Deception in Negotiations: Are lawyers deceptive? Do they lack ethical guidance?

This blog post is from Hope Cooper.

Hello, I am studying a Bachelor of Laws at the University of Tasmania having just completed my penultimate year. I currently study part time and work full time as a cadet and the Department of Treasury and Finance Tasmania. Working full time in this position as I study law has provided me with great insight into traditional dispute resolution commonly used in the legal profession, as well as the importance and differences of dispute resolution in not only the public sector but in practice within the workforce in general. 
Over the next coming years, I look forward to exploring my options further in the public service, as well as taking up opportunities in the private sector where I hope to develop my skills across the dispute resolution board in hope to become an effective and successful advocate. Thank you for taking an interest in my post and please feel free to contact me if you wish.

Hope can be contacted at Linked In

shutterstock_1007250361.jpg

It is no secret that deception as a tactic is commonly used by lawyers within negotiations. Is this because some lawyers can’t help but lie? Do they disregard ethical principles?  Is winning such a priority for these lawyers that professional and personal ethics are mute in comparison? 
This is a commonly held stereotype of lawyers. Many lawyers even agree with these stereotypes, so much so that lawyers enter negotiations expecting falsehoods throughout the discussions.

In fact, a study in 2005 demonstrated that where negotiators were given incentives to lie, but the option to tell the truth, only two per cent of negotiators chose to tell the truth. The remainder of negotiators either chose to conceal information or actively lied.

Negotiators don’t just deceive for the sake of being deceitful. It’s proven that deceptive tactics are likely to achieve better outcomes. Deception doesn’t necessarily involve blatant lying either. For example, it could include strategically revealing facts, bluffing, avoiding questions or overstating one’s position (all tactics quite stock and standard in the legal profession).  

Since all lawyers want the best outcome possible, lawyers who may be ethically against deception may be tempted to step outside of their boundaries to compete. Lawyers are then left in a battle against opposing lawyers where they themselves need to not only deceive their opposing party in order to get the best outcome, but be a better deceiver than their opposing party.

So is that it? Lawyers like to win, in fact, it is their job to get their client the best outcome. Does that mean lawyers are doomed to be deceptive until the end of time? Frankly, no. 

Despite the above, it is my argument that lawyers have been let down by lack of clarity about how to balance these dilemmas and their ethical obligations. Negotiation as its own process lacks guidance on ethical conduct. In fact studies have suggested that many lawyers deceive because they are confused as to what constitutes unethical conduct within negotiations. 

Yes, whilst it is true that Australia has professional conduct rules which umbrellas over negotiation, it is clear that this alone is ineffective in clarifying what is ethical within negotiations (because deception is still occurring, right?). 

Deception may always be a tactic used within negotiations. However, the legal profession needs better ground rules and ethical guidelines regarding negotiation in Australia. Until then, lawyers will continue to be left to navigate the complex relationship of ethics and deception without consistent guidance.

Vulnerable Users of Court-Connected Mediation: Challenges and Opportunities for Access to Justice

Louis Benjamin has just finished his Bachelor of Arts and Law. He is interested in the role of the law in both reproducing and remedying inequality and social inequity. At the end of his penultimate year of study, he interned for a Tasmanian practitioner involved in a court-connected mediation. The client had a mild learning difficulty and severe psychological trauma. Observing this process triggered an interest in court connected mediation and vulnerable individuals. Louis became interested in the relationship between the roles of lawyers and mediators in achieving individual access to justice on one hand, and the role of case management and the Court’s objective of structural access to justice on the other hand. In this vlog post Louis summarises his research essay on the topic, in which he concludes that there is room within the structure to ensure that vulnerable individuals achieve better equity. Louis makes the case that it is incumbent on practitioners to extend their diligence and tailor their representation to the client’s vulnerability, and that there is scope for targeted professional development and training to that end.

Louis can be contacted at Linked In

Image: https://www.newbreedmarketing.com/blog/why-marketers-should-care-about-operational-efficiency

Artificial Intelligence and Mediation

Mehak Bagga is a final year business – law student at the University of Tasmania, graduating in December 2020. Mehak researched the emergence of artificial intelligence in alternative dispute resolution. Her interest in the area stems from her study of the benefits of emerging technology in the legal domain. She presents her research from an access to justice point of view and critiques the notion that artificial intelligence improves such access. Mehak is interested in a career in commercial litigation, including exploring opportunities in alternative dispute resolution.

