Collaborative and innovative research approaches

In this series of blogs, there has been acknowledgement of the gaps in what is known about mediation, and some ideas for involving end-users and stakeholders in research projects.  This final blog in the series considers innovative and cost-effective approaches and methods, in particular for empirical studies of what happens during, say, mediation.   

In all research fields, it is important to have a theoretical framework whose philosophical structure supports the explanation and interpretation of data.  One recently devised framework with the potential to support mediation and DR research is agential realism.  Although, at first glance, a complex set of concepts, it proposes a completely different approach to the complexities of social interaction and human behaviour, and is being used increasingly to investigate them – and providing valuable and unexpected results.

Agential realism is not concerned with causation (ie cause and effect) or concepts of right and wrong.  It focuses on what “is”, accepts that everything is in a perpetual state of “intra-action” with everything else, and that this constant intra-action defines existence.  Everything (including space and time) is constantly and cooperatively exchanging with and influencing everything else.  Thus, researchers cannot be objective because everything within a research project is necessarily influencing everything else.  The research methods and instruments are as much a part of the study as are the participants and the researchers.

This theoretical approach cannot focus on single points of influence (ie power) nor can it consider isolated points of view or perceptions – it focuses on the entangled, inseparable engagements of everything with everything, accepting all viewpoints and intra-actions, and observing how they build on, with and through each other.  This has clear application in mediation research where it is highly likely that what happens during mediation is influenced in various ways by all participants as well as by additional influences brought to the mediation by each participant.

The approach of agential realism accommodates collaborative research approaches such as participatory action research and participatory ethnography.  The participatory approach emphasises the importance of social accountability to end-users (such as practitioners and disputants) and other stakeholders (such as program administrators and policy-makers), as well as ensuring transparency and accessibility in research reporting.

Participatory action research

In participatory action research, study participants are co-researchers and contribute to defining the purpose of a study, its design, its methods, the interpretation of data and the reporting of the study.  For example, if a study were seeking to explore the role and influence of repeat players in, say, mediation, the research team could include people who are themselves repeat players and could provide insights into their role.

Participatory ethnography

Ethnographic approaches have long been applied in anthropological and sociological research and are typified by the researcher being an embedded observer of a social setting or a social group.  A recent, and illuminating, ethnographic study of what happens during mediation involved the researcher being an embedded observer of commercial mediations in London, during a twelve-month period. 

In participatory ethnography, the researcher does not seek to be an “objective” observer.  Rather, the researcher becomes part of the community being observed and participates in the complete social context and its setting, becoming part of its norms, power differentials and complex social dynamics.  Ultimately, the participating community, or social group, contributes to the whole research project (ie purpose, design, methods, interpretation and reporting). 

Ethnography does not have to be limited to a single long-term investigation – studies can be short and targeted, and can include multiple sites or groups for comparative studies.  Online interactions such as blogs and social media lend themselves to ethnographic research – there is now software designed specifically to assist textual analysis of so-called micro-posts such as Twitter – analysis of blogs and microposts has been used in other fields to track research trends and developments.  Artificial intelligence can also be harnessed to assist in ethnographic observations and in analysis of verbal and nonverbal communications.

Textual and attitudinal analysis

A separate area of research is the examination and analysis of the language used to express final terms of agreement, with researchers seeking to explore, for example, how the words and phrases of the terms of agreement reflect various levels of “self-determination”.  For example, one such analysis suggested that a formalised and legalistic agreement style might reflect reduced disputant participation in the writing of the agreement.  Analysis of agreements might provide insight into different and unexpected aspects of influence at the conclusion of a mediation.  When such analysis includes different contexts, it might also provide useful comparative data.

Any of these approaches could be applied to explore attitudes to conflict across different cultural and socio-economic settings, in itself providing important baseline information likely to contribute to the ongoing development of affective approaches to managing and resolving conflicts and disputes. 

In summary, to gain more insight into what happens during mediation, and to fill the knowledge gaps about how and why the process works, it is important to develop collaborative and inclusive approaches that include end-users and stakeholders.  There is also much to learn from developments in other research fields, and from experimenting with innovative ideas and methods.

References

Adrian, L., and S. Mykland, ‘Unwrapping Court-Connected Mediation Agreements’ in A. Nylund, A. K. Ervasti, and L. Adrian (eds), Nordic Mediation Research (Springer Open, 2018).  

Barad, K., Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Duke University Press, USA, 2007).

De Girolamo, D., The Fugitive Identity of Mediation: Negotiation, Shift Changes and Allusionary Action (Routledge, UK, 2013).

Who can do research?

Anyone can be a researcher, as shown by the diverse work undertaken by the Australian Citizen Science Association (<https://citizenscience.org.au/>) where current projects include a selection of wildlife and environmental censuses, ongoing assessment of bushfire recovery in Queensland and NSW, and responses to restrictions associated with the spread of the coronavirus (Covid-19) (see <https://citizenscience.org.au/ala-project-finder/>).

While citizen science does provide opportunities for the field of mediation and DR research, so, too, do collaborative research networks.

Collaborative research networks

While it is prudent to have a research team that includes trained and experienced researchers from more than one discipline, team members can also be from quite diverse personal and professional backgrounds, increasing the scope of the team’s work, and contributing to credibility of any project.  One useful step in this area could be the development of “collaborative research networks”.  The ADRRN could be seen as a collaborative research network and the Law and Society Association (USA) uses them to facilitate researcher collaboration. 

