3 Diversity of mediation theory and practice
PROBLEM-DEFINITION CONTINUUM
3.3.2 Mediation practice models
Four broad mediation practice models have been defined by Boulle and others; namely, the facilitative, evaluative, transformative and settlement models.150 Some of the differences between these models are matters of degree, while other differences reflect different underlying values.151 Three of the models involve problem-solving approaches to mediation and share the aim of resolving a particular dispute between the disputants. They are the facilitative, evaluative and settlement models. The transformative model focuses on relational aspects of conflict rather than problem- solving. A more detailed discussion of individual mediation models is conducted below.
149
Riskin (2003), above n147.
150 Boulle (2005), above n6, 43-47; Spencer & Altobelli, above n27, [5.45] – [5.110]. 151 Spencer & Altobelli, above n27, [5.45].
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Despite the fact that these are presented as distinct models, mediation practice models would not normally be expected to be observed in practice in a „purist‟ form.152 Most mediators will employ a combination of techniques associated with more than one model within individual mediations. In practice the limitations of each model in its purist form are overcome by combining approaches. For example, a mediator who has conducted a facilitative style of mediation but who considers that a proposed settlement may be unfair to one disputant (by some external measure of fairness) might introduce some evaluative techniques to test the equality of the proposal. Another example is where facilitative techniques have been employed within a mediation and the disputants have reached a deadlock. A mediator may adopt a settlement style to assist the parties to negotiate a settlement by positional bargaining in respect of the remaining gap between them. This reality makes it inappropriate to confine expectations about mediation practice to a single practice model.
Decisions about the mediation techniques to adopt largely depend on the personal philosophy of the mediator, the preferences of the disputants or other participants and the objectives and guidelines that govern a mediation programme.153 Mediators are influenced by their training, their acceptance of the rules governing mediation practice and their own mediation ideology.154 The mediator‟s past interactions with the disputants and understanding of their objectives will also influence the techniques adopted during mediation.155 Other disputant related factors include their familiarity with joint problem-solving processes, the level of hostility between them, their prior
152 Birke (2000), above n146, 315; Stempel (1997), above n48, 952 & 970.
153 Wall et al categorise the determinants governing the choice of approach to mediation as the
mediator, the disputants and the environment. Wall et al (2001), above n73, 377.
154 Wall et al (2001), above n73, 377-378. 155 Wall et al (2001), above n73, 378.
71 history and the degree of trust between the disputants.156 Further factors include cultural issues, time pressure and performance management pressures on the mediator.157 For example, where a court-connected mediation programme aims to settle a high proportion of matters referred to mediation, the settlement style may be used to maximise the chances of reaching a settlement quickly. The typically mixed practice of mediation demonstrates the balancing of conflicting purposes that occurs in mediation practice.
Alexander has consolidated and refined pre-existing literature that defined categories of mediation practice in her „Mediation Metamodel,‟ which comprises six
contemporary practice models.158 She represents these models diagrammatically as follows:
Each of Alexander‟s practice models are described below. Some recommendations can be made about situations in which each of the models may be appropriate.159
156 Wall et al (2001), above n73, 378. 157
Wall et al (2001), above n73, 377.
158 Nadja Alexander, „The Mediation Metamodel: Understanding Practice‟ (2008) 26(1) Conflict
Resolution Quarterly 97, 107.
159 Adapted from descriptions in: Alexander (2008), above n151; Norm Brand, „Learning to Use the
Mediation Process – A Guide for Lawyers‟ (2000) <www.mediate.com/pfriendly.cfm?id=313> (5th February 2008); Condliffe (2008), above n2; John Settle, The Advocate’s Practical Guide to
Using Mediation (2005) Chapter 3. Process Settlement Mediation Facilitative Mediation Transformative Mediation Positional Bargaining Interest-Based Negotiation Dialogue
Problem Expert Advisory Mediation Wise Counsel Mediation Tradition-Based Mediation Interaction Dimension Int er ve nt ion D im ensi on
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Consideration can be given to the potential application of each model in the court- connected context. First, the models which focus on mediator intervention in the process are described, then the three models where the mediator intervenes in the problem (the evaluative models) are discussed.
3.3.3 Mediator intervention in the process
The settlement, facilitative and transformative models are all process oriented, although they have different aims.
