Hybrids have arrived – hosted by the beautiful city of Vienna

Hybrid processes are not new to those of us who teach and write in the ADR space. We have all heard of arb-med and med-arb. Some of us have even heard of Baseball Arbitration, Night Baseball Arbitration and Medaloa.

Step into the practitioner’s world and the view is different.

Here the processes of mediation and arbitration remain distant strangers, practised and accredited separately. Few practitioners have dual qualifications and even those who do are rarely comfortable with the concept of offering a hybrid process.

The next generation of practitioners is being given the opportunity of seeing things differently via a new student mooting program.

The starting point is the Willem C. Vis International Commercial Arbitration Moot (Vis Moot) which has just reached its 24th anniversary.

This moot tests the oral and written prowess of students in dealing with a complex international commercial conflict. This long established arbitration competition now has a sibling.

town hall vienna

View of the historic Town Hall in Vienna – site of the competition cocktail party. Photo Copyright Rosemary Howell

Established three years ago, the IBA-VIAC Consensual Dispute Resolution Competition (CDRC) commences in Vienna on July 10th at the beautiful University of Economics and Business (Wu Wien). Students participate either as negotiators or as mediators with separate scoring and evaluation for both roles.

The competition follows the Vis Moot and draws on the same case study (amended to remove all the procedural challenges of the arbitration). The competition opens with the news that the arbitration has been adjourned for a little over a week to give the parties the opportunity to see if they can resolve the conflict by mediation.

The competition gives an important signal that extends far beyond the students who are participating. The working committee drafting the problems has required consultation between arbitrators and mediators and encouraged a collaboration that is not often seen. Expert assessors too are being given experience in both the arbitration and mediation arenas.

The significant outcome is that not only is the next generation of practitioners being given the chance to consider hybrids up close, but practitioners are also joining the dots to draw together practices that once were very separate.

A great outcome.

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“Safe and supported”: Developing a model for mediating family violence cases beyond family law

Dr Becky Batagol, Monash University & Professor Rachael Field, Bond University

Email contacts: Becky.Batagol@monash.edu; rfield@bond.edu.au

This post comes from work we are doing together focusing on how to appropriately identify and respond to cases of family violence in mediation practice outside the area of family law.

This is our first time working together, after many years of knowing each other (we met at the National Mediation Conference in 2000). As two feminists, we are convinced that there are ways to make dispute resolution processes safer and more supportive for the women who must use them who are also victims of family violence. The project brings together Rachael’s expertise in crafting and evaluating a model for mediating family violence cases in family law through the Coordinated Family Dispute Resolution program and Becky’s expertise in family dispute resolution and follows from her work as a consultant to the Royal Commission into Family Violence in 2015. (The views here are the views of the authors and not of their employers or organisations they have worked with previously).

Our work in this area is developing, and our thinking here is not final. We welcome your email or comment feedback. This post was developed from presentations at the 5th Annual Australian Dispute Resolution Research Network meeting in Hobart in December 2016 and at the AIJA Non-Adversarial Justice Conference, Sydney in April 2017.

tom simpson FV

Photo credit: Tom Simpson

 

Our aim in this project is to flesh out key elements of a safe and supported model of mediation in cases involving family violence that can be used across a range of contexts.

A great deal of attention has been paid to mediating cases of family violence in the field of family law. Outside the family law field, little attention has been paid to how to appropriately identify and respond to cases of family violence in mediation practice.

In our work together we are using what we have learned from family law dispute resolution to flesh out key elements of a safe and supported model of mediation in cases involving family violence that can be used across a range of contexts.

Beyond family law, there are a range of other contexts where dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence eg

  • disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse
  • child protection conciliation conferences/ADR in state Children’s Courts
  • the negotiation/mediation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts, and
  • restorative justice contexts as an adjunct to the criminal and family violence system

We believe that the imperatives relating to dispute resolution and family violence remain broadly similar regardless of the context. There is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. On the other hand, with a focus on safety and with appropriate support and careful attention not to minimise the violence, there are clear potential benefits of mediation for victims of family violence which can include self-determination, certainty, reduced financial and other costs and timeliness.

We use the Coordinated Family Dispute Resolution model pilot to inform an analysis of the potentialities and possible pitfalls of the use of dispute resolution in the contexts outside family law

 

Context: Coordinated Family Dispute Resolution

In 2009, the Australian Federal Attorney-General’s Department commissioned a specialised model of family mediation for matters involving a history of domestic violence. The Coordinated Family Dispute Resolution model (CFDR) was piloted between 2010 and 2012 in five different locations around Australia, and evaluated by AIFS. CFDR was designed to support parties with a history of family violence to achieve safe and sustainable post-separation parenting outcomes. The model’s design sought to provide a multidisciplinary approach within a framework designed to specifically address some of the issues arising from a power imbalance resulting from a history of domestic violence. AIFS noted that the model is comprised of four case-managed phases which are implemented in ‘a multi-agency, multidisciplinary setting (which) provide a safe, non-adversarial and child-sensitive means for parents to sort out their post-separation parenting disputes’.

Eventually, funding was not provided for full roll-out of model due to political, resource and funding issues, although the fight for funding for CFDR continues.

The CFDR model was complex and multifaceted as the table below shows:

CFDR

The special features of CFDR which work together to create the potential for safe and just outcomes – and which could be integrated into the diverse dispute resolution contexts we discuss further below – include:

  1. A coordinated response

The CFDR model demonstrated that it is important to bring a range of professionals together including government and community agencies to achieve a safe process, and it is critical that these diverse agencies and professionals share information and communicate effectively with each other.

