The ADR Research Network is a group of Australian dispute resolution academics. Blogging & tweeting high quality, critical dispute resolution scholarship.
Rachael is a Professor of Law in the Bond University Faculty of Law, and Co-Director of the Bond Centre for Dispute Resolution and Bond’s Centre for Professional Legal Education. Her areas of teaching and research expertise include dispute resolution, family law and domestic violence, lawyer and law student well-being and legal. Rachael has published widely in the dispute resolution field and completed a PhD on mediation ethics in 2011. Amongst other works, she is the author of Australian Dispute Resolution (2022) and co-author with Laurence Boulle of Mediation in Australia (2018). Rachael founded the Australian Wellness Network for Law and co-founded the ADR Research Network. She has been involved with Women’s Legal Service, Brisbane since 1993 and is now an Ambassador for the Service. In 2013 Rachael was named Queensland Woman Lawyer of the Year and in 2020 she was elected to be a life-long Honorary Academic Bencher of the Inner Temple in London.
In his most recent book Dan Druckman takes the reader on a journey through the three parts of his career: research institutes, consulting firms, and universities. Across the span of his professional years, Dan worked at 16 institutions and has been a mainstay at the International Association for Conflict Management (IACM). An interesting feature of the book is how he managed to weave a triad of overarching themes into this diversified inter-disciplinary career. From his days in graduate school to the present, he has been intrigued by issues of negotiation, identity, and justice. These themes have been pursued assiduously in experiments, case studies, reviews, theory development and in conflict management practice. They are on display in the articles selected for inclusion, ranging from early, middle, and later career contributions and spanning an array of methods, theories, and framework-driven analyses of complex processes. He also provides rare glimpses of behind-the-scenes networks, sponsors, and events with personal stories that make evident that there is more to a career than what appears in print. A concluding section looks back on how his career connects to classical ideas and the value of an evidence-based approach to knowledge generation. He also looks forward to directions for future research in six areas. For young and established scholars alike, there is much to be learned about the career challenges faced and decisions made by Dan. Dean Pruitt sums up the contributions in his quote: “informative and inspirational reading throughout.”
I am very pleased to let the Network know that Professor Laurence Boulle – Bond colleague, longstanding member of the ADR Research Network, one of the founders of the world-famous Bond Dispute Resolution Centre, pioneer of dispute resolution scholarship in Australia and friend and mentor to many in the Australian DR community – has a new book hot off the press!
This is a must-have work for all DR researchers and teachers!
The LexisNexis flyer describes the book this way:
This authoritative text addresses the key themes and issues that are essential knowledge for effective mediation and conciliation practice, including the underlying theories and values, mediation and conciliation procedures and the roles of participants and representatives, the modern practice of mediation and conciliation in Australia and internationally, and the laws that regulate aspects of the process. It also discusses quality, standards and accountability in DR processes and the future directions of practice.
It is essential reading for teachers and students of mediation or conciliation, those who practise in those fields, and judges, tribunal and commission members, lawyers and other officials involved in the many legal facets of mediation and conciliation practice. The wide-ranging topics include discussion on new regulatory requirements, practitioner standards, the role of technology and AI in mediation and conciliation and responses to recent social challenges. Relevant case law impacting areas of practice is extensively covered.
Features
• Provides key information to support mediation practice
• Ensures up-to-date understanding of practice issues
• Authoritative author
• Aligns with mediation standards supporting the NMAS accreditation process
Related Lexis Nexis Titles
• Boulle and Alexander, Mediation: Skills and Techniques, 3rd ed, 2020
• Condliffe, Dispute Resolution: A Practical Guide, 6th ed, 2019
You are invited to the 11th ADR Research Network Roundtable 2023
Monday 6th and Tuesday 7th February 2023
The 2023 Roundtable will be held in-person at the Faculty of Law, Bond University, Robina, Gold Coast.
Please see more details of the draft program below.
There is no registration fee for the 2023 Roundtable.
