This article is submitted by Professor Laurence Boulle, eminent professor and teacher of dispute resolution at universities throughout Europe, Africa, North America and Australasia.

Perspectives

Politics and government are complicated affairs. So are many forms of dispute resolution (DR). The two social systems have different premises: DR is about building a consensus that did not previously exist, while politics is about competing for the levers of state power. There are, however, exceptions and qualifications to the dominant operational mode of each pursuit, and inevitable similarities between them. This piece examines the views and insights of a major Australian politician from a DR perspective.

Malcolm Turnbull’s book, A Bigger Picture (Hardie Grant Books, 2020), received a hostile reception in the conservative media – which had in turn been censured in the book. A prime minister’s autobiography, however, is an important potential contribution to social understanding – it emanates from the source, so to speak. This work is revelatory, analytical, polemical and sometimes confronting. Prospective readers also require a health warning – the work is just shy of 700 pages in length and could fell an intruder not maintaining their physical distance.

Diligent dispute resolvers examine the world in search for evidence relevant to their own extensive knowledge base. These days this involves a focus on personal and institutional biases – for example confirmation biases, the availability heuristic, the hindsight bias and other cognitive and social patterns. This mediator preoccupation annoys friends and family but focuses our inquisitive instincts in the way we observe political discourse, popular culture or classical literature. Biases and heuristics abound in all autobiographies, as they do in DR writers.

In taking up this book, I was keen to see how the author (albeit not NMAS-accredited) commented on, or self-assessed, his role as a conflict manager, negotiator, conciliator and dispute resolver. Here the work provides much to ponder, analyse and evaluate in the course of its compelling narrative.

Politics

We know that party politics in parliamentary systems of government, as in traditional common law systems, is intensely partisan and adversarial in nature. We have also known, though not quite as obviously, that adversarialism can sometimes be as intense within a political party as it is across party lines. These propensities are confirmed in the Turnbull memoirs through frequent references to policy, personality and politics being played out as much on intra-party as on inter-party lines. This is a fine reminder for dispute resolvers not to not overlook the presence of hawks, doves and moderates (John Wade’s enduring terms) within negotiating teams, and sometimes also among each team’s stakeholders outside the DR room.

In terms of agents external to formal political processes, Mr Turnbull ventures an assessment that will be accepted by some and rejected by others – such is the tribal nature of current Australian politics. In the author’s assessment the right-wing media – print, electronic, televised – has assumed the status of a ‘political party’ on issues such as energy, refugees and the environment. They lack, however, responsibilities associated with electoral and other accountability systems designed to monitor and discipline those within the formal political processes.

This is a significant theme in the work and is a reminder for those working with disputes, whether small or large in size and consequence, that external stakeholders can be deal-makers or deal-breakers and need to be included appropriately in the respective process. This is easy neither in politics nor in mediation but could be substantial in achieving settlements – and maintaining them. This task is potentially easier for mediators than for prime ministers.

Power

The former PM is unrepentant in admitting that he was involved in ‘many political punch-ups … never being shy of confrontation’. This suggests he was not reluctant to exercise his dispatchable power in politics, and also in business.

Power is also a major factor in international relations. Australia’s long involvement in middle eastern countries has always been a power-centred intervention, based on military capability, powerful allies and political choices, and it was strongly endorsed by the former PM.

Some reflection here, with his own considerable power of intellect, might have caused the former PM to examine Australia’s past and current roles more critically. After all, the power invasions and occupations of Afghanistan and Iraq have been regarded as serious failures in many forums, including in the US. Here politics has the same problem of the sunk costs bias often found in DR contexts: it induces parties to continue the ‘good fight’ because of what they have already lost in the past as opposed to making decisions in terms of what they might gain in the future. In mediation settings, a potential counter to the sunk cost bias is the reality-testing function of interveners, something less easy to broker in international relations.

 Mr Turnbull was, on occasions, able to use power interventions of a less militant kind. He pushed, for example, for the regulation of export controls on Australian gas when all prior attempts at negotiations had failed. This, despite regulation not complying with dominant ideologies relating to the role of markets. Necessity, as we know, can the mother of invention, though the confirmation bias is always potentially present in one person’s account of social developments.

Power plays were also evident in the leadership challenges within Mr Turnbull’s Liberal Party. A leadership challenge is a process in which intra-party power dynamics determine outcomes definitively, without mediator-like nuances of options, concessions and mutual gains. Here the former PM was twice a winner and twice a loser, the force of numbers in each case dictating loss and gain, without any middle ground.

Dispute resolvers understand the place of power interventions in appropriate conflict circumstances, but usually only after preventative, interest-based and rights-focused interventions have failed.  ‘Branch-stacking’, openly admitted to in the book, is a peculiarly power-driven political strategy within parties, but it has potential DR analogues: enlarging a client’s professional adviser team, strategically lacking settlement authority, bringing intentional ambiguities into offers and making irrevocable commitments elsewhere (and other ‘tricks’ of negotiation well documented by Hal Abrahamson). The tricks, in politics and DR, may lead to short-term gains but cause long-lasting damage to relations, credibility and the legitimacy of respective institutions.

Rights

As a lawyer Mr Turnbull was no stranger to asserting clients’ rights and remedies in dispute contexts. This is epitomised by the Spycatcher case in which he and his wife Lucy Turnbull took on, and defeated, the might of the British state in the Australian courts.  This was not the occasion for compromise, despite some potential attractions for the client. However while strong legal research and assiduous advocacy are important sources of power, court outcomes are ultimately based on legal rights, duties and remedies.

While often regarded as a consummate barrister, Mr Turnbull in fact spent a relatively short time at the Sydney bar prosecuting, or defending, rights-based outcomes for clients. The gravitational pull for him was towards banking, business and investment where power and interests are more likely to be the dominant intervention modes. These are also the theatres of intense negotiation and bargaining. 

Negotiation

Negotiation, in the ideal world, is less about power and rights and more about commercial, personal and national interests. As regards Donald Trump, author of a negotiation text, the former PM engaged with him on at least two substantive matters: the ‘swap’ of Australia’s off-shore refugees for other refugees in the US and the lifting of tariffs on our steel exports to that country.

Both of these negotiations are framed in terms of ‘trade-offs’ for mutual gain, despite one involving desperate humans and the other inanimate steel (though the jobs issue was also relevant in relation to exports). Mr Turnbull claims, with seeming justification, to have trumped the negotiator-in-chief in each situation. In cryptic form the following lessons were adduced from the negotiation experiences:

• ·      Do not be sycophantic with bullies, as leaders of some governments are – rather be up-front, frank and stand up to them from the start.
• ·      Take pains to establish good personal and working relations before commencing negotiations on the substantive issues.
• ·      Focus on interests and needs, in particular those of the other side, as a basis for problem-solving and settling differences.

However self-serving this assessment might be, the claimed lessons do satisfy DR principles on dealing with high conflict personalities – using relational methods of communication, introducing interest-based methods and deploying mutual gains strategies. The accounts from the political front suggest that dispute resolvers may benefit from discovering more about the intricacies of negotiations in domestic politics and international relations.

Institutions

The government of the former PM was responsible for an institutional innovation in Australian DR, namely the establishment of the Australian Financial Complaints Authority (AFCA). It is both a dispute prevention system and a forum through which clients can potentially resolve disputes with banks and other financial institutions.

Whatever its strengths and shortcomings, which will be revealed in due course, the AFCA is a classic form of institutionalised DR and access to justice. The banking enquiry had established that the use of power and control by financial institutions was detrimental to many account holders and numerous other clients. They are now afforded some statutory rights and remedies to mitigate the power dynamics of the relationship. Ironically, many DR processes and institutions have over the years been introduced through legislation in adversarial political institutions.

The former PM, however, overlooks one of the contentious features of international economic treaties, namely the investor-state dispute systems (ISDS) they routinely establish.  While Mr Turnbull long championed the Trans-Pacific Partnership, adroitly reframed by the Canadian PM to the Comprehensive and Progressive Trans-Pacific Partnership, he elides the controversial ISDS which it establishes. In general terms ISDS has potential benefits for international investing corporations at the cost of national sovereignty, parliamentary democracy and domestic regulation (remember Australia’s Plain Packaging case?).

Treaties are archetypal conflict prevention instruments, the equivalent in international relations of contracts in commercial situations. Procedurally they create systems for dealing with trade and investment conflicts, substantively they establish rights, duties and remedies, and societally they shift risks and create potential winners and losers in different economic sectors.

Here the former PM’s enthusiasm for freedom of trade and investment overlooks the power dynamics which prevail in negotiating such treaties and the inevitable losses they portend for at least some enterprises, for example manufacturers of substitutable imports. The ISDS systems, in particular, are not favoured in many jurisdictions forced to acquiesce to them because of their powerlessness, relative to the dominant treaty states. While treaties reflect, in different ways member states’ respective commercial interests and create legal rights and obligations, they are founded on confidential unfacilitated negotiations with all the power determinants that might conceal.

Science

The current pandemic highlights a significant cultural change in relation to the public influence of science and scientists. Presently national and sub-national governments in many jurisdictions are predicating their Covid-19 policies on the latest medical and scientific evidence.