2. A focus on specialist risk assessment

A critical element of the CFDR model was the integration of specialist risk assessment across the model’s practice which maintained the safety of the participants, and particularly the victims of violence and their children, as the highest priority. The safety focus of the risk assessment process went significantly beyond the usual FDR intake screening process which predominantly assesses that the parties’ have the capacity to participate effectively in the mediation process. These specialist risk assessments were conducted only by qualified and experienced DV and men’s workers with highly developed risk assessment skills, including an ability to identify ‘predominant aggressors’ of family violence.

3. The use of a legally assisted, facilitative model of mediation

In CFDR, a facilitative, problem-solving model of mediation was practised. This was because the goal of CFDR mediation was acknowledged as being to assist the parties resolve disputes about parenting safely, rather than to have a transformative effect. The design of the model acknowledged that it is not possible – in the 3-4 hours of a mediation session to have a transformative effect on perpetrators of violence. The best way to promote the safety of victims and their children was to support the making of relatively short-term parenting decisions. Transformative changes in a perpetrators violent behaviour may be possible but require the support and expertise of professional men’s behavioural change workers.

4. Special support measures needed to respond to domestic violence in mediation

The CFDR model also featured a number of additional special measures to protect the safety of victims and children. These measures were designed to support the hearing of the parties’ voices, and enable the parties to reach post-separation parenting agreements that upheld the best interests of the children. One such special measure was the acknowledgement of the concept of a ‘predominant aggressor’ in the model

5. Listening to the child’s voice

The involvement of children in CFDR mediation was not part of the general pilot process although the model as it was developed argued for inclusion of a professional children’s worker. If the child’s voice was included in the process it was only as a result of a decision by the CFDR team of case management professionals, and after careful analysis of the safety implications of this approach. Only appropriately trained and qualified ‘children’s practitioners’ could be asked to participate in CFDR to support the hearing of the child’s voice. These practitioners were required to have extensive clinical experience working with children and family violence.

The pilot was evaluated by the highly respected researchers at the Australian Institute of Family Studies under the leadership of Dr Rae Kaspiew. A number of the evaluation findings affirmed the efficacy of the design elements of the model in terms of facilitating the safe and effective practice of family mediation where there is a history of domestic violence. For example, it was found that adequate risk assessment for the parties’ safety and well-being is critical in domestic violence contexts; preparation for the parties’ participation in the process was key; and vulnerable parties have more chance of making their voice heard in mediation in the context of lawyer-assisted models, as long as those lawyers are trained adequately in dispute resolution theory and practice. In short the report said that CFDR was ‘at the cutting edge of family law practice’ because it involved the conscious application of mediation where there had been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting.

 

Context: Royal Commission into Family Violence

The work of the Victorian Royal Commission into Family Violence, has shown that an understanding of the nature of family violence and an ability to identify and respond to cases of family violence is central to the work of anyone working in law and dispute resolution in a number of diverse fields.

The Victorian government set up the Royal Commission in 2014 to examine and evaluate strategies, frameworks, policies, programs and services and establish best practice for four areas – the prevention of family violence; early intervention; support for victims of family violence, particularly for women and children; and accountability for perpetrators of family violence. The Royal Commission was also asked to investigate means of ensuring systemic responses to family violence, investigate how government agencies and community organisations can better integrate and coordinate their efforts, and make recommendations on how best to evaluate and measure the success of strategies and programs put in place to stop family violence.

On 30 March 2016, the Victorian Parliament tabled the report of the Royal Commission into Family Violence. The report represents the culmination of 13 months of work by Australia’s first ever Royal Commission into family violence.

The Royal Commission’s report contains 227 recommendations.  The Victorian government has committed to implementing all recommendations in the report, regardless of the cost. The Commission stated that its ‘recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence’ (Summary and Recommendations, p.14).

We focus here on the recommendations which will affect the way in which a range of dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence in our society.

 

Family violence-related debt disputes

Economic abuse is a form of family violence and is recognised as such in a few Australian jurisdictions.

The Royal Commission heard that most women who seek assistance for family violence issues leave their relationship with debt. Through the use of deception or coercion, perpetrators may avoid responsibility for a range of debts and leave their former partners with substantial liabilities (RCFV Report, Volume IV, chapter 21 p.102). This is a form of economic abuse, which is increasingly recognised as a form of family violence across the Australian jurisdictions. A recent RMIT analysis of ABS data showed that nearly 16 per cent of women surveyed had a history of economic abuse.

Women who have family violence-debt often have trouble negotiating the consequences of that debt with service providers. In their report Stepping Stones: Legal Barriers to Economic Equality After Family Violence, Women’s Legal Service Victoria noted that ‘service providers such as energy retailers, telecommunication services and banks have low awareness of the difficulties faced by women experiencing family violence and are unhelpful when interacting with these customers.’ Professor Roslyn Russell has recently shown how staff in bank branches and call centres report dealing with customers who are experiencing, trying to leave, or have left abusive relationships, yet there is limited training for banking staff on family violence.

A major proportion of Australia’s dispute resolution services are offered through industry ombudsman and complaint handling services such as the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Industry Ombudsman. These services often use a combination of mediation, negotiation and conciliation to resolve disputes. It is clear these services are dealing with many disputes that arise with service providers as a result of family violence. Because such services are not part of the family violence system they may not have policies or training in place to identify or adequately address financial abuse and family violence.

