Archive for August, 2009

Access to justice?

I have sense we’re coming back to the questions we started with in the foundation of ADR some three decades ago, but doing so from a different angle. As TS Eliot puts it in “Little Gidding” – the fourth of his “Four Quartets”:

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.

Where we started out was – in part at least – with a concern about access to justice, the relative inaccessibility of the courts and so on. These issues will be very familiar to people in the mediation field.

The critical response to the development of mediation and informal justice was, at the same time, to question whether the ‘sidelining’ of disputants into mediation was in fact a marginalising of some disputants, the creation of second class justice. These and other critical issues – raised most strongly by Richard Abel and co-authors in The Politics of Informal Justice – remain relevant today, despite the rapid growth and mainstreaming of mediation.

The reason I come back to this question of access to justice is partly because of the success of mediation in its shift from the marginal and alternative to the mainstream and orthodox.  One feature of this shift in many jurisdictions is the move from seeing mediation as the resource for community disputes, or for the ‘lower value’ disputes which don’t justify the cost of going to court, to seeing it now as the paradigmatic form of dispute resolution for commercial and high value disputes. There’s an irony in this: at the outset, the critical concern was that the courts were being ‘reserved’ for the important cases while the others were shunted off to mediation; and now, as mediation’s practical value (and cost-saving virtues) are recognised, those cases that would have gone to court are now increasingly dealt with in mediation.

More than this, one mark of the success of mediation is in the degree of legislative and judicial support for the process, so much so that we see the range of court-linked, and court-mandated mediation, judicial mediation, and the hybrids of pre-trial and settlement conferences – on which opinion may be divided as to whether it’s really mediation.

But now the question is asked: given the enthusiasm for mediation, ranging from high-level judicial promotion through public speeches through to judicial pressure on parties to go to mediation rather than to the courts, is there a risk of a denial of access to justice if the pressure and expectation is to go to mediation?

The question always was asked as to whether mediation was justice or “merely” settlement: observers of the legal process ranging from the more intemperate arguments of Owen Fiss’s paper “Against Settlement” (93 Yale Law J, 1073 [1984]) to David Luban’s concern about the erosion of public rules and norms with the rise of private justice (“Settlements and the Erosion of the Public Realm,” 83 Geo L.J. 2619 [1995]) and Michael Moffitt’s more recent “Three Things to Be Against (‘Settlement’ Not Included)”, Fordham L Rev, (2009: pre-publication copy) have kept alive the question as to the relationship between private settlement and public justice.

This has been brought to my attention again in a recent web-based comment by Edwards, Angell, Palmer and Dodge: http://www.insurereinsure.com/files/upload/comlitaug09_mediation.html – in which the writer asks

“whether the increasing pressure on litigants to mediate could result in the limitation of access to justice, thereby eroding the very fabric of our civil justice system and impinging upon our humans rights.”

My thanks to my colleague Locknie Hsu for bringing this to my attention.

So, we’re back to where we began, but by a different route: what began as a concern with the lack of access to justice, and with the promise of mediation as at least a form of justice through settlement and resolution, now becomes a question as to whether the success of mediation may involve a form of impaired access to justice – if by justice we mean, conventionally, access to the courts, to the rule-based resolution of disputes of rights and entitlements.


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ADR Singapore

This is advance notice: watch this space, and watch the links on the right of this page. Maxwell Chambers (www.maxwell-chambers.com) is the newly established arbitration “hub” for Singapore, and the home of a range of arbitration agencies and practitioners. Part of its new role has involved taking over the management of the website <adr.sg> formerly managed by the Ministry of Law. The site is due to go live in early September.

Even though Maxwell Chambers is primarily an arbitration body, the site is intended to be an overall portal for DR in Singapore and regionally.

My reason for drawing it to your attention is that there will be a couple of features of the site that mediation and DR practitioners might like to keep an eye on: first, there will be links to resources (web links, articles etc); and second, there will be discussion forums open to academics, practitioners and professionals in the various fields of dispute resolution.

I”ll put up the full link when the site goes live.

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As a brief follow-up to some of the preceding entries, it’s interesting to note the summary comments in Lewicki, Barry & Saunders, Negotiation, (6th ed, 2010 – yes, that’s the date on the publishing details page!), on types of relationships and their impact on negotiation styles. They identify 4 relationship styles, following Fiske, The Structures of Social Life (1991):

  1. Communal sharing
  2. Authority ranking
  3. Equality matching, and
  4. Market pricing.

And comment that parties in communal-sharing relationships, or who expect to have future interactions:

  1. are more co-operative and empathetic;
  2. craft better quality agreements;
  3. perform better on both decision-making and motor tasks;
  4. focus their attention on the other party’s outcomes as well as their own;
  5. focus more attention on the norms that develop about the way that they work together;
  6. are more likely to share information with the other and less likely to use coercive tactics;
  7. are more likely to use indirect communication about conflict issues and develop a unique conflict structure; and
  8. may be more likely to use compromise and problem-solving as strategies for resolving conflicts [pp 304-305]

This I think is consistent with thinking that, in this region (South East Asia) we’re more likely to see negotiation and mediation styles characterised by an avoidance of direct conflict and confrontation and the acceptance of ‘contradiction’ as a state of affairs but not as a mode of engagement.

However, the relationship categories clearly are going to overlap and there will be occasions when the same people will find that different transactions invoke different aspects of their relationships. Accordingly, while there is a stress on communal relationships, there’s also a recognition of authority structures – for which reason the patterns of decision-making listed above are going to make way for more prescriptive styles.

What’s open to question is whether the outcomes are any better for people in such close relationships. If, as is likely, these negotiators are less inclined to forceful (not aggressive) negotiations, there’s a good chance that value will be left on the table – though the trade-off is that relationship value remains strong. While not suggesting that those less conflict-averse produce better outcomes, there’s a chance that the more conflict-averse will sacrifice interests for the sake of relationships (or because of perceived obligations in hierarchical societies). The observer’s challenge here is to keep the question open as to what qualities contribute to ‘better’ outcomes!

I’m reminded of this too in conversations with a mediation colleague here who – because I’m looking at ways of getting back into mediation practice in a setting rather different from New Zealand – advised me that mediation clients are much more likely to

  1. see the mediator as authority figure; and
  2. expect substantive input into the possible outcomes; and
  3. expect a more directive style on process

On these points, it’s also worth seeing the first few chapters of Lee and Teh (eds) An Asian Perspective on Mediation.

For that reason, too, the debate between the various ‘schools’ of mediation – between the purist facilitative types and the evaluative mediators (as well, of course, as the transformative, narrative and others) – is likely to be too dogmatic a debate when we see what’s expected of mediation, and what’s familiar in negotiation styles in this region.

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“Our lives are rooted in story. Our stories are our lives. We find out who we are by the stories we tell and are told. The lives we live and the conflicts we embrace are held together by motif and myth. If we are to gain a sense of who we are, where we stand in the world, what our relationship in and with the world is to be, then we must see how our story works. A story is a way to articulate what it is we are living through and how the world lives in us as we live in it … Stories give meaning to common and shared experience.” [1]

In several recent posts I’ve touched on issues of culture, perception and conflict raised by observers like Nisbett and Kim, and by commentaries on mediation and dispute resolution in China. In thinking about this question of geography and disputing I’m reminded of my first encounters with the icon of the “geography of place”, Yi-Fu Tuan, Emeritus Professor of Geography at the University of Madison, Wisconsin. My former university library had the happy practice of displaying new books for a couple of weeks, allowing magpies like myself to see what else was out there other than the books that were more obviously related to my ‘home’ discipline (law). And Prof Tuan’s was one of the early discoveries

Have a look at Prof Tuan’s home page: http://www.yifutuan.org/. And a biography of Prof Tuan: http://geography.about.com/od/historyofgeography/a/yifutuan.htm

The point of mentioning this:

  1. to pick up and continue the earlier threads on “place” and conflict resolution;
  2. to incorporate Prof Tuan’s linking of place, aesthetics, ecology and perception into those earlier comments on culture and dispute resolution;
  3. to reinforce the idea that “experience” – whether it’s aesthetic or otherwise – is ‘located’;
  4. to recognise that THIS is also part of what is contested in conflict: our perceptions, as well as the literal physical space in which they are grounded, is at issue;
  5. and to recognise that while there might be common ground in much of our negotiation and mediation practice, that common ground is also mediated via our perceptions.

There’s also a lovely collection of letters that Prof Tuan has written over the years to his colleagues at the University: http://www.yifutuan.org/archive/2009/index.htm

Now, just one question for the moment arising from this: if, as this line of thinking suggests, place, location, space, and geography matter, in shaping our perceptions and responses, what changes are likely to take place – to have already taken place – in the online world? If, as is already the case, millions of people have millions of “friends” with whom they share the daily details of their lives, without having necessarily met them, or at least without regular contact, does “place” matter as much?

Does geography matter more to the “digital immigrants” than to “digital natives” – the latter being that generation who have grown up with the familiarity and expectations of the digital world? http://en.wikipedia.org/wiki/Digital_native; http://www.marcprensky.com/writing/Prensky%20-%20Digital%20Natives,%20Digital%20Immigrants%20-%20Part1.pdf

What’s the impact of the dual trend that people may be both:

  1. better connected to each other and the rest of the world through the Internet; and
  2. increasingly disconnected from the contexts and culture in which they physically live?

At the very least, the nature of ‘participation’ changes as there is scope for enhanced global participation and, at the same time, a risk of retreat from domestic participation if there is a greater sense of affiliation and common ground with dispersed others. See Merlyna Lim, Islamic Radicalism and Anti-Americanism in Indonesia: The Role of the Internet, (East-West Centre, Washington, 2005)

“For those people who are or perceive themselves as marginalized, the Internet provides new openings and configurations in order to scale up their movements and relate local events to global levels and scale them back down again to local levels in a manner that can empower a handful of people beyond any level previously imagined. But in a world of intensifying cyber-traffic, this sudden empowerment avoids ephemerality only to the extent to which is can tap into larger identity and political structures.” [1]

At the best, there might be a new kind of geography:

Blulmer and Coleman have argued that the internet possesses ‘a vulnerable potential’ for this role [ie civic engagement and deliberation] and that the creation of a ‘civic commons in cyberspace’ which ‘could become part of the democratic furniture: an integral component of the representative system (the Commons) and an open space for the represented to gather and talk (the civic commons).’

(Coleman and Gøtze, 11, citing J G Blumler and S Coleman, Realising Democracy Online: A Civic Commons in Cyberspace IPPR/Citizens Online, 2001, p. 4-5)

[1] Eli Wiesel, quoted in J. Elkins, “The quest for meaning: narrative accounts of legal education,”Jnl of Legal Education v. 38 (Dec. ’88) p. 577-98

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