Informed, Involved, Inclusive: The Proposed Curriculum

Posted on 24/02/2025 by Milan A Nitopi

Rory Gowers & Milan Nitopi
This article is Part 2 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.

Disclaimer: This introductory story is a work of fiction and does not intend to resemble any person or their lived experiences. Names, persons, places, and incidents are products of the author’s imagination. Any resemblance to actual events, locales, or persons is purely coincidental.

In the past…
Ashita had a promising future in Aressa, Syria. As a rising star in the development of artificial intelligence, she was ecstatic when her supervisor pulled her aside on Friday afternoon to share exciting news—her talents had been noticed. Come Monday morning, she would step into a new role, a significant leap forward in her career. As she travelled home that evening, she imagined the innovations she would contribute and the problems she would solve. But by Sunday night, the world she knew was gone.

Then something happened…
The war arrived without warning. Bombs shattered in the night sky, and chaos erupted in the streets. Her family fled in the back of a cattle truck that night, carrying with them only what they could. As the days turned into weeks, and the weeks turned into months, her past was slowly stripped away as she crossed each border.

But eventually she arrived in her host country, and she was alone—her family was scattered, lost in the chaos of displacement. In her host country, Ashita faced a new kind of struggle. The temporary permit allowed her to stay, but it did not offer any sense of belonging. She could barely communicate her basic needs, let alone articulate her expertise in AI–employers saw a refugee, not a specialist. The locals eyed her with suspicion, their mistrust became a barrier she could not break down. Without any support or others willingness to understand, her talents and her livelihood began slipping away.

So now we’re doing this…
But there is another way. We offer a fresh and constructive path forward with specific application of the myRESPECTability model (Gowers, 2023) and through the Mastering Intercultural Mediation Initiatives (MIMI) training program. MIMI equips professionals in all fields with the skills to turn challenging intercultural communication into innovative and constructive dialogue with the involved stakeholders central to the issues in question. MIMI trained professionals will gain enhanced skills and competencies that enable them to facilitate sophisticated intercultural bridges to overcome long-standing cultural divides and reflect the current realities of our diverse, complex, and globalised world.

So we can have a future like this…
With skilled intercultural professionals, Ashita does not have to remain unseen. Professionals who are interculturally competent can help resolve situations–like Ashita’s–by adapting the standard mediation principles, processes and practices to ensure all parties feel able to express and address their interests, needs, and concerns in culturally relevant ways so that they may have an equal place at the table.

In this way, people who may be experiencing a sense of ‘out-culture’ can come into their foreground and make significant contributions for the benefit of the whole community as they now have an opportunity to share their insights and talents.

The Author/s have labeled this AI-generated content (AIGC). This indicates that this content was completely AI-generated or significantly edited with AI.

We share this so that we can create a future that bridges the gap between culture and encourages collaboration between people of all nations. We share this so that we can all work together to address global challenges and achieve solutions that promote peace, equity, and sustainability for all life on this planet. And, we share this so that we can equip the world with the knowledge and skills required for tomorrow’s challenges. But let us explain how we propose to do this…

In our first article we laid the foundations that underpin our proposed intercultural competency training model. In this article, we share our working developments that set out curriculum and rubric which outline the key assessments and learning objectives we intend to achieve.

As becoming interculturally competent is more than an intellectual and mindful journey, we decided it is crucial to centre our training model on participant transformation. This means ensuring that key learning objectives are met, including:

Participant engagement
Research informed learning
Self-reflection
Flexibility

MIMI Foundation 1: Interculturally Informed

As the first foundation is a structured learning process centered on establishing the baseline knowledge of intercultural competence, we decided that participants would benefit most by undergoing an intensive workshop whereby they can both learn theory as well as engage in practical exercises with their cohort.

We envision the workshop to be a total of 12 hours completed over a 3 day period (4 hours each day). Throughout the 3 days, participants will engage in collaborative style learning to learn intercultural theory as well as participate in group discussions and completion of case studies. Upon completion of the 3 days, participants will submit a portfolio detailing their reflections of the theory and activities they engaged in.

Group discussions will focus on key interculturality issues in mediation practice, root causes for communication and dialogue issues, as well as a discussion of case studies to address questions such as:

How did each party feel about the experience?
What was the impact on the parties?
What could the facilitator have done differently?
How did the different communication skills influence the outcome?
What does that tell us about the importance of intercultural principles in mediation?

We expect participants will satisfy the following rubric components to demonstrate their competence in being interculturally informed:

To engage in the workshop including all group discussions, case study analyses, and other activities. This will be evidenced by their attendance and their portfolio submission following the 3 days.
To learn and demonstrate an understanding of intercultural theory and its application to communication and dialogue within mediation practice. This will be evidenced by their portfolio submission following the 3 days.
To self-reflect on learnings, insights, and peer contributions. This will also be evidenced by their portfolio submission following the 3 days.

MIMI Foundation 2: Interculturally Involved

As the second foundation is centered on developing a deeper understanding of other-cultural needs, values, and expectations, we decided that participants would benefit most by undergoing a full other-culture immersion program whereby they can become practically involved to witness, first-hand, their stories, songs, and symbols.

We recommend that participants undergo 10 consecutive days of immersion (with no less than 3 consecutive days). However, it is not a ‘one size fits all’ situation. Some participants may require more or less time to become fully involved in the other-culture–and that is okay! We support flexibility and we encourage participants to be self-determined in their own learning. During and upon completion of their immersion experience, participants will be required to submit a portfolio documenting their daily and final reflections.

