This post is written by Judith Rafferty (nee Herrmann), lecturer in the Conflict Management and Resolution program at James Cook University, nationally accredited mediator, trained conflict coach, and facilitator. Judith has a degree in Business Administration and Conflict and Dispute Resolution, and is a PhD candidate assessing the experiences of female survivors of conflict-related sexual violence with transitional justice processes. This blog entry is based on Judith’s TEDxTalk “When “Sorry” seems to be the hardest word – but I don’t care!”, which can be viewed here.

Some background to the research discussed in this blog post can be found in Judith’s journal article “Experiences, challenges, and lessons learned: interviewing Rwandan survivors of sexual violence”, which can be accessed here. Further publications discussing findings of the research are planned.

As a mediator and conflict coach I have observed many times how people in conflict feel wrongly treated by the other conflict party and request an apology. Only then, so they feel, is it possible to let go of the conflict and move on. Feeling the need for an apology makes people in conflict vulnerable and dependent on the other party, who might not be willing apologise. In this blog entry, I address the question of how people can become less vulnerable and more resilient when in conflict by forgiving those who they feel have wronged them, even if no apology is offered by the other side.

I was introduced to the concept of forgiveness while interviewing women who had survived sexual violence during the genocide in Rwanda in 1994 and who had experienced extraordinary wrongs by the hands of their perpetrators. Many of these women never received an apology from the people who had raped and tortured them, and yet, some of these women made the decision to forgive irrespective of any conciliatory actions of their perpetrators.

To give you a little bit of background, an estimated 250,000 – ½ Million women were raped during the genocide in Rwanda.  Many were raped and then killed, or died later from the consequences of the violence. The women who I interviewed as part of my PhD research on justice needs of survivors of sexual violence, had physically survived the violence and were able to share their stories with me. Many of the women had been raped by their own neighbours and have to live side by side with the perpetrators’ families today. At the same time, many of the women had lost their own families during the genocide. All the women who I spoke to had, following the genocide, participated in local justice processes in Rwanda (called “gacaca”). What women pointed out as particularly difficult during these justice processes was that most perpetrators denied everything of which they were accused. What would have helped, the women told me, was to hear a confession or even better, an apology. I wanted to know how the women coped with the fact that hardly anyone took responsibility and confessed and/or apologised to them. While discussing this question, a number of women raised the topic of forgiveness.

For example, a woman who had been raped and who had lost all her brothers and her father said:**

”There was a time when I was very angry. All the things that they had done to us were boiling inside us. But the anger is now gone and I can forgive them”.

She explained to me that she had actively made the decision to forgive, even though her perpetrators had neither confessed, nor apologised to her, and that this decision had helped her to find peace at heart and facilitate her recovery:

“Once I decided to forgive, I was healed”.

I thought that these words “I decided to forgive” sounded empowering and suggested that forgiveness is a choice that can be made without receiving anything in return. After hearing the women’s stories, I was intrigued to learn more about forgiveness, a concept that I, like many other people, found initially rather abstract. In the literature, I found some definitions of forgiveness that seemed to align with what the Rwandan women had talked about, and that brought the concept closer to me, including the one provided by Dr Fukofuka:

“Forgiveness involves conscious choice. When we forgive we decide not to think or talk about what others have done to hurt us. Forgiveness is not forgetting and it is not excusing; it is in fact the opposite of excusing. The mere fact that forgiveness is needed and granted indicates that what someone else did was wrong and inexcusable”.

Similarly, psychologist and researcher Frederic Luskin views forgiveness as a discrete process of letting go of anger and resentment, which may occur regardless of whether the wrongdoer has apologised or not.[1] Luskin found in his research that learning to forgive has psychological and physical benefits for people, since it helps to ‘hurt less, experience less anger, feel less stress and suffer less depression’.[2] Some critiques argue that forgiveness implies condoning or excusing wrongs, which may ultimately result in an omission of punishment of a wrongdoer.[3] Others have questioned the impact of forgiveness on the dignity and self-respect of those who are requested to or who offer to forgive.[4] However, I believe that this criticism mainly refers to situations where forgiveness is expected in return for an apology, and not where forgiveness constitutes a deliberate choice of the person harmed to let go of anger and resentment as described by Luskin. In fact, the process of forgiveness as defined above does not require any future interaction with the other party who has caused harm. Having said that, forgiveness can be part of a broader reconciliation process where one party apologises and the other one forgives. A few women did talk about how some of their perpetrators eventually apologised and how the women forgave them. However, the majority of the women has never received an apology until today, and yet, some of them “decided to forgive”.

