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Milan Nitopi a Sydney-based lawyer and mediator whose passion surrounds people, law, and resolution. He writes with a focus on conflict management and legal dispute resolution. Connect with Milan via LinkedIn and Instagram!
Samantha Hardy This article has been republished and adapted with permission. The original publication can be located within The Conflict Management Academy.
When we look at how people typically promote conflict-related services, such as mediation, the services are often presented as a better option than other alternatives. In fact, this thinking is even found in the name “alternative dispute resolution”.
However, psychological research shows that using ‘scare’ tactics to try to motivate someone to do something tends not to work. This can be explained by what Wayne Hershberger (1986) first called “the law of approach and avoidance” and means that we tend to move towards pleasure and away from pain.
While you might think that telling someone about all the bad things that might happen if they leave their conflict unresolved would motivate them to move away from those bad things towards something better (e.g. mediation), the problem is that we have promoted our service by reference to the bad things, so they may well subconsciously move away from us!
When we feel an emotion that we find unpleasant, our brain’s natural response is to move away from the thing related to that emotion. In contrast, when we feel an emotion that we find pleasant, our brain is wired to approach.
However, in Shari Talbot’s book The Influential Mind, she explains that when we are trying to influence someone to do something, we have to be careful how we apply this logic. While we tend to move away from something that we see as unpleasant, we can also stop moving altogether if we are not sure about what we are moving towards.
Our brains are wired in such a way that anticipating a reward not only triggers approach, it is more likely to elicit action altogether. If you want someone to act quickly, promising a reward that elicits an anticipation of pleasure may be better than threatening them with a punishment that elicits an anticipation of pain.
In short – if we are trying to avoid something bad, we may move away from it, but we may also freeze if we are uncertain about what lies ahead of us. In contrast, if we know that something positive and rewarding lies ahead of us, we are more likely to actively take steps towards that better option.
This works for both words and images.
A study of crowd funding requests carried out by Alexander Genevsky and Brian Knutson in 2015 examined 13,500 online requests for funding. These requests were often for financial support for people needing expensive medical treatment, and counter-intuitively, the research found that crowd funding requests were more likely to raise money if they showed someone happy and well rather than someone sick in a hospital bed.
If you search online stock photo libraries for photos relating to “conflict resolution”, you will perhaps be surprised to find that many of the images do not illustrate “resolution” but rather show people in conflict.
Here are some examples:
As well as the law of approach and avoidance, we need to consider people’s need for a sense of certainty and control.
Warnings and threats limit people’s sense of control, so instead we need to emphasize what needs to be done to reap rewards – which increases their sense of control.
So, what does this mean for marketing a service like mediation?
Firstly, talk about the benefits that clients will achieve by participating using an approach framework. Don’t just talk about the bad things they will avoid; also talk about the good things they will gain so that they can manage risk and also know what they can work towards.
Secondly, emphasise the client’s opportunities to make choices and take control of their future.
Thirdly, use positive images on your website, that show how people will feel and behave after they have used your services.
Here are some examples:
Review your promotional material. If you want to make sure you are marketing your mediation services effectively, think about how much of your content is about what clients can avoid by engaging your services and how much of your content is about what clients can gain (rewards, pleasure) by engaging your services.
Think about the kinds of images you use. Consider whether those images show the problem a client wants resolved or how the client will feel after they work with you? Consider ideas that describe the outcomes people will gain from working with you and the associated positive emotions that those people will elicit.
Author Biography
Dr Samantha (Sam) Hardy is the Director and Lead Trainer of the Conflict Management Academy. Sam is an experienced mediator, conflict coach, and the founder of the REAL Conflict Coaching System™. She provides conflict support to managers and leaders across the world as well as professional development training, supervision and mentorship to mediators and coaches who work with clients in conflict. Sam is an accredited mediator under the Australian National Mediation Accreditation System (NMAS), a certified transformative mediator by the United States Institute of Conflict Transformation, and a certified narrative coach. She has been awarded Conflict Coach of the Year at the Australian Dispute Resolution Awards in 2022 as well as the Australian Resolution Institute Award for Service to Dispute Resolution in 2021 for her leadership and innovation in the field. Sam also publishes widely in dispute and conflict resolution, including Dispute Resolution in Australia, Mediation for Lawyers and Conflict Coaching Fundamentals: Working with Conflict Stories.
This post is the fourth in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.
Where Does Australia Sit in the International Dispute Resolution Field?
The research conducted for the MSB, referred to above, used several key indicators for establishing a comparison between a number of jurisdictions: Australia, New Zealand, Singapore, Honk Kong, United Kingdom, USA and also against the multi-national International Mediation Institutes system. These indicators were:
Regulation of Mediation
Accreditation Systems
Mediation Style
Specialisations
Let me deal with each of these aspects in turn.
Regulation
What the researchers concluded was that Australia sits approximately “in the middle” of regulatory regimes. They contrast Australia with the Italian legislated system which mandates areas where mediation may be conducted and also with the UK and USA systems where mediation is largely unregulated. Australia, like all of these jurisdictions does have civil procedure rules that promote the use of dispute resolution and dispute resolution processes. However, what is noteworthy about both Australia and New Zealand jurisdictions is that they do legislate for the use of conciliation across a range of conflict areas and for dispute resolution processes in family law matters. In Australia family dispute resolution practitioners (FDRPs) are required to have obtained certain qualifications and be registered to practice in that field. This is contrasted with the situation in Singapore where judges take a proactive approach in managing family disputes where they can appoint anyone to act as mediator as there are no legislative requirements for mediator qualifications. Other jurisdictions, such as the UK and Hong Kong, maintain registers or panels of family mediators, but again without any legislative scheme for the requirements of mediators.
In Australia likewise many conciliation schemes require certain qualifications for practice including mediation (NMAS) accreditation in many instances. Our own review research showed that most conciliators reported that they followed a “mediation” type process.
Accreditation
In reference to accreditation all of the mediator accreditation systems analysed require training (usually a five-day course) with an assessment and application process. There are national mediator accreditation systems in Australia, Hong Kong and Italy. Hong Kong and Italy operate centralised accreditation systems (Hong Kong Mediation Accreditation Association Limited (HKMAAL) and the Italian Ministry of Justice, respectively), while Australia has a decentralised system through Registered Mediator Accreditation Bodies (RMABs). However, in other countries, accreditation systems are generally managed by professional organisations, which each have their own standards. Therefore, the credibility or status of accreditation in these latter countries is organization and often discipline dependent.
Mediation Style
In relation to mediation style there appears to be a consensus among jurisdictions that mediation standards either do not presume a particular style of mediation or presume the facilitative style of mediation. It is clear that the “definition” of mediation in NMAS could be regarded as a facilitative one. However these Standards also allowed for a “blended process” which could involve the giving of advice. They also allowed for conciliation to be recognised as part of a mediators practice. In other words, the Australian system allows for some flexibility in mediation style. This seems to be replicated in other jurisdiction New Zealand and the European Union. There has been a slight change under the new AMDRAS regime where facilitative mediation is preferred as the training model for accreditation and is not defined but rather described. This is coupled with the adoption of a broad-based outline of professional practice called the “four professional domains” which are outlined in detail in Part V of the AMDRAS standards. These provide a much more wholistic description of mediation practice than one limited to a definition.
There were several reasons for this preference for a definition. Like Boulle I find the use of definitions for mediation (and other dispute resolution practices) problematical in that a definition is like a picture of a dancer on a wall. It gives you a static glimpse of something but does not allow for the spontaneity, fluidity and improvisations that a real dancer may go through. I also note that NADRAC, when it provided a comprehensive glossary of dispute resolution terms in 2003, suggested that it is better to describe rather than define such terms. Also, an expert legal drafter that the MSB used to provide advice upon an early draft of the revised standards advised against providing a definition because it could potentially add to liability problems for mediators both in terms of process and outcomes.
