An Evaluation of the Sustainability of Agreements Reached ... · - 5 - CHAPTER 1 - INTRODUCTION In...

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An Evaluation of the Sustainability

of Agreements Reached

Through Mediations Conducted

by the Dispute Resolution Centres of the

Department of Justice and Attorney General,

Queensland

Between 1999 to 2003.

Teresa Brennan (BSc)

School of Justice, Faculty of Law,

Queensland University of Technology.

Submission for the Degree of Masters of Justice by Research

2010

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TABLE OF CONTENTS

Statement of Authorship iii

Acknowledgements iv

1 CHAPTER 1 - INTRODUCTION 5

1.1 Thesis Purpose and Goals …………………………………………….8

1.2 Significance of the Research ……………………………………… 10

1.3 Thesis Research Questions and Approach ………………………….12

1.4 Key Terms …………………………………………………………..14

1.5 The Voluntary Co-Mediation Model of the DRCs ………………..17

2 CHAPTER 2 – LITERATURE REVIEW 28

2.1 Introduction…………………………………………………………..28

2.2 Evaluation of Mediation ……………………………………………..30

2.3 Facilitative Mediation………………………………………………...34

2.4 Preparation before Mediation………………………………………...38

2.5 Addressing the Parties' Concerns ………………………………….…39

2.6 Ensuring the Parties Feel Heard ……………………………………...41

2.7 Positively Impacting on the Parties' Relationship ……………………42

2.8 Absence of Mediator Pressure to Reach Agreement …………………44

2.9 Parties Generating their own Suggestions for Resolution ……………45

2.10 Parties Learning Conflict Resolution Skills ………………………….46

3 CHAPTER 3 – METHODOLOGY 49

3.1 Steps Taken in Completing the Study …………………………………49

3.2 Statistical Methodologies ……………………………………………...54

3.3 Scope and Limitations of the Study …………………………………...55

4 CHAPTER 4 – RESULTS 57

4.1 Survey Question 1 Results ……………………………………………..57







4.8 Survey Question 8 Results ……………………………………………100

4.9 Survey Question 9 Results ……………………………………………106

4.10 Survey Question 10 Results …………………………………………..111

5 CHAPTER 5 – STATISTICAL ANALYSIS AND DISCUSSION 120

5.1 Analysis of Results by Survey Question ………………………………120

5.2 Summary of Analysis by Statistical Correlation ………………………139

6 CHAPTER 6 – CONCLUSIONS 145

7 BIBLIOGRAPHY 155

APPENDIX 1: LETTER AND SURVEY FOR RESPONDENTS 164

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Statement of Authorship

The work contained in this thesis has not been previously submitted to meet

requirements for an award at this or any other higher education institution.

To the best of my knowledge and belief, the thesis contains no material

previously published or written by another person except where due

reference is made.

Teresa Jane Brennan

24 December 2010

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Acknowledgements

I would like to thank and acknowledge the following people and/or

organisations for their contribution to this work:-

The Department of Justice and Attorney General, Dispute Resolution

Branch for access to the raw data used in this study.

Queensland University of Technology for contribution to the postage

costs.

Rachael Field for her supervision and patience.

Stats4students for the provision of graphs and all technical assistance

as needed.

Peter Rupert Ridgley for his unwavering support and ability to

motivate me to continue.

Elizabeth Cornwall for her support in shaping this document and

timely advice.

Merrilyn Delporte for her editorial assistance.

John Smith for helping to finalise the project.

Various family, friends, neighbours and work colleagues who have

motivated me to finish this journey.

Lastly, but by no means least, those at the DRC who opened the door

for me to the mediation profession in the first place.

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CHAPTER 1 - INTRODUCTION

In 1990 the Dispute Resolution Centres Act, 1990 (Qld) (the Act) was passed

by the Queensland Parliament. In the second reading speech for the Dispute

Resolution Centres Bill on May 1990 the Hon Dean Wells stated that the

proposed legislation would make mediation services available “in a non-

coercive, voluntary forum where, with the help of trained mediators, the

disputants will be assisted towards their own solutions to their disputes,

thereby ensuring that the result is acceptable to the parties” (Hansard, 1990,

1718).

It was recognised at that time that a method for resolving disputes was

necessary for which “the conventional court system is not always equipped to

provide lasting resolution” (Hansard, 1990, 1717). In particular, the lasting

resolution of “disputes between people in continuing relationships” was seen

as made possible through the new legislation; for example, “domestic

disputes, disputes between employees, and neighbourhood disputes relating

to such issues as overhanging tree branches, dividing fences, barking dogs,

smoke, noise and other nuisances are occurring continually in the

community” (Hansard, 1990, 1717).

The key features of the proposed form of mediation in the Act were

articulated as follows:

“attendance of both parties at mediation sessions is voluntary;

a party may withdraw at any time;

mediation sessions will be conducted with as little formality and

technicality as possible;

the rules of evidence will not apply;

any agreement reached is not enforceable in any court; although it

could be made so if the parties chose to proceed that way; and

the provisions of the Act do not affect any rights or remedies that a

party to a dispute has apart from the Act” (Hansard, 1990, 1718).

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Since the introduction of the Act, the Alternative Dispute Resolution Branch

of the Queensland Department of Justice and Attorney General has offered

mediation services through, first the Community Justice Program (CJP), and

then the Dispute Resolution Centres (DRCs) for a range of family,

neighbourhood, workplace and community disputes. These services have

mirrored those available through similar government agencies in other states

such as the Community Justice Centres of NSW and the Victorian Dispute

Resolution Centres.

Since 1990, mediation has become one of the fastest growing forms of

alternative dispute resolution (ADR). Sourdin has commented that "In

addition to the growth in court-based and community-based dispute

resolution schemes, ADR has been institutionalised and has grown within

Australia and overseas” (2005, 14). In Australia, in particular, the

development of ADR service provision “has been assisted by the creation

and growth of professional organisations such as the Leading Edge

Alternative Dispute Resolvers (LEADR), the Australian Commercial Dispute

Centres (ACDC), Australian Disputes Resolution Association (ADRA),

Conflict Resolution Network, and the Institute of Arbitrators and Mediators

Australia (IAMA)” (Sourdin, 2005, 14). The increased emphasis on the use

of ADR within education contexts (particularly secondary and tertiary

contexts) has “also led to an increasing acceptance and understanding of

(ADR) processes” (Sourdin, 2005, 14).

Proponents of the mediation process, in particular, argue that much of its

success derives from the inherent flexibility and creativity of the agreements

reached through the mediation process and that it is a relatively low cost

option in many cases (Menkel-Meadow, 1997, 417). It is also accepted that

one of the main reasons for the success of mediation can be attributed to the

high level of participation by the parties involved and thus creating a sense of

ownership of, and commitment to, the terms of the agreement (Boulle, 2005,

65). These characteristics are associated with some of the core values of

mediation, particularly as practised in community-based models as found at

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the DRCs. These core values include voluntary participation, party self-

determination and party empowerment (Boulle, 2005, 65). For this reason

mediation is argued as being an effective approach to resolving disputes,

that creates a lasting resolution of the issues.

Evaluation of the mediation process, particularly in the context of the growth

of ADR, has been an important aspect of the development of the process

(Sourdin, 2008). Writing in 2005 for example, Boulle, states that “although

there is a constant refrain for more research into mediation practice, there

has been a not insignificant amount of mediation measurement, both in

Australia and overseas” (Boulle, 2005, 575). The positive claims of

mediation have been supported to a significant degree by evaluations of the

efficiency and effectiveness of the process.

A common indicator of the effectiveness of mediation is the settlement rate

achieved. High settlement rates for mediated disputes have been found for

Australia (Altobelli, 2003) and internationally (Alexander, 2003). Boulle notes

that mediation agreement rates claimed by service providers range from 55%

to 92% (Boulle, 2005, 590). The annual reports for the Alternative Dispute

Resolution Branch of the Queensland Department of Justice and Attorney-

General considered prior to the commencement of this study indicated

generally achievement of an approximate settlement figure of 86% by the

Queensland Dispute Resolution Centres.

More recently, the 2008-2009 annual report states that of the 2291 civil

dispute mediated in 2007-2008, 86% reached an agreement. Further, of the

2693 civil disputes mediated in 2008-2009, 73% reached an agreement.

These results are noted in the report as indicating “the effectiveness of

mediation in resolving disputes” and as reflecting “the high level of

agreement achieved for voluntary mediations” (Annual Report, 2008-2009,

online).

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Whilst the settlement rates for the DRCs are strong, parties are rarely

contacted for long term follow-up to assess whether agreements reached

during mediation lasted to the satisfaction of each party. It has certainly

been the case that the Dispute Resolution Centres of Queensland have not

been resourced to conduct long-term follow-up assessments of mediation

agreements. As Wade notes, "it is very difficult to compare "success" rates”

and whilst “politicians want the comparison studies (they) usually do not want

the delay and expense of accurate studies" (1998, 114). To date, therefore,

it is fair to say that the efficiency of the mediation process has been

evaluated but not necessarily its effectiveness.

Rather, the practice at the Queensland DRCs has been to evaluate the

quality of mediation service provision and of the practice of the mediation

process. This has occurred, for example, through follow-up surveys of

parties' satisfaction rates with the mediation service. In most other respects

it is fair to say that the Centres have relied on the high settlement rates of the

mediation process as a sign of the effectiveness of mediation (Annual

Reports 1991 - 2010).

Research of the mediation literature conducted for the purpose of this thesis

has also indicated that there is little evaluative literature that provides an in-

depth analysis and assessment of the longevity of mediated agreements.

Instead evaluative studies of mediation tend to assess how mediation is

conducted, or compare mediation with other conflict resolution options, or

assess the agreement rate of mediations, including parties' levels of

satisfaction with the service provision of the dispute resolution service

provider (Boulle, 2005, Chapter 16).

1.1 Thesis Purpose and Goals

The purpose of this study is to seek to confirm the importance of enquiry into

the sustainability or longevity of mediated agreement outcomes. The

particular focus of this purpose is to enhance the knowledge base about the

conduct of mediations though the DRCs of Queensland and to assist with

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knowing whether the agreements reached through the DRC mediation

process are sustainable and effective in the long-term. As the second

reading speech for the Act in 1990 indicated, the aim of the DRC legislation

was to create an environment in which long-lasting resolutions to disputes

were made possible. This study tests whether that is achieved with the use

of the voluntary co-mediation facilitative model used by the DRCs.

The author‟s role as a mediation practitioner with the Dispute Resolution

Centres of the Queensland has been a central motivating factor in wanting to

evaluate the sustainability and longevity of agreements reached through

DRC mediations. It has been a professional and personal concern arising

from the author‟s practice of mediation that, as mediators, we have little

knowledge of the sustainability or longevity of the mediated agreements that

we facilitate.

For example, at the Dispute Resolution Branch where the author has been a

mediator and intake officer for over ten years, a three monthly follow up

questionnaire to all parties who attend mediation is provided. However, more

extended evaluation of the effectiveness or sustainability of agreements is

not conducted. As a mediation practitioner who has drafted agreements for

parties who were, due to the nature of their disputes, virtually „at war‟ when

they began mediation – it is this author‟s view that it is professionally critical

to inform our practice with a knowledge of whether the agreement „stuck‟,

whether it was sustainable over time, and if not then why that was the case.

Further, it is valuable for mediators to know what encouraged participants to

stay motivated in maintaining an agreement for long periods of time or until it

was no longer necessary, or why an agreement was not sustainable, and in

which case, what could have been done differently.

This thesis cannot explore all these issues. It does, however, test out

whether the theory behind the DRC practice of mediation can be upheld by

enquiry into the reality of practice. The theory of the model of mediation

used at the DRCs is that a voluntary process focussed on party

empowerment and self-determination, and in which constructive approaches

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to conflict are modelled by the mediators, will create agreements that are

long-lasting. There is a gap, however, for the practice of the DRCs in

knowing whether this claim can be supported by empirical evidence.

The purpose of this study is therefore to investigate and analyse the

sustainability of DRC mediated agreements in Queensland. The study also

seeks to make connections between the sustainability of mediated

agreements, possible key indicators of durable agreements, and the potential

educative impact of the mediation process.

The goal of the study is to provide important information to support and

improve the practice of mediation by the Queensland DRCs. This is seen as

a possible preliminary step towards ongoing analysis by the DRCs of the

sustainability of mediated agreements, which may then improve the

mediation services provided by the DRCs to the general public in the long

term.

1.2 Significance of this Research

As indicated above, and as will be discussed in the literature review in

Chapter 2, the mediation literature indicates that whilst a range of studies

exist that review or analyse how mediations are conducted, or focus on

agreement rate of mediations, including levels of satisfaction of the actual

service, few focus on the sustainability or longevity of agreement outcomes.

Past research into the effectiveness of the practice of mediation by the

Dispute Resolution Centres has involved collecting participant feedback of

the process three months after the mediation occurred. This does not give

an accurate picture of sustainability. A longer timeframe than 3 months is

necessary to provide an evaluation of the longevity of mediated outcomes.

This is particularly relevant, for example, where conditions are placed on the

agreements for future long term actions, such as where there is to be an

exchange of goods at a predetermined time in the future.

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This study therefore represents the first study of its kind to be conducted by

the Dispute Resolution Centres of Queensland. It is the first significant

investigation of the long-term viability of mediated agreements across all

DRCs in Queensland - Brisbane, Wide Bay, Rockhamption, Townsville,

Mackay and Cairns - and across a significant time period (1999 – 2003). The

thesis therefore offers a significant original contribution to the field of

knowledge of mediation, and achieves a level of depth of enquiry as to the

sustainability of agreements that has not been achieved by the DRCs to

date, and that is not commonly found in the mediation literature.

This research can be seen as significant also from the simple perspective

that it has the potential to positively impact on the important work of the

DRCs. As the Hon Dean Wells said in his second reading speech for the

Dispute Resolution Centres Bill in 1990:

Disputes and conflict between human beings have plagued the human

race throughout history, whether it be the existence of a state of war

between nations or the minor wars which occur every day in

interpersonal relationships between people. Throughout the ages,

various means of dealing with and resolving conflict have been devised.

While the formal legal system which has been developed in this country

and other English speaking countries provides appropriate dispute

resolution methods for most issues, it does not deal adequately with

others.

The work of the DRCs is critical in supporting positive community relations by

assisting parties to resolve disputes that are not appropriate for resolution

through formal legal processes, such as the courts. Therefore, this study is

significant because it has the potential to improve the quality of the DRCs‟

mediation service provision through the assessment of whether agreements

reached through the process are lasting and sustainable.

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1.3 Thesis Research Questions and Approach

The key research question for this study is whether agreements mediated by

the DRCs of Queensland using a voluntary co-mediation model are

sustainable over time. This research question tests out the original aim of

the Centres and their practice which was to provide lasting resolution of

community disputes.

This study analyses data from a sample group of parties who participated in

a mediation conducted through the Dispute Resolution Centres of the

Department of Justice and Attorney General in Queensland over a five year

period (1999-2003). The study relates only to those voluntary co-mediations

that reached an agreement as an outcome of the process within that time

period. The forms of agreement analysed include written (full and partial)

agreements, and verbal agreements.

The approach of this study is to assess the sustainability of agreement

outcomes of mediations through analysis of Queensland Government

mediation data. The data was accessible because, at the time the data was

collected, the author was a full time permanent employee of the Department

of Justice and Attorney General in the Dispute Resolution Branch for the

Wide Bay area. Departmental approval was obtained, along with ethics

approval from the QUT Ethics committee, in order to access the data. The

scope of this data is significant and gives a sufficient pool of results to

produce statistically significant results.

The focus and scope of this research project is restricted to Queensland,

Australia. All the mediated agreements analysed as a part of this study were

facilitated by mediators who work for the Dispute Resolution Centres of the

Department of Justice and Attorney General. These mediators are

accredited by the Attorney General after rigorous training and are appointed

under Section 19 of the Dispute Resolution Centres Act 1990 (Qld) which

states, "the Chief Executive may accredit a person, other than a director, as

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a mediator for a dispute resolution centre and may revoke any such

accreditation."

It is acknowledged that these mediators have different individual styles,

personalities, qualifications, and experiences, and that some are relatively

new to the profession whilst others are very experienced. However, all

mediators have received the same in-service training, are accredited on the

same basis, and use the twelve step approach to facilitative mediation

described in more detail below.

The first aspect of the research approach was to identify the key indicators of

a sustainable agreement by reference to the literature and to the author‟s

own 10 year experience as a mediator and intake officer. The indicators

chosen were:

whether the agreement was still in effect,

the adequacy of party preparation,

whether the agreement proved effective in addressing the concerns

raised during the mediation,

party perceptions about whether they felt heard during the process,

whether the mediation process had assisted or harmed the parties‟

relationship,

whether the parties felt pressured by the mediators to reach an

agreement,

whether the mediators offered specific suggestions for resolving the

dispute,

whether the parties would reuse the service, and

whether the parties learned conflict resolution skills.

The research approach of the study was then to test these elements through

a survey of participants in DRC mediations. The survey results, presented in

Chapter 4 and analysed in Chapter 5, provide information about whether

DRC agreements are sustainable and lasting, as well as an indication as to

the contributing factors of the durability of mediated agreements reached

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through DRC mediations. An important component to this analysis for the

sustainability of agreements is an assessment of the educative nature of

mediation. That is, the ability of the process to impact positively on the

conflict by equipping the parties with ongoing dispute resolution skills.

1.4 Key Terms

This section clarifies and discusses the meaning of key terms used in this

thesis.

Alternative Dispute Resolution: a variety of processes used to handle

disputes as opposed to the traditional court process of legal action.

Mediation: is the process where the mediator is independent and non-

directive. The mediator will facilitate the discussion between the parties to

identify the disputed issues, discuss them, develop options, negotiate

alternatives and endeavour to reach agreement or solutions. Sometimes an

expert mediator is chosen on the basis of his or her knowledge of the subject

matter of the dispute. The mediator has no advisory or determinative role on

the content of the dispute or the outcome.

Mediation is defined by s.2 of the Dispute Resolution Centres Act 1990 (Qld)

as including –

(a) the undertaking of any activity for the purpose of promoting the discussion

and settlement of disputes; and

(b) the bringing together of the parties to any dispute for that purpose, either

at the request of 1 of the parties to the dispute or on the initiative of a

director; and

(c) the follow-up of any matter the subject of any such discussion or

settlement.

The National Alternative Dispute Resolution Advisory Council provides the

following definition of mediation in its publication Dispute Resolution Terms

(2003): "Mediation is a process in which the parties to a dispute, with the

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assistance of a dispute resolution practitioner (the mediator), identify the

disputed issues, develop options, consider alternatives and endeavour to

reach an agreement. The mediator has no advisory or determinative role in

regard to the content of the dispute or the outcome of its resolution, but may

advise on or determine the process of mediation whereby resolution is

attempted. Mediation may be undertaken voluntarily, under a court order, or

subject to an existing contractual agreement".

Co-Mediation: mediation using two mediators who work collaboratively

modelling cooperative behaviours throughout the process.

Mediation session is defined by s.2 of the Dispute Resolution Centres Act

1990 (Qld) as meaning “a meeting in accordance with this Act between 2 or

more parties who are in dispute on any matter.

Mediator is defined by s.2 of the Dispute Resolution Centres Act 1990 (Qld)

in relation to a dispute resolution centre, as meaning:

(a) the director of the centre; or

(b) a person appointed under section 19 as a mediator for the centre.

Government-provided community mediation began in Queensland in 1990

under the incumbent Attorney General, the Honourable Dean Wells, with Ms

Marg O‟Donnell as Director of the Alternative Dispute Resolution Division

and Mr William Smith as the President of the Dispute Resolution Centres

Council. The Alternative Dispute Resolution (ADR) Division was also known

as the Community Justice Program and began operations on 1st July 1990 in

accordance with the Dispute Resolution Centres Act 1990 (Qld). (Annual

Report, 1990 – 1991).

The Dispute Resolution Centres Act 1990 governs the establishment and

operations of the six centres state-wide, the appointment, accreditation and

performance of over three hundred mediators and the mediation process

itself offered by the Centres which is voluntary, confidential and privileged.

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The annual reports of the Centres indicated that the DRCs conduct on

average more than 2,000 mediations per calendar year.

Marg O'Donnell stated in 1997 "The Alternative Dispute Resolution Division

no longer exists. The new Minister for Justice in Queensland, Denver

Beanland, has said he is supportive of the continuation of ADR services in

Queensland. However, to find savings he has slashed the budget, sacked

over two thirds of the staff, including almost all of those with the most

experience, and "mainstreamed" this unique, discrete service into the courts

bureaucracy. A dispute resolution service remains buts its quality and profile

have suffered drastically, perhaps for some considerable time to come". (p.

167, 1997). Mediation in Queensland as can be gathered from the above

statement has had its ups and downs, its supporters and doubters but the

faithful remain loyal and continue to do the best job they can to service the

community of Queensland to the best of their respective ability and this study

is dedicated to their steely steadfast loyalty and belief in an all empowering

process called mediation.

