Emotionally Responsive Mediation: Reforming Personal Injury Dispute Resolution

Posted on 22/01/2026 by tinapoparmit

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

Introduction

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

Lawyer Perceptions and Emotional Gatekeeping

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

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

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

Mediation and Procedural Justice

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

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

Reform Directions

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

Trauma-Informed Practice

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

Legal Education Reform

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

Professional Supervision

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

Legal Design

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

Conclusion

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

Authors Biography

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

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

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

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

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

Posted on 12/12/2025 by Peter Condliffe

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

Introduction

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

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

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

Our discussion unfolded in three ways summarised below.

The Conceptual Conversation

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

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

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

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

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

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

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

The Inclusivity Conversation

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

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

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

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

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

The Productive Social Change Conversation

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

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

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

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

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

Conclusion

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

Authors Biography

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

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

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

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

Posted on 04/12/2025 by samhossain5c244604ab

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

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

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

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

Mediation Steps Out of the Shadows

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

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

How the IOMed Has Made Itself Unique

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

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

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

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

The Quiet Gaps in the Convention

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

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

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

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

A Space Created for Everyone

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

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

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

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

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

Mediation as the Primary Strategy, Not a Soft Alternative

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

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

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

Author Biography

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

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

Posted on 24/10/2025 by Associate Professor Becky Batagol

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

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

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

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

Participation is on a self-funded basis.

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

A programme of events will be distributed in advance.

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

We look forward to seeing you at the Roundtable.

ADRRN Roundtable 2025 Flyer Download

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

Posted on 23/10/2025 by John Lande

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

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

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

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

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

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

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

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

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

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

How Mediators and Lawyers Can Use AI: A Practical Video Guide describes a video with real-time demonstrations of how mediators and lawyers can use AI to prepare for sessions, help clients, and improve their own decision-making.
A Video Guide for Teaching Law Students to Use AI Wisely is a resource for faculty and students, showing how AI can advance legal education without undermining core lawyering skills. It includes sample uses for negotiation prep, writing support, and simulation design.

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

Take a look.

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

Posted on 16/10/2025 by Dr Samantha Hardy

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

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

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

1. Why someone might want to receive an apology

An apology might meet different needs for the receiver:

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

2. Why someone might not want to apologise

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

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

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

Fear of consequences

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

Protecting self-esteem

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

Concerns about power and control

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

Low concern for the relationship

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

Perceived ineffectiveness of apology

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

Defensive fragility mistaken for strength

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

They have already apologised

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

They don’t want it to be a trigger

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

3. What to do when someone refuses to apologise

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

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

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

Manage expectations early

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

Attend to power dynamics

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

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

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

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

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

Refocus the discussion to intent and impact

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

Support vulnerability and self-esteem

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

Mediators can help parties to identify substitute behaviours.

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

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

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

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

Elicit reflection on meaning of apology

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

Use reframing techniques

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

Reality test

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

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

Invite reflection on choice

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

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

Invite mutual apologies

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

Facilitate mutual checking for understanding

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

Shift the focus to future arrangements

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

Support emotional closure without apology

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

Conclusion

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

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

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

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

Posted on 09/10/2025 by Milan A Nitopi

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

Participation is on a self-funded basis.

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

A programme of events will be distributed in advance.

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

We look forward to seeing you at the Roundtable.

ADR Research Network Roundtable Information Download

Getting Ahead of the Curve: A Video for Mediators and Lawyers About AI

Posted on 02/10/2025 by John Lande

Artificial intelligence (AI) is increasingly part of daily life in legal and mediation practice. Mediators and lawyers (“practitioners”) may wonder how they can use it to provide good client service and remain competitive in the marketplace. Indeed, some practitioners may wonder whether they’ll be able to do so in the future without using AI.

Recent data show that lawyers’ use of AI in the US is growing rapidly – and many practitioners will need to learn how to use it effectively to succeed in a changing market. This post highlights a 30-minute video that introduces basic AI concepts and offers practical tips for mediators and lawyers. It links to a short article explaining how practitioners can use AI to promote client decision-making, improve efficiency, and navigate common pitfalls.

Many Lawyers Are Using AI – and Probably More Will Soon

The 2024 American Bar Association (ABA) Formal Ethics Opinion 512 states that “lawyers should become aware of the [general artificial intelligence] tools relevant to their work so that they can make an informed decision, as a matter of professional judgment, whether to avail themselves of these tools or to conduct their work by other means.” Indeed, “it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.” (Emphasis added.)

In the past two years, lawyers’ use of AI has grown substantially, and it is expected to keep growing. According to the ABA’s 2024 Legal Technology Survey, about 30% of U.S. law firms now use AI tools, up from 11% in the previous year. Another 15% said they were seriously considering using AI tools. In firms with more than 100 attorneys, 46% currently use AI tools.

