The continuing development of ADR processes has brought with it a significant growth in litigation which explores issues such as  enforceability, good faith negotiation and cost sanctions for failing to mediate. These cases add to our understanding of how the field of ADR is continuing to develop.

With this in mind we have been fortunate to receive permission from Alan Limbury, Senior Fellow,  Melbourne Law School, to reproduce his recent Kluwer Blogpost. Please read Alan’s blogpost below.

It is my pleasure to share Dr Rosemary Howell‘s most recent Kluwer Blogpost with the ADR Researcg Network community. I thank Rosemary for her continued and important contribution to the Global Pound Conversation.

Written by Dr Rosemary Howell

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

• It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

• We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

I am thrilled to share this post by Dr Rosemary Howell which first appeared in the Kluwer Mediation Blog of February 22nd, 2020.

I would like to take the opportunity to thank Rosemary for her continued support and important contribution to the Global Pound Conversation.

By Dr Rosemary Howell

In his blogpost of December 2019, Alan Limbury gives us a thoughtful reminder of the history and background to the GPC.
I too was in the audience at London’s historic Guildhall on October 29, 2014, when IMI gathered together users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes and began an exploration that led to the GPC Series conducted between March 2016 and July 2017 and travelling through 28 events in 22 countries.

I have followed the Series carefully, attending the first in Singapore, the last when it returned to the Guildhall and the Sydney event somewhere in the middle.
Conceived and driven by IMI with the support of sponsors from around the globe, the Series was extraordinarily ambitious for a range of reasons – most remarkable being the ambition ‘to generate conversation and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’.
The vision contemplated the collection of both quantitative and qualitative data – a bold ambition indeed. The qualitative and quantitative data were collected on the day via specially developed software accessed by participants. The results from the quantitative data, that is the 20 multiple choice questions, were displayed immediately in charts generated by the software, provoking significant discussion among participants.
The results of the qualitative data, that is the 13 open text questions, took significantly longer to analyse – for very good reason given the extraordinary rigour and precision required for analysis of this kind.

The significance of the report.
The North America Report  consolidates 7 individual reports of events in the series across North America. It is the result of rigorous and ground-breaking qualitative research on the data emerging from the open text questions. As the Report notes: ‘The GPC generated considerable data using methods not previously considered, in ways not previously possible, and at an unprecedented scale across the globe….and is the largest undertaking of its kind in the history of commercial dispute resolution’.
The call to action identified 6 top priorities. We will see a lot of attention paid to them as the Report gains the exposure it deserves. But there is a lot more.

My key take-outs:
• Quantitative and qualitative research are very different.
Quantitative research matters. The results are relatively easy to consolidate and technology makes the process very efficient. Early release of results supports stakeholders seeking quick answers. However multiple choice questions reflect closed questions devised by their authors with a pre-determined choice of responses. There is always the risk that those answering the questions are choosing the best from a limited set of answers rather than making a ‘real’ choice. Open text questions offer some structure but allow what participants really think to emerge. This can produce the expected and the unexpected – telling the participants’ stories. It can also confuse us, producing richer information which apparently contradicts the quantitative data.
However the deep-dive into data required by qualitative research is extremely complex and time consuming. We had to wait a long time for this report to be produced so meticulously and now it is in our hands we can say it was worth it!

• We now have a new model of what qualitative research can do and how to go about it.
The methodology used to analyse the data and produce the report is not new but it is new to the DR arena. It is a result of the rich cross-disciplinary research experience of the authors of the report, Danielle Hutchinson and Emma-May Litchfield of Resolution Resources. It promises a new model of interdisciplinary thinking not constrained by academic backgrounds. It models how we can draw on psychometrics that have proven so robust and effective in the fields of education and psychology – a great addition to the DR research repertoire.

