The Dispute Resolution field has been enriched by some significant research into process and practice. However, empirical research canvassing the views of end-users of Dispute Resolution services remains significantly uncharted territory.

The early research on negotiation styles and their impact by Gerald R Williams and later Andrea Kupfer Schneider  distinguished cooperative/problem solving and competitive/adversarial styles. This research demonstrated the interesting and unsurprising result that cooperative/problem solving attorneys emerged with better working relationships and left less value on the table. However, the research was of lawyers reflecting on the behaviour of other lawyers. Clients, the real consumers of their services, were nowhere to be seen.

More recently we have had the gift of The Global Pound Conference Series 2016-17 comprising 28 events in 22 countries. The main purpose of this program was ‘to generate conversations and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’. The entire DR industry was represented, including parties, and each audience participated in data gathering which included answering 13 open text questions. This program has left us with some significant empirical research resulting from the meticulous analysis of the 7 North American events consolidated into The North America Report. In particular, one of the four key insights explored was the ‘needs, wants and expectations’ of the parties.

This is a big step.

We now have the voice of consumers emerging in significant and influential DR research, revealing a growing recognition that the use of the term ‘ADR’ has become increasingly irrelevant.  Supporting this reframing, the report recommended changing the nomenclature to DR ‘to reflect the cultural shift occurring within commercial DR and the need to place parties at the centre of the process…’ 

Dr Anna Howard’s new text

Now we have some important new work which adds more insight into how the consumers of DR services see things. Although its title indicates a focus on mediation in EU cross-border disputes, this text draws on rigorous empirical research with findings relevant wherever commercial mediation thrives.

As the title promises, this text achieves two important and inter-related things – it explores a significant opportunity to change the frame (the lens through which we have been viewing mediation) through listening to disputants (in-house counsel, who are the clients who actually choose which process to select for resolving business conflict).

The book opens with this provocative quote from an in-house counsel interviewee – ‘The fundamental problem about mediation is that it’s a good idea and nobody uses it’. This is the perfect entry point for a detailed examination of why the promise of mediation has not been the success story the EU and other jurisdictions were hoping for.

Exploring this conundrum leads to the realisation that the problem lies in the way that mediation has been framed as an alternative to litigation. This ‘either/or’ approach did not sit well with the decision makers as they reflected on the most appropriate process. Their lens is far more holistic – they observe a range of related and overlapping processes. This continues the theme we first saw explored in the North America Report, leading us to the concept of DR as an all-inclusive continuum of processes.

Dr Howard’s research digs deeper into the ‘framing’ and identifies that the pursuit of resolution is seen by users as beginning with negotiation. Changing the frame shows us that it is time to bring negotiation into the foreground as the ‘go-to’ process. Framing the changes means that mediation can be seen as part of an iterative process in which mediation can be reframed as ‘assisted and extended negotiation’.

As a negotiation academic and researcher, this text has particular significance for me. Returning negotiation to its rightful place on the continuum and recognising the value its principles bring to all processes in which it may be applied seems the perfect research-validated way to set the record straight.

This Blog presents an opportunity to showcase the work of our students as the next generation of researchers and dispute resolvers. I am delighted to post another example here. Over to you, Zaynab..

written by Zaynab Gul

I am Zaynab – an Australian, a Muslim, or better put: a true blue Muzzie. Over the last two and a half months, I studied ADR and the very useful role that it plays in resolving conflicts between parties outside the confines of the court system. The more I learnt about the purpose of ADR within the Australian framework, the more I wondered why a process that is commended for its flexibility fails to accommodate for cultural and religious practices.

Zaynab Gul

Given just how diverse Australia’s population is, it’s not hard to see why our state and federal legislations sideline culture and religion to create a uniform set of rules and regulations. But in an area like ADR, where the processes are no doubt more flexible and informal, it would make sense for Australian’s to be able to draw on their personal values and beliefs and use them to inform the approach taken to dispute resolution.

Our country’s ADR system didn’t come out of the blue. Instead, the western world’s interest in ADR first sparked in the 1960’s, and has developed over the recent decades to form ADR as we know it today. Though the 60’s may have given birth to ideas around ADR in the west, the practice itself existed amongst cultures and religions for many years prior.

Taking Islamic law as an example, over 1,400 years ago, the Qur’an not only established ADR as a tenet of civil justice, but also codified it with clear rules and regulations. There are also traces of ADR present in the customary law of our country’s first people. So, if ADR has been tried and tested for many centuries amongst various religions and cultures, why is the Australian ADR space so reluctant to recognise and learn from them?

