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.

Navigating the Grey Zones: A Practical Guide to Ethical Decision-Making for Mediators

Posted on 18/09/2025 by Dr Samantha Hardy

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

The Conflict Management Academy has been running “The Mediator’s Dilemma Series” events this year, in which mediators explore a challenging hypothetical and discuss how they would deal with the dilemmas at various stages of the process. These events have been well attended and the discussions enlightening (and sometimes heated!) but what struck me after having reviewed the sessions so far is that the ethical decision making process used by participants was, well to be frank, rather ad hoc.

When mediators talk about ethics, the conversation often centres on principles we all know well: impartiality, confidentiality, and self-determination. But knowing the principles is not the same as knowing what to do when those principles collide. Real-life mediation can place us in grey zones where personal values, professional obligations, and competing priorities pull us in different directions.

In those moments, gut instinct is rarely enough. It’s worth asking: how do we make ethical choices in a way that is both principled and defensible?

Ethics and ethical dilemmas

Ethics is the process of questioning, discovering, and defending our values, principles, and purpose (The Ethics Centre). In mediation, ethical questions arise when two or more principles we hold dearly seem to conflict creating an ethical dilemma. This might be as simple as a clash between our personal sense of fairness and our professional obligation to respect parties’ self-determination.

Ethical dilemmas are not just theoretical. They appear in intake interviews, joint sessions, private caucuses, and even after a mediation has concluded. They can be subtle, like sensing one party is being unduly influenced, or dramatic, like discovering information that could prevent harm to someone outside the mediation.

Personal and Professional Ethics

Many mediators underestimate the role of personal ethics in their professional life. Personal ethics are shaped by upbringing, culture, religion, and life experience, and they inevitably influence how we perceive conflicts and decisions.

For example, imagine being strongly pro-euthanasia, and being asked to mediate a dispute about whether someone should be able to access it. You might be able to set aside your views and remain impartial. Or you might find your values so engaged that you cannot mediate without bias or at least without the appearance of bias.

Professional ethics overlay our personal values. In Australia, mediators might refer to the AMDRAS Code of Ethics, the International Mediation Institute’s Code of Professional Conduct, or for lawyer-mediators the Law Council of Australia’s guidelines. These frameworks outline key principles, but they don’t tell us what to do in complex, context-specific dilemmas. They also don’t rank principles or explain how to decide when they are in tension.

Where Our Professional Ethics Come From

Professional ethics in mediation draw from multiple sources:

Codes of conduct issued by professional bodies (AMDRAS, IMI, etc.).
Legislation (e.g. family law provisions prioritising child welfare, or mandatory reporting laws).
Court cases that discuss ethical aspects of mediator conduct.
Academic scholarship that analyses ethical principles and categorises dilemmas.

Because no single document covers everything, mediators need a working knowledge of multiple sources and the ability to interpret them in light of the case at hand.

Ethics of mediation

Various academics and practitioners have tried to produce lists of ethical principles for mediators. There are examples in the reading list below.

In my opinion, one of the most practical tools comes from Robert Baruch Bush, whose research in 1994 identified nine common categories (with numerous examples under each category) of ethical dilemmas mediators face:

Keeping within competency – avoiding work beyond your skill or qualification.
Preserving impartiality – managing bias or perceived bias.
Maintaining confidentiality – between parties and with outsiders.
Ensuring informed consent – avoiding coercion, ensuring understanding.
Preserving self-determination / non-directiveness – resisting the urge to impose solutions.
Separating mediation from counselling or legal advice – knowing the boundaries.
Avoiding exposure to harm – preventing physical, emotional, or legal harm.
Preventing misuse of the process – deterring fishing expeditions, stalling tactics, or intimidation.
Handling conflicts of interest – both actual and perceived.

Here’s a handy infographic that summarises Bush’s categories for easy reference:

But what should we actually do?

While codes and guidelines identify principles, they rarely tell you how to make a decision when those principles conflict. For example:

Is self-determination more important than informed consent?
When does preventing harm justify breaching confidentiality?
How should context, cultural norms, relationships, situational risks influence our choices?

Without a process, mediators risk falling back on ad hoc decisions, which are likely to be less well informed and harder to justify if challenged.