Mehak can be contacted at LinkedIn or by email mehakbagga27@gmail.com

Providing Culturally Sensitive and Appropriate FDR for CALD Families

My name is Mollie and I am an Arts/Law Student majoring in sociology. I chose to participate in the Dispute Resolution unit because I was interested in learning more about ADR techniques and the pros and cons of an alternative to the court system. I chose to focus my blog on CALD families because I wanted to understand how a minority group within Australia experiences FDR and what can be done to improve access and experience.

Felix Astoram https://www.freeimages.com/photo/paper-family-1313628

People from culturally and linguistically diverse(‘CALD’)  backgrounds are not accessing family dispute resolution(‘FDR’) services at a rate proportionate to their presence in Australia.[1] The research suggests that CALD communities are concerned that FDR services would not be culturally appropriate or sensitive to their disputes. My paper explores the challenges and opportunities for Family Dispute Resolution Practitioners (‘FDRP’) in ensuring that FDR is culturally sensitive and appropriate.

Throughout my research I found that FDRP’s could benefit from a uniform approach to culturally sensitive FDR directed from the Government.[2] I also found that FDRP’s could benefit from engaging in a reflexive practice. This would help them to continually challenge review and assess how they are providing FDR services to CALD families. [3]

Finally, I found that gender roles were a common reason why CALD communities felt that FDRP’s would not be culturally appropriate or sensitive.[4] Rather for many CALD communities, respected older family members of community leaders are often approached first to help resolve family disputes.[5] Even to the extent that they sometimes engage in helping divide up assets. I found that there was some anecdotal support for including these older respected family members or community leaders in the FDR process.


[1] Susan Armstrong, Enhancing access to family dispute resolution for families from culturally and linguistically diverse backgrounds (AFRC Briefing No.18 November 2010) 23;

[2] M. Dimopoulos, ‘Mediating difference: Utilising cross-cultural training skills to work more effectively with diverse groups’ in Toom Fisher (ed), Fourth national mediation conference proceedings (Melbourne: School of Law and Legal Studies, La Trobe University 1998); Australian Law Reform Commission, Family violence – A National Legal Response (ALRC Report No 14, November 2010).

[3] Susan Armstrong, ‘Developing Culturally Reflexive Practice in Family Dispute Resolution’ (2012) 22 Australasian Dispute Resolution Journal 30, 38-40.

[4] Lola Akin Ojelabi, Tom Fisher, Helen Cleak, Alikka Vernon and Nikola Balvin, ‘A cultural assessment of family dispute resolution: findings about access, retention and outcomes from the evaluation of a family relationship centre’ (2012) 18(1) Journal of Family Studies 76, 79.

[5] Ghena Krayem and Farrah Ahmed, Islamic Community Processes In Australia: An Introduction.

International Commercial Arbitration in Indonesia and Australia

Sharifah Syed-Rohan is a final year Bachelor of Arts/Bachelor of Laws (Hons)/Bachelor of Philosophy student at the University of Tasmania. Having majored in Bahasa Indonesia as part of her Arts degree, Sharifah travelled to Indonesia numerous times as part of both her Arts and Law degrees and is passionate about fostering the cross-border relations between Australia and Indonesia. After completing a summer clerkship at KarimSyah Law Firm, Jakarta in 2020, Sharifah observed international commercial arbitration in Indonesia, and wondered whether this system could adopt aspects of the Australian system to ensure just outcomes for its users. In 2021 Sharifah will be moving to Canberra to commence work for the ACT Public Service and hopes to continue building her knowledge of the Indonesian language, culture and law.

Sharifah’s Twitter handle is @SharifahZaliah

Call for Papers: 9th ADR Research Network Round Table and Civil Justice Research Conference (1-2 February 2021)

We are delighted to announce our Call for Papers for the 9th Australasian Dispute Resolution Research Network Roundtable, to be held at the University of Newcastle 1st and 2nd February 2021.   The conference will be held both face to face and on zoom.

This year, we will be holding the conference in conjunction with the Civil Justice Conference, with participants able to chose the format for their presentation.

Please share this call for papers with any researchers who may be interested.  We welcome participants from all career stages, and from anywhere in the world.    

Proposals are due by 17 December 2020.

