Dispute Resolution Processes - Dispute Resolution Associates

Mar

International Attitudes and Arbitration

Categories: Arbitration

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As Australia is a “multicultural” society we tend to take for granted that we know about other cultures and are sensitive to their circumstances. We have a sureness that we treat other nationalities fairly and respectfully. Even more so perhaps, when we are are international experts who are required in our roles as dispute resolvers to communicate with clarity and project understanding. But then we all make mistakes.

At an arbitration in Australia recently, an Asian investor in Australian resources quietly retrieved his business card that he had “presented” to his Australian counterpart. After the arbitration had concluded, the Asian investor noted his card had been left behind on the table when the Australian had left. Although the participants at this arbitration may never meet again, they might well do so. What attitude will this Asian businessman and investor in Australian development take away from this arbitration? And what was the Australian manger thinking? Was he just culturally unaware of the significance of being presented with someones name card or was he wishing to show disrespect? Whatever the reason, that cultural slight and insensitivity will set the tone for their future relationship.

This photo of International Monetary Fund Managing Director Michel Camdessus was taken when he flew in from Washington to sign a new loan agreement at President Suharto’s residence on January 15, 1998. As Camdessus tells it, he was surprised to find only one chair at the podium in the glassed-in visitor’s parlor reserved for Suharto, so he had to stand.

As the cameras flashed and Suharto signed, Camdessus stood over the President, his arms folded across his chest like a reproving schoolmaster. It was a public-relations disaster. The clear impression in Indonesia, was that their President had been coerced into signing his acceptance of the latest list of 50 IMF demands. It was an insult both to the national pride and to President Suharto personally.

Photos of USA President Barack Obama’s low bow befitting a person of subservient status to Japan’s emperor incensed Americans who felt that their leader should stand tall when representing America overseas.

President Obama was branded the ‘Groveller-in-Chief’ for giving an exaggerated bow to emperor Akihito – the son of the Japanese ruler emperor Hirohito who authorised the 1941 attack on Pearl Harbour.

Wartime scars are still raw for many Americans as is what they perceive to be the loss of their status as a world power. The President’s bow may have met with Japanese protocol but communicated a powerful message of the powerlessness of their President to many.

None of the international experts at ACICA (the Australian Centre for International Commercial Arbitratrion) noticed anything wrong with publishing this photo in their own March 2013 Newsletter, which was prominently displayed on the ACICA website. Clearly it is an error and the photo has been reversed in the printing but it is more amazing that none of their culturally sensitive international experts noticed.

One can only hope they have not sent a copy to the President of the Committee for Conciliation and Arbitration and Board Member of the Qatar Chamber, his Excellency Abdulrahman Abduljaleel Abdulghani. Shaking hands with the left hand is widely regarded as an insult for Muslims who traditionally use the left hand for personal hygiene.

Nov

The Great Barrier Reef World Heritage Area, Port Developments and Shipping Superhighways Part 3: Legal Rights, Power and Conflict Resolution

Categories: Environment, Mediation

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This is the final part of a three part series of articles by Dr Ted Christie focussing on the environmental issues involved in recent development proposals affecting the Great Barrier Reef. Dr Christie is a barrister and environmental scientist with a keen interest in the use of dispute resolution processes to facilitate the cooperative selection of best outcomes for Australia.

Over 1,000 people marched in Brisbane to raise awareness of new and emerging threats to the GBR (25 August 2013)

The evaluation by the International Union for the Conservation of Nature and Natural Resources for the inclusion of the Great Barrier Reef in the World Heritage List in 1981, stated “… if only one coral reef site in the world were to be chosen for the World Heritage List, the Great Barrier Reef is the site to be chosen”. UNESCO World Heritage Committee

A pre-condition for resolving public interest environmental conflicts is to ensure that structural conflicts do not limit effective public participation. Structural conflicts arise when an imbalance of power exists. Affected community interests – such as conservation, Indigenous, local and scientific interests – may not have an adequate basis of power to participate effectively in conflict resolution compared to development interests.

A good example of a structural conflict and power imbalance for a public interest environmental conflict – coal seam gas developments in Queensland – was clearly identified in the observations made by ABC-TV journalist, Pip Courtney, at the Commonwealth Senate Inquiry at Roma in July 2011:

“Farmers feel that when it comes to them versus the coal seam gas companies the power resides with the gas companies. The Councils feel that the gas companies have the power. And farmers feel that when you take the environment into account that the gas companies have the power there.”

How can people power be mobilized to enable the community to be meaningfully involved in resolving conflict over the future use of the GBRWH Area? Clearly, the development sector has advantages in “financial and resources power”; this can be applied in many directions – scientific experts, environmental consultants, lawyers, media advertising, lobbyists and so on. But, what other sources of power are available to the community to offset any imbalance of power that would makes them vulnerable to the power of the development sector?

The focus of people power at the Brisbane rally was almost exclusively “knowledge power of scientific issues”: The potential adverse environmental impacts in the GBRWH Area from proposed developments. Far less attention was given to the role of the law, environmental approvals under GBRWH Area legislation and justice. There are good reasons for this.

A distinguishing feature of government today is the very wide powers it has to make environmental decisions under complex and expansive legislation created by parliament: But, issues in statutory interpretation of scientific terms and concepts in legislation arise for the decision-maker- together with difficulties the community has in understanding their rights and duties under the law.

Regulatory control and administrative decision-making for the conservation and management of the 348,000 square kilometres GBRWH Area is achieved through a maze of complex and overlapping Federal and Queensland GBRWH Area legislation – as well as diverse marine legislation.

“Knowledge power of legal rights and duties” in Federal and Queensland GBRWH Area legislation needs to be recognized as an additional source of power to complement and strengthen the community’s “knowledge power of scientific issues”. The boundaries for the relevant scientific evidence and information for decision-making are set by questions of law that are prescribed in the relevant Federal and Queensland GBRWH Area legislation.

The Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the cornerstone for decision-making to avoid inappropriate development of Australia’s World Heritage properties. Under the EPBC Act, “an action” that has, or will have, or is likely to have a significant impact on a matter of national environmental significance” requires approval from the Federal Government; the standard of proof varies across three broad alternatives, varying from the “balance of probabilities” to a “real chance”. A Ministerial decision determines whether assessment and approval is required under the EPBC Act.

Two of the nine “matters of national environmental significance” now protected under the EPBC Act are “World Heritage properties” and the “Great Barrier Reef Marine Park”. An action that has, will have, or is likely to have a significant impact on World Heritage values may take place inside – or outside – the defined boundaries of the GBR Marine Park. A potential source for a significant impact on World Heritage values may be the approval of LNG developments or proposed port developments and associated port infrastructure as raised by the UNESCO World Heritage Committee; plans of management and zoning plans made under GBR Marine Park legislation are another.

The regulatory framework under the EPBC Act prescribes the “General Principles for Management of Australian World Heritage”. Numerous and diverse elements must be evaluated as part of the decision-making process: “The primary purpose… must be, in accordance with Australia’s obligations under the World Heritage Convention, to identify, protect, conserve, present, transmit to future generations and, if appropriate, rehabilitate the World Heritage values of the property” [Schedule 5, Environment Protection and Biodiversity Conservation Regulation 2000 (Cth)].

