The ADR Research Network is a group of Australian dispute resolution academics. Blogging & tweeting high quality, critical dispute resolution scholarship.
Many of you may already be subscribed and are familiar with this Australian Dispute Resolution Research Network Blog. For those newcomers, this is a place where us practitioners, professionals, researchers, academics and students alike can collaborate and share our ideas on all things relating to dispute resolution, ideas of which, reach over17,000 individuals per year and has over25,000 hits.
The LinkedIn discussion group is a relatively new forum which has been created to provide us all a space to continue discussing our ideas and thoughts as well as to gain a further reach to those who may not be subscribed to this Blog. The discussion group is much like a ‘town hall’ rather than an official publishing forum. It is a place where you may speak freely of your ideas and thoughts relating to the topics of concern, but we ask kindly that you do not promote your commercial practices in law or dispute resolution and that you credit any authors where relevant. The discussion group follows the same guidelines here on our Blog.
To view or join the LinkedIn discussion group, you will be required to create or sign in to your LinkedIn account. For those who may not be familiar with LinkedIn, it is a social platform that is designed to connect professionals and peers to network and develop career opportunities. It is a great platform for practitioners, academics, and researchers to keep up to date with developments in their field as well as students and newly established professionals to get a running-start to their career.
Following the publishing of an article on this Blog, we encourage authors to post something brief in the LinkedIn discussion group. This allows a further reach to readers who may not be subscribed to this Blog. Some things to consider including in your LinkedIn post are relevant hashtags, appropriate emojis, and of course, the link to your blog!
For enquires, more information, or if you are interested in publishing an article on our Blog, please contact our Editors in Chief, Sam Houssain and Milan A. Nitopi.
There has been a lot of talk about artificial intelligence (“AI”) in international arbitration in recent years. I vividly remember when I gave the keynote speech on “International Arbitration 3.0 – How Artificial Intelligence Will Change Dispute Resolution” at the Vienna Arbitration Days 2018. At the time, people were quite skeptical about the topic, but apparently intrigued enough to select it at the GAR awards as the best lecture of the year. Since then, the international arbitration community has evolved, and it is now undisputed that AI systems have a significant and increasing impact on international arbitration (see e.g., Maxi Scherer, Chapter 39: Artificial Intelligence in Arbitral Decision-Making: The New Enlightenment?, in Cavinder Bull, Loretta Malintoppi, et al., (eds), ICCA Congress Series, Volume 2, pp. 683 – 694 (2023)). For instance, counsel frequently employ AI tools for document review and research purposes, and there is a rising demand for these systems in transcription and translation tasks.
As AI systems continue to develop, it is also important to create a harmonized ecosystem where AI “collaborates” effectively with arbitration practitioners – be it with counsel or arbitrators. Among the most burning questions is whether there is a need to regulate AI, either broadly or in international arbitration more specifically. Recently, I gave the 6th Sciences Po Mayer Brown arbitration lecture on the question “Do We Need to Regulate the Use of Artificial Intelligence in International Arbitration?” While there is burgeoning regulation in court proceedings (such as by the UK Courts and Tribunal Judiciary and the Dubai International Financial Centre (DIFC)), very little exists that applies to international arbitration. In April 2024, the Silicon Valley Arbitration and Mediation Center published the “Guidelines on the Use of Artificial Intelligence (AI) in International Arbitration,” as an attempt to propose some form of optional regulation.
On a broader level, the European Union Artificial Intelligence Act (the “Act”), a landmark legislation that lays down harmonised rules on artificial intelligence, was adopted by the European Parliament on 13 March 2024 and will enter into force after its publication in the EU Official Journal. Despite being described as the most comprehensive piece of legislation in the AI field, the international arbitration community has paid little, if any, attention to this regulation and few practitioners are aware that the Act has the potential to apply to international arbitration proceedings (but see here), and in particular to arbitrators. This blog discusses how the activities of arbitrators may fall within the material, personal, territorial and temporal scope of the Act.
Material Scope
The Act takes a risk-based approach, which means that it classifies economic activities according to the likelihood of harm caused by AI systems, and the regulatory duties vary according to this level of risk (Recital 26).
For instance, there is a general duty of AI literacy, which means that providers and deployers of AI systems shall take appropriate measures to gain the knowledge and skills to “make an informed deployment of AI systems, as well as to gain awareness about the opportunities and risks of AI and possible harm it can cause” (Recital 56).
Activities of arbitrators may be classified as “high-risk”. Annex III, Art 8(a) provides that “AI systems intended to be used by a judicial authority or on their behalf to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts or used in a similar way in alternative dispute resolution” (emphasis added) are to be classified as high-risk AI systems. The reference to “alternative dispute resolution” is likely to include international arbitration. This is confirmed by Recital 61 which provides that “AI systems intended to be used by alternative dispute resolution bodies for [the purposes of the administration of justice and democratic processes] should also be considered to be high-risk when the outcomes of the alternative dispute resolution proceedings produce legal effects for the parties.” (emphasis added).
Article 6(3) contains exceptions to the high-risk classification, namely where otherwise high-risk AI systems are used in a way that does not pose a significant risk of harm to the health, safety or fundamental rights of natural persons. This applies to situations in which:
“(a) the AI system is intended to perform a narrow procedural task; (b) the AI system is intended to improve the result of a previously completed human activity; (c) the AI system is intended to detect decision-making patterns or deviations from prior decision-making patterns and is not meant to replace or influence the previously completed human assessment, without proper human review; or (d) the AI system is intended to perform a preparatory task to an assessment.”
In which circumstances these exceptions apply is not immediately clear from the Act. Nor is the answer clear to the critical question whether one can conclude from Article 6(3) that international arbitration will fall under the high-risk activities category only if natural persons are concerned.
Personal Scope
The Act distinguishes between different regulated entities. Providers, importers and manufacturers of AI systems bear the most stringent obligations under the Act (Articles 16, 25). However, “deployers” of AI systems also fall under the scope of the Act. A “deployer” is defined in Article 3(4) as “any natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity.” Arbitrators, as natural persons using AI systems for a professional activity, thus fall under the personal scope of the Act.
Deployers of high-risk activities have to follow a certain number of regulatory obligations, such as the obligations to (i) take appropriate technical and organizational measures to ensure that the AI systems are used in accordance with their instructions (Article 26(1)), (ii) monitor their operation (Article 26(4)), (iii) assign human oversight to natural persons who have the necessary competence, training, authority and support (Article 26(2)), (iv) ensure the input data is relevant and sufficiently representative (Article 26(4)), and (v) keep the logs automatically generated by the system for a period of at least six months (Article 26(6)). In certain situations, deployers have additional duties to carry out data protection impact assessments (Article 26(9)) and cooperate with national EU authorities (Article 26(12)). In case of non-compliance, financial and non-financial sanctions are foreseen (Article 99).
Territorial Scope
The Act outlines its territorial scope in Article 2. The Act applies if the deployer of AI systems either (i) has its place of establishment or is located within the EU (Article 2(b)); or (ii) has its place of establishment outside the EU but “where the output produced by the AI system is used in the Union.” (Article 2(c)).
The application of this provision to international arbitration is not straightforward.
Concerning Article 2(b), one could argue that the place of habitual residence of an arbitrator is where she is established or located. However, this means that in a three-member tribunal, one or two arbitrators might be covered by the Act, while the other one or two might not. An interpretation that favours a more uniform application amongst tribunal members would be to consider the place of establishment of the tribunal (as opposed to its individual members), which would likely be determined by the seat of the arbitration.
