About Dr Rosemary Howell

I am a Professorial Fellow at the University of New South Wales in Sydney, delivering dispute resolution programs to undergraduate and postgraduate students. My company, Strategic Action, provides mediation, facilitation, coaching and bespoke training to business and government.

Collaboration in Krakow

krackow

Krakow: Picture courtesy UIA

The World Forum of Mediation Centres was created in 2001 by the Mediation and Conflict Prevention Council of the Union Internationale des Avocats.

It brings together commercial mediation practitioners and representatives of ADR Centres from around the world (including the Law Society of New South Wales) via an active program of collaboration with its constituents.

With my Australian colleagues, I was delighted to receive an invitation to present various sessions over the two days of the 23rd Forum, which has just concluded in Krakow, Poland.

Jagiellonian University, located in the beautiful city of Krakow, was the perfect setting for the forum. The picturesque setting, with blankets of snow covering the landscape, made the sub-zero temperatures bearable!

My fellow pracademics, Emma-May Litchfield and Danielle Hutchinson, joined me in delivering an interactive session on The Power of the Narrative in Mediation. Our session reviewed the significant research into narrative structure and power found in such diverse fields as education, semiotics, neuroscience and economics and reflected on the limited contribution in the field of ADR.

Using a case study drawn from real life, participants investigated and debated what steps they would take as mediators to identify the narratives which had led the parties to a seemingly impossible impasse; then to consider how the parties could be encouraged to develop new narratives which might meet their interests and create opportunities for resolution.

Emma-May and Danielle then drew links between the case study and findings from The Singapore Report, the analysis of the inaugural Global Pound Conference (GPC) event last March. They explained the different narratives of inexperienced and ‘dispute-savvy’ disputants and the tools the GPC research offers to mediators as they build repertoire.

Alan Limbury, our other Australian representative, was his usual provocative self in his session on Arb-Med-Arb with the same neutral. Other panellists explained hybrid processes generally and what their future role might be. Furious debate, laced with scepticism and concerns about ethics and procedural fairness, kept us entertained and engaged. The jury is still out and we may need a mediator to sort out the panellists’ differences!

There were many other important topics including the benefits of teaching Greek healthcare practitioners how to apologise effectively for medical errors; what the future looks like for Online Dispute Resolution (ODR); and in-house programs to reduce staff conflict.

The Forum is a great opportunity to share international developments and initiatives and to collaborate with colleagues whose professional practices vary widely.

The social calendar was challenging too and included a tour of the famous Krakow salt mine, an UNESCO World Heritage site. Descending more than 300 steps to dine 110 metres below ground was a chilly but unforgettable experience.

The program and most of the papers are available at www.uianet.org along with news of the next forum in Singapore in October 2017.

Learning from our Italian colleagues – and a ‘Room with a View’

A holiday in Italy is always a wonderful experience, especially when it includes the beautiful city of Florence. My recent Italian holiday was made even more pleasurable by the opportunity to visit with the Chiara Tondini and Nadia Sportolaro, the Managing Team of The Florence International Mediation Chamber (FIMC).

A branch of the Florence Chamber of Commerce, FIMC was established in 2015 with the goal of offering an international mediation service to Italian companies involved in international commercial relationships and to foreign companies who very wisely choose to resolve their disputes in Florence.

FIMC has a lot to offer its commercial clients. It has a growing panel of experienced mediators from around the world (including Australia) accredited to rigorous international standards and a mediation room with a marvellous view over the city – a drawcard in itself!

FIMC is continuing to build its profile and will host the Florence session of the Global Pound Conference series, an international program involving over 36 events in more than 26 countries and which has been featured in several of these blog posts.

FIMC is active internationally – for example, it is working with the Permanent Court of Arbitration in The Hague to secure the right to become the Italian host for its arbitrations and mediations. It is also an official observer of the UNCITRAL Working Group II which is investigating developing an enforceability vehicle for international mediated settlement agreements along the lines of the New York Convention which applies in the arbitration environment.

The Chamber of Commerce of Florence (CCF) of which FIMC is a branch, was founded in 1770 – via a statute enacted by Grand-Duke Pietro Leopoldo of Tuscany.  Since 1998 it has been handling domestic mediation services and 6,000 cases later it has an enviable track record.