The Commonwealth’s Great Barrier Reef Marine Park Act 1975 (GBRMP Act) has three objects. The main object is to provide for the long-term protection and conservation of the environment, biodiversity and heritage values of the Great Barrier Reef Region. The statutory object extends to assist in meeting Australia’s international responsibilities in relation to the protection of world heritage, “especially Australia’s responsibilities under the World Heritage Convention” [at section 2A].

In order to achieve the objects of the GBRMP Act, the Act prescribes a number of decision-making functions for the GBRMP Authority; these include the preparation of plans of management and zoning plans [at section 2A(3)].

In doing so, the GBRMP Act requires the Authority to manage the Marine Park and to perform its other functions in accordance with the following matters: The decision-maker must act in a way that is consistent with the objects of the GBRMP Act; and the principles of ecologically sustainable use; and the protection of the world heritage values of the GBRWH Area. However, the GBRMP Act provides the decision-maker with the discretion to determine what weight they will place on each of these three prescribed matters after they have been considered [Section 7(3)].

In effect, the GBRMP Act imposes a “public duty” on the decision-maker in relation to these three prescribed matters. A public duty is simply a duty of a public body, which is prescriptive in nature that arises in public law. The primary source of public duties is legislation. Enforcement of the performance of a public duty is by way of a judicial review of the original decision.

The GBRMP Act prescribes a collaborative approach of shared responsibility for the management of the GBRWH Area between the GBRMP Authority and the Queensland Government [Section 2A(3)]. Queensland is responsible for managing the Reef and the GBR Coast Marine Park – a State marine park established under Queensland’s Marine Parks Act 2004 (MP Act) that runs the full length of the GBR Marine Park.

The GBR Coast Marine Park and Zoning Plan commenced on 5 November 2004. The GBR Coast Marine Park complements the GBR Marine Park through adopting similar zone objectives, and entry and use provisions as the Commonwealth’s legislation. While the activities that can be carried out within the GBR Coast Marine Park and GBR Marine Park are generally the same, there are some Queensland-specific provisions that may apply. One significant difference is the “Offences” provision in Queensland’s MP Act.

The MP Act has adopted the environmental harm regulatory approach of Queensland’s environmental protection legislation. “Serious environmental harm” is defined [at section 51(4)(b)] “for a marine park that is a highly protected area, an area of high conservation value or special significance—actual or potential harm to the area’s environment or use and non-use values”.

The inclusion of use and non-use values as an environmental offence is a first for Australian legislation. The MP Act defines “use and non-use values” (Schedule, Dictionary) to include: using, visiting or viewing the park’s natural/cultural resources, the park’s potential future use or benefit, the mere existence of the park’s natural/cultural resources and the use or non-use of the park’s natural/cultural resources for future generations.

What are the implications of use and non-use values for determining total liability for natural resource damage to the GBRWH area – should a human-made natural disaster causing serious environmental harm ever occur? Liability for damage to the GBRWH Area that resulted from serious environmental harm would not be restricted to clean-up costs and losses to the Queensland economy e.g. losses in tourist and fishing revenue. Extending legal liability for natural resource damage, to include use and non-use values, first arose in 1989 following a major oil spill when the supertanker, the Exxon Valdez, ran aground in Prince William Sound, Alaska.

Many Australians may not have visited the GBRWH Area, but still may derive value from knowing that a World Heritage property of such global significance was protected. Should serious environmental harm ever occur to the World Heritage values of the GBRWH Area, the loss for all Australians of “a highly protected area or an area of high conservation value” would also require an estimate of the loss in use and non-use values. The economic methodology for calculating use and non-use values exists and been applied by US Courts for assessing total liability for natural resource damages.

It should be recognized that there is also common ground between the three statutes in some additional legal obligations imposed on decision-makers – legal obligations that form the basis for achieving co-existence between competing development and environment interests in the GBRWH Area; in particular, the prescribed legal obligations for “ecological sustainability” and public participation.

The dilemma for affected community interests and development interests and the future use of the GBRWH Area is deciding on a pathway for the most effective use of knowledge power of legal rights and duties?

Litigation is one pathway. But, litigation is not a dispute resolution process; litigation through courts settles disputes. Judges settle questions of law in order to decide the ultimate issue and then impose a binding decision on the parties. Should litigation not reconcile the underlying causes of conflict for the future use of the GBRWH Area, issues in dispute may persist as a source of resentment – only to later re-emerge and lead to further conflict.

An alternative pathway is to have an effective public participation process that incorporates ADR, interest-based negotiation and consensus-building. Contemporary approaches for resolving environmental conflicts over ecological sustainability focus on joint fact-finding and problem-solving together with shared responsibility for decision-making, by affected development and environment interests. Decision-making in these circumstances facilitates trust-building with government, as power is shared to find a solution for the conflict — a solution which the parties would share in a sense of ownership.

Knowledge power of key legal rights and duties in GBRWH Area legislation, together with knowledge power of scientific evidence, is the foundation for affected environment interests to offset a potential power imbalance with development interests.

Strategic use of knowledge power to balance power between competing development and environment interests does not necessarily mean more litigation over the future use of the GBRWH Area. Rather, it acts as a pathway to facilitate effective public participation and to resolve conflict. Achieving co-existence between multiple uses in the GBRWH Area and finding ecologically sustainable solutions are its goals.

Where power is balanced, an ecologically sustainable solution ensures that environmental costs and economic benefits are not shared disproportionately between the community, industry and government.

Dr Ted Christie is an environmental lawyer, nationally accredited mediator and an environmental scientist. He specializes in alternative dispute resolution processes for finding sustainable solutions for environmental conflicts where divergent expert scientific opinion prevails. He is based in Brisbane, Queensland.

Nov

The Great Barrier Reef World Heritage Area, Port Developments and Shipping Superhighways Part 2: Public Participation, ADR Processes and Conflict Resolution

Categories: ADR, Environment, Mediation

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This is the second of a three part series of articles by Dr Ted Christie focussing on the environmental issues involved in recent development proposals affecting the Great Barrier Reef. Dr Christie is a barrister and environmental scientist with a keen interest in the use of dispute resolution processes to facilitate the cooperative selection of best outcomes for Australia.

Over 1,000 people marched in Brisbane to raise awareness of new and emerging threats to the GBR (25 August 2013)

The Brisbane rally was the first stage – the ignition stage – in the development of a public interest environmental conflict. The rally relied on the long-standing tactic of people power: A non-violent, direct action environmental protest to ignite public awareness on the Development v Environment issues in the GBRWH Area. This tactic, together with the ongoing use of social media, can act as a trigger for government to respond by taking some form of action for environmental management to maintain public confidence in government.

Public conscience was excited at the rally. But, this alone, may not be sufficient to make government respond? There may be an inbuilt inertia by government to stall in the hope that public opinion was a passing scare that would go away if ignored. Public opinion needs to be raised to a “temperature” before government reacts to people power.

