We hope you find this next excerpt from Mediation in Australia (LexisNexis, 2018) thought provoking:

If mediation, despite its versatility and diversity of applications, is looked at as an analytical model, then it is not clear how it might endure, grow and respond to some of the big challenges ahead. There is no necessary longevity to the system we currently call ‘mediation’, although nostalgic sentiment would wish it a long and productive life. DR innovation, technological disruption, authoritarian governance and other intervening factors will not leave mediation unaffected, and the system as we know it may be subverted, rejected, replaced or modified beyond recognition.

Regardless of these prognostications, an inevitable shift will involve looking at mediation less in definitional terms or as a procedural model and more as a flexible bundle of knowledge, skills, attitudes and ethical attributes (KSAE). This bundle might have endless possibilities for future application.

As regards the knowledge factor, sound understanding of problem-solving strategies and procedures is an assumed element of current mediator competence, with potential future applications in the big issues. The skills element of KSAE will remain focused on relational engagement and communication — empathic listening, acknowledging, reframing, summarising and questioning — with new skill sets emerging from the new forms of knowledge referred to above. The attitudinal element of KSAE will emphasise the responsiveness value discussed in Chapter 2 of Mediation in Australia through the potential mediation affords to achieving justice in a democracy centred on the Rule of Law, and the promotion of party and community well-being through the resolution and management of disputes.

Finally, the ethical attributes necessary into the future will continue to include mediator impartiality, but will need to be far more contextual in response to this flexible KSAE bundle. What will be the ‘right thing to do’ in mediation will no longer be governed by abstract concepts such as neutrality but will depend on the specific DR needs and circumstances of parties, their context and the ‘fitting response’ to upholding party self-determination (defined in Mediation in Australia as including informed consent and an absence of external determination).

Within the confinements of law and legal processing alone the KSAE have influenced the development and practices, inter alia, of collaborative law, unfacilitated negotiation, expedited arbitration, less adversarial trials, conjoint expert evidence, industry dispute schemes and judicial DR. Beyond these developments, the KSAE factors have potential applications in peace-making initiatives around the world, in political systems, in educational bodies, in international relations, in trade and investment matters, and in all situations where there are continuing interactions within cognate groups, from nuclear families to global supply chains.

The relational and responsive nature of mediation sits at the centre of the system into the future, providing a motivation for moving beyond the current focus on models of mediation, such as facilitative versus evaluative or transformative versus settlement, to a focus on the intrinsic skills, techniques and attitudes associated with an inclusive concept of the mediation system. It is in this dimension that we consider that mediation will be able to engage in, and impact on, the bigger issues.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.shutterstock.com/search/ethical

Another excerpt from Chapter 12 of our recently published work: Mediation in Australia (LexisNexis, 2018):

Among the factors that will impinge on future mediation and its societal roles are new technologies and new forms of knowledge that are relevant to conflict, decision-making and mediation.

In terms of the knowledge factor we already have one set of experts tunnelling the mountain of computer technology and artificial intelligence to unearth the algorithms and codes, apps and devices which can provide negotiation support, improved predictive analytics and more efficient data processing in mediation’s better cause. It is difficult to predict the nature, extent and potential impacts of such developments. Moreover, much of the technology that will transform the styles of mediation practice into the future has yet to be invented. The exponential progress in technological advances undoubtedly means, however, that mediation will operate differently to the process as we now know it. Electronic and online tools will increasingly find their way into mediation spaces and enhance the flexibility, accessibility and virtuality of the system. Mediators may not themselves need the ability to code, but they will need understanding and capacity to utilise and maximise the benefits of new digital technologies. They will also need basic knowledge and terminology to communicate effectively with scientists and technologists so they can influence the direction and outcomes of their tunnelling.

