Our final researcher profile for this month is Dr Lola Akin Ojelabi, Senior Lecturer at La Trobe Law School, La Trobe University. Lola is also an Accredited Mediator under the NMAS.

In regards to how research fits into her professional identity, Lola says:

As an academic, I have two major roles: research and higher education teaching. Research has been a major part of my work and my research informs my teaching.

Why did you become interested in the dispute resolution field?

I developed an interest in DR through my involvement in negotiation, mediation and settlement conferences as a practising lawyer for over 10 years. I was particularly interested in how the benefits of DR could be realised while still addressing social justice issues. My LLM minor thesis is on International Commercial Arbitration and PhD on Culture and Conflict Resolution.

What is your particular area of dispute resolution research interest?

My DR research interest is on justice and quality in ADR and Conflict Resolution more broadly. I am particularly interested in the extent to which codes of ethics contribute to maintenance and improvement of practice quality and assist practitioners to address justice issues that arise in ADR. I am also interested in the extent to which culture influences ADR practice and how practitioners address inequalities howsoever arising.

Whose research has influenced you? Why/How?

My research has been influenced by a number of scholars from different disciplines.

I have been influenced by the writings of legal philosophers including John Rawls. I am fascinated by his view on constructing rules for a well-ordered society from the ‘original position’. I have also been influenced by Kevin Avruch’s writings on culture, power, and identity, the correlation between diversity and inequality and how conflict resolution practitioners address the issues.

What dispute resolution research are you involved in at the moment?

My current research is on ethics in ADR with a focus on justice and quality in ADR practice. A research project conducted in Australia is now being replicated in California and the goals are to:

1. Examine similarities and differences in approaches to ethical and practice issues between US (Californian) and Australian mediators;
2. Generate discussion within the mediation sector and among policy and law makers on how best to address justice issues in mediation practice;
3. Harness the wisdom of experienced mediation practitioners on issues of justice, using different scenarios which mediators deal with in practice.

A Symposium on ADR Ethics for ADR Practitioners is scheduled to hold in Melbourne on the 19^th of June, 2015. The symposium brings together ADR academics and practitioners to discuss ethical and practice issues in ADR.

Revision of the National Mediator Accreditation System (NMAS) effective from 1 July 2015 will remove the requirement for mediators to demonstrate understanding of neutrality as an ethical competency. In addition, reference to the distinction between the process of mediation and its content and outcome have been omitted from the revised system. This distinction has been integral to the classic, facilitative model of mediation. The distinction was also central in understanding the role of the mediator as in control of the process of mediation but neutral as to its content and outcome.The principle of self-determination, referenced in the revised definition of mediation and newly included as an ethical competency, appears more explicitly as a central, guiding principle. Over time, neutrality and party self-determination have been central principles in defining and guiding the relationship between mediator and parties.

How will this relationship be constructed moving forward? This is the subject of my presentation at the ADR Ethics for Practitioners Symposium to be held at La Trobe University, School of Law and the Dispute Settlement Centre on 19 June 2015. The title of the presentation is: ‘Ethics in mediation: Centralising relationships of trust’.

I will advocate that relationships of trust can and should be the core organising principle of mediation practice. Furthermore, those relationships can and should be constructed from a socio-legal perspective that incorporates principles associated with both fiduciary and therapeutic relationships. This thesis is based upon empirical data of actual practice and incorporates existing practice principles. It  therefore has immediate relevance for practitioners.

Development of this thesis has been the result over time of my examination of neutrality, self determination and reliance on the distinction between the process of mediation and its content and outcome as a central organising principle of practice. Papers tracing that development are referred to below.

Douglas, S (2013-12) ‘Neutrality, self-determination, fairness and differing models of mediation’ James Cook University Law Review, Special edition on conflict and dispute resolution, (19), 1-20.

Douglas, S (2012) ‘Constructions of neutrality in mediation’, Australasian Dispute Resolution Journal, 23 (2), 80-88.

Douglas, S (2009)’Questions of mediator neutrality and researcher objectivity: Examining reflexivity as a response’, Australasian Dispute Resolution Journal, 20 (1), 56-66.

Douglas, S (2008) ‘Neutrality in mediation: A study of mediator perceptions’, Queensland University of Technology Law and Justice Journal, 8 (1), 139-157.

Dr Becky Batagol is a Senior Lecturer at Monash University and voluntary director of mediation and counselling organisation, FMC Victoria. Becky is an academic and her primary professional identity is as a researcher.

