Author Archives: Milan A Nitopi

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About Milan A Nitopi

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!

Public expectations and confidence in the legal system: A brief thought

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On the 6th of June 2024, I attended a panellist event held at the Sydney Jewish Museum where the topic of concern was ‘Nazis in Australia: When History and the Law Collide’. Discussion surrounded the prosecutions brought against four suspected Nazi war criminals for crimes allegedly committed during World War II.

The panel consisted of Hon Greg James AM KC, Graham Blewitt AM, and historian Professor Konrad Kwiet. However, at the time of the prosecutions (during the late 80’s until the early 90’s) their involvement was as Chief Prosecutor, Head of the Special Investigations Unit, and expert historian called to the stand during proceedings.

Of the four cases launched against those suspected war criminals, none were successful.

During questioning, a guest in the crowd asked the panel about whether they saw their efforts as a failure–since no conviction was found. Messrs James and Blewitt emphasised that although, to some, this outcome might be regarded as a failure, the purpose of their efforts and involvement were not merely to obtain a conviction, but also to investigate those, and other, suspected war criminals living in Australia.

Mr Blewitt further explained that the Special Investigations Unit within the Attorney-General’s Department saw to investigate over 800 separate cases, with some suspects being renounced by virtue of those investigations.

It seemed as though few were dissatisfied with this response as I heard murmuring within the crowd. I imagine this kind of reaction arose from certain societal expectations of the criminal justice system not being met; and perhaps, it follows that the level of confidence in that system diminishes.

An established public confidence in a system or institution, whether it be the criminal justice system or otherwise, underpins its effective functioning–an idea that academics, such as Mack et al, continually raise. Notwithstanding its importance, a recent survey by the NSW Bureau of Crime Statistics and Research reported that the public were not overly confident (55%) that the criminal justice system brought people to justice.

Perhaps it is as former Chief Justice Gleeson put it: “Much of what we call public confidence consists of taking things for granted”. And perhaps, this is especially true for public confidence in the criminal justice system, where it is, taking that panellist event as an example, the overwhelming complexity of the legal system is what has been ‘taken for granted’.

To understand and navigate the legal system is complex to say the least. Even with the study and training required to become a lawyer and the further experience gained from one’s practise, it remains a life-long journey for a lawyer to continually add and update their knowledge as well as consider the deeper components which underpin the effective functioning of that legal system.

If this may be the case for us lawyers, how might non-experts struggle to comprehend and navigate the legal system, not to mention, that deeper level of understanding?

It appears that society is more generally outcome focused. I suggest this because, as per the Bureau of Crime Statistics and Research 2020 report, the majority (66%) expressed that criminal sentences were ‘too lenient’ and (56%) that the criminal justice system did not meet the needs of victims. That report acknowledges that levels of confidence in the criminal justice system have not improved over the decade, and by comparison with earlier snapshot reports published by the NSW Sentencing Council, this indeed appears to be the case.

In an effort for us lawyers to ensure we are doing the most we can to uphold public confidence in the legal system, moreover the criminal justice system, we must do what we can to positively transform societal expectations.

Taking us now back to the beginning when that guest asked their question, the response provided by Messrs James and Blewitt was, in my mind, a perfect one. Notwithstanding the apparent dissatisfaction by some guests in that crowd, it was a response equipped with information to evoke a positive transformation of one’s expectations of the criminal justice system. As lawyers, we should aim to do the same in our communication with others, that is, to respond in a way which evokes positive transformation by the listener. By doing so, we work towards bettering societal expectations of the legal system–one person at a time.

Top Ten Ways to Improve Your Mediation Skills

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John Lande, JD, PhD
This post is adapted from the Association of Family and Conciliation Courts article published by the University of Missouri School of Law in the Legal Studies Research Paper Series.

Traditional mediation theories are incomplete at best and misleading at worst, providing mystifying descriptions of what mediators actually do. Those theories focus on only a few behaviours during mediation sessions and don’t recognise the many variations of mediators, parties, and cases. This leaves many mediators to ignore these models because they are either confusing or unhelpful.

John Lande uses Real Practice Systems (RPS) theory in his article to identify 10 things that mediators can do to include within their skillset and improve their own practice. This article is adapted from his previous article ‘Helping You Do the Best Mediation You Can‘ published by the University of Missouri School of Law.