Facilitation: is the process that the parties, with the assistance of a skilled

facilitator use to identify problems to be addressed, tasks to be accomplished

or disputed issues to be resolved. The facilitation process can conclude at

that point, but usually continues on to assist the parties to develop options,

consider alternatives and endeavour to reach an agreement on the issues.

Mediation Practitioner: a skilled third party who intervenes in a conflict with

the consent of the parties to facilitate a mutually acceptable outcome.

Sustainability: a definition of sustainability, the capacity of something to

endure or „bear up‟ (Macquarie Dictionary, 1988), in the context of dispute

resolution includes reference to both the factual longevity of agreements

reached through mediation (the durability of an agreement), as well as the

transformative effects of the mediation process on the parties concerned.

Agreements can be measured for sustainability using indicators such

longevity, resilience and the permanence of an agreement. Sustainability

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also takes into account the relevance, efficacy and flexibility of an agreement

so far as the interests of the parties involved. Further, sustainability takes

account of the flow on effects or the educative process for parties in coming

to an agreement through a mediated process. These effects are often far

reaching and intangible, and concern the future behaviour of the parties

involved. If the educative process has occurred effectively, change is

achieved in terms of the parties' ability to manage conflict and improve

communication skills post their experience with the process of mediation.

Sustainable agreements, and mediation itself, have the potential to create a

more cooperative and therefore more harmonious society which also satisfy

the intent to free up the courts with matters that can be agreed upon and

settled outside of the court system. Mediated agreements that are

sustainable can therefore be said to be inherently desirable because they

minimize the potential cost and harm to society resulting from conflict.

1.5 The Voluntary Co-Mediation Model of the DRCs

This section describes the voluntary co-mediation model used by the Dispute

Resolution Centres (DRCs) of Queensland in relation to mediations analysed

for the purposes of this study. This model of mediation is a facilitative,

problem-solving model (Boulle, 2005, 43) using 12 steps. These steps are:

preparation of the environment, introductions, statements from each party,

summaries of each party‟s statement, agenda setting, exploration of the

issues, a private session with each party, negotiation about the issues,

agreement writing, and feedback and debrief for mediators. A thorough

intake process with each party precedes the mediation sessions, and each

party agrees to the time, date and place of the mediation. This is the process

in which all mediators working for the Department of Justice and Attorney

General between 1999 and 2003 were trained and accredited under the Act.

Each step of the process is briefly articulated in turn below.

The Intake Process

A thorough intake (pre-mediation information gathering and preparation

(Charlton and Dewdney, 2004, 175)) procedure with each party occurs for

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each dispute at each DRC prior to the parties attending mediation. At intake,

each party agrees to attend a mediation session on a particular date and at a

particular place and time. The intake process prior to the mediation session

is vital to the success of the process. This is because it is through the intake

process that the parties come to know and understand how mediation works,

and what is expected of them as parties. The intake process is also used to

establish that each party has the cognitive ability to understand and work

with the process before it begins. During intake it is important too that the

skills and experience of the mediators are matched appropriately with the

needs of the parties. This ensures that the mediators and the parties are able

to establish a rapport that will supportive a productive and effective

negotiation environment. At intake, the type of dispute in question is also

considered, so that appropriately skilled mediators can be matched with the

parties. The following explanation of the 12 step model indicates

Step 1: Preparation

The aim of preparation is to prepare the physical environment for the

mediation process, for the mediators to prepare themselves, and for co-

mediators to develop a sense of teamwork. The development of a

professional rapport between the mediators is a very important aspect of

preparation as co-mediators often work with other mediators who they have

never worked with previously. Preparation time is also used by the

mediators to gain a brief understanding of the context of the dispute.

Preparing the mediation venue can often require the mediators to arrange

tables, chairs, waiting areas, and to provide pens and paper, water, coffee

and other refreshments. Mediators also often bring tissues and other

incidental items such as a portable white board and markers. Sometimes it

is necessary to arrange for speaker telephones. It is the mediators‟

responsibility to ensure that the venue is culturally appropriate, and that the

physical environment is comfortable, well lit and temperate. The location

should be on neutral territory. The preparation stage of the process usually

takes up to half an hour.

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Step 2: Introductions

The introduction stage is paramount to the success of the process. This is

the first chance mediators have to meet the parties concerned and they must

build rapport quickly and try to develop feelings of trust and comfort. The

introduction phase prepares the parties for effective participation in the

process; it establishes boundaries such as ground rules of behaviour, and it

establishes the authority of the mediators. Mediators need to act in an

impartial and cooperative manner at all times to all parties, despite their

personal views, values or beliefs. The mediators should make this clear in

their introduction and assure the parties that the mediators‟ personal opinions

will not be part of the process.

In this phase the mediators introduce themselves and determine the parties

preferred form of address. Time constraints are considered and the

voluntary attendance of the parties is confirmed (this was the case for the

mediation model used for the purposes of this study). Mediators assure the

parties of their oath of secrecy ensuring confidentiality and privacy and

establish whether the parties need the process to be confidential or not,

depending on each party‟s circumstances.

Mediators are required to explain that their role is to leave all decisions up to

the parties themselves. They also explain clearly and succinctly the steps of

the mediation process from statement taking to agreement writing. It is

important that the mediators also explain carefully and clearly that the

mediation does not produce a legally binding document; the mediator's role is

not a legal one but to facilitate a resolution if possible. However, mediators

also explain that if the parties wish to they can take an agreement reached

from mediation to a solicitor to be made into a legally binding document.

Parties are assured that any notes taken will be destroyed appropriately.

In the introductory phase the mediator also seeks agreement from the parties

that they accept to be guided through the process by the mediators present.

Mediators confirm that the parties understand the process and emphasise

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that mediation is an open process and that the parties are free to ask

questions of the process at any point.

Step 3 & 4: Statements

The aim of the statement taking phase is to allow the parties to feel that they

have been heard and understood, and to allow the parties to express

concerns in a controlled environment while listening to the other party's

concerns. The role of the mediators during the statement taking stage is to

ensure all parties have time to speak uninterrupted and that the process

remains respectful and focussed. The mediators remind the parties of the

need for no interruptions and that the parties are to speak to the mediators

and to keep comments brief. Listening to the parties‟ statements allows the

mediators to ensure that they have correctly understood each party's

concerns. It also ensures that the mediators have a current understanding of

the conflict or dispute between the parties. Mediators used strategies in this

phase such as reported speech to demonstrate each party's ownership of the

conflict.

The mediator taking statements invites one party to explain why they have

come to mediation, and engages the party who is speaking by maintaining

eye contact and using some minimal encouragers. At this stage it is

important for both mediators to be self aware, check their respective body

language and to avoid seeming biased towards either party.

The co-mediator should initially ignore interruptions, and if the interruptions

persist then acknowledge the party‟s concerns and ask the interrupting party

to keep notes so that their questions and/or concerns can be addressed

later. Finally to prevent further interruptions the mediator refers to the ground

rules which were established and agreed to in the introduction step.

When the first party has completed making their statement the mediator

thanks them for their co-operation and information sharing, and then

redirects his or her attention to the other party to start their statement.

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Step 5: Summaries

The aim of the summaries step is to let the parties feel that they have been

heard and understood. The mediators read back the statements to each

party to make sure they have gathered the facts accurately, and to

acknowledge the parties‟ respective feelings about what has been conveyed.

The mediators use reported speech to emphasise the ownership of the

dispute by the parties and to seek any clarification needed.

If a party disagrees with the way in which the mediator has reported back

their statement then the summary is adjusted to reflect the party's concerns

more accurately. The mediator then goes over the process again to ensure

that the written statement captures a true reflection of the facts and feelings

of what has been spoken.

Step 6: Agenda

The aim of agenda setting is to identify the key concerns raised by the

parties, to reduce the dispute into smaller more manageable components,

and to provide order and focus for mediators and parties.

The agenda setting process involves the co-mediator, who was not

conducting the summaries step, using the notes they took during the

statements phase to prepare draft agenda items. This mediator then

presents and explains the draft agenda to the co-mediator and the parties.

This agenda is then adjusted in consultation with the co-mediator and

parties. The parties agree to the final form of the agenda which is displayed

to the parties on a whiteboard / butchers paper / blackboard or whatever is

available.

The parties establish the order for the discussion of agenda items listed, in

consultation with the mediators. The displayed agenda is stated simply,

covers all the issues to be discussed, is phrased in neutral terms, mutualises

parties concerns, does not include solutions, and gives guidance to the

process. The agenda ensures transparency and that there is an agreed

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understanding of each item for discussion. In this way, the agenda acts as a

road-map for the ensuing negotiations.

The agenda is flexible, it can and should be adjusted if required during the

remainder of the process and this should be done in consultation with each

of the parties. A flexible approach to the agenda allows for changes in

perception and priorities that often occur during the mediation process.

Step 7: Exploration

The exploration step of the mediation process establishes dialogue between

the parties to encourage them to hear and understand each other and to

assist the parties to address non substantive issues. To facilitate direct

communication between the parties the mediators assist the parties to focus

their comments towards each other rather than to the mediators.

The mediators use non-verbal techniques for redirecting discussions once

they have established who is to start first. It is usual for the party who asked

for the mediation to be asked to start the exploration phase. At this stage

mediators do not aim for solutions but allow parties time to share information,

facts and feelings. Mediators work on the simple philosophy of enhanced

communication rather than confrontation.

In exploration the mediators coax the parties to explore the elements of the

conflict or dispute relating to who, what, why, when, where and how. The

mediators simultaneously seek to equalize power by balancing discussions

between the parties and dealing with both facts and feelings. This is done

using techniques of transitions, paraphrasing, round-up paraphrasing and

reframing.

The mediators focus on the agenda, keep the parties on one agenda item at

a time, assist the parties with moving from one agneda item to another and

clearly acknowledge the progress that the parties make. Through this

thorough exploration of each agenda item the mediators are able to help the

parties move from the past to the present, and to look towards the future.

- 23 -

This is an essential part of the process as the parties often find it difficult to

move forward and away from the issues in dispute to a resolution.

Step 8: Private Session

The aim of the private session is to check the comfort levels of each party, to

see if they are angry or upset, and to review the discussions thus far. This

stage helps the mediator to assist the parties to test areas of negotiability if

limited progress is being made. The mediators remind the parties of the

confidentiality of private sessions and that mediators take no notes in this

step; assurances are given that the mediator will not discuss the other party

or their information during the private session. Each party is given up to

approximately 20 minutes for the private session.

Using the agenda as a guide the mediators reality test options generated

during mediation by asking questions such as, “what will happen if …”, “is it

going to be possible to …”, or “what else could be done?” The mediators

acknowledge any emotions expressed and encourage the party to focus on

the future. The mediators remind the parties about why they came to the

mediation and what their ideal outcome was, all the while being mindful of

what is happening outside the mediation room with the other party to the

dispute.

A private session is held with each party.

Step 9: Negotiation

Step 9 involves negotiation of the issues with a view to generating and

testing some options for resolution of the dispute. The mediators change the

focus from the events of the past to opportunities available for resolution in

the future.

During this process the mediators use strategies such as transitions (to

redirect communication between the parties), and paraphrasing and round-

up paraphrasing (to clarify progress). While continuing to use the agenda the

mediators note offers for agreement in writing.

- 24 -

The mediators check if any proposal offered is acceptable and how the

parties feel when a proposal is made. If a proposal is acceptable the

mediators, with the parties, reality test whether it is actually 'livable' for both

parties concerned.

Tillett asserts:" It is essential that defined tests for 'resolution' be developed,

and that at some point, the parties agree that resolution has occurred, and

the matter has now finished. This does not mean that a similar problem may

not arise again, but unlike the original issue it will not be allowed to go on

indefinitely. The participants need to define at what point they will accept

that this present conflict has been resolved", so that they can comfortably

move on to the next step of agreement writing (Tillet, 1997, 76).

In the practice of this model it is important that mediators do not give advice

o the parties at this pr any stage of the mediation. It is also important that

they do not make suggestions for the resolution of the issues, or attempt to

coerce the parties into agreement. To do so would be to compromise the

empowerment and self-determination of the parties.

Step 10: Agreement Writing

The aim of the agreement phase is to determine clear and effective ways for

the parties to behave in the future which will govern their ongoing

relationship. This phase involves the mediators in writing up the parties‟

agreement using the parties‟ own words.

As Condliffe notes "whatever the factors leading to an agreement are it is

desirable to formalise the agreement in some way” (1991, 91). Agreements

might be formalized in writing or verbally, and agreements might cover the

full range of issues in dispute or a selection of those issue (that is, a partial

agreement). A written agreement is a significant achievement and useful for

the parties in a range of ways. Not only do the parties then “have a written

document to refer back to for clarification and reference” but in Condliffe‟s

view “they will feel more 'honor bound' to stick by it, especially if both parties

and a third party have a copy” (1991, 99). The Victorian Law Foundation

- 25 -

also suggests that “a written agreement is legally stronger that a verbal one,

so both parties may want to have a written agreement” (1999, 41). Less

formal manifestations of agreements are also sometimes useful. For

example, “jotting points down” rather than writing up a formal agreement

might be experienced by a party as convenient and non-threatening”

(Condliffe, 1991, 99).

At the agreement development stage of the process it is important that the

mediators are mindful of how exhausted, and often emotional, the parties can

be feeling. Sourdin warns that "parties are often tired in the closing of a

session of a process and practitioners need to be careful to respond to party

needs. There may also be a temptation to keep parties in the process 'until

they reach agreement'. However, this approach raises issues about party

capacity, compliance with any outcomes and could raise allegations that the

parties were 'pressured' into reaching an agreement" (Sourdin, 2005, 72).

The mediators carefully word the agreement so the clauses are specific, and

so that they have addressed all the relevant criteria. They also ask the

parties how they would like the agreement to be worded. The mediators may

suggest a fall back clause (contingency plan) if the parties agree. The

mediators try to ensure that the outcome from mediation is workable for the

parties as the process tries to support mutual adherence to this agreement.

Finally the mediators read all the clauses against the original agenda back to

the parties concerned and check the agreement. The mediators make 3

copies of the agreement and provide one for each party and one for the

centre records. The Victorian Law Foundation suggest that the parties may

want a lawyer to check or draw up the final agreement document” (1999, 41).

If agreement cannot be reached on all issues, the mediators offer the parties

a statement of unresolved issues as a record of those matters discussed but

not resolved. This is a practical document that the parties may be able to

build on in future discussions. This document clearly outlines unresolved

issues and resolved issues so the parties can see plainly the areas that can

- 26 -

be worked on in future. It also shows the positive outcomes of the mediation

session. This is very helpful in workplace mediations to show employers that

the parties participated genuinely in the process. As Condliffe has said,

however, "it is important to remember that a bad agreement is often worse

than no agreement” (1991, 110).

Before closing “it is usually beneficial to formalise the agreement with a

handshake or similar gesture” and to “summarise the terms and reconfirm

parties acceptance of them" (Condliffe, 1991, 99). In closing, the mediators

then thank the parties for their participation in the process, wish them well

with their future communications, and indicate to the parties concerned that

they can remediate if they need to.

It is every mediators hope, however that the process (and the mediators

themselves) have modeled cooperative behaviors well enough so that the

parties have received a subtle educative effect of the cooperative behavior

necessary to resolve further issues independently and unassisted and

therefore have no need to return.

If the mediation has not resulted in an agreement, it is helpful for mediators

to reiterate to the parties that mediation is not a one stop shop for everyone.

What works for some parties in dispute may not necessarily work for

everyone. The reasons for this are as many and as varied as the types of

disputes and differences between parties. It is important for the mediators

not to let the parties leave thinking they have failed. The parties need to

know it may work at a later time, even in different matter of dispute or if one

party finds themselves in dispute with someone else they can try the process

of mediation again. Mediation is one of many options available in resolving

conflict – it is a particularly important and positive process because it is about

empowerment and transformative learning through conflict resolution.

Follow up: feedback and debrief for mediators

In the process followed by the DRCs it is required that the mediators engage

in a debrief and feedback process as part of their conditions of employment

- 27 -

and commitment to reflective practice and professional development. In this

part of the process, mediators exchange feedback with each other on their

performance in the mediation room, with suggestions also being offered for

where improvement might be possible or desirable.

In providing feedback, the mediators focus their comments on the behaviours

of their co-mediator and not their personal traits or personality. The purpose

of this stage is to make constructive comments that are clearly related to

competence and professional development. Mediators provide feedback to

each other face to face and follow up by filling out a report that is provided to

the DRC co-ordinator as part of the process of mediation.

Conclusion

This Chapter has introduced the thesis, its purpose and the focus of its

research. It has also described the approach taken to the research, and

articulated the significance of the thesis. Further, it has described in some

detail the form of mediation used in the mediations studied. The next

Chapter considers some of the mediation literature relating to the evaluation

of the mediation process and the sustainability of mediated agreements. It

highlights that, at the time the research for this thesis was planned and

developed, a significant gap existed in the literature in relation to long-term

viability studies of mediation agreements.

The literature review chapter is followed by Chapter 3 which articulates the

research methodology for the gathering of the statistical data on the factors

relating to the sustainability of mediated agreements reached through the

DRCs. Chapter 4 then presents the results of that survey and Chapter 5

analyses the data. Chapter 6 presents final conclusions and

recommendations for improvements to DRC mediation services that result

from this research. Suggestions for further future research are also made.

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CHAPTER 2 – LITERATURE REVIEW

2.1 Introduction

Mediation is widely used in Australia as a positive, collaborative, reorientating

process. At the heart of mediation are notions of party empowerment, party

control, and party self-determination. In theory, mediation allows “the parties

themselves (to) control the outcome of the dispute” (Kovach and Love,

1998). The process is therefore one that supports the parties‟ ownership of

their dispute, respects their individual capacity to decide on issues of fairness

and propriety of outcome, and centralises each party‟s own power and

control in resolving the conflict.

Sir Laurence Street has stated that "mediation has its own inherent moral

validity and its own significant role in meeting a social and human need in our

community” (1998, 237). For Street, the “overreaching philosophical

concept” of mediation is the resolution of disputes and conflicts through

consensus" (1998, 237). Mediation can therefore be said to be a process

that is focussed on achieving positive and collaborative processes and

solutions, as well as time and cost efficiencies for the parties (Menkel-

Meadow, 1997, 408). Barsky notes the importance of such an approach to

dispute resolution because of the “pervasiveness of conflict in social

interaction”, and the opportunity that conflict presents “for creative problem

solving, deeper understanding, social justice, reduced tensions, and

enhanced relationships" (Barsky, 2007, 65).

It is because “a mediated agreement is essentially a negotiated one and the

parties control the result” that it is assumed, or theorised, that “it is much

more likely that the parties will be able to live with the agreement than one

that is forced upon them" (Smith, 1998, 5). It has been said that logic

indicates that mediated agreements, because they are reached through

consensus, are inherently fair, and thereby produce compliance (Menzel,

1992). This is because consensus agreements can be said to reflect the

parties‟ mutual evaluation of the issues and options for resolution (Menzel,

- 29 -

1992). It has also been found, in the family law context at least, that

mediated agreements are more frequently adhered to than adjudicated

settlements (Blades, 1985). It has been said of community mediation

programs, such as the DRCs, that they “preserve relationships and yield

long-lasting results” (Wilkinson, 2001, 46). And Lambarth claims that "one of

the benefits of mediation over other forms of dispute resolution is durability of

settlements" (2002, 2).

This Chapter first considers how mediation has been evaluated to date. It

then discusses how facilitative mediation is defined and understood in the

mediation literature, and explores the theory and scholarship that sits behind

the practice of this model of mediation, and that upholds assertions that the

model supports the reaching of sustainable agreements. From this

discussion are drawn some key elements, or indicators, of the theory of the

process that relate to expectations of sustainable mediated outcomes. That

is, elements that if satisfied or present, are likely to indicate a greater chance

of achieving a sustainable mediated outcome. These notions are those that

have been tested in the empirical research of this study. The results of that

research are presented in Chapter 4, and the analysis of the results is

presented in Chapter 5. The elements are:

the adequacy of party preparation,

addressing the parties‟ concerns raised during the mediation,

party perceptions about feeling heard during the process,

assisting rather than harming the parties‟ relationship,

an absence of mediator pressure to reach an agreement,

an absence of specific suggestions for resolving the dispute being

offered by the mediator, and

learning conflict resolution skills for future interactions with the other

party.

This study aims to make connections between the sustainability of mediated

agreements and these key indicators of durable agreements. It also takes

into consideration the issue of the educative impact on the parties.

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2.2 Evaluation of Mediation

Whilst there has been much research over recent decades regarding who is

choosing mediation, the cost of mediation, the effects of mediation in the

community and the personal experiences of the parties subsequent to

mediation, there is little research that specifically evaluates the theory of the

sustainability of mediated agreements. Ghais confirms this saying that "there

has been extensive research on the mediation process, however to date little

is known about the sustainability of mediation outcomes" (2003, 3).