Almost half the lawyers in the survey believe that AI will become mainstream within three years. If they’re right, by the time that today’s 1Ls graduate, they will need to learn how to use AI properly. This includes knowing how to avoid mistakes – like filing hallucinated documents – and how to create value for clients and employers. (Here’s a link to a post with a video and article for faculty and students.)

I haven’t found data on mediators’ use of AI, but those who work with lawyers will increasingly encounter it. Mediators can also find many valuable ways to use it in their own activities.

Academic and Practitioner Perspectives About AI

Academics and practitioners often approach AI from different perspectives. Academics work in institutions that reward deliberation over rapid adoption of innovations. Faculty generally experience little immediate pressure to change their practices, and they don’t (yet) face professional risks or lost opportunities if they ignore AI. Indeed, many are pressed for time as it is, so they may have little incentive to add to their immediate workload – even though AI can enable them to work more efficiently over the long term. Some approach AI skeptically, raising important critiques of its societal effects, such as environmental harms, de-skilling, and labor displacement.

By contrast, practitioners generally work in a market expecting them to provide professional services efficiently. For them, AI is less a policy debate than a practical tool. Even if they are concerned about societal risks, they may still use it because they face pressure to keep up – and have little leeway to wait. Practitioners may not view AI as entirely good or bad and – thinking like mediators – they may recognize complex tradeoffs that shift with evolving technology and human adaptation.

Given today’s legal and dispute resolution market, many practitioners need to learn how to use AI effectively and responsibly.

Getting Started Using AI

This 30-minute video offers a basic introduction about how you can use AI tools such as ChatGPT. It provides pointers on how you can write good prompts and avoid common mistakes. The video includes two demonstrations using RPS Coach, a specialized AI tool for negotiation and mediation. This 4-page article provides links to the PowerPoint slides and a transcript of the AI demonstrations.

The video and article are designed for mediators and lawyers who want to use AI to improve their work, help clients, save time, and stay competitive in a world where AI is rapidly becoming the norm.

It makes sense to start using AI gradually rather than wait until it becomes expected or unavoidable. Building skills over time can help you gain confidence and develop sound judgment without the pressure of having to master everything at once – especially if it becomes essential in your work.

Navigating the Grey Zones: A Practical Guide to Ethical Decision-Making for Mediators

Posted on 18/09/2025 by Dr Samantha Hardy

Samantha Hardy
This article has been republished with permission. The original publication can be found at The Conflict Management Academy.

The Conflict Management Academy has been running “The Mediator’s Dilemma Series” events this year, in which mediators explore a challenging hypothetical and discuss how they would deal with the dilemmas at various stages of the process. These events have been well attended and the discussions enlightening (and sometimes heated!) but what struck me after having reviewed the sessions so far is that the ethical decision making process used by participants was, well to be frank, rather ad hoc.

When mediators talk about ethics, the conversation often centres on principles we all know well: impartiality, confidentiality, and self-determination. But knowing the principles is not the same as knowing what to do when those principles collide. Real-life mediation can place us in grey zones where personal values, professional obligations, and competing priorities pull us in different directions.

In those moments, gut instinct is rarely enough. It’s worth asking: how do we make ethical choices in a way that is both principled and defensible?

Ethics and ethical dilemmas

Ethics is the process of questioning, discovering, and defending our values, principles, and purpose (The Ethics Centre). In mediation, ethical questions arise when two or more principles we hold dearly seem to conflict creating an ethical dilemma. This might be as simple as a clash between our personal sense of fairness and our professional obligation to respect parties’ self-determination.

Ethical dilemmas are not just theoretical. They appear in intake interviews, joint sessions, private caucuses, and even after a mediation has concluded. They can be subtle, like sensing one party is being unduly influenced, or dramatic, like discovering information that could prevent harm to someone outside the mediation.

Personal and Professional Ethics

Many mediators underestimate the role of personal ethics in their professional life. Personal ethics are shaped by upbringing, culture, religion, and life experience, and they inevitably influence how we perceive conflicts and decisions.

For example, imagine being strongly pro-euthanasia, and being asked to mediate a dispute about whether someone should be able to access it. You might be able to set aside your views and remain impartial. Or you might find your values so engaged that you cannot mediate without bias or at least without the appearance of bias.

Professional ethics overlay our personal values. In Australia, mediators might refer to the AMDRAS Code of Ethics, the International Mediation Institute’s Code of Professional Conduct, or for lawyer-mediators the Law Council of Australia’s guidelines. These frameworks outline key principles, but they don’t tell us what to do in complex, context-specific dilemmas. They also don’t rank principles or explain how to decide when they are in tension.