Where stakeholders become involved in collaborative research networks, they become involved in what we, as researchers, are doing, and they contribute to what our research achieves.  Collaborative research networks could be more diverse if they were to include researcher members as well as interested people from other professions such as lawyers; policy-makers; mediation/DR program and service administrators; mediators and practitioners; and, of course, disputants (or potential disputants).  Such diverse networks would create strong relationships between researcher and end-users, providing a rich source of information for research proposals, research design, and research methods (in particular for empirical studies).

The perspectives of mediation and DR “consumers” (ie disputants and potential disputants) are an important (and missing) component of research design.  Their input could be accessed through the inclusion of community members (or representatives) from a variety of social and cultural settings.  An example is the routine inclusion of consumer health representatives on committees overseeing the provision of health services in Australian States and Territories, as well as in many other countries.

Collaborative research networks can be established to oversee specific projects; however, they can also be ongoing discussion and information forums.

Collaborative studies of “effectiveness”

Collaborative research networks are likely to be a valuable research “tool” for overcoming some of the constraints mentioned in last week’s Blog.  For example, they lend themselves to exploration of key effectiveness measures in mediation, including measures of participant satisfaction.  A network could explore how mediation effectiveness, and participant satisfaction, are defined and measured in various settings (eg services in association with courts/tribunals; with community-based services; with business and construction services; with family services; with ombudsmen; with workplace and employment disputes; with environmental disputes; and the various approaches of different social and cultural groups).

In discussions among its members, a collaborative research network could investigate the influence that differing interpretations of “effectiveness” might have on the nature of the mediation process, the role of the mediator, and the participation of the disputants.  In turn, this could lead to the emergence of a common understanding of effectiveness that accommodates a range of contextual details and facilitates comparative studies of effectiveness across different mediation settings.

Collaborative studies of models and styles of mediation practice

Collaborative research networks could provide a forum for the exploration of models and styles of mediation practice.  Grounded theory provides a useful basis for examining some key issues in mediation.  In summary, grounded theory is a research approach in which the researcher observes and collects information (avoiding the influence of their own pre-conceptions and views) from which a subsequent theory is developed, with further research examining the feasibility of that theory.  Using a grounded theory approach, a network could discuss relevant issues among its members such as: ascertaining the key actions and techniques that mediators consider are associated with each recognised model or style; clarifying with program and service administrators the influence of policy directives on preferred models and styles; and exploring the influence of setting, context and mediation participants on a mediator’s choice of model or style.

Collaborative access to mediation

One constraint on mediation research not included in last week’s Blog is the effect of confidentiality on researcher access to mediation.  Although the National Mediator Accreditation System does allow access for research purposes, many programs and services do not.  Interpretations of confidentiality can prevent access to baseline data, to observations of mediation, and to surveys of mediation participants, creating an obvious and significant gap in what can be known about the practice of mediation. 

Where members of a collaborative research network include lawyers, program and service administrators, mediators, and disputants, those members could explore approaches for enabling research access that do not compromise the integrity of the mediation process, or of mediation programs and services.

Collaborative ethics

Another constraint not included in last week’s Blog is the restrictive effect of ethics approvals for studies of mediation.  The effects emerge from the complex process of seeking ethics approval, as well as from the limitations imposed by approval conditions.  Were ethics bodies to be included in a collaborative research network, it might be possible to develop ethical guidelines for mediation research that maximise researcher access to relevant information while protecting the rights of mediation participants. 

One research approach might be for research project teams to include mediation participants and representatives of ethics bodies who participate throughout the whole research undertaking rather than ethics bodies’ involvement and input being limited to a single approval issued before the research commences.

Benefits of collaborative networks

There are clear benefits to a research approach based on collaboration among diverse participants, including access to a broad range of diverse perspectives, increased richness in research design, and the limited costs of having such networks.  An indirect benefit relates to research support.  Where sector stakeholders understand the research process, they are likely to be more supportive of it.  Collaborative research networks have the capacity to involve stakeholders in research projects and expose them to important concepts and ideas about mediation and DR, and, in particular, to the conceptual frameworks of research, and of qualitative empirical research in particular.  Such participatory exposure might enable a shift in research focus in this field – away from quantitative analysis of settlement rates confirming that mediation “works”, and towards qualitative approaches designed to provide more nuanced information about how and why the process works.  Such a shift could be a major contribution to the refinement of public policy in this area. 

Such a shift in research focus might also contribute answers to the perennial question of “what works” in mediation practice.

Photo copyright 2020 A. Boyle

This month the ADRRN blog focuses on research and is seeking your input about interesting and innovative approaches to studies of mediation.  This post sets the research context by summarising some of the key knowledge gaps and research constraints. Although the blog will focus on mediation, a process that has enjoyed a relatively long research focus, it is likely that there are similar knowledge gaps in relation to other DR processes, and that investigations of them have similar constraints.

Your ideas

Post descriptions of your research projects that have incorporated interesting or innovative approaches.  What was innovative?  How did that affect the whole project and its results?

Knowledge gaps – mediation

Last year, attendees at the National Mediation Conference in Canberra responded to a survey seeking ideas for future mediation research.  Most participants were practicing mediators and the most frequently submitted idea was “to find out what works”: mediators wanted to know more about the mediator skills and techniques that lead to durable agreements.  They also wanted to know which mediator style, or model of practice, is the most effective.  Both of these knowledge gaps are widely recognised.  

Other key knowledge gaps about mediation include a lack of information about mediation outside courts and tribunals and beyond institutional programs and services – in other words, a lack of information about private mediation.  There is also limited information about specialist mediation services such as those for addressing disputes arising from natural disasters or from resource management or from artistic misappropriation.

