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Resolution Legal Melbourne

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Mediation for Parents

In 1981, the authors of “Getting to Yes” wrote that “Like it or not, you are a negotiator.”  They were right.  They did not add that if you are a parent, then, like it or not, you are also a mediator, but they should have.

I am lucky to have two great kids, and a fantastic wife who deals with these issues at least as often as I do, but like household with a child to Playstation ratio of 2:1, there are times when mediation is needed. When I studied mediation, after many years of parenting, I noticed that a lot of the principles and techniques that they were teaching sounded really quite familiar.

Does being a parent make you a better mediator, and does being a mediator make you a better parent?  You would have to ask my kids about the second part of that question* but here’s three things I learned from parenting that can make any dispute resolution process a lot more effective.

 

1. First, find out what the yelling is about

Now that my boys are both past the age of 11, I sometimes think it’s safe to leave them in a room together while I go outside to mow the lawn or hang out the washing.  This usually ends well, but sometimes it means that by the time I become aware of the disagreement, it’s because I can hear them from outside the house, and possibly over the sound of my lawnmower.

It is tempting, at that point, to demonstrate the error of their ways by ALSO YELLING REALLY LOUDLY but that doesn’t ever help.**  I know that if there’s going to be any chance of getting past whatever this disagreement may be about, I need to find out what happened about 5 minutes before I walked in.

Asking them to each tell me what they are fighting about is only partly for my benefit.  The main reason for doing this is that it gives each of them the chance to hear how the other person sees the situation. If I can get them each to explain their position calmly, and I can get them to each listen without interrupting, there is a good chance that not only will I know what is going on, but they will each understand where the other person is coming from as well.

It is, of course, much easier to sort these things out if the people having the argument are not already furious with each other.  I tell my kids to come and talk to their parents before things get out of hand, just as I often recommend that two people having a dispute that needs resolving should go to a mediator as soon as possible.  My clients follow this advice about as often as my kids do, but I’m going to keep saying it anyway.

 

2. So tell me what you want (what you really, really want)

It’s good to find out where the disagreement started, but every parent I know is far more interested in finding out how to make the disagreement stop.

Like most people, my children enjoy battling their friends on Fortnite but they do not actually enjoy conflict in real life.  If they are arguing, it’s because one of them wants something and the other person does not want to give it to them.  The problem is that it’s easy for them to get so caught up in winning the argument that they lose sight of what they were trying to achieve.

So, that means my next task is to help them to figure out, and express, what they really want.  Once I know that, it opens up a whole range of possibilities, and we can start to look for a solution that works for everyone.

Imagine the scenario where I walk in and find my children arguing over who gets the last salad in the fridge. ***  At first glance, the logical solution seems to be that they would each eat half of it.  But, I happen to know that while they both like cucumber, only one of them like capsicum and the other one is more keen to get his hands on the lettuce. **** Once we figure that out (and agree that they can feed the carrot to the dog for some reason) they can both get all of what they want instead of just half.

 

3. I should not try to fix it myself

After hearing from both children, my first instinct is usually to tell them how to fix the problem.  This is quick and easy and has one small benefit in that it allows them to find a small amount of common ground by both getting mad at me at the same time.  It makes me feel good, but usually only for around 10 to 12 minutes until my brilliant solution starts to fall apart.

The problem is simple.  My children are pretty good at sticking to agreements if they actually make those agreements and they feel that the agreed outcome is reasonably fair.  However, if I tell them what the solution is going to be, they will generally track me down a few minutes later to tell me that my solution has failed to actually solve the problem and also they are still mad at me.*****

It takes a lot longer to get to a solution if I get them to come up with it themselves.  Sometimes it takes several conversations over an hour or so.  Sometimes one of them will storm out and disappear.  Sometimes I will deeply regret my decision to give up all forms of alcohol.  Still, if I can manage to step back and let them work it out between them, they will generally get to an agreement that they can both live with. More importantly, they can own it instead of having me trying to impose it on them.

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Running a mediation is not quite the same as parenting.  The stakes are usually higher than who gets the last pineapple icy pole, and when I’m mediating I can’t send the parties to their rooms or take away their iPads if they won’t co-operate.  Still, the same principles apply.

A good mediator will always start by helping the parties to explain their positions to each other, then getting them to figure out what they each want, and finally helping them to find a solution that they can both live with.  It takes a little longer, but it’s always worth it.

 

 

* Please do not actually do this

** Trust me on this. I have tried it a few times.

*** The most hypothetical example in history, but please just go with it

**** Which goes really well with tomato sauce

***** This is sometimes fair

 

 

 

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Mediation Needs Secrecy Like a Fish Needs a Bicycle

Like many lawyers who started our careers in the ’90s, I was taught to value secrecy.  I was always told to give away as little information as possible in any dispute.

The reasoning was simple.  All cases have weaknesses, but we should make it as difficult as possible for our opponents to find out about them.  If the case could be settled without anyone ever finding out about those flaws, results would be better.  I was taught that we were not allowed to break the rules of discovery, but we should always find a way around those rules if we could.

To be fair, it’s not only lawyers who think this way.  Many clients have asked me how to go about withholding key information until the start of a trial so we could ambush our opponents with it.  I even had one client who instructed me to proceed on the basis that the document he was holding in his hands at that exact moment did not exist. This was, of course, the end of our lawyer-client relationship.  Unfortunately, that client was not the only person who has ever asked me to ignore or conceal a document.  He, was, however, the only person who has ever tried to remove a document from my possession by taking away a paper copy of an email when the original was still in my inbox.

There are many reasons why a secretive approach to disputes is not a good idea, including the additional costs that get wasted while lawyers fight over whether a document has to be disclosed, to the specific penalties for such behaviour set out in the Civil Procedure Act 2010.  In this article, I want to focus on how such tactics are harmful to the mediation process.

It is usually pretty obvious when a party is trying to avoid disclosing documents, or where their approach is to give as little information as possible.  If a party feels that their opponent is trying to mislead them, this creates anxiety and other negative emotions.

Psychologists believe that those negative emotions can cause a person to engage in adversarial behaviour and that when one party takes an adversarial approach, it is more likely that that the other party will also become more adversarial.

The end result can be a feedback loop where each party’s approach becomes more adversarial until one of them walks out.

I know it goes against what a lot of lawyers have been taught, and it may go against our clients’ expectations, but research, and experience, suggest that a free and frank exchange of information and documents is actually the best way to prepare for a mediation.

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Misleading Advertising – Is Nurofen better than Panadol?

Cases about misleading conduct can be enough to give anyone a headache.  In the case of GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1, we can at lease be confident that the parties came prepared for this.

GlaxoSmithKline is the company that makes and sells Panadol.  Reckitt Benckiser is one of their competitors.  They make and sell Nurofen.  This case involved a claim by GlaxoSmithKline that Reckitt Benckiser had engaged in misleading and deceptive conduct by running ads which suggested that Nurofen was more effective than Panadol for common headaches.  The ads included graphics like this:

 

 

The Court also found that the ads impliedly represented that there was a current adequate foundation in scientific knowledge to support the claims made in the ads.

The Court provided a useful summary of the relevant principles:

  • Conduct is misleading or deceptive if:
    • it has a tendency to lead a person into error, or to believe what is in fact false.
    • there is a real or not remote chance or possibility that it will have that effect
  • The conduct must be:
    • assessed as a whole, viewed in the context of all relevant surrounding facts and circumstances.
    • considered or tested against the ordinary or reasonable members of the class to whom the representation was made or the conduct directed. The question is whether a substantial, or at least a reasonably significant, number of that class is likely to be misled or deceived
  • It is not necessary to prove that the person who made the representations intended to mislead or deceive
  • Where the conduct or representation is in the form of an advertisement, the Court must look at:
    • the “dominant message” or “general thrust” of the advertisement
    • the whole advertisement, because context is or may be important.
    • the external context in which a consumer is likely to view an advertisement. 
  • There are no special principles that apply to comparative advertising. However, a comparative promotion of a product necessarily indicates that the advertisement is not “mere advertising puff”, but involves representations of fact which are either true or false
  • Television commercials “will be seen by the casual but not overly attentive viewer viewing a free-to-air program with only a marginal interest in the advertisements shown between the segments of the program. In that context it will be the first impressions conveyed to that viewer, rather than an analysis of the cleverly crafted constituent parts of the commercial, which will be determinative.”
  • It can be misleading to make a statement which implies that there is an adequate scientific foundation in scientific knowledge to justify it if, when taken in its context the scientific statement quoted does not provide a proper foundation.
  • It can be misleading for a corporation which disseminates information not to put forward sufficient information to avoid the possibility that the recipient may be misled

In this case, Reckitt relied on a clinical trial from 1996 that supported its claims.  However, there had been other studies done since 1996.  Two of those studies, which were also clinical trials, returned inconclusive results. They did not support the 1996 study, but they also did not prove that the 1996 study was wrong.

There were also two “meta-analyses”, where the researchers did not conduct clinical trials, but gathered as much available data as possible to see if there was a clear difference between the two products.  Those “meta-analyses” did not directly contradict the 1996 study, but concluded that the based on the present state of scientific knowledge it was not possible to justify a claim that Nurofen was better than Panadol.

Reckitt argued that the 1996 study was valid and none of the later studies had shown that the conclusions of the 1996 study were invalid or unsupportable. Reckitt claimed that it was not misleading to run ads based on that study.

The Court did not accept that argument, but found that it was misleading to claim that Nurofen was better than Panadol when there was only one study that supported that claim and the balance of the studies did not support it.

 

This case is a reminder that a business cannot make claims in its advertising unless those claims can be supported.  Even if a business can find a study to support its claims, it can still be misleading to refer to just that one study and not other studies that may have reached a different conclusion.  Businesses need to be especially careful when claiming that their product is better than a rival product. If an ad includes any unsupported claim or “half-truth”, there is a serious risk that the owner of the rival product will pursue a claim.

I still do not know whether Nurofen is better than Panadol, but I do know that neither one of these products will cure the headaches that you risk causing for yourself if you run a comparative advertising campaign without running it past your lawyer first.