Case Studies: Mediation and FDR Mediation

All Case Studies are based upon accurately reported mediations and FDR Mediations conducted by Margaret Halsmith. Identifying information, including names, has been changed to preserve confidentiality. All Case Studies have either been prepared in full by Margaret or, where the Case Studies were initially prepared by others for publication elsewhere, Margaret has edited them for inclusion here.

Selected Case Studies are provided for

Franchising (ADRJ)(ISSL) Industrial Relations Disability Youth

Separation (FDR) Children Separation (FDR) Children - shuttle sessions Family Reconnection Workplace  (ADRJ)(ISSL) Institutional Abuse (ADRJ)(ISSL)

(ADRJ) Case Study referenced in the Carroll/Allan/Halsmith paper Apologies, Mediation and the Law  Australasian Dispute 
Resolution Journal 2018
(ADRJ) Case Studies for consideration regarding the Carroll/Allan/Halsmith paper ADRJ 2018
(ISSL) Case Studies referenced in the Carroll/Allan/Halsmith paper The Place of Apology in Law presented at the ISSL Workshop held in Onati Spain 5-6 May 2016. Download this paper here.

Franchising

Participants

Aldo and Hettie Franchisees

Rowan, lawyer Representing Sprinkles Cupcakes Franchisor

There is an industry wide process for disputes concerning franchise agreements to be referred to mediation.  A food company, Sprinkles Cupcakes, operates its stores across Australia on a franchise basis.  The agreement for one particular store, in Princetown Point, is due for renewal.  The lease of the store is held by a husband and wife team, Aldo and Hettie.

The Princetown Point store has not been meeting its targets.  Australia-wide, Sprinkles Cupcakes is not doing well.

The issue between Aldo and Hettie and Sprinkles Cupcakes concerns their contract. The remaining issue appeared to be a win-lose one: either a clause was to be inserted in a new agreement between franchisee and franchisor or it was not.  Prior to mediation, the participants’ alternatives to mediation included either agreeing with the other or walking away, leaving each with significant expenses and uncertainty.  Aldo and Hettie wanted the franchise to be renewed in only Aldo’s name.  This was because it was financially better for them, for income, tax and family reasons, if Hettie worked elsewhere. In fact, she already had another job.

In the months leading up to the expiry date of the agreement, Aldo and Hettie and Sprinkles Cupcakes had resolved all the commercial terms except this one item.  Sprinkles Cupcakes did not agree with Aldo being the sole franchisee unless he and Hettie agreed to a new clause in the agreement waiving all outstanding rights that might accrue out of the previous agreement.  Aldo and Hettie refused to accept this new clause.

Aldo and Hettie together with Rowan and the Master Franchisor had held numerous teleconferences all of which had ended in conflict without resolution.

According to their obligations under the Franchising Code of Conduct, mediation was initiated. The mediator met with Aldo and Hettie and separately with Rowan. Because they had been required to go to mediation, each took the opportunity to test out what mediation really involved and where it might lead.

During the separate intake sessions the mediator encouraged Aldo and Hettie and then Rowan to consider the benefits and drawbacks of mediation and other processes for resolving the situation as well as to develop options which may resolve the issue in mediation.   What had seemed to be ‘either clause in or clause out’ actually presented a number of workable options.

When the mediator later brought Aldo and Hettie and Rowan together, they spent time listening to each other’s points of view, then each put forward some options tenable to themselves and each other for resolving the issue of the clause as well as options for  other issues that had become evident.

After several hours of joint and separate meetings, Rowan, on behalf of Sprinkles Cupcakes, came to the view that under the circumstances, from among a whiteboard full of options regarding the clause, the most productive outcome was to remove it. Other agreements regarding compliance with the franchise agreement including use of signage, layout of the store and cleaning regimes were also reached.

It might be thought, with the benefit of hindsight, that agreement could have been reached far earlier.  It is up to the participants to agree to solutions and if, in the end, one of the participants realises that their best solution is something they had previously thought unsatisfactory, the mediation has been successful.

Initially written by Ray Fells, based on agreed non-identifying summary of a mediation provided to Ray by Margaret Halsmith; ©Mediation at Work  from  Fells, R.E. (2012) Effective Negotiation, From Research to Results Cambridge University Press. This version edited by Margaret Halsmith.

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Industrial Relations

Participants

Brian Union representative

Dora Cane Hill Sugar Management

Mediations for management-union disputes usually occur after lengthy negotiations between the participants' representatives and against the backdrop of industrial action by the company or the union.  An added dimension is that the union negotiators are representing their membership and it is those members who have the final say, even though they will not have participated in the mediation.  Further, in Australia, legislation controls many of the options open to the participants, including in some instances the items than can or cannot be included in their agreements.  Nevertheless the same core process of mediation can help bring the participants to a point where they can agree.

Cane Hill Sugar Company is a large company employing 10 000 people. There is a strong union membership at Cane Hill Sugar Refinery, with representation from Brian. Compared with similar companies, Cane Hill Sugar Refinery has had a relatively peaceful management-union relationship.

