Tag Archives: ADR

RPS Coach is Biased – And Proud of It

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

We all know that it’s bad to be biased, right?

Wrong.  That assumption is its own bad bias.

Biases are inevitable – in humans and bots alike.

Some biases are harmful.  Others are helpful.  Many are neutral.

But bias itself is unavoidable.

So bias isn’t a problem in itself.  Pretending otherwise is.

This post describes the biases in Real Practice Systems (RPS) Theory and how the artificial intelligence tool RPS Coach is biased by design.

As you might guess, I think they’re good biases – conscious, clear, constructive, and explicit.  Knowing these biases, users can decide whether to use Coach or a tool with different biases.

This post describes Coach’s biases and invites you to give it a try.

What the Heck is a Bias, Anyway?

“Bias” has a negative connotation, often implying a thoughtless or even malicious mindset.  Think of cognitive biases or those involving demographic groups.

Bias is an especially dirty word in dispute resolution, where neutrals are expected to be scrupulously unbiased in attitudes about particular parties and in neutrals’ actions.

But we could reframe “biases” as values, preferences, tendencies, or mental habits, which aren’t inherently bad.  Indeed, they help us simplify complex choices, act efficiently, and maintain a coherent sense of self.  If we didn’t have any biases, we’d never create a syllabus, let alone pick a restaurant for lunch.

Some biases are even admirable – like favoring people who are trustworthy, empathetic, and generous.  The dispute resolution movement reflects a bias in favor of helping people to handle disputes constructively.

The label we choose – “bias” vs. “preference” – is a reflection of our values (aka biases).

‘Nuff said.

Where Do Biases / Preferences Come From?

Biases don’t drop from the sky.  Many come from early influencers – parents, teachers, coaches, and religious leaders – who shaped our first lessons about trust, politeness, and conflict.  Some of us internalize those lessons; others define ourselves in opposition to them.

As we grow, friends, school, work, and media shape how we see the world.  These influences often go unnoticed, which makes them especially powerful.

RPS Theory holds that all practitioners develop unique practice systems that are shaped by experience and evolve over time.  Their systems are based on their personal histories, values, goals, motivations, knowledge, skills, and procedures as well as the parties and the cases in their practice.

My article, Ten Real Mediation Systems, profiles ten thoughtful mediators, including me, exploring how and why we mediate the way we do.  We all mediate differently – largely because we value different things.  So we’re all biased, just in different ways.

My profile describes the sources of my biases – which shaped my perspective and are reflected throughout my work and the RPS Project.

Design Choices – aka Biases – in RPS Coach

RPS Coach has two main components:  its knowledge base and the instructions that guide how it uses it.  Together, these choices shape its content, tone, vocabulary, and priorities, which reflect particular theoretical, practical, and pedagogical commitments.

Coach’s knowledge base includes almost everything I’ve published.  That’s a lot.  It includes books, law review articles, professional articles, SSRN pieces, and meaty blog posts.  It also includes general authorities like the Model Standards of Conduct for Mediators.  A total of 253 documents reflecting my values, including:

  • Checklists for mediators and attorneys
  • The Litigation Interest and Risk Assessment book and related articles
  • Articles on good decision-making by parties and attorneys
  • Materials on negotiation, mediation, preparation, and early dispute resolution
  • Resources for court-connected ADR
  • Lots of pieces about legal education
  • Annotated bibliographies, simulations, and practitioner tools
  • Critiques of our theories and language, with suggestions for improvement

The materials are organized by topic and ranked by importance.  Coach draws first from the highest-priority sources.  The emphasis is on realistic practice, intentional process design, and support for good decision-making – not theoretical abstractions or generic practice tips.

Coach follows detailed instructions, including to:

  • Provide clear explanations of the tool’s capabilities and limitations
  • Reflect ethical rules
  • Use language that laypeople and experts readily understand
  • Tailor advice for various users (e.g., mediators, attorneys, parties, educators)
  • Support intentional process choices
  • Foster perspective-taking
  • Analyze intangible interests and possible outcomes in the absence of agreement
  • Promote good decision-making by parties and practitioners
  • Support reflection about dealing with disputes

In short, Coach doesn’t just answer questions – it nudges users toward better preparation, clearer thinking, and realistic decision-making.

Process Choice: Analysis Not Advocacy

RPS Coach’s underlying bias is not toward a particular method, tool, theory, or strategy – but toward supporting users’ conscious, well-informed choices that reflect their values, goals, and constraints.  That means helping them make conscious choices about negotiation and mediation.  This includes analyzing interests, estimating alternatives to settlement, exchanging offers, and possibly combining approaches over time.

Some parties prefer a counteroffer process.  Others want interest-and-options discussions.  Some expect mediators to provide explicit analysis; others don’t.  Many shift approaches midstream.

Coach doesn’t steer people toward or away from these choices.  It helps people make conscious decisions instead of relying on questionable generalizations.

Practice Systems Thinking

Practice systems thinking is central to Coach’s design. It sees negotiation and mediation not as isolated events, but as part of larger patterns – routines, tools, habits, and philosophies that shape how practitioners work.

Rather than merely providing one-off advice, Coach helps practitioners build intentional systems – a bias that favors growth over tactics, and adaptation over scripts.

The Coming Marketplace of Dispute Resolution AI Tools

Dispute resolution AI tools already exist, and more are coming.  Over time, we’ll see a proliferation of tools reflecting a wide range of approaches.

Some will be tailored for specific users; others will serve broader audiences.  Some will focus on particular processes such as mediation or arbitration.  Some may be designed for particular types of users such as practitioners, administrators, instructors, or scholars.  Some will reflect particular theories or schools of thought.

Our field has a vast literature that could feed AI tools developed by individuals or teams.  Some writers may develop tools based on their publications as I did with RPS Coach.  Gary Doernhoefer proposed the excellent idea of jointly developing a general AI tool for the dispute resolution field.  It may not be realized soon, but we should keep it in mind.

