Working with families

1
Working with families

• Is a staged mediation model appropriate for every
  occasion?
• Dr Alan Campbell
• University of South Australia
• Alan.campbell_at_unisa.edu.au

2
The structure of this presentation

• What seems to be happening in Australia?
• The traditional staged model
• Challenging assumptions in this model
• Examples from international issues
• Their applicability to family dispute resolution

3
Whats happening?

• Problem-solving (staged) approaches privileged
• National mediation standards (2007)
• Family Dispute Resolution list of competencies
• Family Law Act 1975
• Focus of training programs (LEADR Fisher Ury
  1981)

4
The traditional staged model

• A set of assumptions about the way conflict
  develops
• And how we try to resolve them
• Rational and positive approach to resolution of
  conflict
• Assumes that people require strong facilitation
  from a third party

5
Challenging assumptions

• Staged model sometimes insufficient
• Role of interpersonal relationships
• Literature suggests that other conflict
  resolution approaches can be more effective
• Assumptions need challenging

6
Assumption Mediation is a staged, linear process

• Described by many authors
• Haynes (1994) Boulle (1996) Folberg Taylor,
  1984)
• Doesnt suit all cases or conflicts (Chau, 2007)
• Often circular rather than linear
• Sometimes inappropriate to directly confront the
  conflict (Hassall, 2005 Pirie, 2000)
• Often can take days or weeks to complete, moving
  back and forth between stages

7
Examples

• Conflict between Papua New Guinea and
  Bougainville
• lots of meetings
• Often unrelated discussions (Sirivi, 2000)
• Israel and Egypt, 1970s
• Series of meetings
• Different locations (Ayres, 1997)

8
Time and the staged process

• Readiness to resolve
• The ripe moment
• Positive spokespeople (champions)
• Plan for resolution (Salla, 1997)
• Example
• Bougainville war weariness (Ride, 1999) new
  PM (Sirivi, 2000) plan developed (Regan, 2002)

9
Implications for FDR practitioners

• Staged linear approach less effective than a more
  free approach when
• The issues are unclear or complicated
• The participants do not think in staged linear
  ways
• Events leading up to the conflict are
  multidimensional
• Greater emphasis on being heard than on resolving
  the issues

10
Rational and non-emotive?

• Fisher Brandon (2002) Folberg Taylor (1984)
• Strong emotion leads to distress (Fisher
  Brandon, 2002, p. 94)
• Mediator impartiality involves responding to
  strong emotion in a neutral manner (Barsky,
  2007)

11
Challenges to this assumption

• In some cultures and families, emotional
  expression (anger, shame) may not involve threat
• Simply an approach to being heard (Ayres, 1997
  NADRAC, 2006)
• Attempts to control it can render mediation
  ineffective (Brigg, 2003)

12
Example

• Upon their return to their villages, many
  Bougainvillean warriors were exposed to shaming
  tactics
• Goal to disarm young people who had shunned
  their village and family responsibilities to go
  and fight

13
Pride

• Jameson et al (2006, p. 204) argue that this
  emotion can signal feelings of self-worth or
  self-esteem
• So its positive
• But in some cultures, the expression of pride is
  perceived as wilful and disrespectful of family
  and community
• Mediators are expected to chastise participants
  who express pride

14
Implications for FDR practitioners

• In some situations mediators might
• Encourage the expression of strong emotion rather
  than manage it
• Or, for some (individualised) emotions, they
  might actively discourage their expression
• Overall, we need to understand the role of
  emotions in different contexts

15

• Assumption Mediation is concerned with the
  present and future not the past

16

• This assumption is argued by Haynes (1994) and
  Brandon Robertson (2007)
• The arguments
• Mediator as facilitator, not determiner of
  facts
• A focus on the past will escalate the conflict
• We cant change the past, so its inappropriate
  to discuss it

17
Challenges to this assumption

• Time required to hear each others story
• Difficult to move on without it
• Forgiveness can be an essential element
• Acknowledgement of transgressions
• (Finkel, Rusbult, Kumashiro Hannon, 2002)

18
Examples

• Bougainville peace making
• Ceremonies at the village level
• Included forgiveness for those whod committed
  murder (Howley, 2002 Maclellan, 2004)
• Admission of wrongdoing as powerful as
  forgiveness (Menkel-Meadow, 2004)
• Indigenous Australians
• Often impossible to separate past from current
  conflict (NADRAC, 2006)

19
Workplace, commercial family Implications

• Often essential to address the past in some way
  admissions and forgiveness
• If not done, conflict may become buried and
  remain hidden
• So difficult to resolve entrenched
• Considering the past as irrelevant can sometimes
  increase the conflict, not resolve it

20

• Assumption Mediators role is to attend to
  substantive issues, not underlying relationship
  difficulties

21

• In some texts, the relationship is paid lip
  service but not addressed in detail (e.g.,
  Fisher Brandon, 2002 Haynes, 1994 Folberg
  Taylor, 1984 Boulle, 1996)
• Suggests that focus on substantive issues is more
  appropriate
• Significantly outcomes (agreement) focused

22
Challenges to this assumption

• Relationships are at the core of every conflict
• Once conflict is resolved, the participants will
  often still have some sort of relationship
• Literature better outcomes can be achieved with
  due attention to relationship issues

23
Examples

• Bougainville
• Delegates from PNG and Bougainville met together
  at Lincoln in New Zealand
• Focus on getting to know each other
• Cultural events and visits
• Informal discussions

24

• China
• Ones duty to others and positive moral codes
  essential in resolution
• Attitudes towards others related to quality
  outcomes (Chau, 2007)

25

• Ayres (1997)
• Studied 3 international conflicts 1973 -1985,
  analysing leaders speeches
• Positive outcomes to the conflicts related to
  leaders perceptions of their adversaries
• When these perceptions changed publicly, towards
  positive portrayals, outcomes were significantly
  more positive

26

• Hassall (2005)
• Concludes that across the Pacific, mediation is
  embedded in traditional conflict resolution
  approaches
• Focus on relationship building, reparation and
  maintenance

27
Workplace, commercial family Implications

• Need to explore participants commitment to
  relationship
• And to work towards improving the current state
  of relationships
• Separate from focusing on outcome
• This means
• Centralising the relationship as a topic
• Exploring the meanings of relationships
• And the participants hopes for the future

28

• Assumption The mediators role is to demonstrate
  neutrality and impartiality

29

• Fisher Brandon (2002) argue that neutrality
  may not be fully possible
• Own values, beliefs, understandings
• Barsky (2007) neutral no pre-existing biases,
  decision-making authority, stake in the outcome,
  or towards a specific participant

30
Challenge Is this always possible/advisable?

• Mainland Chinese disputants
• receive assistance from revered elders/authority
  figures
• personal decision-making not acceptable
• Want direction
• Some cultures dont prize mediator neutrality
• Expect their participation (Pirie 2000)
• Expect direct interest in the outcome (Kelly,
  2002)

31
Workplace, commercial family Implications

• Sometimes, it may be appropriate for mediators to
  take a more active role in developing resolutions
  to conflicts
• Suggesting options
• Actively helping participants evaluate options

32

• Assumption Mediation is a strictly confidential
  process

33

• Australian National Mediator Standards (2007, p.
  9)
• In general, A mediator should respect the
  confidentiality of the participants.
• Douglas Maier (1994, p. 34)
• Essential for mediators to convey to the parties
  that whatever is told to them will be held in
  strictest confidence.

34
Challenges to this assumption

• Collectivist cultures
• Often essential for discussions to be available
  to those not in attendance
• Fiji
• Mediation often conducted in a social
  environment
• Family members, neighbours, colleagues (Pirie,
  2000, p. 56)
• Indigenous Australia
• Diverse groups in attendance (NADRAC, 2006)

35

• In these circumstances
• Waive of the strict confidentiality clause in
  favour of inclusivity
• Honouring contributions from many people in
  resolving the conflict

36
Workplace, commercial family Implications

• Families often cant decide without consulting
  with others
• Workplace often need the input of specific
  decision-makers (line managers, employees)
• Commercial shareholders, directors

37
Conclusions

• Problem-solving mediation approach has limits
• Need to consider
• Preservation of relationship
• The ripe moment
• Circular and unclear processes
• The effects of time and place
• Decision-making authority and experience

38
Ways forward

• How might mediation depart from the linear staged
  model?
• How might a mediator work differently to honour
  participants diverse needs and expectations?
• How might we include the expression of emotion in
  our work?
• How do we move to address relationship issues
  more effectively?

