What do we Call Ourselves Blog: Conflict Manager or Dispute Resolver?

Posted on 12/12/2025 by Peter Condliffe

Peter Condliffe PhD and Claire Holland PhD
This blog is a summary of a more substantive paper currently in preparation and is based on that paper: See Condliffe, P and Holland C, What Do we Call Ourselves: Conflict Manager or Dispute Resolver, in preparation.

Introduction

This blog has come about as a result of the author’s collaboration on a new and seventh edition of Conflict Management: Theory and Practice (previously titled ‘Conflict Management: A Practical Guide’ Lexis Nexis, 2019). Earlier editions had been written by a single author, and decisions regarding framing, scope, and terminology had therefore not required negotiation. The co-authorship of the new edition thus offered an opportunity to revisit, clarify, and reaffirm the foundational assumptions that have shaped the book since its inception.

Among the most consequential of these framing decisions was the title itself, Conflict Management. Since the publication of the first edition in 1991, this term has been deliberately preferred over the more commonly used ‘disputeresolution’. This choice was not incidental. It reflected an underlying set of conceptual, theoretical, and practical commitments that distinguished the work from other texts in the field and has continued to guide its evolution over subsequent editions. After thorough discussion, the authors reaffirmed their decision to retain Conflict Management in the title, recognising it as central to the book’s epistemological and pedagogical identity.

There are a number of reasons why this may be important because creating “mental models” of our interventions as conflict managers can effect how we behave and make decisions.¹ They also help us with longer term, structural and value-based conflict interventions. They can also, we believe, keep us more process oriented and culturally aligned and responsive.

Our discussion unfolded in three ways summarised below.

The Conceptual Conversation

A foundational step was engaging with the concept of conflict management and particularly the term conflict. Although widely used across scholarly and practitioner discourses, conflict remains an inherently complex and contested concept.² It resists a singular definition and is interpreted variously depending on disciplinary orientation, cultural context, and situational dynamics. In both teaching and professional practice, defining what conflict is, and perhaps more importantly what it means, has proven to be a persistent challenge.³ Increasingly, pedagogical approaches have shifted from prescriptive definitions toward participatory inquiry, encouraging learners and practitioners to articulate, compare, and synthesise their own understandings of conflict.⁴

We concluded that there were five key interrelated dimensions (perception, interpersonal interaction, interdependence, intrapersonal dynamics, and emotion) which would enable us to provide a conceptual scaffold for understanding these terms. This conceptual argument suggests that conflict is best approached not as a discrete event or condition but as a complex, evolving process embedded in human cognition, emotion, and social relationships. Recognising this multidimensionality provides a conceptual foundation for understanding why management, rather than resolution, may more accurately capture the ongoing, adaptive work required in navigating conflictual human experiences. Our perspective is broadly ‘social constructivist’ in orientation.⁵

Like Avruch⁶ and Lederach⁷ have argued, we believe conflict is both embedded in and expressive of cultural patterns, the shared symbols, narratives, and cognitive schemas that structure how groups perceive and respond to difference. Understanding conflict, therefore, requires a careful examination of the cultural knowledge and everyday assumptions that shape how people interpret social reality.

We were further challenged by the ambiguity and interchangeability of key terms, particularly conflict and dispute. Although frequently used as synonyms in everyday and professional discourse, these terms carry distinct theoretical and practical implications. Conflict can be understood as a dynamic process of disagreement, tension, or grievance that emerges within or between individuals and groups.⁸ In contrast, a dispute represents a more specific and manifest expression of conflict, such as an event or situation in which opposing parties directly express incompatible or opposing positions or claims.⁹ In this sense, we consider conflict to be a broader term than dispute.

We were particularly influenced in this respect by the work of Australian diplomat and scholar John Burton, whose pioneering work in conflict analysis continues to influence both international and domestic peace studies. He argued for a sharp distinction between disputes and conflicts.¹⁰ According to Burton, “conflicts are struggles between opposing forces, struggles with institutions, that involve inherent human needs in respect of which there can be limited or no compliance.”¹¹ In other words, disputes may be resolved through negotiation or procedural settlement, whereas conflicts reflect structural or identity-based tensions that resist simple resolution because they implicate people’s basic needs for recognition, security, and belonging.¹²

Whilst we have some issues with Burton’s distinctions it remains conceptually powerful and moving forward from this perspective, the essential task lies not in eliminating conflict but in managing it adaptively and contextually. For us then it is preferable to base the distinction between conflict and dispute on process rather than on the possibility of resolution. A dispute represents a particular response or manifestation within the broader process of conflict, not a fundamentally different phenomenon.

Conceptualising practice as conflict management allows for a more comprehensive engagement with the full range of human experience embedded in conflictual relationships.

The Inclusivity Conversation

The other discussion we had, and are having, arises from our’ extensive practical experience as mediators, trainers, facilitators and mentors. Over many years of practice, the authors have predominantly been supporting individuals and groups in conflict management rather than definitive conflict resolution.

By shifting our focus then to conflict management we recognise that successful practice may involve containment, transformation, or construction of ongoing relational processes, not just the ‘end’ of conflict. This distinction has implications for practitioner identity, process design and expectation-setting for participants.

This inclusive orientation aligns with recent Australian standards and guidelines. For example, the Australian Standards authority’s publication of AS 10002:2022 – Guidelines for complaint management in organisations reflects a shift in terminology from “resolution/resolving” to terms such as “management/managing”, “outcome”, “finalised/ addressed”.¹³ This shift underscores the importance of process language that accommodates a range of outcomes and recognises the ongoing dynamics of conflicts.

This suggests that organisational, interpersonal or societal conflict may be better framed through inclusive, process-oriented language rather than endpoint-oriented labels. For those managing organisations such as a complex court or legal bodies, this may also be a pertinent issue. We were pleased to see, for instance, in the commercial litigation context, the Honourable Chief Justice of Queensland, Helen Baskill, recently observed, after seeing a recent text by Condliffe that the term “conflict management” rather than “dispute resolution” could have resonance in developing better systemic processes and practices in the court context that she manages.¹⁴

From an academic perspective, this inclusivity argument finds support in the literature on conflict management systems and dispute resolution in Australia. Australian scholars have noted the limitations of purely settlement-oriented approaches and the value of conflict management systems that emphasise ongoing dialogue, relational maintenance and the design of integrated conflict management processes.¹⁵

The Productive Social Change Conversation

We also considered that, beyond the interpersonal and organisational realms, conflict has a profound relationship with society and social transformation which is important to us as practitioners. As American philosopher John Dewey once said,

Conflict is the gadfly of thought. It stirs us to observation and memory. It instigates us to invention. It shocks us out of sheep-like passivity. Conflict is the sine qua non of reflection and ingenuity.¹⁶

From this perspective, conflict does more than disrupt. Conflict can stimulate not only economic and scientific change but also the overthrow of old norms and institutions. It is through contested ideas and practices that norms evolve and institutions adapt.¹⁷

This insight aligns us with classical sociological theory.¹⁸ According to Coser for example, conflict only becomes dysfunctional within social systems that lack sufficient tolerance for conflict. We also realise that our text owes much in the field of conflict theory to Morton Deutsch, one of the founders of modern conflict management theory, whose modelling emphasized both competitive and cooperative frameworks in conflict.¹⁹

Putting this all together we conclude that conflict, when managed constructively, is not just a problem to be avoided but can drive positive social change.

Conclusion

Together, these arguments we believe reasserts conflict management as a more encompassing, process-centred and socially responsive framework for practice. It orients our preference to refer to ourselves as conflict managers rather than dispute resolvers in our professional practices.