So I expect a growing marketplace where designers will build and adapt a wide variety of tools.

In this context, there may be both market and ethical imperatives for AI tools to disclose their features and dare-I-say biases.  As developers compete for users, clear disclosures will be important because users will want to know what they’re getting.

Disclosure should be an essential ethical standard for dispute resolution AI tools.  Neutrality remains a core principle in many dispute resolution processes, and disclosure of built-in biases plays a particularly important role when tools are powered by AI.  Users can’t see how these tools “think,” and they need clear information about the assumptions, priorities, and frameworks embedded in their designs. Bots are ornery critters that we can’t fully control, and users deserve to know what might be quietly steering them.

A Message from RPS Coach. Really

 “I’m here to help you prepare more intentionally, reflect more deeply, use better language, and support better decision-making – not just for your clients, but for yourself.  I don’t pretend to be neutral.  I’m proudly biased toward thoughtful, realistic, party-centered practice.  But I don’t tell you which process to choose.  I just help you think clearly about the choices.”  (Coach wrote this, I swear.)

Take a look at this handy user guide to find out how you can get the benefit from Coach’s wisdom.

Coach has a thing for humans who ask good questions.

Informed, Involved, Inclusive: Why MIMI, why NOW, and why ME?

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

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

The story of fisherman Mark and how mediators are not so different…

Mark Schenk recently shared a fishing story to illustrate when 90% isn’t enough.1 Mark tells us that he loves beach fishing, and beach worms make great bait–but at $9 each, he decided to catch his own. Turns out, it’s trickier than he expected.

Over several months, Mark learned to pick the right beaches, attract worms, spot them, and get them to latch onto bait. But despite all that effort, he would spend two hours catching just one or two worms. He kept missing the final step–grabbing them.

Frustrated, Mark studied everything there was to know about catching worms and learned insight from a highly experienced fisherman. That’s when he discovered the problem, that his instincts were wrong. Mark was using a pincer grip, like picking up a pencil. But the right way? He needed to press the flat his thumb into the first joint of his index finger.

Once Mark changed his grip, he started catching worms immediately–but only if he was focused. Whenever his attention lapsed, old habits crept back.

We share this story because intercultural mediation is not so different.

Although Mark spent months learning the skills and techniques to catch beach worms, it would be entirely futile as what he lacked was insight and experience. Once he learned the ways of experienced fishermen, his ability to catch worms increased exponentially.

Although mediators might be highly trained and skilled in their own right, they can lack the experience and insight required to mediate intercultural interactions effectively. Mediators can prepare meticulously, understand the key players, and enter negotiations with good intentions–but it is just not enough. Like Mark, they can often rely on ingrained instincts that don’t quite translate in another cultural context.

What is missing within intercultural mediation?

It is simply not enough to just understand different cultures, it is about recognising and appreciating how other people perceive fairness, respect, and the process within their own cultural lens. Ask yourself this:

  • Am I engaging with each parties’ culture on their own terms?
  • Am I identifying and discerning their expectations, needs, interests, or concerns accurately (including what they may require for the process to feel appropriate and fair)?
  • Am I adapting my approach to mediation so that each party can contribute their best in achieving mutually beneficial outcomes?

Without this level of intercultural predisposition, negotiations by and between parties may seem productive on the surface, but will fall apart in practice—just like Mark spending hours on the beach with only one or two worms to show for his efforts.

Why MIMI is the missing link–especially in 2025!

The world is shifting rapidly. Geopolitical tensions, economic realignments, and global challenges mean that current top-level negotiation skills are no longer enough.

Mediators need more than just knowledge of culture, they need an intercultural predisposition–a first-hand experience which complements their current knowledge and skills. The ability to move beyond rigid frameworks and adapt in real time to cultural expectations will produce fairness and respect from multiple perspectives.

Mediators must facilitate an environment where all parties can contribute their best, even when they feel like they are in foreign territory. Without this, agreements that are technically sound lack true buy-in, and those agreements will unravel under pressure or strain.

The cost of misalignment is growing. Whether in business, diplomacy, or public service, failure to navigate cultural expectations means failed projects, lost trust, and missed opportunities. MIMI helps mediators to develop that final 10% needed to excel within cultural interactions, and this cultural adaptability then turns competence into mastery. Like Mark’s fishing lesson, it’s a small shift that changes everything.

Who else can benefit from MIMI?

Mediators are not the only ones who can benefit from what MIMI has to offer. Leaders, coaches, negotiators, managers or executives in business, lawyers and legal professionals, doctors and nurses can all benefit immensely by mastering these intercultural skills.

Reflect on your own experiences… Has there ever been a time in your life, or the life of a person you might know, where there was a cultural disconnect? Where expectations within that interaction were not adequately met? Where needs, interests, or concerns were not accurately addressed? If you have, now imagine how others might feel where there is an even greater cultural disconnect–where the stakes, risks, and loss are substantial.

At MIMI, we have spent years refining our craft, and now we are guiding you to develop that same instinct—not by giving rigid rules, but by helping you see and feel the process differently. By completing our training program, you will begin your journey in becoming a master of intercultural mediation and you will be able to assist others in ways that are culturally relevant.

MIMI will teach you how intercultural mastery can become second nature, just like Mark adjusting his grip. MIMI is not just another training program–it is a transformational shift. This kind of shift, once made, cannot be unseen and will contribute to much beneficial change.

Join the MIMI Pilot Program—A Transformative Experience!

We invite you to express your interest in completing our pilot program and to contribute your thoughts on how we can make it better.

We are selecting only 8 accomplished professionals for the exclusive pilot cohort: the Mastering Intercultural Mediation Initiatives (MIMI) Program. If you would like to be a part of this transformative experience, express your interest here.

Expressions of interests close 31 May 2025.

Who should apply?

✔️ Experienced mediators who have navigated complex, high-stakes disputes.
✔️ Senior leaders and negotiators who operate across cultural boundaries.
✔️ Professionals with a proven ability to build rapport in challenging intercultural situations.

