The “Behavioural Turn” in Mediation: Rethinking Autonomy, Choice and Ethics

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This post summarises and reflects on ideas first developed in the co-authored article, “The ‘Behavioral Turn’ in Dispute Resolution: Implications for Mediation Theory and Practice”, originally published in the Ohio State Journal on Dispute Resolution 41(2) (2025).

Across many disciplines, behavioural insights have transformed how we understand human decision-making. Psychology, behavioural economics, and social neuroscience increasingly reveal the extent to which human choices are shaped by cognitive biases, stress, fatigue, emotional load, social norms, and the framing of options. In a field such as mediation, which has long placed party autonomy and self-determination at its heart, these insights have (and will continue to) be transformed by these behavioural insights.

What is the “Behavioural Turn”?

The “behavioural turn” refers to a shift towards scientific explanations of human behaviour that highlight how decisions are influenced by context, environment, and cognitive processes rather than by unfettered individual choice. Much of this is familiar to mediators, reflecting many of their existing practices and enriching rather than disrupting existing practice.

Concepts such as confirmation bias, priming, loss aversion, and the endowment effect describe patterns practitioners see daily in the negotiation room. Neuroscience gives additional insights, showing how stress and heightened emotion increase reliance on mental shortcuts, making it harder to engage in the type of rational, future-orientated decisions that resolve disputes.

These theories help explain why tools such as reframing, structured processes, and careful management of tone and environment have been such effective skills for mediators to help guide participants towards management of conflict.

Beyond the Toolkit: Theoretical Implications

Behavioural insights do also have implications for mediation theory – challenging some of mediation’s foundational assumptions, particularly voluntariness, neutrality and autonomy. (See also the fantastic post on this blog by Jon Crowe and Rachael Field).

New behavioural knowledge challenges the idea that mediation can be a purely voluntary process in which the mediator is a neutral facilitator. Behavioural determinism also raises the question of whether mediators can ever truly “stand back” and avoid influencing outcomes. Mediators have multiple tools at their disposal to nudge or encourage the parties’ choices through subtle cues, phrasing, or tapping into or triggering particular cognitive biases.

“The ‘behavio[u]ral turn’ prevents us from naively accepting the convenient fictions of mediator neutrality and participant autonomy within conflict resolution activities.”

Rather than undermining mediation, this shift calls for a reassessment of its ethical foundations. We suggest a “compatibilist” understanding of autonomy. This recognises that people act with a sense of agency even when choices are shaped by antecedent factors, and we believe this offers a more realistic and conceptually honest approach. It also acknowledges that mediators inevitably influence the process, and foregrounds that this influence carries ethical responsibilities.

The Ethical Challenge: What should mediators do?

There is plenty of scope to use behavioural insights in a positive way: reducing cognitive load, supporting informed decisions, minimising the impact of bias, or helping parties regulate strong emotions. But they can also be misused. Poorly designed processes or overly directive behaviours can prime parties towards settlement in ways that privilege efficiency over genuine engagement or fair outcomes.

This highlights the need for a strengthened ethical framework. Approaches grounded in contextual and relational ethics offer a way forward and are developed in the work of Field and Crowe as well as Zhao and Hardy and Rundle. These frameworks see self-determination not as atomistic independence, but as relational participation supported by the mediator’s awareness, reflection, and transparent engagement with ethical considerations.

Conclusion

The behavioural turn may ultimately shift how we see the mediator, moving away from the dated idea of a “neutral helper” to a skilled conflict specialist who guides, coaches, and supports parties in understanding their own responses to conflict. This reframing aligns with long-standing critiques of neutrality and may offer a more coherent account of the mediator’s real work.

At the same time, new behavioural insights remind us to be vigilant. Without a robust ethical foundation, behavioural tools risk becoming mere techniques of persuasion. We should instead be using them to gain a richer, more honest account of how humans make decisions, and using them to support parties in mediation in an ethical way.

As we say in our article:

“Behavio[u]ral insights hold particular appeal for people whose daily work is the business of managing conflict… yet they also present an interesting dilemma for the mediator’s professional identity as an agent of self-determination.”

Behavioural insights do not diminish the value of mediation. Rather, they invite deeper reflection on its philosophical underpinnings and ethical commitments. The challenge ahead is to articulate frameworks that acknowledge influence without slipping into a mechanistic view of human conflict (one where conflict experts can simply push human ’buttons’ or nudge towards outcomes).

What we need is to embrace a more nuanced understanding of autonomy and redefine the core theories of mediation to reflect new scientific insights.

This conversation, already underway within mediation communities of practice and scholarship alike, is one of the most important that we as dispute resolvers can have.

Full text of the article in the Ohio State Journal on Dispute Resolution is in the PDF below.

Toohey Behavioural Turn.pdfDownload

Self-Sacrifice in Mediation: Exploring the Work of Costly Moves

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By Elenne Ford

When people find themselves locked in conflict, the usual advice is to stand firm and assert their position, interests and rights. Self-assertion dominates our cultural playbook. The titles of popular conflict resolution books give the flavour succinctly: Getting to Yes: Negotiating Agreement Without Giving In;1 I Wanted Fries with That: How to Ask for What You Want and Get What You Need;2 Your Perfect Right: Assertiveness and Equality in Your Life and Relationships.3 Yet in many situations, insisting on one’s way only deepens wounds, escalates hostility, and pushes relationships into deadlock.

Alongside this dominant self-assertion pathway, mediation practice sometimes relies on a different cluster of actions and behaviours. Rather than demanding rights or ‘repayment’ for wrongs, parties make concessions, offer conciliatory gestures, apologise, or forgive—sometimes as strategic compromises, but at other times in ways that involve voluntarily bearing a meaningful personal cost.

These voluntary and costly moves, when they involve the relinquishing of something deeply valued or rightfully held, are not standard objects of analytic focus within negotiation theory. Rarely have they been grouped together and analysed as a distinct category with their own  logic and relational impact. While concessions are a routine feature of mediation, here the term self-sacrifice is used to refer to a narrower class of actions involving the voluntary relinquishing of something meaningfully valued or rightfully held at a cost to the self without expectation of reciprocal gain.

Understood as forms of self-sacrifice when they involve such cost, these actions require giving up something meaningfully connected to the self for the sake of another or the relationship in response to conflict. While seldom named as self-sacrifice or analysed as such in mainstream conflict-resolution theory, self-sacrificial actions quietly operate in everyday life—and, I suggest, within mediation practice—where they may help restore trust, soften hostility, and open pathways toward reconciliation that may otherwise remain inaccessible.

Mediation theory has largely noticed the moves—concessions, apologies, forgiveness, and other costly actions—but has paid less attention to the deeper work some of those moves can perform—the voluntary absorption of cost, the relinquishing of rightful claims, and the re-ordering of relations between parties.

Self-Assertion vs. Self-Sacrifice

Self-assertion is widely understood as a personal right—the act of standing up for one’s interests or opinions. In moderation, it can be healthy and necessary. But when used indiscriminately, especially in high-stakes disputes, it often backfires, triggering retaliation, escalating emotions, and entrenching divisions.4

By contrast, self-sacrifice is commonly defined as the giving up of one’s interests, or wellbeing to help others or advance a cause.5 It might sound extreme, yet even modest sacrifices—conceding a point that matters deeply, offering an apology, or forgiving an offence—when voluntary and appropriate to the relational context can alter the dynamics and relational fabric of a conflict.6 In contrast to the prominence of self-assertion, however, self-sacrifice rarely appears as an articulated option in a mediator’s conflict resolution toolkit.

