Tag Archives: negotiation

Informed, Involved, Inclusive: Laying The Foundations

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Rory Gowers & Milan Nitopi
This article is Part 1 of 3 in our series ‘Informed, Involved, Inclusive’.

Rory and Milan (left to right) presenting at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024.

Every culture is in conflict; and, we are all moderated by cultural norms and expectations. Where there is more cultural diversity, there is a greater chance for misunderstanding and an escalation of conflict.

In the context of meditation, facilitators who are not equipped with the necessary intercultural competencies risk undermining that process, which can contribute to difficult or unproductive communication and dialogue. Although competencies standards exist (such as the Intercultural Competence Specialisation by the International Mediation Institute), facilitator training in intercultural predisposition is limited. 

We presented our proposition to counter this serious gap in mediator development at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024 in our address: ‘Informed, Involved, Inclusive: A New Chapter In Intercultural Competence’. The Mastering Intercultural Mediation Implementation (MIMI) training program is based on three core foundations:

  1. Informed,
  2. Involved, and,
  3. Inclusive.

MIMI is a specific application of the my-RESPECT-ability model which entails the intercultural mediation principles, processes, and practices at the heart of the Intercultural Competence Playbook (Gowers 2023).

Visit my-RESPECT-ability to read more on the model or to enrol in introductory webinars.

In developing the MIMI training program we explored intercultural research concepts and approaches (including Dai & Chen, Sveiby & Skuthorpe, Gowers) as well as drawing on our combined lived experience and extensive mediation practice. Rory has lived in over 7 countries and brings insights from over a decade of real-life intercultural mediation practice (in public, private, and voluntary sectors).

Becoming interculturally competent is more than an intellectual and mindful journey. Therefore we decided it is crucial to centre our training model on participant transformation. As participants become more aware, more accepting, and more appreciative of an ‘other-culture’, they begin to develop competencies which enable them to facilitate intercultural interactions effectively.

An ‘other-culture’ is a class, community or sub-culture of any kind (social status, ethnicity, spiritual, gender identity, wealth, occupation, species, etc.) that is so different that it reveals in you a sense of personal discomfort or powerlessness (such as fear or anxiety or a capacity to interact). It is the feeling of being a total foreigner, in contrast to the feeling of being a relaxed tourist. It may be experienced as a feeling of alienation. This is what people from an other-culture experience when they enter into a new, dominant culture where they lack the capacity or the social skills to interact or negotiate on a level playing field.

Foreigner. 外人 Gaijin. 鬼佬 Gwáilóu. Stranieri. Gudiya. Alien. 

The word ‘gudiya’ refers to non-Indigenous people in the context of Aboriginal-English. Indigenous Australians adapted English to communicate with non-Indigenous people after their traditional languages were stolen and is a variety of English, distinct from Australian English.

There are many words to refer to an ‘outsider’ and we all have experienced this feeling at some point in our lives.

Communication and dialogue is an essential and fundamental aspect of mediation, but how do we consider this through the lens of the three cultural motifs:

  • the Eastern “We”
  • the Indigenous “Be”
  • the Western “Me”

In a Western context, ideals such as self-determination and non-partisanship (including neutrality and impartiality) are often discussed as being critical to an effective mediated outcome. But what do these aspects actually mean with consideration of other-cultures?

Whereas in an Eastern context, the ideal of achieving harmony appears critical to an effective mediated outcome. And, in an Indigenous context, ideals of responsibility and collective existence appear critical to an effective mediated outcome. Yet the Western understanding of ‘mediation’ does not translate well with ideals belonging to other-cultures.

We see here that ethical practice is shaped by varying culturally embedded needs and these needs are not exclusive to just one specific cultural perspective. In the context of communication and dialogue, they illustrate the interests, needs, concerns, and expectations of other-cultures. Unless a mediator is interculturally aware, accepting, and appreciative of other-culture perspectives and ethical frameworks, their ability to facilitate effective and enduring outcomes is significantly diminished.

