The ADR Research Network is a group of Australian dispute resolution academics. Blogging & tweeting high quality, critical dispute resolution scholarship.
Presented by Dr Mary Tumelty, visiting scholar to the Australian Centre for Justice Innovation, Monash Law with guest commentator, Mr Nick Mann, Polaris Lawyers
Date: Monday, 31 March 2025 Time: 12:00pm – 1:30pm Lunch provided with seminar commencing at 12:30pm Venue: Monash Law Staff Library Clayton Campus, or Zoom (link to be provided on the day) Please register via this Google form.
Dr Mary Tumelty is a Senior Lecturer at the School of Law, University College Cork. Mary’s research interests include Medical Law, Patient Safety, Torts, Law and Emotion and ADR and she is experienced in empirical legal research. Her work has been funded by the Royal Irish Academy, the Irish Research Council, and the National Forum for the Enhancement of Teaching and Learning in Higher Education. She has also collaborated on projects funded by the Economic and Social Research Council, and COST (European Cooperation in Science and Technology). In 2019, Dr Tumelty was appointed to the Health and Social Care Professionals Council (CORU) (Ireland’s multi-profession health regulator) by the Minister for Health. She is also a member of the Health Research Consent Declaration Committee (HRCDC) (appointed by the Minister for Health in January 2021). Dr Tumelty’s research focus is interdisciplinary, examining the interaction of law with the practice of medicine.
Rory Gowers & Milan Nitopi This article is Part 3 of 3 in our series ‘Informed, Involved, Inclusive’.
Rory and Milan (left to right) presenting at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024.
The story of fisherman Mark and how mediators are not so different…
Mark Schenk recently shared a fishing story to illustrate when 90% isn’t enough.1 Mark tells us that he loves beach fishing, and beach worms make great bait–but at $9 each, he decided to catch his own. Turns out, it’s trickier than he expected.
Over several months, Mark learned to pick the right beaches, attract worms, spot them, and get them to latch onto bait. But despite all that effort, he would spend two hours catching just one or two worms. He kept missing the final step–grabbing them.
Frustrated, Mark studied everything there was to know about catching worms and learned insight from a highly experienced fisherman. That’s when he discovered the problem, that his instincts were wrong. Mark was using a pincer grip, like picking up a pencil. But the right way? He needed to press the flat his thumb into the first joint of his index finger.
Once Mark changed his grip, he started catching worms immediately–but only if he was focused. Whenever his attention lapsed, old habits crept back.
We share this story because intercultural mediation is not so different.
Although Mark spent months learning the skills and techniques to catch beach worms, it would be entirely futile as what he lacked was insight and experience. Once he learned the ways of experienced fishermen, his ability to catch worms increased exponentially.
Although mediators might be highly trained and skilled in their own right, they can lack the experience and insight required to mediate intercultural interactions effectively. Mediators can prepare meticulously, understand the key players, and enter negotiations with good intentions–but it is justnot enough. Like Mark, they can often rely on ingrained instincts that don’t quite translate in another cultural context.
What is missing within intercultural mediation?
It is simply not enough to just understand different cultures, it is about recognising and appreciating how other people perceive fairness, respect, and the process within their own cultural lens. Ask yourself this:
Am I engaging with each parties’ culture on their own terms?
Am I identifying and discerning their expectations, needs, interests, or concerns accurately (including what they may require for the process to feel appropriate and fair)?
Am I adapting my approach to mediation so that each party can contribute their best in achieving mutually beneficial outcomes?
Without this level of intercultural predisposition, negotiations by and between parties may seem productive on the surface, but will fall apart in practice—just like Mark spending hours on the beach with only one or two worms to show for his efforts.
Why MIMI is the missing link–especially in 2025!
The world is shifting rapidly. Geopolitical tensions, economic realignments, and global challenges mean that current top-level negotiation skills are no longer enough.
