Designing a Trauma-Informed Family Dispute Resolution Process

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By Shanza Shafeek       

This is the first blog post in a series written by undergraduate law students enrolled in Monash University’s Non-Adversarial Justice unit in 2024. The very best posts have been published here.

Family disputes are inherently stressful, but for those who have experienced trauma—especially from domestic and family violence—the process can be even more overwhelming.

While the Family Law Act 1975 (Cth)  promotes Family Dispute Resolution (FDR) as a flexible, less adversarial alternative to litigation, it often fails to adequately address the unique needs of trauma survivors. This highlights the urgent need for a trauma-informed FDR service that supports victims while promoting healing.

In this blog post, we will explore the concept of FDR, the importance of a trauma-informed approach, the key elements that make it effective, the challenges it presents, and how these elements contribute to a more empathetic, supportive process.

What is Family Dispute Resolution?

FDR is a process where an accredited Family Dispute Resolution Practitioner (‘FDRP’) helps families resolve disputes related to separation or divorce outside of court.

The FDRP assists in creating parenting plans that outline future arrangements based on the best interests of the children. The goal is to resolve issues through ‘genuine effort’before resorting to court orders, promoting ‘cooperative parenting’.

Mandatory FDR requirements include exemptions for cases involving child abuse, family violence, urgency, or an inability to participate, ensuring that FDR is only used when appropriate.

The Need for a Trauma-Informed FDR Service

Trauma-informed care recognises the profound impact trauma has on individuals and strives to create a safe, supportive environment for survivors. Despite some exemptions, around 41% of family violence victims still use FDR to address their needs. However, the adversarial nature of disputes, the presence of perpetrators, and the language used in FDR can trigger past trauma, making the process harmful for victims.

Philippa Davis from the Women’s Legal Service emphasises the importance of having ‘safe processes’ for family violence survivors. Around 23% of victims report feelings of fear and power imbalances during FDR, which often leads to pressure to accept unsafe and undesired agreements. A trauma-informed FDR service, on the other hand, facilitates safer participation, enhances communication, and increases the likelihood of reaching mutually satisfactory agreements.

For example, Rachael Field and Angela Lynch introduced the ‘Coordinated Family Dispute Resolution’ (CFDR) model in 2009—a trauma-informed, four-phase framework. Piloted in five Australian locations, this model was evaluated as ‘holistic and safe’ for victims, demonstrating the positive impact of trauma-informed practices in FDR.

Elements of a Trauma-Informed FDR Service

A trauma-informed FDR service must integrate six key elements to address trauma.

  1. Before the Session:

Assessments:

A trauma-informed FDR service must start with comprehensive suitability and risk assessments to ensure the process is both safe and supportive for victims. These assessments should evaluate critical factors such as violence, power imbalances, and the psychological well-being of participants to determine whether FDR is suitable.

FDRPs should be trained to conduct trauma assessments effectively in cases involving trauma. Studies show that around 30% of parents feel FDRPs lack the necessary expertise to address abuse, highlighting a significant gap in knowledge. This points to an urgent need for targeted training in trauma-informed practices, including safety planning and psychological first aid, so FDRPs can perform these assessments effectively.

Cultural competence is also a key component of these assessments, especially when working with diverse trauma survivors. Susan Armstrong emphasises that FDRPs have reported ‘less confidence’ in cultural competence, indicating the need for cultural training (including First Nations traditions) to ensure parties feel understood, respected and supported from the outset.

Once FDR is deemed suitable, practitioners and domestic violence workers should adopt a ‘multidisciplinary’ approach to develop risk management plans that address the specific trauma needs identified during assessments. Andrew Bickerdike highlights that these plans may include measures such as separate waiting areas and virtual FDR options to create a more supportive environment for victims.

Information:

Clear and comprehensive information must be provided to participants before FDR sessions. As Joanne Law highlights, this information should include details on participation requirements, the roles of FDRPs and lawyers, any necessary religious or cultural accommodations, and the availability of breaks.

Participants should also be informed of their right to have a support person, their ability to express discomfort or withdraw from the process, and the trauma-informed practices in place, such as promoting autonomy and empowerment. Eugene Opperman emphasises that providing this information helps alleviate pre-session anxiety, as it ensures participants are fully aware of their rights and the measures in place to safeguard their well-being.

  • During the Session:

Safe Participation

During the sessions, it is crucial to create a safe environment that encourages active participation. A ‘co-mediation approach’ as suggested by Field and Lynch for the CFDR model, can be particularly effective. This approach involves using gender-balanced mediators and legal advocates for both parties to prevent ‘gender bias’– an issue highlighted in the Post-2006 Evaluation Report.

FDRPs must cultivate a welcoming atmosphere using calming language, offering private rooms to ensure confidentiality, and ‘giving ample time for each party to speak’—strategies emphasised by Dee Hardy. Such an environment helps parties make decisions that align with their own interests and the best interests of their children, rather than feeling pressured into ‘unfavourable choices’, which has been a noted concern.

Corinne Henderson and Isobel Everett further recommend minimising staffing changes, offering a variety of choices, and avoiding arbitrary rules to ensure consistent participation. These elements enhance trauma-management and foster open communication, ultimately making the process more effective for everyone involved.

Validation:

Validation is a crucial component of a trauma-informed FDR service. FDRPs should actively listen to participants, ask trauma-sensitive questions like “How did that make you feel?” and express genuine empathy. These actions help bolster participants’ self-worth and support their emotional well-being, addressing the high levels of acrimony and self-doubt reported by 17% of parties in family disputes.

FDRPs should also remain attuned to participants’ emotional states throughout the session. The concept of the ‘window of tolerance,’ as described by Pat Ogden, Clare Pain and Janina Fisher, is particularly useful. This framework helps FDRPs recognise when a participant is approaching the limits of their emotional regulation—whether in a state of hyperarousal (anxiety) or hypo-arousal (shutdown).

By adjusting the process to stay within the participant’s ‘their ‘optimal state of balance’, FDRPs create a supportive and constructive environment.

  • After the Session:

Summaries:

After each session, FDRPs should provide a clear summary of the outcomes and outline the next steps to ensure that all parties understand the progress made, helping to alleviate anxiety.

Conducting a debriefing immediately after the session allows participants to reflect on their experiences, validate their emotions, and address any lingering concerns. By actively involving them in determining the next steps, this trauma-informed approach enhances their sense of control and supports their healing.

Follow-Ups:

Follow-ups are essential for providing ongoing support and ensuring the long-term effectiveness of agreements. Around 19% of parents who reach an FDR agreement no longer have one a year later. To address this, a follow-up within 1-3 months should assess the agreement’s effectiveness and evaluate parties’ evolving needs. Itshould also include a specialist risk assessment for any new concerns and seek feedback on the trauma-informed FDR service.

A second follow-up, 6-12 months later, should focus on the long-term impact of the mediation, review any additional support needs (such as counselling), and explore the possibility of further mediation. Similar to the CFDR approach, this continued access to resources ensures that parties receive sustained support throughout their healing journey.

Challenges:

Designing a trauma-informed FDR service comes with its challenges. The AIFS evaluation of CFDR found that “some parents still experienced considerable emotional difficulty, even trauma, in mediation,” highlighting the ongoing challenge of effectively addressing trauma within FDR processes.

Additionally, Field and Lynch point out that trauma can significantly impair communication skills, suggesting that specialised training in ‘communication’ and negotiation strategies is essential for trauma-informed FDR services—though such training can be costly.

A trauma-informed FDR service also requires substantial resources, including ongoing, high-quality training for FDRPs and regular evaluations. These challenges must be carefully managed to ensure that trauma-informed FDR services are effective and sustainable.

A trauma-informed FDR service is crucial to effectively support trauma survivors. By integrating the six core elements, FDR can foster healing and achieve outcomes that the adversarial system often fails to provide. As our understanding of trauma continues to grow, FDR services must evolve to offer the compassionate care that victims truly need.

ChatGPT use:

This blog post was developed with the assistance of ChatGPT to identify key issues, which were subsequently fact-checked and supported with relevant journal articles. The insights provided by ChatGPT helped shape the initial framework, ensuring a comprehensive exploration of the topic.

About the author:

My name is Shanza Shafeek, and I am a fourth-year Law/Arts student at Monash University, specialising in sociology. I am currently working as a paralegal in institutional abuse and as a marketing team member for the Muslim Legal Network. I have also been actively involved as a Monash Law Ambassador and a Human Rights Project member for Amnesty International. I am passionate about legal policy, family law, and promoting culturally responsive approaches within legal practice to support diverse communities. I can be found on Linked In.

Vale Dr John Woodward

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John, taking a break from writing at the University of Newcastle in March 2020

It is with sadness that our community honours the passing of Dr John Woodward on 5 February.   

