This post continues our exploration of how mediators expertly facilitate party negotiations using the mediation theory and process. In lockdown, if we can enact some of the ways in which mediators practice their art, we can achieve more effective communications and negotiations. This means in turn that we will be better able to prevent, manage and resolve lockdown disputes and conflict.

The focus of this post is on the important distinction between positional and interest-based negotiations, and the techniques mediators use in supporting parties to help them focus on a more positive, interest-based approach. As we discussed briefly in post #9 a party’s position (what a party wants) is just the tip of the dispute resolution iceberg. It’s through identifying, acknowledging and exploring each of the parties’ priorities, needs and interests (why a party wants what they want) that the real magic of mediation comes into play.

Negotiation

Negotiation is a ubiquitous feature of life – we negotiate with ourselves, with friends and colleagues, with personal and business partners, with large corporations and with the state – and each of these entities negotiates with the others. Negotiation is also conceptually an intrinsic part of mediation. Mediation can be seen as an extrapolation of the negotiation process with the additional agency and expertise of a mediator’s interventions.

In mediated negotiations, mediators assist the parties to advance their rights and remedies, discuss their interests and priorities, and adjust their positions and strategies in efforts to achieve settlements and outcomes that are mutually agreeable – or at least something the parties can live with. It is because agreement only ensues once there is a level of consensus among the parties, that each party effectively wields a potential veto over any outcome. As a third-party helping professional, it’s a mediator’s expertise – their practice skills and techniques – that are the critical aspect of their intervention in a dispute that supports the parties in coming to a level of consensus. The ways in which mediators help parties to focus on interests as well as positions (rather than solely on positions) is instructive for how we can communicate and negotiate effectively in lockdown.

Mediation theory meets negotiation theory

In mediation theory, a distinction is usually made between different styles of negotiation. One of the key styles is the positional (or settlement) style. This approach is focused on the parties’ positions – that is, what the parties want. The other is the interest-based (or problem-solving) style – which is about addressing the parties’ priorities, needs and interests – that is, getting to the why question – what needs, emotions, concerns and so on sit behind what they want?

In positional approaches to negotiation, the parties often make extreme opening requests, sometimes called ‘ambit claims’, and attempt to persuade, coerce or deceive the other side into moving closer to this initial demand. They usually end up making incremental concessions towards a settlement figure somewhere between their original claims. Negotiation theorists Howard Raiffa, John Richardson and David Metcalfe in their famous 2002 work Negotiation Analysis: The Science and Art of Collaborative Decision Making have called this the ‘negotiation dance’. This approach is commonly focused on easily quantifiable factors, of which money is a favourite, and in practice it is often encountered in areas such as workers’ compensation or personal injury negotiations – although many other dispute contexts, such as commercial, contractual and matrimonial property disputes, can also be the subject of the use of this style.

Positional negotiation may involve sufficient concessions by the parties to result in a compromise settlement, or the incremental concession-making may falter before agreement and negotiations terminate without settlement. The compromise point, if any, is somewhere adjacent to the mid-point between the parties’ opening claims, the exact end location depends on their relative bargaining strengths, the techniques and strategies they deploy and their respective needs for resolution.

Positional negotiation can be a competitive and adversarial experience which assumes that resources are limited, that the parties’ goals are mutually exclusive and that a gain for one side will entail a loss for the other. It involves each negotiator using influential sources of power at their disposal, as well as tactics of persuasion, bluffing, threats, deception and demanding last-minute ‘add-ons’.

Unfortunately, it is rightly associated with legal cultures in which adversarial negotiation – and a focus on rights, duties and damages – can be a precursor to adversarial litigation. However, while there is evidence of positional negotiating behaviour in legal cultures, the efforts of non-adversarial lawyers, the ADR Research Network and others to include dispute resolution knowledge, skills and attitudes in lawyering and legal education make it dangerous to over-generalise on this point moving forward.

Interest-Based Negotiation

Interest-based negotiation approaches are preferred over positional methods in mediation. Dispute resolution experts advocate that interest-based negotiation is the more positive and holistic approach. Interest-based styles of negotiation look less at the parties’ positional and monetary demands and legal arguments, and more at the parties’ personal, business, reputational and other interests and priorities. This is done in a co-operative and collaborative way.

While acknowledging different, and at times competing party interests, interest-based negotiation attempts to identify goals that are not mutually exclusive and promotes outcomes which go beyond compromise and add value to all involved. This means moving away from zero-sum assumptions and game theories of negotiation, and instead trying to uncover the parties’ real personal and commercial interests, needs and priorities. Focusing on interests tends to move negotiations from a core monetary issue towards multiple subsidiary issues.

Interests in negotiation can be immediate and personal, such as saving face and being treated with dignity, or general and social, such as resisting business competitors or receiving public recognition. For example, in an apparently simple breach of contract claim for late supply of retail goods, the supplier or purchaser, or both, may have multiple interests: preservation of business reputations, avoidance of negative publicity, mutual exoneration from blame, validation for past conduct, preservation of commercial relationships, external approval for settlements, a fair negotiation procedure and mutually-appropriate timing, place and method of settlement  payments. The range of diverse interests at the negotiating table increases the resources over which to bargain and trade and ultimately the value that is on the table for distribution among the negotiators.

While parties may indeed compete over certain interests, such as publicity versus privacy, some interests may dove-tail and others may overlap. Where, in the example above, parties might have become deadlocked if focused only on financial compensation, a broader appreciation of personal, commercial, procedural and relational interests could provide a platform for constructing creative solutions which meet as many current and future needs as possible.

Interest-based negotiation does not, however, imply simplistic surrender on substantive issues. Rather, it requires the development of productive working relationships in which the parties share information, disclose their own interests and attempt to accommodate the other side’s, communicate constructively and otherwise negotiate in problem-solving ways. To promote interest-based negotiation in deep-seated conflicts, mediators help parties to shift from a competitive bargaining to a collaborative analytical and problem-solving approach, and to commit themselves to a genuine exploration of a wide range of possibilities.

Learning lockdown communication strategies from the art of interest-based negotiation in mediation practice

As home-based negotiators and communicators in lockdown, what we can learn from the art of mediation is that we need to ask more than one question when we are communicating and negotiating with others. We certainly need to understand what we and the other person wants. But we also need to ask the why question. Why do we/they want that? What are our/their priorities, needs and interests? Is there a creative way to mutually satisfy the needs and interests of each of us?

In addition, we need to engage with our dispute resolution agency. It’s in our power to create productive working relationships with our families and our colleagues (and others outside the home). We need to actively share information, disclose our interests and attempt to accommodate the other side’s. We need to work on communicating as constructively and positively as possible and to adopt problem-solving ways. We need to intentionally shift from a competitive bargaining approach to an analytical, problem-solving approach. And we need to commit ourselves to a wide exploration of a spectrum of potential possible solutions and outcomes. If we need outside help with these things, we need to seek that out. A register of nationally accredited mediators is available via the Mediator Standards Board.