Mediators need more than just knowledge of culture, they need an intercultural predisposition–a first-hand experience which complements their current knowledge and skills. The ability to move beyond rigid frameworks and adapt in real time to cultural expectations will produce fairness and respect from multiple perspectives.
Mediators must facilitate an environment where all parties can contribute their best, even when they feel like they are in foreign territory. Without this, agreements that are technically sound lack true buy-in, and those agreements will unravel under pressure or strain.
The cost of misalignment is growing. Whether in business, diplomacy, or public service, failure to navigate cultural expectations means failed projects, lost trust, and missed opportunities. MIMI helps mediators to develop that final 10% needed to excel within cultural interactions, and this cultural adaptability then turns competence into mastery. Like Mark’s fishing lesson, it’s a small shift that changes everything.
Who else can benefit from MIMI?
Mediators are not the only ones who can benefit from what MIMI has to offer. Leaders, coaches, negotiators, managers or executives in business, lawyers and legal professionals, doctors and nurses can all benefit immensely by mastering these intercultural skills.
Reflect on your own experiences… Has there ever been a time in your life, or the life of a person you might know, where there was a cultural disconnect? Where expectations within that interaction were not adequately met? Where needs, interests, or concerns were not accurately addressed? If you have, now imagine how others might feel where there is an even greater cultural disconnect–where the stakes, risks, and loss are substantial.
At MIMI, we have spent years refining our craft, and now we are guiding you to develop that same instinct—not by giving rigid rules, but by helping you see and feel the process differently. By completing our training program, you will begin your journey in becoming a master of intercultural mediation and you will be able to assist others in ways that are culturally relevant.
MIMI will teach you how intercultural mastery can become second nature, just like Mark adjusting his grip. MIMI is not just another training program–it is a transformational shift. This kind of shift, once made, cannot be unseen and will contribute to much beneficial change.
Join the MIMI Pilot Program—A Transformative Experience!
We invite you to express your interest in completing our pilot program and to contribute your thoughts on how we can make it better.
We are selecting only8 accomplished professionals for the exclusive pilot cohort: the Mastering Intercultural Mediation Initiatives (MIMI) Program.If you would like to be a part of this transformative experience, express your interest here.
Expressions of interests close 31 May 2025.
Who should apply?
✔️ Experienced mediators who have navigated complex, high-stakes disputes. ✔️ Senior leaders and negotiators who operate across cultural boundaries. ✔️ Professionals with a proven ability to build rapport in challenging intercultural situations.
As a pilot participant, you will:
Be the first to experience MIMI
Expand on your intercultural toolkit
Join an elite mastermind, shaping the future of intercultural mediation
Why Law School Faculty Should Increase Instruction in Mediation Representation
I’m a retired law professor who mediated and taught mediation for years. The main purpose of my article was to encourage law school faculty who teach mediation to increase their instruction about how attorneys can promote good decision-making by representing clients in mediation. About 90% of law school mediation instruction in the US focuses on the neutral role, with relatively little instruction in mediation representation.
Many faculty want to encourage their graduates to promote self-determination, and they focus on the mediators’ role in doing so. There are significant limits on mediators’ capabilities to do this. Attorneys actually are in a much better position to help clients make good decisions in mediation sessions by carefully preparing them before mediation sessions.
Unfortunately, many attorneys don’t do a good job of preparing their clients for mediation sessions. That’s one reason why faculty should teach students how to do it well. This also would prepare them for the NextGen bar exam in the US (which will include questions about client management and dispute resolution skills) and to represent clients after graduation. New graduates are much more likely to represent clients in mediation than to serve as mediators.
How Preparation Promotes Self-Determination
For many parties, mediation sessions are very stressful. They are in the middle of an unresolved conflict, and they don’t know how the process or outcome will turn out. They may experience strong emotions, possibly aggravated by hostile reactions from the other side (who might be represented by a scary attorney). They may not be sure whether the mediator will help them. And they may be forced to respond to the mediator and other side under time pressure. So mediation sessions may be challenging environments for parties to make decisions.
