On 1st and 2nd February 2021, the University of Newcastle hosted the 9th ADRRN Round Table and Civil Justice Research Conference. The proceedings brought together online twenty six leading world scholars from around Australia, New Zealand, Bangladesh and the United Kingdom to present papers and discuss themes of topical interest to dispute resolution.

A theme which emerged from conference papers, and which is taken up in this post, is the reconciliation of competing interests which are valued by the traditional justice institutions and dispute resolution theory respectively. In her paper “Is Civil Dispute Resolution all about how best to balance competing objectives?” Sonya Willis observed that the most efficient solutions lack procedural protections and the fairest solutions come at a cost which makes them unjust or just plain unavailable. Juxtaposing four conflicting imperatives of civil dispute resolution, (efficiency and due consideration; certainty and flexibility; privacy and openness and autonomy and control) the author argues that acknowledging those imperatives involves acceptance that they are irreconcileable and that achieving optimal outcomes through ADR means striking a balance in which some measure of each value is sacrificed in the interests of achieving an overall better outcome than would otherwise be available under the competing imperatives.

This is a conundrum that has long troubled both civil justice and dispute resolution theorists. In 1997 it prompted former High Court Chief Justice Brennan to express concern that the diversionary procedures offered by dispute resolution processes would deliver “…a cheaper but a less satisfying form of justice.” (G Brennan Key Issues in Judicial Administration (1997) 6 Journal of Judicial Administration 138 at 141). It troubled Justice Ronald Sackville when he wrote that the functions performed by the courts cannot always be discharged in a manner that is compatible with heightened expectations of cheap and swift justice. (R Sackville: Reforming the Civil Justice System: the Case for a considered approach in Stacy and Lavarch (eds) Beyond the Adversarial System (Federation Press 1999 p35). Perhaps it also troubled Professors Jonathan Crowe and Rachael Field when, in their paper “Intuition and Artestry in Mediation: Implication for Mediator Ethics, they observed that mediators should not only meet minimum standards of competence but should attain higher levels of expertise. Drawing upon social scientific research on intuitive decision making, the authors argue that such research has important implications for how mediators respond to ethical dilemmas. They propose a guided framework for mediation practice that “leaves room for mediators to exercise and enhance their capacity for ethical judgment.” If mediators are to engage in the exercise of addressing a balancing of competing interests between efficiency and due consideration, between certainty and flexibility, between privacy and openness and between autonomy and control, it makes sense that they should be properly equipped to exercise that judgment in a sophisticated manner with emotional maturity and from a sound ethical framework.

The balancing of competing civil dispute resolution imperatives in practice and the methodology employed by mediators to resolve ethical dilemmas, like so much of mediation practice, are largely unknown quantities. This is largely because of the confidentiality provisions surrounding mediation and the private nature of the process. In her paper “Evaluating Mediators – stepping off the beaten track” Dr Alysoun Boyle reported on the key outcomes of a major analysis of empirical studies into mediation using a metaresearch framework. She reported that: “…in the absence of significant changes in research approach and design, there is unlikely to be any increase in what is known – including about what mediators do in mediation, how they might influence what happens during mediation and how they might influence the achievement of mediated outcomes and their content.” The author proposes a significant review of the research methodology to be employed in approaches to research into dispute resolution practices and observes that there may well be opportunities for leadership roles for bodies such as the ADRRN Network.

Though held online for the first time in 2021, the ADRRN Round Table and Civil Justice Research Conference was again successful in delivering an impressive suite of research documents which will no doubt inform civil justice and dispute resolution research into the future. This brief post has drawn attention to one of many themes which were explored during the conference. We hope to feature others in coming weeks.

We are delighted to announce our Call for Papers for the 9th Australasian Dispute Resolution Research Network Roundtable, to be held at the University of Newcastle 1st and 2^nd February 2021.   The conference will be held both face to face and on zoom.

This year, we will be holding the conference in conjunction with the Civil Justice Conference, with participants able to chose the format for their presentation.

Please share this call for papers with any researchers who may be interested.  We welcome participants from all career stages, and from anywhere in the world.    

Proposals are due by 17 December 2020.

For further information, please contact:

2020 Network President: John Woodward via adrresearchnetwork@gmail.com

Full details here:

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

Perspectives

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

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

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

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

Politics

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

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

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

Power

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

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

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

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

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

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

Rights

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

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

Negotiation

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

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

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

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

Institutions

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

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

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

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

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

Science

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

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

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

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

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

Values

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

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

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

Lessons 

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

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

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

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

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

Trust

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

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

Influencers

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“How small, of all that human hearts endure

That part which laws or kings can cause or cure.

