <https://www.condoauthorityontario.ca/tribunal/&gt;; ‘The Platform to Assist in the Resolution of Litigation Electronically (PARLe)’ <https://www.opc.gouv.qc.ca/en/opc/parle/description/&gt;.

[2] The National Center for Technology and Dispute Resolution, ‘Courts Using ODR’ <http://odr.info/courts-using-odr/&gt;; ‘Utah Courts Small Claims Online Dispute Resolution Pilot Project’ <https://www.utcourts.gov/smallclaimswvc/&gt;.

[3] ‘UK Online Money Claim’, GOV.UK <https://www.gov.uk/make-court-claim-for-money&gt;; ‘Online Court and Tribunal Services for Professional Users and the Public’ <https://www.gov.uk/guidance/online-court-and-tribunal-services-for-professional-users-and-the-public&gt;.

[4] ‘EU ODR Platform’ <https://ec.europa.eu/consumers/odr/main/?event=main.home2.show&gt;.

[5] China Justice Observer, ‘COVID-19 Turns All Chinese Courts into Internet Courts Overnight’ <https://www.chinajusticeobserver.com/a/covid-19-turns-all-chinese-courts-into-internet-courts-overnight&gt;; ‘The Litigation Platform of Hangzhou Internet Court’ <https://www.netcourt.gov.cn/portal/main/en/index.htm&gt;.

[6] Vivi Tan, ‘Online Dispute Resolution For Small Civil Claims in Victoria: A New Paradigm in Civil Justice’ (2019) 24 Deakin Law Review 101. In this article, I argued that ODR systems to be differentiated through their level of automation and function. Such classification based on the level of automation focuses on the functionality of the ODR system. At one end of the spectrum, ODR can include technology-based substitution or automation of offline interactions and activities.[1] And at the other end of the spectrum, there are more complex automated ODR systems which have the potential to offer problem diagnosis and resolution capabilities that are fully automated.

[7] VCAT ODR Pilot Team, ‘VCAT ODR Pilot – a Case Study’ (at the ODR The State of the Art International Symposium, 22 November 2018) <https://www.odrmelbourne.com.au/&gt;; ‘NCAT Online Dispute Resolution Pilot’ <http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2016%20Speeches/Wright_120816.pdf&gt;; Tan (n 6); Tania Sourdin, Bin Li and Tony Burke, ‘Just, Quick and Cheap: Civil Dispute Resolution and Technology’ (2019) 19 Macquarie Law Journal 17; Peter Cashman and Eliza Ginnivan, ‘Digital Justice: Online Resolution of Minor Civil Disputes and the Use of Digital Technology in Complex Litigation and Class Actions’ (2019) 19 Macquarie Law Journal 39; Monika Zalnieriute and Felicity Bell, ‘Technology and the Judicial Role’ in The Judge, the Judiciary and the Court: Individual, Collegial and Institutional Judicial Dynamics in Australia (Cambridge University Press, 2020); Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27 Australasian Dispute Resolution Journal 227; Productivity Commission, Access to Justice Arrangements, Inquiry Report No.72 (2014) 68; Victorian Government, Access to Justice Review Report and Recommendations (Volume 1) (August 2016) <https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/3314/8601/7221/Access_to_Justice_Review_-_Report_and_recommendations_Volume_1.PDF&gt;; Productivity Commission, Consumer Law Enforcement and Administration (2017).

[8] Tan (n 6); Legg (n 7); Lee A Bygrave, ‘Online Dispute Resolution – What It Means for Consumers’ (Baker & McKenzie Cyberspace Law and Policy Centre in conjunction with the Continuing legal Education Programme of University of NSW, 2002). Bygrave argued that the ‘quick-fix’ enthusiasm surrounding the online facilitation of ADR focused too heavily on the efficiency arguments or drivers such as the apparent speed, flexibility and affordability relative to traditional litigation in the courts as well as the ability to alleviate pressure on the court system. Legg has similarly argued that ‘achieving access to justice requires careful attention on the key [ODR] design considerations including convenience, expertise, impartiality, fairness and costs’.

[9] Lisa Bingham, ‘Designing Justice: Legal Institutions and Other Systems for Managing Conflict’ (2008) 24(1) Ohio State Journal on Dispute Resolution 1, 19, 25–26.

[10] Andrew Le Sueur, ‘Designing Redress: Who Does It, How and Why?’ (2012) 20 Asia Pacific Law Review 17.

[11] William Ury, Jeanne Brett and Stephen Goldberg, Getting Disputes Resolved: Designing Systems to Cut The Costs of Conflict (Jossey-Bass, 1988); Cathy A Constantino and Christina S Merchant, Designing Conflict Management Systems: Guide to Creating Productive and Healthy Organisations (Jossey-Bass, 1st ed, 1995); Bingham (n 9); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University press, 1990); Stephanie Smith and Janet Martinez, ‘An Analytic Framework for Dispute Systems Design’ (2009) 14 Harvard Negotiation Law Review 123; Felix Steffek and Hannes Unberath (eds), Regulating Dispute Resolution – ADR and Access to Justice at the Crossroads (Hart Publishing, 2013); Christopher Hodges, Iris Benöhr and Naomi Creutzfeldt, Consumer ADR in Europe: Civil Justice Systems (Hart Publishing, 2012); Chris Gill et al, ‘Designing Consumer Redress: A Dispute System Design (DSD) Model for Consumer-to-Business Disputes’ (2016) 36(3) Legal Studies 438.