Some mediators can’t or don’t do much to help parties prepare before mediation sessions. My article, How Can Courts – Practically for Free – Help Parties Prepare for Mediation Sessions?, suggests things that courts and mediators can do, and it includes links to lots of resources. Parties represent themselves in many mediations, and that article includes suggestions to help self-represented parties.
Mediators should do whatever they appropriately can to help parties prepare. Even when they do encourage preparation, however, there are significant limits to the assistance they can provide because of their neutral role. Mediators typically do not provide advice that parties need before and during mediation sessions.
Attorneys are particularly well positioned to help their clients prepare for mediation sessions in legal cases. Attorneys can engage clients to make choices about dispute resolution processes (if they have a choice), obtain and exchange relevant information with their counterparts and the mediator, educate clients about the applicable law, provide legal advice, explain how the mediation process would work in their case, help them identify and prioritize their goals, anticipate the counterparts’ perspectives and tactics, consider the likely outcomes if the parties do not reach agreement, and plan possible mediation strategies.
When parties are well prepared before mediation sessions, they can participate as effectively as possible from the start of the sessions. Such parties are in a much better position than when the only efforts to promote self-determination occur when mediators do so during mediation sessions.
Realistically Promoting Self-Determination
Standard I.A of the Model Standards of Conduct for Mediators defines self-determination as follows: “Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”
Making “free” choices is an admirable ideal. What does it mean in practice?
My article noted that there are many factors that can limit parties’ decision-making freedom, including many they aren’t even aware of. Indeed, mediators generally have limited knowledge about what affects parties’ decisions.
So I suggested how we might practically operationalize this ideal. Mediators and attorneys can help parties become knowledgeable, confident, and assertive, with the goal of making the best possible decisions under their circumstances. I think that this is the best we realistically can do to fulfill the goal of self-determination.
Choosing Our Language
In our field, we use many vague terms that feel good, like self-determination. Unfortunately, many of these terms are opaque, so people can attach many different meanings to them and misunderstand each other.
In my article Oxymorons R Us, I suggested that we should communicate so that people actually do understand what we mean – especially people who are not in our field, like parties.
Some readers like our traditional concepts and want to continue using them. I hope to prompt people to reflect on the concepts they prefer and to consider whether other concepts would be more useful.
Author Biography
John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.
The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).
John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.
This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.
The criminal justice system often leaves victim-survivors feeling that they themselves are on trial, paving the way for Restorative Justice (‘RJ’) to emerge as a compelling alternative. However, is RJ suitable for responding to sexual violence? More importantly, does it resonate with the experiences of First Nations women, who are significantly overrepresented in sexual violence statistics?
The Australian Law Reform Commission (ALRC) yesterday released its report, Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence, recommending use of RJ in some sexual violence matters. In particular, the ALRC recommends funding for First Nations communities to design, build, and deliver accredited restorative justice programs for First Nations people (recommendation 63).
This blog post explores the extent to which RJ can effectively respond to sexual violence, and how it can be implemented to respect First Nations women’s experiences. We hope the ALRC’s proposals lead to prioritising First Nations voices in discussions around RJ as a response to sexual violence.
Due to the limited availability of direct testimonies, this post primarily draws on general perspectives of First Nations women gathered from reports by First Nations organisations and the Wiyi Yani U Thangani (‘Women’s Voices’) project.
The need for an alternative justice response
First Nations women experience sexual violence at a rate approximately three times higher than non-Indigenous women. This alarming statistic both stems from and perpetuates the ongoing negative impacts of colonisation, which have resulted in increased socioeconomic disadvantage and intergenerational trauma.
