{ Dr Lisa Toohey,

Director, Dispute Resolution Programs

UNSW Faculty of Law

The 'Behavioral Turn' in Mediation:

Implications for Mediation Theory

Which of these

choices allows a

person greater self-

determination?

Which of these

choices allows a

person greater

autonomy?

Consider these two sets of choices:

What is a behavioural turn?

A ‘turn’ denotes a shift in practice and theory

Behavioural as including, but broader than just neuroscience

Social Neuroscience

Neuropsychology

Behavioural Economics

Broadly, they relate to the science of human decision making and look at the role of ‘choice architecture’

Popularised Neuroscience

Popularised Behavioural Economics

{ What is their significance for the theory and practice of mediation?

Behavioural insights have the capacity to transform mediation practice

Is there clarity on the role of autonomy and self-determination in mediation?

Autonomy and Self-determination are often considered “the controlling principle” of mediation (Bagshaw)

Usually said to include:

active & direct participation,

informed consent as to process and outcome,

voluntariness in decision,

absence of coercion.

Behavioural insights seriously challenge many of these features

How does

Support or undermine autonomy and self-determination?

The dominant approach is a ‘toolbox’ approach:

“Here are fantastic insights that you can use in your practice”

However, I argue we need to think more cautiously:

1. The toolbox approach has normative/value laden aspects

2. In somerespects behaviouralism can undermine self-determination & autonomy (do they even exist?)

3. In other respects behaviouralism can promote self-determination & autonomy

Use of behavioural sciences in mediation

Compared with

There is no simple ‘take’ home messages from research on how best to support autonomy and self determination

{

The challenge: (re)thinking autonomy and self-determination in mediation theory

Accommodating a reality where there is no such thing as ‘free’ or ‘rational’ choice

Two major directions for a research agenda

Exploring theoretical approaches to self-determination and autonomy & clarifying their meaning

Cross-referencing theories from the ADR field with those of other discipline, such as philosophy, medical law, ethics

Better understanding how practitioners use and interpret behavioural insights

Information experience – use of technical / popularist resources

Policy responses, such as mediator standards and implications