May 2002

IN THIS ISSUE President’s Letter • President’s Letter • Conflict Resolution in PP Michael White, VADR President Schools Since 1986 the Association of Victoria, now CHCMED403A Manage communication • Designing a Dispute the Victorian Association for Dispute Resolution, has exchanges to define the dispute Resolution System: been bringing together practitioners and students of CHCMED404A Facilitate the Mediation process The Constraints for alternative dispute resolution in Victoria. Educational Institutions CHCMED405A Facilitate interaction between VADR’s membership includes a diverse range of clients • Making diversity work. practitioners including commercial, community, Using the power of family and workplace mediators, , educators, CHCMED406A Consolidate and conclude the mediation to harness the conflict consultants and associated practitioners. Mediation process power of diversity. One of the key outputs of VADR over the last two CHCMED407A Reflect and improve upon • Book Review years has been the production of a Mediation in professional mediation practice Education brochure, designed to promote the use There are a number of elective competencies. These of mediation and alternative dispute resolution in include: schools. Many Victorian Schools are now adopting mediation as an early intervention strategy to resolve CHCP&R3A Undertake research activities conflict in the playground, classroom and sometimes even the staffroom. The Mediation in Education HLTCSD6A Respond effectively to difficult or brochure will be published and distributed to schools challenging behaviour when we can access funding to print it. In the HLTHIR4A Work effectively in a cross cultural meantime it is online in a printable format at context with Aboriginal and Torres Strait Islander www.ausdispute.unisa.edu.au/VADRbrochure.PDF. colleagues, clients and organisations Thanks are due to the members of the committee who have put in hours of work to bring this project HLTHIR3A Work effectively with culturally to completion and I would commend the finished diverse patients, clients, customers and co-workers product to you and welcome your feedback. CHCAD2A Support the interests, rights and needs Further on the issue of education and mediation, I of clients within duty of care requirements would like to bring to everyone’s attention the CHCNET1A Participate in networks development of a new qualification for mediators. As part of the review of the Community Services There is not enough space here to go into the content Training Package by the Community Services Health of these competencies or even the appropriateness. Training Authority, a Certificate IV in Community However what I wish to do is to highlight that this Mediation has been described. This qualification is process is underway and that it is critical that all competency-based, designed for delivery by interested parties respond to the CSHTA call for Registered Training Organisations (private and input and feedback on this process. This can be done TAFE). The object is to provide a nationally recognised through the CSHTA website at www.cshta.com.au competency based qualification for use by the growing where you will find links to the websites that will number of people involved in community mediation. give in depth descriptions of each of these units of competency. It is likely that once this qualification The compulsory competencies include: is validated, it will be delivered by TAFE and private CHCCD12A Undertake work in the community providers where they find, or can create, a demand. services industry This makes it essential that as many stakeholders as possible from our field have input. The timeframes CHCORG4A Follow the organisation’s are very short as the finalised CSTP is due for release occupational health and safety policies in the middle of the year. If you have not hade input CHCORG5A Maintain an effective work please do so as soon as possible. environment In view of the great interest in the field in standards A Joint Project of… CHCCH4A Work with other services I feel that one of the first places in which we can Australian Dispute Resolution have input to the importance of professional Association Inc. (ADRA) CHCDFV1A Recognise and respond to domestic behaviour and practice is where people are being South Australian Dispute and family violence trained to mediate. Considering how important basic Resolution Association training is to the development of new mediators, CHCMED401A Conduct a sound assessment (SADRA) the development of effective and appropriate training of a dispute for mediation Victoria Association for is a critical step and we should all endeavour to ensure Dispute Resolution (VADR) CHCMED402A Gather and use information that such training meets the needs of the field. for the mediation process

1 onflict Resolution in Schools CC Sandy Cahir The Mediation in Education sub- communities in the primary and secondary Training website, and the Centre for committee of the Victorian Association sectors, and provides case studies for a Adolescent Health website. for Dispute Resolution, has recently range of disputes in school settings. Work on the brochure is a result of the published its brochure on mediation in Advice on the types of conflicts that can collaborative efforts of Sandy Cahir, schools. Titled Conflict Resolution in be mediated in schools, as well as Education & Training Unit, Centre for Schools the brochure provides an overview information on training, is available in the Adolescent Health; Liz Freeman, Senior of the process of mediation, and its value brochure. Conflict Resolution in Schools Lecturer, Faculty of Education, in the school setting. will be valuable for schools implementing University of Melbourne; Fran Gass, The purpose of the brochure is to a whole school approach to the Student Welfare Consultant, Department encourage and help schools to achieve management of conflict. of Education and Training; Monica Hill, co-operative and supportive working Psychologist and Mediator, and Fred Thanks to the efforts of David Baker at relationships between staff, students and Stern, Mediation Trainer and Consultant, SADRA, the brochure can now be parents. The brochure describes the Anglicare, Victoria. Further contact accessed through a link to VADR at positive problem-solving process of details can be found on the brochure. http://www.ausdispute.unisa.edu.au/ mediation, and outlines how, when VADRbrochure.PDF. Finally, the Mediation in Education sub- utilised by schools, less conflict and committee wishes to thank the VADR better outcomes for all involved in a Links to the brochure can also be found committee for its ongoing support in the conflict are possible. The brochure is at the Department of Education and development of this brochure. presented as a resource for school

esigning a Dispute Resolution System: The Constraints for Educational Institutions DD Pat Marshall