John was a trusted colleague, a dedicated member of this Network, a solicitor who spent almost 30 years in litigation practice, a mediator, an arbitrator, and a member of the Law Society of NSW ADR Committee.   He was also so much more than his career achievements, a man who spoke lovingly of his family, an artist, avid tennis player and a friend to so many. One of John’s greatest contributions to the world of ADR was his time spent teaching students in the legal clinic and in civil procedure. His encyclopaedic knowledge of litigation allowed him to speak with an authority on why cultural change in the legal profession is essential, and students listened to what he had to say.

Litigation had been the cornerstone of most of John’s career, and his experience eventually led him to become a keen observer of litigation’s shortcomings. Here is how John explained his ‘conversion’ from hard-nosed litigator to a strong believer in the power of mediation and “the vision of a broader view of justice“:

“[My conclusion was] after thirty years of legal practice as a commercial litigator, that the solutions being offered to litigants by the traditional justice system were somewhat less than ideal.  Clients were complaining that the court could not offer the relief they were seeking, the costs of “winning” were prohibitively high and most of the cases in which I was instructed were resolved on some basis well before they reached a hearing. 

Try as I might, I could never quite be convinced of the claim that the public interest in having the courts “…explicate and give force to the values embodied in authoritative texts…” (1) or otherwise declare the law for the benefit of the public good, had any real relevance to some of the mundane and routine cases in which I was involved.  In fact, of all of the hundreds of cases in which I acted throughout my career as a lawyer, only two found their way into the law reports.” 1

After graduating with a Masters in Dispute Resolution from UNSW, John decided to commence his PhD, as he felt that regulators had made certain assumptions about the legal change that had been brought about by civil procedure rules mandating mediation. The topic resonated well with one of John’s favourite quotes:

“How small, of all that human hearts endure, that part which laws or kings can cause or cure.”

You can read an earlier profile of John and his PhD work in this blog post from 2016.   He graduated in 2019, with his dissertation modestly entitled “Lawyer approaches to Court-Connected Mediation: A New Case Study,” and this is available free open access through SSRN. The key finding of John’s PhD research, based on a large set of qualitative data, was that lawyers are keenly aware of their ethical obligations towards their clients in terms of protecting them, but that this gave rise to a reluctance to have clients directly participating in the mediation process. He also identified that the profession remains generally confused about the extend of confidentiality in mediation, and that this further inhibits lawyers from engaging fully in the mediation process. Finally, he noted that there were still cultural barriers within the profession, stemming at least in part from the limits of most models of legal education.

John’s 2019 PhD Graduation

Some of John’s pieces on this network include: 

John Woodward (far left) at the  6th ADR Research Roundtable at the University of Otago in 2017

Some of John’s scholarly articles include:

John had a fight on his hands after being diagnosed with an aggressive glioblastoma in mid-2023, and he faced that fight with his usual sense of humour and determination, exceeding the dire predictions of his life expectancy but cautioning me regularly with a grin, “don’t buy me any green bananas.” I had the privilege of supervising John’s PhD thesis at UNSW and then at the University of Newcastle, and as the decade passed, we built a friendship based on a passion for ADR (and also for coffee) that transcended the difference in our life stages.

Thank you John for all you taught us, for the future generation of lawyers you helped educate, and for showing us all the power of change to make the world a better place. Ave atque Vale (hail and farewell).

At the 13th ADR Research Network Roundtable in November, we will hold a session in John’s honour.  If you’d like to be involved, please contact me or respond to the call for papers. 

  1. Quote from John’s 2018 blog post about his PhD journey ↩︎

Save the date, Lucky 13th Australian Dispute Resolution Research Network Roundtable, 27-28 November 2025, Monash University

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The Faculty of Law, Monash University is proud to host the 13th Australian Dispute Resolution Research Network Roundtable on Thursday 27 and Friday 28 November 2025 at the Monash University Clayton Campus (approx. 30 minutes from Melbourne CBD). There are many public transport options to Monash from inner city Melbourne and we will share details for attendees from afar.

The Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics. We have honed our format over the years and will adopt the following approach:

  • a focus on work in progress (ie, it’s not a conference, but a collaborative workshop around a table of supportive peers)
  • a limited number of papers selected for in-depth discussion
  • there is at least one appointed commentator for each paper
  • attendance is limited to people who are presenting or commentating upon papers
  • full papers must be submitted for distribution one month prior to the roundtable
  • publication of a blog post based upon the paper is expected for all presenters

Anyone working in civil justice and any form of dispute resolution including mediation, conciliation, negotiation and arbitration is encouraged to attend. Scholars from outside Australia are also welcome to attend.

Early Career Researchers and PhD students are particularly encouraged to participate. We are a kind and supportive group of scholars and are very welcoming of newcomers.

The call for papers will be released in June or July.

Queries can be directed to the convenor and co-President of the ADRRN: Becky Batagol (Monash University) Becky.Batagol@monash.edu.

This roundtable will be supported by the Australian Centre for Justice Innovation

Written Off: Three Steps to Move Forward When You Feel Rejected

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Dan Berstein

Whatever the reason for it and whoever it comes from, rejection hurts. 

In 2022 I wrote a book called Mental Health and Conflicts: A Handbook for Empowerment with hopes to teach people skills for managing challenging behaviors without writing off people with mental illnesses. At the time, this book represented a culmination of my life’s work and it meant a lot for to me that it found a home at the American Bar Association (ABA). 

Three years later, my ABA affiliation was unfortunately terminated following a difficult saga, for me and many others, as I was wrestling with interpersonal struggles and bipolar symptoms.   The news of my termination was very difficult. I have been hospitalized five times due to my bipolar disorder–always during times when I became overwhelmed by similar interpersonal challenges. During each episode, I would break down, my mind would get stuck on a problem, and I would decompensate into mania or even psychosis. My condition has a high risk for instability and suicide, with research showing that each subsequent episode means a decreased odds of returning to normal functioning.1

Being terminated from the ABA overwhelmed me. It was a sudden emotional crisis that put me at risk. I required emergency medication, emergency therapy sessions, and emergency support from friends and family. We summoned all of the lessons from decades of managing my condition in order to make it through.

Even though it was an immensely challenging period in my life, this time something was different. In 2023, and as part of my professional work as a conflict resolver, I had developed a system for responding to avoidance, rejection, and social exclusion. I presented a three-step model to get through these especially challenging situations, which I call the 3 R’s, at the Association for Conflict Resolution conference and the Academy of American Law Schools ADR Works-In-Progress conferences.

Without the skills of the 3 R’s, I do not know how I would have coped with being terminated. That system consists of:

  • Respect.
  • Reply.
  • Reorient. 

The 3 R’s approach readily lends itself to any situation and can be easily used by anyone when they face rejection from friends, family, colleagues. Here’s how it works:

1. Respect the person’s decision even if you find it stigmatizing or you disagree with it.

While it is tempting to try to convince them of your worth, dispel lies or inaccuracies, and seek ways to still have the relationship, it can also be dangerous. 

Sadly, I’ve learned in my life that, given I’m open with my bipolar disorder, it is easy for people to stigmatize my persistence to fight being rejected. Studies have shown that it is common that people with bipolar disorders are sensationalized in the media (such as TV shows or movies, and other portrayals).2 There is also research that shows people are more likely to worry someone that has a mental health problem is some kind of stalker.3 Amidst that kind of climate, it can be risky to continue contacting someone who may be seeing any follow-up through a stigmatizing lens. Arguing with their portrayal may only feed into the narrative.

Stigma aside, in any conflict it is helpful to separate the person’s decision to cut contact with you from the explanation you are given or the style with which it is delivered. It may feel offensive, demeaning, disrespectful to be ghosted or to hear a story that does not ring true or clearly is contrived. But no matter how poorly implemented or inaccurate the rejection may seem to be, it still provides notice of a decision: however painful the circumstances, this person wants to diminish or end their relationship to you.

Years of dispute resolution have taught me to prioritize self-determination,4 and made it easier for me to come to a place of accepting that a person made a rejection decision. 

While it does not feel good to be rejected, it has been a relief to readily accept it instead of debating. If there are other problems related to what is happening, such as bullying or discrimination, it still can be best not to fight and instead look for other kinds of support.5

2. Reply one last time to confirm the boundary.

You may not always get a formal letter or confirmation (such as a letter of termination–like I received) when it comes to rejection and social exclusion with friends, family, or others.

We live in a world filled with “ghosting” patterns–where people just pull away without contact–and things are left rather ambiguous and unclear.6 Sometimes it can be extremely ambiguous, such as in one of the latest dating trends where people engage in “breadcrumbing” to keep romantic partners on the hook or on hold.7

This is why, whenever anyone seems to be avoiding contact with me, I send one final reply to let them know that I am acknowledging what I perceive to be their boundary to be and that I plan to follow it. Depending on your personal boundaries, you might also let them know you are available in the future if they change their mind on reconnecting. In the course of my mental illness discrimination advocacy work, I typically take that approach, with hopes that one day the people or organizations who are avoiding me will evolve and want to engage. In that case, I want them to know the door is still open for that.