This commendable practice has been entirely lacking in climate change politics. Mr Turnbull is appropriately critical of the war on science waged by former PM Abbott and others and he cites the adage that everyone is entitled to their own opinions, but not to their own facts. This is a sound principle, but susceptible drowning in the current ocean of ‘fake’ and ‘alternative’ facts.

Investigative agencies can and do examine relevant factual circumstances and are important institutions in the DR matrix. The Turnbull government long resisted an inquiry into the banking sector and it was only when under immense pressure that he was forced to appoint the Hayne Banking Commission. Nonetheless he is somewhat dismissive of its outcomes, despite admitting that he made a ‘political mistake’ in not constituting it earlier. An alternative view is that the Commission’s recommendations and the banks’ responses could be important factors in clients enforcing their rights and remedies in the face of egregious behaviour by powerful banks.

A federal Independent Commission Against Corruption (ICAC) is another agency which could investigate, prevent and manage disputes, and above all, bring transparency to the darker reaches of government. The most generous comment here would be that, like crowded court lists, there was too much to do in too limited a time to enable Mr Turnbull to manage this reform during his time in office.

He is, however, by no means oblivious to the advantages of transparency on matters of public interest. He is, for example, surprisingly critical of the Church’s stance on openness in relation to school funding, evident in his negotiations with the Catholic Archbishop of Sydney. Here the partial transparency of politics contrasts with the mostly confidential nature of DR processes such as arbitration and conciliation. In a bigger picture, facts and science can be easily trumped by values in the fiery crucible of politics.

Values

‘Value’ disputes are the bane of mediators’ lives. Here the autobiographer provides an interesting insight into respective politicians’ attitudes towards coal, carbon and climate change. After a heated carbon dispute among colleagues, one of Mr Turnbull’s own ministers, who had sat through the adversarial confrontation, indicated to him that reason would not prevail on climate because denialism is a matter of ‘religious belief’. It is difficult to negotiate over religious, and other personal, convictions, as dispute resolvers well know.

Despite long-standing credentials in relation to the environment the former PM was on the losing side of the coal conflict and a national energy policy – within his own party. However while the author burnishes his own environmental credentials, he manages only a passing reference to one of the biggest climate conflicts of the age, namely in relation to the Adani mining development in Queensland.  This gives the impression of being the availability heuristic – only in reverse.

There is a current tendency in all adversarial systems, whether in politics, law or dispute resolution, for ‘beliefs’ to trump rationality and for ‘emotions’ to trump reason. Here there is sad irony in the fact, alluded to in the book, that there was once bipartisan support in Australia for reducing emissions, yet this is currently a battleground for tribal warfare – with high emotion and limited reliance on the science. DR practitioners know too well that if commercial deals are not sealed after productive momentum ‘on the day’ they may be refought more intensely the following morning – unfortunately said practitioners were not engaged when the bipartisan support was present and willing and the momentum has now been entirely lost.

Lessons 

The biography provides some droll take-aways for dispute resolvers, for example to ‘leaven … aggression with a touch of humour’, though less so in the wry observation that in politics there is ‘no shortage of bad options’.  The roles of humour, and occasionally wryness, are much analysed in the DR literature and practitioners would concur with the author’s cryptic suggestion.

In terms of language and communication the author condemns the ‘exaggeration or oversimplification’ pervasive in political discourse – and which is also seen in some DR contexts. Mr Turnbull’s aversion to the ‘political slanging match’ would receive acclaim in most Australian households. However tribal politics leads to simplistic slogans in every corner – in Mr Turnbull’s case the well-worn mantra of ‘jobs and growth’.

Politicians from all sides are also prominent framers and reframers of language and terms (or spinners and tricksters), for example in relation to the ‘Mediscare’ and ‘retiree tax’. They do not provide good role models in these techniques for DR situations where beneficial reframing is one of the mediator’s quintessential roles. Pejorative framing leads to negative priming, which leads to simplistic claims and defences whether in litigation or mediation. Poor framing in politics and dispute resolution leads to reductionist as opposed to expansionary thinking

As regards broader justice issues, there is some foreboding for mediators in the author’s reference to the Athenian saying, ‘Justice is found only between equals in power, as to the rest the strong do as they will and the weak suffer as they must’. Here there is some poignancy in the Turnbull government’s rejection of the Uluru Statement from the Heart, a power response between grossly unequal parties.

While the author provides a logical argument for the rejection, the Uluru call is such an important part of Australia’s bigger picture that one would have liked to see more sensitivity in its treatment in A Bigger Picture. The Uluru Statement is about peace-making, about coming together after struggles of long duration. This includes jointly facing unpleasant facts about the past and making common commitments to peaceful co-existence in the future, whether through a treaty or a constitutionally recognised voice to parliament. Peace-making is the first cousin of dispute resolution and politicians have much to learn in this area.

Trust

In his final reflection Mr Turnbull indicates that he was, with the benefit of hindsight, too trusting of several of his colleagues, in particular Mathias Corman. In a Kafkaesque passage, here abbreviated by the reviewer to initials, he indicates that C and D told him not to trust J and G; J, G and C told him not to trust C and D; B told him not to distrust any of them; and everybody told him not to trust M.

Here DR 101 would have reminded the author about the prisoner’s dilemma lessons to be initially trusting on only minor issues instead of being over-trustful prematurely on major ones. In reality trust is a key factor in DR, whether the intervention is arbitration, conciliation or managerial fiat. Where trust is lacking between disputants trusted interveners can use their good offices to generate trust in the mediator or conciliator, and in the process at hand. Thus facilitators can assist parties fashion negotiated outcomes, such as between landlords and tenants in pandemic situations, by focusing them, wait for it …. on the bigger picture.

Influencers

Having suggested what politics might teach dispute resolvers (or reiterate for failing memories) concerning knowledge, skills and attitudes appropriate for DR, the question arises as to what the DR movement can contribute to post-pandemic politics. Many have written on this before, including Greg Rooney, Carrie Menkel-Meadow, the current writer and others.

Teachers and trainers of DR educate eager innocents about the differences between structural and behavioural aspects of conflict management. Mediation provides a structural framework premised on avoiding the adversarial partisan dynamics of litigation or arbitration, with procedures more appropriate for collaborative problem-solving. However structural changes do not alone sustain behavioural changes and old habits of positioning, posturing and punishing can and do prevail in mediation – a factor unanticipated by some eager innocents who become zealous mediation converts, for a while.

Restructuring a political system for the future is the task of political scientists, sociologists and constitutional lawyers – and politicians themselves. However dispute resolves would like to think that they can provide some potential influence on more collaborative, or at least less adversarial, structures and procedures for political engagement. This, after all, is their field of endeavour.

There do exist counter-adversarial arrangements in Australian politics: preferential voting avoids the ‘first-past-the-post’ syndrome of plurality elections and the Senate’s composition and powers require governments to negotiate continuously, at least with cross-bench or free-spirited Senators, to get their way. Other consensus inducing arrangements are functions of electoral politics and their outcomes, as opposed to constitutional requirements: coalition parties have to formulate consensual pacts and minority governments have to do compromise deals with independents or minor parties. These arrangements create non-adversarial elements in an overwhelmingly adversarial political system.

On what issues might the DR movement attempt to influence political systems into less structurally adversarial ways? Potential topics include:

• ·      Clear identification of issues in non-binary or partisan terms
• ·      Methods for introducing agreed factual reports and scientific expertise
• ·      Mandatory disclosure of information to enhance transparency
• ·      Scrutiny of and accountability for political promises
• ·      Grand coalitions (national cabinets?), veto systems and super majority requirements on identified issues
• ·      Further proportional representation in representative politics
• ·      Promoting a ‘voice to parliament’ as part of inclusive nation-building.

These are familiar factors in terms of how dispute resolvers design and shape conflict management systems with a view to attaining consensus and avoiding a winner-takes-all mentality. Mediators’ brain-storming powers might also suggest factors such as regular conscience votes, longer parliamentary terms and a federal ICAC with real teeth, as opposed to mere gums.

As to how dispute resolvers might influence the structures and procedures of government and politics, that is another big question. They could, however, start immediately with negotiation training for politicians. Reigning in a manic media would require more imagination.

Conclusion

A DR perspective provides limited insights into the author’s complex, intriguing and sometimes highly personal account of his life and politics. A book such as his also raises many questions, some of which have been posed in post-publication interviews with the author. As indicated earlier confirmation and hindsight biases are always at work in this literary genre. Nonetheless a major work by a former Prime Minister provides an intriguing chronicle of the times. And for dispute resolvers it provides some insights, and gentle reminders, about the use of prevention, interests, rights and power in disciplines other than their own.

—————————————-

The author is Professor Laurence Boulle, Principal of Independent Mediation Services Ltd and can be contacted at resolveaboulle@gmail.com He is grateful to Tony Spencer-Smith (www.expresseditors.com)for wise comments on an early draft. The usual exonerations apply.

Professor Boulle is Belle Wiese Professor of Legal Ethics at the Newcastle Law School (NSW).  He has been Visiting Professor at Gent University in Belgium, the University of Capetown in South Africa and the University of the South Pacific in Vanuatu and Fiji.  His most recent book with fellow ADRN member Rachael Field is Mediation in Australia.