Catering will be provided courtesy of Bond University’s Faculty of Law during the day. The Faculty will also coordinate an informal self-funded dinner for participants on Monday 6February close to Bond campus. Participants will be responsible for their own travel and accommodation costs.
We are delighted to announce that the 2023 ADRRN Roundtable will be an opportunity for conversation with eminent international scholars.
Professor Julie Macfarlane CM (Emerita Distinguished University Professor of Law, University of Windsor, Ontario, Canada) and Professor Sue Prince (Professor of Law, Exeter University, UK) will be presenting keynote papers on Monday 6 February with the opportunity for personal discussions with these renowned dispute resolution thought leaders.
Keynote Speaker – Professor Julie Macfarlane (Windsor)
Paper title: What ADR Research and Practice Tells Us About the Misuse of NDAs
The widespread and virtually default use of non-disclosure agreements (NDAs) in a wide range of civil settlement agreements rests on twin myths that ADR scholars and practitioners can easily explode. The first is that restricting the use of NDAs to their original purpose of protecting trade secrets and intellectual property will result in a collapse of settlement rates (consistent in common law jurisdictions for 35 years). The second is that the party who is insisting on the NDA (the defendant or their organization) will “walk” if an NDA is refused – whereas taking the matter into the public domain would be an even worse outcome for them.
The structure of NDAs requires that a victim or other plaintiff must protect the confidentiality of the perpetrator or alleged perpetrator in order to be assured their own privacy – an exchange transaction in a negotiation typically characterized by significant power imbalance. Scandals around the silencing of victims of harassment, assault, bullying, fraud and other misconduct have led legislatures around the world, including Australia, to consider restricting the use of NDAs to their original purpose, the protection of trade secrets. The Can’t Buy My Silence campaign, co-founded by Dr Julie Macfarlane and Zelda Perkins, have lobbied for legislation that has passed or is progressing in Ireland, Canada, the US and the UK.
Many mediators and arbitrators have integrated NDAs into their settlement agreements, with a template NDA clause now commonly appearing in settlement releases/ waivers. Some mediators have changed up their terms of mediation to include an indefinite NDA, rather than process confidentiality. What is the ethical and professional responsibility of the third party in this situation? And how can the ADR community educate both lawyers and the public to use confidentiality responsibly and ethically rather than as a means of silencing victims and covering up misconduct?
Dr Julie Macfarlane has spent her adult life teaching in law schools on four continents, researching and working on progressive causes that she feels passionately about.
Julie is a Distinguished University Professor and Professor of Law (Emerita) at the University of Windsor. Julie’s first job as a law teacher was at University College, Cork (Republic of Ireland) in 1981, and then at Anglia Polytechnic University in England. Julie has also held numerous visiting appointments including at the City University of Hong Kong, the Kroc Institute of International Peace Studies at the University of Notre Dame, the University of Sydney and the University of New South Wales.
Julie grew up on the Isle of Wight and on the Sussex Downs in England. She lived in London, England, in the 1980’s where she completed her doctoral work while working as a parliamentary lobbyist to pay the bills. Learning to write speeches and legislation, and seeing change happen (or not), she caught the activism bug.
After a stint in Hong Kong where she designed a Bar Admission Program and founded a Free Women’s Legal Advice Centre, Julie moved to Canada in 1992. Support from many funders has enabled her to pursue research that tries to better understand, through lived experiences, misunderstood or ill-understood topics: from self-represented litigants to Islamic shari’a to survivors’ experiences reporting sexual harassment and violence.
Julie has received many awards for her work, including the International Academy of Mediators Award of Excellence (2005), the Institute for Social Policy Understanding Scholar of the Year Award (2012), the David Mundell Medal for Legal Writing (2016), one of Canada’s 25 Most Influential Lawyers (2017), the John M. Haynes Distinguished Mediator Award from the Association for Conflict Resolution (2017). She and the National Self-Represented Litigants Project have won multiple CLAWBIES (the Canadian legal “Oscars”!) for her blog, podcast and the project’s resources for self-represented litigants. In 2020 she was named to the Order of Canada.
