Fifth National Mediation Conference, 'Mediation: Past and Promise'

Brisbane, Australia, 17–19 May 2000

Conference brochure (PDF 220 kb)

Abstracts of most of the papers are provided here. The full text of some papers is also available.
 

Tom Altobelli, Altobelli & Associates, NSW
'Mediation in the nineties: the promise of the past'

The last decade of the twentieth 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 undergraduate courses including in the law schools, and the adoption of different management philosophies that recognise the importance of relationships. There are still threats, 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 highlighted and critically evaluated some of the major events and trends in ADR in Australia an the 1990s and suggested that the promise of the future is even greater than the promise of the past.
 

Bruce Argyle and Kerry Williamson, Regional Extended Family Services Incorporated (REFS)
'Past experience of mediation involving larger groups' (PDF 42 kb)

Since 1989 REFS has worked intensively with people experiencing varying degrees of conflict. REFS' approach to conflict resolution recognises and respects the ability of parties to take responsibility for finding solutions to their own issues. The REFS model works at developing communication and problem solving skills and strengthening relationships. In recent years mediators in the REFS team have been involved in a number of conflict situations involving multiple parties. This has challenged staff to adapt the principles used in our co-mediation model to scenarios involving from 3 to 30 people. Scenarios have included gang/class conflicts in schools, workplace conflict, shared accommodation and extended family situations. Typically there is one or more persons who is more committed to resolving issues, discipline issues to be addressed and significant power imbalances often seeing one person pitted against a larger group. Adaptations have involved the use of three mediators, segmented/split mediations, the selection of representatives for groups and the use of support persons for less powerful parties. Outcomes to date have been most encouraging with parties agreeing to more than one session, respect and communication between parties facilitated, written agreements achieved and adhered to. Feedback from the wider school, workplace environments and referrers have been positive.
 

Hilary Astor, Pro Dean, Abbott Tout Professor of Litigation and Dispute Resolution, Faculty of Law, Sydney University
'Reinventing neutrality: bringing theory and practice together'

Neutrality is central to the legitimacy of mediation. It is a key concept for mediators but one that 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 provided an alternative to existing theories of neutrality. It moved away from neutrality towards a focus on maximising party control; developed a theory that is sensitive to context and situation in mediation; and developed a theory that makes sense of and supports mediation practice. Although it was about theory, this paper took the view that there is nothing so practical as a good theory.

This paper has been published in two parts: 'Rethinking Neutrality: A Theory to Inform Practice – Part 1', (2000) 11 Australian Dispute Resolution Journal 73 and 'Rethinking Neutrality: A Theory to Inform Practice – Part 2' (2000) 11 Australian Dispute Resolution Journal 145.
 

Dale Bagshaw, Coordinator, Centre for Peace, Conflict & Mediation, University of South Australia
'The three Ms: mediation, (post)modernism and the new millennium'

This paper investigated the strengths and weaknesses of postmodernist and post-structuralist ideas for mediation at the beginning of the new millennium, a time of unprecedented change. It offers a critique of postmodernism and post-structuralism 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. Postmodernism 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.
 

Dale Bagshaw, Coordinator , Centre for Peace, Conflict & Mediation and David Baker, Ausdispute Website Manager, Centre for Peace, Conflict & Mediation, University of South Australia
'Information technology and ADR: a way to achieving a national association'

This paper provided 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 argued that information technology such as Ausdispute (a not-for-profit, unique and independent ADR website) provides a golden opportunity to enhance national collaboration, debate and information sharing. The presenters addressed 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.
 

David Baker,
'Having voice, being heard: the importance of process in managing conflicts arising from layoffs'

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 recognise 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 use of euphemisms such as 'delayering', 'slimming down' and 'career change opportunity' 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: recognition by the parties that a dispute exists; direct participation in the process by the parties including opportunity for them to be heard and to express their views and needs; open and equal access to relevant information and recognition of imbalances of power; commitment to the achievement of a mutually acceptable agreement; and acceptance of third party intervention. 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 conscious use of ADR processes early in layoff situations could lead to better outcomes for all stakeholders.
 

Jodie Ball and Tracy Raymond, Human Rights and Equal Opportunity Commission
'Alternative dispute resolution in the context of anti-discrimination and human rights law: reflections on the past and directions for the future'

Alternative dispute resolution has traditionally been a central component of anti-discrimination and human rights law. This paper explored 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 was 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 provided 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 considered 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 also considered 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 commented on future challenges and promises for this area of alternative dispute resolution practice. In particular the paper discussed 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.
 