Ultimately the relationship between cooperation and competition in negotiation and dispute resolution processes is complex. If we are collaborative on our own we are likely to be exploited – therefore self-interest requires some level of competitiveness. If, however, we – and the person on the other side of our communications or negotiation – are persistently competitive, we could both suffer loss through high opportunity costs, protracted disputation, bedeviled relationships or the loss of the value of what is being contested. How to move from individual self-interest to mutual trust and collaboration is a strategic challenge in any negotiation. When expert mediators aren’t in the house or virtual office to help us with that process – the responsibility to work it out falls to us.

This is a challenge – but it’s one we can meet!

Endnote: If you are interested in training to be a mediator there are many training options available. I have the privilege of being a co-director with Associate Professor Libby Taylor of the Bond University Dispute Resolution Centre (DRC – started by Laurence Boulle and others in 1989). At the DRC we run short courses in mediation and family dispute resolution.  You can see the schedule for courses coming up here. During COVID-19 lockdown all courses will be conducted online.

Tomorrow’s Blog: Learning from the art of mediation – additional mediator functions in negotiation.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 174-180. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Howard Raiffa, John Richardson and David Metcalfe, Negotiation Analysis: The Science and Art of Collaborative Decision-Making (Harvard University Press, 2002).

Positions and interests image 1: Gary Tremolada

Agreement image: steemit

Looking at the ways in which mediators intentionally put the mediation process and theory into practice is a useful way to explore the skill of negotiating to help us to communicate more effectively in lockdown and to positively prevent, manage and resolve disputes.

This post identifies some of the ways in which mediators assist the parties in a mediation by facilitating the negotiation process for them.

Facilitating parties’ negotiations

Mediators contribute expertise in numerous dimensions to assist parties to negotiate more constructively, efficiently and productively – managing and influencing the parties’ bargaining efforts. All mediator functions, in particular those relating to conduct of the process and assisting with the parties’ communications (see post #8), have bearings on the progress of negotiations.

The role of facilitating the parties’ negotiations is prominent in the process stage of mediation commonly referred to as exploration – which occurs after the problem-defining (or agenda setting) stage of mediation. The mediator brings focus and refinement to the parties’ negotiation efforts, systematically going through each of the items on the agenda and supporting the parties to communicate effectively about them. These discussions then enable problem-solving and option generation leading to the possibility of mutually acceptable decisions about the issues that were previously in contention.

If the parties adopt positional or argumentative approaches, mediators attempt to divert them into an interest-based or problem-solving mode. This requires interventions which shift the focus from positions (or in other words, what a party wants) to interests, needs and priorities (or why a person wants what they want). Positions are the tip of the iceberg, it’s only once the mediator helps the parties to mutually explore and understand their divergent interests that more diverse options for resolution can be generated.

Mediators use strategies such as encouraging the parties to separate the interpersonal aspects of disputes from substantive aspects, they look for and identify areas of common ground between the parties and they use objective criteria to develop settlement options. Mediators also stimulate parties to take account of future needs and interests. They act as catalysts for creative problem-solving by brainstorming with the parties about possible options or alluding to settlement options emerging from similar past situations.

When parties persist in positional bargaining mediators assist with predictable problems, such as responding to ‘final offers’ or ‘crossing the last gap’ (the last gap is a final issue on which the parties refuse to budge from their position or compromise). A mediator might secure the parties’ advance commitment to ways of dealing with the last gap, or when it does occur suggest procedures for dealing with it – such as referring to an expert or using random chance (for example, drawing options out of a hat or tossing a coin). Mediators assist parties in linking tradeable issues, making conditional offers or exchanging some losses for other gains. They educate parties about negotiation realities, for example by normalising difficulties in making final concessions for fear of losing face or jeopardising reputation. Mediators coach parties in separate meetings on how to make apologies or how to respond to apologies from the other side.

Mediators also have the function of assisting the parties to disclose their interests. This is important because people in conflict or dispute often conceal their real needs (and why they want what they want) from both the other side (and sometimes even their own advisers). In addition, sometimes it’s the case that the parties’ needs become obscured in the heat of discussions. When these things happen, the mediator works to assist the parties to articulate their substantive, procedural and emotional needs using skills such as clarifying questioning, active listening and reframing. Mediators also acknowledge the parties’ needs, and seek each party’s recognition of the other’s needs, in order to reorient each towards the other which helps the parties to develop new and shared perceptions of their problem and their relationship. Finally, mediators have the function of assisting parties in clarifying and defining disputed issues. The development of joint conflict definitions can provide a basis for developing settlement options beneficial to both sides.

The mediator function of facilitating party negotiations is extremely skilful and represents the true art of mediation practice. It requires a deep functioning knowledge and appreciation of the theories and practices of positional and interest-based negotiation – so that mediators can impart constructive techniques for the parties’ benefit. It is difficult to capture the art of facilitated negotiations in mediation in a way that is easily replicable by us in our homes and virtual offices while in lockdown.

The expert mediator might be absent from our homes and virtual offices, but there are definitely some positive take-home messages from the theory discussed above that can help to improve the way we approach lockdown communications and negotiations. Here are some key points.

We can enact our dispute resolution agency in lockdown communications and negotiations by:

• Adopting an interest-based or problem-solving mode.
• Ensuring we look not only at what people in the conversation want, but also why they want it.
• Separating the interpersonal aspects of disputes from substantive aspects.
• Identifying areas of common ground.
• Using objective criteria to develop settlement options (for example, recognised authoritative research on a point, information made available by the Government, or the law).
• Taking account of future needs and interests.
• Creative problem-solving and brainstorming about possible options.
• Looking at past successful options to inform the present situation.
• Negotiating ways to deal with the last gap in advance of commencing a discussion or negotiation (such as referring to an expert or using random chance (for example, drawing options out of a hat or tossing a coin).
• Working on ways we can improve how we make apologies and how we respond to apologies from other people.
• Ensuring we disclose our interests and don’t keep them hidden.
• Proactively ensuring we use effective communication strategies such as clarifying questioning, active listening and reframing (discussed in future posts).
• Acknowledging and recognising our own needs, as well as the needs of other people.
• Ensuring we proactively look to develop new and shared perceptions of a problem and of relationships.
• Actively working to clarify and define the issues in dispute or contention.

Posts in coming days will continue to explore negotiation practice and theory a little more deeply.

Endnote: If you are interested in training to be a mediator, at Bond University Law Faculty we run short courses in mediation and family dispute resolution through our Dispute Resolution Centre.  You can see the schedule for courses coming up here – during COVID-19 lockdown all courses will be conducted online.