In terms of new knowledge another set of experts is tunnelling a mountain to unearth clearer understandings of the DNA equivalent of conflict and disputation. These labours will reveal deeper knowledge of these phenomena and their cognitive, emotional, physiological and behavioural dimensions. The knowledge will extend to better understanding of how humans make decisions, of implicit, cognitive and social biases and of the impact of environmental and symbolic factors on negotiations. We envisage that understandings of negotiation, mediation and decision-making will be better informed and become more nuanced and sophisticated through multidisciplinary and interdisciplinary approaches across disciplines such as anthropology, economics, sociology, psychology and political science. In particular, knowledge of the neuroscience of decision-making, of rationality and of human biases and responses to conflict will become standard mediator knowledge platforms from which they can attempt to achieve effective practice — their understandings of the brain will empower master mediators to match, and mix, their metaphors to suit particular clients and circumstances. These understandings will also inform the development of mediation theory, ethics and values.

Whether the two tunnels will be found to meet within the same mountain remains to be seen. On one hand, the cognitive and neuro-science knowledge base will allow mediators to comprehend the deepest motives, needs and prejudices of their clients in all their humanistic weaknesses and paradoxes. On the other, the technological innovations will purport to negate the factors of uncertainty, irrationality and indecision which cause mediating parties to revert to survival mode and avoid settlements. The two levels of expertise could have both synchronous and inconsistent implications. Algorithms hold the promise of eliminating problematic cognitive and social biases, but could be themselves biased in their construction. Deeper humanistic impulses, both negative and positive, might not be susceptible to capture in software, apps and analytics. Robo-mediator, along with robo-negotiator and eventually robo-judge, will have unsurpassable levels of proficiency and efficiency in some dimensions, but lack the humanistic dimensions emphasised by social and behavioural scientists. Those with more expertise in these two areas than we have will both contribute to and evaluate the forthcoming fusions and fissions.

We welcome your responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.google.com.au/search?q=algorithm+images&rlz=1C1CHZL_enAU769AU769&tbm=isch&source=iu&ictx=1&fir=s2fu1eCE6eNV1M%253A%252CivrrVUouzFHm0M%252C_&usg=AFrqEzeQ4tZShNy19sSe8RZGr8KET8Uhqg&sa=X&ved=2ahUKEwj9-KmAl_7cAhVEzLwKHUStA4AQ9QEwB3oECAUQEg#imgdii=A5PjGHKbgoIRkM:&imgrc=s2fu1eCE6eNV1M:

Here is another excerpt from Chapter 12 of our recently published work: Mediation in Australia (LexisNexis, 2018):

It is a feature of the times to refer to different social phenomena as being in crisis. We read and hear about crises in the environment from deforestation to plastic pollution to space junk; crises in the conditions of over 60 million people dislocated by violence, discrimination or natural disasters; crises in democratic systems caused by corruption, authoritarianism, false facts and political apathy; crises in individuals’ sense of security, personal safety, work tenure, mental health and traditional ways of life; crises in domestic economies caused by excessive competition, tax and revenue avoidance and financialisation; crises in international customary law, treaties and conventions caused by geo-political forces and nativism; crises in reconciliation with Indigenous Australians caused by lack of constitutional or treaty recognitions; crises caused by disrupted patterns of economic ordering across national borders; and crises in wealth and income distribution and the financial dominance of a few and the poverty of the many. The legal profession too has long been said to be in crisis, and the same has been said of DR.

Whatever the validity of the crisis claims there is little doubt that fear, anxiety and depression are widespread in Australian society, and in many others. Each of the above crises, some real and pressing and others more remote and hyperbolic, is partly a function of neoliberalist economic principles and practices which have both overt and covert implications for work, costs, cultures, health and ways of life of individuals, groups, organisations and whole societies. This is well-documented in the relevant literature.

We do not, however, depict a crisis in mediation. We rather consider it as one of several possible responses to other critical events and incidents. A question we would like to start considering is whether conflict management and DR processes in general, and mediation in particular, can provide appropriate systems and procedures for the future management of the many factors of challenge, disruption and transformation being experienced — can they support the prevention, containment, management, determination or resolution of the critical problems, conflicts and disputes which global societies face? We tentatively explore this in the context of many social institutions with ‘mediating’ functions having broken down in full or part — political parties, trade unions, churches and neighbourhood communities.