Very little is known about influences on the mediation process itself and on the role of the mediator, and how those influences might affect what happens during the mediation.  Such influences are likely to include the context and setting of the mediation, the experience and status of the disputants and their advisers, and the experience and status of the mediator.  In addition, despite widespread assumptions about mediator skills, it is not known what mediators actually do (ie their actions and microskills) and what might influence their choice of what to do.  

There are many knowledge gaps in models or styles of mediation practice, such as which mediator actions are typical of each model; how settings and contexts influence the mediator’s choice of model or style; and, among mediators who do apply recognised models of practice, how consistently those models are applied. 

A significant knowledge gap exists about people’s attitudes to conflict and to its management, including responses to “mediation” in Indigenous and other diverse cultural and socio-economic settings.

In some ways, the gaps in what is known about mediation are likely to limit investigations of the process’s effectiveness.

Some constraints on traditional research

Research support and funding

One important constraint on mediation research is the limited funding and support it receives.  Future research innovations are likely to need to be very cost effective if they are to be supported.

Lack of conceptual clarity

It is widely acknowledged in the mediation literature that there is not a clear and consistent understanding of what is meant by the term “mediation”  In addition to the well-reported lack of definitional clarity about mediation, it is not always clear how much of the preliminary work is included when researchers investigate “mediation”; how much of the post-mediation period is included in terms of the delay before implementing an agreement; or how much of a longer time-lag is included that might inform an investigation of mediation’s long-term effectiveness.  Nor is there regular consideration of the duration of a mediation as a component of the process: for example, whether the concept of mediation can include a process that lasts a full day as well as a process that occurs during several sessions convened over separate days, as well as a process that lasts one hour.

There is not consistency or clarity about what constitutes a mediation outcome, what that outcome might contribute to establishing the “effectiveness” of the mediation, and whether a focus on outcomes detracts from consideration of the mediation process itself and what happens within it.  For example, outcomes may be limited to the achievement of an agreement and/or the terms of that agreement, or they might include the disputants’ levels of satisfaction (with the mediation process and/or the mediator and/or the outcomes), or they might include positive changes in the disputants’ communication with each other, or they might include positive changes in the disputants’ relationship with each other, or they might include the matter being removed from a court or tribunal list – or they might include any combination of these. 

Finally, there is not consistency in what constitutes a mediator’s style, or approach, or model of practice.  For example, many investigations of mediator style have been limited to checking that certain key stylistic indicators are reported to have occurred during the mediation, such as “Did the mediator facilitate conversation between the disputants?”  Answering “yes” to the question does not provide information about what the mediator did or about what happened; importantly, it does not provide information about how the researcher chose to interpret the meaning of “facilitate”. 

Representative diversity in research participants

Mediation confidentiality is often cited as a reason for limiting researcher access to the process, including to basic mediation data, and to mediation participants.  These limitations constrain researcher access to a broad sector of the community and prevent their views from informing what is known about mediation.

Researchers recognise that the people who participant in empirical studies tend to be selected from readily accessible sources, including structured mediation programs such as those associated with courts and tribunals.  In most studies, various parts of the population are not differentiated for the purposes of the study.  For example, there is very little differentiation of research data according to socio-economic status, or educational attainment, or sex, or age-groups. 

Data collection and measurement

An additional constraint concerns how key concepts (such as those mentioned above) are to be measured or whether they are even measurable.  For example, it is very difficult to devise a reliable measure for ascertaining levels of disputant satisfaction, or whether the disputants’ communication with each other has improved (either during the mediation or more durably).  There are many aspects of research design that are known to interfere with the reliable collection and measurement of data, including various types of inherent bias (on the part of the participants, the research setting, and the anticipated reporting of the research), and the influence of the researcher’s own experience and preferences.

Research approaches

Mediation research needs some innovative approaches, and over the next couple of weeks, this blog will consider this issue.

Resources

Three articles for further reading about innovative research approaches.  One looks generally at developments in empirical research in the behavioural sciences, and two report on the incorporation of psychometric modelling in surveys distributed in legal settings.

Druckman, D., and W. Donohue, ‘Innovations in Social Science Methodologies: An Overview’ (2020) 64(1) American Behavioral Scientist 3.

Pleasence, P., and N. Balmer, ‘Measuring the Accessibility and Equality of Civil Justice’ (2018) 10 Hague Journal on the Rule of Law 255.

— , ‘Development of a General Legal Confidence Scale: A First Implementation of the Rach Measurement Model in Empirical Legal Studies’ (2019) 16(1) Journal of Empirical Legal Studies 143.

The following review of Mediation Ethics: From Theory to Practice is written by Paul Kirkwood, a Commercial Mediator and Litigation Solicitor in Scotland. It originally appeared at https://paulkirkwoodmediator.co.uk/2020/11/09/a-wake-up-call-for-mediation/.

Mediation Ethics: From Theory to Practice by Rachael Field and Jonathan Crowe, is, despite its low-key title, a refreshing, challenging and for mediation, controversial book – it deserves your attention.

Self-Determination, Informed Consent and Professionalism are the Primary Principles which should underpin Mediation in the Modern Age. In this new Mediation Ethic – Neutrality and Impartiality need to take a back seat. Is this a moment of truth for Mediation?

The fundamental premise of the book is that the time-honoured sacred cows and principles thought to underpin mediation – Neutrality and Impartiality – need to be relegated to being tools (or potential mediation techniques) in the mediator’s kit, rather than seen as foundational principles. Instead mediators should embrace the real foundational principle of mediation – Relational Self-Determination armoured by Informed (legal?) Consent and a Professionalism that should include a ‘fiduciary’ duty to all parties.