Tomorrow’s Blog: Learning from the art of mediation – understanding more about effective negotiations in lockdown

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 102-104. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Negotiation image 1: Daksya Learning

Iceberg image: Negotiation Experts

It has been a consistent theme in recent posts that there is much we can learn from the mediation process and from mediation theory. Using some of the tools of mediation in our own lockdown communications and negotiations can help to make them more constructive and effective. When our communications go well, we are in a much better position to positively prevent, manage and resolve disputes while we’re locked down.

This post identifies some of the ways in which mediators assist the parties in a mediation to communicate. We extend these discussions on communication and negotiation in further posts this week.

How mediators assist communication between the parties in a mediation

When people are in dispute or conflict, or having difficult conversations, they tend not to communicate accurately, comprehensively or constructively. Poor communication can cause disputes and conflict to arise and escalate. In lockdown, we are faced with the added stressors of anxiety, fear and sadness about the current global pandemic and its impact on the world, our families, friends and colleagues and on our livelihoods and the world’s economies.

Mediators work to improve the quality of communications between parties in multiple ways and assist them with speaking with, and listening effectively to, each other. Mediators have a professional responsibility to have a deep knowledge of communication patterns in conflict. They are also highly trained in negotiation and communication skills, such as listening, questioning, reflecting, reframing and summarising (we post about all of these skills in more detail in upcoming posts). Providing parties with opportunities to have a voice requires mediators to speak less rather than more within the totality of the discourse, but it also requires positive interventions and the provision of communication assistance at the right times.

The mediator’s role as communications facilitator has several dimensions. First, mediators must themselves present as effective communicators and model good speaking and listening skills, attending to non-verbal messages and other signals within mediation dynamics. Second, mediators intervene directly in the event of poor inter-party communication. Where disputants are not listening to or comprehending each other, for example, mediators can ‘interpret’ communications or reframe a segment of dialogue to emphasise positive sentiments which might otherwise be lost. Mediators transmit messages between parties, and they can present offers and counter-offers in ways conducive to negotiation success. To ensure clarity and accuracy in the parties’ dialogue mediators use visual aids, such as whiteboards, and maintain written notes of points of agreement. Third, in separate meetings with the parties individually (also known as private caucus or private sessions) mediators advise and coach the parties on effective communication techniques, for example on how to respond to proposals or make counter-proposals without offending the other side.

How can we adopt the skills of a mediator for effective lockdown communications and negotiations?

The benefits of the process of mediation, and the presence of a third-party communications expert in these ways, are lost to us when we are managing our own communications and negotiations in lockdown. But we can draw from a mediator’s approaches to make our own methods of negotiating and preventing, managing or resolving disputes, as effective as possible. For example, we can:

• Ensure we always speak politely when communicating with others and listen carefully to what other people are saying.
• Attend to non-verbal messages and other signals that come up as discussions progress.
• Check in with the people we are communicating with to ensure that our understanding or interpretation of what they have said is accurate.
• When dialogue becomes negative, we can reframe what has been said to emphasise positive sentiments which might otherwise be lost.
• Work hard to enact positive communication methods – for example, active listening, acknowledging, summarising and appropriate questioning.
• Actively seek to generate a range of offers and counter-offers so it’s possible to package up an agreement on matters that each person can live with.
• Consciously be deliberate in using our dispute resolution agency to understand and empathise with the person we are communicating with and acknowledge their positions, needs, emotions and interests.
• Use visual aids, such as whiteboards or flipcharts, to assist with clarity and structure in our dialogue.
• Keep records of discussions, the identified common ground and matters on which agreement is reached.

Posts in coming days will explore negotiation practice and theory a little more deeply. Then subsequent posts will break the negotiation skill-set down to consider in further detail some of the more manageable elements of negotiation theory and practice in the mediation context that we can enact ourselves in lockdown. We’ll focus on understanding the nature of, and being able to analyse, disputes and conflict, and we’ll consider in detail how to practice some of the fundamental skills of effective communication (listening, acknowledging, reframing, summarising and questioning). If we intentionally enact these skills in lockdown communications and negotiations we will definitely be positively supporting the prevention, management and resolution of disputes.

Endnote: If you are interested in training to be a mediator, at Bond University Law Faculty we run short courses in mediation and family dispute resolution through our Dispute Resolution Centre. During COVID-19 lockdown all courses will be conducted online.

Tomorrow’s Blog: Learning from the art of mediation – how mediators facilitate party negotiations.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 102-104. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Communication image 1: Independence Plus Healthcare at Home

Communication image 2: envato market

There is much we can learn from the theory and practice of mediation. If we enact some of the ways in which mediators practice their art, we can achieve more effective lockdown communications and negotiations. This in turn will enable us to prevent, manage and resolve disputes in lockdown well.

In Lockdown Dispute Resolution 101 #6 our focus was on lessons from mediation in relation to the usefulness of establishing a procedural framework for communications – or in other words elements of a structured process. In this post our focus is on adopting aspects of mediation practice in relation to managing the emotional and physical communication environments. In mediation, it’s one of the mediator’s roles to ensure a stable emotional environment and an appropriate physical environment as favourable conditions of effective problem-solving and decision-making. In lockdown communications in our homes, online and in places outside our homes (in those moments when we get to go out!) we don’t have an expert to help us with this – the responsibility lies with us.

Managing the emotional environment

Each mediator will have different strategies for managing the emotional environment of mediation. In broad terms, mediators seek to provide a trustworthy and impartial presence, a fair procedure and a setting that is hospitable and non-threatening. They do this by restricting pressure, aggression and intimidation in the meeting room, by providing a disposition of even-handedness, and by reducing anxiety and defensiveness among parties. Mediators can contribute a positive tone to proceedings, a mood of confidence, reassurance to anxious clients, reduction of tension through humour, and opportunities for safe emotional expression. They acknowledge and validate concerns, assist parties with face-saving, and de-escalate conflict through the use of language which is acceptable to all sides.

Taking on the responsibility of improving the emotional environment in lockdown communications and negotiations – when we don’t have an expert mediator to help us – asks a lot of us, especially when most people don’t have formal mediation training. But there are positive strategies that can be put into action.

First, we can harness the mediation strategies discussed in post #6. That is, we can commit to the ground-rules of discussions – to make a commitment to behave respectfully to each other and for only one person to speak at a time; we can positively recognise areas of common ground; and we can use an agenda to structure discussions and keep them on track. Second, we can self-regulate to keep emotions in check and discussions focussed (we post more about self-management and self-regulation strategies later in the series). For example, we can make sure that we communicate when we are feeling emotionally stable. If we start to feel angry, aggressive or agitated and this is interfering with effective communications, then we can proactively recognise that and call for a time-out or to adjourn the discussions until another time.

A third useful strategy (which is also discussed in more detail in a post down the track) is that of acknowledgement – this means using our dispute resolution agency to make an intentional effort to be empathetic and purposefully acknowledge and validate each other’s concerns. We can use phrases like: ‘it sounds as though you feel frustrated’, ‘this must be difficult for you’, or ‘I can hear from what you’re saying that you’re a bit sad about that’. Finally, we can be mindful of when it’s necessary to allow face-saving (which means ensuring everyone in the discussion retains a sense of dignity and self-worth), and we can actively de-escalate conflict by remaining calm and making intentional and careful choices about the language we use (see also post #4).