[12] Michael J Trebilcock, ‘Rethinking Consumer Protection Policy’ in Charles E F Rickett and Thomas G W Telfer (eds), International Perspectives of Consumers’ Access to Justice (Cambridge University Press, Online Publication, 2009) 68.

[13] Tan (n 6); Robert J Condlin, ‘Online Dispute Resolution: Stinky, Repugnant, or Drab’ (2017) 18(3) Cardozo Journal of Conflict Resolution 717.

[14] Tan (n 6).

[15] Bingham (n 9); Mary Anne Noone and Lola Akin Ojelabi, ‘Alternative Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 108.

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The Need for a New Paradigm of Mediation Ethics

Rachael Field and Jonathan Crowe

Traditional views of mediation ethics focus on mediator neutrality or impartiality. Our recent book, Mediation Ethics: From Theory to Practice, challenges this paradigm. We argue instead for a new ethical framework centred on party self-determination. This approach is supported by a focus on informed consent and an ethos of professionalism. We propose a contextual ethical method as the most suitable way of resolving ethical dilemmas in mediation practice.

Why is a new paradigm of mediation ethics needed? Our case for a new ethical paradigm is not purely theoretical. Rather, it is grounded in the realities and demands of mediation practice. We contend that a traditional ethic of neutrality or impartiality is not only theoretically unsound, but also unrealistic, because it does not help mediators understand or negotiate common ethical dilemmas.

Consider, for example, the following case studies:

Tuan and Oanh: Tuan is a sixty-five year old man living in an assisted care facility. He suffers from early onset dementia. He is in dispute with his thirty-eight year old daughter, Oanh, about the sale of the family home. Tuan often appears confused and struggles to articulate his concerns. He sometimes goes off on unrelated tangents and seems to forget why he is there. Oanh, who is a lawyer, presents her case articulately and persuasively, including referring to the legal position.

Maha and Tony: Maha runs a small furniture upholstery business from his home. Tony placed a substantial order with him for upholstery for a boat. However, when the order was delivered, Tony refused to pay the agreed price, citing minor flaws in the work. Tony is represented by his lawyer, Phil, who refuses to budge from their initial lowball offer. Maha is a recent immigrant who speaks little English. He appears intimidated and overwhelmed by the process. The mediator is concerned he will accept the offer on the table simply to end the dispute.

Josh and Lauren: Josh and Lauren have recently separated after an eight-year marriage. They have two young children and are in dispute over parenting issues. Josh is very assertive and prone to long, aggrieved speeches. Lauren barely speaks. When she does speak, Josh often talks over her, even though the mediator reminds him not to do so. Lauren seems afraid to assert herself in Josh’s presence. The mediator suspects there is a history of domestic violence, although neither party has disclosed this.

These three scenarios all pose challenges that are far from uncommon in mediation practice. Each of them involves some kind of power imbalance between the parties. In the first case, Tuan’s ability to participate in the mediation is affected by his age and health, while Oanh is well equipped to articulate her interests by virtue of her legal training.

In the second case, there are cultural and linguistic issues to be addressed in ensuring that Maha can engage fully in the process, while Tony’s legal representation poses the challenge of avoiding overly positional negotiations.

In the third case, the dynamics of the mediation may need to be carefully managed to safeguard Lauren’s safety, as well as to enable her to appropriately articulate and assert her interests and those of her children.

There is a range of tools available to mediators in confronting these kinds of challenges. These might involve helping the parties obtain support or advice from medical practitioners, social workers, cultural support workers, interpreters or legal professionals. They might also involve techniques such as active listening, curious questioning, agenda setting, reframing and separate sessions.

However, exhorting the mediator to be neutral or impartial tells them little about when and how these tools and techniques should be deployed; indeed, it may be at odds with the demands of best practice. A mediator who actively manages the process to ensure that both parties have the chance to articulate their needs and interests cannot truly be described as neutral, in the sense of being detached and disinterested in the dispute and its outcome.

Nor does it help to insist that the mediator must be impartial, in the sense of being even-handed and objective. Rather, what is required for mediators to address these kinds of scenarios is active and targeted intervention in the process that takes account of the distinctive needs and positions of the parties. The ethical role of the mediator is to advance party self-determination by managing the process in a professionally appropriate way. This may or may not involve being neutral or impartial.

In arguing for a new paradigm of mediation ethics in which neutrality or impartiality is no longer central, we are not suggesting that mediators should act unfairly or in a biased fashion. Rather, our position is that party self-determination requires an ethic of responsiveness to the parties’ needs and interests that may involve both neutral and non-neutral (or impartial and non-impartial) actions and interventions.

