Maintaining the Vision, Shifting the Ground,
Building the New Paradigm
LEADR ‘kon gres Brisbane, September 9, 2011
My thesis is that the rights paradigm, a paradigm based on rules, evidence, proof, and adjudication, is gradually imposing on mediation a practice structure that is marginalizing alternative ways to understand and approach disputes. Alternative in this context means alternative to the rights paradigm.
Illustrations of the influence of this paradigm in Australia are:
- narrowing of the publicly approved definitions of mediation,
- demand for standards and management regimes, and professional structures that while apparently embracing difference actually favour a particular approach to mediation, and
- assessment of mediation by results: reduction in cost or time, volume of cases disposed of in comparison with adjudicative processes, fairness of substantive outcomes in relation to adjudicative norms, and consequential avoidance of increased autonomy, empowerment and recognition as measures of quality;
Despite the apparent success of ADR, and mediation in particular, in participating in public methods of dispute resolution, I think the ADR community as a whole is in danger of losing the perspective of being truly alternative, and portions of the community who create the opportunity for truly radical (in the sense of root) change are being marginalized, often inadvertently. The public perception of the process of mediation is based on results rather than process, and thus cases that do not settle are seen as failures.
I have two illustrations:
Starting from the particular,one illustration examines the public statements at the beginning and end of a situation that was resolved by a conciliation process. I chose this one not because it is unique – in fact, in many ways the process issues are quite typical, and therefore creates a typical illustration. I have chosen it because it is notorious, because public statements by the participants are available, and because members of the public have expressed strong views about it. The example is the Kristy Fraser-Kirk, David Jones, Mark McInnes conflict.
I would like to use those comments as an avenue to explore our experience of mediation, especially in the litigation and public regulatory context.
Second is to examine what is happening to the practice of ADR from a regulatory perspective: what is our paradigm when we create the standards and rules that are in place or being formulated to govern the practice of ADR in Australia?
One critical danger in my view is that the rights paradigm at its root rejects the premise that multiple perspectives (or shared experience with differing significance for different participants) and differing conclusions can exist. As a consequence, empowerment and recognition as inherent goals of resolving conflictdisappear, and the resolution of a problem, dispute, conflict, or difference of views is resolved by creating a correct or winning view. This dominance of resolution survives even if through problem solving that view becomes “win-win” and creates a more comprehensive view of the situation than was previously held or understood by either of the participants. In such a paradigm, without resolution the mediation is considered inadequate, since resolution is the one thing that an adjudicative process always provides.
From this perspective we hear the criticism that mediation was a waste of time and resources because the dispute continues, and ignores the reality that litigants who have lost a case rarely think the dispute is over: they often think that through a combination of judicial, legal or participant incompetence that they lost the case.
Because various approaches to mediation use terms that overlap, there can be difficulties illustrating these points; for instance, the term self-determination that exists in standard definition of mediations can become merely procedural (i.e., the final choice is made by a party, even if it is a choice strongly urged by the mediator as, for example, the best offer he or she has been able to get the other side to make), rather than being the core of practice.
The Promise of Mediation , written in 1994 by Robert A Baruch Bush and Joseph P. Folger, provides a useful set of distinctions about approaches and perspectives on mediation, and first presented the underlying problem that has become more pronounced in Australia today. This book is a primary volume for transformative practitioners.
They describe four “stories” of Mediation:
The Satisfaction Story is described on page 16:
The mediation process is a powerful tool for satisfying the genuine human needs of parties to individual disputes. Because of its flexibility, informality, and consensually, mediation can open up the full dimension of the problem facing the parties. Not limited by legal categories or rules, it can help reframe a contentious dispute as a mutual problem. Also, because of mediators’ skills in dealing with power imbalances, mediations can reduce strategic manoeuvring and overreaching. As a result of these different features, mediation can facilitate collaborative, integrative problem solving rather than adversarial, distributive bargaining. It can therefore produce creative, “win-win” outcomes that reach beyond formal rights to solve problems and satisfy parties’ genuine needs in a particular situation. The mediation movement has employed these capabilities of the process to produce superior quality solutions to disputes of all kinds, in terms of satisfaction of parties’ self-defined needs, for all sides.