The CCF domestic mediation service operates under Legislative Decree no. 28/2010, the single legislative instrument controlling both mandatory and voluntary mediation in Italy. It ensures that parties cannot litigate most (but not all) matters without a trial of mediation.

With typical Italian creativity, the constitutional challenge to 28/2010, spearheaded by the legal profession (which succeeded on a technicality) has been overcome by an amendment which has proved wise and durable – parties are still required to attend the commencement of a mediation prior to issuing legal proceedings, however they are given the opportunity to opt out of the process before the formal mediation commences.  Once the parties agree to commence a mediation and settle the dispute, the operation of the Legislative Decree creates an immediately enforceable agreement – this provision extends to both mandatory and voluntary mediation.

The operation of this regime has been surprising successful – an interesting lesson for us in Australia. The chart below, provided by FIMC, provides insight into the success of the process.  

TOTAL MANDATORY MEDIATIONS VOLUNTARY MEDIATIONS
Procedures handled (and closed) from 1st January 2014 to 30th September 2016 1.154(100%) 742 (100%) 403 (100%)
% of cases where invited party accepted invitation to the first meeting 625 (54,16%) 505 (69,75%) 160 (39,70%)
%of cases in which parties accepted to start the mediation after the first meeting (opt-out mechanism) (based on # of cases in which invited party accepted invitation to the first meeting) 314 (50,24%) 203(40,20%) 108 (67,50%)
Settlement rate in % (based on # of cases in which parties accepted to start the mediation after the first meeting (opt-out mechanism) 190 (60,51%) 120 (59,11%) 66 (61,11%)
Number of cases in  % settled after having filed the mediation request but before that the mediation meeting took place(based on # of total cases filed) 61(5,29%) 25 (3,37%) 17 (4,22%)

As Chiara and Nadia explain, requiring all parties to come to the mediation table, even in a preliminary way, provides the opportunity for parties, who might otherwise not be willing to initiate a mediation, to consider what mediation has to offer and choose to stay. The process is also efficient, low cost and not punitive for those parties who do opt out – removing the argument lawyers often use here about the unnecessary expense imposed by a mandatory regime.

As the chart demonstrates, more than 50% of parties who attend the introductory session choose to stay and of those matters, more than 60% settle.

Yet another reason to visit Florence![1]

 

 

 

[1] Discover more at: www.fimcmediation.com

 

Why story-telling matters to justice and to dispute resolution

The July 2016 NSW Law Society Journal carries an interview by Julie McCrossin with the very accomplished Professor Larissa Behrendt, Chair of Indigenous Research at the UTS Jumbunna Indigenous House of Learning.

The article begins by reminding us that Behrendt is a storyteller and indeed she is. Talking about stories as a tool for justice, she comments that part of the significance of her work is to demonstrate that ‘there is such as important role for storytelling to play in law reform’.

To illustrate her theme, Behrendt draws on the recent request to the New South Wales Attorney General, by the Police Taskforce working on the Bowraville cases, to make an application to the Court of Appeal seeking to quash the acquittal and advocating a new trial.

Achieving this has been a long road and Behrendt (who worked with the Bowraville families at Jumbunna) credits the outcome as the triumph of storytelling over legal argument.

She says

‘There is such an important role for storytelling to play in law reform. As lawyers, we are so good at thinking about legal arguments, but there are so many things I have learnt from the Bowraville families and one of those things is that their stories are more powerful than my law’.

The story is compelling reading – not just for the insight into Behrendt’s work with indigenous families. It is a reminder to those of us practising and researching in the ADR field that storytelling offers power to persuade in circumstances where facts have been unsuccessful.

The early champions of ADR did us a great disservice when they promoted a benefits bundle of cheap and quick. We continue to suffer the consequences of this error of judgement. The proliferation of ADR services that are cheap and quick has left many disputes unresolved despite their advocates recording that they have been ‘settled’.

Reading the daily newspaper reports of the coronial inquest into the Lindt café siege should be all the proof we need that stories can achieve what facts cannot. All of us are stakeholders in this inquest. Indeed there are so many stakeholders that the inquest now has its own web address http://www.lindtinquest.justice.nsw.gov.au/.

