Living in the Age of Rhetoric – Challenges for mediators

The term “rhetoric” has changed its meaning over time. According to the Oxford English Dictionary it has its origins in Greek antiquity and was defined by Aristotle to mean: the faculty of observing in any given case the available means of persuasion” and since the mastery of art was necessary for victory in a case at law or for passage of proposals in the assembly or for fame as a speaker in civil ceremonies, he called it “a combination of the science of logic and of the ethical branch of politics.” Rhetoric typically provided heuristics for understanding, discovering, and developing arguments for particular situations, such as Aritstotle’s three persuasive audience appeals: logos, pathos and ethos. the five canons of rhetoric of phases of developing a persuasive speech were first codified in classical Rome: invention, arrangement, style, memory and delivery.

In modern usage, the word “rhetoric” has come to mean language designed to have a persuasive or impressive effect, but which is often regarded as lacking in sincerity or meaningful content. The Oxford English Dictionary uses the example: “All we hear from the opposition is meaningless rhetoric.” It is in this latter context that the the word is used in this post.

The problem of rhetoric in dispute resolution discourse was encapsulated in a recent story which appeared in the morning media of 19th July 2019, when it was reported that residents have been prevented from occupying a fourth Sydney apartment building because of safety concerns with respect to toxic substances on the land including heavy metals, hydrocarbons, asbestos and contaminated ground water. the problem, according to a City of Sydney spokesperson, is that the developer had not complied with the conditions of the development consent requiring it to remediate the site before commencing construction work. The Council understands that this is “…a most frustrating situation for all terrace and apartment owners.”

The developer’s website marketing material claims that the property comprises “…amongst the most desirable residences ever to grace (the suburb’s) leafy village streets” and that (the Company) enjoys “…a strong reputation in all facets of property development” established over the past 15 years describing this as its “flagship” project. To consumers who continue to live in rented premises, have their goods and furniture in storage and have extended their mortgages while they await completion of their new homes, this is no doubt all rhetoric which serves only to rub salt into the wound and inflame hostilities.

To exacerbate matters it appears that, in answer to complaints about the long delays in completing the project (now fifteen months overdue for completion), the developer had misrepresented that the cause of the delay was due to “unforeseen planning issues” without disclosing the truth that it had failed to remediate the contaminated soil prior to commencing consruction as the Council required.

This scenario exemplifies what appears to be a burgeoning problem in the exchange between those who have been aggrieved and those who aggrieve them. It is the abandonment of good will and accountability in favour of baseless, meaningless weasel words euphemistically described in contract litigation as “puffery.” It is a feature of this manner of communication that, whilst superficially it seems to offer everything, in substance it promises nothing and anything that it does promise can never be measured so that no obligation is actually created.

In the building development story recited above, the developer issued a statement saying that it was “…working with Council to ensure that buyers could begin enjoying their new homes as soon as possible…” Farm from providing any measure of comfort to consumers, this language serves only to generate added hostility and further inflame the conflict. It is, as Don Watson said in his book Death Sentence: The Decay of Public Language (Random House 2003) “the superb indifference that the powerful have for the weak.”

In mediation discourse the language of rhetoric is resistant, non-commital and dangerous and puts the mediator on notice of an absence of good will or a poor approach to integrity based negotiations or both of these factors.

The language of rhetoric is sometimes expressed in terms of vague generalities from disputants who make offers that are contingent on external events over which they have no control. “Perhaps we could do something like that but it would depend on what our insurers say…” or “We acknowledge that there has been a breakdown in the system and we will be investigating it fully.” The message that is conveyed in all these situations is that there is nothing specific which can be done and the respondents to the claim just need a little more time to think how to escape the dilemma without being held accountable.

In my PhD research there was a hint of complaint, mainly from lawyers, who spoke of receiving instructions to formalise agreements made at mediation which were incapable of enforcement because they lacked precision or were contingent and featured vague promises that were unclear as to their content or as to the manner and timing of their implementation. In some cases the mediator had simply noted the general nature of the “agreement” without sufficiently reality checking the strength of the arrangements with the parties to ensure that they were satisfied that they had an enforceable agreement. In one case a research respondent reported that a mediator had just torn off the printed strip containing the electronic whiteboard notes and provided a copy to each of the parties as evidence of the agreement. Of course, this is not to suggest that mediation agreements must always be enforceable. That, however, is a decision which should be made positively and advisedly.

It is unclear at the time of writing this post whether there hs been research into this area of disputant behaviour. However, it seems that, at least anecdotally, there is an increasing prevalence of the use of rhetoric in response to legitimate consumer complaints and that DR practitioners and theorists could benefit by considering this as a topic for further research.

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The Mystery of Civil Collaborative Practice

By Timothy Nugent

This post reflects on collaborative practice, the dispute resolution phenomenon on which my PhD research is focused. Because this research is ongoing, the post concludes with an invitation to participate directed towards to lawyers, and to members of other professions involved in collaborative processes such as psychologists, child specialists, financial advisors, mediators and coaches. To participate in the study, by participating in an online survey, and/or in an electronic interview, please consider this invitation and if you have any questions don’t hesitate to contact me at timothy.nugent@usq.edu.au.

So what is collaborative practice?’ It’s a question I’ve answered many times in the course of my PhD, a study of the potential for collaborative practice beyond its main use in divorce. However, no matter how much information I gather on the topic I’m never entirely sure how I should answer.

