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Address to Lions Leaders Conflict Resolution Workshop at the Lions National Convention in Townsville on 1 May 2018

Address to Lions Leaders Conflict Resolution Workshop at the Lions National Convention in Townsville on 1 May 2018

This address is not intended to create any legal relationship between me and the reader or listener today.

The material contained herein is general in nature and is designed to provide you with some important but general information and should be read in association with legal advice given to you.

The reader should not rely or act on this information without seeking legal advice specific to their circumstances.

Good morning delegates,

I am pleased to be able to address you today on a subject which is very dear to me, in the hope that it will develop for you, a greater understanding of what mediation is all about.

I am also pleased to be able to address you today because I have had in my lifetime a long involvement with chairmanship of various community organisations, school committees, government appointed committees and in local government between 1973 and 2004, including being the Lord Mayor of Darwin between 1980 and 1984 and a member of the National executive of Australian Local Government Association for about 6 years and its National President in 1985/86. I was also a member of Jaycees (a leadership and community service club similar to Lions) for about 8 years. I only resigned from that club when I was elected an alderman of the Darwin City Council, and only then because I could not manage both them as well as my work and family responsibilities.

Since obtaining accreditation as a mediator, I have assisted hundreds of people to be able to better communicate with each other and I have strived to assist people to reach agreement. However not all of those mediations have been successful, because there are times when the participating parties cannot resolve their issues and somebody else has to resolve the outcome for them.

Recently I have been watching a television series called “Reign” which betrays the life of Mary Queen of Scots which is set in the late 16th century. Wikipedia identifies the series as being highly fictionalised, but be that as it may, it serves to identify how important it is to create and maintain relationships and alliances and to the lengths that people will go to do that.

In that series, those relationships and alliances are based upon marriages of convenience, bribery, murder, espionage and so the list goes on.

Wikipedia defines alliance as “A relationship between people, groups, or states that have joined together for mutual benefit in order to achieve some common purpose, whether or not explicit agreement has been worked out between them”.

Google states “Relationship is the way in which 2 or more people or things are connected or the state of being connected”.

It is a fact of life that the nature of a relationship or alliance will ebb and flow, depending upon many issues.

I was recently reading about the Hatfield and McCoy dispute that commenced in the United States of America in 1863 over happenings in the American Civil War and was followed by land disputes and revenge killings. It is written in Wikipedia that there was a declaration of an official truce between the families on 14 June 2003. This dispute had lasted for approximately 130 years before a truce was agreed.

Google defines truce as “an agreement between enemies or opponents to stop fighting or arguing for a certain time”.

The war between North Korea and South Korea commenced on 25 June 1950 when it is alleged that North Korea invaded South Korea and a truce was entered into on 27 July 1953. There is some argument that the war between those 2 countries still exists, although recent events show a promise of the end of that war.

History is pitted with wars for various reasons despite the fact that for thousands of years alternative dispute resolution rather than war has been propounded by various people.

It is likely that some form alternative to war and aggression has prevailed since ancient times.

There has often been evidence that families, tribes and groups have had a well organised system for managing conflict but not all of those has been in alternative dispute resolution as we know it today. Time doesn’t permit me today to provide you with an extensive list, but any study of alternative dispute resolution will no doubt satisfy your desire to be further educated in that area, however here are a couple of relevant references.

  • Aboriginal process has been based upon kinship system, and a broadly recognised network of rights and obligations.
  • Chinese people dissolved their issues having regard to the teaching of Confucius.
  • In Christianity, there are biblical references to Christ as the mediator between God and man.
  • Hindu and Buddhist both have their beliefs around the emphasis on the need for maintaining social harmony in communities.

Despite the best wills in the world, disputes have continued and the protagonists have pursued various courses to resolve those disputes. The purpose of today’s workshop is to consider contemporary avenues of dispute resolution which will bring about a result that accepted by the protagonists as an appropriate outcome.

This alternative dispute resolution has many names the most common of which is mediation.

Whilst most people believe in this process, there is considerable difficulty in defining what people think it should mean. I am going to pause for a short time to enable each of you to think about your understanding of what mediation is. Don’t be alarmed that I will then pick on a few of you to tell group what you think mediation is, because I won’t. Don’t be surprised if your understanding of mediation is different to what I am about to say.

There is no doubt that most people accept that the ultimate process of the resolution of a dispute rests in the hands of judges and other people whose decisions control our lives like the members of our respective parliaments.

I think that most people prefer an alternative source of dispute resolution, but there is some confusion in people’s minds as to what that alternative source really is.

