Restoration Retribution Revenge and Forgiveness: what can Game of Thrones tell us about human needs in dispute resolution.

Posted on 29/07/2020 by margaretcastles

Along with millions of other viewers worldwide, I watched, reflected on, discussed, and evaluated Game of Thrones on multiple levels, to the point of being slightly embarrassed by the amount of mental energy I was spending on this exercise. The answer? Explore the theoretical bases for aspects of the series that intrigued me as a lawyer and dispute resolution practitioner.

Like millions of other viewers, I felt a deep sense of moral satisfaction (sometimes expressed via air punching jubilation) when numerous villains ‘got what they deserved’. This led me to think further about the concept of ‘just deserts’ and what ‘seeing justice done’ means to humans. ADR theory focuses on collaboration, understanding, and moving forward, but do positive reactions to violent demise in this series hint at a more visceral drive to seek revenge as well? Further reflection suggested that there were interesting nuances in the way that retribution and punishment were meted out in Game of Thrones – that the manner in which various transgressors got their just deserts might be intrinsically linked to both the severity of the transgression, and their moral character. (Yes, I did spend a lot of time thinking about this series).

SPOILER ALERT – if you have missed this series and don’t want to know what happens to some of the bad guys, go straight to *

Who didn’t feel secretly jubilant when the vicious, cruel, entitled and arrogant Ramsay Bolton was left to be torn to pieces by the very hunting dogs he’d trained to cause so much cruelty to others?

Was it only me who thought that whilst Stannis Baratheon clearly had to die, he deserved a death less gruesome, as a once decent man who had lost his way, but somehow still earned a little empathy for his misguided attempts to do the right thing?

And finally, Jaime Lannister, who veered from loathsome to likeable across 8 seasons, but finally met an end that seems somehow fitting with the emergent decency that he exhibited even though he could not ultimately reconcile the moral challenges that he faced.

Anyone who has seen the series will know that this analysis could go on and on.

* End of spoilers

It seemed inevitable that all of these people (and many more) really did have to die, but I wondered how the manner of their deaths might reflect some human need for revenge and retribution in the context of broader ideas of dispute resolution.

550 years BCE, Nebuchadnezzar talked about ‘an eye for an eye’. The related concepts of retribution and revenge have become cultural historical and philosophical pillars of Western criminal punishment principles. This works as a social balance – visibly illustrating the moral standards society expects, punishing the offender as a means of deterrence, and ideally providing satisfaction in the sense of re balancing the moral wrong, to the victim. But is there also a need for the response to deliver some emotional benefit to the sufferer?

The idea of restoration – supplanting revenge punishment and the infliction of pain and consequence on transgressors, is a more recent phenomenon in criminal justice models, and contributes to modern Western criminal punishment theory. Ideas of restoration are also deeply embedded in ADR theory, particularly in facilitative relational processes, where past wrongs are examined, and left behind as the parties move forward.

The last 20 years or so have seen a number of research papers examine the psychological balancing of revenge, and the necessity of forgiveness by those wronged in moving from retribution to restoration. Much of this work is framed in terms of punishing criminal offending, but underlying human reactions addressed in this process are equally present in non-criminal matters.

Peter Strelan and Jan-Willem Van Prooijen [1] describe forgiveness as the replacement of negative responses with positive ones towards a transgressor. The socio-cognitive steps in this process involve the transgressor doing something to encourage forgiveness, with the victim re-evaluating their response and perhaps developing empathy for the transgressor. But the authors also found that victims who can punish the transgressor are more likely to forgive. This act of causing harm or consequence appears to be important in moving from negative to positive responses to the transgression. Based on a series of controlled empirical studies, the authors propose that “ [T]ransgressions stir emotions of anger, resentment and condemnation and so prime a fundamental human need for balance and equity: That is, transgressors should not be allowed to get away with what they did” and that “seeing offenders suffer for their actions helps victims feel better”. They also point to physiological evidence that “retaliation is an instinctual response to being transgressed against”. Rather than contrasting a “punishment” or “forgiveness” dichotomy, the authors suggest that punishment is a necessary step on the path to forgiveness .