Authors Biography

Peter Condliffe PhD is a barrister, teacher and mediator. He has also been previously employed in several academic, management and human rights roles including with the United Nations. He is an experienced teacher having developed and presented courses in universities and other organisations. He is a past chair of The Australian Mediator and Dispute Resolution Standards (AMDRAS) Board and long-serving member of the Victorian Bars’ ADR Committee. He was instrumental in the development of the new national AMDRAS Standards.

Claire Holland PhD is an experienced academic, trainer, mediator and consultant. She has worked nationally and internationally as a mediation and conflict management specialist, and in training and capacity development roles. She has worked in complex and protracted settings on the Thailand Myanmar border and in the Philippines and has carried out consultant-based work in the Solomon Islands and Papua New Guinea. Claire is a trainer and coach mentor with the Conflict Management Academy, specialising in conflict analysis, conflict coaching, leadership and mediation training. Claire is the former Director of the Masters of Conflict Management and Resolution at James Cook University and a founding board member and past Chair of Mediators Beyond Borders Oceania.

Bartoli A, Nowak A and Bui-Wrzosinska L, ‘Mental Models in the Visualization of Conflict Escalation and Entrapment: Biases and Alternatives’, IACM 24th Annual Conference Paper, 3–6 July 2011, p.3-5, <http://scar.gmu.edu/presentations-proceding/12857> ↩︎
See generally Peter L Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Anchor Books, 1966); Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6(3) Journal of Peace Research 167; John Paul Lederach, Preparing for Peace: Conflict Transformation Across Cultures (Syracuse University Press, 1995); Morton Deutsch, ‘An Experimental Study of the Effects of Cooperation and Competition upon Group Process’ (1949) 2(3) Human Relations 199; Peter T Coleman, ‘Characteristics of Protracted, Intractable Conflict: Toward the Development of a Metaframework’ (2003) 9(1) Peace and Conflict: Journal of Peace Psychology 1; Daniel Bar-Tal, Intractable Conflicts: Socio-Psychological Foundations and Dynamics (Cambridge University Press, 2013) ↩︎
Tjosvold, Dean. (2006). Defining Conflict and Making Choices About Its Management: Lighting the Dark Side of Organizational Life. International Journal of Conflict Management. 17. 87-95. 10.1108/10444060610736585. ↩︎
See for example, Ciobanu (2018), Active and Participatory Teaching Methods. European Journal of Education May August 2018 Volume 1, Issue 2. ↩︎
See Lederach J, Preaching for Peace: Conflict Transformation Across Cultures, Syracuse University Press, New York, 1995, pp8-10. ↩︎
Avruch, K. (1998). Culture and conflict resolution. United States Institute of Peace Press. ↩︎
Lederach, J. P. (1997). Building peace: Sustainable reconciliation in divided societies. United States Institute of Peace Press. ↩︎
Condliffe and Holland, 2025, s 1.5; Boulle, 2005, p 83. ↩︎
Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict (4th ed.). Jossey-Bass. ↩︎
Burton, J. W. (1996). Conflict resolution: Its language and processes. Scarecrow Press. ↩︎
Burton, J. W. (1996) f. 28, p 21. ↩︎
Burton, J. W. (1990). Conflict: Resolution and prevention. Macmillan. ↩︎
Australian Standard 10002:2022 Guidelines for complaint management in organizations (ISO 10002:2018, NEQ); SOCAP,. Guidelines for Complaint Management in Organisations: Comparison of the 2014 and 2022 Editions, (AS 10002:2022), see https://<www.socap.org.au/public/98/files/SOCAP%20Member_Info_Sheet_2022_LR.p ↩︎
Article Series: Mediation: Australia’s Place in the International Scene – AMDRAS. ↩︎
Boulle, L., & Field, R. (2021). Australian dispute resolution: Law and practice. LexisNexis Butterworths; Van Gramberg, B. (2005). Managing workplace conflict: Alternative dispute resolution in Australia. The Federation Press. ↩︎
Dewey J,Human Nature and Conflict, Modern Library, New York, 1930, p 30. ↩︎
Deutsch (1973) ↩︎
Lewis Coser, The Functions of Social Conflict. New York: The Free Press, 1956; Beyond Intractability, Summary of “The Functions of Social Conflict”, <https://www.beyondintractability.org/bksum/coser-functions> accessed 1^st November 2025. ↩︎
Deutsch, M, The Resolution of Conflict: Constructive and Destructive Processes, Yale University Press, New Haven ↩︎

The IOMed Convention: How It Could Redefine Cross-Border Mediation

Posted on 04/12/2025 by samhossain5c244604ab

By Akshat Garg
This article has been republished with permission. The original publication can be found at Kluwer Mediation Blog.

On 30 May 2025, the global dispute resolution landscape quietly shifted. In Hong Kong SAR, 33 countries signed the Convention on the Establishment of the International Organization for Mediation (“IOMed”), the world’s first intergovernmental body dedicated solely to mediation.

More than 400 representatives from 85 countries and 20 international and regional organizations gathered for the signing. The Convention entered into force on 29 August 2025. At its inaugural meeting held on 20 October 2025, the Governing Council authorised the commencement of operations with effect from the same date. On paper, it appears to be just another treaty. In practice, however, it could reshape how governments, businesses, and individuals resolve some of the world’s most complex disputes.

Why does this matter now? For decades, mediation has lived in the shadow of arbitration and litigation, praised for its flexibility but lacking the institutional backbone to rival them. The IOMed could change this.

Mediation Steps Out of the Shadows

Mediation has always promised something courts and arbitral tribunals cannot: outcomes that preserve relationships rather than destroy them. While mediation had received treaty recognition through the ICSID Convention, restricted to investor-state conciliation, and the Singapore Convention, which addressed the enforcement of mediated settlements, no dedicated intergovernmental framework existed.

The IOMed Convention addresses this gap, institutionalising mediation itself as a treaty-based mechanism for resolving international disputes. It creates a permanent organization with legal personality, a governing council of states, and leadership roles open only to nationals of contracting states. In other words, mediation now has a seat at the table of international law.

How the IOMed Has Made Itself Unique

The IOMed is not a vague promise; it has teeth. The Convention envisages two separate panels of mediators: one for State-to-State disputes and another for disputes involving States and private parties, including commercial disputes. This matters because mediation in international politics requires a different skillset than mediation in business contracts. The Convention acknowledges this nuance, demanding that State-to-State mediators bring not only legal knowledge but also diplomatic judgment and geopolitical experience.

Consent remains its bedrock. No State can be dragged into a mediation without agreeing, and countries can expressly exclude sensitive disputes such as sovereignty or maritime boundaries from the IOMed’s purview. Far from weakening the system, these safeguards are likely to make the Convention more attractive to States.

The Convention takes an important step toward building global trust in mediation. By granting immunity to mediators and participants from arrest, detention, or legal action for what’s said or disclosed in mediation, it protects the process from fear or interference. This isn’t just a legal safeguard; it’s a confidence-building move that encourages openness and integrity. It may be an early step, but it’s a bold one, showing IOMed’s intent to make mediation a safer, more credible space for resolving disputes.

What makes the IOMed particularly intriguing is its accessibility. It may also provide mediation for non-contracting states or international organizations, should they wish to submit their disputes, subject to the rules adopted by the Governing Council of the IOMed. Such inclusivity could allow the IOMed to become a hub for dialogue at a time when global cooperation often feels gridlocked. It is not a court, and it will not hand down binding decisions unless parties agree. Instead, it offers a structured, principled, and confidential process for parties to craft their own solutions – as is the inherent asset of mediation – with the legitimacy of an international institution behind it.

