Open letter of thanks and appreciation #ADRRN18

By Jo Burnett, Research Masters student, Southern Cross University

The ADR Roundtable 2018 was a network event and conference on the Sunshine Coast in Dec. I came across this event by chance when looking for resources in ADR for research purposes.

Jo presenting her paper at the ADR Research Network meeting on 4 December 2018

Submitting a draft paper for presenting was a new and exciting prospect for me and I was unsure of the format, audience, members and a little intimidated by many of the esteemed academics and authors submitting and blogging on the ADR blog site.

The organisers Dr Sue Douglas and Dr Lola Akin Ojelabi, and commentator and co-founder Dr Becky Batagol were in contact early through email and very reassuring and approachable.

First contact was a group meal on the evening beforehand and gave us all a chance to meet and greet in an informal and friendly way over dinner and drinks, this was a great idea and not knowing anyone, helped me enormously to settle and get to know everyone. The meal on day two was also a great time to relax and get to know everyone.

Jo and Drossos deep in discussion: Chats over coffee before the days starts are a great way to get to know other members and continue conversations from the sessions

First day arrival at The University of the Sunshine Coast was terrifically relaxed with great facilities and a warm friendly atmosphere.  The quality and range of speakers and presentations was exciting.  A number of changes were discussed with all the attendees and the program was altered to suit the number and requests of the attendees, making this a truly collaborative event.

Group discussion on each paper is a central feature of the network roundtable format

The quality and industry expertise of all the presenters and the range of presentations and research was astounding.  For a new researcher in the field, this event, the contacts and exposure has been  invaluable and all in the interest of building capacity for and in researchers in the DR field. Again, a big thank you for the organisers and founders who provide their time and expertise on a voluntary basis.

Mary Riley, Janet Barnes and Becky Batagol in the audience

I will definitely being attending next year’s event in Dec 2019 and will be further along in my research journey, with a big input from the feedback of the commentators, chair and attendees who’s feedback has been of great value and merit to my research.

Anyone who is conducting research in this field would find great benefit in attending, for me, this experience and contacts have been unbelievably rewarding.

Thank you all.

 

Joanna Burnett has been a professional Social Worker  for 15 years, receiving her undergraduate degree in 2003 from Deakin University in Melbourne.  Prior to receiving her degree, Joanna had been working in the northern NSW local magistrate’s courts supporting women experiencing domestic violence in a court support role in a women’s service, non-government agency since 1998. Joanna worked in a mental health and dual diagnosis hospital for the past 10 years and gained a Master degree in Forensic Mental Health through Griffith University in 2013. She continues to work in her private practice across NSW/QLD border as an AASW accredited family violence and mental health social worker as a counsellor.For the past 12 months, Joanna has been working with a family law firm in a mediation program in a family violence screening and assessment role and is enrolled in a Masters of thesis (Research) with Southern Cross University conducting research in family violence, FDR and Social Work.

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What’s in a frame? Power, control and desire in the experience of family mediation.

We bring our readers another blog post, written by Assoc Prof Jill Howieson. The post is version of paper presented at the just concluded ADR Research Network Roundtable, 4 -5- December 2017 #ADRRN2017. Happy reading!

“By the tragic gap I mean the gap between the hard realities around us and what we know is possible — not because we wish it were so, but because we’ve seen it with our own eyes.” —Parker J. Palmer

In 2011, I wrote on the Kluwer Mediation blog. I wrote about the same transcripts from the family mediations that I have analysed for this paper. In 2011, I wrote that I was reading about desire in these transcripts. I had returned to my 1985 language, literature and culture textbook, Modern Literary Theory, and to psychoanalytic and linguistic theories to try to understand what I was reading.

I was drawn particularly to Lacan and Foucault, and their analysis of language. A few years on and Parker J Palmer captivates me with his notion of the tragic gap –“the gap between the hard realities around us and what we know is possible.

Now these concepts converge. Jacques Lacan’s lack, or the “endless chain of signifiers” that we use in pursuit of a ‘real’ satisfaction or desire; Michel Foucault’s recognisable objects (or hierarchies) of importance, and the practices that derive from them that we create to uphold power; and Parker J Palmer’s tension gap, where we “faithfully hold the tension between reality and possibility.” These are all concepts that can inform our understandings about mediation.

Firstly, I wondered if we as mediators do not ‘faithfully hold the tension’; namely, the tension between what parties say they want and what they desire. The present analyses of the transcripts suggests that mediators can create tight frames for their mediation discourses and thereby impose a control on the parties’ language, and thus on their needs and desires – or at least their acknowledgement of their needs and desires.