Tyler Okimoto, Michael Wenzel and N J Feather [2] explore concepts of justice orientation to explain the revenge v forgiveness phenomenon. They suggest that people are either oriented towards retribution, or towards restoration, aligning retributive orientation with people who value unilateral authoritarian imposition of penalty, and restorative orientation with people who prefer to achieve consensus about shared values. They align personality types with these two orientations, suggesting that power plays a significant role. Retributive preferences tend to align with individual even narcissistic personality types with strong adherence to authority and group-based dominance, as well as high individual value of power and self enhancement. Whereas restorative orientation tends to align with a conceptualization of justice as a process to achieve consensus between affected parties. A very simplistic description of these preferences might contrast competitive individual values with collaborative communal values.

Monica Gerber and Jonathan Jackson [3] define the terms a little differently, describing retribution as both just deserts or revenge. As just desserts, the transgressor pays back for the harm done and justice is achieved by the redistribution of positive and negative experience. As revenge, the victim seeks not only to restore the balance, but to retaliate against the transgressor – “vengeance involves the emotional pleasure of seeing the offender suffer”.

SPOILER ALERT – skip next paragraph

Applying GoT examples to these theories, we might align Sansa Stark’s secret satisfied smile following Ramsay Bolton’s death with the idea of vengeance linked to offender suffering, and Brienne of Tarth’s regretful execution of Stannis Baratheon as a restoration of moral and social balance following his murder of his own brother in pursuit of the Iron Throne.

Gerber and Jackson’s suggestion that emotional pleasure might connect to visible suffering of transgressors is a bold and, in some ways, quite shocking conclusion – surely modern humanity has moved beyond that base need?

ADR, particularly mediation, seeks to move away from the concept of vengeance and retribution on the offender, to a restorative model that seeks to reintroduce balance by empathy, collaboration, and consensus. Yet it seems based on this research that underneath the choreography of mediation, and the implicit presumption that parties behave decently towards each other, there might lurk a much darker and more visceral need to see the other side suffer ‘what they deserve’ in retaliation for their moral transgression. After all, there must be some reason why the term “the sweet taste of revenge” is still in use today.

This train of thought was prompted by the idea that the millions of modern day viewers rejoicing at the often brutal but seemingly fitting retribution that some truly reprehensible characters suffered in Game of Thrones, are the very same people that we see in facilitative ADR processes – in other words, us. If this thread of desire for vengeance retribution and the infliction of suffering is hidden somewhere in the psyche of some if not all of participants in this process, what should we do with that? Is the elephant in the room here that people might be a lot meaner, vindictive, and retaliatory than anyone cares to admit – and that this is not some moral or character flaw but exists at a deeper psychological needs level.

I have never conducted a mediation where the parties, however opposed to each other, came anywhere close to exhibiting the sort of values and behavior that we saw on Game of Thrones. Nor can I imagine comfortably prompting discussion in mediation around a party’s vengeful desire that the other party suffer miserably in consequence of their past actions. But pursuing this line of inquiry has made me realise that the idea of basic psychological human needs may be more complex than I thought.

For a lively and wide ranging review of some of the ideas in this discussion, see Arne Sjostrom 2012 “When does revenge taste sweet: a short tale of revenge.” The Inquisitive Mind, Vol 15.

References

[1] P Strelan & J-W van Prooijen 2013 “Retribution and forgiveness: The healing effect of punishing for just deserts”, 43 European Journal of Social Psychology, Vol.43, pp. 544-553.

[2] T Okimoto, M Wenzel & N Feather 2016 “Retribution and restoration as general orientations towards justice” European Journal of Personality, Vol 26, pp. 255-275

[3[ M Gerber & J Jackson 2013 “Retribution as revenge and retribution as just deserts” Social Justice Research, Vol 26, pp.61-80

Best Practice for ADR in Equal Opportunity complaints

Posted on 17/07/2020 by margaretcastles

Peta Spyrou is a Doctoral student at the University of Adelaide Law School. She won a scholarship representing a partnership between the University and the Equal Opportunity Commission of SA. This scholarship supports students who have and interest in equal opportunity and human rights to develop interdisciplinary higher degree research skills.