Bercovitch and Lamare assert that "we know very little about the

performance of mediation and even less about the conditions that affect its

effectiveness or success" (1993, 291). Giddings, McKillop, Neumann and

Sipe note that "a criticism of Alternative Dispute Resolution in general, has

been the lack of long term assessment of the success of agreements and

maintenance of relationships amongst parties, post resolution" (2003, 150).

And Alexander states, "mediation outcomes have yet to be explored from a

global and comparative perspective" (Alexander, 2003, 1).

Meierding is one of the very few researchers who have touched on the

durability of agreements reached through mediation. Meierding states the

purpose of her research was to "measure long term satisfaction and

compliance with mediated agreements" (1993, 157). Similar to this study,

the participants in the research “were limited to the parties who had

successfully negotiated all of the issues”, “through private, voluntary, and

confidential mediation” (Meierding, 1993, 168-169). The numbers of

participants in Meierding‟s study were substantially lower than those for this

study, however, at 119 participants (1993, 160); and the study was limited to

the family law context.

Meierding‟s conclusions were that the research “dramatically illustrate(d) the

high level of satisfaction of participants in the private, voluntary, and

confidential mediation process” (1993, 169). Whilst it was conceded that

- 31 -

generalisations were not possible from such a small study, the results were

taken as inidicating that “despite the high levels of stress, anxiety, and fear

associated with the breakup of a marriage, the vast majority of the parties in

mediation believed that their needs and interests had been considered by the

mediator and that the agreements reached in mediation were substantively

fair to both parties” (1993, 169). The study also demonstrated long-term

satisfaction with the agreements “by the continued compliance with the

original agreements and changes by mutual consent, modifications that were

reached through constructive private discussion or by a return to mediation”

(1993, 169).

Generally speaking, therefore, research on the sustainability of agreements

over extended periods is limited. A National Justice Centre evaluation study

in the US of mediated agreements focussed on the durability of mediated

agreements, but only 6 months after the mediations had taken place. It

found that “more than two-thirds of all disputants reported that the other

participant had upheld all the terms of the resolution” (Cook, Roehl, and

Sheppard, 1980). A similar study found a 60% rate of long-term compliance

(Pruitt and others, 1993). Pruitt‟s research also found that over three-

quarters of all disputants reported that no subsequent problems had arisen

since the mediation.

Although some research has been achieved, it is limited in its scope because

research about the nature and sustainability of mediated outcomes is difficult.

This is because comparison or analysis of outcomes needs to take account

of the range of mediation models and approaches. Problems also arise in

terms of the availability of data, confidentiality and party willingness to

participate in research. However, Hedeen has noted the considerable value

of analysing the “stability of mediated resolutions over time” (Hedeen, 2004,

122). First, because “it represents disputants‟ abilities to fashion a fitting

solution to their differences and to comply with the terms of any agreement

made”; and second, because it indicates that the participants will not require

further intervention (for example, by the courts, police, or the mediation

centre) or other resources.

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Problems for mediation as a legitimate dispute resolution process also arise

as a result of the lack of studies which outline the long term benefits to

parties, communities and society in general. It is further problematic that the

practice of mediation and theoretical developments can cause a divide

between practitioners and researchers (Astor, 2000, 77). These problems,

and in particular the distinction between mediation theory and practice, are

unsettling for the mediation professional. Some practitioner/academics, such

as Peter Condliffe, have worked to “turn theories of conflict management into

practice" (Smith, 2003, 243). This thesis follows the lead of such

practitioners in aiming to better understand the sustainability of mediated

outcomes by research that will make sense of mediation theory from a

practical sense in the long-term.

Due to the difficulties associated with evaluating mediated outcomes,

mediation is often assessed simply in terms of party satisfaction with the

mediation process. Current available research is very heavily oriented

towards assessing the parties' satisfaction with the process. Guthrie and

Levin in their research on party satisfaction, for example, "focussed on one

criterion, satisfaction, and one constituency, parties" (1998, 886). Ghais‟

evaluative research on mediation also focussed on “the parties‟ level of

satisfaction and their perception of fairness of the process, the mediator, and

the outcome” (2003, 3). As Van Gramberg would argue, however, party

satisfaction is not always a reliable measure as it may be achieved through

dispute closure rather than through obtaining a just and sustainable outcome

(2003, 241).

Party satisfaction with the mediation process is undoubtedly important, but

also important are the time and cost efficiencies and savings (for the parties

and also for government) (Hedeen, 2004). Daubney has noted the “obvious

advantages” of ADR to the parties “and indeed the wider community by

reason of efficient and effective allocation of resources within the publicly

funded system” (2008, 9). And yet, as Lewis and Condliffe have said,

because “most of the information that is available relates to the success or

- 33 -

otherwise of the mediation process vis-à-vis the disputants themselves”,

there is little information about “the savings to the community that are made

by utilising the mediation process" (1999, 139). As Wade notes, "there are

no comparable measures of outcomes, such as durability and respect.

There is no point measuring money in, if there is no balancing of quality out"

(Wade, 1997, 345).

Whilst most evaluation of mediated agreements has focussed on party

satisfaction, significant reliance is placed, as was noted in the previous

chapter, on whether an agreement to the issues in dispute resulted from the

process. This is a key indicator of the „success‟ of mediation. Indeed,

Alexander argues that "the overriding aim of mediation is to reach an

agreement in the maximum number of cases and to prevent those cases

from proceeding to formal adjudication. Successful mediation is therefore

defined as reaching a compromise which is then translated into a signed

agreement” (1999, 19).

Alexander queries reliance on settlement rates, however, “given different

bargaining power and skills of the parties and pressures as to time and

expense, as well as the private nature of mediation and the directness of

some mediators toward the ultimate goal of settlement" (1999, 19). In the

author‟s personal experience, reaching an agreement is not necessarily the

goal of the mediators. Instead, they hope that the parties actually hear each

other through the meaningful dialogue the mediator has facilitated, which

might also happen to produce an agreement at the end of the process.

Whilst literature on dispute resolution certainly acknowledges the connection

between mediation and the eventual outcomes reached, Bercovitch and

Lamare state that "outcomes that appear successful at one point may seem

as somewhat less so a few months or years after mediation" (p. 295, 1993).

There is therefore an established need for research about the long-term

viability and sustainability of mediated agreements. This research is

necessary to verify the theory that sits behind the practice of mediation, it is

necessary to justify the claims made by service providers about the benefits

- 34 -

of mediation, and it is necessary to support the validity and professional

credibility of the work of mediation practitioners. This thesis is a response to

this gap in the knowledge-base of mediation.

2.3 Facilitative Mediation

There are many models of mediation. Generally, they can be classified as

either facilitative, advisory or determinative in nature (Cooper, 2007, 235).

Boulle‟s description of the range of models of mediation is widely accepted

(Boulle, 2005, 43-45). These models - settlement, facilitative, transformative

and evaluative mediation - are all positive approaches to dispute resolution

and conform with definitions of mediation, but they could also be said to be

“as diverse as apples and pineapples” (Taylor, 1997, 215). The model of

mediation used by the Queensland DRCs, as discussed in the previous

Chapter, is facilitative mediation.

Facilitative mediation is generally regarded as the „traditional‟ approach to

mediation (Kovach and Love, 1998, 76). For example, the Australian

National Mediator Standards are based on a facilitative model of mediation,

and it is considered to be one of the prevailing models of current approaches

to mediation practice, particularly in the area of community dispute resolution

service provision.

Boulle describes facilitative mediation as an interest-based, problem-solving

model that focuses on helping parties to identify and work with their

underlying needs and interests in order to reach a mutually satisfactory (or in

other words self-determinant) outcome (Boulle, 2005, 44). The key role of

the mediator in this model is to support party self-determination by managing

the mediation process in a neutral way, leaving control of the dispute and its

outcome with the parties. In facilitative mediation, generally, it is not the role

of the mediator to suggest options, or express views about what an

appropriate settlement might look like. Rather, the mediator‟s focus is on the

management of the “communication process between the parties in order to

assist them to come to their own resolution of the dispute” (Cooper, 2007,

- 35 -

235).

A classic definition of facilitative mediation has been provided by Christopher

Moore in his seminal work of 1986 on mediation process and practice:

Facilitative mediation is “the intervention into a dispute or negotiation by

an acceptable, impartial and neutral third-party who has no authoritative

decision-making power to assist disputing parties in voluntarily reaching

their own mutually acceptable settlement of issues in dispute” (1986,

14).

This definition highlights the importance of a neutral, non-determinative, low

intervention role for the mediator in order to support party self-determination.

It is a definition supported and echoed in definitions offered by other

authorities such as Bush and Folger (who summarise the role of facilitative

mediators as being to “work to generate a settlement that meets the needs of

all sides” (2005, 44)), Folberg and Taylor (1984, 7), Astor and Chinkin

(2002), and others.

As a neutral process, facilitative mediation creates the possibility for the

parties to reach a fair outcome “by ensuring procedural fairness” (Thirgood,

1999, 142). The process orientation of facilitative mediation is central to its

concern with problem-solving and supporting the parties to reach a mutually

satisfactory settlement. Folberg and Taylor comment that “the most useful

way to look at mediation is to see it as a goal-directed, problem-solving

intervention” (Folberg and Taylor, 1984, 8). This is possibly why, as was

noted above, agreement rates have been a vital statistic in the history of

facilitative mediation proving both the worth of the process, and the merit and

expertise of its practitioners (Fisher, 2000, 61). Fisher, an experienced

practitioner of facilitative mediation for more than 20 years, has commented

that “reaching an agreement, of course, is the be all and end all” (Fisher,

2000, 61).

There is a presumption, therefore, that if the facilitative process is followed, it

is possible to achieve an agreement that is mutually satisfactory to the

- 36 -

parties, and is thereby also more likely to be sustainable (Fisher, 2000, 61).

In order for facilitative mediation to help the parties to reach their own

agreement, it is seen as important that the mediator “is not directly involved

in the dispute or the substantive issues in question” (Moore, 2003, 15). It is

also seen as important that responsibility for the dispute itself and its

resolution is left with the parties (who bring to the process an expertise in

their own conflict). This means that any mediator intervention in the dispute

that extends beyond a process-oriented role can be said potentially to

undermine the parties‟ control over the content of the dispute and the

resultant outcome, and also therefore undermine the sustainability of any

agreement reached.

Facilitative mediation is seen as a positive process precisely because it

represents “a move away from third-party decision-making toward a solution

which the parties themselves have constructed” (Roberts, 1983, 540). The

process is grounded in a belief that the parties themselves have the best

knowledge, and the greatest ability, “to reach an agreement that maximizes

their individual preferences” (Maute, 1990, 350). Facilitative mediators

therefore “cannot unilaterally mandate or force parties to resolve their

differences” (Moore, 2003, 18). Facilitative mediators also cannot impose

the terms of an agreement on the parties or dictate a particular outcome.

Rather, the facilitative mediator‟s role is clearly distinguished from the

determinative role of a judge or arbitrator. This is a distinction that “makes

mediation attractive to many parties in dispute because they can retain the

ultimate control of the outcome” (Moore, 2003, 18).

Facilitative mediation is therefore democratic and empowering. By

empowering the parties, the process encourages them “to exercise their

autonomy and independent choice in deciding whether and how to resolve

their dispute” (Bush, 1989, 253). As Marshall has said, the empowerment

aspect of mediation is a liberating, because it is “about maximising, not

restricting, options for the parties” (Marshall, 1990, 118). The facilitative

mediator‟s expertise in managing the mediation process, then, is expected to

enable the parties to “identify their own real needs or goals,” to be “realistic

- 37 -

about others‟ motivations, needs, and interests,” and to be “able to use social

resources to their own ends” (Marshall, 1990, 122).

Astor has devised the notion of „maximising party control‟ as a conceptual

framework for explaining party self-determination as form of party

empowerment. Astor argues that maximizing party control should be the

focus of mediation (2000a, 2007), as it supports good practice (2000a, 79).

Maximizing party control “puts the focus on the parties,” and describes “more

accurately what good mediators do in practice” (2000b, 146).

In summary: the facilitative mode of mediation upholds party self-

determination by facilitating the parties‟ communication, promoting

understanding between them, assisting the parties to focus on their interests

rather than on their positions, and supporting the parties in the process of

creative problem-solving in order to reach a mutually satisfactory agreement.

To achieve this, a mediator is expected to act neutrally to open

communication channels; legitimise and mutualise both parties‟ perspectives;

explore problems; operate as an agent of reality (Moore, 2003, 19); deflate

unreasonable positions, and provide the “parties with new perspectives on

the issues dividing them and more effective processes to build problem-

solving relationships” (Moore, 2003, 15). These actions maximise the control

of the parties. In this way, mediators create the circumstances in which the

parties are able to reach agreements that have the potential to be

sustainable, durable and lasting.

From the theory of facilitative mediation discussed above a number of factors

can be drawn out as working towards or supporting the achievement of party

empowerment and thereby sustainable agreements. First, it is necessary

that the parties are adequately prepared for their participation in the process,

and they are ready to take on the responsibilities associated with party

empowerment and self-determination. Second, it is important that the parties

feel that their issues and concerns are adequately addressed in the

mediation process through the facilitative work of the mediator. Third, and

relatedly, it is important that the parties feel heard during the process; that

- 38 -

they have been given a voice and a part in determining the resolution of the

dispute. Fourth, for sustainable outcomes, it is important that the process

assists rather than harms the parties‟ relationship. Fifth, it is important that

the parties are not pressured by the mediator to reach an agreement. Sixth,

it is also important that the mediator does not offer specific suggestions for

resolving the dispute, but rather supports the parties in coming up with their

own options for resolution that are tailored to their own individual

cirumcumstances. Finally, it is critical for sustainable outcomes that the

parties learn conflict resolution skills for any future interactions with the other

party.

2.4 Preparation before mediation

An important aspect of empowering parties for party self-determination and

maximising party control is party preparation for their participation in the

mediation process. Through thorough party preparation processes, the

parties are equipped with the necessary information and skills to make the

most of the opportunity for a facilitated resolution of their dispute. Successful

preparation is therefore a critical way of working towards agreements that are

sustainable, durable and lasting. Preparation processes for the facilitative

model of mediation provided through the DRCs occur mainly through the

intake process.

The intake process is an important aspect of pre-mediation preparation for a

number of reasons. As mediation is not an appropriate process for all

disputes or disputants, the intake process is used in the first instance to

assess and review whether a matter is suitable for mediation (Payget, 1994,

190). At the DRCs, an intake officer will make a decision to screen a party

out of mediation where they believe they do not have the capacity to

negotiate effectively in the process. This might be because, for example,

there is a history of family violence or abuse, or the party is living with mental

health, or drug or alcohol abuse issues (Clemants and Gross, 2007).

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For those parties for whom mediation is appropriate, the intake process is

used to inform them about, and develop their understanding of, the mediation

process, and to build trust and cooperation. Intake processes are also used

to establish the credibility of the mediation process, to encourage the

goodwill of the parties, and to promote active participation in the mediation

process (Payget, 1994, 192-196).

By helping the parties to understand the mediation process, their role and

responsibilities in it, and the role and responsibilities of the mediator, the

intake process increases the capacity of the parties to engage effectively in

the negotiations facilitated in the mediation process. In this way, the intake

process can act as a form of coaching for mediation. Sordo has suggested,

for example, that “the most important aspect of preparing clients who have

agreed to mediation is giving them sufficient information about the process

and in particular its potential to settle their dispute” (Sordo, 1996, 22; Gilbert,

2003, 91).

Intake preparation therefore supports the achievement of sustainable and

lasting agreements because it provides the parties with a thorough

understanding of mediation - “what it is and how it works” (Gilbert, 2003, 92).

It supports the parties in a preliminary identification of key issues and

concerns, helps them to make an early assessment of their needs and

interests, and initiates their thinking about possible option generation, and an

articulation of their bottom line. Overall, this can be said to enhance the

achievement of party self-determination for the parties and thereby enhance

the possibility of achieving sustainable agreements (Cooper and Brandon,

2008, 109-110).

2.5 Addressing the parties’ concerns

Another very important aspect of the empowering nature of mediation that

supports the attainment of sustainable and lasting agreements is the

thorough way in which the process works to identify the parties‟ concerns

and to facilitate discussion of them in a systematic way. The focus on party

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empowerment in mediation through ensuring that each party has the

opportunity to raise their issues and concerns creates an environment in

which the parties are supported in exercising “their autonomy and

independent choice in deciding whether and how to resolve their dispute”

(Bush, 1989, 253).

If the parties feel that their concerns and issues have been addressed, they

are more likely to be able to positively contribute to designing and

implementing “their own solution to the problem” (Bush, 1989, 267). The

parties are more likely to feel as though the process has provided them with

fairness and dignity, and that they have been supported by the process

through the provision of a structure that aids the reaching of a cooperative

compromise. In this way sustainable agreements become possible because

the parties are assisted in the process to take control of the management of

the dispute and of their own fates (Fuller, 1971, 326).

A range of steps in the mediation process are used to ensure that the parties

concerns and issues are heard and addressed (Boulle, 2005, 181-194).

First, the process of party statement taking gives each party an equal and fair

opportunity to articulate their story (Boulle, 2005, 184). The role of the

mediator in enforcing the ground rules of the process, particularly the ground

rule of „no interruptions‟ is critical to helping the parties feel that they have

had a chance to be heard by the other party and the mediator. Second, the

stage of summarising back to the parties their issues and concerns in a

neutral and non-judgmental way assists the parties to feel that their concerns

and issues are being addressed. Perhaps most importantly, the next stage

of agenda setting works to specifically articulate each of the parties concerns

and issues and creates a clear structure and road-map for discussions,

ensuring that each issue is addressed and discussed (Boulle, 2005, 186-

187). The exploration, private caucus and negotiation phases also focus on

addressing the parties concerns.

The role and expertise of the mediator in facilitating these stages of the

process are critical in ensuring that the parties feel that their concerns and

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issues have been addressed. Mediators need high levels of competence to

skillfully facilitate the statement taking stage, and to summarise fairly and

accurately the parties concerns and issues (Charlton & Dewdney, 1995).

Significant skills are also required to develop a skilful agenda out of the

parties‟ statements and summaries. Mediators initiate the choice of wording

used in the articulation of the issues on the agenda, and contribute to the

process of prioritizing the issues. They are therefore in an important role of

responsibility and influence in ensuring the parties feel that their issues have

been addressed through the process (Wolski, 1997, 254). The attainment of

sustainable agreements is therefore made possible through the expertise of

the mediators and the structure of the process in ensuring the parties feel

that their concerns and issues have been addressed.

2.6 Ensuring the parties feel heard

Moore asserts that "often closure of substantive issues and implementation

procedures is not enough to ensure final agreement, compliance or

termination of a conflict” (2003, 332). His view is that the parties also “often

need a significant degree of psychological closure with other people who

have been involved, the process itself, and the terms of substantive

agreements that have been reached” (2003, 332). For this reason, the

“psychological aspect of agreement making is often necessary and critical to

help disputants end or let go of a dispute" (2003, 332). Psychological closure

can be achieved simply by the parties feeling that their story has been heard.

Further, if the parties feel that they have been heard through the process,

and have had an opportunity to „have their say‟, they are far more likely, as

Daubney says, to come “away with a greater understanding of why they were

in dispute and what they were in dispute about” (2008, 3-4). Wade also

notes the importance of the parties feeling that they were listened to, and that

they thereby had a sense of control (1998, 125). Therefore, if the parties in

mediation feel heard, they are more likely to achieve a sustainable

agreement.

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The parties feel heard in the process when they feel that they have been

given a voice. Kelly argues, for example, that “women in custody and

divorce mediation have reported that mediation enabled them to have a voice

and express their views and they perceived that they had equal influence

over the terms of the agreements” (Kelly, 1995, 85; Kelly & Duryee, 1992).

The mediation process supports sustainable agreements because it creates an

environment in which the agreements reached also accommodate the parties‟

emotions and story-telling (Herrnstein, 1996, 240). Mediation offers the

possibility for the parties to feel that their perspectives are integrated in the

discussions in a way that is nurturing and empathethic, particularly when

compared with the abstract nature of the way parties are treated in the linear,

formal public legal system. Further, the parties concerns and issues can all be

accepted as relevant, unlike in court environments where formal abstract legal

principles of relevance reject many of the parties deepest concerns in the

dispute. In mediation, therefore, the parties can feel that that the process is an

individualised one that can take account of the context of their unique personal

circumstances and interconnections with others (Herrnstein, 1996, 231). The

empowerment of the parties in this way contributes to minimizing the divide

between them and creates the possibility for a relatively level playing field.

By helping each party to feel heard, mediation offers a context in which the

principles of equality and fairness are achievable. Coercive, combative and

adversarial approaches that the parties may bring with them are thereby

converted into cooperative and collaborative negotiation, problem-solving and

decision-making. Each party feels intrinsically valued, and together the parties

can take control of their dispute and push for a resolution of it on their own terms

(Charlton & Dewdney, 1995, 239). For these reasons, sustainable agreements

are possible through mediation if the parties feel heard in the process.