There has been growing discontent among union members at the Refinery regarding a number of issues over the previous 12 months. Among the issues were role demarcation; lunch room arrangements and information flow. Long standing, experienced staff were leaving the refinery.

Brian and upper management from the Refinery were renegotiating their enterprise agreement and had reached an impasse over several terms, including pay and promotion procedures.  Their procedure mandated mediation as the next step prior to either party being entitled to take industrial or other action.  There was a week to go before the expiry of the agreement.

Separately, the mediator visited the management negotiators, lead by Dora, and the union negotiators, lead by Brian assisting them to explain and clarify and to reflect on the issues and the ramifications of industrial action.  At this stage each group described its position as justified as was its rejection of the other goup’s stance.  However, it transpired that there were some other issues about the operation of the refinery and about the role of union in the workplace that were of concern to one or the other of the groups. These had not been part of the negotiations because such issues were not normally part of an agreement.

On the day of the mediation, when Brian and Dora, each as the representative of their group, later attended the mediation offices they were in separate rooms, as was standard practice, while the intake process was briefly revisited.  On this occasion there was going to be no difficulty in bringing the participants together and so the process of joint and separate sessions started.

An added difficulty in this case was that the CEO was overseas and Dora and the management negotiators had to regularly communicate with him by phone – delays in the process during which the union took the opportunity to plan its foreshadowed industrial action.

During the course of the day joint understandings emerged on a number of the broader issues leaving only the final issue of the pay increase to be resolved.  Both representatives needed an agreement.

Despite its planning, the union knew it could not mount an effective strike. Although he management thought this to be likley they could not take the risk, nor could they allow discontent to remain within this key group of technical employees.  They reached an agreement and Brian’s authority secured an endorsement of it – rather than a vote to strike – at a members’ meeting the following morning.

Initially written by Ray Fells, based on agreed non-identifying summary of a mediation provided to Ray by Margaret Halsmith; ©Mediation at Work  from  Fells, R.E. (2012) Effective Negotiation, From Research to Results Cambridge University Press. This version edited by Margaret Halsmith.

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Disability

Participants

Ana Mother

Joe Son

Geoff Manager Therapy Australia

The need for mediation can arise from stressful situations which often escalate as conflict deepens.  A situation can be emotionally charged even prior to a dispute. When there are added daily stresses, conflict can deteriorate surprisingly quickly.

Ana is a part time teaching assistant and mother of Joe and two other children with her husband, Nathan, an architect.  Joe is a 9 year old child who is profoundly disabled as a result of a rare condition. He has an intellectual disability, cannot speak and has low muscle tone as well as breathing difficulties. Joe lives at home with his parents and siblings.

Geoff is the manager of a therapy service provider, Therapy Australia.

Over the previous year and a half, a series of problems has arisen with Joe’s equipment and services, in particular with his wheelchair. A chair with the appropriate supports is essential for Joe as correct posture determines his capacity to breathe.

Geoff has been a manager at Therapy Australia for the past four years. Therapy Australia has been operating for ten years.

Five months prior to the mediation, Joe’s airway had been obstructed when Joe was travelling on the school bus. This incident was most likely caused or at least exacerbated by the lack of appropriate equipment. Ana had sent an emotional email to Therapy Australia expressing her anger and frustration about the situation.

One month later, Ana had sent a letter to Therapy Australia indicating that Joe was struggling to breathe when in his wheelchair.  The occupational therapist had tried to repair the head rest but had been unable to.  After the OT had made several attempts, Ana had contacted Therapy Australia and at the time of the mediation had not yet heard from them.

Ana had received a phone call from Therapy Australia about Joe’s oral hygiene and compromised breathing, however they had not been willing to talk about Ana’s email or the wheelchair.

Other issues arose.  Without discussing the decision with Ana or the swimming teacher, a physiotherapist had decided that Joe no longer benefited from using the pool.  Joe outgrew his wheelchair and postural supports.  Delays had occurred with regard to the required recommendation about a sitting postural option and providing Joe the appropriate support out of the wheelchair.

At the time of the mediation, Joe was still waiting for an appropriate wheelchair, to get back into the pool and for the postural option recommendation.  Ana was very upset and was talking of suing Therapy Australia.  After a period of not commenting, Therapy Australia agreed to a meeting with Geoff, the manager.

In the meeting Ana had been distressed and repeatedly told Geoff that Therapy Australia would be held legally responsible for anything that happened to Joe. From Geoff’s point of view his team had done their best to address Joe’s needs. Geoff shrugged his shoulders while Ana was telling him ‘you are liable’. Neither Ana nor Geoff was willing to work toward a solution regarding Joe’s issue.  Both were emotional.

After her meeting with Geoff, Ana contacted an agency for advocacy support. The advocacy agency recommended mediation.

Ana and Geoff each reluctantly agreed to an initial separate meeting with the mediator to decide whether to commence mediation. Each was accompanied to the initial meetings by a support person. Ana was accompanied by her mother. Geoff was accompanied by a friend.

