Paper presented at the NSW Workers Compensation Commission Conference
25 August 2016
In Subway Systems Australian v Ireland (No 2)  VSC 693 (13 December 2013) Justice Croft of the Victoria Supreme Court said :
The old adage is that you can take a horse to water but not make it drink. This is, however, more likely true of unstructured negotiations than mediation. In the former only narrow self-interest may be the driver and other obstacles may prevent agreement whereas with the latter a mediator may assist the parties see broader interests, thus moving the parties to a perspective free of such obstacles which are then seen as extraneous to reaching a settlement.
Justice Croft had a background in ADR practice and policy before his appointment. He also previously had tenure as an academic. That should, preferably, not be held against him. His statement signifies faith in the value-adding nature of the mediation process in guiding parties beyond narrow self-interest to broader sets of interests. This is achieved, the learned judge implies, through the instrumentality of a structured process which avoids or bypasses some of the predictable obstacles in unstructured negotiations. This perception of mediation was not taken on appeal.
The horse and drink metaphor goes to the heart of an apparent contradiction. On one hand the mediation system upholds defined value propositions: party autonomy, self-determination and the voluntariness of outcomes. On the other mediation in environments such as the Workers Compensation Commission is compulsory, unless the defendant declines participation on grounds that liability is wholly disputed. I shall refer to this as the mandatory-voluntary paradox. In reality mandatory mediation is quite normal and is one of the factors in the changing nature and style of mediation which, I would argue, involves a shift from facilitative to evaluative mediation, from mediation to conciliation, and from standalone mediation to mediation as a blended process.
In preparing this talk I have been assisted by an initial briefing from Workers Compensation staff and subsequent conversations with experienced fellow mediators. I have also drawn on relevant legislation, on the last annual review and on what is conveyed to prospective users about the Commission’s services on the website. Needless to say I have drawn on my own unconscious biases and conscious prejudices on the subject, on the general literature and on practical experiences as a mediator, inter alia, of work-place disputes. Indeed so deeply compacted is a workplace dispute I am currently mediating (in an educational institution I might add) that I would have liked to brainstorm it here with you.
Mediators come in general and specific varieties. As Commission mediators you have a specific vocational focus and your work is affected by the recipes, ingredients and artificial colouring of the system. With permission, however, I shall occasionally wander into the wider world of dispute resolution, here and abroad. If necessary I shall do so without your permission. It is indeed reassuring to realise, with a little reading, google and travel, how universal is the work that you do - under different guises, settings and rates of pay. There is a universality to your skills, techniques and attitudes as they are related to the rubric of mediation. Without dropping any specific place names I have been privileged to have recently spoken to similar groups as yourselves in Hong Kong, Johannesburg, Macau, Auckland and the Sydney Bar and while the circumstances of the mediations, tribunals and commissions are different the themes are universal. For this reason it is useful to connect with the broader stream. This also means that you will have a job elsewhere after ending your term at the Commission.
My own perspective is that of the pracademic. I try to practise mediation and attempt to theorise on it. Sometimes theory needs a word of defence among groups of practitioners - when a surgeon takes a scalpel and makes an incision that is practice; but in order to know where and how deep to cut, that is theory. All dispute resolvers act out of theory but like Moliere’s character who discovered he had been speaking prose all his life, we are not always conscious of it.
That by way of introductions. Could I now enquire of yourselves as mediators to indicate by show of hands:
Length of mediation experience – up to 5yr, 6-10yrs, 11yrs and above?
Accredited under the NMAS?
Experience as arbitrators?
Have read a book on conflict management in the last year?
My initial brief was, ‘What makes for successful mediations in compulsory environments, that is where parties have to attend mediation before a matter can proceed to court, tribunal or commission?’ It was indicated that one of the Commission’s performance indicators is settlement rates and that there is some trifling interest in the rates improving year by year – a phrase meant to be pulsating with understatement. Some mediators struggle with single-focused measurements such as settlement rates - understandably so as successful mediation events may not necessarily lead to settlement agreements and settlement agreements on their own may not reflect best mediator practices.
According to the Commission’s 2015 annual review 48% of disputes not involving an appeal were resolved in less than three months. As regards Form 11C mediations there were 1372 applications in 2015 of which 53% settled, with a certificate of final offer in 35% of cases and liability wholly denied in only 7%. I’m not sure what happened to the other five per cent. As regards durability there were no statistics for mediated settlements but with arbitrator determinations revocation rates were only six per cent and nine per cent for medical assessments. However from the 53% it sounds as though mandatory-mediation is only problematic in fewer than 47% of cases. Or perhaps that only 47% of mediators are having any problems! Settlement rates vary from context to context, for example as among mediations conducted in franchising, small business, farm debt and workplace disputes and those at the Commission are well with the overall range.
