Sam Hardy’s contribution to the ADR Reading List is Michael D Lang and Alison Taylor, The Making of a Mediator: Developing Artistry in Practice (Jossey-Bass, 2000).

What I love about this book is its focus on artistry and reflective practice — for me two things that underpin any theoretical knowledge of mediation or other conflict resolution processes or intervention (and also, for that matter, any DR research). I think this is essential reading for any beginning conflict resolution practitioner — and indeed for any experienced conflict resolution practitioner!

Kate Curnow recommends a number of items for the ADR Reading List today relating to the issue of bargaining in the shadow of the law.

Bargaining in the shadow of law theory and research into why the ‘haves’ come out ahead have been key to shaping my DR research because of what they show about the role and nature of ‘law’ in dispute resolution.

In terms of bargaining in the shadow of law, obviously the classic original piece by Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950 is a must read.

Becky Batagol and Thea Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation (Themis Press, 2011) contains a great analysis of subsequent development of Mnookin and Kornhauser’s original theory by other authors and further refinement of the theory itself through empirical research.

On the why the ‘haves’ come out ahead, a great starting point is Marc Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95.

Our next item in the ADR Reading List is from Becky Batagol, who recommends Tom Tyler, ‘The Quality of Dispute Resolution Procedures and Outcomes: Measurement Problems and Possibilities’ (1989) 66 Denver University Law Review 419.

I really like this piece, despite its age, because it cuts through what is often presented when measuring the quality/success/effectiveness of a dispute resolution process. Tyler argues that agreement rates and participant satisfaction have a seductive quality but should be avoided as sole measures of process quality. I often recommend this to PhD students as a starting point for their research into a particular dispute resolution process and Tyler’s approach has been central to the design of some of my own research projects.

Today’s ADR Reading List recommendation comes from Kathy Douglas, who recommends John Winslade and Gerald Monk, Narrative Mediation: A New Approach to Conflict Resolution (Jossey-Bass, 2000) to new researchers.

Even if the model is not widely practised, the discussion of the theory is worth the trouble.

This month the ADR Research Network blog will feature a series of posts sharing members’ reading recommendations for both new and experienced researchers.

The first item on our ADR reading list comes from Olivia Davis, who recommends Peter T. Coleman, The Five Percent: Finding Solutions to Seemingly Impossible Conflicts (Public Affairs, 2011).

He takes a systems view of conflicts and discusses the powerful effects that context has on a conflict, and also the limitations of tackling problems in a rational problem-solving way. He suggests looking for ways to disrupt the dynamic of the conflict, rather than attempting to resolve the manifesting issues.

This month the ADR Research Network blog will feature a series of occasional posts from our members responding to the following questions:

What book or article has most influenced your approach to researching dispute resolution and why?

What book or article would you most recommend to beginning researchers in the dispute resolution field?

We hope to offer both new and established researchers some helpful tips for further reading!

This is the second paper from those presented at the 4th ADR Research Network Roundtable (#ADRRoundtable) at the University of NSW, Sydney last month. We are keen to share the wonderful and challenging ideas discussed. At our roundtables and in this blog we aim to advance the dispute resolution field by presenting high quality, critical dispute resolution scholarship. Next year we’ll be meeting in Hobart, Tasmania and if you’d like to join us (and perhaps visit the equally challenging MONA) , we will be posting information about how to be part of the next meeting here on our blog.

Please feel free to comment here on or over on Twitter @ADRResearch.

This post and the next one feature discussion of the important area of workplace dispute resolution. Today’s post is by Olivia Davis. Olivia has worked in ADR since 2001 and is currently Quality Manager for the Financial Ombudsman Service. She is completing a Master of Dispute Resolution at UTS and is interested in bringing ADR skills into the broader workplace context.



We can measure an individual’s literacy level, but can we measure their ability to deal with conflict productively? This post discusses the concepts that need to be considered before developing a methodology for measuring ‘conflict literacy’.

Bringing mediation skills into the broader workplace context enhances workers’ ability not only to deal productively with conflict, but to cultivate positive relationships, negotiate more persuasively and include multiple perspectives when problem-solving. Key skills from the mediation skill set are listening, questioning, reflecting, reframing, and summarizing, as well as the ability to manage emotions and power imbalances, and reality-test proposed outcomes. The literature around ‘conflict competence’ adds to this list the skills of multivalent thinking, emotional intelligence and impulse control.

The contribution of this post is to combine current thinking about definitions of literacy with current thinking about conflict, to develop a new concept that is more nuanced and complex than ‘conflict competence’, as it is outlined above. To arrive at an understanding of what is meant by the term ‘conflict literacy’ as proposed by the author, the phrase is broken down and each word looked at separately.

The word literacy is commonly attached as a suffix (eg; media literacy, financial literacy, scientific literacy, computer literacy etc) to a particular field as a shorthand way of indicating an individual’s level of knowledge about, and ability to navigate, that particular subject area effectively. As technology and social media have pervaded our daily lives in ever-increasing ways, our understanding of what it means to ‘be literate’ has been forced to expand beyond the simple ability to read and write, to include such skills as the ability to critically evaluate sources of information, filter for relevance, understand which signifiers are valued, as well as produce relevant content. Literacy has always been about the ability to participate effectively in a social environment, but it now has a ‘meta’ aspect which demands that we be able to interrogate the frame the environment sits within, and critique our role as co-creaters of that environment.