Lessons learned

In summary, what we can learn from the women in Rwanda and what is supported by professionals who have researched forgiveness, are the following points:

• Forgiveness does not need to start with an apology, since you can decide to forgive unilaterally.
• You don’t have to tell the other party that you have forgiven them, and in some instances it might be safer not to do so.
• Even if you personally forgive someone who has harmed you, the person might still need to face consequences. One Rwandan woman explained: You forgive him but he still has to go to prison and pay for his crime.
• Forgiving can help to find peace of mind and support individual healing.
• Forgiveness doesn’t come naturally, but is difficult and takes time. It took the Rwandan women who “decided to forgive” many years. It seemed like the women went through a phase of intense anger first, and then reached a tipping point, where anger faded and having peace at heart by forgiving became more important than feeling anger.
• Finally, I learned that even survivors of genocide who have experienced unspeakable harm have found the strengths to forgive their perpetrators. Maybe this means that we all have the potential to forgive and the power to become more resilient.

** The original interviews were conducted in Kinyarwanda and were later transcribed and translated by a Kinyarwanda-English speaker. Challenges associated with researching in another language and how they were addressed in this research are further discussed in Judith Herrmann, “Experiences, Challenges, and Lessons Learned – Interviewing Rwandan Survivors of Sexual Violence,” Griffith Journal of Law & Human Dignity 5, no. 1 (2017))

[1] Frederic Luskin, “Nine Steps to Forgiveness,” Aging Today 25, no. 4 (2004),, 13.

[2] Ibid., 13.

[3] Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda (Cambridge;New York: Cambridge University Press, 2010), 42-3.

[4] Audrey R. Chapman, “Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings,” in Truth and Reconciliation in South Africa, ed. Hugo Van der Merwe and Audrey R. Chapman (Philadephia, Pennsylvania: University of Pennsylvania Press, 2008), 67.

REFERENCES

Chapman, Audrey R. “Perspectives on the Role of Forgiveness in the Human Rights Violations Hearings.” In Truth and Reconciliation in South Africa, edited by Hugo Van der Merwe and Audrey R. Chapman. Philadephia, Pennsylvania: University of Pennsylvania Press, 2008.

Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda. Cambridge;New York: Cambridge University Press, 2010.

Herrmann, Judith. “Experiences, Challenges, and Lessons Learned – Interviewing Rwandan Survivors of Sexual Violence.” Griffith Journal of Law & Human Dignity 5, no. 1 (2017): 165-88

Luskin, Frederic. “Nine Steps to Forgiveness.” Aging Today 25, no. 4 (2004): 13.

This post is written by Kirsty Cadusch, a Human Resources professional with a focus on workplace conflict and resolution.  Kirsty is passionate about supporting parties to address conflict in the workplace, and building leadership capability to effectively manage workplace conflict, to enable the development of high performing teams.  Kirsty’s twitter handle is @kirstycadusch.  Kirsty is currently undertaking the Masters of Conflict Management and Resolution at James Cook University.  This blog entry was originally submitted as part of the assessment for the subject Foundations of Mediation in the JCU Masters program.  

The commercialisation of the internet and development of e-commerce in the 1990s called for a dispute resolution system to address complaints into online transactions (Fernandes and Masson, 2014). In response, online dispute resolution (ODR) evolved as the fields of alternative dispute resolution and information technology intersected (Ebner and Zeleznikow, 2016). ODR refers to any method of dispute resolution in which an open or closed network is used, either wholly or partially, as a virtual location to solve a dispute (Carneiro et al, 2012).

