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.

Learning from our First People – using Yarning to Resolve Conflict

earthy comments

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, John..

John Lidbetter

My name is John Lidbetter. I am a fourth year Actuarial Studies and Law student at UNSW. I began learning about yarning whilst studying ‘ADR in Practice’, a law elective at UNSW taught by Dr Rosemary Howell. I am extremely grateful for Rosemary’s guidance and assistance on this topic. I welcome any comments or suggestions the reader may have.

Conflict resolution is not new. All cultures have a conflict resolution tradition, offering opportunities for learning to current academics and practitioners. Australia’s First Peoples have powerful tools to resolve conflict; these techniques have been refined over centuries, which provide opportunities for us to do things differently and better in the ADR space.

This blogpost focuses on Aboriginal traditions of yarning. Yarning involves written and oral storytelling, which emphasises joint discussion of the past in order to build a relationship between the storyteller and listener.[i] Digging into the literature reveals some powerful benefits which Yarning makes accessible to ADR professionals. In particular, yarning provides effective strategies and tactics which enable us to more deeply understand other parties’ perspectives. Additionally, Western forms of ‘narrative mediation’ already acknowledge and adopt narrative practice – recognising the benefits of storytelling. These benefits are worth digging into a bit more deeply.

Yarning to promote mutual understanding

Why are we compelled by stories which arouse our emotions? One explanation is that emotional stories invite us to empathise with the storyteller’s perspective. If we can empathise with the storyteller, we may become more inclined to listen and understand the individual’s point of view. Yarning provides a medium to communicate emotion and understand competing perspectives as it involves describing experiences and personal stories. For example, Tara June Winch’s novel, The Yield, illustrates the impact of returning to a home that is becoming repossessed by a mining company. Through describing personal experience, Winch creates a connection with the audience which invites readers to learn from the storyteller’s message. In Winch’s case, we begin a process of understanding the cultural significance of land for Indigenous peoples.[ii] In the ADR space, the learning opportunities are limitless; telling stories allow us to listen and understand each other’s’ perspectives – facilitating the resolution of conflict.

Repetition and Silence

However, to resonate with another person’s perspective, we must be able to digest the information. To digest new ideas, we often need time to pause and think. If we have time to process what is said, we become better equipped to understand our counterparty’s perspective and brainstorm ideas. However, studies suggest that Anglo-cultures view silences and pausing negatively – inhibiting our capacity to retain information.[iii] Learning from yarning may help resolve this deficiency.

In the Aboriginal yarning context, pauses are not interpreted negatively; instead, silence is used to reflect.[iv] Furthermore, repetition is often used in yarning to reinforce the underlying structure and logic of new ideas.[v] By incorporating silence and repetition into our repertoire, we enable ourselves to understand complex factual scenarios and interests to a greater extent. In doing so, we become more likely to understand our counterparty’s perspective – assisting in the resolution of conflict.

Inclusive Language

It is often easier to work together on a problem when both parties feel included in the process. Yarning provides subtle techniques which enable our counterparty to feel engaged in the conversation. For example, in the historical novel, Dark Emu, Bruce Pascoe uses plural personal pronouns such as ‘we’, ‘our’ and ‘us’ in his dialogue.[vi] By including the audience, the reader does not feel alienated or accused. Instead, inclusive language avoids what Fisher and Ury describe as ‘the people problem’.[vii] By separating the people from the problem, we ensure both parties fight the same issue, together. We could all benefit from including, rather than excluding our counterparty as it facilitates collaborative discussion which may facilitate conflict resolution.

How Does Narrative Mediation Incorporate Yarning?

Despite the apparent benefits arising from yarning, how can we know that storytelling techniques will translate to successful conflict resolution in the ADR space? Well, we can consider the use of storytelling in Western ‘narrative mediation’ contexts. Narrative mediation styles have incorporated aspects of yarning. The important similarity between yarning and narrative mediation is the joint emphasis upon telling personal stories. Both processes promote the power of storytelling as an ends in itself, which inadvertently facilitates successful conflict resolution. Neither processes pressure parties into settlement, which frees individuals to focus upon mutual understanding, rather than bargaining. In doing so, narrative mediations enable parties to reconcile their differences through utilising the power of joint discussion of personal stories. As a result, narrative mediation processes are highly successful in resolving conflict due to the acknowledgement of the power of yarning.

Where do we go from here?

Learning and adopting new forms of communication styles is difficult. However, adding yarning to our repertoire may allow us to better resolve conflicts and maintain stronger relationships. The main benefit of telling our stories is that it humanises the conflict. At its core, conflicts are relationship-based. We can disarm and relieve tensions through sharing our personal perspective. In doing so, we may create a connection and achieve mutual understanding, which better equips us to resolve conflict. Interestingly, there is scarce academic research concerning yarning in the context of dispute resolution, or its connection to Western forms of narrative mediation. Consequently, this blogpost aims to spark discussion and further research about how we can maintain better relations with others through acknowledging and learning from yarning.