Chevalier Charles Henri-Sanson de Longval was an executioner.  He lived from 15^th February 1739 to 4^th July 1806 and during his long life (for those times) he was the royal executioner of France during the reign of King Louis XVI and later the High Executioner during the first French Republic.  He administered capital punishment in the city of Paris for more than thirty years and it is estimated that, by his own hand, he executed more than 3,000 people.  With equal zeal and dedication to duty, Henri-Sanson executed the King’s would-be assassin Robert-Francois Damiens and later, the King himself.  He saw no difficulty or conflict of loyalty in despatching both the King and the King’s enemies.  He was simply a professional executioner doing his duty.  The underlying political regime for whom Henri-Sanson did his work was of no consequence.  It was, as Professor Menkel-Meadow has observed, merely an extremely professional and functional adherence to ethics. 

In this post it is suggested that current events in the context of the world Coronavirus pandemic support the view that slavish adherence to a rules based prescriptive code of ethics or conventions does not always serve us well.  The appearance of an infectious and sometimes fatal disease which ails rich and poor alike and transcends political, social and cultural boundaries, exposes the populist myth that all problems can be resolved by reference to dichotomous worldviews and ideologies.  The solution to our present health crisis will not depend on whether we are politically progressive or conservative, left or right, religious or atheist, prosecutor or accused, public or private.  Indeed much of our present predicament is reminiscent of Menkel-Meadow’s claim that truth is “…illusive, partial, interpretable, dependent on the characteristics of the knowers as well as the known, and most importantly, complex.” (C. Menkel-Meadow The Trouble with the Adversary System in a Postmodern Multicultural World 38 Wm & Mary L Rev 5 44 (1966)).

Perhaps in recognition of this complexity, our political leaders (in Australia at least) have declared that we will approach the pandemic problem from a bipartisan perspective and have actively worked together to formulate a comprehensive response that is best calculated, according to the evidence, to bring about an effective solution that minimises harm and allows people to return to their normal lives as soon as possible.  It has been heartening to read in the popular news media joint press statements of politicians from the two major political parties jointly urging compliance with a set of protocols which have been formulated on the basis of expert medical advice.  As Western Australia Premier Mark McGowan said: “If you compare Australia to the US…We’ve had outstanding results, they’ve had awful results, and you can see that working together bears fruit.” (ABC News 3.5.20)  For once, it seems, our leaders have been able to sit around the table and address the substantive issues from a problem based perspective without descending into self-serving adversarial debate about which side of politics has the answers.  At last we have been able (on this issue at least) to cast aside the useless distractions of partisan rivalry and accord primacy of attention to the nation’s interests in preference to ideological positioning and to seeking solutions rather than to win.

Although the crisis is far from over, early indications are that the collaborative manner in which the Australian government has approached the problem appears to be paying dividends.  We appear to have reached a flattening of the curve in the rate of new infections, contained the death rate to .364 deaths per 100,000 of population and contained the overall number of deaths to less than 100 in a population of 25 million.  In consequence, we are told, the public health system and infrastructure generally is able to cope with the additional strain placed upon it by the present crisis. 

By contrast, those nations of the world that have clung to their binary and oppositional worldviews and, to the extent of any inconsistency with them, have refused to accept medical evidence appear, at least anecdotally, to have been afflicted more extensively and with greater catastrophic consequences.  In the US where President Donald Trump has actively encouraged citizens to break the law by ignoring social distancing rules and gathering in rallies to protest regional lock down laws, the nation has recorded the highest number of fatalities of any nation in the world.  The number of sick and dying has clearly exceeded the capacity of the infrastructure and health system to deal with it and the President seems more intent on prioritising matters of political expediency. 

On 30^th April 2020 the New York Times reported that the C.I.A., America’s international spy agency, is being pressured by the Trump administration to find “evidence” to support a conclusion, already reached, that the Coronavirus had its origin in a Chinese laboratory and was deliberately introduced by the Chinese government to further its political interests.  (“Trump Officials Are Said to Press Spies to Link Virus and Wuhan Labs” NYT 30.4.20).    

In Brazil, a nation of 212 million, where President Jair Bolsonaro sacked his health minister for challenging his behaviour over the Covid-19 pandemic and where the justice minister resigned in protest at the President’s anti-scientific stance, 6,000 people have died which represents a death rate of 2.830 per 100,000 of population.  Brazilian newspapers are punctuated with horror stories of its public health system, Sistema Unico de Saude, in a state of collapse and ghoulish images of gravediggers in protective suits dumping scores of Brazilian bodies into muddy graves. 

Of course it is unfair to compare bare statistical data from this crisis without also acknowledging both the tentative nature of the data itself and the host of other variables which must be brought to account in attempting to make an accurate comparison.  The nations of the world are not all equally resourced to cope with mass outbreaks of disease and, whilst COVID-19 may be indiscriminate in its attack, its effect tends to fall most heavily on the poorer nations who are leased equipped to deal with it. 

The point to be made here though is that, regardless of the fine detail, it is becoming clear that those nations which have embarked on more focused and integrative methods of resolving the crisis have enjoyed greater success in meeting the challenge, reducing the uncontrolled spread of the disease and saving lives.  Those which have maintained their insistence upon binary worldviews, adversarialism, false dichotomies and polarisations have eschewed the science and preferred a backward-looking focus of attention to what happened in the past, attribution of blame and “holding China accountable,” all of which can do nothing to address the presenting problem.

Dispute resolution practitioners and theorists will immediately recognize within current attempts to manage the coronavirus scourge, the indicators of integrative practice – the formation of a bipartisan national cabinet, the deference to scientific and medical expertise, the free exchanges of reliable and accurate information between governments and their agencies and the appearance together at press conferences of political rivals making joint statements and advising on the results of the best information available.  They will recognize too the necessary elements that go to make a co-operative integrative framework for working through the issues – the building of relationships of trust, honesty and reliance on the integrity of people involved in discussions and the exchanges of information between them, the forbearance from resort to tactics of partisan rhetoric and cynical selection of only such information that is supportive of a particular position.

At the end of the day, there is one thing of which we may be certain.  Regardless of our worldview, the presence of coronavirus will continue to be felt throughout the world until it has been eradicated by the efforts of the informed actions of the scientific community.  It is neither a war nor a battle to be won nor the product of a malevolent enemy. It cannot be legislated away or removed by adversarialism or political expediency.  As the eighteenth century English poet, Samuel Johnson once wrote:

“How small, of all that human hearts endure

That part which laws or kings can cause or cure.

Still to ourselves in every place consign’d,

Our own felicity we make or find.” 

John Woodward

This post is the first step in a paper yet to be written – a paper which has its genesis in a largely unexplored issue arising from a PhD thesis. 

Firstly, I should commence with a little background. The thesis Lawyer Approaches to Court-connected Mediation: A new case study explored the attitudes and behaviours of lawyers to the collaborative, problem-solving and constructive consensus-building models of justice which are the stuff of facilitative mediation theory.  These models call for different skills from those which traditionally populated the menu of offerings in law school curricula and different from the training that many practicing lawyers would have received in their preparation for entry into the legal profession. 

A question which arose early in the study is whether we are able, simply by introducing a new Civil Procedure Act 2005 (NSW) and its equivalent in other States, to bring about the sort of change required to effect more constructive ways of managing dispute resolution?  This question is particularly relevant where the dispute is subject to litigation or where litigation is threatened and lawyers are involved.  Issues of general practice, customs, habit and culture emerge. Happily, we can now look back with some satisfaction at the progress in legal education that we have made even over the last five years when there has been more emphasis on educating young lawyers in mediation and negotiation, and the Priestly 11 list of subjects for study by law students was amended in 2016 to include mediation as a component of civil dispute resolution.  But it was not always thus and in 2015, the intention with this study was to undertake an empirical project that involved speaking to lawyers and mediators to establish how they think that lawyers are coping with the new demands of practicing law and map the expansion of ideas about justice in NSW from adversarial zealot to include broader notions of justice such as mediation.

Armed with Professor Julie Macfarlane’s “three core elements of legal professional identity” as a framework against which to measure lawyer behaviours, the study proceeded with all the usual problems which beset PhD candidates but otherwise very much as anticipated and with results that were not greatly surprising (even allowing for confirmation bias).  Essentially the study found that lawyers generally are willing participants in mediation practice but that their approaches to mediation are circumscribed by poor understanding of mediation theory which results in unnecessarily competitive and adversarial behaviours in the mediation setting. 

What was surprising and was something that did emerge quite forcefully from the data was the fact that the quality of lawyers’ engagement with court-connected mediation throughout NSW is far from homogenous and any assumption which may have been entertained about that issue was clearly dispelled by the evidence.  The purpose of the present paper will be to revisit the data with a view to establishing any patterns of behaviour or other phenomena which would explain the differential in attitudes and perhaps to borrow from the literature of other disciplines such as anthropology (Kevin Avruch) and psychology (Nemeth and others) in an effort to understand whether any patterns which may be found to exist might be based on geographic or other socio-psychological phenomena. 