Reshaping the ADR space?

As an Australian Muslim, I expect to be supported in being able to practice my religion, so long as it is in line laws of the land. Ancient Islamic law features processes like Sulh (which can be likened to western mediation) and Tahkim (the equivalent of arbitration). Though the nitty gritty of the rules may differ between the west and Islam, the basics are pretty much the same; both encourage the efficient and peaceful resolution of disputes.

A peaceful co-existence of religious based ADR and a western legal framework is not impossible. It’s been done for decades in the UK in response to the country’s growing number of Muslim migrants. There is a growing number of Muslims in Australia, given that Islam is the second most prevalent religion in our country.

Whether it be through the establishment of state sanctioned Islamic tribunals or the backing of religious mediators, there are many ways in which Islamic ADR can be recognised in Australia. As a country, we encourage diversity and are happy to embrace it in terms of food and entertainment, but when it comes to law, there’s clear hesitation.

It’s a long shot to call for a drastic change overnight. The first step for us all is to foster comfortable conversations about change and acceptance in an area like ADR where the law has the benefit of flexibility.

This Blog presents an opportunity to showcase the work of our students as the next generation of researchers and dispute resolvers. I am delighted to post another example here. Over to you, John..

My name is John Lidbetter. I am a fourth year Actuarial Studies and Law student at UNSW. I began learning about yarning whilst studying ‘ADR in Practice’, a law elective at UNSW taught by Dr Rosemary Howell. I am extremely grateful for Rosemary’s guidance and assistance on this topic. I welcome any comments or suggestions the reader may have.

Conflict resolution is not new. All cultures have a conflict resolution tradition, offering opportunities for learning to current academics and practitioners. Australia’s First Peoples have powerful tools to resolve conflict; these techniques have been refined over centuries, which provide opportunities for us to do things differently and better in the ADR space.

This blogpost focuses on Aboriginal traditions of yarning. Yarning involves written and oral storytelling, which emphasises joint discussion of the past in order to build a relationship between the storyteller and listener.[i] Digging into the literature reveals some powerful benefits which Yarning makes accessible to ADR professionals. In particular, yarning provides effective strategies and tactics which enable us to more deeply understand other parties’ perspectives. Additionally, Western forms of ‘narrative mediation’ already acknowledge and adopt narrative practice – recognising the benefits of storytelling. These benefits are worth digging into a bit more deeply.

Yarning to promote mutual understanding

Why are we compelled by stories which arouse our emotions? One explanation is that emotional stories invite us to empathise with the storyteller’s perspective. If we can empathise with the storyteller, we may become more inclined to listen and understand the individual’s point of view. Yarning provides a medium to communicate emotion and understand competing perspectives as it involves describing experiences and personal stories. For example, Tara June Winch’s novel, The Yield, illustrates the impact of returning to a home that is becoming repossessed by a mining company. Through describing personal experience, Winch creates a connection with the audience which invites readers to learn from the storyteller’s message. In Winch’s case, we begin a process of understanding the cultural significance of land for Indigenous peoples.[ii] In the ADR space, the learning opportunities are limitless; telling stories allow us to listen and understand each other’s’ perspectives – facilitating the resolution of conflict.

Repetition and Silence

However, to resonate with another person’s perspective, we must be able to digest the information. To digest new ideas, we often need time to pause and think. If we have time to process what is said, we become better equipped to understand our counterparty’s perspective and brainstorm ideas. However, studies suggest that Anglo-cultures view silences and pausing negatively – inhibiting our capacity to retain information.[iii] Learning from yarning may help resolve this deficiency.

In the Aboriginal yarning context, pauses are not interpreted negatively; instead, silence is used to reflect.[iv] Furthermore, repetition is often used in yarning to reinforce the underlying structure and logic of new ideas.[v] By incorporating silence and repetition into our repertoire, we enable ourselves to understand complex factual scenarios and interests to a greater extent. In doing so, we become more likely to understand our counterparty’s perspective – assisting in the resolution of conflict.

Inclusive Language

It is often easier to work together on a problem when both parties feel included in the process. Yarning provides subtle techniques which enable our counterparty to feel engaged in the conversation. For example, in the historical novel, Dark Emu, Bruce Pascoe uses plural personal pronouns such as ‘we’, ‘our’ and ‘us’ in his dialogue.[vi] By including the audience, the reader does not feel alienated or accused. Instead, inclusive language avoids what Fisher and Ury describe as ‘the people problem’.[vii] By separating the people from the problem, we ensure both parties fight the same issue, together. We could all benefit from including, rather than excluding our counterparty as it facilitates collaborative discussion which may facilitate conflict resolution.

