Written by Dorcas Quek Anderson, Singapore Management University.

Mediation – a legitimacy deficit?

Mediation has been plagued with a problem of legitimacy.[1] Genn stated that mediation “does not contribute to substantive justice because mediation requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving”.[2] Mediation appears to be all about procedural justice, a concept that is associated with perceptions of fair treatment. And procedural justice does not seem to have any discernible link with substantive justice, in terms of giving effect to well-accepted norms.

This blog entry is drawn from a paper that was presented at the Australasian Dispute Resolution Research Network 6th Annual Roundtable and the LSAANZ Conference. I argue that there is an invaluable connection between procedural and substantive justice that should be further articulated and strengthened. However, there are also considerable inadequacies in the current mediation principles, causing weak links between procedural and substantive justice. I focus here on only one aspect of the paper – that the mediation principle of “norm education” should be further developed to enhance party autonomy and more adequately advance substantive justice.

 The undisputed link between procedural and substantive justice

The link between procedural justice and substantive justice has been indisputably established by socio-psychological research examining the participants’ subjective assessment about the fairness of the dispute resolution process. Welsh, drawing from the work of Lind, Tyler and others, highlighted how positive perceptions of procedural justice would likely lead to favorable perceptions of substantive fairness and more durable agreements.[3]  Four aspects of procedural justice have been found to consistently contribute to high perceptions of justice – voice;[4] a sense of being heard and understood,[5] being treated with dignity or courtesy;[6] and being given even-handed treatment.[7] Many of these aspects strikingly mirror current mediation principles, such as mediator impartiality. The foundational mediation principle of party autonomy advances many of the above aspects of procedural justice. Self-determination involves direct participation by the parties in communicating and negotiating; party control over the substantive norms that guide their decision-making; and party involvement in the creation of settlement options.[8] Evidently, these aspects of self-determination help to give disputants the opportunity to voice their views, feel heard by the mediator and the other party and be accorded respect and a sense of dignity.

However, moving beyond parties’ perceptions of fairness, there remains the question of whether the relevant norms are actually considered within the mediation process. [9]

Substantive justice in mediation – the complex interaction of norms

My full paper examines how substantive justice is achieved through the complex interaction of a variety of norms within mediation. Some of these norms take the form of broad principles such as equity, equality and need. Other norms comprise individual preferences and values, or shared standards of a community to which the disputant belongs. Legal standards are the most common norms alluded to, given the dominance of the courts in publicly establishing norms for the society.[10] There are evidently very diverse sources of norms at play within each mediation, and not all the competing norms are given final recognition in the mediation outcome. According to the philosophy of party empowerment in mediation, it appears as if norms are determined only by the parties. In reality, many of their subjective norms are influenced by external standards.[11]

Party autonomy is exercised within limits of external norms

It is argued that there is now growing consensus that party autonomy over the mediation outcome must be exercised within the limits of certain external norms. Waldman and Akin Ojelabi observed that many mediation codes caution against excessive mediator influence, but simultaneously call for the mediator to terminate the process if an unconscionable or illegal agreement appears likely. They argue that these provisions implicitly recognise that mediation agreements must meet a minimal threshold of justice.[12]

The global sentiment encapsulated in mediation ethical codes indeed points overwhelmingly to the presence of overarching norms that limit party acceptability. The Singapore Standards oblige the mediator to withdraw from the mediation if the mediation has assumed “an unconscionable or illegal character” or is likely to result in a settlement “against public policy or of an illegal nature”.[13] This is clear endorsement of mediation taking place within the limit of public norms. The Australian Standards allude to such limits by imposing the duty to terminate when a participant is misusing the mediation, not engaging in the mediation in good faith or the participant’s safety is at risk.[14] Singapore’s Mediation Act allows a mediated settlement agreement to be recorded as a court order, except when the agreement contravenes public policy; is not capable of being enforced as an order of court; or is not in the best interest of a child.[15] Additionally, UNCITRAL’s current draft provisions for enforcement of mediated settlements do not allow enforceability where the agreement is “null and void, inoperative or incapable of being performed under the law to which parties have subjected it to”, and when enforcement would be “contrary to public policy”.[16]

