Mining Frank Sander’s Legacy – Triage And More In A Bold Australian Experiment

National Mediation Conferences are important events. Apart from the great opportunities to network with fellow professionals there is the really important opportunity to see the intersection of research and practice at work.

Last month’s Australia’s National Mediation Conference did not disappoint.

For me the highlight was becoming acquainted with a bold Australian initiative sponsored by the Dispute Settlement Centre of Victoria (DSCV).

Focussing on community disputes about things like fences, trees and noise the Centre had an ambitious plan to:

• devise a reliable process to identify their user profile and the differing levels of complexity their disputes presented;
• adopt the Sander approach and ‘’fit the forum to the fuss’;
• establish realistic settlement rates based on dispute characteristics; and
• develop a realistic budget to ensure the outcome could be realised.


The process – build a strong research base

The first step for the DSCV was to find the right project leader.

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They found the perfect custom-made candidate in Danielle Hutchinson. Co-Founder of Resolution Resources, a lawyer, mediator and academic, Danielle was already an ADR Specialist at the DSCV.

Seeking a sound structural base for the project, she drew on 3 key research resources which provided learnings about the relevance of party goals and dispute features namely:

• The Singapore report by Danielle Hutchinson and Emma-May Litchfield (2016)

This was the inaugural report from the Global Pound Conference Series 2016-17. In this report the authors identified the needswants and expectations of parties in dispute and placed them on a continuum – creating three levels of ‘dispute-savviness’ – the expert dispute resolver, the competent dispute resolver, and the ineffective dispute resolver.

• Why do people settle? by Julie Macfarlane (2001)

In her paper Macfarlane examines the assumptions and behaviour of participants in dispute settlement processes – enhancing our understanding of why some disputes settle, and others do not.

Her key argument is that it is how disputants see things and how they make sense of their conflicts that have the greatest influence on outcomes – a significant step away from the rational, predictive model emphasized by most legal scholarship.

• Matching Cases and Dispute Resolution Procedures (2006) by Frank Sander and Lukasz Rozdeiczer

The significance of this work is the authors’ analysis of disputes leading to guidance for lawyers and their clients’ in:
• selecting a particular process and then
• designing a new or hybrid process specifically fitted to the needs of the parties.
They proposed that matching processes may be just the first step of the process choice. What needed to follow was the parties modifying their preferred procedure to suit the particular needs of their dispute.


And so TRAMM was born!

Triage resourcing Modality Matrix is more than a mouthful.
What it does is:
• Collects and makes sense of all the information collected at intake;
• Factors in the context of the dispute;
• Identifies the process that is the best match for the parties (Triage);
• Allocates appropriate resources; and
• Uses ongoing satisfaction measures to validate triage consistently.


How it works – a psychometric approach to creating an analytical tool


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The tool presents a compelling visual of everything in play when the DSCV is first contacted. The tool has:
• A vertical axis factoring in parties aspirations and goals and linking them to the likelihood of resolution (drawing on Hutchinson & Litchfield and Sander’s work); and
• A horizontal axis identifying and ranking factors likely to help or hinder resolution (drawing on the research of Sander and Macfarlane).


The output?

The power of the tool is in combining the two hierarchical axes to:
• Predict an outcome;
• Recommend the dispute resolution process that is most resource-effective and best for the dispute; and
• Maximise opportunities for a good outcome.


The human element

Trained mediators, operating as dispute assessment officers, input the data from an initial telephone assessment.
They make their own assessment of likely resolution and the best process to use. This is used to continually test TRAMM’s accuracy against that of experienced assessors.


The results are remarkable!

The big picture is more complex that there is room for in this blogpost however a few key outcomes caught my attention:
• TRAMM is outperforming human operators in matching parties to processes and in predicting outcomes;
• The linkage to the Singapore Report and its identification of ‘dispute savviness’ really shows its value here. The emerging data from TRAMM provides the opportunity to explore and demonstrate whether:

o ‘dispute savviness’ makes dispute goals more realistic and more amenable to resolution;
o disputants lacking ‘dispute savviness’ have a disproportionately higher impact on     likelihood of resolution and whether it is a wise investment to target them in the preparation process and coach them to higher levels of ‘dispute savviness’; and
o whilst one of the intentions of the project was to maximise resource effectiveness it was    not conceived as a cost-cutting exercise.


This is a great outcome

In particular there are 2 overarching achievements that deliver a loud message:
• at a time when the academic and practising worlds seem far apart this is a case study in what happens when we bring them together. One and one has truly made three; and
• when a good outcome, rather than forcing budget cuts, is the goal we do the right thing for the right reason – and surprisingly, as happened here, more cost effective outcomes often result.

Well done Danielle and DSCV

This article first appeared on Kluwer Mediation Blog.

http://mediationblog.kluwerarbitration.com/2019/05/22/mining-frank-sanders-legacy-triage-and-more-in-a-bold-australian-experiment/

It’s not cricket! – But it is a lesson about why apologies matter.