In a recent DR course conducted by one of the authors a similar list of domestic and global ‘big issues’ was provided to students. The students selected homelessness in Australia as their topic and were asked to research and consider how mediation methodology might be brought to bear on the political, economic, legal and practical dimensions of addressing the reality that over 100 000 Australians sleep rough each night. The inevitable utopian idealism aside, they were constructive and creative in probing and analysing how mediation values, procedures and techniques might be adapted and applied in these areas. In particular, they emphasised mediation’s potential role in identifying relevant parties, facilitating discussions, promoting interests and priorities, establishing supportive legal infrastructures and enhancing bargaining for mutual gains. Future progress will be reported in the literature.

Mediation has some initial form in regard to major social issues. It is used in one or other of its manifestations in everything from community to political disputes and from commercial to international conflicts. It has had direct and indirect influences on peace-keeping and truth and reconciliation systems, on the emergence of practices such as collaborative law, conflict coaching, negotiation acumen, dispute prevention and nudge practices and in specialist dispute areas such as family law, workplace relations, elder law, industry bodies, consumer complaints, end-of-life decisions and higher degree supervision. Even where mediation’s influence is indirect it is arguable that its institutionalisation in the legal system and accession into mainstream thinking has made these innovations more acceptable.

It is true that mediation has influenced many areas of societal thinking and social practice, but it has also been tainted or at least compromised by some of these challenges. We have tracked some of these influences in Mediation in Australia — influences which cause mediation to be more mandatory and manipulative, more evaluative and short-term focused, and more an instrument of other objectives and less of its own normative imperatives.

Nonetheless mediation, as a form of private ordering, has long been criticised for keeping important issues away from the public gaze. In relation to the big issues, mediation as we have known it has predominantly system maintenance functions, not dissimilar to equivalent DR procedures in traditional societies. A separating couple, for example, may agree on appropriate parenting arrangements for the children without redressing, or even addressing, past issues of abuse; franchisees may make a mediated exit from a franchise system without having received substantive justice on matters of misrepresentation, wage theft and inadequate franchisor support; new migrant workers may be compensated for injuries sustained in poorly-paid manual labour without any amelioration of the conditions for other workers in this sector; and a defamation action might be resolved between a celebrity and media proprietor without consideration of the media’s power and influence in society. In these cases, mediation can provide settlements, and sometimes justice for individuals and businesses involved, without providing communitarian changes or contributing to systemic benefits. This creates predicaments of conscience for some practising mediators.

Here there might be an apposite analogy from the field of health science. Individual ‘private health’ treatment of those suffering from malaria, lung cancer, obesity or cardiac weakness does not itself diminish or remove the causes and incidents of the diseases in question. In relation to both communicable and non-communicable illness it is only ‘public health’ systems which can address systemic causes and symptoms and bring preventative measures into place in matters such as smoking, junk food and sugary drinks. Individual ‘private’ mediations, by analogy, have symptomatic and not systemic consequences and there is as yet a limited ‘public health’ role or application of mediation.

It can be contended, in defence, that mediation and conciliation do have systemic effects where statutory agencies nudge parties towards statutory norms, applicants feel empowered and respondents commit to redeeming their wanton ways, and there are, albeit remote, demonstrative effects for those outside the mediation room. Even in individualistic societies there are communal networks which transmit outcomes, lessons and messages. Nonetheless, individual private processes cannot alone change public communal factors and we consider in our next blog post how the elements of mediation might be used to address the big issues.

We welcome your comments and responses to these thoughts.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.123rf.com/stock-photo/crisis.html?sti=nd1ou56enpjuo4c7ma|; https://www.123rf.com/stock-photo/public_health.html?imgtype=0&oriSearch=crisis&sti=mxf449cbiav6j4hfk2|&mediapopup=84107140

The next National Mediation Conference will convene in Canberra on 15-17 April next year.  the Conference streams include one devoted to DR research: Research, Education, and Training: Building a rigorous research base for DR.  Although the stream will have a broad focus on the many facets of DR research and education, the Conference Design Committee is keen to provide an opportunity for conference delegates to gain an appreciation of what is happening in current DR research round Australia.  To this end, they have suggested that a specific session be included in that stream, and that it be dedicated to reports from current PhD candidates for whom some aspect of DR is the focus of their research.  The research project does not have to be completed in order to be included in the session.  Nor does participation in this session require the submission of a formal Abstract for the conference.