Creating an appropriate physical environment for communication

Mediators make deliberate decisions in mediation practice to provide an appropriate physical environment. When we are engaged in personal communications in lockdown at home, we also need to ensure that we are in an appropriate physical environment for our discussions.

Drawing on mediation practice, there are a range of strategies we can enact. For example, ensuring we find a quiet place to sit comfortably, where we are free from interruptions and the lighting is at an appropriate level. We should choose a room that is relatively neutral, like the living or dining-room, for example, rather than a person’s bedroom. It can be constructive to have a whiteboard – even just a small one, or in the alternative a flip-chart or some paper, or an electronic device – for writing up the agenda and taking notes about possible options and solutions that are discussed. We might also harness relevant physical symbols that make us feel comfortable and productive. For example, having a photo of the children on the table when talking about arrangements for them to keep a focus on their best interests. It’s also a good idea to set up with glasses of water for refreshment.

Realistically, in lockdown a lot of our workplace communication is occurring via online platforms. To create an appropriate physical environment for communicating with our colleagues, we can ensure that our platform backgrounds are calming and positive, or that they give our colleagues an insight into who we are by sharing an aspect of ourselves or our home life – such as putting a favourite book or picture in the background. We can also remember to mute our microphones when we’re not talking if a number of people are in an online meeting, and we can learn how to use the online features of waiting-rooms, breakout rooms and visual aids. It’s also basically important to have, for example, a good quality camera and microphone so the visual and audio aspects of communicating aren’t poor quality or frustrating.

So in summary

A mediator has two overall objectives in managing the mediation environment to provide support for the parties’ positive engagement in negotiation and decision-making – managing both the emotional and the physical environment. In lockdown communications we can learn from both those objectives. If we ensure a positive emotional tone and physical environment, we will be creating favourable conditions for effective interactions and communications with friends, family, colleagues and others during lockdown.

Endnote

The members of the ADR Research Network are all passionate about positive approaches to dispute resolution, such as mediation. As well as being scholars of dispute resolution many of us are accredited and practising mediators and some of us are coaches and DR trainers as well. If you are interested in training as a mediator you might like to investigate: Resolution Institute, Bond Dispute Resolution Centre, the College of Law and the Australian Mediators Association. You might also consider a postgraduate qualification in dispute resolution – many of the Network members’ universities offer these so there’s lots to explore.

Tomorrow’s Blog: Learning from the art of mediation – a negotiation primer.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 97-104; and from ideas and content in Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) Chapter 3. Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

Emotions in mediation 1: Mediator Academy

Emotions in mediation 2: ADR Daily

Negotiation table: New York Times

There is much we can learn from the theory and practice of mediation. As a professor of law, a nationally accredited mediator, registered family dispute resolution practitioner and co-director of the Bond University Dispute Resolution Centre, I am very passionate about mediation and its positive value in society and in law. I really believe that aspects of how mediators practice their art can help all of us to enact our dispute resolution agency for effective lockdown communication and negotiation.

Mediators are third parties who use the mediation process to assist people in dispute to communicate effectively about their positions, needs and interests. Mediators add value when they put the mediation process into action by creating favourable conditions for people to talk, problem-solve and make decisions together. As experts in negotiation and communication, mediators provide structures, procedures and interventions which parties and partisan advisers are unable to achieve on their own. The art of mediation can teach us how to create favourable conditions for our own interactions with friends, family, work colleagues and others during lockdown.

In this blog we explore how mediators establish a constructive procedural and structural framework to support parties in dispute to communicate and negotiate effectively. We consider what we can do as individuals in lockdown to replicate these approaches in our own efforts to negotiate matters and also as we work to prevent, manage and resolve disputes.

Mediators provide a procedural framework for parties to communicate with each other by managing and supervising the stages of the mediation process. As ‘chair’ of proceedings, mediators establish conduct rules, provide order, sequence and continuity, ensure adequate air-time for all parties, call and oversee adjournments and manage procedural snags. In doing so, they establish an environment of impartiality, security and control designed to support effective communication and negotiation.

In our own lockdown communications – particularly when we need to have difficult conversations or if we are attempting to manage or resolve a dispute – we usually don’t have an impartial, expert third-party assisting with a process and structure for the discussions. But we can improve our chances of things going well if we enact our agency to ensure that we do that for ourselves.

One important aspect of creating a supportive procedural framework that we can adopt from mediation practice is the establishment of ground-rules, or in other words, guidelines for each person’s conduct in the discussions. A second important aspect of the mediation process is the identification of common ground, or areas of established agreement. And a third aspect that can inform effective communication between individuals in lockdown is the use of an agenda, that is, the identification of a list of issues for discussion.

Establishing ground-rules: At the start of a mediation, mediators ask the parties to commit to certain ground-rules and these ground-rules become a critical rule of engagement in the process. Two of the most commonly used ground-rules are, first, that everyone in the process will behave respectfully towards each other, and, second, that only one person will speak at a time. These conduct guidelines help keep discussions constructive and on-track.

In our lockdown communications we can also establish ground-rules like these. We can say out loud at the start of a discussion or negotiation that we are committing to speak and engage respectfully with each other and that only one person will speak at a time. We won’t always succeed in adhering to the ground-rules. But having established them gives each person in the conversation the authority to remind others of them and if, for example, one person starts over-talking another, they can be respectfully reminded that their earlier commitment was not to do that. Something as simple as this can bring a sense of order and structure to communications.

Identifying agreement — the ‘common ground’: When we are communicating in lockdown in order to negotiate, and particularly when we are aiming to prevent, manage or resolve a dispute, there are often issues about which there is some disagreement. However, there are also often areas of agreement – or what mediators might call ‘common ground’. It is positive communication practice, and part of the role of a mediator, to identify and acknowledge existing areas of agreement between the parties and recognize that they represent an element of success in the communications that has already been achieved. Identifying agreement provides common ground on which decisions are not necessary and on which a constructive conversation can build. The practice of identifying common ground can promote an optimistic frame of mind and provide an effective foundation for the negotiations that follow. For this reason, it’s an important element of the procedural framework of mediation that we can adopt.

Issues on which there is agreement, the common ground, might involve matters substantive to the discussion. For example, if a couple are negotiating about who will get to use the home office for the morning it might be acknowledged and agreed that getting work done effectively at home is important to each person. Common ground can also exist on procedural matters, for example, each person might agree that they will set aside the time necessary for the discussion to achieve an outcome. Sometimes it is only possible to identify common ground at general levels, for example if parents are in disagreement about how much screen-time the children should have in a day, it might be agreed and acknowledged that both parents love their children and that each parent is concerned about the children’s best interests.