Accordingly, my research asks: What is the relationship between self-sacrifice of parties in the mediation of seemingly intractable interpersonal conflict and potential pathways for resolution of such conflict?

Sorokin’s Five Dimensions of Creative Altruism

To explore this question, I draw on the work of sociologist Pitirim Sorokin (1889–1968), who described five dimensions of ‘creative altruism’:7 intensity, purity, adequacy, duration, and extensity. Among these, intensity—how costly an action is to the self—relates most directly to self-sacrifice. It captures acts that impose real loss or risk on the giver, such as apology, forgiveness, surrendering rightful claims.

Rather than abstract virtues, such costly gestures may form part of the often-invisible infrastructure through which reconciliation becomes possible in mediation.

Transactional and Relational Mechanisms

Self-sacrifice may operate through two broad mechanisms:

1. Transactional Mechanism

Conflict often produces a relational deficit—a sense that something is owed. This debt can be ‘collected’ through self-assertion or ‘absorbed’ through self-sacrifice.8 To forgive, apologise, or concede is to bear the cost oneself, thereby discharging the debt.9

2. Relational Mechanisms

Beyond the act itself, self-sacrifice can set relational dynamics in motion. These may include trust activation, triggered reciprocity, empathy arousal, re-interpretation of the other, and a cooperative orientation—each of which can reshape how parties engage with one another.10

Together, these mechanisms may help explain why costly gestures sometimes succeed where negotiation stalemates persist.

Why Cost Matters

Across disciplines, scholars suggest that costliness matters. An apology is often perceived as more credible when it carries risk or vulnerability; a conciliatory gesture more persuasive when it involves sacrifice. As conflict scholar Christopher Mitchell11 observed ‘The greater the sacrifice involved, the more likely it will be evaluated as a credible change.’

Costliness, however, is not determined solely by the scale of an action. Even small sacrifices may carry significant personal or relational cost to the person making them. Offering patience when irritated, extending kindness when resentful, or taking the first step toward reconciliation all involve relinquishing pride, comfort, or control. Such acts can initiate meaningful relational shifts.

Ambiguity and Risk

Self-sacrifice is not without danger. It may be ignored, resisted or exploited, and can harm the giver if it reinforces unhealthy dynamics. Sorokin’s adequacy dimension captures this ambiguity by asking whether an act of sacrifice actually produces constructive outcomes.

Conclusion

Intractable conflict often appears irresolvable because parties are locked in cycles of self-assertion. Yet interdisciplinary research suggests another possibility worth examining: self-sacrifice as a distinct but under-theorised pathway. By absorbing costs rather than demanding repayment, parties may alter the dynamics and relational balance of conflict.

In mediation, this does not mean encouraging people to become doormats. Rather, it raises the possibility that costly, appropriate, voluntary acts—risky, and often counter-cultural—may function as meaningful interventions. Because self-sacrifice remains underexplored in conflict resolution scholarship, it warrants closer attention. My research seeks to analyse whether and how such actions shape pathways towards resolution, through fieldwork with mediators and parties to conflict.

Author Biography

Elenne Ford is a dispute resolution consultant with a long-standing background in law and mediation. Elenne brings a sustained commitment to transforming conflict into pathways for connection and growth. Elenne’s professional experience spans several decades as a barrister and mediator, complemented by ongoing study in counselling and peacemaking. Elenne is currently undertaking a PhD at the University of Queensland, examining intractable interpersonal conflict and the role of self-sacrifice in mediation, with a particular focus on how relational repair may be enabled through voluntary, redemptive self-giving. Grounded in a relational understanding of human wellbeing, Elenne’s research and practice centre on fostering constructive, relationally attuned responses to conflict.

References

  1. Fisher, R., Ury, W., & Patton, B. (2011). Getting to yes: negotiating agreement without
    giving in (3rd , updated and revised ed.). Penguin. ↩︎
  2. Fish, A. (2020). I Wanted Fries with That: How to Ask for What You Want and Get What
    You Need. ↩︎
  3. Alberti, R., & Emmons, M. (2017). Your Perfect Right: Assertiveness and Equality in Your
    Life and Relationships. ↩︎
  4. Pruitt, D. G., & Nowak, A. (2014). Attractor landscapes and reaction functions in escalation and de-escalation. The    International journal of conflict management, 25(4), p388. Hargie, O. (2021). Skilled Interpersonal Communication : Research, Theory and Practice. Taylor & Francis Group p339,340. ↩︎
  5. Axinn, S. (2010). Sacrifice and Value: A Kantian Interpretation (1 ed.). Lexington Books/Fortress Academic. P3,5. Bahr, H. M., & Bahr, K. S. (2001). Families and Self-Sacrifice: Alternative Models and Meanings for Family Theory. Social Forces, 79(4), 1232; Rosati, C. S. (2009). Self-Interest and Self-Sacrifice. Proceedings of the Aristotelian Society, p324; ↩︎
  6. Molander, P. (1985). The Optimal Level of Generosity in a Selfish, Uncertain Environment. The Journal of Conflict Resolution, 29(4), 612,613,617. Cloke, K. (2001). Mediating Dangerously: the frontiers of conflict resolution. Wiley/Jossey-Bass p90. Barkat, J. S. (2019). Reaching for ripeness: promoting negotiation through unilateral conciliatory action. The International Journal of Conflict Management, 30(2), 184 ↩︎
  7. Sorokin, P. A., & Post, S. G. (2002). The Ways and Power of Love : types, factors, and techniques of moral transformation:pbk (Timeless classic paperback ed.). Templeton Foundation Press. ↩︎
  8. Keller, T. (2022). Forgive: Why Should I and How Can I? (1 ed.). Penguin Publishing Group p59 ↩︎
  9. Keller, T. (2022). Forgive: Why Should I and How Can I? (1 ed.). Penguin Publishing Group p209,210 ↩︎
  10. Coleman, P., & Deutsch, M. (2015). Morton Deutsch: a pioneer in developing peace psychology. Springer (Vol 30) pp. 24, 50,51); Van Lange, P. A. M., & Righetti, F. (2009). Willingness to Sacrifice. In H. T. Reis, &, & S. Sprecher (Eds.), Encyclopedia of Human Relationships. Thousand Oaks Thousand Oaks, California: SAGE Publications, Inc. p. 1690; Barkat, J. S. (2019). Reaching for ripeness: promoting negotiation through unilateral conciliatory action. The International Journal of Conflict Management, 30(2), p. 181,184; Schumann, K., & Dragotta, A. (2021). Empathy as a predictor of high‐quality interpersonal apologies. European Journal of Social Psychology, 51(6), p906 ↩︎
  11. Mitchell, C. R. (2000). Gestures of Conciliation : factors contributing to successful olive branches. Macmillan. p157 ↩︎

Challenges and Disqualifications to Arbitrators in ICSID Arbitration: New Development or Confusion?

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Sitong Li
PhD Student (Chinese University of Hong Kong)

International dispute settlement mechanisms have significantly proliferated in recent decades, playing a central role in global governance. The volume of litigation before these international courts and tribunals is also on the rise. Among the various international dispute settlement mechanisms, investor-State arbitration plays a significant role. Investor-State arbitration can take place under various rules, one of which is the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention).