At the request of Geoff and of Ana, following the initial separate meetings, mediation was held. Two three hour sessions, held a week apart were attended by Geoff, Ana, their support people and the mediator.

It became apparent that during the previous six months Geoff had unexpectedly taken many weeks of personal leave and that there had been no backfilling of his position. Ana accepted this explanation for the delay and acknowledged that the frequency and tone of her communications with the therapy service could have been experienced as harassment.

Toward the end of the second three hour mediation session agreements were reached with regard to future communication, a therapy plan and equipment for Joe. A mediation session was booked for three months hence to check whether each was satisfied with the outcomes. As it happened, at the time neither Ana nor Geoff thought a session was necessary as all was running smoothly.

This is perhaps an example of the result of the domino effect of errors and slippage which are perceived as discrete events by one participant and have a cumulative effect on another.

This case study preserves the identity of those involved while accurately reporting the mediation.

Initially written by Louise Durack, based on an agreed non-identifying summary of a mediation. This version edited by Margaret Halsmith.
 

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Youth

Participants

Freja, Marta and Helen Year 11 students Eucalyptus Hill Senior High School

Sara Year 11 student Eucalyptus Hill Senior High School

The Children’s Court of Western Australia and Youth Legal Service entered a partnership to provide mediation for matters assessed as suitable for mediation by both the Magistrate and the mediator.

Helen, Freja and Marta are a group of three Year 11 girls who attend Eucalyptus Hill Senior High School, a long established school in a middle-class area on the outskirts of Perth.

Sara also attends Eucalyptus Hill Senior High School and is also in Year 11.

According to staff and Sara, Helen, Freja and Marta had spent much of the three terms of the year pursuing Sara and verbally and psychologically abusing her, both during and outside of school time.

In keeping with her family and religious values, Sara had responded with requests for Helen, Freja and Marta to stop their behaviour toward her. When the behaviour continued, she arranged for her mother to drop her off at and collect her from school.

Sara was frightened before and after school and during lunch and recess breaks.  She was distracted during lessons.

On one occasion in Term 3, Sara’s mother was unable to collect her from school.  While she was waiting for the bus, Freja, Helen and Marta attacked Sara physically.  Sara did not fight back. She required medical treatment for some months following the incident.

Through her mother, Sara applied to the Court and was granted an Interim Restraining Order.  The Children's Court magistrate, granting the Interim Restraining Order, referred the matter to mediation.  Although each of the young people agreed to mediation, Sara and her mother were somewhat sceptical while at the same time, hopeful.

The mediator contacted each of the young people to arrange a separate session with each young person and their parent or responsible adult.  The purposes of the sessions were multiple, including for example, developing rapport, to explain the mediation process, to assess the circumstances and participants for suitability for mediation and for the young people and their support person to assess the mediator and the process for suitability.

Based on the initial separate sessions, the mediator decided to convene four one-to-one mediations followed by a group session of all four young people and their support people.  At each of the one-to- one mediations would be Helen, Freja or Marta accompanied by her mother and Sara accompanied by her mother.

Undertaking these sessions took many months. Helen's father was terminally ill and died during those months.  Marta’s mother was pregnant with a difficult pregnancy and had two toddlers at home.  Freja’s mother moved house regularly to maintain hers and her family’s safety following the end of an abusive relationship.  Meanwhile, Sara’s mother was admitted to hospital for significant surgery.  Add to that the usual unavailability due to illness, school exams, other commitments, occasional forgetfulness and holidays.  Throughout these events the young people and their parents remained committed to mediation and optimistic of a constructive outcome.  During this time, the mediator was in regular contact by phone, by text message and by e-mail. Interaction between the group of three and Sara was tense and minimal.

The Court was kept informed and adjourned the matter pending an outcome from mediation.

The mediation sessions were initially held at Youth Legal Service in the Perth city centre. When it became apparent that this was an added complication for each of the people involved, a request was made to the Principal of Eucalyptus Hill Senior High School and granted willingly, that the mediation be held there after hours.

At the mediation, Sara, Freja, Marta and Helen adhered to the guidelines of demonstrably listening and of remaining focused on the future. Each explained why they were at mediation and what they would like to accomplish. Mutual issues were identified, discussed and clarified before options for resolution were considered. From among the options, the most realistic and practical in the circumstances were crafted into an agreement. Throughout the sessions the young people’s mothers watched and listened and spoke only during breaks from the joint session.

The issues identified and the agreements reached by the young people were numerous and included, in their own words:

“We agree that so that each of us will be safe and peaceful we will:

• stay away from each other
• encourage friends to be respectful to the other's friends
• behave maturely
• be neutral
• treat the other how we would like to be treated
• think of each other as different and OK”

Follow-up with the school at 3 months and 6 months showed that there had been only respectful interaction among the young people and that each was achieving well academically.

