In transformative mediation, the process and outcomes are self-determined. In facilitative mediation, the mediator may intervene to manage the process but will endeavour to facilitate outcomes determined by the parties. In settlement mediation, the process may be more pre-determined but there will still be some degree of voice and choice as to how the process is conducted and what information is shared. In the evaluative models, it is expected that legal or other expert issues will form part of the conversation, but it is not necessarily limited to them. In all practice models, there is some element of self-determination in the way the dispute is resolved. A particular model may be adopted because it suits the individuals involved, rather than being imposed upon them.
The degree of control that disputants have over the mediation process varies considerably in mediation practice. Some mediators facilitate preliminary negotiations about the way the mediation will be conducted. However, disputant
97 control is limited because most mediators are active in deciding the way that the mediation will be conducted.
Facilitative mediators are mediation and problem-solving experts whose main role is to facilitate a particular type of dispute resolution process. They steer discussions, interpret issues and guide the process. One of their tasks is to educate the disputants about problem-solving approaches to dispute resolution. The purpose of that task is to empower the disputants to better manage conflict, without the assistance of a mediator. In other words, although the facilitative mediator may be directive about the process of resolving the immediate dispute, the disputants may learn new skills that empower them to be more self-determining in the future.
By contrast, in transformative mediation processes, the mediator will be guided by the process preferences expressed by the clients.
Because their primary focus is content, mediators who practise the evaluative or settlement models of mediation do not necessarily prioritise disputant control over the process. The „experts‟ in the objective analysis of content, whether mediators or legal practitioners, tend to be the main participants in such mediation models,
meaning that there is little reference to the disputants‟ individual process preferences.
Unless disputants understand that they can exercise control over the mediation process itself, they will probably accede to the process imposed by the mediator or other repeat players. Where mediation involves directive rather than facilitative intervention by a mediator, Astor and Chinkin have suggested that disputants may
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„not understand that mediation should offer a degree of control over the content and outcome of their dispute that is not possible in authoritative processes.‟219
Given the inconsistency between mediation models in relation to disputant control of process, this aspect of self-determination is not treated as a generic expectation. However, the opportunity for direct disputant participation is treated as a generic feature relating to self-determination of process. This opportunity may be foregone by disputants who prefer to be represented by their lawyer. Nonetheless, the opportunity to participate directly may be extended in all mediation models.
Despite the different assumptions underlying the mediation ideologies,220 they share an assumption that people are fundamentally capable of resolving their own
conflicts.221 They also share an appreciation for the value of direct communication between humans in order to resolve conflict.222 The mediation attribute of self- determination is promoted when disputants are given a real opportunity to participate in the mediation and to contribute to decisions about content.
4.2.2 Direct disputant participation - Self-determinative process
Disputants determine the mediation process when they make decisions about the way the process will be conducted and when they are able to participate directly. As discussed above, disputant control over the process varies within the field and is therefore not treated as a universal feature here. However, the second aspect of self-
219 Astor & Chinkin (2002), above n17, 269. 220
See [3.2] above.
221 Noce, Folger and Antes (2002), above n214, 19. 222 Noce, Folger and Antes (2002), above n214, 19.
99 determination of process is direct disputant participation and this feature is promoted in all mediation processes.
The significance of direct disputant participation
Direct disputant participation promotes the disputant-centred nature of mediation and is a fundamental precursor to self-determination.223 Research findings have identified consistently that disputants value an opportunity to participate directly in
mediation.224 For example, Welsh has confirmed procedural justice assertions that mediating parties value a dignified, thorough and even-handed process, which provides them with an opportunity to speak and an assurance that they have been heard and understood.225 Sourdin‟s recent study of the Supreme and County Courts of Victoria demonstrated that 59% of the disputants surveyed in those jurisdictions (65% of plaintiffs and 47% of defendants) would have liked to participate more in their mediation.226 Delaney and Wright‟s Australian research found that the more plaintiffs felt that they had participated in the process of resolving their claim, the greater the proportion who perceived the process as fair and the more likely they were to be satisfied with the outcome.227 Bartlett found a significant correlation between the degree to which a litigant considered he or she was able to express a point of view to the other side and the degree of satisfaction derived from the mediation process.228
The medical malpractice plaintiffs interviewed by Relis all stressed the need to be seen, heard and understood by the defence in terms of what
223 Boulle (2005), above n6, 66; Sourdin (2005), above n2, 28.
224 Welsh (2001), above n36; Roselle Wissler, „Court-connected Mediation in General Civil Cases:
What We Know from Empirical Research‟ (2001-2002) 17 Ohio State Journal of Dispute Resolution 641, 685-686; Welsh (2004), above n130, 619; Relis (2009), above n72, 142, Chapter 2; Bartlett (1993), above n139; Delaney and Wright (1997), above n139, 50; Howieson (2002), above n139; Macfarlane and Keet (2005), above n140, 691-692.
225 Welsh (2004), above n137, 619. 226
Sourdin (2009), above n72.
