UIA ADR conference participants

Singapore is a great place for a holiday.

It is also a great place to learn lessons that would be very valuable for our economy in general- and our dispute resolution community in particular.

The opening session of the 24th UIA World Congress of Mediation in Singapore has given us a great snapshot of what collaboration achieves.

The big picture is enlightening. Statistics demonstrate that the economic gravity of the world is shifting rapidly to Asia which now accounts for 40% of global GDP.

The growth of Asian economies has been accompanied by a growth in the number of disputes and the Singapore Government has seen this as a commercial opportunity. It set out to create Singapore as the standout arbitration hub in Asia. Its active involvement and support has seen Singapore emerge as the third busiest arbitration centre in the world.

Through the collaborative work of its dispute resolution institutions the Singapore Government has, since 2014, broadened its sponsorship, and has moved from a focus on arbitration to a focus on dispute resolution which embraces arbitration and mediation. The aspiration is to promote Asian voices in global conversations.

A remarkable element of the strength of the mediation focus has been the commitment to collaboration and interconnectedness demonstrated by the 4 key institutional pillars:

• Singapore International Mediation Centre (SIMC)
• Singapore International Dispute Resolution Academy (SIDRA)
• Singapore International Mediation Institute (SIMI) and
• Singapore Mediation Centre (SMC)

The Court has added consistent support and leadership and through the combined efforts of the government and institutions there have been some significant achievements. A few examples are:

• Tax exemptions for non-resident mediators
• Collaboration between SIMC and SIAC (the Singapore International Arbitration Centre) to offer a one stop shop solutions via arb-med-arb. This provides reassurance about enforcement of agreements via access to the New York Convention
• A link to China’s Belt and Road initiative to help businesses resolve disputes
• SIMC’s mediation panel of 70 international mediators demonstrating significant international reach and credibility which sits alongside its panel of technical experts available to parties
• Ongoing thought leadership projects investigating what’s next in the field – issues such as systems thinking and online dispute resolution

Slide presented at the 24th UIA World Mediation Forum Singapore, October 2017 by Associate Professor Joel Lee of the National University of Singapore

The achievements are remarkable. The Dispute Resolution landscape in Australia would be transformed if we could achieve the same level of collaboration.

However, despite the collaboration and the investment some things are yet to be achieved. Currently mediation is the full-time day job of only one person in Singapore. Whilst there are many more full-time mediators in Australia, the situations in our 2 jurisdictions are very similar with regard to the failure to create a substantial profession of full-time mediators. The number of trained mediators in Australia far exceeds the available work.

This remains as significant a challenge in Singapore as it is in Australia.

This post previews Rachael Field and Jonathan Crowe’s forthcoming book, Mediation Ethics: From Theory to Practice, to be published next year by Edward Elgar. The book analyses the shortcomings of current neutrality-centred approaches to mediation ethics and seeks to answer the question of what might replace them.

Mediation is becoming more and more prominent internationally as a key form of dispute resolution for legal and other disputes. In some jurisdictions, participating in mediation is a compulsory pre-filing requirement in particular kinds of legal matters. Many benefits have been claimed for mediation as a mode of resolving disputes, including its informality, flexibility, less adversarial nature and focus on the parties and their interests. The growth of this form of dispute resolution has produced a considerable academic literature, but the theoretical foundations of mediation ethics have been relatively neglected.

Discussions of mediation ethics have traditionally focused heavily on the notions of mediator neutrality or impartiality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. There is now a significant body of academic literature questioning whether mediators can ever truly be neutral and asking whether the concept of neutrality serves to mask the mediator’s actual power and influence. A number of authors have argued that it can be beneficial for vulnerable parties if mediators are prepared to play a more proactive role in appropriate cases.

The centrality of neutrality in mediation ethics, then, has increasingly been questioned and undermined. There is, however, a lack of consensus on what should replace it. The question is pressing given both the increasing reliance on mediation by domestic legal systems and a growing perception of mediation as an emerging profession. A traditional hallmark of a profession is its ability to self-regulate by applying communal standards of conduct. The idea of mediation as a profession therefore requires the mediation community to be able to articulate its core ethical standards. What, then, comes after neutrality? Can the concept be modified in response to these concerns or should mediation ethics have a different focus?

The present book offers a response to these questions. It develops a new theory of mediation ethics that emphasises the nature of mediation as a relational process. We argue that the focus of mediation ethics should move away from the untenable notions of neutrality and impartiality and towards a focus on enabling party self-determination. We supplement this focus with a view of mediation ethics as emerging dynamically from the efforts of mediators to respond to the needs of the parties. This provides the basis for a new picture of the mediation community as a community of practice with its own internal standards of excellence. We build on this theory to present a vision of what it means to think about mediation as a profession.