[i] Lynore Geia, Barbara Hayes and Kim Usher, ‘Yarning/Aboriginal storytelling: Towards an understanding of an Indigenous perspective and its implications for research practice’ (2013) 46(1) Contemporary Nurse 13, 15; Dawn Bessarab and Bridget Ng’andu, ‘Yarning about Yarning as a Legitimate Method in Indigenous Research’ (2010) 3(1) International Journal of Critical Indigenous Studies 37, 38; Tyson Yunkaporta, ‘Aboriginal pedagogies at the cultural interface’ (PhD Thesis, James Cook University, 2009) xiii.
[ii] Tara June Winch, The Yield (Hamish Hamilton, 2019) 33–4.
[iii] Michael Walsh, ‘Conversational styles and intercultural communication: an example from northern Australia’ (1991) 18(1) Australian Journal of Communication 1, 2.
[iv] Ilana Mushin and Rod Gardner, ‘Silence is talk: Conversational silence in Australian Aboriginal talk-in-interaction’ (2009) 41 Journal of Pragmatics 2033, 2033.
[v] Tyson Yunkaporta, ‘Aboriginal pedagogies at the cultural interface’ (PhD Thesis, James Cook University, 2009) xvii.
[vi] Ibid 14.
[vii] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (Houghton Mifflin Harcourt, 2nd ed, 1992) 13.

Seven Keys to Unlock Mediation’s Golden Age

As co-editor of the ADR Research Network Blog this month, I have invited Michael Leathes to talk about an international collaboration that he curated called The Seven Keys to Unlock Mediation’s Golden Age. Leathes’ original 2010 article, 2020 Vision – Where In The World Will Mediation Be In 10 Years, has inspired 40 dispute resolution thinkers — users, practitioners and scholars — to look a further 10 years into the possible development of mediation, not to predict the future, but to help invent it. I invited Michael to tell us more…

Seven car keys

An overview of the Seven Keys by Michael Leathes

As modern mediation enters its 5th full decade, it is timely to admit an inconvenient truth: global uptake of mediation appears to have plateaued far short of its potential. Is the mediation field around the world just going to do the same things over and over while hoping for a major uptick in growth? Einstein famously called this “insanity”.

Several great thinkers have memorably noted that the way to predict the future is to invent it. But this is a challenge in a deeply fragmented, highly competitive, often misunderstood field. The Seven Keys to Unlock Mediation’s Golden Age aims to mobilise an international conversation about how the field can trigger exponential growth over the next 10 years.

The introduction by Professor Nadja Alexander and Lela P. Love exhort stakeholders to imagine a new order illustrated by over 20 peer-reviewed propositions by 40 writers in 16 countries. Seven contributors are Australasians. Each piece is no longer than 1,111 words. The propositions are clustered into Seven Keys: Leadership, Data, Education, Profession, Technology, Government and Usage. They intersect to create what Professors Alexander and Love characterise as a whole greater than the sum of its parts.

Dr Rosemary Howell and Alan Limbury, with Ken Cloke and Joan Goldsmith, frame the work with a plea for the main players to come together and provide collaborative, mediative leadership with both a unified vision for the field and a clear mission and path to achieve it. A vision and mission that empower stakeholders to become the owners, and not merely renters, of the field’s future. The propositions that follow this call for mediative leadership all describe elements that can help shape the vision and implement it through the mission and include:

  • Generating credible science to support mediation skills and processes and to develop new theories from empirical and other field-sourced research data
  • Repeating the Global Pound Conference series periodically
  • Developing a “Negotiation Index” app packed with instant wisdom and evidence to aid mediators and parties
  • Widely teaching mediation as a core subject
  • Training mediators more thoroughly, not least in culture and neuroscience
  • Ensuring mediation is publicly respected as a true professional practice
  • Seeing mediators openly declare what they believe
  • Subscribing to a Code of Disclosure
  • Leveraging technology more effectively
  • Engendering visible Government engagement, including walking the talk and implementing the Singapore Mediation Convention
  • Proactively marketing mediation to users
  • Promoting mediation to facilitate deal making
  • Increasing peer mediation programs in schools
  • Promoting the value of women mediators
  • Making mediation a pre-requisite to litigation and more systemically encouraged and fused in arbitration
  • Helping inexperienced mediators gain a practice foothold with mentoring and practice programmes, and finally
  • If the main players collaborate to share leadership internationally and develop a single vision with a credible mission and a comprehensive budget, it should be fundable on a worldwide scale – it’s been done before!

Joanna Kalowski concludes with Many Paths, One Way. She calls upon the world’s leading stakeholders in mediation to chart the new future, adopt and build upon the Seven Keys as a springboard, and develop it collaboratively with energy and enthusiasm on a global scale.

Seven Keys to Unlock Mediation’s Golden Age was serialised on Mediate.com in June and July 2020.
The complete downloadable pdf of the Seven Keys is anticipated to be made available as part of the mediate.com 25th Anniversary in September 2020 as a no-charge e-book. Once published, the work may be reproduced in accordance with a Creative Commons licence provided within the document.
Interviews with many of the Seven Keys’ contributors have also been recorded and will be made available in conjunction with this publication.

 

Could COVID-19 see the end of Halsey?

The continuing development of ADR processes has brought with it a significant growth in litigation which explores issues such as  enforceability, good faith negotiation and cost sanctions for failing to mediate. These cases add to our understanding of how the field of ADR is continuing to develop.

With this in mind we have been fortunate to receive permission from Alan Limbury, Senior Fellow,  Melbourne Law School, to reproduce his recent Kluwer Blogpost. Please read Alan’s blogpost below.

Future-300x203

Written by Alan Limbury, Kluwer Arbitration Blog 22 June 2020

 

The impact of the COVID-19 pandemic on the administration of justice has led to commendable judicial innovation, such as the use of virtual hearings, while much of the workload has been postponed until the resumption of face to face hearings is declared safe.

