Alternative dispute resolution (ADR) is the way of the future given the cost, delays and personal toll that litigation through the courts can take on individuals. Civil law disputants have and continue to benefit from ADR by resolving their conflict via facilitated dialogue. Conversely, when disputants take the litigation road their often subjective issues are objectively dealt with and the outcome does little to repair or enhance the parties’ relationship. Why is this important? Well, humans are social creatures. We survive and thrive because of our relationships with others. If a civil dispute involves individuals who know each other, either personally or through business dealings, then establishing understanding and peacemaking is vital to their future interactions. So, the question is: can ADR take the resolution of disputes a step further – to heal the parties involved? Restorative justice (RJ) offers a way to do that.

The RJ principles of encounter, respect, open dialogue and agreement, through independent facilitation, have been applied in criminal justice mediation and conferencing for some time. RJ addresses the needs of those involved, in a way that is meaningful to them. It gives individuals a ‘voice’, so the harms caused by wrongdoing, which can be debilitating and life altering, can be expressed. The transformation that can occur in RJ mediation often results in changed attitudes and material and symbolic reparation.

I am about to embark on a study of the mechanisms for dealing with civilian complaints against police in Australia and elsewhere. I want to find out whether there is a place for RJ in the resolution of this type of conflict which is civil in nature but sits in a criminal justice context. Given that the police interact with the community in the course of their law enforcement duties it is not surprising that disputes occur and that these can result in large numbers of complaints. But the way these complaints are handled (i.e. against police but managed by police) may not lead to the restoration of what is a very important relationship – the police and in the community. An initial scoping exercise has revealed that in most parts of the world, complaints against police are dealt with via an internal process. However, there are a growing number of international examples of RJ mediation being used to resolve these disputes. The expected outcome of my research is a best practice model for the resolution of civilian complaints against the police, which could be implemented in Australia and elsewhere, including guidelines for successful implementation.

An invitation to submit a paper for the 7th ADRRN Roundtable on the Sunshine Coast in December this year was posted on our blog in April.  The function and aims of Roundtable are described in the invitation as:

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback are provided to the presenter.

I have been fortunate to attend 5 of the 6 Roundtables to date. There are many positive outcomes of the Roundtables, not least of which is the opportunity to meet and engage with people of like interest who are dedicated to the principles and objectives of ADR. The atmosphere is informal and decidedly collegial. Of critical importance is the opportunity to present a paper for supportive and constructive feedback. Papers are expected to be works in progress and not finished products already accepted for publication. In this respect, the Roundtable presents a golden opportunity to gain input from other scholars in a non-competitive and pointedly helpful environment. Those who give feedback are expected to do so respectfully and constructively. It is a particularly helpful opportunity and environment for HDR students, many of whom have attended Roundtables to date.

I can give you an example. I had put together a paper about the meaning of impartiality in mediation based upon interviews with mediators. I thought it was interesting and useful but it was rejected when submitted to a peer reviewed journal. I thought “don’t they get it?” and then “what do I need to do to improve it?” Apart from rethinking the choice of journal, I became aware that the paper lacked an explicit theoretical framework. I presented the paper at the Roundtable. I was able to ask questions about how it could be improved and in particular what theoretical framework I could use to ground the data I had collected. I was given excellent feedback. A reviewer suggested that to them the central issue and possible framework was justice in mediation – how obvious! Yet I had been too close to the material to see this perspective. In addition, I was able to hear and gather ideas from wider discussions which helped me place my work within other current themes considered by researchers. I reviewed and rewrote my paper. I then presented it at the Non-Adversarial Justice Conference in 2017 and became eligible to submit it to the Journal of Judicial Administration. It was accepted:

Susan Douglas, ‘Constructions of Impartiality in Mediation’ (2017) 26 Journal of Judicial Administration 232.

A researcher’s work life can mean long hours of inward focus – reading, thinking, reading, thinking, talking to one’s self. A HDR student’s lot can feel isolating and daunting.  I have always come away from the Roundtables feeling invigorated by the discussions and nurtured by the collegial atmosphere. I encourage you to send in a proposal for a paper. See details below and …. flowers from Dunedin where the 2017 Rountable was hosted by Otago University.