The second stage in the development of an environmental conflict — conflict assessment and management — would be reached when it became clear to government that people power had become galvanised, as citizens and lobby groups directly affected by the issues united to increase pressure on government to deliver greater protection for the GBRWH Area. To neutralise public opinion, the action generally taken by government is to have information conflicts over proposed developments in the GBRWH Area assessed to determine how real and serious the environmental impacts might be.

Where the environmental issues are very controversial, complex or awkward, the usual action taken by government is to set up a public participation process: The most common pathways adopted are a Commission of Inquiry or a community consultation/ engagement process. These processes become the foundation for decision-making by government.

The participants involved in any public participation process must be able to emerge with a sense of gain in the outcome and secure in the knowledge that their submissions had been properly taken into account by government. A situation that must be avoided is for the outcomes from these public participation processes to be seen to erode public trust and confidence in government. But, therein lays an inherent problem with both of these processes.

The final decision following a Commission of Inquiry is a political one. Government has the discretion for the weight it will give in its decision-making processes to the recommendations handed down by a Commission of Inquiry; government may selectively adopt the recommendations it will implement.

Unless there is a statutory requirement for government to be bound by the outcome of a community consultation/engagement process, there is no legal basis for the public submissions received, or the conclusions made following consultation/engagement, to be accepted, or taken into account to any particular degree by government. A legislative obligation to consult is not necessarily an obligation to agree.

But there is an alternative to both of these processes, based on contemporary approaches for resolving environmental conflicts. It would avoid problems of possible erosion of public trust and confidence in government following public participation.

Public participation implies an element of joint analysis and control over decisions and their implementation; joint problem-solving together with shared responsibility for decision-making are central features. Where public participation incorporates ADR processes, interest-based negotiation and consensus-building as part of the decision-making process, trust-building with government would be facilitated. A public participation process needs to be seen as transparent and responsive to the needs and concerns of the participants. If the participants have a sense of ownership in the solution, implementation will be enhanced.

To achieve these goals in public participation, a range of ADR processes can be used to resolve any public interest environmental conflict – commencing with conflict assessment. Conflict assessment is a well-established procedure used to evaluate, amongst other things, whether there would be a reasonable likelihood of resolving the GBRWH Area conflict by negotiation and to identify any structural conflicts over public participation.

The benefits of conflict assessment include: the identification of all affected development and environment interests to be involved in the public participation process, as well as their willingness to negotiate in good faith; consolidation of relevant development and environment interests into coalitions (or groups) having similar needs or concerns (“interests”) for the use of the GBRWH Area; and the scoping of common ground and issues in dispute.

North American experience suggests public interest decision-making requires participants having competing interests, ideally, to have characteristics such as: integrity, so that politicians are happy to interact with them; reasonableness by being aware of the reality of limits to political action; and for the public interest to be adequately represented by the specific participants involved in resolving the conflict.

The ADR process used for conflict assessment is “facilitative mediation”. The dispute resolver has no advisory or determinative role. Instead, the role is to conduct the mediation, maintain a constructive dialogue between the participants and to enhance negotiation efforts in the scoping of issues.

Conflict assessment is followed by conflict management, the goal of which is to resolve information conflicts over scientific information and data for the future use of the GBRWH Area. This requires scientific conclusions that are both relevant and reliable. The pathway for achieving this goal is the scientific round-table, a joint fact-finding strategy based on the ADR process of “independent expert appraisal”. The dispute resolver must have ADR process skills as well as expertise in the scientific subject matter of the conflict.

The representatives at the scientific round-table are scientific professionals representing affected development and environment interests identified in the conflict assessment. A key objective of the scientific round-table is for the scientific experts to reach consensus on scientific issues in dispute. Where consensus cannot be reached on any issue, the dispute resolver provides a non-binding opinion in order to facilitate the scientific round-table experts to reach consensus on the disputed issue. The final task of the dispute resolver is to prepare a summary of outcomes from the scientific round-table, which become the foundation for conflict resolution.

Mathematical (or predictive) computer models will almost certainly be part of the scientific evidence relied on to resolve information conflicts over the future use of the GBRWH Area. Science has long recognized that models may be of varying accuracy and reliability. This has led to the cryptic comment that the main advantage of the computer for modelling is to get the wrong answer a lot more quickly.

Part of the reason for this problem that I have continued to observe from long and direct involvement in public interest environmental conflicts – Commissions of Inquiry, litigation and ADR – is that where competing development and environment interests undertake their own computer modelling separately, using their own assumptions, they invariably come up with different answers.

But this outcome can be avoided! If computer modelling is used as a decision-making aid to resolve environmental conflicts, the prudent course for development and environment interests to take is one of shared responsibility: By reaching mutual agreement on the underlying assumptions of the model on which projections over time are based – as well as the scientific database used to construct the model. The scientific round-table could fulfil this role for the GBRWH Area conflict. A collaborative approach to joint fact-finding and problem-solving is an element of ADR and negotiation – but not litigation conducted in our courts.

Conflict resolution is the third and final stage in the development of an environmental conflict. It involves multi-party round-table negotiations and joint problem-solving. The round-table participants are a representative from affected development and environment interests identified in the conflict assessment – and a representative of the government agency that must make the administrative decision.

The ADR process used is “evaluative mediation”. The dispute resolver has an active advisory role in providing suggestions or recommendations on how the conflict could be resolved to enable the round-table participants find their own solution by consensus. Where the negotiated agreement needs to take into account legislative obligations, the dispute resolver must have subject matter expertise in the law, as well as ADR process skills and scientific subject matter.

The joint problem-solving approach to resolve environmental conflicts is structured on two fundamental elements of “principled negotiation”: Interest-based negotiation and creating a number of options for mutual gain. The interest-based approach to negotiation in multi-party environmental conflicts requires agreement to be reached by consensus.

The opportunity, today, for the community to participate in public interest environmental conflicts are now very much a global norm. Public participation processes exist in a number of forms. The dilemma for affected development and environment interests is to be meaningfully involved in conflict resolution. This is dependent on the level of power the competing interests have in shaping or determining the outcome – as well as the extent power is balanced between those holding development and environment interests.

Oct

The Great Barrier Reef World Heritage Area, Port Developments and Shipping Superhighways Part 1: Multiple Uses and the Great Barrier Reef – Conflict or Co-existence?

Categories: Dispute Resolution Processes, Environment, Mediation

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This is the first of a three part series of articles by Dr Ted Christie focussing on the environmental issues involved in recent development proposals affecting the Great Barrier Reef. Dr Christie is a barrister and environmental scientist with a keen interest in the use of dispute resolution processes to facilitate the cooperative selection of best outcomes for Australia.

Over 1,000 people marched in Brisbane to raise awareness of new and emerging threats to the GBR (25 August 2013)

The Great Barrier Reef World Heritage Area (GBRWH Area) was the first Australian property nominated for inclusion in the World Heritage List. It was inscribed as a World Heritage natural property in 1981. It has an area of around 348,000 square kilometres. The reef is 3,000 km long, stretching along the coast of Queensland from near Bundaberg, to beyond the tip of Cape York. The Great Barrier Reef is the world’s most extensive coral reef ecosystem, having the world’s largest collection of coral reefs. There are around 2,500 individual reefs of varying sizes and shapes, 400 types of coral – as well as 4,000 types of molluscs, a great diversity of sponges, anemones, marine worms, crustaceans and 1,500 species of fish.