39
References

• Ayres, RW, 1997, Mediating international
  conflicts Is image change necessary? Journal of
  Peace Research, vol. 34, no. 4, pp. 431-447.
• Barsky, AE, 2007, Conflict resolution for the
  helping professions, 2nd edn, Thomson
  Brooks/Cole, Belmont, CA, USA.
• Boulle, L, 1996, Mediation Principles, process,
  practice, Butterworths, North Ryde, NSW.
• Brandon, M Robertson, L, 2007, Conflict dispute
  resolution A guide for practitioners, Oxford
  University Press, Melbourne.
• Brigg, M, 2003, Mediation, culture and power
  difference, Conflict Resolution Quarterly, vol.
  20, no. 3, pp. 287-306.
• Bush, RAB Folger, JP, 1994, The promise of
  mediation Responding to conflict through
  empowerment and recognition, Jossey-Bass, San
  Francisco.
• Chau, KW, 2007, Insight into resolving
  construction disputes by mediation/adjudication
  in Hong Kong, Journal of Professional Issues in
  Engineering Education and Practice, vol. 133, no.
  2, pp. 143-147.

40

• Douglas, JM Maier, LJ, 1994, Bringing the
  parties apart, Dispute Resolution Journal, vol.
  49, no. 3, pp. 29-37.
• Finkel, EJ, Rusbult, CE, Kumashiro, M Hannon,
  PA, 2002, Dealing with betrayal in close
  relationships Does commitment promote
  forgiveness? Journal of Personality and Social
  Psychology, vol. 82, no. 6, pp. 956-974.
• Fisher, L Brandon, M, 2002, Mediating with
  families Making the difference, Pearson
  Education, Frenchs Forest, NSW.
• Fisher, R Ury, W, 1981, Getting to yes
  Negotiating agreements without giving in,
  Penguin, Harmondsworth, UK.
• Folberg, J Taylor, A, 1984, Mediation A
  comprehensive guide to resolving conflicts
  without litigation, Jossey-Bass, San Francisco,
  USA.
• Hassall, G, 2005, Alternative dispute resolution
  in Pacific Island countries, Journal of South
  Pacific Law, vol. 9, no. 2, viewed 27 May 2008,
  http//www.paclii.org/journals/fJSPL/vol09no2/4.sh
  tml

41

• Haynes, JM, 1994, The fundamentals of family
  mediation, State University of New York Press,
  New York, USA.
• Howley, P, 2002 Breaking spears and mending
  hearts, Zed Books, London.
• Jameson, JK, Bodtker, AM Jones, TS, 2006, Like
  talking to a brick wall Implications of emotion
  metaphors for mediation practice, Negotiation
  Journal, vol. 22, no. 2, pp. 199-207.
• Kelly, L, 2002, Mediation in Aboriginal
  communities Familiar dilemmas, fresh
  developments, Indigenous Law Bulletin, vol. 4,
  viewed 2 June 2008, http//www.austlii.edu.au/au/j
  ournals/ILB/2002/4.html
• LEADR Association of Dispute Resolvers, n.d.,
  Training, viewed 5 June 2008, http//www.leadr.com
  .au/training.htm

42

• Maclellan, N. (2004). Regional introduction
  Creating peace in the Pacific conflict
  resolution, reconciliation, and restorative
  justice. In A. Heijmans, N. Simmonds H. van de
  Veen (Eds.), Searching for peace in Asia Pacific
  An overview of conflict prevention and
  peacebuilding activities. Boulder, Co. Lynne
  Reinner Publishers.
• Menkel-Meadow, C, 2004, Remembrance of things
  past? The relationship of past to future in
  pursuing justice in mediation, Cardozo Journal
  of Conflict Resolution, vol. 5, pp. 97-115.
• National Alternative Dispute Resolution Advisory
  Council (NADRAC), 2006, Indigenous dispute
  resolution and conflict management, NADRAC,
  Canberra, ACT.
• Pirie, B, 2000, The complexity of ethnic
  conflict in Fiji Finding effective
  interventions, Development Bulletin, vol. 53,
  53-57.
• Regan, AJ 2002 The Bougainville political
  settlement and the prospects for sustainable
  peace, Pacific Economic Bulletin, vol. 17, no.
  1, pp. 114-129.

43

• Ride, A, 1999, The rebel peace New
  Internationalist, Issue 311, viewed 4 December
  2007, http//www.newint.org/features/1999/01/png
• Salla, ME, 1997, Creating the ripe moment in
  the East Timor conflict, Journal of Peace
  Research, vol. 34, no. 4, pp. 449-466.
• Sirivi, JT, 2000 (April 27), Indigenous wisdom on
  peace-making and peace-building How to make
  peace in post-colonial conflicts, Paper presented
  at the Justice Conference, Auckland, New Zealand.