Lola Akin Ojelabi
(Adapted from Lola Akin Ojelabi, “Dignity and Culture in Dispute Resolution” (2020) 8 (1) Griffith Journal of Law and Human Dignity 1, 52 – 84).
Human dignity is central to solving human problems including disputing. It is also important in dispute resolution and management. While there are different conceptions of dignity, human dignity as the capacity of humans to reason and make free moral decisions is synonymous with individual autonomy or the capacity for self-determination. This conception of human dignity yielding to self-determination is critical in modern mediation/dispute resolution. Another conception of dignity is substantive dignity – ‘the enforcement of substantive values … living in a certain way’ particularly the aspect that promotes ‘access to social and economic goods, enabling one to maintain a certain minimum standard of living’. Arguably, the whole idea of promoting access to justice is based on this conception of human dignity. Access to justice is referred to as the right of individuals to access processes for the efficient and effective resolution of their disputes. In decision-making processes, valuing human dignity should lead to conclusions that accord human worth; giving recognition to individuals’ basic need for esteem and respect.
Human dignity and autonomy is about the capacity of humans to reason and make free moral decisions. As noted above, it is sometimes considered synonymous with individual autonomy, that is, ‘the ability of each person to determine for himself or herself a view of the good life’ in other words, freedom of choice and in dispute resolution in relation to process and outcome. It is the extent to which parties are free to choose the process, select the procedure to be followed and determine the outcome of the dispute resolution process. While not all dispute resolution processes give effect to this autonomy, those that do could be referred to as dignifying processes. These processes promote party decision-making and require parties to consider other parties’ interests while aiming at a win-win solution. These processes could be collaborative problem-solving or cooperative processes including negotiation and mediation in their pure forms. Principled negotiation, which also forms the basis of pure facilitative mediation has four elements: separating the people from the problem, focusing on interests and not positions, inventing multiple options prior to deciding, and applying objective criteria. These elements, when fully explored, support human dignity as autonomy.
Mediation, particularly facilitative mediation, promotes the self-determination of participants. Self-determination is the parties’ freedom to make decisions in their own best interest without interference from others, including other parties and dispute resolution practitioners (DRPs). Concerns about self-determination relate to the level of impartiality of DRPs, including whether they give advice to parties or pressure parties to reach a settlement. Other concerns include the extent to which a party may participate in the process, including whether they have a voice and the effectiveness of their voice in the process. The latter concern can be further explored though a consideration of factors that may limit the effectiveness of a party’s voice. These factors are multiple and include lack of familiarity with process, not understanding responsibility in the process, power imbalance including informational asymmetry, access to resources, lack of understanding of legal issues and lack of access to legal representation or other professional support and the involvement of repeat players. Full exercise of individual autonomy may be inhibited by these factors. Other factors include cultural bias, stereotypes, prejudices and incorrect assumptions about a party in relation to their cultural identity, including race and ethnicity.
In negotiation and mediation, parties are the ultimate decision-makers. By focusing on the problem and not the people, parties refrain from an attack on the person but focus on the problem. In addition, negotiators must recognise that they ‘are dealing not with abstract representatives … but with human beings [with] emotions, deeply held values, and different backgrounds and viewpoints’. The relationship between the parties in this process should exhume ‘trust, understanding, respect’ but of course, this is not always the case. As noted by Ury et al, people ‘are prone to cognitive biases, partisan perceptions, blind spots, and leaps of illogic’, they ‘get angry, depressed, fearful, hostile, frustrated, and offended. They have egos that are easily threatened’ and ‘see the world from their own personal vantage point’ without consideration for others. What Ury et al teach about separating the people from the problem is to avoid these human pitfalls through a focus on relationship, giving value to the other party, empathy, refraining from blaming, and face-saving among other things. This is the responsibility of parties in negotiation because they control both the process and the outcome of negotiation. Both parties have a ‘voice’ in the decision-making.
In mediation, ethical standards impose responsibilities on third parties to ensure effective participation in the process. Third parties must give opportunity [to parties] to speak and to be heard and to enable balanced negotiation between parties among other things. To accord dignity to every party in a DR process, the five core interests of any human being must be satisfied. The interests are autonomy, appreciation, affiliation, role and status. Paying attention to these interests ‘can build rapport and a positive climate for problem-solving’. The reason is not far-fetched: human dignity is a universal need.  Paying attention to a party’s voice is an important core need in dispute resolution and would go a long way to safeguard the dignity of parties.
 Neomi Rao, ‘Three Conceptions of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 at 187.
 Lucy Michael, ‘Defining Dignity and Its Place in Human Rights’, (2014) 20(1) The New Bioethics, 12 at 22.
 Access to Justice Taskforce, A strategic framework for access to justice in the federal civil justice system, Attorney-General’s Department, Australian Government, Canberra (Report 2009).
 Charles Taylor, ‘The Politics of Recognition’ in Amy Gutman (ed), Multiculturalism: Examining the Politics of Recognition, Part One, (Princeton University Press, 1994) 57.
 William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 20-21.
 John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, Publishers, 1975) 1-2.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 2.2. It defines mediation as a process “that promotes the self-determination of participants. and in which participants, with the support of a mediator: (a) communicate with each other, exchange information and seek understanding (b) identify, clarify and explore interests, issues and underlying needs (c) consider their alternatives (d) generate and evaluate options (e) negotiate with each other; and (f) reach and make their own decisions”.
 Lola Akin Ojelabi, ‘Exploring Voice as a Justice Factor in Mediation’, (2019) 38 Civil Justice Quarterly 459.
 David Kahane, ‘What is Culture? Generalizing about Aboriginal and Newcomer Perspectives’, in Catherine Bell and David Kahane (eds), Intercultural Dispute Resolution in Aboriginal Contexts, (UBC Press, 2004) 28 – 56.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:5.
 National Mediator Accreditation System (NMAS), Practice Standards, July 2015, cl 7:4 , 7:7.
 William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32.
 William Ury, Roger Fisher and Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In (Random House Business Books, 2012) 32. Autonomy is referred to as ‘the desire to make your own choices and control your own fate’.