Young people have many of their emerging adult needs met by their peer group. Instead of thinking as individuals and about the future some are inclined to ‘group think’ as if ‘there is no tomorrow’. When the effects of this became evident in a setting that assumes self-responsibility the three young people were individually called to account by hearing from Sara and changed their behaviour accordingly.

Initially written by Cheryl Cassidy-Vernon, based on an agreed non-identifying summary of a mediation provided to Cheryl by Margaret Halsmith. This version edited by Margaret Halsmith.

 

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Separation (FDR) Children

Participants

Yvonne Mother

Mario Father

Tamara, Jason and Minette Children

Family Dispute Resolution (FDR) is a process, largely based on mediation, that is provided by accredited and registered FDR Practitioners to assist parents who are separating or who have separated to make a ‘genuine effort’ to reach agreements regarding parenting that will enable each of the children to restore, if necessary, maintain and develop their relationships with each of their parents and with members of their extended family. It is the responsibility of each FDR Practitioner to ensure that each participant in an FDR process accepts the Practitioner’s behavioural definition of ‘genuine effort’. At HDR the definition is twofold: each participant agrees that each will demonstrably listen to the other participant and that each participant will demonstrably put the children’s interests ahead of their own.

With very few exceptions, parents are obliged by law to make a genuine effort to reach a resolution through FDR before being eligible for the Court process.

Yvonne, a small business proprietor, is 51. She can generally fit her business commitments around the children’s educational and extracurricular activities. Having coasted through her tertiary studies with the result that she never quite completed her degree in design, she is now very keen for each of the children to surpass her academic achievements. At the same time, she is alert to the dangers of putting the children under pressure.

Mario, an architect, is 48. The world of architecture is highly competitive due to the supply of architects exceeding the demand. It is difficult to make a good living in architecture and is progressively becoming more and more soul destroying for Mario as clients provide very run-of-the-mill briefs. Mario is keen for the children to achieve well so they can set themselves up for a good future. He has no idea, he explains, of what the world will hold for his children and therefore how to guide them toward being accomplished for the 21st-century.

Together Mario and Yvonne have three children, Tamara and Jason are twins aged 15. Minette is 13.

Having young children coincided with Yvonne’s and Mario’s parents becoming frail, being cared for by Mario, Yvonne and their siblings and being admitted to aged care facilities which remains the current situation.

After years of communication that served mainly to shut the other down, Mario and Yvonne each came independently to the realisation that their family life was inhibiting the chances of each of the children to fulfil their academic potential. Although each did their best to nurture the children, the toxic atmosphere and the approach of each was shutting the children down, a situation which horrified them.

Yvonne and Mario decided to separate and that they would draw up an agreement without any professional assistance. Things went downhill from there.

After some weeks of what each described as nastiness, stonewalling and criticism they jointly approached an FDR Practitioner. In the initial individual separate sessions Mario and Yvonne each told the FDR Practitioner that they would like to mediate the parenting issues of separation and to do it in such a way that their relationship as co-parents improved their parenting. They would leave sorting out the property until the children were stabilised. Yvonne and Mario would continue to live under the same roof and planned to travel to and from mediation together.

The FDR Practitioner booked three joint sessions of three-hours each, a fortnight apart. In the first joint session, following the opening comments of the FDR Practitioner, Yvonne and Mario each made their opening comments to the FDR Practitioner who requested them each to speak as if they were the first speaker.  Each listened to the other and then the FDR Practitioner told Yvonne then Mario what she had heard them say during their opening comments. She invited each to add, clarify and if necessary correct what she had let them know that she had heard them say. The FDR Practitioner then tentatively identified the issues for discussion which had been raised in the Participants’ Opening Comments. Mario and Yvonne confirmed them to be among the issues:

• What arrangements will Yvonne and Mario make for each of Tamara, Jason and Minette to spend time with each of their parents to develop and maintain their child-parent relationships?
• What living arrangements will Mario and Yvonne make for each of Tamara, Jason and Minette to develop and maintain their child-parent relationships?
• How will Yvonne and Mario provide for the predictable financial aspects of each of Tamara, Jason and Minette?
• How will Mario and Yvonne provide for the unpredictable financial aspects of each of Tamara, Jason and Minette?
• What arrangements will Yvonne and Mario make for each of Tamara, Jason and Minette for special days?

In the second joint session, the FDR Practitioner then assisted Mario and Yvonne to explore, clarify, gather information, raise questions and explain each of their perspectives before facilitating the option generation stage of the mediation. With the whiteboard full of options, the FDR Practitioner assisted Yvonne and Mario to filter and prioritise the options to address each of the issues. Each agreed to consider the top few options that had been prioritised for each of the issues during the week leading up to their third three-hour joint session.

As it happened, that session would take on a very different purpose. During that week Mario and Yvonne met for dinner and thoroughly reality tested each of the top few options and others that arose during their discussion. The following evening, they met again and drafted a set of agreements. After further discussion, they decided to ask the FDR Practitioner for a one-hour session to review their agreements.