The Royal Commission recommended that

  • the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Ombudsman publicise the availability of their dispute-resolution processes to help victims of family violence resolve disputes (Recommendation 110)
  • comprehensive and ongoing training of customer service staff take place to help them identify customers experiencing family violence (Recommendation 109).

The Royal Commission’s recommendations are designed to develop employees’ capacity to understand, identify and respond to family violence within industry dispute resolution schemes so that victims of family violence can continue to access essential services such as household energy, water, telecommunications and financial services.

 

Negotiating family violence consent orders

Family Violence Intervention Orders (FVIOs) (also known as protection orders and apprehended violence orders in other jurisdictions), are orders made by the courts to protect a person from another family member who is perpetrating family violence.

There are often conditions attached to FVIOs which set out exactly what the perpetrator must do or not do in order to stop committing, and to prevent the future commission of, family violence. In Australia, FVIOs are made by state Magistrates’ courts.

The Royal Commission noted that ‘a high proportion’ of FVIOs are made by consent which means that the parties to the intervention order agree themselves to the FVIO and the conditions attached to the order which the Magistrate merely formalises (RCFV Report, Volume III, Chapter 16, p.134).

There is an incentive for perpetrators to settle orders by consent in the Victorian system because they can be made without the perpetrator admitting to any or all of the family violence allegations set out in the FVIO application.

However, for victims, there is a clear danger inherent in the negotiation process for consent orders, as described by the Commission:

‘the negotiation process involved in arriving at an order by consent may be opaque and variable depending on the situation, the parties and the presence of legal representatives. If there is a history of family violence between the parties, with everything that can entail – including an imbalance of power, fear, vulnerability, and the possibility of manipulation and coercion – it is extremely important that the negotiation process is properly managed. If the parties are not (or not adequately) legally represented, there is no guarantee that this will occur, and the result can be incomplete or inappropriate orders, whether on a primary application, a variation, extension or withdrawal, or a cross-application’ (RCFV Report, Volume III, Chapter 16, p.178).

Mediation is not formally part of the process for negotiating FVIOs in Victoria, although it is in the ACT, the only such jurisdiction in Australia to use mediation formally.

The danger of any negotiation process used to determine the terms of FVIOs is that it is the very acts of family violence that are being discussed and negotiated, and that a poor process may result in a poor order with conditions that fail to protect the victim and her children.

Because so little is known about the process for negotiating consent orders for FVIOs in Victoria, the Royal Commission adopted a cautious approach and recommended that a committee be established within the next three years to investigate how consent-based family violence intervention orders are currently negotiated and to develop a safe, supported negotiation process for victims (Recommendation 77). On this issue, the parallels to family dispute resolution are clear.

 

Restorative Justice and Family Violence

Restorative justice is a process which was developed from the criminal justice system which enables all parties who have a stake in an offence to come together to discuss the aftermath of the offence and implications for the future. While restorative processes have a criminal provenance, which makes them distinct from DR processes such as mediation and conciliation, the processes share in common a commitment to party empowerment and a sense that creative solutions can be found through ‘talking it out’ which would not be possible in the formal legal system.

The Royal Commission noted that while the justice system plays a fundamental role in protecting victims’ safety and promoting perpetrator accountability, that many women find the reality of the court process to be deeply dissatisfying and even re-traumatising: ‘A strong theme that emerged from consultations held by the Commission was the need for victims to understand the options available to them, and the process involved, and to be empowered to make their own decisions about what steps and outcomes are appropriate’ (RCFV Report, Volume IV, Chapter 22, p.136).

Restorative justice programs have the potential to provide family violence victims with the chance to be heard, to explain to the perpetrator what the impact of the violence has been and to be empowered to discuss future needs, including any reparations. Such a process potentially places great power in the hands of the family violence victim.

However, the same concerns can be raised about the use of restorative justice in family violence cases as there are about the use of family mediation in cases of family violence. The concerns about use of restorative justice in this context include unequal power relationships between victims and perpetrators, concerns about safety, and concerns about the appeal to apology and forgiveness which are part of the cycle of abuse in family violence.

The Commission concluded that restorative justice processes have the potential to assist victims of family violence to recover from the impact of the abuse and to mitigate the limitations of the justice system (RCFV Report, Volume IV, Chapter 22, p.143). The Commission recommended that within two years a pilot program be developed for the delivery of restorative justice options for victims of family violence which would have victims at its centre, incorporate strong safeguards, be based on international best practice, and be delivered by appropriately skilled and qualified facilitators (Recommendation 122).

 

Common elements of diverse family violence dispute resolution contexts?

So, what are the common elements of diverse family violence dispute resolution contexts? It is worth considering commonalities between the processes so that we can understand the nature of the dispute resolution content and process. This will better enable us to understand what elements are needed for dispute resolution processes across these diverse contexts.

We see the common elements of the diverse family violence dispute resolution processes as follows:

  1. Victim is part of dispute resolution process.

Across each of the three contexts, the victim of family violence will usually be part of the dispute resolution process. However, the victim may not be there in person (such as through resolution of disputes through ombudsman services, the dispute may be dealt with on the papers).

2. Perpetrator may or may not be part of dispute resolution process.

While the victims will be part of the process, the perpetrator may not always be there. For example, in debt disputes, the victim may be left with a debt and be unable to pay. The perpetrator may not be available or should not always be asked to explain or confirm his actions. However, in restorative justice conferences, the perpetrator may be there. In this case, safety issues must be paramount

3. Family violence may be hard to identify.

We know reporting levels of family violence are low. Matters in dispute may not initially present as a family violence matters. However, family violence may be central to matter, but extent of family violence may be hard to identify.