ICSID arbitrators’ lack of independence and impartiality has long been considered a threat to the legitimacy of the ICSID system. Considering the large sums of money involved in ICSID arbitration and the public interests at stake, the obligations of arbitrators to be impartial and independent are crucial in today’s international arbitration landscape.

The existing substantive standard for the challenge and disqualification of ICSID arbitrators is stipulated in Article 57 and Article 14 of the ICSID Convention, which is the “manifest lack of” independence and impartiality standard. Article 14(1) of the ICSID Convention sets forth the qualities that ICSID arbitrators should possess, which stipulates “persons designated to serve on Panels shall be persons, …who may be relied upon to exercise independent judgment.” According to Article 57, a party may propose the disqualification of an arbitrator “on account of any fact indicating a manifest lack of qualities required by paragraph (1) of Article 14…” This specific standard of ‘manifest lack’ of independence and impartiality is unique among arbitration rules, as no other arbitral institutions or arbitration legislation uses this expression.

The language of Article 57 and Article 14 indicates a relatively high burden on the party that seeks to challenge the arbitrator compared with the standards adopted in international commercial arbitration. However, it is troubling that the existing legislation does not offer clear guidance for the understanding of this standard, and therefore, the interpretations adopted by different ICSID tribunals are often ambiguous and extend beyond a strict application of legal rules.

Decision-makers have developed various new interpretations of the ‘manifest lack of’ standard. In Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, which is the first ICSID challenge decision (not public), the two unchallenged arbitrators held that the facts for the disqualification of an arbitrator must be established to show: “not a possible lack of the quality [of independent judgment under Article 14] but a quasi-certain, or go as far as possible, a highly probable one.”[i] Some subsequent challenge followed this strict interpretation. For example, Suez, Sociedad General de Aguas de Barcelona SA and InterAguas Servicios Integrales del Agua SA v. The Argentine Republic, ICSID Case No ARB/03/17 and Participaciones Inversiones Portuarias SARL v Gabonese Republic, ICSID Case No ARB/08/17.

However, the development trend reveals that, this strict “quasi-certain” approach has been substituted by other interpretations. For example, in Compañia de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/97/3, the unchallenged members criticized the high bar standard (the “quasi-certain” standard) established in Amco Asia and argued that the appropriate standard should be whether the relationship is “significant enough” to raise a “reasonable doubt” about the challenged member’s capacity to render a decision independently and impartially.

While several scholars have examined this development process, most existing studies focus on cases resolved at least nine years ago. Recent disqualification decisions represent an under-explored area containing several new issues that warrant further research. The author has examined all publicly available decisions on the challenge of ICSID arbitrators, in order to take a critical look at the standard for challenging ICSID arbitrators. Special attention is given to new developments and obstacles raised in recent years by conducting a thorough case study. The author finds that in recent years, the ICSID tribunals introduced additional supplementary requirements when interpreting this “manifest lack of independence” standard.

For example, in İmeks İnşaat Makina Elektrik Konstrüksiyon Sanayi Limited Şirketi v. Turkmenistan, ICSID Case No. ARB/21/23, the unchallenged arbitrators argued that whether the lack of independence is ‘manifest’ should be the result of an “extensive argumentation and analysis…as long as it is sufficiently clear and serious.” ‘Manifest’ does not mean that “the process of analysis must necessarily be easy or simple, or that little reasoning or argumentation is needed to justify a disqualification.” The unchallenged arbitrators therefore emphasized that the process of interpretation requires extensive discussion.

Another development is manifested in Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. Argentine Republic, ICSID Case No. ARB/03/19, where the Annulment Committee did not adopt any specific interpretation established by ICSID jurisprudence; instead, the Committee proposed that “it is within the Tribunal’s reasonable discretion to perform a qualitative assessment” in terms of the examining whether or not there is a “manifest lack” of independence and impartiality and to “identify certain criteria” that the Tribunal considers “particularly relevant” concerning the assessment.

As a consequence, the interpretation of this “manifest lack of independence” standard has undergone a process of evolution, and in recent years, some ICSID tribunals have further supplemented their rulings with new interpretations of this standard. However, the ICSID tribunal’s interpretation of this standard should not be unrestricted and entirely unfettered. It is a broadly recognized phenomenon that, when an adjudicator is determining disputes based on the text of a treaty or a statute, it may give the relevant provisions a meaning different from what their drafters intended. The reasons for this deviation of rules in judicial practice are multiple. In order to examine to what extent this deviation is permissible, the functions of the dispute settlement mechanism and the functions of the adjudicator within that dispute settlement mechanism should be examined. A proper interpretation of the ICSID arbitrator’s functions requires a precise analysis of the functions of ICSID as an investor-state dispute settlement mechanism.

Author Biography

Sitong Li is a PhD student at the Chinese University of Hong Kong. She is an awardee of the Hong Kong PhD Fellowship Scheme (HKPFS) and a recipient of the CUHK Vice-Chancellor’s PhD Scholarship Scheme. She graduated with an LLB from Shandong University (2021, China). She holds two LLM degrees, the first from Cornell Law School (2022, US) and the second from Leiden University (2024, Netherlands, Cum Laude, Adv. LLM in International Dispute Settlement and Arbitration). She pursues her research on international commercial and investment arbitration, private international law, and comparative law.

[i] Tupman., W. Michael, “Challenge and Disqualification of Arbitrators in International Commercial Arbitration,” in International and Comparative Law Quarterly 38, no.1 (1989): 26-52, at 44.

Emotionally Responsive Mediation: Reforming Personal Injury Dispute Resolution

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By Dr Tina Popa, (Senior Lecturer in Law), Dr Christina Platz (Senior Lecturer in Law), Dr Kayleigh Young (Clinical Psychologist) and Dr Kate Jackowski (Forensic Psychologist)

Introduction

Personal injury (PI) disputes are emotionally charged legal processes, as they often involve physical injuries, trauma and psychological distress (Akkermans, 2020). This means that injured claimants can frequently have a desire to have their non-legal needs addressed through acknowledgement and or a desire for an apology (Relis, 2009). Dispute resolution (DR) process, such as mediation, are frequently used to resolve PI claims and have potential to hold numerous advantages over trial (for an overview of DR see Field, 2021). While mediation is promoted as a more human-centric alternative to litigation, recent research reveals that current practices fall short of addressing the emotional needs of claimants (Popa & Douglas, 2019). Lawyers play an integral part in the way mediation is conducted (Rundle, 2009; Douglas & Batagol, 2014). A lawyer’s role in mediation can range from provision of advice before mediation to higher levels of involvement, whereby lawyers may sideline emotions in favour of legal principles, strategy and the desire to attain a favourable fiscal outcome for their client. This blog post synthesises theory with findings from a 2023 empirical interdisciplinary study (combining principles of law and psychology), of Victorian PI lawyers and proposes reform directions to enhance emotional responsiveness in mediation.

Lawyer Perceptions and Emotional Gatekeeping

The 12 Victorian PI lawyers interviewed in the study consistently recognised the emotional toll of PI disputes, noting that clients often suffer from depression, anxiety, and post-traumatic stress. One participant described clients as “unhappy from two different perspectives. First of all, the pain… chronic pain, need to take medication… The other thing is the process… you get treated like a number without any dignity.” (Interview with Anderson). However, lawyers’ professional roles limit emotional engagement. As Bennett noted, “most clients have got plenty of people to sympathise with them. What they need from you is to do your job.”