On page 18 Bush and Folger lay out the Social Justice story:
Mediation offers an effective means of organizing individuals around common interests and thereby building stronger community ties and structures. This is important because unaffiliated individuals are especially subject to exploitation in this society and because more effective community organization can limit such exploitation and create/solicit justice. Because of its capacity for reframing issues and focusing on common interests, mediation can help individuals who think they are adversaries perceive a larger context in which they face a common enemy. As a result, mediation can strengthen the weak by helping establish alliances among them.
In addition, by its capacity to help parties solve problems for themselves, mediation reduces dependency on distant agencies and encourages self-help, including the formation of effective ‘grass-roots’ community structures. Finally, mediation treats legal rules as only one of a variety of bases by which to frame issues and evaluate possible solutions to disputes. Therefore, mediation can give groups more leverage to argue for their interests than they might have in formal legal processes. The mediation movement has used these capacities of the process, to some extent at least, to facilitate the organization of relatively powerless individuals into communities of interest. As a result, those common interests have been pursued more successfully, helping ensure greater social justice, and the individuals involved have gained a new sense of participant in civic life.
The Transformation Story is described on page 20:
The unique promise of mediation lies in its capacity to transform the character of both individual disputants and society as a whole. Because of its informality and consensuality, mediation can allow parties to define problems and goals in their own terms, thus validating the importance of those problem and goals in the parties’ lives. Further, mediation can support the parties’ exercise of self-determination in deciding how, and even whether, to settle a dispute, and it can help the parties’ mobilize their own resources to address problems and achieve their goals. The mediation movement has (at least to some extent) employed these capabilities of the process to help disputing parties strengthen their own capacity to handle adverse circumstances of all kinds, not only in the immediate case but in future situations. Participants in mediation have gained a greater sense of self-respect, self-reliance, and self-confidence. This has been called the empowerment dimension of the mediation process.
In addition, the private, non-judgmental character of mediation can provide disputants a nonthreatening opportunity to explain and humanize themselves to one another. In this setting, and with mediators who are skilled at enhancing interpersonal communications, parties often discover that they can feel and express some degree of understanding and concern for one another despite the disagreement. The movement has (again, to some extent) used this dimension of the process to help individuals strengthen their inherent capacity for relating with concern to the problems of others. Mediation has thus engendered, even between parties who start out as fierce adversaries, acknowledgement and concern for each other as fellow human beings. This has been called the recognition dimension of the mediation process.
While empowerment and recognition have been given only partial attention in the mediation movement thus far, a consistent and wider emphasis on these dimensions would contribute powerfully—incrementally and over time—to the transformation of individuals from fearful, defensive, and self-centred beings into confident, empathetic, and considerate beings, and to the transformation of society from a shaky truce between enemies into a strong network of allies.
The Oppression Story on page 22 completes the perspectives on mediation’s uses and attributes:
Even if the movement began with the best of intentions, mediation has turned out be a dangerous instrument for increasing the power of the strong to take advantage of the weak. Because of the informality and consensuality of the process, and hence the absence of both procedural and substantive rules, mediation can magnify power imbalances and open the door to coercion and manipulation by the stronger party. Meanwhile, the posture of “neutrality” excuses the mediator from preventing this. Therefore, in comparison to formal legal processes, mediation has often produced outcomes that are unjust, that is disproportionately and unjustifiably favourable to stronger parties. Moreover, because of its privacy and informality, mediation gives mediators broad strategic power to control the discussion, giving free rein to mediators’ biases. These biases can affect the framing and selection of issues, consideration and ranking of settlement options, and many other elements that influence outcomes. Again, as a result, mediation has often produced unjust outcomes.