One of the reasons the inquest has been continuing for such a long time (since it began in May 2015) is that, apart from seeking factual evidence about what happened, there is a lot of healing that can’t happen until we have exhausted the well of stories that need to be told. Initial attempts to make this an efficient process have given way to entreaties from the public and the families of the hostages and the hostages themselves. One of the most tragic and consistent themes from the stories of hostages is that they felt abandoned and believed that no-one was ever going to come to their rescue. If changes are to come to how police deal with hostage taking and hostage takers, it won’t be as a result of the forensic examination of the facts – it will be because of the extraordinary power of the hostages’ stories and the resulting damage to public confidence in the police to rescue us from harm. This will be the driver to force the police and government to do things differently and better.

Although stories like Behrendt’s are all around us, reminding us of the power of story-telling, sadly, the ADR processes that are happening in the shadow of the law have seemingly adopted the fact based approach that characterises litigation. A review of position papers commonly exchanged by lawyers prior to mediation makes it abundantly clear that much of the mediation world in the hands of lawyers is just litigation in another forum. It is disappointing to see the promise of mediation so consistently frustrated. Surely we recognise by now that while facts matter, ADR provides a golden opportunity to look past the objective data of the facts to the subjective experiences of the parties.

Story-telling courses and conferences abound in law schools in America and the United Kingdom and the ABA has a number of publications devoted to this field. It is hard to find any evidence of such programs in law schools in Australia. However there are numbers of programs and conferences in the social sciences arena. Resolution Institute (formerly LEADR) has been publicising a general conference being hosted at Melbourne University in November – http://www.thestoryconference.com.au/program/

Perhaps the next step is for law schools to take a lead in influencing professional practice by partnering with other faculties (such as the program sponsored by the RMIT University School of Media and Communication) which have experience in delivering storytelling skills via experiential learning. It is time to ensure that this powerful tool of persuasion is embedded in ADR best practice.

 

 

 

 

 

 

 

Up close and (far too) personal – when ADR fails…. Or does it?

Many of us in the ADR community have been disappointed and horrified observers of the long-running family feud between a matriarch and her children.

There have been a number of attempts at mediation that we know of and, undoubtedly, many other confidential efforts to resolve this privately.

It has been very tantalising to watch. Talking with my ADR colleagues, it is clear that we have chosen to join this community because of our commitment to ADR principles and the opportunity they provide for durable resolution of disputes and the relationships they threaten.

It is tempting, in the face of very long drawn out and vitriolic proceedings, to see this case as a failure of ADR. However I have now worked my way through the elegant, carefully constructed and exceedingly thorough judgement of Brereton J[1] delivered last week and it has prompted me to revisit my thinking.

Those of us who teach ADR are careful to talk about repertoire rather than revolution. We explain carefully that choosing the most appropriate dispute resolution process will always depend on the interests of the parties. Sometimes uncovering and scrutinising the interests of the parties reveals that a private, consensual process does not satisfy the interests of at least one of the players. It seems a logical pursuit of its interests for a pharmaceutical company which owns the patent for the most profitable drug in the world to punish, aggressively, expensively and publicly, the generic brand threatening its patent. It has an interest, regardless of the expense, of giving a powerful signal to other would-be infringers to stay away. This could not be described as a failure of ADR. Rather it is an example of a party choosing, from the entire dispute resolution repertoire, the course of action which best meets its interests.

We are accustomed to families preferring harmony over disputes. Unless we are in the business of selling gossipy magazines, it is painful and unwelcome to watch the public disintegration of family life. Most of us would prefer to believe that familial love is so strong that it can find a way to resolve conflict with a generosity of spirit and a willingness to respect and honour differences.

This case challenges us to question those assumptions and our preference for peaceful resolution. Brereton J’s unpicking of the long chain of events reveals a conflict of values. In one corner we can identify the values of power and control – in the other corner the values of access to justice – feeling fairly treated within a framework of due process. The interests of each party in family harmony became, as the situation unravelled, subordinate to the values expressed in their very public dispute. Reading the story it is clear why the parties could not abandon the fight.