Consistent with previous studies, the lawyers in this study were extremely cognisant of their clients’ emotional state. They recognised that PI claims have a huge emotional and legal component, and they were attuned to their clients’ non-legal needs (such a desire to have their story told or to feel heard). However, they were assertive in their description that mediation as a process did not cater to the emotional needs of their clients. First, client rarely faced the wrongdoer and defendants were often not present at the mediation and were mostly represented by insurers. Second, they were reluctant to allow their clients to speak because they risked revealing too much and that could jeopardise their legal claim should it proceed to trial. Third, some lawyers were even cognisant of re-traumatising their client, saying they did not need to relive the traumatic event, to protect their client but to also guard their own wellbeing. Lawyers in this study were not only shielding their clients from emotional retraumatising, but they acted as navigators in the legal process. In that sense, they treated mediation as a step in the adversarial process, focusing on the best outcome, legal strategy and financial compensation. 

This strategic orientation reflects broader systemic issues pertaining to legal training that prioritises doctrinal rigour over emotional intelligence. Lawyers thus act as emotional gatekeepers, acknowledging the emotional component of the dispute but rarely addresses it substantively, a finding consistent with previous studies (Relis, 2009; Tumelty, 2021).

Mediation and Procedural Justice

Mediation is often framed as a process with promise to cater to emotional needs, and to allow claimants to tell their story and feel heard (Jones & Bodtker, 2001). This is reflected in non-adversarial approaches to justice, including procedural justice and therapeutic jurisprudence (King et al, 2014). Yet, our study found that lawyers frequently dominate mediation, excluding claimants from direct participation. This undermines procedural justice principles such as voice, neutrality, respect, and trust (Hollander-Blumoff & Tyler, 2011; Tyler, 2007). Emotional narratives are filtered or suppressed, and mediation becomes a vehicle for legal efficiency rather than emotional repair.

As Bennett, a participant in the study reflected, “Clients are pretty much shut out of it, really… plaintiffs rarely get to see the inside of the mediation room.” Even when claimants are present at mediation, their participation is highly structured and limited. Taylor described a practice where clients “prepare something in advance and say what they want to say… usually they talk about the impact on them, and it can be incredibly moving.” While this offers some opportunity for voice, it remains constrained by legal strategy and procedural norms.

Reform Directions

To address these shortcomings, the study proposes several reforms grounded in interdisciplinary scholarship.

  • Trauma-Informed Practice

Trauma-informed practice offers a framework for creating emotionally safe mediation environments. Lawyers (and mediators) should receive training in psychological principles to better manage trauma and distress (Katz & Haldar, 2016).

  • Legal Education Reform

Legal education must expand to include emotional intelligence, reflective practice, and client-centred communication. While ADR is now embedded in the Priestley 11 curriculum, the teaching of these competencies remains limited and often elective (Douglas & Akin Ojelabi, 2024). Making them compulsory would better prepare future lawyers to engage with the emotional realities of PI claims.

  • Professional Supervision

Professional supervision, modelled on psychological practice, could support lawyers in managing the emotional complexities of their work. The Psychology Board of Australia’s revised Code of Conduct, effective December 2025, mandates regular self-reflection and peer consultation to manage burnout and enhance client outcomes. A parallel framework in law would provide structured support for lawyers and improve client relationships.

  • Legal Design

Legal design principles can be used to reimagine mediation structures that prioritise claimant voice and emotional expression. Human-centred design, which places user experience at the heart of process innovation, offers tools for redesigning mediation to be more accessible, empathetic, and responsive (Hagan, 2020; Toohey et al, 2019).

Conclusion

Personal injury mediation must evolve beyond procedural containment to embrace emotional responsiveness. By embedding psychological insights, educational reform, and human-centred design into legal practice, the profession can better support the wellbeing of injured claimants. These reforms not only improve outcomes for clients but also enhance the integrity and effectiveness of the legal system.

Authors Biography

Dr Tina Popa is a Senior Lecturer in Law at RMIT University. Her research and teaching focus on tort law, health law, psychiatric harm, law and wellbeing, and appropriate dispute resolution. Dr Popa researches legal issues related to medical negligence compensation, no-fault compensation systems, and psychiatric harm, as well as non-adversarial approaches to justice in tort and health law. With postgraduate qualifications in psychology, she is developing a research focus at the intersection of law, psychology, and wellbeing in the legal profession.

Dr Christina Platz is a Senior Lecturer at the School of Law, RMIT University. Dr Platz is an NMAS/ AMDRAS-accredited practicing mediator. Her teaching and research focus intellectual property with emphasis on copyright law and technology as well as appropriate dispute resolution and emotion in conflict. Her research has been published in leading international and Australian journals including the European Intellectual Property Review as well as Psychiatry, Psychology and Law and has presented her scholarly work at national and international conferences.

Dr Kayleigh Young is a Clinical Psychologist and Board-accredited supervisor with extensive experience across clinical, forensic, and organisational settings. She has delivered assessment, therapeutic intervention, supervision, and workplace services for a wide range of organisations. Kayleigh specialises in strengthening organisational capability through evidence-based wellbeing initiatives, employee assistance services, critical incident support, training, leadership coaching, and peer support programs. Her work focuses on creating psychologically safe workplaces that enhance wellbeing, engagement, and performance. Passionate about mental health and education, Kayleigh—alongside Workplace Conversations co-founder Dr Kate Jackowski—design and deliver tailored, interactive training across industries, with a particular interest in wellbeing in the legal profession

Dr Kate Jackowski is a registered Forensic Psychologist with expertise at the intersection of psychology, criminology, and the law. She specialises in staff wellbeing, psychological safety, and the impacts of stress in high-pressure environments. Her experience across high-risk settings, together with her doctoral research, has shaped her focus on wellbeing, self-care, and career longevity, offering unique insight into legal and other demanding workplaces. Skilled in facilitating evidence-based, engaging, and psychologically safe group conversations, Kate—together with Workplace Conversations co-founder Dr Kayleigh Young—delivers tailored programs that build wellbeing, resilience, and team performance. Their practical, preventative approach supports organisations to navigate psychosocial risks and foster teams capable of thriving in emotionally intensive environments.

What do we Call Ourselves Blog: Conflict Manager or Dispute Resolver?

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Peter Condliffe PhD and Claire Holland PhD
This blog is a summary of a more substantive paper currently in preparation and is based on that paper: See Condliffe, P and Holland C, What Do we Call Ourselves: Conflict Manager or Dispute Resolver, in preparation.

Introduction

This blog has come about as a result of the author’s collaboration on a new and seventh edition of Conflict Management: Theory and Practice (previously titled ‘Conflict Management: A Practical Guide’ Lexis Nexis, 2019). Earlier editions had been written by a single author, and decisions regarding framing, scope, and terminology had therefore not required negotiation. The co-authorship of the new edition thus offered an opportunity to revisit, clarify, and reaffirm the foundational assumptions that have shaped the book since its inception.

Among the most consequential of these framing decisions was the title itself, Conflict Management. Since the publication of the first edition in 1991, this term has been deliberately preferred over the more commonly used ‘disputeresolution’. This choice was not incidental. It reflected an underlying set of conceptual, theoretical, and practical commitments that distinguished the work from other texts in the field and has continued to guide its evolution over subsequent editions. After thorough discussion, the authors reaffirmed their decision to retain Conflict Management in the title, recognising it as central to the book’s epistemological and pedagogical identity.

