This Week In Mediation

Mediation News - This Week In Mediation - Episode 3

Posted by Aled Davies on 01-Nov-2016 12:52:17
Aled Davies

In this week's episode of This Week In Mediation, presented by Professor Nadja Alexander and Aled Davies, we learn about the proposed use of mediation to bridge secular and religious divide in Malaysia and explore other opportunities for using mediation to address domestic political tensions. We discuss the future of research in international mediation and 7 research gaps that were identified during an International Coneference on Mediation in Basel, Switzerland. One area of particular interest is the shift of focus away from mediators onto conflict parties; a theme that seems to be emerging in other mediation spheres featuring on previou episodes of This Week in Mediation .

We take a look at Cyberweek, the annual event taking place on the web focused on developments in online dispute resolution (ODR). Special guest, professor Noam Ebner tells us more about Cyberweek; the big ideas and hot innovations coming down the pipeline. There's an update on the United Nation's procedural rules for ODR and the European Comission's ODR Regulation and the ODR platform that was launched earlier in the year.

Continuing on the theme of innovation in mediation, we end the show looking at 'mood sweaters' and the practical application of bio-feedback fabric technology to measure emotions in mediation and of course our big question of the week to you, our audience. All this and more coming up in the show.

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We'd love to hear your comments and questions so get the debate going there's a comments section underneath the transcript so don't be shy.

Watch last week's show 

Mediation News TWIM 3 - The Full Transcript 

Aled:

Hi, I'm Aled Davies. Welcome to Mediator Academy's roundup of mediation news from around the world. We'll try and be as informative, illuminating, and we might even be a little outrageous. Welcome to this week in mediation. My co-presenter on the show is Professor Nadja Alexander. Hi Nadja.

Nadja:

Hi Aled. Hi from Berlin.

Aled:

What have we got coming up on the show today?

Nadja:

Well, today we're going to hear about the proposed use of mediation to bridge the secular/religious divide in Malaysia. We're going to explore the future of research in international mediation, and we're going to take a closer look at Cyber Week and what's happening in the world of online dispute resolution generally.

Aled:

Good.

Nadja:

First, I'm keep to hear about some of our viewers comments from last week. What do you have?

Aled:

Well, we had a good response to our question of the week, and what was interesting, a number of people felt that having a good grounding in mediation and conflict theory would be front and centre of any professional mediation training. That was clearly something that was important We also had a great response to our piece on the Global Pound Conference. Lots of people sharing on social media, and it even looks like the show will be available to watch on the GPC blog, which is pretty cool I think.

Nadja:

That's great news.

Aled:

Yes, so Nadja, let's get into the show. What news have you got from Asia?

Nadja:

This week I picked up on an article by Saleena Saleem (an Associate Research Fellow with the Malaysia Programme at Nanyang Technological University, Singapore). She's written a piece called Malaysia's Secular Versus Religious Divide: Could Mediation Be The Key? Let me explain this scenario. She's talking about the situation where, for example, there are very bitter, acrimonious family disputes, usually about child custody. What has happened in the past is that one parent converts, is either Muslim or converts to Islam, and then, according to the law this is legal, can unilaterally convert the religion of the child to Islam as well. What that means is that the sharia courts in Malaysia then have jurisdiction over that parent and that child.

 

If the other parent is non-Muslim then the civil courts in Malaysia have jurisdiction over the other parent. You've got this very difficult situation where you've got a family dispute in any event, a child custody dispute, but you also have a jurisdictional dispute, because the non-Muslim parent has to go to the civil law courts to try and manage the custody dispute and the Muslim parent goes to the sharia courts. The current Prime Minister has introduced some proposed amendments, they're not through yet, they're just proposed, to try and deal with this jurisdictional issue.

Aled:

Okay, so where does mediation fit into this then?

Nadja:

Mediation is not in the law itself, but what Selena, the author this paper, suggests very interestingly, she says, "First of all, these are just proposed amendments, and there's no guarantee that they're going to get through. Even if they do get through they're going to make changes to the civil law and the civil court jurisdiction, but they're not necessarily going to change what happens in the sharia courts, so you're still going to need more amendments there." This is where mediation comes in, I know you've been waiting for it. Her idea is, why not use mediation to negotiate these sorts of governmental political issues in the domestic field essentially.

 

She actually writes that mediation would be a good way for parties to try and reach consensus, and the parties would be political religious and civil society actors who really need to explore, and I'm using her words here, "Explore alternative mechanisms for managing the tensions that exist." Now, apparently these court cases, these custody disputes, but also others, are very high profile, in the sense that they get a lot of publicity, they're in the newspapers. The way things are going on, as she writes, it just deepens the tensions and further polarizes of the different religious groups and the ethnic groups within Malaysia. She sees mediation playing a potentially key role in domestic political dispute management.

