Tag Archives: Dispute resolution

Considering where to publish your Dispute Resolution research and experience

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Pauline Collins and David Spencer
This article has been republished and adapted with permission. The original publication can be located within the Australasian Dispute Resolution Journal.

Despite people negotiating disputes since time immemorial, the formalisation of dispute resolution in Australia dates back only around half a century. Prior to this there was litigation, compromise offers and informal settlement negotiations. Dispute resolution also referred to as alternative, assisted, additional dispute resolution or just dispute management now entails a growing range of approaches to assist parties in resolving or managing their dispute.

This year the Australasian Dispute Resolution Journal (the journal) celebrates 36 years of publishing current scholarly research and in-practice experience in dispute resolution throughout the Indo-Pacific Asia region. The journal has evolved to discuss all dispute resolution approaches and is a faithfull record of change in the civil disputation landscape. Today, “[c]ivil disputes which are resolved by curial adjudication are a minute fraction of the civil disputes which arise in our (or any) society”.

The journal was the brainchild of its foundation Editors, the late Micheline Dewdney and Ruth Charlton along with the then Managing Editor of Thomson Reuters.

The value of a scholarly journal is arguably in its ‘impact’ which is defined by the Australian Research Council as, “[t]he contribution that research makes to the economy, society, environment or culture, beyond the contribution to academic research”. While measuring a journal’s impact is a contested space in academia and the professions with opinions on what constitutes impact varying from discipline-to-discipline and within disciplines, the task is a little easier in the discipline of law. For the law discipline tracing the impact of research and publication can be mapped via law reform and legislative and common law citation that initiates changes to the law.

In its short life, the journal has been cited with authority eighteen times in the work of various state and federal Law Reform Commissions in Australia. The journal has also been cited with approval in at least thirteen judgments of superior courts of record in Australia where the court has been called upon to adjudicate on the developing law surrounding dispute resolution.

The journal’s reach is another measure of its impact. The journal currently has over 500 institutional subscribers ensuring it is available to a wide audience of potential readers. Further, online subscribers accounted for over 20,000 clicks/views in the last twelve months.

From its humble Sydney-centric beginnings, today the editorial board of the journal has expanded to 24 members who hail from Australia, India, Singapore, United Kingdom and New Zealand and from a wide variety of professions and vocations.

For a double-blind peer reviewed scholarly publication, the journal prides itself on its eclectic content. Substantively the journal deals with all manner of dispute resolution from the consensual, informal and less interventiory processes such as negotiation and traditional dispute management methods to the less consensual, more formal and interventionist processes such as adjudication and arbitration. It also seeks out contributions about some of the more contemporary areas of dispute resolution such as restorative justice, therapeutic jurisprudence, collaborative practice, conflict coaching, use of government inquiry mechanisms, wise counsel mediations and the expanding knowledge of human dispute gained from advances in neuroscience.

A critical area serviced by the journal is that of continuing professional development. Our changing world, however, presents constant challenges providing journal editors with a demanding task. Not least of which is the much written about and utilised generative artificial intelligence (GenAI) technology. One of the first GenAI large language models is ChatGPT that was launched in November 2022 and together with its many relatives (knock offs), they are challenging the way researchers, writers and publishers work. This technology is here to stay and will continue to grow and become more efficient and acurate with the effluxion of time. These advances provide a historical leap for humans and the publication industry.

Much has been said about the positives and the perils of GenAI. The proliferation of writing about GenAI of itself makes addressing the topic challenging. Each new technology from clay tablets, the Gutenberg printing press, the typewriter, computers and now GenAI has raised fear, excitement and then adaptation as we adjust to the speed and content by which information and knowledge is communicated. Finding a balanced approach that accepts regulation to eliminate harm but also acknowledging the potential benefits is called for.

The impact of GenAI on the provision of dispute resolution services is now being felt. Whilst online and automated dispute resolution has been in existence for many years, the advent of GenAI, with its undectable ability to not only guide disputants to resolution but then to learn from each experience with the aim of improving its own ability over time, is a new frontier for the provision of such services.

For the researcher and author, the use of GenAI is also presenting exciting possibilities. The use of GenAI to assist with large data set comprehension and analysis can better inform decision-making that in turn can speed up creative innovation to human problems such as disputation. For publishers and editors there is already a growing uptake in the use of such tools to address editing and formatting processes. The likelihood is an increase in the speed of publication outputs and therefore circulation of knowledge.

The mainstay of the journal is original unpublished scholarly work that has not been submitted or accepted for publication elsewhere including online publication. These articles are a mixture of empirical and meta-analysis that are approximately 5,000- 8,000 words in length.

Additionally, the journal publishes a flourishing ‘In-Practice’ section where practitioners can write short articles of 1,500-2,000 words on any topical issue they may have an opinion or view on. Further, this section provides the opportunity for practitioners to raise process issues from their own experiences in the provision of dispute resolution services or as an advocate acting for parties in dispute resolution processes. The practical aspects of dispute resolution sit superbly side-by-side with the more scholarly contributions.

Each edition of the journal includes case notes on cases litigated predominantly in superior courts of record that raise a multitude of issues from enforcing dispute resolution clauses in contracts to the impartiality of third party neutrals. As before, case notes cover all the processes of dispute resolution from mediation through to domestic and international arbitration.

The journal also fufils a ‘clearing-house’ purpose providing book reviews on the latest publications concerning dispute resolution and a ‘Media-watch’ column that reports on global dispute resolution in the media.

Further, the journal hosts special editions where for example multiple papers are published from conference proceedings. Other special editions include themed editions on topics such as dispute resolution in family law or the forthcoming special edition on conflict coaching.

