‘Mediating with Families’ by Mieke Brandon and Linda Fisher 4e: A Review

‘If things don’t change, they’ll stay the same’

‘Every cloud has a silver lining.’
Photograph by Mieke Brandon

From where does a family get its shape? Family dynamics are one among a multitude of factors contributing to and created by the shape of a family: how the family appears to all who view it, from within and from without, historically and contemporaneously. Family dynamics are the continuous, multiple processes of perceived connecting and disconnecting; disconnecting and reconnecting. Some dynamics are noticed by most. Others form in the eye of beholders. Some dynamics sustain; others ephemeral. Family and personal heuristics develop around dynamics, melding into the feedback loop to form a taxonomy of connections.

When together the connections, disconnections and re-connections generally form patterns of affirmation it is likely that a sense of personal and family identity, resilience and optimism will come to the fore. When family interactions are characterised by conscientiousness and gratitude, for example, research indicates that family members are likely to be predisposed to happiness, among other qualities.[1] [2]

When, for some period of time, there are patterns of depletion the resulting prevalence of disconnections and weak re-connections can predispose the family and its members to processes which have effects ranging from stagnation to fragmentation. Those patterns can become established to the extent that family heuristics become premised mainly on criticism, stonewalling, defensiveness and contempt[3]  there is little scope for gratitude[4] and little motivation for conscientiousness[5], predisposing the family to bypass opportunities for happiness. Sooner or later one or more members of an unravelling family is likely to conclude that ‘if things don’t change, they’ll stay the same’. This is when it is time to find a qualified, accredited and registered practitioner who has the current Mediating with Families ‘under their belt’.

Since the success of the first edition of Mediating with Families in 2000, Mieke Brandon and Linda Fisher have kept their text contemporary. Having been developed over more than 20 years, this fourth edition is influenced by and influencing the Silent Generation through to the Millennials. Family values have changed considerably since the late 1990s when the first edition was planned and drafted and some of the Silent Generation were in their 50s to the late 2010s when the fourth edition was being planned and written and some of the Millennials were in their late 20s. As the hard-working Silent Generation, born between 1925 and 1945 evolved into the high-achieving Boomer Generation, born between 1946 and 1964, the variety of shapes of families increased, family values shifted, and connections, disconnections and re-connections took on changing forms and significance. Further shifts in values occurred with the ‘she’ll be right’ Gen X, born between 1965 and 1981 and then with the Millennials, 1982 to 2004 who are underway reshaping values of family, work, leisure and finance. Shifts in values were exemplified by the universally emancipating shift in rights of December 2017 when the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) was passed by the Parliament.

During the period of growth between the first and the fourth editions of mediation theory and practice, the concept of family has undergone significant social change. Perhaps each in their own way, mediation and families have transformed in the way that a child, born in 2002 has developed over the same time. As with the child, a synergistic mixture of nature (evolution) and nurture (largely policies and the legal system) has brought family mediation into the second decade of the century.

Ancestry

A signature attribute of Mediating with Families, fourth edition, is that it has maintained its versatility and relevance through numerous sets of changing values. How has it done so? Primarily, by subtly and consistently adhering to the fundamental notion of mediation as a process by which to guide participants through an interests-oriented exploration of their content in the context of their values to reach pragmatic outcomes. And in other ways besides: by expressing concepts inclusively; by making space for individuality throughout the text and the mediation process and by addressing a range of developmental stages from adolescent to elder years.

I have had the pleasure and privilege of reading and reflecting on each edition. The books sit side-by-side on my shelves, each careworn; each a broader version of their older sibling.

Together with its versatility and contemporary relevance, the signature style that permeates each edition remains as welcoming, insightful, understated and highly accessible as ever. The text is approachable in a way that invites a certain reciprocity. Linda and Mieke offer their insights for the consideration of the reader, rather than as immutable truths. They have written and refined a text that understates its place in the world of family mediation and is all the more accessible and therefore influential for it.

This edition, like those before it, broadcasts the pivotal message of previous editions: at all times think about yourself as a mediator and the effect you and your interventions are likely to be having on participants. As I read Mediating with Families, the sum of the substantive content and the interactive opportunities evolved and still involves into heightened awareness of three particular mediator meta functions which having engaged me and maintained my curiosity throughout:

  • mediators facilitate participants’ well-being
  • mediators demonstrate respect for ‘help seekers’
  • mediators display compassion for vulnerable participants

 The excellence that precedes this edition is the excellence of this edition.