Andrew Bickerdike, Senior Mediator, Relationships Australia (Victoria)
'Process research in family mediation: the influence of gender and divorce adjustment on disputant behaviour'

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 outlined 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.
 

Ruth Blenkiron, Deputy Commissioner, SA Equal Opportunity Commission
'Mediation: the new medicine for the new millennium – fact or fiction?' (PDF 61 kb)

This paper explored 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 debated 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 aid 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 that 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 aimed 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.
 

Laurence Boulle,
'Minding the gaps: reflecting on the story of Australian mediation'

This presentation reflected on the 'story' of mediation in its modern Australia life and examined some of the key gaps and incongruities within that story. It drew 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. The presentation examined several 'gaps' in the mediation story that require attention and assessment. These include: the gap between social and economic pressures and the 'core' values of mediation; the gap between mediation theory and its practical application; the gap between justice and efficiency; the gap between supply and demand in the operation of mediation; the gap in mediation's status between professional service and economic commodity; and the gap between what works in mediation and our knowledge of what works. The address concluded with some guidelines for the road ahead.
 

Morgan Brigg, Mediator, Dispute Resolution Centres of QLD, QLD Dept of Justice and Attorney General
'The promise of cross-cultural mediation: the visceral and the transformative'

Mediation and related conflict resolution processes are both identified and practised 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 that 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.
 

John Briton and Susan Brady,
'Public controversies in human service delivery: multi-claimant disputes about abusive past policies and practices'

This paper focused 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 1970s 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 described the broader contextual issues and characteristics of these disputes that frame the approach to be taken, including: the large number of aggrieved persons, and their multiple disadvantage: separation from family, disability, and powerlessness during their abusive experience; their deep and longstanding hurt and anger, compounded by initial disbelief; their often naive and unrealistic expectations of justice and litigated approaches; the absence of certainty about the facts they describe; their side of the table having a highly ‘personalised’ presence, but the other having more of a corporate presence with many of the key players historically now notably absent; and the power imbalance of financial and intellectual resource, negotiating experience, and composure. The paper took a wide-angle look at reflections from a practitioner’s perspective on the strategic management of professional issues like: framing success; being genuinely inclusive of and managing large numbers of participants; managing meaning; responsibility for securing fair and equitable outcomes; and roles of advocates. The paper concluded 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.
 

David Bryson and Laurence Boulle,
'Developing standards for ADR practitioners'

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.
 

Virginia Buring, Attorney-General’s Department, and Lis Taylor, Department of Family and Community Services
'Promoting and enhancing primary dispute resolution: a strategy to develop the opportunities for and quality of service available to clients of the family system'

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.

Effective public information and communications. This phase aims to promote PDR among actual and potential 'consumers' in the family law system, by the provision of timely, specific, relevant and accessible information. It comprises a comprehensive analysis of information needs, the development of a communications strategy, and the design and delivery of appropriate information, especially through the family law line.

Improved dispute management practices. This phase aims to improve the effective use of PDR at a national level by building dispute management practices within the key 'gatekeeper' agencies, especially the legal profession and community and health agencies. Projects identify and promote good practice in matters such as dispute diagnosis, referral, negotiation and advocacy within a PDR context.

PDR Partnerships. This phase aims to promote the effective use of PDR through local and regional partnerships. Unlike the professional development activities above, partnership projects focus on cooperation at the local level between the agencies and professions that deal with family law disputes. They develop integrated and collaborative approaches for the early and effective use of PDR services in the community, and may include, for example, inter-agency training, action research, community education and referral protocols.

PDR service enhancement. This phase aims to build the quality and availability of PDR services in the community, through approved community organisations, the legal aid commissions, and through the Federal Magistrates Service. Priorities include targeted funding for new PDR services especially in rural, regional and remote Australia, and the development of a regulatory and quality regime for counselling and mediation services.
 

Robyn Carroll, Senior Lecturer, Law School, University of Western Australia
'Mediator immunity: time for reflection' (PDF 141 kb)

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.
 

