This post has been contributed by Adjunct Professor Sue Field, in collaboration with network member Hanna Jaireth.

It is common knowledge that we have an ageing population in Australia. In 2017, 15.4% of the population were over the age of 65 years and this group is projected to increase more rapidly over the next decade, as further cohorts of baby boomers (those born between the years 1946 and 1964) turn 65 (3101.0 – Australian Demographic Statistics, Jun 2017).

It is also common knowledge that as we age we have an increased risk of developing some form of cognitive impairment. According to Dementia Australia one in ten people over the age of 65 years have dementia; and this increases to three in ten people over the age of 85 years (Dementia Australia).

Therefore, it is safe to assume that professionals working with an older client base may well be confronted with situations where the mental capacity of their client may be in question. This is equally true of those engaged in mediation, where one, if not many, of the parties involved may not necessarily have the requisite mental capacity to engage in the process.

It is timely therefore to indulge in a short recap of the fundamentals associated with mental capacity.

At the outset, in respect of mental  capacity, there are two basic premise. The first is that there is a presumption of capacity and the second is that capacity is a legal, not a medical, concept. But presumptions can be rebutted. In this instance it can be rebutted by the presence of a valid trigger (or red flag). For example the person concerned displays behaviour that is not the behaviour considered usual (or normal) for that particular person. Simple examples of triggers are constantly repeating the same sentence or a total inability to repeat, and comprehend, what has just been explained to them. However, any trigger should be further explored as there may be a rational explanation for the behaviour. For example is the person stressed in their current environment, are they on medication, or has their medication recently been changed. Do they have a urinary tract infection, or some other illness.

Perhaps in the example of not being able to repeat what has been explained to them, consideration should be given to the fact that  the person explaining a situation has not taken into account the level of education/cultural differences/or the stress occasioned by the environment!

The second premise, that is, that capacity is a legal, not a medical concept means that should the matter end up in a court or tribunal that legal body will make a determination of the person’s capacity, based on the evidence provided.

But what exactly do we mean by “mental capacity”? Not all jurisdictions provide a statutory definition. Therefore reliance is placed on common law, in particular the 1954 High Court case of Gibbons v Wright [1954] HCA 17 per Dixon CJ, Kitto and Taylor JJ, where their Honours stated that:

“The mental capacity required by law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of the transaction when it is explained.”

Caution, as mentioned supra, should be exercised here to ensure that the explanation is given in a manner that the relevant person can understand!

A further caution is not to assume that because a person has a diagnosis of “dementia” they cannot make a decision. A person may well be diagnosed with dementia at a very early stage of the condition and manage their lives successfully for many years. However, such a diagnosis may be seen to be a trigger and therefore should be explored – and documentation in situations such as this is of vital importance.

It can be seen then, that capacity is not global (in other words it is not an all or nothing concept). It can be domain specific, that is, the person may have capacity for health decisions, but not financial, and vice versa.  But even within a specific domain capacity is, in fact, decision specific. A person may have capacity to make a will (testamentary capacity), but not capacity to enter into a complex contract or engage in mediation.

This brings us to the term “legal capacity”. This is generally accepted to mean that the person has ability to:

• make a binding legal agreement;
• sue another person; and
• make other decisions of a legal nature (Legal Aid Queensland)

It can be seen, therefore, that for a person to engage in mediation, they must possess legal capacity. Finkel and Linden note that a mediator should have sufficient information and understanding of mental capacity “that is commensurate with the risk of her/his judgement being inappropriate.”

To ensure this they suggest that the mediator should be satisfied that

• the party [is] receiving information?
• the party [is] integrating that information in a way that reflects a rational, replicable process? [and that]
• this person [can] communicate the results?

(Arthur L Finkel and Jon Linden, ‘Determining “Legal Capacity” in Mediation’ May 2003)

It is suggested therefore that should there be concerns about the capacity of a person to engage in mediation the mediator could perhaps ask themselves the following questions:-

• On what am I basing my view that capacity is in question?
• Should the mediation commence, be adjourned or even cease?
• What are the implications for this decision?
• What are my professional responsibilities in this regard?
• What are the guidelines that guide my decision? and
• What are the implications of “getting it wrong”?