In a message to judges in the UK Civil and Family Courts in March, the Lord Chief Justice said:

“It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned. I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.”

Unless or until overturned by legislation or judicial decision, the situation in the UK is governed by the 2004 decision of the Court of Appeal in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11 May 2004) , in which Dyson LJ (with whom Laws LJ and Ward LJ agreed) said:

“…it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 [of the European Convention on Human Rights].”

In 2010 the European Court of Justice differed, holding that a mandatory out-of-court settlement procedure is not contrary to European law so long as it does not result in a binding decision, does not cause a substantial delay in litigating, does not oust the court’s jurisdiction due to limitation periods and is not excessively costly: Rosalba Alassini and others v Telecom Italia SpA and others.

That was not the end of Halsey however, because Dyson LJ continued:

“Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:

‘The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.’”

Comment: that unfortunately erroneous passage from the White Book fails to address the substance of Harvard Professor Frank E A Sander’s well-known and compelling statement: “There is a difference between coercion into mediation and coercion in mediation.”

Dyson LJ went on:

“If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is not, of course, obliged to take at face value the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it… we reiterate that the court’s role is to encourage, not to compel.”

Halsey established a regime whereby the courts may impose cost sanctions against successful litigants on the grounds that they unreasonably refused to engage in ADR. Such penalties are, of course, necessarily imposed after the decision on the merits of the case, whereas a power to order parties into mediation would be exercised before the final decision.

Even before the 2010 Alassini decision, Sir Anthony Clarke, in The Future of Civil Mediations, (2008) 74 Arbitration 4, 419 said:

“It is of course a cliché that you can take a horse to water but whether it drinks is another thing entirely. That it is a cliché does not render it the less true. But what can perhaps be said is that a horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it. Litigants being like horses we should give them every assistance to settle their disputes in this way. We do them, and the justice system, a disservice if we do not.”

Using the same cliché, in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 (27 March 2013) , Sir Alan Ward said:

“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey…”

A year later, in Bradley & Anor v Heslin & Anor [2014] EWHC 3267 (Ch) (09 October 2014) , Norris J said:

“…The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”

In its 2017  Interim Report on ADR and Civil Justice , the Civil Justice Council ADR Working Group said at 9.32:

“… if the Working Group were free to choose we would be minded to allow judges to make orders in particular cases compelling an unwilling party or unwilling parties to attend a mediation or engage in some form of ADR.”

In its 2018  Final Report, the Working Group refrained from suggesting such a course, instead advocating increased encouragement into ADR at various stages and, at 9.24, proposing a system, as in British Columbia, in which a formal Notice to Mediate from one party to another triggers mediation by a mediator on a court-approved panel. The court is not involved unless the parties cannot agree on the mediator or otherwise seek its intervention.

While such a scheme would undoubtedly be useful, both in disposing of cases and in increasing awareness of ADR, the missing element is what I see as the clearly desirable power of the court, as it considers appropriate, to order parties into mediation whether or not they consent. In my 2018 Kluwer blog, I touched upon the way in which Australian courts use their statutory power to make such orders.

In his recent article Mediation – Don’t panic in the Pandemic – be prepared , Colin Manning, mediator, says:

“If, as seems likely, there is a risk that the courts will become overwhelmed by a wave of commercial cases, a combination of the number of adjourned cases built up during the lockdown together with a rush of new litigation arising from the pandemic, then there will be lengthy delays to hearings and trials. It must be possible that the judges will have to take practical steps to ease the pressure. One obvious step is to require all parties to engage, or re-engage in some form of ADR, almost certainly mediation, as a condition of bringing or continuing litigation.”

Perhaps the pressure caused by the COVID-19 pandemic makes this time for the UK to dump Halsey and adopt this approach.

 

Restoration Retribution Revenge and Forgiveness: what can Game of Thrones tell us about human needs in dispute resolution.

 

Along with millions of other viewers worldwide, I watched, reflected on, discussed, and evaluated Game of Thrones on multiple levels, to the point of being slightly embarrassed by the amount of mental energy I was spending on this exercise. The answer? Explore the theoretical bases for aspects of the series that intrigued me as a lawyer and dispute resolution practitioner.

Like millions of other viewers, I felt a deep sense of moral satisfaction (sometimes expressed via air punching jubilation) when numerous villains ‘got what they deserved’. This led me to think further about the concept of ‘just deserts’ and what ‘seeing justice done’ means to humans. ADR theory focuses on collaboration, understanding, and moving forward, but do positive reactions to violent demise in this series hint at a more visceral drive to seek revenge as well? Further reflection suggested that there were interesting nuances in the way that retribution and punishment were meted out in Game of Thrones – that the manner in which various transgressors got their just deserts might be intrinsically linked to both the severity of the transgression, and their moral character. (Yes, I did spend a lot of time thinking about this series).

SPOILER ALERT – if you have missed this series and don’t want to know what happens to some of the bad guys, go straight to *

Who didn’t feel secretly jubilant when the vicious, cruel, entitled and arrogant Ramsay Bolton was left to be torn to pieces by the very hunting dogs he’d trained to cause so much cruelty to others?

Was it only me who thought that whilst Stannis Baratheon clearly had to die, he deserved a death less gruesome, as a once decent man who had lost his way, but somehow still earned a little empathy for his misguided attempts to do the right thing?