A good starting point may be to examine the cross-disciplinary literature for evidence of any studies that would explain the divergence of attitudes and behaviours exhibited by lawyers in their responses to the reality of court-connected mediation.  Interestingly, the two works initially consulted as a starting point in the enquiry, Professor Nemeth’s ‘No: The Power of Disagreement in a World that wants to get along’ (Atlantic Books, 2019),and Kevin Avruch’s ‘Context and Pretext in Conflict Resolution’ (Paradigm 2013) each commenced their work with the story of an aviation disaster where, in the case of each story, massive damage and loss of life resulted from poor communication between well experienced and professional pilots on the flight deck. In one case the pilots became so pre-occupied with resolving a malfunction with the landing gear that they failed to notice low fuel levels and, although they commented about it, they failed to address the problem and the aircraft crashed, killing ten people and injuring another twenty-three.  In the other narrative an airliner crashed into the Potomac River shortly after taking off from Washington National Airport in circumstances where the captain repeatedly ignored warnings by the co-pilot that some of the instruments didn’t “seem right.”  In both cases, the American National Transportation Safety Board (NTSB) concluded that the accident occurred because of pilot error and the prevailing “authoritarian cockpit culture” by which the authority of the captain dominated decision making in the cockpit.   In both cases it seems that cultural factors played a significant role in the events which unfolded.  Professor Nemeth opines that, in the case of the problem landing gear, the consensus of silence and the culture of deference to the authority of the captain prevented the flight crew from focusing attention to the urgent problem that the aircraft was almost out of fuel.  Similarly, in the Washington crash, Avruch concludes that the tragic outcome resulted from the flight crew’s catastrophic failure to overcome the authoritarian cockpit culture and alert the captain to the presence of the faulty de-icing problem.  The NTSB report into the crash noted that its recommendations to break down the cockpit authority culture had also been taken up in other multi-actor, high-risk settings such as hospital operating theatres where the authority of the surgeon was akin to that of the “captain” of the operating team. 

These were both dramatic examples of where culture mattered and had a direct impact on the lives of aircraft passengers and crew.  Because of the obvious implications for the future safety of aircraft travel, real and tangible steps were taken to change cockpit culture so that the cultural problem could be resolved and no longer would the traditional practice of deference to rank prevail among the flight crew in the cockpit.   In the present research it is argued that, whilst undoubtedly less dramatic, culture also matters in court-connected mediation and if the quality of mediation services is being compromised by poor attitudes and resort to adversarial behaviours, then we need to take further action to change culture so that the identification and search for parties’ interests will at last displace the lingering attachment to positional argument and an outcome consistent with what the court would order. 

With the focus of culture now firmly under the microscope the research data takes on a new dimension.  It becomes clear that not all lawyers are looking at dispute resolution options through the same lens or, as one research respondent remarked: “Lawyers are not lawyers.”  The task ahead is to ascertain whether there are regional or other cultural factors which are acting as inhibitors to the success of court-connected mediations and to consider how those issues might be addressed. Hopefully, further progress will be reported soon.

The reality of the stressful nature of life in lockdown as a result of COVID-19 is that the quality of our communications and negotiations is under pressure. We need to harness our dispute resolution agency, and employ positive strategies and methods from the art of mediation, in order to ensure we do our best to prevent, manage and resolve disputes. We also need to practice self-management, for example by building our resilience skills, so that we protect our psychological well-being and ensure we have the right attitudes and energies for lockdown living.

In this last post for the Lockdown Dispute Resolution #101 series we consider a second aspect of self-management – reflective practice. Mediators regularly engage in reflective practice. For example, after Associate Professor Libby Taylor and I have conducted a co-mediation in the Bond Family Dispute Resolution Clinic, we always debrief together and reflect on what went well and what we could have done differently or better. We ensure our feedback to each other is honest but constructive and it’s always a very rich learning experience.

The self-management skill of reflective practice can help us to manage and cope with stress as we endure the impact of COVID-19.  It can also enhance our capacity to communicate and negotiate effectively.

Reflective practice

Reflective practice is a positive cognitive process that we can all use to enhance our capacity for self-management and our interactions with others in lockdown. Reflective practice helps us to strategically and thoughtfully identify gaps between our existing knowledge, skills and values, and those we want to gain or develop. Reflective practice can also help to maintain our psychological well-being because it supports emotional intelligence which in turn supports balance, happiness and self-regulated behaviour. Once you know how to do reflective practice it is hard to unlearn – it’s a valuable skill that has application in both our personal and professional lives.

There is a substantial body of scholarly literature and research on reflective practice. Chris Argyris and Donald Schön published the first scholarly work in the area of reflective practice in 1978. Schön was one of the leading thinkers in reflective practice until his untimely death in 1997 at the age of 66.

After considering a range of theorists’ work on reflective practice, Russell Rogers devised the following definition. Reflective practice is:

a cognitive and affective process that (1) requires active engagement on the part of the individual; (2) is triggered by an unusual or perplexing situation or experience; (3) involves examining one’s responses, beliefs, and premises in light of the situation at hand; and (4) results in integration of the new understanding of one’s experience.

The attributes of a reflective practitioner are all the sorts of attributes we need to be effective communicators and negotiators in lockdown. For example, reflective practitioners learn from experience; identify personal and professional strengths; identify areas for improvement; identify their needs; develop goals; implement strategies to achieve goals; acquire new knowledge and skills more effectively and efficiently; better understand their own beliefs, attitudes and values; are self-motivated, self-directed, and more confident; cope well with uncertainty and anxiety; exercise sound judgment; are able to accept and constructively process critical feedback; and are committed to life-long learning (Davies, 2012).

Putting theory into practice

The theory of reflective practice certainly sounds positive. There are many ways to put this theory into practice. One reflective practice model that is easy to enact has been developed by Graham Gibbs. This model involves 6 steps:

• First, identify an experience or situation that requires reflection. For example, my difficult Zoom communication with a work colleague today.
• Second, describe that experience or situation by asking ‘What happened?’ This is not an analysis of the situation – merely a description. For example, my colleague was agitated that a decision had been made without consulting her and expressed this in an aggressive way towards me. I responded defensively.
• Third, explore your reactions and feelings in relation to that situation or experience by asking ‘How did I feel about the situation?’ For example, I felt really angry that she accused me of poor collegiality without asking for more information about the situation. I felt upset that she had spoken to me so aggressively. I felt I had to let her know that and defend myself.
• Fourth, analyse and evaluate the situation or experience by asking questions like: ‘What could I have done differently?’ ‘Was the experience similar or different to previous experiences?’ For example, I could have remained calmer and used empathy to understand where my colleague was coming from. I could have asked more clarifying questions rather than responding defensively. I could have used LARSQ more effectively to lift the quality of the interaction. I could have acknowledged the colleague’s upset and suggested we pursue the conversation at another time.
• Fifth, make some conclusions about the situation or experience, starting with general conclusions and moving to conclusions that are more specific to you and your own personal situation or way of working. For example, I want to avoid this sort of communication exchange with any colleagues in the future. With this particular colleague I want to reach out to apologise for my defensive response, revisit what happened and ensure a better communication process that will settle the issues.
• Sixth, use all the steps above to create a personal action plan for yourself, using questions like: ‘How will you manage a similar experience next time?’ What will you do differently, what will you do the same?’ ‘What have you learned from the situation?’ ‘What steps can you take to make the most of this learning experience?’ For example, I’ll talk with my mentor about what happened and seek some further feedback from them. I’ll work to fix the relationship with this colleague. I’ll aim to set ground-rules for communications when a colleague appears to be approaching the situation aggressively. 

Reflective practice is a skill that is best learned by doing. To become a competent reflective practitioner, we need an established structure and framework, such as Gibbs’ model above, to guide our reflections. We also need to commit to that framework and allocate dedicated time in our busy schedules to ensure that we actually put reflection into practice.

Being a reflective practitioner has lots of positive flow-on impacts for coping with the challenging circumstances of COVID-19 and life in lockdown. Reflective practice can help us to be more effective as communicators and negotiators, and ensure that we do our best to prevent, manage and resolve disputes.

Thank you: This series of posts was only possible through the collegial generosity of ADR Research Network members. Thank you to Professors Laurence Boulle and Nadja Alexander for very kindly allowing me to use and adapt Chapter 6 of their Mediation Skills and Techniques (Lexis Nexis, 3^rd ed, 2020) for many of the posts. This book is a must-have for any dispute resolution practitioner, and anyone interested in extending their dispute prevention, management and resolution skills. Thank you also to my co-authors James Duffy and Dr Anna Huggins for writing Lawyering and Positive Professional Identities (LexisNexis, 2^nd ed, 2020) with me. Elements of this work were used for the development of a number of posts. Thank you also to Professor Jonathan Crowe for allowing me to use aspects of our forthcoming work Mediation Ethics: From Theory to Practice (Edward Elgar, 2020).

Finally, a big thank you to the ADR Research Network members who are a wonderful, collegial and scholarly community of practice – you are all an inspiration. Thank you especially to Dr John Woodward our President for 2020 (who generously let me encroach into his Blog Editor month of May); and to Nussen Ainsworth – convenor of the ADR Research Network Blog for 2020.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 4.