An Eight-Step Process for Ethical Decision-Making

The following approach has been adapted from social work and refined for mediation (originally by my colleague Olivia Rundle and I in an early article). It gives mediators a clear structure for navigating ethical dilemmas, with 8 steps (set out with more detail in the infographic below):

Clarify the dilemma
Identify stakeholders
Indentify applicable ethical principles
Consider context
Generate options
Evaluate options
Implement
Reflect

Common Options in Response to a Dilemma

While the “right” choice depends on the situation, mediators often consider options such as:

Doing nothing (rarely ideal, but sometimes appropriate).
Reality-testing with the parties.
Taking a break to seek advice from a mentor or colleague.
Disclosing the dilemma to one or both parties.
Withdrawing from the mediation.
Reporting to relevant authorities or taking protective action.

There are many more possibilities depending on the dilemma, the stage of the mediation, and the particular circumstances. It’s important that, like we ask our mediation clients to do in mediation, we generate as many options as possible, evaluate them and then create a specific action plan.

This is another thing I have noticed working with students in mediation training – they tend to come up with one option and work to justify it, rather than thinking about multiple and lateral options and then evaluating them.

Also, they tend to come up with an action plan (e.g. report to the authorities) that is vague and incomplete. For example, to whom will they report? What will they say? Will they identify themselves? Will they share this decision with their parties?). In hypothetical activities we can be vague with no consequences, but in the real world we must act quickly and precisely. The more we practice precision in our hypothetical scenarios, the more we will be prepared in the event we face a dilemma in our practice.

Consequences of Acting Unethically

Potential outcomes include:

Legal liability – rare, but possible if conduct breaches laws.
Harm to parties or others – physical, emotional, financial.
Complaints and sanctions from professional bodies.
Damage to reputation – to the individual and the profession in general.
Missed opportunities for learning if we don’t reflect and share experiences.

In reality many unethical actions go unchallenged, but that doesn’t make them harmless. The absence of consequences is not the same as the presence of integrity.

Why Practice Matters

Trying to work through these eight steps in the heat of a mediation can be difficult. That’s why it’s valuable to rehearse using hypothetical scenarios (the mediation equivalent of a fire drill)! Practising with such scenarios in training, supervision, or reflective practice groups builds your repertoire of responses and your confidence in applying them.

Building an Ethical Culture in Mediation

Ethical competence isn’t just an individual skill. It’s a cultural norm we build together. By talking openly (within confidentiality limits) about ethical challenges, we normalise the idea that dilemmas are part of practice, not a sign of failure. We also expand our collective “library” of ways to handle them.

That might mean:

Incorporating ethical decision-making practice into professional development.
Participating in reflective practice groups or “mediator’s dilemma” forums.
Sharing anonymised case studies in articles, webinars, or conferences.
Encouraging a mindset of curiosity and humility, rather than certainty.

Ethics in mediation is rarely about black-and-white rules. It’s about learning to navigate the grey zones with care, courage, and a willingness to be accountable for our choices. With a clear process, a solid grounding in principles, and regular practice, mediators can face ethical challenges with confidence and model the integrity that gives our profession its credibility.

But it can be difficult to navigate this grey area. What happens when mediation meets mystery, debate, and high-stakes decision-making? Welcome to The Mediator’s Dilemma, an interactive event series that takes you to the heart of some of the toughest dilemmas mediators face.

The Mediator’s Dilemma is inspired by Geoffrey Robertson’s Hypotheticals, with each session you will be immersed in a fictional yet realistic mediation scenario that is filled with ethical quandaries, unexpected twists, and moments where the path forward isn’t clear. As the story unfolds, you’ll face the same challenges as the mediator in the story.

The facilitator will guide you through the unfolding drama, pausing at critical “dilemma moments” to ask for audience engagement. Discuss with fellow mediators from diverse backgrounds. Whether you’re stepping into your first session or reflecting on decades of experience, The Mediator’s Dilemma offers something for everyone.

RESOURCES:

Boulle (2023) Mediation and Conciliation in Australia, Chapter 10.
Hardy and Rundle (2012) Applying the inclusive model of ethical decision making to mediation. James Cook University Law Review.
AMDRAS Practice Standards (2024) Code of Ethics
IMI Code of Professional Conduct
Law Council of Australia Ethical Guidelines for Mediators, 2011.
Robert A. Baruch Bush (1994) A study of ethical dilemmas and policy implications. Journal of Dispute Resolution 1.
Omer Shapira (2021) Mediation Ethics: A practitioner’s guide. American Bar Association.