This edition

In many ways, this edition is brand-new. In other ways, it is a classic. There is new material of every kind together with updated material. The updates and the new material are integrated into the wisdom of previous editions to provide new and refreshed, stimulating, reflective learning experiences. Each chapter has been updated with information and analysis as well as with recent legislation, references and resources and where appropriate, with additional figures, case studies, dilemmas and reflexive exercises. Completing the text are 14 appendices. The first 13 appendices are essential proformas for practitioners. The fourteenth, on page 685, needs to be read rather than described.

Specifically, the inclusion of neuroscience and cultural norms and family violence raise new questions which lead to new hypotheses and new practices. Newly included practices range among interventions for moving participants from negative to positive perspectives to Child Inclusive Practices to mediator practices of supervision and reflection. New breadth and depth in the scope of mediation processes and hybrid mediation processes for diverse situations blend in the authors’ succinct, clear style. Care and protection matters, elder issues and farm debt circumstances as well as FDR-for-one and mediating with participants who may be vulnerable are introduced in this edition. In addition to the new substantive content is an overview of the modalities of online mediation and e-mediation. And necessarily, since mediation takes place in the ‘shade of the law’[6], there is an analysis of the impact of the recent FLA amendments on mediator impartiality. All of these you can see in plain view in the Contents pages and the Index.

There is, however, more to Mediating with Families 4e than the generous amount that meets the eye. The versatility of Mediating with Families, second edition, was confirmed in the third edition and remains a distinguishing attribute of the fourth.

Such is the comprehensiveness that you can choose a topic and trace it through the book. And such is the accessibility that you can now do this very efficiently. When reviewing the second edition, for example, I investigated mediator meta-functions. In the third, I adjusted my lens from panoramic to ‘wide angle’ to macro on any number of aspects of mediating with families. This versatility of format remains. And … there is more!

For the current review I decided to put my previous experience of the versatility, breadth and depth of Mediating with Families[7] to the test on a subject so recently topical that it is at present largely the focus only of specialist professional groups.  What could I learn and confirm from Mediating with Families 4e regarding the nexus of family mediation and infant and child mental health?

Infant and child mental health and family well-being

Children, from infants to adolescents, are in a unique and potentially compromised situation in family separation. Parents separate; children are separated. Separation usually follows and is followed by an unsettled period ranging from difficult tensions to serious conflict. In separation situations, children have little agency within the family and infants have none. Their flourishing, both natural and nurtured, is likely to have been set back during the periods before, during and after the separation. According to the Valuing Children Initiative[8], when children flourish so does society.

 In 1989, The Convention on the Rights of the Child[9], the most widely ratified international human rights treaty in history, changed the way children were to be viewed and treated, emphasising their position as human beings with a distinct set of rights instead of as passive objects[10] Rights state entitlements which form a crucible for interests and from interests can be identified ‘best interests’.

 Appropriately and perhaps belatedly, infant and child mental health is a movement that has recently developed a public profile. Over the last decade, as the reality of adult and adolescent mental health has progressively been acknowledged and then accepted publicly, the Australian Association for Infant Mental Health (AAIMHI) has been drawing attention to the field of infant mental health. The Association uses the description of infant mental health of Osofsky & Thomas (2012):

The developing capacity of the infant and young child (from pregnancy to 3 years old) to experience, express and regulate emotions; form close and secure relationship; and explore the environment and learn all in the context of the caregiving environment that includes family, community, and cultural expectations as multidisciplinary approaches to enhancing the social and emotional context of infants in their biological, relationship and cultural context. It requires expertise and conceptualisation from variety of different disciplines and perspectives including research, clinical practice and public policy.

 The generic family mediation conversation regarding children’s ‘best interests’ and separation has been regularly reworked since the ‘modern era’ of family law commenced in 1975. Only recently and selectively has it been deepened by the topic of infants’ and children’s mental health and their related rights.

The concepts of ‘best interests’ and the right to sound mental health provide different perspectives on children’s propensity to flourish. ‘Best interests’ are aspirational and provide a guide. It is an entry-level, generalist concept, ideal for many circumstances and measured by impression. Sound mental health, conveyed by a description, is practical and provides/requires criteria and is measurable in a standardised way. It is a specific concept, applied to individual circumstances. Thinking in corporate terms it could be said that focusing on ‘best interests’ is the vision for parental decision-making regarding all children in all circumstances and that fostering sound mental health is the mission of decision-making by each parent for each child.

Among many factors affecting infants’ and children’s mental health, which come within the scope of FDR, are parenting style, amount of sleep, child safety, family predictability. Parent mental health is another factor.[11] The dynamics of separation are therefore likely to affect infants’ and children’s mental health.

What does Mediating with Families have to say on the topic of infant and child mental health in the setting of mediated parental separation?