For further information, please contact:

2020 Network President: John Woodward via adrresearchnetwork@gmail.com

Full details here:

Undergraduate dispute resolution research

Many of us teach university students about dispute resolution and encourage them to engage in their own research. In 2018, Associate Professor Becky Batagol of Monash University invited her students in the Non-Adversarial Justice unit at Monash University to prepare blog posts, and she published some on this ADRRN blog, like this one. I was inspired by Becky’s use of blogs as an assessment task. When I taught a Dispute Resolution elective for students at the University of Tasmania in semester 1, 2020, I asked my students to present their research projects in both a research essay and blog or vlog format. This month I will be posting some of those blogs or vlogs.

Noogz, CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons

To provide some context, and in the spirit of sharing dispute resolution teaching ideas, I will explain the dispute resolution research assessment task in more detail in this post.

Task Description

You will conduct your own preliminary research to identify a research topic that responds to one of the following questions:

1. Identify an issue for lawyers related to dispute resolution. What are the challenges and opportunities for the legal profession?

2. Identify a specific context in which dispute resolution processes are used. What are the challenges and opportunities for access to justice for users of that process?

You need to choose a specific issue or context around which to frame your research assignment. There is considerable scope for the exact topic that you choose, so long as you make sure your work answers the question.

You have been instructed to explore “challenges and opportunities” so that you practise the analytical skill of considering both positive and negative consequences or factors arising from the issue or context.

I assigned two questions, because I like to encourage my Bachelor of Laws students to focus upon issues for lawyers in dispute resolution, but not all of my students were studying a LLB degree. All students were free to choose to answer either question. The instructions continued:

There are three items that you will produce from your research assignment:

1. Topic proposal – a template will be provided (1-2 pages).

2. Research Essay of 3000 words maximum.

3. Either a blog post of 300-500 words or a 3 minute vlog post using only one visual image. This item should present your “elevator pitch” of your research assignment to a general audience.

Feedback will be provided about the topic proposal.

Both the research essay and blog or vlog post will be graded, and the grade standard will be assessed against both items combined. Criteria are weighted equally.

Marking Criteria

 CriterionMeasures Intended Learning Outcome:
Criterion 1Identify, explain and justify the topic1 Identify, explain, justify and critique the nature and theories of the various dispute resolution processes.
Criterion 2Critically analyse the issue and answer the question4 Critically analyse and problem-solve issues arising in non-judicial dispute resolution processes.
Criterion 3Communicate effectively5 Communicate and collaborate effectively.

Choice of Research Topic

Allowing undergraduate students to choose their own research topic ensures that they are able to research and write about something that drew them to choose the dispute resolution elective. My unit content introduces a range of issues, techniques, styles and contexts for dispute resolution – I think of it as an introductory smorgasbord. My aim is to help students identify their existing understanding and to challenge themselves with new ideas or unfamiliar approaches. The research assignment provides an opportunity to engage deeply with a particular issue, to find relevant literature and test students’ thinking. My hope is that some students will enjoy the research project so much that they will contemplate dispute resolution research as a career option.

One of the challenges in a self-chosen research topic is that some students feel stifled by lack of existing knowledge or overwhelm, and have some trouble identifying a workable research topic. These students were encouraged to meet with me to have a conversation. Typically, the first question that I asked them was “why did you enrol in this unit?”, followed by “what were you hoping you would learn about?”. Through conversation we could develop ideas and I could suggest that they start with some preliminary reading about a general area, to help them to find the specific topic that they wanted to write about.

Another benefit of a “choose your own topic” style assignment is that the chances that I would be exposed to new and exciting ideas and perspectives on dispute resolution was increased. Of course, not everyone takes a novel and original approach in such a unit, but not having to read 50 takes on the same narrowly expressed topic was a much more pleasurable assessing experience overall!

Topic Proposals

The 1-2 page topic proposals were due in Week 4 of a 13 week semester, but the due date was amended to “when you can” due to the COVID19 pandemic. The template invited students to identify themselves, and then to provide the following information:

  • Title of Paper
  • Issue to be Explored
  • Proposed Scope and Structure
  • Relevant Resources Identified So Far

This hurdle task provided an incentive to start planning the research assignment early in semester, and gave me an opportunity to give tailored feedback to each student about the appropriateness of the topic that they had identified, whether their scope and structure was feasible for a piece of only 3000 words length, and also to provide feedback and suggestions about the resources that they had identified at that early stage.

