By Jill Howieson

As Martin Bartfeld said in his article earlier this month, “it is possible to attain a just outcome without doing things as they have been done before.” [1]

In arbitration, the way things have generally been done is by private judging rather than ‘arbitrating’.

As arbitration is making comeback; especially in Family Law, perhaps it is time to consider the question – what does it mean to be a family law arbitrator?

A brief history of arbitration

Arbitration is our earliest form of ADR.  According to Derek Roebuck, everywhere in the Ancient Greek world, arbitration was normal. [2]  In ancient arbitration, the arbitrator was more of a mediator than an arbitrator.  It was only if the parties couldn’t reach agreement themselves that the arbitrator would decide for the parties.

Judge Cryan outlines the role of the arbitrator in traditional family law arbitration as one of a sage.  Parties to a domestic conflict would agree to put their family disputes to the sage in the community and be bind by what he had to say (if they couldn’t agree between themselves first).[3]

Modern arbitration

Judge Cryan’s lecture on Family Law arbitration in the UK, delivered in June 2017, raises some salient points about modern family law arbitration.

• Family law arbitration is being considered around the world—Australia, England, Wales, Germany, Spain, Canada, and the US.
• All the models of arbitration under consideration seem to be the same—private judging.
• There has been no significant take-up of family law arbitration anywhere.
• In the UK, in 2017, there had only been 140 family law arbitrations conducted over past five years despite establishment of Institute of Family Law Arbitrators (IFLA) in 2012.
• Lawyers remain largely unaware or are wary of arbitration and as such parties remain unaware or wary of it as an option on the family law dispute resolution menu.
• Family Law Arbitration is not popular—yet!

As there is not much literature on the role of the arbitrator in modern family law arbitration, it is helpful to look at where arbitration has been more prevalent in the modern world – commercial and international arbitration.

International commercial arbitration

Crawford analyses the notion of the “ideal arbitrator” in investment and international arbitration.[4]  He

“…draws inspiration from Yves Dezalay and Bryant Garth’s historical conception of commercial arbitrators as a closed group of “Grand Old Men”– lawyers of distinction, trusted for their wisdom and judgment, although not arbitration specialists.  Dezalay and Garth pinpointed a second generation of arbitrators, who they rather unhappily labelled the “Technocrats.” These were expert arbitration practitioners who had spent their entire careers working in the field.  In 2012, Thomas Schultz and Robert Kovacs revisited Dezalay and Garth’s sociological study and added a third generation of arbitrators, whom they called the “Managers.” These were arbitrators highly skilled at managing proceedings, deliberations, and the organisation of tribunal work.”[5]

Crawford goes on to explore three potential dimensions of the ‘ideal arbitrator’—impartiality and independence; technical expertise; procedural and managerial expertise.  He ultimately decides that the quality of an ideal arbitrator lies in his or her ability to balance ‘unnecessary procedural diversions’ with ensuring fairness.

Commercial domestic arbitration

For domestic arbitration, type into a search engine ‘the role of an arbitrator’ and the engine changes the search to ‘the role of arbitration.’  Thus, we can ascertain that to understand the role of the arbitrator in domestic arbitration, we look to the role of arbitration.

In 2012, the Australian Commercial Arbitration Act 2012 (the CAA), updated the uniform Commercial Arbitration Acts (1985) to give parties an increased ability to shape the procedure themselves.

The Paramount object of the CAA is to facilitate the fair and final resolution of commercial disputes ‘… without unnecessary delay or expense’.  The CAA aims to achieve this by ‘enabling parties to agree about how their commercial disputes are to be resolved…and to provide arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly’.

Thus, the role of the arbitrator in commercial disputes is to hold in mind that it is for the parties to agree the arbitration process— and that it is to be less formal, quicker, and less expensive than judging.

Let us know turn to domestic family law arbitration.

History of family law arbitration in Australia

1991 amendments

In 1991, the Australian government amended the Family Law Act 1975 (Cth) (FLA) to permit arbitration in property, maintenance, and financial matters.  Despite the legislation, there was no significant uptake of family law arbitration. (In contrast, mediation initiatives, albeit Government funded, enjoyed an immediate uptake such that now mediation is an accepted part of family law dispute resolution culture.)

2008 revisiting arbitration

In 2008, upon request from the Attorney-General, the Family Law Council re-considered the arbitration of family law property and financial matters.  In accordance with its terms of reference, the Council focused on the desirability of compulsory arbitration and how the FLA could incorporate a compulsory model.   In the Council’s discussion paper, The Answer from an Oracle, the Council noted that there was a clear indication that some key stakeholders did not support the introduction of discretionary court-ordered arbitration.  Again, there was no significant uptake of family law arbitration.

2015 arbitration amendments

In 2015, the government again revisited the use of family law arbitration for property matters and made amendments to the rules to facilitate greater use of arbitration.  The amendments included:

• amendments to disclosure and subpoenas,
• the procedure for an arbitrator to refer a question of law to the court for determination,
• the procedure for notifying the court that the arbitration has ended and the arbitrator has delivered an award, and
• the requirements for registering an award.

All in all, there hasn’t been a great deal of discussion on the role of the family law arbitrator.

The Role of AIFLAM

When the Commonwealth Government amended the Family Law Act in 1991 to provide for arbitration, it legislated qualifications for arbitrators of family law disputes and nominated that AIFLAM (the Australian Institute of Family Law Arbitrators and Mediators) keep a list of qualified family law arbitrators (those who had completed the requisite training).

In the 1990s, AIFLAM in conjunction with Bond University Law School developed their arbitration course and taught it to family law practitioners.  AIFLAM continued to offer the arbitration course intermittently from the 1990s but all the while there was a limited uptake of family law arbitration.