Deadline for paper proposals: 13 July 2018

(300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification of acceptance: 31 July 2018

Draft (full) papers + blog post due: 30 October 2018 (to send to participants early Nov.)

For further information, please contact:

Conference Convenors and 2018 Network Presidents:

Sue Douglas and Lola Akin Ojelabi via adrresearchnetwork@gmail.com(monitored twice weekly)

This article reports on a side-issue that has arisen within a much larger research project. A separate part of the large research project was presented to the ADRRN at its last Round Table in December 2017.

Empathy and rapport are complex aspects of human interaction, and there is a significant literature on them dating back at least to Alfred Adler in the 1920s.  The literature occurs principally in the research fields that include sociology, linguistics, neuroscience, social psychology, and cognitive psychology.  In essence, empathy is accepted as being able to identify with another person, to understand what it might be like to be that person, while simultaneously retaining your own sense of self and maintaining your own sense of emotional control.  It has been established that empathy and rapport are essential prerequisites for building trust and maintaining effective communication, and that establishing empathy will increase a person’s sense of satisfaction with business services.  Empathy has been said to be underpinned by what are called the “rules of communicative competence” by which individuals calculate the appropriate levels for relating to others depending upon cultural and personal influences at any given time.  Where one person has high levels of communicative competence, in any given situation, they remain sufficiently aware of the presence of others that their behavioural and linguistic preferences will enable them to assume an appropriate level of relationship with those other people.  These rules of communicative competence have since become better known as the “Rules of Rapport”

It is widely accepted that empathy and rapport are different states.  Research in other fields has shown that empathy plays an important role in developing rapport, rapport plays an important role in developing trust, and trust plays an important role in creating a cooperative atmosphere in which mutually beneficial outcomes can be crafted.  However, understanding and acknowledgement of the differentiations in that sequence is rare in the mediation literature, as are explanations of how the researchers intend any of the terms to be interpreted in the context of their study.

Given what is known about empathy and rapport, it is a pity that the mediation literature includes very little about what mediators actually say and do to establish an empathic relationship with and between the disputants in any particular mediation; nor what the mediators say and do that enables that empathy to contribute to building rapport and trust.  For example, researchers often report a general sense of what mediators say (e.g. the mediator described the mediation process), or of what the mediators do (e.g., the mediator created an atmosphere suitable for negotiation), yet they do not report what the subject mediator actually said or did: when the mediator described the mediation process, did they use formal or less formal language, did they speak to the disputants jointly or separately (or both), what was the mediator’s tone of voice and demeanour (It has been reported elsewhere that actual demeanour is important in the development of empathy and rapport)?  What did the mediator say and do that created a sense of the atmosphere being suitable for negotiation?

There is a reasonable amount of research outside the field of mediation that has reported on how empathy and rapport are established and the range of effects they can have (e.g., improving witness recollection, and increasing engagement in and commitment to business relationships).  It is likely that, because of mediation’s essential links to conflict, empirical studies of mediators and of mediation would be a significant contribution to knowledge about empathy, rapport and trust.  Well-designed, rigorous empirical studies could investigate: how can empathy, rapport, and trust be established in situations of conflict; how do the indicators of empathy, rapport, and trust differ in the context of conflict; how do the effects of empathy, rapport, and trust differ in the context of mediation generally (compared with other contexts); how do they differ between mediations conducted in different contexts?

How much does the establishment of empathy, and the building of rapport, influence the often-reported mediator experience of disputants and other participants reporting high levels of satisfaction with the mediation process despite not having achieved any form of settlement?

Finally, during all the emphasis on the mediator’s role in establishing empathy and building rapport, have we forgotten a different perspective: how often do the disputants seek to establish an empathic relationship with the mediator?