Most agencies also measure qualitative aspects of the mediation process. The Commission’s last annual review refers to an independent 2015 assessment of client satisfaction with services and facilities, with high levels among insurers and legal representatives and slightly lower assessments than in previous years among workers. This is the old quantitative versus qualitative tension which has been in and around dispute resolution for a few decades. However we have to live with fact there will always be greater focus on quantitative factors and less on qualitative ones – although any variable can be potentially measured it is inevitable that measurements focus on those that are easier and cheaper to accomplish. In the ‘age of measurement’ mediated outcomes are valued in terms of short-term settlement rates, timeliness and costs of doing business more than in relation to qualitative or idealistic factors.
Ideally mediators and conciliators should be engaged to some extent on the performance factors that are measured. To use an Olympic metaphor both A and B samples should be taken. A recent study in the health rights commission found that conciliation procedures in this environment saved the courts an estimated $ 100 million a year. I’m not sure if these measurements on their own, impressive as they sound, are of genuine assistance to the health commission, or don’t reinforce the notion that its services are cheap, quick and something less than formal justice systems – or, as some call it, expediation instead of mediation. Mediators and its expenses can easily be seen as part of the inputs into the throughputs which lead to outputs and fairness and justice can get lost in such business babble.
Mediation, of course, means various things to different people and takes on a different complexion in the context of the Commission than it does in the context of commercial disputes or family law mediation or farm debt cases. However there are now attempts in many circles to look beyond specific processes such as mediation or arbitration or expert determination to the similarities and connections among many dispute resolution categories – this comes at a time during which there in any case diminishing boundaries between arbitration, adjudication and conciliation and even litigation has softened its edges to include influences from the other processes. I think the many developments in the specific DR fields, such as workers’ compensation and common law workplace negligence claims, can sometimes isolate one process from another and overlook the many common denominators among various facilitative and advisory processes.
The Central Paradox
Many jurisdictions have had trouble with the mandatory-voluntary paradox. From the ideological perspective there is a conviction that dispute resolution processes are more empowering and more interest-based and produce better and more enduring outcomes if they are based on parties’ own facilitated decisions. There is some evidence to support these assumptions. All Commission mediators are accredited under the NMAS and under that regime both the Approval and Practice Standards are premised on the facilitative, as opposed to the settlement or evaluative models, of mediation. This entails that mediators are assessed on, and expected to practice with, the subtler arts of assisting parties reconcile their interests as opposed to girding them for the art of war. However lofty principles can be confounded by prosaic reality, in particular were settlement rates are under surveillance and pressure.
The reassuring news is that the same tensions are keeping mediators awake in many contexts. The EU has struggled with the notion of mandatory mediation, partly in terms of the contention that it could constitute a denial of access to justice in terms of the EU Declaration on Human Rights. The same goes for the UK. At a Commonwealth Law Conference I was on a panel with a UK Supreme Court judge and he prosecuted the argument, now obsolete in the Australian context, that mandatory mediation constituted bad policy because it denies access to justice – whereas in reality it only defers and does not deny. Even progressive legal cultures such as Hong Kong have resisted introducing mandatory mediation in litigation procedures, relying exclusively on the voluntary version.
It is not only the compulsory-voluntary tension what you face ass mediators. You are also managing increasing complexity and complexity requires procedural variety, sound knowledge and high-level skills. As contributing factors to complexity I expect many of you have encountered workers with unrealistic expectations, lawyers focused on quick settlements of multiple files, barristers briefed at the last moment, obstructive support persons, young lawyers lacking cultural instincts for a case’s value, instructions over the phone from absent insurers, late lodgement of documents and employers and unions not present despite their interests in outcomes.
In addition I understand that the psychological cases are among the most difficult – there may be an admitted duty of care, and possibly even established negligence, but the employer did not provide counselling or other care to the employer and causation and damages are in issue. At the current Archibald portrait exhibition at the NSW Art Gallery one of the most moving paintings is from a former Perth artist Abdul Abdullah. It’s called The Cost and depicts a police officer who, after the Cronulla riots, saved a Muslim couple on a train against a mob beating and protected them later on the platform. He was cited for a bravery award but things turned sour when he was accused of using excessive force – his life, job, family and mental state disintegrated and he suffered severe post-traumatic stress, depression and related disorders. The painting depicts the depths of his despair, probably the kind of situation you sometimes encounter in mediations.