It is not a failure of ADR. It is the parties pursuing their powerfully held and conflicting interests, with none willing to sacrifice these interests in the pursuit of peace and family harmony.

Unpleasant as it is to be the unwilling observers of such an intimate and expensive spectacle, it is also useful to stand back and reflect. The reflection is useful and encouraging. It provides confirmation for us as ADR proponents that ADR remains alive and well; an important part of the dispute resolution repertoire. It just doesn’t suit all of the parties all of the time. The answer is always in the interests.

[1] See http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2015/646.html?stem=0&synonyms=0&query=rinehart&nocontext=1

Trust the process – or can you?

Those of us who did our mediation training in the late 80’s were required to adopt ‘Trust the Process’ as our mantra. I think there were T-shirts too (or maybe I am just revealing myself as an aging hippie). While I can smile about the T-shirt I have adopted the message. As a teacher, researcher and practitioner of ADR I recognise the value of choosing not to focus on the ‘solution’ and trusting that the process will give the parties an opportunity to discover a good outcome for them.
But recently I had the unusual opportunity of watching 12 quite experienced mediators at work in 12 different mediations. Whilst watching some very elegant work I also observed many moments that were far from elegant. To my surprise, what I watched was the process getting in the way of the mediation rather than enhancing it.

It was disconcerting to observe and to be fair the observer presence may have contributed to some awkwardness. To my eyes the mediators were quite heavy handed in driving the process to where they obviously thought the parties should be going. Some went as far as saying ‘Well – I’m in charge of the process and what we need to do now is …’. Others simply intervened to require parties deeply engaged in recounting their experiences to stop and create an issues list. It looked like an exercise of power or perhaps a need to demonstrate usefulness rather than skilful use of the dynamics of the moment. I came away feeling that what I had seen was more about the mediators than about the parties and their dispute. It was less about ‘trust’ and all about thrust’.
I have been reflecting on this in the context of the professional identity theme to which members of this Research Network are contributing. It reinforced my view that in most professions, the path from training to practice is a series of connected steps. The lessons from formal training are interpreted and enhanced via supervision and ‘on the job’ learning from more experienced professionals.
As a calling largely practised confidentially and alone, ADR lacks the supervision and guidance which enhances and distinguishes established professions. It is another consideration on the road to establishing a professional identity.

If it takes a village to raise a child, how do we get back to the village?

Interesting new discussion chain from the Conflict Coaching Guild on Linked In. The two themes remind us to think about what and how schoolchildren are learning about ADR. If we are being seen to promote connectedness across the ADR field (and I assert that is an important role for ADR professionals), what are we doing to influence what children learn? The chain also investigates ongoing communication challenges and skills training necessary to meet them.

Collaboration and ADR Community – a great new experience

Despite committing to a field which scrutinises, develops and enhances the resolution of disputes, our ADR community seems to attract more than its own fair share of conflict.

The best thing about the meeting of the ADR Network in Brisbane last week was the wonderful spirit of collaboration. What a pleasure to see outstanding ADR academics and professionals from around the country working together harmoniously to share ideas and critique each other’s ideas constructively. It was a big lesson about what we can accomplish when we model the behaviour we encourage in our writing. As a result, the publication we are planning has a theme – Challenging Professional Identities in Dispute Resolution – and a cohesion not possible without this kind of engagement.

Well done @BeckyBatagol and @rachaelfield68 for terrific organisation and leadership and thank you to all the group members for encouragement and wisdom.

Who’s Who Legal 2013 – ADR Roundtable

Interesting piece from Who’s Who Legal about what is happening internationally in ADR

See http://whoswholegal.com/news/features/article/30918/roundtable-commercial-litigation-2013/?utm_medium=email&utm_source=Law+Business+Research&utm_campaign=3273559_WHO+Briefing&dm_i=1KSF,1Y5W7,AVTOVS,704NI,1

Once again it looks like the take-up of ADR is more a reflection of price sensitivity than of an awakening in lawyers of where and how ADR can support their clients’ interests. Perhaps it doesn’t matter what the motivation is provided the outcome builds the platform. What the article doesn’t say (but what I suspect) is how ADR is being used. I think it is very likely that what we are seeing is simply the growth and entrenchment of the settlement mediation model.