Some Readings and Sources

1. Adler, Understanding Human Nature (Greenburg, New York, USA, 1927).
2. J. Clark, ‘Empathy and Alfred Adler: An Integral Perspective’ (2016) 72(4) The Journal of Individual Psychology.
3. Lietz, K. E. Gerdes, F. Sun, J. M. Geiger, M. A. Wagaman, and E. A. Segal, ‘The Empathy Assessment Index (EAI): A Confirmatory Factor Analysis of a Multidimensional Model of Empathy’ (2011) 2(2) Journal of the Society for Social Work and Research.
4. Madsen, Therapeutic Jurisprudence in Investigative Interviews: the effects of a humanitarian rapport-oriented and a dominant non-rapport oriented approach on adult’s memory performance and psychological well-being, PhD Thesis, Department of Psychology and Logopedics, Abo Akademi University, Finland, 2017.
5. Davis, L. Jiang, P. Williams, A. Drolet, and B. J. Gibbs, ‘Predisposing Customers to be More Satisfied by Inducing Empathy in Them’ (2017) 58(3) Cornell Hospitality Quarterly.
6. T. Lakoff, Stylistic Strategies within a Grammar of Style (Annals of the New York Academy of Sciences, USA, 1979).
7. Tannen, ‘Framing and Face: the Relevance of the Presentation of Self to Linguistic Discourse Analysis’ (2009) 72(4) Social Psychology Quarterly.
8. Zaki, ‘Empathy: A Motivated Account’ (2014) 140(6) Psychological Bulletin.
9. Holmberg and K. Madsen, ‘Rapport Operationalized as a Humanitarian Interview in Investigative Interview Settings’ (2014) 21(4) Psychiatry, Psychology, and Law.
10. P Vallano, J. R. Evans, N. S. Compo, and J. M. Kieckhaefer, ‘Rapport-Building During Witness and Suspect Interviews: A Survey of Law Enforcement’ (2015) 29 Applied Cognitive Psychology.
11. Holmberg and K. Madsen, ‘Rapport Operationalized as a Humanitarian Interview in Investigative Interview Settings’ (2014) 21(4) Psychiatry, Psychology, and Law.

7th ADR RESEARCH NETWORK ROUNDTABLE

MONDAY 3^rd and TUESDAY 4th DECEMBER 2018

UNIVERSITY OF THE SUNSHINE COAST, MAROOCHYDORE, QUEENSLAND

Call for Paper Proposals

The Australasian Dispute Resolution Research Network is pleased to be hosting its 7th annual research roundtable on 3-4 December 2018.

The roundtables are designed to encourage a collaborative and supportive research environment in which papers are work-shopped and discussed in detail. Papers in draft form are distributed one month ahead of time to participants, to enable thoughtful and constructive quality feedback.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

There will be a limit to the number of papers able to be part of the roundtable discussions. A panel will select roundtable papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

• Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
• The roundtable will include a spread of participants across stages of career; and
• A well-balanced range of work will be presented at the roundtable to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

In 2018 we will also be asking you to draft a short (1,000 words max) blog post about your paper prior to the roundtable. On the day, speakers are given up to 30 minutes for presentation, with 30 minutes for feedback and discussion. Two primary commentators will be appointed for each paper.

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Deadline for paper proposals: 13 July 2018

(300 word maximum plus short bio, to adrresearchnetwork@gmail.com)

Date for notification of acceptance: 31 July 2018

Draft (full) papers + blog post due: 30 October 2018 (to send to participants early Nov.)

For further information, please contact:

Conference Convenors and 2018 Network Presidents:

Sue Douglas and Lola Akin Ojelabi via adrresearchnetwork@gmail.com(monitored twice weekly)

About the Australasian Dispute Resolution Research Network

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact blog editor Becky Batagol, at Becky.Batagol@monash.edu.

Membership of Australasian Dispute Resolution Research Network

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework.

The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook “ADR Research Network” and Twitter, but engagement on these platforms is not necessary to keep track of blog activity.

“Over the Horizon: Expanding the Dispute Resolution Landscape”

Celebrating 25 years of NMC

The Conference Design Committee is focused on providing a landmark conference that will interest equally the seasoned professionals as well as the new comers, and has already flagged its lean towards innovation by suggesting some new integrated conference streams devoted to: innovation in the sector, indigenous issues, Restorative Justice, and research and education.  These will complement the traditional areas and topics.  The Committee is keen to see all areas of the sector being welcomed to the conference, including lawyers, conciliators, academics, and facilitators.