How Does Narrative Mediation Incorporate Yarning?

Despite the apparent benefits arising from yarning, how can we know that storytelling techniques will translate to successful conflict resolution in the ADR space? Well, we can consider the use of storytelling in Western ‘narrative mediation’ contexts. Narrative mediation styles have incorporated aspects of yarning. The important similarity between yarning and narrative mediation is the joint emphasis upon telling personal stories. Both processes promote the power of storytelling as an ends in itself, which inadvertently facilitates successful conflict resolution. Neither processes pressure parties into settlement, which frees individuals to focus upon mutual understanding, rather than bargaining. In doing so, narrative mediations enable parties to reconcile their differences through utilising the power of joint discussion of personal stories. As a result, narrative mediation processes are highly successful in resolving conflict due to the acknowledgement of the power of yarning.

Where do we go from here?

Learning and adopting new forms of communication styles is difficult. However, adding yarning to our repertoire may allow us to better resolve conflicts and maintain stronger relationships. The main benefit of telling our stories is that it humanises the conflict. At its core, conflicts are relationship-based. We can disarm and relieve tensions through sharing our personal perspective. In doing so, we may create a connection and achieve mutual understanding, which better equips us to resolve conflict. Interestingly, there is scarce academic research concerning yarning in the context of dispute resolution, or its connection to Western forms of narrative mediation. Consequently, this blogpost aims to spark discussion and further research about how we can maintain better relations with others through acknowledging and learning from yarning.

[i] Lynore Geia, Barbara Hayes and Kim Usher, ‘Yarning/Aboriginal storytelling: Towards an understanding of an Indigenous perspective and its implications for research practice’ (2013) 46(1) Contemporary Nurse 13, 15; Dawn Bessarab and Bridget Ng’andu, ‘Yarning about Yarning as a Legitimate Method in Indigenous Research’ (2010) 3(1) International Journal of Critical Indigenous Studies 37, 38; Tyson Yunkaporta, ‘Aboriginal pedagogies at the cultural interface’ (PhD Thesis, James Cook University, 2009) xiii.

[ii] Tara June Winch, The Yield (Hamish Hamilton, 2019) 33–4.

[iii] Michael Walsh, ‘Conversational styles and intercultural communication: an example from northern Australia’ (1991) 18(1) Australian Journal of Communication 1, 2.

[iv] Ilana Mushin and Rod Gardner, ‘Silence is talk: Conversational silence in Australian Aboriginal talk-in-interaction’ (2009) 41 Journal of Pragmatics 2033, 2033.

[v] Tyson Yunkaporta, ‘Aboriginal pedagogies at the cultural interface’ (PhD Thesis, James Cook University, 2009) xvii.

[vi] Ibid 14.

[vii] Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (Houghton Mifflin Harcourt, 2^nd ed, 1992) 13.

Dr Rosemary Howell and Dr Emma Lee

Picture credit: Creative commons presencing.org

The annual ADR Research Network’s Roundtable is a welcoming, safe place for academics in the conflict resolution space to share new ideas about research, explore different ways to join the dots and gain constructive peer feedback about structure and substance.

It was the prospect of this environment that encouraged the two of us to take the next step of exploring the ideas we first shared in our Kluwer Blogpost in July this year. That post drew on an ABC News story about Dr Lee and the remarkable dispute resolution process – ‘love-bombing’ – which was part of the movement to reset the relationship between Aboriginal Tasmanians, government and the broader public.

That was our first effort at collaboration.

Coming from very different academic disciplines and cultural perspectives, we saw the blog as a cautious first step in developing our professional relationship and a beginning to our joint exploration of the potential for a new approach to dispute resolution built on lessons to be learned from our First Peoples.

The response to this first step was encouraging and affirming. We continued to build our own working relationship with the idea of developing a more formal and academic framework for the ideas we were workshopping.

We proposed to the organising committee of the Roundtable that we would develop a piece of work titled ‘Reimagining the narrative and its special place in Conflict Resolution using lessons from Indigenous Australians.’