In one answer, I explain that collaborative practice is an emerging alternative form of legal practice, initiated by Stu Webb in the United States in the early 1990’s (Webb & Ousky 2011). The defining procedural characteristic of the process is that lawyers represent clients in a settlement role only. If the matter proceeds to litigation, both lawyers are disqualified from further representation in that matter. The parties may litigate but bear the cost of retaining new (adversarial) counsel. I would proceed to discuss the ‘participation agreement,’ a contract or series of contracts that sets out the limits of collaborative representation, and the other duties that collaborative practitioners usually agree to therein: to disclose all relevant materials, to negotiate in good faith, including not taking advantage of errors of fact or law made by the other side, and to resolve the matter by interest-based negotiations rather than positional stances or threats of litigation (Tesler 2017).

In another answer, collaborative practice is an alternative legal culture. A community of lawyers who have become frustrated with the conventional adversarial approach to legal services and have directed that energy into creating a new way of doing things. This impetus for change does not appear to be particular to any one jurisdiction or the approach used in collaborative practice. Collaborative practitioners are active in family law across the United States, Canada, the United Kingdom, Ireland, Australia, and Hong Kong (Tesler 2017). Collaborative practice has even bridged the divide between common-law and civil legal traditions with increasing use in civil law jurisdictions such as Italy and the Netherlands. In November 2018, a group of International Academy of Collaborative Professionals trainers (IACP) conducted the first collaborative training in Japan (IACP 2018). Collaborative practitioners have been active in Australia for around twelve years (Scott & Collins 2017). Collaborative practice associations are active in most Australian States and Territories and have achieved growing recognition for the process among dispute resolution options. The NSW law society website, for example, promotes collaborative practice as ‘the process of choice when neither litigation nor mediation quite fit the bill.’

The answer I rarely give is the personal one, that for me why collaborative is not more widely adopted is a mystery. One which my research hopes to contribute to solving. Collaborative practice was intended as a method of general application, but has struggled to achieve traction in areas of law other than divorce. Between 2006 and 2010, the IACP collected data from its members in relation to their collaborative matters. Of 933 matters reported, 97 percent were divorces, with the remainder comprising mostly other types of family matters (Crescent Research 2010). Only three non-family civil matters were reported: an employment matter, a sexual harassment/retaliation matter, and a probate matter (Crescent Research 2010) Perspectives on this trend have been advanced in the literature, eg. (Hoffman 2003)(Difonzo 2009, p. 600), but the matter would benefit from further empirical attention (Lande 2011, p. 21). My PhD research looks at whether there are opportunities for collaborative practice in other areas of law, and if so, what are the barriers which limit its use or utility outside of family law.

In investigating this issue, it was decided that a particularly broad research frame was necessary. I have been conducting research not only with members of the collaborative practice community, but also lawyers within the traditional adversarial paradigm, and practitioners from other disciplines, such as mediation, or financial planning that have participated in the collaborative process. The common thread among this population is a willingness to reflect on the nature of legal practice, and how to deliver a service for clients that minimises disputes and does not damage relationships going forward but has potential for collaborative practice in areas where it has rarely been used. If you are interested you can contribute to my research by contributing your thoughts, either by completing an anonymous survey, https://surveys.usq.edu.au/index.php/656114?lang=en and/or in an interview. If you would like to know more, please email me at timothy.nugent@usq.edu.au. (Research Ethics Approval No. H18REA076).

Associazione Italiana Professionists Collaborativi (website) http://www.praticacollaborativa.it Crescent Research, ‘International Academy of Collaborative Professionals Practice Survey’ (2010) http://www.collaborativepractice.com

DiFonzo, Herbie J, ‘A Vision for Collaborative Practice: Final Report of the Hofstra Collaborative Law Conference (2009) 38 Hofstra Law Review 569

Hoffman, David, ‘Collaborative Practice in the World of Business’ (2003) 6 The Collaborative Review 1

International Academy of Collaborative Professionals, ’First Collaborative Practice Training in Japan’ (website) http://www.collaborativepractice.com/event/first-collaborative-practice-training-japan

Lande, John, ‘An Empirical Analysis of Collaborative Law’ (2011) 49 Family Court Review 257 Law Society NSW (website), ‘Collaborative Practice’, https://www.lawsociety.com.au/advocacy-and-resources/publications-and-resources/my-practice-area/collaborative-law

Scott, Marilyn and Collins, Pauline, ‘The Challenges for Collaborative Lawyers in Providing CP Processes’ (2017) 31 Australian Journal of Family Law 28

Tesler, Pauline, Collaborative Law: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association, 3rd ed, 2017) Vereniging van collaborative professionals (website) http://www.vvcp.nl

Webb, Stu and Ousky, Ron, ‘History and Development of Collaborative Practice’ (2011) 49 Family Court Review 213–220

Settlement and sex: queering dispute resolution

Is settlement like sex? Should it be?

How can queer theory be applied to the field of dispute resolution?

What if disputing parties were viewed as bearers of desires rather than bearers of interests (or rights)?

Do positivity, desire, consent and feeling good distinguish alternative dispute resolution from formal legal dispute resolution processes?

Would the dispute resolution field benefit from a reminder of the playful rebellious roots upon which it was founded?

Does a focus on relational interaction encourage us to abandon our attachment to the constraints of identity and self-interest?