Although Lande’s article is directed to practicing mediators, he refers to additional resources in this Indisputably blog which can be used by teachers and trainer in their work, including to prepare and further develop student’s skills in negotiation, mediation, and advocacy.

These 10 things are summarised below, but it is highly encouraged that you to read John Lande’s published article for a complete and comprehensive explanation.

1. Recognise That You Have a Complex Practice System

If you mediate regularly, you have a complex mediation practice system. Mediation is not “just” what you do during mediation sessions when all the participants have convened, you also have unconscious routine procedures and conscious strategies for dealing with recurring challenges that you use before, during, and after mediation sessions.

It is important that you recognise the basis for your system and that have you developed categories of cases, parties, and behaviour patterns that led you to develop your system.

2. Understand Real Practice System Theory

In this 20-minute video, John Lande explains Real Practice Theory (‘RPS’) and how can improve your mediation practice system. It is applicable in every type of case and at every stage of practice, from novice to mid-career to senior mediator.

3. See Illustrations of Practice Systems in Experienced Mediators

Read John Lande’s article ‘Ten Real Mediation Systems‘ which illustrates the account of ten experienced mediators who identify factors affecting their mediation practice systems and includes links to a detailed account of their systems.

4. Complete a Self-Assessment Questionnaire to Get an Overall Understanding of Your Practice System

This 18-question self-assessment worksheet is designed to help you recognise basic elements of your practice system, prompting you to reflect on your background, motivations, mediation practice, common patterns in your cases, and your procedures.

5. Understand and Use Real Practice System Menu of Mediation Checklists

Read John Lande’s article ‘Real Practice Systems Project Menu of Mediation Checklists‘ which is a detailed menu of checklists for mediators. It includes mediators’ actions before, during, and after mediation sessions as well as items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of mediation techniques.

In another article, ‘Practitioners Tell Why Real Practice System Checklists Are So Useful‘, Lande uses the descriptions of fourteen current and former practitioners to explain how these checklists can help you to carefully design your unique practice system.

6. Develop Your Own General Mediation Checklist

By using the above Real Practice Systems (RPS) checklists, you can consciously develop your own general checklist based on the typical cases and parties in your practice, the procedures you find useful. This checklist is quite versatile, enabling you to choose items which can be modified to suit your needs. But the RPS checklists cannot be exhaustive, so you should add any other items that are relevant to your practice and remove any which are not.

A mediators’ checklists necessarily vary based on many factors including the subject matter, complexity, typical legal issues, participation of attorneys, and amount of time before mediation sessions, among others. As a result, some mediators’ general checklists are longer and more complex than others.

7. Customise Your General Mediation Checklist for Each Case

Before each mediation session, review your general mediation checklist and consider any modifications you might make based on what you know about that particular case you are about to mediate. This can ensure that you are better prepared and equipped with a checklist that will be most useful to you during that mediation.

8. Read Articles in the Real Practice System Annotated Bibliography

To develop a deeper understanding of practice systems generally as well as your own practice system, you should read Lande’s ‘Real Practice Systems Project Annotated Bibliography‘ which organises several publications concerning various topics, including:

  • Overview of Real Practice System theory
  • Critiques of traditional dispute resolution theories
  • Promotion of party decision-making
  • Litigation interest and risk assessment
  • Preparation for mediation sessions
  • Technology systems

9. Participate in an Ongoing Educational Practice Group

It is important to learn from each other as well as give and receive feedback to and from other mediators. This can be done by participating in practice groups.

Although practice groups vary in size, Lande suggests that between 5 and 8 people is optimal. A fixed membership with a commitment to participate for an extended period of time (such as at least 6 to 12 months) is beneficial to allow members to feel comfortable sharing sensitive experiences with each other.

Lande also provides numerous considerations before commencing or joining a practice group, including similarities or differences between members, the type of activities completed, and the use of reflective practice techniques.

10. Share Your Experiences

Sharing your experiences with others is a valuable way to learn. This might include giving talks, participating in trainings, teaching courses, or writing articles. These activities require reflection, which can produce new insights, and interactions with people can stimulate thinking and further reflection on those experiences.

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.

Breaking Negotiation Deadlock: Co-Creating the New Intercultural Competence Playbook

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By Rory Gowers
15 March 2024

Author note: Intercultural is not multicultural, or cross cultural. ‘Intercultural’ is described as “communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.” — Paula Schriefer, Spring Institute

Source: Nina Simon, 15 October 2014

We have recently heard from two long-standing luminaries in the world of conflict resolution and negotiation.