4. Family violence will affect how the victim will behave.

Victims of family violence are often vulnerable. The violence they have experienced will affect how they will behave in a legal or dispute resolution process.

5. Family violence is central to the nature of the dispute, the process and the outcome.

 

A “Safe and supported” mediation model

What then are the key elements of a safe and supported mediation process that could be used as the basis of new dispute resolution processes for cases involving family violence across a broad range of contexts? To develop these elements we draw from what we have learned in developing Coordinated Family Dispute Resolution in Australia from 2010.

We propose a “safe and supported” mediation model.

We have chosen to focus on a single dispute resolution process, mediation. Mediation is widely used. It offers flexibility and compromise between party empowerment and professional control of the process. Professional control of a process is central in cases of family violence where the risk of harm is great.

We believe that facilitative mediation is the best type of mediation in cases of family violence. A process like facilitative mediation carries with it the possibility of compromise between party autonomy and mediator control of the process necessary to provide a safe and supported negotiation process in the shadow of family violence. It also focuses on problem solving of the issue at hand, without attempting to remedy the relationship (as in transformative processes) which is arguably inappropriate in cases in family violence.

We believe that victim’s safety must always be the key priority in any dispute resolution process involving family violence. The victim’s safety must not be compromised because of her involvement in a legal process and the outcome of the negotiation must always be measured against the goal of ensuring safety for victims of family violence.

We focus on support because this is a key means of providing victims of family violence with the ability to participate in informal dispute resolution processes.

 

Elements of a “safe and supported” mediation process for matters involving family violence

Drawing from the CFDR model, the following are elements which we propose could be part of mediation processes involving family violence. These elements could apply across the full range of contexts mentioned above. It may be that some elements cannot be used in specific contexts. Nevertheless, dispute resolution processes for cases involving family violence should seek to implement as many of these elements as possible.

  1. That issues of safety and risk are placed at the heart of decision-making.
  2. The philosophy behind the dispute resolution process is that perpetrator accountability is a central objective of any mediation process that seeks to work effectively in contexts where there is a history of family violence.
  3. It is central that the family violence itself is not negotiated.
  4. A range of professionals must work together to achieve a safe process. It is critical that these diverse agencies and professionals share information and communicate effectively with each other.
  5. Specialist risk assessments must be conducted only by qualified and experienced family violence and men’s workers.
  6. A legally assisted, facilitative model of mediation should be employed.
  7. There must be acknowledgement of the concept of a ‘predominant aggressor’ in the dispute resolution process. This is especially important where there are cross-allegations of violence against each party, which increases the risk that tactical allegations of family violence could be used to cover up for legitimate allegations.
  8. Where perpetrators are involved in the dispute resolution process, the minimum expectation for participation in the model (and to receive its benefits such as free legal advice, counselling and other supports) is that perpetrators should have to acknowledge that family violence was an issue for their family, and that a family member believes that family violence is relevant to working out the future arrangements for the children.
  9. There must be training for dispute resolution practitioners in the nature of family violence and family violence identification

We acknowledge this this post presents the first stage in our thinking about the use of dispute resolution processes for the management or resolution of disputes beyond family law and in contexts of family violence.

More specific work needs to be done to create context and organisation-specific models of mediation which acknowledge the existence of family violence in disputes and to adequately address the needs of the parties in light of family violence.

We think that the effort that has been put into working with clients around family violence in family dispute resolution holds important lessons for those in other dispute resolution contexts.

The elements of a “safe and supported” mediation model for matters involving family violence that we propose are an important starting point in a conversation about the safety and needs of victims of family violence in our society.

Please let us know your thoughts as we continue to develop our model.

Email contacts: Becky.Batagol@monash.edu; rfield@bond.edu.au

Consultation comment invited – Review of the Farm Debt Mediation Act 1994 (NSW)

The following has been posted on behalf of Dr Hanna Jaireth, Farm Debt Mediation Officer at the NSW Rural Assistance Authority

Consultation comment invited – Review of the Farm Debt Mediation Act 1994 (NSW)

drought

Photo credit: Tim Vrtiska

The Farm Debt Mediation Act 1994 (NSW) (FDMA) is being reviewed to ensure it continues to deliver on its original intent, and to provide a model for nationally consistent legislation.

The Board of the NSW Rural Assistance Authority (RAA) is overseeing the review.

Your feedback is requested in response to questions in the Review Consultation Paper (PDF, 696.57 KB).

Submission options

You may respond by 5 May 2017 by:

  • completing theonline survey, or
  • emailingyour comments, or
  • posting your comments in hardcopy, or
  • one or more of the above.

Online survey

The online survey provides the questions raised in the Review Consultation Paper (PDF, 696.57 KB) so that if you wish, you can respond easily to all or some of the questions.

Individual survey responses will not be published.

Questions 1 to 3 are mandatory so that we can assess which stakeholders express which views, and we can provide you with information about the outcomes of the review.

Email your comments

If you wish to email a submission, please email farmdebt.mediation@raa.nsw.gov.au.

We would prefer to receive longer submissions in Word and/or Pdf format as an attachment.

Please make it clear if you attach additional documents to your submission, whether those documents may be published on the review website.