Where Our Professional Ethics Come From

Professional ethics in mediation draw from multiple sources:

Codes of conduct issued by professional bodies (AMDRAS, IMI, etc.).
Legislation (e.g. family law provisions prioritising child welfare, or mandatory reporting laws).
Court cases that discuss ethical aspects of mediator conduct.
Academic scholarship that analyses ethical principles and categorises dilemmas.

Because no single document covers everything, mediators need a working knowledge of multiple sources and the ability to interpret them in light of the case at hand.

Ethics of mediation

Various academics and practitioners have tried to produce lists of ethical principles for mediators. There are examples in the reading list below.

In my opinion, one of the most practical tools comes from Robert Baruch Bush, whose research in 1994 identified nine common categories (with numerous examples under each category) of ethical dilemmas mediators face:

Keeping within competency – avoiding work beyond your skill or qualification.
Preserving impartiality – managing bias or perceived bias.
Maintaining confidentiality – between parties and with outsiders.
Ensuring informed consent – avoiding coercion, ensuring understanding.
Preserving self-determination / non-directiveness – resisting the urge to impose solutions.
Separating mediation from counselling or legal advice – knowing the boundaries.
Avoiding exposure to harm – preventing physical, emotional, or legal harm.
Preventing misuse of the process – deterring fishing expeditions, stalling tactics, or intimidation.
Handling conflicts of interest – both actual and perceived.

Here’s a handy infographic that summarises Bush’s categories for easy reference:

But what should we actually do?

While codes and guidelines identify principles, they rarely tell you how to make a decision when those principles conflict. For example:

Is self-determination more important than informed consent?
When does preventing harm justify breaching confidentiality?
How should context, cultural norms, relationships, situational risks influence our choices?

Without a process, mediators risk falling back on ad hoc decisions, which are likely to be less well informed and harder to justify if challenged.

An Eight-Step Process for Ethical Decision-Making

The following approach has been adapted from social work and refined for mediation (originally by my colleague Olivia Rundle and I in an early article). It gives mediators a clear structure for navigating ethical dilemmas, with 8 steps (set out with more detail in the infographic below):

Clarify the dilemma
Identify stakeholders
Indentify applicable ethical principles
Consider context
Generate options
Evaluate options
Implement
Reflect

Common Options in Response to a Dilemma

While the “right” choice depends on the situation, mediators often consider options such as:

Doing nothing (rarely ideal, but sometimes appropriate).
Reality-testing with the parties.
Taking a break to seek advice from a mentor or colleague.
Disclosing the dilemma to one or both parties.
Withdrawing from the mediation.
Reporting to relevant authorities or taking protective action.

There are many more possibilities depending on the dilemma, the stage of the mediation, and the particular circumstances. It’s important that, like we ask our mediation clients to do in mediation, we generate as many options as possible, evaluate them and then create a specific action plan.

This is another thing I have noticed working with students in mediation training – they tend to come up with one option and work to justify it, rather than thinking about multiple and lateral options and then evaluating them.

Also, they tend to come up with an action plan (e.g. report to the authorities) that is vague and incomplete. For example, to whom will they report? What will they say? Will they identify themselves? Will they share this decision with their parties?). In hypothetical activities we can be vague with no consequences, but in the real world we must act quickly and precisely. The more we practice precision in our hypothetical scenarios, the more we will be prepared in the event we face a dilemma in our practice.

Consequences of Acting Unethically

Potential outcomes include:

Legal liability – rare, but possible if conduct breaches laws.
Harm to parties or others – physical, emotional, financial.
Complaints and sanctions from professional bodies.
Damage to reputation – to the individual and the profession in general.
Missed opportunities for learning if we don’t reflect and share experiences.

In reality many unethical actions go unchallenged, but that doesn’t make them harmless. The absence of consequences is not the same as the presence of integrity.

Why Practice Matters

Trying to work through these eight steps in the heat of a mediation can be difficult. That’s why it’s valuable to rehearse using hypothetical scenarios (the mediation equivalent of a fire drill)! Practising with such scenarios in training, supervision, or reflective practice groups builds your repertoire of responses and your confidence in applying them.

Building an Ethical Culture in Mediation

Ethical competence isn’t just an individual skill. It’s a cultural norm we build together. By talking openly (within confidentiality limits) about ethical challenges, we normalise the idea that dilemmas are part of practice, not a sign of failure. We also expand our collective “library” of ways to handle them.

That might mean:

Incorporating ethical decision-making practice into professional development.
Participating in reflective practice groups or “mediator’s dilemma” forums.
Sharing anonymised case studies in articles, webinars, or conferences.
Encouraging a mindset of curiosity and humility, rather than certainty.

Ethics in mediation is rarely about black-and-white rules. It’s about learning to navigate the grey zones with care, courage, and a willingness to be accountable for our choices. With a clear process, a solid grounding in principles, and regular practice, mediators can face ethical challenges with confidence and model the integrity that gives our profession its credibility.