This led me to reflect on some reported cases in this area, such as Gretton v the Commonwealth  NSWSC 437 (27 April 2005) in which the plaintiff, a former member of the Australian navy, suffered PTSD as a result of the Voyager/Melbourne collision, as well as severe anxiety, flashbacks, night sweats, mood swings and other disorders. Through self-medicating on alcohol he also suffered from chronic alcohol abuse disorder. The decision refers to allegations that the plaintiff’s condition was exacerbated by government’s failure to provide psychological counselling or other support, its direction to the plaintiff not to talk about the accident and the advice of officers that he should have a good drink and forget about the collision.
In Wheeler v FSS Trustee Corporation  NSWSC 534 (29 April 2016) the plaintiff was a young police officer medically discharged from the force as a result of work experiences which the judge did not describe in detail. She was claiming TPD benefits with multiple medical reports referring to psychological illness, alcohol abuse, marital breakdown and the prospect of being incapable of engaging in any work for which she was reasonably qualified for a remaining work life of 29 years. She was faced with innumerable procedural difficulties in her original claim, eventually having to seek a declaration that the insurer had constructively denied the claim.
In Carangelo v State of NSW  NSWCA 126 (27 May 2016) a former police officer had the difficult task of showing that government’s breach of their duty of care caused or contributed to severe psychiatric injury based on his many years of dealing with suicides, deaths of children and traumatising accidents. In the face of conflicting expert evidence, albeit provided in conclave form, the appeal court found against him in a legalistic, though undoubtedly impeccable, judgment.
The point about these cases is that they reveal the factual, psychological and legal complexity of circumstances requiring dispute resolution and provide challenges to mediators, and the settlement rate pressures they face. Moreover there is evidence that complexity is difficult for all professionals and affects their judgments. A study of medical doctors in relation to their diagnostic errors when dealing with challenging or unruly behaviour indicated that these factors lead to 42% more diagnostic errors in the context of complex cases. Mediators are required to deal with increasingly complex cases, including parties’ differing approaches to the process, the involvement of legal advisers, how the system is understood and explained, the involvement of a wider network of stakeholders who could enhance or detract from likelihoods of settlement and external pressures such as time, money, government and large corporations. As these factors are largely or partly beyond the mediator’s control they need to focus on those factors within their control.
In turning to the main question for discussion I would suggest that within the constraints of what Commission mediators can do in light of statutory responsibilities, the culture applying to your roles and the complexity of cases, there are four factors which deserve attention, namely priming, procedural choices, skills and knowledge.
Preparation and Priming
It is a truism in dispute resolution circles, with some support from the literature, that good preparation is an important ingredient for effective mediation. Preparation is done with the parties, transparently and with overt objectives of educating and informing, screening and streaming.
Priming, by contrast, is more covert than preparation and cooler to say. Psychologists define priming as the implicit memory effect in which exposure to a stimulus influences response to a later stimulus – for example a ying yang symbol induces a set of associations in the viewer’s mind. It can be used to train a person's memory both in positive and negative ways. Words like banana and yellow are closely related (first stimulus) such that when we mention banana (later stimulus) we are more likely to think of the colour yellow than if we mention, say, pomegranate. We are all primed and conditioned in innumerable ways, both positive and negative. Some mediators, for example, find that the term ‘mediation’ when used in workplace contexts has negatives associations with employees as involving discipline. Verbal priming involves mediators and agencies using a range of terms and phrases which provide positive associations for the process ahead – collaboration, cooperation, compromise, satisfaction, effectiveness, finality, cost-savings, and the like.
In the Commission context priming is occurring from the earliest contact of parties with the system, though less so for repeat players and more for workers who are single-shotters. Your website provides good examples in promoting the independence and impartiality of the Commission and the importance of being prepared before engaging in its processes. The Commission’s role is described as that of encouraging workers, employers and insurers to discuss ways of resolving disputes at all stages of the process. The DVD illustrates in visual and commentary form how the individual can engage in what could be an alien system and avoid major surprises - and the survival instincts these are inclined to invoke. There was a tone of encouragement and optimism in the language used, particularly as to the good prospects of resolving issues through the Commission in processes that are fair and open.
One of the priming factors which may be less easy to realise in Commission relates what is called the in-group factor. In one sense a common law mediation comprises an organic system with identifiable players. The science, which I return to in a moment, suggests that a comprehensive in-group approach is more conducive to problem-solving than where each side sees themselves as an in-group and the others as an out-group. While I appreciate that some of your mediations are done through a shuttle process with parties in separate rooms there is something to be said, at least at the beginning, to emphasise the group nature of decision-making and the need for one another to achieve finality.
