Reflective Essay: Developing a Theoretical Framework to Understanding Dispute Resolution

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Reflective Essay: Developing a Theoretical Framework to Understanding Dispute Resolution

Role-Play Critical Reflection

I. Reporting and Responding

I was tasked to watch and respond to a recorded mediation role-play. Mediation is a dispute resolution process that is employed to avert conflict between disputing parties (‘disputants’) over common resources through third party intervention (mediator) with the goal of improved communication, cooperation, and obtaining of efficient solutions.[footnoteRef:1] The role-play recording ran for thirty minutes with one mediator and two disputants. [1: Gerald Eisenkopf and André Bächtiger, ‘Mediation and Conflict Prevention’ (2012) 57(4) Journal of Conflict Resolution, 570.]

A facilitative model of mediation was utilized by the mediator which frames the negotiation around the parties’ needs and interests rather than their strict legal rights.[footnoteRef:2] This leads to an introduction to a wider scope of alternatives and possible resolutions.[footnoteRef:3] The mediator assisted the disputants in defining and arranging their concerns and make their own decisions to resolve issues with mutual interest in mind, thus the mediator can be termed as a facilitator.[footnoteRef:4] He engaged in a process which includes preliminaries, mediator’s opening, single party presentation, identifying common ground, defining and ordering issues, negotiation and decision making, separate meetings, drafting of decisions and packaging of offers, closing and termination. This process resembles the established procedural steps of mediation.[footnoteRef:5] [2: Laurence Boulle, Mediation: Principles, Process, Practice (LexisNexis, 3rd ed, 2011), 43-48.] [3: Troy Peisley, ‘Blended mediation: Using facilitative and evaluative approaches to commercial disputes’ (2012) 23(1) Australasian Dispute Resolution Journal, 26-35.] [4: Love, ‘The Top Ten Reasons Why Mediators Should Not Evaluate’ (1997) 24 Florida University Law Review 937, 939.] [5: David Spencer, Principles of Dispute Resolution (Thomson Reuters, 2016), 64-81.]

The dispute involved two businessmen in disagreement. Johnathan believes he is exploited by the firm for not having increased his return for the profit he brings to the company throughout the years of his employment. He also believes that Simon spends too much time away from work and the he makes secretaries work on less urgent matters as opposed to more productive work. Meanwhile, Simon is concerned about the reliability of Johnathan’s clients and how Johnathan is impossible to communicate with. He also believes that Johnathan intends to push him out of the company. The mediator emphasizes the significance of the mediation and how the main goal was to come up with a signed written document that could accommodate the interests of both Johnathan and Simon.

To ensure this was a successful facilitative mediation, it was vital for the mediator to only assist and leave the decision-making to the disputants themselves, to remain unbiased, and to find the disputants’ common ground.

II. Relating

Objectivity and impartiality are paramount attributes of an effective mediator.[footnoteRef:6] The VIA Survey of Character Strengths (‘VIA Survey’) showed that appreciation of excellence and skill in all domains of life is my top strength.[footnoteRef:7] This could mean that I see the worth and merit of differing opinions and perspectives which promotes fairness, a key component of disputant satisfaction.[footnoteRef:8] I have experienced in my personal life times when people I know are in disagreement or in conflict and I believe I uphold this fairness whenever they vent to me. I am a psychology student and have also been taught in that degree that to achieve successful communication, we must identify and validate the person’s feelings.[footnoteRef:9] I do similar things to what the mediator did in the recording. For example, he would say something like “So, what you’re saying is that you’re feeling a sense of frustration…”, recognising the emotion attached to the disputant’s concern which is important because emotions prompt conflict.[footnoteRef:10] [6: Charles B. Craver, ‘The use of mediation to solve community disputes’ (2015) 48 Journal of Law & Policy, 231-262; Hilary Astor, ‘Mediator neutrality: making sense of theory and practice’ (2007) 16(2) Social & Legal Studies, 221-239.] [7: VIA Institution on Character, VIA Survey of Character Strengths (2020) University of Pennsylvania ] [8: Shu-Cheng Steve Chi, Raymond Friedman, Mei-Yu Yang, ‘Are Supervisors Fair Mediators? The Effects of Personality Traits and Age Difference on Expected Mediation Fairness’ (2009) 37(1) Social Behavior and Personality, 59-71.] [9: Christopher W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (John Wiley & Sons, 4th ed, 2014), 256.] [10: James Duffy, ‘Empathy, Neutrality and Emotional Intelligence: A Balancing Act for the Emotional Einstein’ (2010) 10(1) Queensland University of Technology Law and Justice Journal 44, 45.]