The AMDRAS standards provides therefore, in effect, for a range of mediation type practices in acknowledgement that this is how practice is done. My view is that it is generally best to teach a facilitative model in initial mediation training to equip mediators with a wide and inclusive variety of skills but fame in against the reality of actual practice. This realistically reflects the increasing diversity in mediation practice both domestically and internationally.
Specialisations
Regulatory attempts to allow for specialisation seem to be limited globally. In Australia conciliation is historically regarded as distinct from mediation and there is interest in developing it as a specialisation. A report by ADRAC in 2021 showed that over 100 pieces of legislation prescribe conciliation as part of a dispute resolution process. This Report attempted to discern separate definitional and operational domains for conciliation. However, I agree with Professor Laurence Boulle’s 2022 critique that the ADRAC’s attempt to define conciliation so as to differentiate it from mediation is not convincing and instead demonstrates a considerable number of similarities and overlaps. He argues that “…definitionally, practically and professionally…” attempts to differentiate the two “twins”, as he termed the processes, are undermined by the diversity inherent in both. Also, it is my view that attempts by certain groups organisations to promote this differentiation is and will be counterproductive and goes against both practice trends and wider developments internationally. It was notable that the initial research for the review of the standards commissioned by the MSB, demonstrated that most conciliators tend to use the same process as mediators and seek the same CPD activities as mediators. The context of practice is obviously important as most conciliation is conducted under regulatory schemes where they have a legislated right or obligation to ensure compliance with the scheme. This distinction between the two processes does not seem to be as apparent in other jurisdictions outside Australia. Further, it is clear that internationally the trend is to incorporate conciliation within the rubric of mediation.
It is noted that the Singapore Convention, which Australia is a party to, has adopted a more inclusive terminology by formally incorporating a number of processes within the term “mediation.” It is also worth noting that whilst UNCITRAL introduced conciliation rules in 1980 these were amended in 2018 to become the UNCITRAL Model Law on International Commercial Mediation. The UNCITRAL model law offers member and non-member states a regulatory model for adoption, with or without amendment, into their domestic legislation. The change in nomenclature from “conciliation” to “mediation” is not insignificant and reflects the international trends towards the latter. One could also, amongst others, note the EU Mediation Directive on Civil and Commercial Aspects of Mediation. This Directive establishes a regulatory framework within which EU member states are required to address aspects of crossborder civil and commercial mediation law throughout the European Union.
What AMDRAS does now is to allow for the possibility of specialisations where a practitioner is both registered as an accredited mediator and “….has met the criteria of specialist accreditation specified from time to time by the Board.” The AMDRAS Board may act on its own motion, or on application from a relevant organisation or organisations for recognition under AMDRAS of a Specialist Dispute Resolution program which the organisation/s administers. The criteria, including CPD and practice requirements, once set by the Board will be published as an addendum to the Standards. This would provide an avenue for specialisations within the dispute resolution field to seek and apply national standards. It potentially addresses some of the developmental issues occurring in the field and would, for example, allow national recognition of international mediation, online dispute resolution, conciliation, elder mediation and family dispute resolution programs and processes.
As noted, the new AMDRAS provides a broad description, but not a definition, of mediation and dispute resolution which would encompass a variety of processes including conciliation just as the previous NMAS did. Further, it recognizes that mediators practice across a broad spectrum of non-determinative dispute resolution practices using a broad range of methodologies.
Author Biography
Peter is a Barrister, qualified teacher and mediator. He has also been previously employed in several management and human rights roles including with the United Nations. He is an experienced teacher presenting courses in universities and other organizations. His book “Conflict Management: A Practical Guide” (Lexis Nexis, 2019, 6th Ed.) is well known to many dispute resolution practitioners and negotiators with a 7th edition to be published in 2025. He is Chair of the Australian Mediator and Dispute Resolution Accreditation Standards Board (formerly the Mediator Standards Board) and has served as a Director since 2019 holding positions as Secretary and Convenor of the Research and Review Committees. As well he was the initial drafter of mediation courses for the Dispute Resolution Centres of Victoria; Department of Justice (QLD); the Institute of Arbitrators and Mediators (IAMA – now part of the Resolution Institute) and the Victorian Bar. He is the Principal Instructor in the Victorian Bars’ Lawyers Mediation Certificate which is a specialist course for lawyer mediators. He was the founding President of The Victorian Association for Restorative Justice and is Deputy Chair, ADR Committee of the Victorian Bar, Deputy-President, Council of the Ageing (Vic.), and Member, Senior Rights Victoria Advisory Committee.
This post is the third in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.
When in 2019 we started the review of the NMAS it was with one eye on international and cultural undercurrents that it may interact with it as noted above. Accordingly, Resolution Resources (RR), the independent contractor employed to do the initial research, provided the Board as part of its contracted work a document titled, “Situating the Current NMAS Within the Broader Dispute Resolution Field: An International Comparative Analysis NMAS Review 2020- 21.”
More generally before and through the course of the review it had also become apparent to the Board that there were a number of issues with the system that required addressing including:
How to respond to the emergence of disparate non-determinative dispute resolution practices (NDR) that could possibly benefit from access to an accreditation scheme.
Issues in interpretation of the standards and interaction with public (website based) information.
Constitutional arrangements around MSB membership which seemed to be moribund.
A need for greater MSB oversight of training including the establishment of training objectives and attributes.
The engagement with and involvement of indigenous communities.
The lack of a structure for advancement and recognition of practice experience.
The need for a clearer and accessible complaints mechanism for users of services.
A lack of understanding in some areas of the dispute resolution community about the scope and advantages of a national system of accreditation
The review process involved extensive engagement and conversations with all MSB members, State and Commonwealth courts and tribunals, universities and training organisations, accredited and non-accredited mediators, and various other stakeholders across the dispute resolution community.
RR delivered its final report in the second half of 2022 which included a finding that, whilst the facilitative model of mediation remains a strong foundation, many accredited and nonaccredited mediators step outside of that model in their day-to-day practice. The research highlighted that the practice of mediation has evolved over time and developed a wide reach including to legal systems, workplaces, elder mediation, restorative justice processes and indigenous peacebuilding. It is because of these developments that the Board considered that there was a need to rewrite and further develop the standards to make them more up to date, more flexible and consistent with the perceived needs of those providing and practising in this field.
The research also found that there was a perceived need for greater clarity in the training requirements for accreditation and how, once accredited, mediators could seek further opportunities, if they desired, to seek more advanced levels of accreditation. The trainers engaged in training our mediators perhaps required some more guidance and the Board itself needed to ensure that those doing the training were accredited so that there was both some understanding of and commitment to the standards. Up until this time training as it developed under NMAS, in the sense of who did it and how it was delivered appeared ad hoc and piecemeal. In my view this has been an enduring weakness in the system.
Since the delivery of the research the MSB has spent significant time developing a revised set of national standards recognising these key findings whilst seeking to stay true to the original objects of the MSB. That is, to promote and maintain consistent and quality mediation training, accreditation and practice, primarily for reasons of consumer protection.
The new standards are structured in a way that will provide more guidance to stakeholders and the opportunity for the standards to continue to evolve alongside the practice of “dispute resolution” in Australia. I prefer the words “conflict management” but “dispute resolution” is a term more commonly in use. “Conflict management” is, in my view, a more inclusive term and provides a better framework for practice for the simple reason that while many conflicts cannot be resolved, most can be managed. Further, in many situations the generation or escalation of conflict is both an honourable and worthwhile objective if managed properly. So, while the aim of much conflict management is the resolution of that conflict, it is more realistic (and logical) to accept that this will not always be achievable, or even desirable, in some circumstances. In other words, the term avoids the possible assumption that to be successful or to have a positive outcome the conflict must be resolved.