In summary, the overall effect of the movement has been to neutralize social justice gains achieved by the civil rights, women’s, and consumer’s movements, among others, and to help re-establish the privileged position of the stronger classes and perpetuate their oppression of the weaker.
To illustrate the dominance of the satisfaction story in the public imagination, I would like to look at the statements issued or reports of statements issued by a number of the key participants in the Kristy Fraser-Kirk Sexual Harassment claim against David Jones and Mark McInnes:
As we go through these, I want to make a few preliminary points to show that I am presenting only the public perspective on this dispute.
- I don’t know any of the people involved in any aspect of this matter–parties, counsel, adjudicators, or conciliator–personally in any way.
- I have had no involvement in this situation at any stage, or have any inside information about what happened at any stage of the dispute. My only source of information is media reports, and wherever possible I have relied on the written statements of participants rather reports on their statements (the exception is the report of David Jones’ Annual General meeting.
- I don’t own any David Jones shares.
- I don’t have any role in the print or other news media.
My intention is to explicate the paradigms that appear to be embodied in these statements. A paradigm is defined as:
A philosophical and theoretical framework of a scientific school or discipline within which theories, laws, and generalizations and the experiments performed in support of them are formulated; broadly: a philosophical or theoretical framework of any kind
For this paper: the framework that explicates the actions and statements of participants in a situation.
On June 18, 2010 in a written statement, Mr McInnes said:
“At two recent company functions I behaved in a manner unbecoming of the high standard expected of a chief executive officer to a female staff member.”
“As a result of this conduct I have offered my resignation to the David Jones board and we have agreed on the mutual termination of my employment with the company, effective immediately.”
“As a chief executive officer and as a person I have a responsibility to many, and today I formally acknowledge that I have committed serious errors of judgment and have inexcusably let down the female staff member. I have also let down my partner, my family, all my staff, the board and our shareholders. I apologise to everyone I have let down.”
“In resigning immediately it is my hope that I will minimise the impact of my errors of judgment on all and on David Jones, a company I have been proud to be employed by for 13 years and have had the honour of leading for the last 7 years.”
“I would like to thank my colleagues for their support during my time with the company. I am very sorry to be leaving in these circumstances and wish all involved with David Jones continued success.”
“My partner and I will be overseas for the foreseeable future.”
This then is the outline of the situation as described by one of the primary participants. After this statement, Ms Fraser-Kirk was identified and the matter took on a public visibility that created a huge range of responses, opinion pieces, and attention. Her Statement of Claim, which is attached to this paper, alleges continuing harassing behaviour of far more significant scope than referred to by Mr McInnes on his resignation. Her suit claims under a variety of innovative heads a total of 37 million dollars. These two clearly have or at least present widely varying views on what happened, and these views cannot be reconciled into one set of facts.
The lawsuit was settled in October 2010, after conciliation before FairWork Australia.
After that settlement, Mr McInnes issued another statement:
“I welcome today’s settlement. It brings to an end a difficult time in many peoples’ lives and hopefully it marks the moment that everyone can begin focusing on the future.
I have repeatedly said that the vast majority of the allegations are simply untrue and the nature of the court proceedings was an abuse of legal process.
Personally I am looking forward to a new chapter in my family life and a resumption of my career in 2011. I would particularly like to thank my partner Lisa, my family and many friends for all their love and support.
The settlement contains confidentiality obligations so I will not be making any further comment on these matters.”
Ms Fraser-Kirk also issued a statement:
“I could not have done this without the support and guidance from those in my life that matter most, to my partner, parents, family and friends, thank you and to my unwavering legal team, a special thanks.
Also, to those members of the public who have supported me, thank you.
This has been a difficult journey but one that I felt was important.
The case has led to real debate taking place which I am confident will lead to change. That is part of what the punitive damages claim was intended to achieve, and it has.
I had asked the Court to award punitive damages, which was to go to charity, but as the Court will no longer be determining the case that’s no longer possible. I look forward, however, to participating in charitable work in the future.