Where all parties to an intercultural dispute are able to express and address their interests, needs, and concerns in culturally relevant ways, then a more creative, sustainable, and harmonious outcome can be achieved.

Mastering Intercultural Competence

Our intercultural competence training model is built on three foundations:

  1. Informed
  2. Involved
  3. Inclusive

Foundation 1: Informed (awareness)

The first foundation is focused on being better informed. By being better informed, we are led to an increased awareness. And, to be better informed we must turn our minds to the facts, feelings, and findings of intercultural research.

This foundation is a structured learning process centered on establishing the baseline knowledge of intercultural competence.

As it has been observed that a person’s experience of other-cultures is both an intellectual and mindful journey, knowledge of an other-culture is not itself enough to develop intercultural competence. Although the International Mediation Institute sets out the minimum standards for intercultural competence specialisation and set the pathway for internationally accepted mediation principles, we recognised that more was required in order to have a complete and comprehensive understanding of an other-culture.

In a Western context, unless we become aware and address our own inner conflict, we are unable to take a ‘balcony view’ of others’ conflict. By failing to adopt a balcony view, we lack impartiality and neutrality; concepts that are cornerstone to Western facilitative mediation practice. However, within other-cultures, a different approach might be taken.

Foundation 2: Involved (acceptance)

The second foundation is focused on being more involved. By being more involved, we are led to a greater acceptance of other-cultures. And, to be more involved we must immerse ourselves within an other-culture and listen to their stories, songs, and symbols.

We created this foundation to allow participants the opportunity to develop a deeper understanding of the other-cultures needs, values, and expectations by providing a full other-culture immersion program. This foundation is the heart of our training model.

This immersion program is crucial as participants must initially feel uncomfortable and confronted with unfamiliar aspects of an other-culture. This makes for a more profound intercultural learning experience. It is ourselves actually undergoing the change where we arrive at a deeper level of understanding and respect for other-cultures and their voice at the ‘table’.

As it takes time to begin immersing ourselves in an other-culture, some participants may elect to extend their immersion program to develop an even deeper understanding of the other-culture that they immersed themselves in.

Immersion is more than assimilation with, or imitation of, the other-culture. In their experience, participants learn respect for the values, needs, and expectations embedded within those other-cultures. It is to understand and accept that our eyes are but only one perspective in the world and that there are many eyes which look upon the face of this earth differently. All perspectives are valued.

Unlike how the International Mediator Institute Standards emphasise mediator proficiency of a particular culture and advocates for cross-cultural application, our approach is focused on competence in intercultural interaction.

To be cross-cultural is not to be intercultural. They are different. ‘Intercultural’ is described by Paula Schriefer as:

“communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.”

Foundation 3: Inclusive (appreciation)

The third foundation is focused on being more inclusive. By being more inclusive, we are led to a greater appreciation of other-culture’s wisdom, needs, and ways of working with conflict. And, to be more inclusive, we must turn our minds to choosing the most appropriate principles, processes, and practices of intercultural mediation for that culture.

We created this foundation to allow participants the opportunity to further develop their intercultural mindset and heart-set behaviours. A participant is to adapt their current core principles, practices, and processes to the interests, needs, concerns, and expectations of the other-culture they immersed themselves in.

By putting learnings and reflections into practice, participants are able to accurately identify and address communication and dialogue issues within an intercultural context. This can be achieved with case studies or role play exercises.

Authors Biography

Rory Gowers is a Master of Dispute Resolution (MDR), a Master of Education (MEd), an intercultural mediator, and a business strategist, residing in Greater Sydney, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com 
Email: rory.gowers@gmail.com
Mobile: +61 425 292 811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions

Milan Nitopi is an accredited lawyer and mediator with (soon) a Master of Laws in Family Dispute Resolution (LLM FDR). Milan has a passion concerning people, law, and resolution and he strives to equip people with skills for better communication and dialogue to address all kinds of conflict.
Contact Milan via
Email: manitopi@outlook.com
Mobile: +61 432 547 538
LinkedIn: www.linkedin.com/in/manitopi/

Breaking Negotiation Deadlock: Co-Creating the New Intercultural Competence Playbook

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By Rory Gowers
15 March 2024

Author note: Intercultural is not multicultural, or cross cultural. ‘Intercultural’ is described as “communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.” — Paula Schriefer, Spring Institute

Source: Nina Simon, 15 October 2014

We have recently heard from two long-standing luminaries in the world of conflict resolution and negotiation.