In late 2023, a draft of the revised standards was published. What followed was an extensive consultation process, including a series of online presentations and Q&A sessions presented by MSB directors. The MSB also received and has since reviewed dozens of written responses from various stakeholders and dispute resolution practitioners as well as members. This feedback led to further amendments to the earlier draft, with the final version released on 1st May 202424. The box below outlines the major changes to the system.
Key Features of AMDRAS
Facilitative mediation remains the foundation for initial training and accreditation but, as before, there is provision to allow accredited mediators to deliver other models.
Mediation is described (but not defined) and four core “Professional Practice Domains” are defined and articulated to give a more rounded overview of what the knowledge and practice base of mediation encompasses. These are Professional Knowledge, Professional Skills, Professional Ethics and Responsibilities and Professional Development. These guide the development of key principles in the standards and through training delivery and continuing professional development.
Initial training has been increased from 38 to 45 hours and ongoing training requirements have been further developed and clarified.
The potential for specialisation have been introduced and it is expected that these specialisations will involve training additional and supplementary to the core training.
Levels of accreditation are introduced, namely Accredited Mediator, Advanced Mediator and Leading Mediator, each with different practice and CPD requirements. Apart from the initial Accredited Mediator level these are voluntary and noncompulsory components of the system.
A code of ethics is included for the first time.
Training providers under AMDRAS will need to be registered.
A model complaints management outline has been provided as an appendix to AMDRAS. This is based on a verified widely used model and intended as a guide to the minimum requirements for such a process.
In April 2024 the Board released a set of “transition rules.” The transitional provisions provided that all training and accreditation bodies would have a period of 12 months to transition from NMAS to AMDRAS. During this time existing RMABs and accredited mediators will be automatically re-registered under the new system with the opportunity to begin training and accrediting to the AMDRAS standards once the revised processes have been reviewed and approved by the Board. The transition period will begin on 1 July 2024 and last until 30 June 2025.
On 1st May 2024 the MSB published a series of guidelines for each of the major stakeholder groups (mediators, accreditation bodies and training providers). The Board, recognises that the transition from NMAS to AMDRAS will likely impact resourcing and requirements of all organisations involved in mediator training and accreditation. To this end the MSB has begun a review of this aspect.
The culmination of the review process and introduction of AMDRAS represents an important evolution of mediator accreditation, training and practice in the Australian dispute resolution landscape. The introduction of the possibility of developing specialisations within a national regulatory framework in an innovative development which will take some time to evolve and develop. Once settled and operating the system will hopefully continue to evolve and be adaptable to the changing requirements of a more diverse and complex environment.
Author Biography
Peter is a Barrister, qualified teacher and mediator. He has also been previously employed in several management and human rights roles including with the United Nations. He is an experienced teacher presenting courses in universities and other organizations. His book “Conflict Management: A Practical Guide” (Lexis Nexis, 2019, 6th Ed.) is well known to many dispute resolution practitioners and negotiators with a 7th edition to be published in 2025. He is Chair of the Australian Mediator and Dispute Resolution Accreditation Standards Board (formerly the Mediator Standards Board) and has served as a Director since 2019 holding positions as Secretary and Convenor of the Research and Review Committees. As well he was the initial drafter of mediation courses for the Dispute Resolution Centres of Victoria; Department of Justice (QLD); the Institute of Arbitrators and Mediators (IAMA – now part of the Resolution Institute) and the Victorian Bar. He is the Principal Instructor in the Victorian Bars’ Lawyers Mediation Certificate which is a specialist course for lawyer mediators. He was the founding President of The Victorian Association for Restorative Justice and is Deputy Chair, ADR Committee of the Victorian Bar, Deputy-President, Council of the Ageing (Vic.), and Member, Senior Rights Victoria Advisory Committee.
This post is the second in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.
The Evolution of the Australian Way
The NMAS was a very Australian way of regulating practitioner training, skills development and registration. Since its commencement in 2008 it has, until this recent review, remained virtually static as the mediation field around it has evolved. But even after this review its four central core features of voluntariness and decentralisation, reflexiveness and responsiveness remains.
It relies on voluntary compliance by the accreditation bodies (formerly called Recognised Mediator Accreditation Bodies (RMABs) and now termed Recognised Accreditation Providers) that agree to accredit mediators in accordance with the requisite standard. Involvement in the system is not mandatory and is reliant upon voluntary compliance and membership.
It can be described as an industry based decentralised system where training (both initial and ongoing) as well as registration is conducted by a number of disparate organisations known as Recognised Mediator Accreditation Bodies (RMABs). In many ways it both mirrored and accommodated the Australian federal constitutional system which “spreads” various aspects of governance and administration across multiple representative parliaments and bodies to accommodate the needs of widely disparate but culturally contiguous geographical regions. This decentralized regulatory system is replicated in many parts of the Australian workplace and economy. In part this is a recognition of the vast distances involved but also of the protection of more localised interest groups.
At about the time the NMAS was formed in 2008 Nadja Alexander insightfully described it as a “self-regulatory” approach to regulation embodying reflexive and responsive approaches or theories. These terms she defines as:
“Responsiveness refers to collaboration between government and the group or collective being regulated. Reflexion means that actors have the opportunity to identify issues, reflect upon them and negotiate their own solutions. In their purest form self-regulatory approaches refer to community-based initiatives embracing collaborative, consultative and reflective processes, as distinct from top down policy regulation.”
If one looks at the foundation documents that relate to the formation of the NMAS one can see these core elements being engaged. The role of government seeding grants and reports published by affiliated government bodies associated with a groundswell from industry groups and mediators themselves came together to create the initial framework. It is a regulatory framework that contrasts with more highly centralised regulatory regimes in such disparate places as Hong Kong and Italy (the Hong Kong Mediation Accreditation Association Limited (HKMAAL) and the Italian Ministry of Justice, respectively) which Alexander would probably term a “formal legislative approach”. But it also can be contrasted with more open association market-based systems such as presently operating in the United States of America and the United Kingdom. In many ways it can be seen as a “middling approach” to regulation and compliance.
The provenance of this model went back, at least, to the year 2000 when a government affiliated advisory body known as the National Alternative Dispute Resolution Advisory Council (NADRAC) launched a discussion paper on “The Development of Standards for ADR” which formed the basis for consultation on this issue. This Report stated that:
“NADRAC proposes a framework for the development of standards for ADR, in which responsibility is shared across service providers, practitioners, and government and non-government organisations (Recommendation 1). It proposes the following strategies:
(i) Facilitate the ongoing development of standards at the sector, program and service provider level, in order to improve the quality of ADR practice and to enhance the credibility and capacity of the ADR field.
(ii) Implement particular standards, within a code of practice, in order to educate and protect consumers, and build consumer confidence in ADR processes.”
One can see in these initial proposals the genesis of the decentralised model. In March 2004, NADRAC released a further paper on mediator accreditation, “Who Says You’re a Mediator? Towards a National System for Accrediting Mediators”. The aim of this paper was to obtain information and to stimulate discussion in the lead‐up to a national workshop on mediation standards. Discussion on it was facilitated at the 7th National Mediation Conference in Darwin on 2 July 2004. With the help of a grant from the federal Attorney-General’s Department the Conference established a broad-based Committee to work on implementation and the establishment of the standards. Notably, for the system’s subsequent development this Committee was representative of the various industry sectors involved, reflected the geographic and disciplinary diversity of practitioners and included members who were suitably experienced in both the practice of mediation and its administration.
