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:

Why evidence of early problems with AI doesn’t prove they’re permanent
The important distinction between individual and societal impacts of AI
What a balanced analysis of energy use should include
How educators can help students become responsible and effective users of AI
How we can apply the conflict analysis frameworks we teach

Take a look.

Mediator Dilemmas, Reflective Practice, and the Artistry of Ethical Judgment

Posted on 04/09/2025 by Dr Claire Holland

Dr Claire Holland

Why Mediator Dilemmas Matter

Mediation is often described as structured and principled. An approach that empowers parties to find their own way through conflict with the support of a neutral third party. At its best, mediation provides a space where voice, dignity, and autonomy are protected. Yet, despite this aspirational framing, the reality of practice is rarely straightforward.

Mediators work in rooms populated with human beings whose lives are in flux, often carrying frustration, fear, and a history of fraught relationships. Emotions surge, narratives collide, and the “facts” of the matter are contested, incomplete, or strategically presented. In this unpredictable terrain, ethical dilemmas are inevitable. Should a mediator intervene to balance power? How should they respond when one party is overwhelmed? What if an agreement seems clearly unfair?

Such dilemmas do not have easy answers. They exist in what Donald Schön famously described as the “swampy lowland” of professional practice (1983). Schön’s work on reflective practice provides a powerful frame for understanding the artistry required of mediators. That is, an artistry that blends technique, intuition, ethics, and reflection in order to navigate dilemmas that cannot be resolved through formulaic responses. Lang and Taylor (2000) similarly argue that becoming a skilled mediator is not simply about mastering techniques but about developing reflective capacity. In their text The Making of a Mediator, Lang and Taylor integrate Schön’s reflective practitioner model into the ADR field. Lang in his 2019 text The Guide to Reflective Practice in Conflict Resolution further positions reflective practice as the cornerstone of professional growth in mediation and conflict resolution.

In this blog, I explore how reflective practice helps illuminate the complex ethical landscape of mediation. Drawing on a case study of a residential tenancy bond dispute, I show how reflection-in-action and reflection-on-action enable mediators to navigate dilemmas in the moment and build artistry over time. I then connect these ideas to broader scholarship in Australia and beyond, where the development of mediator artistry has been central to debates about ethics, professionalism, and mediator expertise.

The Reflective Practitioner in the “Swampy Lowland”

Donald Schön’s seminal text The Reflective Practitioner (1983) challenged dominant assumptions about professional knowledge. At the time, technical rationality (the belief that professional competence flowed from the application of scientific theory) was the prevailing model. According to this view, the professional problem was to apply rules, methods, and procedures correctly.

Schön, however, observed that in many domains, including planning, architecture, education, and counselling, practitioners worked not in well-ordered problem spaces but in messy, uncertain contexts. Here, problems were ill-defined, values were contested, and outcomes could not be predicted with precision. These were the “swampy lowlands” of practice (Schön, 1983, p 42).

To navigate this terrain, Schön introduced the concepts of:

Knowing-in-action: the tacit, often unspoken knowledge that practitioners draw on automatically in the course of doing. Much of what professionals know is embodied and experiential, rather than explicitly codified (p 49).
Reflection-in-action: reflection that occurs in the moment of practice itself such as a fluid, improvisational interplay between thinking and doing (similar to a jazz musician improvising with other players) (p 54).
Reflection-on-action: deliberate reflection that occurs after an event, allowing practitioners to make sense of what happened and plan differently for the future (p 61).

Aligning with the views of Lang and Taylor (2000) and Lang (2019), mediators operate squarely in Schön’s swamp. Every mediation involves multiple unknowns: unpredictable dynamics between parties, shifting emotional intensity, cultural nuances, and competing ethical obligations. While codes of conduct provide necessary guidance, they cannot dictate every move. The mediator must learn to improvise by engaging in a “conversation with the situation” (p 79), as Schön put it, where each action invites feedback, and the practitioner adjusts in real time.

A Case Study: Mediator Dilemmas in a Tenancy Bond Dispute

To illustrate, this is an example case drawn from numerous personal experiences in tenancy mediations. These disputes often involve recurring participants, such as property managers representing landlords, who become adept at navigating the process. They sit across from tenants who may be experiencing mediation for the first time, which can create a power imbalance that raises ethical and procedural questions.

The scenario: A tenant, Jacob, seeks the return of his $2,600 bond. Opposite him sits Sarah, a property manager representing the landlord. Sarah is confident, well-prepared, and armed with condition reports, inspection photos, and invoices. Jacob, by contrast, is distressed, under-prepared, and reliant on narrative rather than evidence.

From the outset, a mediator is confronted with dilemmas:

Power imbalance: How should the mediator address the contrast between Sarah’s professional confidence and Jacob’s emotional vulnerability?
Procedural fairness: Can a process be “fair” when one party cannot effectively participate? Should the mediator slow the pace, summarise evidence, or even suggest Jacob seek advice, knowing this may frustrate Sarah?
Knowledge from prior mediations: The mediator recalls that Sarah often claims full invoice amounts despite regulatory provisions that might reduce the actual amount that can be claimed (such as the age of damaged carpet). Is it ethical to draw on that memory in this mediation?
Advice vs information: In private session, Jacob asks bluntly whether he is “legally entitled” to the bond. Where is the line between providing neutral information and slipping into legal advice?
Unfair agreement: Jacob ultimately agrees to accept a $300 return, with $2,300 dispersed to the landlord, seemingly out of fatigue and resignation. Should the mediator intervene if the settlement feels unjust?
Emotional breakdown: After agreement, Jacob breaks down, expressing hopelessness and despair. What is the mediator’s duty of care in relation to his wellbeing?

Each of these dilemmas places the mediator at a crossroads. There is no single “correct” answer. Instead, the mediator must reflect-in-action, balancing ethical obligations, professional role boundaries, and human sensitivity in the moment.

Reflection as Ethical Compass

Why does reflective practice matter here? Because mediation dilemmas are not only practical, they are also ethical. A mediator who blindly follows procedure may preserve neutrality on paper, but fail to achieve fairness in reality. Conversely, a mediator who overcompensates for a vulnerable party may risk undermining the perception of impartiality.

Reflection provides a compass in these grey zones. It allows mediators to:

Integrate theory and practice: Reflection bridges the gap between principles (such as neutrality and self-determination) and their messy application in practice.
Maintain ethical awareness: By questioning not only what they do but why, mediators can avoid drifting into unconscious bias or complacency.
Support emotional regulation: Reflection enables practitioners to notice their own triggers (perhaps frustration at a repeat-user’s tactics, or empathy for a vulnerable party) and to regulate responses appropriately.
Adapt strategically: Reflection encourages creativity in the moment, enabling mediators to shift structure, language, or process design to re-balance participation.

In short, reflective practice turns ethical dilemmas from paralysing obstacles into opportunities for professional growth and responsive practice.

The Development of Artistry in Mediation

Schön used the term artistry to describe the culmination of reflective practice as the ability to act intuitively, creatively, and ethically in uncertain situations. Artistry goes beyond technical competence. It is not simply knowing the steps of a mediation, but knowing how and when to adapt them.

Australian scholarship has made significant contributions to theorising and applying this concept in mediation. The recently revised Australian Mediator and Dispute Resolution Accreditation System (AMDRAS, 2025) explicitly integrates reflective practice, professional judgment, and ethical decision-making into its competency framework, embedding artistry as a national standard. Across the literature, artistry is framed as adaptive expertise and flexible judgment (Spencer, 2024; Spencer & Hardy, 2014; Boulle, 2011), grounded in reflective learning and ethical responsibility (Douglas & Ojelabi, 2023, 2024). Field (2007, 2022) advances this discussion (aligning with Lang, 2019) by emphasising “ethical artistry,” in which mediators combine empathy and neutrality with critical attention to power and justice. Similarly, Douglas and Goodwin (2015) present artistry as a distinctive form of professional competence, where the true effectiveness of a mediator lies not in technical skill alone but in the creative and intuitive responsiveness to the dynamics of a dispute. Hardy (2010) further underscores the role of narrative and emotional competence, highlighting that artistry requires engaging with parties’ stories in ways that acknowledge emotion while fostering constructive reframing. At the same time, Condliffe and Holland (2025, in press) caution that reflective practice has limits, and that real-world, contextual experience is indispensable to developing artistry, a challenge recognised and reinforced in the AMDRAS standards.