Infant and child mental health and family well-being in Mediating with Families 4e

For this fourth edition, I used ProView, the Thompson Reuters e-book platform to follow my chosen topic. It is an added dimension of the versatility that previous editions of Mediating with Families provided in their detailed Contents pages, Index and section headings. With the high functionality of ProView, I located significant content and references on the nexus of family mediation and infant and child mental health. My search for ‘children’ brought up 2043 results. My search within children/infants for mental health, yielded 265 results. Mental health is referred to throughout the text in at least half of the chapters. More specifically, excerpts from chapters 2, 4, 5, 8, 11 address mental health and children.

In addition to the specific references noted above, suffused throughout the text, is the subtext of compassion toward children in ways that are child focused, child inclusive and child responsive.

Conclusion

This is a book which has been carefully written, that is, written with care for its variety of audiences, individually and collectively. Each reader will find Mediating with Families provides the constellation of readers who are professionally and pragmatically interested in the practicalities, the possibilities and the perceptions of mediating with families with a holistic and detailed contemporary compendium that is consistently welcoming, worldly and wise. I congratulate the authors.

Footnotes

  • [1] Brandt, A. Science proves that Gratitude is Key to Well-being Psychology Today posted July 30, 2018
  • [2] Beaton, C. 7 Things Conscientious people will never do Psychology Today posted May 22, 2017
  • [3] Gottman Relationship Blog April 29 2013
  • [4] Brandt, above n 2
  • [5] Beaton, above n 3
  • [6] I use ‘shade’ advisedly to indicate the care for mediation provided by the law
  • [7] Halsmith, M. above n 7, n 8
  • [8] Savage, L. (2016) Valuing Children Initiative Foundation Paper p.3 valuingchildreninitiative.com.au
  • [9] unicef.org.crc
  • [10] Savage, L. (2016) Valuing Children Initiative Foundation Paper p.3 valuingchildreninitiative.com.au
  • [11] Savage, L. above n 12

Mediating with Families by Mieke Brandon and Linda Fisher 2ed: a Review

This review was first published in the ADR Bulletin in 2009

Family Dispute Resolution in Australia has evolved and been transformed by the Family Law Act 1975 and its subsequent amendments. Recently, over 2000 registered FDR (Family Dispute Resolution) practitioners have decided whether to upgrade their qualifications to post graduate equivalent or to remove FDR from their practice portfolio. To date, approximately 1200 have completed the registration requirements. To do so practitioners have necessarily been reflecting on all aspects of their practice. The publication of the second edition of ‘Mediating with Families’, written by Linda Fisher and Mieke Brandon, when for the first time in Australia FDRPs have been obliged to explicitly examine their knowledge and practice, is timely indeed. MwF is a book which provides renewed breadth and depth of insight and clinical practice for the FDR profession. Other professionals whose clients are affected by separation and family conflict will also find much to stimulate, challenge and inform them in ‘MwF’.

In the preface the authors liken this second edition to a home renovation of their first. The contents pages indicate just one aspect of what is in store. Readers have more to look forward to. Subtle accretion of mediator meta functions develop the ambience and are implicit throughout. Various reader-author conversations suggest themselves. Resources abound.

Talking the talk

The contents pages indicate an open plan style book structured to culminate in two constructs: the culture and the language of families. Following three initial scene-setting chapters, which analyze family dynamics, describe approaches to mediation, then emphasize the influence of the mediator, there are three chapters describing and exploring FDR.

The next two chapters extend the principles and philosophy of FDR beyond the concerns of separating couples to issues which can arise among extended family members. Having developed, applied and honed the knowledge, skills and aptitudes relevant to FDR, the authors refine and adapt them to these family circumstances.  Practitioners who have and/or would like to broaden the scope of their practice beyond FDR, will find Chapters 6 to 8 of MwF describe family situations in which family mediation theory and practice is effectively applied: inter family issues, adoption, parent-adolescent disputes. Those who question whether such transferability is possible or appropriate may find it salutary to recall that ‘the mediator manages the process; the parties manage the content’.

The first two of the final four chapters, Chapters 9 and 10, make overt the implicit messages of the first eight: namely the essential elements of and variations on, the process of mediation and the responsibilities of family mediators. As I read it, the breadth and depth of Chapters 1 – 8 assumes that the reader is beyond the apprenticeship stage of practice. I recommend newly qualified practitioners consider starting with Chapters 9 and 10 entitled ‘Practice Considerations’. Here they will learn sufficient of the scaffolding of mediation practice by way of endorsements (for example of co-mediation p. 232), explanations (for example of power p. 217) and exhortations (for example referring parties p.226) to inspire some of the momentum and confidence necessary to commence professional practice.