Rod and Barbara Chapman, Coordinators, Regional Extended Family Services, southeast Queensland
'Adolescents as mediators? I'd like to see that'

REFS mediation and family reconciliation service assists young people (12–18 years) 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 adolescent's 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: physical appearance (hairstyle, clothes), choice of friends, schoolwork, household chores, leisure time (parties, nights out, etc.), sibling rivalry, money issues,·drug taking, drinking; sexual relations·and parenting styles (too strict, etc.). 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 uses 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. 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. 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.
 

Ted Christie, barrister and mediator, Inns of Court, Brisbane; A/Prof (App Ecology) Griffith University, Brisbane
'Contemporary challenges for resolving planning and environment conflicts through ADR'

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 were discussed from a practitioner's perspective: scientific data and terminology conflicts; multi-stakeholder participation; the choice of ADR process; and dispute resolver skills.
 

Mark Clisby and Frances Meredith,
'Development of principles for best practice: the external mediator in the workplace'

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: 1. an in-principle decision to use mediation, after consultation and problem analysis with line management, the parties and the mediator; 2. briefing and definition of parameters for the mediation; 3. the mediation process; and 4. tailored debriefing and exiting of the mediator. Critical factors for the practice have been: 1. careful preparation by the internal consultant which includes a focused and targeted approach which prepares the parties for the mediation; 2. close liaison between the mediator and the consultant throughout the process; 3. keeping a clear distinction between the organisational level (process-based problem solving) and the mediation level (content-based problem solving).

The presentation provided the organisational context for the practice; a description of the practice and of the experiences with mediation over the two years; and drew out some principles that may assist others who are seeking to use mediation processes for human resource matters, particularly individual grievances and interpersonal conflict. 
 

P Condliffe, P Walker, Bee Chen Goh, B Sipe and N Alexander (panel),
'Culture and conflict: mediating in the cultural soup'
 

David Cox, ADR Co-ordinator, Legal Aid NSW
'Legal aid family conferencing: recent developments in New South Wales' (PDF 87 kb)

The family law conferencing model used 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 use 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 cooperation 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.
 

Danny Crossman and Jim Cyngle, Partners, Concord Conflict Management, Melbourne, Vic
'A model for achieving constructive group dialogue in conflict situations'

The aim of this session was 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 trialled 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 showed 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.
 

Larry Crump, School of International Business, Griffith University, Brisbane, Qld
'Establishing parameters in multiparty negotiation'

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.
 

Ray Fells, University of Western Australia,
'A tactical opportunity? Different perspectives on the role of mediation in industrial relations' (PDF 77 kb)

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 explored the nature of mediation and conciliation in the industrial relations context and proposed a distinction between mid-cycle and end-game mediation. Two case studies were 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 were explored, including the development of a motivational perspective to mediation.
 

Rachael Field, Lecturer, School of Justice Studies, Faculty of Law, Queensland University of Technology
'Mediation praxis: the myths and realities of the intersection of mediator neutrality and the process of redressing power imbalances' (PDF 35 kb)

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 considered 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 assessed a number of strategies that have been proposed as guides on mediation practice in this context and proposed some future directions on this issue for the development of gender-appropriate mediation praxis in Australia.
 

Tom Fisher, School of Law and Legal Studies, La Trobe University
'Advice by any other name: interventions that mask similar intentions' (PDF 66 kb)

Within the context of family law mediation, this paper explored the issue of giving advice and performing related interventions that mask similar intentions. It did so in two ways. First, it examined some codes of conduct and professional standards from Australia, Canada, and the US. Second, it drew 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 considered mediator interventions, such as reframing, creating doubt, questioning, and applying pressure to respond to a mediator’s specific concern. It concluded 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.
 

Janina Gawler, Manager, Aboriginal Relations, Rio Tinto
'Mediation, native title and mining'

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 Islander 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 outlined 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.

Jeff Giddings,
'Conflict mapping the Olympics: learning by doing ADR' (workshop)
 

Ian Hanger,
'The future of ADR in commercial dispute resolution'
 

Emma Jakku,
'Science and advocacy in the magnetic keys controversy: boundary work in environmental disputes'
 

Craig Jones, Senior Case Manager, National Native Title Tribunal
'Parallel negotiation: tradition and development'

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 focused 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 partly addressed 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 disputes 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). 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.
 

J Kalowski,
'Beyond deal making: mediation in the public arena'

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 addressed 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.
 

F Kingham and K Ryan,
'Mediation with the land and resources tribunal'
 

Brad Lewis, SIAU – Families, Youth and Community Care Queensland
'Native title and the registration test: mediating paradigms?'

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 that 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.
 

