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Abstract This presentation reflects on the "story" of mediation in its modern Australia life and examines some of the key gaps and incongruities within that story. It draws on relevant literature in the field, on evidence from mediation practice, anecdote and conventional wisdom, and on some autobiographical reflections, in defining some key issues facing mediation and in suggesting how they should be analysed and understood. After outlining its goals and objectives, the presentation provides a short "life story" of Australian mediation and some of its dominant events and themes. It then examines several "gaps" in the mediation story which require attention and assessment. These include:
In conclusion the address will provide an "alternative mediation story" and suggest some guidelines for the road ahead. ABSTRACT How do we meet people's needs for family dispute resolution in the next millennium? Is there a better way to utilize existing resources or should the entire issue be resourced in a difference way? What part should mediation play in this? The panel members consisting of representatives from various parts of the existing system will express their views on these complex and difficult issues and canvass models for change. David Bryson NADRAC is the National Alternative Dispute Resolution Advisory Council. Its role is to advise the Commonwealth Attorney-General about the development of high quality, economic and efficient ways of resolving disputes without the need for a judicial decision. Part of its charter is to advise on minimum standards for the provision of alternative dispute resolution. Within the next few months the Council is intending to publish a discussion paper entitled ‘The Development of Standards for ADR’. The discussion paper will raise questions concerning the issues involved when considering the development of standards. It is not a prescriptive document, but it is designed to gather a range of views from the ADR community and others about a preferred approach to standards. The paper is very broad-ranging and covers not only mediation, but all forms of ADR. NADRAC sees the Mediation Conference as an opportunity for it to consult with the mediation community about the issues raised in the discussion paper. It suggests that the Conference include a workshop session where members of NADRAC will lead participants through discussions about the issues raised in the discussion paper and using practical examples, where appropriate, to elicit responses. The presenters of the workshop will be Mr David Bryson and Professor Laurence Boulle of the Council .
Mediation is rapidly becoming the preferred model of resolution for disputes of all kinds in Australia. Its wide acceptance and its many advantages to disputing parties cannot be denied, yet it remains a "behind closed doors" phenomenon, making peer review and quality control problematic. This paper will address the use of mediation in public issues matters and the demands it places on the role of the mediator and on mediation practice if settlements are to be durable - and in the public interest.
School of International Business, Griffith University, Brisbane, Qld. 4111 Tel: (07) 3875 7534 Fax: (07) 3875 5111 Email: L.Crump@mailbox.gu.edu.au Mediation, like environmental disputes in the public sector, is part of a larger field known as multiparty negotiation. Studies of multiparty negotiation focus upon a specific social force or are confined to a particular domain. Few studies consider multiparty negotiation in its entirety. To use a metaphor, in the multiparty negotiation forest the trees have been identified and labelled but the forest remains unmapped. This paper maps the field of multiparty negotiation by recognising that the literature divides into four general domains: (i) multilateral and international negotiations, (ii) public sector disputes, (iii) organisational and group negotiations, and (iv) three-party interactions. Each domain is reviewed to gain understanding of its fundamental nature and to identify primary social forces and common elements. Based on this review, (i) "party" and (ii) "relations between parties" are identified as fundamental to all multiparty negotiations; and may serve as central organising concepts for this field of study. These two concepts produce a four-part multiparty negotiation taxonomy that includes: (i) primary parties (e.g. negotiators or disputants), (ii) internal relations within a primary party (e.g., a negotiation team) or between cooperating primary parties (e.g., aligned or coalitional parties), (iii) third parties (e.g. mediators, arbitrators), and (iv) supporting parties (e.g. agents, advisers). This attempt to capture the entire field of multiparty negotiation should enhance understanding of negotiation and mediation process, while advancing theoretical development. * Please contact the author if you would like a copy of this paper.
Dale Bagshaw Coordinator , Centre for Peace, Conflict & Mediation, dale.bagshaw@unisa.edu.au This paper will provide a brief history of the development of dispute resolution in Australia, arguments for and against a national body and the advantages of, and barriers to, national coordination and information sharing. It will argue that information technology, such as ausdispute (a new not-for-profit, unique and independent ADR site on the World Wide Web) provides a golden opportunity to enhance national collaboration, debate and information sharing. The presenters will address how and why the website was developed, its short and long-term aims and objectives and current and future opportunities. The website can offer particular advantages/benefits for the dispute resolution field in Australia including: advancing knowledge, enhancing collaboration and debate between the various associations and organisations both within and between States and raising the profile of dispute resolution in the Australian and international community. During the conference and the presentation the presenters will conduct a simple survey to gather information from conference attendees and those unable to attend the conference about future issues for dispute resolution in Australia. The focus of the survey will be on the observations of the participants of problems facing the development of dispute resolution in Australia, suggestions for collaborative goals we should be aiming to achieve at a national level, and possible ways to achieve these goals. The survey will be managed in three stages: :
THE CHALLENGES MOST FREQUENTLY FACED BY MEDIATORS As a form of conflict resolution, mediation espouses the values of voluntary participation, empowerment and self determination. To accomplish the outcomes implicit in these stated values, mediation stresses the desirability of:
Further, it employs the process techniques of:
It is ironic that the process, skills and techniques of mediation are more demanding, and potentially more stressful, for parties than any other form of resolution, including adjudication. Further, the pursuit of the outcomes implicit in the values of self determination and empowerment have the potential to leave mediators disempowered, with their destiny indeed determined by others! At this stage in the developing practice of mediation it is timely to look at what we are asking parties to do and what we are requiring from ourselves as mediators. Awareness of the challenges will involve questioning of our stated values and sharpening of our practice. As we do when we are setting the agenda with participants in a mediation, we need to ask what should be added, subtracted or altered, so that we can proceed from an agreed foundation. Rather than feeling threatened by the challenges, we can feel optimistic that our faith in the process and strategies rests more solidly on what is achievable.