Post your comments

You may send a submission in hard copy to:

Dr Hanna Jaireth NMAS | Farm Debt Mediation Officer

NSW Rural Assistance Authority

Level 2 | 161 Kite Street | ORANGE  NSW  2800
Locked Bag 23 | ORANGE  NSW  2800
Ph: 1800 678 593 | Fax: 02 6391 3098 | E: hanna.jaireth@raa.nsw gov.au
W: www.raa.nsw.gov.au

Release policy

The RAA will not accept or publish anonymous submissions or comments.

Private contact information will not be published, but submitters’ names and organisations will be published unless a request for confidentiality is agreed after consideration of a written request.

Submissions will be published on the RAA’s website in full or in part unless the RAA declines to accept a submission because it contains information of a private, legal or otherwise sensitive nature, or because it is vexatious, offensive or defamatory.

If a submission includes something critical of another person or organisation the RAA will write to them and ask them to respond, and the RAA may decide to withhold publication of both the submission and the comments made in response.

Further information

If you need to access a translating and interpreting service please telephone 1300 651 500 or visit the Interpreting & Translation page of the Multicultural NSW website.

For further information please:

 

There is a time and place for mediation but a bullying allegation in the workplace is not one

 By Carmelene Greco

 

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

bully

Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

 

Workplace bullying is notoriously difficult to define and there is still no nationally uniform definition. It has been described as “repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety”.  It involves an addiction to controlling others, harassment and verbal abuse and constant unjustified criticism. It is not, as accurately stated by the Fair Work Commission, “reasonable management action that’s carried out in a reasonable way”.

Mediation, which aims to be an empowering process, involves trained third parties intervening on a dispute to assist parties to make their own decisions. As stated by the National Alternative Dispute Resolution Advisory Council:

The mediator has no advisory or determinative role…but may advise on or determine the process of mediation…

Therefore, any solution is not imposed on parties but arises out of the empowerment of the parties to make it themselves.

It is important to stress that there is a lot of evidence of mediation providing an effective outcome in many cases where it helps facilitates solutions to problems that appear unsolvable. However, the key distinguishing features of mediation, which make it an attractive option in many instances, are the very reasons it is inappropriate for workplace bullying.

 

Comparing workplace bullying and family violence

The very nature of workplace bullying automatically suggests that mediation is an unsuited response. Workplace bullying is frequently compared to domestic violence – they are considered “almost identical twins”. In both scenarios there is an addiction to power, the controlling of another in a detrimental way and a severe power imbalance.

Mediation, and other forms of ADR, can be considered inappropriate in cases of family violence. This is exemplified by current Australian family law legislation that affords an exception to the mandate of alternative dispute resolution where there is the presence of family violence. This displays the recognition by the Australian Parliament of how a severe power imbalance can undermine the benefits of mediation.

Similarly, in the case of workplace bullying, a power imbalance and a potential ongoing relationship exists, as such the effectiveness of mediation is reduced.

Consistently, shuttle mediation may also be an ineffective solution as it can exhaust parties into premature agreement, as well as not effectively ensuring the relationship of control has ceased.

Accordingly, on the basis that mediation is not appropriate for allegations of domestic violence, it is equally unsuitable for allegations of workplace bullying. It was argued by Hadyn Olsen that:

The practice of demanding mediation as the first response to any workplace grievance (including Workplace Bullying) places our society back in the same position it was in the 60’s and 70’s in regard to domestic violence. It is an entirely inappropriate response to this problem.

In conjunction with this dynamic is the fact that there are very few options available to the target of workplace bullying. It can be that the target has already resigned, intends to resign or is still employed and wishes to remain employed. The target is likely to be placed in a position of being wedged in a toxic working environment because of their financial needs and a lack of options for alternative employment. This again places the target of workplace bullying in a particularly vulnerable position, which is unique to this category of dispute.

The defining feature of workplace bullying allegations is the power imbalance between the bully and their target, which is exacerbated if the employer is also the bully. Mediation in such conditions is likely to reinforce the dynamic and worsen the situation, as it would in the domestic violence context already discussed. Meanwhile, reaching a constructive outcome jointly between parties is the hallmark of mediation – that is it involves a compromise and a desire to settle. A bully is unlikely to have this aim but instead view the mediation as an opportunity to further manipulate the target. Furthermore, the target is likely to be further disempowered and unlikely to reach a favourable outcome because of a lack of capacity to negotiate with the bully.

Hadyn Olsen noted that he has not met any target of workplace bullying who feels mediation was fair for them but argues that instead, in most cases targets feel further abused and damaged by the process. Similarly, a representative from Northern Territory Working Women’s Centre stated that:

The imbalance of power is so profound that she is just not able to speak freely… I think it would be unsafe and really inappropriate if it required the person who was being bullied to sit face to face with the person who was bullying her….

  

Bullying is not and cannot be a neutral agenda item

In a typical mediation, the issue to be considered is one that both parties are equally as affected by or equally contributed to. But in the context of workplace bullying, the agenda is entirely based on the inappropriate behaviour of the bully in the workplace.

A mediator may struggle to frame this issue as an agenda item and by referring to it as a ‘relationship’ the target of the bullying may interpret this to mean the mediator does not believe the bullying occurred. At the same time, a bully would view this as a reinforcing their lack of fault. Therefore, in workplace bullying allegations the person and the issue cannot be separated and trying to frame it otherwise can be detrimental.

 

Mediation fails to punish past behaviour

 Mediation focuses on the present and future relationship between the parties and does not punish past behaviour. This is because it usually involves a mutually engaged in conflict. But workplace bullying is different. There is clearly one victim; one person who needs recognition of what has occurred in order to heal and move on. Dr Caponecchia stated that:

Mediation is more focused on not whether it happened or not but, ‘Let’s get back to work’, which may mean transferring someone.