Bronwynne Luff, Tweed Shire Councillor, Tweed Heads, NSW
'Conflict and local government: Tweed Shire, a case study'

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 saving, 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.
 

Diane McDonald and Anna Vagias, Resolutions Pty Ltd, Melbourne, Victoria
'The role of workplace mediation in the resolution of workplace conflict: an early intervention strategy for risk minimisation, the Australia Post experience'

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: identify issues/sources of conflict; discuss and assess the appropriateness of mediation; facilitate a higher level of style awareness and self-management strategies; and enhance communication skills and conflict management. Factors that 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.
 

Jen McIntosh, clinical child psychologist, and Cathy Holmes, Child & Adolescent Services, FMC,
'Advances in child-inclusive practice in family law 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 two years into a comprehensive approach to working with children in family law mediation. This workshop explored this approach including the history and current debate, and techniques of child-inclusive practice.
 

R McSwan, M Browne, J Rimmer, A Campbell, M Ponder, J Dewar (panel discussion),
'Family dispute resolution: pathways to the future'

How do we meet people's needs for family dispute resolution in the next millennium? Is there a better way to use 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 expressed their views on these complex and difficult issues and canvassed models for change.
 

Richard D Margerum and John Minnery, School of Planning, Landscape Architecture and Surveying, Queensland University of Technology
'New roles and expectations: teaching conflict management to planners and landscape architects'

Conflicts are common in planning and landscape architecture, because they often involve team work, land, financial investments and community concerns. Increasingly, planners and landscape architects are being called upon to manage these conflicts and prevent them from entering political and legal forums. In particular, they are asked to assist with public conflicts that raise issues about roles, representation and process. To meet these challenges, they need to become more aware of the techniques, approaches and limitations of negotiation, facilitation and mediation (which we refer to as conflict management).

In 1999, the School of Planning, Landscape Architecture and Surveying began teaching a unit on conflict management. The unit is situated in the third year of a three-year pre-professional undergraduate bachelors degree. Prior to undertaking the unit, the students also took units in group dynamics, sociology and culture, politics and law, and ethics. In designing the unit, our aim was to expose students to some of the skills and techniques that they can use to manage conflicts. This was accomplished through practice exercises, discussions, and a three-week role-playing scenario involving a land use controversy. Because many of the students have limited experience, we also wanted to raise their awareness of the range of potential conflicts. Therefore, we included a series of lectures from professionals in which they described examples of formal and informal conflict management approaches and discussed lessons from their experience. Throughout the semester, the students also had to collect and analyse newspaper clippings of built environment conflicts. Finally, we wanted to explore the range of roles for planners and landscape architects. In particular, we wanted them to recognise that they are often just as likely to be a party to a conflict as a mediator. This was reinforced through the visiting professionals and the newspaper articles. It also came to light during the three-week scenario, which involved a range of interested parties without any clear mediating party.

In reviewing the semester, we identified several areas for additional exploration. During guest lectures and the role-playing scenario, the issue of resourcing conflict management arose. The issue is particularly vexing, because the built environment fields often involve community groups with limited funding. Closely related to this is the question of how participants can seek third-party assistance. Although there are formal means for triggering ADR in legislation such as the Integrated Planning Act, there are many other settings where third-party assistance could assist the participants. Also important for community roles are the issues of who represents the community and whether professionals can act as representatives. Finally, many conflict management approaches are based on legal settings and processes. However, new paradigms in professions such as planning emphasise the need to build consensus through creative processes of exchange and interaction. This is particularly relevant to community and local government disputes, where there are multiple parties with multiple interests. We believe that some of the formal processes and techniques of some conflict management approaches may stifle the kind of critical analysis and creative exploration that may be necessary to resolve these complex conflicts.
 

Pat Marshall, Marshall Enterprise Learning
'Walking the tightropes: 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: the maintenance of confidentiality by all parties and the mediator; an impartial (if not neutral) stance of the mediator; ensuring 'power balance' between the parties; self-control by all parties and the mediator so that respect is shown by all to all. Further, it employs the process techniques of: full, honest and assertive disclosure of the parties' perceptions of the situation; parties being encouraged to understand the other's point of view; parties being encouraged to move from the past, not only to the present, but also to the future. 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.
 