Sending this reply is important because it is possible–given any ambiguity–that there was a misperception. Sometimes people will immediately let you know that they didn’t mean to make you feel rejected and they might undo the boundary. On the other hand, if they are intent on the rejection, your reply documents that you are honoring their boundary and that record can be helpful, particularly to guard against the stigmas mentioned earlier.

3. Reorient to next steps rather than stay stuck in pain.

This is my favorite “R” because this approach has truly changed my life. Before the 3 R’s, I would stay fixated obsessing on hating myself, endorsing self-stigmas, wallowing, and reliving the loss over and over whilst descending into a dark place in my mind.

But there is another way. If we commit to focusing on reorienting ourselves to discover new opportunities, we can enrich our lives. Since I started using the 3 R’s model in my life, I have connected with new friends and colleagues, developed new projects and partnerships, and become active in new communities–all because I decided to immediately accept the person’s decision to cut contact with me and start looking for new people and places to be involved instead. Since 2023, when I first created this system, my life has grown at a meteoric rate with many new opportunities which I have found and nurtured every time I reorient.

My initial connection to Australia came by my efforts to reach out to someone in early 2024 and during a time when I received a different rejection letter related to my anti-discrimination advocacy work. This new relationship was a welcoming one where we collaborated on programs, and eventually led to a conference invitation from someone else and then to my writing on this Blog. None of this would have happened if I had not decided to reorient and move forward. And that example is just a fraction of the rich relationships I have developed when I took chances on reorienting toward new things instead of fighting to cling onto what I had already lost.

I am sad that my bipolar disorder and interpersonal struggles led to difficult circumstances with the ABA and led to my termination. At the same time, I am grateful that the 3 R’s helped me get through it and land on my feet. This method has helped me in a time of need where I have felt unwelcomed in any community or with any person. Remembering to do it when I am feeling hurt has allowed me to make healthier, more empowering decisions.

Even when I was so dysregulated by my serious mental illness and wrestling with an influx of distressed energy, I was still able to tap into those 3 R’s to ensure I made the best possible decisions to:

  1. Respect peoples’ choices instead of fighting to prove my worth,
  2. Reply to work things out instead of begging to return, and,
  3. Reorient to fill my life with opportunities that were a better fit for me and my sometimes-challenging mental health problems.

I will still love the American Bar Association, albeit from afar and via nostalgic memories, I still have a page posted summarizing much of my anti-discrimination work there and other projects from my four years as Co-Chair of the ABA’s Dispute Resolution Section Diversity Committee. During this time, I made many friends and did a lot of important work. Though I will certainly miss being connected with so many great opportunities and new ideas, I will keep reorienting amidst the loss. Meanwhile, I will always recommend that anyone who does have access avail themselves of the myriad of resources disseminated by the ABA and often developed from their community of over 200,000 members.

The 3 R’s have helped me prevent complete breakdowns and manage challenging times in my life. These skills have helped me find and new opportunities during times I might have otherwise fallen apart. Anyone can use this simple yet powerful system when they face rejection in their lives.

Author Biography

Dan Berstein is a mediator living with bipolar disorder who uses conflict resolution best practices to promote empowering mental health communication and prevent mental illness discrimination.  His company, MH Mediate, has helped thousands of professionals and organizations be empowering, accessible, and non-discriminatory toward people with disclosed or suspected mental health problems. Dan holds degrees from the Johns Hopkins School of Public Health and the Wharton School. He is the author of the 2022 book, Mental Health and Conflicts: A Handbook for Empowerment.

  1. Gergel, T., Adiukwu, F., & McInnis, M. (2024). Suicide and bipolar disorder: opportunities to change the agenda. The Lancet Psychiatry; Peters, A. T., West, A. E., Eisner, L., Baek, J., & Deckersbach, T. (2016). The burden of repeated mood episodes in bipolar I disorder: results from the National Epidemiological Survey on Alcohol and Related Conditions. The Journal of nervous and mental disease, 204(2), 87-94. ↩︎
  2. Klin, A., & Lemish, D. (2008). Mental disorders stigma in the media: Review of studies on production, content, and influences. Journal of health communication, 13(5), 434-449. ↩︎
  3. Wheatley, R., & Underwood, A. (2023). Stalking and the impact of labelling “There’sa difference between my offence and a stalker”. Journal of criminal psychology, 13(2), 91-104. ↩︎
  4. Baruch Bush, R. A., & Berstein, D. (2023). Orienting Toward Party Choice: A Simple Self-Determination Tool for Mediators. J. Disp. Resol., 1. ↩︎
  5. Tuckey, M. R., Li, Y., Neall, A. M., Chen, P. Y., Dollard, M. F., McLinton, S. S., … & Mattiske, J. (2022). Workplace bullying as an organizational problem: Spotlight on people management practices. Journal of occupational health psychology, 27(6), 544. ↩︎
  6. Freedman, G., Powell, D. N., Le, B., & Williams, K. D. (2019). Ghosting and destiny: Implicit theories of relationships predict beliefs about ghosting. Journal of Social and Personal Relationships, 36(3), 905-924. ↩︎
  7. Navarro, R., Larrañaga, E., Yubero, S., & Víllora, B. (2020). Psychological correlates of ghosting and breadcrumbing experiences: A preliminary study among adults. International journal of environmental research and public health, 17(3), 1116. ↩︎

A Fresh Perspective on Conflict Management: Upcoming 7th Edition of a Seminal Text

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The enduring relevance of Conflict Management: A Practical Guide lies in its comprehensive exploration of approaches, strategies, tactics, and techniques essential for adopting a constructive and positive approach to conflict. Originally published in 1991 as a foundational text for practitioners, educators, and scholars in the field of conflict resolution, the book has evolved alongside the dynamic field of Alternative Dispute Resolution (ADR) in Australia. Now, the text is set to enter its seventh edition, reaffirming its significance in the discipline.

Authors Expertise

Dr. Peter Condliffe, the book’s author, has a distinguished career in the field. Serving as a Director on the Mediator Standards Board since 2018 and its Chairperson from 2023 to 2024, Peter has played a pivotal role in the NMAS Review and the transition to AMDRAS in Australia. As a practicing barrister and mediator in Victoria, his career has included leadership roles in management, human rights, and ADR, such as CEO of the Institute of Arbitrators and Mediators Australia, Director of Dispute Resolution Centres in Queensland’s Department of Justice and Attorney-General, and engagements with the United Nations. Across its six editions, the book has maintained a multidisciplinary framework reflective of Peter’s extensive expertise.

The upcoming edition will introduce Dr. Claire Holland as co-author. Claire is a practicing mediator, conflict coach, workplace facilitator, and trainer who brings a wealth of academic and practical knowledge to the text. Having used the book extensively in her teaching career, she will incorporate fresh perspectives and insights. Notably, Claire will introduce two new frameworks:

  1. Conflict Analysis Framework: Co-developed with Dr. Judith Herrmann-Rafferty, this tool supports parties in conflict—and the professionals assisting them—to understand the dynamics of a conflict and make informed decisions about next steps.
  2. Planned Approach to Conflict Engagement: Also co-developed by Herrmann-Rafferty and Holland, this framework provides advanced strategies for managing ongoing conflict. It integrates insights and approaches from neuroscience on emotional regulation, fostering cultural awareness, and emphasises sustainable methods for addressing ongoing conflict.

Call for Feedback

Condliffe and Holland are seeking input from practitioners, researchers, and readers to shape the new edition. Feedback on areas to retain, adapt, or expand is particularly welcome. As a text designed for both practical application and academic instruction, the authors are keen to ensure the content remains relevant to its diverse audience, from university courses to professional development settings.

Key Updates in the 7th Edition

The new edition, retitled Conflict Management and Resolution: Theory and Practice, reflects an evolving understanding of conflict. It acknowledges that resolution is not always achievable or desirable and incorporates broader perspectives on conflict engagement. Planned updates include:

  • Reflections on the new AMDRAS regulatory standards in Australia.
  • Expanded coverage of specialties, such as mediation, restorative justice, First Nations processes, complaints management, and group facilitation.
  • Updates on negotiation concepts and processes, incorporating recent scholarship.
  • Insights into online and AI-assisted dispute resolution.
  • Expanded references to feminist theory and contemporary ADR approaches, including dispute system design.
  • A comprehensive update to the history of ADR in Australia.

Proposed Topics for the New Edition

The seventh edition will include chapters on:

  • Navigating Conflict
  • Responding to Conflict
  • Managing Difficult Conversations
  • History of Dispute Resolution in Australia
  • Collaborative Practice
  • Contemporary Approaches to Conflict Management and Resolution
  • Negotiation
  • Mediation
  • Group Facilitation
  • Key Practitioner Skills in Conflict Management and Resolution
  • Managing Ongoing Conflict
  • Dispute System Design

Engage with the Authors

Practitioners and academics are encouraged to contribute by sharing research, case studies, or ideas that could enhance the upcoming edition. Your insights will help ensure that Conflict Management and Resolution: Theory and Practice continues to be an indispensable resource for anyone engaging with conflict management in theory or practice.