On 22 February 2024 Dr Rosemary Howell in her post within the Kluwer Mediation Blog refers to recent research by Cobb, Castel and Sultani with its dark summary of our times with “Polarisation, violent conflict, fractures, and divisions across and within societies are on the rise globally …” labelling ‘Hyperpolarization’ as “the state of the world we currently inhabit”.

Dr Howell acknowledges the bleakness of the situation, however she points to the encouraging work by Carrie Menkel-Meadow which provides an optimistic insightful and constructive recipe – an article well worth a full read.

On 24 February 2024 William Ury, co-author of Getting to Yes, in a seemingly unrelated post, recalled his recent appearance on Ari Melber’s The Beat concerning the current political tribalism in the United States of America. Ury states “we need more conflict – not less”, and further suggests that we cannot end polarization, however we can transform it into ‘healthy conflict’ with constructive creative negotiation.

Of course, in Australia we see similar polarization of political debate, as demonstrated in the 2023 Referendum, and this continues to stymie meaningful bipartisan collaboration to this day. 

Such polarisation does not achieve constructive outcomes for a peaceful and progressive society but serves dominant factions in enlarging their power base and further marginalising minority voices.

Many of us will agree with the statements from both Dr Rosemary Howell and William Ury that the first constructive step is to reframe the context of the conflict by helping parties reflect on the cultural background dynamics shaping the narrative and expectations of each party (and their tribe). It is also useful to adopt the ‘balcony strategy’, as explained by Ury, as well as considering the other party’s perspectives to get the full context. 

I encourage all to employ the use of an acronym of the word ‘cultural’ to remind us of the full scope of a cultural background: Commonly Understated Lores, Traditions, Understandings, Rituals, Expectations, Assumptions, Legacy.

By reframing the context of conflict, participants become more empowered and are in a better position to see life from all sides which then prepares them to confer more civilly with others in a joint constructive discourse as all parties seek to bridge the current impasse with practical and realistic solutions that meet the legitimate needs of all.

But is this enough to break the polarization?

After a decade of mediation, I think not; that is, unless we are prepared to adapt the process and embrace the culturally embedded needs of each party rather than blindly use the standard dominant culture’s approach (i.e. western culture). It is a whole new playing field!

I make ‘A Call for a new Intercultural Competence Playbook in Mediating social transformation’ in a recently published peer-reviewed research paper. I posit a new level where the future of mediation is intercultural. This paper can be located on the University of Montreal’s Online Law Journal Lex Electronica Volume 28 n. 5 2023 Special Dossier, Paper 13, pp. 195-215.

We require a new toolkit, and the adventure of our time is to co-create it. Will you join me?

A call for a new mediator playbook

In my paper I claim that “every culture is in conflict; conflict is endemic in the process of culture metamorphosis.” My paper examines the paradox that conflict is intrinsic to every culture, yet there is little attention to the ‘culture’ norms in resolving that conflict. I refer to original thinkers such as Hofstede and Ting-Toomey and compare their contributions to the change in intercultural understanding since.

We are in an unprecedented global pandemic where cultural norms and expectations are under threat, in individualistic and collectivist cultures. We face existential threats from climate change and environmental catastrophes. We need a new mediator playbook for effective intercultural negotiation and issue resolution.

All professionals can acquire intercultural skills, mentorship, or supervision; join immersion events to extend intercultural awareness and communications skills; foster inclusive work environments; adapt coaching methods; cultivate intelligence about cultural differences; and engage with a positive intercultural predisposition, and approach. 