Defining and ordering the issues for discussion – setting an agenda: An agenda is a list of issues on which decisions are required. Issues can be defined in terms of positions – what people want – and also in terms of needs and interests – or in other words, why people want what they want. In a mediation, it’s the mediator’s role to present issues neutrally, in plain language and, as far as possible, in mutualised terms. This involves high-level skills of listening, synthesis and reframing. Mediators usually display issues visually to provide a source of reference for the remainder of a mediation – they commonly use a whiteboard to document the agenda so that everyone in the mediation can see and refer back to the identified issues. Parties in mediation are invited to prioritise the issues to provide a clear sequence for their discussion. The list of issues provides an important structural framework for discussions – establishing with clarity the matters requiring negotiation and decision- making; ordering the discussion of problems and issues; disaggregating overall problems into discrete elements; and suggesting a sense of finiteness to a negotiation or dispute.

In our lockdown communications we can borrow from mediation practice to assist with the effectiveness of discussions by setting an agreed list of issues for discussion and decision-making, making the list visible for all (on a whiteboard or even just on a piece of paper), determining an order of priority for the discussion of the issues and then keeping discussions on track by using the list to keep focused and on point.

Mediation is a principled and positive approach to facilitating constructive discussions about often difficult issues. If you are interested in training to be a mediator, at Bond University Law Faculty we run short courses in mediation and family dispute resolution through our Dispute Resolution Centre.  You can see the schedule for courses coming up here – during the COVID-19 lockdown all courses will be conducted online.

Next Blog Monday 13th April: Learning from the art of mediation – intentionally managing the emotional and physical environment of communications.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 77-78, and 99-100. Laurence is an esteemed member of the ADR Research Network and has long been a leader in the Australian and international dispute resolution communities.

Mediation figures: Shutterstock

Mediation scrabble image: Adamson, Bernays, Kyle and Jones Lawyers

Mediation post-it notes: Gard

Ground-rules: Shutterstock

Common ground: Professionally Speaking

Our verbal communications are only one dimension of the way we communicate with family, friends, colleagues and others in lockdown. Non-verbal communication is another dimension. Non-verbal communication consists of aspects of communication which can be seen by the other party – the ‘visuals’, and other forms of communication which can be heard – the ‘vocals’. To communicate and negotiate effectively in lockdown it is important for us all to be aware of body language messaging.

The term ‘visuals’ refers to all aspects of communication and messaging conveyed by the sender which are observed, as opposed to being heard, by the receiver. Body language is the most prominent form of visual communication. It involves our bodily appearance as well as our movements which express attitudes, feelings, emotions and other messages. For example, it could include a sender’s clothing, posture, body and limb movements, hand gestures, facial expressions, eye motions, and physiological reactions such as blushing, sweating and quickened breathing. The face and eyes are often portrayed as the most important conveyers of body language but micro-signals in these areas are not always easy to read and interpret.

We can fake body language to some degree, but it’s not always easy, for example in relation to eye signals, facial expressions, blushing or shortness of breath. Children, in particular, find it difficult to conceal body language and their crossed legs or averted eyes may betray the apparent innocence of their spoken words. Unlike verbal communication, body language never stops and when a person is verbally silent it remains the only way in which they are communicating.

It is important for us all to be aware of the stark contrasts in body language messaging across diverse cultures, but some generalised features of body language and their possible meanings in western societies are:

• Open limb positions — receptivity towards what is being said.
• Crossed or folded limbs — defensiveness towards what is being said.
• Forward-leaning body posture — attentiveness to speaker.
• Backward-leaning body posture — indifference to speaker.
• Open hands — plain dealing and honesty.
• Closed fists, pointed fingers — aggression, threatening attitude.
• Direct eye contact — sincerity, openness, honest dealing.
• Averted gaze, avoidance of eye contact — deceit, guilt, shame. (Although in certain cultures direct eye contact may be impolite and, conversely, avoiding eye contact may be intended as a sign of respect rather than an admission of guilt or liability.)

Body language expert Allan and Barbara Pease make the following observations (2017: 10):

• More than 65 per cent of a message is conveyed non-verbally.
• Non-verbal communication has a significance in communication five times that of verbal communication.
• In general, non-verbal communication conveys interpersonal attitudes while verbal communication imparts information.
• Some non-verbal signals are learned and some we are born with.
• A single gesture may have many meanings and should be interpreted in the context of associated verbal and non-verbal communication, as well as the person’s culture and the social environment in which it takes place.

Body language can either confirm or contradict what is being said verbally, or it might simply confuse. When it comes to interpreting body language it is dangerous to place too much weight on a single factor.

Body language in the form of ‘visuals’ also includes messages received from the broader environment such as the size of an office, the shape of a table, the size and height of chairs, seating placements, and lighting for example. These factors can sometimes convey power, strength, status, domination, tranquility or equality and other such messages more emphatically and unequivocally than words. Without any spoken terms, body language or other express communication, can convey a whole mood and atmosphere.

‘Vocal’ aspects of communication refer to the many messages sent and received in verbal communication over and above the actual words, terms and language used. They are sometimes referred to as paralanguage and include volume, pitch, pace, tone, inflection, emphasis, intonation, rhythm, resonance and silence. One can add to this litany things like laughter and sighs. The vocal elements of communication disclose emotion, attitudes and states of mind which are not conveyed through words themselves in verbal communication.

As the vocals are auditory signals (except of course for silence), it is difficult to demonstrate them through written words. However, the following illustration shows the different meanings which the same five words can have, depending on where the emphasis is placed by the speaker:

• LexisNexis mediation books are awesome (but not mediation books from other publishers).
• LexisNexis mediation books are awesome (but not LexisNexis books on meditation and medication).
• LexisNexis mediation books are awesome (but not LexisNexis mediation DVDs, you-tubes or blogs).
• LexisNexis mediation books are awesome (I had my doubts but now that I’ve read them …).
• LexisNexis mediation books are awesome (they are unbelievably good, top class, of the highest quality).

As with body language, some forms of vocal communication are difficult to disguise. Where the vocal messages contradict the spoken words, listeners tend to be influenced more by the vocal message than the words spoken. This can be demonstrated in relation to sarcasm where emphasis and tone can give spoken words a meaning diametrically opposed to their literal meaning. So, if you say the above sentence with the relevant emphasis and tone on both syllables of ‘awesome’ it can be received as a contemptuous comment on the books’ merits. There are many subtle deviations from literal verbal meaning that can be detected from vocal communication.

In our COVID-19 lockdown communications and negotiations our aim in playing the lockdown language game is to prevent, manage and resolve disputes effectively. For this reason, it’s important that we harness our dispute resolution agency and work hard to observe and interpret vocal messages and body language appropriately and with care. We need to take care not to assign a mistaken meaning to another person’s conduct – perhaps by using a summarising technique or asking clarifying questions (both these skills are discussed in more detail in later posts in the series).