2.7 Positively impacting on the parties’ relationship

An important aspect of the possibility of achieving sustainable agreements

through mediation is that the process creates an environment in which

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parties at odds can come to understand each other‟s perspective. This is of

particular importance if the parties are to have an on-going relationship, for

example, in families, neighbourhoods and workplaces (Boulle, 2005, 73). It

is also important if the parties are in a situation where their relationship will

be “enhanced by new and shared perceptions and understandings about one

another” (Boulle, 2005, 73).

Lon Fuller, in his seminal work of 1971, articulated the central quality of

mediation as being:

“its capacity to reorient the parties towards each other, not by imposing

rules on them, but by helping them to achieve a new and shared

perception of their relationship, a perception that will redirect their

attitudes and dispositions toward one another” (Fuller, 1971, 325).

Elix confirms the importance of the process supporting the parties in

improving their relationship (2003, 113). Boulle comments that this is

achieved “by taking into account the real needs of the parties, by providing a

participatory and informal procedure, by modelling constructive negotiation

and problem-solving techniques, and by humanising the management of

conflict” (2005, 73).

Boulle also comments, however, that this goal is not shared by all mediators

and that it is not an aim of models of mediation other than the transformative

and therapeutic models (2005, 73). Nevertheless, the goal is one that is

shared by the mediators who practise with the DRCs of Queensland and

because of the nature of the disputes that come to the DRCs (predominantly,

neighbourhood, family, workplace etc) it is a goal of the facilitative model

used by those centres. It is therefore an important factor in the attainment of

sustainable, durable and lasting agreements through the DRC model of

mediation.

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2.8 Absence of mediator pressure to reach agreement

The theory behind the facilitative model of mediation is that the mediator

supports the parties in reaching in their own agreement and the parties are

free from any pressure to settle which might mean that they agree to

something that is not in their interests or is not sustainable over time.

Mediation practitioners should be aware that agreement for agreements sake

is often unworkable and unliveable, as is often an enforced settlement

imposed by a court or similar authority. Parties, who walk away with an

agreement they do not feel they own, often will not comply with it -

particularly after a period of reflection or discussions with family members at

a later stage. Wade has emphasised that “the role of the mediator is not to

determine the outcome of the mediation process but to facilitate discourse

between the waring parties concerned" (1998, 125).

Davenport emphasises the importance of the fact that, "a party should not be

made to feel under any pressure” to agree to an outcome in mediation”

(1997, 133). His view is that the parties:

“should be given every opportunity to go away, reflect upon the

implications of the settlement and obtain legal or other advice. This may

ultimately result in more work for mediators but it is better that they are

paid for working rather than sued for misleading or deceptive conduct.

My advice to mediators is to raise with the parties whether they want a

cooling off clause in the mediation agreement" (1997, 133).

However, many commentators in the literature have expressed concerns that

the reality of mediation is that mediators often do in fact influence the

outcome of disputes by exerting pressure to settle (Dyck, 2000, 143; Wolski,

1997, 219). McEwen and Milburn have commented that it is “difficult to find

unpressured use of mediation” (1993, 23-24); whilst Kressel and Pruitt have

said that it is “by no means rare for the mediator to have a decided

preference for certain outcomes of the dispute,” or to “engage in „arm

twisting‟ in order to persuade reluctant parties to agree to specific proposals”

(Kressel and Pruitt, 1985, 190). Honeyman, too, acknowledges that

- 45 -

mediators “can exercise great influence” over the reaching of the final

agreement (1985, 141).

Further, Linda Fisher has commented, for example, that “the reality is that we

steer the mediation every inch of the way in terms of content as well as

process. We do this by being more (or less) directive, and more (or less)

interventionist, depending on our personality and our prejudices” (2000, 64).

The private and confidential nature of the mediation room, where the

mediator‟s facilitation of the process is usually not externally scrutinised,

means that mediator must be vigilant about their own professional practice if

they are to avoid substituting their own personal influence for what would be

otherwise be experienced in the court-room as “the open decision of a judge”

(Dingwall, 1988, 150).

Jesser has said that "if the mediator has done their job properly, the parties

will be well aware that they do not have to settle at the mediation, that their

participation is voluntary and they can leave at any time they wish and retain

their right to proceed to court" (2003, 221).

2.09 Parties generating their own suggestions for resolution

The theory behind the facilitative model of mediation asserts that it is

important that the parties themselves generate the options for resolving their

dispute (Boulle, 2005, 65-67). This is so that the agreement is one that

addresses their particular needs and circumstances in a way that they will be

able to live with. In practice, mediators use a range of skills and tools to

support the parties in generating their own options. They use questioning,

summarizing, and reframing, for example (Boulle, 2005, 217-220). They also

use the private caucus to challenge the parties about the liveability of the

options they are suggesting. In particular, mediators engage in a process of

extensively reality testing each aspect of a proposed agreement, taking into

consideration whether or not it is an accurate account of what each party

wants.

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The theory in relation to this issue is therefore similar to that in relation to the

issue of mediator pressure to settle, discussed above. That is, agreement for

agreements sake, or agreements that the parties do not devise for

themselves, will often be unworkable and unliveable in the long term. Party

empowerment and the attainment of sustainable agreements are supported

through the mediation process by the parties themselves generating the

options for resolution and deciding among them. Consequently, mediator

suggestions for resolution hamper the achievement of party empowerment

and compromise the achievement of sustainable outcomes.

In the exploration, private caucus and negotiation phases of the mediation

process, it is particularly important that the mediator supports the parties in

generating their own options and avoids imposing their own suggestions on

the parties. This requires great skill, and mindfulness of the mediator‟s own

power in the process (Lang and Taylor, 2000). In these stages of the

mediation process in particular, mediators are in a position of leadership and

influence as they control the flow and rhythm of the parties‟ communications;

and keep the discussions balanced (Kolb, 1983).

A very important issue in terms of supporting the parties to generate their

own options is ensuring that the power dynamics between the parties are

managed appropriately. This is necessary if the parties are to be

empowered to “have the capacity to bargain effectively for their own needs

and interests, and so that the process and its outcomes are fair and not

exploitative” (Astor, 2005, 30).

2.10 Parties learning conflict resolution skills

A final critical aspect of the theory of facilitative mediation is that, although

the process is focussed on problem solving, it also has the potential to

transform the parties to some extent by providing them with the opportunity

to learn conflict resolution skills. These skills can support the sustainability of

mediated agreements by ensuring that when the parties leave the mediation

room, they are equipped with ways to communicate effectively about issues

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in dispute that arise post-mediation. In particular, the mediators model

conflict resolution skills and cooperative behaviours that the parties can

utilise or copy at a later date.

Whilst the model of mediation used at the DRCs is not strictly a

transformative model, the facilitative mediation model practised certainly

draws on some of the elements of the transformative model developed by

Bush and Folger (1994, 2005). One aspect of that model is to work with the

parties “to help them change the quality of their conflict interaction from

negative and destructive to positive and constructive, as they explore and

discuss issues and possibilities for resolution” (Bush and Folger, 2005, 65-

66). Transformative aspects of mediation are therefore a form of therapeutic

intervention that focuses on empowering the parties to recognise each

other‟s conflict perspective, transforming the way they deal with the particular

dispute in question, as well as how they manage conflict in general (Boulle,

2005, 44). This necessarily requires the parties to be exposed to the

possibility of learning conflict resolution skills that they can take with them out

of the mediation room. It makes mediation a learning experience for the

parties; an approach that has the potential to achieve deep personal, and

even societal, impact.

Whilst transformative elements of mediation have many positive attributes, it

is necessary, however, to keep a real perspective on the level of conflict

resolution skills that can be imparted to parties in the brief time that they

experience the mediation process (usually a period of 3-4 hours). Dewdney

has commented, for example, that “there is little, if any, evidence that parties

can be „transformed‟ after a few hours of mediation” and that “common sense

would (in fact) suggest otherwise” (Dewdney, 2001, 25).

Nevertheless, the educative aspect of mediation is important to the possibility

of sustainable and lasting agreements and the successful resolution of future

conflict between the parties. Where the parties take some elements or tools

of modelled constructive and cooperative behaviour away with them there is

a far greater chance that their agreement will be durable.

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Conclusion

This Chapter has discussed approaches to evaluating mediation and

explored the theory of the facilitative model of mediation which is practised

by the DRCs of Queensland. The literature has emphasised the importance

of party control and empowerment in this process, and the relationship that

party self-determination has with the possibility of sustainable and durable

agreements. The literature evidences that the theory of facilitative mediation

supports the attainment of sustainable agreements through the process if:

the parties are adequately prepared for the process; if the parties feel that

their concerns have been addressed during the mediation; if the parties feel

that they have been heard during the process; if the process makes a

positive impact on the parties‟ relationship; if the mediators do not pressure

the parties to reach an agreement; if the parties come up with their own

suggestions for resolving the dispute; and if the parties learn some conflict

resolution skills through the process for their future interactions with the other

party.

The empirical research of this study tests these elements of the facilitative

model that can be said to support sustainable agreements through a survey

of parties‟ experiences of mediations conducted through the DRCs of

Queensland. In doing so it aims to make connections between mediation

theory and practice and to provide empirical support for assertions that the

facilitative mediation is a dispute resolution environment which makes the

attainment of durable and lasting agreements possible.

The methodology for this empirical research is explained in the next Chapter.

That Chapter is followed by Chapter 4 which describes the results of the

study and then by Chapter 5 which discusses and analyses those results.

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CHAPTER 3 – METHODOLOGY

The previous Chapter confirmed the relative paucity of empirical data about

the sustainability of mediated agreements. This gap in information about

mediated agreements was of interest and concern to the author in relation to

mediations conducted by the Queensland DRCs – particularly at the time this

research was initially conceived and designed. This Chapter outlines the

steps taken in completing the study and explains the methodology used for

the survey research of this thesis. The Chapter also discusses some of the

limitations of the research.

In terms of developing a methodology for measuring and assessing

agreement sustainability this research, at the time the author was engaged in

this task there was very little comparative work from which to draw. Sourdin

believes that future work in the area of evaluating ADR processes will require

the development and use of consistent survey approaches and instruments

(2005, 164).

3.1 Steps taken in completing the study

The first step taken in completing the study was a literature review. The

results of that review have already been presented and discussed in Chapter

2. The literature will also inform the discussion and analysis of the survey

results in Chapter 5.

The second step in completing the study was to design the research

instrument for surveying participants in DRC mediations who had reached

some form of agreement (written, verbal or partial). The research design was

focussed on the development of a survey instrument that would:

1. Analyse the sustainability of agreement outcomes of mediations by

surveying the parties who participated in the mediations as to the

factual longevity of mediated agreements.

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2. Analyse the key indicators of a sustainable agreement by surveying

the parties who participated in the mediations as to:

the adequacy of their preparation for participation in the process,

whether the agreement proved effective in addressing their concerns,

whether they felt heard during the process,

whether the mediation process assisted or harmed their relationship

with the other party,

whether they felt pressured by the mediators to reach an agreement,

whether the mediators offered specific suggestions for resolving the

dispute, and

whether they would reuse the service.

3. Analyse the educative nature of mediation and its relationship to

sustainable agreements. That is, the ability of mediation to impact

positively on future conflicts between the parties through a

transformative effect, and whether the parties who participated in the

DRC mediations experienced this as an influence on the sustainability

of their agreement.

The survey instrument can be found at Appendix 1. It posed ten questions to

parties who had attended a DRC mediation between 1999 and 2003 and who

had attained an agreement as an outcome to the process.

The questionnaire asked:

1. What was the outcome of the mediation?

2. Is the agreement still in effect today?

3. How prepared did you feel before mediation?

4. Did the agreement prove effective in addressing the concerns that

were raised during the mediation?

5. Did you feel heard?

6. How has mediation affected your relationship with the other party?

7. Did you feel pressured by the mediators to reach an agreement?

8. Did the mediator/s offer specific suggestions for resolution?

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9. Would you reuse the service?

10. Did you learn any conflict resolution skills?

This survey method was employed because the number of potential

participants (over 7000) required a simple process that would provide data

that could be analysed in a manageable way. It also involved the shortest

time commitment possible for the parties concerned, and so therefore was

considered the best way to achieve a meaningful response rate. No reward

for completing the survey was provided.

The third step in completing the study involved data collection. Before the

any data collection occurred Departmental approval was obtained in relation

to accessing the names and contact details of the parties for the study.

Further, ethics approval for the research was obtained through the QUT

Ethics Committee. The parties were asked to recall potentially painful issues

relating to their past conflict, increasing the possibility that “revisiting” could

result in some emotional discomfort. However, I indicated to potential

respondents that any discomfort would be minimal, even very unlikely, as the

study focused on those mediations in which an agreement had been

reached, signalling the diffusing of any conflict.

Once the relevant approvals had been received, an initial pilot study to test

the survey was conducted in relation to mediations completed at the Wide

Bay Dispute Resolution Centre. Before the pilot survey was sent to the

parties that were involved in the mediation process, they were initially trialled

on a panel of thirty Wide Bay mediators to check for readability and

workability. Minor changes to the survey instrument were made at this stage

as a result of the mediators‟ feedback. This pilot study took place over a

period of 3 months and was completed in January 2005. The results were

considered and the survey instrument was further refined.

The collection of data for the full study began in January 2005. First, this

involved the use of the Department‟s database to identify the names and

contact details of parties to DRC mediations between 1999 and 2003 who

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had achieved a written, verbal or partial agreement. Due to inconsistencies

in data collection methods amongst the Queensland DRCs, and because the

databases did not link databases, collecting complete and accurate

information about participants and the outcomes of their agreements was

difficult and time-consuming. Intake Officers with the DRCs in all the Centres

were approached notifying them of the study and requesting their assistance

in data collection. Some Centres found this request more challenging than

others.

The parties identified were all sent the survey instrument along with a

covering letter outlining the reason for the research with the researcher's

identity and contact details should they have any questions. An ethics

information sheet was included in the letters which notified participants that

by returning the survey to the researcher they were providing their consent to

participate in the research. The participants were also informed that they

were free at any time to discontinue participation. Participants were provided

with a reply paid self addressed envelope to assist with motivating the return

of completed survey responses.

Once the questionnaires were returned to the researcher, they were

stamped, identity coded and the data was inputted into a secure laptop,

which was password access restricted to the researcher. The hardcopies of

questionnaires were placed in a locked filing cabinet to which the researcher

held the only key.

Due to the timeframe under investigation, five years in total, it was envisaged

that many parties may not be contactable by mail due to a number of

circumstances - the main one being relocation. A reasonable response rate,

for example a twenty percent response rate, was required to give statistically

meaningful results.

Letters were sent to 7,176 parties to the mediation process in the areas of

Brisbane, Wide Bay, Rockhampton, Townsville, Cairns and Mackay. 3676

letters went to Brisbane parties, 444 to Wide Bay parties, 599 to Mackay

- 53 -

parties, 646 to Rockhampton parties, 965 to Townsville parties and 846 to

Cairns parties. Of the 7,176 letters sent out there were 1389 returned

responses of which 1339 were completed sufficiently to be used in this study;

50 responses were unable to be included due to being incomplete. This

represented an overall response rate to the survey across combined centres

of 19%.

The student Teresa Brennan provided to the supervisor of this project,

Rachael Field, half-yearly progress reports. The surveys, the computer

based information and any printed material was stored in a locked filing

cabinet for which there is only one key, which the researcher holds. The

personal details of the parties never left the secure government office and

once mail merged occurred they were deleted from the spreadsheet as these

personal details were no longer necessary. The only record linking the

names of the parties to the unique code given to each was also held by the

researcher in the locked filing cabinet located and was constructed to be

totally undecipherable by anyone but the researcher concerned. Data

entered into the laptop computer was also password protected at all times,

ensuring that confidentiality could not be breached.

The next step in completing the study was to analyse the data. The first

approach to data analyses was to record response rates to each question

across years and then across centres. The results of this approach are

presented in the next Chapter. The second approach to analysing the data

was to test the results using The Kruskal Wallis Test; The Mann-Whitney U

test; The Kendall tau rank correlation coefficient test; and the Chi-Square test

respectively. These tests particularly investigated whether:

the outcome type (written or verbal) was associated with whether the

agreement is still in effect today?

the preparation of parties before mediation affected whether the mediated

agreement was sustainable?

having the concerns addressed effectively in the mediation is associated

with the agreement still being in effect?

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parties who felt that they were heard were more likely to have achieved a

sustainable agreement?

parties who felt pressured to reach an agreement during the process

were less likely to have reached a sustainable agreement?

3.2 Statistical Methodologies

Methodologies used to analyse the statistics include:

The Kruskal Wallis Test. This test is used to test the hypothesis that a

number of unpaired samples originate from the same population. It

was used here with the three sets of data namely written agreement,

verbal agreement and partial agreement and the results indicated that

the type of agreement reached does influence whether the agreement

is still in effect today.

A Mann-Whitney U test is a non-parametric test for assessing whether

samples of observations come from single population, and their

probability distributions are equal. The samples need to be

independent, and the observations are ordinal or continuous

measurements. This test was used in this study to determine whether

there is a significant difference in the degree to which the agreement

is in effect between those individuals that had a written agreement vs.

verbal agreement vs. partial agreement.

The Kendall tau rank correlation coefficient is used to measure the

degree of correspondence between two rankings and assessing the

significance of this correspondence thus, it measures the strength of

association of the cross tabulations. This test was used in this study

to show that there is a statistically significant association between how

much respondents felt prepared before the Mediation and whether the

agreement is still in effect today.

http://en.wikipedia.org/wiki/Non-parametric_statistics

http://en.wikipedia.org/wiki/Sampling_%28statistics%29

http://en.wikipedia.org/wiki/Probability_distribution

http://en.wikipedia.org/wiki/Statistical_independence

http://en.wikipedia.org/wiki/Ordinal_measurement

http://en.wikipedia.org/w/index.php?title=Degree_of_correspondence&action=edit

http://en.wikipedia.org/wiki/Ranking

http://en.wikipedia.org/wiki/Significance

http://en.wikipedia.org/wiki/Association

http://en.wikipedia.org/wiki/Cross_tabulations

- 55 -

The Chi-Squared test is used in statistical hypothesis testing. For

example to test whether outcome frequencies follow a specified

distribution. A chi-square test for independence of attributes was used

to check the relationships in this study. This test was used to show

that there is an association between whether the agreement proved

effective in addressing the concerns raised during mediation, whether

preparation effects sustainability of agreement, whether the

respondent felt heard and whether the respondent felt pressured by

the mediator to reach an agreement and the degree to which the

agreement is still in effect today.

3.3 Scope and Limitations of the Study

The statistics which form the basis of the analysis of this study were collected

from centres in Queensland; in total they represent data from a range of

1,339 parties. Data was gained consistently only from mediations that had

an outcome of an agreement, that were voluntary, where there was co-

mediation and where there had been no occurrence of domestic violence.

The major limitation to conducting the statistical research was ensuring a

high enough number of quality responses to achieve a credible statistical

study. A great deal of work was done on removing from the database those

potential respondents with insufficient personal details to approach. The

scope and quality of the data were impacted upon by, for example, the fact

that some respondents had passed away or moved house, many simply

chose not to respond, and some who did choose to respond did not provide

serious answers.

Unfortunately, some issues with the questionnaire were not evident as a

result of the pilot study which was conducted on the pool of available

mediators attached to the Wide Bay Dispute Resolutions Centre. Therefore

the data obtained and the analysis of the data was limited to some extent by

the wording of some questions. These issues are noted in the analysis and

http://en.wikipedia.org/wiki/Statistical_hypothesis_testing

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discussion of the results for individual questions on the survey in later

chapters.

Another possible limitation was the understanding of the participants

surveyed of the various questions posed. For example, there was little room

to elaborate on words like „pressured‟ and „prepared‟ in the survey, without

presenting a far more complex survey for respondents which would be far

more time-consuming and possibly discourage participation.

Conclusion

This Chapter has detailed the method and approach taken to collecting the

statistical data for this study. It has also briefly outlined the analytical

process used in relation to that data. In total 7,176 parties were approached

by mail and 1,339 usable responses were achieved. This is a response rate

of 19% which is sufficient for statistical analysis. The next Chapter presents

the results of the data collection.

- 57 -

CHAPTER 4 : SURVEY RESULTS FOR

MEDIATIONS CONDUCTED BY THE

DISPUTE RESOLUTION CENTRES OF QUEENSLAND

1999-2003

This chapter presents the results from the surveys completed by parties who

participated in voluntary co-mediations conducted by the Dispute Resolution

Centres of the Queensland Department of Justice and Attorney-General

(excluding matters that involved domestic violence) between 1999 and 2003.

The results for responses to each question are presented below for all years

and for all centres studied. The Centres included Brisbane, Wide Bay,

Rockhampton, Mackay, Townsville and Cairns. Summarising graphs and

tables are also presented. The following Chapter, Chapter 5, offers a

discussion and analysis of these results.