Everyone can actively facilitate social transformation by making peace with the other cultures in your land as a vital forerunner to effective intercultural mediation of conflicts. 

To allow peace a chance, we must unlock and activate intercultural competence in mediation!

I invite your active participation in reading my paper and responding to the recommendations I put forward. 

For this playbook to succeed our approach must be intercultural. Let’s start now. Welcome aboard!

Author biography
Rory Gowers is a Master of Dispute Resolution MDR, a Master of Education MEd, an intercultural mediator, and a business strategist, residing in Brisbane, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com 
Email: rory.gowers@gmail.com 
Mobile: +61 425292811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions

Why are US lawyers allowed to lie while negotiating?

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Robert Angyal SC and Nicholas Saady

The late William Rehnquist, when Chief Justice of the US Supreme Court, gave many speeches at law schools. For a while, to lighten the tone, he started each speech with a ‘lawyer joke’.

Example: What is the difference between a bad lawyer and a good lawyer? Answer: A bad lawyer makes a case drag on for years. A good lawyer makes it last even longer. Example: What looks good on a lawyer? Answer:  A Doberman.

But Rehnquist abandoned his practice when he discovered two things: First, the lawyers in the audience did not think the jokes were funny. Second, the non-lawyers in the audience did not realise they were jokes.[1]

Rehnquist’s discoveries illustrate a problem for the U.S. legal profession: Public distrust.  A 2020 Gallup poll found that only 3% of people surveyed found lawyers’ honesty and ethics to be “very high”, and only 18% found them to be “high”.[2] This public distrust is a perennial source of concern to the national legal body, the American Bar Association.  Its journal regularly features articles such as “What can lawyers do to combat their bad PR?”, which suggests that “carefully executed social media presences” can “build trust, erasing one lawyer joke at a time”.[3]

Rather than carefully curating  lawyers’ social media profiles, we suggest that a better approach to building public trust in lawyers would be revocation of  the American Bar Association rule that allows lawyers to lie when negotiating.  Yes, astonishingly, a disciplinary rule promulgated by the ABA (Model Rule 4.1(a)) allows lawyers to lie about non-material facts when negotiating on behalf of a client.

The very existence of that rule seems problematic. When you look at its legal meaning (or lack of), it becomes even more problematic.  Despite several attempts to define and limit the circumstances in which the rule allows US lawyers to lie, its meaning remains unclear.

One such attempt was a formal ABA ethics opinion, five single-spaced pages long, with 22 footnotes.[4] (The irony inherent in issuing an “ethics” opinion defining when lawyers can legally tell lies apparently was lost on the ABA.)  The perceived need for such a detailed guide to interpreting a one-sentence rule was itself an acknowledgment of the difficulty of interpreting it. We analyse the ABA’s opinion in a just-published law review article and conclude that it contains no coherent statement of principle and leaves the reader no wiser about what the rule means. Other attempts have been similarly futile — even failing to clarify the meaning of the most basic concept on which the rule is predicated: The distinction between material and non-material facts.

The justification for allowing US lawyers to lie about non-material facts seems to be that the recipients of the lies will not be harmed by them — because they will not rely on them, or not regard them as communicating facts. But if legally permissible false statements are trivialised to this extent, why bother making them? Better to tell the truth all the time and gain a reputation for trustworthiness.  On the other hand, if more substantive false statements are allowed by the rule, how can it possibly be justified?

This, we conclude, is an inescapable dilemma generated by a rule permitting lawyers to tell lies. The dilemma explains why all attempts to date to explain the meaning of the rule have failed.  It also explains why any further attempts would be equally futile.

Allowing lawyers to lie affects the image of the profession detrimentally and intensifies public distrust of it. It does enormous damage to the credibility and the moral authority of lawyers. It is damaging in another way also. If you know that the lawyer for your opponent is allowed to legally lie to you during a mediation in some, undefined, circumstances, the only prudent thing to do is to assume they are lying all the time and to disbelieve everything they tell you. So the rule not only generates public mistrust of lawyers, but also makes negotiations highly inefficient, because the parties cannot take anything they are told at face value.