Julie now writes, speaks, and lobbies on a range of social justice issues.
Keynote Speaker – Professor Sue Prince (Exeter)
Paper title: Coping with the demands of the future: the role of mediation in small claims proceedings in England and Wales
Statistical data has exposed the growing inefficiencies and lack of effectiveness of the courts at the present time, especially of lower courts dealing with small claims matters. Backlogs, the pandemic, cuts to services, the cost-of-living crisis have impacted on the user experience and led to a renewed interest in compulsory mediation.
Greater investment in court modernisation and technology are all part of His Majesty’s Court and Tribunal Service (HMCTS) Reform Programme. This has been operating since 2016 with a view to modernising processes and practices. One area of interest to senior policymakers is the use of Online Dispute Resolution (ODR). This has led to the creation of Online Civil Money Claims (OCMC) process for claimants and defendants which is digital from start to finish. Similar projects elsewhere in the world have made use of pathways and decision-trees to guide parties along an online route, which includes mediation as an integral aspect of the civil justice process.
Several government bodies and committees have reviewed the effectiveness of current processes related to low value cases. Relevant reports on small claims (2022); pre-action protocols (2021); and ADR (2021) have all concluded that more focus should be given to increasing the use of ADR. In the summer of 2022 the Ministry of Justice issued a formal consultation entitled ‘Increasing the use of mediation in the civil justice system’. In this consultation the government proposed automatic referral to the HMCTS Small Claims Mediation Service, for all cases with a value of less than £10,000 (the small claims limit).
This paper considers the role of mediation in the current small claims process and asks whether English courts are prepared for a mandatory system in the future.
Professor Sue Prince studied Law at the University of Exeter and completed her PhD in 2003. She has previously held senior University roles including Associate Academic Dean for Students, Associate Dean (Education) and Interim Head of the Law School. She has been awarded a University Fellowship Award for Excellence in Teaching and is a Principal Fellow of the Higher Education Authority. She is the Director of the new Global Legal Education and Entrepreneurship Lab.
Sue’s research interests focus on access to justice in the civil courts looking particularly at the role of court-based mediation and compulsory mediation. She is currently involved as a consultant in the HMCTS Evaluation of the Opt Out scheme for mediation in civil cases. She has conducted a number of empirical studies of the impact of mediation in the courts for bodies such as the Civil Justice Council and the Ministry of Justice. Sue has published on the topic of mandatory mediation in Canada and has researched and published on mandatory projects in Florida and also in New Orleans after Hurricane Katrina. She was a member of the Civil Justice Council Advisory Group on ODR led by Professor Richard Susskind, set up to explore the role that Online Dispute Resolution can play in resolving civil disputes in the courts. The initial report was published in February 2015 and has had huge impact on the development of the online courts in England and Wales. Sue was a member of the JUSTICE group on Preventing Digital Exclusion which published its Report in 2018. She has presented on the subject of ADR at the OECD and as part of the ADR Research Network in New Zealand.
Sue is currently on the panel of the national Law Society Learning and Development Steering Group with responsibility for learning design. She is also working with LawTechUK, a branch of TechNation on the development of start-ups for law students.
The 2023 Roundtable will be held in-person at the Faculty of Law, Bond University, Robina, Gold Coast.
There is no registration fee for the 2023 Roundtable.
Catering will be provided courtesy of Bond University’s Faculty of Law during the day. The Faculty will also coordinate an informal self-funded dinner for participants on Monday 6 February close to Bond campus. Participants will be responsible for their own travel and accommodation costs.
We are delighted to announce that the 2023 ADRRN Roundtable will be an opportunity for conversation with eminent international scholars.
Professor Julie Macfarlane CM (Emerita Distinguished University Professor of Law, University of Windsor, Ontario, Canada) and Professor Sue Prince (Professor of Law, Exeter University, UK) will be presenting keynote papers on Monday 6 February with the opportunity for personal discussions with these renowned dispute resolution thought leaders.