It is even more complicated to assess in which circumstances the Act could apply if we consider Article 2(c). The interpretation difficulty turns around the requirement that the output produced by the AI system must have been “used” in the EU. Arguably, if AI systems have been used by the arbitral tribunal, the AI system’s output has impacted the award, which in turn has legal effects on an EU-based party. Is the location of one of the parties in the EU thus sufficient to conclude that the “output produced by the AI system is used in the EU”? Or, otherwise, is it sufficient that an award could ultimately be enforced against assets located in the EU? If one were to answer in the positive, this would mean that the Act could have potentially significant extraterritorial consequences: it could apply even if the seat of the arbitration is outside the EU, the arbitrators are based outside the EU, and one of the parties is located outside the EU.
Temporal Scope
The Act will be implemented in stages. Most provisions related to high-risk AI systems will apply 24 months after the Act has entered into force (Article 113).
Fortunately, this means that the international arbitration community still has time to consider the extent to which the use of AI in international arbitration by arbitrators falls under the Act. What is sure, however, is that we need to engage in the debate!
I wish to thank Russell Childree, Dr. Ole Jensen, Andra Ioana Curutiu, Alice Dupouy, and Alexey Schitikov, colleagues at Wilmer Cutler Pickering Hale and Dorr LLP, for their research and assistance.
John Lande, JD, PhD This post is republished with permission. The original article is published within the University of Missouri School of Law the Legal Studies Research Paper Series.
In ‘Evaluative Mediation’ is an Oxymoron, Kim Kovach and Lela Love argued that evaluative mediation described in the famous Riskin Grid is a contradiction in terms – essentially not really mediation or the way that mediation should be. Len Riskin responded, “It is too late for commentators or mediation organizations to tell practitioners who are widely recognized as mediators that they are not, in the same sense that it is too late for the Pizza Association of Naples, Italy to tell Domino’s that its product is not the genuine article.”
Although I share Len’s perspective, this article is not about what should or should not be legitimately considered as mediation.
This article riffs on comments at an excellent program during the ABA Section of Dispute Resolution’s annual conference to illustrate how oxymoronic these terms have become. It suggests ways that we in the dispute resolution field can decide to avoid speaking oxymoron.
Mediators’ Proposals
The ABA program described techniques for making mediators’ proposals. This procedure usually is a last resort after extended unsuccessful efforts to reach agreement. Typically, it is used in high-stakes cases where both sides are represented by attorneys. The parties want to settle but worry that one or both sides are taking unreasonable positions. The procedure can help parties feel more confident in their decisions.
Mediators make these proposals only if both sides agree to the procedure. Indeed, some mediators use the procedure only if suggested or requested by one or both of the parties. Mediators gives a proposal confidentially to each side. It reflects their perception of the terms that both sides would accept. It is not a prediction about the likely court outcome if the case were adjudicated.
If both sides accept the proposal, they have an agreement. If either or both parties reject the proposal, there is no agreement. A party that rejects the proposal doesn’t know if the other party has accepted it or not.
As this description illustrates, this is a specific procedure that the parties agree to, not a unilateral casual suggestion by a mediator.
Two Oxymorons
During the discussion, one person referred to mediators “facilitatively” making a proposal. Another person described mediators “empowering” the parties by asking how much risk they were willing to take. For example, if plaintiffs are willing to take more risk that the defendants would not accept the proposal, the mediators would propose a higher amount. If the plaintiffs were willing to take less risk, the mediators would propose a lower amount.
A recent article by Robert A. Baruch Bush, a founder of transformative theory, identifies the goals and purposes of transformative mediation as “[s]upport[ing] parties in changing their conflict interaction from negative / destructive to positive / constructive; help them recapture strength and understanding.” It requires mediators to “[p]rivilege party decision-making on all matters – content and process.” The reason for this approach is to promote “party empowerment and interparty recognition.” The article states that the “emphasis in the transformative framework on party empowerment opposes any effort by the mediator to bring the parties toward reconciliation.”
Arguably, mediators making proposals and inquiring about their preferred level of risk is transformative by asking about parties’ preferences about the procedure. However, it is designed to promote agreement and it is not designed to promote empowerment or constructive interactions between the parties. Nor is it how mediators generally understand transformative theory.
Presumably, members of the audience kinda, sorta, probably understood what the speakers meant by using the terms “facilitative” and “empower.”
But why misuse terms from traditional mediation theory when there is plain language that expresses these ideas more clearly and without contradicting traditional theory?
How You Can Avoid Speaking Oxymoron
As a public service, this article provides the following suggestions to help you avoid the embarrassment of speaking oxymoron. These suggestions have the added value of making our language intelligible to civilians.
Instead of using the term “facilitative,” we might say the following, adapted from Riskin’s original account:
Helps parties develop ideas and proposals
Helps parties evaluate ideas and proposals
Asks parties about consequences of not settling
Asks parties about likely court or other outcomes if they don’t settle
Asks parties about the strengths and weaknesses of the arguments
Note that these are very different techniques. Mediators often use some but not all of them in a given case.
Listening to people using the term, however, they kinda, sorta, probably mean some of the following:
Is friendly and respectful
Helps parties understand their case and their options
Doesn’t (explicitly) pressure parties
Here are the elements of “evaluative” mediation from Riskin’s article:
Urges / pushes parties to accept settlement
Develops and proposes agreements
Predicts court outcomes and consequences of not settling
Assesses strengths and weaknesses of each side’s case
Again, these are different techniques and mediators who are allegedly evaluative don’t use all of them in a given case. When people use the term, they kinda, sorta, probably mean some of the following:
Is aggressive
Doesn’t listen to parties
Pressures parties to accept the mediators’ ideas
Bush’s description of empowerment is included above. When people use the term “empowerment,” they kinda, sorta, probably mean that the mediator helps parties understand their case and options so that they feel more informed, confident, and assertive and thus can protect their own interests.
Maybe people mean other things when they use the traditional terms of facilitative, evaluative, and empowerment. Who knows? When people use these terms, we don’t really know what they actually mean. We kinda, sorta, probably think we know. But we don’t really know.
As so-called communication experts, it would be nice if we could speak and write so that people actually do know what we mean.
A radical concept.
Try it. You’ll like it.
Author Biography
John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.
The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).
John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.
Every four days in Australia, a woman is murdered by a former or current intimate partner. For decades, the “battered woman” stereotype prevented family violence from being recognised beyond physical in nature. However, recently coercive control has been labelled just as damaging as physical violence, being deeply and inherently traumatising by reducing any sense of identity and autonomy of the victim-survivor. In this post, I will explain the socio-political context of family violence in Australia and how this has shaped the nature of coercive control. Then, I will explore how integrated community services are part of the holistic solution required to reduce the effects of coercive control on victim-survivors.
Family Violence in Australia
Family violence includes violence, threats or other behaviour that coerces or controls a member of family. Family violence is multifaceted: it can be perpetrated in many ways, and the effects can be experienced differently by every victim-survivor. Family violence is inherently a gendered issue, affecting predominantly female identifying people. Family violence is the leading contributor to death, obesity and illness for Victorian woman aged 15 to 44. The exploration of why family violence is a gendered issue is complex and requires discussion of socio-political factors including power, gender roles, colonialism and racism. For the purposes of this post, the existence and nature of family violence will be simplified. Australia has a patriarchal foundation, rooted in colonial past centring white, hegemonic masculinity. This has created a climate to harbour inequality and drive violence against women and children.
Critical feminism has brought an important shift of the discourse from violence against women being “behind closed doors” to a political and social responsibility. Nevertheless, Australia continues to foster political and social environments characterised by power imbalances and sexism. A woman being raped by a Member of Parliament makes her a “lying cow” according to her Ministerial employer. Australia’s only female Prime Minister is not immune to the effects of sexism and inequality- Julia Gillard’s outstanding “Not Now, Not Ever” speech has been labelled as a “furious attack” rather than a necessary confrontation of persistent misogyny in Australian Parliament. Women cannot escape inherent sexism, as even in the workplace we are monetarily worth 21.7% less than men. Family violence in Australia is therefore, unmistakably, a gendered issue: 73% of perpetrators of family violence are men, and 71% of victim-survivors are women and the most identifiable risk of factor for becoming a victim-survivor of family violence, according to the Australian Bureau of Statistics, is being ‘female’.