For 35 years the journal has found a place in the abundance of scholarly journals and remains the pre-eminent periodical on the theory, philosophy, law and practice of dispute resolution in the Indo-Pacific Asia region. So, there is a scholarly journal that is worthy of your consideration when seeking to publish your research and practice experience in dispute resolution.

Honorary Professor Pauline Collins and David Spencer are the Co-General Editors of the Australasian Dispute Resolution Journal published by Thomson Reuters.

Honorary Professor Pauline Collins, University of Southern Queensland, is a co-author of, Dispute Management (Cambridge University Press, 2021).

David Spencer is a Solicitor and Deputy Dean-of-Law at the Thomas More Law School at the Australian Catholic University and is author of, Principles of Dispute Resolution (Thomson Reuters, 4th ed, 2024), Mediation Law and Practice (Cambridge University Press, 2006) and co-author of, Dispute Resolution in Australia: Cases, Commentary & Materials (Thomson Reuters, 5th ed, 2023).

This blog is based on an article written by the authors entitled, “The Australasian Dispute Resolution Journal: Past, Present and Future” (2023) 32(4) Australasian Dispute Resolution Journal 210 and is republished and adapted with permission.

Rethinking Family Mediation in England and Wales, and Beyond

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Dr Rachael Blakey

For several decades, the Australian family dispute resolution literature has examined the operation of family mediation and other family dispute resolution procedures. Much of this data comes from funded evaluations and projects following the Family Law Amendment (Shared Parental Responsibilities) Act 2006. However, the English and Welsh literature on contemporary family mediation is limited in comparison. Much of our research has remained focused on the court system, even though many, if not most, people involved in child arrangements or post-separation financial matters deal with their disputes outside of it. My monograph, Rethinking Family Mediation: The Role of the Mediator in Contemporary Times, seeks to reinvigorate discourse and debate on family mediator practice within not only England and Wales, but also other jurisdictions, including Australia. Its opening paragraph reads:

‘Family mediation, like many other procedures, is in a transitionary period. Several traditional concepts – neutrality, facilitation and non-legal support – continue to dominate the discussions around the role of family mediation and the family mediator. These notions remain fundamental to family mediator practice, though their hold has weakened over time. Following decades of reform to the family justice landscape, the work of family mediators is now underpinned by a number of other concepts: flexibility, evaluation and, sometimes, quasi-legal oversight. Family mediators continue to perform their traditional functions, but balance them alongside a rising demand to adapt. They follow a flexible conceptualization in order to provide more comprehensive support to their clients, many of whom have limited access to legal or other advice in the early 21st century.’ (Blakey 2025, p. 1)

Today’s English and Welsh family justice system is very different to that in Australia. We do not have any triage system like the Child and Family Hubs, nor is family dispute resolution mandated. In fact, the Ministry of Justice recently backtracked from 2023 proposals to require most private family law disputants to demonstrate a ‘reasonable attempt to mediate’ before initiating court proceedings, citing concerns about the use of family mediation in cases of domestic abuse. Interestingly, amendments to our Family Procedure Rules in April 2024 mean that judges now have more power to adjourn court proceedings to encourage the use of ‘non-court dispute resolution’ (including family mediation). Judges can also impose a cost order on parties who do not attend a non-court dispute resolution process ‘without good reason’. Whether the Family Procedure Rules have led to non-court dispute resolution becoming mandatory has yet to be seen. Regardless, Rethinking Family Mediation offers valuable insights for family dispute resolution practitioners and academics in various other jurisdictions. It illustrates how policy and legislation can shape mediator practice over time, highlighting mediation’s central positioning within the broader family justice system.

Uncovering the transition from limited to flexible mediator practice

The key thesis underpinning Rethinking Family Mediation is that the role of the family mediator (particularly in England and Wales) has broadened over time, and it is the lack of recognition that this development has occurred, not the development itself, that is inherently problematic. More specifically, I argue that there has been a transition from a limited mediator archetype to a flexible mediator archetype.

The limited mediator archetype is how family mediation practice was, and typically continues to be, conceptualised. They are facilitative and strictly neutral, ensuring that decision-making power rests with the parties at all times. This limited archetype was logical in the traditional English and Welsh family justice system when funding was accessible for many separating parties. Many individuals could still afford a lawyer, even if they were not eligible for legal aid. The limited mediator’s strictly facilitative role was thus appropriate, as more evaluative support and guidance was provided by a lawyer (or other legal practitioner) (figure 1). Nonetheless, the monograph uncovers a long-standing neutrality dilemma for family mediators: neutrality prohibits them from reacting to a power imbalance, yet, in many instances, to do nothing is also an unneutral act. This paradox suggests that the limited mediator was never a perfect or perhaps even ideal archetype.

Figure 1: A binary understanding of facilitative and evaluative behaviours

This critique holds even more weight today. The family justice system in England and Wales is drastically different to when family mediation was first piloted in the late 1970s and early 1980s. Over several decades, policy has increasingly presented mediation as the norm, not simply an alternative, for family matters. This push for private ordering accumulated in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which, as of April 2013, removed legal aid for the majority of private family law court proceedings. At the same time, traditional legal support has become increasingly inaccessible for most separating families. Both factors have led family mediation’s clientele to diversify, with many cases now involving complex legal disputes or difficult party dynamics. The limited mediator, who is unable to provide any form of evaluation, is poorly suited to this clientele. Calls for mediators to adapt have increased as a result.

