Is Fairness Relevant to Mediation? A Reply to Angyal

Jonathan Crowe, Professor of Law, Bond University

Robert Angyal has posted an interesting response to Rachael Field’s earlier post about the National ADR Principles. Unfortunately, his post contains several conceptual confusions. This reply unpacks some of them.

First, Angyal asks ‘what is meant by “ADR”?’ Now, everyone knows that ‘ADR’ means alternative or appropriate dispute resolution, referring to a range of dispute resolution options that offer alternatives to the courtroom.

For Angyal, apparently, ‘ADR means going to court’. This must cause a great deal of confusion, because nobody else uses the term that way. It seems that Angyal subscribes to what is sometimes called the ‘Humpty Dumpty Theory of Language’:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’

Next, Angyal raises a very valid and important query. When we draft standards or principles for ADR or mediation, are we engaged in a descriptive or normative enterprise? Are we trying to describe ADR as it is or as it ought to be?

The way Angyal frames the question seems to assume a binary answer. That is, our objective must be either descriptive or normative, but not both. However, this is too simplistic. ADR and mediation are functional concepts – they describe human practices with a specific purpose or goal.

As I have argued in detail elsewhere, functional concepts are best described using what is sometimes called a ‘function+’ theory – that is, a theory that combines their common descriptive characteristics with their normative aim.

The answer to Angyal’s query, then, is that any adequate account of ADR or mediation must consider both its descriptive and normative dimensions. However, Angyal is sceptical about the very possibility of a normative analysis.

Angyal assumes that any normative analysis of ADR or mediation must be based on ‘moral norms’. He then challenges this, saying:

First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all?

A preliminary issue arises here. Why does Angyal assume that the normative point of ADR or mediation must be based on ‘moral norms’? Human practices and institutions typically have some internal point or goal, but this objective need not necessarily be an overtly moral one.

In any event, even if we accept Angyal’s assumption, his two questions are odd. In relation to the first question: why assume that if moral norms exist, they must be ‘laid down’ by someone?

If two physicists are arguing about the existence of black holes, it would be weird for one of them to ask the other, ‘Who created these black holes, and by what authority did they do so?’ The question is whether black holes (or moral norms) exist, not who created them.

Angyal’s second question has a straightforward answer. The reason we should assess ADR or mediation by moral norms is that morality, by its very nature, is the fundamental evaluative standard we use to assess human actions and practices.

However, Angyal doubts this. He claims:

We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

Angyal seems to accept here that we assess ADR or mediation by reference to normative criteria internal to the practice. However, he denies these criteria are moral ones. This raises the question: where does the normative weight of these criteria come from?

It seems plausible that ‘efficiency, cost, access, speed [and] natural justice’ are morally valuable – if not in themselves, then because they advance some deeper objective. However, Angyal seems to think they are morally inert. If so, why do we care about them?

Angyal then turns to the issue of whether fairness is relevant to mediation. He begins by contending that the question, ‘is mediation fair?’, is fundamentally ‘unanswerable’, because ‘the parties will disagree about what’s fair’.

Obviously, though, the fact that people disagree about a question does not mean it is unanswerable. If two physicists disagree about the existence of black holes, this does not mean there is no fact of the matter about whether they exist.

Angyal then claims that ‘parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome’. He calls this an ‘empirical observation’, but as far as I know he has not conducted any empirical research. He is just relying on his anecdotal impressions from practice.

Angyal argues that ‘fairness is not a concept that’s relevant in mediation’ because parties are driven by considerations of cost and, in particular, the desire to avoid litigation. This leads them to settle even where this may not be objectively fair.

Angyal’s response to this is to ‘abandon questions about fairness in mediation as irrelevant’. However, this seems like a cop out. Suppose a bully is beating people up every day in the playground. He is far stronger than any of the other children.

The children who are beaten up every day might well think ‘fairness is not a concept that’s relevant’ in the playground. If someone says about the bully, ‘that’s not fair!’, they might cynically reply that ‘fairness doesn’t enter the picture’.

Does this mean we should all just give up on changing things and let the bully have his way? Of course not. We should insist on the relevance of fairness, even if it means radically reimagining the way things currently operate.

Angyal’s perspective, in the end, suffers from a lack of imagination. It may be true that fairness does not play a guiding role in many mediations. However, this does not mean it should be abandoned as one of mediation’s ethical goals.  