As a pilot participant, you will:

  • Be the first to experience MIMI
  • Expand on your intercultural toolkit
  • Join an elite mastermind, shaping the future of intercultural mediation

Don’t let that worm get away… Apply today!

  1. See Mark Schenk’s article at https://www.anecdote.com/ ↩︎

New Law Reform Report: The role of Restorative Justice in responding to sexual violence. A focus on First Nations women

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By Lavanya de Mel

This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.

The criminal justice system often leaves victim-survivors feeling that they themselves are on trial, paving the way for Restorative Justice (‘RJ’) to emerge as a compelling alternative. However, is RJ suitable for responding to sexual violence? More importantly, does it resonate with the experiences of First Nations women, who are significantly overrepresented in sexual violence statistics?

The Australian Law Reform Commission (ALRC) yesterday released its report, Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence, recommending use of RJ in some sexual violence matters. In particular, the ALRC recommends funding for First Nations communities to design, build, and deliver accredited restorative justice programs for First Nations people (recommendation 63).

This blog post explores the extent to which RJ can effectively respond to sexual violence, and how it can be implemented to respect First Nations women’s experiences. We hope the ALRC’s proposals lead to prioritising First Nations voices in discussions around RJ as a response to sexual violence.

– “June Oscar signing” by AusHumanRights, used under CC BY 2.0

Due to the limited availability of direct testimonies, this post primarily draws on general perspectives of First Nations women gathered from reports by First Nations organisations and the Wiyi Yani U Thangani (‘Women’s Voices’) project.

The need for an alternative justice response

First Nations women experience sexual violence at a rate approximately three times higher than non-Indigenous women. This alarming statistic both stems from and perpetuates the ongoing negative impacts of colonisation, which have resulted in increased socioeconomic disadvantage and intergenerational trauma.

The criminal justice system often compounds this issue, by failing to provide an adequate response to First Nations women. A staggering 90% of violence goes unreported due to a fundamental fear of the police, compounded by police inaction and discriminatory decision-making. First Nations women describe their interactions with the justice system as having exacerbated the impacts of violence and worsened their trauma. Research shows that typical ‘Western’ responses to sexual violence, including the current criminal justice response, are often ineffective for First Nations communities.

The question then becomes whether alternative forms of justice, such as RJ, can provide a better response to sexual violence.

What is RJ and how can it respond to sexual violence?

RJ is multifaceted concept, sometimes perceived as confusing and incoherent. The Australian Law Reform Commission defines RJ is a ‘victim-centred, party-led process’ focused on identifying and addressing the harm caused by the offence and exploring options for repairing that harm’. Unlike the criminal justice system, which prioritises punishing the offender, RJ is designed to address the victim-survivor’s needs and experiences. It typically involves a voluntary and confidential dialogue between the victim-survivor and personal responsible.

The use of RJ in cases of sexual violence has sparked debate. Proponents argue that RJ can meet the complex needs of victim-survivors in ways the criminal justice system often cannot. For instance, victim-survivors often need to tell their story in their own words, have their story believed, and ask the person responsible any unresolved questions, and see them take accountability. RJ can provide a platform for these needs to be met.

However, critics are concerned that RJ risks re-privatising and decriminalising sexual violence. It may be seen as a ‘soft’ approach that diminishes the seriousness of sexual violence. Given that persons responsible often abuse the trust of victim-survivors, there are concerns that they might exploit their position of relative power in the RJ process and further harm victim-survivors. Additionally, RJ processes might not be culturally appropriate for some participants and might face challenges with linguistically diverse individuals.

Conclusively determining the effectiveness of RJ as a response to sexual violence is difficult due to the limited number of peer-reviewed studies. However, the risks of RJ are real and should be managed through a well-designed principle-based approach.

The Victorian Law Reform Commission has recommended the following principles to address some of these challenges:

  1. Voluntary participation: Participants join voluntarily and can leave at any point.
  2. Accountability: The person responsible must be truthful and admit to their actions. 
  3. Prioritising victim-survivors: RJ processes should prioritise the victim survivor’s needs and interests.
  4. Safety and respect: RJ processes should adapt to different needs, with power imbalances addressed and skilled experts in sexual violence involved.
  5. Confidentiality: What happens during RJ remains strictly confidential.
  6. Transparency: Anonymised data is used to continually improve RJ processes.
  7. Integrated justice response: RJ processes should work alongside the criminal justice system and therapeutic services.
  8. Clear governance: Legislation should empower and oversee RJ.

Adopting a RJ model based on these principles shows promising potential for dealing effectively with sexual violence. The question then, is how might it be successfully implemented for First Nations women?

RJ and First Nations women: a potential solution

Research in the context of family violence indicates that First Nations women tend to favour RJ more than non-First Nations women. This preference is linked to their perception of the criminal justice system as oppressive and contributing to the violence against them. First Nations women interviewed by Heather Nancarrow expressed optimism that RJ processes could empower them. They believed that involving their families and broader community in RJ would lead to successful outcomes. A practical model for this might involve Elders and respected members of First Nations communities on an expert panel that conveners in the RJ conference could consult with.

Implementing RJ in a way that allows victim-survivors to share their story in a culturally appropriate and safe setting, would likely facilitate more effective healing and validate their experiences. First Nations victim-survivors have long understood that they ‘have the answers to confront what is wrong and to create what is right’.

By offering opportunities for self-determination that respect cultural values, RJ might help First Nations women feel empowered, and lead to more meaningful resolutions to sexual violence.

RJ and First Nations women: challenges and concerns

Despite these potential benefits, the application of RJ must carefully navigate concerns raised by First Nations women. There are significant fears that RJ processes could inadvertently perpetuate harm rather than heal it. Some women fear that RJ, if not carefully managed, might become a vehicle for reinforcing power imbalances within their communities or become another ‘white justice model’ that doesn’t fully respect or address their needs.