There are a number of reasons why this may be important because creating  “mental models” of our interventions as conflict managers can effect how we behave and make decisions.1 They also help us with longer term, structural and value-based conflict interventions.  They can also, we believe, keep us more process oriented and culturally aligned and responsive. 

Our discussion unfolded in three ways summarised below.

The Conceptual Conversation

A foundational step was engaging with the concept of conflict management and particularly the term conflict. Although widely used across scholarly and practitioner discourses, conflict remains an inherently complex and contested concept.2 It resists a singular definition and is interpreted variously depending on disciplinary orientation, cultural context, and situational dynamics. In both teaching and professional practice, defining what conflict is, and perhaps more importantly what it means, has proven to be a persistent challenge.3 Increasingly, pedagogical approaches have shifted from prescriptive definitions toward participatory inquiry, encouraging learners and practitioners to articulate, compare, and synthesise their own understandings of conflict.4

We concluded that there were five key interrelated dimensions (perception, interpersonal interaction, interdependence, intrapersonal dynamics, and emotion) which would enable us to provide a conceptual scaffold for understanding these terms. This conceptual argument suggests that conflict is best approached not as a discrete event or condition but as a complex, evolving process embedded in human cognition, emotion, and social relationships. Recognising this multidimensionality provides a conceptual foundation for understanding why management, rather than resolution, may more accurately capture the ongoing, adaptive work required in navigating conflictual human experiences. Our perspective is broadly ‘social constructivist’ in orientation.5

Like Avruch6 and Lederach7 have argued, we believe conflict is both embedded in and expressive of cultural patterns, the shared symbols, narratives, and cognitive schemas that structure how groups perceive and respond to difference. Understanding conflict, therefore, requires a careful examination of the cultural knowledge and everyday assumptions that shape how people interpret social reality.

We were further challenged by the ambiguity and interchangeability of key terms, particularly conflict and dispute. Although frequently used as synonyms in everyday and professional discourse, these terms carry distinct theoretical and practical implications. Conflict can be understood as a dynamic process of disagreement, tension, or grievance that emerges within or between individuals and groups.8 In contrast, a dispute represents a more specific and manifest expression of conflict, such as an event or situation in which opposing parties directly express incompatible or opposing positions or claims.9 In this sense, we consider conflict to be a broader term than dispute.

We were particularly influenced in this respect by the work of Australian diplomat and scholar John Burton, whose pioneering work in conflict analysis continues to influence both international and domestic peace studies. He argued for a sharp distinction between disputes and conflicts.10 According to Burton, “conflicts are struggles between opposing forces, struggles with institutions, that involve inherent human needs in respect of which there can be limited or no compliance.”11 In other words, disputes may be resolved through negotiation or procedural settlement, whereas conflicts reflect structural or identity-based tensions that resist simple resolution because they implicate people’s basic needs for recognition, security, and belonging.12

Whilst we have some issues with Burton’s distinctions it remains conceptually powerful and moving forward from this perspective, the essential task lies not in eliminating conflict but in managing it adaptively and contextually.  For us then it is preferable to base the distinction between conflict and dispute on process rather than on the possibility of resolution. A dispute represents a particular response or manifestation within the broader process of conflict, not a fundamentally different phenomenon.

Conceptualising practice as conflict management allows for a more comprehensive engagement with the full range of human experience embedded in conflictual relationships.

The Inclusivity Conversation

The other discussion we had, and are having, arises from our’ extensive practical experience as mediators, trainers, facilitators and mentors. Over many years of practice, the authors have predominantly been supporting individuals and groups in conflict management rather than definitive conflict resolution.

By shifting our focus then to conflict management we recognise that successful practice may involve containment, transformation, or construction of ongoing relational processes, not just the ‘end’ of conflict. This distinction has implications for practitioner identity, process design and expectation-setting for participants.

This inclusive orientation aligns with recent Australian standards and guidelines. For example, the Australian Standards authority’s publication of AS 10002:2022 – Guidelines for complaint management in organisations reflects a shift in terminology from “resolution/resolving” to terms such as “management/managing”, “outcome”, “finalised/ addressed”.13 This shift underscores the importance of process language that accommodates a range of outcomes and recognises the ongoing dynamics of conflicts.

This suggests that organisational, interpersonal or societal conflict may be better framed through inclusive, process-oriented language rather than endpoint-oriented labels. For those managing organisations such as a complex court or legal bodies, this may also be a pertinent issue.  We were pleased to see, for instance, in the commercial litigation context, the Honourable Chief Justice of Queensland, Helen Baskill, recently observed, after seeing a recent text by Condliffe that the term “conflict management” rather than “dispute resolution” could have resonance in developing better systemic processes and practices in the court context that she manages.14 

From an academic perspective, this inclusivity argument finds support in the literature on conflict management systems and dispute resolution in Australia. Australian scholars have noted the limitations of purely settlement-oriented approaches and the value of conflict management systems that emphasise ongoing dialogue, relational maintenance and the design of integrated conflict management processes.15

The Productive Social Change Conversation

We also considered that, beyond the interpersonal and organisational realms, conflict has a profound relationship with society and social transformation which is important to us as practitioners. As American philosopher John Dewey once said,

Conflict is the gadfly of thought. It stirs us to observation and memory. It instigates us to invention. It shocks us out of sheep-like passivity. Conflict is the sine qua non of reflection and ingenuity.16

From this perspective, conflict does more than disrupt. Conflict can stimulate not only economic and scientific change but also the overthrow of old norms and institutions. It is through contested ideas and practices that norms evolve and institutions adapt.17

This insight aligns us with classical sociological theory.18 According to Coser for example, conflict only becomes dysfunctional within social systems that lack sufficient tolerance for conflict. We also realise that our text owes much in the field of conflict theory to Morton Deutsch, one of the founders of modern conflict management theory, whose modelling emphasized both competitive and cooperative frameworks in conflict.19

Putting this all together we conclude that conflict, when managed constructively, is not just a problem to be avoided but can drive positive social change.  

Conclusion

Together, these arguments we believe reasserts conflict management as a more encompassing, process-centred and socially responsive framework for practice. It orients our preference to refer to ourselves as conflict managers rather than dispute resolvers in our professional practices.

Authors Biography

Peter Condliffe PhD is a barrister, teacher and mediator. He has also been previously employed in several academic, management and human rights roles including with the United Nations. He is an experienced teacher having developed and presented courses in universities and other organisations. He is a past chair of The Australian Mediator and Dispute Resolution Standards (AMDRAS) Board and long-serving member of the Victorian Bars’ ADR Committee. He was instrumental in the development of the new national AMDRAS Standards.

Claire Holland PhD is an experienced academic, trainer, mediator and consultant. She has worked nationally and internationally as a mediation and conflict management specialist, and in training and capacity development roles. She has worked in complex and protracted settings on the Thailand Myanmar border and in the Philippines and has carried out consultant-based work in the Solomon Islands and Papua New Guinea. Claire is a trainer and coach mentor with the Conflict Management Academy, specialising in conflict analysis, conflict coaching, leadership and mediation training. Claire is the former Director of the Masters of Conflict Management and Resolution at James Cook University and a founding board member and past Chair of Mediators Beyond Borders Oceania.