The criminal justice system often compounds this issue, by failing to provide an adequate response to First Nations women. A staggering 90% of violence goes unreported due to a fundamental fear of the police, compounded by police inaction and discriminatory decision-making. First Nations women describe their interactions with the justice system as having exacerbated the impacts of violence and worsened their trauma. Research shows that typical ‘Western’ responses to sexual violence, including the current criminal justice response, are often ineffective for First Nations communities.
The question then becomes whether alternative forms of justice, such as RJ, can provide a better response to sexual violence.
What is RJ and how can it respond to sexual violence?
RJ is multifaceted concept, sometimes perceived as confusing and incoherent. The Australian Law Reform Commission defines RJ is a ‘victim-centred, party-led process’ focused on identifying and addressing the harm caused by the offence and exploring options for repairing that harm’. Unlike the criminal justice system, which prioritises punishing the offender, RJ is designed to address the victim-survivor’s needs and experiences. It typically involves a voluntary and confidential dialogue between the victim-survivor and personal responsible.
The use of RJ in cases of sexual violence has sparked debate. Proponents argue that RJ can meet the complex needs of victim-survivors in ways the criminal justice system often cannot. For instance, victim-survivors often need to tell their story in their own words, have their story believed, and ask the person responsible any unresolved questions, and see them take accountability. RJ can provide a platform for these needs to be met.
However, critics are concerned that RJ risks re-privatising and decriminalising sexual violence. It may be seen as a ‘soft’ approach that diminishes the seriousness of sexual violence. Given that persons responsible often abuse the trust of victim-survivors, there are concerns that they might exploit their position of relative power in the RJ process and further harm victim-survivors. Additionally, RJ processes might not be culturally appropriate for some participants and might face challenges with linguistically diverse individuals.
Conclusively determining the effectiveness of RJ as a response to sexual violence is difficult due to the limited number of peer-reviewed studies. However, the risks of RJ are real and should be managed through a well-designed principle-based approach.
Voluntary participation: Participants join voluntarily and can leave at any point.
Accountability: The person responsible must be truthful and admit to their actions.
Prioritising victim-survivors: RJ processes should prioritise the victim survivor’s needs and interests.
Safety and respect: RJ processes should adapt to different needs, with power imbalances addressed and skilled experts in sexual violence involved.
Confidentiality: What happens during RJ remains strictly confidential.
Transparency: Anonymised data is used to continually improve RJ processes.
Integrated justice response: RJ processes should work alongside the criminal justice system and therapeutic services.
Clear governance: Legislation should empower and oversee RJ.
Adopting a RJ model based on these principles shows promising potential for dealing effectively with sexual violence. The question then, is how might it be successfully implemented for First Nations women?
RJ and First Nations women: a potential solution
Research in the context of family violence indicates that First Nations women tend to favour RJ more than non-First Nations women. This preference is linked to their perception of the criminal justice system as oppressive and contributing to the violence against them. First Nations women interviewed by Heather Nancarrow expressed optimism that RJ processes could empower them. They believed that involving their families and broader community in RJ would lead to successful outcomes. A practical model for this might involve Elders and respected members of First Nations communities on an expert panel that conveners in the RJ conference could consult with.
By offering opportunities for self-determination that respect cultural values, RJ might help First Nations women feel empowered, and lead to more meaningful resolutions to sexual violence.
RJ and First Nations women: challenges and concerns
Despite these potential benefits, the application of RJ must carefully navigate concerns raised by First Nations women. There are significant fears that RJ processes could inadvertently perpetuate harm rather than heal it. Some women fear that RJ, if not carefully managed, might become a vehicle for reinforcing power imbalances within their communities or become another ‘white justice model’ that doesn’t fully respect or address their needs.
There are also concerns about how RJ might be received within their communities. Concerns include the potential for male leaders or community members to misuse the RJ process to their advantage, or for cultural arguments to be employed in ways that undermine victim-survivors’ needs.
For RJ processes to be an effective response to sexual violence, it is crucial to design them with these risks in mind and establish strong safeguards.
