Comments Off on International Attitudes and Arbitration
Arbitration is a recognised and accepted international dispute resolution process. Because of its universality of application to international trade disputes, it can often come into contact with culturally different practices and attitudes with which it has to deal. International arbitration practitioners need to be alert to not only the different legal regimes and nuances but also the different societal norms and cultural differences.
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 someone’s 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.
Photos tell a story
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 Arbitration) 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.
Comments Off on Multi-culturalism and gender-balanced mediation: How does it work?
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.
Comments Off on Resolving Public Health Conflicts with ADR
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.
Comments Off on Mediators not doing their job properly?
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 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