OTHER USEFUL RESOURCES ON ETHICS IN MEDIATION:

Akin Ojelabi, L. (2023). The Challenges of Developing Global Ethical Standards for Mediation Practice In: Comparative and Transnational Dispute Resolution, Routledge, Oxford, United Kingdom
Robert A. Baruch Bush (2019) A pluralistic approach to mediation ethics: Delivering on mediation’s different promises. Ohio State Journal on Dispute Resolution 34:459-536.
Zachary R. Calo (2024) Artificial intelligence and mediation ethics. Cardozo Journal of Conflict Resolution 26:211-233.
Cohen, “A Taxonomy of Dispute Resolution Ethics” in M Moffitt and R Bordone (eds), The Handbook of Dispute Resolution (Jossey Bass, San Francisco, 2005), Ch 16, p 244.
Rachael Field (2012) Mediation ethics in Australia: A case for rethinking the paradigm. James Cook University Law Review 19:41-69.
Rachael Field and Neal Wood (2006) “Confidentiality: An ethical dilemma for marketing mediation?” Australasian Dispute Resolution Journal 17(2): 79-87.
Rachael Field and Jonathan Crowe (2020) Mediation ethics: From theory to practice.
Carrie Menkel-Meadow, Ethics and Professionalism in Non-Adversarial Lawyering, 27 FLA. ST. U. L. REV. 153, 167-68 (1999).
Mary Anne Noone and Lola Akin Ojelabi (2014) Ethical challenges for mediators around the globe: An Australian perspective. Journal of Law and Policy 45: 145-193.
Mary Anne Noone, Lola Akin Ojelabi and Lynn Buchanan (2018). Ethics and justice in mediation.
Joseph Stulberg (1995) Bush on mediator dilemmas. Journal of Dispute Resolution 57-71.
Ellen Waldman (2011). Mediation Ethics: Cases and Commentaries. Jossey-Bass.

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.

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?

TIPS FOR NEW PRACTITIONERS: Getting your documents in order

Posted on 27/02/2025 by Dr Samantha Hardy

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

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

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

What documents do you need?

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

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

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

How do you make these documents available?

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

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

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

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

Check the content is applicable

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

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

Check that the language is suitable

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

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

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

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

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

Conclusion

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

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

We consider different categories of documents, including:

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

Author Biography

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

Informed, Involved, Inclusive: The Proposed Curriculum

Posted on 24/02/2025 by Milan A Nitopi

Rory Gowers & Milan Nitopi
This article is Part 2 of 3 in our series ‘Informed, Involved, Inclusive’.

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

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

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

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

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

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

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

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

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

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

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

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

Participant engagement
Research informed learning
Self-reflection
Flexibility

MIMI Foundation 1: Interculturally Informed

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

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

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

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

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

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

MIMI Foundation 2: Interculturally Involved

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

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

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

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

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

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

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

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

MIMI Foundation 3: Interculturally Included

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

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

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

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

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

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

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

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

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

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

Continuing Professional Development (CPD)

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

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

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

Author Biography

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

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

Informed, Involved, Inclusive: Laying The Foundations

Posted on 28/11/2024 by Milan A Nitopi

Rory Gowers & Milan Nitopi
This article is Part 1 of 3 in our series ‘Informed, Involved, Inclusive’.

Every culture is in conflict; and, we are all moderated by cultural norms and expectations. Where there is more cultural diversity, there is a greater chance for misunderstanding and an escalation of conflict.

In the context of meditation, facilitators who are not equipped with the necessary intercultural competencies risk undermining that process, which can contribute to difficult or unproductive communication and dialogue. Although competencies standards exist (such as the Intercultural Competence Specialisation by the International Mediation Institute), facilitator training in intercultural predisposition is limited.

We presented our proposition to counter this serious gap in mediator development at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024 in our address: ‘Informed, Involved, Inclusive: A New Chapter In Intercultural Competence’. The Mastering Intercultural Mediation Implementation (MIMI) training program is based on three core foundations:

Informed,
Involved, and,
Inclusive.

MIMI is a specific application of the my-RESPECT-ability model which entails the intercultural mediation principles, processes, and practices at the heart of the Intercultural Competence Playbook (Gowers 2023).