227 Delaney and Wright (1997), above n139, 50. 228 Bartlett (1993), above n139.
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they had been through and their present situations.229 Disputants interviewed by Macfarlane and Keet in Saskatchewan also reported favourably about the early opportunity to meet face to face.230 However, they expressed some frustration with the influence of lawyers over this opportunity.231 Clearly, direct participation is valued highly by disputants.
The benefit of direct disputant participation is that disputants are encouraged to talk and negotiate directly with each other to identify their own interests, consider options and assess outcomes.232 Disputants who participate actively in mediation have an opportunity to maximise the satisfaction of their individual needs as contrasted with those who take a passive role. Active participants contribute to the setting of the agenda for discussion and can ensure that it includes all of the issues they want raised. The interests that they have expressed can be considered in the formulation and consideration of options for resolution. On the other hand, without direct input from the disputants, the likelihood that the conversation will be about external rules or expectations rather than individual interests is heightened, because the participants who are not personally involved in the dispute tend to consider and apply external standards to its resolution.
Direct disputant participation recognises the disputants as the experts in the dispute. They are the people who have been involved in the past interactions, who experience the conflict and who have a direct and personal interest in the future. They know best what will satisfy their own needs and interests. When it is compared to direct
229 Relis (2009), above n72, 142, Chapter 2. 230
Macfarlane and Keet (2005), above n140, 691.
231 Macfarlane and Keet (2005), above n140, 691-692. 232 Boulle (2005), above n6, 65.
101 negotiation between disputants, the degree of direct disputant participation in
mediation is limited by the participation of others, including mediators and legal practitioners. When disputants rely on professional representation, the professionals often take on the role of expert and contribute an „objective‟ perspective of the dispute. In mediation that is driven by legal practitioners the mediation process may provide little opportunity for direct disputant participation because the disputants are reliant on professional assistance. The impact of legal representation on self-
determination depends upon the nature of the lawyer-client relationship.
If the value of self-determination is promoted, then the opportunity for disputants to participate directly in the mediation process should be real, notwithstanding that some will prefer to rely upon professional representation. In some contexts, the potential for lawyers to dominate in mediation is avoided by excluding lawyers from the process.233 Some mediators seek to minimise reliance on professional assistance by insisting on direct disputant participation and an advisory as opposed to advocacy role for professionals.234
Qualifications to direct disputant participation
There are a number of problems with the expectation that all disputants will participate directly in mediation. The promotion of direct disputant participation without qualification ignores questions about whether particular individuals have the
233 For example, lawyers are excluded from mediation at Australian Family Relationship Centres.
Australian Government, Attorney-General‟s Department, Operational Framework for Family Relationship Centres (2007), p 11.
234 Micheline Dewdney, 'Party, Mediator and Lawyer-driven problems' (Paper presented at the 8th
National Mediation Conference: No Mediator is an Island, Hobart, 2-5 May 2006); Micheline Dewdney, Party, Mediator and Lawyer-Driven Problems and Ways of Avoiding Them (2007) LEADR <www.leadr.com.au/articles> at 25 June 2007; Ruth Charlton and Micheline Dewdney,
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capacity to participate directly, whether it is appropriate that they do and whether they want to.235 Some disputants may not have the communication skills or the intellectual or emotional capacity to present their own interests properly in
mediation. Sometimes the relationship between the disputants may be such that there is a power imbalance that may be exacerbated if the disputants negotiate directly with one another during the mediation process.236 Where disputants have engaged legal representation, they may prefer that their lawyers promote their interests on their behalf. Although self-determination may theoretically promote disputant responsibility, some disputants may prefer not to take responsibility for the resolution of their dispute.
Where it is inappropriate or undesirable for disputants to participate directly, their interests may be communicated by another person such as an advocate or legal practitioner. The extent to which the disputants contribute to the mediation process then becomes dependent upon the nature of the relationship between the
professionals and their clients. The style of representation adopted by legal practitioners who speak for their clients in mediation varies, depending upon their view of the self-determinative potential of mediation and the importance of their clients‟ subjective interests as opposed to their legal interests.
Although the degree of direct disputant participation is affected by other participants in the mediation, some degree of disputant participation is expected across all
mediation ideologies and processes.
235 Astor & Chinkin (2002), above n17, 159. 236 Astor & Chinkin (2002), above n17, 160-163.
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4.2.3 Self-determination of outcomes
Self-determined outcomes are pursued through disputants‟ input into the content of the mediation and assent to the final agreement. Disputants determine the content of mediation when they decide what is relevant to the discussion, they understand what is being said, they formulate solutions and agree to the outcomes.237 These features of mediation are maximised when mediation is focused on the individual needs and preferences of the disputants, such as in facilitative and transformative mediation. They are expected to be present in some degree in all kinds of mediation. When disputants determine the content of discussions they are treated as the experts in their own dispute. The aim is to ensure that they are committed to the outcomes of
mediation because they have formulated those outcomes themselves.238
The benefits of disputants’ contribution to content
Disputant contribution to the content of mediation may expand the range of issues that are discussed. If disputants determine the scope of discussions, they may decide that they wish to discuss matters that legal participants may not have considered relevant to the immediate dispute. For example, in a dispute between divorcing spouses, one disputant may wish to discuss the way that the other person‟s behaviour has affected them. This may not be legally relevant to the division of property
between the disputants, but communicating about it may provide psychological benefits and enable the person to focus on the pursuit of an agreement in relation to the future.