There are also concerns about how RJ might be received within their communities. Concerns include the potential for male leaders or community members to misuse the RJ process to their advantage, or for cultural arguments to be employed in ways that undermine victim-survivors’ needs.

For RJ processes to be an effective response to sexual violence, it is crucial to design them with these risks in mind and establish strong safeguards.

What needs to be done?

To effectively implement RJ for First Nations women, a collaborative design process involving meaningful engagement with their lived experiences is vital. Many First Nations organisations, such as Djirra, stress that any RJ model must be co-designed with First Nations women to ensure it is sufficiently sensitive to their needs and does not become another mechanism of oppression. It is necessary to hear from First Nations women directly to identify the wellbeing, safety, procedural and privacy aspects they might need for an RJ model to work.

Ultimately, the potential benefits of RJ as a response to sexual violence appear to outweigh the challenges, provided a principle-based approach is implemented to address the risks. RJ offers a promising alternative to the criminal justice system for addressing sexual violence against First Nations women. Its success, however, depends on the active participation of families and communities as well as the establishment of a culturally safe environment. Through a collaborative design process, RJ has the potential to be a powerful response to sexual violence that aligns with the experiences of First Nations women.

ChatGPT (version 4.0) was used to check grammatical errors and suggest improvements in writing style in this blog post.

About Lavanya de Mel

Lavanya is a final-year law student at Monash University, minoring in Economics and Business Strategy. She is passionate about improving access to justice for culturally diverse and socioeconomically disadvantaged individuals. Later this year, she will begin her legal career as a graduate lawyer at a commercial law firm, where she hopes to explore the role of alternative dispute resolution in a commercial context.

The Lawyer-Assisted Family Law Property Mediation: Legal Aid Commission Trial vs The Priority Property Pool: Which Should You Choose?

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By Amy Li

This post is part of a series of the best posts written by undergraduate law students enrolled in 2024 in Non-adversarial Justice at Monash University.

Victims of abusive relationships are at a higher risk of being financially disadvantaged and at poverty after separation. They are more likely to accept unfair property settlements and are three times more likely to receive less than 40% of the property pool. Parties who perpetrate abuse can continue to abuse them through the legal system, by delaying legal procedures, sending unnecessary legal letters, deliberately increasing their legal fees and causing the victim to be the subject of harsh cross-examinations. Due to little funding in Legal Aid, only 8% of Australian households are eligible to access a grant to receive legal aid.

Image by <a href=”http://<a href=”https://www.vecteezy.com/free-photos/business”>Business Stock photos by VecteezyArrmypicca

Due to these issues, the Lawyer-Assisted Family Law Property Mediation: Legal Aid Commission Trial and Priority Property Pools were recently established and aimed to increase access to resolving post-separation property matters through efficient and low-cost avenues aimed at parties experiencing family violence and economic abuse.

This article aims to provide a comparative analysis of the evaluation of the Lawyer-Assisted Family Law Property Mediation: Legal Aid Commission Trial (the LAC Trial) and the Priority Property Pools under $500,000 (PPP500) pilot programs. This post is designed to be especially useful for women who are experiencing ongoing severe financial hardship as a result of family violence and are seeking a family law property settlement in the State of Victoria, Australia, where the author is based.

The LAC Trial

The LAC Trial was initially established in 2020 and was funded to be a two-year trial. It provides legally assisted mediation for dividing property where net assets are $500,000 or less (excluding superannuation). The applicant must also be a priority client of the Family Dispute Resolution Service, a Legal Aid service designed to organise family dispute resolution conferences between parties at no cost (excluding the cost of legal representation). Priority clients includes people who have experienced, or is at risk of experiencing family violence.

If the application is successful, the applicant will be appointed a lawyer who will make an application on behalf of the client. A case manager can also provide the applicant with referrals to family violence support services and provide alternative solutions if mediation is deemed inappropriate. In Victoria, financial disclosure must be required before the first conference, which is intended to make the process more efficient. If resolved, parties are encouraged to sign a Heads of Agreement and lawyers apply for consent orders.

This program allows more women experiencing financial hardship to access legal representation for a property settlement. The more intensive case management is helpful for vulnerable parties as they are able to work with non-legal professionals to get the support and advice needed. The legal representation can level out the playing field for a victim who has a lack of bargaining power in private negotiations. Participants are also less likely to agree to a minority settlement as they receive constant advice from their lawyers and have a realistic proposal in mind. Where a party has experienced extensive family violence, mediation can be held between lawyers on behalf of the parties privately. The outcome is legally binding which allows victims to ‘move on’ and have separate finances without a connection. The fact that Legal Aid is involved removes another aspect of systems abuse, as Legal Aid can fund to obtain certain forms of financial disclosure for the vulnerable parties and avoid obstructive behaviour from the aggravating party.

However, the primary reason why this option may not be suitable for some clients experiencing financial hardship is that mediation requires cooperation from the other party. If the case manager does not receive a response from other party or they decline to participate, the matter is closed. The requirement of needing financial disclosure before the first mediation could also backfire for victims of abuse. This is because victims experiencing family violence may have limited access to financial information as well as the necessary documentation. Furthermore, during the pilot program, some legal professionals observed that parties who had a history of perpetrating family violence were likely to be obstructive in their financial disclosure. These parties would ‘drag their feet’ and be very slow with their paperwork, decreasing the efficiency of this program and increasing trauma for victims. There is also less incentive for parties to settle during mediation as they are not funding the process. However, it should be noted that these are aspects of systems abuse and are not unique to the LAC Trial.