4.1 Results for Question 1: What was the outcome of your

mediation?

Question 1 of the survey asked respondents to identify the outcome of their

mediation; that is, whether a written, verbal or partial agreement was

achieved. The results for this question are provided below, first in relation to

each year studied and then in relation to each of the centres studied across

1999 – 2003.

4.1.1 Queensland-Wide Results for Question 1 by Year

(including Brisbane, Wide Bay, Rockhampton, Mackay,

Townsville and Cairns Dispute Resolution Centres)

1999 – What was the outcome of your mediation?

Frequency Percentage

Written Agreement 67 52.7%

Verbal Agreement 34 26.7%

Partial Agreement on some issues 26 20.6%

Total 127 100.00%

- 58 -

A total of 127 parties who attended voluntary co-mediations conducted in

1999 by the Queensland Dispute Resolution Centres responded to this

question. Of these, 67 respondents (52.7%) stated that they had achieved a

written agreement, 34 (26.7%) had achieved a verbal agreement and 26

(20.6%) achieved a partial agreement on some issues.

2000 - What was the outcome of your mediation?


Written Agreement 95 44%



Total 216 100.00%

A total of 216 parties who had attended voluntary co-mediations in the year

2000 with the Dispute Resolution Centres of Queensland responded to this

question. 95 respondents (44%) stated that they had achieved a written

agreement through mediation, 71 (32.9%) had achieved a verbal agreement,

and 50 (23.2%) had achieved a partial agreement on some issues.






Total 302 100.00%



question. 138 respondents (45.7%) stated that they had achieved a written

agreement through mediation, 102 (33.8%) had achieved a verbal

agreement, and 62 (20.5%) had achieved a partial agreement on some

issues.

- 59 -






Total 169 100.00%











Total 92 100.00%






- 60 -

These results are summarised graph below:

4.1.2 Queensland-Wide Results for Question 1 by Centre

Between 1999 - 2003

Brisbane DRC - What was the outcome of your mediation?





Total 738 100.00%

A total of 738 parties who had attended voluntary co-mediations between

1999 and 2003 with the Brisbane Dispute Resolution Centre responded to

this question. 392 respondents (53.1%) stated that they had achieved a

written agreement through mediation, 202 (27.4%) had achieved a verbal


issues.

Year-Wise Responses for Question 1

0%

10%

20%

30%

40%

50%

60%

1999 2000 2001 2002 2003

Year

Written agreement

Verbal Agreement

Partial agreement

- 61 -

Wide Bay DRC - What was the outcome of your mediation?





Total 128 100.00%


1999 and 2003 with the Wide Bay Dispute Resolution Centre responded to




issues.

Rockhampton DRC - What was the outcome of your mediation?





Total 78 100.00%


1999 and 2003 with the Rockhampton Dispute Resolution Centre responded

to this question. 36 respondents (46.2%) stated that they had achieved a



issues.

Mackay DRC - What was the outcome of your mediation?




Partial Agreement on some issues 10 17%

Total 59 100.00%


1999 and 2003 with the Mackay Dispute Resolution Centre responded to this


- 62 -


and 10 (17%) had achieved a partial agreement on some issues.

Townsville DRC - What was the outcome of your mediation?




Partial Agreement on some issues 26 20%

Total 130 100.00%


1999 and 2003 with the Townsville Dispute Resolution Centre responded to



agreement, and 26 (20%) had achieved a partial agreement on some issues.

Cairns DRC - What was the outcome of your mediation?


Written Agreement 74 49%



Total 151 100.00%


1999 and 2003 with the Cairns Dispute Resolution Centre responded to this

question. 74 respondents (49%) stated that they had achieved a written



These results are summarised in the following graph:

- 63 -

4.2 Results for Question 2: Is your agreement still in effect

today?

Question 2 of the survey asked respondents to identify whether the

agreement reached through the mediation was still in effect at the time of

responding to the survey. Respondents could choose to answer that the

agreement was still in effect, somewhat in effect, partially in effect, or not in

effect. The results for this question are provided below, first in relation to


1999 – 2003.




1999 – Is your agreement still in effect today?


Still in effect 45 34.9%

Somewhat in effect 14 10.9%

Partially in effect 8 6.2%

Centre-Wise Responses for Question 1

0%

10%

20%

30%

40%

50%

60%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

3

- 64 -

Not in effect 62 48.1%

Total 129 100.00%


1999 by the Queensland Dispute Resolution Centres responded to Question

2. Of these, 45 respondents (34.9%) stated that their agreement was still in

effect at the time of responding to the survey, 14 (10.9%) stated that the

agreement was somewhat in effect, and 8 (6.2%) stated that the agreement

remained partially in effect, and 62 (48.1%) stated that the agreement was no

longer in effect.





Partially in effect 13 6%


Total 218 100.00%





agreement was somewhat in effect, 13 (6%) respondents stated that the

agreement remained partially in effect, and 117 (53.7%) stated that the

agreement was no longer in effect.







Total 305 100.00%



- 65 -



agreement was still somewhat in effect, 19 (6.2%) respondents stated that

the agreement remained partially in effect, and 153 (50.2%) stated that the








Total 168 100.00%





agreement was somewhat in effect, 15 respondents (8.9%) stated that the





Still in effect 33 34%




Total 97 100.00%

A total of 97 parties who attended voluntary co-mediations conducted in 2003

by the Queensland Dispute Resolution Centres responded to Question 2. Of

these, 33 respondents (34%) stated that their agreement was still in effect at

the time of responding to the survey, 7 (7.2%) stated that the agreement was

somewhat in effect, 7 respondents (7.2%) stated that the agreement

- 66 -

remained partially in effect, and 50 (51.6%) stated that the agreement was no

longer in effect.

These results are summarised in the graph below:


Between 1999 - 2003

Brisbane DRC – Is your agreement still in effect today?






Total 750 100.00%

A total of 750 parties who attended a voluntary co-mediation conducted by

the Brisbane Dispute Resolution Centre between 1999 and 2003 responded

to Question 2. Of these, 296 respondents (39.5%) stated that their

agreement was still in effect at the time of responding to the survey, 69

(9.2%) stated that the agreement was somewhat in effect, 54 respondents


0%

10%

20%

30%

40%

50%

60%

1999 2000 2001 2002 2003

Year

Still in effect

Somewhat in effect

Partially in effect

Not in effect

- 67 -

(7.2%) stated that the agreement remained partially in effect, and 331

(44.1%) stated that the agreement was no longer in effect.

Wide Bay DRC – Is your agreement still in effect today?





Not in effect 72 55%

Total 131 100.00%


the Wide Bay Dispute Resolution Centre between 1999 and 2003 responded

to Question 2. Of these, 44 respondents (33.6%) stated that their agreement

was still in effect at the time of responding to the survey, 7 (5.3%) stated that

the agreement was somewhat in effect, 8 respondents (6.1%) stated that the

agreement remained partially in effect, and 72 (55%) stated that the


Rockhampton DRC – Is your agreement still in effect today?






Total 78 100.00%

A total of 78 parties who attended a voluntary co-mediation conducted by the

Rockhampton Dispute Resolution Centre between 1999 and 2003 responded

to Question 2. Of these, 29 respondents (37.2%) stated that their agreement

was still in effect at the time of responding to the survey, 4 (5.1%) stated that

the agreement was somewhat in effect, 4 respondents (5.1%) stated that the



- 68 -

Mackay DRC – Is your agreement still in effect today?






Total 62 100.00%

A total of 62 parties who attended a voluntary co-mediation conducted by the

Mackay Dispute Resolution Centre between 1999 and 2003 responded to

Question 2. Of these, 23 respondents (37.1%) stated that their agreement

was still in effect at the time of responding to the survey, 10 (16.1%) stated

that the agreement was somewhat in effect, 6 respondents (9.7%) stated that

the agreement remained partially in effect, and 23 (37.1%) stated that the


Townsville DRC – Is your agreement still in effect today?


Still in effect 33 26%




Total 127 100.00%


the Townsville Dispute Resolution Centre between 1999 and 2003

responded to Question 2. Of these, 33 respondents (26%) stated that their

agreement was still in effect at the time of responding to the survey, 16

(12.6%) stated that the agreement was somewhat in effect, 13 respondents

(10.2%) stated that the agreement remained partially in effect, and 65

(51.2%) stated that the agreement was no longer in effect.

Cairns DRC – Is your agreement still in effect today?






- 69 -

Total 149 100.00%


the Cairns Dispute Resolution Centre between 1999 and 2003 responded to

Question 2. Of these, 49 respondents (32.9%) stated that their agreement

was still in effect at the time of responding to the survey, 20 (13.4%) stated

that the agreement was somewhat in effect, 11 respondents (7.4%) stated

that the agreement remained partially in effect, and 69 (46.3%) stated that

the agreement was no longer in effect.


4.3 Results for Question 3: How prepared did you feel before

the mediation?

Question 3 of the survey asked respondents to indicate how prepared they

felt before entering the mediation. Respondents could indicate that they felt

very prepared, somewhat prepared, prepared, somewhat unprepared or

unprepared. The results for this question are provided below, first in relation

to each year studied and then in relation to each of the centres studied

across 1999 – 2003.


0%

10%

20%

30%

40%

50%

60%

Brisbane Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

3

4

- 70 -




1999 – How prepared did you feel before mediation?


Very Prepared 54 40.9%

Somewhat prepared 28 21.2%

Prepared 26 19.7%

Somewhat unprepared 15 11.4%

Unprepared 9 6.8%

Total 132 100.00%

A total of 132 parties who attended a voluntary co-mediation conducted in


3. Of these, 54 respondents (40.9%) stated that they felt very prepared, 28

respondents (21.2%) stated that they felt somewhat prepared, 26 (19.7%)

indicated that they felt prepared, 15 (11.4%) said that they felt somewhat

unprepared, and 9 (6.8%) stated that they felt unprepared for the mediation.





Prepared 48 21.2%


Unprepared 11 4.9%

Total 226 100.00%







- 71 -



Very Prepared 117 37%


Prepared 76 24.1%


Unprepared 25 7.9%

Total 316 100.00%



3. Of these, 117 respondents (37%) stated that they felt very prepared, 70






Very Prepared 71 41%


Prepared 39 22.5%


Unprepared 14 8.1%

Total 173 100.00%



3. Of these, 71 respondents (41%) stated that they felt very prepared, 37




- 72 -





Prepared 20 20.4%


Unprepared 9 9.2%

Total 98 100.00%









0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

1999 2000 2001 2002 2003

Year

Very Prepared

Somewhat prepared

Prepared

Somewhat Unprepared

Unprepared

- 73 -


Between 1999 - 2003

Brisbane DRC – How prepared did you feel before mediation?




Prepared 161 21%

Somewhat unprepared 61 8%

Unprepared 44 5.7%

Total 767 100.00%

A total of 767 parties who attended a voluntary co-mediation conducted

between 1999 and 2003 by the Brisbane Dispute Resolution Centre

responded to Question 3. Of these, 350 respondents (46.6%) stated that

they felt very prepared, 151 respondents (19.7%) stated that they felt

somewhat prepared, 161 (21%) indicated that they felt prepared, 61 (8%)

said that they felt somewhat unprepared, and 44 (5.7%) stated that they felt

unprepared for the mediation.

Wide Bay DRC – How prepared did you feel before mediation?




Prepared 34 25.4%


Unprepared 6 4.5%

Total 134 100.00%


between 1999 and 2003 by the Wide Bay Dispute Resolution Centre

responded to Question 3. Of these, 50 respondents (37.3%) stated that they

felt very prepared, 33 respondents (24.6%) stated that they felt somewhat

prepared, 34 (25.4%) indicated that they felt prepared, 11 (8.2%) said that

they felt somewhat unprepared, and 6 (4.5%) stated that they felt unprepared

for the mediation.

- 74 -

Rockhampton DRC – How prepared did you feel before mediation?



Somewhat prepared 20 25%

Prepared 18 22.5%


Unprepared 10 12.5%

Total 80 100.00%


between 1999 and 2003 by the Rockhampton Dispute Resolution Centre


felt very prepared, 20 respondents (25%) stated that they felt somewhat


they felt somewhat unprepared, and 10 (12.5%) stated that they felt


Mackay DRC – How prepared did you feel before mediation?




Prepared 10 16.1%


Unprepared 7 11.3%

Total 62 100.00%


between 1999 and 2003 by the Mackay Dispute Resolution Centre






- 75 -

Townsville DRC – How prepared did you feel before mediation?




Prepared 30 22.6%


Unprepared 10 7.5%

Total 133 100.00%


between 1999 and 2003 by the Townsville Dispute Resolution Centre






Cairns DRC – How prepared did you feel before mediation?




Prepared 39 24.7%


Unprepared 16 10.1%

Total 158 100.00%


between 1999 and 2003 by the Cairns Dispute Resolution Centre responded

to Question 3. Of these, 52 respondents (32.9%) stated that they felt very

prepared, 33 respondents (20.9%) stated that they felt somewhat prepared,

39 (24.7%) indicated that they felt prepared, 18 (11.4%) said that they felt

somewhat unprepared, and 16 (10.1%) stated that they felt unprepared for

the mediation.


- 76 -

4.4 Results for Question 4: Did the agreement prove effective

in addressing the concerns raised during mediation?

Question 4 of the survey asked respondents to state whether the agreement

reached through the mediation had addressed the concerns raised during the

mediation. Respondents could choose between stating that the agreement

was effective or that the agreement was not effective in addressing the

concerns raised during the mediation. The results for this question are

provided below, first in relation to each year studied and then in relation to

each of the centres studied across 1999 – 2003.


0%

10%

20%

30%

40%

50%

Brisbane Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

3

4

5

- 77 -



Townsville and Cairns Dispute Resolution Centre

Results)

1999 – Did the agreement prove effective in addressing the concerns raised during mediation?


No 42 32.6%

Yes 87 67.4%

Total 129 100.00%



4. Of these, 42 respondents (32.6%) stated that the agreement did not prove

effective in addressing the concerns raised during mediation, and 87

respondents (67.4%) stated that the agreement did prove effective in

addressing the concerns raised during the mediation.



No 144 64.6%

Yes 79 35.4%

Total 223 100.00%



4. Of these, 144 respondents (64.6%) stated that the agreement did not

prove effective in addressing the concerns raised during mediation, and 79



- 78 -



No 206 66.7%

Yes 103 33.3%

Total 309 100.00%









No 121 70.4%

Yes 51 29.6%

Total 172 100.00%









No 56 57.7%

Yes 41 42.3%

Total 97 100.00%



4. Of these, 56 respondents (57.7%) stated that the agreement did not prove

- 79 -

effective in addressing the concerns raised during mediation, and 41





Between 1999 - 2003

Brisbane DRC - Did the agreement prove effective in addressing the

concerns raised during mediation?


No 468 62.7%

Yes 278 37.3%

Total 746 100.00%



responded to Question 4. Of these, 468 respondents (62.7%) stated that the

agreement did not prove effective in addressing the concerns raised during

Year-Wise Response to Question 4

0%

10%

20%

30%

40%

50%

60%

70%

80%

1999 2000 2001 2002 2003

Year

No

Yes

- 80 -

mediation, and 278 respondents (37.3%) stated that the agreement did prove

effective in addressing the concerns raised during the mediation.

Wide Bay DRC - Did the agreement prove effective in addressing the



No 94 70.7%

Yes 39 29.3%

Total 133 100.00%







Rockhampton DRC - Did the agreement prove effective in addressing

the concerns raised during mediation?


No 51 67.1%

Yes 25 32.9%

Total 76 100.00%







- 81 -

Mackay DRC - Did the agreement prove effective in addressing the



No 42 66.7%

Yes 21 33.3%

Total 63 100.00%







Townsville DRC - Did the agreement prove effective in addressing the



No 81 61.5%

Yes 51 38.6%

Total 132 100.00%







Cairns DRC - Did the agreement prove effective in addressing the



No 96 61.5%

Yes 60 38.5%

Total 156 100.00%

- 82 -



to Question 4. Of these, 96 respondents (61.5%) stated that the agreement

did not prove effective in addressing the concerns raised during mediation,

and 60 respondents (38.5%) stated that the agreement did prove effective in



4.5 Results for Question 5: Did you feel heard?

Question 5 of the survey asked respondents to state whether they felt heard

in the mediation process. Respondents could choose between stating that

they did feel heard or that they did not feel heard. The results for this

question are provided below, first in relation to each year studied and then in

relation to each of the centres studied across 1999 – 2003.


0% 10% 20% 30% 40% 50% 60% 70% 80%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

- 83 -



Townsville and Cairns Dispute Resolution Centre Results)

1999 – Did you feel heard?


Yes 105 80.2%

No 26 19.9%

Total 131 100.00%



5. Of these, 105 respondents (80.2%) stated that they did feel heard in the

mediation, and 26 respondents (19.9%) stated that they did not feel heard.



Yes 181 80.8%

No 43 19.2%

Total 224 100.00%







Yes 254 80.9%

No 60 19.1%

Total 314 100.00%





- 84 -



Yes 143 83.6%

No 28 16.4%

Total 171 100.00%







Yes 76 78.4%

No 21 21.7%

Total 97 100.00%



these, 76 respondents (78.4%) stated that they did feel heard in the



- 85 -


Between 1999 - 2003

Brisbane DRC – Did you feel heard?


Yes 636 83.3%

No 128 16.8%

Total 764 100.00%

A total of 764 parties who attended voluntary co-mediations conducted by the

Brisbane Dispute Resolution Centre responded to Question 5. Of these, 636

respondents (83.3%) stated that they did feel heard in the mediation, and

128 respondents (16.8%) stated that they did not feel heard.

Wide Bay DRC – Did you feel heard?


Yes 108 80.6%

No 26 19.4%

Total 134 100.00%


0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

1999 2000 2001 2002 2003

Year

Yes

No

- 86 -


Wide Bay Dispute Resolution Centre responded to Question 5. Of these,

108 respondents (80.6%) stated that they did feel heard in the mediation,

and 26 respondents (19.4%) stated that they did not feel heard.

Rockhampton DRC – Did you feel heard?


Yes 61 77.2%

No 18 22.8%

Total 79 100.00%


Rockhampton Dispute Resolution Centre responded to Question 5. Of

these, 61 respondents (77.2%) stated that they did feel heard in the


Mackay DRC – Did you feel heard?


Yes 53 84.1%

No 10 15.9%

Total 63 100.00%


Mackay Dispute Resolution Centre responded to Question 5. Of these, 53

respondents (84.1%) stated that they did feel heard in the mediation, and 10

respondents (15.9%) stated that they did not feel heard.

Townsville DRC – Did you feel heard?


Yes 100 75.8%

No 32 24.2%

Total 132 100.00%


Townsville Dispute Resolution Centre responded to Question 5. Of these,

- 87 -

100 respondents (75.8%) stated that they did feel heard in the mediation,

and 32 respondents (24.2%) stated that they did not feel heard.

Cairns DRC – Did you feel heard?


Yes 125 82.2%

No 27 17.8%

Total 152 100.00%


Cairns Dispute Resolution Centre responded to Question 5. Of these, 125

respondents (82.2%) stated that they did feel heard in the mediation, and 27

respondents (17.8%) stated that they did not feel heard.

These results are summarised in the following

graph:


0% 10% 20% 30% 40% 50% 60% 70% 80% 90%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

- 88 -

4.6 Results for Question 6: When you compare your situation

before and after mediation, how has the mediation affected

your relationship with the other party to the dispute?

Question 6 of the survey asked respondents to state how, when they

compared their situation before and after mediation, the mediation had

affected their relationship with the other party to the dispute. Respondents

could choose between stating that the mediation had harmed the

relationship, had little effect on the relationship, had no effect on the

relationship, or had improved the relationship. The results for this question

are provided below, first in relation to each year studied and then in relation

to each of the centres studied across 1999 – 2003.




1999 – How has the mediation affected your relationship with the other party?


Mediation has harmed the relationship 10 7.7%

Mediation has had little effect on relationship 46 35.4%

Mediation has had no effect on relationship 52 40%

Mediation has improved the relationship 22 16.9%

Total 130 100.00%



6. Of these, 10 respondents (7.7%) stated that the mediation had harmed

the relationship with the other party, 46 respondents (35.4%) stated that the

mediation had little effect on the relationship, 52 (40%) stated the mediation

had no effect on the relationship, and 22 respondents (16.9%) stated that the

mediation had improved their relationship with the other party.

- 89 -

2000 – How has the mediation affected your relationship with the other

party?


Mediation has harmed the relationship 31 14%


Mediation has had no effect on relationship 81 36.7%


Total 221 100.00%



6. Of these, 31 respondents (14%) stated that the mediation had harmed the

relationship with the other party, 69 respondents (31.2%) stated that the

mediation had little effect on the relationship, 81 (36.7%) stated the

mediation had no effect on the relationship, and 40 respondents (18.1%)

stated that the mediation had improved their relationship with the other party.


party?