The Quiet Gaps in the Convention

The IOMed Convention opens the door for the mediation of “international commercial disputes,” but it stops short of defining exactly what that means. It simply provides that the Organization will offer mediation services for disputes arising out of or related to international commercial relationships between private parties, subject to conditions set by the Governing Council. In practice, how the Council chooses to interpret and apply these provisions will play a crucial role in shaping the Convention’s real-world impact.

The Convention also leaves it to the parties to agree on suspending the limitation period during mediation as per applicable laws, a provision that realistically, is unlikely to see easy consensus, and to agree on whether mediation can run alongside other dispute resolution proceedings. Such flexibility, while well-intentioned, could lead to uncertainty and uneven outcomes, especially in cross-border disputes where different legal systems come into play.

When it comes to enforcement, the Convention provides that settlement agreements arising from international commercial disputes may be enforced by the contracting states, who should agree on a protocol specifying the conditions of enforcing such settlement agreements. Notably, it says nothing about the enforcement of state-to-state settlement agreements, leaving a notable gap in the framework for intergovernmental disputes.

The Governing Council also carries significant responsibilities, including adopting the rules of procedure for mediation, maintaining mediator panels, and approving the Secretariat’s capacity-building and fellowship programs. The success and credibility of IOMed will hinge on how actively and thoughtfully the Council pursues these tasks.

A Space Created for Everyone

At a time when arbitration often feels prohibitively expensive or adversarial, the IOMed offers something different: a forum designed to de-escalate, not inflame.

For businesses engaged in cross-border trade, this means a credible path to settle disputes without burning bridges.

For States, it offers a way to manage conflicts without locking themselves into binding rulings that might be politically impossible to implement.

For professionals, lawyers, mediators, and policy advisors, it signals an emerging market for a new breed of expertise: not just legal knowledge, but skills in negotiation, psychology, cross-cultural communication, and strategic problem-solving.

When the World Trade Organization was created, it reshaped trade. When the International Criminal Court was launched, it changed how we view accountability. The IOMed may not have the same headline-grabbing impact, but time will tell whether it redefines how conflicts are prevented, managed, and resolved across borders.

Mediation as the Primary Strategy, Not a Soft Alternative

As of 20 October 2025, only eight countries – China, Nicaragua, Venezuela, Congo, Kiribati, Pakistan, Kenya, and Dominica – have ratified the Convention. Major hubs like Europe, India, and Singapore are notably absent, reflecting a cautious approach. This hesitation likely stems from concerns over enforcement and procedural gaps left to the Governing Council.

Like all new institutions, the IOMed will need trust, early successes, and a generation of professionals ready to champion it. If mediation is to mature into a global institution, practitioners and policymakers will need to take it seriously, not as a “softer” option, but as a strategic one.

That is the challenge and opportunity: to ensure that this new framework is not just another treaty on paper, but a living mechanism that reshapes how the world deals with conflict. Whether you are a lawyer, business leader, diplomat, or student of international affairs, the message is clear: mediation is no longer an afterthought. With the IOMed, it could become the default.

Author Biography

Akshat Garg is an Advocate of the Supreme Court of India and an IMI-qualified mediator, blending legal practice with a global perspective on dispute resolution. Educated at Lloyd Law College, India, he has contributed to cross-border agreements, institutional and ad-hoc arbitration, and regulatory advisory, emphasising practical solutions, procedural clarity, and strategic insight. Beyond practice, Akshat coaches and judges international ADR competitions, leads initiatives to build capacity in emerging markets, and develops frameworks to enhance efficiency and accessibility. Committed to bridging law, policy, and industry, he works to advance global arbitration and mediation with purpose and lasting impact.

The Art of the Prompt for Lawyers, Mediators, and Arbitrators

Posted on 23/10/2025 by John Lande

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

The quality of AI outputs depends on users’ skill in inputting good prompts.

That’s the premise of my new article: The Art of AI Prompting in Law and Dispute Resolution Practice.

It provides practical guidance about how to use AI tools responsibly, ethically, and effectively. It describes core skills including:

Choosing the right AI tool
Writing good prompts
Using follow-up questions
Avoiding AI’s problems
Applying professional judgment when using results

It’s important to choose the right AI tool. A brilliant prompt to the wrong tool is a bad prompt. The article includes a list of specialized legal AI tools for legal and dispute resolution practice.

You shouldn’t just take the first response – it’s important to ask follow-up questions. This article offers a long list of suggested follow-up prompts.

It also provides examples of prompts across the life of a case – before, during, and after mediation.

It cites ABA Ethics Opinion 512, which describes lawyers’ ethical duty of technological competence under the ABA Model Rules.

If you would like to see some hands-on demonstrations, I also posted two short SSRN articles with companion 30-minute videos:

How Mediators and Lawyers Can Use AI: A Practical Video Guide describes a video with real-time demonstrations of how mediators and lawyers can use AI to prepare for sessions, help clients, and improve their own decision-making.
A Video Guide for Teaching Law Students to Use AI Wisely is a resource for faculty and students, showing how AI can advance legal education without undermining core lawyering skills. It includes sample uses for negotiation prep, writing support, and simulation design.

AI won’t do your work for you. But it can help you do it better – and probably faster.

Take a look.

When Apologies Don’t Come: Understanding and Managing Refusal to Apologise in Mediation

Posted on 16/10/2025 by Dr Samantha Hardy

By Dr Samantha Hardy and Dr Judith Rafferty
This article has been republished (with minor amendments) with permission. The original publication can be found at The Conflict Management Academy.

Apologies can be transformative. A genuine “I’m sorry” has the potential to mend trust, restore dignity, and signal a willingness to move forward. Yet in practice, many mediators have sat through sessions where one party waits, sometimes desperately, for an apology that never arrives. The other party’s refusal to apologise can stall dialogue, harden positions, and frustrate attempts at resolution.

This post explores the dynamics at play when apologies are withheld. We will look at why people seek apologies, why others resist offering them, what options exist when an apology never comes, and how mediators can manage this fraught terrain.

1. Why someone might want to receive an apology

An apology might meet different needs for the receiver:

It might provide recognition of the impact of the other’s actions on the receiver. It might validate the receiver’s pain and suffering.
It might confirm that what happened was “wrong”, providing a sense of justice to the receiver.
It might restore a sense of power or control to the receiver. An apology can restore autonomy by giving them the power to accept, reject, or withhold forgiveness.
It might reaffirm shared values and expectations around behaviour. An apology communicates renewed consensus around those values, reinforcing the idea that both parties agree on what is acceptable behaviour in the future.
High-quality apologies can also reduce anger, increase empathy, and foster willingness to reconcile. This is particularly important in ongoing relationships such as workplaces, families, or communities.

2. Why someone might not want to apologise

If apologies are so powerful, why would someone refuse to offer one? The psychology is complex. Research has identified several barriers and motivations:

They don’t feel like they’ve done anything wrong

Many equate an apology with an admission of guilt. For those convinced they acted correctly, an apology can quickly feel exaggerated or unjustified.

Fear of consequences

Some worry that an apology will be interpreted as an admission of guilt, exposing them to criticism, sanctions, or even legal liability.

Protecting self-esteem

Apologising can feel like a loss of face, signalling that your standing is diminished in front of the other person. For those with fragile self-esteem, the psychological discomfort may be too great. Karina Schumann’s work highlights “perceived threat to self-image” as one of the strongest barriers to apologising.

Concerns about power and control

Okimoto, Wenzel, and Hedrick (2013) found that refusing to apologise can actually increase a person’s self-esteem by enhancing feelings of power and value integrity. By withholding an apology, people may feel they retain dominance and control.