Coercive Control in Australia
Coercive control involves intimidation and coercion to control a victim-survivor, create fear and diminish any sense of autonomy. The reality for a victim-survivor experiencing coercive control includes a life moulded by terror, isolation and disempowerment through “brainwashing” and “complete control and degradation” that is “tantamount to torture”. Coercive control has profound, long-lasting effects on victim-survivors with extensive impacts beyond the legal realm and into economic, social and psychological health. Coercive control can be characterised by patterns of non-physical abuse entrapping victims through economic, social and psychological abusive strategies. While this post discusses the generalised effects of coercive control, it is important to note that the experiences and effects of coercive control will be different amongst people living with disabilities, LQBTQIA+ communities, culturally linguistic and diverse (CALD) people, Aboriginal and Torres Strait Islander people and people living in rural and remote communities.
Economic Abuse
Economic abuse is a form of coercive control involving behaviours that control a woman’s ability to acquire, use and maintain economic resources, threatening economic security and self-sufficiency. Coercively controlling economic abuse encompasses control of economic resources like use of a car, preventing a victim-survivor from engaging in paid work, restricting access to obtaining tertiary qualifications, and even denying a victim-survivor necessities like food and clothing. Economic abuse causes victim-survivor to be economically dependent on the abuser, as the abuser can control her ability to become self-sufficient. The most significant effect of economic abuse- and the reason why men use it- is that prevents a woman from leaving a coercively controlling relationship. Many victim-survivors cite that the main reason they could not leave their abuser was due to how economically unstable they would be if they were to leave. For the first 6 years following divorce, women often struggle economically compared to men, highlighting how the effects of economic control during a relationship by an abuser continue to affect women years later.
Social Abuse
Social abuse in relation to coercive control includes an abuser isolating a victim-survivor through control of social activity, deprivation of liberty or the creation of unreasonable dependence. Social abuse encompasses the abuser limiting access to family and friends, and even constantly monitoring the victim-survivor, as well as more “subtle” measures such as by hiding car or house keys. A significant element of coercively controlling social abuse is restriction of a victim-survivors access to social support, leading to their isolation. Isolation is a particularly dangerous effect of social abuse is how it diminishes the capacity of the victim-survivor to confide in friends and family and seek help. Victim-survivors of social abuse often report a feeling of entrapment as they are prevented from keeping themselves and their children safe and leading an autonomous life, inhibiting the ability to escape their abuser.
Psychological Abuse
Psychological abuse as a form of coercive control involves intimidation, shaming, verbal abuse, manipulation and micro-management of the victim-survivor. Perpetrators maintain control through threats of violence or death to induce a state of constant terror. Psychological abuse is a social determinant of mental illness in Australia, and internationally. Constant criticism from the abuser can lead to low self-esteem in victim-survivors, as they are mentally manipulated into believing the perpetrator through the power imbalance created. Even after direct abuse had ended, victim-survivors continue to experience effects- emotional maladjustment and character disorders can develop, and in some cases, victim-survivors disassociate and construct a new personality, leading to a later diagnosis of a multiple personality disorder. Psychological abuse has been reported to lead to chronic social isolation, depression and stress, accompanied by a feeling that victim-survivors will not be believed, or that they cannot be helped. Importantly, a paradoxical attachment can develop between a victim-survivor and coercively controlling abuser, known as “trauma bonding”. This denotes the difficulty of psychologically detaching from the relationship. Coercive controlling psychological abuse leads to fear for safety, causing women to leave the family home. This is a leading cause of homelessness for women and children.
Integrated Community Services: A Potential Solution?
Although the legal system is one of the tools needed to address coercive control, it is by no means capable of addressing the totality of intersectional issues that can arise. Victim-survivors often experience intersectionality and have diverse needs requiring multiple interventions by different services. Many have to navigate their own pathway to accessing the support they need to address the effects of coercive control. Integrated family violence services are a coordinated approach bringing together disciplines to provide effective and collaborative support to victim-survivors experiencing the effects of family violence.
This post focusses specifically on how an integrated service with social workers and lawyers can help address the effects of coercive control on victim-survivors. The term “social workers” is an umbrella term describing professionals that can provide a wide range of support to address social, emotional, financial, physical, mental and economic needs. In this post, I argue that bringing social workers and lawyers together in integrated services has four key benefits.
Integrated services provide holistic, victim-survivor centred approaches
By working within an integrated practice, social workers and lawyers provide greater support to victim-survivors than they could alone. This allows for more coordinated responses to address the effects of coercive control and the intersecting needs of victim-survivors. Social workers can identify effects of coercive control beyond the legal realm which lawyers may not always be able to do, centring the victim-survivor. Social workers bring skills in crisis intervention, assessment of needs and support to address the economic, social and psychological effects of coercive control. For example, a lawyer may focus on a victim-survivors immediate need, perhaps being to obtain a family violence intervention-order. Meanwhile, a social worker would consider the bigger picture and identify community services the victim-survivor may benefit from to help address the effects of coercive control. They may connect the victim-survivor with services to help them gain employment and free childcare services, or a psychologist to address and work through the trauma they have experienced. This provides a holistic approach, connecting victim-survivors with avenues of support to address multi-faceted effects of coercive control.
Integrated services can provide improved legal and social outcomes for victim-survivors
Engaging with lawyers and the legal system is often stressful, and there is a general mistrust towards lawyers by the Australian community. Victim-survivors may require extra support to engage with legal services. An integrated service with social workers who have strong interpersonal and communication skills can assist lawyers to build rapport and trust with victim-survivors. Social workers can also facilitate communication when discussing legal issues through their ability to recognise when a victim-survivor might not understand legal jargon, providing greater support for the victim-survivor when engaging in legal processes. Victim-survivors also have better social outcomes with integrated services: social workers can conduct in-depth assessments of victim-survivors, thus once the “legal work” is completed, they can address the intersecting effects arising from coercive control, including homelessness, mental health and substance abuse. Addressing legal and social needs has the effect of reducing stigma a victim-survivor may feel, as well as increasing wellbeing and social participation.
Integrated services can help to prevent re-traumatisation
Victim-survivors can experience disempowerment when engaging with a system requiring them to constantly reiterate their traumatic experiences. Victim-survivors have various entry points into the family violence service system, including community legal services, as well as healthcare, social and family services. This can create an artificial division between the overlapping services providing support for victim-survivors, which can lead to re-traumatisation as the victim-survivor is forced constantly re-tell their story. Re-traumatisation can be avoided through integrated services sharing information as a trauma-informed approach. For example, a social worker and a lawyer may attend interviews with a victim-survivor, which can allow the social worker to make various referrals to other community services using the information the victim-survivor supplied (with consent) so that she does not have to repeat her trauma. This can reduce the stress and mental impact the victim-survivor would have experienced if she had to tell her story to different professionals- a social worker may make referrals to services to help the victim-survivor build her resume, obtain employment, connect with other victim-survivors, provide free childcare, financial counselling, psychology services or social housing services.
Integrated services can facilitate autonomy and empowerment of victim-survivors
Integrated services enhance feelings of safety for victim-survivors, contributing to their determination and strength to persist with justice system processes to hold perpetrators of coercive control accountable. This underpins the recognition that they are not to blame for the abuse. Clients of integrated services also express their desire to empower others as wanting to “give back” and “make a difference” to other women as “survivors, not victims”. Clients of integrated services report significant positive reduction of the effects of coercive control from having engaged with integrated services, including an ability to access further education, psychological and emotional improvement, increased self-confidence and general happiness.