Peta’s topic looks at disability discrimination complaints in the area of education from students who have a disability that manifests in complex behavioural issues. By focusing on the different ADR complaint-handling processes and tests for direct discrimination in SA and Victoria, Peta’s research aims to determine whether different outcomes and levels of satisfaction result under different systems. It also includes data from SA students who have made complaints to the Australian Human Rights Commission. Here Peta explains the background and focus of her research.

What motivated you to devise this topic?

My interest in this topic is multi-dimensional: My personal connection to the disability community; intellectual interest in law; interest in this unique scholarship opportunity; and recognition of the benefits of an education, (developed by my upbringing from a family full of educators), all influenced this topic.

In mid 2017, a colleague, who happened to be an Alumni from the University of Adelaide, received an email from the University’s Graduate Centre advertising the scholarship and partnership with the Equal Opportunity Commission. Knowing of my personal interest in both disability advocacy and Law, my colleague forwarded this email to me and encouraged me to apply.

My interest in disability was sparked from my part-time caring role of a young person with disabilities. My connection to him and his family for now almost nine years fostered a keen passion in the areas of human rights and equal opportunity for people with a disability. This focus and passion are complimented by my intellectual interest in law, and belief in the value of evidenced-based research informing policy recommendations.

How does this partnership between the Law School and EOC work – what do you do and where?

Scholarship recipients can undertake either a PhD or Masters qualification under a collaborative arrangement with Dr Niki Vincent, Commissioner for Equal Opportunity SA, who supervises successful recipients alongside University of Adelaide academic staff.[1]

As part of my application process, I consulted with Dr Vincent directly. When formulating my topic, the Commission was receiving an increasing number of complaints from students with challenging behavioural issues as a result of their disability, who were alleging disability discrimination in education.

Initially, I wanted to examine what was best practice for resolving these complex disputes; however, I soon realised that a significant literature gap exists. The confidential nature of the ADR processes associated with Anti-Discrimination and Equal Opportunity Commissions mean that we do not know how these statutory bodies are resolving these complaints, if at all.

My partnership with the SA EOC has enabled other statutory bodies to partner with us to facilitate a comparative analysis. My research currently involves the Commissions in SA, Victoria and the Commonwealth, and I conduct my research from the South Australian Commission one day a week.

What, broadly speaking, is your thesis?

Students who have a disability that results in challenging behaviours, such as violent or threatening conduct, may affect the safety and wellbeing of themselves and others.

Educating these students presents teachers with unique challenges given the existence of competing duties: for example, the duty not to discriminate versus duty of care obligations.

Despite all Australian jurisdictions containing protections for students with a disability to access education free from direct or indirect discrimination, no legislative framework expressly addresses what the appropriate balance is between competing duties, interests or principles contained within anti-discrimination; work, health and safety; human rights and educational frameworks. Additionally, because all statutory bodies seek to resolve discrimination disputes through ADR, the confidential nature of both the process and any resulting agreements compound this ambiguity. As a result, a knowledge gap exists regarding how these statutory bodies resolve these disputes.

My research focuses on this gap and builds on existing ADR and discrimination literature by empirically examining disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

The focus is on disability complaints raised by primary or secondary students who have challenging behaviours.

Could you outline the different EO structures that exist in Australia, including the use of ADR?

The dominant enforcement method under Australia’s anti-discrimination law is ‘compulsory conciliation’ at a statutory body. By this I mean that the overwhelming majority of frameworks require complainants lodge a complaint in writing to a statutory body for alleged breaches to the relevant Act. These bodies are tasked with the responsibility of upholding the objects of the legislation and attempt to settle disputes through ‘conciliation’, which is generally not defined in the Acts. If complaints cannot be resolved in this way, there is a potential for certain disputes to progress to a tribunal hearing, or federal courts if initiated with the Australian Human Rights Commission.

Victoria, however, has a slightly different system: It allows complaints to be lodged with either the Victorian Civil and Administrative Tribunal or with the Victorian Equal Opportunity and Human Rights Commission. Therefore, complaint lodgement at the Victorian statutory body is not a precondition to tribunal access. Even if a complaint is lodged with the Victorian Commission, the Act expressly allows for a range of different ADR processes to be used in an attempt to resolve the dispute.