At a subsequent conference in 2006 the National Mediation Committee was then formed to attempt to move the proposal forward and to assist to draft standards and a system for mediator accreditation. However, this committee was not able to move the proposal forward and no accreditation system was established at this time. It was not until a further grant was obtained in 2007 by the Western Australian Dispute Resolution Association (WADRA) and a further period of consultation and refinement of the draft Standards made that they were finally operationalized at the beginning of 2008. Professor Tania Sourdin, the academic who conducted this second consultation, recommended and cemented in place the establishment of a voluntary industry system under which organisations that met certain criteria could accredit mediators. This has been a cornerstone of the system ever since. With the help of some more funding the National Mediator Accreditation Committee (NMAC) became the Mediator Standards Board in 2010.
In launching the MSB, his Honor Justice Murray Kellam AO, the then Chairman of NADRAC noted that Australia was the only country to have established a national scheme for mediator standards and accreditation and that the NMAS had ‘prompted the biggest transformation to the professional landscape in the history of mediation in Australia by providing an overarching, base level of accreditation for all mediators irrespective of their field of work.’ Whilst government seeding funds to initiate the NMAS had been obtained it was clear from the onset of these developments that the MSB would need to be wholly funded by RMABs and for practical purposes, by mediators seeking accreditation through RMABs. The MSB passed a significant milestone in 2015 when it successfully concluded a process of consultation and minor revision of the NMAS. The introduction of the new AMDRAS system represents the first significant review of the Standards.
Author Biography
Peter is a Barrister, qualified teacher and mediator. He has also been previously employed in several management and human rights roles including with the United Nations. He is an experienced teacher presenting courses in universities and other organizations. His book “Conflict Management: A Practical Guide” (Lexis Nexis, 2019, 6th Ed.) is well known to many dispute resolution practitioners and negotiators with a 7th edition to be published in 2025. He is Chair of the Australian Mediator and Dispute Resolution Accreditation Standards Board (formerly the Mediator Standards Board) and has served as a Director since 2019 holding positions as Secretary and Convenor of the Research and Review Committees. As well he was the initial drafter of mediation courses for the Dispute Resolution Centres of Victoria; Department of Justice (QLD); the Institute of Arbitrators and Mediators (IAMA – now part of the Resolution Institute) and the Victorian Bar. He is the Principal Instructor in the Victorian Bars’ Lawyers Mediation Certificate which is a specialist course for lawyer mediators. He was the founding President of The Victorian Association for Restorative Justice and is Deputy Chair, ADR Committee of the Victorian Bar, Deputy-President, Council of the Ageing (Vic.), and Member, Senior Rights Victoria Advisory Committee.
This post is the first in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.
The Australian system appears to be a unique industry-based system which allows for a common accreditation of mediators across a wide spectrum of professional disciplines. Furthermore, it is a decentralised and diverse system allowing for different styles of mediation whilst maintaining robust central standards for both initial and ongoing training. This latter aspect has been given more emphasis in the new AMDRAS system. The decentralisation of the Australian system makes it flexible in allowing for the cohabitation of the dispute resolution space by different species of practitioners and organizations which are widely divergent in their interests and social functions. The regulatory landscape of Australia provides for some legislative intervention in particular categories of disputes and dispute resolution which allows for a strong culture of private practice and referrals alongside a range of government run or funded services. These unique factors have caused a fusion of thought and practice which has positioned Australia as a country where mediation, and dispute resolution more generally, has matured and diversified under the rubric of a common set of core values. The combination of a decentralised system with adherence to a core set of principles has served the Australian community well since 2008 and will continue to do. Importantly, it will also fit more easily into trends identified in the international mediation field.
Background
As Nadja Alexander a Singapore based academic and an expert on comparative Australian and international conflict management systems stated in a recent paper,
“lf the 20th century was the arbitration century then this century, without a doubt, is the mediation century. The need for greater flexibility, diversity and accessibility in dispute resolution has challenged legal and arbitration systems and opened the door to dispute resolution mechanisms that feature co- operative, interest-based approaches to decision-making that can move easily across cultures…”
What Alexander concluded was that mediation as a process was increasingly the “process of choice” in international dispute resolution in the 1990s and, more recently, the legal instruments to regulate it. She argues that the growing internationalisation of mediation has led to a greater appreciation of diverse practice models and the cultural assumptions underpinning them. To her, and others, it is clear that mediation and other dispute resolution processes have both to be understood in both cultural and international contexts. This was something that the Mediator Standards Board (now the AMDRAS Board) also considered when, in 2019 it began to consider changes to the Australian accreditation system. As part of the tender process the contractor was asked to “…include a review of comparative international regulatory dispute resolution systems…”. It was clear that we had to place ourselves both in cultural and international contexts so as to better understand what we were undertaking.
At about the same time as the international context of mediation was changing in the 1990s my own professional practice took me into a number of pivotal experiences that informed how I think about the interaction of conflict management processes, place and culture. The first was my experience in Cambodia in the 1990s as a United Nations Human Right worker and educator. Cambodia, at that time was a society where the rule of law and civil authority were minimal, and it impacted upon the ways in which its members managed conflict. This experience had a significant impact on me and pricked my interest particularly in restorative justice processes but also how conflict is managed in different cultural contexts. There is one incident that was particularly informative and that was to do with the murder of a “witch” in a town called Sisophon in the then wilds of north-west Cambodia. She practised her craft in a nearby village. Unfortunately, the village had experienced some unexpected bad luck, which resulted in several deaths and illnesses. The relatives of the victims blamed the witch. They decided that the best course of action was to kill her. They approached the headman of the village with their plan and he approved. The unfortunate witch was killed.
The police were called in. Rather than arresting the suspects, the police called a meeting of the witch’s aggrieved relatives and the perpetrators. The meeting was held to discuss compensation to the witch’s relatives. This done, the matter was closed. Presumably, the police and the headman both received a share of the proceeds.
No attempt was made to bring the perpetrators of the crime to justice. No formal charges were laid. It was as if the State of Cambodia with its panoply of Western-style laws did not exist. The idea that the State may have an interest in these events was not contemplated or, if it were, it was an interest of very low priority. The very idea of ‘crime’ was different here. These events reminded of similar stories from the medieval Europe.
This was only one of a large number of instances that came to my attention where Cambodian citizenry and officials reached their own solutions to problems and conflicts. The desire to engage in ‘self-help’ or third-party interventions outside the formal legal system was widespread. The killing of “witches” in Cambodia appeared to be common, as I came across a number of prisoners described in the official records as ‘witch killers’.
Unlike our concept of public wrongs, which entitles the State to interfere in the lives of its citizens, the fate of the witch of Sisophon was determined by proto-State concepts of private and communal interests. The definition of crime was not the prerogative of the State but that of the people directly involved and according to their local customs. In Cambodia, even today there is often little understanding of, or perceived need for, a high-level justice system to protect citizens from often authoritarian or fearsome regimes. The rhythm of life beats to a different drum. Conflict and its various manifestations are perceived and dealt with differently in this society than they are others or in our own. In other words the context in which conflict and social wrongs occurs is critical to the form and function of processes engaged to deal with them.
The second major influence upon me was the work of John Paul Lederach whom I first encountered in the 1990s when I began to teach conflict management courses. Lederach argues that understanding conflict requires an understanding of the culture of a group. Lederach interprets culture to mean the shared knowledge schemes created by a set of people for perceiving, interpreting, expressing and responding to social realities around them. By comparing dispute processes in various cultures he provides clear examples of how dispute managers go through similar functions or phases but the form of these may vary widely.