Still to ourselves in every place consign’d,

Our own felicity we make or find.” 

John Woodward

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

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

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

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

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

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

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

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

This post is by Dr John Woodward, of University of Newcastle, and was workshopped at the ADRRN Roundtable 9-10 December 2019. John is the 2020 President of the Australasian Dispute Resolution Research Network.

For all of our progress in advancing the cause of mediation in Australia, there is one problem that remains tantalisingly difficult to resolve.  It is the problem of persuading lawyers (including some judges and court administrators) to embrace facilitative mediation in a way that is consistent with the core beliefs that are valued by mediation theory.  These include the facilitative role of the mediator, the idea that the mediator is there to assist the parties to work through their problem together, to view their interests and the interests of the other through first-hand discussion and active participation in the consensus building and option creation activities that lead to secure and durable solutions.

This is a problem that can be traced back through what Boulle described as the three stages of mediation development in Australia (Mediation: Principles, Process, Practice 3^rd ed p 349-350).  The hostile reaction to uncritical acceptance of mediation, concerns that it has the potential to develop a ‘two-tiered’ justice system with only a form of ‘second-class justice’ available for the underprivileged and concerns that vulnerable parties (particularly women) would lose the protection offered by the rules and procedures of the formal justice process are all underpinned by the unarticulated assumption that the rules and procedures of the formal justice process somehow offer a superior form of justice against which all others should be measured.  

Lawyers’ instinctive tendency to frame dispute narratives in terms of a rights-based story, their reluctance to look beyond solutions that are consistent with “what the court would order” and their insistence in maintaining control of disputants’ conversations in mediation sessions are all problematic for optimum outcomes in facilitative mediation.  They are also redolent of the three core elements of legal professional culture identified by Macfarlane in her work The New Lawyer: How Settlement is transforming the practice of law.  

Given the distance we have travelled in advancing mediation as an accepted part of the justice institutions in Australia, and the obvious successes it has enjoyed as a dispute resolution process, it is worth exploring why there remains an undercurrent of resistance from the legal profession and what, if anything, might be done to correct it.  The course of my own PhD journey suggests a few preliminary observations which I think are worth making.

Firstly, it is notable that throughout the whole empirical project, not a single lawyer research respondent disagreed with the proposition that mediation is a good thing and is to be applauded and encouraged as an effective means to bring an end to disputes.  Of course it is entirely possible that some of those responses were a result of social acceptability bias and that no self-respecting lawyer should, in the twenty first century, be seen as opposing a measure that has gained such wide acceptance among lawyers and justice administrators.   However, it is unlikely that their unanimity can be explained in that way.  The research data revealed some highly developed and nuanced conversations about various features of mediation, disputant behaviours, issues around enforcement and other matters of practical significance to disputants and their lawyers. 

Secondly, lawyers’ perceptions of problems with mediation were almost always framed in rights-based terms.  They complained that too much time was taken up with petty, emotional, irrelevant matters that were inadmissible in the case or that mediators were too facilitative and not directive enough so that the parties were not getting the benefit of what the mediator considered would happen if the case were to proceed to trial.  The latter complaint explained why some research respondents preferred to have a retired judge as mediator.  It was, they said, a more legitimate process if the mediator could bring judicial expertise to the mediation so that the parties could see what would happen if the case were to be decided by that judge.   This tendency to “legalise” the mediation process is well recognized in the literature and was described in the Australian Productivity Commission’s Report Access to Justice Arrangements of 5^th September 2014, which (at page 13) noted a “creeping legalism” by which institutions which were set up to provide low cost alternatives to the court with an emphasis on self-representation were becoming increasingly formal with the introduction of legal representation, lawyers behaving as if they were in court and bringing an adversarial tone to the proceedings.  

A third observation, and one which emerged as a major concern for lawyers engaged in court-connected mediation, is the uncertain limits of confidentiality and admissibility of communications in and around the mediation process.  In fact this feature emerged from the research as the single most problematic inhibitor of lawyers’ engagement in court-connected mediation.  It deserves further attention and is the subject of my paper to the 8^th ADR Research Roundtable in Melbourne.  