DDG - headshotThese are just some of the contemplations invited by Daniel Del Gobbo’s article “Queer Dispute Resolution” (2019) 20 Cardozo Journal of Conflict Resolution 283. Daniel is from the University of Toronto Faculty of Law, and part of the Australasian Dispute Resolution Research Network, reflecting the international reach of our community.

The goal of the article is to ask difficult questions and expand the theoretical terrain of the dispute resolution field. This post provides an imperfect snapshot of some interesting points – I recommend that you read the full article to fully appreciate its arguments.

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Koshy Koshy Strange things are happening these days Creative Commons Licence

 

Daniel reminds the reader of the deliberate re-framing of disputes by the dispute resolution field from the “overly formal” rights based claims to the “more natural” interest based conversation. He suggests that a slight adjustment from a focus upon interests, to desires, opens up further potential. Queer theory explores how sexuality is articulated across identity and desire, celebrating its messy, restless, non-uniform and changeable nature. Through the embracing and celebration of these characteristics of desire, a critical gaze can be better placed upon the normative expectations that can inhibit creativity.

The problem with an over-reliance upon “a crude version of liberal economic theory” in the dispute resolution field is that the maximisation of (economic) self-interest assumes that a person’s interests are “rational, predictable, and unchanging through the settlement process.” By contrast, desire is understood by queer theorists to be “irrational, unpredictable, and at least potentially changing.” Interests are, in reality,  often irrational, unpredictable and changing throughout the settlement process.

The practice of settlement, not unlike the practice of sexuality, is constituted  by the mutual interplay of the parties’ wants and desires in reaching a negotiated agreement over new and potentially pleasurable terms that may or may not come to pass. … The subject’s interests may be prone to change in the negotiation on account of the other parties’ stimulating behaviour, intervening events in the parties’ lives, and the parties’ affective responses to the bargaining environment, which may or may not have a rational basis. All that matters is that the settlement process feels good – socially, culturally, economically, legally – or that it feels better in the moment, at least, than an adjudicative process which would distribute pleasure and danger in a less satisfying way. [pp 303-304]

The mutuality of bargaining, like sex, requires that there be an ethical approach – a commitment to a process and outcomes that “feel good” for all participants. Consensual processes require recognition and support by each participant of the autonomy and self-determination of the other. This is the challenge of mutuality – it requires a commitment to act morally towards the other. Consent provides a framework to manage that problem. The basic principles of the legal doctrine of consent can be described generally as follows:

…the parties must voluntarily agree on any process that is chosen and any conclusion that is reached for the arrangement to be legal. The parties should be provided with any relevant information necessary to make informed decisions for themselves. And crucially, there must be an approximate balance of power between the parties at all times because otherwise it may be impossible to maintain the integrity of the process, prevent bad faith and unconscionable agreements, and keep the parties safe. [p 317]

However, the legal notion of consent can be critiqued (and is by critical, feminist and queer scholars) for its failure to account for societal systems of power including male dominance, capitalism, and homonormativity. Power itself is changeable, and cannot be inferred from status or identity alone – it is not possible to account for dependence and vulnerability in an orderly, fixed sense. Power can be sourced from rules, norms, and the parties’ characteristics and relationship with one another. (See discussion in our recent post about The Power of Parties in Mediation: What is the Mediator’s Role?).

Through a relational lens, the limits of “free agency” can be accounted for, without deciding for participants what a “good” outcome looks like. Rather than pretending that the complex inequalities and dynamics of power can be “balanced” between negotiating parties, “relational autonomy” recognises the influence that people have upon one another within their relationship, the growth of self within relationships, and the way care and dependence are mutually constructed. The practical challenges abound, and (unanswerable) questions are raised, including:

What relations, and legal regulation of those relations,  will enable everyone to participate most freely and equally in the creative refashioning of consensual life?

What kinds of changes are required in society before we can place more trust in consent as a legal and ethical marker for human flourishing?

How might our capacity for relational autonomy be enhanced by restructuring the foreground and background rules under which consent is given?

How can we refurbish the law of consent to better promote our capabilities to codetermine the practices of sex and settlement?

Queer theory “seldom lends itself to easy solutions,” but applying its lens to settlement provides an opportunity to shake up the underlying assumptions, fears, limitations and normative expectations that influence the practice of settlement. What if there were new ways of doing dispute resolution that recognise properly the changeability, subjectivity and inherent unreasonableness of humans, and the unevenness we inevitably bring to our relationships and settlement processes?

Daniel Del Gobbo concludes:

…negotiation is not a struggle that should constrain our equality seeking, but a process that can expand our imaginative possibility and transformative reach if we conduct yourselves responsibly. In my view, that is what “queer dispute resolution” looks like. [p 327]

Theoretical examinations don’t provide neat or easy solutions, but they invite us to reflect on our field and to invent better ways of doing our work. Perhaps dispute resolution theory could benefit from a bit of “queering” to ruffle our feathers and challenge us to think in different ways. Like sex, settlement provides a wonderful opportunity for a mutually pleasurable experience, is sometimes mutually agreeable but less than fantastic, but also has risk of abuse or unfair advantage being taken by one party against the other.

NMC Submissions to the ADRJ due 26 July 2019

Get your papers into the ADRJ for a special issue on the National Mediation Conference by this Friday!!! This is a unique opportunity to contribute to research and scholarship arising from the conference. See the call for papers below.

