Anglican Church of Australia
Sydney Diocese
The Benefits of the Mediation Process
In the case of Sydney PSU v Drew
By Louise Greentree[1]
Introduction
In two postings preceding this, the first, ‘Twenty-one reasons why the case promoted by Sydney PSU Director Lachlan Bryant against Drew cannot and should not be allowed to go to a hearing.’ and the second ‘Twenty-one reasons why the case promoted by Sydney PSU[2] Director Lachlan Bryant against Drew should, and in a just world must, go to mediation.’ I pointed out the grave problems that the PSU director, Mr. Lachlan Bryant and his barrister, the second deputy Chancellor of the diocese, Mr. Michael Easton face in trying to achieve success in the case that Mr. Bryant has promoted against Drew.
In their eyes ‘success’ has to mean this, and only this: that either Drew admits that his actions were disgraceful and caused or would have caused a scandal, and agrees not to seek work in the diocese as a church worker for a period of time, or the disciplinary tribunal will decide in favour of the PSU’s view of the case and make a recommendation to the Archbishop that Drew be prohibited from working in the diocese for up to 5 years.
I observed that about 19 statutory declarations from other former members of the youth group had supported Drew in relation to the same things that complainant 1 was now complaining about. But they said there was no sexual element to any of these things (with which complainant 1 agrees) and that each one of them, personally, had benefitted hugely from Drew’s dedicated Christian mentoring and nurturing. What I did not say, but what is equally true, is that the defence could have found even more former youth group members who would have been able to give similar testimony; it was just that the defence had a time limit which restricted the number that could be completed in the time available.
So, here is the situation where the tribunal, in what would have to be a totally arbitrary manner, would have to characterise these actions (which are not unlawful, not immoral and not prohibited by the Bible nor by diocesan legislation and codes of conduct of the time) as disgraceful, thereby contradicting the testimony of these 19 people who say they benefited; and then deal with the fact that not only were these actions known about at the time, they did not cause a scandal.
Now, Mr Easton and Mr. Bryant can say until they are blue in the face that they do not accept that just because the respondent has such a high quantity of this testimony, of high quality from sincere Christian men and women, they would lose the case if it went to hearing. I think this is just whistling in the wind and that anyone who agrees with them has not read the evidence.
I think that the tribunal members are, each of them, serious men and one woman who have reputations as, in two cases, experienced and shrewd lawyers, and in the third case, a priest of the Anglican Church. Are they going to risk those reputations by making recommendations to the Archbishop (which is all they can do) that are based on a capricious decision on the evidence? I cannot bring myself to believe that. I would think that, in the event that they were urged to make recommendations in the teeth of the evidence they would not be willing to rely on the obscurity of the tribunal as opposed to a civil court to protect them from scrutiny. They would not want to have their reasons for such a decision and recommendation examined in the cool, clear light of day, in the light of civil and criminal law by other experienced and shrewd lawyers, laying themselves open to the scorn of their colleagues. Would the priest of the Anglican Church wish to have his involvement examined by those who teach ministry and church commentators and found wanting in setting an example of Christian conduct?
This is what will happen. Publicity has been the order of the day despite the best efforts of Mr. Easton and Acting Judge Peter Young, through the presence of observers at the various directions hearings, through my website and by way of personal conversations which any ‘orders’ of the tribunal are powerless to stop.
And that will be the order of the day for a hearing.
It is not that the tribunal members should fear publicity and scrutiny if their decision is soundly based on the evidence. It is just that the PSU and Mr. Easton cannot succeed unless the decision is an exercise in blatant disregard for the evidence.
I also pointed out that the many associated issues with the conduct of the case make it especially undesirable for the case to go to a hearing. There are many subsidiary but important interests of people, those who are directly involved and those who are otherwise connected with the case, and these issues cannot be addressed and resolved by a hearing.
In the second of my articles, ‘Twenty-one reasons why the case promoted by Sydney PSU Director Lachlan Bryant against Drew should, and in a just world must, go to mediation.’ I proffered the solution to these many problems that beset the case: use mediation process to achieve a God-honouring resolution.
The Benefits of Mediation
Having identified and considered the needs of the very many people who are involved in the case, both those directly involved as parties, legal representatives and tribunal members and those indirectly involved but still powerfully affected by the case, it is appropriate to consider the benefits of using a mediation process to bring the case to proper conclusion.