• It is time to lose the ‘A’ in ADR in the pursuit of a ‘party-centric approach to dispute resolution’
This was one of the top priorities identified in the call to action. It struck a particular chord with me as I have spent many sessions with my university students dealing with the challenge of answering the question ‘What is ADR and where does it fit?’ Many of us have struggled for a long time to take the ‘A’ out of ADR. We have tried using ‘appropriate’ and we have tried to replace ‘A’ with ‘C’ for consensual, but these attempts have not been successful. This report suggests that DR is the appropriate acronym for the suite of services covering adjudicative and non-adjudicative processes. Choosing the process or combination of processes that best meets what parties ‘need, want and expect’ is the element that provides the opportunity for a party-centric approach even if the process itself, such as litigation, is not seen as party-centric.

• We are not a unified DR community
The report consolidates findings from the 7 individual reports from
Austin, Baltimore, Los Angeles, Miami, New York, San Francisco and Toronto. Whilst the 6 elements of the call to action appear consistently, diving deeper into the individual reports I was struck by the significant differences in the details of practices and perceptions.

My take away is that we are a collection of individuals who have quite unexpected differences. The 7 individual reports demonstrate we are not united.
Our differences are likely to persist and it would be easy to see this as an impediment to collegiality. Our challenge is to build ‘an ability to deal well with differences’ – the definition of a good working relationship from Harvard’s Program on Negotiation.

What’s next?
I am still digesting the Report and I am sure I will continue to find more treasure.
I also expect more blogposts continuing to explore this very important research.
May the conversation continue and heartiest congratulations to IMI and Resolution Resources.

For more information about the GPC and its sponsors visit the IMI website.

Written by Danielle Hutchinson. First posted on the International Mediation Institute  Blog in November 2019.

Initiated by IMI, the GPC Series 2016-17 was a collection of 28 conferences held in 22 countries across the globe. It was conceived as an opportunity for members of the commercial community to come together and engage in dialogue about commercial dispute resolution (DR), as well as collect actionable data that could be used to challenge the status quo.

A suite of eight GPC North America reports has been created as part of an IMI project funded by the AAA-ICDR Foundation. These reports focus on the findings from the data collected at GPC events across North America between 2016-17. All the reports will be made available on the IMI website.

The GPC North America suite of reports present findings from data that has never been analyzed before.

Clear features of each city have become apparent and similarities and differences between jurisdictions have surfaced. Distinct and actionable recommendations in relation to the findings have emerged. These recommendations have the potential to make a significant impact on the future of commercial DR in North America.

Some results may be expected. Others may be quite surprising.

There are seven reports that present local findings for each city that hosted a GPC event in North America. Each of these reports explores the characteristics of users of DR in each jurisdiction, how the market responds to their needs, obstacles and challenges facing commercial DR and provide a vision for the future.

The final regional report is the culmination of the findings and provides a comparative analysis of jurisdictions across North America.

The complete suite of reports includes:

• The GPC Austin Report
• The GPC Baltimore Report
• The GPC Los Angeles Report
• The GPC Miami Report
• The GPC New York Report
• The GPC San Francisco Report
• The GPC Toronto Report
• The GPC North America Report

We look forward to your response to these reports in the ongoing Global Pound Conversation and thank the delegates at the North American GPC events for providing the insights that may prompt us to challenge the status quo.

For further information about the GPC and its supporters please see under ‘Research’ in the main menu above. Learn more about the GPC >.

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our third guest is Catherine Davidson, who has practised as a commercial litigator and mediator both nationally and internationally. Catherine has mediated over seven hundred commercial and workplace disputes. She is a trainer for the ADC and has delivered negotiation and mediation workshops in a number of law schools in India and China.

I invited Catherine to write a piece about her work in designing collaborative commercial processes to meet the both the needs of her clients and the outcomes sought.

Over to you, Catherine…

by Catherine Davidson

This blog is a reflection on working collaboratively with two separate clients in terms of co-designing the process, documentation and roles.

I had a week where I was approached by two clients wanting commercial facilitation. Interestingly both came from the major project space and each was made up of multiple parties. They both wanted a collaborative process and signalled they were street smart about how to approach disputes from the outset.

Seeing the design of the process as a two-way street, I ‘jumped on the bus’. I now share what I noticed and what we did.

Case Study 1

The first approach was by the engineer who was one of the four parties to a Project Development Agreement (PDA) for a hydroelectric scheme. The project was at its very early stages. The relationship with one member of the consortium had broken down, the others were of the view that this party had not delivered on its obligation to secure the land for the project.