Craig Jones, Senior Case Manager, National Native Title Tribunal. craigj@nntt.gov.au Since the enactment of the Native Title Act 1993 (NTA) there has been intense debate about the relationship that indigenous Australians have with their land in relation to the rights of other land owners and about land management more generally. The National Native Title Tribunal (NNTT) has supervised mediation between native title holders, pastoralists, mining companies, governments and others. The Tribunal has developed a suite of mediation tools to deal with the various mediation circumstances presented under the NTA. This paper will focus on one of those tools/models and its use. The tool, known as parallel negotiation, is designed specifically to deal with a situation where conflicting Aboriginal groups are confronted with a development proposal. This situation has become increasingly common in Australia where companies have struggled to keep up exploration, mining and development schedules in order to ensure profitability. Also as a result of legal and political changes in the last fifteen years Australian companies are no longer able to ignore indigenous people as stakeholders in development proposals. While many companies and indigenous peoples have taken a positive approach to this set of circumstances they have often lacked the tools to see these interactions through to successful outcomes. This paper attempts to partly address this problem by positing a practical approach. The problem of conflicting Aboriginal groups and development has mostly been addressed by attempting to resolve the indigenous differences in the first instance followed by a period of negotiation in regard to the development proposal. Alternatively mining companies and governments have ignored the differences in the Aboriginal community and attempted some form of separate negotiation with each of the Aboriginal parties or attempt to completely ignore any negotiation with Aboriginal parties although this latter approach is an increasing rarity. Where there has been an attempt to resolve differences between groups there has been a reliance on the use of anthropologists to provide reports on the relationship to country of the groups involved. This method has often relied on the assumption that one of the groups has a better claim to the country in dispute. The parallel negotiation method attempts to address a number of problems inherent in negotiations between Aboriginal parties and development proponents. The model does not rely on the use of anthropologists as it does not assume at the outset that any particular group has a better claim than another, rather it relies on the notion of building an appropriate decision making group or community. The model attempts to deal head on with the issue of time - the resolution of dispute between Aboriginal groups often requires considerably more time than the development proponents timeframe - by dividing the process into a resolution of conflict component and a negotiation component. The division of components allows for effective time management in that the two processes can occur simultaneously and limits the infection of the negotiation component with issues from the conflict component (and vice versa). This model has particular application in future act processes (s29) and the Indigenous Land Use Agreement process of the NTA. The model has the advantage of enhancing indigenous decision making processes and allowing benefits to flow to the indigenous group while enabling development outcomes in a suitable timeframe. Rather than refer to indigenous peoples or indigenous Australians, I shall speak of Aborigines or Aboriginal peoples as the great majority of my experience has been with Aboriginal peoples on mainland Australia
Morgan Brigg, Mediator, Dispute Resolution Centres of QLD, QLD Dept of Justice and Attorney General Mediation and related conflict resolution processes are both identified and practiced as pragmatic and instrumental means to resolve a wide range of conflicts. The mediation approach is largely consistent with a rational, intellectual and instrumental approach to social relations derived from the human sciences and juridical and governance models of the West. This approach is currently being popularised through, among other means, the proliferation of economic discourse and rationality through various spheres of social life. In this context, there is a risk that the more transformative and visceral experiences which processes such a mediation can offer, particularly in cross-cultural encounters, will be lost to an ethos of 'deal-making'. These considerations are particularly apposite given the contemporaneity of reconciliation issues in Australia and the potential for mediation to facilitate agreements between Aboriginal and other Australians in a wide range of contexts. Beyond acknowledging the time and effort required to appropriately deal with the weightiness of the issues involved, one way to more fully harness the transformative opportunities offered by the reconciliation movement to our mediation practice is to draw on contemporary social theory and philosophy. In this paper I argue that the philosophy of Alphonso Lingis, particularly his approach to alterity relations, suggests one way of engaging more deeply with the issues involved. In his cross-cultural encounters, Lingis reflects on - and works at - shedding his cultural identity in order to fully expose himself to fundamental experiences of communication and trust so that the 'Other' emerges simultaneously as a contestation and affirmation of self. This approach moves beyond Western notions of a preconstituted self and builds trust, respect and responsibility for the Other. By drawing on Lingis' work, I suggest avenues to help us move beyond the instrumental-rational paradigm in our mediation practice.
David Cox ADR Co-ordinator, Legal Aid NSW Abstract The family law conferencing model utilised by Legal Aid NSW is a sophisticated dispute resolution process, well suited to assist couples to resolve difficult disputes about children. Conferencing incorporates a blend of mediation, conciliation and evaluation. Its strengths include the presence of the parties' lawyers throughout the conference to support and assist their clients. The evaluative aspect features the making of post-conference recommendations to Legal Aid NSW by conference facilitators on future legal aid funding. Conferencing is not a New South Wales creation: its origins lie at Legal Aid Queensland. However, the NSW model incorporates significant differences from that of its northern neighbour. First among these is that historically NSW has conferenced matters much further along the litigation pathway than Queensland - often not long before final hearings in the Family Court. Recently NSW, while continuing to hold these "late stage" conferences, has also introduced conferencing at a much earlier stage in disputes - immediately upon receipt of applications for legal aid, as in the Queensland practice. The continuing utilisation of conferences at both stages affords an opportunity for comparative evaluations which have relevance to the wider world of dispute resolution. Another development of note has seen the advent of active co-operation between the Family Court and Legal Aid NSW in a way which links the Court's process with the conferencing process. In consultation with the Court, Legal Aid has, on several occasions, conducted "block" conferencing exercises in conjunction with Family Court projects designed to reduce the Court's backlogs. The Court has assisted these exercises by supplying court lists in advance to enable legally aided matters to be identified, and by providing facilities for holding the conferences. Results to date have been promising. The use of telephone conferencing on a significant scale is a recent phenomenon in NSW, opening up the availability of conferencing to parties living in remote locations or a long way from each other. Comparative data on outcomes between telephone and face-to-face conferences reveals the telephone alternative to be more successful than one might expect. Finally, the results of a survey of user satisfaction with the conferencing process are also examined.