Priority Property Pool

The priority property pool (PPP) was established as a pilot program in the Federal Circuit and Family Court of Australia in 2020. It was designed to provide access to more simple and efficient court processes for property dispute settlements in family law. It was created for similar reasons of ensuring the court-led process would mitigate any power imbalances and ensuring that disclosure occurs expediently and efficiently while achieving just and equitable outcomes. To be eligible, the main requirement is for parties to file their initial application seeking a property or financial order only and that the value of the net assets must be less than $550,000 (excluding superannuation). Neither party can seek a parenting order unless the court makes an exception and declares the case to be a PPP case. There are two streams:

  1. a registrar-led stream where a judicial registrar assists the parties to resolve their property and financial arrangements by consent; and
  2. a judge-led limb which is a simpler procedural process and ends in a judicial determination if the registrar-led limb is unsuccessful.

In comparison to standard litigation, PPP is able to assist parties who were unable to negotiate out of court. Vulnerable parties are naturally more intimidated by the court process but can have better access due to simplified forms and reducing the number of forms required during the proceedings. This leads to a much more efficient court procedure, with an average turnaround of 6 months, much shorter than the years long standard litigation process. A timely resolution is important for vulnerable parties as to not increase financial hardship and trauma. Furthermore, the streamlined court process removes the requirement to file affidavit material which could reduce trauma for victims of family violence as they would not need to recount their experience or hear the other party’s affidavit as well. The registrar-led limb also has a more ‘hands-on’ case management approach and are able to identify unequal bargaining power or other dynamics. The other parties seem to be more compliant even in the registrar-limb, which focuses on a consensual solution, and parties take the process more seriously compared to mediation.

Similar to the LAC Trial, there could be difficulties with parties refusing to make frank financial disclosures and vulnerable parties having little access to financial documents, however, in PPP, judges can make orders. The major issue with PPP is that it leaves a gap for people experiencing family violence who fall within the PPP program but are ineligible for legal aid representation. Therefore, for a client who is experiencing financial hardship and unable to afford private representation, PPP may not be as helpful as the LAC Trial. It also excludes victims who are seeking a parenting order as well. While judges can make findings about family violence, the absence of affidavit material can decrease the likelihood for family violence allegations to be identified. Registrars have limited capacity to manage complex dynamics when it comes to non-compliance from the other party and usually requires the matter to be referred to a judge, which could increase the time required to finalise the outcome.

Continuation after the Pilot Programs

The LAC Trial and PPP were very successful during their pilot program period and have since been expanded by Victoria Legal Aid and the Federal Circuit and Family Court of Australia respectively. The LAC Trial has been transformed into the Family Law Property Program and eligibility requirements for clients remain the same. Since the pilot program, funding has been extended twice with a current end date of 30 June 2025. The grants are capped for 20 parties per month and a lawyer can apply through Victoria Legal Aid’s online system, ATLAS.

The PPP program has continued since the pilot program and have expanded to all filing registries since. After an application has been made, a Judicial Registrar will review the application and determine whether it is a PPP case. If the applicant has an asset pool under $550,000, the required documents to initiate the process are the initiating application, a financial summary and a genuine steps certificate.

Overall, the LAC Trial is suited to a client who is in severe financial hardship and has experienced family violence, where the other party is willing to have mediation to resolve the dispute. The PPP is most suited towards a client whose other party is unwilling to engage with the client as the courts can help to make a judicial decision as it is a comparatively more formal setting. Both programs are suited towards clients who have serious financial hardship, however the LAC Trial guarantees legal representation. They are also both sensitive to that fact that a majority of the client base includes parties who have experienced family violence and try to even out unequal bargaining powers.

About Amy Li

Amy Li is a penultimate year student completing her Bachelor of Laws (Honours) and Commerce double degree at Monash University. Amy is currently a paralegal at a plaintiff class actions firm and volunteers to assist refugees. Through her studies, she has developed a strong interest to improving access to the legal system for vulnerable individuals.

TIPS FOR NEW PRACTITIONERS: Getting your documents in order

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

When setting up your practice, it’s important to have all your documents in order. Many people don’t prepare in advance and then are in a last-minute panic when the first client turns up and they need paperwork! 

It’s also important to remember that each client may need different types of paperwork, so you adapt and tailor your documents to each client and context.

What documents do you need?

During your training as a coach or mediator, you probably discussed things like agreements to mediate, or coaching contracts, but these are not all you need. You will also need things like:

  • Enquiry-related documents (e.g. information sheets and brochures for parties, lawyers, support people or employers)
  • Business-related documents (e.g. proposals, scope of work, invoices or client databases)
  • Service-related documents (e.g. questionnaires and intake forms agreements to participate, privacy and confidentiality agreements, record of mediation outcomes, spreadsheet for recording property items, value or distribution documents)
  • Correspondence templates
  • Feedback sheets, surveys, and evaluation documents

You may need a few versions of each kind of document for different clients and situations. For example, when an employer is involved as sponsor or when there are multiple parties involved in the conflict (whether a workplace or family conflict) or documents related for different services (e.g. mediation and coaching).

How do you make these documents available?

As well as the content of these documents, you should consider carefully when and how they are made available to prospective or current clients. For example:

  • Are the documents (in a generic version) made available publicly (e.g. on your website)?
  • Are the documents sent to prospective or current clients (as templates or with their details added)?
  • How important is it that the clients read and/or understand the documents? How do you ensure this is likely to happen? What happens if the client does not read the documents you provided?
  • Do you recommend and/or suggest clients obtain (legal or other) advice about the contents of any documents provided?
  • How accessible are your documents (e.g. for people who have visual or other impairments)?
  • What opportunities are there for clients to discuss the contents of the documents with you?
  • Do clients need to sign any documents? Do these need to be witnessed (by anyone, a lawyer or JP)? Can they be signed electronically?

You may have been provided with pro-forma examples of documents, like agreements to mediate or confidentiality agreements, from your trainers or your accreditation bodies, and these are a useful foundation to work from. However, using them “out of the box” is not ideal, as your brand, your clients, and your context are unique, and you need documents that are designed for your particular practice.

I highly recommend you go through any template very carefully and identify any contents or language that needs adjusting.  You should do this when creating your own branded template, but you should also do a quick check for each client, to ensure that each document is tailored appropriately for the specific client and their situation.