Trust had broken down. Attempts to negotiate independently had failed.

They all agreed that one party’s interest needed to be ‘sold’ to the others or vice versa, so the landowner could then pursue the project. Unfortunately, perceptions about the commercial value of the project had been a major issue.

Reshaping the existing relationship was key to the commercial outcome for the project.

This client actively collaborated in the design of the process. He invited me after initial discussion to do a ‘reverse brief’ scoping process, documentation, timing and costs. There were to be no lawyers at the facilitated meeting.

We edited my Facilitated Meeting Guidelines document so he could insert language that was specific about intention — ‘with a view to resolving how the parties will proceed with the project; independently via one party buying the other’s interests or together’. I noted he had been quite specific about the options for resolving. And suggested it might be helpful to add a sentence that includes “or as the parties might otherwise agree” in order to leave scope. This invitation was declined and spoke to client need for autonomy.

Expectations about individual engagement were also explicit ‘with a view to achieving a mutually acceptable commercial conclusion to the current misalignment.’

There was similar collaboration when designing the process. After the shape of the preliminary meetings was agreed a clear expectation was set that we would only proceed to the next stage of a group meeting if each party had indicated a “sufficient intent to get a deal”. It was also agreed that during the face to face meeting we would document agreement as it developed.

Case Study 2

The second approach was from the lawyer for one of the parties to a Contractor Joint Venture for a commercial project involving a contract for the supply of a product found to be defective.

In requesting the facilitation, she highlighted her client wanted repair of the defective product under obligations in the contract. She felt a facilitated meeting with all parties and lawyers while the Director of the foreign supplier was visiting Australia could be a ‘circuit breaker’ for the dispute which was ‘brewing’. The defective product was fundamentally important to the construction of the project, so preservation of this relationship was key. This lawyer was experienced in these kinds of disputes was on the front foot about timing and tailoring an opportunity that could accommodate an ‘emotional’ party.

This client was also very clear about the purpose of the facilitation process. She expressed a desire to understand why the supplying party — a long-established family company — consistently had an emotional response to requests under the contract. She wanted to link the potential of that understanding with ways to preserve and improve the contractual relationship. The language of the Guidelines document remained more open and she prioritised the meeting as an essential part of the supplier’s visit. Timeframes were tight and having everyone cooperate to make time was a challenge with long lines of delegated authority autonomy was an issue.

Reflections

There was a common driver that saw both name commercial facilitation as the desired process.

Both disputes arose from what Geoff Sharp calls relational contracts where the “contracts are underpinned by a relationship requiring more than simply what is written in the contract – and often it is that trust and confidence is vital for the business of the contract to work” (Sharp, 2019).

Some of the nine specific characteristics of a relational contract were referenced in the language of expectation used by both clients.

These two experiences of ‘street smart’ or what has been identified in previous blogs here as dispute-savvy clients meant I was able to design a sophisticated process to meet their needs (Litchfield & Hutchinson, 2016).

Both clients were very pragmatic and practical about their limitations as outlined and communicated regularly with me. Each sought practical ways to manage hurdles in the process design. The bigger picture was always about the commercial success of both projects.

Working with clients in an organic and client-led way, I found these collaborative experiences engaging and fulfilling. Working with clients who are agile and proactive is refreshing. I asked for client feedback and was pleased to note appreciation of the “sophistication of approach” and that I was “client-focused and responsive”. I later stumbled upon the Mixed Mode Taskforce checklist of criteria for mixed modes process design. I recommend this very helpful checklist for all those interested in working collaboratively to design commercially viable dispute resolution processes for dispute-savvy clients.

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our second guest is Marguerite Picard who developed the MELCA Method – a collaborative approach to Family Dispute Resolution. Marguerite is an Accredited Family Law Specialist who teaches collaborative practice, and presents in Australia and internationally. She is a member of the international and federal collaborative practice associations (IACP & AACP) and president of the Victorian Association of Collaborative Professionals.

I invited Marguerite to write a piece about her work in Collaborative Practice.