Why did you become interested in the dispute resolution field?
My involvement in dispute resolution was an accident. I had a contract to start my articles of clerkship at a small commercial law firm in Melbourne. Just prior to starting my job, I was bored and went out to Monash University, where I had recently finished my law degree. I saw one of my former lecturers, Professor Marcia Neave (now Chair of the Royal Commission into Family Violence in Victoria) who told me about a scholarship she was offering for a PhD in family mediation. I hadn’t studied dispute resolution or family law but wanted to do work examining gender and law. I started my doctorate and realised how important and overlooked the study of dispute resolution is, in a litigation-centric legal system.

What is your particular area of dispute resolution research interest?
That’s a hard question because so much about dispute resolution interests me. I am interested in understanding more about how to ensure that dispute resolution meets the needs of participants, provides fair solutions and protects vulnerable negotiators. These are questions about the quality and integrity of the dispute resolution process. They are important questions because our justice system is set up to help address these questions in relation to litigation, but so little has been done on a system-wide basis to address these questions in dispute resolution processes which are increasingly mandated by government.
I know the most about family dispute resolution (FDR), because that’s where I did my PhD research and in the decade since then, I have written two reports for the federal Attorney-General’s Department which have covered aspects of FDR (Family Violence and Family Law in Australia and Research on Family Support Program Family Law Services). I am on the board of a major FDR provider in Victoria, FMC Victoria.

Whose research has influenced you? Why/How?
In Australia, I have for a long time admired the work of both Hilary Astor and Rachael Field for their research integrity and for endeavouring to find high quality, theoretically informed solutions for hard problems in dispute resolution practice.
From the UK, I have long followed the writing of Dame Hazel Genn, whose more recent research advocates against dispute resolution as part of the justice system. Genn’s research reminds me that not every case should settle and to build oppotunities to opt out of dispute resolution into my policy proposals. There is a well-known US academic whose work I often come back to, Carrie Menkel-Meadow. Her perspective, in contrast to Genn’s is usually pro-mediation. I like Menkel-Meadow’s work for being thoughtful and cutting through the hype that often accompanies dispute resolution.

What dispute resolution research are you involved in at the moment?
My greatest project is raising my two children to be good people, aged 4 years and 8 months. I have been on maternity leave since July last year which has certainly slowed my current research, although there there still plenty in the pipeline.  I am about to have an article published in the Monash University Law Review with RMIT’s Dr Kathy Douglas on lawyers’ involvement in mediation at the Victorian Civil and Administrative Tribunal. Last year the second edition of my book, Non-Adversarial Justice written with Michael King, Arie Freiberg and Ross Hyams came out. I wrote the chapter on ADR and also the chapter on family law processes, which both provide a broad overview of the field. Updating these chapters gave me a birds-eye view of the field and especially of developments over the last five years. I wrote a blog post setting out my thoughts after completing the book.

Where would you like to take your dispute resolution research work over the next ten years?
As governments increasingly mandate participation in dispute resolution as a solution to budget crises in the justice system, questions around fairness, process quality, rule of law and access to justice arise. You’ll find me out and about tackling some of these big questions.

What advice do you have for emerging dispute resolution researchers?
First, I would be pretty excited to meet another researcher ready to join our small and collegiate field. Then I might suggest, over a coffee, that it is hard to go past the classic rhetoric vs reality formula for researching our field, where claims about the value of dispute resolution are often overblown. Understanding more about how people actually use dispute resolution processes contributes to a policy which improves the quality of dispute resolution process.

I read with interest Greg Rooney’s paper on ‘Rebooting Mediation by Detaching from the Illusions of Neutrality, Just Outcomes and Balanced Power’. Rooney is a very experienced practitioner and teacher of mediation. His paper proposes ‘to reboot the profession of mediation by championing the proposition that mediators are not neutrals. They bring their own personal history and professional expertise to the process of assisting parties who are in dispute.’

The reason Rooney gives for rejecting neutrality is that it ‘is physically impossible to attain as a personal attribute for a mediator or a practitioner in any other profession or field.’ This is, of course, not a new point: scholars have been critiquing the notion of neutrality in mediation for some time. However, Rooney builds on his rejection of neutrality to offer some interesting insights about the role of intuition in guiding mediation practice.

I agree with Rooney that neutrality is not a helpful ideal to guide mediation practice and ethics, although I think he sometimes overstates the point. For example, he contends that efforts to balance neutrality against other aims of the mediation process are flawed because ‘you cannot be half neutral or unbiased in the much the same way as you cannot be half pregnant. You are either neutral or unbiased or you are not.’