Next Steps
Coercive control is a form of family violence involving intimidation and coercion to control a victim-survivor or cause them to be fearful while diminishing any sense of autonomy. It can encompass many forms, including economic, social and psychological abuse. Due to deeply rooted notions of power asymmetries that are reinforced by gender stereotypes there is no easy solution to family violence itself. However, integrated services with lawyers and social workers offer part of the solution when responding to the effects of coercive control. While Australian policy recognises the importance of integrated family violence services, there is consistently a lack of funding by the government to implement strong, integrated services. Current funding for the establishment of integrated services does not match the community need, which inhibits the reach of integrated practice for victim-survivors of coercive control. Long-term and increased funding is urgently required to address the effects of coercive control on victim-survivors through the develop and maintenance of integrated practice for the improvement of family violence services.
Author Biography
Becky Strauss is an undergraduate law student at Monash University with a particular interest in the social and legal implications of family violence. During her degree, she has completed a range of clinical placements in which she has provided support and advice to family law clients dealing with the consequences of family violence and interrelated legal problems. Contact Becky via LinkedIn.
This post has been written by Judith Rafferty, adapted from her Open Educational Resource (OER) Neuroscience, psychology and conflict management (2024), licensed under a Creative Commons Attribution NonCommercial 4.0 Licence by James Cook University.
Neuroscience, psychology and conflict management
In a previous post, I discussed the value of neuroscience and psychology knowledge to inform conflict management theory and practice. In this post, I discuss specific learnings gained from cognitive psychology, focusing on memory and the phenomenon of priming.
Memory in conflict management
Conflict management practitioners – these include mediators, facilitators, coaches and negotiators – and negotiating parties often need to handle complex issues and juggle multiple pieces of information during a conflict management process. For example, conflict parties frequently must remember what they said, thought and did in the past, and process new information for future decision-making. These tasks require all types of the human memory, including:
sensory memory
short-term memory
long-term memory
In this post, I focus on long-term memory and the phenomenon of priming, due to its applicability to conflict management. Before discussing priming in more detail, let’s have a brief look at what the long-term memory comprises.
Long-term memory
The long-term memory can be categorised as explicit and implicit memory.
The explicit memory, also known as declarative memory, refers to the type of memory that a person is consciously aware of. “You know that you know the information” (Gluck et al., 2020, p. 280). It comprises both memory of facts and general knowledge (semantic memory) and memory of personal experiences (episodic memory).
The implicit memory, by contrast, refers to memory that operates without the learner being consciously aware of it. Implicit memory is formed by:
Priming is a psychological phenomenon where exposure to a stimulus influences how we respond to subsequent stimuli, and how we perceive and interpret new information. As defined by Gluck et al. (2020), priming is
“a phenomenon in which prior exposure to a stimulus can improve the ability to recognize that stimulus later” (p. 88).
Similarly, Kassin et al. (2020) describe priming as
“the tendency for frequently or recently used concepts to come to mind easily and influence the way we interpret new information” (p. 118).
In essence, priming makes certain concepts or ideas feel familiar, even if we aren’t consciously aware of the exposure.
For example, research has shown that if we’re subtly exposed to specific words or images, we may later be more likely to recognise or choose something related to those stimuli (Gluck et al., 2020; Goldstein, 2019; Kassin et al., 2020).
The impact of priming on social behaviour
Exposure to a stimulus can also lead people to behave in a particular way without their awareness, especially when the stimulus was presented subconsciously. The impact of priming on social behaviour has been demonstrated in research, including in a series of provocative (and debated) experiments by Bargh, Chen and Burrows (1996). In this study, participants were primed with different words that were thought to influence their behaviour.
For example, in experiment 1, participants were primed to activate either the constructs “rudeness” or “politeness” and were then placed in a situation where they had to either wait or interrupt the experimenter to seek some information. The research found that participants whose concept of rudeness was primed interrupted their experimenter more quickly and frequently than did participants primed with polite-related stimuli.
In experiment 2, participants were primed with words that activated elderly stereotypes. The study found that participants for whom an elderly stereotype was primed walked more slowly down the hallway when leaving the experiment than did control participants, consistent with the content of that stereotype.
How does priming relate to conflict management?
The phenomenon of priming can both help understand what creates conflict and how we can support parties in conflict management/ resolution. Most of the publications discussed in this post focus on mediation, but many of the findings could also find application in other conflict management process such as group facilitations and one-on-one conflict management coaching.
Priming in mediation
Daniel Weitz, in his article The brains behind mediation: Reflections on neuroscience, conflict resolution and decision-making discusses how priming can influence the mediation process. He suggests that using words like “listen to,” “hearing each other,” “dialogue,” “options,” and “future” in their opening statements, mediators may be able to “prime” parties for collaboration rather than competition (p. 478).
Similarly, Hoffman and Wolman in their article The psychology of mediation note that the mediator’s initial description of the mediation process is the most powerful form of priming in mediation. Based on priming studies (which the authors mention but don’t specifically list), they suggest that mediators may wish to include expressions such as “being ‘flexible’ and ‘open-minded,’ the goal of reaching ‘a fair and reasonable resolution,’ and the need for ‘creativity’ and ‘thinking outside the box’” in their opening statements (p. 3).
Beyond the mediator’s opening statement, Sourdin and Hioe, in their article Mediation and psychological priming, discuss other opportunities for priming during the mediation process. They suggest that mediators can “strategically moderate the environment” to foster a positive atmosphere and encourage successful outcomes (p. 79). Such moderation can be achieved, for example, by carefully selecting and setting up the physical location of the mediation, including considerations of room colour, temperature, and the provision of food and water.
Amanda Carruthers, in her article on The impact of psychological priming in the context of commercial law mediation, explores factors such as the physical appearance of the mediator and legal representatives, the choice of venue, language use, and the influence of stress and references to money. She concludes that mediators and legal practitioners should avoid overt priming cues related to strength, power, and money to improve the positions of both parties in a commercial mediation.
How priming can affect perception
People are particularly likely to rely on the priming effect when new information is ambiguous. This is because we rely more on top-down processing than bottom-up processing when we are confronted with an ambiguous stimulus.
Bottom-up processing begins with our receptors, which take in sensory information and then send signals to our brain. Our brain processes these signals and constructs a perception based on the signals. When our perception depends on more than the stimulation of our receptors – and this is frequently the case when information is ambiguous – we speak about top-down processing. During top-down processing, we interpret incoming information according to our prior experiences and knowledge. This process is frequently referred to as concept or schema-driven. As we learned earlier, when we have been primed, frequently or recently used concepts come to mind more easily and influence the way we interpret new information.
In her blog post Priming in psychology, Kendra Cherry discusses how the priming effect influences what people hear when confronted with ambiguous auditory information, referring to the 2018 Yanny/Laurel viral phenomenon.
As an example for visual perception, Lisa Feldman Barrett explains in her book How Emotions are made how priming can significantly influence our visual perception of others’ emotions. She emphasises that facial expressions are often much more ambiguous than many popular readings suggest, which would make us particularly susceptible to the effects of priming. For instance, if we’re told a person in a photo is screaming in anger, we are more likely to see anger in their expression, even if this is inaccurate.
The person might actually be celebrating something positive, such as winning an important tennis match, potentially involving a whole mix of (positive) emotions, but the priming narrows our interpretation. With contextual information provided, we are likely to interpret the facial configuration more accurately than when taken out of context.
How does the priming effect and perception relate to conflict management?
A mediator might misinterpret facial configurations of parties in a mediation, perceiving emotions like anger, based on preconceived ideas of how people may “show” that emotion on their face, or influenced by comments made by the other mediation party.
Knowing about priming can sensitise us to potential misinterpretations of emotions and encourages us to use multiple cues and information to perceive parties’ emotions more accurately. For a more detailed discussion on the cues that we can use to more accurately perceive others’ emotions, see Chapter 3, Topic 3.4 in Neuroscience, psychology and conflict management. These cues and the topic of emotions in conflict is also discussed in much more detail in Sam Hardy’s course on Working with Emotions in Conflict.