Thank you again for all your support.
As the settlement is subject to confidentiality, I am not in a position to say anymore.”
On December 3, 2010, the Sydney Morning Herald published a story written by Nicole Stevens and Drew Cratchley summarizing the comments of David Jones’ Chairman, Robert Savage. The text is reproduced below:
DAVID JONES DEFENDS FRASER-KIRK SETTLEMENT
David Jones Ltd says settling the sexual harassment lawsuit brought by former publicist Kristy Fraser-Kirk was “the right thing to do”.
The retailer held its Annual General Meeting in Sydney on Friday, the first since former chief executive Mark McInnes had his contract terminated due to the sexual assault allegations.
Chairman Robert Savage described the drama as “a major disruption” in the retailer’s financial year.
Ms Fraser-Kirk dropped her $37 million claim against David Jones, Mr McInnes and nine directors in October after the retailer settled for $850,000.
Mr McInnes made a “smaller contribution” to that amount, Mr Savage said on Friday.
The decision by David Jones to settle was a “straight risk/return decision” made after considering the interests of the company, its shareholders, its brand and its employees, he said.
It meant the company could provide certainty of the outcome without “the burden of a final hearing”, Mr Savage said.
It also eliminated the burden of ongoing legal fees, and the need for key executives to commit time to the case during the busiest time of the year for retailers.
“In short, all things considered, it was the right thing to do,” Mr Savage said. Shareholders at the AGM were broadly supportive of the retailer’s handling of the situation.
However, questions were raised by some investors about the $1.5 million termination payment made to Mr McInnes.
“ASA and many retail shareholders associate this $1.5 million ex-gratia payment with the board rewarding inappropriate behaviour unbecoming of an icon brand chief executive,” Australian Shareholders Association (ASA) representative Stephen Matthews said.
“We have difficulty believing that this was the best outcome for shareholders.”
Mr Savage said David Jones had negotiated the mutual termination to reach a quick resolution and a “more robust non-compete clause”, preventing McInnes from working for a rival for 12 months.
He said the concerns raised by shareholders were not unexpected, but it was time David Jones “as a company were allowed to get on with the job of serving our customers.”
The Herald Sun in its report also included the following comments:
“We are pleased that all parties are able to heal, learn, rebuild and move on,” he [Savage] said.
“Finally, while I cannot provide any guarantees, I want to reassure shareholders that the company is doing its best to ensure that this type of situation does not recur,” he added.
These statements typify the Satisfaction story described by Bush and Folger. I have marked in bold face the comments that illustrate elements of the satisfaction story:
a) Reframing of a contentious dispute as a mutual problem: David Jones had a number of other concerns that were resolved by this settlement, as did McInnes.
b) Mediation can reduce strategic manoeuvring and overreaching: this was a primary argument against the scale and scope of damages claimed.
c) Avoiding “the burden of a formal hearing” meant that the mediation facilitated problem solving rather than adversarial, distributive bargaining (although the mediation did not do this completely in this case).
However, the view of McInnes clearly is that fundamental differences in perspective still exist. The view of Fraser-Kirk is that a debate has started that will lead to change, not that David Jones or McInnes have had any shift in perspective or attitude. The satisfaction model allows the parties to solve the problem without resolving their differences or acknowledging the perspective of the other. For David Jones, the “straight risk-return analysis” is a classic of bargaining from the satisfaction perspective.
Satisfaction story is alive and well: attractive and valuable I am not trying to say it is wrong. I am saying, as Bush and Folger did in 1994, that it is fundamentally different in its intent from the Transformation model, and hence has fundamental practice differences.
They point out three empirically demonstrated differences (p 64):
Three overall patterns of mediator conduct characterize problem-solving mediation. First, early in the process, mediators tend to decide what the case as a whole is about, labelling the dispute in a way that seems recognizable and manageable. Second, mediators often influence settlement terms in surprisingly directive ways. Third, mediators tend to drop issues that cannot readily be handled within a problem-solving approach. These three patterns, taken as a whole, threaten the very objectives problem-solving values. Ironically, they may be inevitable as long as mediation is based on the problem-solving orientation.