Research Essays

The essays are a form of assessment that students are familiar with, and a standard way of building and assessing academic writing skills and research quality.

Blogs

Blog writing hones our ability as researchers to present our ideas to a general audience in an accessible and succinct way. It has relevance to graduate roles where presenting short form summaries is often required in briefings, information sessions, websites and presentations.

The instructions for students who chose to prepare a blog post were as follows:

For an excellent introduction to academic blogging see Assoc Prof Becky Batagol’s post on the Australasian Dispute Resolution Research Network (ADRRN)’s blog Blogging Basics for Beginners: Or, how to write a really good academic blog post. The best blogs submitted in this unit may be suitable for a guest post on the ADRRN’s wordpress site.

One image may be used to accompany the words in your blog post. Ensure that you attribute the copyright owner and have permission to use the image.

Vlogs

To give students an opportunity to make an oral presentation of their work, I also offered the option of a vlog styled on the 3 minute thesis competition for higher degree research candidates. The instructions for students who chose to prepare a vlog post were as follows:

The 3 minute single image video vlog option is modelled on the 3 minute thesis competition. See the competitor guide for guidance about preparing your “pitch”.

I fully recommend vlogs as refreshing relief in the marking season.

I hope you enjoy the posts from some of my students later this month.

Mediation and DR research in 2020 – Part 3.

November 2020 (c) A. Boyle

Collaborative and innovative research approaches

In this series of blogs, there has been acknowledgement of the gaps in what is known about mediation, and some ideas for involving end-users and stakeholders in research projects.  This final blog in the series considers innovative and cost-effective approaches and methods, in particular for empirical studies of what happens during, say, mediation.   

In all research fields, it is important to have a theoretical framework whose philosophical structure supports the explanation and interpretation of data.  One recently devised framework with the potential to support mediation and DR research is agential realism.  Although, at first glance, a complex set of concepts, it proposes a completely different approach to the complexities of social interaction and human behaviour, and is being used increasingly to investigate them – and providing valuable and unexpected results.

Agential realism is not concerned with causation (ie cause and effect) or concepts of right and wrong.  It focuses on what “is”, accepts that everything is in a perpetual state of “intra-action” with everything else, and that this constant intra-action defines existence.  Everything (including space and time) is constantly and cooperatively exchanging with and influencing everything else.  Thus, researchers cannot be objective because everything within a research project is necessarily influencing everything else.  The research methods and instruments are as much a part of the study as are the participants and the researchers.

This theoretical approach cannot focus on single points of influence (ie power) nor can it consider isolated points of view or perceptions – it focuses on the entangled, inseparable engagements of everything with everything, accepting all viewpoints and intra-actions, and observing how they build on, with and through each other.  This has clear application in mediation research where it is highly likely that what happens during mediation is influenced in various ways by all participants as well as by additional influences brought to the mediation by each participant.

The approach of agential realism accommodates collaborative research approaches such as participatory action research and participatory ethnography.  The participatory approach emphasises the importance of social accountability to end-users (such as practitioners and disputants) and other stakeholders (such as program administrators and policy-makers), as well as ensuring transparency and accessibility in research reporting.

Participatory action research

In participatory action research, study participants are co-researchers and contribute to defining the purpose of a study, its design, its methods, the interpretation of data and the reporting of the study.  For example, if a study were seeking to explore the role and influence of repeat players in, say, mediation, the research team could include people who are themselves repeat players and could provide insights into their role.

Participatory ethnography

Ethnographic approaches have long been applied in anthropological and sociological research and are typified by the researcher being an embedded observer of a social setting or a social group.  A recent, and illuminating, ethnographic study of what happens during mediation involved the researcher being an embedded observer of commercial mediations in London, during a twelve-month period. 

In participatory ethnography, the researcher does not seek to be an “objective” observer.  Rather, the researcher becomes part of the community being observed and participates in the complete social context and its setting, becoming part of its norms, power differentials and complex social dynamics.  Ultimately, the participating community, or social group, contributes to the whole research project (ie purpose, design, methods, interpretation and reporting). 