Lockdown image: Inside Sources

Donald Schön: infed

Gibbs Reflective Practice Model: Cambridge International Education

Theory into practice: Pinterest

See also:

Chris Argyris and Donald Schön, Organization Learning: A Theory of Action Perspective (Addison Wesley, 1978).

Samantha Davies, ‘Embracing Reflective Practice’ (2012) 23 Education for Primary Care 9.

Graham Gibbs, Learning by Doing: A Guide to Teaching and Learning Methods (Oxford Centre for Staff and Learning Development, 1988).

Russell Rogers, ‘Reflection in Higher Education: A Concept Analysis’ (2001) 26(1) Innovative Higher Education 37.

Donald A Schön, The Reflective Practitioner: How Professionals Think in Action (Basic Books, 1983).

Donald A Schön, Educating the Reflective Practitioner (Jossey-Bass, 1987).

There is no doubt that living in lockdown can be stressful. The BBC has reported on a recent UK Office for National Statistics survey which suggests that people in lockdown are more worried about their mental wellbeing than their general health. Just under two-thirds of 16- to 69-year-olds surveyed were most affected by boredom, stress and anxiety and the inability to make plans. If simply experiencing life in lockdown is stressful, it is logical to infer that lockdown communications and negotiations are impacted by this stress, and that our ability to prevent, manage or resolve disputes in our homes and virtual workplaces may well be compromised.

In these last two posts for the Lockdown Dispute Resolution #101 series we consider two aspects of self-management that can help us to manage and cope with stress as we endure the impact of COVID-19.  In this post we consider the nature of stress and some basic resilience skills that we can adopt to improve our stress management capacity. In the final post for the series we consider reflective practice as a self-management tool that can help us to cope with the dynamics and pressures of lockdown. Self-management strategies are critical to effective communication and negotiation in lockdown.

Understanding stress

Stress is something that we all experience as we navigate our daily lives. Indeed, it is an inevitable part of life to experience strains, burdens, difficulties and unexpected change.

 

There are some important things to understand about stress:

1. Not all stress is the same. There are high levels of stress, low levels, and mid-range levels of stress. Stress varies on a continuum according to factors like duration and intensity.
2. Different people may experience different levels of stress in response to the same stressor. A situation becomes more or less stressful depending on an individual person’s cognitive appraisal of a situation and their relative ability to deal with that situation.
3. Not all stress is harmful. Within the range of levels of stress, moderate stress can actually work out for many people to be quite a positive thing. Positive stress is known as eustress, while negative stress is known as distress.
4. Experiencing too much stress is referred to as ‘hyperstress’. ‘Hypostress’ on the other hand concerns experiencing too little stress. In lockdown we can experience both hyperstress – feeling overwhelmed by too many new and different challenges and clashing priorities, as well as hypostress – feeling bored, unchallenged or unstimulated.
5. A moderate level of stress can be helpful because it can help build our capacity to deal with challenges; and it can prompt us to think creatively and resourcefully when dealing with difficulties.
6. Stress can impact us and manifest in a range of ways. For example, we can experience headaches; muscle tension or pain; chest pain; fatigue; stomach upset; sleep problems; anxiety; restlessness; lack of motivation or focus; irritability or anger; or sadness or depression.
7. If high levels of stress are experienced over a prolonged period of time this is known as chronic stress. Chronic stress can have a damaging impact on our physical and mental health, and can even lead to serious health problems, such as depression and heart disease.
8. Importantly, stress can be managed. We need to intentionally manage stress if we are to prevent it from affecting our health in a negative way.
9. We all need to keep an eye on our stress levels in lockdown, and if we sense that they are consistently too high, then we need to proactively take positive steps to address them.
10. It’s also important in lockdown for us to look out for other people and to check-in with them if we have concerns.

Resilience

Intentionally managing our stress in lockdown involves quite practical, common sense approaches and strategies around building our resilience. Resilience is a capacity to cope well under pressure, as well as an ability to respond and endure in situations of adversity. In other words, resilience skills help us to manage and prevent stress.

Watson and Field refer to research that identifies a range of positive characteristics of resilient people (2011, 399). For example, resilient people are socially competent, flexible, able to empathise, have good communication skills and a sense of humour. They are good at problem solving. They have an ability to think abstractly, reflectively and flexibly. They are autonomous, having a strong sense of independence and internal locus of control. Resilient people are purposeful and positive about the future. They are creative, have an ability to gain positive attention, are optimistic even in the midst of adversity, and have a sense of what a meaningful life means for them. Resilient people nurture relationships and take advantage of support. And they have a positive self-concept, self-awareness and self-understanding.

Building resilience

The following ideas for building resilience, and ensuring we manage and prevent stress levels from becoming too high, might seem simple or obvious. However, they are tried and tested and found in lots of well-being work. Most of us already know that these approaches are positive, but sometimes we need to be reminded to put them into action.

Being active

There are many benefits to being physically active. Not only is exercise a critical part of a healthy lifestyle, physical activity also boosts endorphin levels which make us feel good. We don’t have to become a marathon runner overnight, or take up activities we don’t enjoy. Even short bursts of activity can help us to feel better, concentrate better and become more productive. We just need to do some physical exercise every day, keep it simple and enjoyable and choose something that works best for us.

Eating well

It is a given that nutrition is a critical component of well-being. Eating well (so that blood sugar levels are in order) and keeping hydrated, are more important to managing stress levels than might be imagined. We need lots of fresh fruit and vegies, cereals, grains, nuts and proteins, and not a lot of junk food, alcohol and sugary foods in large quantities.

Prioritising relationships

Relationships are important to well-being. We know this from a lot of the positive psychology research which confirms that relationships, and being connected positively to others such as family and friends, are critical for most people to thrive as human beings.

Keeping things in perspective

Managing stress requires us to keep things in perspective. This means allowing things sometimes to be ‘good enough’ rather than ‘perfect’. Keeping things in perspective also involves prioritising the different elements of life and focusing energy on the most important elements. It means acknowledging that mistakes, failure and disappointment are all a part of a life lived well, and often present very valuable learning opportunities. It means aiming for a balanced life and integrating life, work and play. And it means having reasonable expectations of ourselves and others, and knowing, and being able to capitalise on, our own personal strengths.

Asking for help 

There are lots of different support systems in society and in our communities and with friends and families that we can identify. What’s important is being able to reach out for support when we need it and asking for help. Sometimes a conversation with a GP is helpful.

Rest and sleep

Sleeping well daily is critical to well-being and stress management. Individual people are different in terms of how much sleep they need to refresh, and sleep needs also differ depending on our age. The National Sleep Foundation has done extensive research into sleep. They suggest that an adult who is 18 years or older needs between 7–9 hours of sleep a day. Being stressed can cause difficulties in getting to sleep. Having a sleep routine can help. For example, planning the end of the day to include wind down time — preferably for 30 minutes before going to sleep — can be helpful.

Relaxing

Learning to relax is important to managing stress, building resilience and well-being. Yoga or Tai Chi are great ways to relax. Other strategies for relaxing include for example: mindfulness meditation, breathing exercises, exercising, and listening to music. The main thing is to work out what works for you. It could be a combination of things.

Positive self-talk

Positive self-talk can help to avoid negative thinking induced by stress.  Using positive self-talk can help build confidence and affirm a sense of having a capacity to cope. It can also help with reaching goals. For example, simply saying to ourselves: ‘I can do this!’.

Coping with disappointment and setbacks

A particular subset of resilience skills relate to getting over disappointments and setbacks in life. Setbacks are challenging but such experiences can be used constructively. We need to avoid blaming or being too hard on ourselves. We are only human and setbacks are a part of life. If we don’t ever feel disappointed, how will we understand what it is to feel truly happy and elated?

COVID-19 and life in lockdown are challenging. It’s a time when we need to be the most effective communicators and negotiators, and ensure that we prevent, manage and resolve disputes. Managing stress through enacting some basic resilience-building strategies is a simple proactive intentional way that we can harness our dispute resolution agency.

Final Blog: Lockdown Dispute Resolution 101 #25: Self-management strategies in lockdown: Reflective practice

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) Chapter 9.

See also, Penelope Watson and Rachael Field, ‘Promoting Student Wellbeing and Resilience at Law School’ in Sally Kift et al (eds), Excellence and Innovation in Legal Education (LexisNexis, 2011) 389.

Stress image 1: WebMD

Stress image 2: Medium

Resilience image 1: Medium

Resilience image 2: Positive Psychology

Our efforts in lockdown to prevent, manage and resolve disputes can be supported by engaging with some psychology basics. Not only do we need to recognise the different biases we bring to lockdown negotiations and communications, there is also a range of other insights that we can learn from psychology. We don’t have a mediator at home and in virtual workplaces to help us, so we need to draw on our dispute resolution agency and harness this knowledge ourselves.

As we know, psychology is the scientific discipline that studies the human mind, human behaviour and the mental processes that inform human behaviour. Psychology as a profession is dedicated to helping people solve practical problems with human fundamentals – such as how we think and feel. A common misconception of psychology is that it is only concerned with mental health issues, such as depression, anxiety and stress. These issues fall under the heading of clinical psychology, which is a particular psychological specialisation. However, other aspects of psychological knowledge can help us in lockdown communications and dispute resolution practice to understand why people behave, think and feel in certain ways. It is therefore clear that our efforts to make communication and dispute resolution in lockdown more effective can be enhanced by connecting with the evidenced-based knowledge base of psychology.