Keynote Speaker – Professor Julie Macfarlane (Windsor)
Keynote Speaker – Professor Sue Prince (Exeter)
Details of the draft program are to follow soon.
We very much look forward to welcoming you to Bond University for the 2023 ADR Research Network Roundtable!
Professors Jonathan Crowe and Rachael Field, Bond University Faculty of Law
2023 ADR Research Network Co-Presidents and Roundtable Convenors
The Mediator Standards Board invites interested parties to submit a research proposal for the award of its Annual Research Grant (ARG). The ARG shall be for proposals up to the total value of $50,000.
CONTACT FOR FURTHER INFORMATION: enquiries are to be directed, in the first instance to: Ms Jenny Watson, Secretariat Officer, Mediator Standards Board.
Welcome to the ADR Research Network’s 10th Annual Roundtable 2022.
Due to the current Omicron COVID situation and its impact on Network members, this year’s Roundtable is being held through the Blog instead of face-to-face via Zoom on 7-8 February 2022 (as had been originally planned).
We are excited to have agreed on this creative solution with our presenters and our esteemed Keynote Speaker – Professor Bernie Mayer.
This first post for the Roundtable is our Opening Keynote Address (followed by a brief discussion with Bernie and some Network members). It is the first in what will be a series of 20-minute presentations posted by Network members in the coming weeks. We are aiming to add one presentation a week.
The Blog provides opportunities for comments and discussion. You are invited to be as interactive and responsive in your feedback and contributions to discussions as possible.
We are hoping this will provide a flexible, Covid-safe, asynchronous way to proceed with the Roundtable which will also be of benefit to the authors in terms of disseminating their work to a wider international audience.
We are delighted to have Professor Bernie Mayer as our Keynote Speaker for this 10th Anniversary Roundtable of the ADR Research Network. Bernie needs little introduction to dispute resolution scholars, students, practitioners and enthusiasts as he has been an internationally influential thought-leader on dispute resolution theory and practice for many decades. He is speaking in his Keynote about his new book – co-authored with Jackie Font-Guzman – entitled The Neutrality Trap – Disrupting and Connecting for Social Change. Please do post comments, thoughts and responses to the keynote via the Blog.
We look forward to collegial and robust Roundtable discussions this week – and in the weeks ahead – as this new format for the Roundtable unfolds. We look forward to engaging with you online.
With our warmest wishes
Professors Rachael Field and Jonathan Crowe
Co-Convenors of the ADR Research Network and the Roundtable for 2022
The 10th Annual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be held online via Zoom through the Bond University Law Faculty at the Gold Coast on 7-8 February 2022.
ADRRN Roundtables provide a collaborative and supportive research environment for work-shopping papers-in-progress. In addition to presenting and receiving feedback from attendees, participants can opt to have their paper commented upon by a Network colleague. Time allocated for a presentation is usually 30 minutes for the presentation, and 30 minutes for feedback, discussion and commentary.
The ADRRN is calling for 2022 Roundtable abstract submissions of no more than 300 words (plus a short bio and photo) by 30 November 2021 via email to the 2021 Network Presidents and 2022 Roundtable Conveners: Rachael Field (rfield@bond.edu.au) and Jonathan Crowe (jcrowe@bond.edu.au).
Presenters are also asked to convert their abstract into a short blog post of no more than 1000 words prior to or after the Roundtable. Blog posts will be published on the ADRRN’s webpage: https://adrresearch.net/ .
Paper abstracts can focus on any dispute resolution theme and scholarly, critical and/or empirical perspectives are particularly welcome. Submissions from postgraduate students and early career researchers are encouraged, but Roundtable papers are presented by a spread of participants across all stages of an academic career. All submissions are considered. Papers should constitute work in progress.
A selection panel will select Roundtable papers from the abstracts submitted. The following selection criteria will be applied:
The submission takes a scholarly, critical and/or empirical perspective on an area of contemporary interest in dispute resolution theory or practice;
The submission is about a work in progress; and
The abstract is well-written.