Low concern for the relationship

Some simply do not value the relationship enough to invest in the discomfort of apologising. Low empathy, extreme self-interest, or avoidance of closeness can all reduce the likelihood of apology.

Perceived ineffectiveness of apology

Even when someone recognises that they caused harm, they may doubt whether apologising will help. They might expect rejection or believe the other person will not forgive them anyway.

Defensive fragility mistaken for strength

As psychologist Guy Winch notes, people who cannot apologise often appear tough, but their refusal usually reflects deep vulnerability and fragile self-worth.

They have already apologised

Sometimes people refuse to apologise in a mediation because they have already apologised (one or more times) and it hasn’t made any difference.

They don’t want it to be a trigger

Occasionally an apology can act as a trigger, reminding people of the circumstances and hurt of the past. Some people wish to avoid that and just “move on”, leaving the past behind.

3. What to do when someone refuses to apologise

In many mediations, a party may openly state that they want an apology. When it does not come, the process risks collapsing into impasse.

For mediators, it is important to see refusal not simply as obstinacy but as a defensive strategy rooted in self-protection, power, or relational disengagement.

Here are some strategies for mediators to help parties navigate this reality.

Manage expectations early

At the start of the mediation, clarify that apologies may or may not occur. This helps prevent disappointment later if one party was anticipating an apology as the main outcome. Mediators can also normalise the difficulty of apologising. Mediators can gently explain that apologising is psychologically hard for many people. This can reduce personalisation of the refusal.

Attend to power dynamics

Because apologies carry symbolic weight around power and control , mediators should be alert to how apology refusal may entrench dominance. They may need to balance this by giving the other party more voice or decision-making space.

Explore the interests underlying both the request for an apology and the refusal to give one

Ask the person who wants the apology to give an example of the kind of apology they would ideally like to receive, and explain the impact it would have on them. Often, the need is for recognition, respect, or validation rather than the exact words “I’m sorry.” Mediators can help the party articulate what they hope to gain and explore other ways of meeting those needs.

Non-judgementally, ask the person who refuses to apologise to describe their reasoning. Listen for some of the reasons outlined above, and direct your interventions to exploring and responding to those needs.

These questions are probably best asked in private sessions so that parties have a safe space to be vulnerable. From their answers, you may be able to identify what needs the apology (and not apologising) would meet and then work to brainstorm different ways to meet those needs.

Refocus the discussion to intent and impact

Supporting parties in mediation to clarify intent and impact can help address misunderstandings which may make the desire for apologies and the apology itself obsolete. Of course, clarifying intent and impact can also help people who weren’t aware of any wrongdoing gain awareness that their actions, even if meant/ intended otherwise, caused harm for the other and may thus increase the other’s desire and the actor’s awareness for a need for an apology. Apologising for something that had a different impact to what was intended could also be “easier” in the sense that it may be less threatening to self-image – after all, the actor had not had any intentions, but misunderstandings (external factors) may have led to the misperception of harm.

Support vulnerability and self-esteem

Support the person who does not want to apologise to explore ways of being vulnerable while still maintaining safety and self-esteem.

Mediators can help parties to identify substitute behaviours.

Sometimes, non-apologisers express contrition indirectly: by being extra kind, cooperative, or attentive after the fact. Mediators can help parties notice these gestures as alternative forms of repair.

Sometimes parties resist the word “apology” but are willing to express regret or acknowledge impact. Mediators can explore softer or alternative language that validates the other person without requiring full admission of fault.

Explore ways of meeting the requesting party’s needs by framing things in different ways that may or may not look exactly like an apology.

Importantly, mediators need not overemphasise hearing the words “I’m sorry.” Expressions of genuine remorse, awareness of impact, or acknowledgement of harm can often meet the deeper needs more effectively than the word itself.

Elicit reflection on meaning of apology

In private session, mediators can ask the person refusing to apologise: “What would it mean for the other party to hear you apologise?” This question does not pressure them to apologise, but it can prompt reflection on the potential value of an apology for the other person. At times, this reflection has opened space for an apology to emerge.

Use reframing techniques

If a party expresses their refusal bluntly (“I’m not going to apologise”), mediators can reframe this as an attempt to hold onto integrity or avoid insincerity. This can de-escalate defensiveness and allow conversation to continue.

Reality test

Ask the person who does not want to apologise what they potentially stand to lose and gain from apologising.

Ask the person who wants the apology what their choices are if they don’t receive it.

Invite reflection on choice

Mediators may also be able to encourage acceptance without agreement. Radical acceptance helps individuals acknowledge painful realities without condoning them. For example, someone may not receive an apology but can still choose to accept the situation and move forward with their values intact.

When a party faces the absence of apology, mediators can help them consider whether to persist in the relationship, renegotiate boundaries, or disengage altogether. As one writer put it: “Life becomes easier when you learn to accept an apology you never got”.

Invite mutual apologies

I also feel we should talk about situations where both parties are requesting an apology from each other and how that can create additional impasse or help the situation, since it balances the “power” a little.

Facilitate mutual checking for understanding

Invite each party to check that they have understood the other, including naming what was most difficult or hurtful in the conflict. Then ask the original speaker to confirm – “Did she/he get that right?” This creates a moment of empathy and can soften defensiveness. It also lays the groundwork for acknowledgement by ensuring that each person feels genuinely heard.

Shift the focus to future arrangements

If apology is not forthcoming, help parties reorient toward practical agreements. What changes in behaviour, communication, or boundaries could rebuild trust without requiring an explicit apology?

Support emotional closure without apology

Through reflective listening, summarising impacts, and validating emotions, mediators can help parties feel heard even in the absence of an apology. This may provide enough recognition to allow agreements to move forward. Research suggests there can be significant psychological benefits in choosing to let go of anger and resentment without an apology – including in situations where extreme harm has been suffered – showing how this approach can strengthen resilience. Recognising this possibility may open space for parties to consider new pathways to closure.

Conclusion

Refusal to apologise is one of the thorniest issues mediators can encounter. For the person harmed, it can feel like justice denied. For the person refusing, it can feel like self-preservation. And for the mediator, it can feel like an immovable barrier.

Yet by understanding the psychological underpinnings, mediators can reframe the impasse. People seek apologies for validation, dignity, and reaffirmation of values. People withhold apologies to protect self-image, preserve power, or because they doubt its effectiveness. When apologies do not come, parties can still find closure through acceptance, alternative forms of recognition, and practical agreements.

For mediators, the task is not to extract apologies but to help parties understand and meet underlying needs. With skill, patience, and creativity, even the absence of “I’m sorry” can become the starting point for resolution.

Getting Ahead of the Curve: A Video for Mediators and Lawyers About AI

Posted on 02/10/2025 by John Lande

Artificial intelligence (AI) is increasingly part of daily life in legal and mediation practice. Mediators and lawyers (“practitioners”) may wonder how they can use it to provide good client service and remain competitive in the marketplace. Indeed, some practitioners may wonder whether they’ll be able to do so in the future without using AI.

Recent data show that lawyers’ use of AI in the US is growing rapidly – and many practitioners will need to learn how to use it effectively to succeed in a changing market. This post highlights a 30-minute video that introduces basic AI concepts and offers practical tips for mediators and lawyers. It links to a short article explaining how practitioners can use AI to promote client decision-making, improve efficiency, and navigate common pitfalls.

Many Lawyers Are Using AI – and Probably More Will Soon

The 2024 American Bar Association (ABA) Formal Ethics Opinion 512 states that “lawyers should become aware of the [general artificial intelligence] tools relevant to their work so that they can make an informed decision, as a matter of professional judgment, whether to avail themselves of these tools or to conduct their work by other means.” Indeed, “it is conceivable that lawyers will eventually have to use them to competently complete certain tasks for clients.” (Emphasis added.)