Mediation has had little effect on relationship 80 26%



Total 308 100.00%




the relationship with the other party, 80 respondents (26%) stated that the

mediation had little effect on the relationship, 141 (45.8%) stated the

mediation had no effect on the relationship, and 48 respondents (15.6%)

stated that the mediation had improved their relationship with the other party.

- 90 -


party?






Total 167 100.00%




the relationship with the other party, 36 respondents (21.6%) stated that the

mediation had little effect on the relationship, 79 (47.3%) stated it had no

effect on the relationship, and 29 respondents (17.4%) stated that the



party?






Total 98 100.00%



these, 9 respondents (9.2%) stated that the mediation had harmed the

relationship with the other party, 25 respondents (25.5%) stated that the

mediation had little effect on the relationship, 37 (37.8%) stated it had no

effect on the relationship, and 27 respondents (27.6%) stated that the



- 91 -


Between 1999 - 2003

Brisbane DRC – How has the mediation affected your relationship with

the other party?




Mediation has had no effect on relationship 305 40%


Total 762 100.00%

A total of 762 parties who attended voluntary co-mediations conducted



mediation had harmed the relationship with the other party, 224 respondents

(29.4%) stated that the mediation had little effect on the relationship, 305

(40%) stated it had no effect on the relationship, and 146 respondents


0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

1999 2000 2001 2002 2003

Year

Harmed

Little effect

No effect

Improved

- 92 -

(19.2%) stated that the mediation had improved their relationship with the

other party.

Wide Bay DRC – How has the mediation affected your relationship with

the other party?


Mediation has harmed the relationship 16 12%




Total 133 100.00%



responded to Question 6. Of these, 16 respondents (12%) stated that the



(42.9%) stated it had no effect on the relationship, and 23 respondents


other party.

Rockhampton DRC – How has the mediation affected your relationship

with the other party?



Mediation has had little effect on relationship 18 25%



Total 72 100.00%





(25%) stated that the mediation had little effect on the relationship, 25


- 93 -


other party.

Mackay DRC – How has the mediation affected your relationship with

the other party?






Total 62 100.00%








other party.

Townsville DRC – How has the mediation affected your relationship

with the other party?






Total 131 100.00%







- 94 -


other party.

Cairns DRC – How has the mediation affected your relationship with the

other party?






Total 152 100.00%



to Question 6. Of these, 25 respondents (16.5%) stated that the mediation

had harmed the relationship with the other party, 39 respondents (25.7%)

stated that the mediation had little effect on the relationship, 62 (40.8%)

stated it had no effect on the relationship, and 26 respondents (17.1%) stated

that the mediation had improved their relationship with the other party.



0%

10%

20%

30%

40%

50%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville Cairns

Centre

1

2

3

4

- 95 -

4.7. Results for Question 7: Did you feel pressured by the

mediator to reach an agreement?

Question 7 of the survey asked respondents to state whether they felt

pressured by the mediator to reach an agreement. Respondents could

choose between stating that they had felt pressured, or that they had not felt

pressured. The results for this question are provided below, first in relation to


1999 – 2003.




1999 – Did you feel pressured by the mediator to reach an agreement?


No 102 77.3%

Yes 30 22.7%

Total 132 100.00%



7. Of these, 102 respondents (77.3%) stated that they had not felt pressured

by the mediator to reach an agreement, and 30 respondents (22.7%) stated

that they had felt pressured by the mediator to reach an agreement.



No 175 77.8%

Yes 50 22.2%

Total 225 100.00%



- 96 -






No 253 80.8%

Yes 60 19.2%

Total 313 100.00%








No 130 76.9%

Yes 39 23.1%

Total 169 100.00%








No 82 83.7%

Yes 16 16.3%

Total 98 100.00%



- 97 -

these, 82 respondents (83.7%) stated that they had not felt pressured by the

mediator to reach an agreement, and 16 respondents (16.3%) stated that

they had felt pressured by the mediator to reach an agreement.



Between 1999 - 2003

Brisbane DRC – Did you feel pressured by the mediators to reach an

agreement?


No 619 80.7%

Yes 148 19.3%

Total 767 100.00%


between 1999 and 2003 by the Brisbane Dispute Resolution Centres


0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

1999 2000 2001 2002 2003

Year

No

Yes

- 98 -


they had not felt pressured by the mediator to reach an agreement, and 148

respondents (19.3%) stated that they had felt pressured by the mediator to

reach an agreement.

Wide Bay DRC – Did you feel pressured by the mediators to reach an

agreement?


No 107 79.9%

Yes 27 20.2%

Total 134 100.00%


between 1999 and 2003 by the Wide Bay Dispute Resolution Centres




reach an agreement.

Rockhampton DRC – Did you feel pressured by the mediators to reach

an agreement?


No 63 82.9%

Yes 13 17.1%

Total 76 100.00%


between 1999 and 2003 by the Rockhampton Dispute Resolution Centres


had not felt pressured by the mediator to reach an agreement, and 13


reach an agreement.

- 99 -

Mackay DRC – Did you feel pressured by the mediators to reach an

agreement?


No 47 74.6%

Yes 16 25.4%

Total 63 100.00%


between 1999 and 2003 by the Mackay Dispute Resolution Centres


had not felt pressured by the mediator to reach an agreement, and 16


reach an agreement.

Townsville DRC – Did you feel pressured by the mediator to reach an

agreement?


No 100 75.2%

Yes 33 24.8%

Total 133 100.00%


between 1999 and 2003 by the Townsville Dispute Resolution Centres




reach an agreement.

Cairns DRC – Did you feel pressured by the mediator to reach an

agreement?


No 121 79.1%

Yes 32 20.9%

Total 153 100.00%

- 100 -


between 1999 and 2003 by the Cairns Dispute Resolution Centres




reach an agreement.


4.8 Results for Question 8: Did the mediators offer specific

suggestions for resolution?

Question 8 of the survey asked respondents to state whether the mediators

offered specific suggestions for resolution of the dispute. Respondents could

choose between stating that the mediator had offered specific solutions for

the resolution of the dispute, or they had not. The results for this question

are provided below, first in relation to each year studied and then in relation

to each of the centres studied across 1999 – 2003.


0% 10% 20% 30% 40% 50% 60% 70% 80% 90%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

- 101 -




1999 – Did the mediators offer specific suggestions for resolution?


Yes 86 65.6%

No 46 34.9%

Total 132 100.00%



8. Of these, 86 respondents (65.6%) stated that the mediators had offered

specific suggestions for resolution of the dispute, and 46 respondents

(34.9%) stated that the mediators had not offered specific suggestions for the

resolution of the dispute.



Yes 124 56.4%

No 96 43.6%

Total 220 100.00%







- 102 -



Yes 168 54.2%

No 142 45.8%

Total 310 100.00%









Yes 95 57.6%

No 70 42.4%

Total 165 100.00%









Yes 66 68%

No 31 32%

Total 97 100.00%



these, 66 respondents (68%) stated that the mediators had offered specific

suggestions for resolution of the dispute, and 31 respondents (32%) stated

- 103 -

that the mediators had not offered specific suggestions for the resolution of

the dispute.



Between 1999 - 2003

Brisbane DRC – Did the mediators offer specific suggestions for

resolution?


Yes 436 57.3%

No 325 42.7%

Total 761 100.00%




mediators had offered specific suggestions for resolution of the dispute, and

325 respondents (42.7%) stated that the mediators had not offered specific

suggestions for the resolution of the dispute.

Year-Wise Response for Question 8

0%

10%

20%

30%

40%

50%

60%

70%

80%

1999 2000 2001 2002 2003

Year

Yes

No

- 104 -

Wide Bay DRC – Did the mediators offer specific suggestions for

resolution?


Yes 90 68.7%

No 41 31.3%

Total 131 100.00%







Rockhampton DRC – Did the mediators offer specific suggestions for

resolution?


Yes 41 55.4%

No 33 44.6%

Total 74 100.00%







Mackay DRC – Did the mediators offer specific suggestions for

resolution?


Yes 34 54.8%

No 28 45.2%

Total 62 100.00%

- 105 -







Townsville DRC – Did the mediators offer specific suggestions for

resolution?


Yes 78 59.5%

No 53 40.5%

Total 131 100.00%







Cairns DRC – Did the mediators offer specific suggestions for

resolution?


Yes 89 59.3%

No 61 40.7%

Total 150 100.00%



to Question 8. Of these, 89 respondents (59.3%) stated that the mediators

had offered specific suggestions for resolution of the dispute, and 61

respondents (40.7%) stated that the mediators had not offered specific


- 106 -


4.9 Results for Question 9: Would you reuse this service?

Question 9 of the survey asked respondents to state whether they would

reuse the service offered by the Dispute Resolution Centres. The results for

this question are provided below, first in relation to each year studied and

then in relation to each of the centres studied across 1999 – 2003.




1999 – Would you reuse this service?


Yes 89 68.5%

No 41 31.5%

Total 130 100.00%


0% 10%

20% 30%

40% 50%

60% 70%

80%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

1

2

- 107 -



9. Of these, 89 respondents (68.5%) stated that they would reuse the

service, and 41 respondents (31.5%) stated that they would not reuse the

service.



Yes 159 72%

No 62 28%

Total 221 100.00%



9. Of these, 159 respondents (72%) stated that they would reuse the

service, and 62 respondents (28%) stated that they would not reuse the

service.



Yes 225 73.1%

No 83 26.9%

Total 308 100.00%





service.



Yes 131 78.4%

No 36 21.6%

Total 167 100.00%

- 108 -





service.



Yes 70 70%

No 30 30%

Total 100 100.00%



9. Of these, 70 respondents (70%) stated that they would reuse the service,

and 30 respondents (30%) stated that they would not reuse the service.



0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

1999 2000 2001 2002 2003

Year

Yes

No

- 109 -


Between 1999 - 2003

Brisbane DRC – Would you reuse this service?


Yes 558 73.3%

No 203 26.7%

Total 761 100.00%




they would reuse the service, and 203 respondents (26.7%) stated that they

would not reuse the service.

Wide Bay DRC – Would you reuse this service?


Yes 92 70.2%

No 39 29.8%

Total 131 100.00%




would reuse the service, and 39 respondents (29.8%) stated that they would

not reuse the service.

Rockhampton DRC – Would you reuse this service?


Yes 57 75%

No 19 25%

Total 76 100.00%



responded to Question 9. Of these, 57 respondents (75%) stated that they

- 110 -

would reuse the service, and 19 respondents (25%) stated that they would


Mackay DRC – Would you reuse this service?


Yes 49 77.8%

No 14 22.2%

Total 63 100.00%






Townsville DRC – Would you reuse this service?


Yes 95 73.1%

No 35 26.9%

Total 130 100.00%






Cairns DRC – Would you reuse this service?


Yes 109 74.7%

No 37 25.3%

Total 146 100.00%



to Question 9. Of these, 109 respondents (74.7%) stated that they would

- 111 -

reuse the service, and 37 respondents (25.3%) stated that they would not

reuse the service.


4.10 Results for Question 10: Did you learn any conflict

resolution skills from the mediation process that have helped

you to communicate with others since participating?

Question 10 of the survey asked respondents to state whether they had

learned any conflict resolution skills from the mediation process that have

helped them to communicated with others since participating. The results for

this question are provided below, first in relation to each year studied and

then in relation to each of the centres studied across 1999 – 2003.

Centre-Wise Response for Question 9

0% 10% 20% 30% 40% 50% 60% 70% 80% 90%

Brisbane

Wide Bay

Rockhampton Mackay

Townsville Cairns

Centre

1

2

- 112 -




1999 – Did you learn any conflict resolution skills from the mediation

process that have helped you to communicate with others since

participating?


No 60 45.5%

Yes 72 54.5%

Total 132 100.00%



10. Of these, 60 respondents (45.5%) stated that they had not learned

conflict resolution skills from the mediation process that have helped them to

communicate with others since participating, and 72 respondents (54.5%)

stated that they had learned conflict resolution skills from the mediation

process that have helped them to communicate with others since

participating.



participating?


No 109 48.4%

Yes 116 51.6%

Total 225 100.00%






- 113 -



participating.



participating?


No 148 47.4%

Yes 164 52.6%

Total 312 100.00%








participating.



participating?


No 69 41.8%

Yes 96 58.2%

Total 165 100.00%






- 114 -


process that have helped you to communicate with others since participating.



participating?


No 45 46.9%

Yes 51 53.1%

Total 96 100.00%


by the Queensland Dispute Resolution Centres responded to Question 10.

Of these, 45 respondents (46.9%) stated that they had not learned conflict

resolution skills from the mediation process that have helped them to



process that have helped you to communicate with others since participating.



0%

10%

20%

30%

40%

50%

60%

70%

1999 2000 2001 2002 2003

Year

No

Yes

- 115 -


Between 1999 - 2003

Brisbane DRC – Did you learn any conflict resolution skills from the

mediation process that have helped you to communicate with others

since participating?


No 351 45.8%

Yes 416 54.2%

Total 767 100.00%


between 1999 and 2003 by the Brisbane Dispute Resolution Centres


they had not learned conflict resolution skills from the mediation process that

have helped them to communicate with others since participating, and 416

respondents (54.2%) stated that they had learned conflict resolution skills

from the mediation process that have helped them to communicate with

others since participating.

Wide Bay DRC – Did you learn any conflict resolution skills from the




No 66 50%

Yes 66 50%

Total 132 100.00%


between 1999 and 2003 by the Wide Bay Dispute Resolution Centres


had not learned conflict resolution skills from the mediation process that have

helped them to communicate with others since participating, and 66

respondents (50%) stated that they had learned conflict resolution skills from

- 116 -

the mediation process that have helped them to communicate with others

since participating.

Rockhampton DRC – Did you learn any conflict resolution skills from

the mediation process that have helped you to communicate with

others since participating?


No 37 48.7%

Yes 39 51.3%

Total 76 100.00%


between 1999 and 2003 by the Rockhampton Dispute Resolution Centres







Mackay DRC – Did you learn any conflict resolution skills from the




No 29 46%

Yes 34 54%

Total 63 100.00%


between 1999 and 2003 by the Mackay Dispute Resolution Centres


had not learned conflict resolution skills from the mediation process that have

helped them to communicate with others since participating, and 34

respondents (54%) stated that they had learned conflict resolution skills from

- 117 -

the mediation process that have helped them to communicate with others

since participating.

Townsville DRC – Did you learn any conflict resolution skills from the




No 61 45.9%

Yes 72 54.1%

Total 133 100.00%


between 1999 and 2003 by the Townsville Dispute Resolution Centres







Cairns DRC – Did you learn any conflict resolution skills from the




No 59 39.9%

Yes 89 60.1%

Total 148 100.00%


between 1999 and 2003 by the Cairns Dispute Resolution Centres





- 118 -




Conclusion

This Chapter has presented the results of the empirical research conducted

for this study. The results for each question have been presented in two key

formats. First, across the years of the study between 1999 and 2003; and

second, across the centre locations of the Dispute Resolution Centres of

Queensland. The next Chapter provides an analysis and discussion of these

results.


0%

10%

20%

30%

40%

50%

60%

70%

Brisbane

Wide Bay

Rockhampton

Mackay

Townsville

Cairns

Centre

Yes

No

- 119 -

Chapter 5: Analysis and Discussion of Survey

Results

This Chapter analyses and discusses the results of the empirical research

conducted for this study which were presented in Chapter 4. Each question

is analysed and discussed in turn, starting with Question 3. Questions 1 and

2 are analysed following the other questions in order to allow for a correlation

of the impact of the type of agreement reached and whether it was lasting

with the factors such as party preparedness for the process, whether the

parties concerns were addressed and they felt heard in the process, and

whether the mediators did not pressure the parties to settle.

5.1 Analysis and Discussion of Survey Results by Question

Analysis and Discussion of Question 3: How prepared did

you feel before mediation?

The literature confirmed that an important aspect of empowering parties for

party self-determination and maximising party control is party preparation for

their participation in the mediation process (Payget, 1994; Sordo, 1996;

Gilbert, 2003; Cooper and Brandon, 2008). In theory therefore successful

preparation is a critical way of working towards agreements that are

sustainable, durable and lasting. The DRCs provide preparation processes

for the parties through the intake process. These processes help the parties

to understand the mediation process, their role and responsibilities in it, and

the role and responsibilities of the mediator. They therefore increase the

capacity of the parties to engage effectively in the negotiations.

- 120 -

The responses to Question 3 across the years of the study for all DRC centres can be summarised as follows:

How

prepared? Year

1999 2000 2001 2002 2003

Very 40.91% 37.17% 37.03% 41.04% 33.67%

Somewhat 21.21% 20.80% 22.15% 21.39% 27.55%

Prepared 19.70% 21.24% 24.05% 22.54% 20.41%

Somewhat

unprepared 11.36% 15.93% 8.86% 6.94% 9.18%

Very

unprepared 6.82% 4.87% 7.91% 8.09% 9.18%

The responses to Question 3 across the centre locations of the study

for 1999-2003 can be summarised as follows:

How

prepared? Centre

Options Brisbane Wide Bay Rockhampton Mackay Townsville Cairns

Very 45.6% 37.3% 27.5% 43.6% 38.4% 32.9%

Somewhat 19.7% 24.6% 25% 25.8% 18.1% 20.9%

Prepared 21% 25.4% 22.5% 16.1% 22.6% 24.7%

Somewhat

unprepared 8% 8.2% 12.5% 3.2% 13.5% 11.4%

Very

unprepared 5.7% 4.5% 12.5% 11.3% 7.5% 10.1%

This data indicates that most respondents 80% felt prepared or better prior to

the mediation process. This would suggest that the intake officers at the

DRCs are effective in preparing parties for mediation and that most

respondents felt prepared to some degree before going into the process.

This provides a strong possibility for sustainable agreements to be reached.

However, with a not insignificant number of respondents feeling unprepared,

there are clearly some areas for improvement.

The strongest years for preparation success through the intake process are

1999 and 2002. The lowest levels of preparation success through the intake

- 121 -

process occurred in 2003. On the whole the Brisbane and Mackay Centres

appear to have the highest success levels with preparing the parties for the

process of mediation. The Rockhampton Centre across the years of the

study showed potential for improvement in relation to this factor. The Wide

Bay, Townsville and Cairns centres achieved sound levels of preparation.

These results indicate that the DRCs should consider the training and centre

operation practises for Brisbane and Mackay and consider those practises

particularly in terms of how they were implemented in 1999 and 2002 to

ascertain how to improve the practices of other centres. The practices of the

Rockhampton Centre and also of all centres in 2003 could be scrutinised to

understand better certain practices that are not so successful in preparing

the parties for the process.

Analysis and Discussion of Question 4: Did the agreement

prove effective in addressing the concerns raised during

mediation?

The literature also established that the empowering nature of mediation

supports the attainment of sustainable and lasting agreements through

identifying the parties‟ concerns and facilitating discussion of them in a

systematic way (Bush, 1989; Boulle, 2005; Fuller, 1971; Charlton &

Dewdney, 1995; Wolski, 1997). By giving the parties the opportunity to raise

their issues and concerns, the mediation environment becomes one in which

the parties are supported in exercising their autonomy and independent

choice. In this way mediation supports sustainable agreements because the

parties are assisted in the process to take control of the management of the

dispute.

- 122 -


Addressed

concerns? Year

1999 2000 2001 2002 2003

No 32.6% 64.6% 66.7% 70.4% 57.7%

Yes 67.4% 35.4% 33.3% 29.6% 42.3%



Addressed

concerns? Centre

Brisbane Wide Bay Rockhampton Mackay Townsville Cairns

No 62.73% 70.68% 67.11% 66.67% 61.36% 61.54%

Yes 37.27% 29.32% 32.89% 33.33% 38.64% 38.46%

These results are of concern in that (except for 1999) across all years and all

centres a majority of parties have indicated that the agreement did not

effectively address all the parties concerns. It would appear that there is

therefore substantial room for improvement to the practice of the DRC

mediation process to ensure that it does indeed capture all the concerns

raised during the mediation session. Areas of particular focus should be the

taking of parties statements, the setting of the agenda and the management

of the exploration and negotiation phases of the mediation process. It would

appear that the DRCs should consider developing some further training on

these aspects of the mediation model used through the centres. In addition,

further study of later years should be conducted to ensure that practice

improvements are made. As it is important that the parties concerns and

issues are effectively addressed through the process, these results indicate a

barrier or negative factor for the attainment of sustainable agreements

through DRC mediations.

Another possible analysis is that it is perhaps not a realistic nor an

achievable aim to suggest mediators can capture all of parties concerns in

- 123 -

every mediation. The parties responses could also be impacted on by the

complexity of the issues brought to mediation and the timeframe allowed to

conduct mediation - usually four hours in total. Perhaps the mediators are

not being given enough time to work through all of the issues or perhaps the

parties are expecting too much in the relatively short timeframe of four hours

average for a mediation session. The results could also relate to the sheer

number of issues on the agenda. Perhaps the parties are arriving at

mediation too late when the issues have stacked up to insurmountable

proportions? Further, the fact that a yes/no response was required on the

survey instrument might also be considered as limiting the scope for parties

to provide nuanced responses.