Andrew Bickerdike PhD Senior Mediator, Relationships Australia (Victoria) 46 Princess Street, Kew, 3101. Telephone: (03) 9261 8730, facsimile: (03) 9853 9158 E-mail: abickerdike@rav.org.au Many family mediators argue that the divorce adjustment process critically impacts upon the mediation process and outcome. Recent research lends some support to this view. There is also evidence that men and women experience divorce and separation differently. Perhaps the most consistently reported difference is the degree to which wives are identified as the ‘initiators’ of the decision to divorce. Females have also been reported to be more hostile and angry than their male counterparts, who in turn have been found to be more attached and less accepting of the decision to divorce. Other studies have reported higher morbidity and alcohol problems in separating men, whereas separating women report higher levels of distress and depression but also feel more positive about the separation/divorce. Some research suggests that women experience more distress early in the separation process whereas men are more distressed in the period just after physical separation or at least within the first year after divorce. This paper a outlines a research project designed to assess how disputant behaviour within family mediation is influenced by gender and the interaction of gender and these divorce adjustment variables. Mediation sessions of 50 couples were videotaped and the behaviour of husbands and wives subjected to an intensive microanalysis. Some of the predicted gender differences in divorce adjustment were found in the sample. Strikingly few gender differences in behaviour were apparent in the raw data. Across the entire sample wives and husbands exhibited near identical participation rates – suggesting that mediators were successful in keeping the interactions balanced. Gender differences in the content of these discussions tended to reflect traditional gender roles within marriage. Some of the more significant findings revolve around the interaction of the divorce adjustment variables and gender. For example, higher attachment in husbands predicted lower problem-solving behaviour in mediation. Additional analyses suggested that attached husbands may have avoided problem-solving in order to obstruct settlement. For wives, only antecedent levels of anger were predictive of the degree of problem-solving engaged in during mediation. The implications of these and other findings for the practice of family mediation are discussed.
Mark Clisby, Frances Meredith, francesm@camtech.net.au francesm@camtech.net.au Over the last two years Flinders University has worked closely with an external mediator to resolve individual grievances and conflicts where internal resources were either unavailable or less appropriate. This approach has been carefully developed by the University's human resource consultants as a specific strategy for line management to consider within a problem solving approach. The steps include:
Critical factors for the practice have been:
The presentation will provide the organisational context for the practice; a description of the practice and of the experiences with mediation over the two years; and will draw out some principles which may assist others who are seeking to use mediation processes for human resource matters, particularly individual grievances and interpersonal conflict.
Dr Ted Christie, tchristie@powerup.com.au Barrister & Mediator, Inns of Court, Brisbane. A/Prof (App Ecology) Griffith University, Brisbane. The past decade in Australia has seen ADR move to a "stage of adoption" where the process has become accessible to litigants and the community. However, for the "ADR momentum" to be maintained, a much more significant challenge lies ahead for resolving environmental and planning conflicts. The next stage is for ADR to be seen as an effective process for resolving planning and development conflicts in that negotiated solutions provide sound environmental outcomes. Contemporary environmental protection, planning and nature conservation legislation, throughout Australia, now includes the scientific concept of ecologically sustainable development ["ESD"] as part of the statutory object. ADR has a major advantage for resolving ESD conflicts, relative to the adversarial process, as it enables a number of management options to be evaluated along a continuum for ESD. In addition, contemporary environmental and planning legislation commonly seeks to achieve the object of the statute by "providing opportunities for community involvement in decision making". Accordingly, ADR will have a very significant future role in resolving planning and environmental conflicts. The following challenges for ADR for resolving planning and environmental conflicts will be discussed from a practitioner's perspective.
Jodie Ball & Tracy Raymond Human Rights & Equal Opportunity Commission Alternative dispute resolution has traditionally been a central component of anti-discrimination and human rights law. This paper will explore the manner in which alternative dispute resolution models have been adopted by agencies in Australia, Canada and the United States with responsibility for the administration of human rights and anti-discrimination law. It will be contended that a variety of alternative dispute resolution processes, ranging from mediation to arbitration, are woven through the complaint handling process of such agencies. The paper will provide an overview of the history of alternative dispute resolution as undertaken by the Australian Human Rights and Equal Opportunity Commission and compare and contrast the statutory conciliation model of this agency with approaches adopted by agencies in Canada and the United States. With reference to the work of the Australian Human Rights and Equal Opportunity Commission, the paper will consider strategies that have been employed to address criticisms of the use of alternative dispute resolution in the anti-discrimination/human rights context. Specifically, the paper will discuss strategies to enable substantive equality of process such as the use of advocates and adaptation of the form and style of dispute resolution procedure. The paper will also consider strategies that have been employed to enable resolution outcomes which accord with the broad social goals of anti discrimination legislation and to increase public awareness of resolution outcomes. Finally, the paper will comment on future challenges and promises for this area of alternative dispute resolution practice. In particular the paper will discuss the development of specialised training programs and mechanisms to assess the effectiveness of the conciliation process. The paper will also consider proposed changes to federal anti-discrimination and human rights law and the possible impact of these changes on alternative dispute resolution processes.