In support of this premise the authors propose a new ‘contextually driven’ paradigm of mediation ethics that is not rule-based, but is driven by the context of the situation in which a decision about how to intervene by a mediator, must be made. ‘As contextual ethical approaches do not prescribe a specific path to resolving a dilemma, they require competent, discretionary, professional judgements that take account of the circumstances of individual cases and respond to them reflectively and relationally’ (Page 213 and see footnote 5).

This idea of contextual ethics (or ethics derived from practice) is compared to the ‘rule-based’ or ‘regulatory’ approach to ethics taken in the legal profession, which in the context of mediation is regarded as being ‘too fixed’ and ‘limiting’ or ‘an impediment and a barrier’ to the creativity necessary for mediators in fluid fast moving circumstances. Additionally, the authors reflect on the hierarchical, formalistic and coercive nature of regulatory systems. The authors in  anticipating a response from the wider profession  to what might be seen as an almost ‘Proudhonian’ proposition (anything goes),  suggest that they support neither a rule-based/regulatory approach, nor a strictly contextual (or practice based) approach, ‘Rather, a guided model that sits between these two extremes is most appropriate because it provides a principled framework that offers practical guidance for mediation training and practice’ (Page 175).

So far so good, but I may have put the cart before the horse. Why are the authors dropping neutrality and impartiality as foundational principles when these concepts are fundamental to the way in which so many mediators perceive themselves and their role in mediation?

This book undertakes a thorough review of the concepts of neutrality and impartiality in mediation and how they came to be imported there from law and legal practice, and notes how they have been used as a means of justifying the practice or profession of mediation as being something that is equally as good as litigation or arbitration as a means of dispute resolution. The authors posit that the importation was not necessary because (1) it is the principle of self-determination that sets mediation apart from these other forms of dispute resolution and (2) that principle is what makes mediation ‘good’ and ‘fair’. It’s not about the imposition of a decision on parties by a third-party – parties self-determine their own outcome with the help of an engaged, active and interventionist mediator.

In any event the authors argue, the concepts of neutrality and impartiality turn out, in the context of mediation, to be deeply flawed and actually work to actively prevent and forestall mediators being allowed to intervene in a way that would enable them to provide support to parties which would enhance party self-determination. Take for example providing parties with information (legal or about legal systems) that would assist in ensuring that they do have the ability to make a decision on the basis of informed consent. A duty of strict neutrality and a regulatory requirement not to intervene would prevent the provision of such information and ultimately mean, in an unbalanced power situation, that the mediators’ professed neutrality or impartiality would simply lead to a reinforcing of the power imbalance where one party would make an uninformed decision and only the other party would be truly self-determining. As the authors say ‘Our proposed conceptual framework for a new ethical paradigm in mediation focuses on informed consent as the primary basis for achieving party self-determination. It is informed consent, not mediator neutrality, in our view, that provides the mechanism by which authentic party self-determination is achieved’ (Page 181).

The authors argue that in their model of mediation ‘the ethical facilitation of party self-determination is the core objective of the mediator’s role’ (Page 181). In some situations, for example where the power dynamic between parties is equal, a mediator can appropriately adopt a neutral or impartial stance to achieve this – but neutrality/impartiality are not necessarily required to realise this value. Where there is a power imbalance, mediators may require to act in a way that contradicts the ethics of neutrality as it is currently understood in order to support party self-determination (Page 181).

The authors identify four core characteristics of party self-determination: (1) active and direct participation by the parties in communicating and negotiating; (2) party choice and control over the substantive norms that guide their decision-making (for example law); (3) party involvement in the creation of options for settlement (it is envisaged that mediators can play an active role in helping parties develop options); (4) party control over whether to come to an agreement, and if so the terms of that agreement.

For the authors the imperative of pursuing party self-determination provides the ethical driver for mediators’ actions and decision-making. Informed Consent and Professionalism provide additional ethical checks on the mediator’s practice (Page 183).

In this regard the authors note that for self-determination to lead to agreements that can be considered principled and fair, genuine self-determination has to be achievable in practice (page 193) – the way to ensure this is by using Informed Consent and Professionalism.

In the authors’ view, Informed Consent (which has also been borrowed from legal doctrine) can be supported by the mediator in a number of ways. For example, by the provision of information to unrepresented parties (page 197). However, they consider that there are three elements to achieving real Informed Consent: (1) maximisation of party control through the use of intake process and party preparation strategies; (2) ethical mediator activism in support of informed consent; (3) party access to legal and other external advice.

The intake process should be used by mediators to assess a party’s capacity for informed consent and to diagnose that party’s needs in achieving it – this would include assessing their ability to access necessary legal/professional advice and also their capacity to negotiate effectively. Where these capacities appear wanting, the mediator should take active steps to help ‘remedy’ the situation by pointing the party to sources of help – ‘’or making ‘warm’ (actively assisted) referrals to relevant services. In this sense, intake processes can be considered as a way to screen parties into mediation, and also into the most appropriate model of mediation for their dispute and their capacity for informed consent’’ (Page 200).

The intake process also provides space for mediators to ensure that parties maximise their own control and should centre ‘on capacity building through mediation preparation or coaching, ensuring that the parties know and understand the process and its principles, and that they have developed strategies for their participation’ (Page 201).

The authors also consider that ‘ethical mediator activism’ is a necessary part of supporting party self-determination by facilitating informed consent of individual parties, and that if necessary, this may be required in the form of information and even advice (page 204). Quoting Weckstein, the authors note, ‘if a party cannot or will not access external advice to support their informed consent’, then ‘it should not be considered improper for the mediator to serve as a source of pertinent information’ because ‘educating disputants about relevant norms and information enhances, rather than undermines, party self-determination’ (Pages 204/205).