My research investigates the intersection of the competing interests posed by students with challenging behaviours because of a disability. It seeks to determine whether the different complaint-handling processes in SA and Victoria results in any practical differences. It also compares results obtained through commissions and tribunals with outcomes of publicly available judgements. The purpose of this analysis is to examine whether the advantages of dispute resolution processes are being realised; whether one system receives higher satisfaction levels; and whether justice is achieved through non-litigious processes.

Can you explain the research plan that you are developing?

This research aims to address the literature gaps by both quantitative and qualitative means.

In working alongside the confidentiality constraints, the quantitative phase asks statutory bodies to provide data about educational complaints broadly, as well as specific data about complaints relating to students with complex behavioural issues. This initial phase is facilitated by the statutory body responding to a questionnaire which I modelled on the 1995 study conducted by Hunter and Leonard on sex discrimination outcomes (Rosemary Hunter and Alice M Leonard, The Outcomes of DIscrimination Cases (University of Melbourne, Faculty of Law, Centre for Employment and Labour Relations Law, 1995), and after reviewing a relevant complaint (with the parent’s permission) that was lodged with the SA Commission.

The study’s qualitative phase aims to gauge user satisfaction on both the dispute resolution process and the outcome of the matter. This will be facilitated by semi-structured interviews with interested parties and professionals who have been involved in matters that fall within the project’s sample size. I will also use a scoping survey to determine the professionals I would like to interview. This is to ensure that the stakeholder has been involved in a matter that is relevant to my research. This second phase will also ask Commission staff to explain their complaints-handling model in relation to these disputes. It is hoped that this query will determine the scope of any issues associated with a lack of a statutory definition for conciliation, if at all.

Why do you think it is important to interview individuals as part of this exploration?

Literature suggests that people in dispute resolution settings, especially mandatory processes, often experience power imbalances leading to potential disadvantages or levels of vulnerability. Additionally, the personal circumstances of caring for a young person with disabilities may make parent advocates vulnerable negotiators in ADR settings.

My research examines this by giving a voice to users of relevant dispute resolution processes who are often not heard in policy development. In doing so, I will be uniquely placed to make conclusions with regard to what system best minimises the potential disadvantages of dispute resolution in complex disability discrimination disputes in education.

There is a lot of discussion about the definition and parameters of conciliation at the moment, what are your preliminary thoughts on that? What issues does that raise in your mind in relation to your research.

The absence of a universally accepted definition of conciliation may be a reason why much of the academic literature is focused on mediation, resulting in conciliation and mediation wrongly being used interchangeably. On one hand, this could mean that policymakers have created unplanned complaint-handling processes. In other words, legislatures could have created conciliation-based systems when they really meant mediation-based processes. On the other hand, the lack of a definition could provide the statutory body with broad discretion to resolve the dispute.

My research is in part looking at where the various complaint-handling processes lie along the ADR continuum. This may help commentators frame the discussion about the definition and parameters of conciliation.

What are you finding enjoyable about this experience? What are you learning and how do you think this will make a difference?

While I developed an interest in legal research in my undergraduate degree and through employment opportunities, being able to align my various interests and passions in a PhD topic that has the potential to assist an industry partner is an exciting aspect of my study.

1 Peta’s supervisors from Adelaide Law School are: Associate Professor Dr Bernadette Richards; Associate Professor Anne Hewitt and Senior Lecturer Margaret Castles.

[1]

Learning from Aboriginal Knowledge Systems in ADR

Posted on 10/07/2020 by margaretcastles

I teach Clinical Legal Education, Civil Procedure, and Alternative Dispute Resolution at Adelaide Law School. Aboriginal communication preferences provide a ready contrast to the orthodox client interviewing practices that are used in the Australian legal system. This year I partnered with the Mobile Language Team at Adelaide University to provide focused Aboriginal cultural awareness training for law students, in both client interviewing, and in ADR theory and practice. Exploring the idea of knowledge systems made me appreciate the influence that my Euro-centric upbringing, education and legal training has on teaching and mediation practice. This discussion is the start of more detailed work with the Mobile Language Team that seeks to make law students and lawyers aware of their own and others’ cultural preferences .