In the past two years, lawyers’ use of AI has grown substantially, and it is expected to keep growing. According to the ABA’s 2024 Legal Technology Survey, about 30% of U.S. law firms now use AI tools, up from 11% in the previous year. Another 15% said they were seriously considering using AI tools. In firms with more than 100 attorneys, 46% currently use AI tools.

Almost half the lawyers in the survey believe that AI will become mainstream within three years. If they’re right, by the time that today’s 1Ls graduate, they will need to learn how to use AI properly. This includes knowing how to avoid mistakes – like filing hallucinated documents – and how to create value for clients and employers. (Here’s a link to a post with a video and article for faculty and students.)

I haven’t found data on mediators’ use of AI, but those who work with lawyers will increasingly encounter it. Mediators can also find many valuable ways to use it in their own activities.

Academic and Practitioner Perspectives About AI

Academics and practitioners often approach AI from different perspectives. Academics work in institutions that reward deliberation over rapid adoption of innovations. Faculty generally experience little immediate pressure to change their practices, and they don’t (yet) face professional risks or lost opportunities if they ignore AI. Indeed, many are pressed for time as it is, so they may have little incentive to add to their immediate workload – even though AI can enable them to work more efficiently over the long term. Some approach AI skeptically, raising important critiques of its societal effects, such as environmental harms, de-skilling, and labor displacement.

By contrast, practitioners generally work in a market expecting them to provide professional services efficiently. For them, AI is less a policy debate than a practical tool. Even if they are concerned about societal risks, they may still use it because they face pressure to keep up – and have little leeway to wait. Practitioners may not view AI as entirely good or bad and – thinking like mediators – they may recognize complex tradeoffs that shift with evolving technology and human adaptation.

Given today’s legal and dispute resolution market, many practitioners need to learn how to use AI effectively and responsibly.

Getting Started Using AI

This 30-minute video offers a basic introduction about how you can use AI tools such as ChatGPT. It provides pointers on how you can write good prompts and avoid common mistakes. The video includes two demonstrations using RPS Coach, a specialized AI tool for negotiation and mediation. This 4-page article provides links to the PowerPoint slides and a transcript of the AI demonstrations.

The video and article are designed for mediators and lawyers who want to use AI to improve their work, help clients, save time, and stay competitive in a world where AI is rapidly becoming the norm.

It makes sense to start using AI gradually rather than wait until it becomes expected or unavoidable. Building skills over time can help you gain confidence and develop sound judgment without the pressure of having to master everything at once – especially if it becomes essential in your work.

Thinking Like Mediators About the Future of AI

Posted on 11/09/2025 by John Lande

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

Imagine you’re a mediator and someone tells you what’s troubling them. They’re deeply upset about a product they believe poses serious risks. They cite past harms, question whether it should ever have been introduced, and urge that it be removed from the market or tightly restricted. The product is already in widespread use, integrated into daily life, and – for many – has proven helpful. What would you do?

I hope most of us would do what we train others to do: listen carefully, help them identify their interests, and encourage them to reflect on the full picture – not only the part that feels alarming. We’d help them explore multiple perspectives, consider realistic possibilities, and support thoughtful decision-making.

We don’t always use that approach in our field when talking about AI. Some of us focus on the part of the glass that’s full and others on the part that’s empty.

That’s why I wrote a short essay, Thinking Like Mediators About the Future of AI – an effort to bring a dispute resolution lens to the “AI debate,” using the kind of balanced thinking we encourage in our students and clients.

Like some intense debates in the past, this one may fade more quickly than expected. As AI becomes increasingly integrated into everyday life, the sharp divide between skeptics and enthusiasts may erode. The conversation may shift – not from whether we use AI, but toward how we use it responsibly. Rather than reaching a grand resolution, the controversy may simply become part of the fabric of daily life.

We’ve seen this pattern before. Calculators, spellcheckers, and the internet all sparked anxiety when first introduced in schools and workplaces. But over time, those concerns gave way to adaptation. We now look back and wonder what all the fuss was about. Obviously, AI has much greater potential risks. And also greater potential benefits.

My article explores:

Why evidence of early problems with AI doesn’t prove they’re permanent
The important distinction between individual and societal impacts of AI
What a balanced analysis of energy use should include
How educators can help students become responsible and effective users of AI
How we can apply the conflict analysis frameworks we teach

Take a look.

Mediator Dilemmas, Reflective Practice, and the Artistry of Ethical Judgment

Posted on 04/09/2025 by Dr Claire Holland

Dr Claire Holland

Why Mediator Dilemmas Matter

Mediation is often described as structured and principled. An approach that empowers parties to find their own way through conflict with the support of a neutral third party. At its best, mediation provides a space where voice, dignity, and autonomy are protected. Yet, despite this aspirational framing, the reality of practice is rarely straightforward.

Mediators work in rooms populated with human beings whose lives are in flux, often carrying frustration, fear, and a history of fraught relationships. Emotions surge, narratives collide, and the “facts” of the matter are contested, incomplete, or strategically presented. In this unpredictable terrain, ethical dilemmas are inevitable. Should a mediator intervene to balance power? How should they respond when one party is overwhelmed? What if an agreement seems clearly unfair?

Such dilemmas do not have easy answers. They exist in what Donald Schön famously described as the “swampy lowland” of professional practice (1983). Schön’s work on reflective practice provides a powerful frame for understanding the artistry required of mediators. That is, an artistry that blends technique, intuition, ethics, and reflection in order to navigate dilemmas that cannot be resolved through formulaic responses. Lang and Taylor (2000) similarly argue that becoming a skilled mediator is not simply about mastering techniques but about developing reflective capacity. In their text The Making of a Mediator, Lang and Taylor integrate Schön’s reflective practitioner model into the ADR field. Lang in his 2019 text The Guide to Reflective Practice in Conflict Resolution further positions reflective practice as the cornerstone of professional growth in mediation and conflict resolution.

In this blog, I explore how reflective practice helps illuminate the complex ethical landscape of mediation. Drawing on a case study of a residential tenancy bond dispute, I show how reflection-in-action and reflection-on-action enable mediators to navigate dilemmas in the moment and build artistry over time. I then connect these ideas to broader scholarship in Australia and beyond, where the development of mediator artistry has been central to debates about ethics, professionalism, and mediator expertise.

The Reflective Practitioner in the “Swampy Lowland”

Donald Schön’s seminal text The Reflective Practitioner (1983) challenged dominant assumptions about professional knowledge. At the time, technical rationality (the belief that professional competence flowed from the application of scientific theory) was the prevailing model. According to this view, the professional problem was to apply rules, methods, and procedures correctly.

Schön, however, observed that in many domains, including planning, architecture, education, and counselling, practitioners worked not in well-ordered problem spaces but in messy, uncertain contexts. Here, problems were ill-defined, values were contested, and outcomes could not be predicted with precision. These were the “swampy lowlands” of practice (Schön, 1983, p 42).

To navigate this terrain, Schön introduced the concepts of:

Knowing-in-action: the tacit, often unspoken knowledge that practitioners draw on automatically in the course of doing. Much of what professionals know is embodied and experiential, rather than explicitly codified (p 49).
Reflection-in-action: reflection that occurs in the moment of practice itself such as a fluid, improvisational interplay between thinking and doing (similar to a jazz musician improvising with other players) (p 54).
Reflection-on-action: deliberate reflection that occurs after an event, allowing practitioners to make sense of what happened and plan differently for the future (p 61).