Participation at the Roundtable is on a self-funded basis.
Attendance at the Roundtable is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.
Key dates:
Deadline for paper abstract submissions: 30 November 2021
Date for notification of acceptance: 17 December 2021
Full papers for peer review (optional) due: 24 January 2021.
Blog post due: 25 February 2022 (for publication as the March content of the Blog).
About the Australasian Dispute Resolution Research Network
The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.
Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.
Guest blog post proposals are always welcome. Contact the general blog editor Rachael Field at rfield@bond.edu.au.
Membership of Australasian Dispute Resolution Research Network
The Network eschews hierarchies and unnecessary administration, so we do not currently have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.
Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity are through Facebook “ADR Research Network” and Twitter @ADRResearch.
A reflection on the National Mediation Conference 2021 by Elizabeth Rosa
This year the National Mediation Conference (NMC) was recently held in Alice Springs, but delegates could only attend virtually as dictated by the Covid-19 restrictions in many states. It was intended that the conference explore the practice of mediation, in particular the dispute resolution work of Indigenous communities in this area, the Red Centre – the heart of the land we call Australia. There is something about the fact that the conference still went ahead, through a virtual platform, that could be regarded as a metaphor for our profession and the work that we do.
There had been many hopes both on the part of the NMC organisers and the delegates; many travel plans and many preparations for presentations. There were the hopes of the Indigenous peace-makers, and other Alice Springs mediators, that their distant Australian colleagues would be amongst them for a few days and would learn of the work that they do. The health emergency interrupted these plans. The organisers and hosts of the conference included Traditional Owners and Elders of the land of the Arrernte people around Alice Springs (Mparntwe). Indeed, the conference was held at the invitation of the Elders. The organisers and Elders were looking forward to welcoming the delegates, and the delegates were no doubt disappointed at the missed opportunity for the connection that they had hoped for, as well as the experience of being in Alice Springs, close to the heart of the land and its Indigenous population.
As mediators, we deal with loss. We deal with certain expectations that the mediation participants have had, for example, for a good marriage or even a good workplace relationship. But those expectations have not been met and the mediator works to understand how the parties feel about this and their capacity to propose options to create a new reality.
In their work, the mediator delves into the participants’ experience of the change that has occurred. The mediator works with heart to listen empathetically to the participants, to try to connect with them in order to understand their wants, needs and fears. Listening with heart could also be called listening with ‘the spirit’, as Susan Hamilton-Green, a family mediator from Melbourne, discussed in her talk on Motivational Interviewing. Susan looked at how listening this way can help a participant explore what it is that they want and how they can overcome the barriers to achieving this.
The organisers of the conference no doubt considered what their hopes for the event were and what those of the delegates would have been. And for them, there was the question: ‘How to accept that the opportunity of a face-to-face conference has been lost and how can the needs of the delegates be met in a different way?’
What were the needs of the delegates? I venture to guess, that for many, the need was to learn further skills to reinforce their existing practice; to hear about new and diverse ways of approaching their work; to learn about areas of dispute resolution different from their own; to be informed of peace-keeping approaches used by mediators in the Indigenous communities and First Nation Peoples around Alice Springs, and to hear of stories of the lives of the Elders and co-hosts. In addition, a conference gives the opportunity to connect with colleagues – catching up with familiar acquaintances and meeting new ones, perhaps through casual chit-chat. There is always the desire for connection and the feeling that this brings, of being part of something bigger than oneself, a professional community.
And so, the organisers would have considered these needs and the question of whether they could be met in another way. And so, the virtual conference was born. The planned-for talking circles of the conference hosts and Elders took place virtually. The speakers’ presentations were pre-recorded, and although the ‘live’ feel wasn’t there, there was the opportunity to ask questions of the speakers through chat. There were also opportunities at the conference for people to catch up through virtual break-out rooms during breaks, even at dinner-time one evening!