This paper has arisen from my roles as • the nature of the client When this unsatisfactory situation occurs, teacher and administrator in education teachers frequently resort to what they • the nature of the service for many years, from my interventions as know and do best - they adjudicate on a mediator, and from teaching post- • the nature of the the matter. In this way, the participants graduate and Masters courses to teachers in the dispute resolution ‘system’ by-pass • the nature of the task. in recent years. negotiation and mediation, and move The Nature of the Client directly from avoidance to adjudication. Many organisations in are adopting dispute resolution systems. First, teachers are very conscious of their The Nature of the Task They understand that while conflict may responsibility to their primary client - the Like most other professionals, teachers be constructive, disputes in the child or young adult. Mandatory are required to make professional workplace often lead to dysfunctional reporting of behaviours such as abuse or judgements. But teachers are required to conflict. Their models frequently take the harassment or bullying has legitimated the make judgements, not only about worth, form advocated by Ury, Brett and teacher’s intrinsic desire to care pastorally but also about rank. Examination Goldberg (1988) of moving from the for the child. Teachers, therefore, seek to systems, tertiary entrance and recognition interest-based processes of negotiation ‘avoid unnecessary power plays’, a fact for students in the fields of academia, and mediation, to the option of rights- argued strongly in a recent paper by one sport and cultural life depend on the based processes, such as arbitration or of my post graduate students (Hickey, teacher’s making sound judgements not rulings by tribunals. Later theorists have 2001, 9). Often, the avoidance of only on the worth of the student’s endorsed this model as being cost ‘unnecessary power plays’ becomes an contribution, but also that worth in effective (Slaikeu and Hasson, 1998, 36) avoidance of dealing with the conflict comparison with others. Other and emotionally satisfying for situation. professionals such as doctors may be participants(19). Ironically, this strategic use of avoidance required to rank one’s client’s need The paper questions why educational as an act of pastoral care can work against against another; the adviser may have to institutions (particularly schools) find it the student and against the teacher - weigh up priorities of the urgency of difficult to design such a dispute against the student because the over-use intervention, but these professionals are resolution system. Of particular concern of avoidance as the preferred model not required on a daily basis to adjudicate is the role schools play in modelling to prevents the student being presented with not only on performance but on motives students effective means of resolving other pedagogical models; against the (as in the case of the recalcitrant disputes. teacher, because power may be subtly adolescent) and, further, on whether or shifted from the teacher to the student not punitive responses should be The Constraints because the ‘real’ issues are not dealt with. implemented. Amongst other In order to maintain social relationships, I propose that the constraints on professionals, the police are the only ones ‘peace at any cost’ is sought, and this applying this conflict management model required to respond in a similar punitive peace may be found in avoiding lie in the following factors: fashion. confronting the issues. Continued on page 3 2 It is no wonder, therefore, that teachers self-efficacy, frequently impede the Resource supports, concentrating resort frequently to adjudicative measures willingness to employ a process which is more on capital works and when trying to resolve conflict. In the controlled by a third party. Such a process technological support. state of Victoria in Australia this imperative is seen as a defeat, an admission of • challenging of is being reinforced in the return to the incapability, when all of one’s professional independence. In schools, we are emphasis on the examination system. life is devoted to appearing capable to frequently caught up with the model young people who are perceived as The Nature of the Service of the independent learner, and the needing that security and reassurance. As model certainly has its place. But we Teaching in schools involves ‘service’ to the ‘expert’ in so many situations, teachers forget that in a complex world more a dual client - the student and the parent, are reluctant to defer to another ‘expert’. can be achieved when we accept whose interests are often antithetical to Indeed, I believe that this reliance on inter-dependence, and realise that those of their offspring. Parents, for one’s own expertise is shared by all inter-dependence does not threaten, example, frequently see the happiness of professionals, and possibly explains why but, indeed, enhances personal their child as residing in security - of we see reluctance among professional efficacy. Workplace realities also examination results and tertiary entrance. groups to use mediation. This is borne highlight how anachronistic is the Students, on the other hand, see their out by Bendersky’s research on a human focus on the individual learner who happiness as being grounded in their resources department in an enterprising is assessed, then ranked competitively relationships - being accepted by their company in which ‘the very fact that an against his / her peers. peers. Further, cross-cultural employee would seek help to confront a backgrounds (Raider, 1995,115) can • recognition of the limitations of problem reflected poorly on him or exacerbate these differences in values interest-based processes. It may be her....Needing a third party to help resolve between parent and child. that rights-based processes may be conflicts implied an inability to perform an more suitable to certain organisations Balancing these interests and negotiating essential job function.’ (1998, 308) and professional groups. Rowe so that both clients achieve their aims is Implications (1997) is helpful in stipulating the immensely depleting of the teacher’s elements of a ‘fair internal process’ emotional and intellectual resources. The The failure to take up interest-based which include: result of this depletion is that little energy dispute resolution processes is too often is left to negotiate with the other entity attributed to a lack of expertise among o ‘reasonable timeliness, impartiality with whom there is an inter-dependent teachers, or to the lack of will of the of investigation and decision relationship, namely the colleague. School Principal. While both of these making and freedom from Indeed, anecdotal evidence indicates that issues may need addressing, the structural arbitrariness and capriciousness’ inter-collegial disputes are the cause of conditions I have identified create greater (94). I would add that a fair the greatest anxiety and stress. Such impediments. process is one that is agreed on disputes arise in the resource - depleting by stakeholders, is transparent Costantino and Sickles Merchant (1996) context of providing service to two and seen to be based on objective support this contention. They equally demanding, but frequently criteria. acknowledge that ‘those ADR methods diametrically opposed, client groups. that are congruent with the organisation’s I propose that the four variables I have When such depletion occurs, negotiating characteristics are more likely to be identified be addressed when we are ability is eroded. In the model advocated identifiable to disputants and used by assessing the suitability of dispute resolution by Ury, Brett and Goldberg, inability to them recurrently’(122). processes in any work environment. negotiate encourages the parties to move Understanding these constraints will have Pat Marshall is Director of Marshall to the involvement of the third party, an impact on: Enterprise Learning and a consultant to either the mediator or arbitrator. organisations in education and training, Mediating or arbitrating practitioners see • training. While conflict resolution conflict resolution strategies and process, an important difference between the two may involve the use of generic skills, and a consultant in mediation of disputes interventions, but, in my experience, training itself should not be generic. and facilitation of group processes. She is a teachers equate the two. I believe this Instead, stakeholders should be lecturer in the Dept. of Learning and equation arises from the third factor, the identified and training targetted at Educational Development at the University nature of the culture. the specific situations requiring of Melbourne, and Co-ordinator of the negotiation with those with whom Mediation Short Course and Mediation in The Nature of the Culture one has an inter-dependent Education, School of Behavioural Science, Conventional wisdom states that teachers relationship. In the case of the University of Melbourne. As well she is a find autonomy in the classroom, and that teacher, this relationship exists with gazetted mediator with the Dept. of Justice, they work often as isolationists the student, the parent, the colleague Victoria. (Hargreaves et al. 2001). These barriers and the school administrator. References are breaking down under the new wisdom • resource allocation. Establishing the Bendersky, Corinne (1998) Culture: the of ‘teacher as facilitator’ (Heron, 1993) costs of conflict in terms of stress, Missing Link in Dispute Systems Design rather than the fount of knowledge, and absenteeism, and resignations Negotiation Journal teacher as team member rather than provides vital data against which isolationist. But even though the required 14 No 4 October 1998, pp 307 - 311 resources can be allocated. In this behaviours are changing, the same values way, the points of greatest stress can Costantino, Cathy A & Sickles Merchant, may be present particularly when we be identified and resources targetted Christina (1996) Designing Conflict consider that the average age of at those points. Schools, for example, Management Systems San Francisco: Australian teachers is early forties. So the make too infrequent use of Employee Jossey-Bass values of autonomy, independence and Assistance Programs, or Human Continued on page 4 3 …continued from page 3 Hargreaves, A., Earl, L., Moore, S. & Manning, S. (2001) Learning to Children in Focus Change: Teaching Beyond Subjects and A professional development program for practitioners working with separating parents Standards San Francisco: Jossey-Bass Publishers The Australian Institute for Primary Care in Conflict, Children in Focus; and at La Trobe University is organising a Workshop 2: Child Inclusive Practices for Heron, John (1993) Group Facilitation: series of Symposia and Workshops for Mediation and Counselling. Participants Theories and Models for Practice New dispute resolution practitioners, can attend part, or all, of the Program. Jersey: Nichols Publishing Company counsellors, therapists and other Resource materials, follow-up support professionals who work with separating and supervision opportunities will also Hickey, Jennifer (2001) Managing parents. be available. Conflict in Educational Settings Unpublished paper in Master of Developed and run by leading Australian The Children in Focus program will Education, University of Melbourne and international experts in child provide multiple levels of input and skill psychology, family , mediation and development around child focused Raider, Ellen (1995) Conflict Resolution counselling, and family therapy, the practice in parental separation, Training in Schools. In B.B. Bunker, Children in Focus program will be particularly exploring Family Law related J.Z. Rubin & Associates Conflict, delivered nationally from May until implications for supportive yet directive Cooperation and Justice: Essays Inspired September 2002. The program is practice in mediation, conciliation and by the Work of Morton Deutsch San auspiced by the Federal Attorney- counselling. Other professionals who Francisco: Jossey-Bass Publishers General’s Department. frequently deal with separating families will Rowe, Mary (1997) Dispute Resolution in The central aim of Children in Focus is also find this training helpful. In particular, the Non-Union Environment. In to raise awareness of the centrality of the program will be useful for practitioners Sandra E. Gleason(ed) Workplace children in family disputes, legally and dealing with high conflict couples. Dispute Resolution East Lansing: psychologically, and to promote Further information can be obtained Michigan State University Press pathways for achieving child-sensitive by contacting Mary Caruana Slaikeu, Karl A.& Hasson, Ralph H. outcomes at various points of contact Australian Institute for Primary Care (1998) Controlling the Costs of Conflict: with parents during separation - 5th Floor How to design a System for Your principally through counselling and Health Sciences Building 2 Organisation San Francisco: Jossey-Bass mediation. La Trobe University 3086 Publishers Three distinct training forums will be Telephone (03) 9479 3934 provided, designed to build upon Fax (03) 9479 5977 Ury, B.L., Brett, J.M. & Goldberg, S. Email [email protected] (1988) Getting Disputes Resolved: existing expertise in the field. These are: a Children in Focus Symposium Website: Designing Systems to Cut the Costs of http://www.childreninfocus.org Conflict San Francisco: Jossey-Bass (featuring a presentation by Dr Joan Publishers Kelly, California); Workshop 1: Parents