Facilitators of workplace mediation argue that this is a benefit of mediation because it offers a fresh start and is about moving forward. However it is unlikely that targets of severe bullying will be looking for a fresh start and, instead, are more likely to want recognition and an apology. This is particularly the case where the target has decided to resign from their employment.

 

Public interest

 It may also be in the public interest for matters of workplace bullying to go to court and not to be held in a private mediation. Mediation keeps any wrongdoing outside public scrutiny or knowledge. This is not a good thing because the knowledge of the prevalence of workplace bullying is significantly restricted, which in turn, reduces the likelihood of policy being developed in response. Because of the high levels of workplace bullying in Australia, full transparency is necessitated to establish an effective response.

 

But does this mean mediation can never be appropriate for workplace bullying?

 It is arguable that a complete power balance between parties to a mediation is not the norm and hence it is always the role of the mediator to manage this relationship and minimise the impact of any imbalance.

Power imbalance can be managed by:

  • the use of support persons for each party (whether that be a family member or otherwise);
  • effectively communicating the rights of each parties and ensuring they are aware of these rights;
  • reality testing the options available to both parties;
  • representation by an advocate; and
  • informing the target that they have specific rights against the bullying – such as the ability to lodge a formal complaint.

If it is believed that the imbalance of power is not so severe that a mediator can effectively manage it, mediation may potentially be appropriate. However this is going to very much depend on the particular situation. It is likely that a mediator is going to be able to more effectively manage the power imbalance if intervention is early. Mediation is of no use where the target is now seeking full justice or retribution.

Consequently the suitability of mediation very much depends on the stage of escalation of the bullying. It is thought that mediation can be a helpful early intervention technique. The House of Representatives, Standing Committee on Education and Employment (2012), inquiry into workplace bullying found that several submissions supported mediation as an early intervention.  It was stated in that report that:

Mediation cannot be the panacea to workplace bullying, rather, it is an effective early intervention tool and needs to be applied on a case-by-case basis.

Moira Jenkins also supported the use of it as an early intervention model stating that:

I do not think mediation is appropriate later on when you have very damaged people, but as an early intervention I think it is great.

We should begin with the assumption that mediation is an inappropriate way of dealing with workplace bullying. Where the bully is the employer, this position will not change. In such cases, arbitration provides a more appropriate dispute resolution option as it offers the opportunity for the past wrongdoings committed by the bully to be discussed and for them to be held to accountable. This is an important process for the victim in moving on and essential to facilitate a productive working environment by focusing on past behaviour, which mediation fails to do. In addition, arbitration allows somebody in power to define what is and isn’t bullying and to avoid allegations by the bully of hypersensitivity in the victim.

Alternatively, however, if it is identified that the bullying is at the very early stages of escalation and that a mediator is able to effectively manage the existing power imbalance, mediation may then be carefully conducted. If there is any doubt, it is in the best interest of the general public and of the target, that mediation is avoided as a means of managing allegations of workplace bullying.

A consequence of this protection of the victim of workplace bullying may be, unfortunately, that their access to justice is reduced to some extent. However, this is, in many circumstances, a necessary concession. Additionally, the availability of arbitration, which is not an overly expensive option for litigants, ensures that justice is not inaccessible.

 

Carmelene Greco completed a Law/Arts degree, with a major in journalism, at Monash University in 2016. She is now a graduate lawyer at King & Wood Mallesons and has a keen interest in exploring alternative dispute resolution prospects within the commercial law context.

Nearly Neutral: A Mediator’s Best Bet

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

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‘The Gate’ by  Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

     Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

 

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.

 

Honesty and Candour in Mediation: Are They in Short Supply?

Mediation, like negotiation, is at its most basic a process of communication between parties in dispute. The aim in mediation is to find a mutually agreeable solution. The success of mediation might well depend on the ‘honesty’ and ‘candour’ of the parties and their representatives. The parties must be honest and open enough to find a zone of agreement.

The terms honesty and candour need to be defined. Elsewhere I have defined ‘honesty’ as a concept which concerns the accuracy of information conveyed, while ‘candour’ is a concept which goes to the heart of whether or not information is conveyed at all.

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Honesty the flower: credit Creative Commons  see below

https://www.flickr.com/photos/11758041@N08/13891817217/”>Dave_A_2007</a&gt;

While it makes sense for the parties to be honest and open enough to find a mutually acceptable solution, only a fool would rush into a mediation and reveal, at the outset, their BATNAs, WATNAs, and bottom lines.

As for mediators, they are constantly handling information gleaned from the parties in dispute. Often they have to run ‘messages’ back and forth from separate sessions with the parties.

This short discussion looks at the obligations, if any, which fall upon the mediation participants and mediators to be honest and candid.

Parties and their representatives – duties owed to mediators and to each other

Agreements/Legislation

Standard form agreements to mediate and relevant legislation do not usually impose an obligation to be honest and/or candid, although they often require parties to ‘cooperate’ with each other and with the mediator to carry out tasks such as isolation of issues in dispute, exploration of options and so on. Many legislative schemes require the parties to participate in good faith. The terms ‘cooperation’ and ‘good faith’ (and ‘genuine effort’) are rarely defined in agreements to mediate or by relevant legislation but the courts have discerned some common elements (eg attendance at the mediation by someone with authority to settle). Some guidance on behaviour which is not inconsistent with good faith in mediation is also available from cases and commentaries. Good faith does not require a party to act against self-interest and it does not require a party to take ‘any step to advance the interests of the other party’.[1] Good faith does not require the parties to engage in total disclosure. There is no requirement to reveal all of one’s negotiation goals and bottom lines.