Priming can also apply to lawyers. Julie Macfarlane in The New Lawyer challenges lawyers to rethink how they conceive of advocacy, particularly in terms of the profession’s ‘public image’ and the perceived relevance of lawyers ‘to the practical solving of problems’.[i] She claims that adversarial advocacy associates lawyers more closely with the conflict, than with its resolution.[ii] Non-adversarial advocacy is no less professional and no less informed by lawyers’ knowledge, skills and attitudes than adversarial advocacy. As non-adversarial advocates, lawyers continue to have professional responsibilities to work strategically in partisan fashions, and in the context of fiduciary duties of trust, to seek to realise best possible outcomes for clients. Non-adversarial advocacy, as Macfarlane has said, ‘places the constructive and creative promotion of partisan outcomes at the centre of the advocate’s role and sees this goal as entirely compatible with working with the other side – in fact, this goal can be achieved only by working with the other side’.[iii] A distinguishing factor of non-adversarial advocacy is that it takes account of parties’ interests in addition to their positions. It ‘challenges the automatic and obvious primacy of rights-based dispute resolution, preferring a more nuanced, multi-pronged strategic approach to both fighting and settling’.[iv] It also makes possible the resolution of disputes more quickly, more cheaply and in mutually beneficial ways.
In the Commission’s 2015 review the Registrar, Rodney Parsons, refers to the focus during the year in question on the legal profession, and training seminars for relevant in-house lawyers. This raises the question as to whether the Commission might develop a model advocacy policy for legal representatives appearing regularly before it, a prime example of potential priming before they represent mediation clients. There is also some hard evidence for lawyers playing a constructive role in mediation contexts: the first Global Pound Conference survey found that 70% of respondents regarded the lawyer’s primary function to be that of working collaboratively in dispute situations.
Can priming be manipulative? Yes it can. The ultimate primer of human behaviour is the English psychologist Darren Brown whose You-tube presentations leave viewers gasping with incredulity at his ability to get parties to behave in his intended ways and to agree to outlandish propositions. While some of Brown’s influence is a function of hypnosis and magic his use of language, timing and venue manipulation are classic priming mechanisms. It also works with children and household pets.
The opening statement
The mediator’s opening is an important tool where most of a mediation is conducted in separate rooms or where the parties and advisers spend considerable time conferring in the absence of the mediator. You will be familiar with all its traditional functions – conveying information, responding to questions, relieving anxiety, assessing the situation of the respective parties and the like. Here a challenge in the Commission context is to make an opening address that is fresh for repeat players and not a mere repetition of what they have heard before. It is also a good occasion to make the good faith homily in terms of common law negotiation requirements to listen, have an open mind, consider proposals emanating from the other side, contemplate putting forward options – all without having to act other than in self-interest. I would also suggest stressing in the opening address the importance of the value of settlement in itself, as opposed to the exact term soft settlement. This is an area in which Commission mediators will soon be considering their collective wisdom and it is best left to that forum.
The mediator’s opening and website are sources of information for mediating parties. Here one of the enduring issues of contention in mediation literature and practice relates to mediators’ roles in relation to providing information as opposed to opinions, advice or recommendations for mediating parties. In light with the trend I referred to earlier there is evidence of pressure for and the practice of mediators transgressing the information limits and becoming increasingly advisory in their roles.
As regards the information provided on the website I did wonder if the references to arbitration, the teleconference and con/arb would have much significance on their own. I mean con/arb sounds like a Greco-Roman wrestler from Azerbaijan. There was interestingly no reference at all to mediation in the DVD, though obviously legal advisers could compensate for any shortcomings here. The 2015 Annual Review refers to mediators using their best endeavours to bring parties to agreement without determining work injury damages. ‘If a dispute is not resolved by agreement the worker may commence court proceedings’. However whatever the purveyors intention with such information it may have a different impact on receivers, and it would be interesting to know how workers respond to notions of impartiality, less formality and ‘sorting things’ out when their real motivations might be for a system which takes their side, vindicates their claim and justifies their pains. Likewise the reference to mediators’ ‘best endeavours’ and ‘without determining damages’ might seem bland, or even obtuse to some workers engaging in the system for the first time.
Venues can also be part of the priming endeavour and are often overlooked as factors in productive mediation. Interestingly an investigation in the Netherlands is currently assessing the best physical environments for dispute resolution. As there is a good chance that those venues will be in Holland there might be a case for establish a branch office of the Commission in Rotterdam. More seriously if the physical environment contains messages, symbols and other priming factors, such as your new ying-yang diagram, it should be considered as a factor in successful mediation.