aking diversity work. Using the power of mediation to harness the power of diversity. MM Jock Noble

As the Australian workforce becomes group, the less integrated the group is emotion and express their frustrations. increasingly diverse, one can no longer likely to be, and the greater the likelihood Yet how many companies provide a forum refer to a typical employee, a typical of conflict. for disputing staff to express frustrations manager or a typical customer. Today’s constructively? When conflict and high All people and all organisations have ways workforce varies considerably with respect emotions arise at a staff meeting, a of dealing with conflict. Whether conflict to values, beliefs, work-life expectations, manager will typically be expected to ‘take is valuable as part of a creative and racial background, , age, sexual control’ of the situation, usually problem solving approach or destructive orientation, and religious beliefs. harboring his / her own fears about and leading to the breakdown of Research shows that workforce diversity allowing a situation to ‘escalate’, or ‘get relationships, depends entirely on how it increases corporate creativity, out of control’. Managers typically is managed by the participants and those productivity and problem solving manage using the power that has been around them. The question is, whether capabilities, as well as giving companies conferred on them, by making decisions today’s managers are equipped to deal greater flexibility in adapting to change. and giving orders, irrespective of the constructively with disputes. Studies have Diverse work teams also have the capacity ramifications that these decisions may shown that the tools managers normally to consider a greater range of perspectives have on other affected parties. Once a use to deal with conflict are in fact and to generate more high quality conflict arises, more instructions, rules or inclined to create it, and disputants solutions than less diverse groups. pronouncements are unlikely to possess themselves typically do not know how to the characteristics that will lead to a Companies are beginning to introduce create positive options and outcomes for durable resolution. Disputes between policies that recognise there is value in themselves. Organisations spend managers will typically flow on to the staff promoting workforce diversity, however, enormous time, energy and money below them. If managers do not although diversity can lead to the cleaning up messes created after long recognise their role as an underlying cause opportunities and human resource ignored or hidden issues erupt. of a problem, they are likely to project benefits described above, other studies For example a key part of resolving any subsequent problems onto other workers, show that the greater the diversity in a conflict, is allowing the disputants to vent in another form of ‘blame the victim’. Continued on Page 5 4 Rather than allowing disputes to become • resolve the dispute as quickly as assumptions: destructive, managers need to develop possible and avoid legal or other costs • conflict is both inevitable and skills that will enable them to make • enable fair agreements to be reached solvable conflict resolution a constructive process. that can be implemented and will From a mediator’s point of view, durable • diversity is valued and conformity is have durability resolutions are only possible when all not required parties are satisfied with the result. This • ensure that if a subsequent issue • most situations can be improved means that the interests of all parties must arises, an agreed process will be in be explored to determine how many of place to seek resolution. • each side in a dispute has a piece of each party’s interests can be met. the truth and a piece of the solution Trust is also one of the first things to Conflict is often seen as negative or break down in conflict. In most disputes • there is no one right answer destructive and something that should be participants are unlikely to trust each • there are similarities as well as avoided or suppressed. Exploring diverse other or a process, without the differences between people in conflict views or opinions is seen as likely to create intervention of a neutral and independent division and so is criticised, overlooked third party, such as a mediator. • history needs to be acknowledged, or ignored. Hierarchy and the power of but present problems are the ones to All organisational disputes are either likely individuals inevitably creates a ‘them and solve. to be ignored, arbitrated involving the us’ mentality, and when a conflict arises authority of a manager, follow A compelling argument for having the perception is that it will be settled in organisational policy and grievance external, neutral mediation as part of a a win-lose outcome. procedures, involve adversarial company’s dispute resolution process is Managers need to understand that negotiations between unions and that disputants are more able to trust a conflict is normal and natural and can employer bodies or resort to the legal process that can explore underlying provide an opportunity to talk about system. However an examination of each interests, as well as maintaining issues openly and honestly. It can help of these alternatives (unless mediation is from corporate files and people to develop trust and establish prescribed by the system) suggests records. In a corporate setting, the authentic relationships. When conflict is that the most likely outcome will include manager who may purport to be neutral well managed it can bring increases in a winner and a loser. to the outcome of the dispute to the energy and productivity into a workplace. parties, will only be neutral to the extent A manager’s natural inclination (in fact In traditional power relationships, that it fits with their own interests and the reason that they often succeed as conflict can lead supervisors and then also the interests of his or her managers) is to quickly assess a situation subordinates to recognise that they have company. and options, and to implement a decision. mutual interests that can be worked on For many successful managers, canvassing One of the restraints to designing a collaboratively. the views of other interests is akin to conflict management system is that According to American, Taylor Cox, market research of the stakeholders, to companies are likely to have power managers typically spend one third of establish what the manager believes they hierarchies, rules and cultures that will their time dealing with conflict and need can ‘live with’. This approach does little impede free design of an alternative assistance from experts in developing and to meet the underlying interests of the dispute resolution system that includes applying alternative conflict management parties in most disputes. There are a mediation. techniques and mediation. number of common elements to the Organisations and management that fail resolution of any dispute, however unless Mediation, with its lower costs, greater to harness the power of workforce the disputants perceive that there is a employee satisfaction, maintenance of diversity not only risk significant costs, possibility for a solution, the most likely better relationships and fewer reoccurring but also lose the opportunity to develop option is to avoid dealing with the disputes, must be in the best interests of significant competitive advantages to dispute, or allow it to continue or corporations. But two issues arise; firstly, generate innovative and creative ideas and escalate. few managers are trained in interest-based to tap into all aspects of their potential conflict resolution, and secondly, The advantage of mediators is twofold: markets. managers often do not have the necessary firstly they educate disputants in ways that Jock Noble is Chief Executive officer of neutrality to conduct successful can increase the size of the pie to be Diversity@work. Jock is responsible for . A 1999 empirical study of shared by the stakeholders, and secondly developing the training package, Opening ombudspersons in organisations revealed they introduce skills that differ from the the door for people with a disability, which is that disputants were less prepared to be dominant managerial culture of win and delivered Australia wide. Jock has flexible in seeking solutions when peers lose. Successful mediators will hold a completed a Masters Degree in Enterprise made recommendations, irrespective of number of key assumptions and part of Innovation with the centre for Innovation their quality, than when third parties were the process of the mediation will be and Enterprise, and is currently undertaking post-graduate studies in mediation and involved (Arnold and O’Connor 1999). convincing the participants to share these conflict resolution at La Trobe University. assumptions. Primary amongst these is The guidance that mediators working in He guest lectures on Diversity at both that the dispute is solvable, that it is likely corporations will provide, differs from the Melbourne and Monash Universities, and to be in the best interests of the parties way in which untrained managers are is an associate trainer with the Canadian- to develop a solution, and that the parties likely to resolve disputes. Mediators are based conflict management consultancy, themselves have the power to resolve their trained to: The Trillium Group. dispute. Arnold, Josh A. and O’Connor, Kathleen M. • allow all disputants to express their Authors Wilmot and Yarborough propose Ombudspersons or peers? The effect of third- frustrations and feel heard that successful mediations in party expertise and recommendations on negotiation. Journal of Applied Psychology; • settle the dispute, while maintaining organisations are based on the following Washington; Oct 1999 or improving relationships Continued on Page 6 5 …continued from page 5 Augsberger, David. W. Conflict Mediation Across Fisher, Roger and Ury, William; Getting To Yes, Stitt, Allan, J. Alternative Dispute Resolution for Cultures. Louisville, KY: Westminster/ John Negotiating Agreement Without Giving In; Organisations; John Wiley and Sons; Canada Knox Press, (1992) Penguin Books 1991 Ltd 1998 Cox Taylor, H. Jr. and Blake Stacy Managing Lax, D. and Sebenius, J. The Manager as Thomas, Roosevelt R. Jr. Building a House for cultural diversity: implications for Negotiator, ch 2 (The Negotiators dilemma) Diversity. New York, NY. American organisational competitiveness. Academy of The Free Press, New York 1986 pp 29 - 45 Management Association. 1999 Management Executive. 1991 Vol.5 No 3 Karim, Ahmad; Stone, Thomas H.; Mediation Tjosvold, Dean and Johnson , David. W. eds. Cox Taylor, H. Jr. Cultural Diversity in Outcomes and Sources of Impasse: An Productive Conflict Management: Perspectives Organisations. San Francisco. Berrett-Koehler Empirical Investigation; Journal of Labour for Organisations. Edina, Mn: Interaction Publishers 1994 Research; Fairfax; Summer 1986 Book Company,1989 Evans Sybil, Conflict Resolution An Essential Louise Rowland, People Profit and Aging Report. Ury, William, L., Brett, Jeanne M. and Goldberg, Ingredient for Work Force Diversity. Cultural Jobs East Melbourne 1999 Stephen B. Getting Disputes Resolved. Jossey- Diversity at Work, Vol 4:1 Published by The bass Publishers San Francisco 1988 GilDean Group. September (1991) Milliken, Frances J. and Martins, Luis L. Searching for Common Threads: Xiaohua Lin; Germain Richard; Sustaining Evans Sybil, conflict in the organization: sources Understanding the Multiple Effects of satisfactory joint venture relationships: the rle and solutions. Cultural Diversity at Work, Vol Diversity in Organisational Groups; Academy of conflict resolutions strategy; Journal or 6:2 Published by The GilDean Group. of Management Review 1996, Vol 21. No 2, International business Studies; London; First November (1993) pp402-433 Quarter 1998 Evans Sybil. Resolving Conflict in a Diverse Moore Christopher W.; The Mediation Process Yarborough, Elaine and Wilmot, William W. Workplace. New York, NY. Amhearst Second Edition; Jossey-Bass Publishers San Artful Mediation, Constructive Conflict at Educational Publishing. 1997 Francisco 1996 Work, Cairns Publishing, Boulder Colorado (1995) Feistier, W.L.F., Abel, R.L., and Sarat, A.; The Purdon, Sheelagh and Noble, Jock; Opening The Emergence and transformation of Disputes: Door for People with a Disability Naming, Blaming, Claiming; Law and Diversity@work Melbourne 2000 Society Review, 1980-81, 15, 631-654