One form of alternative dispute resolution is known as arbitration. This is a process whereby the participants to the process place the future in the hands of a person who is appropriately trained to determine an outcome, based in some cases upon the receipt of oral evidence and upon submissions made by the individuals concerned, or their representatives, and in other cases based solely on the written material provided. It is a process that is different from a court of law for determining the outcome and in the main it is a quick process and less expensive both in terms of emotion and financial resources.

It is not my intention to focus much further on arbitration but to say that it is it has its place in alternative dispute resolution and may be more appropriate for the resolution of highly technical disputes which can be better decided by experts in the area.

You may ask about the benefits of mediation. Research clearly identifies that those involved in the mediation process appreciate the benefits and effectiveness of mediation.

In the area of family dispute resolution, the need for which will touch many people in our community and I suspect statistically will or has touched quite a number of people listening to this address.

This process empowers parents and other persons who are special in the lives of children, to reach an agreement pertaining to those very special children and avoid the uncertainties of a court adjudicated outcome which is also challenging and demanding and often leaves incredibly deep scars not only on the lives of the participants but also on the lives of the children who usually just want to have a meaningful relationship with each parent and don’t want their parents to be embroiled in bitter dispute in a court of law over them.

The same deep scars are often left in financial matters following court adjudication, if that process is adopted. In my considerable work as a family lawyer, I have never heard a person say after a court adjudication “well that was a great experience” unless it is tongue in cheek.

Research in the Family Court of Western Australia suggests that mediation reduces damage to parenting relationships and that it reduces formality in court proceedings and it has the strong support of the parents involved.

 Mediation is preferred to litigation by many people because it is more likely to preserve relationships. It can provide people with a sense of belonging, recognition or acceptance.

The dominant form of mediation is in problem-solving and contains a negotiated approach. This is the approach which is in the best interests of all the parties concerned and not just in a strictly entitlement approach.

The Australian Mediation Association describes the advantages of mediation as follows:

  • It is affordable in that mediation costs considerably less than having a judge make orders that none of those affected really want;
  • It is efficient in that the mediation process can usually settle the dispute within a few sessions. Most mediations conclude or settle within 30 days from commencing the process;
  • It is effective in that statistics show that mediation settles over 85% of initiated disputes;
  • It is informal in that the process of mediation is flexible and it is not necessary to engage a lawyer for the process;
  • It is empowering in that the parties are directly engaged in the negotiation of the settlement. This is likely to enhance the continuation of the relationship; and
  • It is confidential in that if mediation does not bring about a settlement, information disclosed during the mediation may not be used in the subsequent court process, unless the parties wish it.

But you might well ask for a definition of this process. According to a celebrated Australian author on the subject (Laurence Boulle) who is an academic with legal qualifications, in his publication “Mediation Principles Process Practice”:

Mediation is a decision-making process in which the parties are assisted by an outside intervenor, the mediator who attempts to assist the parties in the process of decision-making and reach an outcome to which each of them can assent without the mediator having a binding decision-making capability”.

In my practice as a mediator, I can offer my services to assist in the resolution of an issue which has been created or to enable parties to reach agreement as to certain behaviour to avoid the issue of a dispute that will create a fractured relationship/alliance.

I want to pause here to spend a little of your time to discuss the resolution of an issue which is not yet become a dispute, and this is an area in which mediators can assist clients.

Throughout life there are many challenges in decision-making because the decisions that are made today can impact for many years to come. In our society of complex relationships, the need to make good decisions for the future is really important.

I want to touch on just a couple of these so that you may better understand what I mean.

  • Mediation is important in determining the future of financial relationships between impending spouses prior to them entering into a binding financial agreement commonly called “pre-nups” or “post-nups”.
  • Mediation is also important in determining how the relationship of the donor and the attorney will continue where a power of attorney is to be given from a parent to a child, or to another person.
  • Mediation is also important to reach agreement between a parent and a child or other person in terms of an advanced health directive.
  • Mediation is also important to determine the future direction of an organisation or a business where the participants are unable to agree on that future direction.

Not every mediation will bring about a complete resolution to an issue that has arisen or could arise. In other words, sometimes, it takes a long time and a great number of sessions resolve an issue and sometimes it has to be acknowledged that there will not be a total resolution of the issue and sometimes there are a number of different agreements made along the resolution pathway separated sometimes by considerable time.

Boulle has chosen words “decision-making” instead of words “decision resolution”. I think that distinction is most important because it maintains the principle of the process, about which I will address in further detail later in this presentation.