We cannot deny that we have an ageing population and as we age we do have an increased risk of developing some form of cognitive impairment. Equally we must expect that older people may well form part of our practice. Are we, therefore, ready to accept the challenges occasioned by these changes?

About the author: Sue Field is an Adjunct Associate Professor at Western Sydney University where for the past fourteen years she has taught elder law to undergraduate law students. Sue is also an Adjunct Associate Professor at Charles Sturt University, a Lead Investigator with the Cognitive Decline Partnership Centre, a Research Fellow at the University of Western Australia, a Director of the Australian Centre for Elder Law Pty Ltd and a Distinguished Fellow at the Canadian Centre for Elder Law. Sue is co-editor of the Elder Law Review, the only refereed elder law journal in Australia. In conjunction with Professor Carolyn Sappideen and Karen Williams Sue has co-edited a recently released text on Elder Law and is working on a co-authored text on elder law for the layperson. Sue has published widely and presented at many international and national events.

Sue is a member of the NSW Law Society Committees on Elder Law, Capacity and Succession, and Rural Issues and was on the Advisory Committee for the Australian Law Reform Commission Inquiry into Elder Abuse.

Sue also learns the cello.

This post by Haley Weir originally appeared on the Kluwer Mediation Blog

This is a summary of a research paper presented at the ADRRN Roundtable convened at the University of the Sunshine Coast in December 2018; comments made by ADRRN colleagues have been taken into account in this summary.  The research paper reports on one component of a much larger research project in which a systematic appraisal is being conducted of a selection of articles describing empirical studies of mediation

[Vektor ID 563739124/Shutterstock.com]

When I am reading an article about an empirical study of mediation effectiveness, I want to know whether I should incorporate into my mediation practice the techniques, strategies, and behaviours that are described in the article as having been effective.  In other words, how transferable are they?

When appraising the transferability of the results of an empirical study in any field of research, two key factors are taken into account: the study’s identification of its broad sample population, and its selection of study subjects from that population.  Where neither the sample population nor the selected study subjects are appropriately representative, there is a significant reduction in the external validity of the study’s results.  In this context, it is important to establish what might be a representative mediation population.

It has been said that mediation can ‘… play a role in virtually every significant area of social conflict’ (K. Kressel, The Mediation of Conflict: Context, Cognition, and Practice, in: P. T. Coleman, M. Deutsch, and E. C. Marcus (Eds), The Handbook of Conflict Resolution: Theory and Practice (3^rdEdition, Jossey-Bass, USA, 2014), p 817).  This suggests that a representative mediation population is the broad diverse community, all of whom are actual and potential mediation participants.  When mediation researchers select people to participate in their studies, it can be assumed that they are choosing subjects who represent that broad diverse community. Yet analysis of the selected mediation literature suggests that this is not the case: mediation researchers rarely mention population representativeness, and appear to choose their study subjects from a very limited range of groups (or programs):

• Mediator and non-mediator participants in some court-connected mediation programs;
• Mediator and non-mediator participants in some structured community mediation programs;
• Mediator and non-mediator participants in some programsdesigned for family/custody disputes; and
• University students (where the studies are of simulated mediation).

As the list shows, subject diversity in mediation research is restricted by the research’s own limited focus on a selection of government funded services and programs, as well as services provided through public institutions.  This focus leaves other services, and participants, largely unexamined.

The lack of representative diversity in study subjects applies to the mediator as well as non-mediator participants, and it is only one of many issues claimed by mediation researchers to affect how they are able to do their work.

The issues that have been described can be categorised as follows:

• Obstacles (preventing certain empirical research from being undertaken): the lack of access to adequate funding; ethical restrictions that prevent rigorous examination of mediation practices and thus limit what is known about mediation,potentially disadvantaging future mediation clients;
• Impediments(making it difficult to conduct certain empirical research): the nature of the mediation process itself (including confidentiality restrictions); the increasing incidence of mediation research being conducted in law schools where there is limited social research experience and expertise; the lack of consistent research methodologies; definitional problems (e.g., the meaning of “mediation” itself, the variety of models of practice, and the various measures of mediation effectiveness); external influences on research purpose and design (such as interest groups, funders, and researcher affiliations); and reputational concerns of potential subject mediators (i.e., if they participate in a particular study, what might be reported about them?);
• Recurrent flawsin research design have been noted to include: heavy reliance on data collection from mediator and non-mediator self-reports; and the inherent tension between funder preferences for relatively cheap/quick studies, and protection of research rigour; and,
• Persistent gapswhere little is known about: private mediation; mediation outcomes other than settlement;individual mediator behaviours, or microskills; how mediator values and preferences influence what they say and do in mediation; systemic issues that might influence the mediation process, and what mediators say and do within it; and the lack of comparative studies (i.e., investigations of similar mediator approaches in different contexts, or of different mediator approaches in the same context).

Other potential problems that are not mentioned often in the mediation literature include:

• How the researcher’s own preferences and experience might influence:
  • Research design,
  • Choice of data collection methodologies,
  • Method of data analysis, and
  • Study subjects’ responses;
• The lack of gender, race, ethnic, and socio-economic differentiation in the selection of study subjects, in the collection of data from and about research subjects, and in the analysis of that same data. In addition, not enough is known about the demographic differences between mediators in any context, nor about how those differences might affect what mediators say and do, and affect the responses and behaviours of non-mediator participants.

It has been observed that, in all fields, there is pressure on academics to publish as frequently as possible, with their research ability being assessed by the numberof published items rather than by the qualityof reported studies.  In the mediation field, this issue is compounded by the relative lack of specialist mediation publications, and the lack of sufficient mediation knowledge in other publication areas where mediation researchers do publish (e.g., law journals, business journals, social science journals); the latter can result in valuable articles not being published at all, and/or their value not being recognised.  Also, it has been suggested that publishers give preference to articles that confirm mediation’s outcome effectiveness.

Any of the above issues can influence the context and setting of an empirical study of mediation, as well as the research design and its scope, the nature of the research data that is collected, the methods used to collect the data, and the focus of the data analysis.

In particular, many of the issues are likely to influence the researcher’s access to appropriately representative populations, and, ultimately, the transferability of the study findings, and their relevance to practicing mediators.  It is important for the future practice and development of mediation that some of these issues are openly acknowledged and addressed.

The ADRRN is a valuable, respectful, and friendly forum in which mediation researchers can discuss their work with their peers.  It is also a forum in which mediation researchers can consider the above issues.  For example:

• What are the options for improving mediation researchers’ understanding about social science research methodologies?
• How to identify realistic and creative research funding and support that enables:
  • Access to a broader and more representative population of subjects for empirical research;
  • Access to diverse mediation settings and diverse research subjects;
  • Empirical investigations that are more complex and innovative than evaluations of mediation outcomes; and
• How to encourage the dissemination of, and access to, mediation research, without being guided solely by results and findings?

The holiday season provides opportunities to spend time with loved ones, to break the ordinary routine, and have some fun. It can also be a stressful time for many people – family conflict can bubble to the surface. It is well known that family law services experience their busiest time over the December/January/February period. Tensions might arise around who will spend time with who and when, unresolved relationship rifts can be brought to a head, people who feel an obligation to attend events together might find themselves facing off, expectations can vary between couples or extended family relationships, disappointments might be voiced in the melting pot of spending intensive time together. The purpose of exchanging gifts as an expression of love can be undermined by the stressful process of shopping and unclear expectations about how much to spend, what someone would like, and navigating the hordes of other people engaged in the same mad pre-Christmas rush. Rebecca Huntley recently observed that:

“Interestingly I haven’t done much research on how Australians feel about Christmas, because it’s often fruitless to conduct focus groups past December 1. Everyone is too busy and cranky to turn up anywhere that isn’t offering free alcohol.”

Without empirical evidence, holiday conflict can be explained through the foundational assumptions of the conflict resolution field. In essence, conflict is an ordinary part of human interaction, and intense periods of interaction inevitably bring conflict.

So why bring all of this up, am I being a Grinch ?