The GBRWH Area stretches from the low water mark along the mainland coast up to 250 kilometres offshore. This wide depth range includes vast shallow inshore areas, mid-shelf and outer reefs, and beyond the continental shelf to oceanic waters over 2,000 metres deep. The GBR Marine Park occupies about 99% of the GBRWH Area; the 1% balance remaining includes over 900 islands, narrow inlets or channels between islands, Queensland waters around major ports and intertidal areas protected by Queensland legislation

The global significance of the GBRWH Area is not simply because it provides some of the most spectacular scenery on earth – or that it has exceptional natural beauty. It is also a natural heritage property that the UNESCO World Heritage Committee concluded had “outstanding universal value” and that “no other World Heritage property contains such biodiversity”.

The GBR nomination met all four criteria for listing, as then defined in the World Heritage Convention, for a “natural property” to have “outstanding universal value”. The GBR nomination also met the Convention’s “condition of integrity” criteria as it included the areas of the sea adjacent to the reef. The World Heritage Convention only required a “natural property” to meet at least one of the four prescribed criteria to be considered for inclusion in the World Heritage List.

Federal and State legislation enables the GBRWH Area to be managed as a multiple-use area. Existing uses vary across a diverse range of activities. Commercial marine tourism provides significant economic and employment benefits for regional Queensland. The Great Barrier Reef Marine Park Authority reported visitation to the entire GBR Marine Park was approximately 1.99 million visitor days in 2012. Other commercial uses include fishing and shipping activity. Key non-commercial uses include recreation (e.g. boating, fishing and diving), scientific research and defence training. The GBRWH Area is central to the culture of Indigenous people. Also, the Commonwealth legislative framework for protecting World Heritage values imposes a legal obligation “recognising and promoting indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity”.

Concerns for the need to protect the reef from potential new environmental hazards along the coastline of Queensland, led to a major people power rally in Brisbane in August 2013. The rally acted as a trigger to stimulate wider public debate by heightening awareness of the nature of the controversy over proposed developments in the GBRWH Area and the Development v Environment issues in dispute.

Concern at the rally reflected potential risk to the natural heritage and environmental values of the GBRWH Area arising from widespread and significant industrial developments along Queensland’s coastline related to coal and LNG industries. The world’s largest coal port is proposed to be built at Abbot Point, 50 km from the Whitsunday Islands.

Dredging of ports and disposal of dredge spoil back into GBRWH waters was identified as one potential hazard to ecological health and the “outstanding universal value” of the GBRWH Area. Another potential environmental hazard was the projected increase in shipping activity; the GBRWH Area is a vital link in the production chain for many export-based industries. Claims projecting a doubling in current ship numbers – when “over 7,000 bulk carriers will crisscross the Reef every year” – have given rise to concerns over the potential for collisions or spills in the GBRWH Area.

How real are the concerns for the future use of the GBRWH Area raised by people power at the Brisbane rally? Are the natural heritage and environmental values of the GBRWH Area under potential threat from industrial developments along Queensland’s coastline and shipping? The position of the UNESCO World Heritage Committee provides some insight into these issues.

In 2011, the World Heritage Committee expressed concern over the GBRWH Area following the approval of LNG developments at Curtis Island near Gladstone. Later, in 2012, the World Heritage Committee identified a need for measures to manage impacts on the reef to ensure the conservation of the outstanding universal value of the GBRWH Area; in 2013, the concern raised was whether proposed port developments, or associated port infrastructure, may impact on the characteristics which determined the inscription of the Great Barrier Reef in the World Heritage List – or that may compromise a long-term plan for the sustainable development of the GBRWH Area.

A request was then made by the World Heritage Committee for the Federal Government to provide an updated report on the state of conservation of the GBRWH Area by 1 February 2014 “with a view to considering, in the absence of substantial progress, the inscription of the property on the List of World Heritage in Danger”. None of Australia’s 19 World Heritage properties have ever been inscribed on the “List of World Heritage in Danger”. So, what is the significance of this request made by the World Heritage Committee?

The World Heritage Committee undertakes regular reviews of the state of conservation of properties that have been inscribed on the List of World Heritage in Danger; danger may take the form of either “ascertained danger” or “potential danger”. If the GBRWH Area were to be inscribed on the “List of World Heritage in Danger” then, on the basis of regular reviews, the World Heritage Committee may consider whether to delete it from both the List of World Heritage in Danger and the World Heritage List: The circumstances for this to arise would be if the GBRWH Area had deteriorated to the extent that it has lost those characteristics which determined its inscription in the World Heritage List (see paras. 190-91 Operational Guidelines: World Heritage Convention).

Finding solutions for environmental problems requires the potential sources of conflict that have caused the problem to be identified from the outset. Deciding on the appropriate public participation process to resolve the GBRWH Area conflict requires a process that effectively addresses the sources of conflict.

Information conflicts over scientific data arising from scientific uncertainty, different interpretations of the same information, different opinions as to what information is relevant, a lack of information, or even misinformation, are the primary sources of conflict in any environmental conflict – and in all likelihood for the future use of the GBRWH Area.

It is also clear that the future use of the GBRWH Area is a public interest environmental conflict, involving multi-stakeholder participants having competing interests over development and environment. In these circumstances, a structural conflict over public participation will probably arise. Identification of all relevant affected development and environment interests is essential for an effective public participation process; but this step may be problematic. Exclusion of relevant development and environment interests from participating in the GBRWH conflict may not only lead to a non-viable outcome, but also have the potential to undermine the legitimacy of decision-making by government.

The challenge for government is to decide on an effective public participation process that resolves conflict and promotes co-existence between competing uses within the GBRWH Area.

Oct

Multi-culturalism and gender-balanced mediation: How does it work?

Categories: Family law, Mediation

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Multi-culturalism and gender-balanced mediation: How does it work?

In recent years we have seen political changes in some countries that have either forced people to seek greener pastures or opened borders enabling some to emigrate to places such as Australia. Around twenty five percent of Australia’s population was born overseas. It follows then that Australia is a multi-cultural society and with that multi-culturalism comes diversity in family dynamics. As more families from other cultures separate and present at mediation it is vital for Family Dispute Resolution Practitioners to understanding these family dynamics and how they differ from Australian family structures, particularly with respect to the role of the father in the decision-making process.

Decisions within a family unit operating in western culture are generally arrived at through a democratic process with both the wife and husband having input into the outcome. Of course the equality of decision-making will vary within families according to the dynamics of personalities and power within that unit but usually there exists some form of balance. This is not always the case with families from other cultures and religions.

In some cultures and religions men are not only the decision-maker in the family but are also responsible for decisions in the community. Women who have been raised and married in patriarchal families and societies may find the task of making important, independent decisions after separation challenging and more difficult than most of us would understand. Being separated from their husband, in mediation in a foreign country and culture, as well as being expected to make important agreements and decisions around the future of themselves and their children, can be overwhelming for them. They need to have the capacity to negotiate. Family dispute resolution can offer a possible solution to this dilemma that a migrant woman may face and that is a gender-balanced mediation where a male and a female mediator work together in the same room with the two clients. This environment may assist a woman in gaining the power and the capacity to represent themselves in negotiations but also can provide an environment that allows a man to negotiate with his former wife rather than being expected to make all the decisions.