Members of the Conference Design Committee come from all around Australia, and include some of Australia’s top DR thinkers; there are people who have worked on previous NMC events, and people who are new to the task.  Each brings their own expertise to contribute to the design and population of the conference.  In addition to designing the conference program, they are overseeing preparation of the Call for Papers, which is scheduled for distribution in July this year, and have agreed to apply their own rigour to the final selection of presentations.  Consideration is also being given to ensuring the conference program and format can meet the needs and expectations of DR academics.

The Committee is intent on designing a conference that:

• reinvigorates this important DR event
• maintains a balance between practice and theory/research; between interactive and didactic presentation formats; and between formal and informal styles of presentation
• takes into account the application of DR skills in areas that are not focused on disputes and conflict

All power to the Conference Design Committee.

NMC Ltd is a company with statutory responsibilities.  A Board of Directors has been appointed, on a voluntary basis, to oversee this aspect of the conference, and is undertaking a comprehensive review of the company’s governance, constitution, protocols, and purpose.  Although this is very much a “behind the scenes” activity, it is pivotal to NMC Ltd’s ongoing viability.  Thank you to the Board of Directors, and, in particular, to Professor Laurence Boulle AM for Chairing the Board.

Conference Logistics is the professional conference organiser for NMC2019, and they are providing valuable administrative and logistical support for both the Conference Design Committee and NMC Ltd’s Board of Directors.  Their staff are currently working on a conference design/logo that celebrates the silver anniversary, and on developing a dedicated website that will enable registration for the automatic receipt of email updates in the lead-up to NMC2019.

In summary, the Conference Design Committee is already focusing on attracting, and welcoming, all areas of the sector; ensuring that DR research is an integral part of the package; and taking an innovative approach to the design and content of what is already shaping up to be a great event.

We may have been late out of the blocks, but you can already smell the excitement.

[illustration copyright 2018 ABoyle]

This post has adopted from a presentation given at the Civil Justice Forum 2018 hosted by RMIT by Nussen Ainsworth, Professor John Zeleznikow and Colin Rule.

(Photo: Colin Rule skyping from California USA into the ADR lecture in Melbourne Australia.)

Introduction

In 2017 the Alternative Dispute Resolution unit at the Victoria University Law School partnered with Tyler technologies (formally Modria) to integrate Online Dispute Resolution into the unit as a key form of assessment. The Tyler/Modria platform used in the pilot is the one being used in the USA and other countries for court/government/commercial purposes (https://www.tylertech.com/solutions-products/modria). It has not been designed for student assessment

All students were required to participate in an ODR simulation in groups of 3 and primarily provide legal advice re the content of the simulation together with a written report. This blog post will discuss the process of developing an ODR simulation and integrating it into the law degree curriculum.  We will also consider assessing student performance. This post will also outline some of the opportunities and challenges for teaching ODR that were identified in conducting the pilot and also provides ODR insights from law students taking the course.

ODR Development

Online Dispute Resolution (ODR) is a concept developed circa 1996. At that time the focus was upon the resolution of disputes that originated online.  The prevailing belief was that those whose disputes that originated on the internet would find little difficulty in attempting to resolve these disputes via the World Wide Web. For most of the past twenty years, ODR research has focused upon electronic commerce disputes. Only recently, has ODR focused upon non-financial disputes and disputes that do not originate online.

Access to Justice Review (VIC, 2016) Recommendation 5.2

The Access to Justice report was commissioned by the Victorian Government in October 2015. The aim of the review was to improve access to justice for Victorians. The review was released in October 2016 with 60 recommendations.

Recommendation 5.2 was for the development of an online system for the resolution for small civil claims at VCAT. The Government agreed to implement this recommendation in May 2017.  The review recommends the following three-step process for introducing ODR into the Victorian Civil Justice System.

Step 1. establish an Online Dispute Resolution Advisory Panel with terms of reference to oversee the introduction and evaluation of an online dispute resolution system for small civil claims in Victoria and make recommendations about the possible future expansion of online dispute resolution to other jurisdictions in Victoria;

Step 2. provide pilot funding, and, subject to evaluation, ongoing funding, for the development and the implementation of a new online system for the resolution of small civil claims in Victoria; and

Step 3. introduce legislation to facilitate the use of the new online system for the resolution of small civil claims.