Whatever happened to the National ADR Principles: A Reply by Robert Angyal SC

Robert Angyal SC has posted a detailed and thought provoking response to the most recent ADR Research Network Blog Post on the National ADR Principles – so I have posted it here on Robert’s behalf. Many thanks Robert for your engagement with the Blog! And thanks to Vesna and Teresa who also posted comments! Keep the comments coming!

Image result for image for the good news and the bad news

The post asks, “Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both?” There are several problems with the question itself.

First, what is meant by “ADR”? To this writer, ADR means going to court because the primary dispute resolution process, mediation, has not resulted in settlement of the underlying dispute. This is because mediation is ubiquitious in modern Australian civil dispute resolution. I think, however, the author of the question meant something different by “ADR”.

The second problem with the question is this: Is it a question which calls for a description of how mediation actually is practised in Australia and an assessment whether it leads to fair results – that is, does it call for a descriptive answer? Or is it a question about how mediation should be practised in Australia – that is, does it call for a normative answer based on moral norms about how the practise of mediation should be conducted?

If the question is a normative one, it leads to two more questions: First, who laid down these moral norms, and by what authority did they do so? Second, and equally fundamental, why should we assess mediation by moral norms at all? We don’t normally assess the practice of civil dispute resolution by moral norms; no, we assess it by criteria such as efficiency, cost, access, speed, compliance with the rules of natural justice, and so on. Why should mediation be different?

The third problem with the question “Is mediation about a fair process or about a fair outcome?” is the biggest one: It assumes that mediation is fair (descriptive) or should be fair (normative). It doesn’t admit the possibility that mediation might not be about fairness in either sense. You’re saying, I know, “Hang on, of course mediation is meant to be fair; that’s why people do it rather than going to court.”

I have two sorts of bad news for you. The first bad news is that in any particular case, the question “Is mediation fair?” is unanswerable, for lots of reasons. The biggest reason is that the parties will disagree about what’s fair. That’s why they’re having a mediation in the first place. If they could agree about what’s fair, they wouldn’t need a mediation or a mediator. Given this and the fact that mediations always are conducted in private, even if a third party could find out the outcome of a particular mediation, how could they form an opinion as to whether it’s fair?

The second piece of bad news is that my empirical observation, based on mediating for 30 years, is that parties to a mediation aren’t participating in the mediation because they think it’s a fair process and/or one that will lead to a fair outcome. They’re mediating because, and mediation works because, they are worried stiff about continuing the underlying legal proceedings. They are worried because litigation is very expensive, very destructive of relationships, very time-consuming and drawn-out and – most scary of all – very unpredictable as to result, with costs usually following the very unpredictable result. Losing means you get nothing out of the proceedings except the obligation to pay not only your costs but also the winner’s costs.

So the reason they are mediating is to mitigate the huge risks inherent in conducting civil litigation. To put it bluntly: Many parties to civil litigation can’t afford to lose – but they have no way of knowing with any certainty whether they will lose or win. They are looking for a way to avoid taking the risk of losing.

Some parties are even worse off: They can’t afford to run the legal proceedings to judgment but neither can they afford to call a halt to the proceedings, because a party who discontinues proceedings almost always has to pay the costs to date of the other side. They are caught in a costs trap, from which they need to find an escape. Mediation offers hope of an escape.

What this means in practice is that fairness is not a concept that’s relevant in mediation. Typically, a party will settle at mediation if the settlement being offered to them is better than the risk-laden nightmare of continuing the underlying legal proceedings. That’s the calculus that drives mediations towards settlement in my experience. It means that a lot of cases settle on terms that might shock outsiders: Plaintiffs sacrifice their causes of action and claims for damages in exchange for being released from the obligation to pay the defendant’s costs. Defendants who could defeat the plaintiff’s claim at trial pay plaintiffs to go away – because, the defendant knows, it will cost a lot of money to defeat the plaintiff’s claim but those costs won’t be recoverable from the plaintiff. So, as long as the case can be settled for less than the defendant’s irrecoverable costs, it’s cheaper to settle than to win the case. Fairness doesn’t enter the picture.

So can we abandon questions about fairness in mediation as irrelevant? They only distract attention from difficult and important questions about mediation, such as:

  • Why does mediation work?
  • How does mediation work?
  • How can I effectively represent a client at mediation?
  • What are the ethical limits on my advocacy at mediation?