Shuttle and separate meetings
As the functions and mechanics of separate meetings are being dealt with in the following session I shall comment only on the broader choices relating to joint, shuttle and separate meetings. In line with the broader trend towards evaluative mediation there has in ‘legalworld’ been a default to shuttle mediation for most of the process, and in some contexts to the exclusion of any joint meetings at all. Indeed in some overseas jurisdictions the term mediation denotes ‘parties in separate rooms’. There is a clearly a case for shuttle but I would contend that it should be procedural choice and not a default factor.
I regard separate meetings as another procedural choice in which the mediator breaks up the joint session for all the well-known reasons but with the intention of resuming in joint session. The challenge is then how to get parties and advisers back talking together. Personally in commercial mediations I spend most of my time in joint session which requires some justification to the legal advisers present – I just say I’m an academic from the hill. However I contend that it allows for more direct communication, for clues deriving from body language and expressed or suppressed emotions, and for the extensive use of visual stimuli and joint collaborative exercises, such as conditional linked bargaining illustrated in a few minutes.
Quite apart from the separate/joint/shuttle choices mediators can also use adjournments tactically. The potential advantages are that they allow for bodily movement which can loosen the neural pathways, for refreshments which replenish the glucose required by the brain, and for the oxygen which is demanded for complex brain functions. They also make space for high emotions to be expressed and to subside, for consideration of concessions within negotiation factions in face-saving ways, for development of negotiation proposals and for consultation with significant outsiders. Above all adjournments allow all concerned, including mediators, time to think. Needless to say, as with any intervention in mediation, there are potential downsides to adjournments – parties might pump themselves up, slip backwards, be undermined by outsiders or simply go home. All professional interventions carry potential risks.
Other variations in procedures.
I understand that, as in other dispute resolution services, it is sometimes the case that mediators leave parties to their own devices, with advisers if represented, and they confer in unmediated conclaves. Other variations encountered in some contexts are for mediators to have side-meetings with the lawyers or meetings just with the clients. I have used all of these variations. Context and circumstances will determine if these are appropriate but they provide mediators with the procedural control to break up and shake up the proceedings.
Finally there are variations in the forums and mediums of communication possible for mediations which I will not develop here. These include on-line, video conferencing and teleconferences each of which has their strengths and shortcomings – for example there is evidence that parties are perceived to be taller than they actually are when talking on the phone and the larger the screen the more credible a person appearing on it seems to the viewers – perhaps a dimension of the halo heuristic. The wonders of technology. While ODR might not appear to have made the strides expected of it a decade ago it is used extensively for small value dispute, consumer claims and family disputes and will jostle with other forms of communication for inclusion in workers compensation matters.
In conclusion on the procedural front I would note that dispute resolution systems are coloured by their particular contexts, sometimes resulting in a culture that can become rigid and difficult to change. This is particularly the case where repeat players, such as insurers, lawyers and possibly also employers, have fixed expectations about how they will run. A wise mediator from abroad has said that mediators should never provide the identical procedure in every mediation. If they do they are likely to be gamed by repeat players. In my own case in commercial disputes I now leave out the opening statements, whether delivered by the parties themselves or by their advisers. Instead I invite the group as a whole to assist me in developing a chronology of the dispute on the whiteboard, providing a visual framework for the subsequent discussions. This creates a collaborative environment in which parties and advisers jointly cooperate without initial positional and adversarial presentations. Needless to say what was planned for those presentations can be injected into the discussions at later dates but there is value in deferring positional claims and adversarial disputation until then.
As this is not a training workshop I shall not focus on practical skills and techniques, but knowledge counts for little if it has no practical consequences. An epigram in the early days of mediation was the injunction of trainers, manuals and peers to Rely on the Process. The focus later shifted to a focus on the toolbox of skills which could be used, as appropriate, during the process, as procedure alone required skilled supplementation through reframing, appropriate questioning, paraphrasing, negotiation coaching, risk analysis, reality-testing, closing the final gap and the many other techniques which mediators and conciliators can deploy during their conduct of the process.
Although you are ‘mediators’ offering ‘mediation’ services it is sometimes important to be reductive and identity what you actually do at the micro-level. Here you provide an opportunity for settlement, you get parties talking, you encourage problem-solving, you facilitate negotiations and you bring a voice of experience to the table. As I understand your process it is sometimes also your mediator role to get conversation flowing again, for example on liability or past and future economic loss, after the parties become impacted while conferring together. After years of experience you will have a toolbox bulging with the tools referred to above. Two of these are ‘issue proliferation’ and ‘conditional linked bargaining’ which I illustrate next.