Joan Welsh, Carmel Blick Joan Welsh and Carmel Blick are both conciliators with the Health Rights Commission. They have both been in the job for approximately seven years and have quite different backgrounds. The presentation will highlight some of the differences, and some of the overlaps with a traditional mediation model. Features of the HRC conciliation model are: Flexibility Ways it is different from a traditional mediation model: Time taken to finalise complaints
Kim Wilson National Native Title Tribunal Over the past five years there has been considerable and detailed work done in relation to the development of the practice of native title mediation. During that period there has also been substantial changes made to the original legislation which was introduced in 1994. It is an important time to reflect on what has been learned about the practice of native title mediation. Is it, in fact, mediation? What are the main drivers in relation to native title mediation outcomes and is the elusive determination of native title the main point of the whole process. In this discussion I will attempt to visit some of the issues which have arisen in my experience over the last five years. In particular, I would like to discuss the role of various State governments and their approach to the mediation practice and consider whether this approach is as legitimate as it could be. Would also like to consider the issues that arise for native title claimants and, in particular, their management of process. This will implicitly involve the consideration of the role of representative bodies within the structure provided for by the Native Title Act. Against the background of the experience of the last five years, I will also give some consideration to the stage at which the whole process of native title is at, particularly in relation to the steps that are presumed to be important outcomes. Consideration and comment will be given about the complexities of obtaining final resolution where there are real outcomes on the table for native claimants. Within this discursive I will also consider the role for pure mediation and the relationship between that and the actual practice of native title mediation. The role of lawyers will be touched on and the need for parties and their advisers to become more outcome orientated. One of the features of native title mediation is the multi-party reality and some discussion will be held about the processes which can be implemented to move these mediations and the difficulties where there are so many interests, across so many areas, will also be discussed. The upshot of all these comments will be a suggestion that notwithstanding five years or more of native title mediation, when one looks at the situation in Australia, across all the States on a national perspective, it would be justifiable to propose that we are still at the pre-mediation stage.
NATIVE TITLE AND THE REGISTRATION TEST: MEDIATING PARADIGMS? SIAU – Families, Youth and Community Care Queensland Mediation within the context of Native Title disputes can be both a challenging and rewarding field. Disputes are often complex, emotive, and may involve numerous participants. The introduction of the Native Title Amendment Act 1998, has created a new regime for Native Title Claims through the creation, of amongst other things - a new Native Title Claims registration test process. Whilst not compulsory, satisfaction of the registration test requirements are desirable in most circumstances and provide claimant groups with additional rights including the right to negotiate over certain future government acts, particularly the issuing of mining tenures. However the administrative requirements of the registration test do not always neatly align with the cultural contexts of their application. New disputes may arise or existing disputes may be worsened in these circumstances. Mediation is one process which may be applied as a conflict management tool with relation to these issues. Yet a range of challenges exist, particularly for mediators facilitating resolution of these disputes. Some of these challenges may indeed be attributable to the juncture of ‘administrative’ and ‘cultural’ paradigms.
MEDIATION TRENDS AND EXPECTATIONS: A VIEW FROM ABROAD
From her vantage point of serving as President of the International Society of Professionals in Dispute Resolution (SPIDR) and directing a United States state court ADR program (Florida), Ms. Press will discuss trends in mediation and expectations for the future. Some of the prevalent trends to be discussed are: the paradoxical dual trends of a movement toward greater insitutionalization of mediation and the resurgence of community-based programs, including the increase use of mediation in the criminal and quasi-criminal arena; the legalization of mediation as evidenced by the development of mediation case law, promulgation of uniform laws for mediation, and increased claims equating mediation with the practice of law; the interest in further defining and understanding the styles and practice of mediation; and the internationalization of the field, particularly as evidenced by the advent of e-mediation sites and programs. Ms. Press will also share thoughts and perceptions on the merger discussions between SPIDR, the Academy of Family Mediators (AFM) and the Conflict Resolution Education Network (CREnet). The discussions by three dispute resolution organizations on the brink of merger provide a window into the complexities of merger discussions and ways mediators could assist with the process. Finally, an opportunity will be provided for questions and discussion.
A STRATEGY TO DEVELOP THE OPPORTUNITIES FOR AND QUALITY OF SERVICE AVAILABLE TO CLIENTS OF THE FAMILY SYSTEM Virginia Buring Lis Taylor Attorney-General’s Department Department of Family and Community Services The Commonwealth Government is committed to an effective family law system. Central to this commitment is the provision of primary dispute resolution (PDR) services, such as counselling, conciliation and mediation, which enable family members to resolve and manage their own disputes fairly and amicably. Commonwealth funding has been provided for many years for family and child counselling, family and child mediation and other family support programs. As a result of a recent budget initiative a strategy to further promote the effective use and provision of PDR has been developed. The strategy comprise four overlapping phases, which target the public, the professions, agency networks and PDR services respectively.
HAVING VOICE, BEING HEARD: THE IMPORTANCE OF PROCESS IN MANAGING CONFLICTS ARISING FROM LAYOFFS David Baker, david.baker@unisa.edu.au Centacare Family Mediation Servive The reduction of jobs and employee numbers through downsizing and lay-offs is increasingly becoming a favoured organisational strategy to manage costs. This creates huge possibilities of unresolved conflict with implications for many stakeholders and even whole communities. Organisational Development and Human Resource Management (OD/HRM) literature discusses strategies to manage downsizings. These strategies do not recognize and address the inherently conflictual nature of the events. Unless such conflict is addressed directly, it is rarely possible to understand it and use conflict management processes to reach mutually agreeable outcomes. The unresolved conflict may manifest itself in a variety of ways, ranging from individual stress to industrial disputation. The prevalence of downsizing is evidenced by the many terms used to describe it, including ‘lay-offs’, ‘building-down’, ‘compressing’, ‘down-shifting’, ’slimming down’, ‘demassing’, ‘delayering’, ‘dejobbing’, ‘deorganisation’, ‘decruitment’, ‘growth-in-reverse’, ‘leaning-up’, ‘rebalancing’, ‘refocusing’, ‘rightsizing’ and ‘redundancy’. Even the generic term ‘restructuring’ may be used euphemistically to mean the reduction of staff. More recent phrases include ‘release of resources’, ‘involuntary separation from payroll’, ‘career change opportunity’, ‘elimination of employment security’ and ‘excessed out’. All of these refer to the laying-off of staff either voluntarily or otherwise. At the same time, the use of euphemisms to refer to the process is evidence of how organisations often try to avoid explicit recognition of the conflict inherent in the situation. Conflict management and resolution approaches, especially mediation, emphasise that the following factors are particularly important for the management and resolution of disputes:
As well as encouraging managers to ignore the conflict inherent in downsizing, the OD/HRM literature also reflects the inherent power imbalances in the structure and management of organisations. The literature uses language that in effect advocates the perspective of only one side in an organisational conflict, that of the organisation and its agent, management. Addressing these power imbalances is essential for managing conflicts. The satisfactory resolution of conflicts is important to individuals involved in the layoff situations. But why should organisations want to resolve disputes at the time of layoffs? Isn’t it enough to get it over with as cost-efficiently as possible? Maybe not, given recent layoff literature that makes the point that the benefits organisations expect from layoffs are often illusory. The author proposes that the conscious use of ADR processes early in layoff situations could lead to better outcomes for all stakeholders.