Settlement mediation
In settlement mediation, positional bargaining approaches are encouraged.160 The overriding aim of this kind of mediation is settlement. Parties may seek settlement for settlement‟s sake in order to suppress conflict and therefore avoid the distasteful experience of the dispute.161 Alternatively, parties may seek settlement because they cannot bear further investment in the resolution of the dispute, which may include financial, emotional, social or business costs. In the court-connected context, the aim of settlement contributes to improved access to justice for others by clearing court lists.
Incremental bargaining towards compromise is adopted to pursue the goal of quick settlement. The mediator facilitates the bargaining process, often by conveying offers between the parties, who sit in different rooms.
160 Alexander (2008), above n158, 109.
73 Settlement mediation is commonly practised in court-connected mediation.162 From the point of view of courts, settlement mediation may meet their goal of improving institutional efficiency. Positional bargaining is typically culturally familiar to disputants from western culture, is relatively easy to practice and requires little preparation. It requires no deviation from a traditional adversarial negotiation between lawyers other than the presence of the clients and a mediator.
Pure settlement mediation does not necessarily promote either the satisfaction of a broad range of disputant interests or outcomes that accord with legal principles. An exclusive focus on settlement, without reference to individual preferences or external standards, does not prioritise any of the ideological purposes of mediation that were explored in [3.2] above. An obvious exception is where the only aim of the parties is to finalise the dispute by reaching a settlement. Settlement mediation is little more than a new name for „settlement conference‟ or „assisted negotiation,‟ informal processes that do not focus on any of the theoretical priorities of mediation. Instead, the emphasis is on efficiency alone.
Facilitative mediation
The facilitative mediation process resembles an interest-based principled bargaining negotiation.163 It is closely aligned with the satisfaction ideology, as the overriding aim of the facilitative model is to promote the satisfaction of the parties‟ needs and interests in the resolution of a dispute. Those needs and interests may include legal interests, but also include non-legal interests. Facilitative mediation is interest-based as opposed to rights-based.
162 Boulle (2005), above n6, 43.
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The facilitative model emphasises the disputants‟ abilities to problem-solve creatively and to make decisions based on their own sense of fairness.164 The mediator‟s role is to guide the parties through an interest-based bargaining process while striving not to intervene in the substance of the negotiations.165 A broad or narrow problem definition may be adopted in the facilitative mediation model, depending upon the preferences of the individual disputants involved.
A problem with the facilitative mediation model is that when adversarial approaches are culturally dominant or disputants are unfamiliar with problem-solving
approaches, they are required to develop and use skills that are uncommon and unfamiliar.166 Therefore, there may be some resistance to the process imposed by the mediator. Facilitative mediation is limited by both the capacity and willingness of all disputants to engage with the facilitative mediation process. Where disputants are compelled to participate in mediation, as is the case in some court-connected mediations, it ought not be assumed that they are willing to engage with an interest- based problem-solving process, regardless of their capacity to do so.
The facilitative model also assumes that the disputants have equal bargaining power and abilities, that they can effectively control both the content and outcomes,
creatively problem-solve and make fair decisions. In reality this assumption of disputant competence and equality is often rebuttable. The nature of the relationship between disputants or their relative strengths may produce imbalances that place one
164 John Lande, „Toward More Sophisticated Mediation Theory‟ (2000) Journal of Dispute Resolution
321, 325-326.
165 Boulle (2005), above n6, 44-45.
75 at a disadvantage in negotiations. Furthermore, the disputants‟ emotional reactions to their conflict, their level of emotional or intellectual intelligence and their personality traits may interfere with their ability to participate constructively in interest-based problem-solving dispute resolution.
Litigated disputes have sometimes arisen from commercial or employment relationships, many litigants are seeking opportunities or outcomes that are not necessarily relevant in the formal legal system, disputes are often complex and the aim of court-connected mediation is usually to resolve the dispute and thereby bring an end to the litigation. Facilitative mediation therefore has potential to be applied in the court-connected mediation context.
