ARB-CON-ARB EXERCISE – 500 words

Through the door, running

Hair flowing magically

Welcomes me, my dog.

Baalak Baburo, <https://www.poetrysoup.com/poem/warmest_welcome_1045756>.

Several points came up for me during the exercise. During the initial arbitration I argued my case like I was in court – putting the best possible spin on my case (I was Barbara) and trying to make Kenneth look as bad as possible (and he was doing the same to me). I really was focused on winning the arbitrator over and we both got quite passionate as we spoke. (Bediou et al.) I think this was because we both assumed putting our best case partly meant rubbishing the other party’s. The assumption I had was that because arbitration more closely resembled litigation, that adversarial mode of presenting was the best one to adopt. This probably comes out of mix of what I have seen of litigation in popular culture and my own competitive drive. Looking back, at this stage we were talking at, rather than to each other. Perhaps the nature of the forum promotes extrinsic motivation. (Ryan & Deci)

Underpinning this is the deeper assumption that having being asked to state my case, it was about me, when in reality the rational thing to do would to have been to focus more on Lulu’s needs rather than my own ego or not frame Lulu’s needs in a way the suited my desires. What I take away from that phase was that in practice getting appropriate rules for the arbitration can greatly assist the process, particularly if they make it less adversarial. Which as Camilla pointed out is one of the great advantages of arbitration. It also flows into the design of the dispute resolution process, perhaps arbitration was not appropriate since this was not technical dispute as in IBM v Fujitsu (Stork) or the Hancock case but more like Pittorino v Meynert – a family matter.

Things changed when we moved into the conciliation phase, we shifted to a more intrinsic motivation; (Reiss) recognising that each of us had legitimate interests and that we could potentially accommodate them. Shifting the emphasis from presenting our cases to trying to work things out meant a much richer conversation centred around Lulu’s needs. The assumptions I had was that as Barbara and Kenneth had been together so long they would had had enough residual feeling for each other that they could use those emotions in a positive way to get a fair outcome with good conciliation. This comes from my own experience because even when someone has wronged me or hurt me, allowing vulnerability in to relationship was what deepened it to begin with and even if things cannot be worked out you can at least see why a person might hold the position they do. The importance of getting to that stage for how a party feels about a process was something I definitely took away. After that when the arbitrator ruled against me I still felt the outcome was fair because the process had been fair which goes to what Dr Richard Wally talked about on day one. 

Bediou, B., Mohri, C., Lack, J., & Sander, D. (2011). Effects of outcomes and random arbitration on emotions in a competitive gambling task. Frontiers in psychology, 2, 213. https://doi.org/10.3389/fpsyg.2011.00213.

Stork, A. (1988). The Use of Arbitration in Copyright Disputes: IBM v Fujitsu High Technology Law Journal, 3(2), 241-265.

Richard M. Ryan, Edward L. Deci, 2000, Intrinsic and Extrinsic Motivations: Classic Definitions and New Directions, Contemporary Educational Psychology, Vol 25, Iss 1, Pages 54-67,

Rinehart & Anor v Hancock Prospecting Pty Ltd (S143/2018).

Pittorino v Meynert [2002] WASC 76.

Reiss, S. (2012). Intrinsic and Extrinsic Motivation. Teaching of Psychology, 39(2), 152–156.