What needs to be done?
To effectively implement RJ for First Nations women, a collaborative design process involving meaningful engagement with their lived experiences is vital. Many First Nations organisations, such as Djirra, stress that any RJ model must be co-designed with First Nations women to ensure it is sufficiently sensitive to their needs and does not become another mechanism of oppression. It is necessary to hear from First Nations women directly to identify the wellbeing, safety, procedural and privacy aspects they might need for an RJ model to work.
Ultimately, the potential benefits of RJ as a response to sexual violence appear to outweigh the challenges, provided a principle-based approach is implemented to address the risks. RJ offers a promising alternative to the criminal justice system for addressing sexual violence against First Nations women. Its success, however, depends on the active participation of families and communities as well as the establishment of a culturally safe environment. Through a collaborative design process, RJ has the potential to be a powerful response to sexual violence that aligns with the experiences of First Nations women.
ChatGPT (version 4.0) was used to check grammatical errors and suggest improvements in writing style in this blog post.
About Lavanya de Mel
Lavanya is a final-year law student at Monash University, minoring in Economics and Business Strategy. She is passionate about improving access to justice for culturally diverse and socioeconomically disadvantaged individuals. Later this year, she will begin her legal career as a graduate lawyer at a commercial law firm, where she hopes to explore the role of alternative dispute resolution in a commercial context.
This post is part of a series of the best posts written by undergraduate law students enrolled in 2024 in Non-adversarial Justice at Monash University.
Victims of abusive relationships are at a higher risk of being financially disadvantaged and at poverty after separation. They are more likely to accept unfair property settlements and are three times more likely to receive less than 40% of the property pool. Parties who perpetrate abuse can continue to abuse them through the legal system, by delaying legal procedures, sending unnecessary legal letters, deliberately increasing their legal fees and causing the victim to be the subject of harsh cross-examinations. Due to little funding in Legal Aid, only 8% of Australian households are eligible to access a grant to receive legal aid.
Due to these issues, the Lawyer-Assisted Family Law Property Mediation: Legal Aid Commission Trial and Priority Property Pools were recently established and aimed to increase access to resolving post-separation property matters through efficient and low-cost avenues aimed at parties experiencing family violence and economic abuse.
The LAC Trial was initially established in 2020 and was funded to be a two-year trial. It provides legally assisted mediation for dividing property where net assets are $500,000 or less (excluding superannuation). The applicant must also be a priority client of the Family Dispute Resolution Service, a Legal Aid service designed to organise family dispute resolution conferences between parties at no cost (excluding the cost of legal representation). Priority clients includes people who have experienced, or is at risk of experiencing family violence.
If the application is successful, the applicant will be appointed a lawyer who will make an application on behalf of the client. A case manager can also provide the applicant with referrals to family violence support services and provide alternative solutions if mediation is deemed inappropriate. In Victoria, financial disclosure must be required before the first conference, which is intended to make the process more efficient. If resolved, parties are encouraged to sign a Heads of Agreement and lawyers apply for consent orders.
This program allows more women experiencing financial hardship to access legal representation for a property settlement. The more intensive case management is helpful for vulnerable parties as they are able to work with non-legal professionals to get the support and advice needed. The legal representation can level out the playing field for a victim who has a lack of bargaining power in private negotiations. Participants are also less likely to agree to a minority settlement as they receive constant advice from their lawyers and have a realistic proposal in mind. Where a party has experienced extensive family violence, mediation can be held between lawyers on behalf of the parties privately. The outcome is legally binding which allows victims to ‘move on’ and have separate finances without a connection. The fact that Legal Aid is involved removes another aspect of systems abuse, as Legal Aid can fund to obtain certain forms of financial disclosure for the vulnerable parties and avoid obstructive behaviour from the aggravating party.