  1. Bartoli A, Nowak A and Bui-Wrzosinska L, ‘Mental Models in the Visualization of Conflict Escalation and Entrapment: Biases and Alternatives’, IACM 24th Annual Conference Paper, 3–6 July 2011, p.3-5, <http://scar.gmu.edu/presentations-proceding/12857&gt; ↩︎
  2. See generally Peter L Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Anchor Books, 1966); Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6(3) Journal of Peace Research 167; John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995); Morton Deutsch, ‘An Experimental Study of the Effects of Cooperation and Competition upon Group Process’ (1949) 2(3) Human Relations 199; Peter T Coleman, ‘Characteristics of Protracted, Intractable Conflict: Toward the Development of a Metaframework’ (2003) 9(1) Peace and Conflict: Journal of Peace Psychology 1; Daniel Bar-Tal, Intractable Conflicts: Socio-Psychological Foundations and Dynamics (Cambridge University Press, 2013) ↩︎
  3. Tjosvold, Dean. (2006). Defining Conflict and Making Choices About Its Management: Lighting the Dark Side of Organizational Life. International Journal of Conflict Management. 17. 87-95. 10.1108/10444060610736585. ↩︎
  4. See for example, Ciobanu (2018), Active and Participatory Teaching Methods. European Journal of Education May August 2018 Volume 1, Issue 2. ↩︎
  5. See Lederach J, Preaching for Peace: Conflict Transformation Across Cultures, Syracuse University Press, New York, 1995, pp8-10. ↩︎
  6. Avruch, K. (1998). Culture and conflict resolution. United States Institute of Peace Press. ↩︎
  7. Lederach, J. P. (1997). Building peace: Sustainable reconciliation in divided societies. United States Institute of Peace Press. ↩︎
  8. Condliffe and Holland, 2025, s 1.5; Boulle, 2005, p 83. ↩︎
  9. Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict (4th ed.). Jossey-Bass. ↩︎
  10. Burton, J. W. (1996). Conflict resolution: Its language and processes. Scarecrow Press. ↩︎
  11. Burton, J. W. (1996) f. 28, p 21. ↩︎
  12. Burton, J. W. (1990). Conflict: Resolution and prevention. Macmillan. ↩︎
  13. Australian Standard 10002:2022 Guidelines for complaint management in organizations (ISO 10002:2018, NEQ); SOCAP,. Guidelines for Complaint Management in Organisations: Comparison of the 2014 and 2022 Editions, (AS 10002:2022), see https://<www.socap.org.au/public/98/files/SOCAP%20Member_Info_Sheet_2022_LR.p ↩︎
  14. Article Series: Mediation: Australia’s Place in the International Scene – AMDRAS. ↩︎
  15. Boulle, L., & Field, R. (2021). Australian dispute resolution: Law and practice. LexisNexis Butterworths; Van Gramberg, B. (2005). Managing workplace conflict: Alternative dispute resolution in Australia. The Federation Press. ↩︎
  16. Dewey J,Human Nature and Conflict, Modern Library, New York, 1930, p 30. ↩︎
  17. Deutsch (1973) ↩︎
  18. Lewis Coser, The Functions of Social Conflict. New York: The Free Press, 1956; Beyond Intractability, Summary of “The Functions of Social Conflict”, <https://www.beyondintractability.org/bksum/coser-functions> accessed 1st November 2025. ↩︎
  19. Deutsch, M, The Resolution of Conflict: Constructive and Destructive Processes, Yale University Press, New Haven ↩︎

The IOMed Convention: How It Could Redefine Cross-Border Mediation

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By Akshat Garg
This article has been republished with permission. The original publication can be found at Kluwer Mediation Blog.

On 30 May 2025, the global dispute resolution landscape quietly shifted. In Hong Kong SAR, 33 countries signed the Convention on the Establishment of the International Organization for Mediation (“IOMed”), the world’s first intergovernmental body dedicated solely to mediation.

More than 400 representatives from 85 countries and 20 international and regional organizations gathered for the signing. The Convention entered into force on 29 August 2025. At its inaugural meeting held on 20 October 2025, the Governing Council authorised the commencement of operations with effect from the same date. On paper, it appears to be just another treaty. In practice, however, it could reshape how governments, businesses, and individuals resolve some of the world’s most complex disputes.

Why does this matter now? For decades, mediation has lived in the shadow of arbitration and litigation, praised for its flexibility but lacking the institutional backbone to rival them. The IOMed could change this.

Mediation Steps Out of the Shadows

Mediation has always promised something courts and arbitral tribunals cannot: outcomes that preserve relationships rather than destroy them. While mediation had received treaty recognition through the ICSID Convention, restricted to investor-state conciliation, and the Singapore Convention, which addressed the enforcement of mediated settlements, no dedicated intergovernmental framework existed.

The IOMed Convention addresses this gap, institutionalising mediation itself as a treaty-based mechanism for resolving international disputes. It creates a permanent organization with legal personality, a governing council of states, and leadership roles open only to nationals of contracting states. In other words, mediation now has a seat at the table of international law.

How the IOMed Has Made Itself Unique

The IOMed is not a vague promise; it has teeth. The Convention envisages two separate panels of mediators: one for State-to-State disputes and another for disputes involving States and private parties, including commercial disputes. This matters because mediation in international politics requires a different skillset than mediation in business contracts. The Convention acknowledges this nuance, demanding that State-to-State mediators bring not only legal knowledge but also diplomatic judgment and geopolitical experience.

Consent remains its bedrock. No State can be dragged into a mediation without agreeing, and countries can expressly exclude sensitive disputes such as sovereignty or maritime boundaries from the IOMed’s purview. Far from weakening the system, these safeguards are likely to make the Convention more attractive to States.

The Convention takes an important step toward building global trust in mediation. By granting immunity to mediators and participants from arrest, detention, or legal action for what’s said or disclosed in mediation, it protects the process from fear or interference. This isn’t just a legal safeguard; it’s a confidence-building move that encourages openness and integrity. It may be an early step, but it’s a bold one, showing IOMed’s intent to make mediation a safer, more credible space for resolving disputes.

What makes the IOMed particularly intriguing is its accessibility. It may also provide mediation for non-contracting states or international organizations, should they wish to submit their disputes, subject to the rules adopted by the Governing Council of the IOMed. Such inclusivity could allow the IOMed to become a hub for dialogue at a time when global cooperation often feels gridlocked. It is not a court, and it will not hand down binding decisions unless parties agree. Instead, it offers a structured, principled, and confidential process for parties to craft their own solutions – as is the inherent asset of mediation – with the legitimacy of an international institution behind it.

The Quiet Gaps in the Convention

The IOMed Convention opens the door for the mediation of “international commercial disputes,” but it stops short of defining exactly what that means. It simply provides that the Organization will offer mediation services for disputes arising out of or related to international commercial relationships between private parties, subject to conditions set by the Governing Council. In practice, how the Council chooses to interpret and apply these provisions will play a crucial role in shaping the Convention’s real-world impact.

The Convention also leaves it to the parties to agree on suspending the limitation period during mediation as per applicable laws, a provision that realistically, is unlikely to see easy consensus, and to agree on whether mediation can run alongside other dispute resolution proceedings. Such flexibility, while well-intentioned, could lead to uncertainty and uneven outcomes, especially in cross-border disputes where different legal systems come into play.

When it comes to enforcement, the Convention provides that settlement agreements arising from international commercial disputes may be enforced by the contracting states, who should agree on a protocol specifying the conditions of enforcing such settlement agreements. Notably, it says nothing about the enforcement of state-to-state settlement agreements, leaving a notable gap in the framework for intergovernmental disputes.