Stay tuned for the release of this significant update in late 2025—a resource designed to reflect the latest developments in conflict resolution and equip readers with the tools they need to navigate the complexities of modern conflicts.

Please feel free to contact or write to either of the authors:
Dr Peter Condliffe: pc@vicbar.com.au
Dr Claire Holland: claire.holland@jcu.edu.au

Writing Off “Difficult” Parties? Five Ways to Set Boundaries While Being Inclusive

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Dr Oz Susler & Dan Berstein

In conflicts, there are times when one party gives up on connecting with another party and begins to dehumanise them. As ADR practitioners, one of our responsibilities is to prevent that from happening, and yet there are still times we may even find ourselves so distressed that we end up writing a person off too.

In a sense it is natural, as human beings to mentally separate ourselves when we encounter someone who seems different, unfamiliar, or atypical and to become guarded when a person challenges us. We all have biases. But that is something we must be conscious of and guard against as ADR professionals – whether we are in the role of mediator, arbitrator, ombuds, or any other type of dispute resolver.

In this article, we demonstrate the pervasive and impactful attitudes that unfortunately can lead practitioners to have biases against those who may have mental health differences – and we share tools to prevent parties from being written off.

We begin by presenting some dispute resolution guidance circulating in Australia that teaches professionals to see someone who seems to have a possible mental impairment as a “difficult” or “high conflict” hazard to handle, avoid, or engage with using a different style of mediation than we might normally pursue.  We conclude with resources to help practitioners prevent and address this problem of parties being written off.

Australian Guidance to Write People Off As “High Conflict”

In the Australian ADR literature, there are instances where people regarded as having mental disorders and related impairments have been inappropriately deemed to be “difficult people” or “high conflict people” and unfit to receive normal mediation. 

This phenomenon, where well-meaning mediators use proxy labels to suggest that people with mental impairments need to be treated differently (often with briefer or more restricted communication), is sadly somewhat common.  It has been well-documented as problematic, including in Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators.1

Below is an overview of some examples in the Australian discourse where these ideas have been spreading (note that much of this guidance is bundled with de-escalation interventions or communication ideas to have some kind of different process for including so-called “high conflict people” but this well-meaning paternalism is often still based on the stigmatizing assumption that these people are not reachable for normal communication).

Also, we note that we present the below five lessons from this guidance as a criticism, and we do not recommend people make guesses about who may be living with a mental impairment or profile those people for different treatment. What you should not do:

1: Try to guess who has a personality disorder or related disabling mental impairment

Resolution Institute provided a 2023 training to “identify five personality types” which are derived from clinical mental disorders as part of the “New Ways for Mediation” model that teaches a different type of mediation which avoids some of the aspects of mediation normally available to parties.2

2: Assume that any issue from the person is due to their impairments and not a legitimate issue

The Council of Australian Tribunals (COAT) Resource Library has a 2022 resource posted in their Resource Library, called “Working Effectively with High Conflict People.”3 Again, there is a focus on personality disorders including a chart of “5 High Conflict Personality Types” listing narcissistic, borderline, histrionic, antisocial, and paranoid (which are 5 clinical personality disorder diagnoses).  The resource includes a mantra for dismissing the so-called “high conflict person’s” complaints and focusing instead on writing them off with the idea that any problems are due to their presumed-to-be mentally impaired personality: “The issue’s not the issue. The personality’s the issue.” 

3: Have briefer communication with someone you believe might have a “high conflict” mental impairment

The State Government of Victoria State Services Authority provided a 2011 guidance document called “Dealing with High Conflict Behaviours”4 that discusses “working with a difficult person,” “identifying high conflict applicants,” and “keep[ing] encounters with a difficult person brief” – concluding that “you want to close the conversation and remove yourself from their presence.”

QLS Proctor has a 2020 post, “Addressing high-conflict personalities” recommending people try responding to the “HCP” (high conflict person)” using a BIFF method to give briefer communication.5

4: Try to avoid dealing with someone whom you believe is a “difficult” or “high conflict” person

The Family Law Section, Law Council of Australia posted a 2024 article on LinkedIn called “Dealing with Difficult People and Behaviors”6 which includes several strategies.  The first is: “Strategy 1 – Don’t deal with them. Identify them early on and decide if you need and want to deal with them.”  This comes after the article introduces four personality disorders as being related to being a so-called difficult person, saying “Difficult people or high conflict people tend to have one or more of four types of Cluster B personality disorders.”

Shepherds Family Law and Mediation Specialists says the “HCPs” will never change and urges readers to consider whether they actually want or need to work with them: “Personalities form by age 5 or 6, and then remain stable through life. Whilst individuals can modify their adult personalities, it takes great effort and generally requires professional assistance. HCPs lack insight and willingness to do so. You will therefore not change the HCP – do not try to do so. Instead, consider how you can work with them. Alternatively, consider whether you actually want to or need to work with them.”7

5: Assume the person cannot ever change and you should forget about even discussing their emotions because they are not normal with their emotions

The Divorce and Separation Hub has a 2022 post, “Are you negotiating a ‘High Conflict’ personality?” that explores those same 5 mental disorder-inspired personality types and writes, “It can be difficult to admit it, but there’s ultimately no way to resolve a ‘High Conflict’ situation with logic or persuasion. You will experience chaos, stress and confusion, while the High Conflict Individual will simply play out their life patterns. Others have tried to change them, without success, leaving a trail of frustration and disappointment.”8 It suggests one should take “the ‘forget about it’ approach” and forget about “discussions of emotions” due to the presumption that so-called “high conflict people” don’t experience normal emotional processes and will instead “carry around a feeling of being helpless, vulnerable, weak and like a victim-in-life.”

Approaches like the ones above, teaching practitioners how to identify people as potentially having a disabling mental impairment, perhaps fitting the five personality disorder categories often explicitly being described in discussions of “high conflict personalities” – and teaching how to target these people, specifically, with different interventions based on those private working theories – have also been taught at some Australian universities.9

How Can We Set Boundaries Without Writing Parties Off?

Corresponding to each of the five ideas above, we present a corresponding list of five alternative suggestions below that we hope you will consider, instead of writing parties off by assuming they are too “difficult” or “high conflict.”  We also include resources to assist you to adopt this trauma-informed and procedurally fair approach. What you should do:

1:  Provide trauma-informed accessibility options to all parties without asking them to disclose their disabilities or trying to guess them

Dispute resolution professionals can present a menu of accessibility options to all parties as part of their intake and process – they can trust the parties to ask for whatever accommodations they might need, ideally without forcing anyone to disclose a disability, because mediation is a process where mediators aim to accommodate everyone.  Likewise, trauma-informed practices help us realize that all parties may have experienced different traumas with different, personal trauma responses.  We can endeavour to provide a safe, empowering space for them using trauma-informed approaches, which do not require that we make any guesses about their circumstances or compel their disclosure.

To access some free resources that provide tools anyone can use to practice more accessibly using universal design principles, or to become trauma-informed, visit www.biasresistantcourts.org. This is part of a project funded by the American Arbitration Association – International Centre for Dispute Resolution (AAA-ICDR) Foundation and produced by the CUNY Dispute Resolution Center.

2:  Listen to people and honour their self-determination

Like anyone else, practitioners have their own biases and values, but the key is to prevent any personal ideas regarding a party from getting in the way of achieving a fair and impartial process for all.  Instead of labelling people based on their mental health and their behaviours and profiling them for different treatment, we should endeavour to give all parties choices about how they choose to have the process proceed – and avoid any negative stereotypes and potential discrimination against parties. All parties should be given accessible options for how to engage in the process instead of facing practitioners who make judgments about them and take those decisions away from them.  Any changes from the practitioner should be based on impartial standards that are followed with all parties, as opposed to singling out those perceived as “difficult” for different treatment.

3:  Be equally available as a communicator to all parties

Instead of writing people off as “difficult” or “high conflict” people when we are distressed or irritated, it is better to have real plans for challenging behaviours. Just like anyone who lives in a fire-prone area must have a fire plan, mediators should have a behaviour contingency plan to address such issues in a mediation. Two of the cornerstone values of mediation are to offer a process that is fair and impartial. The same two values are arguably the most fundamental reasons for developing a behaviour plan. To attain such fairness and impartiality, it is essential to restrain the mediator’s decisions made in the moment and instead, defer to a set of behavioural criteria which were established prior to commencing the mediation process.10 A well-drafted behaviour plan should be clear and based on objective evidence. Such a plan should include guidance on how to address problematic behaviours with relevant reflective questions.  Another strategy is to assess the said behaviour based on universal criteria. This includes asking what the general criteria is for when this specific type of behaviour is a problem (instead of singling out people or their personalities as the problem).11

Some resources for making a behaviour plan are available at www.biasresistantcourts.org and as part of the paper, Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators, accessible at https://scholarship.law.missouri.edu/jdr/vol2024/iss1/5/

4:  Never screen out parties based on guesses or knowledge that they may have a mental impairment

If you have to decline service to anyone, ensure it is not based on guesses they have some kind of impairment like the so-called “high conflict” mental impairments described above – and that it is not based on race, sexual orientation or any other protected identity characteristic.  Avoid declining service to anyone and – if you must – use consistent, behaviour-based protocols.

