It is well known in Australian mediation circles that mediation practice does not always correspond to the dominant facilitative training model - even though, on the face of it, the formal accreditation of mediators might suggest otherwise. In 2003 judicial attention was drawn to non-facilitative mediation practices in the case of Tapoohi v Lewenberg. The case demonstrated that differences in mediator styles matter as an issue of professional practice. The National Mediator Accreditation System (2008) recognises the advisory nature of certain practices called mediation and defines them as ‘blended processes’, thereby differentiating them from mediation proper which is defined in facilitative and non-advisory terms: on blended processes see Practice Standards, sections 2(7), 3(4)(g)(i) and 10(5) and Approval Standards sections 2(4), 3(4) and 4(2), 5(4). While the facilitative-advisory distinction is an important one, approaches are more varied than this. Writers such as Riskin (2003), Boulle (2011), Currie (2004), Antaki (2006) and Bush and Folger (1994) have identified different models of mediation. In this article, I expand on the literature and present a meta- model for thinking about mediation practice. The Mediation Meta-Model is a structure for identifying different mediation approaches and how they relate to one other. It makes no claim to universal application. Rather, it offers a conceptual road-map for an increasingly complex and sophisticated array of practices which share the name mediation. The theoretical foundations and analysis for the Meta-Model have been included in previous work (2008). Here a practitioner’s overview is offered.
This Conference Paper is brought to you by the Faculty of Law at ePublications@bond. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of ePublications@bond. For more information, please contact Bond University's Repository Coordinator. Recommended Citation John Wade. (2010) "Matching disputes and responses: How to diagnose causes of conflict, and to respond with appropriate interventions and/or referrals" Paper presented at the Law Society of British Columbia's annual dispute resolution conference. Vancouver, Canada.Apr. 2010.
In our last contribution to the ADR Bulletin ((2009) 11(6) ADR 130) we introduced a 3D model of negotiation that highlighted the importance of understanding the self and the other party in negotiation, creating space for reflective participation by those involved in the process and for providing holistic and balanced models of practice. In this article we reflect upon negotiation strategies and explore the utility of reconciling the dichotomy between interest-based and positional approaches to negotiation. Ultimately, we advocate for a ‘constructive model’ of negotiation and introduce the ‘negotiation navigation map’ that serves the negotiator well in preparing for this approach to negotiation.
The aim of this research project was to assess the use and effectiveness of mediation disputes filed in the Supreme and County Courts of Victoria, Australia. The report assesses the use and effectiveness of mediation in the Supreme and County Courts. In summary, the report found that mostly mediation meets identified objectives. Many disputants and representatives were supportive of mediation processes and felt that the outcomes were mutually beneficial. The report found that there are significant estimated costs savings for disputants where mediation processes are utilised. Professor Sourdin identified specific areas for improvement, including: improving the quality of mediation processes by supporting excellence in mediation standards; the need for training and accreditation of mediators; the need in appropriate cases for earlier and more targeted referral to mediation by the courts; identifying and addressing the needs of special groups including self-represented litigants and disputants from regional Victoria; addressing the lack of demographic data on dispute resolution processes; and the development of a quality framework to be implemented to enhance the quality of mediation services.
Open disclosure standards are being debated and endorsed around the world to require medical practitioners to disclose adverse events which occur in a hospital setting to affected patients. The relationship between the quality of the physician-patient communication and subsequent litigation has been explored by several researchers. Those results suggest that the desire to litigate is often fuelled by families’ perceptions around how the adverse event was communicated rather than the quality of the medical care received. This is consistent with dispute resolution theory which acknowledges the importance of dealing with the emotional and social perspectives of conflict situations in addition to the substantive event of alleged negligence. This paper proposes that a mediation model for managing open disclosure provides a structured framework for addressing both physician’s and patient's needs in dealing with adverse events. It also offers a systemic and humane approach to institutional risk management for hospitals and insurers.
The divergence of mediation practice from dominant paradigms of mediation is widely recognised. Mediation practice within the context of general civil litigation is particularly prone to diverge from the dominant theoretical notion of mediation. It is likely that the perspectives of legal participants, who are influenced by the legal world view, contribute to this divergence. Lawyer perceptions of the purpose of court-connected mediation are likely to align with the goals of the formal civil justice system.
Negotiation is a key skill for legal practice and one that offers a rich theoretical literature as well as opportunities for experiential learning. However it can be a challenging skill to teach both in the law school and law firm environment. Many teachers have limited time and resources and may be tempted to fall back on a fairly basic model for teaching negotiation skills.This paper outlines research that is showing new and innovative ways of teaching negotiation skills. While best practice is still evolving, there are a number of clear insights from work to date. Practical suggestions for class activities are offered including in areas such as observation of experts, emotional intelligence and analogical reasoning.The authors draw on their experience teaching negotiation skills both to students and practitioners. Their experience is varied, ranging from groups of 5 to 180, and includes both law school, law firm, government, corporate and non-profit clients in Australia, New Zealand, South Africa and the U.S.A. In particular, the authors draw on experiences with small group and on-line negotiation teaching with law students at the University of Melbourne and Monash University.
