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

We live posted this blog today.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] Ibid p 7

[3] R33 mediator respondent to the research

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

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

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

by Associate Professor Alexandra Crampton, Marquette University

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Contact information: alexandra.crampton@marquette.edu

On Monday 3 December, around 25 excited dispute resolution scholars will gather on the Sunshine Coast, Queensland for the 7^th Annual Roundtable of the Australian Dispute Resolution Research Network.

This is a meeting that provides respite for many of us. It is an academic experience designed to support dispute resolution research and researchers and to provide high quality, critical feedback on the papers presented there. It is so rare to find a scholarly forum where the emphasis is on feedback and where research development is central.  You can see details of our previous meetings here.

In 2018 we are being hosted by Dr Susan Douglas of the University of the Sunshine Coast. Dr Lola Akin Ojelabi is the co-organiser of the roundtable. We are excited to welcome a number of international ADR scholars again, showing how attractive our forum is to dispute resolution scholars internationally. It is also wonderful to see so many PhD and research students presenting. We take the responsibility of providing a rigorous academic apprenticeship seriously.

Papers in the 2018 program include:

• Laurence Boulle and Rachael Field: Rethinking Mediation’s Fundamental Value of Self-Determination
• Kate Seear and Becky Batagol: The need for a new ethical rule for lawyers in family violence intervention order matters
• Kathy Douglas, Christina Platz and Tina Popa: Teaching Advocacy and Mediation in a Blended Learning Design: Scaffolding Learning Through Video Annotation/Discussion
• Jackie Weinberg: The common missions of ADR and clinical legal education provide a solid foundation for teaching ADR in clinic
• Lola Akin Ojelabi: Legislation-based DR Processes and Access to Justice
• Alex Crampton: Mandatory Family Court Mediation as Variably Empowering and Coercive: Ethnographic Exploration of a U.S. Family Court Mediation Program
• Claire Holland and Tina Hoyer: A case for coaching: Influencing cultural change in the ATO
• Cris Vianna Veras: Teaching mediation in Brazil and Australia: can we improve access to Justice?
• Re-Accreditation of Mediators and further issues of regulation: Janet Barnes with Kathy Douglas and Alysoun Boyle from ADRAC
• Mary Riley: Is there a place for restorative justice in civil mediation?
• Danielle Hutchinson and Emma-May Litchfield: Mixed Modes (Hybrid) Processes Research
• Pauline Roach: The importance of the Intake Interview in a workplace dispute
• Joanne Burnett: Lessons from the Literature: Developing A Framework for Practice in A Social Work Study of Family Violence in Family Law Mediation
• Alysoun Boyle: Sample Populations in Empirical Studies of Mediation: Ramifications for What We Know About Mediation, and About Who Uses It
• John Woodward: Mediation in chains: The problem with the thinning vision of self-determination in court-connected facilitative mediation
• Sabrina Korva and Drossos Stamboulakis: Online courts: A possibility for consumers in Australia?

Stay tuned to the blog as we post workshop papers in December and January. Follow the hashtag #ADRRN18 for frequent updates on Monday and Tuesday.

The literature on informal dispute resolution and family law has long recognised the influence of the shadow of the law on legal option generation and negotiations outside the courtroom. The term ‘shadow of the law’ was first coined by Robert Mnookin and Lewis Kornhauser in an influential 1979 article in the Yale Law Journal. They used the term to refer to the impact of substantive law on informal negotiations and dispute resolution processes, with particular emphasis on family law matters.[1] Even in informal dispute resolution contexts, Mnookin and Kornhauser observed, the law still provides the implicit backdrop and framework for negotiations.

Later authors have added sophistication and depth to Mnookin and Kornhauser’s analysis.[2] None of this research, however, directly answers the question of how participants in family dispute resolution in the current digital age source their information about the legal context. A recent article by Rachael Field, Lisa Toohey, Helen Partridge, Lynn McAllister and myself sets out to explore this issue through an empirical study of participants in family dispute resolution.[3] The information gathered through this research helps us to better understand the sense in which family dispute resolution may be said to take place in the shadow of the law.