A proposed mediation principle of “norm education”

In relation to critical, well-established norms that are contained in codes or are essential in certain types of mediation, the parties’ autonomy is clearly circumscribed by external norms. However, these norms may not be given effect to if mediation is characterised by adherence merely to the parties’ values. What if there are well-established norms that the parties have yet to consider? Or what if the parties’ discussions are veering close to a result that cannot be enforced, or an agreement that may infringe legal principles? In such circumstances, there is surely good reason for the mediator to educate the parties on norms.

However, there is yet to be a well-established mediation principle of “norm education”. The current mediation standards in Australia and Singapore allow the mediator to terminate the mediation if there is bad faith or misuse of the mediation,[17] or when it is likely to result in a settlement that is against public policy or is illegal.[18] The closest principle to norm education is “informed consent” in the Australian Standards, which suggests that the mediator should, as far as possible, attempt to ensure that disputants have access to sources of advice and information.[19] The principle of informed consent is, however, severely limited when it is not feasible for the disputants to obtain independent legal advice.

It is argued that there is room to allow the mediator to educate the parties on such norms where they are unaware of them, instead of only having the drastic option of withdrawing from the mediation. After all, such practices are in reality taking place in mediation practice. Waldman wrote about the norm-educating model used commonly in divorce mediations, wrongful termination and other court-referred cases mediated “in the thick shadow of the law”. She contends that the consideration of social norms in this model helps “enhance autonomy by enabling parties to make the most informed decisions possible”.[20]. It is therefore suggested that the mediation community consider the principle of norm education in relation to critical norms encapsulated in codes and legislation. Such a principle would be invaluable in advancing substantive justice. Continue reading →

This blog post written by Dr Sue Prince, University of Exeter is an abridged version of paper delivered at the ADR Research Network Roundtable held from 4-5 December 2017 in Dunedin, New Zealand.

The court as an imposing building exists as a symbol of the ideal of justice: the Central Criminal Court at the Old Bailey in London has Lady Justice standing on the top of its dome, demonstrating the vital importance of the rule of law. Yet the symbolism of the local court as a fixture of the community no longer holds true. Certainly, in the civil courts there are many unresolved problems with the numbers of litigants-in-person who cannot afford legal support. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 gave rise to so many litigants-in-person that judges had to reconsider their approaches and become more inquisitorial in approach and less adversarial.

The County Courts Act 1846, which established the county courts, came into force with the idea that courts should be cheaper and more accessible. In 1847, following the introduction of the statute, there were 491 courts in England and Wales. Now, 170 years later, the estate has diminished to 173 county court buildings.   Civil courts are no longer so easily accessible and rarely occupy a place centrally in the community as they did in the past. Yet, the number of cases going to trial has also diminished and the number of alternative dispute resolution processes has increased: ombudsman and unregulated providers. As processes change so does their role. The building is no longer physically accessible but nor is it financially accessible to most, due to the lack of legal aid and increases in court fees that have been introduced by successive government policies. The system is no longer fit for purpose.

So, is it possible then to design an alternative system for small, low value cases using online tools that might operate to support court users through the legal system in a way that the system in operation in the court building never could? This was a question asked of a group of us who formed the Civil Justice Council Online Dispute Resolution Advisory Group a couple of years ago. We recommended the creation of an online court with online judges and online facilitators or mediators as well as an initial stage offering online information and help.    Such changes were supported by the Master of the Rolls, John Dyson LJ, who described our report as a catalyst for far-reaching reforms. As a potential solution to similar problems described above, online courts are being contemplated in various forms across the world.

