Invitation to participate in ILERA Study Group on Third Party Neutrals in Dispute Resolution

Third Party Neutrals in Dispute Resolution Study Group

International Labor and Employment Relations Association (ILERA)

World Congress 2018

July 23-27, 2018, Seoul, South Korea

This post has been contributed by Professor Johanna Macneil, ADR Research Network member and Assistant Dean, Teaching and Learning, Faculty of Business and Law at the University of Newcastle.

Image of Seoul for ILERA conference, no 3

We would like to invite your participation in the newly-established Third Party Neutral in Dispute Resolution Study Group of the International Labor and Employment Relations Association (ILERA). In particular, we would like to invite you to join us in our first session together at the ILERA World Congress in Seoul in July.


The Third Party Neutrals in Dispute Resolution Study Group is open to everyone interested and involved in labour and employment dispute prevention, resolution, adjudication, arbitration, mediation-arbitration, conciliation and mediation. That includes third party neutrals, practitioners, policy makers and regulators as well as academics. Co-Chairs are Chris Albertyn, mediator and arbitrator, (see and Deputy President Anna Booth of Australia’s federal industrial tribunal, the Fair Work Commission (see

A small, provisional Study Group Committee of academics and practitioners has been established, before its expansion and formal confirmation at the Seoul ILERA World Congress, 23-27 July 2018.


The Third Party Neutrals in Dispute Resolution Study Group invites everyone interested in how third parties are involved in the prevention and settlement of disputes in the labour and employment field to join us.

Participants in the Study Group may be interested in any or all of the following:

  • the study of labour and employment issues and disputes arising at different levels:
    • at international level (over employment standards, over labour agreements as part of trade agreements);
    • at a national level (between confederations of trade unions and employers);
    • at a regional or sectoral level (between trades, trade union federations and employer
    • at an enterprise or plant level (between trade unions and particular employers); or
    • between individual employees and individual employers;
  • all methods used to prevent or resolve those disputes which involve assistance or intervention by a third party, either a court, a state agency or an agreed private resolution mechanism;
  • all types of resolution, that is, either binding and determinative, or advisory, or facilitative, including what are deemed alternative forms of dispute resolution (ADR);
  • remedies available across jurisdictions, and under what forms of labour law, especially when considered in comparative perspective;
  • all types of outcomes sought or achieved which, along with the resolution of a dispute, may include effects on relationships, individual, group, organisational, industry, or societal measures;
  • comparative study, looking at differences in the methods of dispute resolution, and in the varieties of institutions in different jurisdictions and countries used to prevent or settle labour and employment disputes; or
  • any other new or emerging issues in relation to the work of third parties in the labour and employment field.


The initial opportunity to pursue these studies and discussions will be at the ILERA World Congress in Seoul July 23-27, 2018 

Session in the formal program, 24-27 July
We will have a session allocated in Seoul during the formal program, at which some papers will be presented on the role of the third party neutral. If you would like to present a paper in our organised session, please send an abstract, consistent with the guidelines on the conference website, by NO LATER than 25 January 2018, to our academic co-ordinator Professor Johanna Macneil at, copied to the co-ordinator of the study group,
Chris Albertyn at

Meeting of the Third Party Neutrals in Dispute Resolution Study Group
We will also arrange an opportunity to discuss plans for future meetings of the Study Group, for continued interaction between practitioners and academics on areas of common comparative interest. Even if you don’t have a paper for this conference, we would warmly welcome your ideas about participation in the future. (Please note, this will be arranged at a convenient time during the formal program, not on 23 July when other study group meetings are held.)

More information
More information about the Seoul conference is provided via the ILERA 2018 website. If you have any questions about the study group activities, please email Chris Albertyn or Johanna Macneil.

ILERA Third Party Neutrals in Dispute Resolution Study Group


The importance of the intake process in workplace disputes

Pauline Roach.pngThis post was written by Pauline Roach and is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017. Pauline was involved closely in the development and implementation of the system at the Roads and Maritime Services of New South Wales described here.