Robert Angyal SC
4 July 2021

Another interesting post from Robert is in the wings – so keep an eye out for that one!

Whatever happened to the National ADR Principles?

Premium Photo | Green fern leaf on a white background

In 2011 the National ADR Advisory Council (NADRAC) formulated a set of National ADR Principles (included in the 2012 publication Your Guide to Dispute Resolution) as follows:

1. People have a responsibility to take genuine steps to resolve or clarify disputes and should be supported to meet that responsibility.

2. Disputes should be resolved in the simplest and most cost effective way. Steps to resolve disputes including using ADR processes, wherever appropriate, should be made as early as possible and both before and throughout any court or tribunal proceedings.

3. People who attend a dispute resolution process should show their commitment to that process by listening to other views and by putting forward and considering options for resolution.

4. People in dispute should have access to, and seek out, information that enables them to choose suitable dispute resolution processes and informs them about what to expect from different processes and service providers.

5. People in dispute should aim to reach an agreement through dispute resolution processes. They should not be required or pressured to do so if they believe it would be unfair or unjust. If unable to resolve the dispute people should have access to courts and tribunals.

6. Effective, affordable and professional ADR services which meet acceptable standards should be readily available to people as a means of resolving their disputes.

7. Terms describing dispute resolution processes should be used consistently to enhance community understanding of, and confidence in, them.

On 14 September 2016, the ADR Advisory Council (NADRAC’s supercedent) noted in a published paper on their website that: ‘ADR is founded on ideas – it is intrinsically ideological. The ideas which underpin ADR are neither scientific nor inert – they comprise an unmistakeably value-laden set of principles’. 

ADRAC went on to ask the following questions which continue to be relevant and challenging for the DR community in Australia.

Can the principles be combined to arrive at the following four core values:

1. personal responsibility – based on the ability to make informed choices

2. proportionality – between dispute and process

3. fairness and integrity – as to process (query as to outcome)

4. public confidence.

Are there core values missing from this list?

Is ADR essentially about the provision of a process which is fair, or an outcome which is fair, or both? And whose assessment of ‘fair’ is to be applied in any instance: is it to be evaluated from the perspective of the law, society, or the participants?

Please share your views!

Acknowledgements: Fern

The Dispute Tree or the Dispute Pyramid?

Thank you to Kate Curnow for her 2015 Blog – the all-time 5th most viewed Blog on DR for the ADR Research Network. Brilliant.

The Australian Dispute Resolution Research Network

In ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, Albiston, Edelman and Milligan propose replacement of Miller and Sarat’s dispute pyramid with a dispute tree.  They further suggest the stages of the emergence and transformation of disputes – that is, naming, blaming and claiming (Felstiner W et al, “The Emergence and Transformation of Disputes: Naming, Blaming Claiming” (1980-81) 15 (3-4) Law and Society Review 631) – be conceptualised as non-linear and fluid.

Why a Dispute Tree?

The dispute pyramid was proposed by Miller and Sarat in: Miller RE and Sarat A, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525:

Dispute Tree

Albiston, Edelman and Milligan argue the metaphor of a tree with many branches better reflects the non-linear and dynamic nature of dispute resolution as well as the legal and non-legal means by which people may seek to…

View original post 492 more words

Dumb decision— The Closure of NADRAC

This is the fourth most viewed Blog of the ADR Research Network – a personal favourite of mine! Associate Professor Becky Batagol writing at the end of 2013 to protest the defunding of NADRAC. A feisty, passionate Blog – which still applies today. Let’s all call for funding for ADRAC!!

The Australian Dispute Resolution Research Network

Last Friday, the Australian government announced the abolition of NADRAC, the National Alternative Dispute Resolution Council.  NADRAC’s functions will be absorbed into the federal Attorney-General’s Department.

Whichever way you look at it, the abolition of NADRAC  just doesn’t make sense.

An account of the reasons is dutifully provided on the NADRAC homepage.

Following the Australian Government’s announcement on 8 November 2013 to abolish or rationalise a number of non-statutory bodies, the National Alternative Dispute Resolution Advisory Council will close. The closure of this group is a whole-of-government decision that was taken to simplify and streamline the business of government.