Certainly, mediation, as a process, is expected to address the parties‟

concerns and the mediation literature associates this factor with an increased

likelihood of achieving a lasting agreement. The results of this study indicate

however that a significant majority of respondents over the years did not feel

their concerns were addressed. Overall the DRCs need to improve the level

of client satisfaction with the mediation agreements reached by them during

the mediation process by addressing all the parties‟ concerns more

effectively. Or by offering the opportunity to remediate matters of concern

not yet addressed. This is clearly an area for improvement in training and

practice.

Analysis and Discussion of Question 5: Did you feel heard?

The mediation literature indicates that if the parties feel that they have been

heard through the process, and have had an opportunity to „have their say‟,

they are far more likely, to come “away with a greater understanding of why

they were in dispute and what they were in dispute about” (Daubney, 2008,

3-4). The parties feel heard in the process when they feel that they have

been given a voice (Kelly, 1995; Kelly & Duryee, 1992), and have been able

to tell their story (Herrnstein, 1996). When the parties feel heard they feel

that the process is individualised, attune to their personal circumstances,

equal and fair. They also feel valued and in control of their dispute. For

- 124 -

these reasons, sustainable agreements are possible through mediation if the

parties feel heard in the process.


Felt

heard? Year

1999 2000 2001 2002 2003

Yes 80.2% 80.8% 80.9% 83.6% 78.4%

No 19.9% 19.2% 19.1% 16.4% 21.7%



Felt

heard?

Centre

Options Brisbane Wide Bay Rockhampton Mackay Townsville Cairns

Yes 83.3% 80.6% 77.2% 84.1% 75.8% 82.2%

No 16.8% 19.4% 22.8% 15.9% 24.2% 17.8%

Across all years and at all centres there were a large majority of people who

attended the mediation process who felt heard during the process between

75.8% to 83.3%. This is an important result in terms of supporting the

possibility of achieving sustainable and lasting agreements. It indicates high

levels of competence in the management of the mediation process elements

that particularly support the parties feeling heard – such as party statement

taking, summarising back to the parties and facilitation of the parties‟

communications throughout the process.

Whilst the results to this question are certainly positive, it is nevertheless a

concern that a figure of nearly twenty percent of respondents, which is a

reasonably large minority, felt unheard through the process. This is a figure

which leaves room for improvement in terms of key practises such as party

statement taking, enforcement of ground rules, and management of the

parties‟ communications and power dynamics in the exploration and

- 125 -

negotiation phases.

It is interesting to note that contrast between this result and that for question

4 above. That is, whilst a majority of respondents felt heard in the mediation

process, they did not feel that their concerns were effectively addressed. For

mediation to be successful it is extremely important both parties feel that their

concerns have been properly listened to for the future of the agreement to be

supported by all parties.

Analysis and Discussion of Question 6: How has the

mediation affected your relationship with the other party?

The mediation literature indicates that another important aspect of the

mediation process that supports the possibility of achieving sustainable

agreements is the fact that the parties can come to understand each other‟s

perspective, and the process can have a positive impact on their relationship

(Boulle, 2005; Fuller, 1971; Elix, 2003). In was noted in the literature review

in Chapter 2 that this is of particular importance if the parties have an on-

going relationship, for example, in families, neighbourhoods and workplaces;

or if the parties are in a situation where their relationship will be “enhanced

by new and shared perceptions and understandings about one another”

(Boulle, 2005, 73).

Whilst the goal of having a positive impact on the parties‟ relationship is not

shared by all mediators or all models of mediation, it is nevertheless a goal of

the practise of mediation through the DRCs of Queensland. The DRCs see a

large number of neighbourhood, family, and workplace disputes. It is

therefore an important indicative factor in the attainment of sustainable and

lasting agreements through the DRC model of mediation.

- 126 -


Affect on

relationship Year

1999 2000 2001 2002 2003

Harmed 7.69% 14.03% 12.66% 13.77% 9.18%

Little 35.38% 31.22% 25.97% 21.56% 25.51%

No Effect 40.00% 36.65% 45.78% 47.31% 37.76%

Improved 16.92% 18.10% 15.58% 17.37% 27.55%



Affect on

relationship Centre


Harmed 11.4% 12% 8.3% 16% 12.2% 16.5%

Little 29.4% 27.8% 25% 25.8% 24.4% 25.7%

No Effect 40% 42.9% 34.7% 42% 43.5% 40.8%

Improved 19.2% 17.3% 31.9% 16.1% 19.9% 17.1%

On the basis of the literature, it would be hoped and expected that the results

to this question would have indicated that the mediation process consistently

improved the parties‟ relationship and that it did no harm to the parties

relationship. This would have supported then a positive inference of

achieving sustainable agreements through the DRC mediation process.

However, across all years and centres the responses indicated that the

process harmed the relationship for between 8 and 16 per cent of the parties

surveyed. This is a significant and worrying result as the intent of mediators

is to do no harm. It is cause for reflection on how the DRCs manage the

parties‟ communications in the process and how the mediators model

effective communication and collaborative problem solving throughout the

process.

The results do indicate that the significant majority of participants

- 127 -

experienced little or no effect on their relationship. This too is a disappointing

result. However, it may indicate that these parties in fact had no ongoing

relationship and therefore experienced no impact on their relationship in an

ongoing way.

The results for improving the parties relationship fell between 15% and 31%.

This is a significant range of responses. Rockhampton achieved the highest

result across the centres for a positive impact on the parties‟ relationship,

and 2003 achieved the highest result across the years. It is possible that the

practises and detail of the processes used by the mediators at Rockhampton

could be considered more deeply to positively inform the practice of other

centres.

Analysis and Discussion of Question 7: Did you feel

pressured by the mediator to reach an agreement?

The theory behind the facilitative model of mediation is that the mediator

supports the parties in reaching in their own agreement and the parties are

free from any pressure to settle which might mean that they agree to

something that is not in their interests or is not sustainable over time (Wade,

1998; Davenport, 1997). However, the literature also indicates that

mediators often do in fact influence the outcome of disputes by exerting

pressure to settle (Dyck, 2000; Wolski, 1997; McEwen & Milburn, 1993;

Kressel and Pruitt, 1985; Honeyman, 1985; Fisher, 2000).


Mediator

pressure to

reach

agreement?

Year

1999 2000 2001 2002 2003

No 77.3% 77.8% 80.8% 76.9% 83.7%

Yes 22.7% 22.2% 19.2% 23.1% 16.3%

- 128 -



Mediator

pressure to

reach

agreement?

Centre


No 80.70% 79.85% 82.89% 74.60% 75.19% 79.08%

Yes 19.30% 20.15% 17.11% 25.40% 24.81% 20.92%

There were clearly a significant proportion of respondents who attended the

mediation process who did not feel pressured to reach an agreement. This is

an important result as an absence of mediator pressure to settle is indicated

as a positive contributor to the achievement of sustainable and lasting

agreements.

However, there is clearly also room for improvement to minimise the

pressure to settle felt by between 17 and 25 per cent of respondents. This

could be achieved by ongoing skills training for mediators in relation to ideal

outcomes for parties attending mediation such as being heard, in control and

empowered by the process. Improvements could also be achieved by

ongoing professional development training around reflective practice for

mediators and the pursuit of high levels of artistry in practice. Greater

awareness of mediators is critical as to the fact that in some instances their

practices are being experienced by the parties as pressure to settle. As this

issue is a very important one, it warrants some brief further consideration.

It is possible that in the circumstances where the parties have experienced

some pressure to settle that the mediators have felt a commitment to

settlement arising as a mediator‟s self-imposed personal goal, or arising from

centre expectations about evidencing the success of the process (Wolski,

2001, 252). Gibson et al refer to this approach as a form of “agreement-is-

good” bias (Gibson, 1996, 76). It can cause mediators to pursue and support

certain outcomes over others. For example, Honeyman claims that a

commitment to settlement will often result in mediators‟ seeking to identify

- 129 -

“the first mutually agreeable settlement package” rather than “the best

agreement” (1985, 147). This approach to reaching settlement may be

influenced by many factors, including “time pressures, the press of other

work, the need to show progress to the mediator‟s appointing agency or

peers, and many other reasons” (Honeyman, 1985, 147). A mediator‟s push

for settlement may also be influenced by their own personal values, in that

they can sometimes achieve a quicker settlement by “encouraging outcomes

consistent with their own ideas and interests” (Wolski, 2001, 90). Wolski also

identifies that some mediators may have a specific and personal interest of

maintaining their own reputation for success which may push them towards

pressuring parties into settlement (2001, 250).

Marshall (2008) has shown in her recent doctoral work that managing the

tension between supporting the parties in achieving an outcome and

abstaining from any form of pressure to settle is a high stressor for mediation

practitioners. These results therefore indicate that whilst the mediators with

the DRCs are generally managing this issue well, it is important that further

training and improvements are made to practice so that the parties to

mediation do not feel pressured to settle. This will promote the achievement

of greater numbers of sustainable mediated outcomes.

Question 8 Analysis: Did the mediators offer specific

suggestions for resolution?

The theory behind the facilitative model of mediation asserts that it is

important that the parties themselves generate the options for resolving their

dispute (Boulle, 2005). This ensures that the agreement is one that

addresses their particular needs and circumstances in a way that they will be

able to live with. Party empowerment and the attainment of sustainable

agreements are therefore supported through the mediation process by the

parties themselves generating the options for resolution and deciding among

them. Consequently, the literature confirms that mediator suggestions for

resolution hamper the achievement of party empowerment and compromise

the achievement of sustainable outcomes.

- 130 -


Mediator

offered

solutions? Year

1999 2000 2001 2002 2003

Yes 65.2% 56.4% 54.2% 57.6% 68%

No 34.9% 43.6% 45.8% 42.4% 32%



Suggestions

offered? Centre


Yes 57.3% 68.7% 55.4% 54.8% 59.5% 59.3%

No 42.7% 31.3% 44.6% 45.2% 40.5% 40.7%

These responses clearly show a significant number of respondents who

attended the mediation process were given specific suggestions by their

mediators. Consistently over 50% of respondents have indicated the

mediator offered solutions to their concerns. Unless parties are free to find

their own solutions to the difficulties presented, there is a less likelihood of a

sustainable positive outcome for the final agreement reached.

The Wide Bay DRC was the centre at which the highest percentage of

respondents indicated that suggestions for resolution had been offered by

the mediators. The Rockhampton DRC was the centre at which the lowest

percentage of respondents indicated this. However, even at the

Rockhampton DRC a high percentage of 55.4% of respondents reported that

the mediators had made suggestions for resolution.

These results are not in keeping with the philosophy of empowering parties

to generate their own solutions to their conflict. The result raises a training

and competency need that the DRCs should aim to address. This result is

concerning because the offering of suggestions for resolution can hamper

the parties‟ ownership of the agreement and compliance with it. Therefore

- 131 -

the result suggests that some practice in the DRCs over the years studied

can be said to impede the attainment of sustainable agreements.

Analysis and Discussion of Question 9: Would you reuse this service?


Reuse

the

service? Year

Options 1999 2000 2001 2002 2003

Yes 68.5% 72% 73% 78.4% 70%

No 31.5% 28% 27% 21.6% 30%



Reuse

the

service?

Centre


Yes 73.3% 70.2% 75% 77.8% 73.1% 74.7%

No 26.7% 29.8% 25% 22.2% 26.9% 25.3%

The data clearly shows that more than two thirds of respondents would reuse

the mediation service offered by the DRCs of Queensland. This is a very

positive result and affirms the good practice of the DRCs.

Nevertheless, one-third of respondents indicated that they would not reuse

the service. Further analysis of this result would provide constructive

feedback to the DRCs. It is possible that respondents may not want to re-use

the DRC service but might consider accessing mediation through a different

service provider. The results might also indicate that the parties felt that

what they had learnt through the mediation process provided them with

sufficient confidence to enable them to resolve their own conflicts as they

arise in the future.

- 132 -

Importantly, many respondents had sufficient trust in the process to be

prepared to try mediation again if the need arose.

Analysis and Discussion of Question 10: Did you learn any conflict resolution skills from the mediation process that have helped you to communicate with others since participating?

The literature indicates that a further element of the theory of facilitative

mediation is that, although the process is predominantly focussed on

problem solving, it also has the potential to transform the parties by providing

them with conflict resolution skills. These skills can support the sustainability

of mediated agreements by ensuring that the parties are equipped with ways

to communicate effectively about issues in dispute that arise post-mediation

(Bush and Folger, 1994; Boulle, 2005; Dewdney, 2001).


Learned

conflict

resolution

skills?

Year

1999 2000 2001 2002 2003

No 45.5% 48.4% 47.4% 41.8% 46.9%

Yes 54.5% 51.6% 52.6% 58.2% 53.1%



Learned

conflict

resolution

skills?

Centre


No 45.8% 50% 48.7% 46% 45.9% 39.9%

Yes 54.2% 50% 51.3% 54% 54.1% 60.1%

In accordance with the literature on the transformative and therapeutic

- 133 -

benefits of mediation it would be the hope of DRC mediators that all parties

would learn at least some conflict resolution skills that would assist them with

negotiating and resolving issues outside the mediation room.

The results are relatively evenly divided across years and centres between

those parties who felt that the process had equipped them with skills that

would assist them with communicating with others and those who did not feel

that they had learned such skills through the process. It is a positive result

that over half of all participants, although going through a certain amount of

psychological distress by attending mediation to resolve a dispute, were still

able to acknowledge that after the process they were better able to

communicate with others within their community. The educative effects of

the DRCs‟ co-mediation model have therefore worked well for many

participants.

Nevertheless, almost 50% of respondents also felt they had not developed

any new skills through the process of mediation that would assist them with

future communications. It is a possible explanation of this result that the

parties were simply unable to recognize the skills they had learned. If the

parties were objectively assessed in terms of their communication and

negotiation skills after their experience of mediation, it may be that they

would be seen to have actually acquired some of these skills.

Analysis and Discussion of Question 1: What was the

outcome of the mediation?


Outcome

of

mediation? Year

1999 2000 2001 2002 2003

Written

agreement 52.66% 43.98% 45.70% 53.85% 53.26%

Verbal 26.72% 32.87% 33.77% 28.40% 35.87%

- 134 -

agreement

Partial

agreement 20.62% 23.15% 20.53% 17.75% 10.87%

The responses to Question 1 across the centre locations of the study for 1999-2003 can be summarised as follows:

Outcome

of

mediation?

Centre


Written

agreement 53.1% 52.3% 46.2% 55.9% 45.4% 49%

Verbal

agreement 27.4% 31.3% 39.7% 27.1% 34.6% 31.8%

Partial

agreement 19.5% 16.4% 14.1% 17% 20% 19.2%

Overall for all centres and across all years the majority of agreements

reached were written agreements. This is a factor that the literature indicates

supports the reaching of sustainable agreements. Verbal agreements were

the next most strongly achieved category of agreement. And partial

agreements were the least frequent form of agreement reached.

Most people participate in mediation in the hope that they are able to reach

an agreement. The results for this question therefore indicate a strong

possibility of success with attaining sustainable agreements through

mediation. More importantly is the correlation of results for written

agreements with other factors tested relating to the sustainability of

agreements.

A key indicator that impacts on the effectiveness or success of mediated

outcomes over time is what type of agreement was reached. Most effective

were agreements - written, verbal or partial – where all concerns were

addressed, all parties felt heard and where there was the presence of the

educative effect or transformation of skills from the cooperative behaviours

exhibited by the mediators. Effectiveness could then be measured as

- 135 -

decreased levels of conflict or improved relationships since mediation

occurred.

Another conclusion is that written agreements/settlement of all the issues is

more sustainable than verbal or partial agreements. The durability of the

agreement is whether the parties abide by the terms of the agreement over

time. So another key indicator of sustainability of Mediation seemed to be

the accountability provided by a written agreement that met the satisfaction

of all parties. One assumes that such an agreement is also a reference

document of what was agreed.

Using a Chi-Squared test (Χ) = 182.032, df = 3, P < 0.001, results showed

that there is an association between whether the agreement proved effective

in addressing the concerns raised during mediation and the degree to which

the agreement is still in effect today. Those who felt that the agreement

proved effective in addressing the concerns raised during Mediation were

associated with a greater proportion of agreements still being in effect today.

Analysis and Discussion of Question 2: Is your agreement still in effect today? As Sourdin states "the extent to which an agreement will be 'durable' will

depend on a range of factors. Many mediators consider that effective 'reality

testing' in the final stages of facilitative ADR processes assists in ensuring

that the agreement reached is reasonable and will be complied with. Reality

testing involves the ADR practitioner asking questions about various

scenarios, to ensure that there is a reasonable possibility that compliance

with the agreement will result" (2005, 164).


Agreement

still in

effect?

Year

1999 2000 2001 2002 2003

Still 34.88% 31.65% 33.77% 32.74% 34.02%

- 136 -

Somewhat 10.85% 8.72% 9.84% 14.88% 7.22%

Partial 6.20% 5.96% 6.23% 8.93% 7.22%

Not 48.06% 53.67% 50.16% 43.45% 51.55%



Agreement

still in

effect?

Centre


Still 39.47% 33.59% 37.18% 37.10% 25.98% 32.89%

Somewhat 9.20% 5.34% 5.13% 16.13% 12.60% 13.42%

Partial 7.20% 6.11% 5.13% 9.68% 10.24% 7.38%

Not 44.13% 54.96% 52.56% 37.10% 51.18% 46.31%

Overall the majority of clients reported that their agreement reached through

the mediation process is still in effect, somewhat in effect or partially in effect,

some five years or so later. However, the number of clients reporting that the

agreement was no longer in effect is also high.

It appears that a survey design flaw is evident in these results which was

unfortunately not identified as part of the pilot process. This flaw relates to

the use of the words “not in effect” which could have meant that the dispute

was finalised and therefore the agreement was no longer in effect. Such

would have been the case, for example, where one party made restitution or

payment and then the matter was finalised. Alternatively it could signify that

the agreement itself did not stand the test of time. Therefore there is some

uncertainty about an accurate analysis of the data from this question.

Investigating the durability of outcomes of mediation must also take account

of the fact that many outcomes break down due to no fault of the parties. In

some cases it is impossible to fulfil the obligations of an agreement. For

example, if a neighbour has left the area, a work colleague has since left the

company or a spouse has died or moved interstate or overseas etc.

- 137 -

An analysis was nevertheless conducted as to the correlation of this result

with other indicators of the sustainability of agreements. First, whether the

preparedness of each party to participate in the process of mediation impacts

on sustainability. Using Kendall‟s test this shows that there is a statistically

significant association between how much respondents felt prepared before

the mediation and whether the agreement is still in effect today. That is, the

more prepared the respondent felt before the mediation the more likely the

agreement was sustained and therefore is still in effect today.

Another test, the chi-square test for independence of attributes, was used to

check the relationship between whether preparation effects whether the

agreement is still in effect. The Chi-Squared test also showed that there is a

statistically significant association between the degree of preparedness and

whether the agreement is still in effect.

It would appear that there is positive relationship between “agreement still in

effect” and “very prepared before the mediation.” It is interesting to note that

there is also a positive relationship between “agreement not in effect” and

“very prepared before the mediation.” What this possibly means is that those

who were very prepared before the mediation were either associated with the

agreement still being in effect, or potentially (if the result of the „no longer in

effect‟ responses are taken as possibly indicating that the dispute was

resolved) then of having resolved the conflict fully.

Another of the key indicators, whether the parties felt heard, was also

analysed as having a bearing on the sustainability of mediation agreement

outcomes. Using the Chi-Squared test it was shown that there is an

association between whether the respondent felt heard in the mediation and

the degree to which the agreement is still in effect today. Those who felt they

were heard during the Mediation were associated with a greater proportion of

agreements still being in effect today.

Again using Chi-Squared an association was also shown between whether

the respondent felt pressured by the mediator during the mediation to reach

- 138 -

an agreement and the degree to which that agreement is still in effect today.

Those who felt they were not pressured during the mediation were

associated with a greater proportion of agreements still being in effect today.

It should be noted that it would appear that relatively few people felt

pressured during the Mediation process across the state and across the

years.

Finally, whether the parties gained effective communication and conflict

resolution skills that they could utilise at a later date and what this meant for

the sustainability of agreements was analysed. Year after year across the

centres, it is clearly evident that the majority of respondents said they learnt

how to communicate better after going through the mediation process.

These results are expressed further in the following section.

5. 2 Summary of Analysis by Statistical Correlation

In an attempt to evaluate the sustainability of outcomes reached through

mediations, statistical analysis was used to investigate correlations. The

statistical methodologies used include Kruskal-Wallis, Mann-Whitney U,

Kendall‟s, and the chi-square test. One of the aspects reviewed was with

respect to agreement type.

The graphs shown indicate a pictorial insight into and an understanding of

the results obtained. The graph below and the statistical testing applied to

agreement type of effectiveness indicate a significant difference to the effect

of the length of agreement when the agreement is written down.

Is the outcome type of mediation associated with whether the agreement is

still in effect.