237 Boulle (2005), above n6, 65. 238 Boulle (2005), above n6, 65.
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Disputant input into the content of discussion also opens the way for some
redefinition of relationships between the parties. This may be relevant even where the parties are not expected to continue their previous relationship.
Illustrative example:
Redefinition of relationships through direct disputant participation
For example, where a personal injuries action has been brought by an employee, who will not be able to return to work, against an employer, there is no continuing
relationship. The employer may want to talk about the employee‟s work history prior to the injury, to emphasise that the employee was considered to be a dedicated and hardworking member of the workplace team. A conversation along these lines may have a cathartic benefit. It may assist in improving relationships that have broken down since the injury. An employer may feel affronted by allegations of negligence, or guilty about an injury having been suffered by an employee at work. The
employee may feel awkward about a legal claim of negligence being made against an employer with whom she or he had a productive working relationship, or may feel resentful about circumstances leading to the injury. These kinds of emotions impact on the relationships between parties to a workplace dispute and may present an obstacle to the achievement of a monetary solution unless there is a chance for these emotions to be aired.
From the legal perspective, shared by lawyers and legally trained mediators, a conversation between an employer and injured worker may be regarded as being undesirable if it is not directly relevant to the legal issues or may damage the strength of particular claims that have been made by the parties. There may be a conflict
105 between the disputants‟ desire to discuss a wide range of issues and the legal
perspective of the proper scope of negotiations.
Where disputants are active in the generation of options within mediation, they may have more commitment to the outcomes that are reached. Disputants may formulate their own solutions with the assistance of expert legal advisors or with reference to external standards. Where solutions are suggested by the mediator or by the legal practitioners who participate in mediation, then the disputants may become
somewhat distanced from the decision making process. Furthermore, where the focus is on exterior criteria for framing the issues or determining outcomes, such as in the evaluative or settlement mediation models, the extent to which disputants determine the content is limited. However, it is important to note that an eclectic mix of
mediator interventions have been found to be acceptable to disputants, provided that they perceive that the mediator‟s behaviour is procedurally fair.239
Therefore, mediators and lawyers can influence the content of mediation without necessarily impinging upon disputant self-determination.
Mediators are influential in determining how much of an opportunity disputants have to contribute to the content of the mediation discussions. In facilitative and
transformative mediation the mediator may strive to minimise his or her influence over the subject matter but will provide some assistance to the disputants in
identifying the issues between them. Mediators influence the content of mediation by making judgments about when to steer discussions in a particular direction, by interpreting the issues or otherwise making decisions based on their own
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interpretation of what has been said.240 On the other hand, a mediator who evaluates has a direct and substantial impact on the content of the dispute. Ultimately every mediator has some degree of control over the opportunity that disputants have to influence the content of the mediation.
Agreement is required for any mediated outcome
The minimum standard of self-determination of content that is achieved in mediation is that disputants must agree to any outcomes. This distinguishes mediation from determinative processes. However, there are a variety of reasons why disputants might agree to a settlement proposal. Those reasons range from free and willing agreement to reluctant acceptance of defeat, which does not prioritise self- determination.
A number of coercive pressures may be felt by disputants participating in mediation. For example, where one disputant has more effective persuasive skills, a less
confident disputant may feel coerced into agreement. Alternatively, if a legal practitioner wants his or her client to settle on particular terms, the opinion of the mediator may be sought to provide a „reality check‟ to the disputant.241
In such circumstances a disputant may be persuaded to accept a settlement offer by both the mediator and legal practitioner. Furthermore, advice from a mediator may influence a disputant‟s decision whether or not to agree to a proposed outcome. Such persuasive influence on a disputant by a lawyer or mediator promotes settlement and is efficient but does not maximise self-determination.
240 See Astor & Chinkin (2002), above n17, 151; A Taylor, „Concepts of Neutrality in Family
Mediation: Contexts, Ethics, Influence and Transformative Process‟ (1997) 14 Mediation Quarterly 215 at 228 in Spencer & Altobelli (2005), above n27, 170.
107 Coercion in mediation also compromises the procedural fairness of the mediation process (see 2.5.1 above). The Australian National Mediator Practice Standards provide that procedurally fair mediation outcomes are those that are reached by free agreement of the disputants with informed consent, that are not influenced unduly and the feasibility and practicability of which have been tested.242 Furthermore, the mediator should neither apply pressure on disputants to settle nor make a substantive decision on behalf of any participant.243
4.2.4 Self-determination in court-connected mediation
The opportunities that mediation presents for self-determination may be encouraged by mediators, but the impact is limited by the dynamics of lawyer-client
relationships. Interrogation of lawyer-client relationships provides some indication of the degree of self-determination that is achieved in court-connected mediation. At the very least, disputants have an opportunity to instruct their legal representatives and to decide with them about the degree of their participation and the content of
discussions.
Court-connected mediation carries an aura of authority, particularly where it is conducted on the court premises, the mediator is an officer of the court and the disputants‟ legal advisors control the mediation process. The consequence of this