ook Review BB Reviewed by Jane Picton

Mediating Dangerously: The Frontiers of Conflict Resolution. Kenneth Cloke, 2001, Jossey-Bass, USA

What an intriguing title! Kenneth interacting with the parties and empathy and the ability to find the Cloke, the author of this book, is the reflecting on possibilities, based on inner connection between both sides’ Director of the Centre for Dispute intuitive assessments (p.12). The term stories. He seems to imply that rigid Resolution in Santa Monica, intuitive may disturb some, although neutrality can prevent a move forward California. Cloke writes from vast probably all mediators will have to a real resolution of the dispute. experience of over 30 years of not only experienced a session when they were What he is proposing is a method of being a mediator, but also an aware of their own feelings about mediating which is more interactive, arbitrator, judge and university what is occurring, but cannot explain and, as he describes it, more professor. He writes easily and exactly why they are reaching a dangerous because of the risk taking. convincingly, advocating a modified conclusion at that point. But he considers that this produces transformative model of mediation, results and real settlements. This is an Cloke does not recommend which he sees as primarily an interesting argument as it is an aspect discarding the mediation process or interactive process engaging the which is often of concern to mediators structure, but adding ‘skill, intuition, disputing parties. that by expressing an opinion of any flexibility and the ability to be kind it can be misinterpreted as being Cloke believes that as ‘mediators we dangerously honest and empathetic’ biased. need to avoid producing agreements (p.12). He believes that in a directive that do not resolve conflicts but or facilitative or transformative model, Cloke usefully discusses various ways merely suppress, silence or settle them, mediators tend not to express their of managing emotions that are that result not in growth but in own views, but emphasise their frequently embedded in a conflict. reluctant acquiescence and ending neutrality. These include fear, revenge, discord’ (p.5). As an alternative, Cloke attachment, grief, passion, shame, The author makes some interesting suggests that mediators should power and rage. observations about neutrality and its consider using a modified version of meaning and value. He believes that The second half of the book makes Folger’s (1994) transformative model, parties to a dispute sometimes see the interesting reading with its coverage which is ‘based on a more intuitive, mediator’s neutrality as a ‘mask for of dispute resolution in the wider integrative, dangerous approach to partiality or indifference’, but that community and internationally. mediation’ (p.11). He advocates not what is actually needed is an Overall this book is a valuable directing, but also not standing back ‘appearance of neutrality’ with an contribution to mediation literature. either from the parties’ conflict, but