Ray Fells University of Western Australia ABSTRACT Mediation is often suggested as an alternative method of resolving industrial disputes. However, the precise nature of mediation in industrial relations context is not clear as is demonstrated, for example, in a survey of WA practitioners. The paper explores the nature of mediation and conciliation in the industrial relations context and proposes a distinction between mid-cycle and end-game mediation. Two case studies are presented. They are both accounts of third party involvement in the resolution of deadlocked management-union negotiations. One example is Australian, the other is from Canada, thus providing the basis for comparative analysis. Those who advocate mediation generally place an emphasis on a facilitative approach but the evidence from two case studies suggests that a more interventionist approach may be more typical. The case studies also suggest that mediation will be used tactically during the course of a negotiation as well as a means of bringing the dispute to an end. This opportunity for a tactical recourse to mediation is increased where the legislation seeks to guide or control the conduct of negotiations would have been the case of the proposed amendments to the Workplace Relations Act, 1996. Although those proposals will not come into effect in the near future the move towards a greater use of mediation in the industrial relations arena is likely to continue. In view of this, some of the implications which arise from the opportunity to use mediation tactically are explored, including the development of a motivational perspective to mediation.
Bronwynne Luff Tweed Shire Councillor, 41 Adelaide Street, Tweed Heads, NSW, 2485 Ph/Fax: 07 5536 7232, Email: bronwynnel@softhome.net Any local government matter is fertile ground for conflict. It can arise amongst or between councillors, staff, residents, developers and other authorities. Apart from interpersonal differences, and competing interests of constituents, Councils consider the interests of future communities, against a background of uncertainty, increasing expectations of the community, and requirements of other governments. Recent examples in Tweed Shire concern river water quality, dam salinity, inter allotment drainage, daylight savings, methadone clinics, brothels, increasing densities of dwellings, subdivision potential, prime agricultural land, rare and endangered vegetation, as well as roads, green waste, balconies, views, maintenance of roads and parks. Opportunities abound to foment conflict for electoral gain. The recent election offers a case study of the types of conflicts that arise, and how these can be used to create contempt in the community for sitting Councillors and for staff. The need for community expectations to become realistic, so that together with government they can make informed choices about resource allocation and policy is urgent. While much is expected of politicians, much of the criticism and distrust by electors is unfair. The difficulty for governments to educate the community about the options and their consequences is critical, not only to optimise planning outcomes, but for the mental health of the community.
Rachael Field Lecturer, School of Justice Studies, Faculty of Law, Queensland University of Technology. School of Justice Studies, B Block, Kelvin Grove Campus – QUT, Victoria Park Rd, Kelvin Grove, Brisbane, Qld, 4059. Phone: (07) 3864 3188, Fax: (07) 3864 3992, e-mail: r.field@qut.edu au ABSTRACT In recent years awareness about the detrimental impact power imbalances can have on the equitability of a mediated outcome to a dispute has grown. This is in large part a result of the seminal work of Hilary Astor in 1991 for the National Committee on Violence Against Women. Some mediators claim, however, that they are able to minimise the impact of power imbalances, and create a level negotiating field with appropriate interventions. This argument is, on the face of it, at odds with an important aspect of mediation theory namely, that a mediator's presence in a mediation is for structure and process only. That is, theoretically, any attempt by a mediator to right an apparent imbalance compromises their neutrality and corrupts the process. This paper considers the intersection of claims by mediators that they can both redress imbalances of power in a mediation as well as maintain their neutrality. It critically assesses a number of strategies which have been proposed as guides on mediation practice in this context and proposes some future directions on this issue for the development of gender-appropriate mediation praxis in Australia.
Professor Hilary Astor Pro Dean, Abbott Tout Professor of Litigation and Dispute Resolution Faculty of Law, Sydney University Abstract Neutrality is central to the legitimacy of mediation. It is a key concept for mediators but one which is also constantly under attack. Many of these attacks have come from academics, some of whom appear to raise the issue of mediator neutrality only to have the pleasure of knocking it down. Mediators are understandably concerned about constant challenges to their legitimacy, especially when they are working in a new, and therefore vulnerable, area of endeavour and are striving to develop high quality mediation services. This paper seeks to provide an alternative to existing theories of neutrality. It seeks to achieve a number of things: to move away from neutrality towards a focus on maximising party control; to develop a theory that is sensitive to context and situation in mediation; to develop a theory that makes sense of and supports mediation practice. Although it is about theory, this paper takes the view that there is nothing so practical as a good theory. Paper Hilary Astor's paper has already been published in two parts in the Australian Dispute Resolution Journal as follows:
A NEGOTIATION-BASED APPROACH TO CONFLICT RESOLUTION
Faculty of International Business and Politics Griffith University, Nathan, QLD 4111 Phone: 07-3875-7736, Fax: 07-3875-5363, E-mail: Ciaran.Ofaircheallaigh@mailbox.gu.edu.au Large-scale resource development creates two sets of conflicts for indigenous people and communities in Queensland. The first, internal to indigenous communities themselves, arises from the fact that while large resource projects can offer significant economic benefits to communities whose incomes are often low, such projects can also cause major environmental damage to tribal lands and to indigenous cultural heritage and generate significant social problems. As a result indigenous communities are often divided about the desirability of supporting resource development, or about the terms on which it should be allowed to proceed. The second set of conflicts arises between indigenous communities and the mining companies and government agencies which undertake or promote resource development. The latter generally seek to minimise the cost, time and effort involved in developing mineral resources and to ensure that companies are free to conduct their operations so as to maximise profits. Such an approach is inconsistent with the desire of indigenous people to benefit from and have some control over development on their lands, to minimise negative impacts, and to have enough time to make community decisions in culturally-appropriate ways. This paper sets out in more detail the nature of the conflicts which arise within indigenous communities and between communities and resource developers and government. It then describes, drawing on case studies from Cape York and North Stradbroke Island, mechanisms developed by indigenous communities to deal with these conflicts using novel community consultation, decision-making and negotiation processes.