Artificial intelligence advances have taken mediation for the resolution of business-to-consumer e-commerce disputes to wholly online dispute resolution systems, using computerised mediators to facilitate party interactions via text and messaging (Liyanage, 2012; Ebner and Zeleznikow, 2016). So, what does this mean for the future of mediation practitioners? As artificial intelligence continues to advance, and systems are increasingly able to act as agents, assessing and responding to human interactions and emotions in mediation (Carneiro et al, 2012), are mediators to be replaced by avatars and holograms?

The development of AI for conflict resolution

In the mid 1990’s, the field of artificial intelligence was thought to offer exciting opportunities for alternative dispute resolution (ADR).   Developments such as artificial neural networks, intelligent software agents, case-based reasoning mechanisms, methods for knowledge representation and reasoning, argumentation, learning and negotiation would move ADR to a virtual environment in which ODR services proactively assisted disputant parties (Carneiro et al, 2012). It was considered using such technologies may contribute to develop ODR processes that could mimic the cognitive processes of human experts to deal with complex multiparty, multi-issue, and multi-contract issues, leading to more efficient ODR tools (Carneiro et al, 2012).

In practice, two decades later the field of ODR has yet to reach the technological utopia anticipated. While the development of ODR as a field of ADR is growing, with many mediators offering ODR as part of their service, this is typically an add on to their traditional face-to-face practice (Ebner and Zeleznikow, 2016). Mediators typically rely on first generation technology such as instant messaging, forums, video and phone calls, video conferencing, mailing lists and file sharing to deliver their ODR service (Carneiro et al, 2012).

Online Dispute Resolution in practice

At present, ODR in this context is used in family, employment and commercial dispute resolution, and in the traditional court setting in the form of government-sponsored electronic courts (Liyanage, 2012). Relationships Australia Queensland (RAQ) provide an example in the Family Dispute Resolution (FDR) context.

From 2009 to 2011, RAQ developed a web-based online FDR (OFDR) system to provide a safe, secure online environment in which a family dispute resolution practitioner (FDRP) may actively facilitate registration, intake, family dispute resolution and Pre-FDR education of a mediation session. The system operates across most platforms, including Windows and Mac, and provides flexibility to deliver online sessions with or without video conferencing and for sessions to be conducted individually, jointly, by co-facilitation, shuttle or with interpreters (including sign languages) and/or support people (RAQ, 2011).

Currently, the Resolution Institute is working with MODRON, a ODR service provider, to develop a mediation platform that will enable parties, representatives and mediators to resolve disputes ‘from any device, anywhere in the world’. This web-based technology will enable participants to instant message, host private and group video and audio calls and securely share files and manage cases (Resolution Institute, 2017).

Governance and ethical considerations

As mediators and ODR service providers identify opportunities to increase the use of technology in mediation practice, it raises issues regarding governance and ethics, confidentiality, security of information, mediator impartiality and education and training requirements. These issues relate to the disputing parties and mediators utilising the technology, as well as what Katsh and Rifkin call “The fourth party”, i.e., the technological elements involved (Carneiro et al, 2012). Additionally, these issues relate to what may be considered the “fifth party”, i.e., the service providers who provide and deliver the technological elements (Carneiro et al, 2012).

Governance of ODR may be considered from the two perspectives that influence the field, Alternative Dispute Resolution (ADR) and Information Technology (IT). Mediation in Australia is governed by the National Mediator Accreditation System (NMAS) and focuses on accreditation of practitioners and practice standards. Court and legal systems, with their existing structures, procedures, and oversight also impact mediation governance as it is increasingly embedded in those systems (Ebner and Zeleznikow, 2016).

The Australian Computer Society is the professional body that certifies computing professionals’ qualifications, and has a code of ethics and a code of professional conduct, and codes of testability and of quality control to ensure software engineering standards (Ebner and Zeleznikow, 2016). However, in both Mediation and IT, practitioners are not required to be members of these bodies or hold a licence to practice, making industry regulation of standards and quality of service challenging (Ebner and Zeleznikow, 2016).