The Australasian Dispute Resolution Journal (ADRJ)

The Australasian Dispute Resolution Journal (ISSN: 1441-7847) is a key resource for staying up to date in the area of Alternative Dispute Resolution (ADR). The journal features articles covering the broad spectrum of ADR methods, including mediation, arbitration, independent expert appraisal, negotiation and early neutral evaluation.

Covering a diversity of topical matters relating to ADR within and outside the court system, the Australasian Dispute Resolution Journal includes articles from a broad range of ADR practitioners, teachers and academics.

Call for Submissions (Special Issue: NMC 2019)

Innovation and research continues to expand our knowledge in the broad field of dispute resolution. The next Part of the Australasian Dispute Resolution Journal is a special issue focusing on the National Mediation Conference held last April in Canberra. Submissions for unpublished articles on the topic (up to 5,000 words) and book reviews (up to 1,000 words) are welcome. All articles are peer reviewed.

Contributions should be emailed to the Thomson Reuters Editor at lta.adrj@thomsonreuters.com. by 26 July 2019.

Ruth Charlton

General Editor, Australasian Dispute Resolution Journal (ADRJ)

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

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

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

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

Amy Cohen

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

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

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

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

The Power of Parties in Mediation: What is the Mediator’s Role?

This guest post has been contributed by network member Robert Angyal SC. Robert is a barrister, mediator and arbitrator. Mediation habeen a substantial part of his practice since 1991. His publications include Chapter 13 in M. Legg (ed.) Resolving Civil Disputes (LexisNexis Butterworths 2016), “Advocacy at Mediation:  An Oxymoron or an Essential Skill for the Modern Lawyer?” This post is partly drawn from an earlier post on LinkedIn.

Popeye

https://www.maxpixel.net/Muscles-Show-Popeye-Sailor-Man-Spinach-37118

  1. Outline of post

This post presents some new ideas about the mediator’s role with respect to the power of parties in mediation, which it is hoped merit further research.  It provides a taxonomy of types of power possessed by parties in mediation and reflects on the relevance of these powers. It questions whether a mediator can in fact know where power lies in any particular mediation and points out that, even if this can be known, power is not static, but dynamic; it can move around over time. Some commentators contend that, where there is a significant imbalance in party power, mediators have a duty to level up the parties’ power; others assert that they have a duty not to do this. The post explains that this debate is entirely academic because, in practice, power-levelling is either impossible or prohibited. Nevertheless, and reassuringly, the post concludes by explaining that mediators can perform a very constructive role with respect to the parties’ power.  If they do, parties’ self-determination will be augmented.

  1. A taxonomy of party powers in mediation

Power of parties in mediation comes in a variety of types. The following taxonomy almost certainly is not exhaustive.

Financial power: Big Bank v. Freddie Farmer: huge financial resources v. not very much at all.

Forensic power: Senior Counsel, junior barrister, law firm partner and employed solicitor v. suburban practitioner or no lawyer at all.

Substantive power: Party A’s case seems strong to overwhelming on the facts and the law. Party B’s case seems weak to hopeless.

Negotiating power: Party A is a sophisticated and experienced negotiator. Party B is an first-time participant in mediation. Party A has invested significant resources in preparing for the mediation. Party B has skimped on preparation in the hope of an early settlement. Party A is realistic about its prospects. Party B is wildly optimistic about its prospects. Party A does all the talking. Party B is interrupted/cut short.

Moral power: Party A’s position is in the public interest/promotes sobriety/will slow global warming. Party B’s position cheats widows and orphans/promotes tax evasion/threatens old-growth forests.

Gender power: Women may not ask for as much as men. Women “are more concerned with care issues whilst men are preoccupied by notions of justice” (Rachel Field, Mediation and the Art of Power (Im)Balancing, 12 QUTLJ 264 at 267 n. 21 referring to Carol Gilligan, “In a Different Voice: Psychological Theory and Women’s Development Harvard Univ. Press, Cambridge 1982).

For a very different taxonomy, with eight categories of power, see Omer Shapiro, ”Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics (2009) 24 Ohio State Journal on Dispute Resolution 3.

  1. The relevance of power in mediation

Power is relative. If two Big Banks face off against each other, there probably will not be much disparity in power. If both parties to the dispute are female, there is no disparity in gender power.

Further, because there are different sources of power, a party’s power from one source may be either augmented or diminished by power from another source.  For example, Big Bank may possess enormous financial power but, in a particular mediation, it may have little substantive power (i.e., its substantive case is weak) and, because it is poorly represented, it may lack forensic power.  How in this situation one quantifies the overall power of Big Bank is beyond the scope of this post.

Power in mediation can be seen as the ability to get what you want from the other party. In the context of mediation, this probably means getting the other party to sign the settlement agreement that you want.

A party always has the right to end a mediation without agreeing to anything. Given a large disparity of power between the parties, however, this may not be a realistic alternative for the weaker party.  If it is not realistic, the greater power of the other party remains relevant.

  1. Can the mediator know where power lies in mediation?

All theories requiring a mediator to take action with respect to unequal power of the parties are based on an implicit but unarticulated assumption:  That, in a particular mediation, the mediator can identify where power lies.