The final two chapters provide an analysis of the significance of language and culture. The crux of each is presented as being rigorous cultivation and demonstration of respect for mediation participants’ uniqueness. Reaching these chapters, which simultaneously provide the foundation and the apex of this second edition renovation, can be likened to the satisfaction of coming home. The preceding ten chapters of exposition and exploration of substance and meta themes through conversations with the authors reaches a natural resolution.

Walking the walk

“I hear and I forget; I see and I remember; I do and I understand.” is reputedly a Chinese proverb, challenging all educators to deliver beyond ‘talking the talk’.   Throughout ‘M w F’ Fisher and Brandon offer the reader a variety of opportunities to consolidate their understanding of mediating with families through doing. Exercises and diagrams which transform the words of the text from information through understanding to reflective practice cater well for the reader-educator, whether educating oneself and/or others. For example, genograms pp. 57 – 59 and pp. 316 – 317 convey an appreciation of the complexity of families in the way that pictures paint a thousand words.

Case studies and examples complement the text, providing an opportunity for the reader to experiment with applying new insights. Each questions to consider segment, invites the reader to make the chapter their own by integrating the substance and the process into their own mediation schema.

Completing the text are twenty appendices, nineteen of which provide sufficient materials to set up an FDR practice or to produce much of the portfolio of ‘evidence’ required to comply with FDR registration criteria. The twentieth appendix needs to be read to be appreciated.

Talking and walking

As I read MwF, the conglomeration of the substantive content and the interactive opportunities provided by the resources evolved into heightened awareness of three particular mediator meta functions which having engaged me maintained my curiosity throughout. Other readers will no doubt find various different synergies to pursue.

Mediators facilitate participants’ well-being

The first meta function that surfaced together with its corollary is that the mediator can significantly influence the health of family relationships, and that family relationships are a sound predictor of personal well-being. Cummins[1] identified eight variables in the personal well-being index. ‘Relationships’ is one of them. Like the authors of ‘Mediating with Families’, Cummins conceptualises families in systems theory, commenting all homeostatic systems have a limited capacity to absorb challenge and when aversive experiences are both strong and sustained, homeostasis fails. If this occurs, people lose their normal positive view of themselves and become depressed. Qu and Weston[2] of AIFS concur:

Our sense of wellbeing is closely linked with how happy we are with our relationships with other people, especially those that are most important to us. Of these, relationships within families loom large, affecting all members, the family as a whole, and the community. If relationships in the family are supportive and enjoyable, then the challenges we face both within and outside the family can seem less daunting than otherwise. The souring of family relationships, on the other hand, can be a devastating experience in which our “refuge” can become a “minefield”.

Fisher and Brandon synthesize research regarding a variety of aspects of well-being in Chapter 4 which in analyzing the shift from a loss of a positive view of self through to well being “focuses on the development and breakdown of relationships, with particular emphasis on issues affecting couples who separate”. It outlines “how mediators can assist couples to find ways to manage their emotional journey and resolve their separation conflict through mediation.”

Mediators demonstrate respect for ‘help seekers’

The second strand to pique and sustain my interest was the authors’ respect for those who seek the help of the profession.  Careful choices of language including subheadings, for example, in Chapter 7, Challenges in the family (p. 144) set and maintain the respectful tone, which extends to conveying the importance of parties’ dignity in the frequent case studies.

In their study of ‘help seeking behaviour’ Lixia Qu and Ruth Weston, referring to FDR practitioners as “counsellors or similar professionals” found that

“counsellors or similar professionals” represented the most “popular” source for advice or information for parents who were separating, followed by lawyers/legal services, then general health professionals.

If ‘help seekers’ include mediators among those to whom they go first for information, it is all the more important that respect for the dignity of clientele and excellence of practice are values commonly held and explicitly practiced. In both what they say and how they say it, Fisher and Brandon continue to make a significant contribution to identifying these as fundamental to the role of the mediator and in enhancing practitioners’ skills. Paragraphs built around sentences such as on p. 170 “Family members usually wish to be respected, valued and wanted, and members of blended families are no different.” are prevalent.

Mediators display compassion for vulnerable participants

The third thread is developed early and remains prominent throughout. It is the importance of mediators displaying skilled compassion for the vulnerability of adult participants who, with their children, may be at their most vulnerable.

As Dorothy Scott[3] points out:

One of the major challenges in protecting children from abuse and neglect is to build the capacity of adult-focussed services… so that they can see, hear and respond to the needs of vulnerable children in the families they serve.… with the emphasis being on the transfer of principles rather than programs.

Mediation as described by Fisher and Brandon, builds adult capacity to respond to children’s needs. Techniques for compassionate interventions include

Sensitivity, Open-mindedness and non-judgmental attitude, Inclusiveness p. 100

and in sections such as understanding the issues p. 175. case studies exemplify these concepts.