NADRAC advises the Attorney-General and federal courts and tribunals on dispute resolution matters and also provides high quality dispute resolution information to the Australian public and dispute resolution community.  One of NADRAC’s central roles is promoting Alternative Dispute Resolution (ADR) within the Australian community.

From NADRAC’s own website we can see something…

View original post 1,484 more words

Unpacking the “adversarial advocate”

We are continuing to showcase the top 10 most viewed blogs of the ADR Research Network. We’re up to the third most viewed blog. A thought provoking blog on an important DR issue by our esteemed colleague and friend Dr Olivia Rundle.

The Australian Dispute Resolution Research Network

The traditional lawyer is described as the “adversarial advocate”. I have been contemplating what this actually means when the traditionally oriented lawyer works within the context of dispute resolution. What does “adversarial” mean – does it mean to be oppositional with others or does it mean to be partisan for the client? What does “advocate” mean – does it mean to put an argument on behalf of the client or is it a substitute for the title “lawyer”? If it means the former, does an advocate necessarily act as spokesperson and the client refrain from participation?

Let’s start with some dictionary definitions of each of the words. These are taken from the online Oxford Dictionary.

“Adversarial” is an adjective and has two meanings. First, “involving or characterised by conflict or opposition”. This meaning brings in a competitive flavour. Secondly, a law specific meaning of adversarial is offered in the…

View original post 233 more words

The central role of party self-determination in mediation ethics

This month we are revisiting the top 10 ADR Research Network Blog views of all-time. Jon Crowe and I are honoured to come in at number 2 with this post from December 2017. I’m also pleased to say that our book, Mediation Ethics: From Theory to Practice, was published in 2020.

The Australian Dispute Resolution Research Network

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable…

View original post 541 more words

There is a time and place for mediation but a bullying allegation in the workplace is not one

This month we’re revisiting some of the most viewed ADR Research Network blogs. This Blog by Carmelene Greco – Monash law student studying Non-Adversarial Justice with Associate Professor Becky Batagol in 2016 was posted in 2017 and has the most all time views – 13, 260 – of all our posts. Congratulations Carmelene!

The Australian Dispute Resolution Research Network

 By Carmelene Greco

 

This post is the final in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2016. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

bully Photo Credit: Dick Vos

The practice of mediation to resolve workplace bullying allegations is controversial and largely debated amongst academics. Ironically, effective resolution of such disputes is extremely important in our jurisdiction, with Australia having substantially higher rates of workplace bullying when compared to our international counterparts. This “hidden problem” requires a specialist and careful response but mediation is not it, and it may in fact make the situation worse.

Workplace bullying is notoriously difficult to define and there is still no nationally…

View original post 1,742 more words

Changing the frame – new empirical research listens to the voices of consumers

The Dispute Resolution field has been enriched by some significant research into process and practice. However, empirical research canvassing the views of end-users of Dispute Resolution services remains significantly uncharted territory.

The early research on negotiation styles and their impact by Gerald R Williams and later Andrea Kupfer Schneider  distinguished cooperative/problem solving and competitive/adversarial styles. This research demonstrated the interesting and unsurprising result that cooperative/problem solving attorneys emerged with better working relationships and left less value on the table. However, the research was of lawyers reflecting on the behaviour of other lawyers. Clients, the real consumers of their services, were nowhere to be seen.

More recently we have had the gift of The Global Pound Conference Series 2016-17 comprising 28 events in 22 countries. The main purpose of this program was ‘to generate conversations and collect actionable data that could be used to shape the future of commercial dispute resolution (DR) and access to justice’. The entire DR industry was represented, including parties, and each audience participated in data gathering which included answering 13 open text questions. This program has left us with some significant empirical research resulting from the meticulous analysis of the 7 North American events consolidated into The North America Report. In particular, one of the four key insights explored was the ‘needs, wants and expectations’ of the parties.

This is a big step.

We now have the voice of consumers emerging in significant and influential DR research, revealing a growing recognition that the use of the term ‘ADR’ has become increasingly irrelevant.  Supporting this reframing, the report recommended changing the nomenclature to DR ‘to reflect the cultural shift occurring within commercial DR and the need to place parties at the centre of the process…’ 

Dr Anna Howard’s new text

Now we have some important new work which adds more insight into how the consumers of DR services see things. Although its title indicates a focus on mediation in EU cross-border disputes, this text draws on rigorous empirical research with findings relevant wherever commercial mediation thrives.