The monograph argues that mediators have transitioned to a flexible archetype over several decades. It recognises that the demand – both within policy and academic scholarship – for mediators to do more is, in fact, a call for mediators to become more evaluative. The flexible mediator archetype continues to perform a facilitative role, but evaluation is woven within their practices. Facilitation and evaluation are thus not a binary distinction, but rather two concepts on a continuum of mediator practice (as originally proposed by Riskin in 1996, though much of the contemporary English and Welsh literature on family mediation does not acknowledge his work). Mediator neutrality is subsequently re-understood as a moderate concept that does not need to be strictly upheld when doing so would compromise fairness or another normative concept. My monograph recognises that the flexible mediator archetype operated prior to the LASPO reforms, with a number of earlier studies demonstrating the varied work of mediators. However, it is submitted that the contemporary family justice landscape necessitates the archetype even further.

Revealing the flexible mediator archetype after the LASPO reforms

In England and Wales, and many other jurisdictions, debates around how to reform family mediation often become circular. It is said that change is needed to provide a better service. However, such change is not possible under the traditional conceptualisation of the (limited) family mediator. Rethinking Family Mediation submits that this stagnancy is resolved if the flexible mediator archetype is explicitly recognised.

To inform debate, the book outlines findings from an empirical project, consisting of a content analysis of family mediation Codes of Practice and semi-structured interviews with 17 family mediators. Its empirical findings first reveal a new theoretical framework of four mediation functions, all of which are recognised and adopted by both family mediators and their regulatory bodies (figure 2). Mediators are primarily helpers, but regularly evaluate the proposed settlement or party dynamic to determine if they should become referrers to another service (notably legal advice). Mediator evaluation becomes significantly more prominent as they become assessors and, furthermore, intervenors. Additional interview data shows that mediators feel that they are responsible for responding to difficult party dynamics and unfair settlements, justifying their more evaluative practices. Of particular note within the empirical data is the mediator sample’s regular reference to legal rules, set out in both legislation and case precedent. This alludes to a growing quasi-legal role for today’s family mediators, most likely influenced by the withdrawal of accessible legal support after the LASPO reforms.

Figure 2: The mediator function framework, plotted on a continuum of facilitative to evaluative strategies

These more evaluative behaviours are discussed by the entire mediator sample, even if a participant understands their neutrality in very strict, absolute terms. Intriguingly, over two-fifths of the mediator sample prefer an alternative understanding of their neutrality that enables them to intervene in negotiations to encourage a good quality settlement. This stance appears more closely aligned with the concept of impartiality, rather than neutrality, though whether the former is a better term to describe the flexible mediator archetype is unclear (mirroring similar debates in Australia).

Implications for family justice going forward

The quasi-legal role of flexible mediators, as identified through the monograph’s empirical data, has significant implications for the professionalism and training of the profession. One chapter of Rethinking Family Mediation specifically considers the extrinsic and organisational barriers to reform, asking whether family mediation should be regarded as a ‘legal service’ under English and Welsh legislation. While the monograph does not provide a definitive answer to the question, it hopes to reinvigorate debate in the area. The chapter also uncovers findings on the current status of family mediation services at a time when the government expects parties to mediate but has provided very little government funding to support mediators themselves.

Importantly, the findings covered in this book have significant implications for our understanding of family justice. Family justice is generally understood as something that is only available through court (and supported by legal representation). Yet much of the empirical data discussed in the book is evidence of a shift in not only family mediator practice, but family justice itself. In the contemporary English and Welsh, as well as Australian, landscape, family justice is increasingly provided through non-lawyers, such as mediators, who are often informed by legal norms. The book connects these changes to a rising hybridity across family law practice, with lawyers additionally becoming more collaborative and less adversarial over time.

This contemporary vision of family justice is not ideal, nor perfect. Without further scrutiny of the various professionals within the family justice system, the risk of improper or unfair outcomes increases. However, Rethinking Family Mediation is premised on finding pragmatic solutions to the challenges within our modern family justice systems. In order to do so, the reality of non-dispute resolution practice must be identified and, importantly, recognised.

It is of no surprise that the monograph regularly returns to the concealment of the flexible mediator archetype – and most likely many other flexible practitioners – as a key issue within our current discourse around family justice reform. Ultimately, it argues that the changes in family mediator practice have been both a natural part of the profession’s development, as well as a consequence of the contemporary family justice system with limited funding and inaccessible legal support. The book will therefore be of significant interest to anyone interested in learning more about family dispute resolution in terms of not simply how the process was traditionally conceived, but how it operates in reality.

Author Biography

Dr Rachael Blakey is an Associate Professor at the University of Warwick. Her research focuses on family mediation and access to justice. She is a co-opted Director of the Family Mediation Council, the main regulatory body for family mediators in England and Wales. Rachael is interested in legal professionalism more widely, and is currently conducting the first empirical study on the English and Welsh ‘one-lawyer-two-clients’ format of family law support.

Author details: rachael.blakey@warwick.ac.uk | University Profile | LinkedIn | Rethinking Family Mediation: The Role of The Family Mediator in Contemporary Times (Bristol University Press 2025)

All figures were provided with permission from Bristol University Press.

Are Mediators Ever Liable? Rethinking Accountability in Our Practice

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Samantha Hardy
This article has been republished with permission. The original publication can be found at The Conflict Management Academy.

Inspired by Jennifer L. Schulz (2023). Mediator Liability 23 Years Later: The “Three C’s” of Case Law, Codes, & Custom. Ottawa Law Review / Revue de droit d’Ottawa, 55(1):151–186. Available at: https://doi.org/10.7202/1112508ar

A Quiet Assumption

For many of us working in the mediation field, there’s a quiet assumption we rarely question: that we’re not likely to be sued for what happens in a mediation room.

And, to date, that assumption has mostly held true. While a few attempts to sue mediators have occurred in different jurisdictions around the world, none have resulted in a mediator having to pay compensation to a party.

Canadian mediator and law professor Jennifer Schulz reviews 23 years of case law across six common law countries—including Australia—asking why mediators are not being held liable and arguing that they should be. The article is well worth reading in full, as the detailed summaries of the cases examined provide a vivid picture of the current gap between our aspirational standards of practice and the lack of accountability for those who do not meet them.