Additionally, the VIA Survey revealed that critical thinking and open-mindedness are also my strong suit, which means I examine all sides and rely on evidence before I draw any conclusions.[footnoteRef:11] Whenever someone talks to me about a conflict with someone, I validate their emotion but do not agree nor disagree with their statements, similar to the mediator in the recording saying something like “… as I understand from… listening to you…”. To better gather evidence, I ensure to talk to one party at a time which could be described as a private caucus session. Private caucus sessions are confidential meetings held by the mediator with individual disputants to improve the probability of identifying more areas of agreement.[footnoteRef:12] By talking to one party privately, I am usually able to make them open up more about their positive interactions or common ground with the person they are in conflict with and assist them towards a decision that promotes developing improved relationship. [11: VIA Institution on Character, above n 7.] [12: Christopher W. Moore, ‘Practical Strategies for the Phases of Mediation’ (1987) 1987(16) Mediation Quarterly, 87-101.]

However, sometimes I personally find it difficult to maintain party self-determination, a consistent value in mediations.[footnoteRef:13] Party self-determination reserves the capacity to resolve the dispute to the disputants themselves, denoting party empowerment and autonomy.[footnoteRef:14] Occasionally, I offer my advice, which is usually requested. This is unlike the facilitative mediation method used in the recording and more like being a conciliator which is classified as a nondeterminative role with the capacity to offer suggestions and advice.[footnoteRef:15] Unfortunately, my inclination to find solutions myself attributes to the evaluative character of a lawyer,[footnoteRef:16] something that should not be followed in a facilitative mediation. [13: Laurence Boulle and Rachel Field, ‘Re-appraising Mediation’s Value of Self-determination’ (2020) 30 Australasian Dispute Resolution Journal, 96.] [14: Rachel Field, ‘A mediation profession in Australia: An improved framework for mediation ethics’ (2007) 18 Australasian Dispute Resolution Journal, 178.] [15: National Alternative Dispute Resolution Advisory Council, ‘Alternative Dispute Resolution Definitions’ (March 1997), 7.] [16: Marilyn Warren, ‘Should Judges be Mediators?’ (2010) 21 Alternative Dispute Resolution Journal 77.]

III. Reasoning

As aforementioned, three themes that are essential for a successful facilitative mediation are self-determination, impartiality, and finding common ground.[footnoteRef:17] How consistent the mediator in the recording was with mediation literature will now be considered. [17: Arghavan Gerami, ‘Bridging the theory-and-practice gap: mediator power in practice. (Colloquy Edition: Challenging the Dominant Paradigms in Alternative Dispute Resolution)’ (2009) 26(4) Conflict Resolution Quarterly, 433-451.]

1. Self-determination of Parties

Self-determination of parties is an important, guiding tenet of mediation practice.[footnoteRef:18] A mediator must structure the negotiation in a way that the capacity to reach decisions is reserved to the disputants.[footnoteRef:19] It is important to frame the mediation using problem-solving models that promotes client autonomy, meaning the disputants have complete control over communications and settlements.[footnoteRef:20] Without direct influence over decisions, the mediator highlights the parties’ agency over the negotiation.[footnoteRef:21] [18: Susan Douglas, ‘Neutrality, Self-Determination, Fairness and Differing Models of Mediation’ (2012) 19(2012) James Cook University Law Review, 19-40.] [19: Sir Laurence Street, ‘No Dispute on Mediation’s Value’ (1996) 7 Director 21, 22.] [20: Gerard Egan, The Skilled Helper: A Problem-Management and Opportunity-Development Approach to Helping (Cengage, 10th ed, 2012), 11-90.] [21: Carrie Menkel-Meadow, ‘Mediation, Arbitration and Alternative Dispute Resolution’ (Research Paper No 59, University of California School of Law, 2015) 2.]