As the analysis in our book further explains, if acting in a neutral or impartial fashion does not result in the support of party self-determination, then, ethically, the mediator should not be neutral or impartial. The requirement of neutrality or impartiality is untenable in such circumstances.

This does not mean that the value of neutral and impartial conduct on the part of the mediator is jettisoned altogether. However, in the new ethical paradigm we propose, neutrality and impartiality are simply approaches that may be harnessed as part of a mediator’s ethical decision-making about process management in support of party self-determination. Relational self-determination becomes the overarching goal.

Contemporary Conflict Mapping

Contemporary Conflict Mapping

Claire Holland* and Rikki Mawad**

* Claire Holland is the Director of the James Cook University (JCU) Conflict Management and Resolution Program. She is a senior lecturer and researcher in Alternative Dispute Resolution (ADR) and conflict resolution processes.

** Rikki Mawad is a Conflict Management and Communications Consultant, and a lecturer in the JCU Conflict Management and Resolution Program.

This blog post discusses new perspectives on conflict analysis and conflict mapping. The authors invite commentary around a more contemporary conflict mapping matrix that integrates modern perspectives and practices.

Why Map Conflict?

 At its most basic level, Gary Furlong, author of The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict, states managing conflict effectively is a two-step process:

  1. Assessing conflict
  2. Deciding what action (or inaction) to take to address it.[1]

Assessing conflict, also known as conflict analysis or “conflict mapping,” is a process of reviewing a conflict context through a third party/neutral lens by following a logical, structured review process. The mapping acts as a guide for the intervening party to design a process that meets the parties’ substantive, procedural and psychological needs.[2] The overarching aim of conflict mapping is to increase comprehension and clarity of the situation and facilitate appropriate and well-considered conflict management or conflict resolution strategies.

When there is lack of clarity or poor understanding of the conflict and time pressures to make decisions, people and systems tend to react to conflict rather than respond. This has the effect of escalating conflict rather than moving towards resolution or positive change. Due to time pressures, lack of resources, and lack of access to support systems, for many individuals and organisations there is limited scope for reflection on the underlying causes of the conflict. Adequate consideration of underlying conflict causes can inform choices on how to respond to a person or situation, and the likely impact of those choices on future interactions or occurrences. Mapping a conflict prior to an intervention is a key step in setting the intervention up to succeed. Conflict mapping and making considered choices may end up saving individuals and organisations time, money and energy by identifying the best forum and appropriate practitioner or intervention team at the outset.

Existing Approaches and Perspectives on Conflict Mapping

Models of conflict mapping, such as Shay Bright (PhD) The Conflict Mapping Chart, list specific elements for consideration. Bright, drawing on the Wehr Conflict Mapping Guide[3] and Sandole’s Three Pillar Approach,[4] leads the reviewer through the six key pillars of a conflict framework, which includes identifying and analysing:

  1. Conflict parties;
  2. Conflict history;
  3. Conflict context;
  4. Party orientation;
  5. Conflict dynamics; and,
  6. Conflict intervention.[5]

Under each heading, it is possible to include additional models and maps for analysing, diagnosing and intervening in conflict. Furlong highlights eight models for analysing conflict: 1) The circle of conflict; 2) The triangle of satisfaction; 3) The boundary model; 4) The interests/rights/power model; 5) The dynamics of trust; 6) The dimensions model; 7) The social styles model; and 8) Moving beyond conflict.[6] These conflict analysis models are often also considered in light of overarching conflict theories such as negotiation theory, mediation and practice frameworks, human needs, conflict transformation, theories of change, and peacebuilding.

The mapping process involves considering theory, research, and understanding of conflict to provide greater clarity about the conflict situation, understanding of the needs, interests, goals, and resources of different parties to the conflict, and awareness of options for interventions to move towards resolution or engage in effective ongoing conflict management. As Daniel Druckman states in his seminal text Doing Research: Methods of Inquiry for Conflict Analysis, there are aspects of both art and science in the field of conflict analysis and resolution.[7] While maps, charts and tools can be scientifically followed, the ‘art’ of interpreting and applying information is a learned skill. A contemporary conflict matrix that expands Bright’s model with a seventh and eighth pillar aims to increase the factors for consideration in conflict analysis, allowing greater opportunity to identify and design appropriate intervention strategies that accommodate the realities of the parties and structures in which the conflict exists.

Building on Bright’s Framework: Pillars 7 and 8

Pillar 7: Multidisciplinary Knowledge

The authors suggest that there is merit to adding a seventh pillar in Shay Bright’s Chart, Multidisciplinary knowledge, which is to bring in elements of neuroscience, emotional intelligence and trauma-informed approaches to managing conflict at an intrapersonal level through to a transnational level. What is currently lacking is a clear and structured conflict analysis chart that includes consideration of party’s psychologies, worldview formation, self-analysis, and additional models analysing cultural considerations and emotional states – particularly for enduring conflict that involves ongoing uncertainty for parties. Many established conflict theories use a rational mind approach that focuses on individualistic and neoliberal response to conflict. The majority of well-known and cited authors in the conflict management and resolution field are US based researchers who, while having worked globally, often bring an Anglo Christian, male perspective to conflict mapping and interventions. An unintended effect from potential unconscious bias, is that key elements of a conflict that relate to elements such as gender, race, religion, and sexuality may not be properly considered in both the mapping or intervention. Clear articulation in mapping tools for greater cultural and emotional intelligence in conflict analysis and intervention design are important for a more holistic analysis. If outcomes such as true party self-determination are important, then consideration of resolution options that are co-designed with the parties to that conflict, culturally appropriate, and representative of the party’s actual needs, interests and priorities, will arguably be more sustainable.