Over to you, Marguerite…

By Marguerite Picard

Well-meaning lawyers everywhere are familiar with the game of chasing ex-spouses round and round, to bring them to the negotiating table to reach a settlement. It is frustrating and costly.

An ex-spouse might be afraid because of issues of power, control and violence, or they may not have had the support or the time to move towards accepting the end of the relationship. There are many other reasons why people dread the thought of any form of divorce negotiations. Working out practical arrangements at the end of a marriage or relationship isn’t something anyone looks forward to. We can all understand these realities.

However, there are very good reasons for people to engage in self-determined conversations about arrangements for their children and their property after separation, because the research tells us that people who make their own decisions, with or without facilitation, are overwhelmingly the happiest with the outcomes. Perhaps, if people recognised that reality, they would not run the risk of other people making decisions for them, as a result of their refusal to have sensible and early conversations.

The 2018 Report of the Family Court tells us that 20,000 applications are issued in the court each year. As it happens that number represents only some 30% of separating couples.[1]. It seems that the majority of couples know that a court is not the place to be, although how much of that is about being priced out of legal services is unknown.

There has been a decrease in the number of court applications for children’s matters since 2006, which reflects the establishment of Family Resolution Centres. It has been shown that 73.6% of couples show high levels of satisfaction with this form of mediation. [2]

Of those who have no assistance with negotiations about children’s living arrangements, 89% are satisfied with the arrangements they make. [3]

It is property matters that now dominate the caseload of the Family Court, which is due mainly to the Court gaining jurisdiction over de facto property matters in 2009 (Victoria).  It is interesting and telling that people find it easier to co-operate about their children than they do about their money.

[1] Kaspiew, Moloney, Dunstan and De Maio: ‘Family Law Court Filings 2004-5 and 2012-13’ (2015).

[2] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

[3] Kaspiew, Gray, Weston, Moloney, Hand & Qu: ‘The Australian Institute of Family Studies Evaluation of the 2006 Family Law Reforms: Key findings’ (2009).

If you would like to contact Marguerite or find out more about Collaborative Practice, please visit her website.

I am re-posting Dr Rosemary Howell’s Kluwer Mediation blogpost from September. It is an important indicator of how sophisticated ADR has become. No longer simply an alternative to litigation, but also an embedded mechanism that supports employee self-determination as early as possible before workplace issues escalate.

Thanks for sharing, Rosemary!

By Rosemary Howell

Mediation is certainly featuring in the international news right now.

This week Giuseppe De Palo posted an enthusiastic message about workplace conflict resolution. He congratulated the Office of the Ombudsman for UN Funds and Programmes as it prepares to establish a world-wide panel of mediators to make mediation “the first, natural step to take in pursuing informal resolution to workplace conflict”.
This is an achievement to be celebrated. However, it is disappointing that early intervention processes which precede mediation, particularly in the workplace environment, are not getting the same enthusiastic press.
The concept of early intervention is not new. Indeed I have written about it in an earlier blog. Readers may recall reference to the Civil Litigation Research Project (CLRP) in the early 1980s which investigated the apparent explosion of disputes in the civil justice system in the USA.
The project discovered that disputes are not ‘found objects that arrive fully formed’. It validated earlier research  analysing the stages of a dispute. It demonstrated that, even before a dispute begins to form, there are opportunities for early intervention which offer significant savings in time, cost and, perhaps most significantly, human relationships.

The Dispute Pyramid – Adapted from Miller & Sarat 1980

Despite the research and the conversations, until now I have been unable to find useful examples of early intervention at work, especially in an institutionalised environment where we can track uptake, outcomes and party responses.