Ethnography does not have to be limited to a single long-term investigation – studies can be short and targeted, and can include multiple sites or groups for comparative studies.  Online interactions such as blogs and social media lend themselves to ethnographic research – there is now software designed specifically to assist textual analysis of so-called micro-posts such as Twitter – analysis of blogs and microposts has been used in other fields to track research trends and developments.  Artificial intelligence can also be harnessed to assist in ethnographic observations and in analysis of verbal and nonverbal communications.

Textual and attitudinal analysis

A separate area of research is the examination and analysis of the language used to express final terms of agreement, with researchers seeking to explore, for example, how the words and phrases of the terms of agreement reflect various levels of “self-determination”.  For example, one such analysis suggested that a formalised and legalistic agreement style might reflect reduced disputant participation in the writing of the agreement.  Analysis of agreements might provide insight into different and unexpected aspects of influence at the conclusion of a mediation.  When such analysis includes different contexts, it might also provide useful comparative data.

Any of these approaches could be applied to explore attitudes to conflict across different cultural and socio-economic settings, in itself providing important baseline information likely to contribute to the ongoing development of affective approaches to managing and resolving conflicts and disputes. 

In summary, to gain more insight into what happens during mediation, and to fill the knowledge gaps about how and why the process works, it is important to develop collaborative and inclusive approaches that include end-users and stakeholders.  There is also much to learn from developments in other research fields, and from experimenting with innovative ideas and methods.

References

Adrian, L., and S. Mykland, ‘Unwrapping Court-Connected Mediation Agreements’ in A. Nylund, A. K. Ervasti, and L. Adrian (eds), Nordic Mediation Research (Springer Open, 2018).  

Barad, K., Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Duke University Press, USA, 2007).

De Girolamo, D., The Fugitive Identity of Mediation: Negotiation, Shift Changes and Allusionary Action (Routledge, UK, 2013).

Mediation and DR research in 2020 – Part 2

November 2020 (c) Alysoun Boyle

Who can do research?

Anyone can be a researcher, as shown by the diverse work undertaken by the Australian Citizen Science Association (<https://citizenscience.org.au/>) where current projects include a selection of wildlife and environmental censuses, ongoing assessment of bushfire recovery in Queensland and NSW, and responses to restrictions associated with the spread of the coronavirus (Covid-19) (see <https://citizenscience.org.au/ala-project-finder/>).

While citizen science does provide opportunities for the field of mediation and DR research, so, too, do collaborative research networks.

Collaborative research networks

While it is prudent to have a research team that includes trained and experienced researchers from more than one discipline, team members can also be from quite diverse personal and professional backgrounds, increasing the scope of the team’s work, and contributing to credibility of any project.  One useful step in this area could be the development of “collaborative research networks”.  The ADRRN could be seen as a collaborative research network and the Law and Society Association (USA) uses them to facilitate researcher collaboration. 

Where stakeholders become involved in collaborative research networks, they become involved in what we, as researchers, are doing, and they contribute to what our research achieves.  Collaborative research networks could be more diverse if they were to include researcher members as well as interested people from other professions such as lawyers; policy-makers; mediation/DR program and service administrators; mediators and practitioners; and, of course, disputants (or potential disputants).  Such diverse networks would create strong relationships between researcher and end-users, providing a rich source of information for research proposals, research design, and research methods (in particular for empirical studies).

The perspectives of mediation and DR “consumers” (ie disputants and potential disputants) are an important (and missing) component of research design.  Their input could be accessed through the inclusion of community members (or representatives) from a variety of social and cultural settings.  An example is the routine inclusion of consumer health representatives on committees overseeing the provision of health services in Australian States and Territories, as well as in many other countries.

Collaborative research networks can be established to oversee specific projects; however, they can also be ongoing discussion and information forums.

Collaborative studies of “effectiveness”

Collaborative research networks are likely to be a valuable research “tool” for overcoming some of the constraints mentioned in last week’s Blog.  For example, they lend themselves to exploration of key effectiveness measures in mediation, including measures of participant satisfaction.  A network could explore how mediation effectiveness, and participant satisfaction, are defined and measured in various settings (eg services in association with courts/tribunals; with community-based services; with business and construction services; with family services; with ombudsmen; with workplace and employment disputes; with environmental disputes; and the various approaches of different social and cultural groups).

In discussions among its members, a collaborative research network could investigate the influence that differing interpretations of “effectiveness” might have on the nature of the mediation process, the role of the mediator, and the participation of the disputants.  In turn, this could lead to the emergence of a common understanding of effectiveness that accommodates a range of contextual details and facilitates comparative studies of effectiveness across different mediation settings.