The British Columbia Civil Resolution Tribunal (https://civilresolutionbc.ca/)  acts in a similar manner.

ODR, Artificial Intelligence And Self Represented Litigants

Zeleznikow has examined the issue as to whether potential litigants can receive useful support from intelligent online dispute resolutions[1]. He claimed that such systems can be particularly useful for self-represented litigants. The SRLs benefit not only from obtaining useful advice, but also becoming better educated about the procedures and potential outcomes for issues in dispute. He noted that most ODR systems provide exactly one of either BATNA advice, support for trade-offs and facilitated communication. A truly useful Online Dispute Resolution system should be a hybrid of all three approaches. Further, Online Dispute Resolution should not be fully automated. As well as providing opportunities for communication, such systems should advise users of the relevant law, potential solutions and relevant trade-offs. These tools might be videos, relevant papers and books, past cases and links to useful websites. They can also be very useful in triaging disputes (e.g. immediately sending a case of domestic violence to court rather than allowing the parties to prolong physically acrimonious disputes) and act as a source of information collection (there is no need to expend a court official’s time recording demographic data).

The ADR Unit At VU

The ADR unit at VU College of Law and Justice was first delivered in 2015. The unit is a popular elective with approximately 120-140 students enrolled each year. Through a Technology Enhanced Learning Grant, a series of videos were developed which followed a case through mediation and arbitration. The videos are posted on YouTube (https://youtu.be/J2KLXAKfIL8). The unit received a blended learning grant in 2017. This grant was used to develop the ODR simulation component for the unit.

Unit Assessments

The unit has four assessments. Assessments 2-4 are group based.

1. Online multiple choice questions
2. ODR simulation and report
3. Letter of advice post the ADR process with the production of either a mediation deed of settlement or an arbitration award
4. Group presentation

ODR Added Benefits for Students

ODR has primarily been seen as the provision of ADR via technology. ODR integration into the ADR curriculum has the potential to offer many benefits for students. The ODR component requires students to develop their technological literacy. It also offers greater time and access flexibility for students.

Student Insights from the Integration of ODR in the ADR Unit

The following insights were adapted from observations, class discussion and student submissions in the ADR unit.

The Benefits of ODR

There are a number of benefits offered by the use of ODR where the parties use a text-based platform as compared to traditional mediation.

The benefits include:

• Everything is typed so there is no need to repeat what was said or take notes
• It can be more cost-effective; there is no requirement for travel, room hire or paper.
• Parties participate remotely which can address safety concerns and allow for a more comfortable environment.
• Less confrontational or emotional
• Keeps parties more focused on the issues

Limitation of ODR

The text-based ODR process comes with a number of limitations as compared to the traditional mediation process:

• The process is impersonal
• It can be hard for the parties to express empathy
• There is a greater likelihood of the parties becoming keyboard warriors
• Lack of non-verbal communication
• The parties require competency in digital literacy e.g. typing speed
• Asynchronous text communication can have delays between messages
• There can technical difficulties with both the hardware and software
• Parties can easily type messages in the wrong room
• The mediator has less control
• There needs to be confidentiality compliance with the typed record
• The process creates added complexity for non-English speakers

How can ODR be improved

A number of the limitation and issues with ODR can be addressed through:

• Intake session with the mediator to build rapport
• Introduction to the ODR video
• An ODR guide for parties that covers:
  • Etiquette
  • Online communication
  • Process
• Use of video chat in mediation
• Able to view joint and private rooms simultaneously
• Alerts for new messages
• ‘typing…’ icon when the other party is typing
• Indicator for when a message is sent, delivered and read
• Mobile device compatibility
• Mediator termination option

Opportunities and challenges for ODR in law school curriculum

Following the introduction of the ODR simulation integration pilot in a law school ADR unit, it is clear that this is an exciting area which has a number of opportunities and challenges to consider as it is further developed and delivered.