Bringing in the work of practitioners, researchers and emerging thinkers such as Daniel Kahneman[8], Daniel Goleman,[9] Van der Kolk[10] and Brene Brown[11] for example (and to name only a few), gives the conflict practitioner a new lens and additional pillar to mapping the conflict, designing and delivering the best fit intervention. One example of including multidisciplinary knowledge in the conflict mapping process, would be to consider Dr Brene Brown’s grounded theory social research into courage, vulnerability, shame and empathy as a lens to help both people in conflict and third parties assisting with conflict to grow the options for resolution. Brene’s recent work in Dare to Lead for example, is a key asset to conflict managers.[12] Brown talks about harnessing the power of empathy to understand ourselves and others as a way to change perspective and open space for difficult conversations. Brown’s work around rumbling, leaning into hard conversations, and BRAVING are incredibly complimentary for conflict management practitioners and in helping anyone understanding, navigate and more productively work with conflict.

As a way to add to hallmark features of conflict management processes, the BRAVING inventory modernises the conflict theory principles of non-judgment and choice theory and provides a framework for growing connection through empathy and understanding which generates options for transformation and resolution of conflict at various levels and across contexts.

Pillar 8: The Practitioner and the Process

The authors also suggest an eighth pillar to the Shay Bright Conflict Map, The Practitioner and the Process, that looks at the macro and micro skills required of a practitioner for an effective intervention. Along the lines of fitting the ‘forum to the fuss’, it is important to consider fitting the ‘practitioner to the process’. Depending on the outcome of the conflict analysis, there may be a good reason to require certain practitioner characteristics, knowledge or skills. In order to best serve the parties and support a conflict management or resolution process that considers and adapts to the parties needs, interests and priorities, there may be evidence-based and/or practice informed reasons for seeking practitioners who have certain characteristics (for example age, gender, race, or religion) or knowledge and skills (for example, contextual understanding, cultural competency, emotional intelligence, trauma informed practice, working with vulnerability and shame).

Without a high level of emotional and cultural intelligence, the conflict management practitioner designing and delivering an intervention could hinder options for resolution or transformation of the conflict. Practitioner micro skills may also play an important role in establishing psychological safety and meeting party’s needs.

Developing self-awareness and skills building are essential parts of education and professional development for conflict resolution practitioners. Self-awareness is an element of emotional intelligence, as defined by Daniel Goleman. Emotional Intelligence can be referred to as EI or EQ. For the purposes of this blog we will use the term EQ. At its most basic definition, EQ is the ability to understand and manage your own emotions, and recognise and manage the emotions of other people around you. Daniel Goleman first wrote about EQ, and introduced an EQ framework of four generic domains: self-awareness; self-management; social awareness; and relationship management.[13] The five dimensions of emotional intelligence Goleman suggests are self-awareness; self-regulation; motivation; empathy and social skills. The importance of EQ and using EQ in leadership and communication has been increasingly researched and discussed by academics and practitioners over the past 30 years. It is recognised that EQ can be trained,[14] higher EQ positively impacts academic grades and performance[15] and influences conflict styles.[16]

Applying an EQ lens across the conflict map can increase both party, self, issue and other awareness as well as ensure that an intervening party is positioned to de-escalate and effectively ‘climate control’ the process. The less we understand ourselves and our own emotions, the less likely we are to recognise and understand other people’s and the entire conflict situation. This leads to challenges with empathy, general social skills and can also create and escalate conflict.

A lack of EQ in parties and practitioners can lead to conflict escalation rather than regulation and resolution. Without self-regulation, we cannot control or redirect our thoughts, feelings and actions and therefore are trapped in a cycle of reacting rather than responding. The inability to self-regulate then  inhibits our levels of motivation, resilience and achievement and our relationships with others, and could also thwart the sustainability of a negotiated outcome. Once a practitioner understands themselves, their emotions, and their motivations they can work on developing skills to assist others in self-regulation, social skills, communication and emotional management. A growth mindset, recognising that talents and skills can be developed overtime and through hard work, is an important frame of mind.[17] Applying a level of self-assessment on behalf of the conflict practitioner to the conflict at hand, recognition of what the situation may call for based on the conflict map, and recognition of one’s ability and skillset, can help determine who might be the best person to intervene in a certain situation.

In conclusion, there are new opportunities to apply the work of emerging scholars and practitioners from different disciplines into our understanding of conflict. It is important that practitioners remain up to date with new understandings, emerging research, and ideas that can inform the field of conflict management and resolution.

 

 

References

[1] Furlong, G. (2005). The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict. Canada: John Wiley & Sons, p 2.