This post provides an overview of the dispute resolution program developed and introduced at the Roads and Maritime Services (RMS), formerly the Roads and Traffic Authority of NSW. In 2003, a review of the organisations’ grievance policy was undertaken.  Following this review the organisation sought to develop a corporate culture where the principles of alternate dispute resolution (ADR) could succeed and were accepted by staff.  The aim was to assist in the early identification, management and resolution of workplace disputes.

The current literature supports the view that workplace dispute resolution is more effective when it is supported by the whole organisation rather than used in a one off context.  (Sourdin T. 2016; Astor H, Chinkin C 2002; McKenzie D 2015; Saundry R, Latreille p, Dickens l, Teague P, Urwin P & Wibberley G 2014). The RMS system was a good example of a whole of organisational dispute management strategy.

At RMS, a tailored dispute resolution strategy was developed for each dispute. The most appropriate dispute resolution intervention was applied after a preliminary assessment. Mediation was one of a package of ADR tools, policies and procedures which were integrated into a range of human resource policies. The available dispute management strategies included: the disputants, manager and/or workgroup participating in conflict coaching (pre and post mediation), dispute counselling, mediation, referral to human resources for advice, or referral for legal advice.

Prior to any dispute resolution intervention a detailed intake interview was conducted. The intake interview was conducted seven to ten days prior to the dispute resolution process to which the matter would be referred.  Intake was a critical component of the dispute resolution strategy. The intake interview was divided into two significant sections: one to gather information from the organisations’ perspective and the other to prepare the disputant to fully participate in the dispute resolution process.


From the organisations’ perspective it was important to establish the following:

  • is dispute resolution appropriate?
  • are the issues a breach of policy or current legislation?
  • should the matter be referred to human resources for investigation and / or disciplinary action?
  • What previous action has the organisation taken to resolve the issue?

The intake process involved interviewing the disputants, the manager and possibly the union representative to obtain a history of the dispute.  This also provided an opportunity to begin considering the most appropriate dispute resolution practitioner for the matter.


From the disputants’ perspective the intake process:

  • obtain a history of the dispute;
  • identify the people involved;
  • build a rapport with the disputants and reassure them that the ADR practioners do not take sides;
  • introduce the concepts of dispute resolution and ensure they understand the dispute resolution process;
  • assist the disputants to focus on outcomes;
  • reality check outcomes or do the disputants just want to punish the other person;
  • identify factors that may prevent resolution – power imbalance between the parties, is there a threat of violence?
  • Gain agreement on date, time and location for the session.

The intake process intended to increase the likelihood of the ADR intervention succeeding.  It aimed to ensure that the disputants understood the process, had the information they needed and that the right people were sitting around the table. It required an organisational commitment to allow participants the time to engage in a thorough intake process.

Over a nine year period RMS developed and implemented a holistic dispute resolution process, with a rigorous intake process. Mediation was part of a system of dispute resolution tools that were integrated into a wide range of the organisation’s policies. Resolution of workplace disputes requires a strategic and explicit cultural change rather than a piece meal approach. The intake process is a critical tool in achieving this.

The Journey from Babel to Pentecost: The Significance of Language in Dispute Resolution Theory

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.


“How small, of all that human hearts endure,

That part which laws or kings can cause or cure”

Oliver Goldsmith The Traveller

For thousands of years humankind has used language to co-operate in the development of communities, societies and civilizations.  Numerous language scholars including Chomsky[1], Tomasello[2] and Pinker[3], have proffered theories about the development of language but its true origins remain hidden in the mists of time.  An Old Testament biblical text tells the story of the ancient inhabitants of Babylon co-operating in the construction of a tower so tall and magnificent that it would reach up into the heavens and give them direct access to God.  According to the legend, God was so enraged by their attempt to usurp his authority that he made each of them speak a different language so that they could no longer understand or communicate with each other and their construction efforts were frustrated.

The story inspires reflection on the extent to which we depend on language in our relationships with others in society whether at the personal, community or international level.  My paper that I workshopped at the ADRRN round table in New Zealand takes up this theme and considers, by reference to some of the recent language literature and to my PhD research data, how language influences human relationships and its capacity for peace making and conflict resolution.  It uses examples taken from various historical settings to illustrate how language has informed human behaviour in significant and powerful respects. It concludes that dispute resolution best practice has recognized and implemented appropriate strategies for reframing poor communication techniques, but some of those practices are yet to achieve universal acceptance in some areas of mediation especially where the process is being conducted in connection with litigation.

