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.

In the labelled versions below, I put my ponderings to the test, changing only 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. That will be the topic of ‘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 answered 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 the authority of the people involved, that is, to the authority of parties, judicial officers and the process: substantive and procedural authority.

It is music to my ears: while it describes the scope and the constraints of the court; it could, I believe, be transposed to describe the scope and the constraints of mediation and other processes in the suite of CDR, ‘Complementary Dispute Resolution’.

My ‘Music to my ears 2’ post will put my belief 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.

Constructive Confidentiality in Mediation I

It is generally accepted that confidentiality is integral to the theory and to the practice of mediation. Why? Because…

When discussions are confidential the effect can be emancipating. Free of the risk of judgement by people peripheral to the mediation, confidentiality provisions can contribute to participants’ self-assurance which can be a catalyst for broad, thorough and frank exploration of issues ‘without fear or favour’. Confidentiality can provide a ‘cocoon of safety’.

At the same time, when discussions are confidential the effect can be constraining. Isolated from people who are affected by the issues being mediated and who can affect the durability of the outcome of mediation, confidentiality can contribute to participants’ uncertainty which can delay the progress of mediation and reduce the efficacy of outcomes. Confidentiality can produce a ‘desert island’ effect.

What is confidentiality? Confidentiality is the behaviour associated with maintaining a ‘cone of silence’ regarding ‘something/s’, which in practicality means to repeat the ‘something/s’ only to oneself. Perhaps to keep a confidence involves rumination? Certainly to not keep a confidence could involve ruination…

What is mediation? Mediation is the even-handed facilitation of a structured process during which the mediator is responsible for the process and the participants are responsible for the content of discussions and outcomes. Perhaps to mediate a mediator practices cordiality? It is not mediation if it involves loss of partiality.

Who are mediation participants? Mediation participants are the people who have decided that to get together privately to resolve persistent issues meets more of their interests than to remain apart and maintain issues or to get together publicly to resolve them. Perhaps participation in mediation is to have the foresight of cooperation. It is not participation if it involves advocates and litigation.

Conceptually, all aspects of mediation are swaddled in confidentiality. That is perhaps a reasonable expectation of mediators. To expect of participants what is expected of a mediator is to imply that the experience and consequences of a mediation are similar for each. They are not.

From beginning to end of one mediation to the next, mediators’ experience of a mediation is of mediation and their consequences of mediating are (all being well) more mediations.  Each mediation belongs to the participants. it is fleetingly a joint venture.

From the beginning of their one mediation to its end, participants’ experiences of mediation are likely to range from stressful upheaval to relieved satisfaction, inclusive. Participants’ consequences of mediating involve change and the changes range from outcomes they can ‘live with’ (that then ripple further afield) to no change (that ripples further afield) inclusive. Each mediation ‘belongs’ to the participants: their past, their present, their future… and usually ripple into others’ pasts, others’ present, others’ futures.

Conceptually, confidentiality is absolute. In practice, it isn’t. ‘Exceptions’, as they say, ‘make the rule’. Like the concept of confidentiality, the exceptions, for a mediator, are typically clear and uniform. They are the statutory and/or ethical obligations to report concern regarding harm and impending harm. Exceptions for participants are probably clear and unique. They probably include personal and social responsibilities and ethical obligations to keep those in the ripple zone informed.

In my experience, the confidentiality spuriously required of mediation participants is only occasionally maintained during, and rarely beyond, mediation. (Admissibility, on the other hand, is, in my experience, generally adhered to.) Most of what I have learnt about mediation I’ve learnt from listening to participants. What I have learnt about confidentiality vis a vis participants, is that it is impractical, unreasonable and can be an unnecessary contributor to the tension of mediation.

The discrepancies, and the potential dissonance caused by the discrepancies, between the spurious ‘cone-of-silence’ confidentiality compliance by participants and the actual, open non-compliant behaviour of participants intrigue me.

The tacit acceptance of the discrepancies and the potential creation of procedural dissonance for participants by mediators’ conceptualising confidentiality as absolute concerns me. Participants choose to mediate in order to remove dissonance from their lives. Mediation is a structured process of facilitating consonance that is practical for each and for all.