Members of NADRAC,
'Policy making in ADR: the role of NADRAC'
 

M Newberry,
'Experiential learning, critical reflection and debriefing for mediators'

A commitment to the ongoing development of skills and knowledge in practice requires commitment to more than a casual approach to continuing education. This paper proposed that this is best done by adopting debriefing practices that incorporate critical reflection. For those who acknowledge the need to learn and unlearn skills it has meant discovering how we engage in this process. It is argued that this is only done through a process of internalising new experience. The technique suggested for achieving this is critical reflection. Various methods of debriefing were considered and some suggestions offered for adapting this form of reflection into a work habit. Finally, other impacts of the debriefing process were considered with particular reference to the institutionalising of dispute resolution procedures.
 

Ciaran O’Faircheallaigh, Faculty of International Business and Politics, Griffith University, Qld
'Resource development and Indigenous people in Queensland: a negotiation-based approach to conflict resolution'

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 that 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 set out the nature of the conflicts that arise within Indigenous communities and between communities and resource developers and government. It then described, 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.
 

M O'Tarpey,
'Strategic directions and regionalisation, a changed management approach for community services in NSW'
 

Sharon Press, Director, Florida Dispute Resolution Centerand President, Society of Professionals in Dispute Resolution (SPIDR)
'Mediation trends and expectations: a view from abroad' (keynote address)

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 discussed trends in mediation and expectations for the future. Some of the prevalent trends discussed were: the paradoxical dual trends of a movement toward greater institutionalisation of mediation and the resurgence of community-based programs, including the increased use of mediation in the criminal and quasi-criminal arena; the legalisation 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 internationalisation of the field, particularly as evidenced by the advent of e-mediation sites and programs. Ms Press also shared 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 organisations on the brink of merger provide a window into the complexities of merger discussions and ways mediators could assist with the process.
 

Bernadette Rogers,
'SCRAM: Schools Conflict Resolution and Mediation competition: a brief report'
 

Paul Rogers,
'Best practice is good practice'
 

Greg Rooney,
'The use of intuition in mediation'

For a mediator, an approaching mediation session can be the cause of some concern. There are many things that can create uncertainty for the mediator. What will happen? Will there be a satisfactory resolution? What will be the key issue? This uncertainty can lead to uncomfortable feelings. The mediator often then attempts to create some certainty. A preliminary conference can be called. The parties can be asked to provide in advance a list of issues, court pleadings and other background material. The mediator can form a hypothesis from the information that is gathered. Strategies can be prepared. It is important to have a preliminary conference and to prepare fully for mediation. But can we as mediators over prepare?

This paper focused on the mediator's capacity to sit with uncertainty and the uncomfortable feelings that uncertainty may produce in the mediator and the parties. I looked at how a mediator’s attachment to memories, desires and knowledge affects the strategies and interventions adopted in the mediation. I suggested that uncertainty can be treated as a creative part of the mediation process and used as a doorway through which the intuitive intervention enters into the process. I concluded that it is the process of the mediator and the parties sitting with uncertainty that produces the energy that generates the intuitive intervention. This paper included a discussion of Christopher Moore and John Haynes' use of the 'hypothesis', Sigmund Freud's concept of 'evenly suspended attention' and Wilfred Bion's 'without memory and desire'.
 

Valerie Sinclair, on behalf of Let's Talk Sydney
'ADR practice: future directions'

The Let's Talk Group has been meeting regularly since March 1998 to discuss issues in common in relation to ADR practice. The idea for this group originated at an Australian Dispute Resolution Association (ADRA) facilitation meeting. Let's Talk is a non-commercial and non-proprietary network that provides regular opportunities for representatives from ADR organisations to discuss areas of common interest and develop initiatives that may benefit the fast growing ADR community as a whole. The outcome of our early meetings was the identification of the desirability f a nationally accepted Code of Conduct for mediators that could be endorsed by ADR organisations. The group has now produced a Professional Code of Conduct for Mediators after reviewing several other documents already in existence. The Code of Conduct is currently being widely circulated for comment. The next project we have planned is to begin discussions in relation to Competency Standards for Mediators.

Recently ADR Link in Melbourne have approached Let's Talk Sydney to use the name Let's Talk for their group in Melbourne. They have agreed to establish their group according to the same guiding principles. The two groups will now exchange minutes from their regular meetings. The Let's Talk formula for facilitating discussions between diverse ADR organisations has been successful and productive in Sydney and now in Victoria. It has been suggested to us that the 5th National Mediation Conference may be an appropriate venue to share our experiences, our Professional Code of Conduct for Mediators and as a forum for group discussions in relation to Mediation Competency Standards.
 