In practice, several factors constrain the mediator’s ability to do this.The factors include:

  • The mediator has limited knowledge of the facts, knowing only what the parties have chosen to tell her/him.
  • The mediator has limited knowledge of the relevant law.
  • The mediator has limited knowledge of the parties’ interests and needs, again knowing only what the parties have chosen to tell him/her.
  • Financial power: Big Bank has to make a profit. Throwing good money after bad makes no more sense for Big Bank than for Freddie Farmer. Having financial power thus does not necessarily mean that it will be exercised.
  • Forensic power: There are good silks and not-so-good silks. There are some brilliant suburban practitioners.  And, in any event, the forum is a mediation, not an adjudication.
  • Substantive power: How can the mediator, often with very limited information, understand the respective strengths of the parties’ positions?
  • Negotiating power: This is partly within the mediator’s control.
  • Moral power: Opinions on moral issues differ.
  • As noted in the previous section, power from one source may be increased or decreased by the party’s power (or lack of it) from another source.
  1. Power is not static; it can and does move around during the mediation

Even if a mediator is able to identify where power lies in a particular mediation, it may not remain there. Consider a farm debt mediation where the farm has been mortgaged to Big Bank and the mortgage payments are substantially in arrears.

As long as the value of the farm exceeds the amount borrowed plus accrued interest and costs, Big Bank can be uncompromising and will probably negotiate only about how much time the farmer has to pay the mortgage debt – failing which it will padlock the farm gate and put a “Mortgagee Sale” sign on it.  There seems no doubt where power lies.

If, however, it transpires that the value of the farm is less than the amount secured over it, the power relationship is quite different.  The bank’s legal powers are the same, but exercising them will result in the bank’s recovering only part of what it is owed. The farmer’s personal covenant on the mortgage probably is worthless.  A large amount may thus have to be written off. Heads may roll in the Rural Lending Department of Big Bank.

In the second scenario, the bank may become interested in all sorts of settlements that:

  • Require the willing participation of the farmer;
  • Require the bank (at least for now) to forego recovery;
  • Require the bank to lend more money; and
  • In effect, require a joint venture between Big Bank and the farmer.

Possibilities include:

  • Subdivision of the farm for sale as hobby farms;
  • Novel crops with high value like blueberries; and
  • Investing in irrigation, pasture improvement, new barns, new dams and new fencing to improve the productivity and value of the farm.

In the second scenario, paradoxically, the farmer’s weakness has become a source of power.

Consider a simpler example: the mediation of a personal injury claim. The plaintiff, supported by cogent and thorough medical reports, claims to have an incapacitating and permanent back injury sustained at work.  Liability is not in dispute.  The plaintiff is in an obviously powerful position.

Then the defendant insurer produces a recent surveillance video, showing the plaintiff lifting weights at a gym. Power instantly shifts to the defendant.

The plaintiff then establishes that the video shows not him, but his twin brother, a triathlete. Power instantly shifts back to the plaintiff. 

  1. Competing theories about power in mediation

There are two principal theoretical approaches to mediators’ duties in working with power imbalances.

Theory One: The mediator has a duty to balance the parties’ power

  • One party to a mediation may be significantly more powerful than the other.
  • A significant power difference between the parties may lead to one party dominating the process.
  • A significant power difference between the parties may lead to a settlement that largely favours the more powerful party’s needs and interests.
  • This is unfair. At the extreme, the result is coerced.
  • One of the functions of mediation is to redress unequal bargaining power.
  • The mediator therefore has a duty to the process and/or to the parties to try to balance the parties’ power in the mediation.

See, for example:  Ali Khaled Qtaishat, Power Imbalances in Mediation (2018) 14 Asian Social Science No. 2 75 at 79; Rachel Field, supra, at 269-270; James South, Heather Allen and Sean McTernan, Balancing Power in Mediation (CEDR – The Second European Mediation Congress) at 3, 4, 6, 9, 14; Amrita Narine “Power Imbalances in Mediation Student Note, Harvard Negotiation Law Review 2017 at 9ff.

Theory Two:  The mediator has a duty not to balance the parties’ power

  • Mediation theory and most mediation agreements require the mediator to be neutral and impartial towards the parties.
  • Neutrality” means that the mediator is disinterested in the outcome of the dispute.
  • Impartial” means that the mediator treats the parties in an equal and even-handed way.
  • Disparities in bargaining power are a fact of life inside and outside the mediation.
  • If the mediator were to take steps to lessen the power of the more powerful party or to increase the power of the less powerful party (or both), in order to affect the outcome of the mediation, she or he would not be acting in a neutral or an impartial way.
  • The mediator therefore has a duty to the process and/or to the parties not to try to balance the parties’ power in the mediation.

See, for example, Rick Voyles, “Managing an Imbalance of Power (2004); and Susan Douglas, “Neutrality, Self-Determination, Fairness and Differing Models of Mediation” (2012) 19 James Cook University Law Review 19.

  1.  In practice, power-balancing is either impossible or prohibited

The debate between the two theories of power-balancing is fascinating but, it transpires, entirely academic.  This is because a practical and a legal problem prevent putting power-balancing into practice.

The practical problem:

If a mediator disclosed in their mediation agreement or at the preliminary conference that they intended to engage in attempts at levelling up the power of the parties, it is almost certain that they would not be hired as the mediator.  Why would a party spend lots of money preparing for the mediation, on conferences with solicitors and counsel and on preparation of position papers, and then commit to spend yet more money on a mediator whose stated aim was to dissipate the very advantages that had arisen from their careful preparation?

