The Productivity Commission inquiry into Access to Justice has highlighted yet again a fear and ignorance of some lawyers about ADR, especially mediation. Those with a deep knowledge of ADR had hoped that fear and ignorance was a thing of the past. The Law Council of Australia submission at paragraph 338 relating to mediation is remarkable, not just because of its highly emotive language. It lacks evidence for its imputations.
This is what the Law Council submitted to the Productivity Commission (my emphasis);
338. It has been said that “Mediation is not about just settlement, it is just about settlement”. No doubt it is good for parties to settle cases (and that is what for centuries their professional advisors have helped them to do) but settlement achieved through oppression is not so obviously a desirable end. Then it is just the successful exercise of vulgar force – the very thing that the system of justice was invented to defeat.
Oppression and vulgar force?
I wonder if anyone has an experience of such problems in mediation. Certainly I know of no such complaint or litigation based on such behaviour.
What the Law Council want the Productivity Commission to hear is; that settlements reached at mediation are not “just”, that mediation is “just about settlement”, that mediation achieves settlement through “oppression” and the “successful exercise of vulgar force”.
The Law Council submission evokes a cute and unattributed saying in support of its emotive arguments. I have tried without success to have the Law Council correct with the Productivity Commission the impression that its submission gives. The time has come for someone to correct and comment. I realise that in doing so I risk the same unsubstantiated invective being unleashed on me. That is why I have asked the Law Council of Australia to correct its imputations AND to provide evidence of its outrageous imputations about mediation. So far they have not.
There is no evidence that settlements reached at mediation are not just. In over 20 years of intense ADR activity in Australia there is not a whisper let alone the roar that would be expected from the disgruntled when they believe they are “hard done by”. In this case, knowing the human tendency to complain if injustice is perceived, the absence of evidence must surely be evidence of the absence of injustice. The same cannot be said for litigation before the courts. One only has to look at the popular press to find evidence of the dissatisfaction (sometimes expressed by Attorneys General) about perceived “injustice” delivered by courts. I hasten to say that most of that dissatisfaction is without merit. Almost always Australian courts do a marvellous (and very even handed) job at making decisions. Those decisions often seem unjust to the loser.
Mediation is about much more than just settlement. A few of the benefits participants are offered if they engage are; in mediation you get to tell your story, if you chose, in your own words, without interruption or cross examination, you get to clarify misunderstandings, mend relationships, listen and exchange perspectives and stories, to understand more deeply, to vent productively, to reality test alternatives, to brainstorm options for resolution, to negotiate directly with or without assistance and yes if after all that it is better to resolve your dispute than continue to argue then settlement can be achieved. Settlement is never mandatory at mediation, even if the process of mediation is mandated.
As for oppression and the “successful exercise of vulgar force”, if this was happening it would be dreadful. If it is occurring in mediation then I encourage the Law Council to provide evidence to me and to the professional bodies that represent mediators so that something can be done about it. I suspect that such evidence does not exist, as surely the Law Council would refer to such evidence in its submissions given the emotion with which the “argument” is raised. What we do know, as a fact, is that in about 1994 when governments were looking for ways in which to create a level playing field for farmers and tenants, who complained of being oppressed by banks and landlords, mediation was offered as a solution. When it was suggested that mediation be required before court action it was the banks and landlords who complained that their unfettered access to the courts was being denied, preventing them from immediate exercise of legal remedies. The Farm Debt Mediation Acts and the Retail Leases Acts continue to operate in many states with not a whisper by farmers or tenants or their lobby groups of an allegation of oppression or the “exercise of vulgar force”.
The truth about mediation that the Law Council chooses to ignore or does not understand is that at mediation everyone is free to leave and exercise their legal rights, whenever they wish. It is that freedom that ensures the concerns that the Law Council express are never realised.
Indeed the standards that apply to mediators accredited under the National Mediation Accreditation System require mediators to address power imbalances;
4 Power issues
Some disputes may not be appropriate for mediation processes because of power imbalance, safety, control and/or intimidation issues.
If at any time abuse is present, or implied or threatened, the mediator shall take appropriate measures to ensure the safety of participants.