Most of my mediations, outside the WCC’s ambit, end up as follows. Where there are multiple issues requiring final consideration, negotiation and settlement I list them in a matrix and where there appears to be only a single issue, normally but not always money, I engineer through issue proliferation a matrix for a payment plan or its equivalent. Here the theoretical framework is that parties will be more risk averse, and less accepting or risks away from the mediation room, if they perceive gains from settlement - if not on the main issue, in this case quantum, then at least on minor issues. Moreover this arrangement allows for linkages and trade-offs among different negotiation items in ways which favour fluidity and flexibility and not the dull thud of negotiating on one monetary dimension. This allows for negotiating through conditional linked bargaining. The matrix could look like this, involving claimant and respondent and the exercise involves writing in the initial claims on each side and moving towards agreements in the middle through trade-offs and linkages:
The extent to which this model might have applications in your mediation world is entirely up to you. However I thinks skills are always accompanied by attitudinal dispositions. In my world this requires, beyond anything else, the avoidance of binary, black/white, either/or thinking. Problem-solving mediation is not a school debating competition. Some years ago I was mediating in a family business succession dispute involving the father and four sons. Three sons had been involved in the business and one had not, the former insisting that the latter should not be a party to the mediation, with supporting arguments from the various legal advisers. In binary thinking this could have involved a simplistic dichotomy between participation and non-participation, one side winning the contest and the other losing it. With mediator assistance the binary framing was disaggregated into five options for the prodigal brother: entire exclusion from mediation, attendance outside the room with occasional consultation with participants, attendance in the room with an observation role away from the table, seating at the table with rights only to answer questions or speak when invited, or full premium-class participation along with the others. After consideration of the plural options the parties opted consensually for the fourth. The mediation proceeded on this basis and within an hour the prodigal brother was a full participant with no objection from the others. Or their lawyers.
At mediation Masterclasses I have conducted in various places I have been struck by the fact that even for experienced mediators the main value has been not in exposing them to complex new theories and techniques, for example in relation to the numbers, money and dollars, but in refreshing the basics. Interestingly the new knowledge bases now available to mediators support many, though inevitably not all, the basic skills taught in mediation school and reflected in the NMAS Practice Standards. They involve such foundational humanistic skills as respecting status, explaining procedure, giving parties as sense of control, acknowledging their predicaments and according the other dignity factors which all people need. Thus where otherwise reclusive claims managers are present at mediation their participation should be acknowledged and indeed they should be a little fussed over. Impartially of course. Mediators also bring themselves into the room, with the experiences, skills and attitudes you have, and important part of the value-adding contribution. However just as you thought your skills tool box was full you need to make way for the following: Antagonistic Mediators can make Resolving Dispute Easier – a headline in a recent edition of the Harvard Business Review. This is PG and only for mediators with 15 years of experience.
The shift from process to skills has been overtaken by the current focus on increasing the knowledge base of conflict resolvers. This involves developing deeper understandings of how parties behave in conflict situations and in dispute resolution and decision-making contexts, with a view to more sophisticated knowledge-based interventions. Here I shall refer to two examples of the new knowledge base which might avail Commission mediators.
Neuro-biology reminds us of the importance, in dispute resolution contexts, of the different parts of the brain, the reptilian, limbic and neo-cortex, the deep pulses within each and the interactions among them. Now a little knowledge is always a dangerous thing. As my Latin teacher reported to my parents, ‘There are many gaps in your child’s ignorance’, and so there are in neuro-biology. Nonetheless the discipline provides insights into how parties conduct themselves generally, and in conflict situations particularly, as well as promoting self-insight on the part of mediators.
The most basic instinct in the ancient reptilian brain, which we have dragged into the 21st century, is that of survival. This gives the brain a negative bias in that it is better to be safe and survive than be right and perish and it produces a range of physiological and chemical responses to deal with what the brain perceives as a threat – including adrenalin and cortisol which prepare a flight and resistance responses to fear-inducing situations. The other reptilian impulse is that of reward, involving an approach response to food, pleasure or other perceived benefits. However the pain of perceived loss is greater than the joy of perceived gain – or as the tennis player Jimmy Connors put it, I love to win, but I hate to lose even more. This relates to the loss aversion heuristic with which you are familiar, requiring us to frame for gain in all dispute resolution contexts. Framing from loss to gain triggers dopamine, oxytocin and serotonin in the chemistry of the disputant’s brain.