In 2017, following the 2015 amendments, AIFLAM recognised the need to update its existing arbitration course and to increase arbitration training for family lawyers. It also recognised the imperative to design an accepted model of arbitration and a system of standards and accreditation.

In 2018, AIFLAM conducted consultative workshops to understand the culture of family law arbitration; to develop an arbitration practice model; to explore the utility of family law arbitration standards, and to understand the role of the family law arbitrator at a deeper level.

In 2019, AIFLAM completed the AIFLAM Arbitration Practice and Approval Standards (the Standards) as part of the AIFLAM ADR Accreditation Scheme.

Theoretically grounded Standards

The Standards were drafted with the theory of Procedural Justice firmly in mind.  The practice model was designed according to the research evidence-base that shows that procedural justice is the most important factor in shaping our overall judgments of justice and satisfaction in dispute resolution decision-making contexts.  Essentially the research shows that if the parties perceive that a decision-making process is procedurally just then they are more likely to:

• view the enacted process as legitimate
• accept the decision whether it is in their favour or not
• retain their sense of autonomy and self-worth
• co-operate and accept the decision-maker’s advice/award, and
• have a sense of fairness and satisfaction with the overall process.[6]

The first major study in procedural justice was of people involved in an arbitrated civil lawsuit in the federal court in the US.  The study found that judgments of procedural fairness were strongly related to the parties’ decisions to accept the arbitration award.  Subsequent studies have replicated the finding and now it is clear that parties to a civil dispute are more likely to accept an arbitration award if they perceive that the procedures used to arrive at the award were fair.  Further, the research shows that perceptions of procedural justice influence one’s perceptions of the legitimacy of the decision-making process—a major consideration in the emerging ‘profession’ of family law arbitration. [7]

So, what is the role of the arbitrator that these Standards contemplate?

In terms of what makes a process seem fair, the research shows clearly that the quality of the treatment of the parties is the most important consideration for the parties.  The quality of treatment involves the parties perceiving the decision maker as:

• treating them with respect, politeness, and dignity
• being trustworthy
• communicating his or her ideas honestly in a straightforward way and providing honest explanations for his or her decisions
• being impartial and independent
• giving them an opportunity to say everything they want to say
• taking their needs into account and considering their views, and
• giving them enough information about arbitration so that they can make informed decisions about it.

The rules of being a Family Law Arbitrator

Most writers in most arbitration fields bemoan the fact that arbitration has become increasingly adjudicative in nature and is not very popular.  For family law arbitration to reach its potential as a fair, feasible, desirable and thriving family law dispute resolution process, below are some rules for the Family Law Arbitrator.

Be an arbitrator, not a judge

1. The first rule for the family law arbitrator is be an arbitrator—not a judge. The history of arbitration suggests that a family law arbitrator is someone who balances being a sage, a mediator and an arbitrator all at once.  Someone who the parties trust to make a wise decision about their future, and whose decision they will obey and respect, if they aren’t able to reach the decision by themselves..[8]

Process choices

2. The second rule for the family law arbitrator is that it is the parties’ process, not yours (btw – this is a prominent mediation rule too). In arbitration, the parties agree to arbitrate and they agree the arbitration process—the arbitrator does not determine how s/he will conduct the arbitration, s/he manages it.  The parties have process choices and process control.

Procedural justice

3. The third rule for the family law arbitrator is be procedurally just. A procedurally just family law arbitrator will:

• treat the parties with respect, politeness, and dignity
• develop trust by understanding the parties narrative and needs
• be honest and transparent
• ensure the parties’ process control (as above) and,
• ensure informational justice and informed consent

Be romantic!

4. Paulsson laments that arbitrators “labour, ..not for love” but for an added string to their business bow.[9]  Therefore, a final rule for family law arbitrators is to be romantic.  Labour for love—for the love of justice; for the love of the community and for the families who put their trust in you; and for the love of a profession, which assists people to navigate one of the most vulnerable times of their lives, and resolve their disputes in fair, polite, respectful, dignified, and constructive ways.

What type of arbitrator will you be?

References

[1] https://adrresearch.net/2019/06/16/arbitration-of-family-law-property-and-maintenance-disputes/

[2] Derek Roebuck, Ancient Greek Arbitration (Oxford, Holo Books: The Arbitration P, 2001) at pp. 319–331; Derek Roebuck, ‘“Best to Reconcile”: Arbitration and Mediation in the Ancient Greek World’ (2000) 66 Arbitration 275–278

[3]  Judge Crynan (2017)  https://www.youtube.com/watch?v=1jTIGFcrT18

[4] James Crawford (2018) The Ideal Arbitrator: Does One Size Fit All? 32 American University International Law Review 1003

[5] Ibid, 1005

[6] Howieson, J. (2011) ‘The Professional Culture of Australian Family Lawyers: Pathways to Constructive Change’ 25 (1) International Journal of Law, Policy & the Family 71-99

[7] Lind and Tyler (1988) The Social Psychology of Justice (Plenum Press, New York)

[8] Cryan (2017) above n 2.

[9] Jan Paulsson, Introduction, 1 Arbitration International 1, 2 (1985) cited above ibid, 1012

Written by Martin Bartfeld QC- Family Law Arbitrator

Family law arbitration is, like all other forms of arbitration, sources its jurisdiction from the Family Law Act, the Family Law Regulations and the Family Law Rules. The jurisdiction can be exercised by an arbitrator appointed by agreement of the parties. Because the Australian Constitution requires that the judicial power of the Commonwealth to be exercised by Judges appointed under Chapter III, a court cannot order the parties to commit to an arbitration unless they agree.