The good news is that there is a straightforward solution to the problems raised in this post: Require lawyers to tell the truth, all the time (which is the position in Australia).  Rather than advocating PR to improve the public image of lawyers, the ABA should heal this self-inflicted wound by revoking Model Rule 4.1(a).

Robert Angyal SC is an Australian barrister and mediator and was admitted in the District of Columbia for 40 years. Nicholas Saady is a New York and Australian lawyer and mediator. Their law review article “Legal Lying? Comparatively Analyzing US and Australian Lawyers’ Obligations of Truthfulness in Mediation” has just been published in [2021] 21 Pepperdine Dispute Resolution Law Journal 355 (Issue 2).

[1] Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture (The University of Wisconsin Press 2006) at p. 3.

[2] Gallup, “Honesty/Ethics in Professions | Gallup Historical Trends” (2020) https://news.gallup.com/poll/1654/honesty-ethics-professions.aspx.

[3] Danielle Braff, “What can lawyers to combat their bad PR?”, ABA Journal (February 1, 2020) https://www.abajournal.com/magazine/article/many-people-ignore-their-legal-needs-because-they-dont-trust-attorneys-what-can-lawyers-do-to-combat-their-bad-pr.

[4] ABA Committee on Ethics and Professional Responsibility, “Obligation of Truthfulness in Negotiation and Mediation”, Formal Opinion 06-439 (2006).

Striking the Right Balance between Maintaining Confidentiality and Educating the Community about Discrimination

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By Dominique Allen

“ADR represents a symbolic harking back to a lost age when caring for others within a communal setting was of pre-eminent importance; it constitutes a reaction against the alienating and competitive style of dispute resolution fostered by an adversarial system.”

– Margaret Thornton, The Liberal Promise (Oxford University Press, 1990, 147)

Image: Unsplash

This year marks 30 years since Emerita Professor Margaret Thornton published The Liberal Promise, a critique of anti-discrimination law in which she argued that liberalism, in the form of anti-discrimination law, will be unable to achieve equality because it can do little to disrupt the power structures that maintain inequalities in society.

As Thornton writes, anti-discrimination law does not give people a right to be free from discrimination; it gives them a right to complain about their treatment. Now – as then – a person who has been discriminated against is required to lodge a complaint at their local equality agency or at the Australian Human Rights Commission. The agency must attempt to conciliate the claim before the complainant can proceed to a civil tribunal or to the Federal Court (other than in Victoria). Courts and tribunals usually attempt to resolve claims via mediation also.

In the chapter she devotes to conciliation, Thornton says that she is ‘equivocal’ about it. Her primary concern was that as the process is confidential, it can have little impact on discrimination in society; its effect is limited to the parties. She didn’t suggest that courts are the ideal forum for discrimination claims though. She writes that complainants find courts “hostile and alienating”, litigation is not well suited to dealing with the types of issues that arise in a discrimination claims, it is costly, and courts are not well equipped to deal with power imbalances, which are common in these disputes. Thus conciliation serves a valid purpose.

In this post, I consider whether Thornton’s concerns about conciliation still apply, drawing on interviews I conducted with barristers and solicitors in Melbourne and conciliators at the Victorian Equal Opportunity and Human Rights Commission in 2017-2019.

One of Thornton’s primary concerns was that although discriminatory acts take place “in the public arena”, the dispute resolution process does not allow public scrutiny of these acts. They must be dealt with confidentially and in a “non-threatening privatised environment”. A public hearing is a last resort.

I share her concern, particularly because in the three decades that have passed, the problem has been compounded by an increased use of confidentiality clauses (often termed Non-Disclosure Agreements).

My research revealed that confidentiality clauses are regularly included in settlement agreements. They prevent the complainant from discussing the nature of the complaint and the terms of settlement. Some are worded so tightly that they prevent the complainant from discussing the claim with anyone, even with a close family member. It is difficult for the law to have an educative effect when claims are privatised and hidden in this way.