A case study
Recently I was fortunate to discover a useful case study which adds some interesting and valuable enhancements to the early intervention process.
Introduced two years ago by the Department of Health & Human Services (DHHS) in Victoria, Australia (whose vision is to achieve the best health, wellbeing and safety of all Victorians so they can lead a life they value) the program, as with all effective programs, has been evolving as the Department evolves. It uses the language of facilitation. Services are provided by a workplace facilitator. The program has not been widely publicised. I was fortunate to discover it via my daughter, an accredited mediator, facilitator and coach who has recently been appointed to the role of workplace facilitator. Through her recommendation to investigate this well-thought out and continually evolving program, I have found a case study to explore.
Located within the Employee Wellbeing and Support space, the program (which supports 11,000 people!) was created in response to requests for a pathway to resolve matters involving inappropriate behaviour and conflict as an alternative to the usual formal Departmental processes. This approach has led the Department to offer a range of options called “employee wellbeing supports”.

The Organizational Ombudsman
Initial development was based on the concept of the Organizational Ombudsman drawn from the Institutional Ombudsman Association (IOA) framework.
At a high level the Organizational Ombudsman role involves both supporting parties and promoting institutional learning about enhancing conflict resolution processes.
This contemplates that in interactions with parties the emphasis will be on:
• Listening and understanding.
• Identifying interests and developing options to support them.
• Coaching parties towards direct engagement.
• Facilitating informal resolution and referring parties to other more formal avenues for resolution where this becomes necessary.
Beyond the parties, the role also offers independent insight to the organisation about opportunities for systematic change. It is a ‘source of detection and early warning’ of new issues that require the organisation’s attention.

The role of the Workplace Facilitator
It has been wise of DHHS to use the IOA framework. It is steeped in relevant research, has international recognition and support and brings a useful legitimacy to the role. An exploration of how the role is operating two years on also demonstrates that the Department has had the wisdom to allow the role to transform and be enhanced in response to stakeholder feedback.
This has produced a number of changes. Already located in the ‘Wellbeing’ space the role has now been moved into the Health, Safety and Wellbeing Support Unit. This has overcome some of the challenges of the more isolated role – giving the facilitator a familiarity with and access to other services that are available to support parties. These are terrific tools which enhance the opportunities for the workplace facilitator to offer truly situation-specific support and referral which includes:
• A peer support network
Trained volunteers available to support individuals needing help – not trained counsellors but a confidential service based on active listening, clarification and referral to appropriate support services as a ‘first port of call’ resource.
• An employee wellbeing support program
This is often called an EAP (Employee Assistance Program) in other organisations. This is a ‘more than just counselling’ resource provided by an external provider which includes a manager assist offering that provides unlimited bespoke coaching services and a conflict assist coaching service for employees
• Teamwork programs
Early intervention is party driven. Sometimes the coaching element of the role encourages parties to realise that there could be value in bringing the workplace facilitator into the team environment to support the team in dealing well with differences.

The significance of confidentiality
Two years on, other significant feedback is influencing the operation of the role. Parties are reporting that their confidence in the confidentiality of the process influences their willingness to seek support. They want an interaction that is not reportable on content. As a consequence, should it emerge during the facilitation that there is a need to report, the workplace facilitator does not step into the reporting space but offers coaching to the party in how the party might take this action.

Data collection
Every program needs to confirm its value via appropriate data collection. However data collection needs to be managed extremely sensitively. This is particularly important in an environment where the program’s credibility relies on parties’ confidence that there will be no consequences flowing from their decision to engage and that no reporting back to the organisation can ever result in them being identified. Parties will not access a process if there is the slightest concern that confidentiality will be breached, whatever the intention.
The response has been to refine the reporting outcome so that data is captured according to common themes rather than individual cases. This still allows the collection of data which can inform the DHHS about key concerns whilst ensuring that confidentiality has priority.

What are the important lessons from this project?
Two messages strike me as significant:
• The location of this program in the Employee Wellbeing space (which itself sits within Occupational Health and Safety), rather than with other formal Human Resources programs, makes it plain that there is a relationship between human wellbeing and an ability to deal well with differences

• This is not a conventional workplace mediation program. We know that by the time parties get to mediation there is often a fully blown conflict which, in the workplace, has serious employment consequences if it does not end well. This program does offer the opportunity for facilitated conversations. However, the initial emphasis is on a skills transfer via coaching to give participants the confidence to engage in difficult conversations before fully blown conflict breaks out.

Watch this space!