For an exposition of the difference between the exercise of judicial power and arbitration read this High Court case

A family law arbitration may either be court ordered or privately agreed. In either case, the parties must agree to arbitrate. A court ordered arbitration limits the matters to be arbitrated to Part VIII (property and spousal maintenance) proceedings, or Part VIIIAB (de facto property or spousal maintenance) proceedings (other than proceedings relating to a Part VIIIAB de facto financial agreement).

Private arbitration extends matters to include Part VIII proceedings, Part VIIIA proceedings, Part VIIIAB proceedings, Part VIIIB proceedings or section 106A proceedings; or

(ii) any part of such proceedings; or

(iii) any matter arising in such proceedings; or

(iv) a dispute about a matter with respect to which such proceedings could be        instituted.

In effect, a private arbitration extends to superannuation splitting, setting aside Financial Agreements which are (or are alleged) to be binding on the parties and making an order for the execution of documents by a Registrar or other officer of the Court to give effect to an order.

Who Can be an Arbitrator

Unlike the Commercial Arbitration regime established by State and Federal legislation, to be an arbitrator for family law purposes, a person has to be qualified. The qualification requirements are specified in the regulations and they require specialised practical experience in family law and the completion of a prescriber course.

Upon qualification, a person’s name is entered on a list maintained by AIFLAM (Australian Institute of Family Law Mediators and Arbitrators) and only persons whose name appears on that list can accept appointment as an arbitrator under the Family Law Act.

Conduct of an Arbitration

Parties who have agreed to arbitrate usually enter into an arbitration agreement with each other and the arbitrator. The agreement is formulated at a preliminary meeting between the parties and the arbitrator and it must contain all of the details specified here.

In addition the parties and the arbitrator design the arbitration and that design is also incorporated in the arbitration agreement. Matters which need to be agreed are;

• Whether the arbitration will be on the papers, partly on the papers and partly on oral cross examination or a full hearing as if in court or any combination thereof;
• Whether the rules of evidence are to apply. The parties can agree to exclude the operation of the rules of evidence and permit the arbitrator to inform himself or herself of any matter in any way he/she sees fit;
• How the evidence is to be presented;
• What if any technology is to be used in the course of the arbitration;
• Where, when and if a hearing is to take place;
• Matters of discovery and disclosure of information;
• Whether a preliminary issue (e.g. valuation) should be heard and determined first with a view to eliminating a full hearing and facilitating settlement;
• Lay out a timetable for completion of preparation;
• Make directions to prepare for a hearing.
• Lay out a timetable for delivery of an award;

The arbitration then proceeds. At the conclusion, unless the matter resolves, the arbitrator must deliver an award, the contents of which are prescribed by the regulations.

An award can be registered by either party. Registration is subject to a right of objection. Once registered, an award can be enforced as if it were an order of the court.

Registered awards can be reviewed by a single judge of the Family Court or the Federal Circuit Court on a question of law. In effect this is similar to an appeal from a decision of a single judge hearing the same type of matter. Awards can also be set aside on by a court on grounds similar to those contained in s. 79A (which applies to property orders made by a court).

Designing a Fair Arbitration Procedure

Unlike commercial litigants who resolve their disputes in courts or arbitrations, for family law litigants legal fees and disbursements are not usually tax deductible. Nor do family law litigants have legal budgets and the commercial infrastructure to conduct litigation.

In family law financial disputes, property is not created, it is only divided. While a successful commercial litigation can result in damages or other compensation which may increase the company’s wealth, in a family situation a limited pool of assets (irrespective of how wealthy the family may be) is going to be divided. Nobody’s wealth actually increases as a by-product of the litigation process.

If family law arbitration is to find acceptance in the community, the additional cost of meeting the arbitrator’s fee has to be economically justifiable.

Matters of speedy decision making, choice of arbitrator and bypassing the public nature of court hearings are all important. However, the most significant advantage, in my opinion, is the ability to design a process which is more efficient and deals with matters in a more sympathetic, albeit conclusive way.

Fundamental to the process is the need for fairness. In litigation terms, procedural fairness or natural justice was described in the context of court hearings in the following way;

33. As the authorities show, it is a fundamental general principle of natural justice that a party to litigation has a prima facie entitlement to have the proceedings heard in the party’s presence and to be given an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made. The opportunity to be heard usually includes the right to know the case advanced against the party; the opportunity to answer that case; the opportunity to dispute an opponent’s case by cross-examination of the opponent’s witnesses; and the right to adduce evidence in support of the party’s own case and to make submissions, before an order is made. 

34. However, those same authorities show that both the content, and application of, the rules of natural justice are flexible requiring fairness to all parties in the circumstances of the particular case. Those circumstances include, without being exhaustive: 

1. a) The nature of the proceedings;
2. b) The nature or content of the right, interest, entitlement or privilege of the aggrieved party;
3. c) The nature of the power exercised and the statutory provisions governing its exercise;
4. d) The facts of the particular case relevant to any of the above and relevant to the requirement of fairness to all parties in all of the circumstances of the case. (emphasis added)

An award can only be reversed for bias or lack of procedural fairness if the court finds that;

“..the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted”. (emphasis added).

What is clear from that section and from Rules which permit agreement about the conduct of the arbitration and for the rules of evidence not to apply is that a family law arbitration need not be conducted as a private court hearing with all of the processes and procedures which apply to court hearing (and which are both necessary and appropriate for that purpose).