An ingenious touch for those of us missing the reality of actually being in Alice Springs was live-streaming of footage of the town and the country around it during the opening event. It was wonderful to see three of the Elders and co-hosts sitting in the view of the MacDonnell ranges: Harold Furber, Maureen Abbott, Dr Patricia Miller AO, Kumali Riley and Helen Bishop. (Other co-hosts not present on the occasion were Veronica Perrule Dobson AM and Marlene Rubuntja.) They spoke in a semi-circle, near a clutch of trees over dry land, gently introducing us to the land. As they spoke, the rays of the setting sun shone in golden streams over them. I felt almost as though I were there.
Maureen Abbott was the Co-Chair of the Design Committee. She created the painting that is used for the logo of the conference. Maureen has conducted dispute resolution in a variety of contexts and is an expert in Indigenous conflict management. She has also conducted mediation training for Indigenous communities across the Northern Territory and the APY Lands in South Australia. Helen Bishop is a PhD candidate in Conflict Resolution and Indigenous perspectives. She works in dispute resolution with First Nation communities across the Northern Territory. She believes that alternate dispute resolution practices and peace-building opportunities should be used to support community-led solutions.
On the Thursday morning, we were treated to another live-stream from the ground for a conference welcome: children from Yipirinya school cooking kangaroo tail over an outdoor fire and later singing to us from their school hall.
I had imagined being present at the talking circles at Alice Springs and sitting in the presence of the Elders. It was different to see them on screen and yet they took to the live format generously, sharing their stories with humility about what they had suffered. I felt that I was present with them in the room and was honoured to have the opportunity to hear of their life experiences.
I embraced conducting my presentation by Zoom rather than face-to-face. I interviewed Katelyn Betti, a family mediator, about what workplace mediators can learn from the practice of Family Dispute Resolution. We discussed the techniques that Family Mediators use to enhance emotional safety and constructive dialogue. We explored Katelyn’s particular perspectives on this, plus my own reflections on how these perspectives could help in the workplace context. I was glad that Zoom gave me an opportunity to speak with Katelyn in the west coast of Australia in Perth, from my place in the east coast, in Sydney.
In the virtual break-out rooms that I attended during the breaks, the delegates saw each other through cyber-space squares, like virtual window panes. We sought to connect with each other and yet there was the distance through the virtual platform. But we persevered and I found that I got to know new people, particularly when they coincidentally appeared at another ‘meal break.’
Again, the conversations through the breakout rooms was a metaphor for the mediator’s desire for connection with participants. With all participants in mediation, there are barriers: their own world view coloured by their disappointments, their emotions, their need for control. In all of life, in fact, there are barriers to connecting with others because of our own perceptions, erroneous assumptions, lack of time due to busy lives and other commitments. Even partners who live together can struggle to really know each other. But mediators strive with purpose to connect with participants in mediations and to know and understand them during the time that they work with them. Mediators are a breed who enjoy getting to know and understand others. And so, at the conference, it was palpable how much the delegates wished to connect, striving with purpose in the digital format to learn more about their colleagues.
In the final event, the wrap-up by NMC Chair, Professor Laurence Boulle AM and Co-Chair of the Design Committee, Alysoun Boyle, we heard of the hopes and the challenges to bring the conference to fruition. Alysoun, from her own locked-down location, spoke with gratitude and emotion of how the Elders, who hosted all of us, had helped her and taught her during her time of preparations. And she spoke of how she had got to know Maureen Abbott and Helen Bishop, and how they had so generously guided her through the process of putting together the conference program.
We would have all been disappointed to have missed the opportunity to meet the co-hosts, to be on their country, the land of the Arrernte peoples, and to be in the heart of the land. We would have been sad to miss being present on the ground at the talking circles to hear the Elders and co-hosts speak of their experiences in their country and the losses and pain of the stolen generation. We may have had the opportunity to even sit in the circle with them or a chance to speak to them, to learn even more about their lives and their hopes for their communities and the peace-making work that they do. We would have wondered how we would have felt if we had been there, present with the Elders. To be in their country. To be on the red earth under a cloudless sky. How connected would we have felt; what emotions would have been conjured up? What would we take away with us?