In British Columbia, Canada, for example, the new online small claims process has replaced the court building with an end-to-end process which provides legal advice and direction, mediation and the potential for an online judge. In the UK, plans are now afoot for cases under £25,000 to be referred to an ‘Online Solutions Court’ which will integrate three distinct stages of justice.   In our ODR Report, we said that ODR was not science fiction. It proved that this was the case because the UK Government committed £700M to fully digitalise the courts, and to reform the legal system. Currently, HMCTS in the UK is embarking on the most ambitious programme of reform which embodies the ‘Online Solutions Court’ and other agile, digital by default reforms, currently in beta testing phase but soon to be launched across England and Wales.

Online dispute resolution has many of the qualities offered by ADR. Designers of current ODR systems tend to focus on the needs of the user and to facilitate these needs through the creation of pathways along which a litigant will travel, answering questions to personalise the experience, and to help specify the sort of actions required to meet the challenges of the legal system. As with ADR, ODR attempts to facilitate and empower, albeit not through face-to-face processes.   ODR has the potential to offer a different service: a series of pathways and gateways through the legal system, with the opportunity for the user to ask questions, or to have terms defined as they arise. In England and Wales, the proposal is for a facilitator to attempt to mediate the dispute before it goes before an online judge. Yet, the system itself exists as a form of ADR, because the technology operates as a form of ‘fourth estate’ to enable resolution where possible, or provide information along the way.   The very idea of introducing ODR precipitates a debate on many aspects of what the online court looks like; how it meets the demands of the rule of law, and what needs to change to give better access to justice. The role of public legal education and assistance become vitally important in a system which is not designed around the assumption of legal representation. The architecture of dispute resolution is not impeded by the introduction of ODR but instead it offers an opportunity to re-examine the court process and to see that what happens outside the building is as important, if not more important, as in the hearing room itself.

This post was written by Jacqueline Weinberg from Monash University and is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017

Over the last 30 years alternative dispute resolution (ADR) has become more prominent in Australian legal practice due to the need to reduce the cost of access to justice and to provide more expedient and informal alternatives to litigation. There is a shift away from adjudicative or determinative processes and towards more cooperative processes for dispute resolution.[1] The rigidity, complexity and cost of formal structures has meant that courts, tribunals and other rights-based structures are often inaccessible to all but a few in society.[2] The incapacity of these structures to resolve conflict, although they may determine rights, has been a relevant factor in the development of alternative options for dispute resolution.[3] Clearly, Australian legal practice is undergoing change. As legal educators, we need to ask: how should we be preparing law students entering practice for these changes? How can we ensure that once they become lawyers, our students will not rely entirely on litigious methods to assist their clients but instead look at alternatives for dispute resolution?

Richard Susskind in his book Tomorrow’s Lawyers [4] states that law schools cannot ignore future practice and law students should be provided with options, to study current and future trends in legal services and to learn some key 21^st century legal skills that will support future law jobs.[5] ADR is a growing area of legal practice resulting in changes in models of client service and advocacy.[6] The issue then is how best to prepare the young lawyers for these changes. According to Sourdin, legal academics (and law schools) play an essential role in the training and education of lawyers and in interpreting these changes.[7] Sourdin sees legal education and training as ‘a continuum along which the skills and values of the competent lawyer are developed.’[8] There is a need to explore whether clinical legal education is taking these changes on board and moving away from teaching traditional adversarial models towards teaching a more ADR skills based curriculum. There is a need to look more closely at whether the ‘interconnect’ between the teaching and practice of ADR is in fact happening in clinics; if so, how this teaching is happening; including an examination of clinical curricula. If it is established that this teaching is taking place, then research needs to be done to determine in what ways this teaching can be enhanced in the clinical context and whether it is contributing to students’ knowledge of non-adversarial approaches towards conflict resolution.