The session is expected to provide conference delegates with a sense of what is happening in DR research, and to provide current researchers with a sense of what their research colleagues are doing.

If you are a PhD candidate focusing on one or more aspects of DR and you would like to participate in this session, please email me directly at: alysounboyle@gmail.com   If you know someone else who is a PhD candidate and might be interested in participating, please encourage them to email me.

Conference website: https://nmc2019.com.au/

Alysoun Boyle, Chair, NMC2019 Conference Design Committee, Co-Convenor, NMC2019

In Mediation in Australia (LexisNexis, 2018) we repeatedly refer to self-determination as the remaining legitimising value proposition underlying contemporary mediation, having noted the disappearance of voluntarism, the end of neutrality’s reign and, to some extent, the compromisation of the promise of confidentiality in mediation — characteristics that have not stood the test of time. The self-determination principle has also been affected by some of the drivers and imperatives referred to in our previous blog post. We endorse the principle of self-determination as a defining feature and aspiration of all mediation — albeit with restrictions identified and discussed further in the book. We are now reflecting on whether even this principle is becoming contingent, given the rise of combined processes such as med-arb and arb-med, the displacement of facilitative mediation by evaluative and advisory systems and the prevalence of settlement conferencing under the guise of mediation.

Consider, by way of illustration, the case of a workers’ compensation claimant who had suffered physical injuries in a work accident in a highly pressured and competitive operating environment. After receiving weekly payments for several years, he brought common law negligence proceedings against his employer, claiming damages for past and future loss of wages, the only heads of damage allowed by statute. The matter was referred to mandatory mediation and his counsel commenced negotiations with a claim of $450 000. An insurer served as respondent under the subrogation principle and the employer was not present. The sequential rounds of negotiation progressed as follows:

The conundrum arising in this situation, replicated in innumerable Australian contexts each day, is how to categorise the process as a DR system. The exercise was conducted in a cultural context involving limited mediator involvement and well-worn precedential channels. Nominally it falls into the settlement model of mediation where the self-determination principle remains a legitimising principle. There might, however, seem to be little in the way of authentic self-determination for the claimant. The mediation took place eight years after the workplace injury, it was highly legalised with solicitors acting for both parties and counsel for the claimant, the procedure operated predominantly on a shuttle basis and it was allocated four hours of mediation time. The complainant’s choices involved a complex risk analysis as he could continue on weekly benefits and medical payments until the age of 67 and was obliged to make a final ‘certificate’ offer if there was no settlement. If such a claimant succeeds at hearing but receives less than their certificate offer they may be denied recovery of their own costs; if they receive less in damages than the insurer’s certificate offer they are potentially liable to pay the respondent’s costs, despite succeeding on the liability question. There was also some uncertainty over the claimant’s future health condition despite his having reached maximum medical improvement.

In this situation the legally-advised claimant, well informed by counsel, did provide informed consent to the insurer’s final proposal when it became locked-in at the $250 000 figure. Our query relates to whether he was involved in an authentic self-determination exercise, given his limited bargaining power, the difficult risk assessment involved and the fact that he was negotiating against himself in the last three rounds. While a single anecdote does not itself challenge established theory, this example illustrates a current trend and exposes the forces impacting on party self-determination in mediation.

We see three possible responses to the categorisation conundrum. The first option is to massage the already flexible concept of self-determination to accommodate the claimant’s situation: despite his having no real control over the outcome we could contend that self-determination can be satisfied by the residual factor of bestowing or withholding consent from the other side’s repeated ‘top line’. This could be an ideological response designed to maintain a sense of principle in the mediation system as always involving self-determination for each side. However, it involves potential abuse of ordinary language and invites a lack of congruence between the theory and practice of mediation. This is the flexible option in which the meaning of self-determination is expanded.

A second option is to remove such practices from mediation’s definitional ambit on the basis that it has forfeited the final defining principle of the system, namely authentic self-determination for parties. This would involve finding alternative, non-mediation designations for such practices, something the DR community has considered for decades. While conciliation is an obvious response to the search, we have two problems with this designation applying to the example provided: the first is that we defend in the book our use of mediation and conciliation as inter-changeable concepts, and the second is that the ‘conciliator’ role of advising and recommending to the parties is lacking in these situations. This is an exclusivist option in which mediation retains authentic self-determination as a defining ingredient of the system.

