I just read an article by Jen De Vries called “Merit: A trump card or a card trick” and it got me thinking about the sticky business of assessing the “merits” of a dispute. This week I am placing myself in the role of an Associate Judge and assessing the oral advocacy skills of final year law students. In applying the assessment rubric I am struck by the influence of factors such as confidence, innovation, bravery, humour, or more basic human engagement in the persuasiveness of an advocate. Even though a judicial officer aims to objectively assess the merits of the legal cases presented, they are in the end human beings who may be influenced by their perceptions of the parties or advocates, previous experiences with the people or dispute, their level of hunger or comfort, their general mood or mental wellbeing, the time of day, and how bored they are feeling. I will admit that the final observation is influenced by my hearing seven lots of the same set of moot issues this week! The process of “objective” decision making is inevitably influenced by “subjective” factors, simply because decision makers are beautiful, messy, not-so-rational-as-they-think human beings.
There are seldom any rules in non-judicial dispute resolution about the basis upon which decisions ought to be made. Therefore, the “merits” of the dispute are not necessarily the driving factor in decision-making. Mediation and conciliation processes have scope to support individualised justice, in keeping with values such as responsiveness and self-determination.
In consensus based decision making the decision makers do not aspire to objectivity, as they are the parties themselves and they are expected to act out of self interest and in accordance with their personal priorities. Granted, those self interests may include being accommodating to the other party, offering the other party what they say they need, or pursuing outcomes that don’t reflect the “objective assessment of the merits” of the particular dispute in question. It is true that sometimes parties may appeal to “objective merits” when arguing that their own perspective is more valid than that of other parties. This is reflective of the fact that the concepts of “merits” and objectivity are foundational to the perception of justice.
Legal representatives will often provide a “voice of reason”, a “reality test” to counteract their client’s deficit of being “too close” to the dispute. I leave for now a radical thought questioning the perception that a person’s intimate human experience of a dispute is deficient or problematic. There is a strong assumption from the legal perspective that the “proper” way to analyse a dispute is from an objective point of view. It is in fact essential that lawyers provide a legal analysis of their client’s problem in order that the clients take that into account in deciding how they want to deal with their dispute. This is a professional responsibility, and I do not intend to challenge the idea that this is central to the legal professional service.
Third party dispute resolution professionals in consensus based processes, such as mediators and conciliators, may also form their own view about the “merits” of a dispute. Just like judges and lawyers, their assessment will be influenced by many subjective or non-merit based factors. Unlike judicial officers, they do not have the benefit of having heard evidence curated and presented according to the rules of evidence that are designed to support revelation of the objective truth. Dispute resolution practitioners ought to be mindful about how they use their own objective assessment of the merits. In particular, being wise to the non-objective factors which are likely to have influenced that assessment is quite important.
A quick search has revealed the following articles that might offer further ideas about these issues:
Duncan Webb, “The negotiator’s ethic: fair minded self-interest” (1993) 23(4) Victoria University of Wellington Law Review 255.
I look forward to other people’s thoughts about these issues. Please contribute in the comments below.
The Australian Dispute Resolution Research Network 
I agree Olivia that lawyers make a contribution to mediation and conciliation by providing their perspective on the merit of a claim and that adds to the story of the mediation or conciliation.
I agree that these are different processes from the tribunal or court process but I am not sure that there is ever objectivity on the part of the third parties. Such objectivity is itself contested and it might be an improvement in practice if third parties in consensus based processes understood that debate . Is that what you meant by:
“Dispute resolution practitioners ought to be mindful about how they use their own objective assessment of the merits. In particular, being wise to the non-objective factors which are likely to have influenced that assessment is quite important.”?
Mindfulness does go some way to helping practitioners reflect about these issues.
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Thanks Kathy, yes, that’s what I meant. Even dispute resolution practitioners (DRPs) who are consciously trying to avoid imposing their own view of the “merits” of a claim will form their own view. I think it is natural to have confidence that we have formed an “impartial” or “objective” perspective, simply because we are outsiders to a dispute. If we don’t critique or be realistic about our own assessment, then we might intervene as a DRP when we believe the parties are straying from our personal view of the “merits”. It’s not a ground breaking thought, but just a reminder about how careful we should be to maintain curiosity, doubt and uncertainty when we are supporting people to deal with their own disputes. Checking our own biases and the flawed basis of our assessment of merit is part of that.
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