Lang (2019) reinforces the idea that reflective practice is not optional, but core to conducting ethical and competent mediation. Lang makes the case that ethical judgement cannot be separated from reflective practice, and that reflection is the key to helping practitioners clarify what values guide them, and how they should act consistently with those values.

Taken together, this body of work positions artistry as a central dimension of mediation practice in Australia, conceptualised as the integration of technical skill, reflective judgment, ethical responsiveness, and creative adaptability.

Reflection-in-Action: Improvisation as Ethical Skill

The tenancy mediation scenario illustrates reflection-in-action vividly. When Jacob becomes increasingly distressed, the mediator must decide: allow him to continue, risking further escalation, or intervene, risking perceived bias. This decision is not made in abstract; it is made in real time, shaped by Jacob’s clenched fists, Sarah’s glazed expression, and the emotional temperature of the room.

Here, reflection-in-action operates like jazz improvisation. The mediator draws on tacit knowledge of communication, body language, and conflict dynamics. They may reframe Jacob’s narrative to bring clarity, pause to re-balance engagement, or shift into private session. Each choice is both action and reflection, and each choice brings new opportunities for feedback that shapes the next move.

This improvisational quality is what makes mediation both challenging and deeply human. As Schön suggested, reflection-in-action is like a conversation with the situation. For mediators, that conversation involves listening not only to words, but to silences, tones, and the subtle cues that indicate when power is tilting or emotions are destabilising the process.

Reflection-on-Action: Building Capacity Through Learning

Equally vital is reflection-on-action. After the mediation, the practitioner can revisit the dilemmas encountered. Did my intervention support or hinder fairness? Did I unconsciously align with one party? Should I have paused the mediation for advice?

Such reflection can occur individually through journaling, or collectively through supervision, peer consultation, or structured professional development. By analysing decisions and their impacts, mediators convert tacit impressions into explicit learning. Over time, this strengthens their capacity for artistry in future cases.

One innovative forum that supports this reflective process is the Conflict Management Academy’s Mediator’s Dilemma series, a monthly seminar inspired by Geoffrey Robertson’s Hypotheticals. Each session presents a fictional yet realistic mediation scenario filled with ethical quandaries, narrative twists, and moments of uncertainty. As the scenario unfolds, participants are invited to step into the mediator’s shoes at critical decision points, debating possible actions, exploring consequences, and engaging with the complexity of real-world dilemmas. The interactive format encourages practitioners to articulate their reasoning, challenge their own assumptions, and learn from the diverse perspectives of colleagues.

For mediators, the series offers a rare and valuable opportunity: a safe space to rehearse responses to high-stakes situations without the pressure of live practice. This collective reflection not only sharpens technical decision-making but also deepens professional artistry by fostering creative, context-sensitive approaches. In this way, the Mediator’s Dilemma Series complements traditional reflective practices (such as journaling and supervision) by embedding reflection-on-action within a dynamic, collaborative community of practice. It transforms abstract ethical challenges into lived, shared experiences, ensuring that mediators refine their judgment, resilience, and artistry for future cases.

Source: Mediator’s Dilemma Series 2025 – Conflict Management Academy

The Ethical Heart of Artistry

It is tempting to think of artistry as primarily about skill or style. But artistry in mediation is inseparable from ethics. Each improvisation is bounded by questions of neutrality, fairness, justice, and care.

For instance, consider the final stage of the tenancy case, where Jacob reluctantly agrees to an unfavourable settlement. Technically, party self-determination has been respected. Yet the mediator senses the outcome is more about resignation than genuine agreement. Here, artistry involves discerning how far to probe for informed consent without crossing into advocacy. It is not simply about what works procedurally, but what is ethically sound.

This intertwining of artistry and ethics reflects what Field and Crowe (2020) describe as a contemporary, relational approach to mediation ethics. The authors suggest that rather than relying solely on procedures or rules, effective mediation calls for ethical responsiveness to the unique circumstances of each dispute and the self-determination needs of the parties. Practitioners must combine procedural skill with self-awareness, empathy, and the courage to act in ways that safeguard fairness, even when situations are uncertain or ambiguous. In this view, a mediator’s ethical judgment is not an abstract ideal but a guiding force that shapes their real-time adaptability, allowing them to navigate complex dynamics with both integrity and artistry.

The Mediator as Reflective Artist

Mediators inhabit a professional landscape defined by complexity, ambiguity, and ethical tension. Reflective practice enables mediators to navigate dilemmas ethically, adapt strategically, and cultivate artistry.

The tenancy case illustrates the challenges vividly: power imbalance, vulnerability, unfair settlements, and emotional breakdowns. In such moments, there is no formulaic answer. Instead, the mediator must improvise by thinking and acting simultaneously, guided by reflective awareness.

Over time, these reflective engagements shape artistry. It is constant aim of achieving truly intuitive, responsive, and ethically grounded practice that distinguishes not just competent mediators, but exceptional ones. As the profession continues to evolve, it must guard against overemphasis on procedural compliance at the expense of reflective artistry. For it is in the “swampy lowlands” of practice and amid the human messiness, that the true value of mediation lies.

Reference List

Boulle, L. (2011) Mediation: Principles, Process, Practice. LexisNexis Butterworths.
Condliffe, P., & Holland, C. (2025, In Press). Conflict Management: a practical guide, 7^th Ed. LexisNexis Butterworths.
Douglas, K., & Akin Ojelabi, L. (2024). Civil dispute resolution in Australia: A content analysis of the teaching of ADR in the core legal curriculum. Adelaide Law Review, 45(2), 341–370.
Douglas, K., & Akin Ojelabi, L. (2023). Lawyers’ ethical and practice norms in mediation: Including emotion as part of the Australian guidelines for lawyers in mediation. Legal Ethics. Advance online publication. https://doi.org/10.1080/1460728x.2023.2238281
Douglas, K., & Goodwin, D. (2015). Artistry in mediator practice: Reflections from mediators. Australasian Dispute Resolution Journal, 26(3), 172–181.
Field, R. (2022). Australian dispute resolution. LexisNexis Butterworths.
Field, R., & Crowe, J. (2020). Mediation ethics: From theory to practice. Edward Elgar Publishing.
Field, R. (2007). A Mediation Profession in Australia: An Improved Framework for Mediation Ethics. Australasian Dispute Resolution Journal, 18(3), 178-185.
Lang, M. D. (2019). The guide to reflective practice in conflict resolution. Rowman & Littlefield.
Lang, M. D., & Taylor, A. (2000). The making of a mediator: Developing artistry in practice. Jossey-Bass.
Mediator Standards Board. (2025). Australian Mediator and Dispute Resolution Accreditation System (AMDRAS) standards. Mediator Standards Board. https://msb.org.au
Schön, D. A. (1983). The reflective practitioner: How professionals think in action. Basic Books.
Spencer, D. (2024). Principles of dispute resolution (4th ed.). Thomson Reuters.
Spencer, D., & Hardy, S. (2014). Dispute resolution in Australia: Cases, commentary and materials. Thomson Reuters.

Boundaries in conflict

Posted on 28/08/2025 by Dr Samantha Hardy

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

In my work with clients in conflict, I constantly find that they have missed many opportunities to manage conflict more effectively. In particular, they often fail to set appropriate boundaries (or ANY boundaries) to allow themselves to be at their best in conflict situations.

Boundaries are a fundamental part of preventing unnecessary conflict, and managing conflict effectively when it does arise. Once you identify which kinds of boundaries work best for you, they are easy to set and maintain. You will start to become more courageous in conflict, bet better outcomes, and keep your integrity intact.

Caution

In any conflict situation, there are risks as well as opportunities. The information provided in this article includes general suggestions that are useful in many conflict situations. However, there are certain types of conflict, particularly when someone is using coercive or controlling behaviour over another person, in which boundaries are unlikely to work. Please think carefully before implementing any of the suggestions in this article, and ensure that you do not put yourself or others in danger. If in doubt, seek professional support, from a counsellor, a therapist or even the police if the risk of harm is imminent.