In reality we are all primitives in conflict situations – while lions, tigers and polar bears are rarely encountered in Commission mediation rooms the same survival instincts prevail in dispute resolution when parties feel a lack of trust, fear of domination, loss of status, uncertainty and fear of losing. Moreover neuro-science demonstrates how psychic injuries such as insults, disbelief and emotional rebuffs have impacts in the same segments of the brain as a punch on the nose. This means that if you have a recalcitrant solicitor or claims manager in mediation punching them on the nose will have the same effect as reprimanding them verbally.
At an even more basal level we know from fMRI scanning that when the human brain is deficient in energy and glucose it closes off those parts most needed for problem-solving and decision-making, reverting instead to defensiveness, aggression and withdrawal. Food, movement, oxygen and the like, as referred to above, are indispensable to mediated problem-solving and durable outcomes. Starving parties into submission has gone the way of the cheque book and fax machine.
These insights lead to some practical intervention options for mediators. For example where there is negativity in the room and a small concession is made by one side it is important to make it more salient than it might have first appeared to either party, that is to reinforce its positive nature and the potential gain it connotes. Likewise the expression of high emotion, often anger, frustration or sadness in mediation rooms, is initially a spontaneous emotional response which overwhelms the brain’s cognitive capacity. Here making the party aware of it, for example through acknowledging and labelling the emotion, can assist them to self-regulate their longer-term responses.
References were made earlier to the in-group and out-group phenomena. This approach is supported by neuro-biology research which postulates the importance of ‘in-group’ as opposed to ‘out-of-group’ meetings as providing the chemical ingredients for status acknowledgment, a sense of party control, collaborative problem-solving and closer management by mediators of cognitive and social biases which affect all human decision-making. The oxytocin that creates bonds within the in-group actually generates animosity towards the out-group.
I acknowledge that these insights will not convince all, nor easily break long-established patterns of mediator operation, but there is now a rich knowledge base to the brain’s functioning in conflict and resolution circumstances. Experienced mediators might well contend that these insights have long been self-evident to them. Nonetheless even if they reinforce things already known they provide an evidence-base for mediators’ skills, and invite further investigation of insights from neuro-biology and cognitive psychology. They assist in self-knowledge and self-care for highly-pressured professional dispute resolvers such as yourselves. They also support the notion of professional identity on which I conclude in a moment.
One of the contemporary challenges to all dispute resolution processes comes from cognitive psychology. The work of Daniel Kahneman and others challenges the rational choice theory which underlines assumptions about economic behaviour and human decision-making. Rational choice theory is based on the notion that parties make decisions in terms of a rational assessment of their objective self-interests. It is challenged by evidence that in reality human decision-making is affected by numerous unconscious cognitive and social biases and other heuristics, eagerly exploited by marketers and explaining why we take out gym memberships we will never use and spend several billion dollars a year on commodities we leave in their packaging. As Joseph Schumpter famously said – the way in which we see things can hardly be distinguished from the way in which we wish to see them.
Not only are many decisions irrational but they cause detriments to those who make them. For example the bias of over-confidence leads parties to have grossly unrealistic expectations in mediation contexts. We all suffer from this bias to some extent. For example no self-managed super fund has every under-performed and most mediators indicate that they are above average in their abilities. We are all better than the average as drivers, teachers and self-reflecters! Unfortunately confidence does not equal competence, though we often use the former as a predictor of the latter.
As indicated earlier there are not easy correlations between the insights from science and psychology in terms of mediator interventions and skills. At the very minimum they can promote self-insight on the part of mediators in terms of our own motivations, our unconscious urges and our responses to the unexpected. It may further assist us to debias our mediation clients. The available information base is an opportunity for mediators to improve their knowledge through their Christmas reading list. I recently met the person who trained and assessed Lord Woolf as a mediator. He passed and she survived. The moral of this seemingly irrelevant anecdote is that even the high and mighty are prepared to submit themselves to continuing education in a time of life-long-learning. For mediators there is no end to what can be learned.
Developing Professional Identity
I conclude with some comments on professional identity. In a book, which modesty precludes me from mentioning, that will be published by LexisNexis in 2016[v] the authors discuss the changing nature of lawyers’ professional identity. The argument goes like this. The legal profession has a negative professional identity because it is associated with adversarial forms of conflict management, with formal procedures and technicalities and with perceptions of high charges and milking the occasional file. Lawyers have a reputation, real or otherwise, of being competitive, of seeing every problem only in its legal dimensions and of operating with court-based litigation as their motif, even if it is actually used very little. This results in not only a negative public perception of the profession, in relation say to nurses, vets and para-medics, but in a negative self-identity for some individual practitioners. This in turn contributes to increased levels of stress and depression among practitioners than among the general population, self-destructive conduct and frequent self-medication. The malaise affects law students confronted by the tension between the value propositions underlying the adversarial legal methodology they are exposed to and the personal values coursing through their veins, accounting for the evidence that law students find their studies more stressful than do medical students.