The data from our study exposes the current conception of the shadow of the law as incomplete and insufficient. In particular, our results show that individuals acquire legal information of varying levels of reliability and credibility by relying on a range of formal and informal sources. Online sources are particularly influential in shaping parties’ understanding of the law, while discussions with family and friends also play an important role. Professional legal advice, by contrast, plays a relatively minor role for many participants. A significant proportion of parties do not or cannot access professional legal advice, while those who do access such advice do not necessarily regard it as the more important factor in their perceptions.

Our article therefore argues for a broader understanding of the concept of the shadow of the law and a more realistic conception of how that shadow influences the decision-making of parties in family law disputes. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). Furthermore, there is not just one shadow of the law, reflecting the current state of the positive legal materials; rather, there are multiple shadows, depending on the parties’ socio-economic backgrounds and where they are gaining their information.

Government agencies, mediation providers and others involved in providing post-separation advice and information need to be aware of the influence that the folk law exerts on parties’ expectations. For government agencies and other advisors, there is a need to provide straightforward, accessible and digestible information about post-separation options, recognising that this information is likely to be accessed alongside a multiplicity of other sources. Mediators, likewise, need to be mindful that parties to family dispute resolution may come to the process with divergent understandings of the legal framework for their dispute. Mediators may need to reflect upon their own understandings of the law and ask how closely they might match or differ from the folk law that influences the parties.

[1] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950.

[2] See, for example, Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Federation Press, 2011); Jeremy Feigenbaum, ‘Bargaining in the Shadow of the “Law”: The Case of Same-Sex Divorce’ (2015) 20 Harvard Negotiation Law Review 245; Herbert Jacob, ‘The Elusive Shadow of the Law’ (1992) 26 Law and Society Review 565.

[3] Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319.

Lots to blog about this morning!

I saw this call for papers on our US sister blog, Indisputably, and thought it was too good not to share here too.

• The focus of the forum is on exploring the challenges and opportunities of understanding and assessing developments in systems of dispute resolution in diverse social and political contexts through comparative research.  Papers may cover topics such as practical considerations in conducting comparative work in the field of transnational and cross-border dispute resolution, insights from recent multi-country studies, and consideration as to how research may inform policy reform in ADR institutions regionally and transnationally. We hope the forum will facilitate research collaboration that will also translate into positive policy applications and directions for future study.

I saw this and thought some of our graduate research scholars who follow this blog might be interested. 

Accepted Students Day 2018 by PresbyPhotos (CC BY-NC 2.0)

The Challenges of Elder Mediation

Part II: Problems and Solutions

D.M.

This is Part II of a two part series of posts by D.M., a current JD student at Bond University.

As mentioned in my previous blog post, there are several challenges unique to elder mediation. A significant challenge regarding capacity that elders face is an incorrect perception by the mediator or the other party of their capacity to participate in the mediation. Such perceptions are often rooted in ageism, a physical or psychological disability (such as dementia) or cognitive defects stemming from illness or distress. As a result, an elder may feel disempowered because of their dependence on their caretaker or an underlying mental health condition.

Furthermore, if the mental health issue is known to the mediator or the other party, this may create a bias regarding the elder’s capacity or the mediator may incorrectly assess the elder’s capacity, further aggravating the power disparity.[1] An addition problem is that older adults may bargain away their rights in an attempt to preserve relationships with family members who are applying pressure or coercion to obtain access to their assets. They may also be afraid of retaliation from an abuser.[2]

The role of the mediator

Mediators face special challenges in elder mediation. For example, even though ground rules are necessary in mediation, the elderly sometimes comment that they feel constrained by them. This is a complex challenge because such ground rules may also work to reduce bullying from other parties (who may include abusers). The establishment of ground rules, however, is confined to the mediation, which only yields temporary empowerment of the elderly party.[3]

Mediators may also face challenges in managing elders’ contributions. Self-determination is nourished by allowing the parties to discuss and pursue their interests, but some forms of abuse may be tough for the elderly to articulate or confront. Another issue concerns the dilemma of whether medical documentation of the elderly should be shared with the mediator. On the one hand, it may create bias concerning the elder’s capacity. On the other hand, the mediator may need this information to ensure the elder’s self-determination.