As I read it, M w F provides the opportunity, through the breadth of its structure and the depth of its substance, for family mediators to reflect on the potential of the infinite combinations of their knowledge, skills and values to interact with the individuality of parties in ways which maximize the well being of vulnerable participants. The authors convey, and in return expect, compassion of family mediators and in doing so raise the bar well beyond the mechanics of mediation practice in such a way that they develop the professional together with the pragmatic aspects of family mediation.

These are only three among many of the mediator meta functions readers will discover in Mw F that will maintain their inquisitiveness and hold their attention as they reflect on their practice.

Conversations

As well as the breadth of its structure and themes, the authors provide considerable depth of clinical substance. M with F invites the reader to form a relationship with the authors perhaps as mentees, perhaps as colleagues.

Mentor-mentee conversation

For those who would like to get to know each of the authors as mentors, I recommend ‘listening’ to the clear messages, particularly in chapters 1 – 3 and 9 and 11. Linda’s and Mieke’s experienced and thoughtful voices can be heard clearly as they identify and explore aspects of the family, family mediation and the self-as-the-mediator.

As I read I ‘listened’ to the tone of these chapters. Well before I reached page 274 on which there is a list adjectives that describe the tone of ‘mediatorspeak’, my list describing the tone of MwF included ‘compassionate’, ‘experienced’, ‘accepting’, ‘caring’, ‘interested’, ‘tentative’, ‘empathetic’, ‘sensitive’, ‘convincing’. These are among the qualities of the tone that contribute to the depth of this book.

Collegial conversation

These two veteran mediators write with confidence in a way that invites a conversation, ‘biblio-supervision’, with reader-practitioners. As would be expected, readers’ perceptions, understandings and hypotheses will differ from those of the authors’ providing the reader the opportunity to challenge, explore and clarify their perceptions and points of view, prompting reflection and growth. For example, I paused for thought when reading the section on intake and suitability for mediation (p. 198) “Two important elements of intake are to assess the safety of the parties should they come to mediation, and whether they have the necessary negotiation skills and motivation.” It occurred to me that I see it just a little differently and might have written “Two important elements of intake are to assess how to maximize the safety of the parties if they come to mediation, and how to design the process to maximize the likelihood of parties being able to be assertive with assistance.” These may seem small and insignificant changes to some. What is significant is that the degree of detail in MwF offers myriads of opportunities to become aware of and to develop insight into one’s family mediation practice and its underpinning rationale.

MwF in context

Some texts imply that theirs is the last word on the topic. Fisher and Brandon have written a text that understates its place in the world of mediating with families and is likely to be all the more accessible and therefore influential for it. As well as the scope and detail of the book, the Additional Resources at the end of each chapter convey to the reader a reminder that there is much more to consider and much more that has been considered. To have identified and included the Classics in these sections acknowledges and affirms the foundations on MwF and many contemporary texts are built. Footnotes provide another source for those wanting to excavate the archives.

Ideas for the 3rd edition

It is clear that this book is an asset to those who do or would mediate with families. Now follows the reviewer’s obligatory ‘white ant inspection’.

In the 3rd edition I will look forward to an even more consistent selection of language for mediators to emulate. Having set the language bar high, and while it would be a mistake to think of words only in their literal sense, the choice of language sometimes disappoints. For example, I prefer to think of family structures ‘changing’ rather than ‘breaking down’ as on p. 5 and p. 9. On  p. 20 I found it jarring to read ‘the mediator reality tested… for them’. I think of participants accomplishing the reality testing, assisted by the mediator.   On p. 27 I found ‘not completely neutral’ to be a red herring which could set a reader new to mediation back a decade. Continuing, for a moment, with other expressions which disturbed my flow, p. 13 could be read as implying that ‘good faith’ and ‘genuine effort’ are interchangeable. On page 156, I’d like to have read that a mediator’s role is to be evenhanded rather than that ‘the mediator is not on their side nor that of their child’. In a book in which generally the choice of language is inclusive, interest based, peer oriented, I found periodic misdemeanors all the more glaring.

Any cracks in the plaster regarding use of language are more than redeemed by the transformative title ‘Mediating with Families’. ‘with’ is the perfect preposition for mediation, accentuating as it does,  the philosophy of parties’ self determination and mediator’s dispassionate involvement. The same book, entitled inappropriately ‘Mediating for Families’, or exchanging the audacious ‘for’ for the insipid: ‘in’, ‘about’, ‘between’ or even ‘regarding’ could have been justifiably judged by its cover.