The Current Reality: A Legal Shield

Schulz’s research confirms what many of us might suspect: across Canada, the US, Australia, New Zealand, England, and South Africa, courts are still not holding mediators legally liable for negligent practice.

Even in cases involving mediator coercion, numerical errors in settlements, inappropriate behaviour, or poor handling of vulnerable parties, the most common judicial response is to set aside the agreement—not to hold the mediator accountable.

There are four main reasons for this legal shield:

  1. Causation hurdles – it’s hard to prove that a mediator’s actions caused a party’s loss.
  2. Mediator immunity – either through legislation (as in many US states and Australian courts) or through contractual terms.
  3. Mediation confidentiality – which often prevents complainants from even introducing evidence of wrongdoing.
  4. Lack of a defined standard of care – without it, there’s nothing to measure negligence against.

As Schulz puts it, we’re operating in a legal vacuum—where professional expectations are high, but legal consequences are rare.

The “Three C’s” Proposal: A Way Forward?

Schulz doesn’t advocate for a wave of mediator lawsuits. Instead, she proposes a more thoughtful framework for developing legal accountability: the Three C’s.

  • Case Law – court decisions that, even if inconsistent, begin to sketch the boundaries of acceptable practice.
  • Codes of Conduct – such as those issued by AMDRAS, state-based mediator panels, or court-connected schemes.
  • Custom – what a reasonable mediator would do in a given situation, based on community norms and practice standards.

I would personally add another C, perhaps attached to the Codes of Conduct item – and that is Complaints. More could be done to educate clients about what they should be able to expect from their mediator, and mediator complaints services could be more courageous and transparent about how they respond to client complaints. Complaints handling that is half-hearted or that aims to protect mediators rather than hold them publicly accountable only exacerbates the problem and pushes it underground.

These sources could help courts (and the profession) articulate what counts as competent mediation (the basis for a standard of care in negligence) and what crosses the line.

What the Cases Tell Us

The article walks through dozens of cases—some troubling, some absurd, many familiar. A few key themes emerge:

1. Coercive Behaviour Is Common—But Unpunished

Multiple cases involve mediators who pressured parties to settle, made legal predictions, lost their tempers, or belittled participants. Courts have rarely responded with consequences—unless the party was unrepresented and severely disadvantaged. The courts typically assume that if a party is legally represented, their lawyer will protect them from any harm.

Notably, some cases even include allegations of racist or discriminatory remarks by mediators—again, without findings of liability.

2. Vulnerability Is Often Overlooked

Incapacity cases—where a party was overwhelmed, unwell, or otherwise unable to engage effectively—are nearly always dismissed. Courts seem to assume that the voluntary nature of mediation allows a party to stop participating at any time, so choosing to continue negates their right to claim. This type of thinking shows a lack of understanding of how incapacity might show up, in that it might also make someone incapable of making a good choice to leave the mediation.

3. Mediators Who Make Mistakes Still Escape Consequence

From drafting errors to bad legal advice, mediators are largely shielded unless the consequences are glaring and the party can prove they were misled into harm. In such cases, courts tend to place responsibility on the parties’ lawyers—even where the mediator dictated the settlement. Even where there is no lawyer involved, the likely outcome is that the agreement will be set aside, rather than any consequences for the mediator.

Implications for Australian Practice

So what does this mean for those of us practising under the AMDRAS framework or in private, court-connected, or hybrid contexts?

  • Legal immunity doesn’t mean ethical impunity. Just because we’re unlikely to be sued doesn’t mean we shouldn’t hold ourselves—and each other—to higher standards.
  • Custom matters. If the law ever does change, it will likely rely on what we say is normal, ethical, and good practice in our mediation communities.
  • The codes we sign up to should guide us daily—not just when we’re audited or accredited. They may form the basis of future legal standards.
  • Training matters. When mediators pressure parties, overlook incapacity, or provide questionable advice, it’s often due to poor training, not bad intentions.
  • RABs need to have rigorous complaints processes.  Until the courts step up and impose consequences on mediators who behave badly, the mediator’s accreditation body must be able to manage complaints effectively to prevent harm to parties and the profession’s reputation. This means holding mediators accountable for improper behaviour and educating members about where the line will be drawn.
  • Industry/peak bodies could play an important role in educating clients about their rights/expectations of a mediator. It’s one thing for mediators to hold themselves accountable (and be required to do so through professional standards). It’s another for a client to be informed and educated about the treatment they are entitled to receive.

It is also important to acknowledge that there are many cases in which aggrieved clients lash out at mediators who have done nothing wrong. Vexatious complaints seem particularly common in the family sector, and it is important that the practitioners involved are treated with respect and allowed to defend themselves with dignity.

A Profession at the Crossroads

Mediation has come a long way—from fringe alternative to mainstream dispute resolution. With that growth comes a challenge: do we want the status of a profession without the accountability?

Schulz’s article offers a roadmap. The future of mediator liability may not lie in sudden lawsuits or rigid standards, but in a profession willing to evolve its own definitions of excellence, to recognise when harm has been done, and to hold people accountable.

As Australian mediators, particularly with the new AMDRAS standards about to come into effect, we’re well placed to lead this conversation. The question is: will we?

What’s the alternative to mediation? Meet the European Board Game Going Global

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Responding to @Massimiliano Ferrari’s recent post sharing @Dr. Anna Maria Bernard’s powerful insights about digital conflicts in Basilicata. Here’s what we’re seeing as Medianos spreads globally…

Massimiliano Ferrari’s sharing of Dr. Anna Maria Bernard’s insights from Basilicata Region perfectly captures what those who understand transformation are witnessing worldwide – the emerging need for approaches that naturally dissolve digital-age conflicts. Dr. Bernard’s experience with Medianos confirms what you may already be sensing as this remarkable method continues spreading across continents.