But hearing the emotion with which Alysoun spoke of her work with the co-hosts and the connection that she developed, made us feel like we were there. Alysoun and the co-hosts brought the heart of the land straight into our homes through our computer screens.
17 September 2021
Elizabeth Rosa is a Nationally Accredited Mediator, Workshop Facilitator and the Founder of Resolve at Work.
Thank you Joanne Law for your thoughtful contribution to the debate on Mediation and Fairness on :
Really interesting, if somewhat cynical perspective on the question of fairness in mediation by Robert Angyal.
I would take a different perspective and narrow my focus down to mediation in accordance to the National Mediator Accreditation System practice standards and ethics.
The generally accepted meaning for ADR is Alternative Dispute Resolution (alternative to court) but I am with the crew who are working towards ADR meaning Appropriate Dispute Resolution. That shifts the focus from Court as the benchmark or expected approach to resolving disputes as is implied by looking at other than court as alternative and puts court where it belongs as the last resort in the continuum when people and their advisors are incapable of resolving the issues without a decision maker.
We have an unfortunate tendency to use acronyms in our industry which is not ideal, especially if we don’t identify what the letters mean.
In mediation we avoid assumptions in our language when we mediate and I hope most mediators have their ears tuned in to hear assumptive language and use clarifying questions to open the assumptions up to scrutiny.
I feel that Mediation should be facilitated in accordance with the ethics established in our NMAS standards and in the case of family law mediators regulations not arbitrary moral norms. There is a huge assumption in believing that moral norms has any type of universality as morality isn’t universal. It’s a product of upbringing, religious norms and life experiences etc.
Does the list of criteria given for assessing civil disputes really cover appropriate criteria? Those given were “efficiency, cost, access, speed, compliance with the rules of natural justice, and so on.”
I would add effectiveness in resolving the dispute, increasing understanding and improving communication.
If we take the definition of mediation from the NMAS Standards it is “Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding, (b) identify, clarify and explore interests, issues and underlying needs, (c) consider their alternatives, (d) generate and evaluate options, (e) negotiate with each other; and (f) reach and make their own decisions.
A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes. (there is a proviso that recognises the more evaluative or advisory end of the spectrum. Footnote in the standards: For a mediator using a blended process, which may involve the provision of advice see Section 10.2 of the Practice Standards)
If we lived in the ideal world I would like to create people wouldn’t be mediating based on fear of the risks associated with litigation that they have rushed into but instead go to mediation first, share their perspective of what they need to resolve the dispute and work towards something that can be considered as acceptable by both.
So for me a fair outcome is within the range of somewhere between the best possible outcome and the worst case scenario for both. And that they are able to work through the decision making in a respectful process where they are not coerced, bullied or pushed into a feeling that they have no other options.
Rather than thinking about fair as being a single outcome perhaps we could think of it as an outcome that those involved can accept without regret.
When I am training mediators I coach them not to use language like “Are you happy with the outcome?” which reminds them of their best case scenario which is likely to be closer to the other parties worst case scenario. Instead if you ask “Is that acceptable to you?” people can think about does the outcome fit within the range they believe is reasonable. Because for me the answer to the question “who decides what is fair?” should be those who have to live with the agreement reached.
The questions asked at the end are questions that have multiple answers depending on the style of mediation. Settlement negotiation mediation may work as described but other types of civil mediation are used instead of and without any intention of going to court.
Why does mediation work? How does mediation work?
For mediation where lawyers are included in the process.
How can I effectively represent a client at mediation?
By empowering your client rather than speaking for them and definitely by finding out what they want rather than pushing them into what you think they can get if you push hard enough.
What are the ethical limits on my advocacy at mediation?
My thinking is why do lawyers think that mediation is a process where they need to be advocating rather than assisting with problem solving?