As editor of the Blog for November, I have invited ‘pracademics’ and leaders in the field of ADR to contribute a blogpost to share the interesting work they are doing.

Our first guest is Winona Wawn who currently works at the Fair Work Ombudsman in the Behavioural Economics Education team. Winona is a mediator and has a Masters’ in Dispute Resolution (DR) from UNSW.

I invited Winona to write a piece about her work designing and implementing DR systems and mechanisms, which she initially undertook for AirTasker (Australia’s largest online marketplace for services).

Over to you, Winona…

Image sourced from: https://hackernoon.com/why-do-we-need-ux-design-human-centered-design-framework-5bff859aebb8

By Winona Wawn

‘Conflict is inevitable’ is one of my favourite sayings. As our world becomes increasingly digital, so does our need for resolving disputes online.

After becoming a nationally accredited mediator, I joined a tech startup to develop an online dispute resolution system. It was an amazing opportunity to create a new online DR process from scratch for an open marketplace app. I was so excited to be able to help hundreds (if not thousands) of users each year resolve their conflicts.

But how do you create an online resolution experience for two angry customers who you’ve never met? How might you resolve disputes only via email?

I found by combining learnings from both dispute resolution and human centred design, it’s possible to create a purely online dispute process that works. The research which most influenced this approach was Steve Krug’s ‘Don’t make me think: A common sense approach to website usability’, the ever useful Fisher and Ury’s ‘Getting to Yes’ and Georgia Murch’s ‘Fixing feedback.’     

Below are my top three learnings from the experience. Even if you’re not into ODR, hopefully it helps you keep your practice client centred.

1. You need to understand your clients’ needs 

Your mediation process is focussed on your clients’ needs, not yours as the mediator.

When I was starting to design the online dispute resolution process, I wanted to understand how disputes were currently being handled by the tech company. I conducted a number of user interviews with our customers who had been in disputes. Hearing first hand experiences of customer’s disputes and how we did (and did not) meet their expectations was illuminating and challenged a lot of my assumptions of what they needed.

This taught me the importance of not falling into the trap of believing your own assumptions of what your clients need – actually go out and talk to them. Survey them before your dispute resolution process starts. What are their underlying interests and expectations? What’s preventing them from resolving their own conflicts? Then start to consider how you can incorporate this into your own practice.

If you can’t survey clients (e.g. for confidentiality reasons) imagine you have a ‘best case’ scenario client. They understand each stage of the mediation process, is willing and able to negotiate with the other party and articulate their interests. Then imagine you have a ‘worst case’ client – who doesn’t understand the mediation process, who isn’t able to negotiate with the other party or articulate their needs. Channelling Fisher and Ury’s ‘Getting to Yes’, consider how their underlying interests might differ, and what positions they may typically take. How might you design a resolution process which caters for both best case and worst case parties interests equally well?

2. Set clear expectations 

Do disputing parties demand they just want you to make a decision and get it done? How many times have you had to (patiently) explain what your role is, and isn’t as a mediator?

To help get them on the right path, your disputing parties need to know what to expect at all times. They probably need to be reminded more than once what your role is (and isn’t) and what their role is. In Krugs ‘Don’t make me think’, he emphasises the importance of websites helping users achieve their goals as directly and easily as possible, with minimal friction and frustration.

Applying these principles, I found setting clear expectations helps move the online dispute resolution process along smoothly. I had a 4 stage process that was clearly written on our website and was constantly referred to when parties were resolving their disputes. Being reminded about what’s coming next I found helped keep disputing customers engaged and aided in their understanding of how to achieve their goals of resolution as painlessly as possible.

Think about how you run your pre-mediation conference and how you move parties through the stages of mediation. Do parties know what they need to do at each stage to move onto the next? Don’t be afraid to be explicit in writing up your process so parties can follow it along before and during your mediation.

3. Be open to feedback 

Has a client ever told you they weren’t expecting something during the mediation process? Have they mentioned they didn’t know what to say or do?