The mediator in the recording made sure to note down the issues and concerns of both parties. He was able to maintain party self-determination by structuring the mediation around questions that they drafted around the issues and asking the disputants whether the questions accurately package such concerns. He also emphasises that the disputants could revise the questions to better suit their concerns if needed and that they could keep adding questions when they identify more issues. Because of this problem-solving method, the disputant themselves have authority over which issues they should address and how they would resolve them. Thus, they are predisposed to come to a conclusion together.[footnoteRef:22] As this method is a dominant and orthodox method in facilitative mediation,[footnoteRef:23] it can be gathered that the mediator in the recording successfully maintained party self-determination to that extent. [22: Nancy A. Welsh, ‘The Thinning of Self-Determining in Court-Connected Mediation: The Inevitable Price of Institutionalization?’ (2001) 6 Harvard Negotiation Law Review 1, 5.] [23: Dorothy J. Della Noce, Robert A. Baruch Bush, Joseph P. Folger, ‘Clarifying the Theoretical Underpinnings of Mediation: Implications for Practice and Policy’ (2002) 3(1) Pepperdine Dispute Resolution Law Journal, 39, 49.]

It is also recognised that mediators who are influenced by emotion decrease the extent of disputants’ self-determination.[footnoteRef:24] From my understanding, the mediator in the recording did not have personal feelings attached to any of the disputants’ concerns. Therefore, it can be determined that he maintained party self-determination. [24: Omer Shapira, ‘Exploring the concept of power in mediation: mediators’ sources of power and influence tactics’ (2009) 24(3) Ohio State Journal on Dispute Resolution, 1-35.]

B Impartiality

Impartiality is often characterized as a fundamental quality of effective mediators.[footnoteRef:25] Impartiality means untainted with favouritism, bias, or prejudice.[footnoteRef:26] A mediator must oversee the mediation in a reasonable, equitable and objective way.[footnoteRef:27] Additionally, a mediator shall decline a mediation if they could not conduct it impartially or even appear impartial, like acting with partiality based on a disputants’ personal traits, values and beliefs.[footnoteRef:28] [25: Yafei Zhang and Li Chen, ‘Exploration of factors leading to successful mediation: A regression analysis of reality TV mediation show episodes in China’ (2017) 28(1) International Journal of Conflict Management, 28.] [26: Shyam Kishore, ‘The Evolving Concepts of Neutrality and Impartiality in Mediation’ (2006) 32(2) Commonwealth Law Bulletin, 221-225.] [27: National Mediator Accreditation System, Part III: Practice Standards, (at 1 July 2015), 7. ] [28: American Arbitration Association (AAA), the American Bar Association (ABA) Section of Dispute Resolution and the Society of Professionals in Dispute Resolution (SPIDR), Model Standards of Conduct for Mediators (2005).]

I believe the mediator in the recording, for the majority of the mediation, did not favour one disputant over the other. He demonstrates empathy for both parties, verbally confirming their understanding of the disputants’ feelings and thoughts.[footnoteRef:29] A mediator showing empathy improves trust in impartiality and fairness of mediation.[footnoteRef:30] As previously mentioned, the mediator would say something like “I understand you feel…” and that evidently shows empathy which leads to instituting impartiality. Moreover, environment and setting also impact interactions between disputants.[footnoteRef:31] From the recording, it can be seen that they are seated around a table with the mediator seated between the two disputants to appear impartial from the start. However, I think this impression of impartiality was slightly diminished when he agreed with something Johnathan said, saying “Right, so tradition go as limitations”. In that moment, it seemed like, instead of just empathizing with Johnathan, he was agreeing with Johnathan. It could be a minor error, but it might also attribute to appearing partial based on disputant’s beliefs which could lead to him withdrawing from the mediation. [footnoteRef:32] [29: Charlie Irvine and Laurel Farrington, ‘Mediation and Emotions: Perception and Regulation’ The Emotional Dynamics of Law and Legal Discourse. Ed. Heather Conway and John Stannard. (Oxford: Hart Publishing, 2016), 211-240.] [30: Yafei Zhang and Li Chen, above n 25, 30.] [31: James A Wall and Timothy C Dunne, ‘Mediation Research: A Current Review’ (2012) 28(2) Negotiation Journal 217, 225.] [32: AAA, ABA, and SPIDR, above n 28.]