Aled:

Is that a new idea?

Nadja:

Well, I don't know that it's a new idea, I don't know how often it's really used in the domestic political scene in countries, but if I think about the German constitution, the way the German constitutional design is one where there's the legislature is split into an upper house and a lower house. The upper house has a veto power, but if the upper house uses its veto power to try and stop, for example, a particular bill being passed through, then a mediation committee, and this is written into the law in Germany, a mediation committee is called into action immediately to try and negotiate a compromise as soon as the upper house tries to use the veto. The idea itself is not new, but I don't know how many countries are using it in this way.

Aled:

Well, I can tell you where mediation hasn't been used to resolve domestic political tensions. Brexit is a great example, right?

Nadja:

Yeah, well I think there would have been lots of potential, there's still lots of potential to use mediation in that context.

Aled:

Well, I think so. I mean, the who referendum process, I don't think there was a mediation in sight or a mediator in sight. It would be interesting to see to what extent there'll be some kind of dialogue process around the exit negotiations. Another interesting story, I think in the recent Irish elections, they had a vote, there was no clear majority, and then they had to sit down and negotiate the terms of the minority government, how would they govern? Apparently it took them at least a couple of months just to figure out, just to slice and dice all the different bits and pieces. Again, I don't think there were mediators participating in that, and I think they got an outside negotiator to come in and help them, but again, I think it took them quite some time to do that.

Nadja:

This is exactly the sort of area where mediators would be perfectly placed.

Aled:

Of course, you know, hot on the political agenda this week are the US elections. I don't know how many mediators will be involved in the Trump/Hillary clash.

Nadja:

I'm just trying to imagine what a mediation between Donald and Hillary might look like.

Aled:

Ha ha! I think that gives me an idea for one of our questions of the week. Let's kick that one into the long grass until the end of the show.

Nadja:

Okay.

Aled:

Staying on the topic of national mediation, tell us about some of the new avenues of research in international mediation, Nadja.

Nadja:

Well, there was a conference in Switzerland earlier this year, just a couple of months ago in fact, called the International Conference On Mediation, which looked precisely at this question. It was trying to identify what are the research gaps in international mediation. I came up with a list of seven, but I'd just really like to highlight one. One of them I thought was particularly interesting, and the experts at this conference identified a need to shift the focus away from mediators to conflict parties, and that a research area which would focus on this shift would be something that would be really important to progress the future of the field. I think that's so important because when I think about all the mediation models that we use, the way the language that we use, the way the process is taught to us, is very mediator focused.

Aled:

Yeah.

Nadja:

Imagine shifting that focus to parties and other stakeholders, how it might start to look different. It makes me think about the use of 360 degree cameras. This sort of technology is now, I think, fairly accessible. Imagine going into a mediation, obviously with permission of all parties, and using a 360 degree camera to film everything that's going on, then after the mediation, going in and being able to see and view and relive that mediation from any number of different perspectives. Wouldn't that be just an amazing tool, not just for researchers but also for training and also for developing this idea of omni-perspective. How can you get everyone's perspective in there and represented in what we do? I think that's a very exciting topic that this conference has identified for further research.

Aled:

Yeah, that's sounds very interesting. There are six other areas of research, all really, really interesting actually. I'd love to get into a bit more detail on the others, but for the time being we'll put a list on the blog with a link to the references so you can have a look at and locate these different areas of research that we've referred to on the blog today. Now, what's interesting, you're talking about the use of perspective, we had Michael McIlwraith from the GPC on the show last week talking about the Global Pound Series Conferences and how they were user focused. Also, what was really interesting, about how they were using technology, the app, in an app, to capture real time the perspectives of users. I found that incredibly interesting. There's also another conference happening this week. Tell us a little bit about that one. I think it's completely online, right?

Nadja:

It is, it certainly is, and that is Cyber Week. Starts on the 31st of October, today, an annual event on online dispute resolution or ODR as we know it. It goes until the fourth of November and it's absolutely free to participate.

Aled:

What, a mediation conference that's absolutely free? Well, it's not a mediation conference it's an ODR conference, but it's a free conference, that's brilliant. What sort of events are they going to have?

Nadja:

Well, it looks like they've got a smorgasbord, they've got webinars, live demonstrations of ODR tools and ODR mechanisms, applications, there's student competitions, discussion groups, and they seem to cover a wide range of ODR topics.

Aled:

Okay, there's an event on there I noticed, which is called the Ethical Principals and Standards for Online Dispute Resolution.

Nadja:

It's a really important area for the development of ODR, I think.

Aled:

Isn't the UN working on procedurals for ODR, then?