However, even if the ideal of absolute neutrality is unattainable, it is surely true that some mediators are more neutral or unbiased than others. A mediator who deliberately and openly intervenes in the process to favour one party is likely to be less neutral than one who tries hard to be balanced, even though both will be influenced to some extent by personal biases. Neutrality, then, is potentially a matter of degree.

The point remains, however, that the ideal of absolute or pure neutrality is not a helpful practical guide for mediators in shaping their practices. A similar observation applies to the ideas of just outcomes and balanced power. Some outcomes are more just than others and some power dynamics are more unbalanced than others. Mediators can sometimes influence these variables in helpful ways. However, the pure ideals of absolute justice and absolute power balance are unlikely to be helpful guides to mediators in practice.

Rooney helpfully observes that mediation is both dynamic and diachronic (my terms, not his). The mediator herself influences the dynamics between the parties, which are constantly shifting over time. This means that ideals such as neutrality ‘have to be assessed within the context of the fluidity of moment to moment events’. This is another reason why a perfect state of neutrality or balanced power is unattainable in practice.

The misleading focus on neutrality in mediation, Rooney argues, has led to a model of mediation training where the focus is on guiding or transforming the parties rather than on developing the mediator’s own capacity for self-awareness. Rooney suggests that more attention should be paid to how mediators make decisions about how to behave. Mediators should cultivate their capacity for mindfulness and self-reflection.

‘The first step’ in this process, Rooney argues, ‘is for practising mediators to be conscious of what they are thinking’. Another way of putting this might be that mediators should develop their capacity for reflexivity: the ability to recognise one’s subjectivity and viewpoint when assessing a situation. Rooney describes the self-aware mediator as entering a ‘state of reverie’ where she can draw intuitively on knowledge from past experiences.

The underlying point here – leaving aside Rooney’s excursions into Buddhist philosophy and The Legend of Bagger Vance – is to highlight the central role of intuition in shaping mediation practice. Intuition, Rooney notes, ‘can produce a rich source of data which is immediate and specific to the parties at that particular point in time’. Intuitive judgments, then, are tailored to particular cases in a way that general principles and values cannot be. These judgments can then form the basis for further self-reflection and refinement of practice.

The role of intuitions in mediation ethics was a central focus of my recent article on ‘Ethics and the Mediation Community’ in the Australasian Dispute Resolution Journal. I have also explored the role of intuitive judgments in law more generally. I agree with Rooney that this represents an important and neglected focus of mediation research. It is heartening to see sustained and insightful reflection on this issue by such an experienced mediator.

Further reading

Jonathan Crowe, ‘Ethics and the Mediation Community’ (2015) 26 Australasian Dispute Resolution Journal 20

Jonathan Crowe, ‘The Role of Contextual Meaning in Judicial Interpretation’ (2013) 41 Federal Law Review 417

Jonathan Crowe, ‘Pre-Reflective Law’ in Maksymilian Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011)

Associate Professor Samantha Hardy is a pracademic who works for a number of organisations in a variety of roles. She is an Associate Professor at James Cook University teaching in the Masters of Conflict Management and Resolution programme and supervising RHD students. She is also the Student Ombudsman at the University of Wollongong. She is a founder, coach and trainer at Conflict Coaching International. In addition, Sam is an adjunct at various universities in Australia, Hong Kong and the USA.

Where does research fit in your professional work?

Research for me is a form of reflective practice – research informs my practice and my practice informs my research.

Why did you become interested in the dispute resolution field?

As part of my LLM in 1997 I did a dispute resolution elective and received my Certificate 3 in Community Mediation.  As a litigation lawyer at the time, I experienced a kind of epiphany that transformed the course of my work and study since then, leading to me leaving my job as a lawyer and re-focusing on mediation and other forms of conflict support in both my practice and my research.

What is your particular area of dispute resolution research interest?

I’m interested in conflict narratives, and how the way we tell stories about conflict impacts on our capacity to manage it effectively.  I am interested in particular in how this can play out in conflict coaching.  I am particularly interested in conflict in the university context (e.g. between PhD students and their supervisors).

Whose research has influenced you? Why/How?

Jerome Bruner’s work on the narrative construction of reality is fundamental to my work on the narrative construction of conflict.  His background in psychology and particularly the psychology of learning has also had a significant impact on how I think about coaching.

Sara Cobb’s work on narrative in the area of conflict is by far the most advanced theoretical scholarship in this field, and she continues to inspire and mentor me.

What dispute resolution research are you involved with at the moment?

I’m working on research into conflict in the HDR student/supervisor relationship, and also a book on The Melodrama of Conflict (focusing on conflict narratives).