My other concern is that in this ‘renovation’ as the authors describe it [p. xvii] would have been all the stronger for a firm foundation and a house plan showing the relationship among the ‘rooms’. An opportunity exists here. Although sections often commence with ‘as mentioned previously’ each of the sections of each of the chapters is self contained. Just as mediation is not alone in being described as ‘a practice in search of a theory’, MwF is not alone among the mediation literature as ‘a book in search of a blueprint’.  Sound and explicit theory engenders and liberates practitioner creativity in a way that is experienced as congruent, providing security for participants. Lack of theory creates dependence on the ideas of others and eclecticism both of which can fragment participants’ experience. Mediation theory is not easy to come by. I look forward to a third edition of MwF which retains the excellence of the second edition and incorporates an explicit rationale, a readily available reference point, providing simultaneous stability and freedom to enable me to wonder, to develop hunches, to wrestle with the relationship among concepts, to hypothesise, to test hypotheses; to extend what I read beyond the examples presented, to enrich, challenge and make me confront my subliminal theorizing, otherwise known as assumption-making.

In the meanwhile, with MwF at their side, FDR practitioners and family mediators can continue to incorporate the wisdom, experience and generosity of Meike Brandon and Linda Fisher into their practice and learning. It is the families of Australasia who will benefit from their dedication, leadership and insights. If I were writing the blurb for Thomson Reuters I’d have submitted “M w F, written by two highly regarded, contemporary, versatile practitioners will be welcomed by the competent and diverse group of professional family mediators who, with this book in their library, can continue to aspire to delivering best practice in ways which support an progressively more informed 21st century mediation clientele.”

References

[1] 13 March 2008
Subjective wellbeing and families: Issues of measurement and data interpretation
Professor Robert A. Cummins, Professor of Psychology, Editor-in-Chief, Journal of Happiness Studies, Deakin University

http://www.aifs.gov.au/institute/seminars/2008/cummins.pdf  accessed 11 April 2009

[2] Snapshots of family relationships

Australian Institute of Family Studies, May 2008.http://www.aifs.gov.au/institute/pubs/snapshots/ssreport08/ssreport08.html

[3]Dorothy Scott (2008) Think Child, Think Family, Think Community: Building the capacity of adult services to respond to the needs of vulnerable children; AIFS Seminar Series    DS is Director, Australian Centre for Child Protectionhttp://www.aifs.gov.au/institute/seminars/2008/scott.pdf  Accessed April 11, 2009

 

Vale Sir Laurence Street

On June 21 Sir Laurence Street passed away. Sir Laurence will be remembered by many. I am one of the many. As well as holding many significant public offices, Sir Laurence mingled with practitioners at all sorts of ADR gatherings. He was, for example, a regular delegate at the National Mediation Conferences. His succinct booklet, Mediation: A practical outline has become a classic among practitioners. Resolution Institute has expressed the loss that is felt by members throughout Australia. and New Zealand.

My memories will be of lively conversations with Sir Laurence.

Music to my ears 3: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

Mediation and court: diagrammatically distinct… experientially …?

This post is the third in a series of three:  ‘Music to my ears 1- 3’. It was prompted by a paper presented by  the Chief Justice of the Supreme Court of Western Australia, Hon Wayne Martin AC,  in March 2018.

Music to my ears 1‘ raises the possibility that there are some similarities in both the scope and the constraints of court procedure and mediation processes .

Music to my ears 2 explores the possibility of some similarities by transposing ‘court’ to ‘mediation’ to establish the extent to which the statements originally referring to court procedure can be read as broadly describing mediation processes.

This post, ‘Music to my ears 3’, builds on apparent similarities of the scope and constraints of court procedure and mediation processes by translating the comments of the Chief Justice into the concepts and then into the language of mediation to begin to explore the notion that it may be the language of each of the processes that contributes to them being perceived by many to be antithetical.

If that can be done meaningfully then I suggest that from participants’ perspectives, perhaps it is in part the language used by each that distinguishes one from the other. This possibility raises thoughts of participants receiving explanations of the two processes in terms of what they have in common and how they are distinct rather than the current situation of one process being seen to be the antithesis of the other; one process and its proponents being seen to be undermining the process and proponents of the other.

  • Chief Justice re Court

It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties. p. 8 under the heading ‘The Constraints upon Adjudicated Outcomes’

Chief Justice re Court transposed to Mediation concepts and language

At mediation it is significant that the information is provided by participants and is the information that participants individually and collectively choose to present. Typically it is presented throughout the stages of the ‘top triangle’, where in the exploration stage everything that may become relevant to reaching resolution is aired in an environment of ‘all information is valid… maybe differently valid’. It is that information that is referred to when, during the stages of the second triangle, the mediator facilitates participants’ creation of options, followed by reality testing, filtering and then reaching agreement, as appropriate.

  • Chief Justice re Court

In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth.