As the central themes of our paper we identified some important elements of conflict resolution that are missing from the literature namely:

• we have failed to undertake significant research to explore and identify the persuasive role of the narrative in conflict resolution; and
• we have overlooked the resources of our First Peoples whose oral tradition has provided masterful examples of narrative power

Unsurprisingly, mainstream mediation (which is dominated by mediation in the shadow of the law) adopts a mediation approach dominated by facts and legal arguments where parties are silenced and their narratives unrecognised and unheard. The narrative does not feature and has been consigned to the box in which narrative mediation resides – sidelined as a specialised field of mediation and never to emerge as narrative in mediation.

Research from many fields demonstrates that the narrative is important.

In our paper it was initially our intention to present research from the fields of education, psychology and the social sciences demonstrating the significance of the narrative and the cost of its absence in conflict resolution research.

Our collaboration took us to an entirely different place.

Over the course of our many interactions we came to appreciate the absence of an intersection between the worlds we occupy and between our cultural experiences. It became very clear that if this collaboration were genuinely to add a new piece to the dispute resolution narrative we needed to proceed very slowly and respectfully. It was not an outcome that would arrive fully formed as the result of simply combining our work.

It was remarkable to discover that the expectation that the Roundtable would offer a safe space to present ideas was not shared by both of us. Before proposing our paper we had not recognised and explored the extent of our differences. It became clear this was what we needed to do before we could produce any formal outcome from our collaboration.

So the formal, linear discipline and process of writing about conflict resolution emerged as an impediment. It did not offer a safe way to explore and learn from the conflict resolution learnings springing from unimaginable suffering and cultural appropriation experienced within the framework of an oral tradition. It was a revelation to us both that we could not just assemble our own learnings about the narrative into a single formal document.

We realised that if we were going to find a way to join our stories we needed to slow down the collaborative process. We agreed, with support from the organising committee, that our presentation would be in two parts. The first part would lead participants through the initial concept of the paper – setting the scene for the role of the narrative and why it matters. It would then begin to explain how the collaboration process showed us we needed to do things differently.

Dr Lee would then join the conference via a pre-prepared video in which she explains her perceptions around safety and cultural sensitivity and delivers an invitation to the academics present to support the journey of collaboration that has begun.

We are hoping that the commentators assigned to the session will create a space where the audience engages in contemplating the value of the journey and develops an appetite to discover what the next steps will be.

The authors

 Dr Emma Lee

Dr Emma Lee is a trawlwulwuy woman of tebrakunna country, north-east Tasmania, Australia.  She is an Aboriginal and Torres Strait Research Fellow at Centre for Social Impact, Swinburne University of Technology.  Her research fields over the last 25 years have focused on Indigenous affairs, land and sea management, policy and governance of Australian regulatory environments.  Dr Lee has published in diverse journals ranging from Biological Reviews to Annals of Tourism Research.  She is the 2018 recipient of the University of Tasmania’s Foundation Graduate Award and has won prestigious fellowships to study in Europe and Asia.

  Dr Rosemary Howell

Dr Rosemary Howell is a Professorial Fellow at the University of New South Wales and a Senior Fellow at The University of Melbourne. She has studied Negotiation and Mediation with the Harvard Faculty and worked as a Teaching Assistant to Professor Roger Fisher at Harvard and during his Australia-wide training programs.

Her doctoral work explored ‘How Lawyers Negotiate.’

She has a particular interest in developing experiential learning models for the teaching of Negotiation and Dispute Resolution which draw heavily on the role of the narrative.

The UNSW Law Faculty is full of surprises.
Headed by our energetic Dean, Professor George Williams, (whose weekly schedule leaves me exhausted) we have been lucky to attract accomplished academics with a remarkable diversity of talents.

Some years ago we persuaded Lisa Toohey to join us from the University of Queensland with her unusual combination of expertise in ADR and Trade Law.
Lisa has recently taken a role as Professor and Deputy Dean (Research) at the University of Newcastle’s Law School. Happily she has retained her relationship with UNSW in an adjunct role but has left a big pair of shoes to fill.

We are delighted that we have now been joined by Professor Amy Cohen – an accomplished international academic who is upholding our tradition of diversity with specialties in ADR and Food Law. Amy comes to us on secondment from the Moritz College of Law at Ohio State University.