Yvonne’s and Mario’s decision to reach agreement independently of the mediation vindicated their original thoughts that they had and have the skills and goodwill to co-parent well together. The mediation provided the impetus and the confidence to get them started.

Written by Margaret Halsmith.

 

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Separation (FDR) Children - shuttle sessions

Participants

Ray Father

Alicia Mother

Amy, Daniel and Sarah Children

Mediation is an effective process that helps disputing participants reach durable, practical agreements for all members of the family.  Interpersonal disputes, particularly relationship endings, can be bitter with levels of antagonism between the participants so strong that a solution does not seem possible. With some exceptions, the Family Law Act obliges people to make a ‘genuine effort’ in FDR mediation to reach agreement on arrangements for the children.

The Family Court of Western Australia has issued a Memorandum regarding property matters. When people each have access to a lawyer, and when Mediation is assessed as suitable, the Court encourages mediation or other form of out-of-court settlement before it considers providing a conciliation conference.

Ray, an accountant is 45. He worked long hours and is heavily committed to Daniel’s Minkey team in winter and Amy’s and Daniel’s swimming team in summer. Alicia, who works part time as a teacher is 40. She is manager for Amy’s netball team. Together, Ray and Alicia have three children, Amy, 10, Daniel, 8 and Sarah, 6.

During the past five years they have supported Ray’s brother, Alan, sometimes with accommodation; sometimes financially. Alicia’s mother had attempted on a number of occasions, to persuade them to make Alan “stand on his own two feet”.

After some years of each feeling insecure and at times frightened of their future, Ray and Alicia had made the decision to separate. Each had one session of legal advice with lawyers recommended by friends and decided to postpone the decision of whether to retain a lawyer. Independently of the Family Law Act requiring them to make a genuine effort to reach agreement in FDR before they could file an application in the Court and although they each felt bitterly toward the other, they agreed that mediation was the best way to sort out an agreement. There was a multitude of aspects to each of the main issues: a property settlement and children’s issues.

Neither wanted to be the first to ring the FDR Mediator. Eventually Ray decided to take the step.

In their initial individual separate sessions Ray and Alicia each told the FDR Mediator that they would feel emotionally vulnerable if they were in the same room as the other.  They and the FDR Mediator still assessed mediation as suitable for FDR Mediation so they attended the mediation rooms with an assurance from the mediator that even the parking arrangements would be such that one would not have to meet the other and that they could leave the FDR Mediation at any time.

With the participants in separate rooms, the FDR Mediator worked through the steps of the process, listening to Ray and Alicia separately.  Each had similar values and expectations of how they envisaged a settlement. The difficulty was in the detail.

Through a succession of alternating separate meetings with the FDR Mediator, Alicia started to ‘hear’ what was important to Ray and Ray started to ‘hear’ what was important to Alicia. From among a number of options that each considered and obtained legal advice, they reached agreement regarding sharing their assets as well as regarding when the children would spend time with each of them and on how they would manage future decision-making about the children.  Ray and Alicia attended together for the first time in their FDR Mediation to sign the Heads of Agreement.

Alicia’s and Ray’s achievement in FDR Mediation was significant.  It enabled the participants to reach an agreement and develop a commitment to that agreement for the future – a far better outcome than what would have inevitably been a costly and acrimonious court case.

Initially written by Ray Fells, based on agreed non-identifying summary of a mediation provided to Ray by Margaret Halsmith; ©Mediation at Work  from  Fells, R.E. (2012) Effective Negotiation, From Research to Results Cambridge University Press. This version edited by Margaret Halsmith.

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Family Reconnection

Participants

Angie Mother

Angus Adult child

Tessa Adult child

Gary Adult child

For a multitude of reasons family members can become estranged from other family members. Time passes and frequently people are unclear about the cause of the rift. There are many aspects to family reconnection. Mediation can assist with the practical aspects of reconnection including who will be involved; what will happen; where it will happen and how it will happen.

Angie, a part-time social worker in her late 60s, has not been in contact with two of her three adult children, Angus and Tessa for more than ten years. She remains in contact with Gary, the youngest.

Angus, Tessa and Gary each have families with children in the same age range. Angus and Tessa as well as their partners are acutely aware that their children are missing some grandmothering. Gary finds it increasingly difficult to explain to his children why they shouldn't mention ‘Grand Angie’ to their cousins.

The rift has a history in Angie's and Bill’s separation when Angus and Tessa were in their late teens and Gary was in the first year of high school. The mix of adolescent angst and pushing the boundaries together with blaming their mother for the separation resulted in Angus and Tessa moving interstate to live with two different families of relatives. The relatives provided updates to Angus and Tessa and to Angie.

Gary stayed in Western Australia and moved comfortably between Bill’s household and Angie's household.

When Angus and Tessa each left their respective relatives’ households in their early 20s, indirect contact with Angie ceased. Gary was not willing to be the go-between.

Various milestone events past unacknowledged for each of the people involved.  Various relatives sporadically suggested and attempted reconciliation, in vain.