And finally, Jaime Lannister, who veered from loathsome to likeable across 8 seasons, but finally met an end that seems somehow fitting with the emergent decency that he exhibited even though he could not ultimately reconcile the moral challenges that he faced.

Anyone who has seen the series will know that this analysis could go on and on.

* End of spoilers

It seemed inevitable that all of these people (and many more) really did have to die, but I wondered how the manner of their deaths might reflect some human need for revenge and retribution in the context of broader ideas of dispute resolution.

550 years BCE, Nebuchadnezzar talked about ‘an eye for an eye’. The related concepts of retribution and revenge have become cultural historical and philosophical pillars of Western criminal punishment principles. This works as a social balance – visibly illustrating the moral standards society expects, punishing the offender as a means of deterrence, and ideally providing satisfaction in the sense of re balancing the moral wrong, to the victim.  But is there also a need for the response to deliver some emotional benefit to the sufferer?

The idea of restoration – supplanting revenge punishment and the infliction of pain and consequence on transgressors, is a more recent phenomenon in criminal justice models, and contributes to modern Western criminal punishment theory. Ideas of restoration are also deeply embedded in ADR theory, particularly in facilitative relational processes, where past wrongs are examined, and left behind as the parties move forward.

The last 20 years or so have seen a number of research papers examine the  psychological balancing of revenge, and the necessity of forgiveness by those wronged in moving from retribution to restoration. Much of this work is framed in terms of punishing criminal offending, but underlying human reactions addressed in this process are equally present in non-criminal matters.

Peter Strelan and Jan-Willem Van Prooijen [1] describe forgiveness as the replacement of negative responses with positive ones towards a transgressor. The socio-cognitive steps in this process involve the transgressor doing something to encourage forgiveness, with the victim re-evaluating their response and perhaps developing empathy for the transgressor. But the authors also found that victims who can punish the transgressor are more likely to forgive. This act of causing harm or consequence appears to be important in moving from negative to positive responses to the transgression. Based on a series of controlled empirical studies, the authors propose that “ [T]ransgressions stir emotions of anger, resentment and condemnation and so prime a fundamental human need for balance and equity: That is, transgressors should not be allowed to get away with what they did” and that “seeing offenders suffer for their actions helps victims feel better”. They also point to physiological evidence that “retaliation is an instinctual response to being transgressed against”. Rather than contrasting a “punishment” or “forgiveness” dichotomy, the authors suggest that punishment is a necessary step on the path to forgiveness .

Tyler Okimoto, Michael Wenzel and N J Feather [2] explore concepts of justice orientation to explain the revenge v forgiveness phenomenon. They suggest that people are either oriented towards retribution, or towards restoration, aligning retributive orientation with people who value unilateral authoritarian imposition of penalty, and restorative orientation with people who prefer to achieve consensus about shared values. They align personality types with these two orientations, suggesting that power plays a significant role. Retributive preferences tend to align with individual even narcissistic personality types with strong adherence to authority and group-based dominance, as well as high individual value of power and self enhancement. Whereas restorative orientation tends to align with a conceptualization of justice as a process to achieve consensus between affected parties.  A very simplistic description of these preferences might contrast competitive individual values with collaborative communal values.

Monica Gerber and Jonathan Jackson [3] define the terms a little differently, describing retribution as both just deserts or revenge. As just desserts, the transgressor pays back for the harm done and justice is achieved by the redistribution of positive and negative experience. As revenge, the victim seeks not only to restore the balance, but to retaliate against the transgressor – “vengeance involves the emotional pleasure of seeing the offender suffer”.

SPOILER ALERT – skip next paragraph

Applying GoT examples to these theories, we might align Sansa Stark’s secret satisfied smile following Ramsay Bolton’s death with the idea of vengeance linked to offender suffering, and Brienne of Tarth’s regretful execution of Stannis Baratheon as a restoration of moral and social balance following his murder of his own brother in pursuit of the Iron Throne.

Gerber and Jackson’s suggestion that emotional pleasure might connect to visible suffering of transgressors is a bold and, in some ways, quite shocking conclusion – surely modern humanity has moved beyond that base need?

ADR, particularly mediation, seeks to move away from the concept of vengeance and retribution on the offender, to a restorative model that seeks to reintroduce balance by empathy, collaboration, and consensus. Yet it seems based on this research that underneath the choreography of mediation, and the implicit presumption that parties behave decently towards each other, there might lurk a much darker and more visceral need to see the other side suffer ‘what they deserve’ in retaliation for their moral transgression.  After all, there must be some reason why the term “the sweet taste of revenge” is still  in use today.

This train of thought was prompted by the idea that the millions of modern day viewers rejoicing at the often brutal but seemingly fitting retribution that some truly reprehensible characters suffered in Game of Thrones, are the very same people that we see in facilitative ADR processes – in other words, us. If this thread of desire for vengeance retribution and the infliction of suffering is hidden somewhere in the psyche of some if not all of participants in this process, what should we do with that? Is the elephant in the room here that people might be a lot meaner, vindictive, and retaliatory than anyone cares to admit – and that this is not some moral or character flaw but exists at a deeper psychological needs level.

I have never conducted a mediation where the parties, however opposed to each other, came anywhere close to exhibiting the sort of values and behavior that we saw on Game of Thrones. Nor can I imagine comfortably prompting discussion in mediation around a party’s vengeful desire that the other party suffer miserably in consequence of their past actions. But pursuing this line of inquiry has made me realise that the idea of basic psychological human needs may be more complex than I thought.