Aligning with the views of Lang and Taylor (2000) and Lang (2019), mediators operate squarely in Schön’s swamp. Every mediation involves multiple unknowns: unpredictable dynamics between parties, shifting emotional intensity, cultural nuances, and competing ethical obligations. While codes of conduct provide necessary guidance, they cannot dictate every move. The mediator must learn to improvise by engaging in a “conversation with the situation” (p 79), as Schön put it, where each action invites feedback, and the practitioner adjusts in real time.

A Case Study: Mediator Dilemmas in a Tenancy Bond Dispute

To illustrate, this is an example case drawn from numerous personal experiences in tenancy mediations. These disputes often involve recurring participants, such as property managers representing landlords, who become adept at navigating the process. They sit across from tenants who may be experiencing mediation for the first time, which can create a power imbalance that raises ethical and procedural questions.

The scenario: A tenant, Jacob, seeks the return of his $2,600 bond. Opposite him sits Sarah, a property manager representing the landlord. Sarah is confident, well-prepared, and armed with condition reports, inspection photos, and invoices. Jacob, by contrast, is distressed, under-prepared, and reliant on narrative rather than evidence.

From the outset, a mediator is confronted with dilemmas:

Power imbalance: How should the mediator address the contrast between Sarah’s professional confidence and Jacob’s emotional vulnerability?
Procedural fairness: Can a process be “fair” when one party cannot effectively participate? Should the mediator slow the pace, summarise evidence, or even suggest Jacob seek advice, knowing this may frustrate Sarah?
Knowledge from prior mediations: The mediator recalls that Sarah often claims full invoice amounts despite regulatory provisions that might reduce the actual amount that can be claimed (such as the age of damaged carpet). Is it ethical to draw on that memory in this mediation?
Advice vs information: In private session, Jacob asks bluntly whether he is “legally entitled” to the bond. Where is the line between providing neutral information and slipping into legal advice?
Unfair agreement: Jacob ultimately agrees to accept a $300 return, with $2,300 dispersed to the landlord, seemingly out of fatigue and resignation. Should the mediator intervene if the settlement feels unjust?
Emotional breakdown: After agreement, Jacob breaks down, expressing hopelessness and despair. What is the mediator’s duty of care in relation to his wellbeing?

Each of these dilemmas places the mediator at a crossroads. There is no single “correct” answer. Instead, the mediator must reflect-in-action, balancing ethical obligations, professional role boundaries, and human sensitivity in the moment.

Reflection as Ethical Compass

Why does reflective practice matter here? Because mediation dilemmas are not only practical, they are also ethical. A mediator who blindly follows procedure may preserve neutrality on paper, but fail to achieve fairness in reality. Conversely, a mediator who overcompensates for a vulnerable party may risk undermining the perception of impartiality.

Reflection provides a compass in these grey zones. It allows mediators to:

Integrate theory and practice: Reflection bridges the gap between principles (such as neutrality and self-determination) and their messy application in practice.
Maintain ethical awareness: By questioning not only what they do but why, mediators can avoid drifting into unconscious bias or complacency.
Support emotional regulation: Reflection enables practitioners to notice their own triggers (perhaps frustration at a repeat-user’s tactics, or empathy for a vulnerable party) and to regulate responses appropriately.
Adapt strategically: Reflection encourages creativity in the moment, enabling mediators to shift structure, language, or process design to re-balance participation.

In short, reflective practice turns ethical dilemmas from paralysing obstacles into opportunities for professional growth and responsive practice.

The Development of Artistry in Mediation

Schön used the term artistry to describe the culmination of reflective practice as the ability to act intuitively, creatively, and ethically in uncertain situations. Artistry goes beyond technical competence. It is not simply knowing the steps of a mediation, but knowing how and when to adapt them.

Australian scholarship has made significant contributions to theorising and applying this concept in mediation. The recently revised Australian Mediator and Dispute Resolution Accreditation System (AMDRAS, 2025) explicitly integrates reflective practice, professional judgment, and ethical decision-making into its competency framework, embedding artistry as a national standard. Across the literature, artistry is framed as adaptive expertise and flexible judgment (Spencer, 2024; Spencer & Hardy, 2014; Boulle, 2011), grounded in reflective learning and ethical responsibility (Douglas & Ojelabi, 2023, 2024). Field (2007, 2022) advances this discussion (aligning with Lang, 2019) by emphasising “ethical artistry,” in which mediators combine empathy and neutrality with critical attention to power and justice. Similarly, Douglas and Goodwin (2015) present artistry as a distinctive form of professional competence, where the true effectiveness of a mediator lies not in technical skill alone but in the creative and intuitive responsiveness to the dynamics of a dispute. Hardy (2010) further underscores the role of narrative and emotional competence, highlighting that artistry requires engaging with parties’ stories in ways that acknowledge emotion while fostering constructive reframing. At the same time, Condliffe and Holland (2025, in press) caution that reflective practice has limits, and that real-world, contextual experience is indispensable to developing artistry, a challenge recognised and reinforced in the AMDRAS standards.

Lang (2019) reinforces the idea that reflective practice is not optional, but core to conducting ethical and competent mediation. Lang makes the case that ethical judgement cannot be separated from reflective practice, and that reflection is the key to helping practitioners clarify what values guide them, and how they should act consistently with those values.

Taken together, this body of work positions artistry as a central dimension of mediation practice in Australia, conceptualised as the integration of technical skill, reflective judgment, ethical responsiveness, and creative adaptability.

Reflection-in-Action: Improvisation as Ethical Skill

The tenancy mediation scenario illustrates reflection-in-action vividly. When Jacob becomes increasingly distressed, the mediator must decide: allow him to continue, risking further escalation, or intervene, risking perceived bias. This decision is not made in abstract; it is made in real time, shaped by Jacob’s clenched fists, Sarah’s glazed expression, and the emotional temperature of the room.

Here, reflection-in-action operates like jazz improvisation. The mediator draws on tacit knowledge of communication, body language, and conflict dynamics. They may reframe Jacob’s narrative to bring clarity, pause to re-balance engagement, or shift into private session. Each choice is both action and reflection, and each choice brings new opportunities for feedback that shapes the next move.

This improvisational quality is what makes mediation both challenging and deeply human. As Schön suggested, reflection-in-action is like a conversation with the situation. For mediators, that conversation involves listening not only to words, but to silences, tones, and the subtle cues that indicate when power is tilting or emotions are destabilising the process.

Reflection-on-Action: Building Capacity Through Learning

Equally vital is reflection-on-action. After the mediation, the practitioner can revisit the dilemmas encountered. Did my intervention support or hinder fairness? Did I unconsciously align with one party? Should I have paused the mediation for advice?

Such reflection can occur individually through journaling, or collectively through supervision, peer consultation, or structured professional development. By analysing decisions and their impacts, mediators convert tacit impressions into explicit learning. Over time, this strengthens their capacity for artistry in future cases.

One innovative forum that supports this reflective process is the Conflict Management Academy’s Mediator’s Dilemma series, a monthly seminar inspired by Geoffrey Robertson’s Hypotheticals. Each session presents a fictional yet realistic mediation scenario filled with ethical quandaries, narrative twists, and moments of uncertainty. As the scenario unfolds, participants are invited to step into the mediator’s shoes at critical decision points, debating possible actions, exploring consequences, and engaging with the complexity of real-world dilemmas. The interactive format encourages practitioners to articulate their reasoning, challenge their own assumptions, and learn from the diverse perspectives of colleagues.