Hopefully not. One of the best ways to equip ourselves to be better conflict managers is to expect conflict and respond to it mindfully. If our ordinary way of dealing with conflict with someone we love, or to whom we are tied by family, is to avoid or accommodate, then perhaps reimagining whether that approach is sustainable over intense periods of sharing time together can help us to plan to respond differently and constructively. Many of us find it much easier to implement our conflict management training when dealing with colleagues, clients, other professionals, service providers, or authorities than we do with people for whom we care deeply. It is much easier to moderate our behaviour when supporting others to deal with their conflict than it is when dealing with our own. Investing extra effort in managing our conflict interactions with the people we are closest to is challenging and absolutely worthwhile. We talk the talk of “conflict is inevitable, normal, and should be expected”, so let’s walk the walk and expect it. Let’s hold ourselves to high standards, be kind to ourselves and others, and expect not to resolve conflict perfectly all the time. It’s just part of the messy, ordinary, inevitable, beautiful chaos of human interaction and community. As people committed to a better way of managing conflict, we have to accept imperfection and commit to doing better next time.

Here are a few gift ideas too, which may help spread some cheery conflict management competence and enthusiasm (disclaimer – I have not actually used or bought any of these yet):

1. For children Kinder to grade 6 there is a book called Trouble at the Watering Hole 
2. Sharon Sutherland’s Gift Ideas to Inspire Conflict Resolution include collaborative games and board games for mediators.
3. Monique McKay has put together (back in 2011) a suggested playlist to give to the mediator in your life.

Happy holidays to you from the Australasian Dispute Resolution Research Network.

This post celebrates the second day of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account.

We live posted this blog today.

John will be presenting a paper in the topic of this blog post today.

Party self-determination has traditionally been valued as a core fundamental element of mediation.  Under this vision, it was assumed that parties would be the principal actors in mediations to resolve their disputes, that they would actively and directly participate in communication and negotiation, that they would choose and control the substantive norms to guide the process of their decision making, that they would create the options for settlement and that they would control the final decision as to whether or not to settle the dispute.[1]

Mediation in chains: photo courtesy Jev55 CC BY-NC 2.0

As mediation has developed and become integrated with the traditional justice system as a dispute resolution option, the emphasis on self-determination has diminished somewhat in the context of conversations around what the law would do and how the dispute would be resolved at court.  This is an understandable response because, as mediation theory recognizes, one of the significant empowering elements of any mediation is to calculate the best alternative to a negotiated answer (BATNA).  In the context of a court-connected mediation that consideration obviously includes the possibility that if the dispute is not resolved by agreement, it will be determined by a court, a fact of life which cannot be ignored.

This trend of diminishing emphasis on self-determination prompted Harvard Professor Nancy Welsh to question whether we should consider redefining the notion of self-determination and to recognize that evaluative mediation is becoming more accepted in the court-connected context where, inevitably, lawyers will have a greater role in advising their clients and recommending a settlement that aligns with what the courts would order if the dispute is not resolved at mediation.  Welsh’s solution was to suggest that the effects of what she calls “muscle mediation”[2] might be ameliorated if we modified the current existing presumptions about the finality of mediation and imposed a mandatory three day “cooling off” period during which any of the mediating parties would be free to opt out of the mediation agreement.

Empirical evidence gathered in the form of personal interviews with litigation lawyers in New South Wales in 2016-2017 has confirmed the existence of a trend away from disputant self-determination in court-connected mediation and a tendency for lawyers to take control of mediation sessions and to discourage disputant participation and, in some cases, to refuse to allow their clients to speak at all during mediation sessions.

It is also evidenced by the return of lawyers to mediation events, the persistence in using adversarial language and terminology in mediations and the preference among lawyers for the selection of retired judges or senior counsel as mediators in their clients’ disputes.  The research revealed that it is quite common for disputing parties to attend mediation events accompanied by both solicitors and barristers and to be prepared to say nothing unless questioned by their own legal representatives.

In a forum which is designed to focus attention on parties’ joint interests and consensus building, it is common for lawyers to “open” by reading “position statements” which, contrary to the spirit of mediation, traverse the legal issues, to declare their clients’ superior positions and then go on to announce magnanimously that they are “here today to compromise and to settle the case.”

Unsurprisingly, in mediations where this is a typical scenario, the parties then separate into break-off rooms and the mediation continues as a shuttle mediation where negotiations proceed on a zero-dollar basis and end up somewhere in the middle.