For a lively and wide ranging review of some of the ideas in this discussion, see Arne Sjostrom 2012 “When does revenge taste sweet: a short tale of revenge.” The Inquisitive Mind, Vol 15.

References

[1]        P Strelan & J-W van Prooijen 2013 “Retribution and forgiveness: The healing effect of punishing for just deserts”, 43 European Journal of Social Psychology, Vol.43, pp. 544-553.

[2]       T Okimoto, M Wenzel & N Feather 2016  “Retribution and restoration as general orientations towards justice” European Journal of Personality, Vol 26, pp. 255-275

[3[       M Gerber & J Jackson 2013 “Retribution as revenge and retribution as just deserts” Social Justice Research, Vol 26, pp.61-80

 

Best Practice for ADR in Equal Opportunity complaints

Peta Spyrou is a Doctoral student at the University of Adelaide Law School. She won a scholarship representing a partnership between the University and the Equal Opportunity Commission of SA. This scholarship supports students who have and interest in equal opportunity and human rights to develop interdisciplinary higher degree research skills.

 

Peta’s topic looks at disability discrimination complaints in the area of education from students who have a disability that manifests in complex behavioural issues. By focusing on the different ADR complaint-handling processes and tests for direct discrimination in SA and Victoria, Peta’s research aims to determine whether different outcomes and levels of satisfaction result under different systems. It also includes data from SA students who have made complaints to the Australian Human Rights Commission. Here  Peta explains the background and focus of her research.

 

  • What motivated you to devise this topic?

My interest in this topic is multi-dimensional: My personal connection to the disability community; intellectual interest in law; interest in this unique scholarship opportunity; and recognition of the benefits of an education, (developed by my upbringing from a family full of educators), all influenced this topic.

 

In mid 2017, a colleague, who happened to be an Alumni from the University of Adelaide, received an email from the University’s Graduate Centre advertising the scholarship and partnership with the Equal Opportunity Commission. Knowing of my personal interest in both disability advocacy and Law, my colleague forwarded this email to me and encouraged me to apply.

 

My interest in disability was sparked from my part-time caring role of a young person with disabilities. My connection to him and his family for now almost nine years fostered a keen passion in the areas of human rights and equal opportunity for people with a disability. This focus and passion are complimented by my intellectual interest in law, and belief in the value of evidenced-based research informing policy recommendations.

 

  • How does this partnership between the Law School and EOC work – what do you do and where?

Scholarship recipients can undertake either a PhD or Masters qualification under a collaborative arrangement with Dr Niki Vincent, Commissioner for Equal Opportunity SA, who supervises successful recipients alongside University of Adelaide academic staff.[1]

 

As part of my application process, I consulted with Dr Vincent directly. When formulating my topic, the Commission was receiving an increasing number of complaints from students with challenging behavioural issues as a result of their disability, who were alleging disability discrimination in education.

 

Initially, I wanted to examine what was best practice for resolving these complex disputes; however, I soon realised that a significant literature gap exists. The confidential nature of the ADR processes associated with Anti-Discrimination and Equal Opportunity Commissions mean that we do not know how these statutory bodies are resolving these complaints, if at all.

 

My partnership with the SA EOC has enabled other statutory bodies to partner with us to facilitate a comparative analysis. My research currently involves the Commissions in SA, Victoria and the Commonwealth, and I conduct my research from the South Australian Commission one day a week.

 

  • What, broadly speaking, is your thesis?

Students who have a disability that results in challenging behaviours, such as violent or threatening conduct, may affect the safety and wellbeing of themselves and others.

 

Educating these students presents teachers with unique challenges given the existence of competing duties: for example, the duty not to discriminate versus duty of care obligations.

 

Despite all Australian jurisdictions containing protections for students with a disability to access education free from direct or indirect discrimination, no legislative framework expressly addresses what the appropriate balance is between competing duties, interests or principles contained within anti-discrimination; work, health and safety; human rights and educational frameworks. Additionally, because all statutory bodies seek to resolve discrimination disputes through ADR, the confidential nature of both the process and any resulting agreements compound this ambiguity. As a result, a knowledge gap exists regarding how these statutory bodies resolve these disputes.

 

My research focuses on this gap and builds on existing ADR and discrimination literature by empirically examining disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

 

The focus is on disability complaints raised by primary or secondary students who have challenging behaviours.

 

  • Could you outline the different EO structures that exist in Australia, including the use of ADR?

The dominant enforcement method under Australia’s anti-discrimination law is ‘compulsory conciliation’ at a statutory body. By this I mean that the overwhelming majority of frameworks require complainants lodge a complaint in writing to a statutory body for alleged breaches to the relevant Act. These bodies are tasked with the responsibility of upholding the objects of the legislation and attempt to settle disputes through ‘conciliation’, which is generally not defined in the Acts. If complaints cannot be resolved in this way, there is a potential for certain disputes to progress to a tribunal hearing, or federal courts if initiated with the Australian Human Rights Commission.

 

Victoria, however, has a slightly different system: It allows complaints to be lodged with either the Victorian Civil and Administrative Tribunal or with the Victorian Equal Opportunity and Human Rights Commission. Therefore, complaint lodgement at the Victorian statutory body is not a precondition to tribunal access. Even if a complaint is lodged with the Victorian Commission, the Act expressly allows for a range of different ADR processes to be used in an attempt to resolve the dispute.