How gender-balanced mediation can work to benefit clients from other cultures?

The Father

Let’s look at it firstly through the eyes of a father who has come from a society where he is expected to make all the decisions within the family and has fulfilled his duty by doing so. This expectation is generational. He has most likely seen his father and grandfather operate from the same premise. The roles of men in some cultures are clearly defined, understood and accepted.

So imagine what it must be like for man who has been encultured in such a way to find himself placed in a room not only with his estranged or ex-wife, who has never been in a position to negotiate with him, but with another woman if the solo mediator is female (outnumbered he may be thinking). Even worse, from his perspective, is if he finds himself in a co-mediation with two female mediators (even more outnumbered now, 3 to 1), and believe me this happens more than you would imagine, particularly if mediation is taking place in one of the larger organisations where male mediators are rare and not always available.

Examples of how gender-balanced mediation may help a man in this position are:

The presence of a male mediator in situations such as these gives the father the opportunity to negotiate with his former partner through the male practitioner and effectively elevate his capacity to reach fair and sustainable agreements.

Witnessing a male interacting and negotiating with women may serve as an example for him to see the changing roles for himself and his ex-wife in the society in which they now live.

Importantly gender-balanced mediation also allows him to save face in front of his ex-wife by negotiating with a man. Saving face in many types of negotiations is often a factor for success.

The Mother

We have seen how gender-balanced mediation can work for men from other cultures but how does it work for women from similar backgrounds?

As previously mentioned, it may be difficult for a woman to face her ex-husband in a room and being required to negotiate with him and make her own decisions around the future of herself and her children.

So, as we found for the men, gender balance in mediation may also assist women to reach fair and sustainable decisions and this can work in several ways:

Having a man in the room who is not her ex-husband may give her the opportunity to use the mediator as a conduit. She may feel more comfortable reaching agreements by talking through an unbiased, impartial and independent man. Use of this mediation model may create a more comfortable environment, one she is accustomed to.

The presence of the female component of gender-balance may not only allow her to feel “sister support” in the room but also be an example to her of how a strong woman operates in the process of decision-making.

Mediation may also serve as an example of how the role of woman in our culture varies from what she experienced in the past. To witness another woman being actively involved in negotiations, and to witness that woman even challenging (reality checking) the ideas of her ex-husband, may build her confidence in operating in a culture that supports gender equality.

From a practitioner’s perspective working with clients from different cultures is fascinating and always a learning curve. Issues that seem unimportant to us in our Western culture can be so important for others. Saving face is one example and for men in particular this can be the difference between success and failure in mediation.

An Example

Here is an interesting comparison between how the payment of child support is perceived in three cultures. In Australia it is part of law that child support will be paid if families are separated and, putting aside the fact its value and what it represents is often a point of contention, in principle it is accepted by most people. Two families that I recently worked with from other cultures told a different story. For the purpose of maintaining confidentiality I will not reveal the countries from which they came.

The first people informed us that in their culture if a family separates, and the parents divorce, then the Father is always and forever 100% financially responsible for his ex-wife and his children.

The second family were from another culture where if a women is divorced from her husband and claims financial support from him, she is frowned upon by society including other women.

You can imagine how important it is to recognise cultural difference when working with these families and also how a gender balanced mediation may help both men and women to get their heads around how it works in this country.

Greg Argaet is a Perth based mediator and registered Family Dispute Resolution Provider. Greg spent many years as a successful small business operator before making the transition to counselling and conflict resolution. Completing a BA (Politics and International Studies) and Postgraduate Diploma in Alternative Dispute Resolution, Greg is able to use his high level interpersonal skills to effectively mediate and facilitate rational and meaningful resolution. He is a practitioner with Gender-Balanced Mediation Services.

Aug

Bulga, Rio Tinto, Coal Mining and Environmental Dispute Resolution: Finding a Sustainable Solution or Must History Repeat?

Categories: ADR, Design System, Dispute Resolution Processes, Environment, Litigation, Mediation

Tags: economically sustainable development, environment

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Developers have sometimes been described as having a Marxian philosophy when it comes to inter-generational equity and Ecologically Sustainable Development (ESD). This is based on the statement loosely attributed to Marx: “Why should I care about the future generation, what have they ever done for me[i]“

[i]NOTE: The statement was made by Groucho – not Karl Marx

The April 2013 decision of the New South Wales Land and Environment Court overturned the NSW and federal government approval for a $3 billion expansion of Rio Tinto’s Mount Thorley Warkworth open-cut coalmine in the Hunter Valley. The residents of the small Hunter Valley town of Bulga had been involved in a three year court battle against Rio Tinto. The reasons for decision given by Preston CJ clearly illustrate how our courts should approach the complex concept of ecologically sustainable development to avoid past criticism that sustainability is conceptually too vague to have much practical value.

In this case, the NSW Land and Environment Court concluded that the economic benefits from the coal mine expansion proposal were outweighed by potential adverse environmental impacts – such as impacts on biodiversity, noise, dust and social impacts on the town of Bulga. The Court concluded that these potential environmental impacts were not only significant, but also an unacceptable risk. The case also raises a process issue: whether litigation or ADR and negotiation would be the preferred pathway for resolving conflicts over sustainability – where ecological, economic, social and cultural impacts have to be weighted and balanced?

In July 2013, the NSW Resources and Energy Minister announced a draft planning policy that would make the economic significance of mining projects the “principal consideration” for the assessment process. But this reaction to the Court’s decision by the NSW Government may be problematic. The policy change raises the risk of future administrative law challenges: whether the policy was consistent with achieving the objects of the environmental protection and planning legislation under which environmental approvals are decided in New South Wales?

Further concern over this approach is that the policy change proposed by the NSW Government resonates with the past. The 1970s was a time for economics and jobs to prevail over environmental values in decision-making by Government over major development proposals.

But, in the late 1980s, a new and unifying concept for environmental management and decision-making emerged via the United Nations: The concept of sustainable development. Sustainable development resulted in decision-making that focussed on Jobs versus the Environment being outmoded and, instead, being replaced by decision-making for Jobs and the Environment.

Australia was a signatory to two International Declarations at the 1992 UN Conference on Environment and Development at Brazil. The ‘Rio Declaration on Environment and Development’ set out universal principles for taking global action for sustainable development. ‘Agenda 21’ provided an action plan for sustainable development.

A fact not widely recognized is that Australia once led the world following the Council of Australian Governments (COAG) endorsement of an innovative national environmental policy for sustainable development in December 1992. COAG is the peak intergovernmental forum in Australia, having the role of promoting policy reforms that are of national significance. The members of COAG are the Prime Minister, State and Territory Premiers and Chief Ministers and the President of the Australian Local Government Association.

From 1993, the COAG policy acted as the trigger for incorporating sustainable development into new or amended environmental protection and planning legislation by the States, Territories and the Commonwealth.