According to Sourdin, ‘changes to the law school education environment supporting ADR in a realistic, rather than marginal way should mean that there is a greater chance that law school education in Australia into the future will be both relevant and supportive of respectful dispute resolution in its traditional and alternative forms.’[9] Clinical scholars view clinical legal education as a method of learning and teaching law.[10] It includes teaching about skills as well as the broader legal system.[11] ADR has become a part of the legal system both in Australia and internationally. If clinical legal education is to teach students about the skills needed for practice then it follows that a focus on the teaching and learning of ADR skills is needed. Extensive research has shown that ADR has an important role in legal education. It places emphasis on a non-adversarial process of resolving conflict and provides lawyers with the knowledge and skills to engage with legal problems in a holistic manner. Law students engaged in clinical practice who understand and adopt these processes will become lawyers who focus first on client’s needs and interests when problem solving and resort to adversarial practice only when necessary. In this way, clinical legal education can ensure that law students are well prepared for their roles as ‘new lawyers’ in 21^st century legal practice.

My PhD research is focusing on whether ADR is being sufficiently taught to students in existing clinical legal education courses in Australia. My research explores whether and to what extent ADR is integrated into clinical legal education across Australia and how the teaching of ADR within clinics might be strengthened. Although this research is primarily undertaken at Australian clinics, it will assist with learning and teaching strategies in relation to clinical legal education as a whole and has relevance for all clinical legal education contexts. This research will assist with curriculum review in relation to clinical legal education in law schools.

[1] Tania Sourdin, Alternative Dispute Resolution  (LBC Thomsons, 5th ed, 2015) 13

[2] Ibid 12

[3] Ibid.

[4] Susskind R, Tomorrow’s Lawyers, 2013, Oxford University Press 135

[5] Ibid.

[6] Macfarlane, J The New Lawyer: How Settlement is Transforming the Practice of Law

(UBC Vancouver 2008 Macfarlane, 243

[7] Sourdin, above 1 5

[8] Ibid.

[9] Ibid.

[10] Evans, A, Cody, A, Copeland A, Giddings, J, Noone M.A & Rice S, Best Practices

Australian Clinical Legal Education Office of Teaching and Learning 2013 40

[11] Ibid 41

This post is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017.

The aim of my project is to identify hidden knowledge about methods that do and don’t work in capturing data from end users (clients) of dispute resolution processes. If we are serious about measuring the quality, effect, and experience of DR, then we need to gather data from the people for whom these services are provided. There are, however, many challenges to gathering that data, which I explored in the earlier stage of my research project at the 2016 Roundtable. Some of these challenges are related to the DR process itself – an often stressful experience about which clients may be (a) unwilling to speak about for research purposes or (b) unable to reflect upon dispassionately. There are barriers of ethics, reliance upon third parties to gather data, and then for service providers who gather data routinely, there are often limited resources to actually systematically analyse that data.

At the 2017 ADRRN Roundtable I reported the next stage of my project. Since the 2016 Roundtable I have engaged a research assistant to conduct a systematic literature review, reworked my proposed interview questions, and conducted some pilot interviews with DR researchers about their experiences gathering data from end users / clients. This post will focus upon what I learnt through the attempt to conduct a systematic literature review.

An account of a systematic literature review

I set out to gather relevant literature through a systematic approach that was designed to capture research conducted in Australia that involved the gathering of data from end users/ clients of DR processes. I enlisted the assistance of my law librarian and met with her and my research assistant to design the systematic literature review. A variety of databases and search terms were used. I wanted to have confidence that this would identify all of the relevant research reports that already exist. The main problem that I have faced is that the “systematic” review simply hasn’t identified all of the relevant literature. I am aware of some resources that I identified earlier in the project (through non-systematic searching) and also reported in the appendix of Tania Sourdin’s Alternative Dispute Resolution (Thomsen Reuters, 5th ed, 2016), which were not captured. My research assistant found that the search terms that we had planned often failed to limit results to material that met our criteria of Australian research in the DR area that included data gathered from clients / end users. He spent a lot of time wading through material that did not meet our research criteria. The result of the review was that 43 relevant reports of research were identified.