Nadja:

Well, they were. UNCITRAL, the United Nations Commission for International Trade and Law, were in fact working on draft procedural rules for ODR, then in February last year both the United States and the European Union suggested that it was time to abandon that attempt to come to a joint agreement on what those particular rules would look like, in other words, they agreed to disagree and put it into the too hard basket for now. What they did say is that they wanted to redefine their working groups mandate and come out with what they did manage to agree on, which was something, a non binding descriptive document, yes, I haven't seen it myself, a non binding descriptive document reflecting the elements of an ODR process. I tried to find on the web what that document might look like, it's not yet available, but I am told that it will be available very soon.

Aled:

Okay, so small steps, that's what we're looking at, right?

Nadja:

Well, look, it's true, it might be a question of not rushing into things. I mean, you're dealing with the UN so you have a large number of countries that need to agree, and that's not always easy. Perhaps it's a bit like the fable of the hare and the tortoise.

Aled:

Slow is the new fast. 

Nadja:

Indeed. 

Aled:

There's also a bit of ODR going on in Europe, especially in consumer disputes. 

Nadja:

Yes, there's the ODR regulation and a new ODR platform to bring some standards in in relation to the use of ODR in cross border consumer disputes in the EU. 

Aled:

Okay. 

Nadja:

The regulation provides for the EU commission to establish a free interactive website, sort of like a coordination point if you like, through which parties can initiate ADR for their online disputes in relation to online transactions. In February this year, so it's very recent, an ODR platform was established, the European ODR Platform for solving disputes arising out of online purchases. 

Aled:

That makes me think, all of this effort, what are they going to do with the work that's been done on the ADR directive and the ODR regulations? 

Nadja:

It's an enormous amount of work and it also really highlights the need for a stable regulator framework for ODR. I really wonder if Cyber Week is going to tackle some of these very current issues. 

Aled:

Well, funny you should ask that, Nadja, because I think I have Noam Ebner, Professor of negotiation and conflict resolution at The Werner Institute at Creighton University School of Law, who's also a member of Cyber Week's organizing committee. Noam is, I think, right now in Mediator Academy's Jacksonville studio in the US, so let's go straight over to Noam Ebner. Hello Noam. 

To get in on Cyber Week click this link below and sign up now: https://www.eventbrite.com/e/cyberweek-2016-october-31st-nov-4th-2016-registration-27853476498

Noam:

Hello Noam, good to see you. 

Aled:

Thank you for joining us today. Cyber Week, what's it all about? 

Noam:

Cyber Week is one of the best kept ADR secrets on the web. Not that it's a secret, but Cyber Week is a huge conference in ADR that has been going on for nearly twenty years now. Every year the world of online dispute resolution gets together for five days online and they have a huge number of events of webinars and discussion forums, product demonstrations of online dispute resolution, platforms, there are competitions, there's a lot going on. Between a thousand to fifteen hundred participants join in on this conference annually. 

Aled:

Tremendous. What's the big idea? 

Noam:

Well, we like to think that online dispute resolution is a big idea, and at The Werner Institute at Creighton University where I teach online dispute resolution, it's a course, it's a topic for study, and that's why we help to host Cyber Week every year, and we think that this is something that is either in the future of ADR or perhaps even the future of ADR or one of the futures of ADR. The point is that there is a lot that technology can do to assist people in the field of conflict resolution, conflict engagement. Whether it's to help them directly engage parties over the internet, let's say in a conversation as we're doing now, or it's to support more traditional means of dispute resolution, just like we did, if we would schedule a meeting or schedule something via Outlook or Gmail, so we're using technology to support us.

 

There's a lot of connections between dispute resolution and technology, and the ODR field is bringing this together. One of the ways in which the ODR field brings this all together is by gathering all the different ideas that are going on and processes that are gaining traction, through Cyber Week. That's, I think, the big idea of ODR, and Cyber Week's role is to bring everybody in the field, it's practitioners who are practicing online, it's academics who are conduction research into it, it's students, law students, ADR students, students in other fields, and bring them all together into a discussion of, what's going on in this field and what might lie ahead in its future.

Aled:

Okay, so, you talked about some of the obvious applications of ODR, you know, scheduling meetings, having this conversation right now. What would you say the most innovative cutting edge ideas that have emerged out of, not just Cyber Week, but just in the world in ODR?

Noam:

It's so hard to talk about it all at once because just this simple kind of interaction and how it can be used for dispute resolution is a huge shift in how folks involved in dispute resolution are working now and are going to work in the future, but that's only one aspect of how online dispute resolution can ... It can take the form, for example, of artificial intelligence, either engaging in coming up with better resolutions, better solutions for problems than human brains are able to come up with, it can have the same artificial intelligence can come up with better solutions, not than what human brains are able to come up with, but that human communicators are able to bridge across. In other words, it might be that we can come up with a great idea but we're just not able to talk about it. Artificial intelligence can do that.