A well designed arbitration process will accommodate the special needs of family law clients. Some of the matters to be considered are;

1. Not all parties can afford the long and drawn out processes of a traditional trial. It is time consuming and engages a number of expensive professionals for lengthy periods.
2. Arbitration can be a useful adjunct to mediation. Not all issues are contested and need to be litigated. If there is an impediment to settlement, the disagreement can be quickly and cheaply resolved.
3. The resources of courts are strained with the consequent waiting times for hearing and judgment. A simpler process produces quicker results.
4. Interim or discrete questions can easily be determined at a preliminary stage. This may help resolve the dispute overall.
5. Not all parties do well in cross examination. Why should the more confident and articulate party succeed because their former partner does not match their wit and skills?
6. Not all lawyers cover everything they need to cover in cross examination. It may be good forensic fun to point out that there was no cross examination on a point, does it really provide the decision maker with the information needed to make a just decision?
7. The confrontational approach with its warfare terminology is not conducive to building a post litigation relationship for parties who will need to raise children with some semblance of co-operation.
8. An arbitrator does not have the coercive power of a judge. The arbitrator cannot charge anyone with contempt, and the most he or she can do is terminate the arbitration. Therefore, a process must be devised to minimise confrontation and the “fight” “win” “lose” mentality of litigation.
9. The absence of a public element in an arbitration, in the sense that courts are open to the scrutiny of the public, means a less formal approach can and should be adopted.

It is possible to attain a just outcome without doing things as they have been done before. It requires practitioners to think outside the square and to bring their clients along with them.

Conclusion

Forty years ago mediation was thought of as a waste of time by a majority of the legal profession. Today, it is hard to imagine any case in any court (except the most urgent) being afforded any court time before a mediation takes place.

There is no reason why the lessons learned in the implementation of mediation in family law (where the Family Court of Australia led the way) should not have equal application to financial arbitration.

The Australian Law Reform Commission in its Report “Family Law for the Future — An Inquiry into the Family Law System”  saw sufficient advantage in the continuation of a private arbitration system in family law to recommend expanding the jurisdiction to some parenting disputes. Recommendations were also made to clarify the process of family law arbitration.

Chief Justice Alstergren is an enthusiastic supporter of family law arbitration. His Honour is used to conducting commercial arbitrations and he recognises that parties are advantaged by this type of dispute resolution. As Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, his Honour also appreciates that moving cases out of the overcrowded lists will free up the resources of the courts and enable them to manage their lists more effectively. His Honour has, on many public occasions, promised support from the Courts for private arbitrations.

This support is welcome and should be embraced by all who practice in the jurisdiction. It means that any issues which need to be resolved by a court in arbitrations (such as the issue of subpoenae or the facilitation of discovery) will be dealt with expeditiously.

Martin Bartfeld QC

Owen Dixon Chambers East

15 June 2019

Written by Laurence Boulle

[Free Image from Creative Commons]

The lengthy vote-counting procedures for the recent Australian federal election is about to conclude, creating opportunities for reflection and analysis.

There are manifest differences between political elections and the familiar forms of dispute resolution: this is noted but not developed here, other than citing the truism that there are many moving parts in mediations, litigation or arbitrations, on one hand, and electoral systems on the other, such that much depends on a viewer’s subjective perspectives on the two.

Similarities between the two systems might at first appear less prominent than the differences yet  are arguably of interest to those undertaking  daily dispute resolution duties. Followers of the ADR Network have previously read (in prose) about the associations between Poetry and Mediation and the question arises as to whether there are connections between Elections and well-known DR systems. This contribution is a DR perspective on some of the moving parts in the federal elections, with potential lessons for both systems.

The core approach taken here is the systems both involve choices for participants, in one case ostensibly based on contrasting political policies and promises and in the other ostensibly based on parties’ rights, needs and priorities and their options outside dispute resolution forums. This is where the connections can be drawn – human choices are ubiquitous in social systems and despite the varying and inconsistent circumstances in which they are made they have common impulses and dynamics.  In brief, the similarities between the two systems are based on human irrationality and its exploitation.

Here I look at the elections through the eye of a dispute resolver, and then turn the gaze back on dispute resolution itself.

Idiosyncratic reflections on political matters are inevitably informed by an author’s confirmation biases and availability heuristics. As Forum devotees well know, neutrality is no longer a defining feature of DR processes, and colleagues such as Field and Crowe are about to demolish my own preferred concept of impartiality. As it is arguably better to be overt about one’s lack of neutrality, (and now impartiality!) I declare my interests at the end of the article.  (Perhaps academic authors should be more ready to declare their convictions, but that is a subject for other non-impartial contributions.)

Meta Matters

As noted above, at the meta-level elections and dispute resolution systems have at their core human decision-making, regardless of the medium, structures and procedures at hand. In both contexts there is an assumption of self-determination – that is discrete decisions are based, by respective voters and disputants, in terms of exercises in linear logic according to which they make objective assessments of costs and benefits, followed by utilitarian choices in voting, negotiating and the like. These Enlightenment notions undermine much teaching and learning in law, politics and dispute resolution.

The same notions have, however, been long abandoned in many academic and professional disciplines. Their tenure was made tenuous 400 years ago when David Hume, a product of the Enlightenment, informed us that, ‘Reason is the slave to our passions’. While Hume’s research impact assessment is not conspicuous in contemporary scholarly literature, whether political or dispute resolution, his views have been refined in contemporary thinking in many disciplines – cognitive psychology, behavioural economics and neurobiology to name a few. As observed throughout this piece, rationality in both politics and dispute resolution is jeopardised by the predictable irrationality, emotions and biases of the human mind.

At an impressionistic level, and in apparent obliviousness of A* imperatives in research networks I would contend that the recent federal election in Australia reflects, reinforces or reifies principles which have analogues in dispute resolution – and which DR practitioners require in their take-on luggage. Conversely DR practitioners might have contributions to make in political discourse when it loses its way.