She writes about how “digital conflicts are the order of the day” and as you consider this, you might recognize the truth in her observation. Just last month, I watched a CEO and his teenage daughter discover something profound as they sat across from each other, both having believed the other “just doesn’t get it” about screen time boundaries. Traditional mediation would have had them negotiate rules and compromises. But what happened next was something that transforms everything.

In the past, families like theirs relied on authority-based solutions that inevitably left children feeling unheard and parents feeling frustrated. When conflicts arose over homework, curfews, or device usage, conversations naturally escalated into battles of will rather than becoming opportunities for deeper understanding. The tools available were limited to expensive counseling, theoretical parenting books, or time-consuming mediation processes that few families could access or sustain effectively.

Then the digital revolution changed everything, didn’t it? As Dr Bernard observes, we’re dealing with conflicts our parents never imagined: How much screen time creates balance? What about online privacy and safety? How do we manage social media wisely? The generational digital divide widened as children became native users while parents struggled to keep pace with change. These “digital conflicts” became daily occurrences, with the adolescent brain still developing and naturally impulsive constantly stimulated by digital temptations that multiply exponentially.

What she discovered in Basilicata, you’re now beginning to see replicated across Europe and beyond. Medianos – The Game isn’t just resolving these conflicts; it’s fundamentally transforming how families, schools, and even workplaces naturally approach disagreement.

That CEO and his daughter? Within two hours of facilitated gameplay, something remarkable began to unfold. By “playing” each other’s roles in a safe, structured environment, they started to understand perspectives they’d never allowed themselves to consider. The daughter experienced the weight of parental responsibility for digital safety, and the father felt the frustration of being constantly monitored and distrusted. When they returned to their original roles, their conversation had completely shifted – from positional bargaining to collaborative problem-solving that felt surprisingly natural.

This is the power Dr Bernard wrote about when she described how Medianos allows participants to “go beyond the conflict and enhance what you feel at the level of emotions, thoughts and behaviours.” And what’s truly exciting is how rapidly this approach continues spreading globally, creating transformation wherever it goes.

Created by Massimiliano Ferrari and supported by a rapidly expanding community of Ambassadors, Medianos is spreading across the world at unprecedented pace, and as it does, more people are discovering its effectiveness. Recent weeks have seen new Ambassadors recognized across Italy, Canada, France, Spain, Brasil, Latvia, Ecuador, and Albania.

I, Rory Gowers, as the newly appointed Australasian Medianos Ambassador and creator of the My-RESPECT-Ability negotiation framework, am curious to discover how this face-to-face board game experience will resonate with digital natives here in Australasia while delivering the profound results Dr Bernard described.

The game format creates what she calls “a safe, secure, and stimulating environment” where participants naturally develop genuine empathy through facilitated face-to-face interaction. Communication skills emerge organically as players learn active listening and assertive expression without it feeling like traditional training. Hidden needs surface safely as the game reveals unexpressed fears that fuel conflicts. Most importantly, players develop what I call “respect-ability” the expanding capacity to engage respectfully even during difficult conversations.

Dr Bernard’s observation that “gaming experience with Medianos was pivotal in translating theoretical concepts into practical skills” captures exactly why this approach succeeds where traditional methods struggle. In our screen-saturated world, bringing the power of gaming back to physical interaction creates genuine human connection that digital experiences simply cannot replicate.

The transformation extends far beyond individual families, doesn’t it? As she noted with the teachers in Basilicata who were “fascinated by the educational and formative opportunity,” we’re witnessing schools, workplaces, and communities naturally develop cultures of respectful engagement. When conflicts become catalysts for deeper understanding rather than relationship damage, entire organizational cultures begin to shift.

Imagine, if you will, boardrooms where disagreements become opportunities for innovation rather than positional battles. Picture classrooms where teachers and students collaborate through understanding rather than authority. Envision families where generational divides bridge naturally through shared gaming experiences that honour everyone’s perspective completely.

This is the future Dr Bernard glimpsed in Basilicata – and it’s spreading globally with increasing momentum. Her closing question resonates deeply, and you might find yourself wondering: “What strategies are you using to manage digital conflicts in the family or at school, or in the workplace?”

The answer, increasingly, is becoming Medianos – The Game. We’re actively preparing for launch in Australasia in Quarter 4 2025, bringing this proven approach to a region where digital conflicts are as prevalent as anywhere in the world, and where solutions are needed most.

As Dr Bernard concluded, “Open dialogue, empathy, emotional intelligence education and novel tools like Medianos are the key to transforming ‘digital conflicts’ into opportunities for growth and deeper bonds.” The enthusiasm she witnessed in Basilicata is now spreading across continents – one family, one school, one workplace at a time, creating lasting change.

For more information about bringing Medianos to your organisation or community, reach out to MyRespectAbility or respond to the post directly and discover what becomes possible.

What strategies are you using to transform conflict into connection? Join the conversation below and share what you’re discovering.

Author Biography

Rory Gowers is a Master of Dispute Resolution (MDR), Master of Education (MEd), certified Master NLP Practitioner, and intercultural mediator with deep experience leading transformative change across global business and community settings. Based in Greater Sydney, Australia, Rory helps leaders and organisations replace conflict cycles with clarity, cooperation, and lasting resolution.

As the founder of The Constructive Solution, Rory applies structured, values-based methodologies to resolve complex interpersonal and systemic challenges—especially in high-stakes environments like construction, government, and professional services. His work produces measurable outcomes: reduced rework, improved trust, and faster decision-making.