Her CV is remarkable.
Amy has held visiting professorships at Harvard Law School; Osgoode Hall Law School; the University Of Turin Faculty Of Law; and the West Bengal National University of Juridical Sciences. She has held fellowships from the Radcliffe Institute for Advanced Study at Harvard University; the American Institute of Indian Studies at the University of Chicago; the Fulbright Program; and the Collegio Carlo Alberto. She has also been a visiting scholar with UNSW and with Cornell Law School.
Before joining the Moritz faculty, Amy taught at the Kathmandu School of Law in Nepal as a Fulbright scholar; clerked on the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado; and worked on community development initiatives in Ghana, Nepal, and Thailand.
Along the way Amy was a student and Teaching Assistant of Professor Frank E.A.Sander, whose work was a cornerstone of the development of ADR as we know it today.
She was recruited to join Ohio State University and has continued to be supported by the remarkable Professor Nancy Rogers – former Attorney General of Ohio; a former Dean of the Ohio State University Moritz College of Law  and the former holder of the Michael E. Moritz Chair in Alternative Dispute Resolution at the Moritz College of Law. Professor Rogers’ contributions to ADR in general and mediation in particular have been an international influence.

Her academic approach
Amy uses the study of informal dispute resolution to understand broader shifts in law and society. For example, her recent work has focused on alternatives in the US criminal justice system. One set of articles examines specialised prostitution courts in New York City in the wake of international anti-sex trafficking campaigns and criticisms of broken windows policing. They trace how misdemeanour criminal courts increasingly use informal and consensus-based procedure to administer new forms of social welfare and social control.

Her next work – a genealogy of American restorative justice, beginning with ‘new left’ activism in the 1960s and 1970s and tracing secular/religious, anti-statist/statist, left/right translations over time, including how today restorative justice has captured the attention of institutions devoted to principles of economic freedom and limited government (a recent blog post about that article is here).

We welcome Amy to the ADR Research Network and look forward to her joining us as a fellow blogger. She tells me she is eager to join local conversations about how “alternative” ideas and practices influence regulatory governance; criminal justice reform; and civil court practice.

Fleur Kingham – President Land Court of Queensland

The National Mediation Conference 2019 continues to provide rich material for learning and reflection some weeks after the it concluded. This blogpost from Fleur Kingham, President, Land Court of Queensland provides a great taste of the challenging and thought-provoking session she delivered.

What has ADR got to do with expert evidence?

In the Land Court of Queensland, ADR objectives, skills and techniques are at the heart of its procedure for managing the pre-trial preparation of expert evidence.
With the aspiration of enhancing the integrity and utility of expert evidence, the President of the Land Court adopted Practice Direction 3 of 2018, supplemented by the Guidelines for Expert Evidence.
The procedure for Court Managed Expert Evidence, or CMEE for short, brings together two very familiar processes in civil litigation – active case management and meetings and joint reports by the experts. The innovation lies in how those processes are connected, located within a without prejudice framework and supervised by a convenor, who is either a member or the Judicial Registrar of the Court.
The impetus for this procedure is twofold – the importance of expert evidence to its cases and enduring concerns about the quality of expert evidence led before the Court.
Expert evidence is central to the resolution of most matters that come before the Land Court. It is a specialist court with jurisdiction to hear disputes about the terms of access to and compensation for use of land for mining and other resource developments, compensation for the compulsory acquisition of land, cultural heritage disputes and appeals about land valuations. Expert evidence is involved in nearly all cases and, in some, the only issues in dispute involve expert evidence.
The Court has the same concerns that have motivated courts and tribunals to become increasingly interventionist in the management of expert evidence. Those concerns include bias (conscious or unconscious), the complexity of the information, the incomprehensibility of technical reports, and the risk of competing expert reports passing like ships in the night.
The CMEE Convenor’s role is procedural, facilitative, neutral, and expert. The CMEE Convenor cannot decide any substantive matter and cannot make directions without the parties’ consent. They facilitate communications about pre-trial preparation of expert evidence and seek to build consensus between the parties and their lawyers about the necessary steps. It is expert in the sense that the CMEE Convenor is an expert in the Land Court’s procedure and has content expertise in the Court’s jurisdiction. It is not evaluative, except to the extent that suggestions about process might involve the Convenor applying their expertise to help the parties move through process stalemates.
The objectives of the CMEE process are familiar to an ADR practitioner:
• To resolve, reduce and manage disagreements to a minimum; and
• To prepare for either mediation or more focussed preparation for the trial with reduced issues.
The Convenor uses the ADR skills of convening, facilitating, and managing disputes. The CMEE Convenor assists the experts during their meeting process to understand their role and the Court’s expectations. They facilitate the experts’ discussions and preparation of their joint expert report. In Queensland, once the experts start their meeting, they must proceed without further instruction from the lawyer/party who engaged them. This can create a dilemma if the experts need further instruction or information or need more time to complete their work. The CMEE Convenor can facilitate communications with the lawyers as a group. This ensures the confidentiality of the expert evidence process is not a barrier to meaningful communication and further instruction (without inappropriate influence) where required.
The CMEE Convenor also facilitates communications between the experts and the lawyers/parties and the Court. The CMEE Convenor will identify when something needs to be taken from the expert meeting to the lawyers for direction. The CMEE Convenor will also ensure that any matter that needs to be resolved on the record can be brought back to the member managing the case.
ADR techniques are central to the work of the CMEE Convenor: to clarify, find common ground and to explore solutions. The CMEE Convenor does not mediate a resolution between the experts. They use constructive controversy to encourage deliberative discussions aimed at creative problem solving. The CMEE Convenor ensures the experts address the same issue, with reference to the same material and that, if they differ, it is clear why they differ and to what extent. Many differences between experts, at the end of the day, prove to be immaterial to their ultimate opinion. The CMEE Convenor encourages the experts to identify what differences between them are material to the outcome of their opinion.
The CMEE process is relatively new. An international team of ADR academics will evaluate it in due course. To date, CMEE appears to be well received by the parties/lawyers and their experts. The President considers it has resulted in more focussed preparation of better quality expert evidence.