The third was my contact with First Nations approaches to conflict which I began to be involved in as a mediator in the 1990s in Queensland. What I found through this experience was that my presumptions about mediation process and functions needed to be significantly adapted to this different cultural milieu. More recently some research partly funded by the AMDRAS Board and managed by Professor Tania Sourdin of Newcastle University has clearly indicated these differences and the inadequacy of our understanding of them. The key questions this research, and others like it poses, is how do we better understand indigenous systems of conflict management and how can we both adapt to them and engage them. This has been and still is a particular challenge for our national mediation accreditation system. So, what is this Australian accreditation system?
Author Biography
Peter is a Barrister, qualified teacher and mediator. He has also been previously employed in several management and human rights roles including with the United Nations. He is an experienced teacher presenting courses in universities and other organizations. His book “Conflict Management: A Practical Guide” (Lexis Nexis, 2019, 6th Ed.) is well known to many dispute resolution practitioners and negotiators with a 7th edition to be published in 2025. He is Chair of the Australian Mediator and Dispute Resolution Accreditation Standards Board (formerly the Mediator Standards Board) and has served as a Director since 2019 holding positions as Secretary and Convenor of the Research and Review Committees. As well he was the initial drafter of mediation courses for the Dispute Resolution Centres of Victoria; Department of Justice (QLD); the Institute of Arbitrators and Mediators (IAMA – now part of the Resolution Institute) and the Victorian Bar. He is the Principal Instructor in the Victorian Bars’ Lawyers Mediation Certificate which is a specialist course for lawyer mediators. He was the founding President of The Victorian Association for Restorative Justice and is Deputy Chair, ADR Committee of the Victorian Bar, Deputy-President, Council of the Ageing (Vic.), and Member, Senior Rights Victoria Advisory Committee.
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There has been a lot of talk about artificial intelligence (“AI”) in international arbitration in recent years. I vividly remember when I gave the keynote speech on “International Arbitration 3.0 – How Artificial Intelligence Will Change Dispute Resolution” at the Vienna Arbitration Days 2018. At the time, people were quite skeptical about the topic, but apparently intrigued enough to select it at the GAR awards as the best lecture of the year. Since then, the international arbitration community has evolved, and it is now undisputed that AI systems have a significant and increasing impact on international arbitration (see e.g., Maxi Scherer, Chapter 39: Artificial Intelligence in Arbitral Decision-Making: The New Enlightenment?, in Cavinder Bull, Loretta Malintoppi, et al., (eds), ICCA Congress Series, Volume 2, pp. 683 – 694 (2023)). For instance, counsel frequently employ AI tools for document review and research purposes, and there is a rising demand for these systems in transcription and translation tasks.
As AI systems continue to develop, it is also important to create a harmonized ecosystem where AI “collaborates” effectively with arbitration practitioners – be it with counsel or arbitrators. Among the most burning questions is whether there is a need to regulate AI, either broadly or in international arbitration more specifically. Recently, I gave the 6th Sciences Po Mayer Brown arbitration lecture on the question “Do We Need to Regulate the Use of Artificial Intelligence in International Arbitration?” While there is burgeoning regulation in court proceedings (such as by the UK Courts and Tribunal Judiciary and the Dubai International Financial Centre (DIFC)), very little exists that applies to international arbitration. In April 2024, the Silicon Valley Arbitration and Mediation Center published the “Guidelines on the Use of Artificial Intelligence (AI) in International Arbitration,” as an attempt to propose some form of optional regulation.
On a broader level, the European Union Artificial Intelligence Act (the “Act”), a landmark legislation that lays down harmonised rules on artificial intelligence, was adopted by the European Parliament on 13 March 2024 and will enter into force after its publication in the EU Official Journal. Despite being described as the most comprehensive piece of legislation in the AI field, the international arbitration community has paid little, if any, attention to this regulation and few practitioners are aware that the Act has the potential to apply to international arbitration proceedings (but see here), and in particular to arbitrators. This blog discusses how the activities of arbitrators may fall within the material, personal, territorial and temporal scope of the Act.
Material Scope
The Act takes a risk-based approach, which means that it classifies economic activities according to the likelihood of harm caused by AI systems, and the regulatory duties vary according to this level of risk (Recital 26).
For instance, there is a general duty of AI literacy, which means that providers and deployers of AI systems shall take appropriate measures to gain the knowledge and skills to “make an informed deployment of AI systems, as well as to gain awareness about the opportunities and risks of AI and possible harm it can cause” (Recital 56).
Activities of arbitrators may be classified as “high-risk”. Annex III, Art 8(a) provides that “AI systems intended to be used by a judicial authority or on their behalf to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts or used in a similar way in alternative dispute resolution” (emphasis added) are to be classified as high-risk AI systems. The reference to “alternative dispute resolution” is likely to include international arbitration. This is confirmed by Recital 61 which provides that “AI systems intended to be used by alternative dispute resolution bodies for [the purposes of the administration of justice and democratic processes] should also be considered to be high-risk when the outcomes of the alternative dispute resolution proceedings produce legal effects for the parties.” (emphasis added).
Article 6(3) contains exceptions to the high-risk classification, namely where otherwise high-risk AI systems are used in a way that does not pose a significant risk of harm to the health, safety or fundamental rights of natural persons. This applies to situations in which:
“(a) the AI system is intended to perform a narrow procedural task; (b) the AI system is intended to improve the result of a previously completed human activity; (c) the AI system is intended to detect decision-making patterns or deviations from prior decision-making patterns and is not meant to replace or influence the previously completed human assessment, without proper human review; or (d) the AI system is intended to perform a preparatory task to an assessment.”
In which circumstances these exceptions apply is not immediately clear from the Act. Nor is the answer clear to the critical question whether one can conclude from Article 6(3) that international arbitration will fall under the high-risk activities category only if natural persons are concerned.
Personal Scope
The Act distinguishes between different regulated entities. Providers, importers and manufacturers of AI systems bear the most stringent obligations under the Act (Articles 16, 25). However, “deployers” of AI systems also fall under the scope of the Act. A “deployer” is defined in Article 3(4) as “any natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity.” Arbitrators, as natural persons using AI systems for a professional activity, thus fall under the personal scope of the Act.
Deployers of high-risk activities have to follow a certain number of regulatory obligations, such as the obligations to (i) take appropriate technical and organizational measures to ensure that the AI systems are used in accordance with their instructions (Article 26(1)), (ii) monitor their operation (Article 26(4)), (iii) assign human oversight to natural persons who have the necessary competence, training, authority and support (Article 26(2)), (iv) ensure the input data is relevant and sufficiently representative (Article 26(4)), and (v) keep the logs automatically generated by the system for a period of at least six months (Article 26(6)). In certain situations, deployers have additional duties to carry out data protection impact assessments (Article 26(9)) and cooperate with national EU authorities (Article 26(12)). In case of non-compliance, financial and non-financial sanctions are foreseen (Article 99).
Territorial Scope
The Act outlines its territorial scope in Article 2. The Act applies if the deployer of AI systems either (i) has its place of establishment or is located within the EU (Article 2(b)); or (ii) has its place of establishment outside the EU but “where the output produced by the AI system is used in the Union.” (Article 2(c)).
The application of this provision to international arbitration is not straightforward.
Concerning Article 2(b), one could argue that the place of habitual residence of an arbitrator is where she is established or located. However, this means that in a three-member tribunal, one or two arbitrators might be covered by the Act, while the other one or two might not. An interpretation that favours a more uniform application amongst tribunal members would be to consider the place of establishment of the tribunal (as opposed to its individual members), which would likely be determined by the seat of the arbitration.
It is even more complicated to assess in which circumstances the Act could apply if we consider Article 2(c). The interpretation difficulty turns around the requirement that the output produced by the AI system must have been “used” in the EU. Arguably, if AI systems have been used by the arbitral tribunal, the AI system’s output has impacted the award, which in turn has legal effects on an EU-based party. Is the location of one of the parties in the EU thus sufficient to conclude that the “output produced by the AI system is used in the EU”? Or, otherwise, is it sufficient that an award could ultimately be enforced against assets located in the EU? If one were to answer in the positive, this would mean that the Act could have potentially significant extraterritorial consequences: it could apply even if the seat of the arbitration is outside the EU, the arbitrators are based outside the EU, and one of the parties is located outside the EU.