Sustainable development is a prescribed legal obligation in the NSW Environmental Planning and Assessment Act – the legislation which the appeal against the expansion of Rio Tinto’s Mount Thorley Warkworth open-cut coalmine was determined. One object of this Act is “To encourage ecologically sustainable development”. The legal meaning for ‘ecologically sustainable development’ under this Act imposes a legal obligation that “requires the effective integration of economic and environmental considerations in decision-making processes” – the pathway followed by Preston CJ.

A sustainable solution for an environmental problem is found by balancing competing short-and long-term ecological, economic, social and cultural objectives. Equity is a key consideration, as a sustainable solution seeks to secure as much available value as possible for government, industry, business and the community. A sustainable solution does not place inordinate weight on one objective such as economics – as would be the case for the proposed change to NSW planning policy.

What are the options now available to the NSW Government? Further litigation to appeal the decision of the NSW Land and Environment Court on a question of law is one; the introduction of a planning policy making the economic significance of mining projects the “principal consideration” for the assessment process is another. Another option is community consultation. The community consultation provision of the NSW Environmental Planning and Assessment Act has been considered by the NSW Land and Environment Court and, on appeal of this case, the NSW Appeal Court: Its legal meaning can be summarised as a legal obligation to consult not to agree. The Act did not impose a legal obligation on the Minister for Planning to necessarily agree with the results of the community consultation.

The problem for the NSW Government in adopting either of these pathways is that it may find itself in a situation where any of the following negative consequences could arise: A decline in public trust and confidence in Government; an erosion of the public perception of the capability of Government to perform its statutory duty to protect and manage the environment; or that the ultimate decision by Government did not properly taken into account community views arising from consultation/engagement processes.

Following the litigated outcome, the NSW Government and Rio Tinto might now wish to consider whether ADR and negotiation could be an appropriate process for finding a sustainable solution to resolve the conflict over the open-cut coalmine expansion?

ADR and interest-based negotiation would enable the construction and evaluation of a range of scenarios along a sustainable development continuum in which the balance between ecological, economic and social and cultural considerations varies. ADR also has the potential to develop new scenarios, as negotiations proceed, which may be more appropriate for finding consensus between the parties. The preferred scenario may be one of the original set of scenarios evaluated – or it could be a new scenario that is constructed based on the best features of all the scenarios evaluated. Having this flexibility is a significant advantage for ADR over the courts and litigation for finding solutions for sustainable development conflicts – solutions that may not be available through litigation.

The benefits for the NSW Government for using ADR, negotiation and sustainable development for the decision-making process is that it would be able to claim a share of the credit for bringing the conflict to a successful conclusion in a way that saved the cost of litigation and ensuring that legal standards of environmental protection were exceeded, voluntarily. It would also restore some measure of trust and confidence in Government as all parties should be able to emerge secure in the knowledge that the decision-making process focussed on the public interest – weighted in favour of a sustainable outcome rather than economics being the prominent consideration!

Aug

Resolving Public Health Conflicts with ADR

Categories: ADR, Mediation

Tags: adr, environment, mediation

Comments: No

Large-scale coal seam gas and wind energy developments have been introduced by many countries with the goal of moving to a low carbon economy to combat climate change.

But both these projects have raised community concern over potential risks to public health.

Divergent scientific opinion has led to information conflict over the possible long-term risks to public health from some of the chemicals, or chemical mixtures, used in the hydraulic fracturing (“fracking”) process to crack the coal seams to extract the natural gas in CSG operations.

Also, the scientific methodology for predicting risks to public health from chemicals, but especially chemical mixtures, used in CSG operations is problematic. This leads to scientific uncertainty.

There have been claims by people living near wind farms in North America and Australia that infrasound produced by wind turbines causes an adverse risk to public health suffered by some people who live in close proximity to wind farms.

Divergent scientific opinion has led to scientific uncertainty whether infrasound produced by the turbines causes adverse health impacts similar to those described for a medical condition called “Wind Turbine Syndrome”?

But, there is another significant need for safeguarding the community from the potential risks to public health from coal seam gas and wind energy developments.

That is, to ensure environmental management and monitoring programmes – as prescribed by Government as part of the environmental approval and licensing process – provide adequate public health safeguards for the community?

Developing environmental management and monitoring programmes requires Government and industry to have in place effective community engagement processes. The community should be able to rest secure in the knowledge that their viewpoints have been properly taken into account in the programmes approved by Government.

It is not surprising, because of the scientific uncertainty over the potential long-term public health risks from coal seam gas and wind energy developments, that public opinion is polarised.

Polarised public opinion decreases public trust and confidence in the traditional community engagement processes relied on by Government and industry to offset community concern over scientific uncertainty.

The alternatives to community engagement are litigation or ADR.

Also, courts have less flexibility, compared with ADR and interest-based negotiation, for balancing the broad public policy considerations that affect competing land use interests when decisions have to be made over the management of risks.

The ADR pathway for resolving scientific uncertainty and divergent expert scientific opinion over the potential risk to public health from coal seam gas and wind energy developments needs to be based on conflict management principles. It requires scientific conclusions that are both relevant and reliable.

The pathway for achieving this goal is the scientific round-table – a joint fact-finding strategy based on the ADR process of independent expert appraisal. The representatives at the scientific round-table are scientific professionals, having expertise in the subject matter of the conflict.

An independent dispute resolver convenes the scientific round-table. The dispute resolver undertaking an independent expert appraisal would require expertise in science and ADR process skills.

One objective of the scientific round-table is for the scientific experts to reach consensus on scientific issues in dispute. The round-table gives effect to one of the key elements of principled negotiation: insisting that agreement on disputed issues is based on the use of a common set of objective criteria to evaluate the scientific database.

The dispute resolver is also required to prepare a summary of outcomes from the scientific round-table – which then become the foundation for the next stage: conflict resolution and negotiating agreement using evaluative mediation.

The ADR pathway for dealing with the issue of providing adequate public health safeguards for the community from coal seam gas and wind energy developments, through effective environmental management and monitoring programmes, needs to be based on conflict resolution principles.

For environmental management and monitoring programmes to be effective, there must be public trust and confidence in the Government agencies involved in the environmental regulatory control of risk from coal seam gas and wind energy developments.

United States experience indicates that “no other strategy offers a more telling acknowledgement of the legitimacy of local concerns” than those who have to live with an activity that may represent a potential risk to public health know they can trust the environmental management and monitoring programmes approved by government.

In this regard, the starting point for government agencies for building public trust and confidence with the community – and to effectively reflect community concerns – is to characterize and then assess the public health risk that might arise from coal seam gas and wind energy developments.

Given that the community has to live with coal seam gas and wind energy developments, the responsibility for determining an acceptable level of risk to public health – using risk management – must be shared between government, industry and the community.

ADR and interest-based negotiation – unlike the legal process – provides the dual approach for risk management for determining an acceptable level of risk , as advocated by the International Risk Governance Council: to provide equal room to consider both objective scientific evidence and value-based community perceptions of risk.