Janina Gawler Manager, Aboriginal Relations Ph: 03 9 283 3317, Fax: 03 9 283 3424, Email: janina.gawler@riotinto.com In 1993 CRA now Rio Tinto changed its approach to working with Aboriginal and Torres Strait Islander people following the High Court Mabo decision. The company stood aside from the "litigious" approach to land access and sought to engage in dialogue with Aboriginal people to gain access to land for exploration and potential mine developments. This was a major change in direction for the company led by the Chief Executive Leon Davis. The acknowledgement of the Native Title of Traditional owners and Their close connection to the land underpinned the formulation of Company policy which committed the company to engaging with Aboriginal and Torres Strait Islands stakeholders and their representatives to find Mutually advantageous outcomes. Economic independence through direct employment, business development and training were among advantages that Rio Tinto offered in negotiations. Central to the implementation to this approach was a willingness to resource the indigenous people to bring in their own advisors. Building relationships based on respect and agreed protocols for mediation enabled discussions to proceed to key principles for an agreement. The agreements included compensation for land disturbance and the establishment of formal committees to oversee heritage management of sites, as well as business and community development assistance. The paper will outline the learnings of the company from the highly publicised Century Zinc negotiations through to the less well known but still significant agreements with the Gumala Aboriginal Corporation for the Yandicoogina mine in the Pilbara and with the Birri Gubba people in Queensland for the Hail Creek mine and more recent principles of access with the exploration agreement with the Kimberley Land Council.
Dr Jen McIntosh Cathy Holmes Clinical Child Psychologist Manager Private practice Child & Adolescent Services at FMC A Background to Child Inclusive Practice in Mediation As implemented in June 1996, the Family Law Reform Act 1995 places increased emphasis on the use of mediation for primary dispute resolution and promotes the concept of 'parental responsibility' for couples with children who are separating. The Children's part (VII) of the Act emphasises the need for the best interests of the child to be represented in mediation and counselling practices. Recent research has demonstrated the potential of child inclusive practices to provide a greater level of support to parents and children (via information, facilitation and direct child consultation) than non-inclusive practices of mediation. A model of practice was developed and evaluated in 1997 and has evolved over the past 2 years into a comprehensive approach to working with children in family law mediation. This workshop will explore this approach including techniques o child inclusive practice, using a variety of mediums as outlined below. Workshop Objectives For participants to learn about the developments in direct child consultation in Family Law Mediation, its potential, limitations and some interview techniques. Workshop Overview
Methods:
AN EARLY INTERVENTION STRATEGY FOR RISK MINIMISATION: THE AUSTRALIA POST EXPERIENCE Ms Diane McDonald and Ms Anna Vagias, Resolutions Pty Ltd, Melbourne, Victoria Industries are continually searching for risk management initiatives that can assist in reducing the human and financial cost of workplace conflict. Sources of conflict such as interpersonal differences, poor work match or systems, performance management issues, change implementation processes and harassment often operate as both underlying barriers and / or driving factors for pre and post claim scenarios. Mr Anton Grodeck, Injury Prevention Manager (Victoria and Tasmania) of Australia Post, has identified that 80% of stress claims were traced to conflict in the workplace for the 1997 / 98 period. A Pilot Program with Australia Post has commenced incorporating a workplace mediation phase as part of the organisation’s early intervention strategy. Workplace mediation is available regardless of the worker’s compensation status. On referral, Resolutions’ workplace mediation model for Australia Post integrates a coaching component as the initial intake / assessment phase to:
Factors which support a mediation process are identified and facilitated prior to / or concurrent with occupational rehabilitation intervention to maintain or return the worker to productive employment. A qualitative study is being undertaken in conjunction with Australia Post to evaluate the role of mediation in improving workplace relations and reducing the subsequent cost of compensation when compared to traditional claims management strategies.
G. Giddings, thegiddingsfamily@telstra.com Law School Griffith University Jeff Gidding's session was a workshop rather than a paper presentation. He is happy to forward a copy of the materials that he handed out to participants at the conference after he returns to Australia in early-November. He can be contacted on email: thegiddingsfamily@telstra.com.