The research revealed that these behaviours are prompted by lawyer persistence in clinging to a defensive posture where nothing is given away and no concessions are made except for a pre-considered and planned purpose.

As mediator respondents to the research pointed out, this runs contrary to the principles of integrative bargaining and consensus building which are valued by mediation theory.  It does nothing to  “…allow a full and frank discussion about what is going on for the parties.” [3]

The research also revealed that lawyers give very little thought to the choice of a mediator, very little advice to their clients about what to expect in mediation or how to prepare for it, and little or no thought to anything which might be regarded as extraneous to the legal case (the non-legal factors).[4]  Mediation is therefore presented to the disputant in a rather negative way as being a last ditch effort to achieve an outcome without having to go to the trouble and expense of actually proving the case in court (or the risk of having it proved against you, as the case may be).

The problem for mediation advocates is that, whether we like it or not, lawyers will continue to have a dominant role in advising their clients about the wisdom of court-connected mediation, its forms and processes, its benefits and shortcomings. They are gatekeepers[5] and their views of mediation will continue to influence consumers of legal services whose perceptions of mediation will be viewed through the prism of their lawyers’ advice.

We know from the researches of sociology that lawyer attitudes about disputant participation play a substantial role in determining both the attitudes of their clients to mediation and the likelihood of its success.  In 1986, Carnevale and Isen established by experiment that research respondents encouraged by “positive affect” responded more favourably to bilateral negotiation, achieved better outcomes and were more committed to outcomes than were those who were not encouraged or who were primed with “negative affect.”[6]

If lawyers speak indifferently, or even disparagingly, of mediation then, even when it is ordered by a court or mandated by regulation, the mediation experience is likely to be diminished for the disputants.  If, on the other hand, lawyers speak positively about mediation and advocate its integrative nature and expansive opportunities for dispute resolution, then the process and the disputants’ mediation experience will be enhanced.

The challenge for us as mediators is to encourage co-operative behaviours and to honour the value of disputant dialogue and active participation in mediations.  The challenge for us as educators is to  ensure that there is ongoing access to appropriate educational opportunities for lawyers who are in litigation practice.  If we are not able to achieve those objectives, court-connected mediation will to a large extent remain mediation in chains.

[1] N Welsh The Thinning Vision of Self-Determination in Court-connected Mediation: the Inevitable Price of Institutionalization? 6 Harv Negot L Rev 1 2001

[2] Ibid p 7

[3] R33 mediator respondent to the research

[4] S Hardy and O Rundle Mediation for Lawyers (CCH 2010) 117

[5] J Dewar Family Law and its Discontents (2000) 14 International Jnl of Law, Policy and the Family 59 at 76; G Dimopoulos Gateways, Gatekeepers or Guiding Hands: The relationship between Family Relationship Centres and legal practitioners in court management and court process (2010) 24 Australian Journal of Family Law 176; F Donohue Lawyers as Gatekeepers: Mediation and the ADR Processing of Environmental Disputes  (Dissertation in partial fulfilment for the degree of PhD, University of California, 1997)

[6] P Carnevale and A Isen The Influence of Positive Affect and Visual Access on the Discovery of Integrative Solutions in Bilateral Negotiation Organizational Behaviour and Human Decision Processes 37, I- 13 (1986) at p 7

by Associate Professor Alexandra Crampton, Marquette University

This post celebrates the start of our 7th annual Australian Dispute Resolute Research Network meeting today at the Faculty of Law, University of the Sunshine Coast. Please follow the papers at the workshop on Twitter via the hashtag #ADRRN18 and via our Twitter account. Alex will be presenting this paper today.

In the U.S., most family law is determined at the level of each state.

ADR was first used in family court for marital reconciliation (Salem 2009). By the 1960s, several states provided such counseling through court services, and some programs became mandatory (Foster 1966).

During the 1970s, as law reform introduced “no-fault,” divorce, conciliation services transitioned to mediation services for resolving child custody disputes (Salem 2009). Much of the focus was on reducing acrimony between parties by limiting the adversarial approach of formal legal procedures (Murphy and Singer 2015).