There is another more recent story, this time from the New Testament history of early Christianity, in which the disciples of Christ stood on a balcony in Jerusalem at Pentecost time preaching to hordes of visitors who had gathered in Jerusalem from the whole of the then known world.  According to the legend, although the speakers addressed their homily in Hebrew, each of the visitors was able to hear the speaker in his own tongue, thereby completing a perfect line of communication.  I have concluded in my paper that, whilst we have done much as dispute resolution practitioners to advance the cause of peace and conflict resolution through addressing language issues and reframing toxic, negative and unhelpful language, there is still work to be done and our journey from Babylon to Pentecost is not yet over.

One of the language barriers that I perceive is between the dispute resolution field and the legal profession. What is of concern in the dispute resolution narrative is that the significant advantages which continue to accrue to disputants by learning the skills of respectful discourse and positive problem-focused communication, so familiar to dispute resolution practitioners, do not yet appear to have been successfully communicated to (or adopted by) the legal profession to where, paradoxically, many disputants first turn for a solution to their disputes.  As recently as this week (14th December, 2017), during a speech addressing justice issues arising from the Royal Commission into Institutional Responses to Child Sexual Abuse, the Royal Commissioner, Justice McClelland, referred disparagingly to lawyers as a potential source of redress for survivors of child abuse.  He said:

“In some cases the aggressive hand of the lawyer was engaged, ensuring that an appropriate and just response to a survivor was not possible.”[4] 

The clear inference from the Royal Commissioner’s remarks is that engagement of a lawyer, far from facilitating access to justice, ensures that just outcomes are impossible.  Like the builders in the Tower of Babel legend, the suggestion is that clients and dispute resolution practitioners are speaking to lawyers but they either do not understand us or they do not wish to hear.  The challenge for us, it seems, is to establish effective lines of communication and to speak persuasively so that they are convinced of the necessity for principled dispute resolution solutions.  Only then will our journey have been completed.

This paper is very much in draft form and in need of significant work.  When it has been completed it is my hope that it will be submitted for publication in a peer reviewed journal such as the Australasian Dispute Resolution Journal.

[1] N Chomsky Powers and Prospects: Reflections on Human Nature and the Social Order (London, 1996, Pluto Press p.30)

[2] M Tomasello, B Velischkovskii, D M Rumbaugh (eds) The Cultural Roots of Language Communicating meaning: The Evolution and Development of Language Mahwah, N.J.: L. Erlbaum. ISBN 978-0-8058-2118-5. OCLC

[3] S. Pinker, P Bloom (1990). “Natural language and natural selection”. Behavioral and Brain Sciences. 13 (4): 707–784. doi:10.1017/S0140525X00081061.

[4] As reported in the Newcastle Morning Herald on 15th December, 2017 at p 6

Achieving substantive justice in mediation through procedural justice: An illusory or realizable goal?

Written by Dorcas Quek Anderson, Singapore Management University.

Mediation – a legitimacy deficit?

Mediation has been plagued with a problem of legitimacy.[1] Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”.[2] Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.

This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the LSAANZ Conference. I argue that there is an invaluable connection between procedural and substantive justice that should be further articulated and strengthened. However, there are also considerable inadequacies in the current mediation principles, causing weak links between procedural and substantive justice. I focus here on only one aspect of the paper – that the mediation principle of “norm education” should be further developed to enhance party autonomy and more adequately advance substantive justice.