In this post we specifically look at emotional intelligence, emotional flooding and emotional transference and countertransference. If we tap into some of these ‘psychology basics’ we will be better able to understand conflict, disputes and our responses to them in lockdown.

Emotional intelligence

Simply put, emotional intelligence is the intelligent use of emotions. This requires an awareness of our emotions and an ability to use that awareness to beneficially aid our thinking and behaviour. Emotional intelligence informs our capacity to perceive emotions, assimilate emotion-related feelings, understand the information of those emotions, and manage them.

Emotional intelligence contains four competencies. First, the ability to perceive emotion accurately. Second, the ability to use emotion to facilitate thought. Third, the ability to understand emotion. Fourth, the ability to manage emotion.

Emotional intelligence is strongly related to intrapersonal intelligence and interpersonal intelligence. Emotional intelligence from an intrapersonal perspective considers an individual’s emotional self-awareness and their ability to regulate their own emotions. Emotional intelligence from an interpersonal perspective involves a person’s ability to accurately detect the emotions of another person and to manage their emotional responses.

Harnessing our emotional intelligence is important for communicating and negotiating in lockdown if we are to engage as well as we can with family, friends and work colleagues.

Emotional contagion

Emotional contagion is a psychological phenomenon that refers to the ‘catchability’ or contagiousness of emotions. For example, if Rachael is in a particularly happy mood, this mood may end up rubbing off on Anna and Anna may subsequently begin to feel happier. Anna might then ‘infect’ others with her happiness. Emotional contagion ‘refers to the tendency to catch (experience/express) another person’s emotions’ (Kimura, Daibo and Yogo, 2008, 27).

One formal definition of emotional contagion (sometimes referred to as primitive emotional contagion’ or ‘implicit emotional contagion’) describes the construct as ‘the tendency to automatically mimic and synchronize facial expressions, vocalizations, postures, and movements with those of another person and, consequently, to converge emotionally’ (Hatfield, Cacioppo and Rapson, 1994, 5).

Emotional contagion has also been defined more broadly to mean ‘a process in which a person or group influences the emotions or behavior of another person or group through the conscious or unconscious induction of emotion states and behavioral attitudes’ (Schoenewolf, 1990, 49).

An awareness of emotional contagion can help us to understand the feelings of others and therefore see a conflict in a more positive light – and take actions that might lead to positive outcomes. This awareness can also help us to avoid catching the emotions of others, which otherwise might lead to feelings of helplessness, or hostility towards the other party.

Emotional flooding

Emotional flooding occurs when an individual becomes swamped by emotions. Biologically, intense emotional experience can affect the way the brain works. Information exchange to the neo-cortex is inhibited, with the result that people find it difficult to think in cognitively complex ways and to function properly. This might sound like a really extreme and rare occurrence, but it actually happens to people surprisingly frequently.

Have you ever found that in a heated argument, or when you are faced with a stressful situation, that your brain does not seem to function quite as well as you would like? Your muscles feel a bit tense, your heart rate goes up, your breathing becomes a bit more rapid, or your voice becomes unsteady? Maybe you feel like bursting into tears? These are all signs that emotional flooding may be occurring.

Knowing about emotional flooding is important for us in lockdown communications and negotiations. It is not uncommon to feel distressed if we are experiencing conflict, and this makes us particularly susceptible to emotional flooding. Emotional flooding is most likely to occur when we experience negative emotion that has been triggered by an external event, or even our own negative thoughts. It can be counterproductive to engaging in higher order thinking. That said, emotional flooding can occur to varying degrees in different people. For example, it might manifest itself in the person we are communicating with as their appearing just a bit spaced out, or mentally stuck.

Literature suggests that it may take at least 20 minutes for someone to recover from an experience of emotional flooding. Obviously, there are some situations where we can’t afford to take a 20-minute time out. Ideally then, we should try to avoid emotional flooding. Understanding our own triggers for emotional flooding is a vital step in its prevention. Reframing external problems or threats as challenges to be overcome, and correcting or challenging negative internal dialogue, are two strategies for combating emotional flooding. Positive self-talk is really helpful in this regard!

Transference and countertransference

The concepts of transference and countertransference have their origin in the work of Sigmund Freud and his focus on psychoanalysis/psychodynamic theory. Freud was a famous psychologist for many reasons, although when most people think about Freud, they often think about beards, couches, and unconscious and sexually repressed thoughts and behaviour. These images are all accurate to a certain degree. As it turns out, one of the reasons why Freud used ‘the couch’ when treating patients related to the notion of countertransference: ‘Freud frankly admitted that he used this arrangement inherited from the days of hypnosis, because he did not like “to be stared at”; thus, it served him as a protection in the transferencecountertransference duel’ (Benedek, 1953, 202).

Talking about transference and countertransference outside the context of psychotherapy arguably dilutes the precise clinical meaning of these terms. Given this caveat, transference refers to a process in which we might project on to the person we are communicating with certain traits – which might not be based in reality – but which stem from our previous associations with that person. Countertransference involves a reaction to their expressed emotions and point of view from a perspective of our own unresolved personal issues. Just like emotional contagion and emotional flooding, transference and countertransference are regularly occurring phenomena. They don’t necessarily lead to problems, but it is important to appreciate when transference and countertransference are at play.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #24: Effective communication strategies in lockdown – self-management: Part 1. This is followed by Lockdown Dispute Resolution 101 #25: Effective communication strategies in lockdown – self-management: Part 2. These are the 2 final posts in the Lockdown Dispute Resolution 101 series.

Acknowledgements

The content of this post was adapted and reproduced from Rachael Field, James Duffy and Anna Huggins, Lawyering and Positive Professional Identities (LexisNexis, 2nd ed, 2020) paras 10.27-10.42.

Psychology image 1: American Psychological Association

Emotional intelligence image 1: Cognitive Institute

Emotional contagion image 1: Psychology Today

Emotional flooding image 1: Highly Sensitive Refuge

Countertransference image 1: Moosmosis

See also:

Therese Benedek, ‘Dynamics of the Countertransference’ (1953) 17 BULL Menninger Clinic 201.

Paul Olsen (ed), Emotional Flooding (Human Sciences Press, 1976).

Gerald Schoenewolf, ‘Emotional Contagion: Behavioral Induction in Individuals and Groups’ (1990) 15(1) Modern Psychoanalysis 49.

Elaine Hatfield, John T Cacioppo and Richard L Rapson, Emotional Contagion (Cambridge University Press, 1994).

Tricia Jones and Andrea Bodtker, ‘Mediating with Heart in Mind: Addressing Emotion in Mediation Practice’ (2001) 17(3) Negotiation Journal 217.

Lezlie Burwell-Pender and Kate H Halinski, ‘Enhanced Awareness of Countertransference’ (2008) 36(2) Journal of Professional Counseling: Practice, Theory, and Research 38.

Masanori Kimura, Ikuo Daibo and Masao Yogo, ‘The Study of Emotional Contagion from the Perspective of Interpersonal Relationships’ (2008) 36 Social Behavior and Personality 27.

Nadja Alexander, Jill Howieson and Kenneth Fox, Negotiation: Strategy Style Skills (LexisNexis, 3rd ed, 2015).

In this post we think about the psychological and neuro-science impacts on our efforts to prevent, manage and resolve disputes in lockdown. This is another area where we need to enact our dispute resolution agency to be effective communicators in our homes and workplaces during COVID-19.

Mediation and the Brain

Psychology is about how the human brain works. The workings of the human brain are an increasingly important knowledge base for mediators and in lockdown we can learn from the art of mediation in this regard. In lockdown discussions we need to be aware of, and take into account, our relative emotional and psychological states.

We can no longer assume that individuals make utilitarian decisions on a rational basis, in the promotion of their own self-interests and in terms of objective cost-benefit analyses of their options. Such assumptions have been challenged, amongst other things, by the disciplines of behavioural economics, cognitive psychology, game theory, neuro-science and decision theory.

In mediation and in lockdown communications we need to expect some level of ‘irrationality’ in terms of our problem-solving and decision-making as humans.  Studies in cognitive psychology, for example, have demonstrated through observation, experiment and surveys that many people are guided by cognitive and social biases, heuristics and other unconscious factors when they make decisions and not by conscious rational considerations.

Various cognitive and social biases have implications for mediation and other DR processes:

First, the confirmation bias involves parties being selective in their choice of facts and evidence, accepting and emphasizing what supports their preferred outcomes to a situation and ignoring, marginalizing or rejecting the information which undermines it. This bias is essentially a form of one-eyed self-deception which is widespread in dispute situations.

Second, the anchoring bias involves parties being unconsciously influenced by a number or dollar figure provided from negotiating opponents, or even from an extraneous source, and adjusting their expectations and negotiation range accordingly.

Third, the optimistic over-confidence bias involves persons betting themselves ‘against the odds’ and expecting to do better than the average, for example franchisees in a particular industry or claimants in vehicle accident compensation cases.