He also leads Mastering Intercultural Mediation Initiatives (MIMI)—a high-impact executive program that equips senior leaders to build inclusive, high-functioning ecosystems by mastering cultural agility and conflict competence.

Now, Rory is bringing the internationally acclaimed Medianos – The Board Game to Australasia. As the official Australasian ambassador, he introduces this dynamic, play-based tool to transform how professionals learn and practise negotiation, mediation, and respectful engagement.

Rory’s mission is clear: to grow respect, resolve conflict, and realise the shared vision of a place for all and peace for all in our time—by guiding people and systems to adopt practical, repeatable solutions that build trust and deliver sustainable results.

Contact Rory:
🌐 Web: www.myRESPECTability.com
📧 Email: rory.gowers@gmail.com
📱 Mobile: +61 425 292 811
🔗 LinkedIn: linkedin.com/in/constructiveconflictsolutions

AI and Dispute Resolution: Why You’ll Need It Sooner Than You Think

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

Imagine doing your work without word processing, spell checkers, email, the internet, search engines, voicemail, cell phones, or Zoom.

That’s how you’ll probably feel in the not-too-distant future about working without artificial intelligence (AI).

Innovations often seem radical at first. In time, people just take them for granted.

ABA Formal Opinion 512 states that lawyers soon may be ethically obligated to use AI. “As GAI [general artificial intelligence] tools continue to develop and become more widely available, it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.”

AI isn’t replacing dispute resolution professionals any more than calculators replaced accountants. But just like calculators, AI tools are becoming essential tools for legal and dispute resolution work.

Remember when everyone freaked out when they first had to use Zoom at the beginning of the pandemic? Now people don’t give it a second thought. It probably will be the same way with AI before you know it.

You Don’t Have to Love AI – But You’d Better Get to Know It Soon

Two companion articles – How I Learned to Stop Worrying and Love the Bot: What I Learned About AI and What You Can Too and Getting the Most from AI Tools: A Practical Guide to Writing Effective Prompts – are designed to help dispute resolution faculty, practitioners, students, and program administrators get comfortable with AI. The first article tells why AI literacy is becoming more important all the time. The second shows how you can easily become more AI literate.

Together, they offer a friendly nudge for people who feel they’re behind – spoiler alert: this may be you – and training wheels so you don’t fall flat on your face.

Love the Bot describes my own reluctance to use AI. Now I use it every day to think and write better, faster, and more creatively.

But I’m not the only one. Law students are already using AI. Practitioners and clients are too.

So this isn’t a quirky corner of practice anymore. It’s the center of a growing professional expectation. Law schools are adding AI courses. Some are embedding it across the curriculum. If professors don’t engage with AI now, they’ll be learning from their students instead of the other way around.

Good Prompting Can Be Your Superpower

Getting the Most from AI Tools is a hands-on guide to producing better results with AI.

It walks you through the mechanics of writing effective prompts. It’s packed with examples for mediators, attorneys, students, faculty, program administrators, and even disputants.

We all know that AI sometimes hallucinates. But you’re hallucinating if you think that you can wait to start using AI tools until they stop hallucinating. Ain’t gonna happen anytime soon.

In the meantime, you can benefit from AI tools if you know how to use them (and how to manage hallucinations and other problems). You don’t need to be an expert – just thoughtful, curious, and careful.

The results from AI tools may depend less on the technology itself and more on users’ skills. Like other skills, it improves with practice.

Becoming AI Literate Is Easier Than You Think

These articles describe AI literacy as a process of continual learning as AI technology continues to evolve.

The first steps are just getting curious and trying it at your own pace. Try starting with simple tasks like:

  • Asking questions you already know the answers to
  • Getting recommendations for movies appealing to your tastes
  • Summarizing something long and boring
  • Brainstorming ideas for a class, article, or paper
  • Polishing a rough email, memo, or draft

As you gain confidence, you can ask it to help with your work. Professors can revise a syllabus. Students can prep for a simulation. Mediators can brainstorm tough moments. Program directors can develop orientation materials. Etc. Etc. Etc.

The possibilities are limited mostly by imagination and fear. These articles help with both.

Don’t Regret Waiting to Get the Benefits of AI

AI isn’t just about efficiency. It’s about equity, ethics, and excellence. You can choose how to express your values through it.

AI tools can reveal students’ thinking, making teaching more responsive. They can also help lawyers and clients make better decisions, especially when time or money is short. And lots more.

If you’ve been hesitant, these articles can help you do things you want to do – and things you haven’t even imagined. But only if you take the first step.

Washington Post columnist Megan McArdle writes, “We are resting in the eye of a gathering [AI] storm, and those who fail to fortify themselves now risk being swept away when the storm finally unleashes its full power.”

Take a look – and don’t get swept away.

Introducing the Financial Industry Disputes Resolution Centre in Singapore and its Unique Approach to Mediation

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By Eunice Chua (CEO, FIDReC) and Rachel Lim (Intern, FIDReC)

The context of consumer financial disputes

Tom went on an overseas holiday with his friends, and they went out to a pub on their last night. They drank till the early hours of the morning. Tom was in a celebratory mood and paid for everyone’s drinks with his credit card. He and his friends left for their hotel at 3am. Tom only woke up at 2pm the next day and hurriedly rushed to catch his flight back to Singapore. After he arrived in Singapore, he realised that one of his credit cards was missing. He immediately made a police report and called the bank to report the loss. In the meantime, someone had already gone on a shopping spree with Tom’s credit card and bought various items to the tune of S$7,000. The bank billed Tom for this amount, but Tom disagreed.