The Foucauldian analysis alerted us to the power that mediators can create through their language. It showed that a mediator’s language could create recognisable objects or hierarchies of importance, which has the effect of elevating these objects and giving them power. The mediators in the study were able to elevate the status of various ‘objects’ including the notion of ‘good parents’ who will compromise and come to agreements, and parents who displayed calm rational ways of disputing or negotiating through their choice of words. By elevating these objects, the mediators could control the practices that flowed from them. For instance, where the mediators accorded importance to the notion of ‘good parents’ and excluded ‘naughty parents’ from the discourse, this empowered the mediators to push the ‘naughty parents’ into attending child-focussed sessions.

Further, with their language, the mediators seemed to create frameworks for the mediation that would cause the parties to work within those discoursal frames.  Through a repetition of Court-focused words, the mediators created court-focused frames, which had the effect of creating fear in the parties and empowered the mediators to push for agreement (to keep the parties out of court).  The parties would follow the mediator’s language and tailor their conversation to suit regardless of whether this was where they wanted to go or not. For instance, a discoursal frame of court had the result of moving the parties towards plans and agreements, and took them away from their ‘real’ fears and desires.

Further, the results revealed that mediators would listen according to their mediation orientation. If mediators worked within a settlement orientated frame, then they would listen for agreements or signals that might lead to agreements and use interventions to suit, such as writing options on the whiteboard and recording agreements.  On the other hand, mediators working within a ‘best interests of the child’ framework would listen for examples about the child’s perspective and how the children might be experiencing the separation, and then choose child-focussed interventions to encourage the parents to think of themselves as parents rather than as disputants.

Essentially, it seemed that despite their best intentions, the mediators would often miss the real desires of the parties and/or ignore the power discourse that they were creating as they pushed towards certain outcomes rather than sitting in the process tension of possibility.

According to Lacan, needs, if left unattended (or are reframed), do not disappear but turn into desire. In 2011, I asked what language in mediation do we have to address the parties’ unmet needs and desires. Now, I ask, how do we even hear these desires and needs when we mask them so well with our own desires for outcomes?

If we want to hear the desires of the parties (and I am not saying that all mediators do) then we need to begin to listen differently. We need to listen for the structures of desire in mediation that tell us what it is that the parties crave. We need to sit in the process-outcome tension and listen to the repetitions; the patterns and the experience of the parties so that they can access their true selves and their true desires, and then tell us what these are if they need to.

The Lacanian analysis revealed that the parties would often repeat words or patterns of words that would give ideas about their desires:

• their attachment desires (I haven’t found someone worth living with and having my children involved with; I don’t live with somebody that helps me share my rent, helps me share my bills).

• desire to be a good parent or better person (But that will change in the next … probably ten weeks…that will change), or

• a desire to give the children what they perceived they needed (I’ve always said to M and to a mediator that assessed me …They’re four boys. They need their dad).

 

These examples of repetition occurred within conversations about which school the children would go to and who would pay for the children’s after-school sport activities—they were not so easily identifiable as desires.

So, what do parties say as they seek attachment to calm their unattached selves, or calmness to keep their selves intact in the chaos of conflict? What hidden desires does their language conceal? In the transcripts, there were prolonged, sometimes nonsensical discussions about the location, denomination and even the principal of the children’s schools—signifiers perhaps? There were discussions about the children’s dental plan or child payments —masquerading as desires for closure and the ‘gestalt’ perhaps?

We can never really know, but we can guess. We can sit in the tension gap of the unfolding of meanings and the ongoing and reflexive nature of mediation. The research shows that mediators tend to focus on the agreements more so than the parties do. The parties’ conversations tended more towards an articulation of what they were experiencing rather than towards concrete agreements.  We could look at the relationship between language, outcomes and experience more closely.  As Parker J Palmer writes, tension in life is ‘inevitable, inexorable, [and] inescapable’.  We could use this tension and assist the parties to make meaning out of their situations, actions and desires; to move from the jumble of conflict – the chaos – to the destination of desire, or at least understanding their desire; to make meaning in the disorganised realm, whether of experience or thought, and sort this out into an understanding of needs.

But, what mediation language do we use? What do we use as signifiers? And what desire is repressed as we substitute our language of desire for the language of courts, or child development or parties’ needs?

In 2011, I wondered whether, in every mediation, we were selling ourselves short. I wondered whether, with our future focus, our discourse of agreement, as we shape and mould, whether we were trying to camouflage that which is continually trying to show itself – our gaps, our cracks, our ugliness, our humanity, our beauty, our desires! I think in 2017, the answer might be a resounding yes.

 

 

 

 

Nearly Neutral: A Mediator’s Best Bet

By Amanda Selvarajah

This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. 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.

 

‘The Gate’ by  Guillaume Delebarre: Creative commons source

The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

     Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

Why Neutral At All?

A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

Why Not Be Absolutely Neutral?

To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

A New, Nearly Neutral Approach

Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

 

Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.