Lawyers, as agents for their clients, are also bound by the obligation to act in good faith. A lawyer cannot mislead the mediator or his or her opponent about a material fact for it is recognised that such action (or inaction, where a false statement needs to be corrected) constitutes bad faith.

Negotiation Convention

It is sometimes assumed that interest-based negotiation, which underlies the facilitative model of mediation, requires honesty and candour. Negotiators adhering to an interest-based approach might explain their positions and interests (and refrain from misleading on these matters) with the idea of finding a solution that meets each parties’ interests, but the prescription to be honest and forthcoming with information stops at positions and interests. There is no requirement under this model of negotiation to disclose one’s BATNA or bottom lines.

Rules of Professional Conduct for Lawyers

If the parties are legally represented, the level of regulation intensifies. Legal representatives are subject to the ‘law of lawyering’ including the rules of conduct of the legal profession. These rules set out obligations owed by lawyers to courts and tribunals, clients, opponents and other parties.

Lawyers cannot mislead or deceive the court on any matter. They must advise the court of any adverse legal authorities and legislation. They must be honest and courteous to clients. They must not mislead or deceive their opponents. They must treat everyone with whom they interact, with honesty and courtesy.

Aside from the requirement to advise the court about adverse legal authorities and legislation, the rules do not impose a positive obligation to reveal information unless it is necessary to correct a half-truth or to correct a prior statement which has since become false.

The rules in relation to clients, opponents and others are easily transferable to mediation. The rules in relation to courts are an awkward fit in mediation. It seems that practitioners must treat mediators as courts (see the definition of ‘court’ in the professional conduct rules). If this is the case, practitioners must never mislead or deceive a mediator and they must reveal adverse legal authorities and legislation. I say that this is an awkward fit because mediators do not make substantive decisions and, unless he or she is an evaluative mediator, a mediator seems to have no need for information on adverse authorities and legislation. What is clear is that practitioners do not have to reveal other information either to the mediator or to an opponent save if it is necessary to correct a half truth or correct a statement which has become false (and of course, the practitioner must not reveal information without the consent of the client).

Mediators – duties owed to participants

The NMAS Standards

Assuming that a mediator is accredited under the NMAS and ‘bound’ by the scheme’s Practice Standards (PS), the mediator owes a duty of honesty in regard to matters of advertising and promotion of mediation. But that may be the extent of the mediator’s obligation for honesty under the PS. The mediator might owe an obligation to act with ‘integrity’ but the meaning of that term is not clear.

Rules of Professional Conduct for Lawyers

If the mediator is a lawyer, he or she is still subject to the law of lawyering.

Lawyer mediators owe obligations to the court (not to mislead or deceive). A lawyer mediator is still a lawyer and could not, for example, be a party to a fraud committed during mediation.

The rules governing the relationship of lawyers and opponents seems to have no application to mediators. Mediation participants are not the mediator’s opponents.

Mediation participants are not clients in the traditional sense.

It may be that participants are best considered to be ‘others’ (they are certainly not courts). If this assumption is correct, mediators are obliged to treat mediation participants with honesty and courtesy but there is, at least under the legal profession’s rules, no requirement for candour.

What is the safest course?

The best advice for parties (and their legal representatives) is to reveal information slowly and cautiously. If information is conveyed, care must be taken to ensure that it is accurate. Lawyer mediators must also take care to ensure that any information they convey is accurate. Since there is no general duty of candour, all those who participate in mediation – including mediators – must think before they talk. At times, they may want to take refuge in a silent ‘safe harbour’.

 

[1] United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 (3 July 2009) [76] (Allsop P).

Collaborative Practice – unique skillset or traditional lawyering?

 

Student Guest Post by Ben Zocco

 

This post is the first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best posts are published here.

 

 

The advent of collaborative practice as a means of resolving family law disputes has provided couples with a means of completing a divorce or separation in a conciliatory and cost effective manner. With more than 200 practitioners currently registered with the Law Institute of Victoria’s Collaborative Law Section, a significant number of lawyers have undergone training that allows them to practice collaboratively.

 

The Law Council of Australia’s Basic Training Requirements

In response to its increasing popularity of collaborative practice, the Law Council of Australia has published the Australian Collaborative Practice Guidelines for Lawyers. This document encompasses a series of “Basic Training” requirements in order to be recognised as being collaboratively trained. This set of overarching training requirements forms a best practice guide for ensuring practitioners engaging in collaborative law are appropriately prepared for acting in this unique practice area.

army-recruit-is-in-training-at-the-army-physical-training-school-brisbane-1942Image: Courtesy State Library of Queensland

 

The Basic Training requirements provide for the teaching of a range of skills that are unique to the practice of collaborative law. This is particularly so with the requirement that practitioners are provided with relevant training of the “collaborative model”.

 

What is Collaborative Practice?

Collaborative practice, as the name suggests, is a non-adversarial process used to resolve disputes. It requires the parties and their legal representatives to enter into a formal contract that puts the focus of the process settling a matter rather than resorting to litigation. Terms in the agreement generally refer to a commitment for each party to engage in the collaborative process in good faith and to share all available relevant information pertaining to the dispute with the other party. If the dispute is not resolved and parties seek to formally commence legal proceedings, the lawyers engaged in the collaborative process are contractually required to cease representing their clients. This requires the parties to engage new lawyers, generally at a significant cost, and serves as a major incentive to the parties to find common ground and work collaboratively to resolve their dispute.