Confidentiality is one of the foundational pillars of mediation (Morris and Shaw p 320).  It features in every published book on mediation.  Some books dedicate entire chapters to the subject of confidentiality in mediation. As Hardy and Rundle have observed, there are competing public policy considerations in relation to whether or not parties should be able to use information disclosed in mediation in later court proceedings.  On one hand, there is a public interest in parties being able to resolve their disputes outside the court using a frank and open exchange of information without the fear of that information returning to haunt them if, despite their best endeavours, the dispute should prove incapable of resolution by negotiation.  See Field v Commissioner for Railways (NSW) (1957) CLR 285. On the other hand there is also a public interest in ensuring that the best evidence is available in court proceedings to ensure that a just and equitable outcome is possible by way of court determination.  See AWA Ltd v Daniels t/as Deloitte Haskins and Sells (1992) 1 ACSR 462.

The parliaments of Australia have attempted to reconcile these two competing public policies by introducing legislation to prohibit the introduction into evidence of information obtained during settlement discussions or in mediations. Statutes such as the Evidence Act, 1995 (NSW) and the Civil Procedure Act 2005 (NSW) have been very effective in protecting client settlement privilege and preventing privileged communications from being disclosed in court proceedings.  They have thus well-served the interests of the traditional justice institutions.  

But they have not well-served mediation whose very different interests are not so much in non-disclosure of protected information as in preventing misuse of protected information as the research data revealed.  Mediation’s concern is much broader than merely the exclusion of protected information from evidence. As Boulle explained, one of mediation’s great benefits is:

“…its attraction to potential users wishing to avoid adverse publicity and increase parties’ willingness to enter mediation and engage in open and frank negotiations in the knowledge that disclosure cannot damage them publicly among competitors or prospective adversaries.” 

An examination of the relevant statutes in NSW reveals that lawyers’ expressed anxieties around the limits of mediation confidentiality may well be justified and that the values identified by Boulle and others may not be available to disputants who mediate in the shadow of the law.  Even if this conclusion paints an unduly pessimistic picture of the objective reality of court-connected mediation in NSW, the research evidence clearly revealed that lawyers’ perceptions of mediation are that they must be cautious in allowing their client to speak or otherwise to participate directly in mediation except through their lawyer.   Many research respondents explained that they counselled a cautious approach when advising their clients about mediation and most preferred that their clients not speak. A few admitted positively forbidding their clients from saying anything at mediation. 

There is evidence going back as far as Rosenthal in 1977 to support the view that settlement outcomes are directly and proportionately related to the level of client involvement in the subject matter of the dispute.  Since then a long line of social researchers from Pruitt (1981), Daubman (1984), Johnson, Mertz and Robinson (1985) have conducted research experiments which have confirmed these findings.  

In 1986 Carnevale and Isen conducted a series of experiments designed to establish the effect on disputants’ ability to engage in integrative bargaining of suggestion by their lawyers.   Participants in the study were subject to a contrived negotiation under control conditions in which some respondents were provided with supportive and positive reinforcement (called ‘positive affect’) and others were not.  The study concluded that negotiators in whom positive affect had been induced achieved consistently higher outcomes than negotiators not in a positive state.From this literature and the results of my own empirical researches it is concluded that the quality of court-connected mediations in NSW is being compromised and that it will continue to be so until we are able to come to terms with the need to construct an appropriate framework of mediation confidentiality which goes beyond the present limited protections afforded by the statutory provisions for settlement privilege. 

Photo by Anthony Acosta on Pexels.com

In his recent autobiographical work The Pursuit of Justice[1] former NSW District Court Judge, Michael Finnane QC gives a rather frank account of his experiences as a judge and provides a rare insight into the thought processes which go through the mind of a judge in sentencing offenders in NSW.  A recurring theme throughout the book is the constant frustration that he felt as a judge at the limited options available to him for dealing with problems which, although presented in the cloak of criminal conduct deserving of denunciation and punishment, were really much more about how our society deals with the inequities of health, education, poverty and social disadvantage.  One chapter of the book recounts numerous tragic stories of serious crime committed by people who lived in appalling circumstances, many of them clearly without any insight into the gravity of the conduct in which they had engaged or the effect that it had on others in the community around them.  The author concludes the chapter by saying:

“These stories highlight a problem in our society in New South Wales that there are no proper mental institutions which provide accommodation, care and treatment for people with severe mental disorders.  Many of these people, because of their disorders, cannot look after themselves, cannot manage money, run out of funds and then resort to crime just to stay alive.  Some are lucky enough to get support from generous people in the community, but many of them have no friends or family.”