 
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We Australians love sport in general and cricket in particular.

Unless you have been living in a cave, with no access to any media reporting whatsoever, you will know that the Australian cricket team is under a cloud.

Saturday March 24th 2018 was the third day of the third cricket test between Australia and South Africa. Australia was being pummeled.

In an event that shocked the cricketing world and most Australians too, the decision was taken to use sandpaper to tamper with the ball to seek an unfair advantage and claw back the match. The deceit was observed by the umpire and recorded on international television.

Punishment was swift and the team returned to Australia in disgrace.

Cricketers are well rewarded and have access to spin doctors and PR advisors in droves. How surprising then that the trio of players who were complicit in the decision to cheat have, in their failed attempts to apologise, made many of us even more reluctant to bestow forgiveness.

The former Vice-Captain, Dave Warner, seemed to begin well, expressing regret and remorse.

But then, facing further questioning he refused to provide details of how the plot was hatched and accepting responsibility only for what he called, (but refused to explain) ‘my part.        

The team Captain, Steve Smith, did better.

“To all of my teammates, to fans of cricket all over the world and to all Australians who are disappointed and angry: I’m sorry,” …”Tonight I want to make it clear as captain of the Australian cricket team, I take full responsibility. …”I made a serious error of judgement and I now understand the consequences. It was a failure of leadership.  I’ll do everything I can to make up for my mistake and the damage it’s caused.”

Cameron Bancroft, the young bowler who applied the sandpaper, seemed genuinely remorseful:

“I’ve had time to reflect on the events in Cape Town and the punishments handed down to me by the ICC (International Cricket Council) and Cricket Australia and I want to say I’m very sorry,” “I love the game of cricket and playing for my nation and my state, there is no greater pride to me”…”I am extremely disappointed and regret my actions”.

Substantial suspensions were announced and there was some move to forgiveness as the cricketers worked on their image in local matches and community work. However, there was lingering community disappointment – not just for what had happened but for the ongoing refusal to give the detailed explanation we needed.

And then …

The wound was reopened months later by a foolhardy Bancroft who was unwise enough to engage in a public interview about the scandal during the Boxing Day test on 26th December 2018.

Placing the blame squarely on his Vice Captain for directing him to tamper with the ball, he sought to minimise his own responsibility.

“I didn’t know any better because I just wanted to fit in and feel valued really. As simple as that. The decision was based around my values, what I valued at the time and I valued fitting in … you hope that fitting in earns you respect and with that, I guess, there came a pretty big cost for the mistake.”

It was a bombshell that reopened the whole sorry mess and made forgiveness less likely.

So now we are left with a set of dismal apologies that are textbook examples of what not to do:

  • Lots of remorse, but even more self-pity;

  • Refusal to explain; and

  • Elements of ‘it wasn’t really all my fault’ and (unspoken) others should really carry the blame especially Cricket Australia for a toxic culture of winning at all costs.

We know apologies matter.

Indeed, in Australia almost every jurisdiction has legislation giving some protection from civil liability for apologies containing admissions of wrong-doing. This legislation reflects the strong evidence that well-crafted and timely apologies reduce the likelihood of a suit for damages and allow parties to move on with their lives without costly litigation.

So what do we need to remember about making effective apologies?

There  are lots of different apology models we could use when working with parties. The RESPECT model gets a lot of airtime, however in my experience parties see this model as unduly cumbersome and confusing and give up.

More useful is the work of Slocum and her fellow researchers which, after exploring why there is no universal agreement about what constitutes an apology, concludes that this lack of agreement reveals an underlying requirement – an effective apology needs to be situation specific.

Their work proposed a three-category approach, with each having an element of self-focus and external focus. In my cricketing case study, the three category apology might look like this:


CATEGORY

Affect

SELF-FOCUS

Regret
I am truly sorry for my behaviour and my failure to live up to the ethical standards Australia has every right to expect of me.

EXTERNAL FOCUS

Remorse
I recognise that my behaviour has had terrible consequences and destroyed the trust of the Australian people in the integrity of those who play test cricket.


Affirmation

Admission
Here are the details of exactly what was planned, how it was executed and who was involved.

Acknowledgement
I acknowledge that this amounted to cheating and that it is not in keeping with the respect and dignity expected of a team that represents Australia.


Action

Restitution
I have scrutinised my actions and I am determined to find a way to make amends for what I have done. I hope to be able to demonstrate that I am truly sorry and that I can find a way to make a positive contribution to my community to restore my reputation.

Reparation
I recognise that I need to be punished for my wrongdoing and I will accept whatever Cricket Australia and the Australian public requires of me in order for them to feel I have paid for my mistakes.

In the opportunity provided by an intake process or in a caucus called during the heat of conflict, I find these tools are simple to follow and helpful for parties who genuinely want to make things better, not worse.

This article first appeared on Kluwer Mediation Blog.