However, the process may well educate on an individual level. Conciliators said that just by participating in the dispute resolution process and listening to the complainant talk about their experience, respondents can be educated about their legal obligations and may well introduce changes to their business or workplace as a result. In this way, the process itself becomes part of the solution and a way of addressing harm.

An advantage of conciliation, Thornton writes, is that it creates a space where complainants can achieve small victories which would be “unlikely, if not impossible” within the formal legal system. My interviewees confirmed this. They said that through conciliation, complainants negotiate changes to working arrangements, access to goods and services, modifications to the delivery of education, and compensation payments far in excess of what the tribunal is likely to award. The tribunal, by contrast, orders compensation, often at low amounts which may not be enough to cover the complainant’s legal fees.

So am I equivocal about conciliation? In my view it is an effective way for the parties to resolve the underlying issues that caused the dispute and potentially reach a shared understanding of what happened. They may even be able to maintain a relationship going forward, which is very important in the employment and education contexts.

Being heard and knowing that their complaint has been taken seriously is often very important to complainants. Litigation will not give them that opportunity. Nor are courts likely to make the systemic orders which are needed to tackle discrimination, whereas respondents do agree to wider outcomes at conciliation.

I’m in favour of conciliation with the qualifier that we must be aware of its limitations. Confidentiality precludes the law’s development, it may allow ‘repeat offenders’ to continue undetected and it hides the prevalence of discrimination in the community. We need to find ways to alleviate its limitations.

The balance has yet to be struck between the parties’ desire to contain the complaint and the community’s interest in knowing about the types of discrimination that still exist and how discrimination is being addressed.

Hybrids have arrived – hosted by the beautiful city of Vienna

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Hybrid processes are not new to those of us who teach and write in the ADR space. We have all heard of arb-med and med-arb. Some of us have even heard of Baseball Arbitration, Night Baseball Arbitration and Medaloa.

Step into the practitioner’s world and the view is different.

Here the processes of mediation and arbitration remain distant strangers, practised and accredited separately. Few practitioners have dual qualifications and even those who do are rarely comfortable with the concept of offering a hybrid process.

The next generation of practitioners is being given the opportunity of seeing things differently via a new student mooting program.

The starting point is the Willem C. Vis International Commercial Arbitration Moot (Vis Moot) which has just reached its 24th anniversary.

This moot tests the oral and written prowess of students in dealing with a complex international commercial conflict. This long established arbitration competition now has a sibling.

town hall vienna

View of the historic Town Hall in Vienna – site of the competition cocktail party. Photo Copyright Rosemary Howell

Established three years ago, the IBA-VIAC Consensual Dispute Resolution Competition (CDRC) commences in Vienna on July 10th at the beautiful University of Economics and Business (Wu Wien). Students participate either as negotiators or as mediators with separate scoring and evaluation for both roles.

The competition follows the Vis Moot and draws on the same case study (amended to remove all the procedural challenges of the arbitration). The competition opens with the news that the arbitration has been adjourned for a little over a week to give the parties the opportunity to see if they can resolve the conflict by mediation.

The competition gives an important signal that extends far beyond the students who are participating. The working committee drafting the problems has required consultation between arbitrators and mediators and encouraged a collaboration that is not often seen. Expert assessors too are being given experience in both the arbitration and mediation arenas.

The significant outcome is that not only is the next generation of practitioners being given the chance to consider hybrids up close, but practitioners are also joining the dots to draw together practices that once were very separate.

A great outcome.

Collaborative Practice – unique skillset or traditional lawyering?

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Student Guest Post by Ben Zocco

 

This post is the first in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best posts are published here.

 

 

The advent of collaborative practice as a means of resolving family law disputes has provided couples with a means of completing a divorce or separation in a conciliatory and cost effective manner. With more than 200 practitioners currently registered with the Law Institute of Victoria’s Collaborative Law Section, a significant number of lawyers have undergone training that allows them to practice collaboratively.