Chief Justice re Court transposed to Mediation concepts and language

At mediation the notion of truth is often conceptualised by participants as significantly similar recollections which can cause and can result from ‘workable truths’, that is, participants’ perceptions of reciprocated authenticity underpinned by acceptance (and possible disagreement) of  others’ perspectives.  These ‘workable truths’ appears to be present in a tenuous way throughout mediation for many participants.

‘Workable truths’ are person and therefore mediation specific. Mediation is future focused: the question of truth in mediation is a question of ‘workable truths’ projected to unknown and dynamic circumstances. In mediation, truth often refers to a commitment to future honesty, predicated on privacy.

  • Chief Justice re Court

Australian courts are not commissions of enquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view.

Chief Justice re Court transposed to Mediation concepts and language

Mediations are private and consider only participants’ and constituents’ future focused interests, all of which, because they are developed from the past and are dynamic in the present, have a significant hypothetical element to them.

  • Chief Justice re Court

Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party.

Chief Justice re Court transposed to Mediation concepts and language

At mediation the issues are those identified by the mediator and agreed by the participants. Typically the agreed issues form an agenda, each item of which is future focused, neutral and mutual. Agenda items can relate to any and all domains of participants’ decision-making: legal, moral, interpersonal, practical etc

  • Chief Justice re Court

The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication.

Chief Justice re Court transposed to Mediation concepts and language

The outcomes of most mediations almost always remain private outcomes which results in little or no data being available for reporting or analysis. With no comprehensive sociological and statistical data available, participants often describe their mediation experience in a way that I shall summarise as ‘pioneering’. Any learning from other pioneers is due to word-of-mouth. Society remains unaware.

  • Chief Justice re Court

We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.

Chief Justice re Court transposed to Mediation concepts and language

Mediation participants are initially motivated by a constellation of motives. During the mediation their motives coalesce into reaching a durable, practical, private agreement and  in many situations, also to restoring and maintaining at least cordial relationships. Principles are far from the focus and ‘the truth’ (much of it inconvenient) has been relegated to the periphery.

  • Points for further pondering

Ho: From an objective conceptualisation of participants’ perspectives of their experiences, described in both the terminology of the court and the terminology of mediation, the procedures of the court and the processes of mediation are significantly similar.

H1: From an objective conceptualisation of participants’ perspectives of their experiences, described in both the terminology of the court and the terminology of mediation, the procedures of the court and the processes of mediation are significantly distinct.

It would be interesting to be able to measure, with validity and reliability, the experience of court and of mediation and of other forms of dispute resolution from the perspective of participants, constituents and society.

 

 

Music to my ears 2: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

This post continues ‘Music to my ears 1‘ in which I pondered whether I could transpose an excerpt from the paper by the Chief Justice of the Supreme Court of Western Australia, The Hon. Wayne Martin AC, from a description of the scope and the constraints of court practices to a description of the scope and the constraints mediation practices.

Below I put my ponderings to the test, changing the legal terminology to mediation terminology and as little of that as possible.

You be the judge!

I like to think that if the Court versions are written in the key of C major then the Mediation version below is written in the key of A major. The F# minor version will follow in ‘Music to my ears 3‘.

  • Chief Justice re Court

It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties.

Chief Justice re Court transposed to Mediation

It is important to remember that the issues that can be resolved by a mediation are only those which the parties choose to present, and that they are resolved on the basis of the interests presented by the parties.

  • Chief Justice re Court

In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth.

Chief Justice re Court transposed to Mediation

In the mediation approach there is no practical capacity for the mediation to conduct its own investigations to establish the truth, nor is there any obligation for the mediation to arrive at some notion of absolute or independent truth.

  • Chief Justice re Court

Australian courts are not commissions of enquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view.

Chief Justice re Court transposed to Mediation

Mediations are not commissions of inquiry and can only view the circumstances through a prism of information presented by the parties, which may or may not give a true view.

  • Chief Justice re Court

Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party.

Chief Justice re Court transposed to Mediation

Similarly, mediations are generally constrained to facilitate to assist parties to reach agreement only upon issues presented by the parties, and, contractually have no capacity to take the outcome in any direction.

  • Chief Justice re Court

The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication.

Chief Justice re Court transposed to Mediation

The contractual constraints imposed upon a mediation significantly diminish the normative value of mediation.

  • Chief Justice re Court

We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.

Chief Justice re Court transposed to Mediation

We should remember that the incentive of each party is to reach a satisfactory agreement, not to establish the truth or to develop societal principles.

  • Points for my further pondering

Based on this excerpt and to the extent that you can live with this transposition, to what extent are court and mediation processes related?

Could CDR be an abbreviation of Consanguineous Dispute Resolution?