The authors observe that under the current neutrality centred ethical paradigm, mediators have to differentiate between the provision of ‘information’ and the provision of ‘advice’ because the latter would be ‘unethical’, even if within the mediator’s technical competence. They contrast that with their proposed new ethical paradigm and note that ‘the critical ethical distinction is not whether a mediator has provided information as opposed to advice, as both information and advice can potentially ethically support party self-determination. Rather, in terms of the professional ideology articulated (subsequently) the issue is whether the information or advice is within the technical competence of the mediator, and whether it is provided as an appropriate fulfilment of the mediator’s fiduciary duty to the parties’ (Page 205). In considering this ethical duty it behoves the mediator to decide whether a party has the capacity to use the information or advice proffered in a genuinely self-determined way. If the party doesn’t have the capacity, and is likely to accept the advice as a decision, then the provision of information or advice in those circumstances would be unethical.

The final aspect of the authors’ proposed new mediation ethics ‘is an ideology of professionalism centred on technical competence and a fiduciary-like obligation to the parties (Page 207). This is necessary because ‘an explicit professional ideology is important to providing boundaries to the more interventionist and activist role envisaged for mediators in the proposed new ethical paradigm’ (Page 208).

A fiduciary duty arises (1) because of the high degree of trust placed by the parties in the mediator and the power that the mediator has in the whole process and (2) because the practice of mediation, in the context of the rule of law, constitutes a service to public welfare (Page 209).

In conclusion the authors advise that ‘The mediation community is therefore facing a moment of truth. Mediation practitioners must reconsider, and reframe, their identity and their role; furthermore, they must respond to the serious obligation that results from the authority and power inherent in their position’ (Page 210).

This is a revolutionary concept and it remains to be seen how the mediation world will react and what impact this will have on it.

Speaking for my own part, I have never considered neutrality or impartiality to be possible – these notions are idealistic, not realistic. I agree with the authors that mediation can only be fair if parties are able to self-determine on the basis of parties genuinely informed consent – and that there should be an ethical and indeed fiduciary duty, as conceptualised in this book, on mediators to ensure that parties are genuinely informed. This, by definition, requires neutrality and impartiality as foundational principles to fall by the wayside.

In my own mediation practice, I explain to parties that I am not ‘on either of their sides’, but rather that I am there to try and help both parties; that I am omni-partial (a Clokeian concept). I explain that I can do this by using the ‘tool of confidentiality’ where that is appropriate in private session, to enable full, frank and challenging conversations where information exchanged will only be disclosed with specific party permission. This is where the fiduciary duty should kick in, in a practical way – it is the obligation not to betray party trust with regard to confidential discussions and the equally important obligation to help the party who is struggling in accessing and understanding critical information to enable them to give informed consent and to be able to genuinely self-determine. To fail to act in such a way amounts to, in my opinion a dereliction of duty.

To my mind, the authors are articulating a set of principles which provide a framework for allowing and justifying the practical approach which some mediators (including myself) may already follow. These refined principles enable mediators to practice without fear of falling foul of the irreconcilable clash between the principles of neutrality and impartiality (which prevent intervention) on the one hand and the principles of self-determination, informed consent and professionalism (which require intervention) on the other.

This concept of mediation requires mediators to be activist and interventionist. Thanks to this book and its authors, it is shown to be possible to do this in an ethical way.

Most of the clients, lawyers and expert witnesses I have worked with in mediation have made it clear that they want mediators to bring their knowledge and experience of dispute resolution into the mediation and not to leave it outside. They don’t want an anaemic mediator who is ‘strictly neutral’ and who sits on their hands – they want someone who is active and where necessary interventionist – otherwise they say, ‘what are you here for – what are you adding?’.

To conclude – this book with its revolutionary new ‘codifying’ of principles provides an ethical means of escaping the convoluted necessity of adhering to neutrality/impartiality – not altogether ‘dumping them’ but quite rightly relegating them to the tools they should be. I applaud and endorse it.

I just wanted to share a recent post on the Law and Political Economy blog describing my new article, “A Labor Theory of Negotiation: From Integration to Value Creation.”  I’d be delighted for your feedback. Here’s an excerpt from that post that captures some of the argument:

Integration has remained a key organizing concept in negotiation theory, but its meaning has changed over time as the ways in which capitalism is organized and understood have changed. Today, the term integration is synonymous with economic value creation: a negotiation is integrative when it has the potential to leave all parties better off based on their own standards of value than whatever deal they were contemplating initially. In other words, integration means that—because of some added negotiation technique—there are more subjective units of value for negotiators to allocate than they otherwise could have accessed without deploying this technique: that is, the parties have expanded the pie before dividing it.

But integration did not initially rest on a neoclassical economic analytic. It originated with Mary Parker Follett, a late Progressive era thinker. Follett developed a socialist theory of negotiation in response to early twentieth century labor struggle (at least if we take socialism to mean the democratization of power and authority in economic life). Follett aimed to address a particular unifying question: how can labor and capital assume “collective responsibility for production”? Integration served as a hopeful answer: it meant “you can be for labour without being against capital; you can be for the institution.” From this perspective, a negotiation is integrative when—by participating in and also structuring a shared institutional context—all groups find that their desires are working to achieve the same overarching ends.

–Amy J. Cohen, UNSW & Ohio State University

Rachael Field and Jonathan Crowe

Traditional views of mediation ethics focus on mediator neutrality or impartiality. Our recent book, Mediation Ethics: From Theory to Practice, challenges this paradigm. We argue instead for a new ethical framework centred on party self-determination. This approach is supported by a focus on informed consent and an ethos of professionalism. We propose a contextual ethical method as the most suitable way of resolving ethical dilemmas in mediation practice.