Ebner and Zeleznikow (2016) note that ODR generally knows little or no regulation, authority, standards, or monitoring and as it has not yet been embedded in court or government systems, it has developed largely unregulated from a public policy standpoint. The Mediator Standards Board and the NMAS (2015) do not currently reference ODR in relation to mediation services or processes.

This lack of governance may reduce participants trust, sense of security, and confidence that the online mediation process is fair (Ebner and Zeleznikow, 2016). Significantly, misuse of online mediation may cause harm for the participants (Ebner and Zeleznikow, 2016)   Examples might include where a digital record of the mediation is shared unsuitably due to poor system security, or where inefficiency, errors or bias are hidden behind the interface of a poorly designed system (Fernandez and Masson, 2014).

However, the NMAS Practice Standards (2015) do consider ethical practice and provide, among other ethical consideration, that a mediator may liaise with other relevant professionals with permission from the relevant parties. The Standards also require a mediator to take care to preserve confidentiality in the storage and disposal of notes and records and take reasonable steps to ensure that administrative staff preserve such confidentiality. In the absence of specific ODR guidelines or inclusion in the NMAS Practice Standards, these broad and general requirements should be considered when engaging ODR service providers to provide online mediation services.

Consideration should also be given to the impact of online mediation and use of technology on the perception of mediator impartiality. A mediator’s impartiality may come into question where there is a lack of information about the systems being used, the mediator’s affiliation with the ODR service provider and whether there is a conflict of interest, and the governing structures of that provider with regard to the parties’ personal information (Fernandez and Masson, 2014).

As mediators increasingly utilise technology to deliver online mediation services, they will need to identify what training they may require to develop the skills to manage a virtual mediation room (Sole, 2016). The NMAS Approval Standards specify the training and assessment required of NMAS accredited mediators, and currently require an applicant to complete a training course of 38 hours duration. There may be an opportunity for Recognised Mediator Accreditation Bodies that provide mediator training to incorporate information about online mediation systems and skills into their programmes.

Mediators also need to be mindful of the parties’ willingness to engage with technology and their technical capability in considering whether the dispute is suitable for mediation. When utilising technology or an online mediation system, mediators should consider reliability and ease of use of the device or system to ensure a robust process.

The future of AI in ADR

The development of AI technologies has influenced the field of mediation predominantly in the legal field, using rule based legal decision-making systems (Carneiro et al, 2012). However, the concept of replacing human mediators with computerised third party agents such as avatars, capable of mimicking the full range of human emotions and interactions to support disputing parties to reach fair and reasonable solutions is a daunting prospect.

It seems more probable that we may see the increased use of automated systems to supplement the traditional mediation process whereby second generation systems are used to facilitate some aspects of the mediation process. For example, mediator practitioners may utilise a ‘fourth party’ to facilitate case assessment and intake; option generation and evaluation; negotiation and documentation in the mediation.

To ensure party self-determination and procedural justice, a mediation practitioner may facilitate the initial stages of the mediation joint session; mediation opening, party statements, agenda setting and issue exploration and discussion; as well as the private sessions and the agreement/outcome. Key findings from the RAQ online mediation pilot included that participants rated the online service as convenient, however face-to-face FDR remained the preference for most parties (RAQ, 2011).

While the use of technology will no doubt increasingly impact mediation interactions, there appears to be a long way to go in terms of developing governance and ethical standards for all parties involved before this becomes commonplace. Incorporating these standards into the existing NMAS Approval and Practice Standards will likely positively influence the trust and confidence participants have in engaging in online mediation that may see this aspect of mediation practice gain momentum into the future.