Robert Angyal SC has posted a detailed and thought provoking response to the most recent ADR Research Network Blog Post on the National ADR Principles – so I have posted it here on Robert’s behalf. Many thanks Robert for your engagement with the Blog! And thanks to Vesna and Teresa who also posted comments! Keep the comments coming!
The post asks, “Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both?” There are several problems with the question itself.
First, what is meant by “ADR”? To this writer, ADR means going to court because the primary dispute resolution process, mediation, has not resulted in settlement of the underlying dispute. This is because mediation is ubiquitious in modern Australian civil dispute resolution. I think, however, the author of the question meant something different by “ADR”.
The second problem with the question is this: Is it a question which calls for a description of how mediation actually is practised in Australia and an assessment whether it leads to fair results – that is, does it call for a descriptive answer? Or is it a question about how mediation should be practised in Australia – that is, does it call for a normative answer based on moral norms about how the practise of mediation should be conducted?
If the question is a normative one, it leads to two more questions: First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all? We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?
The third problem with the question “Is mediation about a fair process or about a fair outcome?” is the biggest one: It assumes that mediation is fair (descriptive) or should be fair (normative). It doesn’t admit the possibility that mediation might not be about fairness in either sense. You’re saying, I know, “Hang on, of course mediation is meant to be fair; that’s why people do it rather than going to court.”
I have two sorts of bad news for you. The first bad news is that in any particular case, the question “Is mediation fair?” is unanswerable, for lots of reasons. The biggest reason is that the parties will disagree about what’s fair. That’s why they’re having a mediation in the first place. If they could agree about what’s fair, they wouldn’t need a mediation or a mediator. Given this and the fact that mediations always are conducted in private, even if a third party could find out the outcome of a particular mediation, how could they form an opinion as to whether it’s fair?
The second piece of bad news is that my empirical observation, based on mediating for 30 years, is that parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome. They’re mediating because, and mediation works because, they are worried stiff about continuing the underlying legal proceedings. They are worried because litigation is very expensive, very destructive of relationships, very time-consuming and drawn-out and – most scary of all – very unpredictable as to result, with costs usually following the very unpredictable result. Losing means you get nothing out of the proceedings except the obligation to pay not only your costs but also the winner’s costs.
So the reason they are mediating is to mitigate the huge risks inherent in conducting civil litigation. To put it bluntly: Many parties to civil litigation can’t afford to lose – but they have no way of knowing with any certainty whether they will lose or win. They are looking for a way to avoid taking the risk of losing.
Some parties are even worse off: They can’t afford to run the legal proceedings to judgment but neither can they afford to call a halt to the proceedings, because a party who discontinues proceedings almost always has to pay the costs to date of the other side. They are caught in a costs trap, from which they need to find an escape. Mediation offers hope of an escape.
What this means in practice is that fairness is not a concept that’s relevant in mediation. Typically, a party will settle at mediation if the settlement being offered to them is better than the risk-laden nightmare of continuing the underlying legal proceedings. That’s the calculus that drives mediations towards settlement in my experience. It means that a lot of cases settle on terms that might shock outsiders: Plaintiffs sacrifice their causes of action and claims for damages in exchange for being released from the obligation to pay the defendant’s costs. Defendants who could defeat the plaintiff’s claim at trial pay plaintiffs to go away – because, the defendant knows, it will cost a lot of money to defeat the plaintiff’s claim but those costs won’t be recoverable from the plaintiff. So, as long as the case can be settled for less than the defendant’s irrecoverable costs, it’s cheaper to settle than to win the case. Fairness doesn’t enter the picture.
So can we abandon questions about fairness in mediation as irrelevant? They only distract attention from difficult and important questions about mediation, such as:
Why does mediation work?
How does mediation work?
How can I effectively represent a client at mediation?
What are the ethical limits on my advocacy at mediation?
Robert Angyal SC 4 July 2021
Another interesting post from Robert is in the wings – so keep an eye out for that one!
The Australian Dispute Resolution Research Network 