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.