The expertise of the mediator
The trained mediator has skills to bring the relevant parties together to discuss a resolution of the issues between them. This involves providing a safe and respectful environment for this to occur. To do this the mediator will focus the parties’ attention on an agreed set of rules for the meeting(s) that will allow for each person to speak without interruption and without meeting abusive responses. Then the process will be devised to best allow for the real issues – the interests of the parties rather than their positions – to be discovered and discussed.[3] Where at first there seems to be no meeting place can be changed as the real issues underlying the positions are revealed. Not only does this enable a whole new way of looking at the issues to emerge but it also removes the demonization of each party by the other as unreasonable and their behaviour as incomprehensible.
The discussions are not limited by positional bargaining and compromise:
When people, usually lawyers on behalf of their clients, engage in what is called positional bargaining – that is, only discussing the resolution on the basis of the stated position – they start talking about compromise. So, one person wants to receive $500,000, and the other is only willing to pay $300,000. Split the difference and the case is resolved. Not so. Compromise is not a ‘legal’ solution that can be forced on someone. If no compromise is achievable by way of influence, deviousness or sometimes downright lying, then the case cannot be resolved. And if it is achieved by means of disreputable behaviour then it becomes a false settlement, either to be set aside by the Court or simply ignored and the conflict continues, often in an increasingly vitriolic form.
This is because this form of negotiation does not address, firstly the interests I wrote about in the paragraph above (and also see below), nor, secondly, does it have any basis in justice or fairness. Research (which I will not give citations for in this paper) indicates that people are more able to accept an unfavourable result as long as they can see that it was achieved with justice and fairness.
An opportunity is created for a small ‘pie’ to be enlarged:
But a strong reason for not relying on positional bargaining and compromise is the loss of opportunity to ‘enlarge the pie’. If the ‘pie’ to be divided amongst the parties is simply expressed in an either or basis of like and like (e.g. this much cash or that much cash, or one form of property or another form of property, e.g. house or shares), then a great opportunity has been lost to enlarge the pie. This is achieved, firstly, by redrawing the parameters of the case to include other things that the mediation process has uncovered to be of significance to each of the parties. Secondly it enlarges the way in which these other things of significance can be treated.
An opportunity is created for an agreement to be reached that an adjudicated process (court, arbitration or tribunal) does not have the power to order:
Every adjudicatory body whether a court or an arbitration or a tribunal has to be created by an Act of Parliament (in the civil world) or some form of organisational order, decree ordinance or whatever you want to call the enabling piece of paper setting out both the powers and the limits on the powers of the adjudicators[4]. Therefore, what the adjudicator can do is controlled. He or she is prevented from indulging in some whimsical flight-of-fancy in what he or she can order to be the result of the hearing. Therefore, if an arbitrator, for example, can only order that a piece of disputed property is given to one or other of the parties, it is no use asking for an order that the property is sold and the proceeds of sale divided in a particular way between the parties. The adjudicator does not have the power to do this.
But an agreement reached in a mediation can provide for all sorts of solutions to the real issues between the parties and their interests[5]. The agreement can be in the form of an enforceable contract. This by-passes the restrictions on the powers of the adjudicator.
Special concerns can be catered for by involving ‘third parties’ in the agreement:
‘Third parties’ are ones that are not the actual parties to the dispute, but who or which can be vital to the resolution of the real issues, for example a family company, or another member of the family or of an organisation, who are not persons or entities that the adjudicator has any power over. Their involvement might be vital to the carrying out of the order, and yet an adjudicator cannot force them to do anything. But in a mediated agreement such third parties, or their representatives, can be made parties to the agreement and bound by its’ terms.[6]
Utmost transparency of costs
It is one of the dirty tricks that less than scrupulous lawyers engage in: to set in motion a negotiation process, but not to negotiate in good faith. Rather the object is for the other party to be forced into running up legal costs with no result. In a complex series of discussions, the other party is drawn into expecting to be able to settle and to spend more time and money on considering settlement proposals. After a while, despite escalating costs, plus the entrenched idea that just a little more discussion will settle the case without having to go to court, the unfortunate party is like the mouse now transfixed in the murderous gaze of the cat. Pounce! The party is too tired to escape again and meekly agrees to bring things to an end.
But with a mediation you get upfront agreement on the rate of charging by the mediator and the incidentals, such as room hire. There is no room for an open-ended escalation of costs. There is a process that runs its’ course. What constitutes success is not necessarily a total resolution or even a partial one: it can be simply the identification of the issues that require adjudication, after weeding out the peripheral ones. The parties can go forward from the mediation in whatever path they choose – to court, to another mediation, to private discussions, whatever they decide.
Confidentiality of what goes on and what is said in the mediation:
Whether it is details of a commercial deal, a yet-to-be patented invention or admissions and confessions, what is said in the mediation room is confidential from the world at large and the mediator cannot be forced to give evidence in court of what someone might have admitted in the mediation.[7] It does not extend to confidentiality of identity, as such although an agreement between the parties and any third party who can be co-opted into agreeing to be bound to keep the identity secret is possible where publication of identity is particularly sensitive.