Assessing Outcomes

The election outcomes were interpreted widely by winners and commentators as a ‘miracle’ and a ‘landslide’. In reality the election was decided on a relatively narrow basis. In terms of first preferences the government achieved 41.5% of the primary vote, a negative swing of 0.5%, against the opposition’s 33.3%, a swing of -1.4%. In terms of two-party preferred results the government attained 51.5%, an increase of 1.9% over the previous election. In terms of seats won and lost the government achieved a net gain of four seats over its previous tally and the opposition a net loss of four. As regards the Senate the results were also not as dramatic as portrayed in the media –  with 38.3% of the Senate vote the government increased its seats by four, but did not attain a majority, with no net change in the opposition’s Senate numbers. The outcome did, significantly, elevate the government from minority to three-seat majority status in the lower house, but did not constitute a landslide, avalanche or other earthly movement as claimed in many quarters.

Dispute resolvers are familiar with what is at play here – assessments and perceptions, whether positive or negative, of DR settlements are a function more of expectations than of outcomes. Managing expectations is a prime responsibility for dispute resolvers and their representatives, designed to counter the optimistic over-confidence and confirmation bias commonly agitating their clients. The election evidenced the same disjunction between expectations and outcomes: a series of consecutive opinion polls over several years created solid expectations of an opposition win, which was confounded in reality by a combination of voter choices and vagaries of the preferential electoral system. For mediators and other dispute resolvers it confirms the importance of expectation management in the face of optimistic over-confidence and confirmation bias among clients and their advisers.

Framing Options for Choices

Expectations are created or managed, in part, by how options are framed and choices are presented to voters in electoral contexts. This is particularly significant in the contemporary ‘attention economy’ where there are infinite simultaneous and sequential demands being made on the consciousness of our finite brains. In this context the human brain can be overwhelmed by the demands of navigating uncertainty, and simple, and simplistic, frames of reference and slogans are more conducive to engineering intended outcomes than complex frames and complicated analyses, however profound. Despite their extraordinary potential powers human brains like ‘neat and orderly’ and can have difficulties coping with uncertainty.

In the federal election campaign the government used the slogan ‘Building our economy, securing our future’. The terms, however imprecise, have concrete associations and a wholesome tactile affect (and are linked to loss aversion referred to next). The opposition’s mantra was ‘A fair go for Australia’, a slogan more abstract and intellectual in content and tone. Needless to say there were many other ‘frames’ from both mainstream and minor parties during the campaign, relating to taxes, economic management, budget fairness, migrants and generational equity – sub-slogans beneath the shadow of the others. All parties framed their policies with different degrees of spin, transparency or concealment. Politicians and their minders are inveterate framers and reframers and remind us again of the power of words and language in decision-making contexts – people act in terms of their perceptions and perceptions are in part a function of language.

Dispute resolvers are, or consider themselves to be, the gold medallists in reframing: from positions to interests, from the past to the future and from one side’s toxic terminology to neutral language more palatable to the other. Framing and reframing are sometimes regarded as the quintessential skills of mediators and conciliators, designed to shift cognition in order to change behaviour. However even for veteran dispute resolvers there are salutary lessons from the election – how people perceive the world determines how they operate within it. Framing and reframing in both electoral and dispute resolution contexts challenges the assumed rationality of human decision-making.

Rationality and Affect

The rationality of the cognitive brain does not, in politics, disputes or life, inevitably prevail over emotions, whether instinctual or induced by rhetoric. We live in an age in which emotion often trumps rationality and feelings trump facts. Fear is the predominant feeling in both human and non-human animals and perceived relief from fear is a major motivator of choices and behaviours. The government made extensive use of terms such as ‘security’, ‘building’, ‘growth’ and ‘economic management’, terms likely to promote reward rather than retreat responses. Slogans relating to ‘taxes’, ‘pensioners’, ‘refugees’ and ‘shiftiness’, also heard during the campaign, had their own negative connotations, likely to invoke in some voters powerful, albeit unconscious, fear and retreat responses. Rational reasoning and argumentation are frequent casualties of the biases and heuristics referred to in this note. Indeed, political argument feels sometimes more like conflict – the proper domain of dispute resolvers.

Dispute resolvers have long operated with the understanding that all decisions have an emotional base, despite the apparently rational logic of the ‘law, facts and evidence’. When the cognitive brain does come into the equation it is not reason which overrides existing feelings but the reason-induced countervailing emotions which cause disputants to change their minds.  The rational mind is, however, important in providing justifications for decisions reached on an emotional basis – it allows us to validate and defend decisions, such as settling for less than our legal ‘entitlement’, in order to diminish our cognitive dissonance – to have factors with which to convince friends, loved ones and workmates, about the probity of our decisions. Despite the differences in electoral politics dispute resolvers can reinforce understandings of human behaviour in their domains from observing voting behaviours in the campaign.

Averting Loss and Seeking Gain

Linked to the framing and predictable irrationality factors is the reality that people are motivated more by fear of loss than they are by the hope of gain – part of the primitive survival instinct still prevalent in current times. We are loss averse beings, which got homo sapiens through difficult physical circumstances in history to where we are today. The loss/gain balance in the federal election was not one-sided, both sides appealing to both elements of the equation. However the meta-context in today’s state of the nation is a prevailing sense of loss perceived by many people – as a consequence of competition policies, employment insecurity, stereotypes of migrants, wage stagnation and uncertain futures, inducing a paradoxical scarcity syndrome in one of the most affluent countries in the world. However real or not these factors might be perceptions are more important than facts, and facts on matters such as environmental realities and inter-generational equity don’t speak for themselves. Where there is already a wide-spread social perception of loss and fear in groups wanting to feel secure it is easy to exploit this in election situations.