In terms of this argument one of the tasks for the future of the legal profession is to develop an identity around problem-solving and dispute resolution. This is more than a simple public relations exercise, but a better reflection of what lawyers actually do, in both transactional and dispute resolution work. The lawyer as problem-solver is how I describe their embryonic professional identity to law students, thereby in one sentence removing any vestige of negative competition, adversarialism and stress from their student days.
In relation to mediators and other facilitative and advisory DR professionals, from whatever disciplinary backgrounds, there seem to be at least two areas of possible attention in relation to a positive professional identity. The first is in relation to the comparisons with what courts and determinative tribunals do. Here AAT Deputy-President Bernard McCabe has commented that tribunals should not be described in terms of what they are not, vis-à-vis judges and courts. This is a definition by exclusion. Tribunals and commissions, he argues, should be portrayed in terms not of what they don’t provide vis-à-vis courts but in terms of what they do provide in a positive sense.
The same pertains to institutions such as the Workers Compensation Commission and particularly its mediators. What you do as mediators should not be measured vis-à-vis tribunals or courts or Commission arbitrators, judges and magistrates. This portrays mediation systems as something ‘less than’ other processes, a cheaper vehicle providing economy class travel on Scoot airlines. A more positive mediation brand would identity factors such as party control, confidentiality, consensual outcomes and closure as the services the institution of mediation provides.
The second aspects relates to conduct of individual mediations. Mediators are sometimes trained to say that they are not there to make decisions, they will not provide legal advice, they will not evaluate the facts and evidence, and they will not take any party’s side. While these are good representations of the mediation system, they are too lite an indication of mediators’ functions, again focusing on what they do not do, to the point where some clients might wonder what on earth they are going to contribute to value to the parties’ own endeavours.
A more positive version of what mediators do starts with self-knowledge, that is with awareness among the mediator fraternity of what they actually contribute to the dispute resolution endeavours of parties and advisers. Here experienced mediators who have seen and heard it all might have a jaded view of how they add value in the sometimes routine nature of successive cases. It then comes as a surprise when a seemingly chance remark about the nature of a particular dispute, how to negotiate productively or the effect of human biases in decision-making is seen as exceptionally profound by the parties. And sometimes their advisers. Here there is a string of positive functions that mediators could itemise: managing the process, facilitating the communications, assisting the negotiations, encouraging settlement and using the toolbox of micro-skills in priming, ordering, reframing, questioning, paraphrasing, reality-testing, crossing the last gap and their ilk.
These factors are over and above the procedural and skill-based contributions that mediators make. Mediators are also independent, act impartially, provide procedural fairness, manage negative behaviour and make procedural decisions on adjournments, termination and the like. As Justice Croft said 44 minutes ago, mediators can assist parties see broader interests, moving them to perspectives free of obstacles which are then seen as extraneous to reaching settlements.
I would contend that a positive professional identity around all these factors is a necessary, though not sufficient, requirement for success in mandatory mediation. Borrowing from other disciplines to advance mediators’ knowledge base will also promote this sense of professional identity. As will the Global Pound Conference, which comes to Sydney in April next year, with its aims of measuring what is happening in DR circles around the globe in the context of the access to justice imperative and enlightening the world on what dispute resolution clients want as opposed to what advisers think they want.
In brief summary my presentation has addressed the following issues:
The need to broaden the performance indicators for mediation success
Opportunities for priming of parties and lawyers through the web-site, opening statement and other facets of the system
Making procedural calls not by default but as deliberate choices designed for specific purposes
Understanding human decision-making through education and training in cognate disciplines.
Developing a strong professional identity around the positive contributions mediators can make to dispute resolution.
[i] Julie Macfarlane, The New Lawyer, UBC Press, Vancouver, 2008, p 1.
[ii] Julie Macfarlane, The New Lawyer, UBC Press, Vancouver, 2008, p 1.
[iii] Julie Macfarlane, The New Lawyer (Vancouver, 2008) 109.
[iv] Macfarlane, above n 2, 109.
[v] Laurence Boulle and Rachael Field, Australian Dispute Resolution (2016)
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