Temporal Scope
The Act will be implemented in stages. Most provisions related to high-risk AI systems will apply 24 months after the Act has entered into force (Article 113).
Fortunately, this means that the international arbitration community still has time to consider the extent to which the use of AI in international arbitration by arbitrators falls under the Act. What is sure, however, is that we need to engage in the debate!
I wish to thank Russell Childree, Dr. Ole Jensen, Andra Ioana Curutiu, Alice Dupouy, and Alexey Schitikov, colleagues at Wilmer Cutler Pickering Hale and Dorr LLP, for their research and assistance.
John Lande, JD, PhD This post is republished with permission. The original article is published within the University of Missouri School of Law the Legal Studies Research Paper Series.
In ‘Evaluative Mediation’ is an Oxymoron, Kim Kovach and Lela Love argued that evaluative mediation described in the famous Riskin Grid is a contradiction in terms – essentially not really mediation or the way that mediation should be. Len Riskin responded, “It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article.”
Although I share Len’s perspective, this article is not about what should or should not be legitimately considered as mediation.
This article riffs on comments at an excellent program during the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic these terms have become. It suggests ways that we in the dispute resolution field can decide to avoid speaking oxymoron.
Mediators’ Proposals
The ABA program described techniques for making mediators’ proposals. This procedure usually is a last resort after extended unsuccessful efforts to reach agreement. Typically, it is used in high-stakes cases where both sides are represented by attorneys. The parties want to settle but worry that one or both sides are taking unreasonable positions. The procedure can help parties feel more confident in their decisions.
Mediators make these proposals only if both sides agree to the procedure. Indeed, some mediators use the procedure only if suggested or requested by one or both of the parties. Mediators gives a proposal confidentially to each side. It reflects their perception of the terms that both sides would accept. It is not a prediction about the likely court outcome if the case were adjudicated.
If both sides accept the proposal, they have an agreement. If either or both parties reject the proposal, there is no agreement. A party that rejects the proposal doesn’t know if the other party has accepted it or not.
As this description illustrates, this is a specific procedure that the parties agree to, not a unilateral casual suggestion by a mediator.
Two Oxymorons
During the discussion, one person referred to mediators “facilitatively” making a proposal. Another person described mediators “empowering” the parties by asking how much risk they were willing to take. For example, if plaintiffs are willing to take more risk that the defendants would not accept the proposal, the mediators would propose a higher amount. If the plaintiffs were willing to take less risk, the mediators would propose a lower amount.
A recent article by Robert A. Baruch Bush, a founder of transformative theory, identifies the goals and purposes of transformative mediation as “[s]upport[ing] parties in changing their conflict interaction from negative / destructive to positive / constructive; help them recapture strength and understanding.” It requires mediators to “[p]rivilege party decision-making on all matters – content and process.” The reason for this approach is to promote “party empowerment and interparty recognition.” The article states that the “emphasis in the transformative framework on party empowerment opposes any effort by the mediator to bring the parties toward reconciliation.”
Arguably, mediators making proposals and inquiring about their preferred level of risk is transformative by asking about parties’ preferences about the procedure. However, it is designed to promote agreement and it is not designed to promote empowerment or constructive interactions between the parties. Nor is it how mediators generally understand transformative theory.
Presumably, members of the audience kinda, sorta, probably understood what the speakers meant by using the terms “facilitative” and “empower.”
But why misuse terms from traditional mediation theory when there is plain language that expresses these ideas more clearly and without contradicting traditional theory?
How You Can Avoid Speaking Oxymoron
As a public service, this article provides the following suggestions to help you avoid the embarrassment of speaking oxymoron. These suggestions have the added value of making our language intelligible to civilians.
Instead of using the term “facilitative,” we might say the following, adapted from Riskin’s original account:
Helps parties develop ideas and proposals
Helps parties evaluate ideas and proposals
Asks parties about consequences of not settling
Asks parties about likely court or other outcomes if they don’t settle
Asks parties about the strengths and weaknesses of the arguments
Note that these are very different techniques. Mediators often use some but not all of them in a given case.
Listening to people using the term, however, they kinda, sorta, probably mean some of the following:
Is friendly and respectful
Helps parties understand their case and their options
Doesn’t (explicitly) pressure parties
Here are the elements of “evaluative” mediation from Riskin’s article:
Urges / pushes parties to accept settlement
Develops and proposes agreements
Predicts court outcomes and consequences of not settling
Assesses strengths and weaknesses of each side’s case
Again, these are different techniques and mediators who are allegedly evaluative don’t use all of them in a given case. When people use the term, they kinda, sorta, probably mean some of the following:
Is aggressive
Doesn’t listen to parties
Pressures parties to accept the mediators’ ideas
Bush’s description of empowerment is included above. When people use the term “empowerment,” they kinda, sorta, probably mean that the mediator helps parties understand their case and options so that they feel more informed, confident, and assertive and thus can protect their own interests.
Maybe people mean other things when they use the traditional terms of facilitative, evaluative, and empowerment. Who knows? When people use these terms, we don’t really know what they actually mean. We kinda, sorta, probably think we know. But we don’t really know.
As so-called communication experts, it would be nice if we could speak and write so that people actually do know what we mean.
A radical concept.
Try it. You’ll like it.
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 has been written by Judith Rafferty, adapted from her Open Educational Resource (OER) Neuroscience, psychology and conflict management (2024), licensed under a Creative Commons Attribution NonCommercial 4.0 Licence by James Cook University.
Neuroscience, psychology and conflict management
In a previous post, I discussed the value of neuroscience and psychology knowledge to inform conflict management theory and practice. In this post, I discuss specific learnings gained from cognitive psychology, focusing on memory and the phenomenon of priming.
Memory in conflict management
Conflict management practitioners – these include mediators, facilitators, coaches and negotiators – and negotiating parties often need to handle complex issues and juggle multiple pieces of information during a conflict management process. For example, conflict parties frequently must remember what they said, thought and did in the past, and process new information for future decision-making. These tasks require all types of the human memory, including:
sensory memory
short-term memory
long-term memory
In this post, I focus on long-term memory and the phenomenon of priming, due to its applicability to conflict management. Before discussing priming in more detail, let’s have a brief look at what the long-term memory comprises.
Long-term memory
The long-term memory can be categorised as explicit and implicit memory.
The explicit memory, also known as declarative memory, refers to the type of memory that a person is consciously aware of. “You know that you know the information” (Gluck et al., 2020, p. 280). It comprises both memory of facts and general knowledge (semantic memory) and memory of personal experiences (episodic memory).
The implicit memory, by contrast, refers to memory that operates without the learner being consciously aware of it. Implicit memory is formed by:
Priming is a psychological phenomenon where exposure to a stimulus influences how we respond to subsequent stimuli, and how we perceive and interpret new information. As defined by Gluck et al. (2020), priming is
“a phenomenon in which prior exposure to a stimulus can improve the ability to recognize that stimulus later” (p. 88).
Similarly, Kassin et al. (2020) describe priming as
“the tendency for frequently or recently used concepts to come to mind easily and influence the way we interpret new information” (p. 118).
In essence, priming makes certain concepts or ideas feel familiar, even if we aren’t consciously aware of the exposure.
For example, research has shown that if we’re subtly exposed to specific words or images, we may later be more likely to recognise or choose something related to those stimuli (Gluck et al., 2020; Goldstein, 2019; Kassin et al., 2020).