Where would you like to take your dispute resolution research work over the next ten years?

I would like to expand the quantity and quality of work in the field of conflict narratives and their impact on how people manage conflict.  I am also hoping to do more narrative analysis research into conflict in the future.

What advice do you have for emerging dispute resolution researchers?

Read widely, find something that you are passionate about, and don’t be afraid to think outside the box.  Also, if you read something that has an impact on you, write to the author and tell them – great friendships and collaborations can start in that way, and also it’s so nice for people to receive some positive feedback from a reader!

We introduce our occasional “DR Researcher Profile” with Associate Professor Jonathan Crowe, of the University of Queensland.

Jonathan is primarily an Academic  and his profile can be found here. Research is his main professional focus. Here are his answers to some questions about his DR research interests.

Why did you become interested in the dispute resolution field?

My research is mainly in legal philosophy – particularly the relationship between law and ethics. I first became interested in dispute resolution through working with Associate Professor Rachael Field. I was doing some work on the concept of government neutrality and Rachael mentioned that she was researching related issues concerning neutrality in mediation. We wrote an article together exploring this topic and I’ve been more and more interested since then in ADR and mediation, especially its ethical dimensions.

What is your particular area of dispute resolution research interest?

My main focus is on the ethics of mediation – both the issues faced by mediators in practice and also the  broader ethical issues raised by mediation as a form of dispute resolution. What makes mediation legitimate as a way of resolving disputes? What are its ethical advantages and disadvantages compared to other dispute resolution processes? How can mediators address the power imbalances that sometimes arise between the parties?

Whose research has influenced you? Why/How?

I have been influenced by feminist writing on mediation and family law – for example, the work of Carol Smart and Carole Pateman on gender and the family. I’ve also been influenced by broader philosophical theories on the authority and legitimacy of legal processes, including authors like Joseph Raz, Lon Fuller and Ronald Dworkin.

What dispute resolution research are you involved in at the moment?

Rachael Field and I are currently co-authoring a book, tentatively entitled After Neutrality: A New Theory of Mediation Ethics. The notion of mediator neutrality has been widely critiqued as a basis for mediation ethics, so this raises the question of what alternative ideas or principles might replace it. Our take on this issue combines a focus on party self-determination with a view of ethical principles and guidelines as arising organically from the mediation process.

Where would you like to take your dispute resolution research work over the next ten years?

The idea of mediation as a profession raises a lot of interesting directions for future research. What exactly does the concept of a ‘profession’ mean in this context? Does the notion of a profession suggest a particular picture of the mediation community? What would this mean for the way mediators share ideas and values (through practice guidelines, accreditation processes, professional networks and the like)?

What advice do you have for emerging dispute resolution researchers?

I have found dispute resolution scholars to be consistently collegial, welcoming and open to sharing ideas and practices (especially my valued colleagues in the ADR Research Network!) It is a field with many interesting ideas and questions awaiting exploration. I would encourage new scholars to talk widely to more experienced researchers and practitioners – and to be open to the potential insights of interdisciplinary approaches.

I would like to draw your attention to a new UK journal: Mediation Theory and Practice, to be published by the College of Mediators. The first edition is to be published in May 2016. The editorial board is comprised of a number of highly regarded academics and mediators from across the ADR world, including Elizabeth Stokoe, Loughborough University, Dale Bagshaw, University of South Australia, Australia, Samia Bano, SOAS, University of London, United Kingdom, Mavis Maclean, University of Oxford, United Kingdom, Madeline Maxwell, University of Texas at Austin, United States and Paulette Morris, University of Brunel, United Kingdom

The journal describes itself as “an international forum for original, peer-reviewed research about mediation, as well as practice and events reports, policy discussions and innovations in mediation training and education. The journal’s approach is multidisciplinary and it is a resource for academics, practitioners, trainers, and policy makers. … Mediation Theory and Practice welcomes empirical, theoretical and practice-based articles which display originality in terms of their theoretical developments, use of empirical materials, transfer and exchange of knowledge between academic, practitioner and policy audiences.”

A journal which integrates theory & practice across a range of mediation contexts will make a welcome contribution to the scholarship and implementation of mediation. The Journal has announced its first Call For Papers for the first volume. I hope that Australian ADR researchers and practitioners will respond to this invitation.

Further information may be found at: http://www.equinoxpub.com/journals/index.php/MTP/index.

You may also be interested in the UK College of Mediators Annual Conference on Thursday, 11^th June 2015 at Loughborough University, Leicestershire. The topic for the 2015 College of Mediators conference is Defining Difference and the event deals with diversity in mediation.