Why is a new paradigm of mediation ethics needed? Our case for a new ethical paradigm is not purely theoretical. Rather, it is grounded in the realities and demands of mediation practice. We contend that a traditional ethic of neutrality or impartiality is not only theoretically unsound, but also unrealistic, because it does not help mediators understand or negotiate common ethical dilemmas.

Consider, for example, the following case studies:

Tuan and Oanh: Tuan is a sixty-five year old man living in an assisted care facility. He suffers from early onset dementia. He is in dispute with his thirty-eight year old daughter, Oanh, about the sale of the family home. Tuan often appears confused and struggles to articulate his concerns. He sometimes goes off on unrelated tangents and seems to forget why he is there. Oanh, who is a lawyer, presents her case articulately and persuasively, including referring to the legal position.

Maha and Tony: Maha runs a small furniture upholstery business from his home. Tony placed a substantial order with him for upholstery for a boat. However, when the order was delivered, Tony refused to pay the agreed price, citing minor flaws in the work. Tony is represented by his lawyer, Phil, who refuses to budge from their initial lowball offer. Maha is a recent immigrant who speaks little English. He appears intimidated and overwhelmed by the process. The mediator is concerned he will accept the offer on the table simply to end the dispute.

Josh and Lauren: Josh and Lauren have recently separated after an eight-year marriage. They have two young children and are in dispute over parenting issues. Josh is very assertive and prone to long, aggrieved speeches. Lauren barely speaks. When she does speak, Josh often talks over her, even though the mediator reminds him not to do so. Lauren seems afraid to assert herself in Josh’s presence. The mediator suspects there is a history of domestic violence, although neither party has disclosed this.

These three scenarios all pose challenges that are far from uncommon in mediation practice. Each of them involves some kind of power imbalance between the parties. In the first case, Tuan’s ability to participate in the mediation is affected by his age and health, while Oanh is well equipped to articulate her interests by virtue of her legal training.

In the second case, there are cultural and linguistic issues to be addressed in ensuring that Maha can engage fully in the process, while Tony’s legal representation poses the challenge of avoiding overly positional negotiations.

In the third case, the dynamics of the mediation may need to be carefully managed to safeguard Lauren’s safety, as well as to enable her to appropriately articulate and assert her interests and those of her children.

There is a range of tools available to mediators in confronting these kinds of challenges. These might involve helping the parties obtain support or advice from medical practitioners, social workers, cultural support workers, interpreters or legal professionals. They might also involve techniques such as active listening, curious questioning, agenda setting, reframing and separate sessions.

However, exhorting the mediator to be neutral or impartial tells them little about when and how these tools and techniques should be deployed; indeed, it may be at odds with the demands of best practice. A mediator who actively manages the process to ensure that both parties have the chance to articulate their needs and interests cannot truly be described as neutral, in the sense of being detached and disinterested in the dispute and its outcome.

Nor does it help to insist that the mediator must be impartial, in the sense of being even-handed and objective. Rather, what is required for mediators to address these kinds of scenarios is active and targeted intervention in the process that takes account of the distinctive needs and positions of the parties. The ethical role of the mediator is to advance party self-determination by managing the process in a professionally appropriate way. This may or may not involve being neutral or impartial.

In arguing for a new paradigm of mediation ethics in which neutrality or impartiality is no longer central, we are not suggesting that mediators should act unfairly or in a biased fashion. Rather, our position is that party self-determination requires an ethic of responsiveness to the parties’ needs and interests that may involve both neutral and non-neutral (or impartial and non-impartial) actions and interventions.

As the analysis in our book further explains, if acting in a neutral or impartial fashion does not result in the support of party self-determination, then, ethically, the mediator should not be neutral or impartial. The requirement of neutrality or impartiality is untenable in such circumstances.

This does not mean that the value of neutral and impartial conduct on the part of the mediator is jettisoned altogether. However, in the new ethical paradigm we propose, neutrality and impartiality are simply approaches that may be harnessed as part of a mediator’s ethical decision-making about process management in support of party self-determination. Relational self-determination becomes the overarching goal.

Contemporary Conflict Mapping

Claire Holland* and Rikki Mawad**

* Claire Holland is the Director of the James Cook University (JCU) Conflict Management and Resolution Program. She is a senior lecturer and researcher in Alternative Dispute Resolution (ADR) and conflict resolution processes.

** Rikki Mawad is a Conflict Management and Communications Consultant, and a lecturer in the JCU Conflict Management and Resolution Program.

This blog post discusses new perspectives on conflict analysis and conflict mapping. The authors invite commentary around a more contemporary conflict mapping matrix that integrates modern perspectives and practices.

Why Map Conflict?

 At its most basic level, Gary Furlong, author of The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict, states managing conflict effectively is a two-step process:

1. Assessing conflict
2. Deciding what action (or inaction) to take to address it.^[1]

Assessing conflict, also known as conflict analysis or “conflict mapping,” is a process of reviewing a conflict context through a third party/neutral lens by following a logical, structured review process. The mapping acts as a guide for the intervening party to design a process that meets the parties’ substantive, procedural and psychological needs.^[2] The overarching aim of conflict mapping is to increase comprehension and clarity of the situation and facilitate appropriate and well-considered conflict management or conflict resolution strategies.