Sally purchased a hospital and surgical insurance policy from her brother-in-law a few years ago. Because she trusted him, she left him to fill out all the details and signed where he told her to. Her brother-in-law went through with Sally a list of questions at the end of the proposal form and the terms and conditions of the policy, but Sally did not pay much attention at the time. Unfortunately, Sally was diagnosed with a tumour on her breast. She was admitted to the hospital for surgery. After her surgery and hospital stay, Sally submitted an insurance claim. As part of its usual process, the insurer contacted Sally’s doctor to request information on Sally’s condition. It was then that the insurer found out that Sally had a history of diabetes. Sally had failed to disclose this information in the insurance proposal form.  The insurer told Sally they would void her policy due to her failure to disclose her diabetes.

These scenarios reflect real cases that consumers bring to the Financial Industry Disputes Resolution Centre (FIDReC) in Singapore. FIDReC was established in August 2025 as an initiative from the financial industry to provide an accessible platform for financial institutions to resolve customer complaints in an effective, amicable, and fair way. Accordingly, filing a claim at FIDReC is free for consumers. The process is simple, with mediation being deployed first and adjudication being offered as an option only if there is no settlement at mediation.

The FIDReC approach to dispute resolution

Five core principles shape FIDReC’s approach to dispute resolution: accessibility, independence, effectiveness, accountability, and fairness. Most of these are self-explanatory but it is worth saying more about fairness.

The FIDReC process is designed in a way that recognises the inherent imbalance of power between an individual consumer and a financial institution and seeks to address that balance in a fair manner.

First, designated financial institutions are required by regulation to subscribe to FIDReC and participate in its process. This ensures that consumers will have the opportunity to bring their claims to FIDReC and have them answered. Second, only consumers may bring claims at FIDReC. They may do so without any filing fee and the claims filing is done online. This promotes accessibility even for those that are not well off. Third, mediators are staff of FIDReC who are well versed with the regulations governing the financial industry as well as industry standards and expectations. Whilst maintaining their impartiality, they may make suggestions to parties and provide information to help them in their decision-making. This promotes a fairer playing field especially for more vulnerable consumers. Should there be any settlement, the mediator gives parties time to consider before they sign on any agreement. This reduces the risk of any pressure to settle. Finally, the process is driven by the consumer who can opt to proceed to adjudication if they are not satisfied with the mediation outcome. They pay a nominal fee of S$50 per claim for an independent adjudicator to review their submissions, conduct a hearing and decide on whether they have a valid claim. Subject to approval by the adjudicator, the consumer can choose the mode of adjudication – in-person, online or based on documents review. The adjudication outcome binds only the financial institution who must enter a settlement in the terms of any award made by the adjudicator if the consumer so accepts. If the consumer disagrees with the adjudicator’s decision, the consumer’s legal rights are not affected, and they may still pursue a case in court or in other avenues.

Mediation first

More than 80% of claims filed at FIDReC are resolved at mediation, demonstrating the value of mediation to bring about closure in consumer financial disputes. Mediation is a resource-intensive activity as one mediator is assigned to each case and follows that case through from beginning to end. The mediator will need time to understand and clarify the claim that the consumer is bringing as well as to review the financial institution’s investigation report. It is hard work and “heart work” for the mediator as consumers may come with varying expectations and intense emotions. It is also a journey that could take place over months. Nevertheless, the benefits of mediation are clear.

First, mediation allows the parties to tell their stories and be directly involved in shaping a way forward. The information-exchange that takes place during mediation educates the parties on their rights and responsibilities and equips them with knowledge. They may also be able to negotiate better with each other in a confidential setting with the support of a mediator.

In Tom’s case, mediation allowed Tom to acknowledge that he could have been more careful to safeguard his credit card while putting forward the efforts he did take to report the loss of his card when he discovered it. The bank was able to share about the dispute resolution process it had in place for credit card disputes and its considerations. Nevertheless, the bank was not limited to considering the legalities of the claim and could also account for Tom’s history with them. In the end, the bank made a goodwill offer to absorb twenty percent of Tom’s losses, which Tom accepted.

Second, mediation outcomes can be creative solutions that meet the interests of both parties. Such outcomes may not be possible through the court process.

During the mediation in Sally’s case, the insurer showed she had answered “no” to having diabetes in the proposal form and pointed out a warning on the form in red that failure to disclose material information could lead to claims being rejected or the policy being voided. Sally explained that her diabetes was mild, well-managed, and unrelated to her breast tumour. The mediator suggested she submit a medical report on her diabetes condition to allow the insurer to review its assessment. After considering the additional medical report, the insurer agreed—on a goodwill basis—not to void the policy but to adjust the policy terms. Although Sally’s claim was not reimbursed due to the non-disclosure, Sally accepted the outcome because it was important for her to keep her insurance coverage.

Third, relative to adjudication and going to court, mediation helps to save time and costs. Most cases at FIDReC are closed within six months from the date they are accepted for handling. Cases resolved through mediation usually close within three months.

Why not something different?

FIDReC is certainly not the only model existing in the world that deals specifically with consumer financial disputes. The Australian Financial Complaints Authority (“AFCA”) shows another way forward with its own model of dispute resolution that combines conciliation with a preliminary assessment followed by a binding determination (if the consumer accepts it).

The key difference between the two is that AFCA is a statutory body equipped with a broad fairness jurisdiction and powers to order more than just financial compensation (AFCA can even order an apology as a remedy!). This imbues AFCA with more authority whereas FIDReC relies on the cooperation of the parties to promote settlement at mediation, with adjudicators limited to ordering financial compensation. The local context is also a crucial factor. AFCA supports more than 26 million people spread across an entire continent. FIDReC supports a population of about 6 million in a small island state 0.009% the size of Australia. Even as FIDReC can offer a personalised high human touch approach including the option of in-person mediation meetings and adjudication hearings, this may not be feasible in Australia where conciliation is conducted through a telephone conference and preliminary evaluations and determinations are based on a documentary review.