Collaborative studies of models and styles of mediation practice

Collaborative research networks could provide a forum for the exploration of models and styles of mediation practice.  Grounded theory provides a useful basis for examining some key issues in mediation.  In summary, grounded theory is a research approach in which the researcher observes and collects information (avoiding the influence of their own pre-conceptions and views) from which a subsequent theory is developed, with further research examining the feasibility of that theory.  Using a grounded theory approach, a network could discuss relevant issues among its members such as: ascertaining the key actions and techniques that mediators consider are associated with each recognised model or style; clarifying with program and service administrators the influence of policy directives on preferred models and styles; and exploring the influence of setting, context and mediation participants on a mediator’s choice of model or style.

Collaborative access to mediation

One constraint on mediation research not included in last week’s Blog is the effect of confidentiality on researcher access to mediation.  Although the National Mediator Accreditation System does allow access for research purposes, many programs and services do not.  Interpretations of confidentiality can prevent access to baseline data, to observations of mediation, and to surveys of mediation participants, creating an obvious and significant gap in what can be known about the practice of mediation. 

Where members of a collaborative research network include lawyers, program and service administrators, mediators, and disputants, those members could explore approaches for enabling research access that do not compromise the integrity of the mediation process, or of mediation programs and services.

Collaborative ethics

Another constraint not included in last week’s Blog is the restrictive effect of ethics approvals for studies of mediation.  The effects emerge from the complex process of seeking ethics approval, as well as from the limitations imposed by approval conditions.  Were ethics bodies to be included in a collaborative research network, it might be possible to develop ethical guidelines for mediation research that maximise researcher access to relevant information while protecting the rights of mediation participants. 

One research approach might be for research project teams to include mediation participants and representatives of ethics bodies who participate throughout the whole research undertaking rather than ethics bodies’ involvement and input being limited to a single approval issued before the research commences.

Benefits of collaborative networks

There are clear benefits to a research approach based on collaboration among diverse participants, including access to a broad range of diverse perspectives, increased richness in research design, and the limited costs of having such networks.  An indirect benefit relates to research support.  Where sector stakeholders understand the research process, they are likely to be more supportive of it.  Collaborative research networks have the capacity to involve stakeholders in research projects and expose them to important concepts and ideas about mediation and DR, and, in particular, to the conceptual frameworks of research, and of qualitative empirical research in particular.  Such participatory exposure might enable a shift in research focus in this field – away from quantitative analysis of settlement rates confirming that mediation “works”, and towards qualitative approaches designed to provide more nuanced information about how and why the process works.  Such a shift could be a major contribution to the refinement of public policy in this area. 

Such a shift in research focus might also contribute answers to the perennial question of “what works” in mediation practice.

Mediation research in 2020

Photo copyright 2020 A. Boyle

This month the ADRRN blog focuses on research and is seeking your input about interesting and innovative approaches to studies of mediation.  This post sets the research context by summarising some of the key knowledge gaps and research constraints. Although the blog will focus on mediation, a process that has enjoyed a relatively long research focus, it is likely that there are similar knowledge gaps in relation to other DR processes, and that investigations of them have similar constraints.

Your ideas

Post descriptions of your research projects that have incorporated interesting or innovative approaches.  What was innovative?  How did that affect the whole project and its results?

Knowledge gaps – mediation

Last year, attendees at the National Mediation Conference in Canberra responded to a survey seeking ideas for future mediation research.  Most participants were practicing mediators and the most frequently submitted idea was “to find out what works”: mediators wanted to know more about the mediator skills and techniques that lead to durable agreements.  They also wanted to know which mediator style, or model of practice, is the most effective.  Both of these knowledge gaps are widely recognised.  

Other key knowledge gaps about mediation include a lack of information about mediation outside courts and tribunals and beyond institutional programs and services – in other words, a lack of information about private mediation.  There is also limited information about specialist mediation services such as those for addressing disputes arising from natural disasters or from resource management or from artistic misappropriation.

Very little is known about influences on the mediation process itself and on the role of the mediator, and how those influences might affect what happens during the mediation.  Such influences are likely to include the context and setting of the mediation, the experience and status of the disputants and their advisers, and the experience and status of the mediator.  In addition, despite widespread assumptions about mediator skills, it is not known what mediators actually do (ie their actions and microskills) and what might influence their choice of what to do.  