When there is lack of clarity or poor understanding of the conflict and time pressures to make decisions, people and systems tend to react to conflict rather than respond. This has the effect of escalating conflict rather than moving towards resolution or positive change. Due to time pressures, lack of resources, and lack of access to support systems, for many individuals and organisations there is limited scope for reflection on the underlying causes of the conflict. Adequate consideration of underlying conflict causes can inform choices on how to respond to a person or situation, and the likely impact of those choices on future interactions or occurrences. Mapping a conflict prior to an intervention is a key step in setting the intervention up to succeed. Conflict mapping and making considered choices may end up saving individuals and organisations time, money and energy by identifying the best forum and appropriate practitioner or intervention team at the outset.

Existing Approaches and Perspectives on Conflict Mapping

Models of conflict mapping, such as Shay Bright (PhD) The Conflict Mapping Chart, list specific elements for consideration. Bright, drawing on the Wehr Conflict Mapping Guide^[3] and Sandole’s Three Pillar Approach,^[4] leads the reviewer through the six key pillars of a conflict framework, which includes identifying and analysing:

1. Conflict parties;
2. Conflict history;
3. Conflict context;
4. Party orientation;
5. Conflict dynamics; and,
6. Conflict intervention.^[5]

Under each heading, it is possible to include additional models and maps for analysing, diagnosing and intervening in conflict. Furlong highlights eight models for analysing conflict: 1) The circle of conflict; 2) The triangle of satisfaction; 3) The boundary model; 4) The interests/rights/power model; 5) The dynamics of trust; 6) The dimensions model; 7) The social styles model; and 8) Moving beyond conflict.^[6] These conflict analysis models are often also considered in light of overarching conflict theories such as negotiation theory, mediation and practice frameworks, human needs, conflict transformation, theories of change, and peacebuilding.

The mapping process involves considering theory, research, and understanding of conflict to provide greater clarity about the conflict situation, understanding of the needs, interests, goals, and resources of different parties to the conflict, and awareness of options for interventions to move towards resolution or engage in effective ongoing conflict management. As Daniel Druckman states in his seminal text Doing Research: Methods of Inquiry for Conflict Analysis, there are aspects of both art and science in the field of conflict analysis and resolution.^[7] While maps, charts and tools can be scientifically followed, the ‘art’ of interpreting and applying information is a learned skill. A contemporary conflict matrix that expands Bright’s model with a seventh and eighth pillar aims to increase the factors for consideration in conflict analysis, allowing greater opportunity to identify and design appropriate intervention strategies that accommodate the realities of the parties and structures in which the conflict exists.

Building on Bright’s Framework: Pillars 7 and 8

Pillar 7: Multidisciplinary Knowledge

The authors suggest that there is merit to adding a seventh pillar in Shay Bright’s Chart, Multidisciplinary knowledge, which is to bring in elements of neuroscience, emotional intelligence and trauma-informed approaches to managing conflict at an intrapersonal level through to a transnational level. What is currently lacking is a clear and structured conflict analysis chart that includes consideration of party’s psychologies, worldview formation, self-analysis, and additional models analysing cultural considerations and emotional states – particularly for enduring conflict that involves ongoing uncertainty for parties. Many established conflict theories use a rational mind approach that focuses on individualistic and neoliberal response to conflict. The majority of well-known and cited authors in the conflict management and resolution field are US based researchers who, while having worked globally, often bring an Anglo Christian, male perspective to conflict mapping and interventions. An unintended effect from potential unconscious bias, is that key elements of a conflict that relate to elements such as gender, race, religion, and sexuality may not be properly considered in both the mapping or intervention. Clear articulation in mapping tools for greater cultural and emotional intelligence in conflict analysis and intervention design are important for a more holistic analysis. If outcomes such as true party self-determination are important, then consideration of resolution options that are co-designed with the parties to that conflict, culturally appropriate, and representative of the party’s actual needs, interests and priorities, will arguably be more sustainable.

Bringing in the work of practitioners, researchers and emerging thinkers such as Daniel Kahneman[8], Daniel Goleman,[9] Van der Kolk[10] and Brene Brown[11] for example (and to name only a few), gives the conflict practitioner a new lens and additional pillar to mapping the conflict, designing and delivering the best fit intervention. One example of including multidisciplinary knowledge in the conflict mapping process, would be to consider Dr Brene Brown’s grounded theory social research into courage, vulnerability, shame and empathy as a lens to help both people in conflict and third parties assisting with conflict to grow the options for resolution. Brene’s recent work in Dare to Lead for example, is a key asset to conflict managers.[12] Brown talks about harnessing the power of empathy to understand ourselves and others as a way to change perspective and open space for difficult conversations. Brown’s work around rumbling, leaning into hard conversations, and BRAVING are incredibly complimentary for conflict management practitioners and in helping anyone understanding, navigate and more productively work with conflict.

As a way to add to hallmark features of conflict management processes, the BRAVING inventory modernises the conflict theory principles of non-judgment and choice theory and provides a framework for growing connection through empathy and understanding which generates options for transformation and resolution of conflict at various levels and across contexts.

Pillar 8: The Practitioner and the Process

The authors also suggest an eighth pillar to the Shay Bright Conflict Map, The Practitioner and the Process, that looks at the macro and micro skills required of a practitioner for an effective intervention. Along the lines of fitting the ‘forum to the fuss’, it is important to consider fitting the ‘practitioner to the process’. Depending on the outcome of the conflict analysis, there may be a good reason to require certain practitioner characteristics, knowledge or skills. In order to best serve the parties and support a conflict management or resolution process that considers and adapts to the parties needs, interests and priorities, there may be evidence-based and/or practice informed reasons for seeking practitioners who have certain characteristics (for example age, gender, race, or religion) or knowledge and skills (for example, contextual understanding, cultural competency, emotional intelligence, trauma informed practice, working with vulnerability and shame).