The many unconscious biases in human decision-making cause parties in mediation to diagnose conflicts inaccurately and to intervene inappropriately, not only frustrating attempts at settlement but prospectively causing disputes to escalate in extent and intensity. The biases can also operate cumulatively – for example an employee’s confirmation bias about the circumstances of their removal from office is likely to exacerbate their unrealistic over-confidence about achieving a positive outcome to a dismissal claim, such as reinstatement, or a higher than normal damages settlement.

While artificial intelligence (AI) claims to avoid or annul many of these features of the human condition, decision-making biases can also be inadvertently embedded in software and algorithms and thereby impose residual preferences on decisions.

Mediation and Neuro-Science

Neuro-science adds to the knowledge base of psychology through observation and analysis of actual brain activities in human subjects. Through imaging of physiological, electrical and chemical impulses in the brain, scientists can observe the impacts on the brain’s neural pathways, and different parts of the brain, when a patient or subject is exposed to different sounds, sights, words or other stimuli.

A compelling illustration of these insights is provided in relation to the phenomenon of loss aversion, one of the cognitive biases previously identified by psychologists. When subjects undergoing brain-scanning are exposed to the single words ‘loss’ or ‘gain’ there are profound differences in the observed neural impacts – in broad terms the former term has an effect several orders of magnitude greater than the latter, in respect of both intensity and duration. In this instance the brain science reinforces orthodoxy long prevalent in mediation theory: parties who perceive they are facing a loss are likely to be risk-accepting and seek an outcome away from the mediation, but if they perceive a gain at the mediation table they are likely to be risk averse and favour settlement.  Brain scanning provides corroboration and a deeper explanation for the phenomenon, founded on human survival instincts, which responds to threats more intensely than to rewards. While survival instincts arose originally in relation to physical threats, they are now also a product of perceived unfairness, undignified treatment, negative emotional experiences or unfulfilled expectations in the mediation room.

Through brain-scanning and other investigative procedures, neuro-scientists have provided far-reaching evidence and understanding of how electrical messaging and chemical releases operate under conditions of stress, emotion and ambivalence, all of it potentially relevant to mediation.  For example, mirror neurons in one party’s brain can be activated by agitations in those of another person, leading to emotional contagion among disputants in high-level conflicts.  The chemicals dopamine, oxytocin, adrenalin and cortisol are released in response to specific pleasurable or stressful circumstances, including those encountered in the mediation room, and they affect respective parties’ behaviours, judgments and decisions.  The plasticity of the brain, however, entails that its operation is not always predictable and it can change its habits and patterns over time.

Another dimension of brain science derives from the organ’s bicameral structure. In 2017 Australian judges were addressed on the divided brain by an English psychiatrist, Ian McGilchrist, his work drawing on science, philosophy, literature and culture. He accentuated the significance of brain bicameralism in many aspects of human affairs and societal development – and by implication in dispute resolution activities. A more dated ‘left brain-right brain’ notion had been prevalent decades earlier, associating the left with attributes such as logic, language and analysis and the right with factors such as emotion, affect and art. This construct had in some respects been overtaken by work on the triune brain, and its implications, referred to above.

McGilchrist’s work essentially re-affirms in more erudite terms the significance of the two hemispheres, while emphasising that both sides are involved in all brain functions, from thinking to feeling and from mathematics to imagination, and continuously communicating with each other. However, despite the hemispheres being interdependent in all brain activities, each has significantly different ways of operating.

At a simplified level the brain spheres can be differentiated as follows: the left hemisphere is analytical and linear, it fragments experiences and operates with patches of information as opposed to whole entities and it uses categories and concepts in predictable patterns – ‘claimant’, ‘respondent’, ‘damages’ and the like. It has a narrow focus of attention and tends to decontextualize, divide and simplify, providing a ‘re-presentation’ of the world. Above all the left hemisphere is where our competitive instincts reside, it is utilitarian in focus and, importantly for mediation, it is convinced of its own rectitude and has difficulty changing its mind.

The right hemisphere is where new experiences are initially processed. It provides a big-picture assimilated view of the world, deeper and wider than the localised short-term view of the left. It has integrative powers, providing a more complex and connected picture of reality than the left, and it is more intuitive, imaginative and empathetic. Here there is a richness of thought, stimulated by gesture and symbol, poetry and myth, music and metaphor. Moreover, the right hemisphere operates largely at an unconscious level with few of our experiences and effective decisions, that McGilchrist suggests, operate within our actual consciousness.

The hemispheric modes of experience can be significantly opposed in their approaches and are sometimes in states of conflict. Human decision-making, whether in personal, business or mediation contexts, is initially dictated by the right hemisphere, albeit at an unconscious level. The complexity of thought in the right segment is then translated into the (sometimes simplistic) language and categories of the left. The ongoing development of the left hemisphere over the ages has made it more assertive than its partner and enabled it to manipulate reality, shutting down the right’s holistic view of the world – deeming it quaint and out of touch with a reality created by the right. Its penchant for self-consistency entails that it finds it difficult to accept that it might be wrong, a common syndrome in mediation. These factors explain the optimistic over-confidence encountered repeatedly in the mediation room (from both parties and advisers) which provides a challenge to mediators and other dispute resolvers.

It is not possible to depict definitively how emerging knowledge bases in psychology and neuro-science can be given effect at the mediation table. It is no easy task, for example, for mediators to identify parties’ cognitive and social biases accurately as these operate instinctively, without even the relevant party’s conscious awareness, and the other party and mediator may well remain unaware of them. Nonetheless all knowledge about human decision-making is potentially relevant in mediation and provides a tentative foundation for understanding the dynamics of parties’ negative dispositions and behaviours and what might be done about them. Moreover, while the biases may induce a lack of rationality to mediation decision-making, there is some degree of predictability in the different forms of irrationality.

John Wade used the metaphor of the mediator’s tool-box of interventions, implying that mediators will not always be able to adopt standardised procedures and linear logic but may have to be reactive, responsive and instinctive in using different tools in the process.  The National Mediator Accreditation System provides some guidance on mediator responsibilities in relation to conflict, negotiation and culture but this is of only limited proportions. Psychology and neuro-science are definitely new tools for the mediator’s tool-box.

In lockdown communications we don’t have mediators with us thinking about all these complexities to communications. So we need to enact our dispute resolution agency and be aware of the psychological and neuro-science elements at play. In the next post we consider some of the specific psychological elements we can be aware, and take account, of in our lockdown communications.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #23: Effective communication strategies in lockdown – dispute resolution psychology basics: Part 2

Acknowledgements

The content of this post was adapted and reproduced from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) paras 6.72-6.99.

Brain image 1: Harley Therapy

Confirmation bias image 1: Medium

Neuroscience image 1: Nature

Prof Ian McGilchrist image: Byron Clinic

Prof John Wade image: Mediate.com

 

 

 

 

 

 

 

 

In this last post of the sequence exploring the communication tool of LARSQ for effective lockdown communications and negotiations, we consider a specific focus of questioning in mediation practice – reality testing. Reality testing involves asking hypothetical and reflective questions to help the parties assess whether the elements of any proposed agreement will work outside the mediation room in their real world.

In our efforts to prevent, manage and resolve disputes in lockdown, we don’t have a mediator to help us with reality testing. So we need to enact our dispute resolution agency and remember to reality test for ourselves.

Reality testing

Although a little controversial in terms of different views on what levels of mediator intervention are appropriate in (facilitative) mediation, many mediators believe that one of their functions as a mediator is to encourage the parties to settle. This function is important because mediators are in a unique position to influence and support the parties’ decision-making. However, most mediators don’t want to see the parties reach just any sort of agreement – they want the parties to decide on mutually agreeable, workable and sustainable solutions to their problem. This is why reality testing is important.

In acting as an agent of reality, a key strategy to help the parties consider whether a settlement or solution is realistic and viable is to question them about what the proposed solution would look like in operation in the context of their lives outside mediation, helping them to cogently and realistically think through the risks, options and choices available to them.

When mediators ‘reality test’, a function that often happens in separate meetings with the parties, they challenge the parties to face the legal, financial and personal realities of their situations, to reflect systematically and practically on positions, behaviours or attitudes, and to think beyond the present to possible future consequences.  It is not unusual for negotiating parties to be optimistically over-confident about their situations and mediators challenge such illusions.

For example, in a parenting dispute two separated parents might consider the potential viability of each having the children live with them for an equal amount of time – perhaps one week with one parent and the next week with the other. Realistically this would require each parent to be able to organise school drop-offs and pick-ups for the 5 school days that the children are with them. However, if one parent is a shift worker with variable hours and no-one who could help them, this needs to be considered in terms of the realistic viability of the proposed equal time arrangement.

Reality-testing can relate to factors peculiar to a dispute, such as lack of evidence or pressure of time, or to environmental realities, such as litigation costs or dangers from external competitors. Mediators can assist negotiating parties to better appreciate their weaknesses, risks and realistic options.

Mediation is about what is ‘do-able’, and if the parties are holding out for objectively unattainable settlements, mediators can facilitate more realistic expectations. This can be achieved by providing information (for example about litigation risks), by querying (for example on the likelihood of agreements being enforceable) and by asking reflective and hypothetical questions.