[2] Described by the triangle of satisfaction in Moore, C. (2003). The Mediation Process, Third Edition, San Francisco: Jossey-Bass.

[3]Willmot, W.W., and J.L. Hocker. 2001. Interpersonal Conflict. New York: McGrawHill.

[4] Sandole, D. J. (1998). A comprehensive mapping of conflict and conflict resolution: A three pillar approach. Peace and Conflict Studies5(2), 4.

[5] Bright, S. (2001). The Conflict Mapping Chart. Retrieved September 1, 2020. Available at https://www.in-mediation.eu/wp-content/uploads/file/ConflictMapping.pdf

[6] Furlong, G. (2005). The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict. Canada: John Wiley & Sons.

[7] Druckman, D. (2005). Doing research: Methods of inquiry for conflict analysis. Sage Publications, p 3.

[8] Kahneman, D. (2011). Thinking, fast and slow. Macmillan.

[9] Daniel Goleman is a Psychologist, Author and visiting scholar at Harvard University see further http://www.danielgoleman.info/

[10] Van der Kolk, B. A. (2015). The body keeps the score: Brain, mind, and body in the healing of trauma. Penguin Books.

[11] Dr Brene Brown is an Author and Researcher at the University of Houston, see further https://brenebrown.com/

[12] Brown, B. (2018). Dare to Lead: Brave Work. Tough Conversations. Whole Hearts. Penguin, Random House (UK)

[13] Goleman, D. (2011). The brain and emotional intelligence.

[14] Mattingly, V., & Kraiger, K. (2019). Can emotional intelligence be trained? A meta-analytical investigation. Human Resource Management Review29(2), 140-155.

[15] MacCann, C., Jiang, Y., Brown, L. E., Double, K. S., Bucich, M., & Minbashian, A. (2020). Emotional intelligence predicts academic performance: A meta-analysis. Psychological Bulletin146(2), 150.

[16] Gunkel, M., Schlaegel, C., & Taras, V. (2016). Cultural values, emotional intelligence, and conflict handling styles: A global study. Journal of World Business51(4), 568-585; Chen, H. X., Xu, X., & Phillips, P. (2019). Emotional intelligence and conflict management styles. International Journal of Organizational Analysis; de Villiers, J., Marnewick, A., & Marnewick, C. (2019, June). Using emotional intelligence during conflict resolution in projects. In 2019 IEEE Technology & Engineering Management Conference (TEMSCON) (pp. 1-6). IEEE; Rahim, M. A., Psenicka, C., Polychroniou, P., & Zhao, J. H. (2002). A model of emotional intelligence and conflict management strategies: A study in seven countries. International Journal of Organizational Analysis10(4).

[17] Dweck, C. S. (2008). Mindset: The new psychology of success. Random House Digital, Inc.; Dweck, C. (2016). What having a “growth mindset” actually means. Harvard Business Review13, 213-226.

A case for coaching: Measuring effectiveness

A case for coaching: Measuring effectiveness*

Claire Holland** and Tina Hoyer***

*The views expressed in this blog are those of the authors and do not necessarily reflect those of the Australian Taxation Officer or James Cook University.

** Claire Holland is the Director of the JCU Conflict Management and Resolution Program. She is a senior lecturer and researcher in Alternative Dispute Resolution (ADR) and conflict resolution processes.

*** Tina Hoyer is an adjunct lecturer with the JCU Conflict Management and Resolution Program. Tina lead the ATO In-House mediation service and is currently a serving Squadron Leader for the Royal Australian Air Force as a Dispute Resolution Manager.

This blog is a summary of the presentation by Claire and Tina at the 8th ADR Research Network Roundtable, La Trobe Law School, La Trobe University Melbourne Australia, 2019.

The Australian Taxation Office (ATO) is proposing to trial an innovative ‘case coaching’ model designed specifically for ATO auditors and objections officers (“ATO officers”) to build and strengthen their dispute resolution skills, tax technical capability and corporate knowledge.[1]  Designing, implementing and choosing to incorporate a coaching model as part of everyday business is a significant investment for any organisation. The investment is not just in terms of direct financial outlays, but also indirect costs, such as staff time, staff engagement (buy-in vs disengagement), and staff experience. Therefore, it is vital the effectiveness (or not!) of a coaching model is measured to determine its cost, benefits and expected outcomes in order to:

  • justify the time and cost to the organisation of implementing a coaching program; and,
  • identify weaknesses and strengths in the individual coaches and the coaching program overall so improvements and adjustments can be made.

Coaching programs are often only evaluated at a superficial level, if at all.[2] That is, evaluation is conducted by way of a questionnaire to gauge the reactions of the participants of the program. For coaching to gain sustainable credibility, it has been recommended evaluation should occur not only to gauge the reaction of the participants but also to measure:

  • Learnings: that is, the knowledge, skills and attitudes that result from the program and which were specified as learning or developmental objectives;
  • Behaviour: aspects of improved job performance that are related to the learning objectives; and,
  • Results: relating the results of the program to organisational objectives and other criteria of effectiveness.[3]

Thorough evaluation of coaching programs is also important to build the credibility of coaching as a profession and to contribute to the research on approaches to formal evaluation of coaching programs. The research will assist with consideration of the adoption of the case coaching model as part of the ATO’s business as usual processes, as well as for the potential uptake of similar internal case coaching models by other large organisations (government and private sector).