Valerie Sinclair, mediator, family and child practitioner with UNIFAM, and Paul Lewis, family lawyer and mediator, Thorntons Solicitors, Sydney
'Mediation and working with the legal system: no longer an issue about which system is best'

The Family Law Reform Act 1996 and government policy brought about changes that 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 proposed 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 outlined a way of working in the family mediation area with both disciplines involved and their distinct roles maintained. The paper looked at how this way of working can address issues raised in the mediation versus litigation debate.
 

Tania Sourdin, Associate Professor, University of Western Sydney
'Evaluating ADR'

This paper considered recent attempts to evaluate ADR processes and the likely impact of those evaluation attempts. As organisations and governments increasingly introduce and support ADR processes, there has been a movement to improve evaluation efforts. At times, the evaluations have stressed comparative approaches, for example, attempting to compare mediated disputes with litigated disputes. This paper examined the findings of recent studies and also the processes of evaluation. In particular, the varying methodologies and the interpretation of results were explored.

The paper focused more particularly on the recent efforts made to evaluate court-connected processes within Australia (in the family law context and by the Australian Law Reform Commission) and within the United States (by the Rand Corporation). The paper discussed the particular evaluation issues that are raised by transformative and other mediation processes and how evaluation processes can be enhanced to respond to the challenges of changing mediation processes and indicators. In addition, the paper addressed related issues relating to the design of quality control and performance indicators in the creation and maintenance of dispute systems.
 

Tania Sourdin, Associate Professor, University of Western Sydney
'The future of dispute resolution in business: new rules'

In recent years, industry, government and the courts have developed dispute resolution processes to encourage the early and effective resolution of disputes by business organisations. There have also been a number of attempts to design better dispute avoidance or prevention processes and dispute management systems that can apply to business. This paper examined current reforms in these areas and the recent growth in standards, benchmarks and mandatory processes that are directed at business organisations within Australia. In particular, recent developments such as the publication of the Standards Australia Association standard entitled 'A guide to the prevention, handling and resolution of disputes (AS 4608 - 1999)' were explored. The Australian Standard seeks to provide a framework for the prevention, handling and resolution of business disputes. The standard is not a specification, but rather aims to encompass the best elements of systems widely used both in Australia and overseas. It is envisaged that a range of different entities will voluntarily adopt the standard.
 

Fred Stern, Anglicare Youth Services, Glenroy
'Peer mediation: a review of Australian schools' (PDF 44 kb)

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.

Overall what the study highlighted was that, whilst peer mediation may be becoming established throughout Victoria, it is still primarily communicated through word of mouth and is driven by individual efforts of particular schools and teachers.
 

Joan Welsh and Carmel Blick, Health Rights Commission
'A different recipe from the original'

The presentation highlighted some of the differences, and some of the overlaps with, a traditional mediation model. Features of the HRC conciliation model are flexibility, collaborative decision making, voluntariness, fairness and diverse range of outcomes. It is different from a traditional mediation model because of: time taken to finalise complaints; degree of intervention by the conciliator; sometimes the parties do not actually meet; health providers are almost always legally represented, consumers not so. Although it is not a legal process, the same rules apply. 
 

Kim Wilson, National Native Title Tribunal
'Native title mediation and practice'

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 discussed some of the issues that have arisen in my experience over the last five years, in particular, the role of various state governments and their approach to the mediation practice and whether this approach is as legitimate as it could be. I also considered the issues that arise for native title claimants and, in particular, their management of process. This involved considering 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 also considered 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. I also considered the role for pure mediation and the relationship between that and the actual practice of native title mediation. I touched on the role of lawyers and the need for parties and their advisers to become more outcome orientated.

Notwithstanding five years or more of native title mediation, when one looks at the situation in Australia, across all the states, it would be justifiable to say that we are still at the pre-mediation stage.
 

Bobette Wolski, Bond University, Gold Coast, Queensland
'Using dispute systems design to enhance stakeholder participation in the resolution of public issue disputes'

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 identified 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 was upon environmental disputes, by far the largest category of public issue disputes. The paper also examined 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 outlined a range of dispute systems design principles, that is, principles for the design of low-cost interest-oriented resolution systems and used those principles as the basis for recommendations to improve participative procedures and to enhance stakeholder involvement and input into decision making.

 

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