Dr Tom Fisher
ABSTRACT Within the context of family law mediation, this paper explores the issue of giving advice and performing related interventions that mask similar intentions. It does so in two ways. First, it examines some codes of conduct and professional standards from Australia, Canada, and the US. Second, it draws on personal experience as a mediator and recent literature concerning mediator interventions, particularly on the subjects of impartiality and neutrality, reframing, mediator pressure, ethics, and the concept of the mediator as ‘folkloric trickster’. The paper considers mediator interventions, such as reframing, creating doubt, questioning, and applying pressure to respond to a mediator’s specific concern. It concludes that obviously these do not fit the definition of giving advice in the narrow sense of recommending a specific course of action. Nevertheless, they also are not simply process interventions (rather than content ones). Instead, they are intended to redirect a party’s attention to hitherto unthought of or unarticulated substantive possibilities. As facilitative mediators, however, we should not agonise over such apparent abuses of our power. Rather, we should see the role of mediator, in broad terms, as that of being an advocate for the fair and effective use of the process of mediation to safeguard or enhance party self-determination. To forward this aim, mediators may use interventions that have the intention of imparting advice while still respecting party autonomy. Full paper (also published in Mediation Quarterly)
Robyn Carroll All inquiries to the author:
Abstract: The question whether mediators can and should be immune from liability arising out of their mediation practice largely has been addressed in piecemeal fashion through legislation and carefully drafted mediation agreements. Yet doubts persist that matters can be left as they are. Mediator immunity raises many questions and arguments can be made both for and against it. What is the impact of removing or restricting the possibility of civil action against mediators? Does immunity also impact on mediator behaviour? More specifically, does it lower the standard of conduct of mediators who operate with legal immunity by reducing their accountability? If mediator immunity is justified, what level of immunity should this be? Should it be absolute, or qualified in some way? This article addresses these and other questions and suggests that closer attention needs to be given to justifying the immunity currently available to mediators. Full paper (long - separate file)
Valerie Sinclair & Paul Lewis Valerie Sinclair: Mediator, Family and Child Practitioner with UNIFAM
Phone: 02 9261 4077 Fax: 02 9261 3255 The Family Law Reform Act, 1996 and government policy brought about changes which gave renewed emphasis to referral to alternative dispute Resolution and mediation in particular. Consequently, there has been continued debate between practitioners and in the literature about whether mediation is superior to litigation. This paper proposes that rather than a mediation versus litigation approach, a constructive way to approach the issue is to look at how the legal system and mediation can work together to achieve the best outcomes for clients. We outline a way of working in the Family Mediation area with both disciplines involved and their distinct roles maintained. The paper looks at how this way of working can address issues raised in the mediation versus litigation debate.
Tom Altobelli LL.M (Syd), Altobelli & Associates, 1st Floor, 300 Forest Road, Hurtsville, NSW, 2220 Phone: 02 9570 9866 Fax: 02 9579 5221 Email: tom_altobelli@uow.edu.au The last decade of the 20th Century has been a period of significant growth for ADR in Australia, and this augurs well for continued development in the new millennium. There has been a proliferation of ADR legislation. Attitudes and practices within the legal profession and court systems have changed so that ADR is more readily accepted. Governments, institutions and corporations use ADR often as part of a systematic approach to preventing, managing and resolving disputes. Dispute systems design principles are being implemented more often in diverse situations. There has been a change in the culture of dispute resolution within Australia attributable in part to peer mediation in schools, ADR teaching and training in under-graduate courses including in the law schools, and the adoption of different management philosophies which recognise the importance of relationships. There are still treats, however, including the threat of institutionalisation, the loss of ADR's distinctiveness, and lack of unity within the ADR profession itself. In this paper the writer highlights and critically evaluates some of the major events and trends in ADR in Australia an the 1990's and suggests that the promise of the future is even greater than the promise of the past.
R. Blenkiron This paper seeks to explore the issues surrounding the use of conciliation process in a legal jurisdiction where there is an onus of responsibility, as defined by legislation, to resolve complaints in this manner. The jurisdiction is equal opportunity and human rights law. The paper will debate the issues surrounding the practice of conciliation and whether or not the intended beneficiaries of such processes are indeed those who benefit. Does alternative dispute resolution aide those most aggrieved and put at risk in our community of discriminatory practices, in all areas of public life. For those for whom the law is least accessible there is a real possibility that conciliation is a construct which further alienates and dis-empowers those without legal and/or advocate representation. Who are the winners and losers and why? Is, in fact, the process itself discriminatory and, within a culture of complaint, a suitable remedy for the profile of complaints and the allegations currently before Commissions such as the South Australian Equal Opportunity Commission. The paper will aim to stimulate thought provoking analysis of the processes and procedures associated with this method of conflict resolution in a jurisdiction that is both emotionally charged and characterised by inequities and emotional trauma.
Bobette Wolski Bond University, Gold Coast, Queensland Ideally, all those affected by and interested in public issue disputes, defined here as disputes that affect the welfare of the greater community, the agencies of government, and the general public interest, should participate in their resolution and in the design of processes used for their resolution. This paper identifies some of the challenges involved in securing meaningful stakeholder participation in the resolution of public issue disputes. These include problems of identifying potential stakeholders, identifying legitimate representatives and ensuring they fulfil their role, managing multiple parties and multiple issues, obtaining "consensus" of multiple parties, and ensuring implementation of agreements. The focus of the paper is upon environmental disputes, by far the largest category of public issue disputes. The paper also examines some existing procedures for public involvement and participation in the resolution of environmental disputes with a view to highlighting their strengths and weaknesses. Finally, the paper outlines a range of dispute systems design principles, that is, principles for the design of low-cost interest-oriented resolution systems and uses those principles as the basis for recommendations to improve participative procedures and to enhance stakeholder involvement and input into decision-making.
Danny Crossman & Jim Cyngler Partners, Concord Conflict Management Pty Ltd. 3rd Floor, 472 Bourke Street, Melbourne Vic 3000 Telephone: (03) 9824 8434 or (03) 9608 7691 Email: prosolve@msn.com.au Session Aim To outline Concord’s "Dialogue and Synthesis" model for resolving issues in multi-party settings where there is conflict between the participants. Concord has developed a model for moving participants from a situation of intense conflict and emotion to one of constructive group dialogue and problem solving. This model was successfully trialed in Israel, dealing with the most contentious and divisive conflict facing the Israeli population: religious-secular conflict. Session participants will learn how the model works, and how to achieve constructive group dialogue and a shared understanding of underlying interests in situations that may involve high levels of conflict and mistrust. We will show how the competing needs can be synthesised into a range of options that the participants can evaluate so as to achieve an outcome that meets their needs. The session will focus on an exposition of the model of "Dialogue and Synthesis". The session will be interactive and participants will have an opportunity to discuss the matters raised.