  • Next post

Another approach, to put to the test, the CDR test, could be with regard to the currency (the unit of exchange) of the process and therefore of the people involved. In a court, the currencies are rights and authority; in a mediation the currencies are interests and authority.  Maybe that will underpin ‘Music to my ears 3‘.

The mediation process

 

 

Music to my ears 1: Address by Wayne Martin AC, Chief Justice Supreme Court of Western Australia, Perth 6 March 2018

Australian Disputes Centre ADR Address 2018 Alternative Dispute Resolution – A Misnomer?

Dispute Resolution in C maj.

The following excerpt from this highly quotable paper, at page 8, is one example among many, of the compelling reading presented by the Chief Justice. It describes the scope and the constraints of the court. For me it raised and started answering questions about the relationship of two approaches to dispute resolution: the courts and mediation.

“It is important to remember that the issues of fact resolved by a court are only those which the parties choose to present, and that they must be resolved on the basis of the evidence presented by the parties. In the adversarial system there is no practical capacity for a court to conduct its own investigations to establish the truth, nor is there any obligation upon the court to arrive at some notion of absolute or independent truth. Australian courts are not commissions of inquiry and can only view the facts through a prism of the evidence presented by the parties, which may or may not give a true view. Similarly, courts are generally constrained to adjudicate only upon the legal issues presented by the parties and have very little capacity to take the law in a direction not proposed by at least one party. The constraints imposed upon a court by the way in which the parties choose to present their case somewhat diminish the normative value of public adjudication. We should remember that the incentive of each party is to win, not to establish the truth or to develop legal principles.”

As I read it, the excerpt pertains to authority; authority of the people involved, that is, of  parties, judicial officers and of the process: substantive and procedural authority.

The excerpt is music to my ears because while it describes aspects of the scope and the constraints of the court; it could, I hypothesise, be transposed to describe parallel aspects of the scope and the constraints of mediation and, for that matter,  other processes in the suite of CDR, ‘Complementary Dispute Resolution’.

My ‘Music to my ears 2‘ post will put my hypothesis to your test. I will aim to transpose the excerpt from court (C maj.) to ADR (A maj.), specifically, mediation.

Court room

Response to Rick Weiler 5 April 2018 on Kluwer Mediation Blog: Whither (Wither) Mediation?

Thank you for your post Rick. It makes provocative reading. Both your analysis of trends of significant concern and your approaches to address the trends resonate with me. Worryingly, (worrying me) the overall effect of the nine + trends is greater than the sum of its parts. There is hope however, because the five approaches to improvement that you identify, taken together, will have an exponential effect on redirecting the trends from withering to thriving.

It is your introduction that captivates me because it contains the key to redirecting the trends from withering to thriving.

“… trends in commercial mediation in Ontario are unsupported by any reliable data – because no one keeps track.

No one records. It’s all anecdotal.”

Why is this?

I suggest that it is because mediators, individually and collectively, have grown dependent upon one aspect of their practice and that this aspect asserts a disproportionate influence on maintaining mediation as a precarious practice. I think of this aspect as a villain, a wolf in sheep’s clothing.

You say ‘No one records. It’s all anecdotal.’ I hear ‘There is no data.’ Without data we condemn ourselves to being seen to belong among the fads on the fringe; to the alternative sector; a sector that could just as accurately be named ‘unsubstantiated’. How many of us are willing to say that we practice UDR, let alone keep a substantiated record our practice of UDR?

Data alone, however, is/are not the answer. It is data that are valid and reliable that are the passport to mediation becoming a practice of substance and a profession of credibility with a promise of sustainability.

Valid mediation data that is reliable are yet to be identified and agreed. And why is that? There are many, many reasons: some structural, some practical and some mythical. The mythical lead me to my conspiracy theory. IMHO the data-denying villain is a double agent. It has a uni-dimensional personality, characterised by a construct that is revered by mediators across the world; heralded as pivotal to mediation. It is a creature that thrives in the warm, dark, damp caves of mediation practice. As a result, the process and the promotion of mediation, and therefore the practitioners of mediation have become dependent upon it.

Who is the villain?

The villain, in my opinion is confidentiality. Together with its siblings, privacy and inadmissibility, they wield their power, thrive and deprive mediation of oxygen. They keep the would-be data hidden at best, and at worst, they cause it to be released in the form of information, which without validity and reliability, is misinformation.

Step 1 in the revival and the thriving of mediation is to develop a much more sophisticated approach to confidentiality which gives it the status of other constructs of mediation including future focus, peer interactions and inclusivity. Perhaps a sophisticated approach could start with a constellation of confidentiality that is dynamic and incomplete, rather than maintaining  linear, binary, static views of confidentiality, privacy and admissibility.

One among many starting points in the shift from withering to thriving, is to consult a professional statistician.