 The undisputed link between procedural and substantive justice

The link between procedural justice and substantive justice has been indisputably established by socio-psychological research examining the participants’ subjective assessment about the fairness of the dispute resolution process. Welsh, drawing from the work of Lind, Tyler and others, highlighted how positive perceptions of procedural justice would likely lead to favorable perceptions of substantive fairness and more durable agreements.[3]  Four aspects of procedural justice have been found to consistently contribute to high perceptions of justice – voice;[4] a sense of being heard and understood,[5] being treated with dignity or courtesy;[6] and being given even-handed treatment.[7] Many of these aspects strikingly mirror current mediation principles, such as mediator impartiality. The foundational mediation principle of party autonomy advances many of the above aspects of procedural justice. Self-determination involves direct participation by the parties in communicating and negotiating; party control over the substantive norms that guide their decision-making; and party involvement in the creation of settlement options.[8] Evidently, these aspects of self-determination help to give disputants the opportunity to voice their views, feel heard by the mediator and the other party and be accorded respect and a sense of dignity.

However, moving beyond parties’ perceptions of fairness, there remains the question of whether the relevant norms are actually considered within the mediation process. [9]

Substantive justice in mediation – the complex interaction of norms

My full paper examines how substantive justice is achieved through the complex interaction of a variety of norms within mediation. Some of these norms take the form of broad principles such as equity, equality and need. Other norms comprise individual preferences and values, or shared standards of a community to which the disputant belongs. Legal standards are the most common norms alluded to, given the dominance of the courts in publicly establishing norms for the society.[10] There are evidently very diverse sources of norms at play within each mediation, and not all the competing norms are given final recognition in the mediation outcome. According to the philosophy of party empowerment in mediation, it appears as if norms are determined only by the parties. In reality, many of their subjective norms are influenced by external standards.[11]

Party autonomy is exercised within limits of external norms

It is argued that there is now growing consensus that party autonomy over the mediation outcome must be exercised within the limits of certain external norms. Waldman and Akin Ojelabi observed that many mediation codes caution against excessive mediator influence, but simultaneously call for the mediator to terminate the process if an unconscionable or illegal agreement appears likely. They argue that these provisions implicitly recognise that mediation agreements must meet a minimal threshold of justice.[12]

The global sentiment encapsulated in mediation ethical codes indeed points overwhelmingly to the presence of overarching norms that limit party acceptability. The Singapore Standards oblige the mediator to withdraw from the mediation if the mediation has assumed “an unconscionable or illegal character” or is likely to result in a settlement “against public policy or of an illegal nature”.[13] This is clear endorsement of mediation taking place within the limit of public norms. The Australian Standards allude to such limits by imposing the duty to terminate when a participant is misusing the mediation, not engaging in the mediation in good faith or the participant’s safety is at risk.[14] Singapore’s Mediation Act allows a mediated settlement agreement to be recorded as a court order, except when the agreement contravenes public policy; is not capable of being enforced as an order of court; or is not in the best interest of a child.[15] Additionally, UNCITRAL’s current draft provisions for enforcement of mediated settlements do not allow enforceability where the agreement is “null and void, inoperative or incapable of being performed under the law to which parties have subjected it to”, and when enforcement would be “contrary to public policy”.[16]

A proposed mediation principle of “norm education”

In relation to critical, well-established norms that are contained in codes or are essential in certain types of mediation, the parties’ autonomy is clearly circumscribed by external norms. However, these norms may not be given effect to if mediation is characterised by adherence merely to the parties’ values. What if there are well-established norms that the parties have yet to consider? Or what if the parties’ discussions are veering close to a result that cannot be enforced, or an agreement that may infringe legal principles? In such circumstances, there is surely good reason for the mediator to educate the parties on norms.

However, there is yet to be a well-established mediation principle of “norm education”. The current mediation standards in Australia and Singapore allow the mediator to terminate the mediation if there is bad faith or misuse of the mediation,[17] or when it is likely to result in a settlement that is against public policy or is illegal.[18] The closest principle to norm education is “informed consent” in the Australian Standards, which suggests that the mediator should, as far as possible, attempt to ensure that disputants have access to sources of advice and information.[19] The principle of informed consent is, however, severely limited when it is not feasible for the disputants to obtain independent legal advice.

