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Innovations in Mediation: Australia and Africa

At the 27th meeting pf the UIA World Forum of Mediation Centres, in Milan, Danielle Hutchinson of Melbourne Australia and Jill Goldson of Auckland New Zealand offered a provocative discussion on “Innovative Approaches to Mediation.”

Danielle introduced “MyDRHub,” an initiative in party-centric dispute resolution.  Referring to Global Pound Conference data, she proposed five party goals frequently observed in mediation – maintain relationships, maintain positions, seek third party intervention, compromise, and minimize resources – and asked the audience to gauge which are most (or least) likely to result in a resolution.  Of them, she reported that, studying a series of conflicts, relationships proved the most indicative of resolution overall, and that seeking third party intervention the least.  Contextually, she also reviewed psychometric research and suggested that certain conditions, such as a perception of threat to safety, make resolution more difficult, while others, such as a broad scope to apologize, make resolution more likely. 

Conflating these concepts, she proposed a disciplined protocol of “triage” by which consideration of both party goals and characteristics of the dispute can identify the disputes most suitable to voluntary, private mediated resolution.  This approach was validated by experience in the Dispute Resolution Centre Victoria, with higher settlement rates in disputes identified through this analytical process as susceptible to voluntary resolution.  The practice of “triage” involves interviewing parties upon introduction of the dispute process to gain an insight into the nature and complexity of both the dispute and party goals, and then using that data to direct the parties to the appropriate mechanism.

Jill reported on innovations in family mediation.  She is skeptical that the law well serves changing social and family structure.  Conflict between separating families is best addressed not simply from a legal point of view, but from a therapeutic perspective as well.  Sorrow, resentment and commitment to children are not susceptible to healthy resolution though formal court processes.  No court order comes near the level of collaborative outcomes as the mere recognition of one parent to the legitimacy of the attachment of the other parent to a child.  She terms the process that yields this outcome “child inclusive mediation.”  When children are given a voice (not a choice) in the process of family restructure, they feel much better.  This is not therapy – it’s dispute resolution with a therapeutic outcome.  Jill’s advocacy resulted in New Zealand legislation in 2014 making mediation of parental disputes mandatory.  According to Jill, “dispute resolution between parents must have at its nucleus the intent to assist child adjustment.” The process therefore is aimed at assisting parents to recognize the primary importance of a shared effort of assisting emotional development of their child, distinct from their “adult” disputes with each other.  There has been some concern from attorneys about a process that does not involve legal representation, and the mandatory nature of these sessions may be repealed despite substantial empirical evidence of its benefit.

Brigette Bouvier and Christian Hausmann reported on recent developments in the coalition of 17 countries known as the Organization for the Harmonization of Business Law in Africa (OHADA).  Among its aims is to create uniform business laws and conventions among African nations, providing relative certainty to investors and business partners.  OHADA uniform acts include such areas as accounting, bankruptcy, accounting, road freight, arbitration and (since its adoption in November 2017) mediation.  Mediation was originally intended to be folded into the arbitration act, but the great distinction between the two processes advised that it be a separate uniform law.  Various ministries and mediation centers were consulted in the 2½-year course of the drafting, a process funded by the World Bank.  Concern was expressed not to intrude into the scope of national legislatures, and the uniform law addresses only business mediation.

The Act excludes judicial or arbitral efforts towards settlement.  Among interesting features, the acceptance of an invitation to mediate suspends the statute of limitations, allowing that process without adverse impact on a legal claim.  Mediators “may make propositions to settle the dispute” but only at the invitation of the parties.  The outcome must “genuinely reflect the parties’ will, while respecting rules of public policy” – a vague and perhaps not useful guideline.  Confidentiality is ensured “unless otherwise agreed by the parties.”  Mediators may not thereafter serve as arbitrators and the legal status of the resulting agreement – i.e., its enforceability – is left to each county’s law.

Christian referred to it as a “pledge,” and its real utility as a commercial matter is yet to be proven as the uniform law is brought to bear in actual disputes.  There are few mediation provider organizations, and few formally trained mediators, in the market.  Many existing mediation centers are inactive or ineffective.  As is the case in so many markets, the challenge remains to advise parties, legal representatives, and courts on the business advantages of privately mediated processes.

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