Transformative mediation
Transformative mediation is one in which the focus is the conflict interaction between the parties to the dispute.167 It is the model of mediation that embraces the relational rather than problem solving focus of dispute resolution. The dispute itself takes a secondary focus to the way that the parties interact with one another in relation to their conflict. The primary goals are: to transform how parties relate to one another, to redefine relationships, and to restore justice.168
Transformative mediation may be appropriate when the parties are willing to invest time and effort in the exploration of their conflict interactions. It may be applied to conflicts about workplace rights and obligations, continuation or dissolution of business relationships, individual or group relationships. Although these
167
Bush and Folger (2005), above n87, 18; Tom Fisher, 'Transformative mediation: differentiating principles from illusions – Part 1' (2006) 9(3) ADR Bulletin 44, 44.
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circumstances may often be overlooked, they may sometimes apply to disputes which are referred to a court-connected mediation process.
The question to be resolved is whether a mediation programme conducted under the supervision of the court chooses to offer a transformative model. Alternatively, parties could be referred to mediation providers outside the court‟s programme to participate in a transformative process if that is their preference. The decision about whether or not to offer a transformative process may be made at a programme level.
3.3.4 Evaluative models – mediator intervention in the problem
In her meta-model, Alexander breaks the evaluative model referred to in previous literature169 into three models where the mediator intervenes in the problem, namely: the expert advisory, wise counsel and tradition-based models.
There has been debate within mediation literature about the legitimacy of evaluation within mediation given its conflict with interest-based approaches to dispute
resolution and the priority of self-determination.170 Other problems with evaluative mediation include that the basis of the mediator‟s opinion may be inadequate either because of the limited information on which the opinion is based or because the
169 See for example: Boulle (2005), above n6; Spencer and Altobelli (2005), above n27; Riskin
(1996), above n143; Riskin (2003), above n147.
170 See for example: ME Lafin „Preserving the Integrity of Mediation through the Adoption of Ethical
Rules for Lawyer-Mediators‟ (2000) 14 Notre Dame Journal of Law, Ethics & Public Policy 479 at 483-493 in Spencer & Altobelli (2005), above n27, [5.70]; Kovach & Love (1998), above n146;
The Practice Standards (2007), above n60, Standard 2 (5) „Mediation is essentially a process that maximises the self determination of the participants. The principle of self determination requires that mediation processes be non-directive as to content‟; Lande (2000), above n164; Love (1997), above n75; Robert B Moberly, 'Mediator gag rules: Is it ethical for mediators to evaluate or advise?' (1997) 38 South Texas Law Review 669; James H Stark, „The ethics of mediation evaluation: Some troublesome questions and tentative proposals from an evaluative lawyer mediator‟ (1997) 38 South Texas Law Review 769.
77 mediator lacks the requisite specialist knowledge.171 Furthermore, mediators who make an inaccurate evaluation may be protected by mediator immunity from being held accountable for their mistake. In court-connected mediation this has
implications for both the accountability and transparency of the civil justice system.
„Evaluative mediation‟ is specifically defined as a blended process rather than falling within the understanding of „mediation‟ adopted by the Australian National
Mediation Practice Standards („the Practice Standards‟).172
This reflects objections to evaluation in mediation. The framework of mediation outlined in the Practice
Standards provides that evaluation is outside the mediator‟s role unless clear consent to a blended process has been obtained from the participants, usually in the form of a written mediation agreement.173 The Practice Standards provide that although
mediators do not otherwise advise on, evaluate or determine disputes, there are circumstances in which they can provide advice to participants who seek expert information without infringing upon participant self-determination.174 The Practice Standards further provide that any information given by a mediator ought to be general rather than in relation to the specific dispute.175
The tensions between the mediation models that emphasise intervention in process and content parallel the tensions between the philosophies of the adversarial legal system and interest-based problem-solving theory. Litigation is about the
171 Boulle (2005), above n6, 221; Mary Anne Noone, 'Lawyers as mediators: More responsibility?'
(2006) 17 Australasian Dispute Resolution Journal 96, 97.
172 The Practice Standards, above n60, Standard 2(7); See also Australian National Mediator
Standards: Approval Standards (National Mediation Conferences Limited and Western Australian Dispute Resolution Association, 2007) („TheApproval Standards‟), Standard 2(4).
173
The Practice Standards, above n60, Standard 10(5).
174 The Practice Standards, above n60, Standard 2 (5) (6) and (7). 175 The Practice Standards, above n60, Standard 10.
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enforcement of rights and entitlements, which inevitably affects mediation practice within the litigation context. It encourages evaluative elements.