6 ediation Training for East Timorese Public Servants MM Tony Fitzgerald Co-ordinator, Resolve Darwin In November 2000 Anglicare Top End, system to handle fundamental land potential of dispute resolution through through its Resolve Mediation service, disputes, there was a risk of widespread mediation to indirectly benefit (through was approached by the Land Property social disharmony and even violence. enhanced community harmony) other Unit of UNTAET (UN Transitional sectors of Timorese society. Both the Unit and Resolve were aware Administration in East Timor) (‘the that in the present climate an ideal Training lasted for 5 days in the ‘Harbour Unit’) to train its Timorese staff members opportunity existed (and still exists) to Room’ of Christ Church Anglican in mediation and dispute resolution. The weave mediation into the Timorese Cathedral on the Esplanade which is an approach was made by former NT Chief dispute resolution fabric. The benefits of excellent venue and available for hire for Magistrate Ian Gray who headed the Unit mediating disputes, rather than using those interested. Devised and presented at the time. some form of adversarial dispute by Darwin-based trainers and stalwart At present land tenure in East Timor is resolution, are well documented. They members of the Law Society’s ADR governed by an unmanageable hybrid of include allowing the disputants to retain Committee Tony Fitzgerald (Co- traditional (customary) law, Portuguese control of the dispute, maintenance of ordinator Resolve) and Pat McIntyre law (the Portuguese came for sandalwood relationships through co-operative (mediator and barrister), the course and departed after 400 years), Indonesian problem solving (of crucial importance consisted of formal instruction, role plays, law (25 years of Indonesian occupation) in the area of ongoing land management), observation of the Supreme and and UN law. There is no Titles Office as and significant savings in cost and time. Magistrates in session, and the Indonesians during their exit from observation of an actual mediation using It was originally proposed to train ten Timor destroyed it, together with the old Resolve’s closed-circuit TV system. Timorese employees of the Unit in Darwin. Registry and all its records. The fledgling Indigenous Timorese trainees were targeted The trainees’ language of choice was and under-resourced court system is because of their ability to deal with local ‘Bahasa Indonesia’ which was managed unable to allocate a high priority to land and cultural issues and their demonstrated with the able assistance of a tag team of tenure disputes. interest in assisting their compatriots to two brilliant ‘interpreteuses’- Umi Rasmi, The Unit is responsible for the resolve their own land disputes. a Darwin-based Indonesian woman, and management of land tenure and related Siobhan Campbell, a Dili-based In the event eight trainees arrived for five land use problems in East Timor. It is Australian woman. days training in early December 2000 envisaged that the Unit will eventually after two contracted TB. and were refused The trainees were enthusiastically become the ‘Titles Office’ of East Timor, entry. They were a most impressive and received by members of Darwin’s but before that transition takes place a new spirited group of indigenous Timorese Timorese community - members of titles Registry must be created - and this men - ranging from young recent law which attended the graduation ceremony requires the resolution of many disputes. graduates (Indonesian educated) to and dinner, provided the venue for the Timor has an agrarian-based economy, public servants who had worked for many ceremony (the Portuguese Timor Social and stable management of land is years in the Indonesian civil service in East Club), catered for the dinner, and absolutely essential to the well being of Timor. All were committed to the arranged for the trainees to appear live its society, its economy, and its people. advancement of their nation, but under on Community Radio Indonesia recognised this by giving its no illusion as to the daunting nature of Total costs of the project were met jointly official sanction to customary Timorese their brief. In the East Timorese context, by Anglicare and the Unit. It was a well title. The Unit realised that, in the where land tenure is fundamental to the received course. absence of a viable dispute resolution way of life, they were interested in the

ADR: Negotiation & Mediation Skills Certificate Workshops Presented by: The University of Melbourne Faculty of Law and The Trillium Group The ADR and Advanced Workshop are participant-focused, skills building, intensive workshops. At the conclusion of each workshop, participants will receive a certificate from the University of Melbourne, Faculty of Law.

ADR WORKSHOP At the ADR Workshop, you will learn how to: Brisbane • understand what type of negotiator you are April 23-26, 2002 • be a more effective negotiator For further information contact: • know when a deal is a good one • handle difficult and uncooperative people Wendy Beech at (03) 8344 0348 • mediate others’ disputes Toll-Free: 1800-636-869 • and more… www.adrworkshops.com

Continued on Page 8

7 IV International “SOS” Conference of the World SETTLEMENT ONLINE Mediation Forum SYSTEMS

When crossing the final gap prevents parties reaching an agreement and the parties are at an impasse an innovative Building Peaceful Co-existence: service now offers an online settlement service that may be Mediation and Negotiation in a an option for the parties to consider. Conflictual World New Financial Settlement and Dispute Resolution Service Buenos Aires Sheraton Hotel & A web-based consensus-oriented process for resolving Convention Center Buenos Aires, financial disputes SETTLEMENT ONLINE SYSTEMS Argentina 9-11 May 2003 “SOS”, is now available online or offline in Australia and Organisers World Mediation Forum is proving to be an invaluable part of the mediator’s ‘tool kit’. AsociaciÛn Interdisciplinaria de This new independent ADR service offers a speedy and MediaciÛn en la Cultura y la Sociedad. cost efficient settlement process for any type of financial DelegaciÛn del F.M.M. The next claim where the issue is one of quantum. Developed by conference chairperson is Professor two lawyers and mediators, SOS provides a confidential, Juan Tansk. automated negotiating process that encourages both parties to a financial dispute to reach a fast, cost effective For further information: final settlement without having to go to court. • If you wish to receive more Negotiations are without prejudice as positions are never detailed printed information, disclosed because neither party ever sees what the other please send us your mail address. party has demanded or offered. • If you know other colleagues that SOS can be used successfully in a wide range of dispute may wish to receive information, situations with which mediators are familair, including: please send us their e-mail.

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8 ADR Forum Wednesday 12 June 2002 5pm to 7pm Level 8 Exchange Plaza Conference Suite no 2 The Esplanade, PERTH, WA You are cordially invited to participate in a consultative forum on ADR convened by the National Alternative Dispute Resolution Advisory Council (NADRAC).