 

It might just be, in terms of ADR system design, applying that thinking of what types ... If you have a certain category of disputes or a certain category of stuff going wrong, what type of pipelines should you design in order to lead it through from a series of messes that happened to a series of good outcomes. The roles of technology in that regards are both obvious in the modern world but they're also profound and significant for ADR. The example that everybody commonly talks about is, say, the dispute resolution system at eBay. The dispute resolution system at eBay handles currently about sixty million or more than sixty million claims a year and resolves them entirely through online dispute resolution. Quantity wise that is more the cases that the whole world of ADR fields worth in any given year here, all dealt with online. I think that's in the past or the present of ... There are also things coming on down the pipeline. For example, the European commission over the past year and a half have issued directives stating that all cross border consumer disputes are going to be sent or nudged by default to an ADR platform in which the first default process will be ODR.

 

In other words, you have all of these, this could be hundreds of thousands or perhaps more conflicts every year that will all be pushed towards being resolved online, because that's the best place for them to be resolved. If you have a hundred dollar dispute in London with someone from Hungary, you're not going to fly over to see them, you're going to seek a way for redress and for resolution through this. When you start to look at how institutions are starting to say, "Huh, this could actually solve some real problems for us." That's when ODR really starts to take root and to go ... We're seeing that in other places. The EU is like the next example in line. There's another one in British Columbia that started a small claims court, you've heard of it, that entirely ... All of it's ... Again, the first nudge, the first resort, first try and work it out through an online dispute resolution process, then if you can't do that, we can look at other forms of tribunals and more traditional ways of resolution.

Aled:

Brilliant. You've got a full jam-packed week of events. What's the most exciting thing about Cyber Week this year? What should people be checking out this year?

Noam:

I think this year we're seeing a part of ODR's evolution, and I'd like people, as they're engaging in the different activities and hearing what's being said, to maybe put it into that frame. ODR used to be this kind of bunch of computer geeks kind of enthusiasts thinking about how computers can help solve disputes. That's not what it's about anymore. It's not even about the future of ADR anymore. ODR is solidly present in the ADR world. It is solidly and resolving tens or hundreds of thousands or millions of disputes every year.

 

What we're seeing this year, and we're seeing it in Cyber Week, is we're seeing the field of ODR start to lift its head out of the "I need to come up with a brilliant idea", and to look at the field as a whole, and to say, "Well, as a field as a whole we need to think about field wide issues. We need to think about, is it time have organizations and structure in this field, or should we avoid that? Do we need a separate set of ethics for this field, or should we just tweak old set of ethics?" All of these structures that fields have as they develop and mature, we're seeing that happen right now, and that's a lot of the activities at Cyber Week actually have that as their common denominator, so that's the most exciting thing about it for me.

Aled:

That's fantastic, that's very interesting. I really appreciate you taking time out of your day to tell us a bit more about Cyber Week. We'll put a link underneath this show so that people can go straight there and participate in the events that you've got coming up this week. Thank you very much.

Noam:

Fantastic. Thank you. I hope we see you and Nadja also there as well.

Aled:

Let's go back to Nadja in the studio. Nadja, wasn't that interesting?

Nadja:

It was fascinating, and it reminds me about an article I was reading recently about a clothes designer who's using technology in fabric to create what are called 'mood sweaters'. These are clothes, dresses or sweaters or whatever type of apparel you like, that change colour according to your feeling. I was wondering, imagine if you had to wear clothes like this to a mediation.

Aled:

Before you come to mediation, everyone has to put on their mediation mood frocks or suits.

Nadja:

Yes, and how would that change the process? Would that help or hinder a mediator's interventions? I just think that's such a fascinating area.

Aled:

It's making me think now that you and I should wear mood sweaters for the next show. I'll see if we can get hold of moodsweater.com and get a couple sent in. I tell you what, can you imagine putting a mood sweater on Donald and Hillary in their mediation?

Nadja:

Now, that would be something. I'm not sure whether the colour scale of moods and feelings would be sufficient for Donald and Hillary.

Aled:

I think that leads us nicely into the question the week. If you were mediating a dispute between Donald and Hillary, do you think you'd be more effective mediating them online or offline? In other words, in cyber space or physically in the same room? Send in your answers, pop them in the comments box, send them in to the email address below. By the way, if you were mediating, would you want them wearing their mediation mood frocks? I'd love to see Donald in a mood frock. Well, I think that's it for this week. All that's left for me to say is, it's goodbye from Mediator Academy in London.

Nadja:

It's goodbye from Mediator Academy in Berlin.

Aled:

See you next week.

 

 

                                 

Topics: Mediation News

 

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