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

 

 

Choosing mediation

Each person is unique; each mediation is different from each other mediation.  Even so, I start every mediation by meeting with each person separately and at that meeting I explain the essence of mediation.

This is one of the diagrams that I use.

mediationis 140123 logo title background copyright

The first line explains what mediation is and the second line explains what mediation is not.  What I raise is that + differs on every dimension from v and that resolving agreed issues is an experience incomparable with the experience of accepting a pronouncement on a set of issues described by the law.

Rights, responsibilities & justice … at night

I spend a fair bit of time pondering the relationship of rights to interests and interests to rights.  At present I’m thinking about how the cooperative process of mediation accommodates the often competitive claiming of individual rights.  So I tweeted, then thought some more.

I think of rights as positional, as prescribed; as often demanded and as often enforced.  In my experience when rights clash they compete then sometimes capitulate into compromise.  To me, rights belong in settlement conferences and courts.  Settlement conferences compromise; courts pronounce winners and losers.

In Australia we are fortunate that each of our individual rights is an entitlement.  I hear rights as being self-focussed  and immutable: “I have a right to …”  to me, are right without the responsibility to uphold others’ rights, often sounds aggressive.  Responsibilities, sometimes in the form of obligations, sometimes at our discretion bring perspective to the idea of rights.  Responsibilities are other-focussed and situational.  “I have a responsibility toward … ”  Whether or not I carry out my responsibilities, your rights remain your rights, a responsibility of the State if it comes to enforcement.

For example, I, like others, have the right to cultural expression.  When there are sufficient resources for all of our expressions of culture to take place, life is calm.  When people’s expressions of culture require scarce resources, as they realistically do, rights may clash. Then there becomes a need for a resolution.  If the resolution is that I accommodate the rights of someone else in a compromise, I experience a brittle relationship.

If, on the other hand, I explore what’s important to me about my rights and what’s important to them about their rights, instead of just accommodating someone else, I generally find there are some possibilities for each of us.

Here’s a more specific example.  It concerns the buying of a bed with a partner.  It’s my right to a good night’s sleep; it’s their right to a good nights sleep.  I like a soft mattress; they like a hard mattress.  We compromise and get a medium mattress.  Neither of us gets a good night’s sleep.  Tensions rise.  So then we get on to figuring out what is important to each of us (comfort, compatibility, knowing the other is comfortable etc etc) then exploring possibilities: separate beds, overlays, underlays, separate mattresses zipped together; separate mattresses with overlays … and so it goes on until we reach satisfactory arrangement.

Conflict, harmony & mediator evenhandedness

On a daily basis, coming up to 20 years’ practicing as a mediator, I continue to reflect on the essence of mediation.  I have a notion that  in each encapsulation of mediation there is a paradox or p’raps a conundrum.  Now that I write that it makes sense really.  In each person there are numerous paradoxes and each relationship has elements of conundrums/conundra?.  Over the last year, having become an amateur member of the twitterati, I’ve continued to explore the paradox notion, now in 140 characters or less.  I’ve found this shortened form to be challenging and valuable. It distills and records my thoughts and ideas – often occurring to me as I leave a session or prepare for one.

I tweet #mediation is and by implication, though rarely directly, #mediation is not.

From time to time I’ll muse on my tweets … tweet on my blog… blog on my tweets … tweet on my musings then later start all over again.

When I tweeted “a harmonious life is one in which conflict knows its place” I was reflecting on  the relationships between harmony and conflict.  Each can be described in terms of two factors: degree of alignment of perceptions and extent to which change is manageable.  I think of harmony as interludes when people have mostly common perceptions of what is important to them and when they regard change as occurring at a mostly manageable pace in a mostly predictable way.  I think of conflict as interludes when people have mostly differing perceptions of what is important to them and when they regard change as occurring at a mostly unmanageable pace and in a mostly unpredictable way.

I tried to imagine almost constant harmony: most people having such similar thoughts and correspondingly similar feelings that most people most of the time prefer to do what others are doing and prefer others to be doing what they are doing. Where would be my individuality? creativity? motivation? It occurs to me that it could be easy to become overwhelmed by uniform similarity.