Looking at ‘conflict’ it is notable that current thinking sees conflict not as something to be avoided or suppressed – or even resolved – but rather as an energy force that is part of the human experience, and is ever-present, whether latent or manifest. Conflict theorists have applied the principles of complexity science to better understand the dynamics of conflict, how to harness its energies and how to intervene effectively. Complexity science sees all elements in a system as having mutual causality; everything happens in a context, and there are no clear-cut ‘victims’ and ‘perpetrators’. More complex perspectives allow participants to evade the tyranny of binary oppositions and create more satisfying agreements.

The term ‘conflict literacy’ combines all these concepts; it is more than ‘conflict competence’, and goes further than the parameters of the mediation skill set. Is conflict literacy achieved by bringing mediation skills into the workplace? The answer would have to be: not on their own, no.​

As part of our occasional series profiling ADR Network Members, we profile James Duffy, law academic at Queensland University of Technology Law School in Brisbane.



1. Where does research fit in your professional work?

Research into ADR sits alongside other research I do in the fields of psychology and law and the scholarship of teaching and learning.  This is balanced with the teaching of lots of undergraduate law students at QUT.

2.  Why did you become interested in the dispute resolution field?

I spent two years working for different judges in the Queensland Court system (1 year in the Queensland District Court and 1 year in the Queensland Court of Appeal).  Being in and around the courts exposed me to the difficult life events that many people encounter.  The human and emotional costs of taking a matter to court appeared to be really taxing upon people.  I became interested in forums that parties could use that would allow them to speak their peace and be listened to by another person, without the expense and formality of court proceedings.  In many instances, taking a matter to court seemed like overkill to me.  It reinforced the idea that the substance of legal disputes was important, but the way they were resolved (procedurally) was just as important.

3.  What is your particular area of dispute resolution research interest?

I’m interested in the psychology behind ADR forums and how the answer to a legal problem is often found in a non-legal solution.  I’m not sure that I will ever be able to say that my particular area is X, or I have specialised knowledge in X area of ADR.  I like to be a generalist, and know a little bit about a lot of different areas.  At thisstage, I haven’t done a PhD, so that might focus things a little bit.

4.  Whose research has influenced you? Why/How?

I like reading work by authors that has a more literary feel to it.  Carrie Menkel-Meadow is always good to read.  Marjorie Silver is the same.  I find myself citing Laurence Boulle a lot, because he has already written about every idea that I seem to come up with (which is actually quite frustrating when you think you have stumbled across a novel idea.)  I genuinely enjoy reading work from other members of the ADR research Network.  When you have had a chance to hang out with other academics and get to know them a bit better, reading their articles is fun.  I’ve lost count of the number of times I’ve though to myself “shit, I wish I had that idea first, how clever!”  More generally, I like reading articles or books where the authors have a beautiful way with words – particularly those that flout the usual rules for peer reviewed journals.

5.  What dispute resolution research are you involved in at the moment?

I have two articles in the back of my brain that are waiting to come out.  One on the neuroscience surrounding emotion in ADR forums, and another suggesting that positive psychology principles explain why people mediate.  I’m looking forward to a bit of connected research time to commit these thoughts to paper.

6.  Where would you like to take your dispute resolution research work over the next ten years?

I don’t know what I’m doing next week, let alone in ten years time.  Quantitative empirical work.  

7.  What advice do you have for emerging dispute resolution researchers?

Have a coherent story you can tell yourself (and others) about why dispute resolution research is important.  Depending on the University faculty you are part of, dispute resolution research may not be viewed as favourably as other areas.  Secondly, if you are from a legal background, try and skill up in research methods apart from doctrinal research.  Good empirical research is very publishable.

This post presents an overview of a paper by myself and Rachael Field which I presented at the recent ADR Research Network Roundtable, entitled ‘Learning to Play the Language Game: Confronting the Hidden Challenges of Family Mediation’.

Mediation is becoming more and more prominent as a mode of dispute resolution in family law matters. There are many benefits that can be claimed for mediation as a mode of resolving family disputes, including its informality, flexibility and less confrontational nature. These benefits make mediation a potentially suitable method for resolving many types of post-separation issues. However, even while offering parties the opportunity of consensual, non-adversarial dispute resolution, mediation can also present them with significant challenges.

The greatest of these challenges perhaps arise where parties in family mediation must negotiate on their own behalf, since lawyers are either not present or are excluded from the process. Mediation in the absence of legal representation requires parties to effectively articulate their own stories, interests, issues and concerns, as well as potentially those of their children. Participants in family mediation are expected to be reasonable, engaged and effective negotiators at a time in their lives – post-separation – which is, in many cases, one of the most chaotic, difficult and emotional.

There are, therefore, obvious challenges facing unrepresented parties in family mediation, particularly those with little prior knowledge of the process. It might be thought that these problems are counteracted by the relatively informal character of the mediation environment. However, the family mediation environment, despite its relative informality, is structured by underlying conventions and expectations that are often opaque to inexperienced participants.

Ludwig Wittgenstein’s notion of a language game offers a way of thinking about the underlying conventions in different forms of social discourse. Wittgenstein notes that language fundamentally influences – and, indeed, constructs – the ways in which people interact. Language is linked to social behaviour and to the social dynamic. Effective communication, then, becomes a matter of understanding the applicable social context and knowing how to play the relevant language game.

Mediation researchers and practitioners need to pay attention to the language game of mediation in order to help parties navigate the process. Party preparation can play an important role in enabling inexperienced participants to engage effectively in family mediation and protecting vulnerable parties from being disadvantaged by hidden expectations. Helping parties understand the language game of family mediation represents a critical new focus of family law practice.