Priming to improve inter-group relationships
Recent research by Capozza, Falvo and Bernardo explored whether activating a sense of attachment security through priming can reduce the tendency to dehumanise “outgroups”—groups with which individuals don’t feel a connection. They conducted two studies:
The first study primed attachment security by showing participants images of relationships with attachment figures and then measured how they humanised an outgroup, in this case, the homeless.
The second study had participants recall a warm, safe interaction to activate a sense of interpersonal security and then measured how they humanised another outgroup, the Roma.
Both studies found that attachment security led to greater humanization of outgroups, with the second study showing that increased empathy played a key role in this effect. These findings suggest that fostering a sense of security can enhance intergroup relations, which has implications for intergroup conflicts. The successful use of priming to boost feelings of security highlights the importance of applying cognitive psychology to conflict management.
The calming effect
Capozza, Falvo and Bernardo, in their article, discuss several further positive effects of security priming, many of which are relevant to conflict and conflict management/resolution. For example, they emphasise the calming effect of security priming, noting that “even a momentary sense of security can shift the attention from one’s needs to others’ needs…” (p.3).
Conflict management processes often aim to help individuals in conflict consider the needs and concerns of others. Understanding the calming effect of security priming and its ability to foster perspective-taking may provide conflict management practitioners with additional strategies to support their clients. Such strategies could consider aspects like:
The choice of physical setting for a mediation or coaching session (or other conflict management process).
The language used by the practitioner, such as during the mediator’s opening statement.
The types of questions the practitioner asks throughout the process.
Remaining questions and considerations
This post explored the priming effect and its relevance to conflict management, particularly in understanding why conflicts arise and how practitioners can support parties to manage or resolve them. Research suggests that there are multiple opportunities to prime parties during a conflict management process, such as mediation, as discussed in the sources mentioned throughout this blog. However, many questions remain, such as how much control a practitioner truly has over priming in a conflict management process Additionally, practitioners should consider the ethical implications, including the potential for manipulation, when applying priming techniques to their practice.
A full reference list of the readings referred to in this post that have not been linked in the text can be found here.
Author Biography
Judith Rafferty is an Adjunct Senior Research Fellow at the Cairns Institute, JCU, and a Senior Trainer at the Conflict Management Academy. She integrates over 12 years of experience as a conflict management practitioner, researcher, and educator/trainer. She holds a PhD in Conflict Resolution, a Master of Conflict and Dispute Resolution, a Graduate Business Administration Diploma, and a Graduate Certificate in Psychology. As a Senior Lecturer and former Director of the postgraduate Conflict Management and Resolution program at James Cook University, Judith played a key role in developing curriculum and training resources that assist professionals in navigating complex conflict situations. Judith can be contacted on: Email: judith@conflictmanagementacademy.com LinkedIn: https://www.linkedin.com/in/judith-rafferty-770a329b
This post has been written by Judith Rafferty, adapted from her Open Educational Resource (OER) Neuroscience, psychology and conflict management (2024), licensed under a Creative Commons Attribution NonCommercial 4.0 Licence by James Cook University.
Conflict Management: A Multidisciplinary Field
While there are designated conflict management scholars and practitioners, many ideas that inform both theory and practice come from outside the field. Individuals involved in conflict management often come from a broad spectrum of disciplines, particularly in the social sciences, such as psychology, sociology, history, geography, communication studies, political science, international relations, organizational behavior, and anthropology.
Contributions to conflict management are also made from the formal sciences like mathematics, physics, biology, and neuroscience. By exploring some of these disciplines in more detail, we can gain valuable perspectives that deepen our understanding of conflict formation, escalation, management, and resolution. Psychology and neuroscience offer some especially useful perspectives and are the focus of this post.
Similarly, the Australian Psychological Society (APS) highlights the contributions psychologists make to understanding and managing conflict. According to the APS, psychology provides key insights into the psychological factors that underpin social conflict and aims to identify effective ways to foster positive relationships and productive outcomes. These approaches include strategies for resolving conflicts and governance models that prioritise cooperation over coercion (APS, 2023).
Understanding Psychology: A Foundation for Conflict Management
Psychology focuses on the study of mental processes and behaviour (and their relationship) (Zimbardo, Johnson, & McCann, 2009). The field of psychology comprises multiple sub-groups, or branches of psychology (Mullin, n.d.). Some of these branches are especially relevant to conflict management, including personality psychology, cognitive psychology, and social psychology. So, what do these branches focus on and how are they relevant to conflict management?
Cognitive psychology
Most generally, cognitive psychology is concerned with the study of mental processes such as thinking, learning, remembering, perception, information processing, language, problem-solving, decision-making, and reasoning. Cognitive psychology also considers people’s emotions and the impact of emotions on cognition. All cognitive processes mentioned earlier, as well as the effect of emotions on them, are highly relevant to the experience and management of conflict. For example, multiple mental processes and emotions are involved when people try to resolve conflicts, e.g. they must retrieve information about past conflict events and make decisions as to how to move forward. At the same time, mental processes and emotions are likely to have contributed to and have been affected by the conflict in the first place. For example, many conflicts arise because people have perceived events differently. More information about how cognitive psychology may relate to conflict management can be found here.
Figure 2.2.1. Six or Nine? Image generated with Adobe Firefly; Rafferty, J. (2024). Neuroscience, psychology, and conflict management. James Cook University. https://doi.org/10.25120/k4vd-86×5
Personality Psychology
Personality psychology is the scientific study of the whole person (McAdams, 2009). It focuses on human individuality and may address questions like:
Why does Paul act more violently than Peter in the same situation?
Why do Tracey and Sam have such different ways of communicating and managing conflict?
Personality psychology is distinct from other branches of psychology by focusing more on the person than on the situation. This is not to say though, that personality psychology neglects the situation. But rather than exploring how most people would act under certain circumstances, personality psychology tries to explain or predict how a specific type of person would most react in each situation. Conflict management practitioners and theorists have noted the effects that individual differences in personality may have on the formation and escalation of conflict, as well as on conflict resolution processes and their outcomes (Sandy et al., 2014). More information on how personality psychology may inform conflict management can be found here.
Social psychology
Social psychology seeks to answer questions like:
Why do people act differently when they are in a group compared to when they are on their own?
Why do people behave differently among their co-workers compared to when they are with their friends and family?
Why do people hold prejudice and stereotypes against certain groups and how may these affect their behaviours?
How can social cohesion best be strengthened to prevent social division and conflict?
Social psychology may be defined as “the scientific study of how individuals think, feel, and behave in a social context” (Kassin et al., 2020, p. 4). All three areas, thinking, feeling, and behaving are involved and affected during the emergence, escalation, management, and resolution of conflicts. Several notable books in the field have focused on the applications of social psychology for conflict theory and practice, such as:
A more detailed discussion of the application of social psychology for conflict management can be accessed here.
Neuroscience and Conflict: Bridging the Gap
Beyond psychology, the field of conflict management is increasingly looking to neuroscience for insights into why conflicts occur and how they can be effectively managed or resolved. Many conflict management scholars and practitioners recognise that people’s brains and bodies are significantly involved in facilitating societal conflict.
For instance, Mary Fitzduff (2021) notes in her book Our brains at war that recent advancements in genetics, brain science, and hormonal research suggest that many personality characteristics are rooted in the brain’s biology. By offering “new and more sophisticated and nuanced insights into the way that people actually think”, neuroscience makes a critical contribution to the field of conflict management (Burgess, 2022). As another example, Bruneau (2015), in her book chapter Putting neuroscience to work for peace, emphasises the value of directly examining neural activity to transform psychology-based conflict theories into mechanistic understandings (p. 143).