The term „conciliation‟ is generally considered to include an evaluative element when used in the Australian context.176 Many courts use the terms „mediation‟ and „conciliation‟ interchangeably.177
Most courts continue to call their court-connected consensual dispute resolution programs „mediation‟ and do not exclude the
evaluative model from the framework of court-connected mediation practice.178 It is essential to consider the evaluative models when describing the diversity of
mediation practice in the court-connected setting. Evaluative mediation should be acknowledged as part of the landscape of diverse mediation models.
Expert advisory mediation
The objective of expert advisory mediation is to „reach a settlement according to the legal ... rights and entitlements of the disputants and within the anticipated range of court, tribunal or industry outcomes.‟179
In order to meet this objective, an evaluation of the dispute on its legal merits is conducted within the mediation. The focus tends to be on positions and rights, so the problem is defined in a narrow and legalistic manner.180 Expert advisory mediation is the facilitation of a rights-based bargaining process. The content of expert advisory mediation is defined according to objective criteria and not by the disputants‟ individual interests.
176 NADRAC (2003), above n76; Astor and Chinkin (2005), above n17, Chapter 3 [3.3]. 177 See for example Alternative Dispute Resolution Act 2001 (Tas) s3(2).
178
Kovach & Love (1998), above n146, 77.
179 Boulle (2005), above n6, 44. 180 Alexander (2008), above n158, 108.
79 In order to provide appropriate advice, an expert advisory mediator should have substantial expertise in the subject matter of the dispute, knowledge of legal
processes and outcomes and appropriate qualifications and experience.181 Mediators who have a background practising law are particularly suited to the role of expert advisory mediator, where the evaluation is sought in relation to the law.
Expert advisory mediation may be appropriate when the parties want to negotiate in terms of rights, entitlements, credibility, merits or position. It may also be applied when it is clear that the parties only need an expeditious answer to a technically complex issue, and there are no issues of continuing relationships or psychological needs. All of these circumstances may be present in the court-connected context, where the dispute has been brought into an institution that applies legal principles, the disputants often place a high priority on their legal rights and entitlements, litigants may have no pre-existing relationship and want an efficient resolution of their dispute according to legal or commercial standards. However, existing research has demonstrated that litigants often seek the satisfaction of non-legal interests through court-connected processes (see 3.2.4 above). Therefore, the context of litigation is an insufficient indicator of disputants‟ preferences for the narrow scope of expert advisory mediation.
Wise counsel mediation
In wise counsel mediation, the problem is defined more broadly than in expert advisory mediation. The focus is on a broader range of interests, and the mediator evaluates the case on the basis of those broadly defined legal and non-legal interests.
181 Boulle (2005), above n6, 44-45; The Practice Standards, above n60, Standard 2(7); The Approval
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The primary aim of this kind of mediation is access to justice in the sense of a fair forum, efficient management of conflict and the pursuit of long-term, interest-based solutions.182 The mediator assumes some kind of responsibility for the options generated and the final agreement.
Wise counsel mediation may be appropriate when the disputants want to explore a broader range of concerns than the narrow legal interests and want the mediator to provide some guidance about the resolution of the dispute. Court-connected mediators may practice this model of mediation.
Tradition-based mediation
This ancient kind of mediation is used in many traditional groups, including
indigenous communities and religious groups.183 The primary aim of tradition-based mediation is to restore stability and harmony to the community, industry or group. These mediators are usually leaders, chiefs or elders who are trusted to guide the parties to a solution that is in accordance with community norms.184
Tradition-based mediation may be appropriate when parties are part of a
professional, business of cultural community where group norms are more influential than legal norms.
The tradition-based model is clearly an alternative to mainstream dispute resolution options. Its applicability to the court-connected setting is therefore questionable. In mediation connected with specialist bodies, such as the Native Title Tribunal, it may
182
Alexander (2008), above n158, 112.
183 Alexander (2008), above n158, 114. 184 Alexander (2008), above n158, 114.
81 be appropriate to conduct a tradition-based mediation. In this thesis it is assumed that tradition-based mediation would not be conducted in connection with a court. The standards that apply are, by definition, distinct from the legal standards that form at least a frame of reference in mediation connected with the formal civil justice system.