In other words, sometimes we need to make tentative interpretations of visuals and vocals and check-in with the person we are communicating with to see if our interpretation is correct, never reading too much into a single cue. For example, a person’s sudden body movement might be caused as much by discomfort, habit or a medical condition as by anger or boredom. If a person frowns at something it might be that they are disapproving or upset, or it might simply be that they are distracted by something completely different or are unable to see clearly without their glasses. Where behavioural signals occur in clusters, for example dilation of the pupils, heavier breathing and distressed hand movements, they are easier to diagnose tentatively than where they are isolated occurrences.

Non-verbal signals are most significant where they are incongruent with the verbal message, for example where the verbal messages signify assent but the crossed legs or nervous eye-movements suggest resistance, or where the words suggest honesty but the higher pitched voice suggests deceit.

In lockdown, making intentional, positive choices about our own non-verbals, as well as about the ways in which we interpret the visual and vocal body language of others, is one way we can harness our dispute resolution agency for constructive communications and positively prevent, manage and resolve disputes.

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.29-6.39 with the kind permission of the authors. Thank you Laurence and Nadja! Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

See also, Allan Pease and Barbara Pease, The Definitive Book of Body Language (Harlequin, 2017).

Body language image: Essential Personnel

Facial expression image: Backstage

We all have our own personal communication style. That’s what makes communicating in lockdown a challenge but also interesting! What we might not realise is that there is science and theory behind how we speak to each other and the terminology we choose to use. Harnessing our dispute resolution agency in making good communication choices is essential to preventing, managing and resolving disputes that might arise while we’re all locked down.

In this post we explore how the idea of a ‘language game’ can help us understand the background norms structuring our communication environment in lockdown.

Ludwig Wittgenstein – a German philosopher born in 1889 in Vienna – used the notion of a language game to explain the underlying conventions of different forms of social discourse and to make explicit some of the implicit expectations that lie behind different forms of social interaction. Diverse communication environments reflect different expectations as to appropriate or expected forms of speech and behaviour. For example, people communicate differently in more formal environments (such as a courtroom) compared with less formal environments (such as a party). Different contexts have different rules of engagement – different language games that must be played – for communication to be effective.

Wittgenstein’s point is that people are often unable to participate seamlessly in a language game unless they already understand, to a certain extent, the rules that apply to the specific communication context. He illustrated this point through the example of the name of a piece in chess. If you are shown a piece from a chess set and told, ‘This is the king’, it does not inform you how to use the piece. An understanding of the rules of the game of chess is required to know what to do with a ‘king’. On the other hand, if you do know the rules of the game and you are told that a certain piece is the ‘king’, then you will know exactly how to use it. The name ‘king’, when affixed to a specific piece, will tell a competent chess player to only move it one square in any direction, to protect it from threats by opposing pieces and so on.

The same idea applies to different communication environments. In a courtroom, for example, there are well-documented difficulties that arise when an unrepresented litigant attempts to engage in courtroom advocacy. At a party, certain types of comments will contribute to smooth conversation, while other types (such as offensive jokes, inappropriate questions or sharing of overly personal information) may cause social discomfort and be ignored or shunned by other party-goers.

Wittgenstein describes a language game as a set of rules for the use of language in social interaction, with ‘the speaking of language [being] part of an activity, or of a form of life’ (Philosophical Investigations, 11 [23]). Wittgenstein notes that language fundamentally influences – and, indeed, constructs – the ways in which people interact. Language is linked to social behaviour and to the social dynamic. People associate certain words and phrases with particular forms of behaviour and vice versa.

In the context of our current global COVID-19 crisis we are having to learn the rules of a new language game – the lockdown language game. An added layer of complexity is that the language game of lockdown is different in different contexts – the language game associated with communicating with family members under stress and confined at home will differ from that connected with communicating with anxious work colleagues over Zoom.

We need to think carefully about our new communication environments and harness our dispute resolution agency to respond appropriately. A failure to do so may result in a ‘clash of genres’ or what French philosopher Jean-François Lyotard called the differend. A clash of genres occurs when a person operates within one language game when the communication context is governed by a different language game.

One base-line element – a fundamental rule – of achieving effective communication in the context of the diverse manifestations of the lockdown language game is that there is an imperative for us to choose our words wisely. If we choose negative, accusatory, threatening, challenging or unhelpful words we will probably exacerbate the potential for conflict, contestation and struggle to arise as a result of our communication approach. On the other hand if we craft our communications from a positive perspective, we are more likely to negotiate and communicate effectively, and also prevent, manage or resolve disputes.

In mediation practice we use a skill called ‘reframing’. Reframing is where the mediator takes negative language the parties might be using and proactively reframes it in appropriate language. A later post in the series will discuss the art and science of reframing in more detail.

When mediators reframe, that is choose to use less negative and more appropriate terms, they can have a positive influence on the tone of the communication environment. The use of constructive words can also induce the people we are communicating with to think about matters more helpfully and from a new perspective, and it can help people to be more open to embracing productive approaches to problem-solving.

For example, instead of saying ‘You’re lying’, we could ask ‘Are you sure you’re accurate about that?’

Here are some further examples:

Communicating effectively in lockdown with our families, work colleagues and others is a challenging experience when we are also trying to manage feelings of uncertainty, stress and sadness. Harnessing our dispute resolution agency to make positive choices about the words we employ in our communications will help us to avoid clashes of genres in how we engage with the lockdown language game(s). The consequences of such actions are unavoidably positive: more effective communication and proactive achievement of the prevention, management or resolution of disputes.

Tomorrow’s post: It’s not all about the words – effective communication and body language.

Acknowledgements:

The idea for a post on choosing words wisely was inspired by Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.27-6.28 and Table 6.2. Both Laurence and Nadja are esteemed members of the ADR Research Network and have long been leaders in the Australian and international dispute resolution communities.

The content about the notion of language games was adapted and reproduced from Rachael Field and Jon Crowe, Mediation Ethics – From Theory to Practice (Edward Elgar, 2020) Chapter 7. See also Rachael Field and Jonathan Crowe, ‘Playing the Language Game of Family Mediation: Implications for Mediator Ethics’ (2017) 35 Law in Context 84. Jon Crowe is another esteemed member of the ADR Research Network and a dear friend, co-author and colleague.