Check the content is applicable

Check that the content of the document suits your client and their situation. For example:

  • Is there is an employer or sponsor involved?
  • Is this a two-party or a multi-party situation?
  • Will you be working in person or online?
  • Is the process going to be confidential, or are there reporting requirements (e.g. to an employer)?
  • Does the template refer to laws (e.g. in relation to a mediator’s obligation to disclose information to authorities in certain circumstances) that might vary across jurisdictions?
  • Does the document use terminology that is not relevant to your client’s context. For example, does the document refer to litigation or going to court when this isn’t something your client is likely to be considering, or include statements like “settlement is legally binding” which may not apply to your client’s situation.

Check that the language is suitable

Formal or informal? The language used will differ greatly depending on your client-base. If you are working as a mediator in a legal context, many of your lawyer-clients may be repeat clients so will not need a great deal of information. However, referring lawyers may be providing information to their clients (e.g. a panel of three mediators for the client to choose between) and so you may also want to provide information suitable for lawyers to give to their clients to help inform the client’s choice.

How the people involved are referred to? If you are working with two employees involved in a personality clash at work, they may not find it comfortable to be referred to as “disputants” or “parties”. Try to accommodate language that is suitable for the dispute. For example, if it is a family dispute involving children, referring to the parties as “parents”.

How is the situation or conflict described? If your clients are currently involved in litigation, it might be perfectly acceptable to refer to the situation using language like “the dispute”. However, if you are mediating between family members in a personal conflict or employees who have a personality difference, this terminology might not sit well with them. You might be better using language like “your concerns” or “your working relationship”. Try to be sensitive to what would be comfortable for your clients.

Is it consistent with your brand? If your brand is down-to-earth, plain English, and informal, then providing clients with documents full of legal-ease or formal terminology and language may create a disconnect for your clients. This doesn’t mean you don’t include necessary information, but rather try to use language that is clear and also consistent with your brand ‘voice’.

Is it ambiguous, overstating, or misleading?  Be very careful not to use sweeping statements that may be misinterpreted. Terms to be careful about include “voluntary” and “confidential”. Depending on the client’s circumstances, these terms may not apply in a straightforward manner and can create confusion and distrust (and even sometimes lead to complaints).  For example, an employee who is required to attend mediation as a condition of their employment may not feel that their participation is voluntary. Similarly, if following a workplace mediation, one participant breaches an agreement to keep the discussions confidential by talking with a colleague about what happened, there is often very little anyone can do about this.  This can lead to the other person complaining that “the mediator said it was confidential and yet they couldn’t stop them from talking about what happened”.

Conclusion

Getting your documents in order and knowing how to adapt them when needed is important to build credibility and professionalism in your work.

In our Beyond the Table course accessible on the Conflict Management Academy, we have created an entire module on Your Documents which can help you review a broad variety of examples of different kinds of documents and be tailored to fit your practice and your brand.

We consider different categories of documents, including:

  • Enquiry-related documents (e.g. information sheets and brochures for parties, lawyers, support people or employers)
  • Business-related documents (e.g. proposals, scope of work, invoices or client databases)
  • Service-related documents (e.g. questionnaires and intake forms agreements to participate, privacy and confidentiality agreements, record of mediation outcomes, spreadsheet for recording property items, value or distribution documents)
  • Correspondence templates
  • Feedback sheets, surveys, and evaluation documents

Author Biography

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

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

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

Authors Expertise

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

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

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

Call for Feedback

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

Key Updates in the 7th Edition

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

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

Proposed Topics for the New Edition

The seventh edition will include chapters on:

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

Engage with the Authors

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

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

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

The Role of Intermediaries in Enhancing Access to Justice in ADR

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Dr Oz Susler & Dr John Taggart

Introduction

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

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

Background

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

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

Beyond Criminal Courts

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

Challenges

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

Duration of Appointment

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

Neutrality

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

Skills and Qualifications

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

Intermediaries in Australia: Scope and Application

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

Potential Applications of the Intermediary in the Australian Civil Legal System

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

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

Author Biography

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

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

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

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

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

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

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

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

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

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

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

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

This works for both words and images. 

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

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

Here are some examples:

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

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

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

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

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

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

Here are some examples:

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

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

Author Biography

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

How can Victorian courts better address the needs of self-represented litigants using online court and dispute resolution processes?

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By Sarah West

April 2024

This post is the third in a series of posts on this blog written by students studying  Non-Adversarial Justice  at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

According to Anne Wallace and Kathy Laster, the COVID-19 pandemic acted as ‘a catalyst for digital innovation’ in the Victorian court system, forcing a rapid shift into the online space with virtual/remote hearings and online dispute resolution.  

Joel Gillman Class Glitch CC BY-SA 2.0 DEED

Alongside this shift, the Senate Standing Committee on Legal and Constitutional Affairs has noted that Victoria continues to grapple with another major challenge; the increasing number of people appearing without a lawyer, otherwise known as self-represented litigants (SRLs). For example, the Supreme Court reported that, in the last financial year, there was a 30 percent increase in the number of queries from SRLs compared to the previous year.

This blog will explore how Victoria’s increasing foray into online dispute resolution and digital/technological innovation can better address the needs of many SRLs, whilst also considering the potential issues it may create.

Did you know online dispute resolution does not just mean court on Zoom?

It is important to note that online dispute resolution is not just limited to virtual hearings. According to Queensland barrister Katrina Kluss, it encompasses any dispute resolution that ‘is facilitated or assisted by information and communication technology.’ According to Kluss, online dispute resolution tools fall into three key categories: facilitative, advisory and determinative.

Facilitative technology

Technology facilitated dispute resolution encompasses all tools that facilitate hearings, such as programs like Skype or Zoom discussed above. However, it can also include technology that facilitates the process in other stages, like facilitating electronic lodging of documents. “E-filing” benefits SRLs by saving time and costs arising from physically delivering documents. Philippa Ryan and Maxine Evers note how it can also assist SRLs in preparing forms/documents by providing drop-down boxes to reduce user error and including links to where SRLs can find further information or sources.