It is argued that there is room to allow the mediator to educate the parties on such norms where they are unaware of them, instead of only having the drastic option of withdrawing from the mediation. After all, such practices are in reality taking place in mediation practice. Waldman wrote about the norm-educating model used commonly in divorce mediations, wrongful termination and other court-referred cases mediated “in the thick shadow of the law”. She contends that the consideration of social norms in this model helps “enhance autonomy by enabling parties to make the most informed decisions possible”.[20]. It is therefore suggested that the mediation community consider the principle of norm education in relation to critical norms encapsulated in codes and legislation. Such a principle would be invaluable in advancing substantive justice. Continue reading

Move away from the building: What is the role of ADR in the online court?

This blog post written by Dr Sue Prince, University of Exeter is an abridged version of paper delivered at the ADR Research Network Roundtable held from 4-5 December 2017 in Dunedin, New Zealand.

The court as an imposing building exists as a symbol of the ideal of justice: the Central Criminal Court at the Old Bailey in London has Lady Justice standing on the top of its dome, demonstrating the vital importance of the rule of law. Yet the symbolism of the local court as a fixture of the community no longer holds true. Certainly, in the civil courts there are many unresolved problems with the numbers of litigants-in-person who cannot afford legal support. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave rise to so many litigants-in-person that judges had to reconsider their approaches and become more inquisitorial in approach and less adversarial.

Central London County Court

The County Courts Act 1846, which established the county courts, came into force with the idea that courts should be cheaper and more accessible. In 1847, following the introduction of the statute, there were 491 courts in England and Wales. Now, 170 years later, the estate has diminished to 173 county court buildings.   Civil courts are no longer so easily accessible and rarely occupy a place centrally in the community as they did in the past. Yet, the number of cases going to trial has also diminished and the number of alternative dispute resolution processes has increased: ombudsman and unregulated providers. As processes change so does their role. The building is no longer physically accessible but nor is it financially accessible to most, due to the lack of legal aid and increases in court fees that have been introduced by successive government policies. The system is no longer fit for purpose.

So, is it possible then to design an alternative system for small, low value cases using online tools that might operate to support court users through the legal system in a way that the system in operation in the court building never could? This was a question asked of a group of us who formed the Civil Justice Council Online Dispute Resolution Advisory Group a couple of years ago. We recommended the creation of an online court with online judges and online facilitators or mediators as well as an initial stage offering online information and help.    Such changes were supported by the Master of the Rolls, John Dyson LJ, who described our report as a catalyst for far-reaching reforms. As a potential solution to similar problems described above, online courts are being contemplated in various forms across the world.

In British Columbia, Canada, for example, the new online small claims process has replaced the court building with an end-to-end process which provides legal advice and direction, mediation and the potential for an online judge. In the UK, plans are now afoot for cases under £25,000 to be referred to an ‘Online Solutions Court’ which will integrate three distinct stages of justice.   In our ODR Report, we said that ODR was not science fiction. It proved that this was the case because the UK Government committed £700M to fully digitalise the courts, and to reform the legal system. Currently, HMCTS in the UK is embarking on the most ambitious programme of reform which embodies the ‘Online Solutions Court’ and other agile, digital by default reforms, currently in beta testing phase but soon to be launched across England and Wales.

Online dispute resolution has many of the qualities offered by ADR. Designers of current ODR systems tend to focus on the needs of the user and to facilitate these needs through the creation of pathways along which a litigant will travel, answering questions to personalise the experience, and to help specify the sort of actions required to meet the challenges of the legal system. As with ADR, ODR attempts to facilitate and empower, albeit not through face-to-face processes.   ODR has the potential to offer a different service: a series of pathways and gateways through the legal system, with the opportunity for the user to ask questions, or to have terms defined as they arise. In England and Wales, the proposal is for a facilitator to attempt to mediate the dispute before it goes before an online judge. Yet, the system itself exists as a form of ADR, because the technology operates as a form of ‘fourth estate’ to enable resolution where possible, or provide information along the way.   The very idea of introducing ODR precipitates a debate on many aspects of what the online court looks like; how it meets the demands of the rule of law, and what needs to change to give better access to justice. The role of public legal education and assistance become vitally important in a system which is not designed around the assumption of legal representation. The architecture of dispute resolution is not impeded by the introduction of ODR but instead it offers an opportunity to re-examine the court process and to see that what happens outside the building is as important, if not more important, as in the hearing room itself.