What are boundaries?

Boundaries are basically our own personal rules about what is, and what is not, okay. Effective boundaries support us to behave at our best in difficult situations. Brené Brown explains that boundaries help us to find ways to be generous to others, while still behaving in a way that is consistent with our personal values.

In conflict, boundaries allow us to engage in constructive conflict management, instead of simply avoiding the conflict or lashing out in order to protect ourselves. They provide a structure for communicating effectively in difficult situations.

If you don’t set good boundaries in conflict situations, you will end up feeling resentment, anger and frustration. You will act in ways that you later regret. You will damage relationships and your own reputation. You will not get what you need, you will not say what you need to say, and you will say things that you later wish you hadn’t said.

With good boundaries

You will prevent unnecessary conflict.
You will be able to stand up for yourself in conflict, while maintaining your integrity.
You will be able to communicate better in conflict situations.
You will be more understanding towards those with whom you are in conflict.
You will manage your emotions better in conflict interactions.

Types of boundaries

There are different kinds of boundaries that are useful for different situations. In conflict, there are three main types of boundaries: process boundaries, substantive boundaries and physical boundaries. These can all be used to prevent unnecessary conflict or to support you to manage conflict that does arrive courageously and with integrity.

A process boundary is a personal rule about “how” things should be done. For example, you may say to your employees that if they have a problem with something that you do at work, they should come and speak to you about it in person, rather than complaining behind your back or sending an email. Other process boundaries might relate to time – when you are and are not available to talk about a conflict, and for how long. Process boundaries may also relate to where conflict conversations take place (e.g. not in a public place, or not in front of children).

A substantive boundary relates to “what” the conflict is about. You may, for example, set a boundary that you are willing to talk to your ex-partner about what is best for the kids, but you are not willing to talk about your new relationship. A substantive boundary might be asking someone to be very clear about what they want to talk with you about before a meeting, so that you can be prepared to discuss those particular issues without being taken by surprise.

Physical boundaries are very useful in conflict situations. They may include things like keeping your office door closed when you are not available to have a conversation; ensuring that conflict discussions take place in a location where nobody can overhear what people are saying; or you physically removing yourself from a conversation in which someone is breaching your other boundaries (e.g. by walking out of the room, or hanging up the phone).

How to set boundaries

In order to set good boundaries, we need to know what is important to us. Our boundaries should support us to act in accordance with our values. We also need to know what kinds of behaviours from others make it difficult for us to maintain our integrity in conflict situations, and what kind of actions support us to communicate effectively. We need to distinguish between things that make us feel safe, but prevent us from managing conflict effectively (e.g. avoiding the other person) and things that enable us to interact in a constructive way.

Try to think about preventative boundaries, as well as boundaries that you might be able to use in the moment during a conflict conversation.

Things to think about when setting boundaries in conflict situations:

Which of our values are most important to us in conflict situations?
What kind of behaviour would be consistent with our values?
What would we like others to do in conflict situations to enable us to manage the conflict constructively?
What would help us to communicate effectively in conflict situations, so that we can listen respectfully but also say what we need to say?

What makes you uncomfortable or stressed in conflict situations?
What helps you communicate effectively in conflict situations?
What process boundaries would support you in conflict situations?
What substantive boundaries would support you in conflict situations?
What physical boundaries would support you in conflict situations?

It can be difficult to get started and learn how to set effective boundaries in conflict situations, but fortunately The Conflict Management Academy provides an online module so you can develop the skills to interact with courage!

Medianos Intercultural: Constructive Intercultural Protocol for Sustainable Conflict Responses

Posted on 21/08/2025 by rorygowers

Massimiliano Ferrari’s creation of Medianos, a board game designed to help parties align with “interests and needs” rather than “positions”, demonstrates measurable success in Western mediation training contexts (Tambù Creative Team, 2023). The board game is designed to effectively teach collaborative problem-solving skills and transform adversarial thinking patterns. Ferrari’s intent to democratize mediation knowledge through accessible gameplay merits recognition (Gowers, 2025).

However a critical problem emerges as the western Medianos board game expands internationally: “most standard mediation practice is the antithesis of social transformation; it is interculturally incompetent” (Gowers, 2023). When Western-derived intervention tools spread globally, regardless of noble intentions, they risk reproducing colonial paradigms. At this point in history, we need “a new intercultural competence playbook” that honours Ferrari’s democratic vision while co-creating genuinely inclusive, inter-culturally capable conflict responsive approaches.

The Cultural Assumptions Challenge

Medianos succeeds within Western contexts because it aligns with specific cultural values of individual agency, rational discourse, and negotiated outcomes. However, Ting-Toomey’s (1988, 2005) face negotiation theory reveals that conflict parties must manage “face-related concerns” that vary widely between individualistic and collectivistic cultures. The core issue is that game-based mediation training may embed the implicit cultural assumptions of its creator.

Xiao and Chen (2009) observed that Western communication competence (defined as “goal-oriented, self-oriented, lauding assertiveness”), directly contradicts what Chinese and other Asian cultures have considered communicatively competent for centuries. When mediation training reinforces Western competence models, it undermines inter-cultural rapport.

Māori scholar Tauri (2024) warns that Western alternatives become “a way for policymakers and politicians to silence Indigenous critique” by “repackag[ing] and sell[ing] the system back to itself.” Research (Gowers, 2023) confirms this pattern, showing how standard practices “restrict access to justice by using negotiation powerplay to deny the potential for greater benefit for all parties.”

Indigenous Epistemological Challenges

Contemporary indigenous scholarship identifies fundamental clashes with Western conflict resolution approaches. Latin American decolonial theorists document how Western models emerge from “the project of modernity and the ongoing expansion of a European cultural imaginary” (Rodriguez & Inturias, 2018; Quijano, 2000). Australian Aboriginal experts specify that Indigenous approaches “embrace a deeper level of healing and renewal of relationships” compared to Western “dispute resolution” (ADRAC, 2020).

Indian Adivasi philosophy of “Adivasiyat” emphasizes “a strong sense of connection to land, nature, spirits and community” (Xalxo, 2021) that conflicts with the anthropocentric individuality in Western mediation training. When conflict resolution focuses exclusively on person-to-person negotiation while excluding relationships with land, community, ancestors, and spiritual dimensions, it violates fundamental worldviews of numerous global communities.

Smith (2012) identifies this as reproducing “imperial and colonial discourses” that marginalize non-Western ways of knowing within supposedly inclusive frameworks.

Research Imperatives

To honour Ferrari’s democratic vision while avoiding colonial reproduction, research must build on the insight that “interculturally competent mediators recognize these gaps and propose just and intelligent solutions that include all relevant third parties” (Gowers, 2023).

Specific requirements include:

Collaborative epistemological mapping that documents indigenous and traditional conflict resolution approaches from specified continents, understanding their philosophical foundations rather than extracting techniques.
Critical analysis of embedded assumptions in game-based mediation training through “crossing over with appropriate immersion in at least one other culture” (Gowers, 2023) to identify where Western individualism, rationality, and anthropocentrism conflict with other worldviews. Of course, in instances where other dominant cultures implicitly enforce their worldview the same concerns may also require critical appraisal.
Development of genuine intercultural frameworks where Western innovations like Medianos engage with other traditions as equals, applying for example the “7 steps of RESPECT” methodology (Gowers, 2023).
Testing of hybrid approaches that integrate indigenous knowledge systems as equal partners, recognizing the principle that “conflict is endemic in the process of social change itself” (Gowers, 2023).

The Intercultural Mastermind Initiative

This moment demands concrete action aligned with a call for stakeholder collaboration to “define the principles, practices, and techniques necessary to navigate intercultural complexity sensitively and effectively” Gowers’ (2023). We propose establishing an Intercultural Mastermind Working Groupbringing together Ferrari, Gowers, and indigenous knowledge holders from specified continents to co-design Medianos Alternative Protocol (MAP): An Intercultural Framework for Constructive Problem-Solving and Peace-Building.