5:  Refrain from writing someone off as unchangeable or not worth discussing emotions with

It is important, as a practitioner, to keep an open mind about how one ensures the process is inclusive of all parties –and to also model this when one party writes another off.  Practitioners should ideally, as part of their process, encourage the party who wrote another off to explain/explore why they did so and – if possible – engage in a dialogue with the party they wrote off.  The aim for the practitioner is to help the parties understand one another’s behaviours, to improve the communication between the parties, and encourage them to connect instead of writing each other off.

Parties may still write one another off based on their own biases, but the hope is that the ADR practitioner’s process will provide some support and clarity to assist parties to see that the practitioner, at least, modeled inclusivity and transparency and demonstrated consistent open-minded responses to challenging behaviours (while also having clear, consistent boundaries).

Conclusion

Challenging behaviour can be so distressing that it often becomes tempting to assume some people are, themselves, the culprit and place them in a different category.  Instead of writing anyone off, dispute resolution professionals can rely on consistent, impartial approaches that are accessible and empowering for all parties.

Additional resources for managing practitioner distress and planning for challenging behaviors can be accessed from the Demystifying Distress program co-sponsored by the Mental Health Safe Project, Mediate.com, the Association for Conflict Resolution (ACR), the Academy for Professional Family Mediators (APFM), the National Association for Community Mediation (NAFCM), and the International Institute for Conflict Prevention & Resolution (CPR). It is viewable at https://mediate.com/demystifying-distress

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dan Berstein is a mediator living with bipolar disorder who uses conflict resolution best practices to promote empowering mental health communication and prevent mental illness discrimination.  His company, MH Mediate, has helped thousands of professionals and organizations be empowering, accessible, and non-discriminatory toward people with disclosed or suspected mental health problems.  Dan holds degrees from the Johns Hopkins School of Public Health and the Wharton School.  He is the author of the 2022 book, Mental Health and Conflicts: A Handbook for Empowerment.

  1. Berstein, D., Diamond, H., & Yanos, P. T. (2024). Ending the Epidemic of Accidental Personality Disorder Discrimination by Well-Meaning Mediators. J. Disp. Resol., 1; See also Hardy, Samantha (2023). CRITICAL REFLECTION: High Conflict Personalities. Retrieved from https://www.linkedin.com/posts/samantha-hardy-3695b97a_critical-reflection-high-conflict-personalities-activity-7116897553840832513-VTHx/ ↩︎
  2. Resolution Institute (2023). New Ways for Mediation A Breakthrough Approach for Managing High Conflict Disputes. Retrieved from: https://resolution.institute/eventdetail?eventkey=bewau22923. Teaching “managing high conflict individuals” with a “new approach to mediating their disputes“ – an approach “based on Bill’s book Mediating High Conflict Disputes”: Chapter 1 of this book, “Understanding High Conflict Personalities,” says “People with high conflict personalities often have personality disorders” and Chapter 3, “The Four Fuhgeddaboudits (What NOT to Do),” teaches practitioners to avoid certain things with so-called high conflict people regarded as having high conflict personalities. ↩︎
  3. Council of Australasian Tribunals (2022).  Working Effectively With High Conflict People. Retrieved from https://coat.asn.au/resources-library/?fwp_resources_search=working%20effectively%20with%20high%20conflict%20people ↩︎
  4. State Government of Victoria State Services Authority (2011).  Dealing With High Conflict Behaviours.  Retrieved from https://vpsc.vic.gov.au/wp-content/uploads/2015/03/Dealing-with-High-Conflict-Behaviours-WEB.pdf ↩︎
  5. Queensland Law Society (2020). De-escalation techniques: Addressing high-conflict personalities (part 1).  Retrieved from https://www.qlsproctor.com.au/2020/11/de-escalation-techniques-to-address-high-conflict-personalities/ ↩︎
  6. Australian Family Lawyer (2024). Dealing With Difficult People And Behaviours. Retrieved from https://www.linkedin.com/posts/fls-family-law-section_afl-highlight-accredited-family-law-specialist-activity-7242013602914713601-3-dx?utm_source=share&utm_medium=member_desktop; Reposted from https://www.shepherdsfamilylaw.com.au/site2018/wp-content/uploads/2024/08/Dealing-with-difficult-people-3.pdf and also reposted at https://ramsdenfamilylaw.com.au/strategies-for-dealing-with-difficult-people-in-family-law-proceedings/ ↩︎
  7. Shepherds Family Law. Working Effectively With High Conflict People.  Retrieved from http://www.shepherdsfamilylaw.com.au/working-with-high-conflict-people/ ↩︎
  8. Divorce and Separation Hub (2022). Are you negotiating a ‘High Conflict’ personality? Retrieved from https://www.divorceandseparationhub.com/2022/07/15/bill-eddy-high-conflict-institute/ ↩︎
  9. See e.g. The University of Newcastle, Australia. High Conflict in Law. Retrieved from https://www.newcastle.edu.au/study/online-learning/high-conflict-in-law-personality-disorders-disputes/about-this-course/content; Monash University. LAW7485 – Managing high conflict personalities in legal disputes. Retrieved from https://www3.monash.edu/pubs/2014handbooks/units/LAW7485.html. ↩︎
  10. Berstein, D, (2022) ‘Mental Health and Conflicts: A Handbook for Empowerment’ ABA, 153. ↩︎
  11. Berstein, D, (2022) ‘Mental Health and Conflicts: A Handbook for Empowerment’ ABA, 158. ↩︎

The Role of Intermediaries in Enhancing Access to Justice in ADR

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Dr Oz Susler & Dr John Taggart

Introduction

Over the past thirty years, there has been a ‘sea change’ in the treatment of vulnerable court and tribunal users in the United Kingdom. As noted by Lady Justice Hallett in the case of R v Lubemba: ‘Advocates must adapt to the witness, not the other way round.’ Formal rules now place a duty on judges in both civil and criminal cases to ensure that ‘every reasonable step’ is taken to facilitate the participation of witnesses in proceedings.

Emblematic of this culture shift has been the introduction of a new role known as the ‘intermediary’. The intermediary, a communication specialist, is one of a range of ‘special measures’ which were introduced in 1999 through the Youth Justice and Criminal Evidence Act (YJCEA) to improve the quality of evidence available to a court and reduce the stress associated with the justice process. The function of the intermediary is to communicate ‘questions put to the witness ’and ‘to any person asking such questions, the answers given by the witness in reply to them’. As well as assisting witnesses to give evidence in court, intermediaries also advise lawyers and judges on how best to communicate with the witness more broadly.

Background

In England and Wales, the first cohort of intermediaries was introduced in 2004 through what has become known as the ‘Witness Intermediary Scheme’ (WIS) which is run by the Ministry of Justice (MOJ). The WIS matches the vulnerable witness with an intermediary based on their communication needs. The majority of intermediaries operating in England and Wales are speech and language therapists; however, there has been an increase in numbers from other backgrounds, such as teaching, nursing, social work, psychology, and occupational therapy.

In Northern Ireland, a slightly different intermediary scheme operates compared to England and Wales. In 2013, the Department of Justice of Northern Ireland (DOJ) developed a model for the provision of intermediaries in the criminal justice system. This was based on the provisions of the Criminal Evidence (NI) Order 1999, which effectively mirror the provisions of the YJCEA. In Northern Ireland, intermediaries are all trained, registered, and regulated by the DOJ. As in England and Wales, the vast majority of those on the Registered Intermediary Scheme (RIS) register are speech and language therapists, with a number coming from a social work background. A crucial distinction between the intermediary schemes in England, Wales and Northern Ireland is that in the latter, both witnesses and defendants can access the services of registered intermediaries. The DOJ concluded that respect for the principle of ‘equality of arms’ demanded that all vulnerable individuals should be eligible for intermediary assistance.

Beyond Criminal Courts

The special measures regime in both England, Wales and Northern Ireland were originally intended to apply solely to criminal proceedings. However, requests began to be made for intermediary assistance in other justice fora, such as family courts and employment tribunals. Intermediaries now commonly assist vulnerable individuals in these settings in both jurisdictions. In a recent case in England and Wales, the High Court noted how the fundamental role of the intermediary in family courts and criminal courts is the same.1 As intermediaries have become more commonplace in criminal courts and family courts, relevant guidance has been developed to regulate the scope of their role in court. For example, in 2016, Mr Justice Charles, the Vice President of the Court of Protection in England and Wales published practical guidance entitled ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’. Another significant development in Great Britain has been the introduction of Practice Direction 1A, which also highlights the intermediary role in assisting vulnerable individuals to participate. In Northern Ireland, Practice Direction No.2/2019 contains detailed guidance on the intermediary role in criminal proceedings. Despite intermediaries regularly attending family court hearings, no equivalent guidance for civil courts has been issued.