For further relevant scholarly sources see for example, Ludwig Wittgenstein, Philosophical Investigations (Macmillan, 2nd ed, 1968); Leonard Linsky, ‘Wittgenstein on Language and Some Problems of Philosophy’ (1957) 54(10) Journal of Philosophy 285; Max Black, ‘Wittgenstein’s Language-Games’ (1979) 33(3/4) Dialectica 337; Norman Malcolm, ‘Wittgenstein on Language and Rules’ (1989) 64(247) Philosophy 5; Hilde N Lindemann, ‘Wittgenstein Meets “Woman” in the Language-Game of Theorizing Feminism’ in Naomi Scheman and Peg O’Connor (eds), Feminist Interpretations of Ludwig Wittgenstein (Pennsylvania State University Press, 2002); Dale Jacquette, ‘Wittgenstein on Lying as a Language-Game’ in Daniele Moyal-Sharrock (ed), The Third Wittgenstein: The Post-Investigations Works (Routledge, 2004) 159; Kenneth Mølbjerg Jørgensen, ‘Conceptualising Intellectual Capital as Language Game and Power’ (2006) 7(1) Journal of Intellectual Capital 78; Jean-François Lyotard, The Différend: Phrases in Dispute (Georges van den Abbeele trans, University of Minnesota Press, 1988).

Wittgenstein image: Funny Face: How Ludwig Wittgenstein “Invented” Emojis

Chessboard image: Chess Board Dimensions | Basics and Guidelines

Chess pieces image: Wikipedia Chess

It hardly seems necessary to say out loud that effective communication is important to preventing, managing and resolving disputes.

Communication is an indispensable ingredient in all forms of personal and professional engagement and is a major discipline in its own right. Effective communication skills can help to ensure that our interactions with others are clear, positive and balanced. We can use communication strategies to reassure the people we are communicating with, to form alliances with them, and to create a positive communication environment. When we’re communicating with others, we need to ensure that we connect with them. We need to choose approaches specific to their communication needs so that they feel understood, listened to, and heard.

In harnessing our dispute resolution agency (see yesterday’s Blog) we have four broad responsibilities in our communications with others:

1. We need to be effective communicators and adopt appropriate communication practices. Words are our main, but not only, tool.
2. We need to work hard to ensure our communications with others are as accurate, explicit, comprehensible, constructive and appropriate as possible.
3. We need to keep learning and improving our effective communication techniques.
4. We need to foster environments which encourage effective communication.

The beginners’ guide to communication would say simply that human communication involves (at least) two parties: a ‘sender’ and a ‘receiver’. The sender wishes to transmit a message to the receiver and sends it by way of verbal, vocal and visual messages. The receiver takes delivery of the message and the communication is complete. Unfortunately, it is not quite as simple as beginners’ guides are prone to suggest.

The passing of a message from one person to another is not as mechanical as the passing of a baton from one relay runner to the next. This is because both the sender and receiver are affected in the communication process by a range of factors: the social context of the communication, the respective emotions, cultural expectations, past experiences and assumptions, biases and prejudices. These are all subjective and highly variable factors which can differ significantly from one person to another — even when people are from the same cultural background.

This means that the sender ‘encodes’ his or her message; that is, the words, the vocal effects and the body language used are based on their perceptions of the world. Likewise, the receiver ‘decodes’ the message in terms of their perceptions, biases and frames of reference. Because of the subjective nature of both the encoding and decoding functions, there may be substantial differences between what the sender thought they were communicating and what the receiver thought was being communicated. In other words, the intention of the message being communicated does not always match its impact on the receiver. Hence the need to move beyond basic assumptions about the simplicity of communication to more sophisticated understandings.

In reality, communication seldom consists of a single message from one person to another. In families, workplaces and communities it often involves a series of ongoing messages among three or more people. This makes things both easier and more complex at the same time. It is easier because the receiver of a message usually responds to it and this can help to clarify perceptions. Receivers can give feedback to the sender through verbal, vocal or visual means. Thus, the receiver may ask a clarifying question which gives the sender the opportunity to resend the message more clearly, more emphatically or more accurately than before. Moreover, the sender may detect from the receiver’s body language that the message has not been understood, or has been misunderstood, and instantly clarify it. In larger communicating groups – such as workplace meetings or family conversations – one receiver can give feedback that benefits the effectiveness of the communication for all.

In situations of stress, if the communication environment is tense and the communication approach is fast and furious, then the encoding of each person may be clumsy and the decoding may be defective. In such circumstances, if a receiver is intently focused on the words being used by the sender, they might pick up on the factual information in the message but overlook the attitudes and feelings accompanying it. Likewise, where a sender uses aggressive language or body language this may cause the receiver to overlook important factual information being conveyed.

In an attempt to systemise the complexity of interpersonal communication, Schulz von Thun (2010) has identified four meanings to every message.

1. The factual meaning: what do the words in the message convey in terms of their factual, objective and rational meaning?
2. The self-disclosure meaning: what does the message reveal about the sender himself or herself?
3. The relationship meaning: what does the message say about how the sender views the receiver and the relationship between them?
4. The appeal or request: what does the sender want the receiver to do?

In conflict and dispute situations it is common for receivers of a communication to hear only one aspect of the message (generally one that fuels the conflict) and partially or completely miss the other meanings. An awareness of the four-message model can help us to remember to look for the meanings that may have gone unnoticed by a receiver. Yet another layer of complexity is added to communication dynamics by the fact that senders are not always explicit about all four meanings in their messages.

If as receivers and senders of communication we can aim for as much clarity in the transmission of our meanings and understandings as possible, we will be communicating more effectively. And this in turn will ensure that we are doing what we can to positively prevent, manage and resolve disputes as we navigate lockdown in our families, workplaces and communities.

In the Blogs ahead we’ll be focussing on some of the more detailed elements of effective communication: for example, the importance of the words we choose, body language and ways to harness it as an effective non-verbal form of communication, helpful approaches to vocal communication, the critical nature of effective listening and how to listen actively and effectively, the importance of acknowledgement, how to ask questions appropriately, and the communication tools of summarising and reframing and how to do them well.

Tomorrow’s Blog: Choosing our words wisely

Acknowledgements:

Parts of this post were adapted or reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3^rd ed, 2020) paras 6.15-6.22 with the authors’ kind permission. Both Laurence and Nadja are esteemed members of the ADR Research Network, and have long been leaders in the Australian and international dispute resolution communities.

F Schulz von Thun, Miteinander Reden 1 (Rowohlt, 2010)

5 tips for effective communication image: The Centre for Creative Leadership

The von Thun example from daily life: Madame Marinita Schumacher

Sender/receiver image: Health Service Management

Photo by Pixabay on Pexels.com

In the current climate there are many things we can’t control. It can feel a little overwhelming. However, there are many things that do still remain within our personal individual control. Included in that list are our approaches to communicating with others, and acting intentionally so as to positively prevent, manage or resolve disputes.

In order for us to develop a strong foundation for using dispute resolution skills purposefully in our daily lives, it’s important that we recognise that we have the ability to decide to act intentionally as agents of positive engagement with each other.

Things within my control:

• My choices.
• My words.
• My attitude.
• My effort.
• My actions.
• My beliefs.
• My opinions.
• My responses.
• My thoughts.
• My boundaries.
• My own social distancing.
• My engagement with the news and social media.

Agency involves taking individual control over a situation. People with agency feel that they are able to act independently and have the capacity to make their own free choices and decisions. When a person has agency, they are able to act on their own will and of their own accord.