As the title promises, this text achieves two important and inter-related things – it explores a significant opportunity to change the frame (the lens through which we have been viewing mediation) through listening to disputants (in-house counsel, who are the clients who actually choose which process to select for resolving business conflict).

The book opens with this provocative quote from an in-house counsel interviewee – ‘The fundamental problem about mediation is that it’s a good idea and nobody uses it’. This is the perfect entry point for a detailed examination of why the promise of mediation has not been the success story the EU and other jurisdictions were hoping for.

Exploring this conundrum leads to the realisation that the problem lies in the way that mediation has been framed as an alternative to litigation. This ‘either/or’ approach did not sit well with the decision makers as they reflected on the most appropriate process. Their lens is far more holistic – they observe a range of related and overlapping processes. This continues the theme we first saw explored in the North America Report, leading us to the concept of DR as an all-inclusive continuum of processes.

Dr Howard’s research digs deeper into the ‘framing’ and identifies that the pursuit of resolution is seen by users as beginning with negotiation. Changing the frame shows us that it is time to bring negotiation into the foreground as the ‘go-to’ process. Framing the changes means that mediation can be seen as part of an iterative process in which mediation can be reframed as ‘assisted and extended negotiation’.

As a negotiation academic and researcher, this text has particular significance for me. Returning negotiation to its rightful place on the continuum and recognising the value its principles bring to all processes in which it may be applied seems the perfect research-validated way to set the record straight.

National Mediation Conference 2021: Submissions closing soon

Old Telegraph Station, Alice Springs (A. Boyle 2021)

Submissions for presentation at NMC2021 – closing soon

There is less than one week to submit your proposal for presentation at the 2021 National Mediation Conference to be held in Alice Springs from 1 – 4 September.  The extended proposal submission deadline is 14 March 2021.

The conference is designed to accommodate the needs of those who may not be able to travel to Alice Springs by providing opportunities for both face-to-face and online presentations.

NMC2021 provides an opportunity for all those with an interest in mediation and DR to share knowledge, skills and ideas with a focus on learning about the role of conflict management in achieving true reconciliation.  The conference theme, “One Story”, describes the situation when a conflict has been resolved and no longer exists, when everyone walks away with a single, mutually respectful story.  The theme also reflects a broader perception of the commonalities among all people, and has application across all areas of DR.

In alphabetical order, the conference streams are:

  1. Approaches to conflict in First Nations and Indigenous contexts, including community-based conflict management;
  2. Business and construction; workplace and employment;
  3. Community-focused mediation, and other community-focused processes;
  4. Conciliation, including statutory and industry programs;
  5. Court-connected DR services, including services associated with courts and tribunals;
  6. Dispute system design, online DR, and technological innovations;
  7. Elder mediation, and other specialist areas of practice;
  8. Family mediation and dispute resolution, including FDR;
  9. Peace-making, peace-building, transitional justice, reconciliation, and civil society;
  10. Research, training, and education: building a rigorous evidence base for DR;
  11. Restorative and innovative approaches to conflict.

The Conference Design Committee is fully conscious of the contributions made by intercultural and multicultural considerations to the enrichment of all DR sectors and will give preference to proposals that include them.  The Committee will also give priority to the following criteria:

  • The stated conference theme;
  • The introduction of new and innovative concepts not previously canvassed or fully explored in mediation and DR;
  • The inclusion of innovative and engaging presentation techniques;
  • Where applicable, the rigour of any research to be included in the presentation, or on which it relies;
  • The inclusion of credible demonstration of the importance of subject matter to mediation and/or to DR, and to the preferred conference stream;
  • The inclusion of intercultural, cross-cultural and/or multicultural considerations;
  • the potential appeal of the proposal to a broad spectrum of delegates; the proposal should include appropriate comments if it would appeal more to one cross-section of the sector (eg, newly trained practitioners, or experienced practitioners);
  • The demonstrated capacity of the proposal to allocate appropriate time for coverage of the topic and, if using multiple presenters, strategies for including all presenters; and
  • A clear title of the proposal conveying to delegates what they can expect from the session.

To submit your proposal, please contact the Conference Organiser (by phone or email) who will email a link to you:

Rosie Fall, Conference Organiser

Ph: 08 8942 3388

email: events @associatedadvertising.com.au