• Group work based assessment has a number of challenges and this is no different in an ODR context.
• ODR is an innovative and new area to which students are being exposed. This requires expectations to be managed.
• For the pilot, we used one fact scenario for all the groups. There is an opportunity for students to develop their own fact scenario for their group to use in the ODR simulation.
• The ODR simulation will be limited by the platform being used. The platform used in the pilot was not designed for student assessment. There was no ability to export the content of the simulation for assessment submission. For the pilot, students were required to copy the text from the platform and paste it into a word document which was then submitted. This a clunky and inefficient process.

Conclusion

With the exponential increasing use of technology in education, government, commerce and courts there is an urgent need for students to be aware of new technological trends.  Whilst the use of ODR in legal practice is still very limited, there is wide acceptance that this will no longer be the case in the coming decade.  Hence, as legal education leaders, we need to train our students in the potential and use of ODR.

But as well as training legal students for future practice, the course has benefits for teaching students about ADR.  It allows students to watch and most importantly engage in ADR simulations.  This opportunity is lost in the traditional teaching of ADR.

[1] Zeleznikow, J., 2017. Can Artificial Intelligence and Online Dispute Resolution enhance efficiency and effectiveness in Courts. International Journal for Court Administration, 8(2).

 This post has been contributed by Associate Professor Jill Howieson, University of Western Australia. 

Introduction

This article asks and answers some questions about the new UWA Mediation Clinic and the theory behind the practice, education, and research that the Clinic conducts.  Jill Howieson is the Director of the Mediation Clinic and Lisha van Reyk is the Research Co-ordinator and Manager.

What are we doing in mediation at the UWA Law School?

At UWA Law School, and in the newly opened UWA Mediation Clinic, we teach, practice and research in a mentalizing-based approach to mediation (MBT-M).  The pioneers of MBT, Professors Peter Fonagy and Anthony Bateman from University College London are working with us in this endeavour and will be running the inaugural MBT-M training course at UWA in July – you can see the flyer attached.

Can you tell me a little bit more about MBT-M?

What we have noticed is that there is a wide variety of ways that mediation is practised and taught around the world and a wide roster of activities that mediators undertake.  However, there is a lack of an underpinning theory of interpersonal process to mediation.  We believe that MBT (Mentalization-based Treatment) is an underpinning theory that could provide mediators with a framework through which to understand the behaviour of parties during a mediation process.

MBT is an internationally recognised, evidence-based approach to working with people experiencing substantial conflict, distress, and relationship breakdown. It was originally developed to treat individuals experiencing personality disorder and has demonstrated subsequent efficacy in the treatment of a range of psychological and relational disturbances.  There are a range of mentalization-based treatments, including for children (MBT-C), families (MBT-F) and adolescents (MBT-A), and for chaotic multi-problem youth, AMBIT (adolescent mentalization-based integrative treatment).  These models have been developed mainly by groups associated with the Anna Freud National Centre for Children and Families, of which Professor Peter Fonagy is the CEO, and the Duchess of Cambridge is the Patron.

In MBT-M with its focus on mentalizing, the mediator can utilise interventions that facilitate and deepen the communication process. In contrast, counterproductive party behaviour can be halted and transformed by specific, indicated interventions by the mediator.  We anticipate that this can bring greater nuance and rigour to the implementation of mediation models, management of inter-party conflict, and interpretation of mediation success.

What is Mentalizing?

The mentalizing concept refers to the capacity to understand one’s own and other’s behaviour based on intentional mental states, such as feelings, thoughts, beliefs, and desires.  Intentional means it means something (Allen, Fonagy & Bateman, 2008).  It is the capacity to consider what one’s own mental states and those of others might mean and how this might influence behaviour.

Mentalizing comes from our understanding of the neuroscience and the differences between the Mentalizing System or theory of mind (ToM) system in the brain and the Mirror Neuron System.  The Mirror Neuron system is a coherent large-scale network which supports automatic action understanding and imitation.  The Mentalizing System is a smaller, less developed system but concerns regions that are all activated when we infer intentions referred to mental states.