However, the primary reason why this option may not be suitable for some clients experiencing financial hardship is that mediation requires cooperation from the other party. If the case manager does not receive a response from other party or they decline to participate, the matter is closed. The requirement of needing financial disclosure before the first mediation could also backfire for victims of abuse. This is because victims experiencing family violence may have limited access to financial information as well as the necessary documentation. Furthermore, during the pilot program, some legal professionals observed that parties who had a history of perpetrating family violence were likely to be obstructive in their financial disclosure. These parties would ‘drag their feet’ and be very slow with their paperwork, decreasing the efficiency of this program and increasing trauma for victims. There is also less incentive for parties to settle during mediation as they are not funding the process. However, it should be noted that these are aspects of systems abuse and are not unique to the LAC Trial.
Priority Property Pool
The priority property pool (PPP) was established as a pilot program in the Federal Circuit and Family Court of Australia in 2020. It was designed to provide access to more simple and efficient court processes for property dispute settlements in family law. It was created for similar reasons of ensuring the court-led process would mitigate any power imbalances and ensuring that disclosure occurs expediently and efficiently while achieving just and equitable outcomes. To be eligible, the main requirement is for parties to file their initial application seeking a property or financial order only and that the value of the net assets must be less than $550,000 (excluding superannuation). Neither party can seek a parenting order unless the court makes an exception and declares the case to be a PPP case. There are two streams:
a registrar-led stream where a judicial registrar assists the parties to resolve their property and financial arrangements by consent; and
a judge-led limb which is a simpler procedural process and ends in a judicial determination if the registrar-led limb is unsuccessful.
In comparison to standard litigation, PPP is able to assist parties who were unable to negotiate out of court. Vulnerable parties are naturally more intimidated by the court process but can have better access due to simplified forms and reducing the number of forms required during the proceedings. This leads to a much more efficient court procedure, with an average turnaround of 6 months, much shorter than the years long standard litigation process. A timely resolution is important for vulnerable parties as to not increase financial hardship and trauma. Furthermore, the streamlined court process removes the requirement to file affidavit material which could reduce trauma for victims of family violence as they would not need to recount their experience or hear the other party’s affidavit as well. The registrar-led limb also has a more ‘hands-on’ case management approach and are able to identify unequal bargaining power or other dynamics. The other parties seem to be more compliant even in the registrar-limb, which focuses on a consensual solution, and parties take the process more seriously compared to mediation.
The LAC Trial and PPP were very successful during their pilot program period and have since been expanded by Victoria Legal Aid and the Federal Circuit and Family Court of Australia respectively. The LAC Trial has been transformed into the Family Law Property Program and eligibility requirements for clients remain the same. Since the pilot program, funding has been extended twice with a current end date of 30 June 2025. The grants are capped for 20 parties per month and a lawyer can apply through Victoria Legal Aid’s online system, ATLAS.
The PPP program has continued since the pilot program and have expanded to all filing registries since. After an application has been made, a Judicial Registrar will review the application and determine whether it is a PPP case. If the applicant has an asset pool under $550,000, the required documents to initiate the process are the initiating application, a financial summary and a genuine steps certificate.
Overall, the LAC Trial is suited to a client who is in severe financial hardship and has experienced family violence, where the other party is willing to have mediation to resolve the dispute. The PPP is most suited towards a client whose other party is unwilling to engage with the client as the courts can help to make a judicial decision as it is a comparatively more formal setting. Both programs are suited towards clients who have serious financial hardship, however the LAC Trial guarantees legal representation. They are also both sensitive to that fact that a majority of the client base includes parties who have experienced family violence and try to even out unequal bargaining powers.
About Amy Li
Amy Li is a penultimate year student completing her Bachelor of Laws (Honours) and Commerce double degree at Monash University. Amy is currently a paralegal at a plaintiff class actions firm and volunteers to assist refugees. Through her studies, she has developed a strong interest to improving access to the legal system for vulnerable individuals.
The Australian Dispute Resolution Research Network 