Similar concerns have been expressed by other members of the judiciary and magistrates.  A recent interview with a Children’s Court Magistrate revealed similar concerns about the problem of charging children with criminal offences in relation to inappropriate sexual behaviour arising out of school yard romances or dysfunctional family relationships.

It seems that there is a large gap between the truly malevolent conduct of the determined criminal and the behaviour of normally functioning, well-balanced and productive members of society.  Into that broad gap fall a large number of people who are affected by poverty, illness, disability and maladjustment and find themselves before the courts charged with criminal offences because, for too long, they have struggled without assistance or without adequate assistance to combat these problems which are not of their own making and, in the end, have committed crimes that, in some cases might have been entirely preventable had they received appropriate assistance in a timely manner.  Too often the sentencing remarks of judges include a sad recital of tragic personal backgrounds and a litany of handicaps that would challenge the most robust citizens in society.

All too frequently media reports of serious and spectacular crime are met with calls for harsher penalties and there are politically opportunistic promises to crack down on crime and make “law and order” an issue at the next election.  Such rhetoric makes many false assumptions.  It assumes that all members of society have equal access to opportunity, resources, health, education, disability support and the support of a loving family network (the equity assumption).  It assumes that all offenders make rational, considered and pre-meditated decisions to commit crime (the criminal intent assumption) and, most of all, it assumes that there is a direct and proportionate relationship between the harshness of the penalty and recidivism (the penalty assumption).  None of these assumptions is correct.

As to the equity assumption, the Bureau of Crime Statistics and Research (BOCSAR) evidence discloses that, for the period from April 2018 to March 2019 the rate of non-domestic assaults within the Sydney city area and the inner western suburbs area to Beaconsfield were greater than 566 per 100,000 of population but reduced to less than 166 per 100,000 in the lower north shore and around Belleview Hill, Dover Heights and Vaucluse.  A map depicting the incidents of assaults per 100,000 of population is shown below.

Figure 1

Image source: NSW Bureau of Crime Statistics and Research (BOSCAR)

Of course the evidence is only as to one type of crime and there are other weaknesses with the use of this map including the assumptions about the affluence of Sydney’s inner west and the lower north shore.  However, the map does give some indication of the prevalence of that crime in a small though densely populated part of NSW.

As to the criminal intent assumption the statistical evidence is more difficult to establish.  It is interesting to note, however, that invariably the official reports of judgments handed down in the Criminal Law List of Common Law Division of the Supreme Court of NSW contain harrowing narratives of the kind described by Finnane in his book.

As to the penalty assumption the BOCSAR evidence is that the recidivism rate for non-custodial penalties is about 20% for adults and between 42% and 44% for juveniles as set out in the following table.

Table 1

By contrast the recidivism rate for offenders who have been incarcerated is around 39% to 40% for adults and as high as 64% for juveniles as illustrated in the following table.

Table 2

Two questions arise from this story.  Firstly, why does any of this matter to a community of ADR researchers and, secondly, if it does matter, what can be done to address these problems?

Dealing with the first question first, it seems entirely plausible that our attention to restorative justice and restorative practices in modern dispute resolution discourse may as well focus on addressing the root causes of criminal and anti-social behaviour in the broader context in addition to the immediately presenting problem of reconciling a victim to an offender in the form of victim-offender mediation or conferencing or circles or other restorative practices of the kind advocated by King, Freiberg, Batagol and Hyams in the book  Non-Adversarial Justice (Federation Press 2009).     Every victim-offender mediation which succeeds in making a victim feel even slightly better or does something to restore their lost dignity or restore them to their former position is a good thing.  How much better a place the world would be if we were able to extend restorative principles to encourage improvement in health, education and social welfare in order to remove the occasion for criminal delinquency and promote a healthier, better informed and better resourced society which reflected upon its failings and was more active in restoring equity to those who stumbled because they were unable to keep up.

The second question is how we deal with these problems.  Undoubtedly this is a much more complex and difficult question to answer and one which would occupy more space than be accommodated in this post.  In the first instant, we as academics and researchers can do much to educate the broader community both about the myths surrounding the causes of crime and anti-social behaviour and about the benefits to be gained by considering issues of crime and anti-social behaviour holistically and from an integrative perspective so that all of the causative influences are brought to account.  At some point the penny has to drop that increasing crime rates are not just about more socially unacceptable behaviour by more individual people.  They represented a systemic failure of society to provide more appropriate resources and funding to address these problems.