This practical problem is fatal to any theory of power-balancing because – no matter how compelling the theory in favour of power-balancing may be – a mediator who honestly discloses their intended role almost certainly will never have an opportunity to perform it.

The legal problem:

The legal problem is even worse.  Assume that the mediator did not disclose in the mediation agreement that they intended to take such steps as in their discretion seemed appropriate to increase the power of the less powerful party, at the expense of the more powerful party, and instead held herself out as neutral and impartial. Attempting power-balancing in this situation not only would breach the mediation agreement but would also render entry into it misleading and deceptive conduct in trade and commerce, in breach of s. 18 of the Australian Consumer Law, which applies to mediators. [note 1]

Even if the mediator said nothing on the issue in the mediation agreement, that silence itself probably would constitute misleading and deceptive conduct, for the reason that the role of mediator gives rise to an expectation in the parties and their lawyers that the mediator will be neutral and impartial, whereas the mediator always intended to act contrary to the expectation but failed to disclose their intention. [note 2]

Thus a mediator who discloses that they intend to engage in power-balancing is very unlikely to be hired as a mediator.  On the other hand, a mediator who intends to engage in power-balancing but does not disclose their intention to the parties will probably breach the mediation agreement and almost certainly will breach the Australian Consumer Law.  It follows that, unless mediators are prepared to engage in prohibited conduct that may render them liable in damages, they will not in practice have an opportunity to balance parties’ power.

note 1: The definition of “trade and commerce” in s. 2(1) of the Law states that it includes “any business or professional activity (whether or not carried on for profit”. The definition of “services” in s. 2 of the Law includes “benefits … under… a contract for or in relation to the performance of work (including work of a professional nature).” The confidential and “without prejudice” regime imposed by most mediation agreements cannot exclude the Lawbecause s. 96 provides that the Law has effect despite any stipulation in any contract or agreement to the contrary.”

note 2: See, e.g., Demagogue Pty Ltd v Ramensky(1992) 39 FCR 31 at 32; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd(2010) 241 CLR 357; [2010] HCA 31 at [16]-[33]; and Porges v Adcock Private Equity Pty Ltd[2019] NSWCA 79 at [109]-[110].

  1. Does a mediator have any role with respect to power imbalances?
  • For the reasons in section 7, the mediator probably has no realistic alternative to taking the parties as she or he finds them.
  • That does not mean the mediator has to leave the parties in the position in which she or he finds them. Although mediators cannot engage in power-balancing, they nevertheless can play a very useful role with respect to parties’ powers.
  • Reality testing by the mediator in private of the parties’ positions may significantly affect their approach. Likewise, reality testing about the durability or enforceability of proposed settlement agreements may affect their approach.
  • Is there a contradiction between taking the parties as you find them and attempting to shift the parties’ positions towards each other so they can settle their dispute?
  • There is no contradiction: It is a hallmark of legitimate reality testing that mediator does not upset existing power imbalances.
  • It is the hallmark of illegitimate reality testing that it does upset existing power imbalances by (for example) providing a party with legal knowledge that it has not invested in unearthing (“There’s a recent High Court decision on limitations that is right on point and which means that the other party is out of time.”). This is illegitimate behaviour because it is not neutral or impartial. Acting other than in a neutral and impartial way creates a risk for the mediator of losing credibility/losing influence/being fired.
  • Instead, the mediator should accept existing power imbalances and assist each party – given the imbalances – to analyse the strengths and weaknesses of its position and of the other side’s position. This analysis can also help a party determine whether offers received or contemplated are better or worse than the party’s BATNA.
  • Women tend to value relationships more than men and thus, for fear of damaging a relationship, a woman may be inclined to ask the other party for less (or offer to pay them more) than a man who has the same BATNA (Babcock & Laschever, “Women Don’t Ask: Negotiation and the Gender Divide”, Princeton University Press 2003). Where appropriate, the mediator can help a party to understand that this is what she is doing. The mediator thereby helps her understand the nature and effect of gender power.  By doing this, the mediator enables the female party to decide consciously whether she values the relationship more than the best possible outcome of the dispute, rather than unconsciously making this decision.
  • The mediator can assist a party to make realistic concessions or to capitalise on a strength itpossesses. This is not balancing power; it is recognising realities about power.
  • Viewed this way, the mediator’s tasks with respect to party power can be seen as (i) helping each party to understand what power they have and how and when they should use that power and (ii) helping them understand what power the other party has and how and when it might use it.
  • These tasks not only are consistent with being neutral and impartial but also they help the parties to participate effectively in the mediation and thus augment their self-determination.
  1. A comforting conclusion

Reality testing is a core activity for a mediator. The mediator can employ it to help parties themselves to identify issues around power and to exercise their own decision-making about how they deal with it.  This enhances party self-determination.

Viewing the mediator’s role with respect to party power this way means that the patient, careful, earnest mediation of disputes remains a useful and important task. Practising mediators like me will be comforted by this recognition of the value of what they do for a living.

What does it mean to be a family law arbitrator? Be romantic!

SageBy Jill Howieson

As Martin Bartfeld said in his article earlier this month, “it is possible to attain a just outcome without doing things as they have been done before.” [1]

In arbitration, the way things have generally been done is by private judging rather than ‘arbitrating’.