Collaborative practice is conducted in the presence of each party and their legal adviser in what is described as a “four way meeting”. Several four way meetings take place over the course of a number of months, with each run according to agenda devised by the parties in consultation with their lawyers prior to the meeting. The conclusion of the four way meetings seeks to culminate in the drafting and execution of an agreement that resolves the dispute in a manner that is mutually acceptable to both parties.

 

The Unique Nature of Collaborative Practice

The collaborative model, as describe above, is an entirely unique approach to the resolution of disputes. While traditional mediation is also seen as an alternative to litigating matters, it differs from collaborative practice in many respects. The absence of a mediator in collaborative practice requires the legal representatives to facilitate the discussion rather than simply representing their client. Additionally, the capabilities necessary to operate collaboratively in the absence of a court-mandated framework for discovery and good faith negotiation is at odds with that of conventional alternative dispute resolution approaches. Accordingly, this skillset is unique to collaborative law practitioners.

The skills required of collaborative practitioners are also unique insofar as the model makes use of independent experts to facilitate the settlement of disputes. It is standard practice in a matter being resolved collaboratively to utilise the expertise of third party professionals, especially those who are trained as child specialists or financial advisors. These experts assist the parties and the lawyers in exploring interests (rather than positions) and potential options to satisfy the needs of the parties. Additionally, their experience assists the couple in being able to understand the impact of their separation on their children, as well as its effect on the financial position of each person once the dispute has finalised.

While the interaction of legal practitioners and independent experts is extremely common, the manner in which they work together in a collaborative setting compared with that of general legal practice is significantly different. In many jurisdictions, the relationship between independent expert is governed by a formal practice note, issued by the court. Lawyers typically engage independent experts by way of a formal retainer, setting out the advice necessary for the purposes of the matter. The expert will then write a formal report, setting out their findings. In many cases, an expert will be required to “hot tub” with an expert appointed by the opposing party in order to reach consensus conclusions and to narrow the issues in dispute. Additionally, experts retained in a litigation matter are subject to rigorous cross examination from other parties, adding an adversarial flavour to their contribution made for the purposes of resolving the matter.

In contrast, a collaborative approach requires each party to jointly appoint an expert, often by way of a shared recommendation by the practitioners representing them. The expert will work with each party in the room together and will rarely engage in separate discussions with parties individually. Rather than the lawyers approaching the assistance of an expert’s contribution as potentially suspect or misconstrued as may be the case in litigated disputes, they are able to respect and value their support in a truly collaborative fashion. Accordingly, the interdisciplinary approach to collaborative practice means a collaborative practitioner is required to have a unique skillset when involving experts in a matter being managed collaboratively.

 

Negotiation for All, Not Just the Collaborative

While there are many aspects of the “Basic Training” requirements that are unique to collaborative practitioners, it is clear that are not all exclusively within the domain of collaborative law.

A crucial example of this is the necessity that collaborative practitioners must be aware of and trained in negotiation theory; specifically, that of the differences between interest and positional-based bargaining.

A key tool in the arsenal of a collaborative practitioner is assisting the parties to consider the distinction between positions and interests. Unlike traditional positional bargaining, focusing on interests allows the parties to concentrate on the key issues that require resolution, rather than the parties becoming distracted on minor matters, falling into positional impasses or creating acrimony in the process. This prioritisation of interests, rather than positions, also assists the parties in being able to develop creative solutions that are mutually amenable, rather than being focused on finding a middle ground between two respective positions, neither of which may be the best holistic outcome.

But similar strategies are used in some forms of mediation generally, rather than solely within a collaborative setting. Facilitative mediation, for instance, also focuses on steering the parties toward concentrating on positions rather than interests. This occurs in a traditional mediation setting, involving the parties, their legal representatives and a trained mediator. Additionally, several popular negotiation courses offered by institutions such as MIT and Harvard University train legal practitioners and business executives to be aware of the distinction when being involved in a negotiation.

Accordingly, negotiation theory should not be considered solely a skill that is relevant to collaborative practitioners, but to the legal profession generally. Despite the differences in approach to alternative dispute resolution, ensuring that the legal profession is adequately trained to delineate between a client’s needs and wants should be recognised in considering the skills that are desirable for all practitioners to hold.

It is clear that collaborative practitioners are required to be appropriately trained in their interaction with fellow lawyers in a collaborative setting, the collaborative model in general and the manner in which the interdisciplinary focus of the practice differs from the general use of experts in a dispute. These are skillsets that, currently, are largely unique and confined to the practice of collaborative law. It is essential for the continued success of collaborative practice within Australia for the distinction between these attributes to other forms of alternative dispute resolution to be clear.

However, it can also be said that collaborative law requires skills that are not solely used within its discipline. A knowledge of negotiation theory is highly desirable for legal practitioners to possess for everyday dispute resolution, not just that involving collaborative practice. To that extent, it is clear that the collaborative practice “Basic Training” requirements of the Law Council of Australia encompass training that is both unique to collaborative practitioners and also relevant to the legal profession generally.

 

Mr Ben Zocco has recently completed Bachelor of Arts and Bachelor of Laws degrees from Monash University and will be commencing as a graduate lawyer with a national law firm in 2017. He has spent the later years of his legal education studying various forms of alternative dispute resolution and looks forward to the opportunity to put this knowledge into practice as a lawyer.