Secondly, we need to persuade governments that there should be a proper level of investment into the health, education, training and useful employment of people who are incarcerated.  In short, this means a proper level of investment into corrective services.  Those invested with the management of corrective services should understand that recidivism is a failure of the system – not a failure of the individual.  There is an abundance of evidence from abroad that a more enlightened approach to corrective services produces better results.    As an example, by comparison with the recidivism rates reported above, Norway, which boasts the most advanced corrective services system in the world, has a recidivism rate of 20%, about half that of NSW and less than one third of that reported in the USA which reports a recidivism rate of 68%.

Guided by a “Principle of Normality” under which imprisonment is regarded as deprivation of liberty but nothing more, life inside prison is designed to be as close as possible to life outside.  Prison officers are educated in a range of disciplines including social welfare and psychology.  Prisoners are taught a range of skills to assist them in their rehabilitation and receive vocational training to assist with employment prospects.

These principles bear some resemblance to those advocated by Justice Nagle in the NSW Royal Commission into Prisons when he said:   ”People are sent to prison as punishment, not for punishment.”  Norwegians cast their tactical approach to incarceration as a “good neighbour policy” – treat people like dirt and they will become dirt.  Treat them like human beings and they will act like human beings.

These principles are also consonant with the principles advocated by the Restorative Justice movement which is gaining strong momentum in the City of Newcastle NSW.  In a recent article by Professor John Anderson and Dr Nicola Ross of the University of Newcastle, the authors said:

“Restorative cities implement interdisciplinary restorative practices and restorative justice measures across a range of systems including education, justice, welfare, child protection and health to achieve positive results for residents, particularly the most vulnerable members of the community such as children and youth. Ultimately these cities are working towards and achieving a transformational change in culture and the social fabric of their cities using mediations, conferences and relationship-building exercises to encourage the resolution of disputes and disagreements through productive communication, to address inappropriate and harmful behaviours and to create community wellbeing in a caring and inclusive culture.”  (J Anderson and N Ross A Restorative City for NSW – Could Newcastle be a Model? (2018) 27 JJA 74)

If even some of these objectives could be achieved, there would be cause for great optimism that many of the matters of which Judge Finnane complained might be removed from the criminal law landscape in New South Wales.  It is to be hoped that this will be so.

[1] M Finnane The Pursuit of Justice (New Holland Publishers 2018)

The term “rhetoric” has changed its meaning over time. According to the Oxford English Dictionary it has its origins in Greek antiquity and was defined by Aristotle to mean: the faculty of observing in any given case the available means of persuasion” and since the mastery of art was necessary for victory in a case at law or for passage of proposals in the assembly or for fame as a speaker in civil ceremonies, he called it “a combination of the science of logic and of the ethical branch of politics.” Rhetoric typically provided heuristics for understanding, discovering, and developing arguments for particular situations, such as Aritstotle’s three persuasive audience appeals: logos, pathos and ethos. the five canons of rhetoric of phases of developing a persuasive speech were first codified in classical Rome: invention, arrangement, style, memory and delivery.

In modern usage, the word “rhetoric” has come to mean language designed to have a persuasive or impressive effect, but which is often regarded as lacking in sincerity or meaningful content. The Oxford English Dictionary uses the example: “All we hear from the opposition is meaningless rhetoric.” It is in this latter context that the the word is used in this post.

The problem of rhetoric in dispute resolution discourse was encapsulated in a recent story which appeared in the morning media of 19th July 2019, when it was reported that residents have been prevented from occupying a fourth Sydney apartment building because of safety concerns with respect to toxic substances on the land including heavy metals, hydrocarbons, asbestos and contaminated ground water. the problem, according to a City of Sydney spokesperson, is that the developer had not complied with the conditions of the development consent requiring it to remediate the site before commencing construction work. The Council understands that this is “…a most frustrating situation for all terrace and apartment owners.”

The developer’s website marketing material claims that the property comprises “…amongst the most desirable residences ever to grace (the suburb’s) leafy village streets” and that (the Company) enjoys “…a strong reputation in all facets of property development” established over the past 15 years describing this as its “flagship” project. To consumers who continue to live in rented premises, have their goods and furniture in storage and have extended their mortgages while they await completion of their new homes, this is no doubt all rhetoric which serves only to rub salt into the wound and inflame hostilities.

