When neutrality isn't enough: How mediators can challenge rather than facilitate systemic & structural injustice

with Julie Macfarlane and Bernie Mayer
Monday, 13 February 2023 | 9am to 4:30pm AEDT | Melbourne | To see Sydney schedule for this workshop click here | 

Bernie Mayer and Julie Macfarlane will join in presenting a daylong seminar for mediators on the role they can play in genuinely empowering disputants and the dangers and pitfalls they may encounter along the way.  Bernie will present on How to be fair in an unfair world: The mediation dilemma, based on his newest book (co-authored with Professor Jacqueline Font-Guzmán) The Neutrality Trap.  Julie will present on The role of third parties in facilitating non-disclosure agreements based on her work as co-founder (with Zelda Perkins) of the Can’t Buy My Silence campaign to end the use of NDA’s to cover up misconduct and abuse.  

Conflict intervention and social justice advocacy are natural but uneasy allies.  In part 1 of this seminar, Bernie will focus on the complex interaction between helping people connect across our differences and supporting those whose mission is to challenge systems that promote oppression and exploitation.  The tension between these values is at the heart of not only our most significant ethical dilemmas but also our relevance to the most essential social conflicts we face. We often try to avoid the challenge this presents by hiding behind a commitment to neutrality, impartiality and objectivity, but this inevitably puts us on the side of the most powerful and unintentionally supports the very systems that perpetuate the problems we are trying to address.  

When we fail to acknowledge and dealing with this challenge, we can unintentionally become the agents of further victimization for less powerful individuals or groups.  We face this challenge in interpersonal, community, organizational and intergroup conflicts far more often than we may realize. 

Bernie will explore how we can recognize and understand this dilemma, how we can avoid “the neutrality trap” while maintaining our credibility as interveners, and how we can genuinely empower disputants to advocate for their most important concerns in a powerful and constructive way.   

The use of non-disclosure agreements (NDA’s) has mushroomed over the past 25 years so that it is no longer limited to protecting intellectual property or trade secrets but has become a standard part of the settlement of a broad range of disputes. In doing so, sexual harassment and abuse, bullying, discrimination, unethical business practices, and a wide variety of misconduct have been enabled, the abusers and the organizations that employ them have been protected, victims have been silenced, and revictimized, and the public has been endangered.  The argument is often made that NDAs are necessary to reach settlements, but research has clearly refuted this argument.  The misuse of NDA’s has been highlighted by some notorious cases (Harvey Weinstein, the Catholic Church, Bill Cosby, Donald Trump, for example), but their extremely widespread use is a problem that is deeply embedded across organizations and institutions and disproportionately impacts women and people of colour and others with vulnerabilities including disabled people and pregnant women.

Mediation, unfortunately, is often used as a vehicle for negotiation NDAs and for encouraging or even pressuring victims of abuse to agree to settlements that in practice prevent them from healing and moving on.  In part 2 of this seminar, Julie will discuss the history of NDA’s, the campaign to limit their use, the challenge this presents to mediators, and how to navigate this challenge in a way that promotes the resolution of difficult disputes without enabling misconduct.

Topics:

Part 1

•  Social change and conflict intervention
• “Good trouble” and mediation
• Can we ever be neutral, impartial or objective (and if not, who are we)
• How does “the neutrality trap” show up in mediation and what can we do about it
• The power and limits of dialogue

Part 2

• NDA’s and the danger of neutrality 
• How NDA’s have become “standard operating procedure”
• Myths about NDA’s
• The mediation challenge and how to navigate it.
• The campaign for law reform worldwide and in Australia
• How should mediators and mediation organizations respond?

Bernie will lead part 1 with Julie’s participation and Julie will lead part 2, with Bernie’s input.

About the trainers

Professor Julie Macfarlane

Professor Julie Macfarlane is a Canadian law professor and Member of the Order of Canada who has spent her career researching, writing about and advocating for access to justice. She is Emerita Distinguished University Professor at the University of Windsor.

Julie is best known for her research and writing on the legal system and in particular the role of lawyers. Her book, The New Lawyer : How Clients are Transforming the Practice of Law (now in 2nd edition, UBC Press 2017) is widely used in law schools and professional legal education in Canada, the US, the UK, Australia and other common law countries. A practising mediator for 25 years, she also edited a textbook on dispute resolution that is the standard text in Canadian and many US law schools.

In 2013, Julie wrote a highly influential empirical report on the experiences of self-represented litigants, which explored ways in which the legal system could adjust to the growing and now established phenomenon of self-representation. This work led to the establishment the National Self-Represented Litigants Project, which Julie led from 2013-2022.

Julie has also researched and written about misperceptions of and prejudice towards Muslim communities in North America (Islamic Divorce in North America: Choosing a Shari’a Path in a Secular Society (Oxford University Press 2012).

Julie’s work has been recognized with a number of honours, including the Order of Canada (2020), named as one of Canada’s 25 Most Influential Lawyers (2017), the David Mundell Medal for Legal Writing (2016), the Scholar of the Year Award from the Institute for Social Policy Understanding (www.ispu.org) (2012), and the first-ever Canadian recipient of the International Academy of Mediators Award of Excellence (2005).

In the last 5 years, Julie’s work has focused on advocacy for change in how the legal system treats survivors of sexual violence. Her most recent book (Going Public: a Survivor’s Journey from Grief to Action Between the Lines Press, 2020), the winner of the 2022 Huguenot Society Award, describes her personal experiences of sexual violence, her efforts to use the legal system for change, and her first-hand experiences of institutional cultures – churches, schools, and universities - that tolerate and suppress sexual violence.

Most recently, Julie has been campaigning internationally (with Zelda Perkins) to end the widespread use of non-disclosure agreements or NDAs (Can’t Buy My Silence). She and Zelda are currently working with lawmakers, lawyers, educators, trade unionists and others in Canada, the UK and Ireland, to introduce legislation to ban NDAs that cover-up discrimination, harassment and other abuse.

Bernie Mayer, Ph.D

Bernie Mayer, Ph.D., has provided conflict intervention services for families, schools, public interest groups, communities, NGO’s, unions, corporations, and governmental and agencies throughout North America and internationally for over 40 years. He is Professor Emeritus of Conflict Studies, Creighton University, and a founding partner of CDR Associates, a conflict intervention firm headquartered in Boulder, Colorado.  

Before focusing on conflict intervention, Bernie was a child and family therapist in New York City and Boulder, Colorado. Bernie is a prolific author of books and articles, including The Dynamics of Conflict, Beyond Neutrality, Staying With Conflict, and The Conflict Paradox. His newest book, with Jacqueline N. Font- Guzmán, is the The Neutrality Trap  (2022). He received the 2015 John M. Haynes Distinguished Mediator Award, presented by the Association for Conflict Resolution, the 2013 President’s Award and the 2009 Meyer Elkin Award presented by the Association of Family Conciliation Courts, and has twice received the CPR International Institute for Conflict Prevention and Resolution’s Book of the Year Award. 

Bernie has long been concerned with the limits that a commitment to neutrality as a central identifying characteristic of mediators have put on the growth and impact of conflict engagement professionals.  He has written about the confusing way in which we use terms such as neutrality, impartiality, and objectivity and how this has affected our work and how we are perceived by the general public.  In his most recent book, he and Professor Font-Guzmán discuss the relationship between conflict intervention and social justice advocacy and in particular the way in which a commitment to a neutral stance can interfere with social change efforts.