The Governing Council also carries significant responsibilities, including adopting the rules of procedure for mediation, maintaining mediator panels, and approving the Secretariat’s capacity-building and fellowship programs. The success and credibility of IOMed will hinge on how actively and thoughtfully the Council pursues these tasks.

A Space Created for Everyone

At a time when arbitration often feels prohibitively expensive or adversarial, the IOMed offers something different: a forum designed to de-escalate, not inflame.

For businesses engaged in cross-border trade, this means a credible path to settle disputes without burning bridges.

For States, it offers a way to manage conflicts without locking themselves into binding rulings that might be politically impossible to implement.

For professionals, lawyers, mediators, and policy advisors, it signals an emerging market for a new breed of expertise: not just legal knowledge, but skills in negotiation, psychology, cross-cultural communication, and strategic problem-solving.

When the World Trade Organization was created, it reshaped trade. When the International Criminal Court was launched, it changed how we view accountability. The IOMed may not have the same headline-grabbing impact, but time will tell whether it redefines how conflicts are prevented, managed, and resolved across borders.

Mediation as the Primary Strategy, Not a Soft Alternative

As of 20 October 2025, only eight countries – China, Nicaragua, Venezuela, Congo, Kiribati, Pakistan, Kenya, and Dominica – have ratified the Convention. Major hubs like Europe, India, and Singapore are notably absent, reflecting a cautious approach. This hesitation likely stems from concerns over enforcement and procedural gaps left to the Governing Council.

Like all new institutions, the IOMed will need trust, early successes, and a generation of professionals ready to champion it. If mediation is to mature into a global institution, practitioners and policymakers will need to take it seriously, not as a “softer” option, but as a strategic one.

That is the challenge and opportunity: to ensure that this new framework is not just another treaty on paper, but a living mechanism that reshapes how the world deals with conflict. Whether you are a lawyer, business leader, diplomat, or student of international affairs, the message is clear: mediation is no longer an afterthought. With the IOMed, it could become the default.

Author Biography

Akshat Garg is an Advocate of the Supreme Court of India and an IMI-qualified mediator, blending legal practice with a global perspective on dispute resolution. Educated at Lloyd Law College, India, he has contributed to cross-border agreements, institutional and ad-hoc arbitration, and regulatory advisory, emphasising practical solutions, procedural clarity, and strategic insight. Beyond practice, Akshat coaches and judges international ADR competitions, leads initiatives to build capacity in emerging markets, and develops frameworks to enhance efficiency and accessibility. Committed to bridging law, policy, and industry, he works to advance global arbitration and mediation with purpose and lasting impact.

13th Network Roundtable: Call for papers extended to Monday 3 November

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There’s still time to get your abstract in! Please submit your abstract by 3 November 2025.

The Australasian Dispute Resolution Research Network is pleased to be hosting its 13th research roundtable on 27-28 November 2025 at Monash University Clayton campus, Melbourne. The roundtable is supported by the Faculty of Law at Monash University and the Australian Centre for Justice Innovation.

We are accepting paper proposal’s for the Roundtable until Monday 3 November. We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. Topics can be addressed for any disciplinary perspective and we are especially interested in interdisciplinary approaches to dispute resolution. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

Attendance is only open to individuals who are contributing to the scholarly discussions by
presenting a paper, or commentating and/or chairing a session. So please submit an abstract!

Participation is on a self-funded basis.

Submit papers at this weblink: https://forms.gle/sNfifQPx8TrJG8cD9

A programme of events will be distributed in advance.

Please do not hesitate to come back to us for any further questions you may have, email to: adrresearchnetwork@gmail.com

We look forward to seeing you at the Roundtable.

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The Art of the Prompt for Lawyers, Mediators, and Arbitrators

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John Lande
This article has been republished with permission. The original publication can be located within Indisputably.

The quality of AI outputs depends on users’ skill in inputting good prompts.

That’s the premise of my new article: The Art of AI Prompting in Law and Dispute Resolution Practice.

It provides practical guidance about how to use AI tools responsibly, ethically, and effectively. It describes core skills including:

  • Choosing the right AI tool
  • Writing good prompts
  • Using follow-up questions
  • Avoiding AI’s problems
  • Applying professional judgment when using results

It’s important to choose the right AI tool. A brilliant prompt to the wrong tool is a bad prompt. The article includes a list of specialized legal AI tools for legal and dispute resolution practice.

You shouldn’t just take the first response – it’s important to ask follow-up questions. This article offers a long list of suggested follow-up prompts.

It also provides examples of prompts across the life of a case – before, during, and after mediation.

It cites ABA Ethics Opinion 512, which describes lawyers’ ethical duty of technological competence under the ABA Model Rules.

If you would like to see some hands-on demonstrations, I also posted two short SSRN articles with companion 30-minute videos:

AI won’t do your work for you. But it can help you do it better – and probably faster.

Take a look.

When Apologies Don’t Come: Understanding and Managing Refusal to Apologise in Mediation

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By Dr Samantha Hardy and Dr Judith Rafferty
This article has been republished (with minor amendments) with permission. The original publication can be found at The Conflict Management Academy.

Apologies can be transformative. A genuine “I’m sorry” has the potential to mend trust, restore dignity, and signal a willingness to move forward. Yet in practice, many mediators have sat through sessions where one party waits, sometimes desperately, for an apology that never arrives. The other party’s refusal to apologise can stall dialogue, harden positions, and frustrate attempts at resolution.

This post explores the dynamics at play when apologies are withheld. We will look at why people seek apologies, why others resist offering them, what options exist when an apology never comes, and how mediators can manage this fraught terrain.

1. Why someone might want to receive an apology

An apology might meet different needs for the receiver:

  • It might provide recognition of the impact of the other’s actions on the receiver. It might validate the receiver’s pain and suffering.
  • It might confirm that what happened was “wrong”, providing a sense of justice to the receiver.
  • It might restore a sense of power or control to the receiver. An apology can restore autonomy by giving them the power to accept, reject, or withhold forgiveness.
  • It might reaffirm shared values and expectations around behaviour. An apology communicates renewed consensus around those values, reinforcing the idea that both parties agree on what is acceptable behaviour in the future.
  • High-quality apologies can also reduce anger, increase empathy, and foster willingness to reconcile. This is particularly important in ongoing relationships such as workplaces, families, or communities.

2. Why someone might not want to apologise

If apologies are so powerful, why would someone refuse to offer one? The psychology is complex. Research has identified several barriers and motivations:

They don’t feel like they’ve done anything wrong

Many equate an apology with an admission of guilt. For those convinced they acted correctly, an apology can quickly feel exaggerated or unjustified.

Fear of consequences

Some worry that an apology will be interpreted as an admission of guilt, exposing them to criticism, sanctions, or even legal liability.

Protecting self-esteem

Apologising can feel like a loss of face, signalling that your standing is diminished in front of the other person. For those with fragile self-esteem, the psychological discomfort may be too great. Karina Schumann’s work highlights “perceived threat to self-image” as one of the strongest barriers to apologising.

Concerns about power and control

Okimoto, Wenzel, and Hedrick (2013) found that refusing to apologise can actually increase a person’s self-esteem by enhancing feelings of power and value integrity. By withholding an apology, people may feel they retain dominance and control.