One of the best features of the national Mediation Conference 2019, with 7 separate streams jam-packed with sessions, was the extraordinary variety of themes and presenters.
Days after the conference has ended I am still revisiting the ideas that were shared and the challenges to my view of what ADR is and might be.

It is probably unsurprising that David Bryson, a colleague with qualifications in Politics, History, Psychology, Social Anthropology and Organisational Change signaled his intention to present us with a decidedly different conference session.
He described his surprise when the NMC organising committee accepted the idea he had proposed (somewhat provocatively) for this session – and his subsequent challenge to deliver something that until then had been just a playful idea.
Session participants, were surprised also – but certainly not disappointed.

A published poet himself, David delivered a session on ‘ADR Lessons from the Art of Poetry’ (subtitled (Poetry Lessons from the art of ADR).
His idea was that in some ways ADR and poetry share the same space although they have different frames.
He used the example of how poetry and ADR both rely heavily on words and on navigating meaning through the use of metaphor, with poetry adding the influence of imagination.
He used the language of ‘encode’ (from the deliverer) and ‘decode’ (from the receiver) to explore the intention/reception dynamic which is often a significant element in a mediation process. He engaged us further by sharing some lines of poetry which invited the audience to explore the intricacies of language.
Bryson used the unexpected concept of ‘sweet and correct formality’ to continue his exploration of concepts linking poetry and mediation.

New language for mediators
He developed this idea through his notion of ‘the ‘thoughtful machinery’ of poetry, giving us:
• Structure of lines
• Rhythmic energy and
• Repetitive sounds
He demonstrated how we can also find the ‘sweet and correct formalities of mediation’ where:
• Words are channeled in form and purpose in process
• Language is directed into negotiation elements
• Interpretations [need to be] filtered for heuristics and mind tricks and
• Social dynamics of conflict [can be explored]
We were certainly being engaged in a very different but compelling frame in which (using unexpected analyses) Bryson described mediation and poetry as sharing the common elements of:
• Multi-level meanings
• Emotional drop, below the surface
• Images of truth about humans enlivened to take greater weight; especially by the use of metaphors.

Learning from poetry
Using extracts from a series of poems, Bryson encouraged us to explore these elements – an analytical framework quite different from more conventional analytical frameworks that we are accustomed to bring into mediations with us.
Continuing his theme of comparisons he gave 3 further examples:
• Multi- level meanings (using poetry to encourage our exploration of a range of possible meanings)
• The emotional drop (through naming and listening)
• The use of metaphors
This example was the most powerful – exploring, through the language of poetry, how mediators change the frame by changing the metaphor. A memorable example was changing the metaphors of conflict from war or entrapment (such as armed with the facts; between a rock and a hard place) to journeying and collaboration (such as first steps towards an agreement; where do we go from here?).
Bryson finished by encouraging us to think about becoming poet mediators. A big challenge and one that seemed to be taken up very energetically at the Poetry Slam – a very unexpected highlight and hotly contested highlight of the Conference Dinner.

The National Mediation Conference continues to offer us opportunities to share and learn. The pace has been remarkable and the overarching experience has been of inclusion and learning from each other.