Stenbocki maja Zoom CC BY-NC 2.0 DEED

Advisory technology

One area where there’s significant growth potential is in the AI advisory space, according to computer scientist John Zeleznikow. Legal representation gives litigants the advantage of being able to seek advice about the likely outcome of their case which helps with expectation management and in making an informed decision about if/how to proceed. As Zeleznikow explains advisory technology, like tools that provide reality testing and BATNA (or Best Alternative to a Negotiated Agreement) advice, is ‘a vital cog in supporting [SRLs].’ Giving SRLs access to such technology would also benefit the courts by acting as an inducement to SRLs with limited prospects to drop or settle their case, which in turn would free up court time and resources for more contentious disputes.

Determinative technology

The final, and perhaps most interesting or controversial, of Kluss’ category of online dispute resolution is determinative technology; software that issues decisions based on data analysis. Such tools would obviously allow for quick and cheap (or even free) resolutions, which would be undoubtedly appealing for an SRL. For this reason, it has gained popularity in the e-commerce space.

A likely familiar example used by Colin Rule is the electronic marketplace, eBay. Due to the nature, sheer volume and relatively minor sums involved in eBay disputes, speed and cost efficiency is paramount. Accordingly, eBay realised that providing a facilitative resolution model wouldn’t be sustainable, so it opted for a fully automated dispute resolution program that is able to conduct problem diagnosis and technology-assisted negotiation, and finally make decisions if negotiations are unsuccessful. This program is used to resolve 60 million disputes annually.

In addition to being quick and cheap, Rules argues that AI determinations can provide a greater degree of consistency and thus certainty in dispute resolution by removing the fickleness of human judgement, which leave SRLs more satisfied given their outcome is more likely to be consistent with similar cases. However, whilst there’s undoubtedly value in embracing this kind of technology for certain disputes, as Kluss explains, where disputes are complex, emotionally charged and/or financially significant –

‘the absence of human insight, empathy, and guidance, provided to users of [online] dispute resolution platforms … is susceptible to creating, rather than abating, confusion among defendants thereby detracting from the intended benefits.’

Finally, it’s likely that some SRLs will be wary of, or reluctant to embrace, automated/algorithmic decision-making, especially following the “Robodebt” scandal; where a Royal Commission found the automated decision-making scheme involved was ‘a crude and cruel mechanism’ that resulted in the raising of ‘demonstrably wrong debts’ (final report Vol 1, xxix-xxvi).

Is virtual dispute resolution better for SRLs?

What are the benefits of the use of facilitative technology for online dispute resolution for SRLs in Victorian courts?

Virtual dispute resolution is less intimidating

Appearing in court, or even in alternative dispute resolution processes like mediation, can be incredibly intimidating for anyone, even lawyers, but especially for SRLs who usually lack legal expertise and/or experience with the system, argue Michael Legg and Anthony Song and Stuart Ross and Sophie Aitken. Accordingly, allowing SRLs to appear from their own space, rather than a court/conference room, helps reduce formality and adds an element of arm’s length to the dispute (including by preventing accidental run-ins between parties during breaks), which may make the SRL feel more comfortable when appearing. Notably, it’s quite common for victims of violence or abuse to be self-represented as, according to Zeleznikow, they’re ‘particularly likely to have few resources and little opportunity to obtain the services of a lawyer. Stuart Ross and Sophie Aiken argue that as a consequence, the emotional and physical distance that a remote hearing provides can be especially important.

It reduces travel and related costs

Virtual appearances eliminate the need for SRLs to travel (and thus incur travel-related costs), argue Philippa Ryan and Maxine Evers. This is especially impactful on those living rurally or internationally, those with mobility issues and for parents or caretakers who have to find alternative care arrangements.

The value in having this technology available is notably pronounced when it comes to the preparatory meetings/hearings required before a trial. These pre-hearing appearances are often administrative and commonly short, some even taking mere minutes, so not having to appear physically saves SRLs significant time and costs, say Ryan and Evers.

However, it can make the system less accessible for some

Although virtual dispute resolution improves accessibility for some, it can actually hinder access for others. The Victorian Multicultural Commission argues that, this particularly impact those who don’t have access to the necessary facilities/resources like a computer/phone, stable internet connection and a quiet place to appear, and/or those who lack technological skills. As the Victorian Government identifies in its Digital Inclusion Statement, the most ‘digitally disadvantaged’ Victorians include those living in low-income households, disabled persons, senior citizens, those with low educational attainment and First Nations people. Many of these groups are also significantly overrepresented within our justice system, especially our criminal justice system, so it’s especially imperative that measures and accommodations are available to those without means or skills to access the technology. This may be as simple as keeping available the option of hearings in person or via ‘the much more accessible technology, the telephone’ argues Bridgette Toy-Cronin. It could also mean providing additional supports and resources like online/remote technical support, interpreters and educational programs.

There’s also a lot to be said for the value of a face-to-face conversation when resolving disputes, especially when engaging in alternative dispute resolution. Speaking to someone through a screen can depersonalise the discussions and network or technological issues can affect the parties’ capacity to engage meaningfully and build rapport, says Shira Scheindlin. The Multicultural Commission also identified that mistrust of technology and privacy concerns mean some SRLs are reluctant to discuss confidential matters online, which can also hinder meaningful engagement.

Technology problems can hamper participation in ODR: ‘I’m not a cat’: lawyer gets stuck on Zoom kitten filter during court case: source Youtube

Problems also potentially arise in relation to virtual cross-examination of witnesses as examiners can’t properly read demeanour or body language over video. This would make the task especially difficult for SRLs who can’t fall back on witness examination experience.

