{ Dr Lisa Toohey,
Director, Dispute Resolution Programs
UNSW Faculty of Law
The 'Behavioral Turn' in Mediation:
Implications for Mediation Theory
Which of these
choices allows a
person greater self-
determination?
Which of these
choices allows a
person greater
autonomy?
Consider these two sets of choices:
What is a behavioural turn?
A ‘turn’ denotes a shift in practice and theory
Behavioural as including, but broader than just neuroscience
Social Neuroscience
Neuropsychology
Behavioural Economics
Broadly, they relate to the science of human decision making and look at the role of ‘choice architecture’
Popularised Neuroscience
Popularised Behavioural Economics
{ What is their significance for the theory and practice of mediation?
Behavioural insights have the capacity to transform mediation practice
Is there clarity on the role of autonomy and self-determination in mediation?
Autonomy and Self-determination are often considered “the controlling principle” of mediation (Bagshaw)
Usually said to include:
active & direct participation,
informed consent as to process and outcome,
voluntariness in decision,
absence of coercion.
Behavioural insights seriously challenge many of these features
How does
Support or undermine autonomy and self-determination?
The dominant approach is a ‘toolbox’ approach:
“Here are fantastic insights that you can use in your practice”
However, I argue we need to think more cautiously:
1. The toolbox approach has normative/value laden aspects
2. In somerespects behaviouralism can undermine self-determination & autonomy (do they even exist?)
3. In other respects behaviouralism can promote self-determination & autonomy
Use of behavioural sciences in mediation
Compared with
There is no simple ‘take’ home messages from research on how best to support autonomy and self determination
{
The challenge: (re)thinking autonomy and self-determination in mediation theory
Accommodating a reality where there is no such thing as ‘free’ or ‘rational’ choice
Two major directions for a research agenda
Exploring theoretical approaches to self-determination and autonomy & clarifying their meaning
Cross-referencing theories from the ADR field with those of other discipline, such as philosophy, medical law, ethics
Better understanding how practitioners use and interpret behavioural insights
Information experience – use of technical / popularist resources
Policy responses, such as mediator standards and implications
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