References:

Boulle, L. (2012). Mediation: Principles, Process, Practice. Australia: LexisNexis Butterworths

Carneiro, D., Novais, P., Andrade, F., Zeleznikow, J., Neves, J. (2014). Online dispute resolution: an artificial intelligence perspective. Artificial Intelligence Review, 41(2), 211-240. doi: 10.1007/s10462-011-9305-z

Casey, T., & Wilson-Evered, E. (2012). Predicting uptake of technology innovations in online family dispute resolution services: An application and extension of the UTAUT. Computers in human behaviour, 28(6). 2035-2045. DOI: 10.1016/j.chb.2012.05.022

Ebner, N. & Zeleznikow, J. (2016). No Sheriff in Town: Governance for Online Dispute Resolution. Negotiation Journal, 32(4), 297-323. doi:10.1111/nejo.12161

Fernandez, A.J., & Masson,M.A. (2014). Online mediations: advantages and pitfalls of new and evolving technologies and why we should embrace them. Defense Counsel Journal, 84(1). p. 395+. Academic OneFile. Accessed 22 May 2017

Liyanage, K. C. (2012). The Regulation of Online Dispute Resolution: Effectiveness of Online Consumer Protection Guidelines. Deakin Law Review, 17(2), 251-282. http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/DeakinLawRw/2012/11.html?stem=0&synonyms=0&query=Online%20Dispute%20Resolution

Sole, M.E. (2015). e-Mediation: A New Stage of Ethics. Retrieved from http://www.mediate.com/articles/SoleME4.cfm

This post is written by Margaret Marton, a Humanities and Legal Studies teacher with many years experience. Margaret is currently completing a Masters in Conflict Management and Resolution at James Cook University with the view to be a mediator within juvenile justice and/or schools. She is particularly interested in introducing conflict resolution skills training in schools, possibly via competitions. She is also interested in how new technology is influencing the dispute resolution processes. This blog post was originally submitted as part of the assessment for the Masters subject Foundations of Mediation.

Where is mediation heading? How much influence has new social media had and potentially will have on mediation? The clash between social media and traditional litigation is tectonic so can mediation as we know it survive?

Does mediation’s lack of formality when gathering and presenting information need special rules regarding social media? What guidance should parties in mediation be offered regarding use of social media? Will there be a “Mediation App” in the future? All immensely interesting and challenging questions in a nation where social media is so ubiquitous Waleed Aly has wailed you cannot escape it!

The wildfire pace at which technological apps have developed has people demanding new forms of dispute resolution more in tune to the power of the individual, their ease with technological communication and their access to immense amounts of information and advice at the touch of a screen? What do mediators need to focus upon to be reflective mediators in a media nation?

One of the most problematic elements for mediation is confidentiality. Even though there is profound debate over mediation’s definition there is general consensus on what occurs in its practice. Most agree mediation involves a private impartial mediator-facilitated meeting, conducted on a confidential basis, between disputing parties to assist reaching a mutually agreed outcome. Confidentiality is a hall mark of mediation. It is the access to or exposure about what transpired in a mediation. Section 9 of the Australian National Mediation Accreditation System Practice Standards, state that subject to the requirement of the law a mediator must maintain the confidentiality required by parties. Without doubt confidentiality of the process was the driving force behind the popularity of mediation as an alternate to the public disclosure central to court litigation.

Even though working in the “shadow of the courthouse”  has already placed significant limits on confidentiality in mediation, it can be argued social media is a far greater threat. Due to peoples’ increasing lack of intimacy and privacy in interpersonal relationships, as practiced on social media sites, confidentiality has lost much of its credence.  Mediators must be attuned to this. As an aside, in a recent survey on counselling 80% of practitioners indicated they had clients who expressed concerns about the impact of social and mobile media on their relationships.

The ethical issues surrounding this loss of confidentiality become clear when the motives for “sharing” on social media platforms are not positive. In a recent divisive family law case, Lackey v Mae the judge ruled a father immediately remove from Facebook all references to the proceedings, the children, the mother’s name, the father’s name, and so on. As the  Deputy Chief Justice of the Family Court of Australia, John Faulks, explained, what would it  be like if you were a kid at school and all your mates said, ‘Oh, we’ve been looking at Facebook and we’ve seen what your father says about your mother,’ or whatever it may be, it’s a pretty horrible situation.” Certainly it is against the paramount rights of the child and section 121 of the Family Law Act (which is rarely applied). On the Law Report Faulks DCJ went on to say “people will use the social media to abuse the other party, to bully the other party, to be critical of the proceedings,… which of course is relatively easy to do in the middle of the night, sit down, open up your account, put the information on there. You don’t have to look at anyone when you’re doing it, you don’t have to feel any empathy for the person who is being affected by it, you can just spray.” How would an impartial mediator, who would most likely actively avoid access to this Facebook site, know about and then deal with the ramifications to cyberbullying such as this?