How will the case coaching model be evaluated?

The evaluation of the case coaching model will be both on a formative (that is, during the planning and delivery phase of the coaching program) and a summative (at the end of the coaching program) basis.[4]  Based on program logic design concepts[5] and the theory of change[6], the anticipated outcomes of the case coaching for the key stakeholders will be the main focus of the evaluation. The key stakeholders and their anticipated outcomes have been identified following qualitative data collection which captured the views and opinions of ATO senior leaders and potential participants of the case coaching project and the most popular themes extracted.

There were five key stakeholders of the case coaching program identified, being the individual ATO officers coached, the coaches (ie. their managers or technical leaders), taxpayers, the ATO and the overall community. The overarching aim of the case coaching is to ensure ATO officers are well-prepared for their interactions with taxpayers and are approaching the interaction with an appropriate mindset with a view to preventing or resolving the tax dispute.[7] If this is achieved, there will be beneficial short, medium and long term outcomes not only for the individual ATO officers but also the coaches (ie. their managers or technical leaders), taxpayers, the ATO and the overall community (being the five key stakeholders of the case coaching program).

The anticipated outcomes of the case coaching model

(i)                  ATO case officers being coached

In the short term (immediate), the main anticipated outcome of the case coaching is to ensure the ATO officer is approaching the case with an appropriate mindset. That is, ideally the ATO officer should be open to listening to the taxpayer and willing to change their initial assessment/approach to the case, consider other options if appropriate, with a view to earlier resolution of the tax dispute. If these outcomes can be achieved, it will lead to the ATO officer improving their critical soft skills, a sense of satisfaction that they have made the “right decision,” (i.e. it is within the law, ATO policy, and/or has a fair and reasonable outcome), improved technical and corporate knowledge in the medium term (6 months).

Long term (6 months plus) there will be improvement in workplace culture, greater job satisfaction, improved staff experience.

 (ii)                The coach

In the short term, the coach will gain an awareness of any skills gap as well as confidence the “right decision” is being made and the ATO officer is prepared for their interaction with the taxpayer. The coaching is likely to add time however this should improve over time as staff become more experienced as a result of the coaching. Therefore in the medium term, case cycle times should be reduced. The coach should also observe an improved staff experience which is likely to mean less unplanned leave, improved staff performance, increased efficiencies.  All this in the long term will led to an improved workplace culture and overall job satisfaction.

(iii)              Taxpayers

In the short term, taxpayers may feel they have been heard and respected. Through feedback, reports and word of mouth taxpayer statements, other benefits include: feeling the process was transparent and managed appropriately; the outcome was fair (even if the taxpayer is unhappy with the result); improved awareness of taxation obligations; and greater certainty in taxation maters. This will lead to greater taxpayer confidence in the taxation system.

(iv)              The ATO

In the short term the coaching is aimed at ensuring the ‘right decision’ is being made (i.e. it is within the law, ATO policy, and/or has a fair and reasonable outcome). A medium term aim is to resolve disputes at an earlier stage of the within the ATO dispute system, thereby saving costs. Effective coaching may ultimately lead to less complaints and litigation. A benefit for the ATO may also be improvements in the sharing of corporate knowledge; improved staff culture; improved reputation of the ATO; and long term, a more efficient taxation system.

(v)                Community

The long-term goal for the community will be a general feeling of consistency and fairness in the taxation system and community confidence in the ATO.

The case coaching model is anticipated to complement the ATO’s sophisticated Dispute System Design (DSD) and the ATO’s internal use of ADR methods, including in-house facilitation (mediation), the dispute assist program, and independent review. For further information on the model and ATO DSD see the upcoming publication Holland, C. & Hoyer, T. (in press). A case for coaching: Influencing cultural change at the ATO. Dispute Resolution Review.

[1] For further information in relation to the case coaching model will be available in upcoming publication Holland, C. & Hoyer, T. (in press). A case for coaching: Influencing cultural change at the ATO. Dispute Resolution Review.

[2] Gray, D. E. (2004). Principles and processes in coaching evaluation. International Journal of Mentoring and Coaching, 2(2), 1-7.

[3] Gray, D. E. (2004). Principles and processes in coaching evaluation. International Journal of Mentoring and Coaching, 2(2), 1-7.

[4] Grover, S., & Furnham, A. (2016). Coaching as a developmental intervention in organisations: A systematic review of its effectiveness and the mechanisms underlying it. PloS one, 11(7), p 6.

[5] A logic model is a graphic depiction (road map) that presents the shared relationships among the resources, activities, outputs, outcomes, and impact for your program. It depicts the relationship between your program’s activities and its intended effects.

[6] A theory of change shows how you expect outcomes to occur over the short, medium and longer term as a result of your work. It can be represented in a visual diagram, as a narrative, or both.