Dispute resolvers are again well-versed in the art of addressing the factors of risk aversion and risk-seeking behaviour. They know that disputants see the world not how it is but how they are. They are, or should be, experts in mitigating perceptions of loss by reframing to gain such that parties will accept settlements to avoid unknown risks. They know that judgments about risk are, unobligingly, often based on identities and beliefs, not on careful evaluation of available evidence. Belief perseverance can prevail even where facts change (‘I expected X to happen but it didn’t which goes to show that it will’) and public commitments to beliefs tend to lock them in. This is an area where dispute resolvers still have much to learn.

Experts and Expertise

Today science and expertise have lost much of their acceptance and legitimacy.  This is a complex phenomenon with many contributing causes but it is apparent in political elections and to a lesser extent in dispute resolution – referred to as expertise deficiency.  Expertise is a product of slow analytical methodologies and can provide complex outcomes, whereas politicians can be quick and simple – if not simplistic. The views of scientists, by their nature, tend to be general in form and do not always take good account of the feelings and circumstances of particular individuals. Moreover statistics from scientists, economists and lawyers, don’t resolve disputes in themselves –  they provide a basis for managing different conflict circumstances. In combination these factors have caused experts, particularly academics and increasingly scientists, to be regarded and described as privileged elites – even by the true elites. Increasingly scientists are seen as having and promoting their own agendas which do not accord with those of the ‘non-elites’. This is an ironic situation for science since experts and expertise cannot resolve democratic questions but their contributions should be able to narrow and define conflicts. The reaction against and disbelief in science and experts is a trend in many political and religious contexts, here and abroad.

This phenomenon has some resonance in dispute resolution situations. Legal representatives can be tempted to take the ‘inside view’ in relation to the probabilities of a client’s success at a future hearing – as opposed to starting their assessment with the ‘external’ base rate for the that kind of case, before taking account of the its peculiar features. While lawyers are themselves experts theirs is not an expert-based methodology. Courts have come some way in mitigating the ‘duelling experts’ phenomenon by creating systems for conjoint evidence and other dispute resolution systems have creatively managed their use of experts. In short, the displaced reliance on expertise found socially and politically is not as prevalent in dispute resolution systems, but the appearance of expertise deficiency elsewhere is a cautionary note for dispute resolvers.

The Time Factor

In terms of decisions with consequences in the intermediate- or long-term future there is a latent bias in human decision-making. It involves the propensity of most people to over-value current economic or other factors of value even when there is promise of greater value in the future – the intertemporal utility function. In the political context it means that current jobs in one industry, however short-term their tenure, are valued more highly than job forecasts in an emerging economic sector. There was abundant evidence of this in the election in relation to employment options in different areas of energy production, present and future. It is partly a function of the ‘marketisation’ of contemporary thinking – people are more likely to calculate the value of things in real time.

Dispute resolvers have partially come to terms with the intertemporal utility function with clients often over-valuing current financial outcomes even where later settlements would involve a greater quantum. For this reason experienced mediators do not over-do their ‘litigation misery’ speeches as clients cannot, in real time, project their current expectations and feelings into a future which could be two years away. Dispute resolvers are also familiar with the ‘time-value’ of money and the ‘endowment effect’ and how these can distort parties’ decision-making in negotiations. Needless to say time factors are easier to address in discrete dispute resolution events than in the clamour of national elections.

Style and Trust

People are influenced by those who are likeable and personable and show kinship with those they are attempting to influence. Conversely, they are less impressed by those who seem remote, wordy and abstract in their communication styles. Politicians are not exactly in a highly-trusted profession, like those who protect and rescue (think nurses and ambos) but everything is relative and protective and empathic language can well lead to respect, then trust. As the politico Napoleon advised, ‘…it’s not what’s true that counts but what people think is true’, and ‘affinity truth’ is a function of the style and perceived trustfulness of communicators. ‘In-group vs out-group’ thinking reinforces notions of trust and distrust in the political domain – the rise of tribal politics aggravates antipathy toward the Other, as was evident in warrior electoral rhetoric (and sense of relief once it was over).

Dispute resolvers are aware of the need to establish trusting relationships with clients, and of how easy it is for trust to be lost. Trust in mediators and mediation procedures by each side provides a bridge between parties who distrust each other. However some features of dispute resolution processes could have trust-defeating effects, particularly the use of shuttle meetings and avoidance of direct contact among parties. This tendency in some dispute resolution cultures enhances the ‘in-group/out-group’ syndrome experienced in contemporary politics. There are probably still lessons to be learned in this department by open-minded dispute resolvers.   resolvers

DR Teaches About Elections, Elections about DR

There are many moveable parts in popular elections, some operating at conscious levels and others motivating electors unconsciously. No simple reduction can be made about why electors decide and choose in particular ways. However the cognitive and social biases and other heuristics referred to in this piece emphasise the non-deterministic nature of human decision-making in both electoral and dispute resolution circumstances. Needless to say some of these factors coincide with one another and others are mutually inconsistent but elections provide evidence of the expanding knowledge base required in the dispute resolution disciplines.  And dispute resolvers have a significant knowledge bases, experiences and techniques to contribute to the understanding of political behaviour, particular in relation to the effects of biases and emotions in human decision-making. At the end of the day homo politico and homo disputatio might not be not that far removed.

That declaration: in the recent federal election the author worked for Getup in Warringah and for the Greens in Macpherson.

Laurence Boulle is Director of Independent Mediation Services Pty Ltd and Belle Wiese Professor of Legal Ethics at Newcastle Law School. He is grateful to Tony Spencer-Smith for insightful observations on a first draft.