I practice an approach to confidentiality that overtly integrates the various components of confidentiality with fundamental mediation principles.  This ‘constructive confidentiality’ is confidentiality that is compatible with the mediation principles of participant self-determination ie instrumentality; participant-focused practice ie reality; and participant-constituent inclusivity ie practicality.

For the avoidance of duality and in the interests of finality, ‘constructive confidentiality’ includes (and is not limited to) participants’ reality, which translates (for them) to practicality and (above all) maintains their instrumentality.

My next post on constructive confidentiality will expand on how the construct acknowledges participants’ individuality; affirms participants’ instrumentality and accommodates participant-constituent plurality. In summary, my next post is concerned with how constructive confidentiality is grounded in participants’ reality and how it acknowledges participants’ need for practicality of confidentiality.


[i] http://en.wikipedia.org/wiki/Communitarianism [ii] http://debate.uvm.edu/handbookfile/pubpriv/046.html [iii] My brackets: ‘only’ is too strong for my understanding of communitarianism

Moving rooms: back stage

Blog_mediatingn online_2

The chrysanthemums are the harbinger of change: watch this space. The other items are whatever you make of them.

Individually and collectively maybe they will facilitate tranquility and convey to participants whatever it might be that will assist each to listen, to think , to speak, to decide and to conclude.

mediation roles participants cascade 140123

This post is part 2 of my move to online and mixed mode mediation. Part 1 involved kittens.

Moving rooms: kittens to a good home

Today I sold the furniture.

This evening I wandered through yesterday’s rooms… Yesterday’s rooms: empty of the mementos of mediation; redolent with recollections; full of the detritus of diligence; absent of anticipation.

Blog_mediating online_1

Today I arranged tomorrow’s rooms.

Tomorrow’s rooms: a mediation milieu contained in a backdrop. I’m online.  I started with an illustration by Felicia Sala that is my signature illustration; then a spathyphilum, yes, it’s colloquially known as the peace lily, in a blue pot; next a bird that is of the same hue and linking the arrangement, a white bowl that is generous, together on a filing cabinet that is jarrah. I’m told by participants that my rooms were calming; most recently, it was only yesterday, the real estate agent commented on the quietude. That was before I’d sold the furniture. Halsmith-blue, as it has come to be known by the family, was the connector; subtle, I hope.

I’m aiming for tomorrow’s rooms to be tranquil.

Blog_mediatingn online_2

This evening, to accommodate online mode,  as well as setting up tomorrow’s rooms, I’ve reviewed my Letter of Engagement and my introductory email; I’ve developed a participant help sheet for Zoom; I’ve commenced an inventory of essential amendments to be made somewhat urgently to my website; I’ve refined my  initial separate session checklist to include showing participants around tomorrow’s rooms. And, in what felt a significant step, I removed ‘HDR Rooms’ from my signature block.

The evolution from today’s to tomorrow’s rooms seems somewhat like a time lapse of amoeba to homo erectus.

Years ago I started attending International Mediation Institute meetings through GoToMeeting: incredulous at first then swapping control of the whiteboard as if it were a hot potato.

Next, I taught university mediation units using Adobe Connect, a sophisticated version of Zoom.

Months ago I subscribed to Zoom video conferencing and experimented by Zooming family in the next room and as far away as upstairs! Board meetings of Resolution Institute followed.

Weeks ago I started delivering Professional Development online. Participants tell me it’s working well: ‘lively learning from the warmth of your own home’.

Zoom, like each product, has its idiosyncracies. Intuition has been a reliable guide.

Today I sold the furniture: I’m comforted that it went to a good home.

 

Excellence and the importance of excellence in mediation

Romanian Mediation Excellence Gala 2016

Blog_excellence_5

Dear Adi, Anca and all attendees of the Romanian Mediation Excellence Gala 2016

Thank you for including me in your request for messages regarding the importance of excellence in mediation. I endorse both the concept of aspiring to excellence and the holding of a Gala to give voice to it. Excellence is a notion that energises my passion for mediation. I am honoured to have been asked to contribute some thoughts. I look forward to reading/hearing others’ contributions.