 

My research investigates the intersection of the competing interests posed by students with challenging behaviours because of a disability. It seeks to determine whether the different complaint-handling processes in SA and Victoria results in any practical differences. It also compares results obtained through commissions and tribunals with outcomes of publicly available judgements. The purpose of this analysis is to examine whether the advantages of dispute resolution processes are being realised; whether one system receives higher satisfaction levels; and whether justice is achieved through non-litigious processes.

 

  • Can you explain the research plan that you are developing?

This research aims to address the literature gaps by both quantitative and qualitative means.

In working alongside the confidentiality constraints, the quantitative phase asks statutory bodies to provide data about educational complaints broadly, as well as specific data about complaints relating to students with complex behavioural issues. This initial phase is facilitated by the statutory body responding to a questionnaire which I modelled on the 1995 study conducted by Hunter and Leonard on sex discrimination outcomes (Rosemary Hunter and Alice M Leonard, The Outcomes of DIscrimination Cases (University of Melbourne, Faculty of Law, Centre for Employment and Labour Relations Law, 1995),  and after reviewing a relevant complaint (with the parent’s permission) that was lodged with the SA Commission.

 

The study’s qualitative phase aims to gauge user satisfaction on both the dispute resolution process and the outcome of the matter. This will be facilitated by semi-structured interviews with interested parties and professionals who have been involved in matters that fall within the project’s sample size. I will also use a scoping survey to determine the professionals I would like to interview. This is to ensure that the stakeholder has been involved in a matter that is relevant to my research. This second phase will also ask Commission staff to explain their complaints-handling model in relation to these disputes. It is hoped that this query will determine the scope of any issues associated with a lack of a statutory definition for conciliation, if at all.

 

  • Why do you think it is important to interview individuals as part of this exploration?

Literature suggests that people in dispute resolution settings, especially mandatory processes, often experience power imbalances leading to potential disadvantages or levels of vulnerability. Additionally, the personal circumstances of caring for a young person with disabilities may make parent advocates vulnerable negotiators in ADR settings.

 

My research examines this by giving a voice to users of relevant dispute resolution processes who are often not heard in policy development. In doing so, I will be uniquely placed to make conclusions with regard to what system best minimises the potential disadvantages of dispute resolution in complex disability discrimination disputes in education.

 

  • There is a lot of discussion about the definition and parameters of conciliation at the moment, what are your preliminary thoughts on that? What issues does that raise in your mind in relation to your research.

The absence of a universally accepted definition of conciliation may be a reason why much of the academic literature is focused on mediation, resulting in conciliation and mediation wrongly being used interchangeably. On one hand, this could mean that policymakers have created unplanned complaint-handling processes. In other words, legislatures could have created conciliation-based systems when they really meant mediation-based processes. On the other hand, the lack of a definition could provide the statutory body with broad discretion to resolve the dispute.

 

My research is in part looking at where the various complaint-handling processes lie along the ADR continuum. This may help commentators frame the discussion about the definition and parameters of conciliation.

 

  • What are you finding enjoyable about this experience? What are you learning and how do you think this will make a difference?

While I developed an interest in legal research in my undergraduate degree and through employment opportunities, being able to align my various interests and passions in a PhD topic that has the potential to assist an industry partner is an exciting aspect of my study.

 

1    Peta’s supervisors from Adelaide Law School are: Associate Professor Dr Bernadette Richards; Associate Professor Anne Hewitt and Senior Lecturer Margaret Castles.

[1]

Learning from Aboriginal Knowledge Systems in ADR

I teach Clinical Legal Education, Civil Procedure, and Alternative Dispute Resolution at Adelaide Law School. Aboriginal communication preferences provide a ready contrast to the orthodox client interviewing practices that are used in the Australian legal system. This year I partnered with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Exploring the idea of knowledge systems made me appreciate the influence that my  Euro-centric upbringing, education and legal training has on teaching and mediation practice.  This discussion is the start of more detailed work with the Mobile Language Team that seeks to make law students and lawyers aware of their own and others’ cultural preferences .

In this discussion I often use the term “Aboriginal” as it is preferred in my state of SA. I mean no disrespect to others who prefer the terms Indigenous or First Nations.

Aboriginal and European knowledge systems

Indigenous knowledge describes the accumulation of knowledge and philosophy by societies over millennia. The term applies to pre-industrial societies and is typified by communities that have a predominantly oral tradition, exist synergistically with land and environment, and often live in communal or extended family groups. Guidance for life is often in the form of complex rules about relationships, land use, and behavior, and these rules are illustrated through place, landscape, stories, and spirituality. Indigenous knowledge systems often see the world as a cyclical phenomenon, with environment, people, experiences, stories laws and knowledge existing on a holistic plane,  rather than as a linear movement from ‘then’ to ‘now’.   Context, circumstance, and the perspective of the actor/s, means that knowledge is perpetually adaptive within broad frameworks. In contrast, Western European knowledge structures typically take a linear approach, with the past often representing “primitiveness” and the present seen as the apex of achievement. Proof – whether of historical fact, scientific hypothesis, or psychological condition, is critical, and rests on the written and evidentiary record. Colonial expansion of Europeans over the past 400 years has resulted in the hierarchical individualistic commercial and scientific values that underpin much Western culture being indelibly stamped on colonized nations and ways of life.