The profoundly challenging moments of reflection have also been interspersed with lighter moments. Dinner at the winery was a relaxing event enlivened by the unexpected and, at times hilarious, poetry slam. I had not expected to be a participant but the audience was generous about my ‘Ode to Short People’.

Today was a particularly important day for me.

Attending the conference with my husband and two of my children who are mediators has been a gift. I never anticipated a family of mediators and it never occurred to me that one day we could all have a learning experience as colleagues.

My family of dispute resolvers- Alan Limbury, me, Emma-May Litchfield and Ashley Limbury

This morning I had the joy of being in the audience as my daughter Emma-May Litchfield presented on her current research – ‘Should emotions be considered in the design and delivery of mediation training’ – under the watchful eye of her Masters’ supervisor Dr Kathy Douglas.

We are all tired by day three so we were enlivened when Emma-May engaged the room – polling our experiences as mediators, trainers of accrediting programs and as parties is mediation processes.

She challenged us to identify our own perception of whether emotion enters the room as part of the mediation process.

A starting point of her research was the requirement contained in the NMAS standards, requiring that those seeking accreditation under the standards demonstrate an ‘ability to manage high emotion’.

The Research Process

We were introduced to Emma-May’s qualitative process of interviews with 12 accredited mediators who were also trainers in accrediting programs.

Her semi-structured approach provided consistency whilst also allowing the opportunity to explore unexpected dimensions as they arose.

This led us to an overarching question she pursued as part of her work – Is the skill of dealing with emotions part of the design of accreditation training programs?

A particularly interesting outcome of the research was that the factor that determined whether training in emotions were included in the training depended on whether the trainers thought that it was important. I found this remarkable.

We were given an explanation of what might this mean via the hierarchy developed as part of Krathwohl’s Affective Domain of Objectives.

Krathwohl’s Affective Domain of Objectives

Exploring the values hierarchy Emma-May used the great analogy of the path to adoption of a plastic bag free life to demonstrate the development of values – from the most basic acknowledgement of a value to the top of the hierarchy where there is active living of values.

It’s a great sensation when your children become your teachers. I am really enjoying the learning emerging from this research.

The National Mediation Conference opened in Canberra yesterday and it has already given us memorable experiences.
From the opening plenary sessions the tone was set for us to experience the ‘Over the Horizon’ conference theme.

Christopher Honeyman gave us some language that was repeated throughout the day – ‘no tools and no rules’. His humour encouraged us to engage with his message that part of mediation’s value lies in the difficulty we experience with definitions and rules – offering us the opportunity of being infinitely flexible (within ethical boundaries) whilst also delivering a process that is situation specific. His parting encouragement for ‘keeping a sense of doubt about the right thing to do’ is something I am still reflecting on.

Honeyman was followed by Aboriginal and Torres Strait islander Social Justice Commissioner June Oscar AO of the Australian Human Rights Commission who introduced herself to us as a proud Bunuba woman.
Commissioner Oscar gave us a warm Bunuba welcome and then explained (in what she described as her second language) that her welcome to us was in support of her intention to support our understanding of indigenous ways of being and governing. The ceremonial welcome is part of keeping us connected and supports the cultural imperative of actively keeping peace and avoiding disputes.
She spoke of a ‘web of being’ which reflected a whole of life approach to mediation where everyone and everything in the community is accountable – providing lessons to sustain ‘societal health and wellbeing.’
Connection was a continuing theme and Oscar talked about ‘song lines and stories that keep us connected’. She shared her own important stories of mediating in her community at Fitzroy Crossing. She used her stories to introduce us to what she views as the basis of indigenous mediation – ‘deep listening’.
This phrase has struck a chord with the mediation community gathered for the conference and it continues to be a reference point of presentation after presentation.
Naming is powerful and now that we mediators have been given this powerful naming, we can be sure that when we use it we recall Oscar’s words:
‘Deep listening stops us from imposing our own ideas and imposing the outcome we want – it creates an important space so we have the opportunity to be exposed to the thoughts and feelings expressed by others.’

(PDF version of Oscar’s paper will be available on the NMC2019 website)

Picture Credit – Wikimedia Commons

When Professor Roger Fisher of Harvard Law School’s Program on Negotiation published ‘Getting to Yes’  in 1981, Game Theory was well developed.

It was firmly in the grasp of mathematicians and economists – not lawyers.

First advanced by mathematicians  in1944, more mathematicians followed, developing a game model of co-operation and conflict. This was later enhanced–  given a prison-sentence scenario and named The Prisoners Dilemma.