(a) activating appropriate pre-determined security protocols;
(b) using video conferencing or other personal protective and screening arrangements;
(c) requiring separate sessions with the participants;
(d) enabling a friend, representative, advocate, or legal representative to attend the mediation sessions;
(e) referring the participants to appropriate resources; and
(f) suspending or terminating the mediation session, with appropriate steps to protect the safety of the participants. (See MSB.org.au)
I know of no such standard that applies to lawyers in their practice.
The Law Council of Australia undoubtedly knows that thousands of the members of its constituent bodies are mediators accredited under NMAS. It insults those lawyers by suggesting that they do not know how to manage mediation when there are power imbalances.
In my 15 years as a mediator and 30 as a commercial lawyer I have heard such unsubstantiated arguments many times, but never have I experienced the argument infected with such raw emotion and lack of evidence demonstrated by the Law Council. One can hear in their words how fearful they are of the encroachment of ADR and mediation on the litigation business model of the lawyers they represent. Those fears are unfounded.
Let’s be clear.
There is no evidence over the last 30 years that there is less court determination as a result of the successful use of mediation. Mediators are NOT competition for lawyers nor do they want to be. In fact mediators recognise the vital role that the legal justice system plays in keeping our society peaceful and fair. Mediators support the rule of law without hesitation. The truth is (sadly I suspect for lawyers’ egos) that the vast majority of disputes have and always will be resolved without anyone seeing a lawyer and of those who do go “down the legal path” most cases are settled well before a judge is involved let alone makes a decision. If this was not the case the legal system would grind to a halt under the burden of pending trials.
Access to justice is far too important for the discussion about it to be infected with glib statements and arguments not supported by facts. I believe that lawyers and mediators should be collaborating (as they do in mediation) and offering positive creative ideas to that our society can be fairer and more peaceful with less “wealth and health” burdens for those who find themselves in serious disagreements.
If you would like to see my correspondence with the Law Council, give me a call,.
Steve Lancken BA LLB MPACS Accredited Specialist Commercial Litigation and Mediation.
 Farm Debt Mediation Act (NSW) 1994 and Retail Leases Act (NSW) 1994
 At last count there were 328 accredited mediators at the Victorian Bar Association (for example)
CALL FOR COMMENT
Please read the paper I wrote for
LEADR Kon ‘Gres
Innovation, influence or inhibition1
I am inviting comment and am particularly interested in people and organisations to consider the following question;
What structures, organisations and governance should be adopted to best serve the needs of the ADR field in 2023 and beyond?
Comment on this page, on LinkedIn, Twitter #ADRFuture or @stevel2000 or email me at email@example.com
Conflict Counsel no 9
Communication for any Summit
On 19th March Christine Jensen Burke, an international adventurer and conqueror of Mt Everest and the 8 highest summits on the 7 continents spoke to clients and friends of Negocio Resolutions about the communication challenges of extreme mountain climbing. She addressed the physical, cultural and human dimension of communicating with groups and individuals.
My mediation and communication practice confirms some of the points that Chris made in her presentation, such as;
- When the behaviour of others on a trek to base camp was not as expected, neither collaborative nor friendly, the only person’s behaviour that Christine had the power to change was her own. When she changed her approach the behaviour of others responded creating a strong bond and camaraderie.
- That we all see things from different perspectives and different perspectives are neither wrong nor right, just different.
- So much of communication is non-verbal and when that was removed because of the clothing and equipment impediments, it was necessary to be extra careful with communication.
- Assumptions about behaviour create grave risks. At one stage Chris assumed that a person sitting in the snow was resting when in fact they were ill and needed assistance. Had the assumption not been overcome the consequences were dire.
- There is enormous value in debriefing after communications are difficult and at the end of a project to learn what worked, what did not work and what can be done better next time. This practice creates trust and bonds in expedition teams.
- Trust is a vital element to effective communication. Without trust issues remain unexplored and people do not communicate fully about their needs, concerns or upsets.
- When there is emotion communication is even more important yet equally is more difficult. Imagine the different emotions of reaching the summit of Mt Everest, being subject to a kidnapping attempt in West Papua and being on the mountain when 12 people are killed in an avalanche within a few kilometres of your camp!
- Cultural diversity is like speaking different languages even if all of the talk is in English.
- Misunderstandings are dangerous AND can be overcome if care is taken with communication particularly by checking in that understanding is complete.
- Ask Why?….. If you want to find out what is going on.