There are many knowledge gaps in models or styles of mediation practice, such as which mediator actions are typical of each model; how settings and contexts influence the mediator’s choice of model or style; and, among mediators who do apply recognised models of practice, how consistently those models are applied. 

A significant knowledge gap exists about people’s attitudes to conflict and to its management, including responses to “mediation” in Indigenous and other diverse cultural and socio-economic settings.

In some ways, the gaps in what is known about mediation are likely to limit investigations of the process’s effectiveness.

Some constraints on traditional research

Research support and funding

One important constraint on mediation research is the limited funding and support it receives.  Future research innovations are likely to need to be very cost effective if they are to be supported.

Lack of conceptual clarity

It is widely acknowledged in the mediation literature that there is not a clear and consistent understanding of what is meant by the term “mediation”  In addition to the well-reported lack of definitional clarity about mediation, it is not always clear how much of the preliminary work is included when researchers investigate “mediation”; how much of the post-mediation period is included in terms of the delay before implementing an agreement; or how much of a longer time-lag is included that might inform an investigation of mediation’s long-term effectiveness.  Nor is there regular consideration of the duration of a mediation as a component of the process: for example, whether the concept of mediation can include a process that lasts a full day as well as a process that occurs during several sessions convened over separate days, as well as a process that lasts one hour.

There is not consistency or clarity about what constitutes a mediation outcome, what that outcome might contribute to establishing the “effectiveness” of the mediation, and whether a focus on outcomes detracts from consideration of the mediation process itself and what happens within it.  For example, outcomes may be limited to the achievement of an agreement and/or the terms of that agreement, or they might include the disputants’ levels of satisfaction (with the mediation process and/or the mediator and/or the outcomes), or they might include positive changes in the disputants’ communication with each other, or they might include positive changes in the disputants’ relationship with each other, or they might include the matter being removed from a court or tribunal list – or they might include any combination of these. 

Finally, there is not consistency in what constitutes a mediator’s style, or approach, or model of practice.  For example, many investigations of mediator style have been limited to checking that certain key stylistic indicators are reported to have occurred during the mediation, such as “Did the mediator facilitate conversation between the disputants?”  Answering “yes” to the question does not provide information about what the mediator did or about what happened; importantly, it does not provide information about how the researcher chose to interpret the meaning of “facilitate”. 

Representative diversity in research participants

Mediation confidentiality is often cited as a reason for limiting researcher access to the process, including to basic mediation data, and to mediation participants.  These limitations constrain researcher access to a broad sector of the community and prevent their views from informing what is known about mediation.

Researchers recognise that the people who participant in empirical studies tend to be selected from readily accessible sources, including structured mediation programs such as those associated with courts and tribunals.  In most studies, various parts of the population are not differentiated for the purposes of the study.  For example, there is very little differentiation of research data according to socio-economic status, or educational attainment, or sex, or age-groups. 

Data collection and measurement

An additional constraint concerns how key concepts (such as those mentioned above) are to be measured or whether they are even measurable.  For example, it is very difficult to devise a reliable measure for ascertaining levels of disputant satisfaction, or whether the disputants’ communication with each other has improved (either during the mediation or more durably).  There are many aspects of research design that are known to interfere with the reliable collection and measurement of data, including various types of inherent bias (on the part of the participants, the research setting, and the anticipated reporting of the research), and the influence of the researcher’s own experience and preferences.

Research approaches

Mediation research needs some innovative approaches, and over the next couple of weeks, this blog will consider this issue.

Resources

Three articles for further reading about innovative research approaches.  One looks generally at developments in empirical research in the behavioural sciences, and two report on the incorporation of psychometric modelling in surveys distributed in legal settings.

Druckman, D., and W. Donohue, ‘Innovations in Social Science Methodologies: An Overview’ (2020) 64(1) American Behavioral Scientist 3.

Pleasence, P., and N. Balmer, ‘Measuring the Accessibility and Equality of Civil Justice’ (2018) 10 Hague Journal on the Rule of Law 255.

— , ‘Development of a General Legal Confidence Scale: A First Implementation of the Rach Measurement Model in Empirical Legal Studies’ (2019) 16(1) Journal of Empirical Legal Studies 143.