Then I tried to imagine almost constant conflict: most people having such distinct thoughts and correspondingly distinct feelings that most people most of the time prefer to do things distinct from what others are doing and prefer others to be doing things distinct from what they are doing. Where is individuality? creativity? motivation?  It could be easy to become overwhelmed by ubiquitous distinctiveness for the sake of being distinctive.

So then I imagined the effects of harmony interwoven with conflict; conflict interwoven with harmony: most people most of the time listening to each other to know each other as individuals because they don’t know what to expect though they do know it will probably be interesting, considering what they have heard, explaining and clarifying perceptions. This is the sort of relationship building that I see all around; unique individuals connecting with other unique individuals.

I find conflict intriguing when I think of it as a manifestation of uniqueness. Expressions of uniqueness distinguish humanity from other species: each person is equally unique. I think of it as uniqueness both creating and explaining conflict. A harmonious life is one which conflict knows its place.  To me the role of conflict is as a lens through which uniqueness can be viewed and valued.  Through this lens, I can accept it and assist others to accept it and if appropriate resolved. The role of harmony is as another lens through which uniqueness can be viewed and valued and accepted and if appropriate maintained.

So in summary, to me harmony and conflict are each inevitable, interactive and often though definitely not always, complementary.

In my mediation practice I keep these perspectives of harmony and conflict uppermost in my mind. They are part of my even handedness mosaic.

Experiences of mediation and court

mediation and court

I created this diagram to show some of the differences between the experiences of mediation and court.

Mediation is an opportunity for all involved to think creatively outside the box on legal, social and interpersonal issues. Then, participants can decide personally and pragmatically inside the box on agreed issues.

Court is an opportunity for a judicial officer to think logically inside the box on legal issues and to decide inside the box, on behalf of parties, who will win and who will lose on the legal issues.

So the questions is, who will be making the decisions about what?

Mediation is not a settlement conference

Image

Mediation is often confused with settlement conferences.  There are some fundamental differences.  Settlement conferences involves competition resulting in compromise.  Mediation involves co-operation resulting in an agreement.  I developed the set of diagrams below to demonstrate these processes.

The parties’ positions on the diagram below represent the outcome they are aiming for.  The primary questions in a settlement conference are “What is your position?” and then “What is the least you are prepared to settle for?”.  Neither party can have all that they want.  They will each need to compromise to reach a settlement.

Referring to the diagram, the most efficient settlement will be a compromise found somewhere along the red line.  In a best case scenario, if there are ten units available, all ten will be shared.  However, in any case other than the most efficient negotiations some units will be lost in legal fees, other advisors’ fees, time, and emotions.  This loss may be considerable because the process is competitive.  In these cases, the settlement will be in the grey area and will involve less or much less than ten units.  A unit could represent anything tangible which each participant wants and is important to them.

logo explained_determination

The diagram below represents the fundamental difference that mediation offers.

The participants’ placement on the graph represents all that is important to each.  The primary question in a mediation is “What is important to you?”.  Each participant can have all that is important to them.  They will each need to be creative to reach a mediated agreement.

Referring to the diagram below, the most satisfactory outcome will be an agreement found in the dark blue square.  In a best case scenario, if there are ten units available, all ten could be available to each participant.  Realistically, it is likely that some units will be lost in legal fees, other advisors’ fees, time, and emotions.  However, because the mediation process is co-operative this loss will be minimal.

logo explained_important

Referring to the diagram below, in a mediation it is likely that the agreement will be in the lighter blue areas.  Each participant has the potential to gain up to ten units of what is important to them.

logo explained_mediation

Margaret’s Mediation Maxim

mediation diagram halsmith dispute resolution

I developed this diagram after reflecting on the essence of what works in mediation.  I’ve found that in this case, what works for one works for all.  When participants, support people, lawyers and the mediator all listen generously they are all inclined to think creatively, speak moderately and decide wisely, leading to satisfactory conclusions.