Thanks to Christine and her expedition leaders, Sumit and Lapka who joined her in those insights and to the attendees of the event who donated $265.00 to the Australian Himalaya Foundation.
Did you notice how many times that President Obama used the word “we” in his inauguration speech, especially in his passionate plea for consensus on climate change, gay rights, wars and a fair and just economy (not just for the rich).
Obama often speaks the language of consensus and collaboration. Yet he has found it very hard to achieve consensus or even a reasoned debate.
When politicians speak passionately about working together there is often applause.
Why then do they fail in achieving a workable consensus in relation to the most important issues? It may be that personal interests get in the way. Those interests may include re-election or ensuring that the constituents they represent, be that business or the working class or the military or the masses, get what they want.
Politicians sometimes reject the opportunity to strive for consensus for fear of looking weak. I remember when Bob Carr (then NSW Premier) suggested to John Howard (after Howard had a resounding election win) that the Australian States and the Commonwealth should “sit down and talk about how education and health should be addressed in our Federal system”. Howard’s only response was “why would I speak to him” or words to that effect. This is a demonstration of the failure of our leading politicians to understand how to have a collaborative conversation.
Carr was not telling Howard the answer to the mess that our Federal system has made of hospitals and schools, only acknowledging that there might be a better way and offering to talk about it at a time when Federal decision making might have been simple. What could be wrong with such a conversation?
To talk with someone and seek a better outcome is not a sign of weakness. To call them a name is. That is the point that Obama was making.
Talking with terrorists is not a bad thing…giving in to their demands in a manner that encourages more terrorism might be. Listening and trying to find a peaceful solution could never be wrong. Isn’t that what police crisis negotiators do every day, with great success? Police negotiators don’t just speak to people they disagree with. They speak with people whose motives and actions are often impossible to understand. Crisis negotiators have much more difficult conversations than those between political leaders about climate change or how to end wars. And yet (as Obama says) our politicians more often than not regress to name calling when what their electors want is reasoned discussion, with all “sides” having the hard conversations and seeking to find the best possible solutions.
How can those difficult conversations occur in politics or in our personal lives? Do you remember the last time you had an argument about who should perform some task of work or where to go on holiday?
The way to address difference is to focus on WHY something is important. Why do we need to tackle climate change (for instance)? List the goals and aspirations for addressing the issue as well as the needs and fears that could be addressed in any solution and then work together to find the best answer or answers. The best answer is sometimes called “Pareto optimality”. Why not aspire to achieve it in all areas of public and private discourse.
We can support our politicians to do just that. We can tell them that we are sick of the name calling and character attacks that have nothing to do with ability to govern. We can tell them we are sick of the constant derision of ideas without any considered thought or reason being given. We can tell them we demand that they work harder to agree, not harder to hate. We can tell them that we want them to address the issues and not “play the woman or man”. This is what we teach our children and aspire to in our personal lives. Why is it any different in politics?
With more collaboration we get less conflict AND better policy!!!
See the whole of President Obama’s speech;
A good friend Audrey Lee sent me this fun parable.
One day an old German shepherd starts chasing rabbits and before long,discovers that he’s lost. Wandering about, he notices a panther heading rapidly in his direction with the intention of having lunch.
The old German Shepherd thinks, “Oh, oh! I’m in deep trouble now!”
Noticing some bones on the ground close by, he immediately settles down to chew on the bones with his back to the approaching cat.
Just as the panther is about to leap, the old German Shepherd exclaims loudly, “Boy, that was one delicious panther! I wonder, if there are any more around here?”
Hearing this, the young panther halts his attack in mid-strike, a look of terror comes over him and he slinks away into the trees. “Whew!,” says the panther, “That was close! That old German Shepherd nearly had me!”
Meanwhile, a squirrel who had been watching the whole scene from a nearby tree, figures he can put this knowledge to good use and trade it for protection from the panther. So, off he goes.
The squirrel soon catches up with the panther, spills the beans and strikes a deal for himself with the panther.
The young panther is furious at being made a fool of and says, “Here, squirrel, hop on my back and see what’s going to happen to that conniving canine!”
Now, the old German Shepherd sees the panther coming with the squirrel on his back and thinks, “What am I going to do now?,” but instead of running, the dog sits down with his back to his attackers, pretending he hasn’t seen them yet, and just when they get close enough to hear, the old German Shepherd says….