[7] A main focus of the ATO’s reinvention program

Call for participants – Mediation Research Project

Participants required for mediation research project

Mediator Neutrality, what does it mean to you? Assistance is sought from practising mediators conducting civil law mediations in NSW to participate in academic research. The research project is concerned with mediators’ understanding of neutrality in the context of self represented parties. The study explores mediators’ understanding of neutrality and fairness and how they inform the practice of mediation. The research will also investigate the challenges and opportunities of mediation when parties in mediation do not have legal representation. This study is part of a doctoral research project by Svetlana German (bio below). If you are a mediator in NSW and are willing to participate in a one hour interview Svetlana would love to hear from you!  For further information or to indicate your interest in participating please go to www.mediationresearchproject.com or email Svetlana directly (her details are also on the website)

Bio: Svetlana is currently undertaking her PhD at UTS in the area of mediation and this study is part of her doctoral research. Svetlana is a barrister and an academic. She was called to the bar in 2013 and practiced at 10th Floor Selborne Wentworth Chambers. Svetlana teaches at the University of Notre Dame Australia and holds the Quentin Bryce Law Doctoral Scholarship at UTS. She has a Masters of Law from Columbia University, and science and law degrees from the University of New South Wales. She has practised as a commercial lawyer in Sydney (Allens Linklaters) and is an accredited mediator in New York and with the National Accreditation Mediation System (NMAS) and is registered with the Commonwealth Attorney Generals Department as a Family Dispute Resolution Practitioner (FDRP).

ADR: Bringing Islam into the conversation

This Blog presents an opportunity to showcase the work of our students as the next generation of researchers and dispute resolvers. I am delighted to post another example here. Over to you, Zaynab..

islam and ADR blog

written by Zaynab Gul

I am Zaynab – an Australian, a Muslim, or better put: a true blue Muzzie. Over the last two and a half months, I studied ADR and the very useful role that it plays in resolving conflicts between parties outside the confines of the court system. The more I learnt about the purpose of ADR within the Australian framework, the more I wondered why a process that is commended for its flexibility fails to accommodate for cultural and religious practices.

Zaynab

Zaynab Gul

Given just how diverse Australia’s population is, it’s not hard to see why our state and federal legislations sideline culture and religion to create a uniform set of rules and regulations. But in an area like ADR, where the processes are no doubt more flexible and informal, it would make sense for Australian’s to be able to draw on their personal values and beliefs and use them to inform the approach taken to dispute resolution.

Our country’s ADR system didn’t come out of the blue. Instead, the western world’s interest in ADR first sparked in the 1960’s, and has developed over the recent decades to form ADR as we know it today. Though the 60’s may have given birth to ideas around ADR in the west, the practice itself existed amongst cultures and religions for many years prior.

Taking Islamic law as an example, over 1,400 years ago, the Qur’an not only established ADR as a tenet of civil justice, but also codified it with clear rules and regulations. There are also traces of ADR present in the customary law of our country’s first people. So, if ADR has been tried and tested for many centuries amongst various religions and cultures, why is the Australian ADR space so reluctant to recognise and learn from them?

Reshaping the ADR space?

As an Australian Muslim, I expect to be supported in being able to practice my religion, so long as it is in line laws of the land. Ancient Islamic law features processes like Sulh (which can be likened to western mediation) and Tahkim (the equivalent of arbitration). Though the nitty gritty of the rules may differ between the west and Islam, the basics are pretty much the same; both encourage the efficient and peaceful resolution of disputes.

A peaceful co-existence of religious based ADR and a western legal framework is not impossible. It’s been done for decades in the UK in response to the country’s growing number of Muslim migrants. There is a growing number of Muslims in Australia, given that Islam is the second most prevalent religion in our country.

Whether it be through the establishment of state sanctioned Islamic tribunals or the backing of religious mediators, there are many ways in which Islamic ADR can be recognised in Australia. As a country, we encourage diversity and are happy to embrace it in terms of food and entertainment, but when it comes to law, there’s clear hesitation.

It’s a long shot to call for a drastic change overnight. The first step for us all is to foster comfortable conversations about change and acceptance in an area like ADR where the law has the benefit of flexibility.

 

 

It’s time we started talking about neurodiversity in dispute resolution

This Blog provides a platform to showcase new and emerging research in the field of dispute resolution. As such, I have invited Danielle and David Hutchinson who have an interest in neurodiversity, including its implications for mediation, to write a piece. Thank-you for sharing, Danielle and David.

three skulls 5e271a18e3ddc8eba8bdb4f4_neurodiverse-talent

By Danielle Hutchinson[1] and David Hutchinson[2]

Research into neurodiversity is on the rise. As the concept makes its way into the zeitgeist, it’s time for us to start thinking about the many implications for mediation.

What is neurodiversity?

Neurodiversity is an overarching term that refers to the variation in people’s behaviours and traits arising out of neurodevelopmental difference. While there is still debate about what differences fall under this umbrella, it typically includes autism spectrum disorder[3][4] (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyscalculia, dyspraxia and Tourette’s syndrome[5].