Forum aims To provide information on NADRAC’s work To gain input from participants in relation to NADRAC’s priority areas • Effective use of ADR by courts and tribunals • Promoting the appropriate use of ADR • Enhancing quality and consistency in ADR • Supporting diversity and innovation in ADR • Improving ADR research and evaluation Program • Opening by Hon. Daryl Williams AM QC MP, Commonwealth Attorney-General • Address by the Hon. Chief Justice David Malcolm AC, WA Supreme Court • Overview of NADRAC activities by Professor Laurence Boulle, chair of NADRAC • Questions and comments • Small group discussion, and report back • Light refreshments provided Information www.nadrac.gov.au or 02 6250 6272 Registration phone 02 6250 6272 fax 02 6250 5911 e-mail [email protected]

The Australian Family Mediation Association was launched in Melbourne in February 1999. Our goal is to support, promote and develop the use of family mediation in Australia. Anyone interested in joining or finding out information about AFMA, please contact

Dawn Rees –

By Telephone: (H) (03) 9523-6565 By Fax: (03) 9523-6464 By Email: [email protected]

9 CC COURSES & TRAINING February 28, 2002 on a consultancy basis for organisations. NEW SOUTH WALES • Mediation Short Course Dates are available on our website or Commences March 8, 2002 LEADR, National Dispute Centre by contacting our office. • Applying MBTI in Conflict Situations Level 4, 233 Macquarie St, Sydney, NSW Contact: Andrew Horsfield April 6 & 7, 2002 2000 National Training Manager • Gifted Children at peace Tel: (03) 9899 9850 Tel: 1800 651 650, (02) 9233 2255 April 21, 2002 Fax: (02) 9232 3024 Fax: (03) 9899 9851 • Mediation by Distance Education Email: [email protected] leadr.com.au Commences June 12 • Lawyers and Mediation Workshops, 4 Web: www.refs.asn.au Weekend Workshop July 20 & 21 2002 day • Managing conflict in planning • Refreshers to assist with Accreditation. Relationships Australia July 5, 12, & 19, 2002 A Practical guide to Mediation • Advanced Mediation Workshop • Advanced Course in Mediation [email protected] 2 WORKSHOPS July 27 & 28, 2002 Introductory course (2.5 days) Mediate Today • Step by step guide to mediation, Detailed course descriptions and Contact: Lorraine Djurican • Specific skills in all forms of dispute: application forms can be obtained from Tel: (02)9223 2255 Fax: (02)9223 6058 • Divorce, family, industrial; our website: • Suitability for mediation, www.psych.unimelb.edu.au/icrc or contact Relationships Australia (NSW) • Case studies, Ms Helen Fawkner Ph 83447035 Fax • Practical exercises, Suite 1902 Tower 1 93476618 500 Oxford St • Videotape work. Bondi Junction NSW 2022 Intermediate course (3 days) Family Mediation Centre Tel: (02)9387 4211 Fax: (02)9387 7485 • Build on existing knowledge and skills, Level 4 1001 Nepean Highway • Cultural aspects, Mediation Courses: Moorabbin Vic 3189 • 42 hour over 4 weeks, Sydney • Intake procedures, Contact: Marie Garric • Parenting plans, • 16 week x 6 hours pw, (VETAB Tel: (03) 95559300 Fax(03) 95551765 Accredited) Sydney • Handling difficult, emotional clients. [email protected] • 6 day, over 3 weeks Mediation Course, • Experiential exercises. http:www.mediation.com.au Sydney; Newcastle • Videotape work. 3 day Family Mediation Training Courses Venue: 46 Princess Street, Kew, Victoria • 1 day ‘Conflict in Community Based Level 1 Organisations’ Enq: Ena Shaw 9432 3033 25, 26, & 27 March 2002 The 2 courses together comply with Continuing Mediator Education Program 29, 30 &31 July 2002 (Sydney) training requirements for family & child Level 2 mediators in the Family Law Regulations, 24, 25 & 26 June 2002 [regulation 60(1)(b)]. The Accord Group 28, 29 &30 October 2002 Level 2, 370 Pitt St, Sydney NSW 2000 Training offered on a consultancy basis Application forms available from the tailored to special needs. Tel: (02) 9264 9506 Fax: (02) 9264 8268 website • Commercial Mediation Training, 4 day Relationships Australia Training link [email protected] course. Dalia Loannides • In-house courses in conflict resolution www.relationships.com.au Administration Manager and negotiation. Family Mediation Centre (03) 9555 9300 Australian Commercial Disputes Centre QUEENSLAND Level 6, 50 Park St, Sydney NSW 2000 Barwon Youth Accommodation Service Alternative Dispute Resolution Branch Contact: Jeff Kinder Geelong, Victoria Dept. of Justice GPO Box 149, Tel: (02) 9267 1000 Fax: (02) 9267 3125 Professional Mediation Workshop Brisbane, QLD, 4001 Tel: (07) 3239 6277 www.acdc.com.au 2-Day workshop structured on Fax: (07) 3239 6284 Mediation- Accredited 3-day courses competency-based learning principals. An Mediation Skills Course (stages 1,2 & 3) in: introduction to the process, negotiation 5 day introductory course for people • Workplace skills, problem solving and how to identify wishing • Business and Commercial Mediation key issues. to gain a basic understanding of mediation • Local Government Contact: Steven Smith process and essential skills. 1 day certificate course in local Tel: 52232966 Fax: 52290102 government dispute resolution [email protected] Relationships Australia 1/2 day course ‘Pick the Process’- 159 St. Paul’s Terrace, Spring Hill, QLD, choosing the right form of ADR REFS Mediation & Conflict Resolution 4000. Training Diploma of Mediation (Co-Mediation) Conflict Resolution Services Part A An introduction to the process Contact: John Cleary Tel: (07) 3831 2005 P.O. Box 671, Dee Why, NSW 2099 and principles of mediation using the Fax: (07) 3839 4194 [email protected] Tel: (02) 9972 3955 Fax: (02) 9972 9620 REFS co-mediation model. Develops an [email protected] understanding of the use of mediation as Master of Dispute Resolution Contact: Christine James an early intervention strategy in conflict. www.bond.edu.au/law/index.htm • Mediation, facilitation skills training. Part B Assists mediators to develop email: [email protected] • In-house training tailored to your needs negotiation skills, handle common Dispute Resolution Centre, Bond problems and overcome barriers in University, mediation. Gold Coast, QLD 4229. Tel: (07) 5595 VICTORIA Part B also introduces participants to other 2039 Melbourne University mediation models and conflict resolution. Fax: (07) 5595 2036 Email: Mediation Skills Training Part A and B combined comprise a [email protected] International Conflict Resolution Centre Nationally Accredited short course 3-day Basic Mediation Course • Mediation for managers in Mediation and Conflict Resolution. 4-day Advanced Mediation Course February 11-14 2002 Training will be offered throughout • Children’s Reactions to Global Trauma Australia and can also be provided COURSES & UNIVERSITY CERTIFICATES CC TRAINING UU DIPLOMA, DEGREES SOUTH AUSTRALIA NEW SOUTH WALES Conflict Management Research Group, School of Social Work & Social Policy, Southern Cross University University of South Australia, Bachelor of Social Science with Counselling and Mediation Studies Major St Bernard’s Rd, Magill, Bachelor of Legal Studies South Australia, 5072 Director: Dale Bagshaw Tel: 61 8 8302 4375/8, University of Western Sydney Mob: 0413 536 136 Fax: 61 8 8302 4377 Graduate Certificate in Dispute Resolution email: [email protected] Graduate Diploma in Dispute Resolution Personal website address: Master of Dispute Resolution http://www.unisanet.unisa.edu.au/staff/ Homepage.asp?Name=Dale.Bagshaw Conflict Management Research Group University of Technology Website address: http://www.humanities.unisa.edu.au/ Faculty of Law, Post Graduate Studies: cmrg/ Graduate Certificate in Dispute Resolution The Australian Dispute Resolution Directory Master of Dispute Resolution Website address: http://www.ausdispute.unisa.edu.au Macquarie University Program Director: Master of Social Work; Master of Conflict Management; Graduate Graduate School of Management: Diploma in Conflict Management; Post Graduate Diploma in Conflict Management Graduate Certificate in Mediation. Program Macquarie University School of Law also offers various courses. information and course outlines available on the following Charles Sturt University website: Graduate Certificate in Dispute Resolution (by Distance Education) http://www.unisa.edu.au/discipline/ http://www.csu.edu.au eas.htm Visit our special Culture of Peace News Media Network (CPNN) website. CPNN is a SOUTH AUSTRALIA global University of South Australia website established in partnership with the International Conflict Resolution Centre at Division of Education, Arts and Social Sciences The University of Melbourne and Graduate Certificate in Mediation (Family) UNESCO for the Year of Culture and Peace: Graduate Diploma in Conflict Management http://www.peacekeys.com.au Master of Conflict Management