“Where’s that squirrel? I sent him off an hour ago to bring me another panther!”
All the best for the holiday season from Steve and Eulalie.
Humans have an unconscious bias towards competition with each other. This unconscious bias that has been demonstrated in many scientific studies is more pronounced when people are in conflict.
People begin to think that it is important to win, and that winning means that the other person must lose. This sets up the “drive to the bottom”.
In one experiment neuroscientists, who had identified “pleasure circuits” in the brain, were able to see those circuits light up when one person got a better score on a test than the other person (even when it was explained that it was not a contest).
In many mediation conferences I see people working really hard to convince the other party that they are wrong and should give in. I have never seen such an approach work. And even if it did and one party raises a white flag and surrenders, the dynamic of a winner and a loser rarely offers sustainability or stability.
Winning creates pleasure, that is for sure, and losing resentment. Think about the pleasure resentment cycle. What do you think it could lead to?
Of course there are situations where for you to get what you want, the other person might actually lose or perceive they are losing. Best practice in conflict management when this dynamic occurs is not to dress up the loss as a win, rather to demonstrate understanding of the losses sustained without taking responsibility.
Released on 26th November 2012 this report highlights not only the problem of workplace bullying but also the difficult path that employees must traverse to prevent and/or deal with workplace bullying behaviour.
The authors consulted with workers and employers about the problem and grappled with many of the issues that have long been identified as contributing to the growing epidemic of inappropriate workplace behaviour. I have recently reported on the Victorian Governments policies in relation to workplace behaviour.
It is clear from all of the reports that I have read that the House of Representatives correctly identifies that;
Bullying is best dealt with my taking steps to prevent it long before it becomes a risk to health and safety.
The report recommends preventative strategies and a systemic approach to managing workplace behaviour.
I would suggest that a good place to start is to identify positive workplace behaviour looks like for your organisation. This can be done in consultation with all stakeholders.
Only after appropriate behaviour is identified can you then be clear about the definition of “bad” behaviour and how everyone in the organisation can contribute to preventing bullying behaviour.
See the report at
Victorian Government Guide suggests that a positive workplace is characterised by;
- a high degree of trust and respect between all levels of staff;
- a climate in which colleagues feel valued, and have a strong sense of loyalty to the organisation;
- high quality leadership and management;
- open discussion that leads to resolution of conflict;
- a measure of self-determination over how work is undertaken;
- a culture where diversity is respected and valued;
- a lack of exclusive ‘clubs’ and cliques;
- opportunities for personal development and career progression; and
- a high level of creativity and job satisfaction, arising from teamwork and cooperation.
However a positive work environment does not mean that no one ever leaves. Career advancement and change of role are signs of a work environment that encourages growth.
Conflict management skills it seems are essential for a positive workplace. This advice is perhaps common sense. But it is not so common in workplaces, from our experience.
The report can be accessed at http://www.ssa.vic.gov.au/images/stories/product_files/221_PSSC_PositiveWorkEnv_2ndEdt.pdf
Game theorists demonstrated in a much repeated experiment that we are all vulnerable to rejecting proposals that are otherwise in our best interest. The classic experiment “The Ultimatum” shows that people will even turn down free money!
In the experiment two volunteers who do not know each other are involved. One (the proposer) is given $100.00 and asked to propose a division of the $100.00 with the second person who can accept or reject that proposal (the responder).
If the proposal is accepted the two can keep their shares. If rejected the money must be given back to the game organiser. It is a one off game.
The results are remarkable.
You would think that if the proposer offered the “responder” one dollar then the proposer should accept. The results show that in most cases the responder will reject an offer of less than about $30.00, because (the scientists suggest) people feel better about getting nothing than accepting a “deal” that is not fair.
Imagine how much influence this human bias or tendency has when we are in conflict with each other. Not only is reactive devaluation in place but the “standard” of fairness is higher with a person you do not like or trust.
What to do?
There are two suggestions;
- Measure proposal not against your (subjective) view of fairness but against objective criteria.
- When deciding whether to accept or reject an “offer”, measure it against your best alternative to the offer (BATNA), be honest (which is not always easy) and if the alternative is worse than the offer you should accept EVEN if it does not seem fair!
No one can completely eliminate their own sense of fairness from decision making. Be sure though that if it is applied you are aware that the measure is often not congruent with your own self interest.