Gary's wife, Veena, feels strongly that the estrangement is a legacy she does not want their children to have. Over a period of 18 months she listened to Angie, to Angus, to Tessa and to Gary then cautiously suggested mediation. Everyone agreed.

The mediation provided the forum for Angie, Angus and Tessa to address the issues of gradual reconnection and to establish boundaries and norms for addressing concerns.

The outcome was a set of agreements that enabled special occasions of the three generations to be enjoyed by all.

Family reconnection mediations are a salutary reminder that relationship history is important: it is almost as important as relationship future.

Written by Margaret Halsmith, based on a mediation.

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Workplace

Participants

Serco NGO Groundsperson

Marius Union Lawyer

Aleco NGO Supervisor

Rosalie Lawyer appointed by NGO's insurer

Mediations for disputes between supervisors and workers usually occur after an extended escalation of incidents. These incidents are almost always perceived by participants to involve at least two, if not all, of bullying, harassment, defamation and discrimination.

Serco is a member of the Grounds Department team for a large NGO. He is in his late 50s and has held this position for 32 years. Serco is known for his independence, his thoroughness, his local knowledge and his solitariness. Daily, he arrives at work very early and generally leaves just before knockoff. He attends most work social occasions, typically remaining on the periphery and being among the first to leave. Increasingly, over the past few years, he has found himself in a situation of knowing more about the task at hand than new supervisors. Many times he lets this pass. Sometimes he makes suggestions to the supervisor. On the whole this has built mutual respect between Serco and the various supervisors.

Aleco has been working for the NGO for seven years in various departments and two years ago was promoted to the position of supervisor. He earned this position by being certain of regulations and policies and by implementing them fairly and to the letter. At the encouragement of the organisation, Aleco commenced studying horticulture at TAFE. He has taken to it ‘like a duck to water’. He is looking forward to being qualified and rising up the ranks in the organisation so he can really make a difference.

Eighteen months ago, Aleco applied for and was successful in filling the position of supervisor of the Grounds team. He is particularly pleased to have been successful because this will set him on his chosen path and take care of the practicum part of his horticultural course.

For the last 10 or more years, Serco has been the go-to person for complex tasks including tasks that would otherwise have been the responsibility of the Technical Department team. Serco is quietly held in high regard by each of the teams and, although he stands back, is welcomed to each of their social events. As it happens, the Grounds team has typically been more aware of the hierarchy from supervisor to grounds person than has the Technical team. Serco gets on well with the Supervisor of the Technical team. Aleco finds Serco’s comments to be sometimes helpful and sometimes an unnecessary distraction.

Some six months ago, Aleco noticed a change in Serco’s approach to their differences of opinion. Serco, it seemed to him, was telling him what needed to be done and how to do it rather than discussing the issue as they had previously. A particular turning point was when they disagreed on the most appropriate way to rebuild a swale. The artificial swale had been created to provide unobtrusive and natural appearing drainage at one of the NGO’s sites and was performing less than satisfactorily. After a somewhat heated discussion Aleco instructed Serco in the redesign of the swale, providing a detailed, annotated sketch. Serco built it differently. During the next heavy downpour, the swale drained quickly and thoroughly. A number of members of the Grounds team and Technical team complimented Serco for his innovative design which he told them had been necessary as the specified redesign ‘would not have worked’.

Subsequently, someone posted on the lunchroom noticeboard, Aleco’s design of the swale followed by some pejorative comments. Over the next six days the comments were added to and became increasingly derogatory. More than once a day Aleco cleared the noticeboard and yet in the following few hours it would need clearing again. Aleco was convinced that this campaign was being conducted by Serco. Distressed by the lack of respect shown to him and his position, exacerbated by the particular sensitivity to hierarchy in his team, Aleco took three days’ leave and sought support through the NGO’s Employee Assistance Program (EAP).

He returned to work and continued with his EAP appointments and frequently taking a half day of leave in addition to his RDO. The time came when Aleco confronted Serco when Serco arrived at work. Depending upon whose account is being heard, there were strong words, reference to ‘probation’ and possibly some pushing and shoving.

Aleco took further leave, withdrew from his horticulture course and continued with EAP appointments. Serco continued to work ‘as he always had’.

When Aleco returned to work, the HR manager interviewed Aleco and Serco and other members of each team. She counselled Aleco and Serco to put the past behind them and to ensure that they had other people with them when they were likely to be in each other’s company. She said she would check in with each weekly.

Dissatisfied and feeling harassed, defamed and increasingly ‘stressed out’, Aleco insisted on being advised of his legal rights. A consultation was arranged with Rosalie, a lawyer appointed by the NGO’s insurer. Hearing this ‘on the grapevine’, Serco attended one session with a lawyer arranged by his union.

The HR manager, concerned for Aleco’s wellbeing and fitness for work, keen to avoid further escalation of the dispute and wishing to retain both employees, arranged for mediation.