Part III of Greg Rooney’s three part series.  Part II is available here 

There is much of the Newtonian thinking underpinning those promoting the dispute resolution (DR) product.  This can be seen in Boulle and Field’s recent blogs [1]where they connect measurement with understanding, a classic Newtonian concept. For example ,Boulle and Field propose that it is only by evaluation and measurement that the legitimacy and credibility of mediation can be assessed. This is based on the Newtonian concept that the world is ordered and that if enough research is done and a full understanding of a situation is achieved then the future can then be predicted.

The challenge to this Newtonian view of the world can be seen in the replication movement in which many of the significant social science experiments of the past are being repeated with vastly different results from the original conclusions.[2] This is because nothing is repeatable in a complex environment. It has thrown into doubt the validity of much of the so-called evidence-based research and observational case studies carried out in the social science field. This has become a significant problem for academia.

The Newtonian view of the world has been superseded by modern physics; particularly, the laws of thermodynamics and the emerging awareness of quantum physics. These offer far better explanations of what is happening and more importantly why the world has changed so much.

The laws of thermodynamics hold the best scientific explanation of the disruptive world we live in.  Thermodynamics is a branch of physics that is the study of systems. The first law of thermodynamics is that nothing is created or destroyed; it simply changes form.  The second law of thermodynamics asserts that this change is always in the direction of decay and that all natural processes lead to an overall increase in disorder. It is why human beings, and nature in general, cannot reverse the ageing process.

As this change occurs nothing is lost or destroyed. It is simply reconstituted in another form which then becomes the new paradigm, before it too starts to decay. Disruption is therefore a normal part of reality rather than the ordered Newtonian view of the world that existed pre-2007.

The emerging understanding of quantum physics also impacts on our understanding of the complex world we now inhabit.  It is a branch of physics which is highly uncertain and interconnected and where change occurs depending on the position of the observer. It breaks down the Newtonian link between cause and effect.

The answer to what will happen in the future in a complex environment cannot be found through analytical thinking. Outcomes cannot be predicted because in a complex environment every element is interconnected and constantly co-constrain each other. It evolves in random by constant modification never in the same way twice.  Therefore we can only understand what is happening in retrospect. Because no two contexts are the same it is impossible to forecast or predict what will happen. Joining the dots in advance is an illusion.

This is a significant challenge for academia and theorists.

Conclusion

So tomorrow morning the traditional ‘process’ (non-evaluative) mediators will again go off to work where they will try to remain totally present in the moment to observe the dynamics of the interaction between the parties.  They will probe first and then sense and respond to the reaction and they will try and suspend any attachment to their memories, desires and the need to understand what is happening and will try and not be deterred by blockages and impasses.  They will allow their intuition to guide them through the session rather than letting the mechanical side of their brain be the master.[3]

These are the same soft skills that leaders and managers in the commercial world need to use to manage the flow of networks between people in the way that allows for the safe space for minority views, diverging opinions, conflict and internal disruption to emerge. They require a higher state of alertness and the ability to provide a real-time response to emerging patterns and behaviours. This is the best pathway to creating strategic surprises and opportunities.

For the legal community in general and the ‘dispute resolvers’ in particular, the answer to restoring value for the legal product in the new economy is not to push aside or try to diminish the traditional mediation movement but to embrace it, and welcome it as the path to acquire the necessary soft skills to constructively engage with the fluidity, ambiguity and complexity of the new age.

I therefore suggest that rumours of the death of mediation and the significant role of the traditional process mediator are greatly exaggerated.

____________________________________________________________________________________________

[1] Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes. Posted on 24/08/2018 by Dr Rachael Field excerpts from Laurence Boulle and Rachael Field, from Mediation in Australia (LexisNexis, 2018)

[2] https://www.nature.com/articles/d41586-018-06075-z

[3] Mc Gilchrist, I. The Master and His Emissary, 2009, Yale University Press.

Greg Rooney has been a mediator in private practice in Australia for 27 years and has since 1995 taught mediation and allied ADR subjects in a number of universities and private institutions in Australia and internationally. Greg has over the last 14 years mediated over 200 face-to-face meetings between religious leaders and individual victims of sexual abuse within a number of Christian religious institutions in Australia as well as abuse within the Australian Defence Force and the South Australian Police Force. Greg, together with colleagues Margaret Ross and Barbara Wilson, have since 2012 run an annual Mediation Retreat in Tuscany, Italy.  www.gregrooney.com.au

Many thanks to Greg for his inspiring and thought-provoking posts this month.

Greg Rooney

(Part II of Greg’s blog following from last week’s Part I)

In response to the challenge of trying to provide value to the new collaborative economy the legal profession has sought to rebrand itself to try to recover commercial relevance. It has looked to the trusted mediation movement as its path to restoring that lost trust. The legal profession has sought to rebadge itself by dumping the designation “litigators” and replacing it with “Dispute Resolvers” (DR) now with lofty ideals:

“Through a fidelity to the good of DR, lawyers not only contribute constructively to society but they can also achieve positive interpersonal and individual change for their clients. This positive impact has the potential to extend to healing, wholeness, harmony and optimal human functioning.” (Boulle and Field) (1)

It is ironic that the long-term criticism of traditional mediation by the legal profession has been that it is too ‘touchy-feely’ and into “healing, wholeness, harmony and optimal human functioning” the very thing that it is now trying to champion DR as.

The proponents of the DR push have gone much further than a simple rebranding exercise. They have chosen to question and diminish the intent and identity of the traditional mediation movement.

Firstly, Boulle and Field (1) suggest that despite mediation’s versatility and diversity of applications it is not clear how mediation will respond to the challenges ahead. Secondly, they suggest it follows that this uncertainty for the future somehow renders mediation vulnerable to being subverted, rejected and replaced or modified beyond recognition.  They then conclude that because of this uncertainty for the future we should not pine for or have nostalgic sentiment for mediation’s (presumably lost or invalid) original intent and identity.