The impact of priming on social behaviour
Exposure to a stimulus can also lead people to behave in a particular way without their awareness, especially when the stimulus was presented subconsciously. The impact of priming on social behaviour has been demonstrated in research, including in a series of provocative (and debated) experiments by Bargh, Chen and Burrows (1996). In this study, participants were primed with different words that were thought to influence their behaviour.
For example, in experiment 1, participants were primed to activate either the constructs “rudeness” or “politeness” and were then placed in a situation where they had to either wait or interrupt the experimenter to seek some information. The research found that participants whose concept of rudeness was primed interrupted their experimenter more quickly and frequently than did participants primed with polite-related stimuli.
In experiment 2, participants were primed with words that activated elderly stereotypes. The study found that participants for whom an elderly stereotype was primed walked more slowly down the hallway when leaving the experiment than did control participants, consistent with the content of that stereotype.
How does priming relate to conflict management?
The phenomenon of priming can both help understand what creates conflict and how we can support parties in conflict management/ resolution. Most of the publications discussed in this post focus on mediation, but many of the findings could also find application in other conflict management process such as group facilitations and one-on-one conflict management coaching.
Priming in mediation
Daniel Weitz, in his article The brains behind mediation: Reflections on neuroscience, conflict resolution and decision-making discusses how priming can influence the mediation process. He suggests that using words like “listen to,” “hearing each other,” “dialogue,” “options,” and “future” in their opening statements, mediators may be able to “prime” parties for collaboration rather than competition (p. 478).
Similarly, Hoffman and Wolman in their article The psychology of mediation note that the mediator’s initial description of the mediation process is the most powerful form of priming in mediation. Based on priming studies (which the authors mention but don’t specifically list), they suggest that mediators may wish to include expressions such as “being ‘flexible’ and ‘open-minded,’ the goal of reaching ‘a fair and reasonable resolution,’ and the need for ‘creativity’ and ‘thinking outside the box’” in their opening statements (p. 3).
Beyond the mediator’s opening statement, Sourdin and Hioe, in their article Mediation and psychological priming, discuss other opportunities for priming during the mediation process. They suggest that mediators can “strategically moderate the environment” to foster a positive atmosphere and encourage successful outcomes (p. 79). Such moderation can be achieved, for example, by carefully selecting and setting up the physical location of the mediation, including considerations of room colour, temperature, and the provision of food and water.
Amanda Carruthers, in her article on The impact of psychological priming in the context of commercial law mediation, explores factors such as the physical appearance of the mediator and legal representatives, the choice of venue, language use, and the influence of stress and references to money. She concludes that mediators and legal practitioners should avoid overt priming cues related to strength, power, and money to improve the positions of both parties in a commercial mediation.
How priming can affect perception
People are particularly likely to rely on the priming effect when new information is ambiguous. This is because we rely more on top-down processing than bottom-up processing when we are confronted with an ambiguous stimulus.
Bottom-up processing begins with our receptors, which take in sensory information and then send signals to our brain. Our brain processes these signals and constructs a perception based on the signals. When our perception depends on more than the stimulation of our receptors – and this is frequently the case when information is ambiguous – we speak about top-down processing. During top-down processing, we interpret incoming information according to our prior experiences and knowledge. This process is frequently referred to as concept or schema-driven. As we learned earlier, when we have been primed, frequently or recently used concepts come to mind more easily and influence the way we interpret new information.
In her blog post Priming in psychology, Kendra Cherry discusses how the priming effect influences what people hear when confronted with ambiguous auditory information, referring to the 2018 Yanny/Laurel viral phenomenon.
As an example for visual perception, Lisa Feldman Barrett explains in her book How Emotions are made how priming can significantly influence our visual perception of others’ emotions. She emphasises that facial expressions are often much more ambiguous than many popular readings suggest, which would make us particularly susceptible to the effects of priming. For instance, if we’re told a person in a photo is screaming in anger, we are more likely to see anger in their expression, even if this is inaccurate.
The person might actually be celebrating something positive, such as winning an important tennis match, potentially involving a whole mix of (positive) emotions, but the priming narrows our interpretation. With contextual information provided, we are likely to interpret the facial configuration more accurately than when taken out of context.
How does the priming effect and perception relate to conflict management?
A mediator might misinterpret facial configurations of parties in a mediation, perceiving emotions like anger, based on preconceived ideas of how people may “show” that emotion on their face, or influenced by comments made by the other mediation party.
Knowing about priming can sensitise us to potential misinterpretations of emotions and encourages us to use multiple cues and information to perceive parties’ emotions more accurately. For a more detailed discussion on the cues that we can use to more accurately perceive others’ emotions, see Chapter 3, Topic 3.4 in Neuroscience, psychology and conflict management. These cues and the topic of emotions in conflict is also discussed in much more detail in Sam Hardy’s course on Working with Emotions in Conflict.
Priming to improve inter-group relationships
Recent research by Capozza, Falvo and Bernardo explored whether activating a sense of attachment security through priming can reduce the tendency to dehumanise “outgroups”—groups with which individuals don’t feel a connection. They conducted two studies:
The first study primed attachment security by showing participants images of relationships with attachment figures and then measured how they humanised an outgroup, in this case, the homeless.
The second study had participants recall a warm, safe interaction to activate a sense of interpersonal security and then measured how they humanised another outgroup, the Roma.
Both studies found that attachment security led to greater humanization of outgroups, with the second study showing that increased empathy played a key role in this effect. These findings suggest that fostering a sense of security can enhance intergroup relations, which has implications for intergroup conflicts. The successful use of priming to boost feelings of security highlights the importance of applying cognitive psychology to conflict management.
The calming effect
Capozza, Falvo and Bernardo, in their article, discuss several further positive effects of security priming, many of which are relevant to conflict and conflict management/resolution. For example, they emphasise the calming effect of security priming, noting that “even a momentary sense of security can shift the attention from one’s needs to others’ needs…” (p.3).
Conflict management processes often aim to help individuals in conflict consider the needs and concerns of others. Understanding the calming effect of security priming and its ability to foster perspective-taking may provide conflict management practitioners with additional strategies to support their clients. Such strategies could consider aspects like:
The choice of physical setting for a mediation or coaching session (or other conflict management process).
The language used by the practitioner, such as during the mediator’s opening statement.
The types of questions the practitioner asks throughout the process.
Remaining questions and considerations
This post explored the priming effect and its relevance to conflict management, particularly in understanding why conflicts arise and how practitioners can support parties to manage or resolve them. Research suggests that there are multiple opportunities to prime parties during a conflict management process, such as mediation, as discussed in the sources mentioned throughout this blog. However, many questions remain, such as how much control a practitioner truly has over priming in a conflict management process Additionally, practitioners should consider the ethical implications, including the potential for manipulation, when applying priming techniques to their practice.
A full reference list of the readings referred to in this post that have not been linked in the text can be found here.
Author Biography
Judith Rafferty is an Adjunct Senior Research Fellow at the Cairns Institute, JCU, and a Senior Trainer at the Conflict Management Academy. She integrates over 12 years of experience as a conflict management practitioner, researcher, and educator/trainer. She holds a PhD in Conflict Resolution, a Master of Conflict and Dispute Resolution, a Graduate Business Administration Diploma, and a Graduate Certificate in Psychology. As a Senior Lecturer and former Director of the postgraduate Conflict Management and Resolution program at James Cook University, Judith played a key role in developing curriculum and training resources that assist professionals in navigating complex conflict situations. Judith can be contacted on: Email: judith@conflictmanagementacademy.com LinkedIn: https://www.linkedin.com/in/judith-rafferty-770a329b
This post has been written by Judith Rafferty, adapted from her Open Educational Resource (OER) Neuroscience, psychology and conflict management (2024), licensed under a Creative Commons Attribution NonCommercial 4.0 Licence by James Cook University.