On reflection, there are a number of possible reasons why the “systematic” review conducted in accordance with the conventions of traditional legal academic research has not achieved the result that I hoped to achieve.

1. The database searches privileged peer reviewed journal articles. Not all DR research involving data from clients / end users is published in peer review journal articles. It is likely that most of the data gathered from DR clients / end users is not gathered or analysed by academics. Non-academics are unlikely to be motivated to publish in peer review journals, which mostly sit behind paywalls. Instead, open access self-publication, reports to funders, and internal reporting are likely to be frequent destinations for research. These kinds of publications were not captured by the systematic review.
2. There is possibly a wealth of client / end user data being collected, but much of it is either not analysed at all or only analysed for confidential purposes. Most service providers conduct research to capture feedback from their clients. These data may never be systematically analysed and even when analysis occurs, there may be no public output from the research. “In house” evaluations may be conducted for purposes of quality assurance, reflective practice, and performance management. These purposes are not enhanced by making research results available publicly, and commercial interests may be compromised by publishing client feedback data.
3. Even where DR research is published in peer review journals, there are few discipline specific publication destinations (particularly those considered by universities to be prestigious), resulting in a scattering of publications. It may be difficult to locate relevant literature because DR researchers publish across a broad spectrum of publications. Each journal has its own preferences in relation to reporting of research method, language and style. This could potentially have affected the ability of the systematic approach to capture all relevant literature.

The purpose of locating existing research reports was so that I could review the methods of recruitment of DR clients / end users and data capture that researchers have used. In the literature that I have identified so far, although relevant data were used as a foundation for the findings reported, the method of recruitment of participants and capturing of the data were not always explained. This possibly reflects the tradition in legal research of not reporting methods clearly, and the preferred style of some journals, which have strict word limits and may not value detailed accounts of research method. Often research reported in peer reviewed journal articles is reported in greater detail in non-peer reviewed reports. These were not always readily available when I tried to locate them.

Next steps

It is clear that there is a vast amount of grey literature available that is not necessarily captured through subscribed databases. My next steps will involve new search strategies that will capture a broader range of literature. My pilot interviews and interviews with DR researchers about their experiences capturing data from end users will also be an opportunity to identify research reports that may not have come to my attention through my searches.

My reflections on the data that remains hidden within organisations has caused me to wonder how those of us in academia can better engage with industry. DR service providers are often able to achieve very high response rates that are difficult for independent researchers to achieve. I believe that there are opportunities for academic researchers to build better working partnerships with industry, with all parties exploring the skills and resources that they can offer one another.

The experience has also highlighted a need for a comprehensive, well funded clearing house of DR research reports, which would provide a portal through which prior DR research can be more readily located. A significant initial investment would need to be followed by funding for ongoing maintenance, but there could be great benefits to clients, practitioners, organisations and researchers working the DR field. I am percolating ideas about how to pursue this idea and would welcome any offers of assistance.

This post written by Dr Bridgette Toy-Cronin is a blog version of paper delivered at the  ADR Research Network 6th Annual Roundtable, 4-5 December 2017. You can follow the forum on Twitter at #ADRRN17

Once a case is filed in court, settlement commonly occurs at the eleventh hour, just as the case is about to go to trial. By that time a lot of money, time, and energy has usually been spent by all involved. So how do we encourage parties to settle earlier? Or, if they can’t settle, how can we refine the trial issues so the case moves efficiently to trial?