For mediators, the series offers a rare and valuable opportunity: a safe space to rehearse responses to high-stakes situations without the pressure of live practice. This collective reflection not only sharpens technical decision-making but also deepens professional artistry by fostering creative, context-sensitive approaches. In this way, the Mediator’s Dilemma Series complements traditional reflective practices (such as journaling and supervision) by embedding reflection-on-action within a dynamic, collaborative community of practice. It transforms abstract ethical challenges into lived, shared experiences, ensuring that mediators refine their judgment, resilience, and artistry for future cases.

Source: Mediator’s Dilemma Series 2025 – Conflict Management Academy

The Ethical Heart of Artistry

It is tempting to think of artistry as primarily about skill or style. But artistry in mediation is inseparable from ethics. Each improvisation is bounded by questions of neutrality, fairness, justice, and care.

For instance, consider the final stage of the tenancy case, where Jacob reluctantly agrees to an unfavourable settlement. Technically, party self-determination has been respected. Yet the mediator senses the outcome is more about resignation than genuine agreement. Here, artistry involves discerning how far to probe for informed consent without crossing into advocacy. It is not simply about what works procedurally, but what is ethically sound.

This intertwining of artistry and ethics reflects what Field and Crowe (2020) describe as a contemporary, relational approach to mediation ethics. The authors suggest that rather than relying solely on procedures or rules, effective mediation calls for ethical responsiveness to the unique circumstances of each dispute and the self-determination needs of the parties. Practitioners must combine procedural skill with self-awareness, empathy, and the courage to act in ways that safeguard fairness, even when situations are uncertain or ambiguous. In this view, a mediator’s ethical judgment is not an abstract ideal but a guiding force that shapes their real-time adaptability, allowing them to navigate complex dynamics with both integrity and artistry.

The Mediator as Reflective Artist

Mediators inhabit a professional landscape defined by complexity, ambiguity, and ethical tension. Reflective practice enables mediators to navigate dilemmas ethically, adapt strategically, and cultivate artistry.

The tenancy case illustrates the challenges vividly: power imbalance, vulnerability, unfair settlements, and emotional breakdowns. In such moments, there is no formulaic answer. Instead, the mediator must improvise by thinking and acting simultaneously, guided by reflective awareness.

Over time, these reflective engagements shape artistry. It is constant aim of achieving truly intuitive, responsive, and ethically grounded practice that distinguishes not just competent mediators, but exceptional ones. As the profession continues to evolve, it must guard against overemphasis on procedural compliance at the expense of reflective artistry. For it is in the “swampy lowlands” of practice and amid the human messiness, that the true value of mediation lies.

Reference List

Boulle, L. (2011) Mediation: Principles, Process, Practice. LexisNexis Butterworths.
Condliffe, P., & Holland, C. (2025, In Press). Conflict Management: a practical guide, 7^th Ed. LexisNexis Butterworths.
Douglas, K., & Akin Ojelabi, L. (2024). Civil dispute resolution in Australia: A content analysis of the teaching of ADR in the core legal curriculum. Adelaide Law Review, 45(2), 341–370.
Douglas, K., & Akin Ojelabi, L. (2023). Lawyers’ ethical and practice norms in mediation: Including emotion as part of the Australian guidelines for lawyers in mediation. Legal Ethics. Advance online publication. https://doi.org/10.1080/1460728x.2023.2238281
Douglas, K., & Goodwin, D. (2015). Artistry in mediator practice: Reflections from mediators. Australasian Dispute Resolution Journal, 26(3), 172–181.
Field, R. (2022). Australian dispute resolution. LexisNexis Butterworths.
Field, R., & Crowe, J. (2020). Mediation ethics: From theory to practice. Edward Elgar Publishing.
Field, R. (2007). A Mediation Profession in Australia: An Improved Framework for Mediation Ethics. Australasian Dispute Resolution Journal, 18(3), 178-185.
Lang, M. D. (2019). The guide to reflective practice in conflict resolution. Rowman & Littlefield.
Lang, M. D., & Taylor, A. (2000). The making of a mediator: Developing artistry in practice. Jossey-Bass.
Mediator Standards Board. (2025). Australian Mediator and Dispute Resolution Accreditation System (AMDRAS) standards. Mediator Standards Board. https://msb.org.au
Schön, D. A. (1983). The reflective practitioner: How professionals think in action. Basic Books.
Spencer, D. (2024). Principles of dispute resolution (4th ed.). Thomson Reuters.
Spencer, D., & Hardy, S. (2014). Dispute resolution in Australia: Cases, commentary and materials. Thomson Reuters.

Medianos Intercultural: Constructive Intercultural Protocol for Sustainable Conflict Responses

Posted on 21/08/2025 by rorygowers

Massimiliano Ferrari’s creation of Medianos, a board game designed to help parties align with “interests and needs” rather than “positions”, demonstrates measurable success in Western mediation training contexts (Tambù Creative Team, 2023). The board game is designed to effectively teach collaborative problem-solving skills and transform adversarial thinking patterns. Ferrari’s intent to democratize mediation knowledge through accessible gameplay merits recognition (Gowers, 2025).

However a critical problem emerges as the western Medianos board game expands internationally: “most standard mediation practice is the antithesis of social transformation; it is interculturally incompetent” (Gowers, 2023). When Western-derived intervention tools spread globally, regardless of noble intentions, they risk reproducing colonial paradigms. At this point in history, we need “a new intercultural competence playbook” that honours Ferrari’s democratic vision while co-creating genuinely inclusive, inter-culturally capable conflict responsive approaches.

The Cultural Assumptions Challenge

Medianos succeeds within Western contexts because it aligns with specific cultural values of individual agency, rational discourse, and negotiated outcomes. However, Ting-Toomey’s (1988, 2005) face negotiation theory reveals that conflict parties must manage “face-related concerns” that vary widely between individualistic and collectivistic cultures. The core issue is that game-based mediation training may embed the implicit cultural assumptions of its creator.

Xiao and Chen (2009) observed that Western communication competence (defined as “goal-oriented, self-oriented, lauding assertiveness”), directly contradicts what Chinese and other Asian cultures have considered communicatively competent for centuries. When mediation training reinforces Western competence models, it undermines inter-cultural rapport.

Māori scholar Tauri (2024) warns that Western alternatives become “a way for policymakers and politicians to silence Indigenous critique” by “repackag[ing] and sell[ing] the system back to itself.” Research (Gowers, 2023) confirms this pattern, showing how standard practices “restrict access to justice by using negotiation powerplay to deny the potential for greater benefit for all parties.”

Indigenous Epistemological Challenges

Contemporary indigenous scholarship identifies fundamental clashes with Western conflict resolution approaches. Latin American decolonial theorists document how Western models emerge from “the project of modernity and the ongoing expansion of a European cultural imaginary” (Rodriguez & Inturias, 2018; Quijano, 2000). Australian Aboriginal experts specify that Indigenous approaches “embrace a deeper level of healing and renewal of relationships” compared to Western “dispute resolution” (ADRAC, 2020).

Indian Adivasi philosophy of “Adivasiyat” emphasizes “a strong sense of connection to land, nature, spirits and community” (Xalxo, 2021) that conflicts with the anthropocentric individuality in Western mediation training. When conflict resolution focuses exclusively on person-to-person negotiation while excluding relationships with land, community, ancestors, and spiritual dimensions, it violates fundamental worldviews of numerous global communities.

Smith (2012) identifies this as reproducing “imperial and colonial discourses” that marginalize non-Western ways of knowing within supposedly inclusive frameworks.

Research Imperatives

To honour Ferrari’s democratic vision while avoiding colonial reproduction, research must build on the insight that “interculturally competent mediators recognize these gaps and propose just and intelligent solutions that include all relevant third parties” (Gowers, 2023).