The tendency of this approach is to become directive and to prefer settlement over self-determination. Mediators start to interfere with party diagnosis, and decide what issues can and can’t be resolved; they push parties toward particular outcomes, or force parties to choose between outcomes; they decide what outcomes are “fair” or “unfair” according to their own assessment and preferred norms; they advise or help one party to balance power by choosing when to accept or question information, potential commitments, and options while shuttling and communicating between separated parties. A single perspective—that of the mediator—eventually dominates both the dialogue and the outcome. The emphasis shifts to arguing over the right answer, which in turn requires an agreement on the facts, or acceptance of conclusions related to the facts. Many mediations, in litigation matters especially, become an argument over who has the best chance of success in the litigation and compare this chance against the “burden of a final hearing”. The litigation model starts to overtake the satisfaction story’s emphasis on integrative bargaining and create distributive analysis.
I am not trying to eliminate the satisfaction story from mediation. I think it is important that we simply be clear on what model is being used and presented, and what the consequences of preferring one model over another may be. The satisfaction story carries the risk of being overtaken by the rights paradigm far more easily than the transformation story, or the social justice or oppression stories, which are alive to the danger of and guard against being co-opted.
Second branch of this illustration is about how we govern ourselves as mediators. My concern is that norms that do not explicitly accommodate the transformative model of mediation may eventually exclude it as an accepted approach to mediation practice.
Review, for example, the Final Mediator Practice Standards in Australia:
1) These Approval Standards apply to any person who voluntarily seeks to be accredited under the National Mediator Accreditation System (‘the system’) to act as a mediator and assist two or more participants to manage, settle or resolve disputes or to form a future plan of action through a process of mediation. Practitioners who act in these roles are referred to in these Approval Standards as mediators. . . .
4) Mediation can take place in all areas where decisions are made. For example, mediation is used in relation to commercial, community, workplace, environmental, construction, family, building, health and educational decision making. Mediation may be used where there is conflict or may be used to support future decision making.
2 Description of a Mediation Process
1) A mediation process is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.
2) The mediator[s] may assist the participants to
a) Communicate with each other; and
b) Identify, clarify and explore disputed issues; and
c) Generate and evaluate options; and
d) Consider alternative processes for bringing any dispute or conflict to a conclusion; and
e) Reach an agreement or make a decision about how to move forward and/or enhance their communication in a way that addresses participants’ mutual needs with respect to their individual interests based upon the principle of self-determination.
3) Mediation processes are primarily facilitative processes. The mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes.
4) Some mediators may also use a ‘blended’ process that involves mediation and incorporates an ‘advisory’ component, or a process that involves the provision of expert information and advice, where it enhances the decision-making of the participants provided that the participants agree that such advice can be provided. Such processes may be defined as ‘conciliation’ or ‘evaluative mediation.’ Practitioners who manage such processes and provide expert advice are required to have appropriate expertise (see Section 5 (4) below) and obtain clear consent from the participants in respect of undertaking any ‘blended’ advisory process.
The italicized portions of the standards demonstrate a focus on the future, on problem solving, and dispute resolution. Although self-determination is mentioned, the ‘blended” process which includes evaluation is specifically provided for, while (beyond fostering communication) the transformative model is not.
NADRAC, the National ADR Advisory Committee, has recently produced National Guidelines stating that nationally consistent principles of ADR are desirable.
Here are other sections of the Guidelines:
3.3 What ADR is and how it can work for you
ADR (sometimes called Alternative Dispute Resolution) describes processes where an independent person (an ADR practitioner) assists people in dispute to sort out the issues between them. ADR can also meanAssisted or Appropriate Dispute Resolution.
Using the best ADR process for your dispute can assist you to resolve your dispute effectively and efficiently.