Another ethical issue for mediators involving social media is secret taping of private conversations. This could occur during mediation or be tapes of situations concerning the issue being mediated. Secretly taping a private conversation is legal in Queensland, is promoted as a way of dealing with conflict and is only breached if broadcast without reason. For example it may be used for protection or as evidence to record what happens in particular situations like child handovers or fidelity issues.

As there is little discussion re this concerning mediation a look to the courts can be illuminating. Until recently courts had not seen this as useful evidence, but increasingly courts are accepting smart phone-taped evidence as it is timed, dated and can be GPS referenced for location. A family court lawyer claimed there was discussion about the use of social media derived evidence in at least 30% of cases they dealt with.  Interestingly, the Domestic Violence Resource Centre in Victoria has just won the Victorian Premier’s Award for public sector innovation for the SmartSafe+App. This App was designed with police to help women collect and store evidence concerning breaches or the need for intervention orders. Mediators must be able to deal with this form of information if brought to the table in discussions.

Broadcasting information or images has enormous implications for mediation and its potential to escalate a dispute. A Home Economics teacher recently had an incident where two 12 year old boys instead of fashioning bachelor buttons with their dough fashioned an appendage they were far more interested in. Just as the teacher realised what they were doing a fellow student quickly photographed the biscuit and loaded the image on to Instagram.

The resulting discipline, after conversations with parents, was as severe for the upload of the image as for the creation of a limp biscuit. Recently, new apps allow a person to broadcast or share an image to complete strangers.  New tracking functions on the latest smart phones have again raised online privacy fears. Mediators must definitely negotiate with both parties at the beginning of mediation about confidentiality and how mobile phones or similar devices are to be handled in the meeting. It is possible that special rules need to be applied concerning smart phones usage such that if breached it could terminate the mediation.

A final ethical dilemma concerns the personal use of social media of mediators. Impartiality is critical to the neutral position of mediators so use of social media which compromises this impartiality is a potential problem. Mediators personally must have the right to use social media but must navigate it with awareness. At present social networking “affiliations” are sufficiently loose that impartiality has not been questioned but there is very little guidance on these issues.

Not all impacts of social media are negative and many see the new technologies as a positive force in mediation. Technology is transforming the work of lawyers and the delivery of legal services to the consumer. Already legal advice and dispute resolution can be accessed online. Jacques Joubert argues that social media is a “game-changer” and that mediation between large companies and the general public will be  will be controlled by mass outrage, one of the most powerful of human emotions. The reason people post on social media is also affected by our culture and way of life. A UK study has shown that British people post to maintain personal distance while Chinese do it to maintain privacy. Even attention spans are blamed on it. Social media is a game-changer for mediators!

Central to managing all these impacts of social media on the mediation process is the professionalism of the mediator. In the absence of binding formal rules, ADR participants and practitioners grappling with social media issues should be guided by two foundational concepts:

1. balancing the respective interests of the partieswhich may require the mediator to develop an agreement that outlines exactly what type of information the parties and their counsel can disclose, including via law firm websites, blogs, and the various social media platforms. As public disclosure via social media has the potential to reach thousands of people who may know the parties or be interested in the dispute, just relying on the normal rules of confidentiality would not protect the interests of one or both parties; and
2. adhering to professional ethics must be complied with by the mediator. This will require using their own judgement based on their personal ethical standards and reflections supported by reviews of issues with trusted colleagues. This includes personal use of social media to find out more information about parties, counsel or witnesses and impartiality in dealing with parties who the mediator may have social media contact with.