TASMANIA VICTORIA Positive Solutions, 11 Liverpool St, La Trobe University Hobart, Tas 7000 Contact: Lyn Newitt or Megan Kube School of Law and Legal Studies Tel: (03) 6231 1301 Fax: (03) 6231 1969 Graduate Diploma in Family Law Mediation Email: [email protected] www.positivesolutions.com.au Graduate Diploma in Conflict Resolution A Registered Training organisation, Graduate Certificate in Conflict Resolution offering Nationally accredited courses in: Mediation Skills & Conflict Management. QUEENSLAND (12726 QLD) 5-day course plus 2-day skills audit. The University of Queensland Dealing with Conflict (NCS 005) Negotiation Skills (NCS009). (T C Beirne School of Law) Other courses available are: Graduate Certificate in Applied Law Family &Child Mediation, a 6-day course. Tailored courses to meet your needs. email: [email protected]

www.http://www.uq.edu.au/law/ SADRA VADR Committee ADRA Board of ADRAQ

Committee President Management Michael White Chairperson President Chairperson Ph/Fax: (03) 9455 0552 Natalie Fuller Val Sinclair 0419635345 Sophie Langlois [email protected] Vice President Deputy President (07) 3344 4621 (ah) Deputy Chair Jock Noble David Baker 0418 891 807 Salli Browning (07) 3361 3517 (bh) [email protected] Secretary Secretary Secretary Robin Rankin Ruth Charlton [email protected] Melana Virgo Treasurer (ah) [email protected] Treasurer Jane Picton Paula Castile [email protected] Treasurer (bh) Rodney Foster Newsletter Newsletter Editor [email protected] Carole Grace Marilyn Scott Newsletter Editor [email protected] [email protected] Deputy Chairperson Rosemary Thompson Peter Johnstone Committee [email protected] Committee 0402 782496 Malvena Braw Garth Brown Committee Max Jackson Dale Bagshaw (08) 8302 4378 Katherine Johnson [email protected] [email protected] Rosaline La Vie Ian McKendry Adina Parkes Tania Sourdin Alison Elder Vanessa Richardson [email protected] Steven Smith Chris Jefferys Stuart Wilkinson [email protected] Cornelia Leypoldt (08) 8204 2949 Darren McGeachie [email protected] ADRA, VADR and SADRA accept no responsibility for the accuracy of material printed. Views expressed do not Robyn Ressom necessarily reflect those of the Associations. Material may be [email protected] copied from the newsletter if acknowledgement is made.

Deadline for Articles for Next Issue of Mediation News The deadline for articles for the next issue of Mediation News is 31 May 2002. Please send articles, letters, news items, book reviews to: Mediation News, C/- Rosemary Thompson, Email: [email protected]

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