Conflict Management: A Multidisciplinary Field
While there are designated conflict management scholars and practitioners, many ideas that inform both theory and practice come from outside the field. Individuals involved in conflict management often come from a broad spectrum of disciplines, particularly in the social sciences, such as psychology, sociology, history, geography, communication studies, political science, international relations, organizational behavior, and anthropology.
Contributions to conflict management are also made from the formal sciences like mathematics, physics, biology, and neuroscience. By exploring some of these disciplines in more detail, we can gain valuable perspectives that deepen our understanding of conflict formation, escalation, management, and resolution. Psychology and neuroscience offer some especially useful perspectives and are the focus of this post.
Similarly, the Australian Psychological Society (APS) highlights the contributions psychologists make to understanding and managing conflict. According to the APS, psychology provides key insights into the psychological factors that underpin social conflict and aims to identify effective ways to foster positive relationships and productive outcomes. These approaches include strategies for resolving conflicts and governance models that prioritise cooperation over coercion (APS, 2023).
Understanding Psychology: A Foundation for Conflict Management
Psychology focuses on the study of mental processes and behaviour (and their relationship) (Zimbardo, Johnson, & McCann, 2009). The field of psychology comprises multiple sub-groups, or branches of psychology (Mullin, n.d.). Some of these branches are especially relevant to conflict management, including personality psychology, cognitive psychology, and social psychology. So, what do these branches focus on and how are they relevant to conflict management?
Cognitive psychology
Most generally, cognitive psychology is concerned with the study of mental processes such as thinking, learning, remembering, perception, information processing, language, problem-solving, decision-making, and reasoning. Cognitive psychology also considers people’s emotions and the impact of emotions on cognition. All cognitive processes mentioned earlier, as well as the effect of emotions on them, are highly relevant to the experience and management of conflict. For example, multiple mental processes and emotions are involved when people try to resolve conflicts, e.g. they must retrieve information about past conflict events and make decisions as to how to move forward. At the same time, mental processes and emotions are likely to have contributed to and have been affected by the conflict in the first place. For example, many conflicts arise because people have perceived events differently. More information about how cognitive psychology may relate to conflict management can be found here.
Figure 2.2.1. Six or Nine? Image generated with Adobe Firefly; Rafferty, J. (2024). Neuroscience, psychology, and conflict management. James Cook University. https://doi.org/10.25120/k4vd-86×5
Personality Psychology
Personality psychology is the scientific study of the whole person (McAdams, 2009). It focuses on human individuality and may address questions like:
Why does Paul act more violently than Peter in the same situation?
Why do Tracey and Sam have such different ways of communicating and managing conflict?
Personality psychology is distinct from other branches of psychology by focusing more on the person than on the situation. This is not to say though, that personality psychology neglects the situation. But rather than exploring how most people would act under certain circumstances, personality psychology tries to explain or predict how a specific type of person would most react in each situation. Conflict management practitioners and theorists have noted the effects that individual differences in personality may have on the formation and escalation of conflict, as well as on conflict resolution processes and their outcomes (Sandy et al., 2014). More information on how personality psychology may inform conflict management can be found here.
Social psychology
Social psychology seeks to answer questions like:
Why do people act differently when they are in a group compared to when they are on their own?
Why do people behave differently among their co-workers compared to when they are with their friends and family?
Why do people hold prejudice and stereotypes against certain groups and how may these affect their behaviours?
How can social cohesion best be strengthened to prevent social division and conflict?
Social psychology may be defined as “the scientific study of how individuals think, feel, and behave in a social context” (Kassin et al., 2020, p. 4). All three areas, thinking, feeling, and behaving are involved and affected during the emergence, escalation, management, and resolution of conflicts. Several notable books in the field have focused on the applications of social psychology for conflict theory and practice, such as:
A more detailed discussion of the application of social psychology for conflict management can be accessed here.
Neuroscience and Conflict: Bridging the Gap
Beyond psychology, the field of conflict management is increasingly looking to neuroscience for insights into why conflicts occur and how they can be effectively managed or resolved. Many conflict management scholars and practitioners recognise that people’s brains and bodies are significantly involved in facilitating societal conflict.
For instance, Mary Fitzduff (2021) notes in her book Our brains at war that recent advancements in genetics, brain science, and hormonal research suggest that many personality characteristics are rooted in the brain’s biology. By offering “new and more sophisticated and nuanced insights into the way that people actually think”, neuroscience makes a critical contribution to the field of conflict management (Burgess, 2022). As another example, Bruneau (2015), in her book chapter Putting neuroscience to work for peace, emphasises the value of directly examining neural activity to transform psychology-based conflict theories into mechanistic understandings (p. 143).
Knowledge from neuroscience can also help inform and evaluate the purpose, potential, design and principles of justice and conflict resolution processes, as well as the role and skills of conflict practitioners. For instance, findings from neuroscience can increase our understanding of aggression in people, which again may have implications for processes like restorative justice, as discussed in a Ted Talk by Dan Reisel. Other examples of how neuroscience can inform conflict management theory and practice, as well as links to related readings, can be found here.
Neuroscience Meets Psychology: A Synergy for Conflict Management
Neuroscience is the scientific study of the nervous system and an interdisciplinary field that integrates biology, chemistry, psychology, and more. Of particular interest for conflict management theory and practice are the intersections between neuroscience and psychology. It may help to think of neuroscience as dealing with the ‘physical’ (brain) and psychology dealing with the ‘abstract’ (mind).
The functioning of our brain, hormones and neurotransmitters significantly affects our behaviours, cognitions, and social experiences. That is why the links between neuroscience and different areas of psychology are increasingly being recognised, studied, and taught. The growing recognition of these links has led to the emergence of new interdisciplinary fields, such as social neuroscience and cognitive neuroscience (Ito & Kubota, 2022). Both are highly relevant to conflict management theory and practice.
Knowledge from social neuroscience, for instance, can increase our understanding of intergroup and social conflict, including the sources and factors that create, perpetuate, contribute to, and escalate intergroup conflict. This knowledge may again inform the planning and design of conflict intervention initiatives to help manage intergroup and social conflict. You can find further readings about social neuroscience and intergroup conflict in the previously mentioned Peace and Conflict: Journal of Peace Psychology as well as other Peace Psychology publications, including the newsletter The Peace Psychologist and the blog Dialogues with Peace and Conflict.
Conclusion
The integration of psychology and its branches, as well as of neuroscience offers critical insights into the questions why conflict occurs, how it develops and how it may be managed. By exploring the connections between the human mind, brain, and behavior, conflict management can be more effective and nuanced. Many of these connections are discussed in more detail in Judith’s (2024) eBook Neuroscience, psychology and conflict management, from which this post has been adapted. A course on Neuroscience, Psychology and Conflict Management will also be developed next year to be offered through the Conflict Management Academy.
A full reference list of the readings referred to in this post can be found here.
Author Biography
Judith Rafferty is an Adjunct Senior Research Fellow at the Cairns Institute, JCU, and a Senior Trainer at the Conflict Management Academy. She integrates over 12 years of experience as a conflict management practitioner, researcher, and educator/trainer. She holds a PhD in Conflict Resolution, a Master of Conflict and Dispute Resolution, a Graduate Business Administration Diploma, and a Graduate Certificate in Psychology. As a Senior Lecturer and former Director of the postgraduate Conflict Management and Resolution program at James Cook University, Judith played a key role in developing curriculum and training resources that assist professionals in navigating complex conflict situations. Judith can be contacted on: Email: judith@conflictmanagementacademy.com LinkedIn: https://www.linkedin.com/in/judith-rafferty-770a329b
The Australian Dispute Resolution Research Network 