Dispute Resolution and Psychology

Transcription

1 Dispute Resolution and Psychology Author: Mark England (02) Affiliations: Founding Committee Member/Acting Chair, Australian Psychological Society(APS) Dispute Resolution and Psychology Interest Group Board Member of the Australian Disputes Resolution Association National Treasurer and Member, APS College of Organisational Psychologists Chair, APS Sydney Branch Affiliate Member, APS College of Forensic Psychologists

2 Background Information, Aims and Hypotheses Psychologists are researching and contributing to the theory and practice of effective dispute resolution, often in conjunction with other professionals. The formation of the Australian Psychological Society (APS) Interest Group on Dispute Resolution and Psychology at the 2009 APS AGM recognises this valuable work that is being done and provides a common point for communication and learning. This poster outlines and explains some psychological and multi-disciplinary aspects of dispute resolution theory and practice. This is to encourage an appreciation of psychological aspects of dispute resolution theory and practice Dispute Resolution Model The following model diagram illustrates the schism that exists between a mediated approach to restoring and building psychological wellbeing versus an adversarial approach to managing disputes via imposed judgement: Mutual Resolution Through Mediation Psychologically healing/developmental v Adversarial war with winners & losers

3 Court-based Dispute Resolution Conflict is a natural result of humans interacting with each other and the environment. Externally imposed judgement of those involved in conflict results in the deprivation of liberty and resources but little attention to psychological needs. Those with or more predisposed to mental illness are more likely to enter, re-enter and remain in the criminal justice system. In 2006 the American federal Bureau of Justice Statistics reported on Mental Health Problems of Prisons and Jail Inmates. The report estimated that 1.23 million jail inmates suffered from mental health problems. The rate of reported mental health disorders was found to be five times greater (56.2%) in the prison population than in the general adult population (11%). Although more men are in prison then men, women in prison were found to have a higher rate of mental health problems (73%) then men (55%). Those with mental health issues in Australia are similarly more likely to enter the prison system. In August 2003 Tony Butler and Stephen Allnutt reported on Mental Illness Among NSW Prisoners, the first large-scale survey of mental illness prevalence among prisoners in Australia. The results reflect those reported by the Bureau of Justice Statistics. 74% of those assessed were found to have at least one psychiatric disorder. For females the rate was 86% versus 71% for males. The study Mental Illness Among NSW Prisoners found that the prevalence of personality disorder was higher among persons separated, divorced or widowed, higher in the prisoner population and in females. The study also found that males were more likely than females to have been convicted for homicide and assault. The most common convictions for both sexes were for assaults, robbery and property offences. In summary, violence and personality disorders are significant issues for society to deal with leading to incarceration. With the high incidence of separation and divorce in society, the impact of increased litigation, loss of resources and incarceration is being strongly felt in the family court system throughout Australia. Professor Richard Chisholm, formerly a Justice of the Family Court of Australia, completed a Family Courts Violence Review on 27 November In the Executive Summary Professor Chisholm writes: More than half the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent, and violence issues often go together with other problems, for example those associated with substance abuse and mental ill-health. Violence is bad for everyone, and particularly dangerous for children, whether or not it is directed specifically at them. This represents a substantial proportion of Australian society and so effective dispute resolution is critical for social wellbeing.

4 Mediated Disputes Provide the Opportunity for Psychological Healing and Social Peace Court litigation processes are adversarial in nature, meaning that the parties concerned aim to win at all costs. Extensive studies of restorative justice approaches to dispute resolution by Dr Heather Strang provide evidence of the limitations of traditional court based justice. They also provide evidence of the strength of alternative approaches. Dr Heather Strang has researched the efficacy of restorative justice in the United Kingdom and Australia. The research covered 2,021 offenders who committed a range of violence, assault, robbery, burglary and property offences. The 11 studies of which 4 were in Australia and 7 in the United Kingdom compared face to face restorative justice conferencing (RJ) with conventional justice (CJ). There was a consistency of results across all research, favoring RJ. Restorative justice led to higher levels of apology on the part of offenders and less desire for revenge by the victims. There were reduced post-traumatic stress symptoms amongst victims and reduced re-offending amongst offenders. The approach was particularly effective for crimes of violence, ranging from minor assault to grievous bodily harm. In an effort to reduce the flood of divorce and separation cases that is plunging the Australian Family Court system into chaos, preliminary Family Dispute Resolution (FDR) procedures have been introduced. Under the Australian Commonwealth Family Law Act 1975 parties are required to attend a dispute resolution process before making an application to court. Before parties are scheduled to meet an assessment is made of the potential for violence. Violence in relation to divorce or separation is a serious social issue. Professor Richard Chisholm, formerly a Justice of the Family Court of Australia, completed a Family Courts Violence Review on 27 November In the Executive Summary Professor Chisholm writes: More than half the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent, and violence issues often go together with other problems, for example those associated with substance abuse and mental ill-health. Violence is bad for everyone, and particularly dangerous for children, whether or not it is directed specifically at them.

5 Approaches to Psychological Healing and Wellbeing through Dispute Resolution Processes The 2009 Global Peace Index of countries of the world ranked New Zealand as the most peaceful country in the world. By comparison, Australia was ranked 19 th. Maori culture is Polynesian in origin and integral to that of New Zealand. The Polynesian culture emphasises the importance of genuine apology and forgiveness as central to the resolution of disputes. On 13 th May 2010 a Forum on Holistic Decision Making was hosted by the Sydney University Centre for Peace Studies. Carmen Harataka spoke on Hawaiian Traditional Knowledge (Ho oponopono), or mental cleansing through mutual restitution and forgiveness. This approach is fundamental to Polynesian cultures. Ho oponopono requires that where kapu or spiritual laws are broken, illness is caused which can only be overcome by forgiveness from the gods or the person with whom there was a dispute. Polynesians and many other indigenous people feel a lack of identity in societies that do not reflect their own traditional values and spiritual beliefs. Carmen explained that attempts at treatment for those indigenous Hawaiians incarcerated in the United States of America typically rely on cognitive behaviour therapy approaches, known pejoratively as straight thinking. Carmen claimed that this is found wanting where is does not address the spiritual needs of the people for a sense of unity in the community, or culture. Psychotherapeutic approaches that address personal and wider community needs may be more effective in promoting psychological healing and wellbeing. Dr Scott Stuart, Professor of Psychiatry and Psychology, University of Iowa Health Care and Director of Iowa Depression and Clinical Research Centre has developed such an approach. Dr Stuart has demonstrated that interpersonal psychotherapy effectively deals with depression. It does this by mending and expanding supportive and meaningful relationships. This proven approach to treatment provides valuable insights for resolving conflicts between related but conflicting parties. Dr Stuart has demonstrated that interpersonal or inter-party disputes may be addressed using a two-phased approach. The approach involves firstly listening and then secondly taking direct action.

6 Conclusions There is considerable scope and corresponding opportunity for the application of research and psychological aspects of dispute resolution. Psychologists are adept at processes involved in identifying conflicts and bringing them to resolution. Hence, dispute resolution is an important area for psychological research and practice. The approach of mediating for mutual resolution of disputes opens considerable possibilities for psychological healing, relationships building and increased wellbeing. Those with mental illness, are prone to violence or otherwise psychologically vulnerable are more inclined to enter the criminal justice system. The high incidence of relationship breakdown in society is putting considerable pressure on the family court system prompting parallel alternative approaches to family dispute resolution. The chance of violence L escalates with relationship breakdown calling for considerable skill in evaluating and facilitating the resolution of family based disputes. Non-adversarial approaches of restorative justice such as conferencing is proven to be more effective than traditional means of justice through sentencing. Psychotherapeutic approaches that encompass social and community needs as well as personal psychological needs may be beneficial approaches to resolving disputes. Approaches to healing the individuals in dispute and their relationships, as well as resolving the dispute, offer the opportunity of resolving potential future disputes. Disputes arise in many spheres of human endeavour other than the directly personal. They include commercial and environmental areas where advances are being made in alternative dispute resolution. Collaborative practice may involve a number of allied professionals as well as the parties to the dispute aiming for negotiation and settlement rather than litigation. The dynamics of which approaches may be more successful and why offers further range for psychological research and involvement.