Aug

Coal seam gas mining: Resolving Environmental Conflicts of Exposure to Hazardous Substances and Public Health with ADR

Categories: ADR, Dispute Resolution Processes, Mediation

Comments: No

Global concern currently exists over potential risk to public health from large-scale coal seam gas (CSG) developments. Community concern relates to the possible long-term effects of some of the chemicals used in, or generated by, CSG operations. For example, from chemicals or chemical mixtures used in the hydraulic fracturing (“fracking”) process to crack the coal seams to extract the natural gas.

One such issue is whether it is possible for potential risk to public health to arise if some chemicals used in, or generated by, CSG operations “escape” to move along environmental pathways that may contaminate air, water or soil? Environmental exposure to hazardous substances may result in potential or actual risk to public health. These include industrial activities that result in the “escape” of hazardous emissions into the atmosphere, water environment and soil.

Acute exposure to high concentrations of hazardous substances can lead to death or serious illness in the short-term. Over the long-term, chronic exposure to low concentrations of hazardous substances can increase the risk of developmental and reproductive disorders, immune-system disruption, endocrine disruption, impaired nervous-system function and the development of certain cancers. The World Health Organisation has focussed particular concern on exposure of children to toxic chemicals as children are at a higher risk of serious illness compared with adults.

However, the scientific methodology for predicting risks to public health from chemical mixtures used in for CSG operations is problematic and so creates scientific uncertainty. Information conflict arises because of scientific uncertainty and divergent scientific opinion over the existence of a possible link between CSG operations and risk to public health.

A second issue is whether environmental management and monitoring programmes – as prescribed by Government as part of the CSG environmental approval process – provide adequate safeguards for the community from the potential risk to public health?

A pathway for achieving this goal which avoids the usual adversarial posturing, is the scientific round-table – a joint fact-finding strategy based on the ADR process of independent expert appraisal. The representatives at the scientific round-table are scientific professionals, having expertise in the subject matter of the conflict. An independent dispute resolver convenes the scientific round-table. The dispute resolver undertaking an independent expert appraisal would require expertise in science and ADR process skills. One objective of the scientific round-table is for the scientific experts to reach consensus on disputed issues.

Another contemporary, controversial public interest environmental issue is the question of human exposure to lead and public health risk at Mount Isa, in north-west Queensland. Evidence from a 2008 survey found 11 per cent of children in Mt Isa had elevated blood lead levels. This survey finding has triggered off concern over possible health issues for Mt Isa’s children. Depending on the level, elevated blood lead levels in children may cause developmental problems; and, in the extreme case, brain damage.

Divergent scientific opinion has led to an information conflict over the source of “lead pollution” in soils, dusts and aerosols found in the urban area of Mt Isa that may lead to human exposure. Managing information conflicts over scientific uncertainty or divergent expert scientific opinion requires conclusions that are both relevant and reliable.

To what extent are emissions from mining operations a source of the lead levels found in the urban area of Mount Isa? Alternatively, whether lead levels in the urban area of Mt Isa arise from nearby natural deposits? But, this issue is only one dimension for safeguarding the Mt Isa community from the potential risks to public health. As is the case for CSG operations and public health risk, the question is whether approved environmental management and monitoring programmes provide effective public health safeguards for the community?

From a conflict management and resolution perspective, common ground can be found on the ADR pathways required to resolve the potential risk to public health for both CSG operations in Australia as well as mining activities at Mt Isa.

The round-table gives effect to one of the key elements of principled negotiation: insisting that agreement on disputed issues is based on the use of a common set of objective criteria to evaluate the scientific database.

Where consensus cannot be reached on any issue, the dispute resolver provides a non-binding opinion based on an objective and impartial analysis of all relevant and reliable scientific data. The purpose of the non-binding opinion is to facilitate the experts to reach consensus on the disputed issue. The dispute resolver is also required to prepare a summary of outcomes from the scientific round-table – which then become the foundation for the next stage: conflict resolution and negotiating agreement using evaluative mediation.

The area of common ground for moving forward with ADR and conflict resolution is the issue of potential risk to public health from CSG operations and mining activities at Mt Isa and the effectiveness of environmental management and monitoring programmes.

For environmental management and monitoring programmes to be effective, there must be public trust and confidence in the Government agencies involved in the control of hazardous substances in the environment and the regulatory control of risk. United States experience indicates that “no other strategy offers a more telling acknowledgement of the legitimacy of local concerns” than those who have to live with an activity that may represent a potential risk to public health know they can trust the environmental management and monitoring programmes approved by government.

In this regard, the starting point for government agencies for building public trust and confidence with the community – and to effectively reflect community concerns – is to characterize and then assess the risk to public health that might arise from CSG operations and mining activities at Mt Isa.

Given that the community has to live with CSG developments in Australia and mining activities at Mt Isa, the responsibility for determining an acceptable level of risk to public health – using risk management – must be shared between government, industry and the community.

The advantage of ADR and interest-based negotiation, where scientific uncertainty exists and where public perceptions of risk need to be understood, is that it involves a process of shared responsibility, joint problem-solving and agreement by consensus — all features that are not part of litigation. Compared with ADR and interest-based negotiation, courts have less flexibility, for balancing the broad public policy considerations that affect competing land use interests when decisions have to be made over the management of risks.

Dec

Regional shopping centre opportunity for changing retail tenancy vacancies into long term profits

Categories: Negotiation, Retail leasing

Comments: No

The challenge of Regional Shopping Centre vacancies

Right now, numerous regional shopping centres in Australia are experiencing acute problems with struggling retailers. The problem is not generally under-performing operators but negative consumer sentiment, lack of disposable income due to high home mortgages, small business underfunding and internet retailing – to name the most commonly quoted causes.

One centre recently visited had a retail tenancy vacancy of 10%, with a further 10% occupied by temporary fringe retail operators in such areas as budget fashion, gifts, discount books and DVD’s, and confectionery. It would be unsurprising to learn that the majority of these temporary operators would be paying anything other than a peppercorn rent. Notwithstanding that fact, they would be unlikely to survive long past the Christmas holiday period and into the bleakest retail month of the year, February.

Very occasionally one of these tenancies is next to a solid operator with a strong history and on a modest but perceptible growth path. This tenant is likely to have entered into his lease when times were better, and thus agreed at the time to a rent per m² and annual reviews which would not be achievable in negotiations for a new lease today. The retail tenancy may have several years to run.

This tenant may also see opportunities to grow his turnover by tweaking his business model and the range of merchandise offered. This however would require more space. At the same time the tenant is very wary of increasing his overheads and exposure given prevailing business confidence and the state of the economy.

For a flexible and opportunistic Shopping Centre Landlord, there may be a potential win/win in this situation.

The Retail Vacancy Solution

If the retailer could be persuaded to expand to take the neighbouring tenancy, the Landlord solves a vacancy problem. At the same time the Landlord consolidates or locks in for a longer term one of his mini-anchor tenants. This would be done by way of a surrender and a new lease. There would also be an immediate beneficial effect on the shopping centre’s capitalization rate.

Given the prevailing retailing conditions, incentives would be necessary to give the current retail operator, the required level of comfort to take the risk, make the commitment to more stock, staff and system change, and make all of this happen.