Knowledge from neuroscience can also help inform and evaluate the purpose, potential, design and principles of justice and conflict resolution processes, as well as the role and skills of conflict practitioners. For instance, findings from neuroscience can increase our understanding of aggression in people, which again may have implications for processes like restorative justice, as discussed in a Ted Talk by Dan Reisel. Other examples of how neuroscience can inform conflict management theory and practice, as well as links to related readings, can be found here.
Neuroscience Meets Psychology: A Synergy for Conflict Management
Neuroscience is the scientific study of the nervous system and an interdisciplinary field that integrates biology, chemistry, psychology, and more. Of particular interest for conflict management theory and practice are the intersections between neuroscience and psychology. It may help to think of neuroscience as dealing with the ‘physical’ (brain) and psychology dealing with the ‘abstract’ (mind).
The functioning of our brain, hormones and neurotransmitters significantly affects our behaviours, cognitions, and social experiences. That is why the links between neuroscience and different areas of psychology are increasingly being recognised, studied, and taught. The growing recognition of these links has led to the emergence of new interdisciplinary fields, such as social neuroscience and cognitive neuroscience (Ito & Kubota, 2022). Both are highly relevant to conflict management theory and practice.
Knowledge from social neuroscience, for instance, can increase our understanding of intergroup and social conflict, including the sources and factors that create, perpetuate, contribute to, and escalate intergroup conflict. This knowledge may again inform the planning and design of conflict intervention initiatives to help manage intergroup and social conflict. You can find further readings about social neuroscience and intergroup conflict in the previously mentioned Peace and Conflict: Journal of Peace Psychology as well as other Peace Psychology publications, including the newsletter The Peace Psychologist and the blog Dialogues with Peace and Conflict.
Conclusion
The integration of psychology and its branches, as well as of neuroscience offers critical insights into the questions why conflict occurs, how it develops and how it may be managed. By exploring the connections between the human mind, brain, and behavior, conflict management can be more effective and nuanced. Many of these connections are discussed in more detail in Judith’s (2024) eBook Neuroscience, psychology and conflict management, from which this post has been adapted. A course on Neuroscience, Psychology and Conflict Management will also be developed next year to be offered through the Conflict Management Academy.
A full reference list of the readings referred to in this post can be found here.
Author Biography
Judith Rafferty is an Adjunct Senior Research Fellow at the Cairns Institute, JCU, and a Senior Trainer at the Conflict Management Academy. She integrates over 12 years of experience as a conflict management practitioner, researcher, and educator/trainer. She holds a PhD in Conflict Resolution, a Master of Conflict and Dispute Resolution, a Graduate Business Administration Diploma, and a Graduate Certificate in Psychology. As a Senior Lecturer and former Director of the postgraduate Conflict Management and Resolution program at James Cook University, Judith played a key role in developing curriculum and training resources that assist professionals in navigating complex conflict situations. Judith can be contacted on: Email: judith@conflictmanagementacademy.com LinkedIn: https://www.linkedin.com/in/judith-rafferty-770a329b
Conspiracy theories and disinformation impact upon legal practice, and have the potential to cause conflict between parties who have different views on legal rights and personal interests. The term “disinformation” is appropriate to describe conspiracy theories because the actors who amplify conspiracy theories often deploy false information strategically, and with an intent to disrupt legal proceedings or conflict resolution processes. This blog will highlight insights into the nature and impact of Sovereign Citizen narratives and the importance of research informed approaches for legal and conflict resolution practitioners to engage with individuals holding such narratives.
The Sovereign Citizen Superconspiracy
The Sovereign Citizen conspiracy theory holds that government and legal institutions are illegitimate, and that an individual can declare themself sovereign (Berger, 2016). Conspiracy theories are often adopted and adapted, or ‘localised’ for best fit. In defining Sovereign Citizen conspiracy beliefs Taplin, Holland & Billing (2023) suggest the term ‘superconspiracy’ is helpful as a term that describes how several conspiracies or beliefs can be interrelated into a metanarrative. When individuals share or repeat certain conspiracy theory beliefs, those beliefs can form an individualised narrative that may be adopted into an individual’s identity (Taplin & Holland, 2023). In a recent article published in TheJournal of Information Warfare, Taplin and Holland (2023) suggest that,
In order to be considered in research, Sovereign Citizen rhetoric must be defined and distinguished as a discrete social phenomenon. Definitional clarity in relation to “Sovereign Citizens” as a group of people is difficult or impossible to achieve because many people influenced by Sovereign Citizen rhetoric do not subscribe to a consistent set of related beliefs (Vargen & Challacombe 2023). Nor do they always self-identify as holding something in common with others influenced by the same rhetoric. Because they do not constitute a definable group, Sovereign Citizen rhetoric (rather than Sovereign Citizens) is used here. ‘Rhetoric’ is preferred to other commonly used terms such as ‘movement’ or ideology because the disinformation amplified in Sovereign Citizen rhetoric is designed to make an argument— specifically, to delegitimise government and laws.
The question of when and how to counter the influence of Sovereign Citizen narratives is a vexed issue in Australia, where the right to freedom of expression and the right to protest are valued elements of the democratic system. Taplin and Holland (2023) suggest that this right to freedom of expression can be leveraged by individuals or groups and is often used to justify the amplification of Sovereign Citizen disinformation that is spread between individuals and groups (Campion, Ferrill & Milligan, 2021). Research that will assist policy makers, legal and conflict resolution practitioners, and security agencies in articulating the harms caused by Sovereign Citizen rhetoric and to inform the design of effective and strategic policy responses is therefore extremely important.
Sovereign Citizen rhetoric in Australia can be traced to well-documented Sovereign Citizen narratives in the United States (Taplin, Holland & Billing 2023). In the United States, Sovereign Citizen rhetoric emerged from problematic Christian Identity, Patriot, and anti-tax movements and gained momentum in the 1970s (Hodge 2019).
Taplin, Holland & Billings (2023) suggest that Sovereign Citizen rhetoric is diverse, but identifiable by key themes and tropes, including;
that government, laws, and institutions of national and global governance are illegitimate;
that government and courts are in fact controlled by a group of conspirators who are hostile to the interests and freedom of all other people;
that these conspirators take action to trick people into relinquishing their freedom by coercing them to comply with illegitimate laws or regulations; and,
that a person can escape this control by doing or saying certain things, including acting illegally.
Risks of the spread of Sovereign Citizen rhetoric
Sovereign Citizen rhetoric has the potential to be weaponised because it triggers an audience based on identity and then narrates an imminent threat to that identity. Sovereign Citizen rhetoric targets Western audiences’ narratives of hyper-individualised personal identity. Central to Sovereign Citizen rhetoric is the primacy of individual freedom as a basic right. Individual freedom is seen as a supreme right. For this reason, people influenced by Sovereign Citizen rhetoric may hold beliefs surrounding a ‘personalised sovereignty’. From the perspective of a Sovereign Citizen, the regulation of his or her behavior by laws of the State (for example, a requirement to pay taxes), constitutes a crime against him or her personally (Taplin and Holland, 2023). In this way Sovereign Citizen rhetoric manipulates meaning-making narratives by conflating, problematising, and manipulating concepts of personal autonomy, sovereignty, and justice. In this newly narrated reality, the threat becomes any regulation or control, by laws or government, that represses “personal sovereignty”.
The risk to vulnerable audiences is that Sovereign Citizen narratives, which may be spread through social media and popular platforms of information sharing within target audiences, can create problematic ingroup and outgroup divides (Taplin, 2023). Sovereign Citizen rhetoric has the potential to influence individual behaviour by manipulating meaning-making and suggesting law abiding citizens have an uniformed view of the world and legal actions of the State are personal affronts to individual freedom.
What is the best way to engage with individuals who believe in conspiracy theories?