Within the current understanding, neurodiversity differs from mental Illness in that it is not about a person’s state of mental health or wellness. Instead it is a healthy state that is simply neurologically distinct from that of ‘neurotypicals’. One of the common features of neurodiversity is that the difference between strengths and weaknesses are often magnified. For example, there may be an unusually large disparity between a person’s verbal reasoning and their working memory. While the variation is unique to each neurodiverse person, a familiar trope is that of the absent-minded professor. Diagram 1 shows common strengths and weaknesses for each condition[6].

neurodiversity model

Diagram 1

Why is this important to mediators?

Research into neurodiversity is still in its early days. However, it is starting to become apparent that that this disparity between finding some things extremely easy and other tasks almost impossible, can lead to confusion, frustration and misunderstanding in a range of contexts. This can be particularly so where the neurodiverse person has chosen not to share their diagnosis or is unaware of their neurodiversity.

Unfortunately, recent research into neurodiversity has shown that it is not uncommon for “employers, work coaches and authority figures to conclude that the individual is ‘not trying’, when undertaking particular tasks. Inconsistent performance is mistaken for a bad attitude or poor motivation, which leads to discrimination and perceptions of unfairness on behalf of the individual.”[7]

Given the potential for conflict to arise in such situations, and current estimates that as much as 30% of the population may have some form of be neurodiversity[8], it seems inevitable that as mediators we will need to consider the different ways that neurodiverse people make meaning of their interactions with others. More importantly, if we are to ensure that our practices are truly inclusive, we must start to consider the ways in which our practices may be premised on neurotypical assumptions.

For example, the following table outlines a few differences common to ASD and/or ADHD that may be misinterpreted as the neurodiverse person being deliberately difficult or as demonstrating traits of a high conflict personality.[9]

Difference Traits that may impact on traditional mediation techniques
Alexithymia
  • Difficulty experiencing, identifying and expressing emotions
  • Challenges with introspection, observing own mental and emotional processes, and/or identifying and responding to emotions in others
  • May struggle to communicate emotions to others
Black and white thinking
  • Polarised thinking patterns e.g. an argument or lack of agreement means the end of a friendship
  • Difficulty picking up on nuances and non-verbal gestures
  • Literal interpretation of conversations or agreements
Cognitive rigidity
  • Strong preference for rules and routines
  • Difficulty changing mental states or thinking about things in a different way
Executive functioning
  • Difficulty with tasks such as planning, problem solving, organisation, time management and working memory
Impulsiveness and inhibition
  • Acting without thinking things through or accounting for potential consequences
  • Difficulty allowing others to speak uninterrupted
  • Emotional self-regulation
Rejection sensitivity
  • Extreme sensitivity to being criticised or rejected, whether real or perceived
Sensory sensitivity
  • Can manifest as hyper or hypo-sensitivity
  • Bright lights, noise or smells can be distracting or distressing and inhibit ability to engage in activities

When we consider the typical facilitative mediation, it becomes apparent that we may have unintentionally set some neurodiverse people up to fail.

Where to next?

Each of these neurodevelopmental conditions manifests uniquely in each person, hence the catchphrase, “When you have met one neurodiverse person, you have met one neurodiverse person”. As mediators, it is not our role to diagnose or make assumptions. However, it is important that our practices are inclusive and can enable the full participation of all people involved. In providing an inclusive environment we can start harnessing the many strengths of neurodiverse participants to find mutually beneficial and sustainable outcomes for all.

[1]Danielle Hutchinson is a lawyer, mediator, author and co-founder of Resolution Resources. Danielle has lived experience of neurodiversity and, in consultation with experts in the field, is investigating neuroinclusive practices in mediation.
[2] David Hutchinson is an autistic researcher and writer in the field of autism
[3] Difference as opposed to disorder is now being used by some researchers in the field e.g. Fletcher-Watson & Happe (2019) and preferred by many in the ASD community
[4] The DSM-5 now includes Asperger’s Syndrome within ASD as ASD1. Even so, many people identify strongly with being an ‘Aspie’ and the term remains in use for those who wish to identify as such.
[5] First coined in 1998 by Australian sociologist, Judy Singer in research into Autism. While there is no formal definition, the term has been adopted broadly and is widely accepted as encompassing the neurodevelopmental disorders described above; see also ‘What is Neurodiversity?’ National Symposium on Neurodiversity at Syracuse University (webpage, 2011) https://neurodiversitysymposium.wordpress.com/what-is-neurodiversity/
[6] Neurodiversity, Dyslexia Scotland (webpage)  https://www.dyslexiascotland.org.uk/sites/default/files/library/Neurodiversity%20Model_SDMar16.pdf
[7] Ashley Weinberg & Nancy Doyle, Psychology at work: Improving wellbeing and productivity in the workplace (British Psychological Society, 2017) 44.
[8] ‘Neurodiversity and other conditions’, ADHD Aware (web page, 2018)  https://adhdaware.org.uk/what-is-adhd/neurodiversity-and-other-conditions/
[9] See the work of Bill Eddy and Grant Lester on high conflict personalities and the vexatious litigant.