The incentives could be:

Agreeing on commercial terms which would result in minimal increase in total occupancy costs for the larger area.
Changing to a gross lease may be attractive to the tenant and is administratively much simpler for the Landlord.
A significant fitout subsidy.

The retailing landscape will improve in time. At lease expiry it is likely there will be the opportunity for the Landlord to negotiate lease renewal from a stronger position. The retailer will have had the time to consolidate, and build some profitability into the business which will increase the incentive to renew. In the interim there has been enhanced customer service, and improvement to the tenancy mix by way of the expanded offering.

A brighter future for Regional Retailers

What is needed now is what we call the “mediative mindset”. The ability to see beyond personal goals to embrace the other’s persons opportunity and secure a joint benefit.

For regional shopping centres faced with the decline of traditional retail lease opportunities – this is a way of converting retail tenancy vacancies into long term profits and secure tenants. But it requires a skilful and different approach:

The lease can be re-negotiated. It is not carved from stone.
Recognition of risk for both sides and a preparedness to understand the other party’s perspective
The reality check that to fill space the rental budgets of yesterday will not do the job.
Sensitivity to the long-term benefits

If it’s raining, you take an umbrella. You do not waste time complaining about the rain …. Food for thought?

Article contributed by Australian Retail Lease Disputes the retail lease specialists. See www.retailleasedisputes.com

Dec

Mediators not doing their job properly?

Categories: Mediation

Tags: Blog, mediation, protocol, transformative

Comments: No

A solicitor from a leading Sydney law firm has recently published his complaints about the mediator that was engaged to resolve a dispute in which his client was involved (see: article). The solicitor complained that, in the face of: “evidence that there is a very good likelihood that a defendant will win at hearing, it is quite wrong for a mediator to seek to pressure a defendant (or the defendant’s insurer) to make a substantial contribution to a settlement.”

The solicitor states that in his experience, mediators are increasingly ignoring the relative strengths and weaknesses of each party’s case. He says: “I have noticed an increasing number of circumstances where the mediator displays no interest in any discussion about relative strengths and weaknesses. In such a case, a party’s position paper is soon relegated to the mediation dustbin and all one is left with is ‘how much are you prepared to pay?‘”

The concerns expressed, beg the question: Why has the solicitor hired a mediator with such limited skills?

The Mediation versus Litigation Process

Mediation is a very powerful process to resolution, with an over 20 year gestation period in New South Wales, that is here to stay. Governments like it (because it saves on judge’s salaries and their increasingly, unfunded superannuation), the courts like it because judges can get rid of “messy cases”, the ones devoid of any nice legal points but with endless conflictual evidence that they have to write up. And parties, who are empowered by the mediation process to make their own decisions and are now able to play a role in their own dispute definitely like it. They finally have an opportunity to have their say, express their view of the “truth” and craft a solution that meets their needs.

The fact that there is evidence available in the litigation process that indicates that a plaintiff could lose, does not mean that they will. The parties are not in control of the litigation process or the decision making, the court is. There are always surprising judgments that emanate (some wrong that need to be overturned) and others where there are surprising turns of events, certain evidence that turns out to be wrong, incomplete or not accepted. It is a brave person who will predict the outcome of a trial.

The Mediator’s Role

Is it the mediator’s role to review the evidence and express their view of it? The mediator’s role does not entail providing legal advice or reviewing the evidence and advising who will win and recommending the amount of damages that each party should pay. This form of “expert determination” by a former judge is often classed as an “evaluative” mediation. The process is often castigated as not being a “real” mediation – but I see nothing wrong in it. The mediation process provides the cloak of confidentiality and the “expert” mediator assists the parties with information and a recommendation that they are free to accept or reject. The only proviso is that the parties need to know what type of process they are paying (often a very high price) for.

Even if mediator is able to review the weight of the evidence, what should he or she do about it? The mediator is there to allow each party’s case to be fully exposed to the best effect. Mediation is a confidential process (so far as the law allows) and provides the best opportunity for the parties to comprehensively review their stated case, the evidence for and against them and the current state of the law. A good mediator will lead this process through facilitation of the discussion in a joint session. Using their own (hopefully expert) knowledge of the relevant law they will get the party propounding a view to state it and explain the effect of the evidence and the consequences to the other party. Then, in turn, have the other side respond to it. This is not a determination but a discussion that highlights to all present, the strengths and weaknesses of each case, by the people who know it best, the lawyers who are running it.

Mediator Styles

The author of the article concludes that: “In this instance the mediation system failed all the parties. Regrettably, this case is not unique.”

Unfortunately, from my experience he is right. But it is not the “mediation system” that has failed, but the people who were organising the process. I do not wish to imply any criticism of the organisers of this mediation process, but ultimately you get what you pay for, or as one petroleum company famously put it: “oils ain’t oils”. The message is that you need to get a mediator to fit the process you want or one who is able to play different roles, part investigator, part facilitator, part determiner and maybe part counsellor. It comes down to the mediator’s style.

There are far too many “legal mediators” with limited skills of conciliation and an inability to play anything other than a shuttle / settlement role. These mediators put the parties in separate rooms and move back and forth between them (often dubbed ‘the human email’) exchanging offers and hoping they will get to a point where everyone is unhappy enough or tired enough to give up and agree.

Dispute Resolution Protocols

The organising of the mediation deserves one final comment, as this is another area that the legal profession is still coming to terms with. Judges and Registrars in both the NSW Supreme Court and the District Court are referring matters to mediation with increasing alacrity. However, unlike most court related processes, there is no established protocol about who arranges the mediator, the rooms and advises the parties. Often it is done piecemeal, relegated to the “legal clerk” and seems to come together at the last moment.

The solicitors involved are sometimes trying to settle the matter between themselves at the same time they are negotiating with a mediator to be available to conduct the mediation process within the court mandated deadline. When the parties finally accept that they are not going to be able to resolve the matter themselves, the mediator selected is now no longer available and the parties have to find someone else at short notice.

In Summary

Hiring a mediator is no different from hiring an “expert” to provide a report. You need knowledge of their qualifications and training to give you confidence in their technical skills. But you also need to understand the different mediator “styles” available, from evaluative through to transformative, and select the person with the qualifications and skills your case requires.

derek_minus_mediator Derek Minus is a barrister and mediator of over 20 years experience. An earlier adopter of mediation as a dispute resolution process he is active in resolving disputes in all types of matters through a transformative process. He is a Nationally Accredited mediator, a member of the NSW Bar Association panels for mediators to the Supreme and District Courts and assessed as an advanced mediator by the Victorian Bar.

He is a member of Mediation & Arbitration Chambers, www.medarb.com

Dec

Transformative mediation – what is it and why would you use it

Categories: Create Skills, Family law, Mediation

Tags: Blog

Comments: No

Nov

How to find a mediator for your dispute

Categories: Mediation

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All posts in Dispute Resolution Processes

“Farmers feel that when it comes to them versus the coal seam gas companies the power resides with the gas companies. The Councils feel that the gas companies have the power. And farmers feel that when you take the environment into account that the gas companies have the power there.”

The challenge of Regional Shopping Centre vacancies

The Retail Vacancy Solution

A brighter future for Regional Retailers