Nobody is a perfect mediator and being open to feedback and constantly improving your practice will put you in great stead. Taking on board constructive criticism can be hard for your ego but very beneficial for your mediation process and your client’s experiences. Georgia Murch’s ‘Fixing Feedback’ discusses the importance of being open to feedback to ‘nip issues in the bud’ and preventing issues from spiralling out of control quickly. Creating space for disputing parties to be honest with how their feeling (for example – if they don’t know what to do next) can help transform your practice to be truly client centred.    

For example, when conducting customer interviews, I discovered our disputes team was often asking for the same information on multiple occasions. This led to incredible frustration by our disputing customers – they didn’t feel heard, that their concerns weren’t taken seriously and they were tired of sending the same evidence again and again. This feedback led to the creation of an online form where all information and evidence was uploaded in one place before the online mediation began. This meant all the information could be easily referred to by the team, was kept confidently and resulted in a reduction in resolution time.

From my experience, having a party-centric ODR process meant faster resolution times and less frustration for all parties involved. Leveraging DR and HCD research helped me create an ODR process that aimed to better understanding party’s needs, set clear expectations and be open to feedback. Being in conflict is hard enough – and as practitioners we can take steps to design processes to make resolving conflict as painless for parties as possible.

If you would like to discuss ODR or user experience design, contact Winona at winona.wawn@gmail.com.  

At a recent VADR presentation on Workplace Dispute Resolution, Fred Wright, Rodney McBride and Sue Ackerly spoke about their dispute resolution (DR) work with the public sector. Focussing on triage rather than direct DR processes, their work is data driven – this struck an immediate chord with me as it connects to my passion for evidence-based practice.

The findings of the 2010 State Services Authority’s implementation guide: Developing Conflict Resilient Workplaces and its companion guide for Managers and Teams were drivers of their work. These reports (part of the ‘Taking the heat out of workplace issues’ project) have inspired me to investigate the findings more closely.

This research holds interest for me, because it has a direct and strong connection to my work in DR. But the research has relevance and significance far beyond those of us practising in the DR field. It has something to say to every business – from the largest to the smallest. How many of these businesses (time poor like we all are) will make time to review the findings and explore their business relevance? I think we know the answer.

This is an important example of a broader issue and a recurring challenge.

Is it enough for us – dispute resolution (DR) academics, pracademics and practitioners – to investigate the research and share it with each other or should we be doing more? Do we have a responsibility to pass on this knowledge to the business community intimately affected by the findings? It is a question I see raised continually in research.

In particular, do we need to find a more accessible way to support businesses to recognise the need to deal with conflict early? Does that mean reconstructing how we approach education about DR processes?

The Report published Victorian State Services Authority

Today, eight years after the reports were first published, I wish to discuss three points.

1. What evidence do we have about implementation of the recommendations provided in the 2010 guides?

In the workplace environment, I have seen a move away from more adversarial, ‘grievance based’ processes (often triggered only when they have escalated to a point of ‘no return’), to promoting more informal processes (like conflict coaching, facilitation and mediation) to deal with workplace issues as an early intervention tool. This supports the triage process recommended in the Report.

This suggests to me that we are on the way.

2. How do we support those who are implementing these ideas to pass the message on to others?

Those organisations who understand the value of early intervention and support it together with more formal processes are a vital resource in education about the benefits of ADR. The DR community needs to provide them with evidence-based support and encouragement that they are ‘on the right track’. We can do this by continuing to collect data on the success of this existing research and publishing the findings. We can also showcase these businesses in case studies and success stories.

3. How do we promote these ideas to workplaces who are not yet on board?

The current business environment gives weight to and is influenced by evidence-based practice. Our community continually publish literature and presents at conferences about the benefits of ADR for other DR professionals. The blogposts available via the ADR Research Network are a significant example of how we provide accessible information about the benefits of the different available DR processes.

The question now is how to provide these to the wider community? The practitioners amongst us are sharing this information as part of the ADR processes and professional development we provide.

Many of us have access to other industries- either because of the focus of our research or because of the careers we held prior to entering the ADR space. Although some of you are already doing this, I encourage the rest of you not only ‘preach to the converted’, but to seek a wider audience with which to share your expertise.

For my own part, I plan to find an industry conference where the audience can be introduced to the value of early intervention through the evidence-based research in which my colleagues and I have been engaged.