Low concern for the relationship

Some simply do not value the relationship enough to invest in the discomfort of apologising. Low empathy, extreme self-interest, or avoidance of closeness can all reduce the likelihood of apology.

Perceived ineffectiveness of apology

Even when someone recognises that they caused harm, they may doubt whether apologising will help. They might expect rejection or believe the other person will not forgive them anyway.

Defensive fragility mistaken for strength

As psychologist Guy Winch notes, people who cannot apologise often appear tough, but their refusal usually reflects deep vulnerability and fragile self-worth.

They have already apologised

Sometimes people refuse to apologise in a mediation because they have already apologised (one or more times) and it hasn’t made any difference.

They don’t want it to be a trigger

Occasionally an apology can act as a trigger, reminding people of the circumstances and hurt of the past. Some people wish to avoid that and just “move on”, leaving the past behind.

3. What to do when someone refuses to apologise

In many mediations, a party may openly state that they want an apology. When it does not come, the process risks collapsing into impasse.

For mediators, it is important to see refusal not simply as obstinacy but as a defensive strategy rooted in self-protection, power, or relational disengagement.

Here are some strategies for mediators to help parties navigate this reality.

Manage expectations early

At the start of the mediation, clarify that apologies may or may not occur. This helps prevent disappointment later if one party was anticipating an apology as the main outcome. Mediators can also normalise the difficulty of apologising. Mediators can gently explain that apologising is psychologically hard for many people. This can reduce personalisation of the refusal.

Attend to power dynamics

Because apologies carry symbolic weight around power and control , mediators should be alert to how apology refusal may entrench dominance. They may need to balance this by giving the other party more voice or decision-making space.

Explore the interests underlying both the request for an apology and the refusal to give one

Ask the person who wants the apology to give an example of the kind of apology they would ideally like to receive, and explain the impact it would have on them.  Often, the need is for recognition, respect, or validation rather than the exact words “I’m sorry.” Mediators can help the party articulate what they hope to gain and explore other ways of meeting those needs.

Non-judgementally, ask the person who refuses to apologise to describe their reasoning. Listen for some of the reasons outlined above, and direct your interventions to exploring and responding to those needs.

These questions are probably best asked in private sessions so that parties have a safe space to be vulnerable.  From their answers, you may be able to identify what needs the apology (and not apologising) would meet and then work to brainstorm different ways to meet those needs.

Refocus the discussion to intent and impact

Supporting parties in mediation to clarify intent and impact can help address misunderstandings which may make the desire for apologies and the apology itself obsolete. Of course, clarifying intent and impact can also help people who weren’t aware of any wrongdoing gain awareness that their actions, even if meant/ intended otherwise, caused harm for the other and may thus increase the other’s desire and the actor’s awareness for a need for an apology. Apologising for something that had a different impact to what was intended could also be “easier” in the sense that it may be less threatening to self-image – after all, the actor had not had any intentions, but misunderstandings (external factors) may have led to the misperception of harm.

Support vulnerability and self-esteem

Support the person who does not want to apologise to explore ways of being vulnerable while still maintaining safety and self-esteem.

Mediators can help parties to identify substitute behaviours.

Sometimes, non-apologisers express contrition indirectly: by being extra kind, cooperative, or attentive after the fact. Mediators can help parties notice these gestures as alternative forms of repair.

Sometimes parties resist the word “apology” but are willing to express regret or acknowledge impact. Mediators can explore softer or alternative language that validates the other person without requiring full admission of fault.

Explore ways of meeting the requesting party’s needs by framing things in different ways that may or may not look exactly like an apology.

Importantly, mediators need not overemphasise hearing the words “I’m sorry.” Expressions of genuine remorse, awareness of impact, or acknowledgement of harm can often meet the deeper needs more effectively than the word itself.

Elicit reflection on meaning of apology

In private session, mediators can ask the person refusing to apologise: “What would it mean for the other party to hear you apologise?” This question does not pressure them to apologise, but it can prompt reflection on the potential value of an apology for the other person. At times, this reflection has opened space for an apology to emerge.

Use reframing techniques

If a party expresses their refusal bluntly (“I’m not going to apologise”), mediators can reframe this as an attempt to hold onto integrity or avoid insincerity. This can de-escalate defensiveness and allow conversation to continue.

Reality test

Ask the person who does not want to apologise what they potentially stand to lose and gain from apologising.

Ask the person who wants the apology what their choices are if they don’t receive it.

Invite reflection on choice

Mediators may also be able to encourage acceptance without agreement. Radical acceptance helps individuals acknowledge painful realities without condoning them. For example, someone may not receive an apology but can still choose to accept the situation and move forward with their values intact.

When a party faces the absence of apology, mediators can help them consider whether to persist in the relationship, renegotiate boundaries, or disengage altogether. As one writer put it: “Life becomes easier when you learn to accept an apology you never got”.

Invite mutual apologies

I also feel we should talk about situations where both parties are requesting an apology from each other and how that can create additional impasse or help the situation, since it balances the “power” a little.

Facilitate mutual checking for understanding

Invite each party to check that they have understood the other, including naming what was most difficult or hurtful in the conflict. Then ask the original speaker to confirm – “Did she/he get that right?” This creates a moment of empathy and can soften defensiveness. It also lays the groundwork for acknowledgement by ensuring that each person feels genuinely heard.

Shift the focus to future arrangements

If apology is not forthcoming, help parties reorient toward practical agreements. What changes in behaviour, communication, or boundaries could rebuild trust without requiring an explicit apology?

Support emotional closure without apology

Through reflective listening, summarising impacts, and validating emotions, mediators can help parties feel heard even in the absence of an apology. This may provide enough recognition to allow agreements to move forward. Research suggests there can be significant psychological benefits in choosing to let go of anger and resentment without an apology – including in situations where extreme harm has been suffered – showing how this approach can strengthen resilience. Recognising this possibility may open space for parties to consider new pathways to closure.

Conclusion

Refusal to apologise is one of the thorniest issues mediators can encounter. For the person harmed, it can feel like justice denied. For the person refusing, it can feel like self-preservation. And for the mediator, it can feel like an immovable barrier.

Yet by understanding the psychological underpinnings, mediators can reframe the impasse. People seek apologies for validation, dignity, and reaffirmation of values. People withhold apologies to protect self-image, preserve power, or because they doubt its effectiveness. When apologies do not come, parties can still find closure through acceptance, alternative forms of recognition, and practical agreements.

For mediators, the task is not to extract apologies but to help parties understand and meet underlying needs. With skill, patience, and creativity, even the absence of “I’m sorry” can become the starting point for resolution.

Reminder: Registration and Call for Papers for Australian Dispute Resolution Research Network Roundtable 

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The Australasian Dispute Resolution Research Network is pleased to be hosting its 13th research roundtable on 27-28 November 2025 at Monash University Clayton campus, Melbourne. The roundtable is supported by the Faculty of Law at Monash University and the Australian Centre for Justice Innovation.

We are accepting paper proposal’s for the Roundtable. We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. Topics can be addressed for any disciplinary perspective and we are especially interested in interdisciplinary approaches to dispute resolution. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.

Participation is on a self-funded basis.

Submit papers at this weblink: https://forms.gle/sNfifQPx8TrJG8cD9

A programme of events will be distributed in advance.

Please do not hesitate to come back to us for any further questions you may have, email to: adrresearchnetwork@gmail.com

We look forward to seeing you at the Roundtable.

ADR Research Network Roundtable InformationDownload