In this discussion I often use the term “Aboriginal” as it is preferred in my state of SA. I mean no disrespect to others who prefer the terms Indigenous or First Nations.

Aboriginal and European knowledge systems

Indigenous knowledge describes the accumulation of knowledge and philosophy by societies over millennia. The term applies to pre-industrial societies and is typified by communities that have a predominantly oral tradition, exist synergistically with land and environment, and often live in communal or extended family groups. Guidance for life is often in the form of complex rules about relationships, land use, and behavior, and these rules are illustrated through place, landscape, stories, and spirituality. Indigenous knowledge systems often see the world as a cyclical phenomenon, with environment, people, experiences, stories laws and knowledge existing on a holistic plane, rather than as a linear movement from ‘then’ to ‘now’. Context, circumstance, and the perspective of the actor/s, means that knowledge is perpetually adaptive within broad frameworks. In contrast, Western European knowledge structures typically take a linear approach, with the past often representing “primitiveness” and the present seen as the apex of achievement. Proof – whether of historical fact, scientific hypothesis, or psychological condition, is critical, and rests on the written and evidentiary record. Colonial expansion of Europeans over the past 400 years has resulted in the hierarchical individualistic commercial and scientific values that underpin much Western culture being indelibly stamped on colonized nations and ways of life.

After centuries of being ignored, recent decades have seen gradual national and international recognition that Indigenous knowledge is rich, relevant and comprehensive, with enormous value to modern day science and land management (Pascoe 2018, 12-13; Nakata 2007, p.9).

Anglo-Australian legal culture

Aboriginal and Anglo-European world views differ as much in law and dispute resolution as in other areas. Anglo European law rests on the foundational presumption that individual rights always exist in tension with the interests of the state and the community. The right of the individual to self-determination in their own personal, commercial, economic, religious, lifestyle and other interests must be actively asserted. This reflects the cultural value attributed to commercial success and individual achievement, described by Lander as a ‘predatory’ culture that infuses both legal and governmental systems (Lander 2002, p.245).

Aboriginal cultural values are differently framed. Whilst individuals are valued there are expectations of humility, collectivism, knowledge sharing, responsibility to nature and the environment, and the interconnectedness of all aspects of life and environment . A simple comparison might liken Anglo-centrist legal philosophy to the primacy of the individual and Aboriginal legal philosophy to the primacy of the community in sync with the environment. Behrendt identifies key differences describing Anglo-Australian culture as individual, hierarchical, and competitive; and Aboriginal culture as communal, egalitarian, and cooperative (Behrendt 2008, p. 93).

In the traditional Anglo-Australian context, laws are rigid and inflexible. Rights are determined by adversarial process in which parties present evidence of facts to a single decision maker. This decision maker evaluates the evidence to decide if alleged facts are proven, and then determines how the law will apply to the proven facts. The existence of proven facts, and the application of the law, are the only relevant considerations. Loosely described as a ‘win lose’ competition, there is seldom a middle ground, and no scope for context, emotion, third party interests, or diverse non legal outcomes.

Larissa Behrendt provides a summary of the most visible differences between legal cultures:

Traditional Aboriginal dispute resolution

Contemporary Anglo Australian litigation

Oral complaint

Emotional informal response

Disputants may live together

Jury of elders

Experience age and wisdom required in an arbitrator

No rules of evidence

Procedure evolves with dispute

Process occurs with family or clan present

Disputants and family address arbitrators

Time not an issue

Informal “circle” culture

Settlement discussed with disputants

Informal communal appeal

Written complaint

Controlled formal response

Disputants often strangers

Occasionally jury of peers

Formal legal training, experience, and reputation required for appointment as arbitrator

Fixed rules of evidence

Precise procedure

Process occurs with strangers, or no observers, present

Legal representatives address arbitrator

Deadline intensive

Formal court culture

Judgment delivered

Formal appeal process

(Behrendt 2008, p. 93)

Mediation is an important alternative to Anglo Australian court process. Looking at Behrendt’s table (above) it is very clear that mediation comes between the two sides of the table, and aligns with Aboriginal approaches. Even so, mediation may continue to unwittingly apply Euro centric norms. In the following discussion I examine four of these perceptions: timing, mediator selection, communication preferences, and participants.