Chapter 1 opens the book by introducing the current paradigm of mediation practice, discussing the most commonly employed models of mediation and the extent to which they assume mediator neutrality or impartiality. Chapter 2 gives an overview of the historical development of codes of meditator conduct in the United States and elsewhere, showing how the facilitative model of mediation, with its ideals of neutrality and party self-determination, serves as an implicit yardstick for many forms of mediation practice. Chapter 3 then discusses the ideals of neutrality and party self-determination in more detail, examining how these notions are understood in the mediation literature, and considering the interaction between them.

Chapter 4 critically examines the notion of mediator neutrality, concluding that the dominant neutrality-centred approach to mediator ethics is at odds with the realities of mediation practice and is therefore untenable. In particular, the demands of neutrality place mediators in a position where they are unable to respond to the needs of individual parties without stepping outside the ethical boundaries of their role. Chapter 5 further problematises existing approaches to mediation ethics by considering the ways in which the relative informality of mediation may disadvantage inexperienced or vulnerable participants by requiring them to negotiate an unfamiliar genre of discourse. This provides the springboard for the new model of mediation ethics outlined in the subsequent chapters.

Chapter 6 introduces a new framework for mediation ethics that abandons the traditional emphasis on neutrality in favour of a focus on supporting party self-determination. The primary role of party self-determination in this new framework is supported by a focus on informed consent and an ethos of professionalism. Chapter 7 further operationalises this new ethical framework by offering a series of ethical guidelines that mediators can use to apply the framework in their practice. We argue for a contextual and relational conception of mediation ethics that is not rule-oriented, but encourages mediators to form appropriate and considered judgments in response to ethical challenges.

Chapter 8 then builds on this ethical framework to advance a conception of mediation as a professional community. We argue that mediation ethics is best understood as an evolving body of standards emerging over time by a process of consensus, rather than a set of rules or principles imposed from above. This picture of ethics is well suited to mediation due to its relationality and focus on the parties and their interests. The key feature of mediation, on this view, is not that the mediator is neutral or impartial, but rather that the parties are supported to achieve genuinely self-determined outcomes. This offers a more tenable basis for mediation ethics than the traditional emphasis on neutrality.

Readers of this blog may be interested in The “More Perfect” podcast series and a particular episode on reconciliation and apology. This was brought to our attention by Monash University academic and The Outer Sanctum podcaster extraodinaire, Dr Kate Seear.

The More Perfect podcast series (produced by Radiolab) has just returned for a second season. They examine important cases from the US Supreme Court and the first episode of the new series is about the Dredd Scott case, a case about slavery and citizenship.

It takes a bit of an unexpected turn, though, as it deals with issues about reconciliation and apologies. Readers might  be interested in it from a dispute resolution or non-adversarial justice perspective, just because it raises some interesting questions about how to reconcile past wrongs (and whether this is possible).

The relevant episode is here, and it is called “American Pendulum 2”. It might be useful for teaching, too.

Alastair Nicholson, former Chief Justice of the Family Court of Australia, was interviewed on the ABC’s Lateline program last week. The interview focused on the Commonwealth government’s upcoming review of the family law system. It contains a number of comments relevant to the role of family mediation.

For example, Nicholson identifies the adversarial nature of litigation as one of the main challenges facing the family law process:

[W]e should be moving to a much more, a much less rather, adversarial system because it seems to me that the traditional adversary system is really not suited to family law … [M]uch of the proceedings in the court are adversarial and people who want to litigate, or are encouraged to litigate by some unscrupulous representation can actually jam the system.

Although Nicholson does not think it would be helpful to ‘get lawyers out of the system entirely’, he emphasises that more needs to be done to involve people in their own disputes and address power imbalances:

I mean, there are moments in cases where the adversarial system works, but usually there is an imbalance of power in family law cases. … It’s the people who have got the deep pockets that can afford the adversarial litigation but it just doesn’t work, I believe, in family situations.

A partial solution to these issues, Nicholson suggests, is to reform the court process to prevent aggressive questioning by perpetrators of family violence and encourage judges to play a more active role in prioritising children:

So, [in the German system] they get the children’s point of view right from the start and then the whole proceeding goes through, with social workers assisting … The fact is that I think it’s a much more responsive system than ours, and it is one that we could well copy.

Nicholson also recognises the important role of mediation, particularly in making the process less expensive for the parties:

[T]here is now much more room for mediation, which was a criticism of the system in the past. … [T]he other way to make it less expensive is to resolve the issues as soon as you can. … Once you start getting into litigation and once you start coming to court, it’s going to be expensive.

Family mediation has much to offer in addressing the problems of adversarialism and cost that Nicholson identifies, as well as managing power imbalances and helping to ensure a child-focused outlook. Hopefully, the government’s review of the family law system will acknowledge and support this potential.

The full interview can be accessed here: http://www.abc.net.au/lateline/interview:-alastair-nicholson,-former-family-court/8999010.