Often in areas of assisting families, final agreement cannot be reached for various reasons because there needs to be a rebuilding of trust and therefore what we call interim agreements that is pending further agreements are reached and these interim agreements are then subject to further formal or informal review during which time the parties are given the opportunity work through the further issues that might prevent a final agreement being reached.

The major issue in my experience of preventing agreement is that the participants don’t have the capacity to adequately communicate or that their capacity is marred by the issues between them during the course of their relationship. This is not intended to be a criticism of those persons taking part in the mediation process. Until these people can, in the main, put behind them the issues which has created the dispute, those issues will retard decision-making.

You may find it surprising, that in the main lack of communication is on both sides and until such time as the participants can accept this and strive to change their own behaviour there are going to be many challenges in trying to repair the relationship. Fortunately, there are many organisations and other trained personnel in the community including psychologists and counsellors who can assist in this way. People can also obtain the assistance of the many publications in developing communication skills that are now widely available.

It is not unusual for one or both of the participants to reject at least initially, the concept of the need for communication training and saying that it’s the other party who needs the training.

Many people also have the view that they can resolve an issue unassisted, but it is with respect to those people, my long-held view that many of them who profess this view “cannot see the wood for the trees”. This is in no way intended to be a critical statement about the behaviour of those persons, but in areas where there is a fractured relationship, often this is the position.

There are also some very important secondary features of mediation which also need consideration and which have been described by Lawrence Boulle to include:

  • Bringing clarity to the dispute situation by identifying and defining which matters do or do not require decisions to be made;
  • Reducing communication barriers between the parties so that they can more clearly convey and understand what each says, means and feels;
  • Identifying and mutually acknowledging the parties’ needs and interests;
  • Promoting constructive and productive negotiations which focus predominantly on needs and interests and broaden the search for options and settlement alternatives;
  • Reducing anxiety and other negative features of the dispute situation and empowering the parties to take informed and rational decisions;
  • Encouraging the parties to take responsibility for making their own decisions in dispute situations;
  • Reducing tension and distrust and improving personal and business relationships between the parties;
  • Bringing an outsider’s views to the situation, and a vision of appropriate objective and community norms; and
  • Providing the parties with the model, and some skills and techniques for future decision-making without third-party assistance.

A very significant aspect of mediation is the retention of control over one’s own destiny in that a solution is not forced upon them as is the situation in a court of law.

The participants retain the decision-making process and are free to propose and counter propose solutions to obtain their best outcome which is not necessarily the best outcome that would be imposed upon the participants in that court of law. This is a central feature of mediation.

Also, true mediation is a voluntary process, and there is a feeling amongst the participants that they own the process therefore they can have some significant say in the outcome, where decision-making is a core feature.

My role (if possible), is to promote an agreement between the parties. That role is designed to promote understanding between them and to assist the parties to identify their needs and interests and in doing so, I try to use creative problem-solving techniques to enable the parties to reach their own agreement.

Through negotiation, I try to move the participants to an agreement which suits their needs as opposed to their positions, but it is the parties who make the decision and not me.

I take responsibility for managing the process of mediation and the parties have the responsibility to take charge of the end product, that is the outcome.

This role is to be contrasted with that of a judge of a court or tribunal whose role is to determine an outcome, and not the role of the parties. That process will often leave the parties disappointed and not satisfied.

My role is to remain impartial and even handed and usually I will not give legal advice but from time to time I may give an opinion of what a court or tribunal outcome might be.

A judge will often be critical of the behaviour of one of the parties if they end up in court on a defended hearing and will usually make findings that one person is more likely to be believed then the other. That is not my role. Those findings of credibility can often be very damaging to the recipient.

Whilst maintaining an unbiased position, I try to ensure that the mediation is conducted on an even playing field and thus avoid an imbalance of power between the participants.

You may very well ask the question “This is good general knowledge but what does this have to do with me?”. You are the leaders in your organisation.

Lions Clubs of which you are all members, has as part of its International Purposes, the requirement amongst other things:

  • To create and foster a spirit of understanding among the people of the world;
  • To promote the principles of good government and good citizenship;
  • To take an active interest in the civic, cultural, social and moral welfare of the community;
  • To promote a forum for the open discussion on all matters of public interest; provided, however, that partisan politics and sectarian religion shall not be debated by club members; and
  • To encourage service-minded people to serve the community without personal financial reward, and to encourage efficiency and promote high ethical standards in commerce, industry, professions, public works and private endeavours.

It is most likely, that in subscribing to those purposes from time to time, you will be drawn into a relationship dispute, or assisting parties to determine a future action. You might be approached directly for some advice or assistance and thus render mediation, or you might be asked to direct a person to a person skilled in the area of mediation.