As arbitration is making comeback; especially in Family Law, perhaps it is time to consider the question – what does it mean to be a family law arbitrator?

A brief history of arbitration

Arbitration is our earliest form of ADR.  According to Derek Roebuck, everywhere in the Ancient Greek world, arbitration was normal. [2]  In ancient arbitration, the arbitrator was more of a mediator than an arbitrator.  It was only if the parties couldn’t reach agreement themselves that the arbitrator would decide for the parties.

Judge Cryan outlines the role of the arbitrator in traditional family law arbitration as one of a sage.  Parties to a domestic conflict would agree to put their family disputes to the sage in the community and be bind by what he had to say (if they couldn’t agree between themselves first).[3]

Modern arbitration

Judge Cryan’s lecture on Family Law arbitration in the UK, delivered in June 2017, raises some salient points about modern family law arbitration.

  • Family law arbitration is being considered around the world—Australia, England, Wales, Germany, Spain, Canada, and the US.
  • All the models of arbitration under consideration seem to be the same—private judging.
  • There has been no significant take-up of family law arbitration anywhere.
  • In the UK, in 2017, there had only been 140 family law arbitrations conducted over past five years despite establishment of Institute of Family Law Arbitrators (IFLA) in 2012.
  • Lawyers remain largely unaware or are wary of arbitration and as such parties remain unaware or wary of it as an option on the family law dispute resolution menu.
  • Family Law Arbitration is not popular—yet!

As there is not much literature on the role of the arbitrator in modern family law arbitration, it is helpful to look at where arbitration has been more prevalent in the modern world – commercial and international arbitration.

International commercial arbitration

Crawford analyses the notion of the “ideal arbitrator” in investment and international arbitration.[4]  He

“…draws inspiration from Yves Dezalay and Bryant Garth’s historical conception of commercial arbitrators as a closed group of “Grand Old Men”– lawyers of distinction, trusted for their wisdom and judgment, although not arbitration specialists.  Dezalay and Garth pinpointed a second generation of arbitrators, who they rather unhappily labelled the “Technocrats.” These were expert arbitration practitioners who had spent their entire careers working in the field.  In 2012, Thomas Schultz and Robert Kovacs revisited Dezalay and Garth’s sociological study and added a third generation of arbitrators, whom they called the “Managers.” These were arbitrators highly skilled at managing proceedings, deliberations, and the organisation of tribunal work.”[5]

Crawford goes on to explore three potential dimensions of the ‘ideal arbitrator’—impartiality and independence; technical expertise; procedural and managerial expertise.  He ultimately decides that the quality of an ideal arbitrator lies in his or her ability to balance ‘unnecessary procedural diversions’ with ensuring fairness.

Commercial domestic arbitration

For domestic arbitration, type into a search engine ‘the role of an arbitrator’ and the engine changes the search to ‘the role of arbitration.’  Thus, we can ascertain that to understand the role of the arbitrator in domestic arbitration, we look to the role of arbitration.

In 2012, the Australian Commercial Arbitration Act 2012 (the CAA), updated the uniform Commercial Arbitration Acts (1985) to give parties an increased ability to shape the procedure themselves.

The Paramount object of the CAA is to facilitate the fair and final resolution of commercial disputes ‘… without unnecessary delay or expense’.  The CAA aims to achieve this by ‘enabling parties to agree about how their commercial disputes are to be resolved…and to provide arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly’.

Thus, the role of the arbitrator in commercial disputes is to hold in mind that it is for the parties to agree the arbitration process— and that it is to be less formal, quicker, and less expensive than judging.

Let us know turn to domestic family law arbitration.

History of family law arbitration in Australia

1991 amendments

In 1991, the Australian government amended the Family Law Act 1975 (Cth) (FLA) to permit arbitration in property, maintenance, and financial matters.  Despite the legislation, there was no significant uptake of family law arbitration. (In contrast, mediation initiatives, albeit Government funded, enjoyed an immediate uptake such that now mediation is an accepted part of family law dispute resolution culture.)

2008 revisiting arbitration

In 2008, upon request from the Attorney-General, the Family Law Council re-considered the arbitration of family law property and financial matters.  In accordance with its terms of reference, the Council focused on the desirability of compulsory arbitration and how the FLA could incorporate a compulsory model.   In the Council’s discussion paper, The Answer from an Oracle, the Council noted that there was a clear indication that some key stakeholders did not support the introduction of discretionary court-ordered arbitration.  Again, there was no significant uptake of family law arbitration.

2015 arbitration amendments

In 2015, the government again revisited the use of family law arbitration for property matters and made amendments to the rules to facilitate greater use of arbitration.  The amendments included:

  • amendments to disclosure and subpoenas,
  • the procedure for an arbitrator to refer a question of law to the court for determination,
  • the procedure for notifying the court that the arbitration has ended and the arbitrator has delivered an award, and
  • the requirements for registering an award.

All in all, there hasn’t been a great deal of discussion on the role of the family law arbitrator.

The Role of AIFLAM

When the Commonwealth Government amended the Family Law Act in 1991 to provide for arbitration, it legislated qualifications for arbitrators of family law disputes and nominated that AIFLAM (the Australian Institute of Family Law Arbitrators and Mediators) keep a list of qualified family law arbitrators (those who had completed the requisite training).