Time

Court process in Australia is tightly controlled. Even mediation, the least court-like approach, follows an orthodox series of steps, and often occurs in a single meeting that might last a few hours, or a few days. Time and efficiency in Western society, including the legal system, is seen as a critical element of justice delivery.

Traditional Aboriginal dispute resolution processes are not linked to time frames. The process is entirely flexible, and may be decided by the parties, not the mediator. Experienced Aboriginal mediators trained in orthodox mediation, but attuned to the circular approach to time that informs Aboriginal culture, suggest that the choice and sequence of process should be given to the participants, not the mediator. They also suggest more flexibility in the phases of mediation, rather than an expectation that it will all occur in a discreet time frame (Kelly 2008 p. 224). This flexibility in process may be more useful to parties who need time and space to consider new ideas and rethink their issues and options.

Mediator choice

The use of independent neutral third parties to mediate or adjudicate disputes is a cornerstone of Anglo European dispute resolution philosophy. In Aboriginal culture this is not so often the case. The cultural respect accorded to elders in communities means that they are presumed to be suited to working with the parties to resolve the matter, even if they are closely connected to the parties and familiar with the context (Grose 1995 p. 334). This practice is noted in other pre industrialized societies around the world where social hierarchy is an important element in dispute resolution (Merry 1982, pp. 30-31). Aboriginal practice recognizes that deep cultural respect for elders will influence compliance with outcomes and result in community satisfaction. It also means that the dispute is controlled within community (Ciftci and Howard-Wagner 2012 p. 84).

Communication

There are cultural differences in communication style and preference (Ciftci & Howard-Wagner, p. 82). Direct linear questioning designed to elicit facts and timelines typifies Anglo-Australian legal practice, and court process (Eades 2012, p. 481). Whilst much less formal, mediators often rely on open ended questioning to elicit responses from parties with a view to establishing a story that is coherent in terms of Western narrative discourse. Aboriginal discourse avoids direct questioning, is more responsive to less direct ways of eliciting information, and may have rules about who can speak for or about different people or issues. (Eades 2012, pp. 479-492).

Participants

Mediation in Anglo-Australian disputes reflects the Western presumption that privacy is valued above all. Mediation is private and confidential, limited to the mediator and the disputing parties. In Aboriginal dispute resolution the individual is seen as part of a larger social group. All members of that group may be involved in resolving the dispute, reflecting the importance of relatedness and consensus building (Sutton 2010, p.5). Whilst this is the practice in many land title claims where there are multiple people interested in a claim, it is not a typical feature of mediation process in the normal course.

Learning from Aboriginal culture

One of the challenges in learning from Aboriginal practices is that many of the ideas in Aboriginal culture flow from the importance of relatedness community and environment, from hierarchical respect for elders, and from a non-competitive world view. Euro-centric communities have ceased to share the same extent or depth of relatedness between dozens if not hundreds of kin, and the competitive perception that there is a right and a wrong outcome to any disagreement dissuades collaboration.

In the multicultural society of Australia today, there are numerous cultures, some with strong family and community connectedness. Many close-knit African communities value community adhesion above individual rights. Many Asian cultures traditionally prioritize respect, community harmony, and protocols for indirect communication over confrontational direct approaches (Sourdin 2020, p 642). Individuals of any culture who don’t happen to be educated in the written, fact based, chronological approach to conveying stories favored by Western educated professionals are not attuned typical Western discourse structures. Many people need time to reflect, to consult with others, and to re-evaluate their position as they move forward. People must expose their lives to disinterested strangers, rather than people whom they trust and respect.

Conclusion

Whilst court processes are rigid and slow to change, ADR options like mediation are flexible and adaptive. However they may unwittingly be informed by traditional Anglo centric perspectives. There is no one way of approaching dispute resolution, and mediators are nothing if not imaginative and adaptive. Aboriginal culture offers valuable insight into ways that can support process and theory in this dynamic context.