A third option is to acknowledge that the example does not support the self-determination principle in any meaningful sense but to continue including such practices within a generic concept of mediation. Here, it is the concept of mediation that stretches its existing elasticity to a point where it is identified by value propositions other than self-determination, namely the impartiality of mediators and informed consent for parties. This would open brand mediation to most DR options in which interveners cannot make binding decisions for the disputants. This is the inclusivist option in which the meaning of mediation is expanded to remove self-determination as the quintessential attribute of its theory and practice and it is replaced instead with the more limited notion of informed consent — this is indeed one of the ingredients of self-determination, but it has a narrower and less aspirational scope.

Our approach to the conundrum is to attempt to reconcile our aspirational and pragmatic selves. We still see self-determination as the characteristic of mediation that makes it distinctive and imposing, although its incidence is often a question of degree. The concept itself derives from theories of both democracy and international relations and was part of mediation’s creation and development — the factor that enables it to have empowering and transformative effects. We don’t envisage a valuable and viable concept of mediation in the future that is without the notion of self-determination at its centre. We do not support the exclusivist view that anything other than facilitative mediation cannot be considered mediation, but some level of common understanding of what ‘mediation’ means is needed so that legal and DR professionals and parties have clarity about what the system does and does not offer. Moreover, without some precision as to what constitutes the core aspects of mediation systems and how they operate, an ethical framework for appropriate practice remains illusory. Mediation and its underlying theory have to stand for something; the process does not have to bend to pressure to be all things to all people.

In retaining the self-determination principle, we acknowledge that in situations such as that of the claimant above it has a more limited connotation, namely that a party’s informed consent to an outcome satisfies the requirement — in this sense we adopt some of the flexible approach. One might indeed speculate as to whether the deep self-determination supposition of facilitative and advisory processes asks too much of parties who are disoriented and confused by conflict and the ambiguities of choice they are experiencing at a time when they are most in need of professional guidance and advice. It arguably places too much responsibility on parties who are not functioning in optimal ways and are least able to be rational and creative in approaching the challenges of their dispute and their choices in mediation.

While it might be contended that determinative DR processes are more appropriate for such persons, practical realities often entail that they must use mediation. We contend that it is better to reconsider a theoretical element of mediation than to manage the dissonance between unrealistic theory and pragmatic practice. As discussed in Chapter 1 of the book, the exclusivity camp has long advocated for the term ‘mediation’ to be restricted to practices committed to the authentic application of the self-determination principle in contexts in which mediators are predominantly facilitative in their endeavours and they add value in communication and negotiation dimensions, and in which parties derive procedural and emotional benefits from the process involved. Many first-generation, family, workplace and community mediators were taught and trained in terms of this conceptualisation of the process and remain committed to it in practice. The National Mediator Accreditation System (NMAS) is also primarily based on this concept.

By contrast, the inclusivity camp of mediators comprises those who, while they might not have relinquished the strong value ideations of the exclusivists, nonetheless acknowledge that what is designated as ‘mediation’ in practice should be regarded as mediation, subject to two essential qualifiers — first, that mediators do not have any power or responsibility to make binding determinations for parties; and second, that parties provide informed consent in relation to any mediated settlement agreement. We identify in this regard, with respect to the exclusivists and in acknowledgment that our own convictions have been challenged in reaching this position, with the inclusivist camp. We contend that the battle for exclusivity has effectively been lost and the identifying characteristics of that model are too circumscribed and difficult to police to maintain a meaningful connection between practical realities and theoretical constructs. This is not to preclude the development of future values and objectives for mediation, for example in becoming more normative in nature, a contributor to the Rule of Law or even a surrogate for other forms of democratic expression. Those developments, however, lie in the future.

Laurence Boulle and Rachael Field

Image acknowledgement: https://www.drsyrasderksen.com/blog/romantic-relationships-what-self-determination-theory-says