The mediator also employed caucusing, which increases the likelihood of reaching a resolution.[footnoteRef:33] This is because the mediator is allowed to discuss issues with a disputant in private. The mediator could reaffirm their impartiality and build a rapport so the disputants trust that an impartiality does exist.[footnoteRef:34] [33: Jean Poitras, ‘The Strategic Use of Caucus to Facilitate Parties’ Trust in Mediators’ (2013) 24(1) International Journal of Conflict Management, 23-29.] [34: Dieter M. Kolb, ‘To be a mediator: expressive tactics in mediation’ (1985) 41(2) Journal of Social Issues, 11-26.]

C Common Ground

[bookmark: _Hlk39674271]An imperative part of the mediation process is eventually finding common ground between the parties.[footnoteRef:35] The mediator is tasked with exploring the disputants’ interests by creating a collaborative atmosphere and noting both competing and noncompeting interests of the parties.[footnoteRef:36] In doing so, the mediator can generate the impression that the disputants’ interests are not actually in conflict,[footnoteRef:37] which is crucial since most disputants deem their problems as consequences of clashing concerns.[footnoteRef:38] [35: Bryan Hallows, ‘Finding common ground through mediation’ (2007) 29(1) In Practice, 51-52.] [36: Tim O’Shea, ‘Alternative dispute resolution: The mediation process’ (1999) 12(18) Canadian HR Reporter, 13-14.] [37: Rory Ridley-Duff and Anthony Bennett, ‘Towards Mediation: Developing a Theoretical Framework to Understanding Dispute Resolution’ (2011) 42(2) Industrial Relations Journal, 124.] [38: Ibid.]

From the recording, it can be gathered that the mediator was trying to encourage collaboration by encouraging both disputants to ask questions and correct his assumptions, but also by asking them questions to evoke positive answers about their company. He succeeded in exploring noncompeting interests by listing them down and eventually framing problem-solving questions around this common ground that could accommodate both disputants’ concerns.

Caucusing can also be utilised to discover common ground.[footnoteRef:39] However, this is ineffective if held directly after parties’ opening statements because of the lack of opportunity to examine concerns together.[footnoteRef:40] The mediator in the recording held separate meetings after the negotiation and decision-making stage. He was able to gather from Simon that was not entirely opposed to Johnathan’s increased partnership profit, as long as he feels secure with his position in the firm and he feels gratitude from Johnathan. He was also in agreement with Johnathan’s concerns on the review and secretarial priority. Subsequently, it can be stated that the mediator was successful in finding common ground. [39: Tara Sourdin and Nikola Balvin, ‘Mediation Styles and Their Impact: Lessons from the Supreme and County Courts of Victoria Research Project’ (2009) 20 Alternative Dispute Resolution Journal, 147.] [40: Warren, above n 16, 79.]

IV. Reconstructing

There are certain techniques and strategies that I gathered from the recording that I could employ in future disputes that I will mediate. For instance, although it is encouraged that facilitative mediators should be there to assist the disputants, that does not mean mediators are completely detached from the conversation. At first, I thought mediators should not be so involved in the dialogue and only let the disputants converse as they have the authority to make decisions, so I initially thought the mediator in the recording was talking too much. But he was only being proactive, establishing guidelines, stressing rules, reaffirming the disputants’ feelings and clarifying their points, which are all essential mediation strategies, especially in a highly intense conflict situation.[footnoteRef:41] While the dispute in the recording was not intense, Johnathan’s attitude while communicating could be described as emotionally destructive and we discover that from Simon’s private caucus session that he feels like communicating with Johnathan was impossible and the there is a sense of hurt as he feels betrayed when he initially thought of Johnathan as his own son. [41: Peter T. Coleman, Katharina G. Kugler, Ljubica Chatman, ‘Adaptive mediation: an evidence-based contingency approach to mediating conflict’ (2017) 28(3) International Journal of Conflict Management, 383-406.]

This also highlights the importance of private caucus for me. I believe, in the future, I should really take advantage of caucusing to build rapport with a disputant so that they may be more forthcoming with their thoughts, feelings, and even information. This will give me a better understanding of disputants’ competing interests which is integral to discovering mutual interests.[footnoteRef:42] Furthermore, this task also reminded me to keep my emotions in check and become as impartial as I can be. Ultimately, I believe I learned more about being a proactive, empathetic yet unbiased professional, something I hope to embody in the future as not just an effective mediator, but also a successful lawyer. [42: Roger Fisher and William Ury, Getting to Yes: Negotiating an agreement without giving in (Random House Books, 2nd, 1991), 23-31.]