Kind regards

Margaret Halsmith

Blog_excellence_3

Introduction in which I distinguish ‘excellence’ from ‘exemplary’ and from ‘excellent’.

Excellence in mediation has many dimensions. I have chosen to focus on excellence in the practice of mediation, as distinct from excellence in the theory of mediation or excellence in the study of mediation or excellence in the evaluation of mediation among many examples.

I will take a moment to consider the noun ‘excellence’ and the adjective ‘exemplary’. ‘Excellence’ is a term that, to me, when applied to mediation practice, describes the perceived experiences of participants rather than the performance of mediators. In my opinion, while the observed and assessed performance of mediators can be exemplary in behavioural terms, it is for a participant to decide on excellence because it comes from the voices of the participants and exemplariness comes from the voice of the observer. It is when the principles, protocols, process and practices of mediation integrate in such a way as to maximize the benefits of the experience of mediation for each and for all participants, that I regard excellence as likely to be experienced.

I will take another moment to consider the noun ‘excellence’ and the adjective ‘excellent’. ‘Excellent’ can describe a moment of a participant’s mediation experience. The moment is likely to occur when a suite of mediator interventions functions to balance affiliation and acknowledgement and to balance acceptance and adaptation in a way that delivers a fleeting, cautiously optimistic harmony of purpose for participants. An excellent moment may open the possibility of excellence… it may, however, float into the ether.

‘Excellence’, on the other hand, describes sustained episodes of participants’ mediation experiences meeting their individual and collective procedural and personal interests. Sustained episodes include many simultaneous and consecutive excellent periods which together motivate participants’ coordinated, continuous striving and re-striving for the accomplishment of the goals of the mediation.

Consideration of distinct concepts in which I refer to ‘excellence’ separately from ‘the importance of excellence’

I have been asked to comment upon the importance of excellence in mediation. I shall first identify ten criteria of excellence in participants’ experiences of the practice of mediation then move on to the importance of excellence in mediation. Each is an interdependent part of the whole of excellence, which itself is both contemporaneous and retrospective.

Identification of excellence in practice in which I list criteria for intended to maximise the likelihood of each participant individually, and possibly collectively, being able to assess the extent to which a mediation is excellent.

Participants are likely to report excellence in mediation practice when each participant consistently individually and collectively experiences the mediation as

  • being conducted professionally
  • being overtly evenhanded
  • positively motivating
  • demonstrably epitomising the principles of mediation
  • transparently contributing procedural safety, facilitating substantive information gathering and clarification and conveying personal compassion
  • tentatively providing the opportunity for respectful restoring, possible maintaining, possible development of relationships among all or providing the opportunity for respectful concluding of relationships
  • clearly providing clarity regarding the purposes of each stage of mediation and, as requested, each intervention within the mediation
  • progressively accomplishing the distinct purposes of each stage of the mediation
  • overtly describing and displaying the criteria of excellence
  • welcoming formative and evaluative feedback and, when appropriate, refining practice accordingly
  • having an 11th criterion: the X factor

Exposition on the importance of excellence in which the  interconnectedness of acknowledgement and recognition of uniqueness is summarized

The importance of excellence in mediation practice is the contribution that the experience of excellence can make toward participants’ conceptualization of peaceful coexistence

The importance of peaceful coexistence on a local scale is the contribution can make toward the principled practice of peaceful coexistence on a global scale.

The importance of the principled[1] practice of peaceful coexistence on a global scale is the contribution it can make toward the valuing of the uniqueness of individuals, groups and cultures.

The importance of valuing the uniqueness of individuals, groups and cultures is the contribution it can make toward the experience of excellence in conflict resolution.

Application of excellence and its importance in mediation practice in which suggestions are offered

Mediation participants are more likely to experience excellence if they can recognise it. Essential components of the role of the mediator are

  • to provide information and to educate potential participants regarding exemplary practice and possible indicators of excellence in experience prior to mediation
  • to prime participants throughout the mediation to enhance their awareness and expectations of excellence

[1] There are various taxonomies of principles of dispute resolution. Rather than identify a particular taxonomy, I leave it to the reader to choose.