To encourage settlement, courts have tried various different methods including compulsory mediation before filing, judge-led settlement conferences, and court annexed mediation. The New Zealand High Court has moved away from those initiatives, preferring to leave mediation and negotiation as a private matter between parties and focusing its resources on its main job, adjudication. When faced with the huge number of claims generated by the Canterbury Earthquakes though, it re-introduced an initiative it had briefly tried previously, an initial case management conference where the litigants themselves (whether or not they are represented) must attend. The idea is to get the litigants, lawyers, and the judge around a table for a meeting to engage with each other, face to face, and to articulate their objectives for the litigation and the main issues for trial. Nina Khouri whose paper on the Canterbury Earthquake List has been published in the Civil Justice Quarterly,[1] emphasises that this process sets the stage for both effective early dispute resolution and for efficient litigation. Early resolution or efficient litigation is a win-win for the courts and the litigants.

The process has a number of other potential benefits as well. For unrepresented litigants, an initial conference with the Judge is a chance to establish constructive communication with the opposing party and become oriented to the litigation process. For represented litigants, it is a chance to have direct interaction with the court and consider the goals for the litigation, the potential for achieving them, and the cost of doing so. (This is particularly important if the litigant’s lawyer has not performed this function – not all lawyers are created equal). For the court, it is an opportunity to communicate its expectations and the likely timeframes for the progress of litigation. It also provides a structured opportunity for the court to establish the expectation that parties will engage in settlement discussions and opens the door for that to happen. This is a more principled forum for doing this than the informal mechanisms some judges use of putting “heat” on litigants to settle as the litigation is progressing. While some “heat” might result in settlements, it can also leave litigants feeling confused and pressured, an issue I blogged about recently.

As with previous attempts at the rule, the requirement that litigants attend the case management conference has been dropped from the Canterbury Earthquake List. The major reason was the cost involved. These conferences take up a great deal of judicial time and the court did not consider it had the resources to continue staffing them. The other reason offered was that lawyers became familiar with the case management process and each other, and were “able to resolve many preliminary matters by consent on a routine basis” (Khouri at 346). Underlying these explanations may be deeper reasons for why these conferences have not been a “sticky” procedural rule. These reasons include:

• Judicial resistance to more onerous forms of managerial judging, particularly when there is significant ‘emotion work’ in these conferences and they lack the purity and therefore prestige of more traditional judicial work of hearing trials and writing judgments;
• Lawyers’ resistance to a form of conference that interrupts the traditional dynamic of the lawyer being the interface between the client and the court. These conferences may be difficult for a lawyer to manage, as the client participates directly, without the ability of the lawyer to filter or shield the client’s position.

I suspect that these are equally powerful reasons for the failure of the case management conference that includes litigants, than the ones stated. If the conferences do offer the benefits they promise, how can we overcome the cycle of introducing them and then either not using them or informally dropping the requirement for litigants to attend?

One method would be to do a Randomised Control Trial. The Access to Justice Lab at Harvard is a big proponent of this method and while I don’t think it would work in many legal settings this might just be an ideal situation. The idea is that when proceedings are filed they are randomised to either a traditional case management conference or one where litigants must attend. Data could then be collected about the progress of the proceeding. So, a timeline would be created for each case to see if it settled and if so when. If it went to trial, how long did it take to get to trial? To measure whether or not the type of case management conference made a difference to the refinement of trial issues, the trial length could be used as a proxy or the final pleadings could be used to compare the number of causes of action. This would obviously need to be in partnership with the courts who would collect the data and ensure the right type of case management conference was used in accordance with the randomisation. The big payoff would be some empirical data about whether the case management conference involving the litigants really has the benefits it intuitively suggests it may have.

[1] Khouri, N. C. (2017). Civil justice responses to natural disaster: New Zealand’s Christchurch High Court Earthquake List. Civil Justice Quarterly, 36 (3)

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

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

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

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

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

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

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

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

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

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

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

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

Lessons learned

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

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

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

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

[2] Ibid., 13.

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

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

REFERENCES

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

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

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

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

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

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

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

The development of AI for conflict resolution

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

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

Online Dispute Resolution in practice

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

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

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

Governance and ethical considerations

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

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

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

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

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

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

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

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

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

The future of AI in ADR

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

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

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

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

References:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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