 

The Law Council of Australia’s Basic Training Requirements

In response to its increasing popularity of collaborative practice, the Law Council of Australia has published the Australian Collaborative Practice Guidelines for Lawyers. This document encompasses a series of “Basic Training” requirements in order to be recognised as being collaboratively trained. This set of overarching training requirements forms a best practice guide for ensuring practitioners engaging in collaborative law are appropriately prepared for acting in this unique practice area.

army-recruit-is-in-training-at-the-army-physical-training-school-brisbane-1942Image: Courtesy State Library of Queensland

 

The Basic Training requirements provide for the teaching of a range of skills that are unique to the practice of collaborative law. This is particularly so with the requirement that practitioners are provided with relevant training of the “collaborative model”.

 

What is Collaborative Practice?

Collaborative practice, as the name suggests, is a non-adversarial process used to resolve disputes. It requires the parties and their legal representatives to enter into a formal contract that puts the focus of the process settling a matter rather than resorting to litigation. Terms in the agreement generally refer to a commitment for each party to engage in the collaborative process in good faith and to share all available relevant information pertaining to the dispute with the other party. If the dispute is not resolved and parties seek to formally commence legal proceedings, the lawyers engaged in the collaborative process are contractually required to cease representing their clients. This requires the parties to engage new lawyers, generally at a significant cost, and serves as a major incentive to the parties to find common ground and work collaboratively to resolve their dispute.

Collaborative practice is conducted in the presence of each party and their legal adviser in what is described as a “four way meeting”. Several four way meetings take place over the course of a number of months, with each run according to agenda devised by the parties in consultation with their lawyers prior to the meeting. The conclusion of the four way meetings seeks to culminate in the drafting and execution of an agreement that resolves the dispute in a manner that is mutually acceptable to both parties.

 

The Unique Nature of Collaborative Practice

The collaborative model, as describe above, is an entirely unique approach to the resolution of disputes. While traditional mediation is also seen as an alternative to litigating matters, it differs from collaborative practice in many respects. The absence of a mediator in collaborative practice requires the legal representatives to facilitate the discussion rather than simply representing their client. Additionally, the capabilities necessary to operate collaboratively in the absence of a court-mandated framework for discovery and good faith negotiation is at odds with that of conventional alternative dispute resolution approaches. Accordingly, this skillset is unique to collaborative law practitioners.

The skills required of collaborative practitioners are also unique insofar as the model makes use of independent experts to facilitate the settlement of disputes. It is standard practice in a matter being resolved collaboratively to utilise the expertise of third party professionals, especially those who are trained as child specialists or financial advisors. These experts assist the parties and the lawyers in exploring interests (rather than positions) and potential options to satisfy the needs of the parties. Additionally, their experience assists the couple in being able to understand the impact of their separation on their children, as well as its effect on the financial position of each person once the dispute has finalised.

While the interaction of legal practitioners and independent experts is extremely common, the manner in which they work together in a collaborative setting compared with that of general legal practice is significantly different. In many jurisdictions, the relationship between independent expert is governed by a formal practice note, issued by the court. Lawyers typically engage independent experts by way of a formal retainer, setting out the advice necessary for the purposes of the matter. The expert will then write a formal report, setting out their findings. In many cases, an expert will be required to “hot tub” with an expert appointed by the opposing party in order to reach consensus conclusions and to narrow the issues in dispute. Additionally, experts retained in a litigation matter are subject to rigorous cross examination from other parties, adding an adversarial flavour to their contribution made for the purposes of resolving the matter.

In contrast, a collaborative approach requires each party to jointly appoint an expert, often by way of a shared recommendation by the practitioners representing them. The expert will work with each party in the room together and will rarely engage in separate discussions with parties individually. Rather than the lawyers approaching the assistance of an expert’s contribution as potentially suspect or misconstrued as may be the case in litigated disputes, they are able to respect and value their support in a truly collaborative fashion. Accordingly, the interdisciplinary approach to collaborative practice means a collaborative practitioner is required to have a unique skillset when involving experts in a matter being managed collaboratively.