Possible solutions

Appropriate responses to these challenges will differ from case to case, but some guidelines can be suggested.  Until proven otherwise, elder adults should be deemed to have full capacity to participate in mediation. However, where capacity is in doubt, this needs to be properly established and not simply assumed. One possible way to ameliorate this challenge is to hire a medical professional to make that determination. Another possible way is for a social worker to assess the party’s capacity, as they may have more relevant expertise than the mediator.[4]

Older adults are legally presumed to be capable of making decisions about their finances. However, due to ageism or cultural norms and stereotypes, as adults get older professionals may increasingly speak to family members about the older person’s financial issues rather than speaking to the older person directly. In such cases, it has been suggested that a professional in the relevant field (in this example, an accountant or financial advisor) be consulted.[5]

Mediator training and professional development also plays a key role. Mediators who deal regularly with elder parties should seek training in identifying and responding to issues concerning capacity and mental health. This training could help avoid the cost involved with consulting medical professionals in some cases, but it will also help the mediator identify when additional expertise or support is needed.

[1] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.

[2] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 3, 6.

[3] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 426.

[4] Ibid 434.

[5] Braun, ‘Elder Mediation’, 6.

The Challenges of Elder Mediation

Part I: Foundational Concepts

D.M.

This is Part I of a two part series of posts by D.M., a current JD student at Bond University.

Elder mediation is an important and growing topic in dispute resolution. This area of dispute resolution is important because Australia’s elderly population has been projected to grow to 8.8 million by 2057 (22% of the population). This is an increase from 3.8 million (15 % of the population) today. With such a dramatic increase, the demand for elder mediation seems sure to grow exponentially in the future.

‘Elder’ can be defined as ‘a person of greater age or seniority’. In an Australian context, this might be defined as a person who is aged 75 years or over. The highest prevalence of abuse within this age group is from the age of 80–85 years. Abuse of various forms is an important driving force behind the emergence of elder mediation.[1] Abuse can manifest as financial, emotional, physical or sexual abuse or neglect.

Why mediate elder disputes?

Elder mediation, when used correctly, can be an effective preventative process for current or potential elder abuse. Mediation efficacy decreases as abuse severity increases. Thus, mediation at an earlier stage of abuse or neglect will act as a more effective preventative measure. Furthermore, elder parties often prefer mediation over litigation as it is a more discreet method of alleviating an abusive situation and it is easier to maintain the relationships between the parties.[2]

Elder parties may prefer to mediate because it is less confrontational than litigation and confronting an abuser, especially when they are also the caretaker of the elder party, can strain the relationship if the matter proceeds to litigation. Thus, mediation retains the relationship between both parties while keeping the process confidential, which further works to retain these potentially decades-old relationships.[3]

Mediation is also preferable from an ethical standpoint because one of its purposes is for the elder party (generally the weaker party) to gain self-determination. Self-determination in elder mediation is achieved by not only informing the elder party of their rights, but also helping them achieve some independence in relationship with the other party. If the mediator correctly establishes the elder’s capacity, this may also correct any ageism biases and other incorrect perceptions of this issue.

Features of elder mediation

The parties to elder mediation are often family members, friends, fellow residents of aged care homes, caregivers or any combination of these roles. As a result, the mediator must consider questions such as whether parties should meet separately with the mediator or who should be present at each stage of the mediation. Power imbalances may arise in elder mediation due to the potential existence of abuse or neglect, combined with the fact that the perpetrators in the majority of elder abuse cases are the children or caretakers of the elderly party.

The circumstances of elder mediation may pose a challenge to the focus mediation places on self-determination. Power disparities may also create a real or perceived incapacity of the elder party to enter mediations.[4] Capacity is central to a process based on the principle of self-determination which requires parties to make their own informed choices on settlement options. The issue of capacity can be influenced by mental  or physical health problems (both chronic or temporary) or ageism.

My next blog post will examine the challenges of elder mediation in more detail and recommend some possible strategies and solutions.

[1] Joan Braun, ‘Elder Mediation: Promising Approaches and Potential Pitfalls’ (2013) 7 Elder Law Review 1, 5.

[2] Alexandra Crampton, ‘Elder Mediation in Theory and Practice: Study Results From a National Caregiver Mediation Demonstration Project’ (2003) 56 Journal of Gerontological Social Work 423, 425.

[3] Braun, ‘Elder Mediation’, 4.

[4] Rebekah Doley, ‘Accommodating Common Mental Health Issues in Mediation’ (2016) 27 ADRJ 84, 85-6.