Reflective questioning

Reflective questioning includes both empathic and clarifying questions, which we discussed in yesterday’s post. Empathy refers to the ability to put oneself in the shoes of another, to understand things from their perspective. As we’ve noted before, empathy does not signify agreement, nor does it amount to sympathy with, or compassion for, another. It involves convincing a person that the listener has entered their world of understanding, if only temporarily. Empathic questions show a sender that the receiver has understood what they said. They involve reflecting the affect within the sender’s statement. Through empathic questioning the reality of a situation can be discovered.

Building on the scenario used yesterday about Karlie and Nigel, some examples of empathic questions are:

• ‘So, Karlie, it sounds like you felt disgrace for you and your family because of the allegations made in this story …?’
• ‘Karlie, it sounds like your health suffered and that you became more despondent from then on …?’
• ‘Nigel, it sounds as if you were concerned about the legitimacy of information supplied to you after Karlie and her family complained about this story …?’

While empathic questions seek to check out the feeling or attitude behind a statement, clarifying questions seek confirmation of material aspects of disputes, such as facts, information and priorities identified by the parties.

For example,

• ‘Karlie, what would be the benefit to you of a public apology from Nigel about the story?’
• ‘Nigel, if you apologised publicly to Karlie about the story how would that impact your career as a journalist?’

Hypothetical questions

The ‘what-if’ or ‘if-what’ question is a frequently used mediator intervention and can be helpful in reality testing and in getting the parties to consider options hypothetically without being committed to them.

• ‘Nigel, what if Karlie were to agree to accept your proposed compensation figure; what would you then be able to commit to in relation to her positive publicity campaign?’

• ‘Karlie, if Nigel would agree to pay for your positive publicity program, what would you be willing to accept in relation to the amount of compensation?’

It’s challenging in lockdown communications for us to be effective agents of reality. For reality testing to work without the support of a mediator, the people communicating must be genuinely committed to collaborating to constructively discuss an issue and problem-solve. We need to enter lockdown communications not only with some effective communication skills and strategies – such as reality testing – up our sleeves, but also with the right attitude to preventing, managing and resolving disputes.

In the next post we look at some of the psychology basics that are relevant to effective communication and negotiations.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #22: Effective communication strategies in lockdown – dispute resolution psychology basics

Acknowledgements

Some of the content of this post was adapted and reproduced from Laurence Boulle and Nadja Alexander, Mediation Skills and Techniques (LexisNexis, 3rd ed, 2020) paras 6.57-6.58 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. The post also includes content from Laurence Boulle and Rachael Field, Mediation in Australia (LexisNexis, 2018) 104-5.

 

Reality testing image 1: High Performing Systems Inc

Reality testing image 2: High Performing Systems Inc

Reality testing image 3: Clare A Piro Attorney and Mediator

In lockdown communications enacting the elements of LARSQ can help to ensure that we can effectively negotiate and prevent, manage and resolve disputes. Questioning is the last element of LARSQ – but the skill of asking appropriate questions is critical for constructive communications and problem-solving. Mediators use questioning throughout each stage of the mediation process, and we can learn from the ways in which mediators practice the art of appropriate questioning.

If one new thing we tried to do each day was to ask more clarifying questions instead of making assumptions and assertions, then our communications in lockdown would be exponentially more effective and respectful.

Appropriate questioning

There are different views as to the nature and extent of the questioning undertaken by mediators. In some mediation models, mediators conduct the procedure almost entirely through the use of questioning. In others, mediators ask very few questions of the parties but encourage them to explain certain facts or feelings directly to each other. The degree of questioning often depends on the stage and phase of a mediation. Mediators may be reluctant to ask certain kinds of questions in joint session or early in a mediation but may feel it appropriate to ask them in separate session or towards the end of a mediation. The mediator also needs to keep a check on questioning by professional advisers who may be present – as they may seek to interrogate or cross-examine the other party.

The table below explains some of the different categories of questions, provides an illustration of each, the objectives for which each category can be used and the circumstances in which the particular category might be appropriate. They are based on a hypothetical mediation involving Karlie Meringe, a famous entertainer, and Nigel Nagel, a newspaper reporter. The dispute concerns Karlie’s defamation claim arising from a story in the Sunday paper claiming that Karlie had been involved in a scandal whilst on tour in Berlin.

Understanding different types of questions and their objectives
Type of question	Illustration of the question	Objectives of the question in the mediation process	Circumstances of potential suitability in lockdown communications
Open	‘Karlie, would you describe in your own words how the newspaper story has affected you?’	General disclosure and exchange of information in an open-ended way; gets things started.	Useful when seeking a non-specific and non-defensive response from the other person.
Focused	‘Karlie, can you tell me how the report has affected your ability to perform on stage over the last 12 months?’	Disclosure of more detailed facts or information about a specific aspect of an issue, event, incident or theme.	Used when there is time pressure or people are rambling and need to (re)-focus on particular issues.
Closed	‘Can you tell me, Nigel, whether the newspaper nominated you as the investigative journalist of the year for this story?’	Controlled disclosure of information through affirmative or negative response.	For short clarifications.
Clarifying	‘So, Nigel, are you saying that you formed the view on the basis of information supplied to you that Karlie was directly involved in the events in Berlin?’	To verify or correct the listener’s understanding of a communication in relation to, for example, particular facts, interests, needs, and priorities.	Appropriate at all times when active listening and reframing are called for; also used if the other person is not being sufficiently clear or specific on important matters.
Empathic	‘Karlie, it sounds like you’re “spinning around” and feeling helpless in this situation?’	To identify, acknowledge and validate important emotional, relational or symbolic themes.	Appropriate at all times when active listening and reframing are called for.
Probing	‘Karlie, if you are to go on tour again, how will you deal with the public ridicule about the report?’	To obtain further specificity or justification from the speaker or to reality test options being considered.	Probing questions are useful for ‘road testing’ solutions but can sometimes elicit a defensive response from the other person.
Leading	‘Now, Nigel, you were also responsible for verifying the authenticity of stories that were published in the newspaper, is that correct?’	To elicit information which the questioner already knows; to lead the speaker to a predetermined outcome.	Only appropriate if uncontroversial information needs to be elicited. Otherwise not generally appropriate.
Cross-examining	‘Nigel, you said there were sufficient checks to identify Karlie’s identity in the story, but you did not actually examine the authenticity of the photograph that was submitted, did you?’	To test a party’s accuracy, reliability and general credibility; to expose contradictions and inconsistencies.	Generally not appropriate or constructive.
Hypothetical	‘Karlie, if we could agree on the matter of compensation, what would you like to see printed in the newspaper as a result of these discussions?’	To get parties to consider options hypothetically without being committed to them.	Useful when there are impasses or breakdowns in the communication or negotiation process.
Disarming/ distracting	‘How many reporters were writing for the newspaper in Berlin at the time?’	To deflect attention from a destructive interchange between parties.	Useful at any time during when emotions are escalating or communications are becoming destructive.
Rhetorical	‘Nigel and Karlie, would either of you really like to go through a tortuous public trial?’	To make a point dramatically or to produce an effect.	When the other person needs to be confronted with an obvious reality.
Ritualistic	‘Karlie, how are you this morning?’ ‘Would you like a cup of tea, Nigel?’ ‘Karlie, what did you make of the game last night?’	To support the ritual of small talk that builds rapport and gets things started.	At the beginning of communications and at the end – as a form of ritualistic closing.
Rating or scaling	‘Karlie, on a scale of ten to one, where ten is irreparable and one is minor … just how damaging has this been to the sales of your new album?’	To establish the significance of an issue for a party and shift them from emotion to cognition; establish each party’s negotiability on respective issues.	Generally useful when exploring issues and problem-solving.
Suggestive	‘Nigel, would it be possible for the publisher to contribute public relations resources towards Karlie making a public comeback?’	To suggest possible or obvious options for settlement; to float options without parties feeling committed to them.	In facilitative mediation suggestive questions are used as a last resort, where the parties are making no headway on their own. They can be useful for option generating in everyday communications, however.
Neutral	‘Karlie, what timeframe would you be looking at for payment of compensation?’ [Instead of ‘Nigel, how quickly do you think you could pay?’]	To highlight mediator impartiality by posing questions that are non-judgmental and value-free, and do not have assumptions, such as the need to repay quickly.	At any time during communications.
Miracle	‘Karlie, if a miracle had occurred last night, and you woke up this morning with all your concerns about the story fully addressed, what would be different? What/how would you notice/see/feel? What/how would others notice/see/feel?’	To help the parties focus on a preferred future and imagine the dispute being over. To engage the right brain functions such as creativity and imagination and use senses such as the visual and kinaesthetic.	Useful at any time when communications seem stuck.

At a broad level, no type of question is entirely unsuitable; suitability always depends on the context and the circumstances of the communication exchange. As a general rule, though, questions like open and clarifying questions are to be preferred for successfully encouraging positive and respectful questioning.

In the next post we consider a specific approach to questioning that often features in the mediation process when mediators meet separately with the parties: reality testing.

Tomorrow’s Blog: Lockdown Dispute Resolution 101 #21: Effective communication strategies in lockdown – Appropriate questioning: Part 2

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 6.55-6.56 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.

 

Questioning image 1: Royal Society of Chemistry

Questioning image 2: Sonru

Questioning image 3: Digital Promise