This initiative embodies the vision that “interculturally competent mediation practice is adaptable to social transformation” through equal partnership including:

Indigenous knowledge holders from Australian Aboriginal (including Professor Marcia Langton’s frameworks), Māori, Latin American, Middle Eastern, and Indian Adivasi traditions
Intercultural communication theorists who understand both Western and non-Western approaches
Community practitioners working at the intersection of traditional and contemporary conflict responses
The original creators bringing expertise in game-based learning and mediation theory

The MAP Development Process

The Medianos Alternative Protocol would emerge through the “7 steps of RESPECT” (Gowers’ (2023) methodology:

Reframe the Context by revealing foresight and establish focus. Each tradition shares its cultural background and expectations about conflict resolution. Identify how different approaches engage with mediation based on their cultural contexts.
Resolve the Content by specifying facts, pondering feelings and examining findings. Document where approaches complement, contradict, or offer alternatives while honouring diverse motivations.
Recreate the Contract by confirming finalization and tracking fulfilment. Co-create methodologies integrating multiple epistemologies, test through community implementation with relationship tracking. Verify that agreements are fulfilled or re-negotiated until complete.

This framework develops “inter-cultural respect-ability” (Gowers 2023) terms through the insight that effective intercultural mediation requires “crossing over with appropriate immersion in at least one other culture” while maintaining cultural integrity.

Modelling the Solution

The Intercultural Mastermind approach provides specific advantages over traditional research-then-application models:

Immediate Impact: Creates practical tools while building theoretical understanding
Authentic Partnership: Positions indigenous knowledge holders as co-creators rather than consultants
Living Laboratory: The collaborative process models the intercultural problem-responses it teaches
Scalable Innovation: Success informs broader cross-cultural program development

Conclusion: Beyond Cultural Wars to Co-Creation

Current trajectories risk reproducing patterns where Western innovations spread globally with cultural modifications while fundamental power dynamics remain unchanged. The Intercultural Mastermind approach requires courage to question whether appropriate participation demands genuine co-creation from the foundation level.

Ferrari’s vision of democratizing mediation knowledge through accessible, engaging methods deserves fulfillment through the most ambitious interpretation possible. True ‘democratization’ (spoiler alert – a western paradigm) requires surrendering Western centrality for multicultural co-creation that produces innovations none of the traditions could create alone.

The proposed Intercultural Mastermind Working Group represents both urgent scholarly priority and opportunity to model “transforming our viewpoints, priorities, and actions” to “create a new era of intercultural mediation” (Gowers 2023). Rather than studying cross-cultural adaptation, we could demonstrate inter-cultural innovation and answer the question: “How do you plan to come out of these current crises?” (Gowers, 2023).

This moment calls for investigation matching the scope of the challenge, not merely examining how diverse human traditions might inform conflict responses but bringing them together to create new possibilities for our interconnected world.

Note: This Intercultural Mastermind approach demands international collaboration, indigenous partnership, and creative courage that could transform not just conflict response education but our broader approaches to respectful intercultural collaboration. What might be the learnings to use in future IT and AI developments?

References

Australian Dispute Resolution Advisory Council (ADRAC). (2020). Aboriginal & Torres Strait Islander dispute resolution. Available at: https://www.adrac.org.au/aboriginal-torres-strait
Gowers, R (2025). What’s the alternative to mediation? Meet the European Board Game Going Global. Available at: https://adrnetwork.blog/2025/06/20/whats-the-alternative-to-mediation-meet-the-european-board-game-going-global/
Gowers, R. (2023). A call for a new intercultural playbook in mediating social transformation. Lex Electronica, 28(5), 195-215. Available at: https://lexelectronica.openum.ca/articles/volume-28-2023/volume-28-numero-5/lhumanite-face-aux-conflits-actuels-nouveaux-defis-pour-la-mediation/
Langton, M and Corn, A (2023). In Margo Neale (Ed.), LAW: The Way if the Ancestors (pp. 10-21). First Knowledges series, Thames and Hudson, Port Melbourne.
Langton, M. (2015). From conflict to cooperation. Canberra: MINERALS COUNCIL OF AUSTRALIA, p. 43. https://minerals.org.au/wp-content/uploads/2023/01/MCA-Monograph-7-From-Conflic_on-by-Professor-Marcia-Langton-1.pdf
Quijano, A. (2000). Coloniality of power, eurocentrism and Latin America. Nepantla: Views from South, 1(3), 533-580.
Rodriguez, I., & Inturias, M. L. (2018). Conflict transformation in indigenous peoples’ territories: doing environmental justice with a ‘decolonial turn’. Development Studies Research, 5(1), 90-105.
Smith, L. T. (2012). Decolonizing methodologies: Research and indigenous peoples (2nd ed.). London: Zed Books.
Tambù Creative Team. (2023). “Mediano, a game that can teach a lot!” Tambù Create Blog. Available at: https://tambucreate.com/blog/medianos-board-game
Tauri, J. (2024). Restorative justice is not Māori justice. E-Tangata, October 17. Available at: https://e-tangata.co.nz/comment-and-analysis/restorative-justice-is-not-maori-justice/
Ting-Toomey, S. (1988). Intercultural conflicts: A face-negotiation theory. In Y.Y. Kim & W. Gudykunst (Eds.), Theories in intercultural communication (pp. 213-235). Newbury Park, CA: Sage.
Ting-Toomey, S. (2005). The matrix of face: An updated face-negotiation theory. In W. Gudykunst (Ed.), Theorizing about intercultural communication (pp. 71-92). Thousand Oaks, CA: Sage.
Xalxo, R. P. (2021). Tribal philosophy: fusion of tradition and modernity. In India’s Indigenous Peoples: Struggles and Survival. New Delhi: Concept Publishing.
Xiao, X.-S., & Chen, G.-M. (2009). Communication competence and moral competence: A Confucian perspective. Journal of Moral Education, 38(1), 85-96.

Considering where to publish your Dispute Resolution research and experience

Posted on 14/08/2025 by Honorary Professor Pauline Collins

Pauline Collins and David Spencer
This article has been republished and adapted with permission. The original publication can be located within the Australasian Dispute Resolution Journal.

Despite people negotiating disputes since time immemorial, the formalisation of dispute resolution in Australia dates back only around half a century. Prior to this there was litigation, compromise offers and informal settlement negotiations. Dispute resolution also referred to as alternative, assisted, additional dispute resolution or just dispute management now entails a growing range of approaches to assist parties in resolving or managing their dispute.

This year the Australasian Dispute Resolution Journal (the journal) celebrates 36 years of publishing current scholarly research and in-practice experience in dispute resolution throughout the Indo-Pacific Asia region. The journal has evolved to discuss all dispute resolution approaches and is a faithfull record of change in the civil disputation landscape. Today, “[c]ivil disputes which are resolved by curial adjudication are a minute fraction of the civil disputes which arise in our (or any) society”.

The journal was the brainchild of its foundation Editors, the late Micheline Dewdney and Ruth Charlton along with the then Managing Editor of Thomson Reuters.

The value of a scholarly journal is arguably in its ‘impact’ which is defined by the Australian Research Council as, “[t]he contribution that research makes to the economy, society, environment or culture, beyond the contribution to academic research”. While measuring a journal’s impact is a contested space in academia and the professions with opinions on what constitutes impact varying from discipline-to-discipline and within disciplines, the task is a little easier in the discipline of law. For the law discipline tracing the impact of research and publication can be mapped via law reform and legislative and common law citation that initiates changes to the law.

In its short life, the journal has been cited with authority eighteen times in the work of various state and federal Law Reform Commissions in Australia. The journal has also been cited with approval in at least thirteen judgments of superior courts of record in Australia where the court has been called upon to adjudicate on the developing law surrounding dispute resolution.

The journal’s reach is another measure of its impact. The journal currently has over 500 institutional subscribers ensuring it is available to a wide audience of potential readers. Further, online subscribers accounted for over 20,000 clicks/views in the last twelve months.

From its humble Sydney-centric beginnings, today the editorial board of the journal has expanded to 24 members who hail from Australia, India, Singapore, United Kingdom and New Zealand and from a wide variety of professions and vocations.