Also, what is decided between the parties can be kept confidential by agreement. The parties can agree to a statement simply reporting the resolution of the case without revealing who paid what and who did what.
The emphasis on relationships in a mediation is very important in resolving personal conflict:
Unlike in positional bargaining where the personal relationship between the parties is of little or no importance, in mediation the human dimension of the conflict, the emotional underpinnings based on values and beliefs, and the need to repair relationships the better to prevent conflict in the future is centre-front. This is because of the belief that if the relationship is repaired then the parties can take back control of and responsibility for the resolution of the issues and come to an agreement that acknowledges the needs of all involved (as far as mutually compatible). Further, the experience of mediation is an educative one: the parties can emerge better prepared to deal with other conflicts, with other people, in the future.
Mediation has a variety of processes used depending on the depth of the need for the repair of personal relationships and reconciliation.
Those mediation processes more focussed on the repair of relationships leading to resolution of conflict are called transformative mediation processes. Where the parties involved are members of the same system of values and beliefs, for example, Drew and Pippa on the one hand and the Anglican Church of Australia Sydney diocese personnel, clergy, parishioners and the two complainants on the other hand who are all self-professed Christians, there are mediation processes which ideally work towards reconciliation between Christian people without the sacrifice of finding a proper resolution of the real issues between each of these individuals involved.
Where mediation identifies and addresses the real issues and brings about personal reconciliation there is no refusal to comply with the term of the agreement:
This is a self-evident truth. And, equally, where a settlement negotiation does not discover the real issues, and operates on the surface with positional bargaining; where it does not involve joining people to the mediated agreement who have to perform actions vital to it; when it is conducted between the wrong people who are unable to be involved to the level required to identify and discuss the real issues; where repair of relationship and reconciliation is not addressed; then you get a catastrophe and a continual running sore. Then the terms of the agreement are compromised and most if not everyone left disillusioned and disgusted.[8]
In the next article I will set out what I imagine will happen if the case goes to a hearing by the disciplinary tribunal and compare it with what would be possible if the issues are dealt with by mediation, or a series of mediations.
[1] B.A. LL.B. LL.M.(Hons) ProfCertArb
[2] PSU – Professional Standards Unit of the Anglican Church Sydney diocese.
[3] ‘Positions’ means the public stance that a party has taken on issues: e.g. ‘I am entitled to be awarded damages’ or ‘I want to be given the house.’ A negotiation on positions just means a backwards and forwards argument like ‘We have a good case’ countered by ‘No you haven’t’ (just like kids in a playground dispute) and gets nowhere. But getting under these statements of position to the ‘interests’ is what the skilled mediator does, enabling a proper conversation to take place where each party can start to understand what is motivating the other party in maintaining their position.
A typical example is the ‘Orange game’: there is one orange and two children. Each one wants the orange. Tantrums and tears ensue. Neither will accept half each, but maintains that he or she needs the whole orange. In a typical situation like that of a court or tribunal making an adjudication of the case, the decision will be made for one OR the other child to have the whole orange. In a mediation the question to be asked is: ‘Why do you need the whole orange?’ Then it comes out that one wants the juice and the other the rind. No conflict.
[4] In the Anglican Church Sydney diocese these are called Ordinances. In, for example, Melbourne diocese of the Anglican Church they are called ‘Laws’. Other organisations call them ‘Rules’ and still others, ‘Codes’.
[5] Provided the solutions are not illegal or immoral and do not infringe the concept of ‘the public interest’.
[6] In the Figtree Affair (see www.churchdispute.com ) the tribunal members assured Dr. Dobbs that a major agreed term of the settlement hammered out on the first day set down for hearing of the challenge to it’s jurisdiction would be carried out by the senior minister of Figtree Anglican Church, then (as now 2015) the Rev. Ian Barnett, and the then Bishop of Wollongong the Very Rev. Al Stewart. This proved to be delusional. The Rev. Ian Barnett was proof against even the earnest requests of his then Archbishop the Most Reverend Dr. Peter Jensen to make an agreed announcement to the congregations of Figtree Anglican Church telling the truth about the false claims promoted by the Sydney PSU director Phillip Gerber against Dr. Dobbs by the mentally unwell mother of a mentally unwell 20-year-old woman. The Very Rev. Al Stewart left the position of Bishop and refused to make the video of the announcement that he was requested to do.
[7] That said, of course the other party can remember what was said and institute investigations outside the room to follow up a promising line of inquiry.
[8] Again the Figtree Affair (see www.churchdispute.com ) is a leading example.