Interestingly, Diane Levine, a long standing ADR blogger holds that blogging is the best way to stay current [and possibly reflective?], as blogging is a conversation between fellow practitioners “who make it their business to keep abreast of essential news and trends.”

Using these two principles will not deal with all issues impacting on mediation by social media platforms. However, they should provide a useful framework for thinking through the ramifications of a “media-nation on mediation.” The heart of any profession is clear standards of ethics and practice.

Amanda Boardman a mediator from the Centre for Integrative Law (CIL) in Cape Town reminds us that “a legal system is a fluid and dynamic system, inextricably woven into the fabric of the society it is expected to contain.” Mediation must, can and will adapt to social media platforms to serve its media – nation.

This post is written by Benjamin Freedman, an accredited mediator, social worker, and healthcare manager who will finish a Masters in Conflict Management at James Cook University in November 2017. His interests include interprofessional collaboration in healthcare and conflict engagement in complex organisations.  This blog entry was originally written as part of the assessment for the Masters subject Foundations of Mediation.

Mediation goes on trial

Given how often mediation and litigation occupy different spaces within the same dispute resolution landscape it is perhaps surprising how rarely the processes or outcomes of mediation have been challenged in court. While there are some plausible reasons for this, it does mean that the Australian cases which do exist afford a valuable opportunity for ADR practitioners to learn about their potential legal liability.

There is thought to be three areas of legal liability relevant to mediators:

• Liability in contract– where a party suffers harm or loss caused by a failure of the mediator to perform in accordance with an Agreement to Mediate
• Liability in tort– where the mediator fails to adequately exercise their specialist skills, causing an actual loss to one or more parties
• Liability in fiduciary duties– where a mediator is in a relationship of trust with a party and acts in a way that is not in that party’s interests.

Tapoohi v Lewenberg

Tapoohi v Lewenberg is widely regarded as the most compelling test of mediator liability in Australia (see also conversations about immunity in family law and admissibility in farm debt contexts). Tapoohi v Lewenberg involved two sisters in a complex dispute about their mother’s deceased estate. The dispute had gone to court, but the parties agreed to attend mediation.

Seven facts you need to know

• Due to the value of the estate, each sister was represented at the mediation by a team of barristers and solicitors.
• The mediator, a QC who specialised in commercial litigation, was not mediating under a court order and there was no formal agreement to mediate (therefore no statutory immunity).
• In position statements, pre-mediation conferences and during the mediation Ms Tapoohi repeatedly stated that any agreement should not be final until professional taxation advice had been sought.
• The mediation took place over a single day and lasted late into the night
• At the end of the evening, the mediator persuaded the parties that an agreement should be drafted and signed that night.
• The mediator dictated the terms of the agreement, which was scribed by a solicitor in the legal party, and this was signed by each sister.
• This included a provision, suggested by the mediator, that shares in the family company would be transferred for a nominal sum of $1, but no provision for taxation advice was included in the agreement.

Subsequent to this mediation, Ms Tapoohi discovered that the value of her position was substantially reduced after capital gains tax. Ms Tapoohi sued her legal team, who spread liability by including the mediator as third party to the claim.

The mediator applied for a summary judgement, hoping that the litigation would be found not to have a reasonable chance of success and therefore he would be excused as a third party. After the summary judgement was in favour of the plaintiff, the matter was settled out of court.

Seven critical learnings for the reflective practitioner

The precedence value of this case is limited as the matter was settled out of court before the full evidence was presented and tested. However, the allegations and arguments during the interlocutory proceedings provide some insight into the legal elements of many ethical dilemmas faced by many contemporary facilitative mediators.

Persuasion versus Coercion

Ms Tapoohi argued that the mediator ‘coerced’ parties to continue the mediation late into the evening, despite the misgivings of the legal representatives, two of whom had already left for the day. It is alleged the mediator recommended extending the session in such a way that Ms Tapoohi’s team felt it was a direction.