For a double-blind peer reviewed scholarly publication, the journal prides itself on its eclectic content. Substantively the journal deals with all manner of dispute resolution from the consensual, informal and less interventiory processes such as negotiation and traditional dispute management methods to the less consensual, more formal and interventionist processes such as adjudication and arbitration. It also seeks out contributions about some of the more contemporary areas of dispute resolution such as restorative justice, therapeutic jurisprudence, collaborative practice, conflict coaching, use of government inquiry mechanisms, wise counsel mediations and the expanding knowledge of human dispute gained from advances in neuroscience.

A critical area serviced by the journal is that of continuing professional development. Our changing world, however, presents constant challenges providing journal editors with a demanding task. Not least of which is the much written about and utilised generative artificial intelligence (GenAI) technology. One of the first GenAI large language models is ChatGPT that was launched in November 2022 and together with its many relatives (knock offs), they are challenging the way researchers, writers and publishers work. This technology is here to stay and will continue to grow and become more efficient and acurate with the effluxion of time. These advances provide a historical leap for humans and the publication industry.

Much has been said about the positives and the perils of GenAI. The proliferation of writing about GenAI of itself makes addressing the topic challenging. Each new technology from clay tablets, the Gutenberg printing press, the typewriter, computers and now GenAI has raised fear, excitement and then adaptation as we adjust to the speed and content by which information and knowledge is communicated. Finding a balanced approach that accepts regulation to eliminate harm but also acknowledging the potential benefits is called for.

The impact of GenAI on the provision of dispute resolution services is now being felt. Whilst online and automated dispute resolution has been in existence for many years, the advent of GenAI, with its undectable ability to not only guide disputants to resolution but then to learn from each experience with the aim of improving its own ability over time, is a new frontier for the provision of such services.

For the researcher and author, the use of GenAI is also presenting exciting possibilities. The use of GenAI to assist with large data set comprehension and analysis can better inform decision-making that in turn can speed up creative innovation to human problems such as disputation. For publishers and editors there is already a growing uptake in the use of such tools to address editing and formatting processes. The likelihood is an increase in the speed of publication outputs and therefore circulation of knowledge.

The mainstay of the journal is original unpublished scholarly work that has not been submitted or accepted for publication elsewhere including online publication. These articles are a mixture of empirical and meta-analysis that are approximately 5,000- 8,000 words in length.

Additionally, the journal publishes a flourishing ‘In-Practice’ section where practitioners can write short articles of 1,500-2,000 words on any topical issue they may have an opinion or view on. Further, this section provides the opportunity for practitioners to raise process issues from their own experiences in the provision of dispute resolution services or as an advocate acting for parties in dispute resolution processes. The practical aspects of dispute resolution sit superbly side-by-side with the more scholarly contributions.

Each edition of the journal includes case notes on cases litigated predominantly in superior courts of record that raise a multitude of issues from enforcing dispute resolution clauses in contracts to the impartiality of third party neutrals. As before, case notes cover all the processes of dispute resolution from mediation through to domestic and international arbitration.

The journal also fufils a ‘clearing-house’ purpose providing book reviews on the latest publications concerning dispute resolution and a ‘Media-watch’ column that reports on global dispute resolution in the media.

Further, the journal hosts special editions where for example multiple papers are published from conference proceedings. Other special editions include themed editions on topics such as dispute resolution in family law or the forthcoming special edition on conflict coaching.

For 35 years the journal has found a place in the abundance of scholarly journals and remains the pre-eminent periodical on the theory, philosophy, law and practice of dispute resolution in the Indo-Pacific Asia region. So, there is a scholarly journal that is worthy of your consideration when seeking to publish your research and practice experience in dispute resolution.

Honorary Professor Pauline Collins and David Spencer are the Co-General Editors of the Australasian Dispute Resolution Journal published by Thomson Reuters.

Honorary Professor Pauline Collins, University of Southern Queensland, is a co-author of, Dispute Management (Cambridge University Press, 2021).

David Spencer is a Solicitor and Deputy Dean-of-Law at the Thomas More Law School at the Australian Catholic University and is author of, Principles of Dispute Resolution (Thomson Reuters, 4^th ed, 2024), Mediation Law and Practice (Cambridge University Press, 2006) and co-author of, Dispute Resolution in Australia: Cases, Commentary & Materials (Thomson Reuters, 5^th ed, 2023).

This blog is based on an article written by the authors entitled, “The Australasian Dispute Resolution Journal: Past, Present and Future” (2023) 32(4) Australasian Dispute Resolution Journal 210 and is republished and adapted with permission.

Rethinking Family Mediation in England and Wales, and Beyond

Posted on 31/07/2025 by Milan A Nitopi

Dr Rachael Blakey

For several decades, the Australian family dispute resolution literature has examined the operation of family mediation and other family dispute resolution procedures. Much of this data comes from funded evaluations and projects following the Family Law Amendment (Shared Parental Responsibilities) Act 2006. However, the English and Welsh literature on contemporary family mediation is limited in comparison. Much of our research has remained focused on the court system, even though many, if not most, people involved in child arrangements or post-separation financial matters deal with their disputes outside of it. My monograph, Rethinking Family Mediation: The Role of the Mediator in Contemporary Times, seeks to reinvigorate discourse and debate on family mediator practice within not only England and Wales, but also other jurisdictions, including Australia. Its opening paragraph reads:

‘Family mediation, like many other procedures, is in a transitionary period. Several traditional concepts – neutrality, facilitation and non-legal support – continue to dominate the discussions around the role of family mediation and the family mediator. These notions remain fundamental to family mediator practice, though their hold has weakened over time. Following decades of reform to the family justice landscape, the work of family mediators is now underpinned by a number of other concepts: flexibility, evaluation and, sometimes, quasi-legal oversight. Family mediators continue to perform their traditional functions, but balance them alongside a rising demand to adapt. They follow a flexible conceptualization in order to provide more comprehensive support to their clients, many of whom have limited access to legal or other advice in the early 21st century.’ (Blakey 2025, p. 1)

Today’s English and Welsh family justice system is very different to that in Australia. We do not have any triage system like the Child and Family Hubs, nor is family dispute resolution mandated. In fact, the Ministry of Justice recently backtracked from 2023 proposals to require most private family law disputants to demonstrate a ‘reasonable attempt to mediate’ before initiating court proceedings, citing concerns about the use of family mediation in cases of domestic abuse. Interestingly, amendments to our Family Procedure Rules in April 2024 mean that judges now have more power to adjourn court proceedings to encourage the use of ‘non-court dispute resolution’ (including family mediation). Judges can also impose a cost order on parties who do not attend a non-court dispute resolution process ‘without good reason’. Whether the Family Procedure Rules have led to non-court dispute resolution becoming mandatory has yet to be seen. Regardless, Rethinking Family Mediation offers valuable insights for family dispute resolution practitioners and academics in various other jurisdictions. It illustrates how policy and legislation can shape mediator practice over time, highlighting mediation’s central positioning within the broader family justice system.

Uncovering the transition from limited to flexible mediator practice

The key thesis underpinning Rethinking Family Mediation is that the role of the family mediator (particularly in England and Wales) has broadened over time, and it is the lack of recognition that this development has occurred, not the development itself, that is inherently problematic. More specifically, I argue that there has been a transition from a limited mediator archetype to a flexible mediator archetype.

The limited mediator archetype is how family mediation practice was, and typically continues to be, conceptualised. They are facilitative and strictly neutral, ensuring that decision-making power rests with the parties at all times. This limited archetype was logical in the traditional English and Welsh family justice system when funding was accessible for many separating parties. Many individuals could still afford a lawyer, even if they were not eligible for legal aid. The limited mediator’s strictly facilitative role was thus appropriate, as more evaluative support and guidance was provided by a lawyer (or other legal practitioner) (figure 1). Nonetheless, the monograph uncovers a long-standing neutrality dilemma for family mediators: neutrality prohibits them from reacting to a power imbalance, yet, in many instances, to do nothing is also an unneutral act. This paradox suggests that the limited mediator was never a perfect or perhaps even ideal archetype.