In the US, most empirical research on child custody mediation has come from studies of court-based divorce mediation services (e.g. Kelly 2004). The focus was on comparing mediation with court. Family court mediation scholarship continues to center on divorce mediation (e.g. Shaw 2010) The resulting literature is bifurcated between findings of positive results (Emery et. al. 2001) and criticism (Murphy and Singer 2015).

As mediation became mandatory, many critics left the field. Since the 1990s, studies have shifted from ADR/court comparison to identifying best practices. The most comprehensive recent study was a 2013 court ADR study in Maryland.

Current, empirical research into child custody mediation in the US is rare. ADR studies involving direct observation, recording, and interaction with mediators and parents are even more scarce.

I began an ethnographic study of one family court mediation program in a large Midwestern, metropolitan (population 1.7 million) area in 2011. There are five family court commissioners and ten commissioners who conduct hearings regarding divorce, paternity actions, child custody disputes, child support enforcement, and domestic violence (as a civil action). There are about 11,000 new court filings each year, and about 800 cases of parental disputes that are referred to mediation. The agreement rate is about 50-55%. The mandatory mediation program fulfills a state law requiring that parents who file disputes regarding legal decision-making or child residence must first attend mediation before continuing in the court process. Exceptions can be determined by a judge or court commissioner, such as in family violence cases. The next step in the court process is appointment of a Guardian Ad Litem (an attorney) who makes an investigation and recommendation to the court.

I naively began my research questions where the empirical data largely had left off, which includes a presumption that mediation is a court trial alternative. My research design sustained this presumption, focusing on direct observation and recording of individual mediation sessions as separate from court process.

My research sample has forty-two mediation cases, thirty-six parent interviews (which includes fifteen pairs of parents), and ten mediator interviews. However, it was soon evident that my initial focus on mediation cases and case outcomes reflected a professional perspective, in which mediation is distinct from the overall legal process. Parents, meanwhile, were experiencing mediation more inchoately as it became part of their lives—and typically as a mandatory process embedded within a legal decision that one party had requested the court to make. Over time, the work has become more ethnographic, requiring greater immersion within court hearings, ongoing conversation with professionals and informal follow up with parents.

John Dewar  noted back in 1998 that family law is quite chaotic. My analysis has turned to sorting through the chaos of mediation as embedded within family law, which, in turn, is embedded within an even larger chaos of parenting and family. This was once famously described in Zorba the Greek as “the full catastrophe.”

Reflecting back to the original goal of the family court as a I find that mediation not only brings parents in conflict together but also brings them into a court intervention that neither party sought and which therefore can bring mixed results.

The old ADR debates centered on benefits and risks as if mediation itself was either a generally good intervention or not. And this evaluation was generally within comparison with court-based decision-making as if the court trial was a common option (e.g. Pearson 1982).

Today, however, the court trial is kept from parents, in part by using mediation as a “speed bump.” In general, family court mediation persists as a conciliation service, attempting to shift parties from an adversarial stance to one of cooperation or at least parallel parenting. Although parents are no longer encouraged to marry or stay married, they are expected to share parenting, which brings them back together.

The most surprising outcome of this research, then, has been how mediation brings parties back to a nuclear family form. The difference from the 1960s is that parents are mandated to mediation rather than marital conciliation – and the similarity is a concern for child welfare (written in law as the child’s best interests).

This pressure is met variably by parents who also vary in how savvy they are about their options for refusal. This means that family court mediation is not inherently empowering or coercive but rather depends upon the goals and interests of parents as they engage in conflict through a legal case that has been diverted to mediation.

My current work is to update the old research frame of evaluating mediation vs. court to better analyze the implications of ADR as embedded within family law, family court process, and the “full catastrophe” of family.

Alexandra Crampton is an Associate Professor in the Department of Social and Cultural Sciences Sciences at Marquette University in Milwaukee, Wisconsin. She holds a Masters degree in Social Work and a joint Ph.D. in Social Work and Anthropology from the University of Michigan. Her past research was on elder mediation in Ghana and the US, and her current research is on family court mediation in the United States. She was a Visiting Research Associate in the Murdoch School of Law during June-August 2018.

Contact information: alexandra.crampton@marquette.edu