In the 1990s, AIFLAM in conjunction with Bond University Law School developed their arbitration course and taught it to family law practitioners.  AIFLAM continued to offer the arbitration course intermittently from the 1990s but all the while there was a limited uptake of family law arbitration.

In 2017, following the 2015 amendments, AIFLAM recognised the need to update its existing arbitration course and to increase arbitration training for family lawyers. It also recognised the imperative to design an accepted model of arbitration and a system of standards and accreditation.

In 2018, AIFLAM conducted consultative workshops to understand the culture of family law arbitration; to develop an arbitration practice model; to explore the utility of family law arbitration standards, and to understand the role of the family law arbitrator at a deeper level.

In 2019, AIFLAM completed the AIFLAM Arbitration Practice and Approval Standards (the Standards) as part of the AIFLAM ADR Accreditation Scheme.

Theoretically grounded Standards

The Standards were drafted with the theory of Procedural Justice firmly in mind.  The practice model was designed according to the research evidence-base that shows that procedural justice is the most important factor in shaping our overall judgments of justice and satisfaction in dispute resolution decision-making contexts.  Essentially the research shows that if the parties perceive that a decision-making process is procedurally just then they are more likely to:

  • view the enacted process as legitimate
  • accept the decision whether it is in their favour or not
  • retain their sense of autonomy and self-worth
  • co-operate and accept the decision-maker’s advice/award, and
  • have a sense of fairness and satisfaction with the overall process.[6]

The first major study in procedural justice was of people involved in an arbitrated civil lawsuit in the federal court in the US.  The study found that judgments of procedural fairness were strongly related to the parties’ decisions to accept the arbitration award.  Subsequent studies have replicated the finding and now it is clear that parties to a civil dispute are more likely to accept an arbitration award if they perceive that the procedures used to arrive at the award were fair.  Further, the research shows that perceptions of procedural justice influence one’s perceptions of the legitimacy of the decision-making process—a major consideration in the emerging ‘profession’ of family law arbitration. [7]

So, what is the role of the arbitrator that these Standards contemplate?

In terms of what makes a process seem fair, the research shows clearly that the quality of the treatment of the parties is the most important consideration for the parties.  The quality of treatment involves the parties perceiving the decision maker as:

  • treating them with respect, politeness, and dignity
  • being trustworthy
  • communicating his or her ideas honestly in a straightforward way and providing honest explanations for his or her decisions
  • being impartial and independent
  • giving them an opportunity to say everything they want to say
  • taking their needs into account and considering their views, and
  • giving them enough information about arbitration so that they can make informed decisions about it.

The rules of being a Family Law Arbitrator

Most writers in most arbitration fields bemoan the fact that arbitration has become increasingly adjudicative in nature and is not very popular.  For family law arbitration to reach its potential as a fair, feasible, desirable and thriving family law dispute resolution process, below are some rules for the Family Law Arbitrator.

Be an arbitrator, not a judge

  1. The first rule for the family law arbitrator is be an arbitrator—not a judge. The history of arbitration suggests that a family law arbitrator is someone who balances being a sage, a mediator and an arbitrator all at once.  Someone who the parties trust to make a wise decision about their future, and whose decision they will obey and respect, if they aren’t able to reach the decision by themselves..[8]

Process choices

  1. The second rule for the family law arbitrator is that it is the parties’ process, not yours (btw – this is a prominent mediation rule too). In arbitration, the parties agree to arbitrate and they agree the arbitration process—the arbitrator does not determine how s/he will conduct the arbitration, s/he manages it.  The parties have process choices and process control.

Procedural justice

  1. The third rule for the family law arbitrator is be procedurally just. A procedurally just family law arbitrator will:
  • treat the parties with respect, politeness, and dignity
  • develop trust by understanding the parties narrative and needs
  • be honest and transparent
  • ensure the parties’ process control (as above) and,
  • ensure informational justice and informed consent

Be romantic!

  1. Paulsson laments that arbitrators “labour, ..not for love” but for an added string to their business bow.[9]  Therefore, a final rule for family law arbitrators is to be romantic.  Labour for love—for the love of justice; for the love of the community and for the families who put their trust in you; and for the love of a profession, which assists people to navigate one of the most vulnerable times of their lives, and resolve their disputes in fair, polite, respectful, dignified, and constructive ways.

What type of arbitrator will you be?

 

References

[1] https://adrresearch.net/2019/06/16/arbitration-of-family-law-property-and-maintenance-disputes/

[2] Derek Roebuck, Ancient Greek Arbitration (Oxford, Holo Books: The Arbitration P, 2001) at pp. 319–331; Derek Roebuck, ‘“Best to Reconcile”: Arbitration and Mediation in the Ancient Greek World’ (2000) 66 Arbitration 275–278

[3]  Judge Crynan (2017)  https://www.youtube.com/watch?v=1jTIGFcrT18

[4] James Crawford (2018) The Ideal Arbitrator: Does One Size Fit All? 32 American University International Law Review 1003

[5] Ibid, 1005

[6] Howieson, J. (2011) ‘The Professional Culture of Australian Family Lawyers: Pathways to Constructive Change’ 25 (1) International Journal of Law, Policy & the Family 71-99

[7] Lind and Tyler (1988) The Social Psychology of Justice (Plenum Press, New York)

[8] Cryan (2017) above n 2.

[9] Jan Paulsson, Introduction, 1 Arbitration International 1, 2 (1985) cited above ibid, 1012