Figure 1: A binary understanding of facilitative and evaluative behaviours

This critique holds even more weight today. The family justice system in England and Wales is drastically different to when family mediation was first piloted in the late 1970s and early 1980s. Over several decades, policy has increasingly presented mediation as the norm, not simply an alternative, for family matters. This push for private ordering accumulated in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which, as of April 2013, removed legal aid for the majority of private family law court proceedings. At the same time, traditional legal support has become increasingly inaccessible for most separating families. Both factors have led family mediation’s clientele to diversify, with many cases now involving complex legal disputes or difficult party dynamics. The limited mediator, who is unable to provide any form of evaluation, is poorly suited to this clientele. Calls for mediators to adapt have increased as a result.

The monograph argues that mediators have transitioned to a flexible archetype over several decades. It recognises that the demand – both within policy and academic scholarship – for mediators to do more is, in fact, a call for mediators to become more evaluative. The flexible mediator archetype continues to perform a facilitative role, but evaluation is woven within their practices. Facilitation and evaluation are thus not a binary distinction, but rather two concepts on a continuum of mediator practice (as originally proposed by Riskin in 1996, though much of the contemporary English and Welsh literature on family mediation does not acknowledge his work). Mediator neutrality is subsequently re-understood as a moderate concept that does not need to be strictly upheld when doing so would compromise fairness or another normative concept. My monograph recognises that the flexible mediator archetype operated prior to the LASPO reforms, with a number of earlier studies demonstrating the varied work of mediators. However, it is submitted that the contemporary family justice landscape necessitates the archetype even further.

Revealing the flexible mediator archetype after the LASPO reforms

In England and Wales, and many other jurisdictions, debates around how to reform family mediation often become circular. It is said that change is needed to provide a better service. However, such change is not possible under the traditional conceptualisation of the (limited) family mediator. Rethinking Family Mediation submits that this stagnancy is resolved if the flexible mediator archetype is explicitly recognised.

To inform debate, the book outlines findings from an empirical project, consisting of a content analysis of family mediation Codes of Practice and semi-structured interviews with 17 family mediators. Its empirical findings first reveal a new theoretical framework of four mediation functions, all of which are recognised and adopted by both family mediators and their regulatory bodies (figure 2). Mediators are primarily helpers, but regularly evaluate the proposed settlement or party dynamic to determine if they should become referrers to another service (notably legal advice). Mediator evaluation becomes significantly more prominent as they become assessors and, furthermore, intervenors. Additional interview data shows that mediators feel that they are responsible for responding to difficult party dynamics and unfair settlements, justifying their more evaluative practices. Of particular note within the empirical data is the mediator sample’s regular reference to legal rules, set out in both legislation and case precedent. This alludes to a growing quasi-legal role for today’s family mediators, most likely influenced by the withdrawal of accessible legal support after the LASPO reforms.

Figure 2: The mediator function framework, plotted on a continuum of facilitative to evaluative strategies

These more evaluative behaviours are discussed by the entire mediator sample, even if a participant understands their neutrality in very strict, absolute terms. Intriguingly, over two-fifths of the mediator sample prefer an alternative understanding of their neutrality that enables them to intervene in negotiations to encourage a good quality settlement. This stance appears more closely aligned with the concept of impartiality, rather than neutrality, though whether the former is a better term to describe the flexible mediator archetype is unclear (mirroring similar debates in Australia).

Implications for family justice going forward

The quasi-legal role of flexible mediators, as identified through the monograph’s empirical data, has significant implications for the professionalism and training of the profession. One chapter of Rethinking Family Mediation specifically considers the extrinsic and organisational barriers to reform, asking whether family mediation should be regarded as a ‘legal service’ under English and Welsh legislation. While the monograph does not provide a definitive answer to the question, it hopes to reinvigorate debate in the area. The chapter also uncovers findings on the current status of family mediation services at a time when the government expects parties to mediate but has provided very little government funding to support mediators themselves.

Importantly, the findings covered in this book have significant implications for our understanding of family justice. Family justice is generally understood as something that is only available through court (and supported by legal representation). Yet much of the empirical data discussed in the book is evidence of a shift in not only family mediator practice, but family justice itself. In the contemporary English and Welsh, as well as Australian, landscape, family justice is increasingly provided through non-lawyers, such as mediators, who are often informed by legal norms. The book connects these changes to a rising hybridity across family law practice, with lawyers additionally becoming more collaborative and less adversarial over time.

This contemporary vision of family justice is not ideal, nor perfect. Without further scrutiny of the various professionals within the family justice system, the risk of improper or unfair outcomes increases. However, Rethinking Family Mediation is premised on finding pragmatic solutions to the challenges within our modern family justice systems. In order to do so, the reality of non-dispute resolution practice must be identified and, importantly, recognised.

It is of no surprise that the monograph regularly returns to the concealment of the flexible mediator archetype – and most likely many other flexible practitioners – as a key issue within our current discourse around family justice reform. Ultimately, it argues that the changes in family mediator practice have been both a natural part of the profession’s development, as well as a consequence of the contemporary family justice system with limited funding and inaccessible legal support. The book will therefore be of significant interest to anyone interested in learning more about family dispute resolution in terms of not simply how the process was traditionally conceived, but how it operates in reality.

Author Biography

Dr Rachael Blakey is an Associate Professor at the University of Warwick. Her research focuses on family mediation and access to justice. She is a co-opted Director of the Family Mediation Council, the main regulatory body for family mediators in England and Wales. Rachael is interested in legal professionalism more widely, and is currently conducting the first empirical study on the English and Welsh ‘one-lawyer-two-clients’ format of family law support.

Author details: rachael.blakey@warwick.ac.uk | University Profile | LinkedIn | Rethinking Family Mediation: The Role of The Family Mediator in Contemporary Times (Bristol University Press 2025)

All figures were provided with permission from Bristol University Press.

Are Mediators Ever Liable? Rethinking Accountability in Our Practice

Posted on 18/07/2025 by Dr Samantha Hardy

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

Inspired by Jennifer L. Schulz (2023). Mediator Liability 23 Years Later: The “Three C’s” of Case Law, Codes, & Custom. Ottawa Law Review / Revue de droit d’Ottawa, 55(1):151–186. Available at: https://doi.org/10.7202/1112508ar

A Quiet Assumption

For many of us working in the mediation field, there’s a quiet assumption we rarely question: that we’re not likely to be sued for what happens in a mediation room.

And, to date, that assumption has mostly held true. While a few attempts to sue mediators have occurred in different jurisdictions around the world, none have resulted in a mediator having to pay compensation to a party.

Canadian mediator and law professor Jennifer Schulz reviews 23 years of case law across six common law countries—including Australia—asking why mediators are not being held liable and arguing that they should be. The article is well worth reading in full, as the detailed summaries of the cases examined provide a vivid picture of the current gap between our aspirational standards of practice and the lack of accountability for those who do not meet them.

The Current Reality: A Legal Shield

Schulz’s research confirms what many of us might suspect: across Canada, the US, Australia, New Zealand, England, and South Africa, courts are still not holding mediators legally liable for negligent practice.

Even in cases involving mediator coercion, numerical errors in settlements, inappropriate behaviour, or poor handling of vulnerable parties, the most common judicial response is to set aside the agreement—not to hold the mediator accountable.

There are four main reasons for this legal shield:

Causation hurdles – it’s hard to prove that a mediator’s actions caused a party’s loss.
Mediator immunity – either through legislation (as in many US states and Australian courts) or through contractual terms.
Mediation confidentiality – which often prevents complainants from even introducing evidence of wrongdoing.
Lack of a defined standard of care – without it, there’s nothing to measure negligence against.

As Schulz puts it, we’re operating in a legal vacuum—where professional expectations are high, but legal consequences are rare.

The “Three C’s” Proposal: A Way Forward?

Schulz doesn’t advocate for a wave of mediator lawsuits. Instead, she proposes a more thoughtful framework for developing legal accountability: the Three C’s.

Case Law – court decisions that, even if inconsistent, begin to sketch the boundaries of acceptable practice.
Codes of Conduct – such as those issued by AMDRAS, state-based mediator panels, or court-connected schemes.
Custom – what a reasonable mediator would do in a given situation, based on community norms and practice standards.

I would personally add another C, perhaps attached to the Codes of Conduct item – and that is Complaints. More could be done to educate clients about what they should be able to expect from their mediator, and mediator complaints services could be more courageous and transparent about how they respond to client complaints. Complaints handling that is half-hearted or that aims to protect mediators rather than hold them publicly accountable only exacerbates the problem and pushes it underground.