Initially, the mediator conducted a shuttle mediation to assist each to manage their emotions and to better identify issues for discussion and resolution. These included

• communication
• lines of authority
• how to disagree
• how to put the past behind them
• what to tell the team

In the mediation, after hearing Aleco’s version of events Serco offered to make an apology to Aleco. Serco’s lawyer, Marius, called for a break for a private session.

In the private session Marius explained to Serco that an apology would not address the legal issues and could complicate the matter including possibly putting Serco’s job at risk. In response Serco explained to Marius that that he was aware of the huge significance to Aleco of his words regarding Aleco being on probation (which Aleco had long since passed) and the shame that would bring his family ‘back home’. Serco was emphatic that he had had no part in the maligning of Aleco on the noticeboard that was still appearing from time to time and regretted that his natural reticence resulted in him not having actively let the team know that he wanted the noticeboard campaign to end. However, he acknowledged that there had been highly personal accounts exchanged on the morning that Aleco arrived early. Serco insisted that an apology was necessary and appropriate and asked for advice on how the construct and deliver an apology. Following some further discussion and assisted by notes taken by Marius and the mediator during Aleco’s opening comments in the mediation, Serco composed an apology.

In the resumed joint session, Aleco conditionally accepted the offer of an apology as this was important to him, depending, among other things, on whether agreements on the other identified issues were reached. He asked to hear Serco’s personal apology in private with a shorter, written version to be posted on the noticeboard for one week. Serco agreed, as did each of the legal advisors. A number of other agreements relating to communication protocols, allocation of tasks, steps to be taken if a disagreement arose and a joint statement were reached, then the legal advisors left the room.

The mediator briefly facilitated some guidelines for delivering and receiving the apology, noted them on the whiteboard and advised that she would knock on the door at five-minute intervals until she was asked to come in by either or both participants. Fifteen minutes later the mediator was invited into the joint room, together with the legal advisors. An apology had been made and accepted. Aleco and Serco were pleased that not only had the dispute been resolved but that they had also had established arrangements to allow them to resume and enhance a constructive relationship in the workplace. The mediation was closed, to the satisfaction of each participant.

This mediation is another of many which reminds participants, lawyers and mediators that it is the participants who know where the damage has been done and where resolution is to be found. In this situation resolution was to be found in the shared cultural heritage and cultural sensitivities of the two participants.

Written by Margaret Halsmith, based on a mediation.

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Institutional Abuse

Participants

Frank Child migrant

Ross Church representative

Since at least the 1940s, governments and churches have partnered to provide institutions for children who needed to live away from home. Churches staffed and administered the institutions which housed child migrants as well as local children.

Since the 1970s there has been a continuous and growing number of claims of serious maltreatment from the former residents of many institutions. In the early 1990s, various church facilitation and mediation programs commenced in Australia to address the claims.

Urgency often characterises the mediations due to the high needs and advancing age of former residents.

The Well Established Church (WEC) is a large church with city and regional centres and groups of like-minded followers throughout Australia and the world. It was one of the first in Australia to establish a mediation program for former residents of the institutions it operated. The WEC endeavours to have its representative who participates in the mediation come from the group within the church that was responsible for operating the institution at which the person making the claim lived.

Frank, with the support and encouragement of a therapist, had recently lodged a claim through the WEC program and the processing of the claim had progressed to the mediation phase.

The WEC office provided the mediator with a report summarising the investigation into the claims made by Frank, prepared by an independent interviewer. The report explains that Frank was a child migrant who was brought from Malta to Australia when he was 8 years of age. He is now in his late 60s. He lives alone in a Department of Housing flat near the city. He spends much of his day watching television; occasionally passing the time of day with neighbours and often walking through nearby parks and suburbs most days. In the evenings, other than on some Sundays, Frank reads and rereads his growing collection of newspaper clippings of the widespread abuse among residential institutions before, during and after his childhood years.

The report goes on to say that Frank entered a residential institution operated by the WEC on his arrival in Australia and remained there until he ran away 6 years later at age 14. He was subjected to psychological, physical and sexual abuse. His quality of life has been severely compromised by the trauma of these experiences. This was aggravated by the dismissive reaction of the church to his few past approaches to them for assistance. He did arrange his own counselling but was only occasionally able to afford it. Although the counselling did not eliminate his distress it did provide him with ways of ‘getting through’ the worst periods including periods of contemplating suicide.

The report notes that Frank has been able to work only intermittently, spending years at a time unemployed due to being addicted to alcohol and tobacco until his late 50s. His most fulfilling work was in remote parts of the north-west of Western Australia. His first marriage ended catastrophically for which he holds his lack of a caring upbringing accountable. He has not seen his children from that marriage since they were toddlers. His second marriage also ended in divorce and he maintains reasonable contact with his children from that marriage.

The report concludes by noting that Frank’s recent retirement has brought with it time to take stock. While continuing counselling, Frank has started periodically meeting with other ‘old boys’ and hearing about the approach of the WEC to the complaints of many. He is no longer prepared to ‘let sleeping dogs lie’. Frank’s counsellor suggested he consider mediation through the church process.