- 139 -

Agreement Type Effectiveness

0

50

100

150

200

250

300

350

Written Verbal Partial

Agreement Type

Fre

qu

ency

of

Res

po

nse

s

Still in Effect Somewhat in Effect Partially in Effect Not in Effect

Kruskal-Wallis H(2) = 76.095, P < 0.001. This test indicates that the type of

agreement reached influences whether the agreement is still in effect today.

This can also be followed up with Mann-Whitney tests to identify where the

differences are.

Written vs. Verbal

Mann-Whitney U = 110642.500, -2.732, P = 0.006. This indicates that there

is a significant difference in the degree to which the agreement is in effect

between those individuals that had a written agreement vs. verbal

agreement.

Written vs. Partial

Mann-Whitney U = 50278.500, -8.604, P < 0.001. This indicates that there is

a significant difference in the degree to which the agreement is in effect

between those individuals that had a written agreement vs. partial

- 140 -

agreement.

Verbal vs. Partial

Mann-Whitney U = 32358.000, -6.238, P < 0.001. This indicates that there is

a significant difference in the degree to which the agreement is in effect

between those individuals that had a verbal agreement vs. partial agreement.

Further statistical analysis on preparation affecting whether the agreement is

still in effect can be seen in the following information.

Kendall‟s τ = 0.110, P = 0.000. This shows that there is a statistically

significant association between how respondents felt prepared before the

Mediation and whether the agreement is still in effect today. That is, the

more prepared the respondent felt before the Mediation the more likely the

agreement is still in effect.

A chi-square test for independence of attributes was also used to check the

relationship between whether preparation effects whether the agreement is

still in effect. Chi-Squared (Χ) = 116.061, df = 12, P < 0.001. This shows

that there is a statistically significant association between the degree of

preparedness and whether the agreement is still in effect.

Level of Preparedness

Total

Very Prepared

Somewhat Prepared Prepared

Somewhat Unprepared

Very Unprepared

Agreement Still in effect

247 90 89 27 21 474

Somewhat in effect

22 55 35 6 8 126

Partially in effect

23 18 38 12 5 96

Not in effect

244 109 117 73 54 597

Total 536 272 279 118 88 1293

- 141 -

Level of Preparedness and Agreement Type

From the above table it would appear that there is positive relationship

between “agreement still in effect” and “very prepared before the mediation.”

It is interesting to note that there is also a positive relationship between

“agreement not in effect” and “very prepared before the Mediation.”

A further area tested was whether the concerns of the parties being

addressed effectively in the mediation was associated with the agreement

still being in effect. This was found to be the case.

Addressing Concerns and Sustainability

0

50

100

150

200

250

300

350

400

450

No Yes

Opinion

Fre

qu

ency

of

Res

po

nse


Chi-Squared (Χ) = 182.032, df = 3, P < 0.001. The above graph shows that

there is an association between whether the agreement proved effective in

addressing the concerns raised during mediation and the degree to which the

agreement is still in effect today. As can be seen from the above figure,

those who felt that the agreement proved effective in addressing the

- 142 -

concerns raised during mediation were associated with a far greater

proportion of agreements still being in effect today.

This analysis also considered the question of whether the parties feeling

heard is associated with whether the agreement is in effect. This too was

found to be the case.

Feeling Heard and Sustainability

0

50

100

150

200

250

300

350

400

450

500

Yes No

Opinion

Fre

qu

ency

of

Res

po

nse

s


Chi-Squared (Χ) = 52.914, df = 3, P < 0.001. The above graph shows that

there is an association between whether the respondent felt heard in the

mediation and the degree to which the agreement is still in effect. As can be

seen from the above figure, those who felt they were heard during the

Mediation were associated with a greater proportion of agreements still being

in effect today.

The final statistical indication used in this evaluation concerned whether a

participant feeling pressured to reach an agreement was associated with

whether the agreement was still in effect.

- 143 -

Feeling Pressured and Sustainability

0

50

100

150

200

250

300

350

400

450

500

No Yes

Opinion

Fre

qu

ency

of

Res

po

nse

s


Chi-Squared (Χ) = 15.407, df = 3, P = 0.001. The graph shows that there is

an association between whether the respondent felt pressured by the

mediator to reach an agreement and the degree to which the agreement is

still in effect. As can be seen from the above figure, those who felt they were

not pressured during the mediation were associated with a greater proportion

of agreements still being in effect. It should be noted that of the parties

surveyed it would appear that relatively few people felt pressured.

Conclusion

This Chapter has analysed the empirical research of the study and found that

the factors identified in the literature is theoretically impacting on the

sustainability of agreements – that is, the preparation of the parties,

addressing the parties concerns through the process, ensuring the parties

feel heard, ensuring that the parties are not pressured into agreement and

are able to generate their own solutions for agreement – are all important in

- 144 -

achieving sustainable agreements. Therefore the theory of the literature

concerning the durability of agreements achieved through facilitative

mediation has been supported by this study. The final conclusions of the

study and ideas for further research are presented in the Conclusion which

follows.

- 145 -

CHAPTER 6 – CONCLUSION

Since the introduction of the Dispute Resolution Centres Act, 1990 (Qld), the

Alternative Dispute Resolution Branch of the Queensland Department of

Justice and Attorney General has offered mediation services. These

services have assisted parties to resolve a high number of a range of family,

neighbourhood, workplace and community disputes.

The facilitative model of mediation used by the DRCs has a range of

elements and stages that fit well with the literature on approaches to

mediation that support the reaching of sustainable agreements. The

mediators who practise with the DRCs are all trained in this model and in its

philosophy to conflict and dispute resolution.

The process prepares parties through a thorough intake process, it aims to

address all the parties‟ concerns and to ensure that both parties feel heard, it

is grounded in the philosophy that mediators should not pressure the parties

to settle or offer solutions for resolution, and it aims to provide the parties

with some new communication and negotiation skills that will assist them with

effective approaches to conflict and disputes outside the mediation room.

An analysis of the literature confirmed the relative paucity of empirical data

about the sustainability of mediated agreements. This gap in information

about mediated agreements was of interest and concern to the author in

relation to mediations conducted by the Queensland DRCs – particularly at

the time this research was initially conceived and designed. There had not

been a long-term study of the durability of dispute outcomes mediated

through the Queensland DRCs prior to this study. The longest period of

assessment of mediated outcomes was 6 months after the mediation session

had taken place.

This study therefore assessed whether the mediation practice of the DRCs of

Queensland – particularly in terms of the timeframe of 1999 to 2003 - can be

- 146 -

said to satisfy the components of facilitative mediation theory that support the

attainment of sustainable agreements.

The survey developed to assess these factors was sent to 7,176 parties to

the mediation process in the areas of Brisbane, Wide Bay, Rockhampton,

Townsville, Cairns and Mackay. 3676 surveys were sent to Brisbane parties,

444 to Wide Bay parties, 599 to Mackay parties, 646 to Rockhampton

parties, 965 to Townsville parties and 846 to Cairns parties. Of the 7,176

surveys sent out, 1389 were returned. Of these responses, 1339 were

completed sufficiently to be usable in this study; 50 responses were unable

to be included due to being incomplete. This response represented an overall

response rate to the survey across combined centres of 19%.

The response rate achieved provided a good basis from which to evaluate

the sustainability of agreement outcomes reached through mediations

conducted by the Dispute Resolution Branch of Queensland over the five

year period. The data collected and the statistical analysis have led to a

number of general conclusions and observations.

From the data gathered it is possible to conclude that agreement outcomes

reached through mediations conducted by the Department of Justice and

Attorney General, Dispute Resolution Centres from 1998 to 2003 are

sustainable, providing a long term benefit to parties, communities and society

in general. This means that agreements are being reached that are not just

agreement for agreements sake, but are agreements that the parties can live

with over time. This conclusion has been made from the statistical results

from the questionnaires and responses provided by the participants in the

study.

The study results indicate that:

the effectiveness of the outcome type of mediation is correlated to

whether the verbal or written agreement is still in effect;

there is a positive relationship between “agreement still in effect” and

being “very prepared before the mediation”;

- 147 -

those who felt that the mediated agreement proved effective in

addressing their concerns raised during mediation were associated with a

greater proportion of agreements still being in effect;

those who felt they were heard during the mediation were associated with

a greater proportion of sustainable agreements;

those who felt they were not pressured during the mediation were

associated with a greater proportion of agreements still being in effect.

The study also found that:

the intake preparation process was considered to be effective by the

majority of parties;

many parties did not feel that their issues and concerns were fully

addressed by the process perhaps more time is needed;

most participants in the DRC mediation process felt heard through the

process;

however many parties felt pressured to settle;

interestingly many parties reported that their mediators made suggestions

for resolution of the dispute;

many parties would re-use the DRC service;

approximately 50% of parties reported that they had learned conflict

resolution skills that would be relevant for the future.

These results indicate that across the range of factors that contribute to the

sustainability of mediated agreements, the DRCs satisfy some well and

others not so well, therefore there is room for improvement. The most

satisfying results for the DRCs relate to the preparation process intake, the

fact that parties did feel heard in the process, and the fact that most parties

would re-use the service. Important issues that need to be addressed in the

future through training and ongoing professional development for DRC

mediators include strategies for improving the number of parties who feel that

their issues and concerns have been addressed, as well as strategies for

improving the number of parties who are prepared to acknowledge that they

have learned some conflict resolution skills through their participation in the

process. It is also important for training and professional development to

- 148 -

work to reduce the incidence of mediators pressuring the parties to settle or

offering solutions for resolution.

The findings from this study are significant because they can assist with

informing mediation practitioners, intake officers and the management of the

Dispute Resolution Centres of Queensland with ways to positively improve

practice to achieve an efficient and effective mediation service by higher

numbers of sustainable agreements in the future. The data from this study

can therefore be used to better inform intake officers, mediators and the DRC

management in the following ways. These recommendations arise directly

from the study and relate also to the author‟s own practical experience as a

mediation practitioner:

1. Mediators need to be acclaimed and supported for doing important

work and for creating the possibility for dispute resolution through

the DRCs to be effective over time.

2. Improvements are evident and need to be made on an individual,

centre, and branch level.

3. The 12 step approach to mediation used by the DRCs should

continue to be used, and mediators should be encouraged to

regularly revisit the theory and literature that supports these 12

steps.

4. Due to the long term effectiveness of written agreements as

evidenced by this study, mediators should be encouraged to offer

a written agreement as the preferred option of mediation outcome

type.

5. Mediators should be encouraged to regularly revisit agenda setting

skills and to practise them regularly. During mediations, mediators

should ensure that they consistently use the agenda to keep

discussions focussed and to address all the issues and concerns

raised by the parties in a step by step process.

6. Intake officers should be encouraged and supported in

understanding the importance of their role, and its significance to

the long term success of agreements reached through DRC

mediation.

- 149 -

7. Mediators should receive regular refresher training in the

importance of critical communication skills - particularly the micro

skills of effective listening, paraphrasing, transitions and roundups

so as to allow the parties to feel heard.

8. Mediators should be supported in going into a mediation not

looking for an agreement but to encourage parties to communicate

and thus feel heard. Training should be provided on strategies for

avoiding putting pressure on the parties to settle and on ways to

support the parties in generating their own solutions for resolution.

9. Mediators should be supported in understanding that modelling

cooperative behaviours during the process of mediation can have

beneficial educative effects for the parties which can enhance the

communication skills of the parties concerned in future disputes.

10. Current funding should be expanded to provide a quality service to

the community at large, to establish means for improvement and

training and to provide opportunities to enhance the professional

practice of DRC mediators.

11. Mediators should be provided with training in related areas such as

self awareness, emotional intelligence, empowerment, and

neutrality as well as other training that is important to the effective

practice of the process.

12. DRC mediators and intake officers should be provided with regular

access to professional supervision state-wide.

13. Team meetings should be incorporated as a regular aspect of DRC

practice. These meeting should occur not only to disseminate data

and information but to ensure that mediators and intake officers

are kept up to date with the latest research and developments, as

well as offering a relaxed opportunity for mediators to discuss

challenging cases and to debrief.

14. Mediators must ensure that they are able to model a high standard

of cooperative behaviours during the process so the parties take

home more than just a written agreement as an outcome from

mediation. Mediators should aim to ensure that the parties also

take home new skills to be able to communicate more effectively in

- 150 -

the future and to have the ability and skills to be able to resolve

their own disputes when they arise without the assistance of a

mediator in the future.

15. Further follow-up studies should be conducted on how to most

usefully prepare parties for mediation.

16. Further research should be conducted on how the attainment of

sustainable agreements can be supported through mediation.

It can be concluded from this study that, overall, the practice of mediation at

the DRCs works well to achieve sustainable agreements because of the 12

step process. The study also shows that a truly effective and sustainable

mediated outcome is a written agreement that is reached after the parties

have gone through a thorough intake process before mediation and are

prepared correctly and are empowered; when the mediators make sure they

capture all of the parties concerns in the agenda setting stage, and that they

use micro skills to ensure parties always feel heard; and when the mediators

concerned make sure they do not apply pressure to reach an agreement,

remembering that the parties should be in control of the process and in

control of generating their own agreements for resolution. Agreements

reached through DRC mediation are a by-product of the 12 step process if it

is followed correctly. These agreements are ones that the parties own and

can live with. The outcomes of mediation are a measurable change in the

parties and their conflict which is attributable to the intervention of the

mediation process.

Mediation as a process is constantly evolving as mediators hone their

professional craft through professional evaluation and reflection, and as

researchers bridge the gap between theory and practice. Mediation is

becoming more and more popular with the passage of time and as positive

results emerge, it is likely that this growth will continue and that an expansion

of funding for this important area will be justified in order to keep up with

demand for quality mediation service provision. Evaluation of information is

required to enhance the efficiency, sustainability and effectiveness of

mediation.

- 151 -

A suggestion for further study relates to the fact that this research topic and

data could be expanded beyond the Dispute Resolution Centres and the

Department of Justice and Attorney General of Queensland and be beneficial

nationally and internationally. This study surveyed a large enough group with

a statistically significant response rate. Although the outcomes were

enlightening, many questions remain unanswered in the area of provision

and evaluation of services in the dispute resolution industry, For example

there is a need to identify adequate ways of defining mediated outcomes and

to identify more effectively which parties are suitable for mediation. This

indicates the need for further study that could benefit the dispute resolution

industry and the parties who participate in mediation and achieve mediated

outcomes to their disputes.

Future research could also be useful comparing randomly selected matters

that are either sent to civil court or mediation, thus comparing adjudication

with mediation and then the sustainability of the outcomes from both of these

processes. Research is also needed to indicate the best strategies to

maximise the best interests of the community in terms of achieving access to

affordable mediation services. Quality and effectiveness should be the key

focus of future research into information collection, service provision,

workforce development and community education for parties affected by

conflict.

Mediators use a strength based approach during the mediation process

focussing on the strengths of the relationship between the parties. In their

training mediations rely on evidence based practise brought about by access

to up to date relevant research.

The government also has a role to support research to assist service

providers to improve their support to parties in conflict by developing

information and models to provide culturally appropriate services and

information regarding dispute resolution, conflict and mediation.

- 152 -

This thesis has shown that mediation is worthwhile and necessary with long

term positive outcomes. As previously mentioned, the heart of mediation for

most mediation practitioners, is clear: sustainable agreements from DRC

mediations create more cooperative and harmonious communities, societies

and nations. Mediation can also satisfy the intent to free up the court

systems with matters that can be agreed upon and settled outside of the

court room arena. To enhance the efficacy and efficiency of the services of

mediation to the community, the government and other funding bodies can

request and fund service providers to ensure process and outcome

evaluations of mediation services are developed.

The predominate factors that have been identified in this thesis that relate to

long term positive effects concern the parties‟ ownership of the issues,

feeling heard and being aware of what is going to transpire throughout the

mediation process. The most positive aspect that has been indicated

through this research is that mediators lead by example by providing the

parties with appropriate and effective conflict resolution skills that can be

used and reused.

Hughes has provided an effective summary of the issues discussed and

analysed in this thesis: "In a world of budgets, balance sheets and

restructuring, both in the public and private spheres, ADR offers a quicker,

cheaper and less damaging process to relationships that the traditional

adversarial system, and there is no reason why the process cannot continue

to grow. What we need now is a commitment to high standards and an

enthusiasm for continued growth which will see the flame burn far into the

next century" (1997, 293).

The goal should be to adopt and build upon mediation enhancement and

intervention programs that have been evaluated and found to be both

effective and consistent with best practice resource allocation and utilisation.

- 153 -

This study, in its small way, is indicative of the level of success of

agreements and future relationships, and that mediation is certainly a

sustainable way of reaching agreed upon resolutions in dispute situations.

- 154 -

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APPENDICES

APPENDIX 1: LETTER AND SURVEY FOR RESPONDENTS

Ref: Case No – Party Number

Date

Name

Address

Postcode

Dear

I am writing to you as you have participated in a Mediation conducted by the Dispute

Resolution Branch and I am currently conducting a research project as a Masters

student at the Queensland University of Technology evaluating whether Mediated

agreements last.

The research is being conducted through the School of Justice Studies at QUT and has

the support of the Dispute Resolution Branch of the Department of Justice and Attorney

General. I have the Department‟s approval to ask you for your assistance with this

research as I am employed by the Wide Bay Dispute Resolution Centre and am an

Accredited mediator.

The research is aimed at helping Mediation service providers, and in particular the

Dispute Resolution Centres of Queensland, better understand what happens for

parties and their dispute after having participated in Mediation. The enclosed

survey is designed to help measure the value and impact of the Mediation

agreement over time.

Please take a few minutes to answer these questions by ticking the appropriate box

next to your choice. There is also space for you to make additional comments if you

wish. It would be appreciated if you could return the enclosed survey in the reply

paid envelope provided. The Department is committed to conducting ongoing

evaluation of its services through research such as this and your input through

completing and returning the survey is essential to that evaluation.

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Your participation in this project is entirely confidential. You are asked not to write any

identifying information on your returned survey. I will give each returned survey a

coded identification number but there will be no way of identifying you through the

survey. The surveys will be stored in a locked filing cabinet. I hold the only key for

that cabinet. There will be no possible identification of any respondent in any

publication of results.

Although your involvement in this project may not necessarily directly benefit you, it is

hoped that it will help us to improve Mediation services for future parties. Your

participation in this project is voluntary. Your decision about whether to participate or

not will in no way impact upon any future Mediation process you may participate in

through the Dispute Resolution Branch.

Thank you very much for your assistance with this research. If you have any

questions or would like any further information regarding the study please contact

Teresa Brennan of the Wide Bay Dispute Resolution Centre on 41259225 or 1800

681 109 outside the local area. You can also contact Rachael Field, Lecturer in the

School of Justice Studies at QUT. Rachael is Teresa‟s research supervisor. Her

contact number is 07 3864 3309 or you can email her on [email protected]

If you have any concerns about the ethical conduct of the project you should contact

the Research Ethics Officer, Wendy Heffernan, [email protected] or on 07

3864 2340. The results of the project may be published on completion of the

research in relevant journals.

Yours

Teresa Brennan

mailto:[email protected]

mailto:[email protected]

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Sometime ago you participated in a Mediation with the Dispute Resolution

Branch and reached an agreement. This survey is a follow-up to inquire

about the effectiveness of the agreement today. Your responses will be

confidential.

1. What was the outcome of the Mediation? Please check one:

Written Agreement

Verbal Agreement

Partial Agreement on some issues

_____________________________________________________________

_____________________________________________________________

2. Is your agreement still in effect today? Please check one:

Still in effect

Somewhat in effect

Partially in effect

Not in effect

_____________________________________________________________

_____________________________________________________________

3. How prepared did you feel before the Mediation? Please check one:

Very prepared

Somewhat prepared

Prepared

Somewhat unprepared

Very unprepared

_____________________________________________________________

_____________________________________________________________

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4. Did the agreement prove effective in addressing the concerns raised

during Mediation?

No

Yes

_____________________________________________________________

_____________________________________________________________

5. Did you feel heard? Please check one:

Yes

No

_____________________________________________________________

_____________________________________________________________

6. When you compare your situation before and after Mediation, how has

the Mediation affected your relationship with the other party to the

dispute? Please check one:

Mediation has harmed the relationship

Mediation has had little effect on the relationship

Mediation has had no effect on the relationship

Mediation has improved the relationship

_____________________________________________________________

_____________________________________________________________

7. Did you feel pressured by the mediator to reach an agreement? Please

check one:

No

Yes

_____________________________________________________________

_____________________________________________________________

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8. Did the mediator/s offer specific suggestions for resolution? Please

check one:

Yes

No

_____________________________________________________________

_____________________________________________________________

9. Would you reuse this service? Please check one:

Yes

No

_____________________________________________________________

_____________________________________________________________

10. Did you learn any conflict resolution skills from the Mediation process that

have helped you to communicate with others since participating?

Please check one:

No

Yes

_____________________________________________________________

_____________________________________________________________

Additional Comments:

_____________________________________________________________

_____________________________________________________________

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