ADR practitioners often rely on their mastery of persuasion. While persuasion and coercion are both strategies that aim to influence the actions of another party, ‘coercion’ is to do so by using threats and sanctions where ‘persuasion’ seeks a voluntary and willing change by exploring interests or encouraging parties to evaluate options. The judge did not rule on whether the mediator used coercion, but this case challenges the reflective practitioner to be aware how the use of language, context, non-verbal communication and relationship can ‘frame’ whether a message is received as persuasion or coercion, even when intentions are good.

Influence the process, not the outcome

Ms Tapoohi argued that the mediator unilaterally dictated some of the critical details in the mediated agreement, including the ill-fated provision to transfer shares in the family company for $1.00. Facilitative mediators are process experts, upholding the principle of self-determination, where parties make their own decisions and the mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes.  Often when mediation is on the precipice of breaking down because it is perceived by parties as too uncomfortable, risky, or difficult, the mediator has an important role in persuading parties to keep communicating and moving through the stages of process. Yet there is a difference between exerting influence on the process, versus influencing the substantive outcome.

Where the mediator may have reasonably believed it was appropriate to extend the mediation into the evening to maintain the momentum of the process, it was his influence on the substantive outcome which became problematic. This is a dilemma in many mediation contexts; where a ‘small suggestion’ from the mediator may be the difference between an impasse and a mediated agreement.

Fiduciary responsibilities

Ms Tapoohi alleged that the engagement between her and the mediator had characteristics of a fiduciary relationship, and the mediator was in breach of his responsibilities by acting in a way which was contrary to her interests. The mediator unsuccessfully argued that there were no characteristics of a fiduciary relationship with Ms Tapoohi as he was retained to provide a facilitative process, and fiduciary responsibilities towards Ms Tapoohi rested with her legal team.

While the matter of whether mediation has the characteristics of a fiduciary relationship remains, it is worthwhile to consider the imperative of a mediator to act with diligence, even-handedness and trustworthiness. While this is fairly ingrained in practice, there are also potential dilemmas, or tensions, which shape mediator self-interest and pressure to settle when not in the best interests of parties.

Facilitative mediator expertise

In this instance the mediator was a Queens Counsel with a background in commercial litigation. This became important when the judge considered the standard of practice that should have been exercised by the mediator- whether it was that of an expert mediator or an expert commercial litigation barrister. It is common that an accredited mediator will also have a professional background that is relevant to the content of the mediation. While the mediator may delineate in their own mind that they are being retained for mediation and not the skills of their background profession, this should be made explicit to parties who may be less familiar with the process-orientation of a mediator. Regardless, the National Mediation Accreditation Standards advise that ‘mediators should adhere to, and be familiar with, the code of conduct or ethical standards prescribed by the organisation or association with which they have membership’.

Legal exposure in agreement drafting

Ms Tapoohi argued that she had repeatedly asked that any agreement not be made final until professional taxation advice had been sought, and this expert knowledge was not present in the legal team. However, this condition was not included in the signed final agreement which was dictated by the mediator and scribed by one of the solicitors. This raises a question of the standard of care that is required by the mediator when drafting an agreement, and how much of the responsibility for checking its accuracy and completeness sits with the parties as signatories.

Mediation in high-stakes commercial disputes

Facilitative mediation has many advantages over other more formal processes. It can far less costly than litigation, integrative rather than adversarial, there is less of a focus on ‘facts’ or ‘evidence’ and more a focus on interests and agreements, and resolution can occur far quicker. While there is no ‘upper limit’ on the stakes that can be part of a mediated agreement, parties should be made aware that the process and outcomes are often less robust than settlement through courts. It is a challenge for facilitative mediators to identify when the dispute may require a more rigorous enquiry than what is provided by a facilitative process. Even more so, to ensure that parties understand the benefits and limitations of facilitative mediation to optimise informed consent.

Given the likelihood that these and other areas of mediator legal exposure, and questions about immunity will be tested in court in the future, it is important that facilitative mediators consider their obligations of contract, tort and fiduciary relationship during the complexity and dilemmas of everyday practice.

Further reading

Melinda Shirley and Tina Cockburn discuss whether mediators operating outside statutory immunity will be liable for negligence in the aftermath of Tapoohi v Lewenberg