All posts tagged mediation

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.

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.

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.

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 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.

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.

Beginning with the Client Assessment

We start with a client assessment interview to determine which model of mediation will work best.  The decision to use a gender-balanced mediation is based on information we gather during the assessment process and what we learn about the dynamics of the relationship between the clients.

We recommend a gender-balanced mediation, with both a male and female mediator present, when issues are identified that may detrimentally affect the ability of either client to operate capably in a mediation session for which the gender-balanced mediation process will assist.

Some examples of the type of issues that favour the gender-balanced mediation model are:

  • Either or both parties stuck rigidly in their own agendas or positions. Sometimes a reality check for clients is required in mediation and is best received from a mediator of the same gender.
  • The presence of a power imbalance based around gender issues. An example of this would be the male partner of an ex-couple controlling all the money from the relationship because he worked and his ex-partner had stayed home with the children. He may not acknowledge her contribution to the relationship because she did not work and contribute directly to their finances.
  • One party holding the belief that due to their gender they command more power in the relationship. This may be a result of a family of origin belief system, peer group influence or religious beliefs.
  • Cultural beliefs that the male in the relationship holds all the power and makes all the decisions for the family.

Benefits of the gender-balanced mediation model

The presence of both genders as mediators often has a profound effect on the success of mediation, for example in “reality checking”.

Mediators use various tools in the mediation process such as reality checking (eg. “So let me ask you Brian, if you are working on a fly-in fly-out roster of four weeks on and one week off, how do you see a 50/50 week about living arrangement working for your three children?”). Reality checking is an important part of mediation and may be quite challenging for certain clients. If that challenge is coming from someone of the same gender it may be accepted and considered more easily.

Impartiality is also essential in a successful mediation. All mediators understand how important client perception of impartiality is. For agreements reached in mediation to remain in place beyond the mediation room both clients need to feel they were heard, acknowledged, fairly treated and had their ideas form part of the final agreement.

We mediators all operate from a place of impartiality however, despite all our efforts, some clients do not always feel that is the case. An example could be a male client feeling overwhelmed and out-numbered in a co-mediation using two female mediators (this is a very common model of mediation) simply because he is in a room with three women being his ex-partner and the two mediators.

Gender-balanced mediation addresses this perception. I have experienced clients sharing with me after their mediation session that a balance of genders was enough to make them feel comfortable around impartiality.

A Tale with an unexpected Twist

An interesting example of how a gender-balanced mediation can work, even unexpectedly, I will relay to you, and conclude with, the story of a session I was involved in a couple of years ago. For confidentiality reasons I have changed their names.

Brittany and David were young parents who had one child but had separated recently. In their assessments it appeared that David was very controlling given his responses to some of the questions and his very confident demeanour. He did accuse Brittany of being stubborn and controlling and this was explored and noted. Brittany presented as quiet and not displaying a lot of confidence. David wanted to establish a shared living arrangement for their young daughter Kylie that, according to Brittany, was not in Kylie’s best interests due to her age. I had assessed David and a female colleague had assessed Brittany. As often happens we, as mediators, discuss cases before the decision is made as to how mediation will work. Our discussions were around how a gender-balanced mediation may work better than a solo (one mediator) or a co-mediation (two female mediators). We both felt that my male presence may work well at two levels. Firstly to give the perception of impartiality (and of course we were) with a balance of males and females in the room and, secondly, if we felt that David needed a reality check or needed to be challenged over certain issues it would be better coming from another man.

Due to certain circumstances mediation was delayed for a few months. As it finally proceeded it became apparent early in the session that Brittany was actually the one who had power and control. She had either become empowered whilst waiting for mediation or had not revealed her true self during assessment.  Nevertheless there was a clear power imbalance in the room in her favour. My female colleague became the one reality checking Brittany rather than me checking David, a role reversal. We worked for two hours with this couple and at the end of mediation they reached some workable, age appropriate agreements that were best for Kylie and fair and sustainable for her parents.

In our post –mediation evaluation forms David expressed his gratitude for having a male and a female mediator in the session as he felt supported and Brittany was happy with how mediation was conducted. She said on her evaluation; “I felt at ease because the two mediators were like my parents”.

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.

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_mediatorDerek 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,