To exacerbate matters it appears that, in answer to complaints about the long delays in completing the project (now fifteen months overdue for completion), the developer had misrepresented that the cause of the delay was due to “unforeseen planning issues” without disclosing the truth that it had failed to remediate the contaminated soil prior to commencing consruction as the Council required.

This scenario exemplifies what appears to be a burgeoning problem in the exchange between those who have been aggrieved and those who aggrieve them. It is the abandonment of good will and accountability in favour of baseless, meaningless weasel words euphemistically described in contract litigation as “puffery.” It is a feature of this manner of communication that, whilst superficially it seems to offer everything, in substance it promises nothing and anything that it does promise can never be measured so that no obligation is actually created.

In the building development story recited above, the developer issued a statement saying that it was “…working with Council to ensure that buyers could begin enjoying their new homes as soon as possible…” Farm from providing any measure of comfort to consumers, this language serves only to generate added hostility and further inflame the conflict. It is, as Don Watson said in his book Death Sentence: The Decay of Public Language (Random House 2003) “the superb indifference that the powerful have for the weak.”

In mediation discourse the language of rhetoric is resistant, non-commital and dangerous and puts the mediator on notice of an absence of good will or a poor approach to integrity based negotiations or both of these factors.

The language of rhetoric is sometimes expressed in terms of vague generalities from disputants who make offers that are contingent on external events over which they have no control. “Perhaps we could do something like that but it would depend on what our insurers say…” or “We acknowledge that there has been a breakdown in the system and we will be investigating it fully.” The message that is conveyed in all these situations is that there is nothing specific which can be done and the respondents to the claim just need a little more time to think how to escape the dilemma without being held accountable.

In my PhD research there was a hint of complaint, mainly from lawyers, who spoke of receiving instructions to formalise agreements made at mediation which were incapable of enforcement because they lacked precision or were contingent and featured vague promises that were unclear as to their content or as to the manner and timing of their implementation. In some cases the mediator had simply noted the general nature of the “agreement” without sufficiently reality checking the strength of the arrangements with the parties to ensure that they were satisfied that they had an enforceable agreement. In one case a research respondent reported that a mediator had just torn off the printed strip containing the electronic whiteboard notes and provided a copy to each of the parties as evidence of the agreement. Of course, this is not to suggest that mediation agreements must always be enforceable. That, however, is a decision which should be made positively and advisedly.

It is unclear at the time of writing this post whether there hs been research into this area of disputant behaviour. However, it seems that, at least anecdotally, there is an increasing prevalence of the use of rhetoric in response to legitimate consumer complaints and that DR practitioners and theorists could benefit by considering this as a topic for further research.

This post celebrates the second day of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account.

We live posted this blog today.

John will be presenting a paper in the topic of this blog post today.

Party self-determination has traditionally been valued as a core fundamental element of mediation.  Under this vision, it was assumed that parties would be the principal actors in mediations to resolve their disputes, that they would actively and directly participate in communication and negotiation, that they would choose and control the substantive norms to guide the process of their decision making, that they would create the options for settlement and that they would control the final decision as to whether or not to settle the dispute.[1]

Mediation in chains: photo courtesy Jev55 CC BY-NC 2.0

As mediation has developed and become integrated with the traditional justice system as a dispute resolution option, the emphasis on self-determination has diminished somewhat in the context of conversations around what the law would do and how the dispute would be resolved at court.  This is an understandable response because, as mediation theory recognizes, one of the significant empowering elements of any mediation is to calculate the best alternative to a negotiated answer (BATNA).  In the context of a court-connected mediation that consideration obviously includes the possibility that if the dispute is not resolved by agreement, it will be determined by a court, a fact of life which cannot be ignored.

This trend of diminishing emphasis on self-determination prompted Harvard Professor Nancy Welsh to question whether we should consider redefining the notion of self-determination and to recognize that evaluative mediation is becoming more accepted in the court-connected context where, inevitably, lawyers will have a greater role in advising their clients and recommending a settlement that aligns with what the courts would order if the dispute is not resolved at mediation.  Welsh’s solution was to suggest that the effects of what she calls “muscle mediation”[2] might be ameliorated if we modified the current existing presumptions about the finality of mediation and imposed a mandatory three day “cooling off” period during which any of the mediating parties would be free to opt out of the mediation agreement.