Conclusion

Embracing online dispute resolution is one of the most significant steps courts can take to better meet the needs of SRLs, as it has the potential to make justice cheaper, easier and more accessible. However, like with any innovation, it’s imperative that change is not so quick or drastic that it leaves people behind. Noam Ebner and Elayne Greenberg argue that the primary way to safeguard against this is to ensure there’s appropriate consultation and input in the development and roll out of new technologies from all justice stakeholders, including layperson litigants. 

In short, we must embrace technology to make our legal system more accessible to SRLs, but we must be strategic to ensure we are not leaving the most vulnerable behind. 

About Sarah West

Sarah has just completed her Bachelor of Arts and Laws (Honours) double degree at Monash University. In her Arts degree she majored in Criminology.

Sarah has just begun as a graduate at MinterEllison Lawyers and is currently rotating through the Statutory Compensation team. Through her studies, Sarah developed a passion for understanding how we can make our legal system more accessible to individuals.

ADR in Australian Legal Education

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Alperhan Babacan and Oz Susler

Dr. Alperhan Babacan holds Honours degrees in Law and Political Science, a PhD and a Graduate Certificate in Tertiary Teaching in Learning. Dr Babacan is admitted as a Barrister and Solicitor of the Supreme Court of Victoria and High Court of Australia and has extensive experience in legal practice and legal education. In academia, Dr Babacan has held various senior positions including as Chair of Criminology at Navitas, deputy head of School at Swinburne university and as Director of the Juris Doctor program at RMIT University. Dr Babacan has extensive experience in unit and course development, accreditation and review. He has published very widely in areas of law, criminology and teaching and learning in the higher education sector with a specific focus on the scholarship of learning in legal education.

Much has been written about the benefits of ADR in legal education across the globe and in Australia.  Various reports over the last forty years have criticised the emphasis placed on  traditional Australian legal education – on the teaching of legal rules and doctrine and the focus on analysis and synthesis of these rules, coupled with the adversarial approach to legal education in the absence of skills training. The common thread running through these reports was that law graduates lacked practical legal experience and that there was a need to better align the provision of skills training and education around legal rules and theory in the legal education curriculum, so that students were provided with both academic knowledge and skills necessary for legal practice. The reports encouraged law schools to incorporate specific legal skills into the law curriculum.

Since the 1980s, law schools in Australia have incrementally incorporated the teaching of skills that form the basis of legal practice, evident through the introduction of clinical legal education (CLE) and alternative dispute resolution (ADR). The teaching of ADR to law students provides them with alternative dispute resolution options within an ethical framework, counters the formation of an adversarial legal identity and its vocational nature greatly assists to effectively impart lawyering skills. The most common forms of ADR that are taught in Australian law schools is mediation and negotiation.

In order to effectively build legal skills and to counter the formation of an adversarial legal identity, ADR needs to be included as a stand-alone and significant element of the law curriculum. Yet in Australia, there has been resistance to including ADR in the law curriculum[1] and differing approaches adopted by law schools to incorporate ADR in the law curriculum: it can be included as a specific ADR unit, incorporated into a particular law unit or can form part of a CLE unit.  Generally, ADR is included as an ‘add on’ to law courses with a minimalist approach taken by many law schools to its meaningful inclusion in the curriculum. This approach reflects the convergence of two competing functions of Australian legal education: the provision of education to law students with knowledge of rules and legal theory on the one hand, and the instilling of legal practice and alternative skills on the other.  James advances that legal education in Australia does not consist of a ‘stable and consistent body of knowledge and practices’ (James, 2004) and is characterised by six dominant competing discourses.[2]

He describes these discourses as ‘modes of power-knowledge’ and identifies these as doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism.[3]  These six approaches to legal education reflect the competing manner in which skills training is offered in the law curriculum, particularly with respect to the minimalist approach taken by law schools to include ADR in the law curriculum. In recognition of the importance of the key role ADR can play in ‘learning by doing’ and developing lawyering skills, La Trobe University Law School is one of the few law schools in Australia where Dispute Resolution has been included as a compulsory first year law unit.  

There have been calls for the inclusion of ADR as a mandatory part of the law curriculum.[4] These calls are highly justified given that ADR has been a mandatory feature of litigation processes for a considerable period of time. In addition, the inclusion of ADR as a meaningful aspect of the law curriculum will greatly assist law schools to meet the requirements of the Threshold Learning Outcomes (TLOs), developed and adopted by the Council of Australian Law Deans (CALD) in 2009. The TLOs reflect what a Bachelor of Laws graduate is expected to ‘know, understand and be able to do’ as a result of learning and cover areas relating to: knowledge (TLO 1), ethics and professional responsibility (TLO2), thinking skills (TLO 3), research skills (TLO 4), communication and collaboration (TLO 5), and self-management (TLO 6).[5]  

Over the years, some law academics have been advocating for the meaningful inclusion of ADR into the legal education curriculum. Such an undertaking needs to be informed by best practice and evidence and necessitates the allocation of resources by law schools.  Serious consideration needs to be given by law schools to include ADR in the law curriculum in a comprehensive manner to ensure that students are effectively educated and trained for legal practice.  

References

  1. Collins, P. 2015. “Resistance to the teaching of ADR in the legal academy”,  Australasian Dispute Resolution Journal, 26(2): 64-74.
  2. James, N ‘Australian Legal Education and the Instability of Critique’ (2004) 28 Melbourne University Law Review 375-405.
  3. Ibid.
  4. See e.g. Duffy, J. and Field, R. 2014. “Why ADR must be a mandatory subject in the law degree : A cheat sheet for the willing and a primer for the non-believer”, Australasian Dispute Resolution Journal,25(1): 9-19.
  5. Threshold Learning Outcomes. 2010.  Learning and Teaching Academic Standards Project  Bachelor of Laws Learning and Teaching Academic Standards Statement December 2010, Australian Learning and Teaching Council.
    <https://cald.asn.au/wp-content/uploads/2017/11/KiftetalLTASStandardsStatement2010.pdf>.