I invite others to share their ideas about making ADR research accessible to the wider workforce.

The new conflict resolution text for children promoted by the Harvard program on Negotiation

Frances Richards’ thoughtful blog on Mediation in Schools is timely. We have spent the past few days at the UIA 25^th World Forum of Mediation Centres in Val d’Europe presenting a forum session, exploring the same theme with colleagues from around the world.

We advanced the idea that dispute resolution skills are becoming organic, flourishing from entry level to postgraduate study. Mediation, at its most valuable, begins when education begins, and is a ‘whole of educational life’ experience.

Our session explored the relationship between education and mediation using concrete case studies and current projects from early childhood through to tertiary education.

In her blog post Frances wrote about peer to peer secondary training and competitions for students – noting the aim of supporting students to develop a life-long problem-solving approach to conflict.

Our forum panel of 5 expanded on these ideas and some new themes emerged.

Panel members brought very diverse experiences:

• Panel moderator Zeina Kesrouani from Lebanon and Thomas Gaultier from Portugal spoke about secondary school projects they are supporting in their countries;
• Alina Leoveanu, Manager, ICC International Centre for ADR, spoke of the contribution to student learning made by the ICC International Commercial Mediation Competition and
• Our (Dr Rosemary Howell and Emma-May Litchfield) presentation shared some Australian experiences at primary and secondary level and this blog post will largely focus on that topic.

Scrutinising different mediation programs in schools made it apparent that the opportunities and the challenges look very different according to the age level and also the particular institutional approach.

Our presentation of two faces of the Australian experience showcased this well.

The first, focussing on early childhood education, was inspired by the newly released text from the Harvard Program on Negotiation, pictured above, which, with its companion text for teachers and parents, presents an introduction to conflict resolution for young children.

It is an ambitious project, particularly given the sophisticated nature of some of the tools being introduced.

The idea seemed valuable but the question to be explored was ‘are primary schools open to this kind of program and do examples already exist?’ The case study exploring the answer to this drew on the program of a small primary school in suburban Sydney. The answer was quite unexpected.

Instead of a program focussed on conflict resolution, the school reframed the context completely to cover 5 elements:

• The frame – wellbeing;
• Conflict is not confined to a separate toolbox but is part of everyday life;
• All students engage in daily wellbeing practice, linking conflict to emotions and wellbeing. (Students were delighted to demonstrate their mindfulness practice in which they engage at the first sign of discomfort – well before conflict emerges);
• Children design their own tools for intervention and resolution;
• When conflict does arise students are encouraged to engage in the 3 question approach:
  • What happened?
  • What are we going to do now to fix the situation?
  • How can we learn from this?

So while the Harvard materials were thought provoking, what this case study exposed was an apparently even more successful approach to conflict resolution and early intervention – providing students with accessible, effective tools for life.

The second Australian presentation moved the focus to secondary schools, giving a perspective from the inside – insights gained from working with teachers including a recognition of the resources required to develop and implement conflict resolution programs. The contrast with the primary experience was remarkable. The secondary school environment presents very different challenges:

• School-wide implementation is much more difficult. The shift from generalist teachers in primary schools – spending all day with the same students – to teachers who are technical experts with limited daily student contact impedes a whole of school, consistent approach. This also increases the likelihood that conflict is not identified early and has become entrenched before intervention begins.
• A specialised curriculum separates programs so it is much more difficult to embed wellbeing practices across the entire teaching day.
• Money is not the only resource required for program success. Teachers and dispute resolution professionals need to invest time, energy and other personal resources to maintain the program momentum. Frances’ blog post provides anecdotal evidence of this. On the one hand, the New South Wales Government is providing funding for these programs however, on the other hand she recognises that the mediators involved are all volunteers.

The UIA panel presentations made it clear that mediation in schools is a burgeoning field. There are challenges and there are opportunities. Those of us who teach and practise in this space are an important resource in the development of global thinking and program enhancement. Congratulations to the UIA for promoting an international conversation.

Dr Rosemary Howell and Emma-May Litchfield France 2018