On 22 February 2024 Dr Rosemary Howell in her post within the Kluwer Mediation Blog refers to recent research by Cobb, Castel and Sultani with its dark summary of our times with “Polarisation, violent conflict, fractures, and divisions across and within societies are on the rise globally …” labelling ‘Hyperpolarization’ as “the state of the world we currently inhabit”.

Dr Howell acknowledges the bleakness of the situation, however she points to the encouraging work by Carrie Menkel-Meadow which provides an optimistic insightful and constructive recipe – an article well worth a full read.

On 24 February 2024 William Ury, co-author of Getting to Yes, in a seemingly unrelated post, recalled his recent appearance on Ari Melber’s The Beat concerning the current political tribalism in the United States of America. Ury states “we need more conflict – not less”, and further suggests that we cannot end polarization, however we can transform it into ‘healthy conflict’ with constructive creative negotiation.

Of course, in Australia we see similar polarization of political debate, as demonstrated in the 2023 Referendum, and this continues to stymie meaningful bipartisan collaboration to this day. 

Such polarisation does not achieve constructive outcomes for a peaceful and progressive society but serves dominant factions in enlarging their power base and further marginalising minority voices.

Many of us will agree with the statements from both Dr Rosemary Howell and William Ury that the first constructive step is to reframe the context of the conflict by helping parties reflect on the cultural background dynamics shaping the narrative and expectations of each party (and their tribe). It is also useful to adopt the ‘balcony strategy’, as explained by Ury, as well as considering the other party’s perspectives to get the full context. 

I encourage all to employ the use of an acronym of the word ‘cultural’ to remind us of the full scope of a cultural background: Commonly Understated Lores, Traditions, Understandings, Rituals, Expectations, Assumptions, Legacy.

By reframing the context of conflict, participants become more empowered and are in a better position to see life from all sides which then prepares them to confer more civilly with others in a joint constructive discourse as all parties seek to bridge the current impasse with practical and realistic solutions that meet the legitimate needs of all.

But is this enough to break the polarization?

After a decade of mediation, I think not; that is, unless we are prepared to adapt the process and embrace the culturally embedded needs of each party rather than blindly use the standard dominant culture’s approach (i.e. western culture). It is a whole new playing field!

I make ‘A Call for a new Intercultural Competence Playbook in Mediating social transformation’ in a recently published peer-reviewed research paper. I posit a new level where the future of mediation is intercultural. This paper can be located on the University of Montreal’s Online Law Journal Lex Electronica Volume 28 n. 5 2023 Special Dossier, Paper 13, pp. 195-215.

We require a new toolkit, and the adventure of our time is to co-create it. Will you join me?

A call for a new mediator playbook

In my paper I claim that “every culture is in conflict; conflict is endemic in the process of culture metamorphosis.” My paper examines the paradox that conflict is intrinsic to every culture, yet there is little attention to the ‘culture’ norms in resolving that conflict. I refer to original thinkers such as Hofstede and Ting-Toomey and compare their contributions to the change in intercultural understanding since.

We are in an unprecedented global pandemic where cultural norms and expectations are under threat, in individualistic and collectivist cultures. We face existential threats from climate change and environmental catastrophes. We need a new mediator playbook for effective intercultural negotiation and issue resolution.

All professionals can acquire intercultural skills, mentorship, or supervision; join immersion events to extend intercultural awareness and communications skills; foster inclusive work environments; adapt coaching methods; cultivate intelligence about cultural differences; and engage with a positive intercultural predisposition, and approach. 

Everyone can actively facilitate social transformation by making peace with the other cultures in your land as a vital forerunner to effective intercultural mediation of conflicts. 

To allow peace a chance, we must unlock and activate intercultural competence in mediation!

I invite your active participation in reading my paper and responding to the recommendations I put forward. 

For this playbook to succeed our approach must be intercultural. Let’s start now. Welcome aboard!

Author biography
Rory Gowers is a Master of Dispute Resolution MDR, a Master of Education MEd, an intercultural mediator, and a business strategist, residing in Brisbane, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com 
Email: rory.gowers@gmail.com 
Mobile: +61 425292811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions