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Australasian Dispute Resolution Journal
Volume 20, Number 4, November 2009
The ethics of mediation and mediation media watch
The importance and challenge of active listening in mediation
Before mediators can effectively help the parties resolve their disputes, mediators themselves must first understand and recognise the different needs and interests of the disputing parties, which requires actively listening to the parties. However, active listening—arguably the purest form of listening—is not an easy skill to acquire and apply in practice. This article explores the importance and examines some of the inherent challenges associated with actively listening to the parties in mediation.
An evaluation of non-adversarial models of negotiation
A distinction may be drawn between models of negotiation which are primarily adversarial and those which are primarily non-adversarial. This distinction provides a starting point for evaluating non-adversarial models of negotiation, including "integrative", "principled". "constructive" and "problem-solving" approaches. This article considers the work of several theorists including Mary Parker Follett, Fisher and Ury, and Carrie Menkel-Meadow. The question is asked: do non-adversarial models of negotiation merely reflect an aspiring ideal for negotiators or do they provide realistic models for practice, particularly for lawyers negotiating within the "shadow of the court"?
A spectrum of contributions that lawyers can make to mediation
In a range of contexts, particularly in court-connected programs, lawyers are involved in the mediation process. There are multiple ways that lawyers can contribute to mediation. In their partisan, supportive role, they can contribute to mediation as experts, advisors, negotiators or advocates. This article elaborates upon the spectrum of lawyer contributions to mediation. Five models of lawyer participation are described and consideration is given to the advantages and disadvantages of each. They are called the "absent advisor", "advisor observer", "expert contributor", "supportive professional participant" and "spokesperson." These provide a framework for legal practitioners to decide, on a case by case basis, the appropriate role to take in mediation.
Limits to the quantitative data on court-connected mediation in Federal Courts of Australia
This article explores three distinct areas on court-connected mediation in the Federal Courts of Australia: (a) the reporting of mediation; (b) the activity measure of court-connected mediation, which is its referral; and (c) the outcome measures, which are demonstrated in the recorded settlement rates. The analysis reveals certain limits, such as blurred reporting terms, contradictory definitions, irregularities in the settlement rates, and absence of registry-specific and case-specific data. It is argued that such limits cloud researchers' abilities to analyse the efficacy and utility of mediation in Australia.
Workplace dispute resolution under the Fair Work Act: Is there a role for private alternative dispute resolution providers?
The Work Choices laws positively encouraged employers and employees to use private alternative dispute resolution providers to assist in the resolution of workplace grievances. The Fair Work Act 2009 (Cth) leaves room for private providers, although without the same robust encouragement of Work Choices. This article reflects upon the advantages and disadvantages of private mediation for workplace rights disputes, and proposes some measures that regulators should consider implementing to ensure that the privatisation of workplace dispute resolution does not compromise the recognition of important workplace rights.
The professionalisation of mediation: Elitism and ethics
In the life of a human being, there is a time of distinction between youth and adult known as the "coming of age". The age varies but the significance of a witness, and of a ceremony of symbology that speaks of meanings and knowledge, is present in all cultures. Within society we also have this passage of rights. For those in the mediation world we are living through this experience, our craft has turned into a profession with all the trimmings, restrictions, and image that goes with it. This article looks at this historic moment using post-modern ideas to deconstruct professionalism. Although this article specifically looks at the mediation world in Australia, it draws on the wider network of leaders and pioneers of the mediation world to reflect on what mattered in the beginning, what matters now, and what to think about in the future.
VOLUME 20 — 2009
Table of Authors