Keeping up with change: No Alternative to teaching ADR in clinic. An Australian perspective

This post was written by Jacqueline Weinberg from Monash University and is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017

Jackie Weinberg

Over the last 30 years alternative dispute resolution (ADR) has become more prominent in Australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. There is a shift away from adjudicative or determinative processes and towards more cooperative processes for dispute resolution.[1] The rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few in society.[2] The incapacity of these structures to resolve conflict, although they may determine rights, has been a relevant factor in the development of alternative options for dispute resolution.[3] Clearly, Australian legal practice is undergoing change. As legal educators, we need to ask: how should we be preparing law students entering practice for these changes? How can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution?

Richard Susskind in his book Tomorrow’s Lawyers [4] states that law schools cannot ignore future practice and law students should be provided with options, to study current and future trends in legal services and to learn some key 21st century legal skills that will support future law jobs.[5] ADR is a growing area of legal practice resulting in changes in models of client service and advocacy.[6] The issue then is how best to prepare the young lawyers for these changes. According to Sourdin, legal academics (and law schools) play an essential role in the training and education of lawyers and in interpreting these changes.[7] Sourdin sees legal education and training as ‘a continuum along which the skills and values of the competent lawyer are developed.’[8] There is a need to explore whether clinical legal education is taking these changes on board and moving away from teaching traditional adversarial models towards teaching a more ADR skills based curriculum. There is a need to look more closely at whether the ‘interconnect’ between the teaching and practice of ADR is in fact happening in clinics; if so, how this teaching is happening; including an examination of clinical curricula. If it is established that this teaching is taking place, then research needs to be done to determine in what ways this teaching can be enhanced in the clinical context and whether it is contributing to students’ knowledge of non-adversarial approaches towards conflict resolution.

According to Sourdin, ‘changes to the law school education environment supporting ADR in a realistic, rather than marginal way should mean that there is a greater chance that law school education in Australia into the future will be both relevant and supportive of respectful dispute resolution in its traditional and alternative forms.’[9] Clinical scholars view clinical legal education as a method of learning and teaching law.[10] It includes teaching about skills as well as the broader legal system.[11] ADR has become a part of the legal system both in Australia and internationally. If clinical legal education is to teach students about the skills needed for practice then it follows that a focus on the teaching and learning of ADR skills is needed. Extensive research has shown that ADR has an important role in legal education. It places emphasis on a non-adversarial process of resolving conflict and provides lawyers with the knowledge and skills to engage with legal problems in a holistic manner. Law students engaged in clinical practice who understand and adopt these processes will become lawyers who focus first on client’s needs and interests when problem solving and resort to adversarial practice only when necessary. In this way, clinical legal education can ensure that law students are well prepared for their roles as ‘new lawyers’ in 21st century legal practice.

My PhD research is focusing on whether ADR is being sufficiently taught to students in existing clinical legal education courses in Australia. My research explores whether and to what extent ADR is integrated into clinical legal education across Australia and how the teaching of ADR within clinics might be strengthened. Although this research is primarily undertaken at Australian clinics, it will assist with learning and teaching strategies in relation to clinical legal education as a whole and has relevance for all clinical legal education contexts. This research will assist with curriculum review in relation to clinical legal education in law schools.


[1] Tania Sourdin, Alternative Dispute Resolution  (LBC Thomsons, 5th ed, 2015) 13

[2] Ibid 12

[3] Ibid.

[4] Susskind R, Tomorrow’s Lawyers, 2013, Oxford University Press 135

[5] Ibid.

[6] Macfarlane, J The New Lawyer: How Settlement is Transforming the Practice of Law

(UBC Vancouver 2008 Macfarlane, 243

[7] Sourdin, above 1 5

[8] Ibid.

[9] Ibid.

[10] Evans, A, Cody, A, Copeland A, Giddings, J, Noone M.A & Rice S, Best Practices

Australian Clinical Legal Education Office of Teaching and Learning 2013 40

[11] Ibid 41

The central role of party self-determination in mediation ethics

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.