The scope of work of AFCA and FIDReC is different too. Although the focus is consumer financial disputes, AFCA has a much higher claim limit exceeding AUD1 million. FIDReC does not impose any claim limit during mediation but has a limit of S$150,000 per claim for adjudication. This has consequences for process design. For example, AFCA permits external legal representation given that high value claims can have greater complexity, whereas FIDReC does not as it prioritises a more informal and low-cost approach. AFCA relies on more evaluative modes of dispute resolution like conciliation, preliminary assessment, and determination. FIDReC primarily relies on mediation with adjudication being resorted to less than 20% of the time.

FIDReC’s mediation-first model has proven to be effective within Singapore’s context. By focusing on amicable resolutions and keeping processes informal, FIDReC ensures that everyday consumers can navigate financial disputes without being overwhelmed and can continue their relationships with their financial institutions. 

That said, we recognise that the financial landscape is constantly evolving. As products grow more complex and consumer expectations shift, FIDReC remains open to refining its approach. Be it integrating new tools, expanding our jurisdiction, or adapting elements from other models like AFCA’s, we are committed to staying relevant and responsive whilst being guided by our core principles.

Eunice Chua is the FIDReC CEO overseeing mediation and adjudication of consumer financial disputes in Singapore. Before that, Eunice was Assistant Professor at the Singapore Management University, specializing in alternative dispute resolution, evidence, and procedure. She remains a Research Fellow at the Singapore International Dispute Resolution Academy. Eunice was formerly Justices’ Law Clerk and Assistant Registrar of the Singapore Supreme Court, where she concurrently held appointments as Magistrate of the State Courts and Assistant Director of the Singapore Mediation Centre. She was also the founding Deputy CEO of the Singapore International Mediation Centre. 

Rachel Lim is an aspiring Law and Finance student and a proud graduate of Hwa Chong Institution. With a deep interest in Economics and meaningful involvement in grassroots organisations, she has developed a quiet yet insightful appreciation for how money moves through society. In this debut work, Rachel explores the growing issue of scams in Singapore’s payment systems, emphasising the importance of awareness and financial mindfulness. Through compassionate storytelling and clear guidance, she hopes to shed light on the support systems available to victims, offering a hopeful and empowering message for those navigating today’s complex financial landscape.

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.

How Attorneys Can Be Quasi-Mediators

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John Lande
This article has been republished and adapted with permission. The original publication can be located within the University of Missouri School of Law Journal.

How Can You Turn Adversarial Attorneys into Quasi-Mediators?, my Theory Meets Practice column in CPR’s Alternatives magazine, summarizes a discussion with members of the Association of Attorney-Mediators. It builds on Creating Educational Value by Teaching Law Students to be Quasi-Mediators.

Attorneys acting as quasi-mediators use mediation techniques but they aren’t neutral. These attorneys routinely help their clients realistically understand the their cases. The attorneys promote their clients’ interests by enlisting the mediators’ help when needed and encouraging the other side to adjust their positions. The attorneys prefer to be cooperative whenever appropriate. They tailor their actions based on their clients’ preferences and the other side’s approach. If the other side is acting badly, these attorneys vigorously advocate their clients’ interests. Another term for quasi-mediators is “good lawyers.”

I asked the attorney-mediators about attorneys who behaved cooperatively and adversarially in their cases. The Alternatives article combines their responses with suggestions from the Real Practice Systems Project Menu of Mediation Checklists.

Here’s a summary of the Alternatives article. Mediators can promote cooperation by asking attorneys about the following issues during conversations before mediation sessions:

  • Causes of underlying conflict.
  • Client’s interests, goals, and priorities.
  • Possible options for settlement in addition to lump-sum payments.
  • Special needs of any participant.
  • Personalities and dynamics of participants.
  • Expectations about how participants might act in mediation session.
  • “Hot buttons” that might cause counterproductive reactions.
  • Non-negotiable issues.
  • Negotiable issues.
  • Potential barriers to agreement.
  • Actions needed before mediation session to make mediation productive.
  • How mediator can be helpful during mediation session.

Mediators can help attorneys make realistic estimates of possible court outcomes by asking about:

  • Potential factual discoveries that would be helpful.
  • Potential factual discoveries that would be harmful.
  • Assumptions they are very confident about.
  • Assumptions they are not very confident about.
  • What would change their assumptions about the possible court outcome.
  • What might change the other party’s assumptions about the possible court outcome.
  • How they would persuade a skeptical judge or jury about arguable issues.
  • Their clients’ risk tolerance for unfavorable outcomes.

Here’s a list of dos and don’ts for attorneys to act as quasi-mediators:

Do

  • Listen carefully and respectfully to everyone.
  • Treat each client’s case individually, not as a routine case like others.
  • Act as a counselor to your clients as well as an advocate.
  • Learn and respect your clients’ interests, goals, and priorities, including intangible interests.
  • Consider possible options for settlement in addition to lump-sum payments.
  • Develop a good working relationship with counterpart attorneys.
  • Consider the other side’s perspective.
  • Develop a realistic perspective of your case. 
  • Candidly discuss the strengths and weaknesses of your case with your client.
  • Develop options and take positions to advance your clients’ interests that lead to agreements acceptable to the other side whenever appropriate.
  • If you mediate, talk privately with mediators before mediation sessions.

Don’t

  • Develop a default approach of treating everyone as an adversary.
  • Give your clients unrealistically optimistic evaluations of their cases.
  • Use an adversarial approach to impress your clients.
  • Take unreasonable positions or encourage your clients to do so.
  • Act based on negative feelings about a counterpart attorney or party.
  • Make unwarranted accusations against the other side.

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.