I have often been involved in mediations when there has been significant domestic violence within the relationship. Proper consideration of the rights and responsibilities of those persons involved in that sort of behaviour and proper management of the issues may not deter a successful outcome. One way of managing that behaviour is to proceed by what is known as “shuttle mediation” that is where the participants are in different rooms or on the telephone, and I negotiate on behalf of the participants.

The critical aspect which is at the forefront of all successful mediation is independence, and so, you must be very careful not to let your own personal views intervene in your decision-making in your attempt to guide the decision-making unless it is within the principles of appropriate mediation.

Most mediators today have done formal training and are formally accredited.

The advantage of using a person who fits into that mould is that their behaviour is subject to review. They are usually a member of an accredited national organisation which has the capacity to enquire into any complaint made against the behaviour of the mediator in the mediation process.

So, then what also happens in the mediation?

Subject to the requirements of the law, whatever is said in the mediation is confidential to the mediation and except with limited exceptions whatever is said, cannot be used in any subsequent court process. This is to allow the participants in the mediation to make offers and counter offers in the knowledge that whatever offers and counter offers are made, can’t later ordinarily be used against that person.

For a mediation to be successful, there must be compromise on the part of each person involved in the mediation so that they can move ahead.

The amount of time spent in the mediation process is dependent on the wishes of the participants subject to consideration of the mediator that the process is making progress. Sometimes it is apparent that the mediation process is not going to produce a result or the process is inappropriate in which event I may decide to terminate the mediation.

Different mediators follow different forms of mediation. My purpose today is to share with you the form of mediation conducted by the Australian Institute of Family Law and Mediation (AIFLAM) of which I am a member, which I follow.

  1. Firstly, participants are invited to make an opening statement which will enable me to prepare an agenda that identifies key issues, interests and common ground;
  2. Secondly, I will then assist each of the participants to fully explore these interests, the intention being that each of them will become clear on the other’s experience and perspective, and what that person needs, fears and desires for the future, in the hope that this will create a shift toward constructive negotiation;
  3. Thirdly, we will then break into private session, during which time whatever is said in that private session will be confidential to that private session, which means that the other participant will not know what I am discussing in that session;
  4. Fourthly, we will then generate and value the options available to each of participants to resolve this matter;
  5. Fifthly, we will try to negotiate some agreements;
  6. Sixthly we will then formalise those agreements; and
  7. Once that is done, we will close the session.

Before closing this address, I want to pick up on a number of points that come out of the preceding subparagraphs.

This approach is known as the “problem-solving or negotiative  approach”, and for this instruction I rely upon the work of Linda Fisher and Mieke Brandon in their publication “Mediating with Families”.

This problem-solving approach is considered one of the main facilitative models. It relies upon reaching agreements which are in the best interest of all the parties concerned and it forms the focus of the mediation session.

It enables the parties to give their reasons for being at the mediation.

It enables the mediator to clarify the main issues into several manageable portions and it enables the parties to talk through all of these. The greatest amount of time and energy is usually expended in this exploration stage, where discussions take place on all the issues and concerns. This exploration is often referred to as the “guts” of the process and the parties are encouraged to work toward some understanding of each other’s perceptions.

The private session part of the mediation sometimes referred to as the caucus, enables the parties to have time separately with the mediator to reflect upon what has been occurring and whether they are achieving what they hope to, in that session. This is a session where the mediator usually tests the reality of the proposition that each party is putting forward.

The parties then usually return to a joint session where they can focus on the future and on settling the issues. In some circumstances more than one private session may be needed before the parties can complete their negotiation.

It is in the agreement stage where what has been agreed to is reinforced by the finalisation and recording of their agreement and the listing of any unresolved issues/interests It is in this private session where parties generally returned to a joint session.

Time does not permit me to go into the various ways of enforcing an agreement, that is a matter for a further address, but subject to some limitations, the agreement is enforceable.

The program that I use also requires people to argue their interests rather than their positions. David Spencer and David Barker in their publication “Essential Dispute Resolution” say that the definition of a position is simply “what you have decided” whereas the definition of an interest is “why you decided that way you did.”

Generally, positions are the outward manifestation of interests.

Here is an example of what is meant in the immediately previous paragraphs. The position of a disgruntled employee may be “I want a pay rise”. However, the interest behind the position maybe not the need for extra money, but the need for recognition within the organisation. Settling such a dispute may involve working at ways to give the employee more recognition within the workplace that may not involve a pay rise. Thus, the settlement would be based on the interest of the employee as opposed to the employee’s position.

Liability limited by a scheme approved under professional standards legislation”

Cecil Black

01 May 2018

E&OE

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