Mentalizing is one aspect of social cognition sets us apart from other primates. It underpins our ability to deceive, cooperate and empathise, and to read others’ body language. It also enables us to accurately anticipate other people’s behaviour, almost as if we had read their minds. In a negotiation or mediation context, the research is showing that the mentalizing system needs to be activated for people to negotiate well and to make meaningful decisions.

It sounds great.  What happens when our mentalizing system isn’t activated?

When we are in conflict, or highly emotionally aroused (for whatever reasons, i.e. relationship breakdown, stress, lawyers’ behaviour, intimidation of the court etc) our mentalizing system is deactivated.  Mentalizing goes ‘offline’: our mentalizing capacity is reduced and this means that we are unable to act in a way that makes sense to ourselves and others.  It impairs our ability to make good decisions, vision realistic alternative futures or be flexible about our options and better able to consider alternative ways of resolving disputes.   This is where MBT comes in.  MBT can assist people to re-engage their mentalizing capacity or repair impaired mentalizing.  It is an integrated psychotherapeutic treatment that derives from philosophy, psychology, psychiatry, and attachment theory and utilises what is referred to as the Mentalizing Stance.

The Mentalizing Stance…?

When our mentalizing goes offline, we become alienated from understanding of self and others, rigid in our behaviours (work in automatic mode) and get stuck in our positions (as opposed to interests).  To restore and maintain our mentalizing function, we need to be encouraged to attend to the mental states in ourselves, and the mental states of others.  Practitioners can assist in this restoration by taking what is referred to as a ‘mentalizing stance’.

The mentalizing stance aims to foster a spirit of inquiry into and clarification of the person’s mental states to bring mentalizing online.  The mentalizing stance involves using the inquiry mode when asking about another’s experience and exploring the full detail of the person’s unique situation and experience, rather than assuming it follows a general pattern.  It is a non-judgmental, non-expert and entails having patience and taking the time to identify differences in perspectives and maintaining curiousity about the person’s experience.

OK, sounds relatively simple, is there more to it than this?

Yes, as well as taking a mentalizing stance, mediators need to be alert to non-mentalizing.  Of most importance is recognising psychic equivalence, pretend mode, and teleological understanding, all of which suggest that mentalizing has been lost or is impaired. Some examples that you might hear in negotiation and mediation might include: Physic equivalence (concrete mode), “There is absolutely no way that that offer is genuine.  She just wants to control me.  She does this to me all the time.” Pseudo mentalizing (pretend mode), “Oh yeah, I understand where they are coming from.  I understand that their excessive need to be right and fear of being wrong is going to lead them into making them feel insecure and that they might need to compensate for that by creating an offer that looks attractive.  I get it.” Or Teleological, “They arrived late for this mediation today because they don’t want to settle.”

At the UWA mediation clinic we will be investigating these non-mentalizing modes of behaviour and how mediators might intervene in ways that identify and shift non-mentalizing behaviour

So, back to the UWA Mediation Clinic… linking research, teaching and practice

At UWA, we teach the NMAS Facilitative Mediation course as underpinned by mentalizing theory. In this, would-be-mediators learn the basic skills involved in the facilitative model and the core principles of MBT with a focus on the mentalizing stance. As such, participants build a working model of mediation and, within this, competency both in recognising mentalizing in self/other and maintaining a curious stance. Early this year we opened the UWA Mediation Clinic to begin researching MBT-M and to develop a rigorous evidence-based approach to mediation.  In 2019, we will be introducing Clinical Legal Education for law students who will work with pro-bono mediators and act as mediation advocates for ‘real-life’ clients.  The UWA Mediation Clinic aims to provides excellence in the practice, research, and teaching of mediation.  You can read more here:  http://www.mediation.uwa.edu.au

And finally, the MBT-M training in July 2018

The MBT-M training course has been developed with Professors Bateman and Fonagy.  It aims to increase the capacity of those already working in mediation settings to understand and effectively intervene when parties are in conflict.   Attendees will learn to formulate conflict from a mentalizing perspective and to use this knowledge to engage the mentalizing capacities necessary for parties to communicate wisely. This training is relevant for those who work with cases that involve relationship breakdown (e.g., family law, workplace, and commercial disputes, etc.).  The training is open to all mediators.  You can Register at: http://www.trybooking.com/359372