There are three main types of ADR:
- Facilitative processes (such as mediation) – the ADR practitioner assists you and the other participants to reach an agreement yourselves. In these processes the ADR practitioner does not provide advice or make a decision
. . .
Mediation is a process where the people involved, with the assistance of a mediator:
- listen to and are heard by each other
- identify the disputed issues
- identify the needs, goals, wants and desires that underlie disputed issues
- develop options to sort out each issue
- develop options to satisfy needs, goals, wants and desires
- consider other processes to resolve the dispute
- aim to reach an agreement, if an agreement is appropriate
The role of the mediator is to assist you and the other participants to have a respectful, even-handed discussion and decision-making process. Your role is to listen to the other points of view, contribute to the discussion and make decisions. (P 25)
What does a mediator do?
- help you decide whether mediation is suitable in your situation
- use their specialist knowledge and may give you some information
- bring the appropriate people together
- explain the way the mediation process will work
- provide a supportive environment and assist with venues and timing for meetings
- set the guidelines or agreements for how the mediation is to occur
- assist you and the other participants involved to understand the situation
- keep you and the other participants involved focused on resolving the dispute
- make sure you and the other participants know and understand what issues have been agreed
- keep communication going
- manage interactions so that they are fair
- assist you and the other participants to decide whether possible solutions are realistic
- support you and the other participants to reach a final agreement, if you all agree it is appropriate
- refer you to other helpful services
- Mediators do not decide who is right or wrong
o everyone is different; the focus is on finding a solution that everyone can live with
For the transformative mediator, Bush and Folger posit (p 95) that
A mediation is successful (1) if the parties have been made aware of the opportunities presented during the mediation for both empowerment and recognition; (2) if the parties have been helped to clarify goals, options, and resources, and then to make informed, deliberate and free choices regarding how to proceed at every decision point; and (3) if the parties have been helped to give recognition wherever it was their decision to do so.
The Mediation Standards Board is considering such issues as professional discipline, the requirements to have parties pre-commit to particular standards of behaviour. These and similar issues start to define a single view of mediation, a single approach, and an objective (and thereby single correct) test for mediation practice.
In the work of defining, developing, and setting standards, principles of practice and management, we must not inadvertently allow the satisfaction story and the rights paradigm to marginalize or even exclude the transformative, narrative, and other truly alternative approaches to dispute management that are possible.
As Bush and Folger state (p 53):
The value offered by the Satisfaction Story is not as real as widely believed, and the value offered by the Transformation story is more realistically attainable than commonly thought. Therefore, contrary to the prevailing view, the strong likelihood is that continuing the present direction of the mediation movement will mean gaining something of questionable value while losing something of great importance.
I would like to conclude with words of Peter Adler in his article, ‘The End of Mediation’:
“But where we have come to seems very different from where we started. When we set out on this journey, mediation and its kindred activities embraced a truly revolutionary idea: empowering people to negotiate their own decisions. In a culture accustomed to giving deference to experts – doctors, lawyers, judges, scientists, engineers, and social workers – that single core principle was a game-changing assumption about the dynamics of conflict and its prevention, management, and resolution. It was about changing America and the strange and professionally adversarial culture in which we are all so deeply enmeshed.
Somewhere, along the way, our world got constricted and narrowed and we now seem to want to empower ourselves. In the land of Mediator-Oz, we have lots of people who desperately want to be part of a real profession. They want certificates, codes of practice and procedure and, above all, a long line of paid cases.
Brothers and sisters, the professionalization of mediation in our courts and other institutions will continue. You can place all your hopes and aspirations in those four walls if that is what you love. For me, that is the great seduction of the moment. I believe bigger, bolder opportunities lie ahead. Keep doing the good work you do. Keep the wind at your back and don’t forget to embrace the road and all the larger possibilities that wait around the bend. We all know the journey itself is everything.”
Francis Handy; Brisbane, September 2011