But it can be difficult to navigate this grey area. What happens when mediation meets mystery, debate, and high-stakes decision-making? Welcome to The Mediator’s Dilemma, an interactive event series that takes you to the heart of some of the toughest dilemmas mediators face.

The Mediator’s Dilemma is inspired by Geoffrey Robertson’s Hypotheticals, with each session you will be immersed in a fictional yet realistic mediation scenario that is filled with ethical quandaries, unexpected twists, and moments where the path forward isn’t clear. As the story unfolds, you’ll face the same challenges as the mediator in the story.

The facilitator will guide you through the unfolding drama, pausing at critical “dilemma moments” to ask for audience engagement. Discuss with fellow mediators from diverse backgrounds. Whether you’re stepping into your first session or reflecting on decades of experience, The Mediator’s Dilemma offers something for everyone.

RESOURCES:

Boulle (2023) Mediation and Conciliation in Australia, Chapter 10.
Hardy and Rundle (2012) Applying the inclusive model of ethical decision making to mediation. James Cook University Law Review.
AMDRAS Practice Standards (2024) Code of Ethics
IMI Code of Professional Conduct
Law Council of Australia Ethical Guidelines for Mediators, 2011.
Robert A. Baruch Bush (1994) A study of ethical dilemmas and policy implications. Journal of Dispute Resolution 1.
Omer Shapira (2021) Mediation Ethics: A practitioner’s guide. American Bar Association.

OTHER USEFUL RESOURCES ON ETHICS IN MEDIATION:

Akin Ojelabi, L. (2023). The Challenges of Developing Global Ethical Standards for Mediation Practice In: Comparative and Transnational Dispute Resolution, Routledge, Oxford, United Kingdom
Robert A. Baruch Bush (2019) A pluralistic approach to mediation ethics: Delivering on mediation’s different promises. Ohio State Journal on Dispute Resolution 34:459-536.
Zachary R. Calo (2024) Artificial intelligence and mediation ethics. Cardozo Journal of Conflict Resolution 26:211-233.
Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005), Ch 16, p 244.
Rachael Field (2012) Mediation ethics in Australia: A case for rethinking the paradigm. James Cook University Law Review 19:41-69.
Rachael Field and Neal Wood (2006) “Confidentiality: An ethical dilemma for marketing mediation?” Australasian Dispute Resolution Journal 17(2): 79-87.
Rachael Field and Jonathan Crowe (2020) Mediation ethics: From theory to practice.
Carrie Menkel-Meadow, Ethics and Professionalism in Non-Adversarial Lawyering, 27 FLA. ST. U. L. REV. 153, 167-68 (1999).
Mary Anne Noone and Lola Akin Ojelabi (2014) Ethical challenges for mediators around the globe: An Australian perspective. Journal of Law and Policy 45: 145-193.
Mary Anne Noone, Lola Akin Ojelabi and Lynn Buchanan (2018). Ethics and justice in mediation.
Joseph Stulberg (1995) Bush on mediator dilemmas. Journal of Dispute Resolution 57-71.
Ellen Waldman (2011). Mediation Ethics: Cases and Commentaries. Jossey-Bass.

Thinking Like Mediators About the Future of AI

Posted on 11/09/2025 by John Lande

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

Imagine you’re a mediator and someone tells you what’s troubling them. They’re deeply upset about a product they believe poses serious risks. They cite past harms, question whether it should ever have been introduced, and urge that it be removed from the market or tightly restricted. The product is already in widespread use, integrated into daily life, and – for many – has proven helpful. What would you do?

I hope most of us would do what we train others to do: listen carefully, help them identify their interests, and encourage them to reflect on the full picture – not only the part that feels alarming. We’d help them explore multiple perspectives, consider realistic possibilities, and support thoughtful decision-making.

We don’t always use that approach in our field when talking about AI. Some of us focus on the part of the glass that’s full and others on the part that’s empty.

That’s why I wrote a short essay, Thinking Like Mediators About the Future of AI – an effort to bring a dispute resolution lens to the “AI debate,” using the kind of balanced thinking we encourage in our students and clients.

Like some intense debates in the past, this one may fade more quickly than expected. As AI becomes increasingly integrated into everyday life, the sharp divide between skeptics and enthusiasts may erode. The conversation may shift – not from whether we use AI, but toward how we use it responsibly. Rather than reaching a grand resolution, the controversy may simply become part of the fabric of daily life.

We’ve seen this pattern before. Calculators, spellcheckers, and the internet all sparked anxiety when first introduced in schools and workplaces. But over time, those concerns gave way to adaptation. We now look back and wonder what all the fuss was about. Obviously, AI has much greater potential risks. And also greater potential benefits.

My article explores: