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Managing Disputing Party Anxiety

Managing Disputing Party Anxiety

How can you manage party anxiety in the courtroom?

 

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The higher the anxiety, the lower the communicative ability. So one of the things that I will say to people, and you possibly remember this from the workshop, is that if I were going to draw on a blackboard a model of the 10,000 word lecture on communication, it would have one arrow going up and one going down. And the arrow going up would end in the word comfort. And the arrow going down would end in the word threat. So the ideal of all communication is to increase comfort and lower threat.

 

So it isn’t that the judge’s role is to make the person feel as if they’re lying in a hammock in Hawaii and just having a chat with a mate, not at all, but they need to make sure that the sense of threat is lessened so that the person can actually respond in ways that are fair. So that I can tell you, as you earlier said, I can tell you my story.

 

Did you or did you not do such and such on the 13th of August? If all I’m allowed to do is answer yes or no to that question, I’ve got nowhere to go. But if I’m asked, why was it that you failed to report to police as planned? I need to be able to say, my wife went into labour and I don’t speak English and I have to go and call the neighbour and I completely forgot. But if I can’t say any of those things, and there isn’t adequate provision for interpreters, that might be one cause of a miscarriage of justice. That’s a very obvious one.

 

Most of them are much less obvious because where in Australia, certainly, people’s language is the cultural barrier. We almost, invariably manage it by having a properly accredited interpreter present.

 

When it’s not language, when it’s about how the person is making themselves understood, what they’re saying and not saying, that they need to understand the cultural significance of what it is that they may be holding back. Because for us a courtroom, however much we find it anxiety provoking, is not an unfamiliar setting. Someone for whom everything to do with courts and police is a threat because they’ve been corrupt in the country of origin. Or they’ve been violent in the country of origin. That person will not do their best in that setting.

 

And the Judge may have to say, Mr. So and So, Mr. Davis, can I encourage you, you look as if you’re not answering that question. Can I encourage you to answer that question to the best of your ability? Say whatever it is you need to say. So just saying that is enough to have the person feel that the Judge is there at least listening to them. This is not that it’s a break from you’re old situation in which you as a poor person or a person of no influence could place yourself in jeopardy by answering such a question.

 

Base everything on the idea of a fear of [equal] and on the merits judicial system, as you do in the UK. I mean our system is your system. But if people don’t perceive that and they’re cultural, if you like, their cultural head is elsewhere then they’ll hold back on saying the very thing that could be of use to them. The very thing that could make their failure to report or failure to do something understandable.

About the mediator

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Joanna has been working with groups as a mediator for over 20years in highly sensitive inter-racial and political settings all over the world. In 2001 she became chairman of LEADR, Australia’s largest non for profit dispute resolution organisation and in 2006 became a visiting fellow at LEADR. She was a member of the administrative appeals tribunal for 10 years and later a member of the National Native Title Tribunal where she mediated land cla... View Mediator