The real intent of the Dispute Resolution movement is revealed by the assertion that:

“It will be necessary to use research to ensure that if evaluative mediation becomes the normative approach, as well it might, that quality-control and ethical frameworks exist to prevent rogue mediators making de facto determinations.”  (Highlights inserted) Boulle and Field (1)

The recent Global Pound conferences were essentially a public relations exercise to pursue this end. It is the promotion of evaluative mediation and allied semi-determinative processes as the pre-eminent conflict resolution process by, in part, commandeering the high value of mediation in the eyes of the community. I am not sure the commercial world is buying this makeover, particularly when it still built on an adversarial solution focused culture that is not in harmony with modern economic drivers.

I would argue that the traditional non-evaluative ‘process’ approach to mediation is far more in tune with the modern collaborative economy. It is an experiential approach which gives the parties the time and space to step back and allow patterns to emerge. The mediator can sense and respond to these patterns.  This creates the potential for new opportunities to emerge out of the interaction that can lead to innovation and creativity. It can help repair disrupted trust which is the central foundation of the modern economy. It is mediating for the emergence of the new rather than providing an evaluation of the parties’ respective positions in order to close the gap.

The core facilitative skills that mediators acquire through the practice of sensing and responding to the immediacy of the moment equip them with the exact soft skills that the commercial world needs to manage in this complex environment. This is reflected in the fact that most MBA courses run throughout Australia have now been redesigned to incorporate soft skills as a core component of their coursework. Further, the big four accounting firms have created legal departments based on a collaborative non-litigious approach to providing legal expertise.

1. Future mediation: A flexible bundle of knowledge, skills, attitudes and ethical attributes  Posted on 24/08/2018 by Dr Rachael Field.  Excerpts from Laurence Boulle and Rachael Field, from Mediation in Australia (LexisNexis, 2018)

(This is Part II of Greg’s three part series.)

Greg Rooney has been a mediator in private practice in Australia for 27 years and has since 1995 taught mediation and allied ADR subjects in a number of universities and private institutions in Australia and internationally. Greg has over the last 14 years mediated over 200 face-to-face meetings between religious leaders and individual victims of sexual abuse within a number of Christian religious institutions in Australia as well as abuse within the Australian Defence Force and the South Australian Police Force. Greg, together with colleagues Margaret Ross and Barbara Wilson, have since 2012 run an annual Mediation Retreat in Tuscany, Italy.  www.gregrooney.com.au

by Greg Rooney

Mediation has an identity issue – but it’s not its fault.

Mediators – and the profession they practise called mediation – merely sit as innocent bystanders observing how the modern collaborative interconnected economy has challenged the identity and, in some cases, the very existence of the established professions and commercial and social institutions.

We now live in a time where a world of connectivity and fluidity has replaced the 20^th– century Newtonian concepts that are linear, predictable and deterministic.  This is a world driven by the rise of the World Wide Web in 1990, powered by the Google search engine in 1996 and the power of social networking starting with Facebook in 2004.

The world dramatically changed again in 2007 when Napster introduced the first sharing platform heralding the beginning of the collaborative sharing economy.  Then came Airbnb and Uber, both in 2008.  We now have transparent and open data networks that are available free of charge to anyone with an Internet connection.

The latest iteration in this change is the development of the ‘Internet of Things’ which is a network of physical devices, including vehicles, home appliances and other items embedded with electronics, software, sensors, actuators and connectivity, which enables these things to connect with each other and exchange data. As an example Uber’s computers share traffic data with Google Maps computers.

The complexity caused by this connectivity has upended the Newtonian concept that the world is ordered and measurable and that having knowledge of the past will allow a computation of the future.  Many organisations and professions, including the legal profession, still rely on a fixed Newtonian view of the world and wonder why they are being disrupted to their detriment.

The biggest upheaval has been the rise in the commercial value of trust over that of competitive and adversarial behaviours.  The sharing economy relies on the willingness of users to be trustworthy and to trust each other.  The platforms themselves also must be trustworthy. The sharing economy is built on the human element which is inherently complex. It is therefore essential that any conflict be dealt with in a way that preserves those trusting relationships while allowing new learnings which are an essential springboard for innovation and evolutionary breakthroughs.

We therefore require a new way of thinking and operating that can work with this complexity.

This new world order accurately describes the lot of the practising mediator. Mediators around the world will go off to work tomorrow morning and engage with parties at a very human level in much the same way as they have been doing since the late 1980s.  They will work with the uncertainties of the conflict they are mediating and hopefully come up with ‘good enough’ resolutions.  They will continue to deal with complexity and ambiguity daily and use their soft skills to massage impasses and blockages. These ‘soft’ skills are now in high demand in the commercial world.

It is the established professions and the commercial and social institutions that are having the identity crisis. They are in a scramble to find meaning and understanding to try to fit in with this new reality.

No profession is more under threat from this new world order than the legal profession.

Since the 1980s it has moved from being a trusted profession based on the application of scale costs, which moderated the profession’s financial self-interest, to a commercial business model built on time costing to maximise dollar return through promoting (litigation finance) and extending disputes by means of the adversarial culture. The problem is not so much the high legal fees, although it is an issue, it is the pursuit of the adversarial approach to drive those extra fees. This keeps their clients stuck in the conflict zone far longer than is commercially necessary. This has turned out to be a huge self-inflicted wound.

It has left the profession exposed and unprepared for the arrival of the open sharing economy built on trust and maintained by the soft skills of managers and their advisors.

This is Part I of a three part series by Greg