Rod & Barbara Chapman, Coordinators, Regional Extended Family Services – South-East Queensland REFS mediation and family reconciliation service assists young people (12-18 yrs) and their families deal with many of issues facing families as young people approach and pass through adolescence. Conflict, when it does occur, usually revolves around a lack of perceived freedom on the adolescents part. Adolescents are beginning to reach out and explore things, and sometimes expect to do as they please. Parents usually like to exert some sort of control over what their adolescent does and this can lead to conflict. A whole range of issues can trigger conflict, such as:
Many of the issues are to do with adolescents acting to achieve independence and autonomy. How does the REFS mediation model assist families in dealing with conflict? REFS utilises a co-mediation model involving trained volunteer adult and young people as mediators. The effectiveness of the REFS approach is attributed to a large extent to the involvement of peer mediators in the process. Client feedback attests to positive outcomes achieved through this mediation model. The young mediators constantly refer to the skills they have acquired through the training process and how they have been able to apply them to their daily lives. Client feedback indicates that a substantial number of young people in conflict may not have engaged in the mediation process without the involvement of a young mediator. How do young mediators respond to training? REFS training is practical and participation oriented. Trainees are encouraged to test learned skills by becoming involved in role-plays based on real life scenarios. The young trainees excel in this type of training environment, frequently outplaying their adult fellow students. The specific role undertaken by the young mediator in recording and reading back statements is particularly suited to adolescents, because of their well practiced skills in note taking from school, university etc. Where do the young mediators come from? REFS has established strong links with secondary schools through the REFS program. These schools encourage students to participate in training. Young people who may wish to pursue a career in the area of social sciences are usually willing candidates. The skills that the students acquire may also be adapted for use within a school peer mediation program.
Fred Stern Peer Mediation has now been in Australian Schools for several years. It teaches students the skills of mediation in assisting other students to resolve their conflicts peacefully. Whilst peer mediation has been taught quite extensively around many parts of Australia, little research exists as to how this process has been implemented. A number of American researchers have looked at peer mediation programs in the United States with positive results. It was decided to research thirty schools within Victoria to determine the basic question of implementation of peer mediation. Fifteen secondary and fifteen primary schools were used in this study. Schools were chosen from both metropolitan and country areas to participate. A variety of different peer mediation programs were used within schools. Each school was asked to provide for interview; the primary person responsible for running the program, another person within the school who knew about the program but was not directly involved and two students who had mediated cases on behalf of the school. The outcomes of this research project are qualitative and themes are used to report on the different outcomes. Questions asked during interviews included;
Dale Bagshaw, dale.bagshaw@unisa.edu.au Coordinator, Centre for Peace, Conflict & Mediation University of South Australia This paper will investigate the strengths and weaknesses of postmodernist and poststructuralist ideas for mediation at the beginning of the new millennium, a time of unprecedented change. It offers a critique of postmodernism and poststructuralism and argues that some aspects of postmodernist thinking are important to mediation, in particular the recognition of the power of language to reflect and shape the world. Post-modernism offers mediators a new way of thinking about thinking. Much of mediation theory can be located within modernity – characterised by an emphasis on rationality and scientific knowledge. Scientific discourse has been about things and facts, with the researcher located outside the phenomena being studied so that they can comment authoritatively. However such discourses have been seen to construct the phenomena they purport to objectively study and there have consequently been recent shifts in social science research towards exploring the unique, local and everyday aspects of the life of the subjects of the research. Postmodernism is a term used loosely to describe cultural, social and political changes occurring in Western society. A modernist culture, built over the last few centuries around forms of rationality, self-discipline and bourgeois values is succumbing to the effects of rapid technological and economic change. New cultural forms are emerging, challenging traditional values and ways of thinking. There is a realisation that the grand or meta theories of modernity do not adequately explain the human condition. A weakness of modern thinking was the search for unitary definitions and the reduction under one label of complex clusters of thought. Postmodernists, such as the French philosopher Michel Foucault, suggest that shared ideas about reality are social constructions or products of social discourses that both emerge out of and shape social processes. Foucault identified the crucial role of discourse in producing and sustaining hegemonic power and emphasised the challenges contained within marginalised or unrecognised discourses. Of particular significance to mediators is Foucault’s idea that not all social discourses are equal. The voices of disempowered people, such as children, tend to be marginalised by the voices of people in power, which tend to become privileged and accepted as ‘truth’ or ‘knowledge’. Foucault’s work challenges structuralist understandings of natural order, fixed truth, knowledge, identity and the operations of power. Foucault saw power/knowledge produced at any point in history as contributing to the production of ‘subjects’ or subjective identity in three main ways. Firstly, through scientific discourses which objectify and label people as ‘normal’ or ‘deviant’. Secondly, through dividing practices or ‘dualisms’ where people are either divided within or from others – mad/insane, sick/healthy, male/female. Thirdly, through self-regulation – placing governmentality within ourselves – aided by processes such as counselling, the confessional and now, maybe, mediation? From a postmodernist perspective it is the clients who supply the interpretive context for determining the meanings of events, the nature of a presenting problem, intervention and treatment, which requires the mediator to take a reflexive approach to practice and to research, and above all, to have communication competence.
John Briton & Susan Brady Director Dispute Management Services School of Social Work & Social Policy PO Box 5055 West End Q 4101 University of Queensland. Ph: 07 38443658 Email dms@powerup.com.au This paper will focus on the major issues confronting practitioners involved in mediation-based facilitation approaches and advocacy approaches to resolving multi- claimant disputes about abusive past policies and practices in human service delivery. Since the 1970’s a plethora of inquiries into questionable past policies and practices affecting large numbers of people and children in institutional care settings have left well-documented histories of exploitation, abuse, and neglect. Today government is involved in seeking to redress these past abuses through mediated approaches and more generally through reconciling with the aggrieved persons the wrongs of the past. The paper will identify and describe the broader contextual issues and characteristics of these disputes that frame the approach to be taken, including:
The paper will take a wide-angle look at reflections from a practitioner’s perspective on the strategic management of professional issues like
The paper will conclude with the proposition that the nature of these types of disputes creates a set of dynamics more particularly suited to an approach focused on negotiated reconciliation rather than formal mediation. |
MINDING THE GAPS, REFLECTING
ON THE STORY OF AUSTRALIAN MEDIATION