 

Negotiation for All, Not Just the Collaborative

While there are many aspects of the “Basic Training” requirements that are unique to collaborative practitioners, it is clear that are not all exclusively within the domain of collaborative law.

A crucial example of this is the necessity that collaborative practitioners must be aware of and trained in negotiation theory; specifically, that of the differences between interest and positional-based bargaining.

A key tool in the arsenal of a collaborative practitioner is assisting the parties to consider the distinction between positions and interests. Unlike traditional positional bargaining, focusing on interests allows the parties to concentrate on the key issues that require resolution, rather than the parties becoming distracted on minor matters, falling into positional impasses or creating acrimony in the process. This prioritisation of interests, rather than positions, also assists the parties in being able to develop creative solutions that are mutually amenable, rather than being focused on finding a middle ground between two respective positions, neither of which may be the best holistic outcome.

But similar strategies are used in some forms of mediation generally, rather than solely within a collaborative setting. Facilitative mediation, for instance, also focuses on steering the parties toward concentrating on positions rather than interests. This occurs in a traditional mediation setting, involving the parties, their legal representatives and a trained mediator. Additionally, several popular negotiation courses offered by institutions such as MIT and Harvard University train legal practitioners and business executives to be aware of the distinction when being involved in a negotiation.

Accordingly, negotiation theory should not be considered solely a skill that is relevant to collaborative practitioners, but to the legal profession generally. Despite the differences in approach to alternative dispute resolution, ensuring that the legal profession is adequately trained to delineate between a client’s needs and wants should be recognised in considering the skills that are desirable for all practitioners to hold.

It is clear that collaborative practitioners are required to be appropriately trained in their interaction with fellow lawyers in a collaborative setting, the collaborative model in general and the manner in which the interdisciplinary focus of the practice differs from the general use of experts in a dispute. These are skillsets that, currently, are largely unique and confined to the practice of collaborative law. It is essential for the continued success of collaborative practice within Australia for the distinction between these attributes to other forms of alternative dispute resolution to be clear.

However, it can also be said that collaborative law requires skills that are not solely used within its discipline. A knowledge of negotiation theory is highly desirable for legal practitioners to possess for everyday dispute resolution, not just that involving collaborative practice. To that extent, it is clear that the collaborative practice “Basic Training” requirements of the Law Council of Australia encompass training that is both unique to collaborative practitioners and also relevant to the legal profession generally.

 

Mr Ben Zocco has recently completed Bachelor of Arts and Bachelor of Laws degrees from Monash University and will be commencing as a graduate lawyer with a national law firm in 2017. He has spent the later years of his legal education studying various forms of alternative dispute resolution and looks forward to the opportunity to put this knowledge into practice as a lawyer.

 

 

Lessons about Negotiation from the US Shutdown

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Now that we have seen the resolution (or postponement) of the impasse over the US budget and debt ceiling that shutdown the US government, what does it tell those of us who are interested in the dynamics of negotiation? Could we have predicted the outcome? Would principled negotiation have worked better in the long term?

In this piece in the Conversation, the fantastic website that helps bring academic work to a broader audience, I argue that the messiness of the negotiations and the one-sidedness of the eventual outcome were probably not predictable through any of our existing models of negotiation.

I value the work of many of our well-known negotiation theorists such as Fisher, Ury and Patton, Monookin and  Kornhauser and Cass Sunstein, because they help us to analyse the many variables at play in negotiation. They sharpen our focus on the specific dynamics of the bargaining process and help us to better understand what does and does not work. But my view is also that these approaches can’t adequately capture everything that occurs in negotiation. People don’t always negotiate as we would predict they should. Power is remarkably fluid, elusive and impossible to fit into any ‘model’ of negotiating behaviour.

Heretical views, and I know.  I am going out on a limb here. But the more I work in the field of dispute resolution, the stronger my views grow.

What do you think?