Further research is required for how best to engage with Sovereign Citizen rhetoric, with particular attention paid to the safety of all participants in the conversation and with an understanding of the enduring nature of conflicts to an individual’s core identity. Research has been conducted into the best ways to rebut science denialism (Rutjens & Veckalov, 2022; Schmid & Betsch, 2019). Testing conversational approaches and communication responses to other conspiracy theory contexts is an important future focus. There is increasing attention in the media of interactions between self-declared Sovereign Citizens and members of the Australian Police Force. Subsequent legal proceedings and interactions between Sovereign Citizens and the court system has highlighted numerous challenges in how Sovereign Citizens interact with the court and accept (or not) legal outcomes (see for example State of New South Wales v Kiskonen (Preliminary) [2021] NSWSC 915).
Grant Lester (2005), Consultant Psychiatrist at the Victorian Institute of Forensic Mental Health, described the pathology of vexatious litigants and suggested guidelines for judicial officers to manage difficult complainants (summarised and further discussed in a paper deliver to the Queensland Magistrates’ State Conference in 2022 by Judge Glen Cash), which could be applied to Sovereign Citizens:
‘First do no harm.’ The aim should becontainment of the issues. This would entail not trying to change a Sovereign Citizen’s mind about ‘the system’ (including about the injustice of the legal system), but minimizing harm to proceedings by redirecting focus to the matter at hand.
Be prepared Sovereign Citizen litigants are typically volatile, feel victimised, and seek vindication. Be prepared by providing information about Sovereign Citizen narratives and typical modus operandi.
Adherence to rules and procedures will assist in the aim of containment.
Ensure formality. This might differ in practitioner’s preferences for running conflict resolution processes.
Be fair. Litigants may appear hyper-competent, but they are in truth overwhelmed by the court process. Cash J’s point reminds us to maintain empathy and patience in explaining process and procedure. This becomes particularly important when confronted with uncomfortable worldmaking narratives that position the practitioner as either villainous or a victim. Maintaining focus on the matter at hand is imperative
Maintain focus. Keep the discussion on track.
Silence is golden. Silence can be the best and only way to allow a person to speak their piece in a process before moving onto a more relevant topic. This approach has benefits but also risks. At times allowing a person to speak in full also provides other attendees a better opportunity to assess the broader narrative and all its implications. But silence also may have costs and risks, where a Sovereign Citizen confuses other participants (particularly where they appear “hyper-competent”). Determining when and how to best to use silence can only be made in-situ, and judgement of appropriate interventions improves with practice. Responding professionally and adhering to established procedures assists in building trust in process, organizations, and staff.
Set boundaries and time limits. As practitioners we cannot always “control the limits” as suggested by Cash, but we can set parameters while facilitating processes and discussions. When discussion gets off-track we can confidently ask process participants to remain focused on the matter at hand.
Keep a thick skin and do not personalise the encounter. This one may be difficult in some circumstances – in one case in Canada a Sovereign Citizen threatened to behead the Judge in accordance with her understanding of the law under the MAGNA-CARTA! Cash’s advice not to allow an encounter to become personalized is key. Personalizing accusations of villainy is a common ‘tactic’ of Sovereign Citizens, who may accuse practitioners of all manner of terrible things. Conflict resolution and legal practitioners deserve a safe workplace, and there is no argument for normalization or acceptance of abusive behaviour. That said, improving one’s understanding of the Sovereign Citizen worldmaking narrative allows practitioners to understand the context of this behaviour, and might inform a sophisticated response that avoids further personalisation.
These suggestions could be further tested into frameworks for officers of the State and individuals who will potentially engage with Sovereign Citizens. Engagement with Sovereign Citizen rhetoric calls for education on citizen responsibilities and understanding that you cannot ‘opt out’ of the legal system in which you exist. However, the problematic views of many self-identified Sovereign Citizens that has led some to engage in behaviour that undermines the democratic and legal foundations of our country are clearly a rising concern. This is a topical area ripe for further research.
The International Academy of Mediators (IAM) is soliciting applications from academics interested in serving as the next IAM Scholar-in-Residence (SIR). IAM is an organization of peer-selected preeminent commercial mediators from around the globe. The mission of IAM is to foster the highest standards of integrity and competence in the mediation of commercial disputes (www.iamed.org). The purpose of the SIR Program is to help bridge the gap between the theory and practice of mediation. Interaction between the scholar-in-residence and IAM members can help practitioners learn more about prevailing theories and studies, while exposing academics to the environments and challenges facing professionals who make mediation their day-to-day business. The SIR program provides an opportunity to test current practice models while subjecting emerging academic theories to the pragmatic rigor of every-day practice. IAM is now soliciting applications for its sixth Scholar-in-Residence. The IAM’s prior scholars-in residence have been:
Professor Hal Abramson (2014 – 2016)
Professors Dwight Golann and Lela Love (2017 – 2020); and
Professors Doug Frenkel and Jim Stark (2021 – 2024)
Professor Hal Abramson in particular, helped IAM design and formalize this innovative opportunity for academics to collaborate with many of the best known and experienced mediators from different regions of the world. Distinguished scholars following him have brought engaging and provocative ideas to the front for this cohort of prominent mediators.
Timing The Scholar-in-Residence tenure is two years. The start of the upcoming term is flexible, ideally beginning between October and December, 2024.
Compensation The SIR program does not offer any compensation although fees are waived for participating in IAM conferences which take place once a year.
Application and Deadline Any interested academic should submit a letter-application to the IAM SIR Committee Chair, Jennifer Egsgard at jegsgard@egsgardmedation.com before September 30, 2024. The IAM SIR Committee will review applications and announce the new IAM SIR before end of the year.
Letter/Application should include:
Name, email address, and phone number;
Brief narrative of why interested in becoming the IAM’s scholar-in-residence;
Description of possible research/publication project that would be informed by access to the IAM membership (one to two paragraphs); and
Academic resume should be attached, emphasizing experience and scholarship.
When selecting the SIR, the IAM SIR Committee will consider the following factors among others:
History/length of academic experience and contributions;
Past research and publication relating to mediation and ADR processes;
Mediation experience, which is not required but is considered an asset.
Possible Scope of Scholar-in-Residence Activities – Further Detail Illustrations of the sorts of activities in which the SIR might engage are outlined in this section. The opportunities can be expanded as the SIR program develops and evolves under the oversight of the SIR Committee.
a. Contribute to IAM Webinars and Conferences The SIR can assist in designing workshops for IAM webinars and conferences. This might include programs based on the expertise that the person brings to the position, or hosting an academic speaker on a subject that might be of interest to the membership. IAM Conferences are held once a year and have historically been cutting edge, with top tier presenters and panelists. The next IAM Conferences are currently scheduled for May 27 – 30, 2025 in Queensland, Australia, and end of May 2026 near Boston, USA.
The IAM also hosts regular webinars for its global membership and the SIR is encouraged to propose programs for these webinars.
b. Contribute to the IAM’s List Serv Discussion Group The SIR is encouraged to participate in the IAM confidential List Serv by posing questions of theory, ethics, and strategy and commenting on threads. The threads provide a lively exchange of ideas. However, no member content may be distributed or republished by the SIR without express permission.
c. Engage in Scholarship that Draws on the Expertise of the Membership The SIR should prepare an article or other work that will be informed by discussions or collaboration with members of IAM. The SIR also is available to help members prepare articles and speeches by serving as a sounding board and offering advice on the timeliness of topics and options for publication, providing the possibility for significant mutual enrichment between the IAM and the SIR.
On the 6th of June 2024, I attended a panellist event held at the Sydney Jewish Museum where the topic of concern was ‘Nazis in Australia: When History and the Law Collide’. Discussion surrounded the prosecutions brought against four suspected Nazi war criminals for crimes allegedly committed during World War II.
The panel consisted of Hon Greg James AM KC, Graham Blewitt AM, and historian Professor Konrad Kwiet. However, at the time of the prosecutions (during the late 80’s until the early 90’s) their involvement was as Chief Prosecutor, Head of the Special Investigations Unit, and expert historian called to the stand during proceedings.