The process commences with the mediator meeting individually with each participant, who may be accompanied by a support person.

During the mediator’s initial separate session with Frank he explained that he had spent a lifetime attempting to get help and on each occasion he had felt distanced, ignored and unheard. Frank explained that he concluded that the church was collecting data and conducting a risk analysis rather than providing the pastoral support that it claimed. Frank described the huge risk that he was taking by agreeing to participate in the mediation. His aim in taking this risk was he said 'to have his experiences acknowledged' which might enable him to ‘live freely for the last years of his life.

The mediator explained the process, emphasising that breaks can be taken at any time, as often as needed and encouraging Frank to be accompanied by a support person who could either participate or be available in a private room. Frank indicated that he was prepared to continue to joint sessions.

The mediator asked Frank to consider what the representative of the church could do to assist, how Frank could explain that to the church representative and how Frank would know whether the meetings with the church representative were beneficial for Frank. Following a detailed discussion, Frank identified an apology from the highest authority in the church in Western Australia, among other outcomes as meaningful to him.

Ross, the church representative, is in his mid 50s. He has been a member of WEC since his early 20s. He has represented the church in one or two previous mediations and comments, in his initial separate session, that he finds them both draining and fulfilling and that they are an essential responsibility of the church.

Ross had a positive, stable, suburban upbringing in a family that turned to the church for festivals and at times of need. He joined the church at 21 after completing a degree in education. He has worked in a number of Asian countries, mostly in projects involving housing and health.  During the past 10 years Ross has had various leadership roles in projects with disadvantaged people in a wide variety of circumstances in Australia and overseas. He commented in his initial separate session that he had never been so disturbed and felt so unable to help as in these situations of abuse that the WEC had created. However, he was unhappy with Frank ‘getting stuck into him’ in the press as if he were personally responsible for Frank’s experiences.

The mediator then conducted an initial separate session with Ross at his office. The mediator focused on the substance of the report previously prepared by the independent interviewer and on explaining the process of mediation to Ross. During the discussion, the notion of blame was raised. Ross came to appreciate Frank’s attribution to Ross of blame as being an expression of the huge power discrepancy between Frank and the church that Ross represents: 'We blame those whom we perceive to be more instrumental in our lives than ourselves.'

After the initial separate sessions, the joint sessions were convened. Mediation took place in suburban rooms selected for the low key and homely ambiance.

The purposes of the mediation were identified by Frank and Ross as to

• provide an opportunity for Frank to be heard by Ross
• explore the possibility of agreements which would assist Ross to address his needs arising from his experience as a resident in the church institution
• assist Frank to put the past behind him

Over two mediation sessions, Frank described a lifetime of desperate feelings of abandonment long ago converted to self-loathing. Amongst many examples he described being frequently reprimanded and humiliated by the staff because he often wet the bed and of being deemed not to be suited to education and put on manual work at the institution from age nine. He described sexual abuse by staff and then by the staff to whom Frank reported the abuse. Having endured these experiences he had then to endure their consequences including the humiliation of not knowing basic table etiquette and being functionally illiterate.

After a second joint session Frank explained to the mediator that the mediation was taking too much of a toll on him; that he had stopped his recreational walking and watching the television and spent the day ruminating. His counsellor recommended that he call a halt, which he did.

It was agreed by Frank and Ross that Frank had four choices regarding next steps: he could advise the WEC organising office if and when he was ready to resume the mediation; he could advise the organising office that he would like to start the process afresh with a new representative of the church and/or a new mediator; he could put the process on hold indefinitely; he could advise the office that he would like his file closed.

Approximately 18 months later Frank requested that the mediation resume and that he wanted to continue with same church representative and mediator.

Ross and Frank each advised the mediator that there had been no contact between them in the intervening time. Each also advised the mediator, in confidence, of their scepticism that this mediation would be different from the first, however, they were determined to ‘put their best foot forward’.

Each participant made their opening comments, following which Frank thanked Ross for having apologised for Frank’s traumatic upbringing. Ross later commented to the mediator that his opening comments had not, from his point of view, included an apology.

A further three joint sessions progressed smoothly and agreements were reached that

• Ross would provide apologies written in his own words to demonstrate that he had heard Frank;
• the church would provide the agreed financial amount to Frank to contribute to meeting his needs arising from the abuse he had experienced
• Ross would promptly provide information specifically requested by Frank relating to his time in the institution.

Frank and Ross both described the mediation as successful within the limited scope of what was possible after so much damage and so many years. They each commented that the program was a pastoral one which was designed largely to meet Frank’s needs for being heard and which took only a passing account of the financial privations suffered and likely to continue to be suffered by Frank. Ross asked Frank’s permission to contact him periodically and invited Frank to contact him if ever he wanted to. Frank was comfortable for Ross to contact him and was noncommittal regarding contacting Ross.

Written by Margaret Halsmith, based on numerous mediations for a number of churches © Halsmith Dispute Resolution 2016