Without a high level of emotional and cultural intelligence, the conflict management practitioner designing and delivering an intervention could hinder options for resolution or transformation of the conflict. Practitioner micro skills may also play an important role in establishing psychological safety and meeting party’s needs.

Developing self-awareness and skills building are essential parts of education and professional development for conflict resolution practitioners. Self-awareness is an element of emotional intelligence, as defined by Daniel Goleman. Emotional Intelligence can be referred to as EI or EQ. For the purposes of this blog we will use the term EQ. At its most basic definition, EQ is the ability to understand and manage your own emotions, and recognise and manage the emotions of other people around you. Daniel Goleman first wrote about EQ, and introduced an EQ framework of four generic domains: self-awareness; self-management; social awareness; and relationship management.^[13] The five dimensions of emotional intelligence Goleman suggests are self-awareness; self-regulation; motivation; empathy and social skills. The importance of EQ and using EQ in leadership and communication has been increasingly researched and discussed by academics and practitioners over the past 30 years. It is recognised that EQ can be trained,^[14] higher EQ positively impacts academic grades and performance^[15] and influences conflict styles.^[16]

Applying an EQ lens across the conflict map can increase both party, self, issue and other awareness as well as ensure that an intervening party is positioned to de-escalate and effectively ‘climate control’ the process. The less we understand ourselves and our own emotions, the less likely we are to recognise and understand other people’s and the entire conflict situation. This leads to challenges with empathy, general social skills and can also create and escalate conflict.

A lack of EQ in parties and practitioners can lead to conflict escalation rather than regulation and resolution. Without self-regulation, we cannot control or redirect our thoughts, feelings and actions and therefore are trapped in a cycle of reacting rather than responding. The inability to self-regulate then  inhibits our levels of motivation, resilience and achievement and our relationships with others, and could also thwart the sustainability of a negotiated outcome. Once a practitioner understands themselves, their emotions, and their motivations they can work on developing skills to assist others in self-regulation, social skills, communication and emotional management. A growth mindset, recognising that talents and skills can be developed overtime and through hard work, is an important frame of mind.^[17] Applying a level of self-assessment on behalf of the conflict practitioner to the conflict at hand, recognition of what the situation may call for based on the conflict map, and recognition of one’s ability and skillset, can help determine who might be the best person to intervene in a certain situation.

In conclusion, there are new opportunities to apply the work of emerging scholars and practitioners from different disciplines into our understanding of conflict. It is important that practitioners remain up to date with new understandings, emerging research, and ideas that can inform the field of conflict management and resolution.

References

[1] Furlong, G. (2005). The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict. Canada: John Wiley & Sons, p 2.

[2] Described by the triangle of satisfaction in Moore, C. (2003). The Mediation Process, Third Edition, San Francisco: Jossey-Bass.

[3]Willmot, W.W., and J.L. Hocker. 2001. Interpersonal Conflict. New York: McGrawHill.

[4] Sandole, D. J. (1998). A comprehensive mapping of conflict and conflict resolution: A three pillar approach. Peace and Conflict Studies, 5(2), 4.

[5] Bright, S. (2001). The Conflict Mapping Chart. Retrieved September 1, 2020. Available at https://www.in-mediation.eu/wp-content/uploads/file/ConflictMapping.pdf

[6] Furlong, G. (2005). The Conflict Resolution Toolbox: Models & Maps for Analyzing, Diagnosing, and Resolving Conflict. Canada: John Wiley & Sons.

[7] Druckman, D. (2005). Doing research: Methods of inquiry for conflict analysis. Sage Publications, p 3.

[8] Kahneman, D. (2011). Thinking, fast and slow. Macmillan.

[9] Daniel Goleman is a Psychologist, Author and visiting scholar at Harvard University see further http://www.danielgoleman.info/

[10] Van der Kolk, B. A. (2015). The body keeps the score: Brain, mind, and body in the healing of trauma. Penguin Books.

[11] Dr Brene Brown is an Author and Researcher at the University of Houston, see further https://brenebrown.com/

[12] Brown, B. (2018). Dare to Lead: Brave Work. Tough Conversations. Whole Hearts. Penguin, Random House (UK)

[13] Goleman, D. (2011). The brain and emotional intelligence.

[14] Mattingly, V., & Kraiger, K. (2019). Can emotional intelligence be trained? A meta-analytical investigation. Human Resource Management Review, 29(2), 140-155.

[15] MacCann, C., Jiang, Y., Brown, L. E., Double, K. S., Bucich, M., & Minbashian, A. (2020). Emotional intelligence predicts academic performance: A meta-analysis. Psychological Bulletin, 146(2), 150.

[16] Gunkel, M., Schlaegel, C., & Taras, V. (2016). Cultural values, emotional intelligence, and conflict handling styles: A global study. Journal of World Business, 51(4), 568-585; Chen, H. X., Xu, X., & Phillips, P. (2019). Emotional intelligence and conflict management styles. International Journal of Organizational Analysis; de Villiers, J., Marnewick, A., & Marnewick, C. (2019, June). Using emotional intelligence during conflict resolution in projects. In 2019 IEEE Technology & Engineering Management Conference (TEMSCON) (pp. 1-6). IEEE; Rahim, M. A., Psenicka, C., Polychroniou, P., & Zhao, J. H. (2002). A model of emotional intelligence and conflict management strategies: A study in seven countries. International Journal of Organizational Analysis, 10(4).

[17] Dweck, C. S. (2008). Mindset: The new psychology of success. Random House Digital, Inc.; Dweck, C. (2016). What having a “growth mindset” actually means. Harvard Business Review, 13, 213-226.