Empirical evidence gathered in the form of personal interviews with litigation lawyers in New South Wales in 2016-2017 has confirmed the existence of a trend away from disputant self-determination in court-connected mediation and a tendency for lawyers to take control of mediation sessions and to discourage disputant participation and, in some cases, to refuse to allow their clients to speak at all during mediation sessions.

It is also evidenced by the return of lawyers to mediation events, the persistence in using adversarial language and terminology in mediations and the preference among lawyers for the selection of retired judges or senior counsel as mediators in their clients’ disputes.  The research revealed that it is quite common for disputing parties to attend mediation events accompanied by both solicitors and barristers and to be prepared to say nothing unless questioned by their own legal representatives.

In a forum which is designed to focus attention on parties’ joint interests and consensus building, it is common for lawyers to “open” by reading “position statements” which, contrary to the spirit of mediation, traverse the legal issues, to declare their clients’ superior positions and then go on to announce magnanimously that they are “here today to compromise and to settle the case.”

Unsurprisingly, in mediations where this is a typical scenario, the parties then separate into break-off rooms and the mediation continues as a shuttle mediation where negotiations proceed on a zero-dollar basis and end up somewhere in the middle.

The research revealed that these behaviours are prompted by lawyer persistence in clinging to a defensive posture where nothing is given away and no concessions are made except for a pre-considered and planned purpose.

As mediator respondents to the research pointed out, this runs contrary to the principles of integrative bargaining and consensus building which are valued by mediation theory.  It does nothing to  “…allow a full and frank discussion about what is going on for the parties.” [3]

The research also revealed that lawyers give very little thought to the choice of a mediator, very little advice to their clients about what to expect in mediation or how to prepare for it, and little or no thought to anything which might be regarded as extraneous to the legal case (the non-legal factors).[4]  Mediation is therefore presented to the disputant in a rather negative way as being a last ditch effort to achieve an outcome without having to go to the trouble and expense of actually proving the case in court (or the risk of having it proved against you, as the case may be).

The problem for mediation advocates is that, whether we like it or not, lawyers will continue to have a dominant role in advising their clients about the wisdom of court-connected mediation, its forms and processes, its benefits and shortcomings. They are gatekeepers[5] and their views of mediation will continue to influence consumers of legal services whose perceptions of mediation will be viewed through the prism of their lawyers’ advice.

We know from the researches of sociology that lawyer attitudes about disputant participation play a substantial role in determining both the attitudes of their clients to mediation and the likelihood of its success.  In 1986, Carnevale and Isen established by experiment that research respondents encouraged by “positive affect” responded more favourably to bilateral negotiation, achieved better outcomes and were more committed to outcomes than were those who were not encouraged or who were primed with “negative affect.”[6]

If lawyers speak indifferently, or even disparagingly, of mediation then, even when it is ordered by a court or mandated by regulation, the mediation experience is likely to be diminished for the disputants.  If, on the other hand, lawyers speak positively about mediation and advocate its integrative nature and expansive opportunities for dispute resolution, then the process and the disputants’ mediation experience will be enhanced.

The challenge for us as mediators is to encourage co-operative behaviours and to honour the value of disputant dialogue and active participation in mediations.  The challenge for us as educators is to  ensure that there is ongoing access to appropriate educational opportunities for lawyers who are in litigation practice.  If we are not able to achieve those objectives, court-connected mediation will to a large extent remain mediation in chains.

[1] N Welsh The Thinning Vision of Self-Determination in Court-connected Mediation: the Inevitable Price of Institutionalization? 6 Harv Negot L Rev 1 2001

[2] Ibid p 7

[3] R33 mediator respondent to the research

[4] S Hardy and O Rundle Mediation for Lawyers (CCH 2010) 117

[5] J Dewar Family Law and its Discontents (2000) 14 International Jnl of Law, Policy and the Family 59 at 76; G Dimopoulos Gateways, Gatekeepers or Guiding Hands: The relationship between Family Relationship Centres and legal practitioners in court management and court process (2010) 24 Australian Journal of Family Law 176; F Donohue Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes  (Dissertation in partial fulfilment for the degree of PhD, University of California, 1997)

[6] P Carnevale and A Isen The Influence of Positive Affect and Visual Access on the Discovery of Integrative Solutions in Bilateral Negotiation Organizational Behaviour and Human Decision Processes 37, I- 13 (1986) at p 7