In documenting their daily reflections, participants will be prompted on a variety of intercultural issues, such as:

What is a specific cultural difference and similarity you experienced today?
What was a communication and dialogue challenge you perceived today?
How and why did you address and/or manage the intercultural challenge that you faced today?
Record one specific cultural story, song, or symbol that you experienced today.

In documenting their final reflection, participants will be prompted on key interculturality issues in mediation practice or root causes for communication and dialogue issues by drawing on their own knowledge, insights, and immersion experience, such as:

How have your learnings and experiences affected your approach to peoples of an other-culture in your day to day life and/or in your mediation practice?
What communication or dialogue skills will you bring into your life and/or mediation practice?
How are those communication or dialogue skills relevant to effective mediation practice?
What do your learnings and experiences tell you about the importance of intercultural principles in mediation?

We expect participants will satisfy the following rubric components to demonstrate their competence in being interculturally informed:

To engage in at least 3 days of immersion in the other-culture and demonstrate a willingness to participate despite feeling a sense of discomfort, unease, or unfamiliarity. This will be evidenced by their attendance and daily reflections.
To learn and develop an acceptance of the needs, interests, concerns, expectations of the other-culture in a way that is culturally relevant to their own intercultural interactions and mediation practice. This will be evidenced by their daily and final reflections.
To self-reflect on learnings, insights, and lived experience. This will also be evidenced by their daily and final reflections.

MIMI Foundation 3: Interculturally Included

As the third foundation is focused on putting learnings and reflections into practice, we decided that participants would benefit most by engaging in a final practical workshop to adapt their current core principles, practices, and processes to the interests, needs, concerns, and expectations of the other-culture they immersed themselves in.

We envision the workshop to be a total of 20 hours completed over a 5-day period (4 hours each day). Throughout the 5 days, participants will engage in activities such as group discussions, case studies, and role-play exercises. The key focus of this workshop is for participants to demonstrate they are able to accurately identify and address communication and dialogue issues within an intercultural context. Upon completion of the 5 days, participants will be required to submit an ‘Intercultural Practice Statement’ as well as a portfolio detailing the activities they engaged in.

Group discussions, case studies, and role-play exercises will focus on key interculturality issues in mediation practice, root causes for communication and dialogue issues, as well as a discussion of case studies to address questions such as:

How did each party feel about the experience?
What was the impact on the parties?
What could the facilitator have done differently?
How did the different communication skills influence the outcome?
What does that tell us about the importance of intercultural principles in mediation?

The ‘Intercultural Practice Statement’ is a refined methodology for intercultural interaction and participants will be required to present this with their cohort. This provides an opportunity for them, as well as their cohort, to share insights and experience so that they can learn from each other. Participants will be asked to address a final question such as:

What are you going to do differently (i.e., how are you planning to include your learnings and experience into your life) now that you are informed and involved with the other-culture?

We expect participants will satisfy the following rubric components to demonstrate their competence in being interculturally informed:

To engage in the workshop including all group discussions, case study analyses, role-plays, and other activities. This will be evidenced by their attendance and their portfolio submission following the 5 days.
To apply their learnings and insights accurately to identify and address communication and dialogue issues within an intercultural context and in a way that is culturally relevant to their own intercultural interactions and mediation practice. This will be demonstrated by their portfolio submission following the 5 days.
To present their intercultural practice statement to their cohort. This will be evidenced by their attendance and portfolio submission following the 5 days.
To self-reflect on learnings, insights, lived experience, and peer contributions. This will also be evidenced by their intercultural practice statement and portfolio submission following the 5 days.

Intercultural Competency Specialisation (optional add-on)
As an optional add-on, practitioner-based participants (mediators, family dispute resolution practitioners, lawyers, etc.) can elect to undergo a further 1.5 hour role-play assessment to apply their learnings in a practical scenario.

Our vision for the future is to incorporate this training model within leading institutions (such as mediator Recognised Accreditation Providers, Law Societies, Bar Associations, etc.) to develop an intercultural competency specialisation that practitioners can obtain and enhance their own competencies and professional practices.

Continuing Professional Development (CPD)

Each foundation addresses a different, but very necessary, aspect in intercultural competence development. But, because we believe that competency requires ongoing and continual development, the program will provide life-time access to resources and be supported by mentors, alumni, and peers in the online myRespectAbility community.

Professional Members will also receive exclusive discounts on registration in other myRespectAbility or Affiliate programs and workshops.

Participants who demonstrate extraordinary performance throughout the program may be invited to add a chapter to the Intercultural Competence Playbook–a journal that we will publish, print, and mail annually–and is an opportunity for all to learn from others’ insights and experiences.

Author Biography

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

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

Oxymorons R Us

Posted on 17/09/2024 by Milan A Nitopi

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.

Rather, this article argues that the concepts of facilitative and evaluative mediation themselves are oxymorons. I analyzed problems with these concepts in various pieces in Part 3 of the Real Practice Systems Project Annotated Bibliography (Including the classics Confusing Dispute Resolution Jargon, Houston, We Have a Problem in the Dispute Resolution Field, and “Labels Suck”). So I will not repeat those critiques here.

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.

In the definitive publication defining facilitative and evaluative mediation, facilitative mediation, includes helping parties develop and exchange proposals (in contrast to evaluative mediation where mediators may propose agreement). Thus, by definition, mediator proposals are inherently evaluative and can’t be facilitative.

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.

Public expectations and confidence in the legal system: A brief thought

Posted on 09/08/2024 by Milan A Nitopi

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.