Nobel Prize – winning John Nash made further enhancements, giving us the Nash equilibrium – a model of problem solving to analyse and resolve the prisoner’s dilemma game.

By the time ‘Getting to Yes’ was published, game theory was a strong part of economic theory and analysis. Business schools had wrested it from the mathematicians and installed it in mainstream business programs.

Researcher followed researcher – developing and enhancing what has become known as the field of distributive negotiation.

Fisher’s ideas about interest-based negotiation (called integrative negotiation) were influenced by but separate from the distributive work of the business schools.

Fisher embraced The Prisoners Dilemma and other games in his teaching.

He often used the famous Negotiation Auction game, demonstrating how emotion and ego can override rational behaviour in negotiation. In this game, players bid for, say, a $10 note. Bids start low and then move surprisingly close to $10 as the competitive emotions kick in. The rules require that the top two bidders must pay their final bid although only the highest wins. Consistently the last two bidders pay more than the face value of the note, trapped in an ego-driven battle in which emotion overrides reason.

Edward’s Game

Using case studies, Fisher refined this game into something he named ‘Edward’s Game’ – although sadly he did not explain who Edward was nor publish his analysis.  Playing it in class with Fisher, we experienced an addictive game where the proponent has something desired increasingly fiercely by other competing negotiators. The proponent’s pitch is ‘I won’t tell you what I want – you just keep putting offers on the table and I will tell you when it is enough’.

The seductive quality of the game increases with the negotiator’s desire for what is at stake. In the domestic setting we often observe Edward’s Game when one party anxiously seeks forgiveness from another who refuses to indicate what forgiveness will require.

Edward’s Game is the gift that goes on giving.

It provides a terrific frame to test and analyse international dilemmas that appear completely irrational.

Brexit through the lens of Edward’s Game.

Brexit is playing out in the House of Commons, while the world watches in dismay. It is evident that no-one, except the economists who are commenting, the EU and the horrified public, is behaving in a way that can be explained  by the rational, analytical tools of game theory.

Edward’s game has been playing for quite a while.

May clearly has a powerful interest in being seen to honour her promise of being the Prime Minister who implements the public vote to leave. To complicate matters, there is more than one Edward’s game being played out. This makes her negotiation task so much more difficult because the different interests she has to satisfy in order to ‘win’ are in conflict. Some interests use Brexit blocking as a tool to pursue a more devious agenda of self-promotion and derailing of May’s leadership. Some interests relate to overturning the ‘leave’ decision and some interests relate to being unwilling to do anything which might be seen to be ‘giving in’ to the Europe that Brexiteers had vowed never to be seen to agree with again.

May keeps putting more on the table.

She went back to the EU to negotiate an extension. The warring parties would not agree and more of her own party defected to a new independent group with different interests again.

Receiving intelligence that a uniting interest of key decision-makers was her demise, she offered a new solution. She would resign if the proposal negotiated with the EU were approved. No luck.

She is now talking of a further extension which shows no signs of meeting sufficient approval yet for a motion to be passed in the house – but watch this space.

Negotiating Edward’s game successfully

Fisher constantly demonstrated to us willing participants in his game how difficult it was to ‘win’ without giving away more than the value on offer. This is what is happening with Brexit also.

Fisher proposed 3 tools for ‘winning’ Edward’s game. How might they work in this scenario?

1. Go to yourBATNA– but, leaving it so late, what could have been May’s BATNA has deteriorated into a WATNAand would end in lose/lose – a very bad outcome.
2. Change the players– May has signalled willingness to resign as the price for approval of her deal but it is too late. Divisions are so entrenched it would be near impossible to find an acceptable leader with the numbers to get May’s deal through. She has been experimenting with another version this week – collaborating with Labour leader Jeremy Corbyn. A good outcome seems very unlikely.
3. Change the game– May has already been cycling through Fisher’s seven elements. She has tried ‘relationships’ but her antagonists are prepared to risk all key relationships in their bid to block her. She has tried to brainstorm ‘options’ but masterful Edward’s Game players won’t play. She has tried ‘standards’ but apparently the regulatory pain of a hard Brexit is bearable if it will block her deal. Seems hard to see where to go from here.

Edward’s Game provides a great opportunity for using negotiation tools to explain the apparently irrational. As world leaders in many places showcase their Edward-like skills, commentators and analysts need to name the game early so that constituencies can be encouraged to find common interests quickly and avoid discovering that both the battle and the war have been lost.