Specific requirements include:

Collaborative epistemological mapping that documents indigenous and traditional conflict resolution approaches from specified continents, understanding their philosophical foundations rather than extracting techniques.
Critical analysis of embedded assumptions in game-based mediation training through “crossing over with appropriate immersion in at least one other culture” (Gowers, 2023) to identify where Western individualism, rationality, and anthropocentrism conflict with other worldviews. Of course, in instances where other dominant cultures implicitly enforce their worldview the same concerns may also require critical appraisal.
Development of genuine intercultural frameworks where Western innovations like Medianos engage with other traditions as equals, applying for example the “7 steps of RESPECT” methodology (Gowers, 2023).
Testing of hybrid approaches that integrate indigenous knowledge systems as equal partners, recognizing the principle that “conflict is endemic in the process of social change itself” (Gowers, 2023).

The Intercultural Mastermind Initiative

This moment demands concrete action aligned with a call for stakeholder collaboration to “define the principles, practices, and techniques necessary to navigate intercultural complexity sensitively and effectively” Gowers’ (2023). We propose establishing an Intercultural Mastermind Working Groupbringing together Ferrari, Gowers, and indigenous knowledge holders from specified continents to co-design Medianos Alternative Protocol (MAP): An Intercultural Framework for Constructive Problem-Solving and Peace-Building.

This initiative embodies the vision that “interculturally competent mediation practice is adaptable to social transformation” through equal partnership including:

Indigenous knowledge holders from Australian Aboriginal (including Professor Marcia Langton’s frameworks), Māori, Latin American, Middle Eastern, and Indian Adivasi traditions
Intercultural communication theorists who understand both Western and non-Western approaches
Community practitioners working at the intersection of traditional and contemporary conflict responses
The original creators bringing expertise in game-based learning and mediation theory

The MAP Development Process

The Medianos Alternative Protocol would emerge through the “7 steps of RESPECT” (Gowers’ (2023) methodology:

Reframe the Context by revealing foresight and establish focus. Each tradition shares its cultural background and expectations about conflict resolution. Identify how different approaches engage with mediation based on their cultural contexts.
Resolve the Content by specifying facts, pondering feelings and examining findings. Document where approaches complement, contradict, or offer alternatives while honouring diverse motivations.
Recreate the Contract by confirming finalization and tracking fulfilment. Co-create methodologies integrating multiple epistemologies, test through community implementation with relationship tracking. Verify that agreements are fulfilled or re-negotiated until complete.

This framework develops “inter-cultural respect-ability” (Gowers 2023) terms through the insight that effective intercultural mediation requires “crossing over with appropriate immersion in at least one other culture” while maintaining cultural integrity.

Modelling the Solution

The Intercultural Mastermind approach provides specific advantages over traditional research-then-application models:

Immediate Impact: Creates practical tools while building theoretical understanding
Authentic Partnership: Positions indigenous knowledge holders as co-creators rather than consultants
Living Laboratory: The collaborative process models the intercultural problem-responses it teaches
Scalable Innovation: Success informs broader cross-cultural program development

Conclusion: Beyond Cultural Wars to Co-Creation

Current trajectories risk reproducing patterns where Western innovations spread globally with cultural modifications while fundamental power dynamics remain unchanged. The Intercultural Mastermind approach requires courage to question whether appropriate participation demands genuine co-creation from the foundation level.

Ferrari’s vision of democratizing mediation knowledge through accessible, engaging methods deserves fulfillment through the most ambitious interpretation possible. True ‘democratization’ (spoiler alert – a western paradigm) requires surrendering Western centrality for multicultural co-creation that produces innovations none of the traditions could create alone.

The proposed Intercultural Mastermind Working Group represents both urgent scholarly priority and opportunity to model “transforming our viewpoints, priorities, and actions” to “create a new era of intercultural mediation” (Gowers 2023). Rather than studying cross-cultural adaptation, we could demonstrate inter-cultural innovation and answer the question: “How do you plan to come out of these current crises?” (Gowers, 2023).

This moment calls for investigation matching the scope of the challenge, not merely examining how diverse human traditions might inform conflict responses but bringing them together to create new possibilities for our interconnected world.

Note: This Intercultural Mastermind approach demands international collaboration, indigenous partnership, and creative courage that could transform not just conflict response education but our broader approaches to respectful intercultural collaboration. What might be the learnings to use in future IT and AI developments?

References

Australian Dispute Resolution Advisory Council (ADRAC). (2020). Aboriginal & Torres Strait Islander dispute resolution. Available at: https://www.adrac.org.au/aboriginal-torres-strait
Gowers, R (2025). What’s the alternative to mediation? Meet the European Board Game Going Global. Available at: https://adrnetwork.blog/2025/06/20/whats-the-alternative-to-mediation-meet-the-european-board-game-going-global/
Gowers, R. (2023). A call for a new intercultural playbook in mediating social transformation. Lex Electronica, 28(5), 195-215. Available at: https://lexelectronica.openum.ca/articles/volume-28-2023/volume-28-numero-5/lhumanite-face-aux-conflits-actuels-nouveaux-defis-pour-la-mediation/
Langton, M and Corn, A (2023). In Margo Neale (Ed.), LAW: The Way if the Ancestors (pp. 10-21). First Knowledges series, Thames and Hudson, Port Melbourne.
Langton, M. (2015). From conflict to cooperation. Canberra: MINERALS COUNCIL OF AUSTRALIA, p. 43. https://minerals.org.au/wp-content/uploads/2023/01/MCA-Monograph-7-From-Conflic_on-by-Professor-Marcia-Langton-1.pdf
Quijano, A. (2000). Coloniality of power, eurocentrism and Latin America. Nepantla: Views from South, 1(3), 533-580.
Rodriguez, I., & Inturias, M. L. (2018). Conflict transformation in indigenous peoples’ territories: doing environmental justice with a ‘decolonial turn’. Development Studies Research, 5(1), 90-105.
Smith, L. T. (2012). Decolonizing methodologies: Research and indigenous peoples (2nd ed.). London: Zed Books.
Tambù Creative Team. (2023). “Mediano, a game that can teach a lot!” Tambù Create Blog. Available at: https://tambucreate.com/blog/medianos-board-game
Tauri, J. (2024). Restorative justice is not Māori justice. E-Tangata, October 17. Available at: https://e-tangata.co.nz/comment-and-analysis/restorative-justice-is-not-maori-justice/
Ting-Toomey, S. (1988). Intercultural conflicts: A face-negotiation theory. In Y.Y. Kim & W. Gudykunst (Eds.), Theories in intercultural communication (pp. 213-235). Newbury Park, CA: Sage.
Ting-Toomey, S. (2005). The matrix of face: An updated face-negotiation theory. In W. Gudykunst (Ed.), Theorizing about intercultural communication (pp. 71-92). Thousand Oaks, CA: Sage.
Xalxo, R. P. (2021). Tribal philosophy: fusion of tradition and modernity. In India’s Indigenous Peoples: Struggles and Survival. New Delhi: Concept Publishing.
Xiao, X.-S., & Chen, G.-M. (2009). Communication competence and moral competence: A Confucian perspective. Journal of Moral Education, 38(1), 85-96.

Are Mediators Ever Liable? Rethinking Accountability in Our Practice

Posted on 18/07/2025 by Dr Samantha Hardy

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:

Causation hurdles – it’s hard to prove that a mediator’s actions caused a party’s loss.
Mediator immunity – either through legislation (as in many US states and Australian courts) or through contractual terms.
Mediation confidentiality – which often prevents complainants from even introducing evidence of wrongdoing.
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?

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

Posted on 05/06/2025 by John Lande

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.