After centuries of being ignored,  recent decades have seen gradual national and international recognition that Indigenous knowledge is rich, relevant and comprehensive, with enormous value to modern day science and land management (Pascoe 2018, 12-13; Nakata 2007, p.9).

Anglo-Australian legal culture

Aboriginal and Anglo-European world views differ as much in law and dispute resolution as in other areas. Anglo European law rests on the foundational presumption that individual rights always exist in tension with the interests of the state and the community. The right of the individual to self-determination in their own personal, commercial, economic, religious, lifestyle and other interests must be actively asserted.  This reflects the cultural value attributed to commercial success and individual achievement, described by Lander as a ‘predatory’ culture that infuses both legal and governmental systems (Lander 2002, p.245).

Aboriginal cultural values are differently framed.  Whilst individuals are valued there are expectations of humility, collectivism, knowledge sharing, responsibility to nature and the environment, and the interconnectedness of all aspects of life and environment . A simple comparison might liken Anglo-centrist legal philosophy to the primacy of the individual and Aboriginal legal philosophy to the primacy of the community in sync with the environment.  Behrendt identifies key differences describing  Anglo-Australian culture as individual, hierarchical, and competitive; and Aboriginal culture as communal, egalitarian, and cooperative (Behrendt 2008, p. 93).

In the traditional Anglo-Australian context, laws are rigid and inflexible. Rights are determined by adversarial process in which parties present evidence of facts to a single  decision maker. This decision maker evaluates the evidence to decide if alleged facts are proven, and then determines how the law will apply to the proven facts. The existence of proven facts, and the application of the law, are the only relevant considerations. Loosely described as a ‘win lose’ competition, there is seldom a middle ground, and no scope for context, emotion, third party interests, or diverse non legal outcomes.

Larissa Behrendt provides a summary of the most visible differences between legal cultures:

Traditional Aboriginal dispute resolution Contemporary Anglo Australian litigation
Oral complaint

Emotional informal response

Disputants may live together

Jury of elders

Experience age and wisdom required in an arbitrator

No rules of evidence

Procedure evolves with dispute

Process occurs with family or clan present

Disputants and family address arbitrators

Time not an issue

Informal “circle” culture

Settlement discussed with disputants

Informal communal appeal

Written complaint

Controlled formal response

Disputants often strangers

Occasionally jury of peers

Formal legal training, experience, and reputation required for appointment as arbitrator

Fixed rules of evidence

Precise procedure

Process occurs with strangers, or no observers, present

Legal representatives address arbitrator

Deadline intensive

Formal court culture

Judgment delivered

Formal appeal process

 

(Behrendt 2008, p. 93)

Mediation is an important alternative to Anglo Australian court process. Looking at Behrendt’s table (above) it is very clear that mediation comes between the two sides of the table, and aligns with Aboriginal approaches.  Even so, mediation may continue to unwittingly apply Euro centric norms. In the following discussion I examine four of these perceptions: timing, mediator selection, communication preferences, and participants.

Time

Court process in Australia is tightly controlled. Even mediation, the least court-like approach, follows an orthodox series of  steps, and often occurs in a single meeting that might last a few hours, or a few days. Time and efficiency in Western society, including the legal system, is seen as a critical element of justice delivery.

Traditional Aboriginal dispute resolution processes are not linked to time frames. The process is entirely flexible, and may be decided by the parties, not the mediator. Experienced Aboriginal mediators trained in orthodox mediation, but attuned to the circular approach to time that informs Aboriginal culture, suggest that the choice and sequence of process should be given to the participants, not the mediator. They also suggest more flexibility in the phases of mediation, rather than an expectation that it will all occur in a discreet time frame (Kelly 2008 p. 224). This flexibility in process may be more useful to parties who need time and space to consider new ideas and rethink their issues and options.

Mediator choice

The use of independent neutral third parties to mediate or adjudicate disputes is a cornerstone of Anglo European dispute resolution philosophy. In Aboriginal culture this is not so often the case. The cultural respect accorded to elders in communities means that they are presumed to be suited to working with the parties to resolve the matter, even if they are closely connected to the parties and familiar with the context (Grose 1995 p. 334). This practice is noted in other pre industrialized societies around the world where social hierarchy is an important element in dispute resolution (Merry 1982, pp. 30-31). Aboriginal practice recognizes that deep cultural respect for elders will influence compliance with outcomes and result in community satisfaction. It also means that the dispute is controlled within community (Ciftci and Howard-Wagner 2012 p. 84).

Communication

There are cultural differences in communication style and preference (Ciftci & Howard-Wagner, p. 82). Direct linear questioning designed to elicit facts and timelines typifies Anglo-Australian legal practice, and court process (Eades 2012, p. 481). Whilst much less formal, mediators often rely on open ended questioning to elicit responses from parties  with a view to establishing a story that is coherent in terms of Western narrative discourse. Aboriginal discourse avoids direct questioning, is more responsive to less direct ways of eliciting information, and may have rules about who can speak for or about different people or issues. (Eades 2012, pp. 479-492).

Participants

Mediation in Anglo-Australian disputes reflects the Western presumption that privacy is valued above all. Mediation is private and confidential, limited to the mediator and the disputing parties. In Aboriginal dispute resolution the individual is seen as part of a larger social group.  All members of that group may be involved in resolving the dispute, reflecting the importance of relatedness and consensus building (Sutton 2010, p.5). Whilst this is the practice in many land title claims where there are multiple people interested in a claim, it is not a typical feature of mediation process in the normal course.