Words associated with the notion of agency include: individual control; intentional action; empowerment; and free choice.

There are always external influences on us, and on our actions, as human beings. However, when we have a sense of agency, we feel as though we are able to manage those influences (as well as issues that arise in relation to, or as a result of, them). Having agency means we have a sense of control over our life: we have choices, a capacity to act and decision-making power for ourselves.

Our agency in relationships is enacted in our choices about how we behave and communicate. Relational agency concerns how we choose to interact with and impact on other people. We can choose to make those interactions positive and constructive even when faced with stresses, worries and challenges. But this requires effort, energy and intentionality. An investment in our dispute resolution agency is worth the effort, however, and can only have positive and empowering consequences.

Now is the time for all of us to harness a sense of agency in relation to how we choose to communicate with others, and in terms of how we navigate the stressors and challenges of living and working in lockdown. Effective communication – to be discussed in Blogs in the coming days – is one important key to the prevention, management and resolution of disputes. Some basic aspects of resilience building and self-management are another essential enabler of preventing, managing and resolving disputes.  And of course, equipping ourselves with specific negotiation and dispute resolution skills is critical. We’ll be blogging about all these things across the Lockdown Dispute Resolution 101 series.

In accepting our own agency in relation to the quality of our relationships with others, we are accepting that we have the power to make positive choices about how we communicate and interact. It could even be said that in our current global situation we have a responsibility to do so.

Tomorrow’s Blog: Effective communication – the basics and the complexities.

Some scholarly resources on agency: Mustafa Emirbayer and Ann Mische, ‘What Is Agency?’ (1998) 103(4) American Journal of Sociology 962; Jack Martin, Jeff Sugarman and Janice Thompson, Psychology and the Question of Agency (SUNY Press, 2003); Albert Bandura, ‘Toward a Psychology of Human Agency’ (2006) 1(2) Perspectives on Psychological Science 164; Bryan W Sokol et al, ‘The Development of Agency’ in Richard M Lerner (ed), Handbook of Child Psychology and Developmental Science (Wiley, 7th ed, 2015) 284.

Acknowledgement: Some of the content of this Blog was adapted from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020)

This post is by Paul Lewis – an expert family lawyer and leading mediator who is a partner of Gadens in Sydney. Paul has been nominated for the Mediator of the Year category of the 2020 Australasian Law Awards.

The classical model of mediation is ”facilitative mediation” during which the mediator’s primary function is to encourage meaningful and constructive dialogue between the parties, without providing any comment or opinion on the substance of the dispute or providing suggestions or ”options” to assist the resolution of the dispute.

The requirement that a facilitative mediator refrain from ”entering the fray” springs from one of the underlying foundations of facilitative mediation, namely, the concept of ”self-determination” and the related concept of ”party autonomy”. It is worth noting that the advent of facilitative mediation arose through the germination and growth of ”community mediation” in the United States of America from the 1960s through to the 1970’s. Community mediation settled in Australia with the passage of the Community Justice Centres Act 1983 (NSW), the legislation explicitly adopting the principles of facilitative mediation.

References to evaluative mediation, sometimes called ”advisory mediation”, arose after the formal justice system began to co-opt mediation in to its prescriptive rules and case management procedures. This happened in Australia from the early 1990’s onwards and occurred earlier in North America. Under the model of evaluative mediation, the mediator is permitted to provide his or her views and professional observations about the content of the dispute on the basis that the mediator is a ”subject matter expert” in relation to the dispute.

The NADRAC glossary of dispute resolution terms (first published in 1997 and updated in 2012) describes evaluative mediation as follows:

”Evaluative mediation is a term used to describe processes where a mediator, as well as facilitating negotiation between the parties, also evaluates the merits of the dispute and provides suggestions as to its resolution. (See also combined processes.) Note: evaluative mediation may be seen as a contradiction in terms since it is inconsistent with the definition of mediation provided in this glossary.”

Standard objections to the evaluative model of mediation in civil cases include the following:

• that the introduction of an evaluative component by the mediator may cruel, or at least stifle dialogue between the parties;
• that the selection of an evaluative mediation model may see the parties, or one of them, adopt a passive stance in order to find out what an independent mediator thinks of the dispute, thereby defeating the intrinsic value of the mediation as an opportunity to reach a negotiated agreement; and
• that a professional viewpoint or opinion expressed by a mediator will merely be one view among a range of possible views, and therefore not helpful in moving the parties towards agreement.

In the context of the evaluative mediation of financial cases under the Family Law Act 1975 (”the Act”), the above objections are, in practice, overstated. The law in relation to property settlements under the Act is described, in jurisprudential terms, as a ”discretionary property regime” in contrast to a ”community property regime” seen in overseas jurisdictions such as New Zealand, South Africa, California and other states of the United States of America. Similarly, the determination of spousal maintenance cases under the Act involves the exercise of discretion by the Court within the parameters of the legislative framework and statutory criteria, and the associated caselaw.

Systems of family law based on discretion, rather than fixed rules, are rationalised on the basis that they provide individualised justice and better justice in the vast majority of cases. The disadvantage of discretionary regimes is said to be unpredictability, and there is merit in that assessment. Community property regimes provide greater certainty or predictability but at the expense of just outcomes in many cases (being equivalent to a ”one size fits all” approach.)

In a discretionary family law system, mediation calls for an evaluative model, at least in financial cases. Many parties, even when they are legally represented, have firmly held views about ”fairness”, such views being highly subjective and often contrary to well-established legal principles in the vast majority of cases. It is advantageous to have a subject matter expert as the mediator in such financial cases, and for the mediator to be able to inject an evaluative component during the mediation if it might resolve an impasse, correct a misstatement of the law or bridge the gap between the parties’ respective bargaining positions by the identification of unexpressed needs and generation of additional options .

A good evaluative mediator is judicious with the expression of his or her evaluative opinion or input during the mediation. Indeed, the reason that evaluative mediation is often described as a ”blended process” in the mediation literature is because a good evaluative mediator will approach the mediation in the early stages as a facilitative mediation. An evaluative mediator hangs back and checks out whether the parties may be able to reach a negotiated agreement ”under their own steam.” The latter observations are critical in deflecting the criticisms inherent in the typical objections to the evaluative mediation process, as stated above.

It is important that the process of evaluative mediation is explained to parties during their preliminary conferences (separate preliminary conferences are the norm in family law cases, not just parenting cases). Further, the nature of the process must be clearly identified and described in the agreement to mediate.

At a micro level, the ways in which the mediator introduces an evaluative component must always strive to meet the other process requirements in mediation of impartiality and procedural fairness. Mediation clients readily understand the concept of the evaluative mediator having the liberty or discretion to inject his or her viewpoint during the mediation if the mediator believes ”that doing so may assist the parties reach a resolution of the matter.”

Paul A. Lewis Gadens, Sydney ©