Of the four cases launched against those suspected war criminals, none were successful.
During questioning, a guest in the crowd asked the panel about whether they saw their efforts as a failure–since no conviction was found. Messrs James and Blewitt emphasised that although, to some, this outcome might be regarded as a failure, the purpose of their efforts and involvement were not merely to obtain a conviction, but also to investigate those, and other, suspected war criminals living in Australia.
Mr Blewitt further explained that the Special Investigations Unit within the Attorney-General’s Department saw to investigate over 800 separate cases, with some suspects being renounced by virtue of those investigations.
It seemed as though few were dissatisfied with this response as I heard murmuring within the crowd. I imagine this kind of reaction arose from certain societal expectations of the criminal justice system not being met; and perhaps, it follows that the level of confidence in that system diminishes.
An established public confidence in a system or institution, whether it be the criminal justice system or otherwise, underpins its effective functioning–an idea that academics, such as Mack et al, continually raise. Notwithstanding its importance, a recent survey by the NSW Bureau of Crime Statistics and Research reported that the public were not overly confident (55%) that the criminal justice system brought people to justice.
Perhaps it is as former Chief Justice Gleeson put it: “Much of what we call public confidence consists of taking things for granted”. And perhaps, this is especially true for public confidence in the criminal justice system, where it is, taking that panellist event as an example, the overwhelming complexity of the legal system is what has been ‘taken for granted’.
To understand and navigate the legal system is complex to say the least. Even with the study and training required to become a lawyer and the further experience gained from one’s practise, it remains a life-long journey for a lawyer to continually add and update their knowledge as well as consider the deeper components which underpin the effective functioning of that legal system.
If this may be the case for us lawyers, how might non-experts struggle to comprehend and navigate the legal system, not to mention, that deeper level of understanding?
It appears that society is more generally outcome focused. I suggest this because, as per the Bureau of Crime Statistics and Research 2020 report, the majority (66%) expressed that criminal sentences were ‘too lenient’ and (56%) that the criminal justice system did not meet the needs of victims. That report acknowledges that levels of confidence in the criminal justice system have not improved over the decade, and by comparison with earlier snapshot reports published by the NSW Sentencing Council, this indeed appears to be the case.
In an effort for us lawyers to ensure we are doing the most we can to uphold public confidence in the legal system, moreover the criminal justice system, we must do what we can to positively transform societal expectations.
Taking us now back to the beginning when that guest asked their question, the response provided by Messrs James and Blewitt was, in my mind, a perfect one. Notwithstanding the apparent dissatisfaction by some guests in that crowd, it was a response equipped with information to evoke a positive transformation of one’s expectations of the criminal justice system. As lawyers, we should aim to do the same in our communication with others, that is, to respond in a way which evokes positive transformation by the listener. By doing so, we work towards bettering societal expectations of the legal system–one person at a time.
Traditional mediation theories are incomplete at best and misleading at worst, providing mystifying descriptions of what mediators actually do. Those theories focus on only a few behaviours during mediation sessions and don’t recognise the many variations of mediators, parties, and cases. This leaves many mediators to ignore these models because they are either confusing or unhelpful.
John Lande uses Real Practice Systems (RPS) theory in his article to identify 10 things that mediators can do to include within their skillset and improve their own practice. This article is adapted from his previous article ‘Helping You Do the Best Mediation You Can‘ published by the University of Missouri School of Law.
Although Lande’s article is directed to practicing mediators, he refers to additional resources in this Indisputably blog which can be used by teachers and trainer in their work, including to prepare and further develop student’s skills in negotiation, mediation, and advocacy.
These 10 things are summarised below, but it is highly encouraged that you to read John Lande’s published article for a complete and comprehensive explanation.
1. Recognise That You Have a Complex Practice System
If you mediate regularly, you have a complex mediation practice system. Mediation is not “just” what you do during mediation sessions when all the participants have convened, you also have unconscious routine procedures and conscious strategies for dealing with recurring challenges that you use before, during, and after mediation sessions.
It is important that you recognise the basis for your system and that have you developed categories of cases, parties, and behaviour patterns that led you to develop your system.
2. Understand Real Practice System Theory
In this 20-minute video, John Lande explains Real Practice Theory (‘RPS’) and how can improve your mediation practice system. It is applicable in every type of case and at every stage of practice, from novice to mid-career to senior mediator.
3. See Illustrations of Practice Systems in Experienced Mediators
Read John Lande’s article ‘Ten Real Mediation Systems‘ which illustrates the account of ten experienced mediators who identify factors affecting their mediation practice systems and includes links to a detailed account of their systems.
4. Complete a Self-Assessment Questionnaire to Get an Overall Understanding of Your Practice System
This 18-question self-assessment worksheet is designed to help you recognise basic elements of your practice system, prompting you to reflect on your background, motivations, mediation practice, common patterns in your cases, and your procedures.
5. Understand and Use Real Practice System Menu of Mediation Checklists
Read John Lande’s article ‘Real Practice Systems Project Menu of Mediation Checklists‘ which is a detailed menu of checklists for mediators. It includes mediators’ actions before, during, and after mediation sessions as well as items about information to provide on websites, compliance with ethical requirements, and reflection and improvement of mediation techniques.
By using the above Real Practice Systems (RPS) checklists, you can consciously develop your own general checklist based on the typical cases and parties in your practice, the procedures you find useful. This checklist is quite versatile, enabling you to choose items which can be modified to suit your needs. But the RPS checklists cannot be exhaustive, so you should add any other items that are relevant to your practice and remove any which are not.
A mediators’ checklists necessarily vary based on many factors including the subject matter, complexity, typical legal issues, participation of attorneys, and amount of time before mediation sessions, among others. As a result, some mediators’ general checklists are longer and more complex than others.
7. Customise Your General Mediation Checklist for Each Case
Before each mediation session, review your general mediation checklist and consider any modifications you might make based on what you know about that particular case you are about to mediate. This can ensure that you are better prepared and equipped with a checklist that will be most useful to you during that mediation.
8. Read Articles in the Real Practice System Annotated Bibliography
To develop a deeper understanding of practice systems generally as well as your own practice system, you should read Lande’s ‘Real Practice Systems Project Annotated Bibliography‘ which organises several publications concerning various topics, including:
Overview of Real Practice System theory
Critiques of traditional dispute resolution theories
Promotion of party decision-making
Litigation interest and risk assessment
Preparation for mediation sessions
Technology systems
9. Participate in an Ongoing Educational Practice Group
It is important to learn from each other as well as give and receive feedback to and from other mediators. This can be done by participating in practice groups.
Although practice groups vary in size, Lande suggests that between 5 and 8 people is optimal. A fixed membership with a commitment to participate for an extended period of time (such as at least 6 to 12 months) is beneficial to allow members to feel comfortable sharing sensitive experiences with each other.
Lande also provides numerous considerations before commencing or joining a practice group, including similarities or differences between members, the type of activities completed, and the use of reflective practice techniques.
10. Share Your Experiences
Sharing your experiences with others is a valuable way to learn. This might include giving talks, participating in trainings, teaching courses, or writing articles. These activities require reflection, which can produce new insights, and interactions with people can stimulate thinking and further reflection on those experiences.
Author Biography
John Lande, JD, PhD is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution. He earned his JD from Hastings College of Law and his PhD in sociology from the University of Wisconsin-Madison. Since 1980, John has practiced law and mediation in California, and since the 1990’s, he has directed a child protection mediation clinic.
The American Bar Association has published John’s books, including ‘Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money‘ and ‘Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions‘ (co-authored with Michaela Keet and Heather Heavin).
John frequently writes for the Indisputably blog and has received many awards for his scholarship, most recently the American Bar Association Section of Dispute Resolution’s award for outstanding scholarly work. You can download articles on a wide range of dispute resolution topics from his website.
The Australian Dispute Resolution Research Network 