Learning from Aboriginal culture

One of the challenges in learning from Aboriginal practices is that many of the ideas in Aboriginal culture flow from the importance of  relatedness community and environment, from hierarchical respect for elders, and from a non-competitive world view.  Euro-centric communities have ceased to share the same extent or depth of relatedness between dozens if not hundreds of kin, and the competitive perception that there is a right and a wrong outcome to any disagreement dissuades collaboration.

In the multicultural society of Australia today, there are numerous cultures, some with strong family and community connectedness. Many close-knit African communities value community adhesion above individual rights. Many Asian cultures traditionally prioritize respect, community harmony, and protocols for indirect communication over confrontational direct approaches (Sourdin 2020, p 642). Individuals of any culture who don’t happen to be educated in the written, fact based, chronological approach to conveying stories favored by Western educated professionals are not attuned typical Western discourse structures.  Many people need time to reflect, to consult with others, and to re-evaluate their position as they move forward. People must expose their lives to disinterested strangers, rather than people whom they trust and respect.

Conclusion

Whilst court processes are rigid and slow to change, ADR options like mediation are flexible and adaptive. However they may unwittingly be informed by traditional Anglo centric perspectives.  There is no one way of approaching dispute resolution, and mediators are nothing if not imaginative and adaptive. Aboriginal culture offers valuable insight into  ways that can support process and theory in this dynamic context.

Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination

By Dominique Allen

“ADR represents a symbolic harking back to a lost age when caring for others within a communal setting was of pre-eminent importance; it constitutes a reaction against the alienating and competitive style of dispute resolution fostered by an adversarial system.”

– Margaret Thornton, The Liberal Promise (Oxford University Press, 1990, 147)

Image: Unsplash

This year marks 30 years since Emerita Professor Margaret Thornton published The Liberal Promise, a critique of anti-discrimination law in which she argued that liberalism, in the form of anti-discrimination law, will be unable to achieve equality because it can do little to disrupt the power structures that maintain inequalities in society.

As Thornton writes, anti-discrimination law does not give people a right to be free from discrimination; it gives them a right to complain about their treatment. Now – as then – a person who has been discriminated against is required to lodge a complaint at their local equality agency or at the Australian Human Rights Commission. The agency must attempt to conciliate the claim before the complainant can proceed to a civil tribunal or to the Federal Court (other than in Victoria). Courts and tribunals usually attempt to resolve claims via mediation also.

In the chapter she devotes to conciliation, Thornton says that she is ‘equivocal’ about it. Her primary concern was that as the process is confidential, it can have little impact on discrimination in society; its effect is limited to the parties. She didn’t suggest that courts are the ideal forum for discrimination claims though. She writes that complainants find courts “hostile and alienating”, litigation is not well suited to dealing with the types of issues that arise in a discrimination claims, it is costly, and courts are not well equipped to deal with power imbalances, which are common in these disputes. Thus conciliation serves a valid purpose.

In this post, I consider whether Thornton’s concerns about conciliation still apply, drawing on interviews I conducted with barristers and solicitors in Melbourne and conciliators at the Victorian Equal Opportunity and Human Rights Commission in 2017-2019.

One of Thornton’s primary concerns was that although discriminatory acts take place “in the public arena”, the dispute resolution process does not allow public scrutiny of these acts. They must be dealt with confidentially and in a “non-threatening privatised environment”. A public hearing is a last resort.

I share her concern, particularly because in the three decades that have passed, the problem has been compounded by an increased use of confidentiality clauses (often termed Non-Disclosure Agreements).

My research revealed that confidentiality clauses are regularly included in settlement agreements. They prevent the complainant from discussing the nature of the complaint and the terms of settlement. Some are worded so tightly that they prevent the complainant from discussing the claim with anyone, even with a close family member. It is difficult for the law to have an educative effect when claims are privatised and hidden in this way.

However, the process may well educate on an individual level. Conciliators said that just by participating in the dispute resolution process and listening to the complainant talk about their experience, respondents can be educated about their legal obligations and may well introduce changes to their business or workplace as a result. In this way, the process itself becomes part of the solution and a way of addressing harm.

An advantage of conciliation, Thornton writes, is that it creates a space where complainants can achieve small victories which would be “unlikely, if not impossible” within the formal legal system. My interviewees confirmed this. They said that through conciliation, complainants negotiate changes to working arrangements, access to goods and services, modifications to the delivery of education, and compensation payments far in excess of what the tribunal is likely to award. The tribunal, by contrast, orders compensation, often at low amounts which may not be enough to cover the complainant’s legal fees.

So am I equivocal about conciliation? In my view it is an effective way for the parties to resolve the underlying issues that caused the dispute and potentially reach a shared understanding of what happened. They may even be able to maintain a relationship going forward, which is very important in the employment and education contexts.

Being heard and knowing that their complaint has been taken seriously is often very important to complainants. Litigation will not give them that opportunity. Nor are courts likely to make the systemic orders which are needed to tackle discrimination, whereas respondents do agree to wider outcomes at conciliation.

I’m in favour of conciliation with the qualifier that we must be aware of its limitations. Confidentiality precludes the law’s development, it may allow ‘repeat offenders’ to continue undetected and it hides the prevalence of discrimination in the community. We need to find ways to alleviate its limitations.

The balance has yet to be struck between the parties’ desire to contain the complaint and the community’s interest in knowing about the types of discrimination that still exist and how discrimination is being addressed.