These sources could help courts (and the profession) articulate what counts as competent mediation (the basis for a standard of care in negligence) and what crosses the line.

What the Cases Tell Us

The article walks through dozens of cases—some troubling, some absurd, many familiar. A few key themes emerge:

1. Coercive Behaviour Is Common—But Unpunished

Multiple cases involve mediators who pressured parties to settle, made legal predictions, lost their tempers, or belittled participants. Courts have rarely responded with consequences—unless the party was unrepresented and severely disadvantaged. The courts typically assume that if a party is legally represented, their lawyer will protect them from any harm.

Notably, some cases even include allegations of racist or discriminatory remarks by mediators—again, without findings of liability.

2. Vulnerability Is Often Overlooked

Incapacity cases—where a party was overwhelmed, unwell, or otherwise unable to engage effectively—are nearly always dismissed. Courts seem to assume that the voluntary nature of mediation allows a party to stop participating at any time, so choosing to continue negates their right to claim. This type of thinking shows a lack of understanding of how incapacity might show up, in that it might also make someone incapable of making a good choice to leave the mediation.

3. Mediators Who Make Mistakes Still Escape Consequence

From drafting errors to bad legal advice, mediators are largely shielded unless the consequences are glaring and the party can prove they were misled into harm. In such cases, courts tend to place responsibility on the parties’ lawyers—even where the mediator dictated the settlement. Even where there is no lawyer involved, the likely outcome is that the agreement will be set aside, rather than any consequences for the mediator.

Implications for Australian Practice

So what does this mean for those of us practising under the AMDRAS framework or in private, court-connected, or hybrid contexts?

Legal immunity doesn’t mean ethical impunity. Just because we’re unlikely to be sued doesn’t mean we shouldn’t hold ourselves—and each other—to higher standards.
Custom matters. If the law ever does change, it will likely rely on what we say is normal, ethical, and good practice in our mediation communities.
The codes we sign up to should guide us daily—not just when we’re audited or accredited. They may form the basis of future legal standards.
Training matters. When mediators pressure parties, overlook incapacity, or provide questionable advice, it’s often due to poor training, not bad intentions.
RABs need to have rigorous complaints processes. Until the courts step up and impose consequences on mediators who behave badly, the mediator’s accreditation body must be able to manage complaints effectively to prevent harm to parties and the profession’s reputation. This means holding mediators accountable for improper behaviour and educating members about where the line will be drawn.
Industry/peak bodies could play an important role in educating clients about their rights/expectations of a mediator. It’s one thing for mediators to hold themselves accountable (and be required to do so through professional standards). It’s another for a client to be informed and educated about the treatment they are entitled to receive.

It is also important to acknowledge that there are many cases in which aggrieved clients lash out at mediators who have done nothing wrong. Vexatious complaints seem particularly common in the family sector, and it is important that the practitioners involved are treated with respect and allowed to defend themselves with dignity.

A Profession at the Crossroads

Mediation has come a long way—from fringe alternative to mainstream dispute resolution. With that growth comes a challenge: do we want the status of a profession without the accountability?

Schulz’s article offers a roadmap. The future of mediator liability may not lie in sudden lawsuits or rigid standards, but in a profession willing to evolve its own definitions of excellence, to recognise when harm has been done, and to hold people accountable.

As Australian mediators, particularly with the new AMDRAS standards about to come into effect, we’re well placed to lead this conversation. The question is: will we?

13th Australian Dispute Resolution Research Network Roundtable

Posted on 26/06/2025 by Associate Professor Becky Batagol

27-28 November 2025 Monash University

Call for Paper Proposals

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.

The roundtables are designed to encourage a collaborative and supportive research environment in which papers are work-shopped and discussed in detail. Papers in draft form are distributed one month ahead of time to participants, to enable thoughtful and constructive quality feedback.

We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. Topics can be addresses 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.

There will be a limited number of papers accepted for inclusion in the roundtable discussions. A panel will select roundtable papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:

Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
The roundtable will include a spread of participants across stages of career; and
A well-balanced range of work will be presented at the roundtable to provide diversity, to develop the field and to enable cohesive discussion.

Participation is on a self-funded basis.

We will also be asking you to draft a short (1,000 words max) blog post about your paper prior to the roundtable. Our blog reaches over 17,000 individuals per year and has over 25,000 hits – so your blog will be widely read. You will have a chance to fix up your blog post after the roundtable in case you’d like to make any adjustments after feedback.

On the day, speakers are given up to 30 minutes for presentation, with 30 minutes for feedback and discussion. Two primary commentators will be appointed for each paper.

Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.

Deadline for paper proposals: 30 September 2025.

(300 word maximum plus short bio, to https://forms.gle/sNfifQPx8TrJG8cD9 or follow this link to our Google Form)

We will have rolling acceptances for papers.

Draft (full) papers + blog post due: 10 November 2025 (to send to participants mid Nov.)

For further information, please contact:

Conference Convenors and 2025 Network Presidents:

Becky Batagol and Jackie Weinberg via adrresearchnetwork@gmail.com (monitored twice weekly)

About the Australasian Dispute Resolution Research Network

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.

Guest blog post proposals are always welcome. Contact Blog Editors in Chief, Sam Houssain and Milan A. Nitopi.

Membership of Australasian Dispute Resolution Research Network

We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework.

The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.

Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook ADR Research Network page and Linked In discussion group but engagement on these platforms is not necessary to keep track of blog activity.

What’s the alternative to mediation? Meet the European Board Game Going Global

Posted on 20/06/2025 by rorygowers

Responding to @Massimiliano Ferrari’s recent post sharing @Dr. Anna Maria Bernard’s powerful insights about digital conflicts in Basilicata. Here’s what we’re seeing as Medianos spreads globally…

Massimiliano Ferrari’s sharing of Dr. Anna Maria Bernard’s insights from Basilicata Region perfectly captures what those who understand transformation are witnessing worldwide – the emerging need for approaches that naturally dissolve digital-age conflicts. Dr. Bernard’s experience with Medianos confirms what you may already be sensing as this remarkable method continues spreading across continents.

She writes about how “digital conflicts are the order of the day” and as you consider this, you might recognize the truth in her observation. Just last month, I watched a CEO and his teenage daughter discover something profound as they sat across from each other, both having believed the other “just doesn’t get it” about screen time boundaries. Traditional mediation would have had them negotiate rules and compromises. But what happened next was something that transforms everything.

In the past, families like theirs relied on authority-based solutions that inevitably left children feeling unheard and parents feeling frustrated. When conflicts arose over homework, curfews, or device usage, conversations naturally escalated into battles of will rather than becoming opportunities for deeper understanding. The tools available were limited to expensive counseling, theoretical parenting books, or time-consuming mediation processes that few families could access or sustain effectively.

Then the digital revolution changed everything, didn’t it? As Dr Bernard observes, we’re dealing with conflicts our parents never imagined: How much screen time creates balance? What about online privacy and safety? How do we manage social media wisely? The generational digital divide widened as children became native users while parents struggled to keep pace with change. These “digital conflicts” became daily occurrences, with the adolescent brain still developing and naturally impulsive constantly stimulated by digital temptations that multiply exponentially.

What she discovered in Basilicata, you’re now beginning to see replicated across Europe and beyond. Medianos – The Game isn’t just resolving these conflicts; it’s fundamentally transforming how families, schools, and even workplaces naturally approach disagreement.

That CEO and his daughter? Within two hours of facilitated gameplay, something remarkable began to unfold. By “playing” each other’s roles in a safe, structured environment, they started to understand perspectives they’d never allowed themselves to consider. The daughter experienced the weight of parental responsibility for digital safety, and the father felt the frustration of being constantly monitored and distrusted. When they returned to their original roles, their conversation had completely shifted – from positional bargaining to collaborative problem-solving that felt surprisingly natural.

This is the power Dr Bernard wrote about when she described how Medianos allows participants to “go beyond the conflict and enhance what you feel at the level of emotions, thoughts and behaviours.” And what’s truly exciting is how rapidly this approach continues spreading globally, creating transformation wherever it goes.

Created by Massimiliano Ferrari and supported by a rapidly expanding community of Ambassadors, Medianos is spreading across the world at unprecedented pace, and as it does, more people are discovering its effectiveness. Recent weeks have seen new Ambassadors recognized across Italy, Canada, France, Spain, Brasil, Latvia, Ecuador, and Albania.

I, Rory Gowers, as the newly appointed Australasian Medianos Ambassador and creator of the My-RESPECT-Ability negotiation framework, am curious to discover how this face-to-face board game experience will resonate with digital natives here in Australasia while delivering the profound results Dr Bernard described.

The game format creates what she calls “a safe, secure, and stimulating environment” where participants naturally develop genuine empathy through facilitated face-to-face interaction. Communication skills emerge organically as players learn active listening and assertive expression without it feeling like traditional training. Hidden needs surface safely as the game reveals unexpressed fears that fuel conflicts. Most importantly, players develop what I call “respect-ability” the expanding capacity to engage respectfully even during difficult conversations.

Dr Bernard’s observation that “gaming experience with Medianos was pivotal in translating theoretical concepts into practical skills” captures exactly why this approach succeeds where traditional methods struggle. In our screen-saturated world, bringing the power of gaming back to physical interaction creates genuine human connection that digital experiences simply cannot replicate.

The transformation extends far beyond individual families, doesn’t it? As she noted with the teachers in Basilicata who were “fascinated by the educational and formative opportunity,” we’re witnessing schools, workplaces, and communities naturally develop cultures of respectful engagement. When conflicts become catalysts for deeper understanding rather than relationship damage, entire organizational cultures begin to shift.

Imagine, if you will, boardrooms where disagreements become opportunities for innovation rather than positional battles. Picture classrooms where teachers and students collaborate through understanding rather than authority. Envision families where generational divides bridge naturally through shared gaming experiences that honour everyone’s perspective completely.

This is the future Dr Bernard glimpsed in Basilicata – and it’s spreading globally with increasing momentum. Her closing question resonates deeply, and you might find yourself wondering: “What strategies are you using to manage digital conflicts in the family or at school, or in the workplace?”

The answer, increasingly, is becoming Medianos – The Game. We’re actively preparing for launch in Australasia in Quarter 4 2025, bringing this proven approach to a region where digital conflicts are as prevalent as anywhere in the world, and where solutions are needed most.

As Dr Bernard concluded, “Open dialogue, empathy, emotional intelligence education and novel tools like Medianos are the key to transforming ‘digital conflicts’ into opportunities for growth and deeper bonds.” The enthusiasm she witnessed in Basilicata is now spreading across continents – one family, one school, one workplace at a time, creating lasting change.

For more information about bringing Medianos to your organisation or community, reach out to MyRespectAbility or respond to the post directly and discover what becomes possible.

What strategies are you using to transform conflict into connection? Join the conversation below and share what you’re discovering.

Author Biography

Rory Gowers is a Master of Dispute Resolution (MDR), Master of Education (MEd), certified Master NLP Practitioner, and intercultural mediator with deep experience leading transformative change across global business and community settings. Based in Greater Sydney, Australia, Rory helps leaders and organisations replace conflict cycles with clarity, cooperation, and lasting resolution.

As the founder of The Constructive Solution, Rory applies structured, values-based methodologies to resolve complex interpersonal and systemic challenges—especially in high-stakes environments like construction, government, and professional services. His work produces measurable outcomes: reduced rework, improved trust, and faster decision-making.

He also leads Mastering Intercultural Mediation Initiatives (MIMI)—a high-impact executive program that equips senior leaders to build inclusive, high-functioning ecosystems by mastering cultural agility and conflict competence.

Now, Rory is bringing the internationally acclaimed Medianos – The Board Game to Australasia. As the official Australasian ambassador, he introduces this dynamic, play-based tool to transform how professionals learn and practise negotiation, mediation, and respectful engagement.

Rory’s mission is clear: to grow respect, resolve conflict, and realise the shared vision of a place for all and peace for all in our time—by guiding people and systems to adopt practical, repeatable solutions that build trust and deliver sustainable results.

Contact Rory:
🌐 Web: www.myRESPECTability.com
📧 Email: rory.gowers@gmail.com
📱 Mobile: +61 425 292 811
🔗 LinkedIn: linkedin.com/in/constructiveconflictsolutions

AI and Dispute Resolution: Why You’ll Need It Sooner Than You Think

Posted on 05/06/2025 by John Lande

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

Imagine doing your work without word processing, spell checkers, email, the internet, search engines, voicemail, cell phones, or Zoom.

That’s how you’ll probably feel in the not-too-distant future about working without artificial intelligence (AI).

Innovations often seem radical at first. In time, people just take them for granted.

ABA Formal Opinion 512 states that lawyers soon may be ethically obligated to use AI. “As GAI [general artificial intelligence] tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.”

AI isn’t replacing dispute resolution professionals any more than calculators replaced accountants. But just like calculators, AI tools are becoming essential tools for legal and dispute resolution work.

Remember when everyone freaked out when they first had to use Zoom at the beginning of the pandemic? Now people don’t give it a second thought. It probably will be the same way with AI before you know it.

You Don’t Have to Love AI – But You’d Better Get to Know It Soon

Two companion articles – How I Learned to Stop Worrying and Love the Bot: What I Learned About AI and What You Can Too and Getting the Most from AI Tools: A Practical Guide to Writing Effective Prompts – are designed to help dispute resolution faculty, practitioners, students, and program administrators get comfortable with AI. The first article tells why AI literacy is becoming more important all the time. The second shows how you can easily become more AI literate.

Together, they offer a friendly nudge for people who feel they’re behind – spoiler alert: this may be you – and training wheels so you don’t fall flat on your face.

Love the Bot describes my own reluctance to use AI. Now I use it every day to think and write better, faster, and more creatively.

But I’m not the only one. Law students are already using AI. Practitioners and clients are too.

So this isn’t a quirky corner of practice anymore. It’s the center of a growing professional expectation. Law schools are adding AI courses. Some are embedding it across the curriculum. If professors don’t engage with AI now, they’ll be learning from their students instead of the other way around.

Good Prompting Can Be Your Superpower

Getting the Most from AI Tools is a hands-on guide to producing better results with AI.

It walks you through the mechanics of writing effective prompts. It’s packed with examples for mediators, attorneys, students, faculty, program administrators, and even disputants.

We all know that AI sometimes hallucinates. But you’re hallucinating if you think that you can wait to start using AI tools until they stop hallucinating. Ain’t gonna happen anytime soon.

In the meantime, you can benefit from AI tools if you know how to use them (and how to manage hallucinations and other problems). You don’t need to be an expert – just thoughtful, curious, and careful.

The results from AI tools may depend less on the technology itself and more on users’ skills. Like other skills, it improves with practice.

Becoming AI Literate Is Easier Than You Think

These articles describe AI literacy as a process of continual learning as AI technology continues to evolve.

The first steps are just getting curious and trying it at your own pace. Try starting with simple tasks like:

Asking questions you already know the answers to
Getting recommendations for movies appealing to your tastes
Summarizing something long and boring
Brainstorming ideas for a class, article, or paper
Polishing a rough email, memo, or draft

As you gain confidence, you can ask it to help with your work. Professors can revise a syllabus. Students can prep for a simulation. Mediators can brainstorm tough moments. Program directors can develop orientation materials. Etc. Etc. Etc.

The possibilities are limited mostly by imagination and fear. These articles help with both.

Don’t Regret Waiting to Get the Benefits of AI

AI isn’t just about efficiency. It’s about equity, ethics, and excellence. You can choose how to express your values through it.

AI tools can reveal students’ thinking, making teaching more responsive. They can also help lawyers and clients make better decisions, especially when time or money is short. And lots more.

If you’ve been hesitant, these articles can help you do things you want to do – and things you haven’t even imagined. But only if you take the first step.

Washington Post columnist Megan McArdle writes, “We are resting in the eye of a gathering [AI] storm, and those who fail to fortify themselves now risk being swept away when the storm finally unleashes its full power.”

Take a look – and don’t get swept away.