Challenges

The intermediary role has played a significant part in the move towards promoting ‘best evidence’ and accommodating the needs of vulnerable individuals in court. In this regard, the role has been ‘little short of revolutionary’. The Victims’ Commissioner in England and Wales recently described it as ‘the single biggest improvement in the criminal justice system over the last thirty years’. While the intermediary role is becoming further embedded into justice processes, the role has encountered several challenges. Here are a few of the most important ones:

Duration of Appointment

Ultimately, the duration of an intermediary’s appointment is at the discretion of the court. The court may allow for an intermediary to assist the vulnerable individual for the period of oral evidence or for the entire court proceedings (or possibly for something in between). Understandably, the role of a defendant in a criminal trial is different from a witness so the length of time communication assistance will be required can vary. For example, a defendant will have legal conferences with their lawyers throughout a trial whereas a witness will not. The relevant Practice Direction in Northern Ireland states that the intermediary role is restricted to the period of oral testimony while in England and Wales, a court may exercise its powers to appoint an intermediary for longer. Again, this is at the discretion of the judge. Certain commercial providers of intermediaries, such as Communicourt, strongly argue that communication as a concept is broad and that providing intermediary assistance only for the period of evidence is superficial. The counterargument to this point is that with limited resources, intermediaries should be appointed where they are most needed.

Neutrality

As a relatively new actor to the justice system, the scope of the intermediary role has been contested. One key aspect of the role is that intermediaries operate as officers of the court and, as such, are impartial. How intermediaries operate to facilitate communication and remain impartial is a question that warrants attention. For example, if an intermediary assisting an extremely emotional witness feels that reassuring them might help them and reduce anxiety, is this breaching their impartiality? One anecdotal example from Northern Ireland involved an intermediary putting their arm around a young witness in court to comfort them. It was ultimately held by the judge that this ‘crossed the line’ and the intermediary’s involvement in the case ceased. Regardless of the venue, consideration should be given to how intermediaries can be enabled to carry out their primary role of facilitating communication and be viewed as impartial.

Skills and Qualifications

As discussed above, the majority of intermediaries in both England, Wales and Northern Ireland come from a background in speech and language therapy or social work. The MOJ in England and Wales has tried in recent years to diversify the registered intermediary cohort. In terms of the ‘matching’ of intermediaries to vulnerable individuals based on the nature of the communication issue, it is preferable that there is a wide pool of background and skillsets. For example, some intermediaries work exclusively with young children while others work with the elderly or with people diagnosed with autism spectrum disorder2 or an intellectual disability. Ultimately, a court or tribunal appointing an intermediary should have the confidence that the intermediary has the requisite skillset to facilitate communication and provide clear, practical advice to the legal professionals. Although increasingly rare in practice, some courts have permitted lawyers to effectively cross-examine the intermediary about their experience and suitability for the role. It is suggested such a practice could underline the legitimacy of the role as well as the matching process undertaken by the DOJ or MOJ which have recruited, trained and ‘matched’ the intermediary to the vulnerable individual.

Intermediaries in Australia: Scope and Application

Following on from England, Wales and Northern Ireland, New South Wales was the first Australian jurisdiction to pass legislation for intermediaries in 2015.3 Currently, intermediaries are used within the criminal justice system in Tasmania, Queensland, South Australia4, New South Wales, Victoria5 and the Australian Capital Territory.6 Intermediaries are primarily used to assist vulnerable witnesses including children to give evidence for sexual offences and homicide cases.7 In the Victorian and ACT programmes, in addition to young people, any adult with a mental illness, intellectual disability, dementia or brain injury may be eligible to have an intermediary assist them in giving evidence in a police interview or court for particular criminal matter hearings.8 The reality is that vulnerable individuals experience barriers in access to justice not only in the criminal justice system, but, also in other areas that are connected to the broader legal system, including the civil justice system and court ordered Appropriate Dispute Resolution (ADR). In Australia, ADR processes are highly integrated in the legal system, thus many courts refer parties to participate in an ADR process. In many jurisdictions  attempting to participate in the ADR process may be a prerequisite to the matter proceeding to a hearing before the court.9

Potential Applications of the Intermediary in the Australian Civil Legal System

It can be argued that particular individuals who are identified as more likely to encounter greater barriers in access to justice than the general population, such as Autistic persons, or otherwise neurodivergent individuals, those living with a mental health condition or other neurological/intellectual disabilities, stand to benefit from an intermediary programme that is available in court ordered or legislation-based ADR processes.  Although it is recognised that ADR processes can be varied, this post focuses on the needs of Autistic persons who are subject to court ordered mediation.  While there is no research focused specifically on access to justice for Autistic people, there is significant research in relation to access to justice for people with disabilities.10 The Australian Law Reform Commission’s report11 details issues that may commonly arise when people with disabilities seek access to justice which include ‘communication barriers’ and ‘issues associated with giving instructions to legal representatives and capacity to participate in litigation’. The Report also discusses the issue of capacity to make decisions in their own best interest and in particular, the need for support in Decision-Making.12 Legal reform is likely to have limited practical impact if people do not have access to the support necessary to enable them to participate in legal processes.13 It is at this juncture that intermediaries have the opportunity to play an important role in supporting such individuals who participate in court ordered mediations, hence fostering greater access to justice.

Autistic people communicate differently to non-Autistic people. Further, Autistic people may misinterpret communication by others and may be misinterpreted in their own communication.14 This may give rise to challenges in access to justice in ADR contexts, particularly in mediation which is based on communication between the parties facilitated by a mediator. To fulfil the aims of the International Principles and Guidelines on Access to Justice for Persons with Disabilities,15 Autistic parties engaging in court-ordered ADR processes should have access to an intermediary for support if necessary. A pilot programme may be trialled where intermediaries are made available for court ordered16 family dispute resolution (FDR) mediations, based on clear eligibility criteria. Given the role of the intermediary is to facilitate communication and communication challenges being one of the most commonly challenging aspects of mediation for Autistic persons, this presents a valuable opportunity for Australia to lead other courts and extend the role of the intermediary into a new realm. Drawing on the experiences of England, Wales and Northern Ireland, Australia stands to benefit in taking part in such a significant step towards improving access to justice in ADR for vulnerable individuals, who often experience disadvantage as parties in ADR processes.17

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dr John Taggart is a Lecturer in Law at Queens’ University, Belfast and the Director of the Institute of Criminology and Criminal Justice (ICCJ). He holds a PhD in Law from the London School of Economics (LSE) and is a member of the Inn of Court of Northern Ireland and a member of Lincoln’s Inn. John’s research focuses on the criminal process, criminal justice and socio-legal approaches to criminal law. John’s research looks at special measures in criminal courts and the role of the intermediary as a communication specialist for vulnerable court users. He has recently worked as an academic consultant to the Australian Capital Territory (ACT) Human Rights Commission and as a legal trainer to the Northern Ireland Department of Justice. John has published widely in publications including the Criminal Law Review, International Journal of Evidence and Proof, International Journal of Law in Context and the Journal of Law and Society.

  1. West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 [43].
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  2. Autism Spectrum Disorder is referred to as ‘autism’ hereafter.  The term ‘autism’ throughout this paper intends to refer to individuals with a diagnosis of autism and no co-occurring intellectual disability. This article uses identity-first language (e.g., ‘Autistic person’) because many autistic people prefer it (Bury et al., 2020; Kenny et al., 2016), and it is considered less discriminatory (Bottema-Beutel et al., 2021).
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  3. See Criminal Procedure Amendment (Child Sexual Offence) Evidence Pilot Act 2015 (NSW).
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  4. South Australia provides a communication assistance scheme. See Evidence Act 1929 (SA) and Summary Offences Regulations 2016 (SA).
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  5. New South Wales introduced an intermediary programme in 2016 and Victoria in 2018.
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  6. Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT).
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  7. See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>.
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  8. See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>. In Victoria the criminal matters are restricted to witnesses in homicide matters and victims of sexual abuse.
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  9. For example. the Federal and Family Circuit Court of Australia generally makes it mandatory (unless exceptions apply) for the parties to be referred to Family Dispute Resolution under s.13C(1)(b) of the Family Law Act 1975 (Cth) to attempt to resolve their disputes.
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  10. See, eg, ‘The Justice Project’ Final Report, Part 1 ‘People with Disability’ (August 2018) Law Council of Australia <https://lawcouncil.au/justice-project/final-report>.
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  11. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws – Final Report, August 2014 available at <https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/>.
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  12. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Final Report, August 2014) p 4. (Access to justice issues | ALRC).
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  13. Ibid p 7.
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  14. See eg, Maya Albin, Isabella Chawrun, and Ami Tint, “Rethinking Social Communication Support: Exploring Communication Partner Training for Autistic Adults and Their Neurotypical Communication Partners” (2024) Autism in Adulthood <https://doi.org/10.1089/aut.2023.0>
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  15. ‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’ (2020) United Nations Special Rapporteur on the Rights of Persons with Disabilities. Hereinafter referred to as ‘Guidelines’.
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  16. This programme would be implemented through the Australian Family and Federal Circuit Courts.
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  17. Forthcoming qualitative research article on the disadvantage experienced by Autistic adults who participated as a party to mediation is available upon request from Dr Ozlem Susler.
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Mediation as Melodrama, One and a half decades on …

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This blog post is motivated by my discussion with a friend about mediation. The friend was recounting her experiences of a divorce mediation, and her description reminded me of an article that I read many years ago by an academic and practitioner who I greatly admire – Dr Samantha Hardy, who these days is the Director of the Conflict Management Academy. The article is entitled “Mediation and Genre” and you can access it here – in the author’s own words, the objective of the article is to explain:


“why a conflict narrative based on the genre of melodrama tends to work against the resolution of the conflict and proposes tragedy as a more constructive genre for a conflict narrative. The paper also discusses how the mediation situation itself can constrain the possible genres that can be constructed in the process and explores the implications of those constraints for people in conflict and for the mediators facilitating a resolution.”

Sam first published this article in 2008 – now some 15 years ago. On re-reading it this week, I was struck by what an enduring piece it is. It also struck a chord with the friend who had recently been through the process as a participant.

Exploring the relationship between mediation and narrative, she explains how the genre of melodrama shapes conflict stories and in turn the mediation process itself. This is more than a purely academic exercise, as understanding melodramatic tendencies can significantly benefit both mediation practitioners and researchers. Most – or I would imagine, virtually all – practitioners would recognise what Cobb refers to as the rigidity and self-perpetuating nature of conflict stories – stories that each person uses to explain the relationship between the disputants, their actions, and the outcomes [link].

The Grip of Melodrama: How We Tell Our Conflict Stories

Western culture is particularly fond of the genre of melodrama, influencing how individuals perceive and articulate their conflicts – and in turn this has consequences for how we might mediate disputes. Sam uses the term “melodrama” not in the colloquial sense of over-the-top theatrics but rather as a specific literary genre characterised by:

  • Moral Polarisation: The division of characters into ‘good’ and ‘evil’, with the storyteller typically casting themselves as the innocent victim and the other party as the villain;
  • Heightened Emotions: Conflicts are often recounted with exaggerated displays of feelings, emphasising the victim’s suffering and aiming to provoke anger and judgment towards the villain; and

Sensationalism:  Disputants’ stories often  jump between events without a linear sequence of cause-and-effect, focusing instead on dramatic turning points and neglecting nuanced explanations.

She argues that individuals in conflict often become “told” by the melodramatic narrative, unconsciously adopting its framework to make sense of their situation. This leads to an oversimplification of complex issues, a focus on individual blame rather than systemic factors, and a rigid adherence to “dream justice” where the victim is vindicated and the villain punished.

Melodrama and the Mediation Process

The influence of melodrama extends beyond the conflict story itself, shaping the dynamics within the mediation process. These include through the duelling of competing narratives – with each party trying to position themselves in the role of victim and the other in the role of perpetrator. Unsurprisingly this hinders the exploration of shared responsibility and understanding. At the same time, melodramatic narrative often positions the mediator as an authoritative figure expected to discern the truth, dispense justice, and protect the victim.

Breaking Free from the Melodramatic Trap: Move Towards the Tragedy

Sam puts forward tragedy as an alternative literary genre that can offer a more constructive lens for understanding conflict. Unlike melodrama, tragedy acknowledges the complexities of human experience, allowing for:

  • Complex Characters: Tragic characters are not purely good or evil but possess internal conflicts and inconsistencies, making their actions understandable even when flawed;
  • Choice and Responsibility: Tragedy emphasizes the protagonist’s agency and the impact of their choices, even within constrained circumstances; and
  • Acceptance and Growth: Tragic narratives recognize that conflict can lead to suffering but also hold the potential for self-awareness and growth, even without a “happy ending”.

Mediators can help facilitate a shift from melodramatic to tragic understanding by:

  • Deconstructing Polarized Identities: Using irony and carefully crafted questions, mediators can help parties recognize the nuances and contradictions within themselves and each other;
  • Highlighting Choice and Agency: By emphasizing the choices available to parties, even within difficult situations, mediators can empower parties to actively participate in shaping the outcome of their dispute;  and

Shifting Focus from the Past to the Future: Encouraging parties to acknowledge their suffering and learn from their experiences allows them to move beyond blame and consider possibilities for growth and change.

The Enduring Relevance of this research

This piece encourages us to move beyond simplistic “fairy tale” understandings of conflict and encourage us to reflect on the complexities inherent in human interaction – and in mediation in particular. By recognising and addressing the tendency towards melodrama, mediators can better assist parties to move beyond entrenched positions and engage in more nuanced, productive dialogue.

Sam develops the concept much further in her book Conflict Coaching Fundamentals: Working with Conflict Stories, and she developed the REAL Conflict Coaching System as a way to support people to re-write their conflict story into one that gives them more choice and agency.

From the Author ….

I took this blog post as an opportunity to contact Sam, and I asked her how her own thinking on mediation narrative has evolved since she wrote this piece. Here’s what she said ….

“When Solon Simmons (Professor at the George Mason University Carter School for Peace and Conflict Studies and Director of the Narrative Lab) mentioned in passing on LinkedIn that I featured in his new book Narrating Peace: How to Tell a Conflict Story, I assumed that I showed up in a footnote somewhere.  Imagine my surprise and absolute delight when I started reading it and discovered that not only has he named a turning point in narrative and conflict scholarship as the “Cobb-Hardy Pivot” (after one of my mentors Sara Cobb and I), he also described my article about mediation and genre as “one of the most important articles on narrative social science in the past century”!  Honestly, to say he made my day is an enormous understatement!  

It’s also so rewarding to know that the work I did in my PhD actually forms the basis of a lot of what I do today in my work with clients in conflict, and supports others to do the same. That long slog to the PhD finish line was worth it in the end!”

Informed, Involved, Inclusive: Laying The Foundations

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Rory Gowers & Milan Nitopi
This article is Part 1 of 3 in our series ‘Informed, Involved, Inclusive’.

Rory and Milan (left to right) presenting at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024.

Every culture is in conflict; and, we are all moderated by cultural norms and expectations. Where there is more cultural diversity, there is a greater chance for misunderstanding and an escalation of conflict.

In the context of meditation, facilitators who are not equipped with the necessary intercultural competencies risk undermining that process, which can contribute to difficult or unproductive communication and dialogue. Although competencies standards exist (such as the Intercultural Competence Specialisation by the International Mediation Institute), facilitator training in intercultural predisposition is limited. 

We presented our proposition to counter this serious gap in mediator development at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024 in our address: ‘Informed, Involved, Inclusive: A New Chapter In Intercultural Competence’. The Mastering Intercultural Mediation Implementation (MIMI) training program is based on three core foundations:

  1. Informed,
  2. Involved, and,
  3. Inclusive.

MIMI is a specific application of the my-RESPECT-ability model which entails the intercultural mediation principles, processes, and practices at the heart of the Intercultural Competence Playbook (Gowers 2023).

Visit my-RESPECT-ability to read more on the model or to enrol in introductory webinars.

In developing the MIMI training program we explored intercultural research concepts and approaches (including Dai & Chen, Sveiby & Skuthorpe, Gowers) as well as drawing on our combined lived experience and extensive mediation practice. Rory has lived in over 7 countries and brings insights from over a decade of real-life intercultural mediation practice (in public, private, and voluntary sectors).

Becoming interculturally competent is more than an intellectual and mindful journey. Therefore we decided it is crucial to centre our training model on participant transformation. As participants become more aware, more accepting, and more appreciative of an ‘other-culture’, they begin to develop competencies which enable them to facilitate intercultural interactions effectively.

An ‘other-culture’ is a class, community or sub-culture of any kind (social status, ethnicity, spiritual, gender identity, wealth, occupation, species, etc.) that is so different that it reveals in you a sense of personal discomfort or powerlessness (such as fear or anxiety or a capacity to interact). It is the feeling of being a total foreigner, in contrast to the feeling of being a relaxed tourist. It may be experienced as a feeling of alienation. This is what people from an other-culture experience when they enter into a new, dominant culture where they lack the capacity or the social skills to interact or negotiate on a level playing field.

Foreigner. 外人 Gaijin. 鬼佬 Gwáilóu. Stranieri. Gudiya. Alien. 

The word ‘gudiya’ refers to non-Indigenous people in the context of Aboriginal-English. Indigenous Australians adapted English to communicate with non-Indigenous people after their traditional languages were stolen and is a variety of English, distinct from Australian English.

There are many words to refer to an ‘outsider’ and we all have experienced this feeling at some point in our lives.

Communication and dialogue is an essential and fundamental aspect of mediation, but how do we consider this through the lens of the three cultural motifs:

  • the Eastern “We”
  • the Indigenous “Be”
  • the Western “Me”

In a Western context, ideals such as self-determination and non-partisanship (including neutrality and impartiality) are often discussed as being critical to an effective mediated outcome. But what do these aspects actually mean with consideration of other-cultures?

Whereas in an Eastern context, the ideal of achieving harmony appears critical to an effective mediated outcome. And, in an Indigenous context, ideals of responsibility and collective existence appear critical to an effective mediated outcome. Yet the Western understanding of ‘mediation’ does not translate well with ideals belonging to other-cultures.

We see here that ethical practice is shaped by varying culturally embedded needs and these needs are not exclusive to just one specific cultural perspective. In the context of communication and dialogue, they illustrate the interests, needs, concerns, and expectations of other-cultures. Unless a mediator is interculturally aware, accepting, and appreciative of other-culture perspectives and ethical frameworks, their ability to facilitate effective and enduring outcomes is significantly diminished.

Where all parties to an intercultural dispute are able to express and address their interests, needs, and concerns in culturally relevant ways, then a more creative, sustainable, and harmonious outcome can be achieved.

Mastering Intercultural Competence

Our intercultural competence training model is built on three foundations:

  1. Informed
  2. Involved
  3. Inclusive

Foundation 1: Informed (awareness)

The first foundation is focused on being better informed. By being better informed, we are led to an increased awareness. And, to be better informed we must turn our minds to the facts, feelings, and findings of intercultural research.

This foundation is a structured learning process centered on establishing the baseline knowledge of intercultural competence.

As it has been observed that a person’s experience of other-cultures is both an intellectual and mindful journey, knowledge of an other-culture is not itself enough to develop intercultural competence. Although the International Mediation Institute sets out the minimum standards for intercultural competence specialisation and set the pathway for internationally accepted mediation principles, we recognised that more was required in order to have a complete and comprehensive understanding of an other-culture.

In a Western context, unless we become aware and address our own inner conflict, we are unable to take a ‘balcony view’ of others’ conflict. By failing to adopt a balcony view, we lack impartiality and neutrality; concepts that are cornerstone to Western facilitative mediation practice. However, within other-cultures, a different approach might be taken.

Foundation 2: Involved (acceptance)

The second foundation is focused on being more involved. By being more involved, we are led to a greater acceptance of other-cultures. And, to be more involved we must immerse ourselves within an other-culture and listen to their stories, songs, and symbols.

We created this foundation to allow participants the opportunity to develop a deeper understanding of the other-cultures needs, values, and expectations by providing a full other-culture immersion program. This foundation is the heart of our training model.

This immersion program is crucial as participants must initially feel uncomfortable and confronted with unfamiliar aspects of an other-culture. This makes for a more profound intercultural learning experience. It is ourselves actually undergoing the change where we arrive at a deeper level of understanding and respect for other-cultures and their voice at the ‘table’.

As it takes time to begin immersing ourselves in an other-culture, some participants may elect to extend their immersion program to develop an even deeper understanding of the other-culture that they immersed themselves in.

Immersion is more than assimilation with, or imitation of, the other-culture. In their experience, participants learn respect for the values, needs, and expectations embedded within those other-cultures. It is to understand and accept that our eyes are but only one perspective in the world and that there are many eyes which look upon the face of this earth differently. All perspectives are valued.

Unlike how the International Mediator Institute Standards emphasise mediator proficiency of a particular culture and advocates for cross-cultural application, our approach is focused on competence in intercultural interaction.

To be cross-cultural is not to be intercultural. They are different. ‘Intercultural’ is described by Paula Schriefer as:

“communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.”

Foundation 3: Inclusive (appreciation)

The third foundation is focused on being more inclusive. By being more inclusive, we are led to a greater appreciation of other-culture’s wisdom, needs, and ways of working with conflict. And, to be more inclusive, we must turn our minds to choosing the most appropriate principles, processes, and practices of intercultural mediation for that culture.

We created this foundation to allow participants the opportunity to further develop their intercultural mindset and heart-set behaviours. A participant is to adapt their current core principles, practices, and processes to the interests, needs, concerns, and expectations of the other-culture they immersed themselves in.

By putting learnings and reflections into practice, participants are able to accurately identify and address communication and dialogue issues within an intercultural context. This can be achieved with case studies or role play exercises.

Authors Biography

Rory Gowers is a Master of Dispute Resolution (MDR), a Master of Education (MEd), an intercultural mediator, and a business strategist, residing in Greater Sydney, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com 
Email: rory.gowers@gmail.com
Mobile: +61 425 292 811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions

Milan Nitopi is an accredited lawyer and mediator with (soon) a Master of Laws in Family Dispute Resolution (LLM FDR). Milan has a passion concerning people, law, and resolution and he strives to equip people with skills for better communication and dialogue to address all kinds of conflict.
Contact Milan via
Email: manitopi@outlook.com
Mobile: +61 432 547 538
LinkedIn: www.linkedin.com/in/manitopi/

Motivating people to engage in conflict resolution services

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Samantha Hardy
This article has been republished and adapted with permission. The original publication can be located within The Conflict Management Academy.

When we look at how people typically promote conflict-related services, such as mediation, the services are often presented as a better option than other alternatives. In fact, this thinking is even found in the name “alternative dispute resolution”.

However, psychological research shows that using ‘scare’ tactics to try to motivate someone to do something tends not to work. This can be explained by what Wayne Hershberger (1986) first called “the law of approach and avoidance” and means that we tend to move towards pleasure and away from pain.

While you might think that telling someone about all the bad things that might happen if they leave their conflict unresolved would motivate them to move away from those bad things towards something better (e.g. mediation), the problem is that we have promoted our service by reference to the bad things, so they may well subconsciously move away from us!

When we feel an emotion that we find unpleasant, our brain’s natural response is to move away from the thing related to that emotion. In contrast, when we feel an emotion that we find pleasant, our brain is wired to approach.

However, in Shari Talbot’s book The Influential Mind, she explains that when we are trying to influence someone to do something, we have to be careful how we apply this logic. While we tend to move away from something that we see as unpleasant, we can also stop moving altogether if we are not sure about what we are moving towards.

Our brains are wired in such a way that anticipating a reward not only triggers approach, it is more likely to elicit action altogether. If you want someone to act quickly, promising a reward that elicits an anticipation of pleasure may be better than threatening them with a punishment that elicits an anticipation of pain.

In short – if we are trying to avoid something bad, we may move away from it, but we may also freeze if we are uncertain about what lies ahead of us. In contrast, if we know that something positive and rewarding lies ahead of us, we are more likely to actively take steps towards that better option.

This works for both words and images. 

A study of crowd funding requests carried out by Alexander Genevsky and Brian Knutson in 2015 examined 13,500 online requests for funding. These requests were often for financial support for people needing expensive medical treatment, and counter-intuitively, the research found that crowd funding requests were more likely to raise money if they showed someone happy and well rather than someone sick in a hospital bed.

If you search online stock photo libraries for photos relating to “conflict resolution”, you will perhaps be surprised to find that many of the images do not illustrate “resolution” but rather show people in conflict.

Here are some examples:

As well as the law of approach and avoidance, we need to consider people’s need for a sense of certainty and control.

Warnings and threats limit people’s sense of control, so instead we need to emphasize what needs to be done to reap rewards – which increases their sense of control.

So, what does this mean for marketing a service like mediation?

Firstly, talk about the benefits that clients will achieve by participating using an approach framework. Don’t just talk about the bad things they will avoid; also talk about the good things they will gain so that they can manage risk and also know what they can work towards.

Secondly, emphasise the client’s opportunities to make choices and take control of their future.

Thirdly, use positive images on your website, that show how people will feel and behave after they have used your services. 

Here are some examples:

Review your promotional material. If you want to make sure you are marketing your mediation services effectively, think about how much of your content is about what clients can avoid by engaging your services and how much of your content is about what clients can gain (rewards, pleasure) by engaging your services.

Think about the kinds of images you use. Consider whether those images show the problem a client wants resolved or how the client will feel after they work with you? Consider ideas that describe the outcomes people will gain from working with you and the associated positive emotions that those people will elicit.

Author Biography

Dr Samantha (Sam) Hardy is the Director and Lead Trainer of the Conflict Management Academy. Sam is an experienced mediator, conflict coach, and the founder of the REAL Conflict Coaching System™. She provides conflict support to managers and leaders across the world as well as professional development training, supervision and mentorship to mediators and coaches who work with clients in conflict. Sam is an accredited mediator under the Australian National Mediation Accreditation System (NMAS), a certified transformative mediator by the United States Institute of Conflict Transformation, and a certified narrative coach. She has been awarded Conflict Coach of the Year at the Australian Dispute Resolution Awards in 2022 as well as the Australian Resolution Institute Award for Service to Dispute Resolution in 2021 for her leadership and innovation in the field. Sam also publishes widely in dispute and conflict resolution, including Dispute Resolution in Australia, Mediation for Lawyers and Conflict Coaching Fundamentals: Working with Conflict Stories.