Visit my-RESPECT-ability to read more on the model or to enrol in introductory webinars.

In developing the MIMI training program we explored intercultural research concepts and approaches (including Dai & Chen, Sveiby & Skuthorpe, Gowers) as well as drawing on our combined lived experience and extensive mediation practice. Rory has lived in over 7 countries and brings insights from over a decade of real-life intercultural mediation practice (in public, private, and voluntary sectors).

Becoming interculturally competent is more than an intellectual and mindful journey. Therefore we decided it is crucial to centre our training model on participant transformation. As participants become more aware, more accepting, and more appreciative of an ‘other-culture’, they begin to develop competencies which enable them to facilitate intercultural interactions effectively.

An ‘other-culture’ is a class, community or sub-culture of any kind (social status, ethnicity, spiritual, gender identity, wealth, occupation, species, etc.) that is so different that it reveals in you a sense of personal discomfort or powerlessness (such as fear or anxiety or a capacity to interact). It is the feeling of being a total foreigner, in contrast to the feeling of being a relaxed tourist. It may be experienced as a feeling of alienation. This is what people from an other-culture experience when they enter into a new, dominant culture where they lack the capacity or the social skills to interact or negotiate on a level playing field.

Foreigner. 外人 Gaijin. 鬼佬 Gwáilóu. Stranieri. Gudiya. Alien.

The word ‘gudiya’ refers to non-Indigenous people in the context of Aboriginal-English. Indigenous Australians adapted English to communicate with non-Indigenous people after their traditional languages were stolen and is a variety of English, distinct from Australian English.

There are many words to refer to an ‘outsider’ and we all have experienced this feeling at some point in our lives.

Communication and dialogue is an essential and fundamental aspect of mediation, but how do we consider this through the lens of the three cultural motifs:

the Eastern “We”
the Indigenous “Be”
the Western “Me”

In a Western context, ideals such as self-determination and non-partisanship (including neutrality and impartiality) are often discussed as being critical to an effective mediated outcome. But what do these aspects actually mean with consideration of other-cultures?

Whereas in an Eastern context, the ideal of achieving harmony appears critical to an effective mediated outcome. And, in an Indigenous context, ideals of responsibility and collective existence appear critical to an effective mediated outcome. Yet the Western understanding of ‘mediation’ does not translate well with ideals belonging to other-cultures.

We see here that ethical practice is shaped by varying culturally embedded needs and these needs are not exclusive to just one specific cultural perspective. In the context of communication and dialogue, they illustrate the interests, needs, concerns, and expectations of other-cultures. Unless a mediator is interculturally aware, accepting, and appreciative of other-culture perspectives and ethical frameworks, their ability to facilitate effective and enduring outcomes is significantly diminished.

Where all parties to an intercultural dispute are able to express and address their interests, needs, and concerns in culturally relevant ways, then a more creative, sustainable, and harmonious outcome can be achieved.

Mastering Intercultural Competence

Our intercultural competence training model is built on three foundations:

Informed
Involved
Inclusive

Foundation 1: Informed (awareness)

The first foundation is focused on being better informed. By being better informed, we are led to an increased awareness. And, to be better informed we must turn our minds to the facts, feelings, and findings of intercultural research.

This foundation is a structured learning process centered on establishing the baseline knowledge of intercultural competence.

As it has been observed that a person’s experience of other-cultures is both an intellectual and mindful journey, knowledge of an other-culture is not itself enough to develop intercultural competence. Although the International Mediation Institute sets out the minimum standards for intercultural competence specialisation and set the pathway for internationally accepted mediation principles, we recognised that more was required in order to have a complete and comprehensive understanding of an other-culture.

In a Western context, unless we become aware and address our own inner conflict, we are unable to take a ‘balcony view’ of others’ conflict. By failing to adopt a balcony view, we lack impartiality and neutrality; concepts that are cornerstone to Western facilitative mediation practice. However, within other-cultures, a different approach might be taken.

Foundation 2: Involved (acceptance)

The second foundation is focused on being more involved. By being more involved, we are led to a greater acceptance of other-cultures. And, to be more involved we must immerse ourselves within an other-culture and listen to their stories, songs, and symbols.

We created this foundation to allow participants the opportunity to develop a deeper understanding of the other-cultures needs, values, and expectations by providing a full other-culture immersion program. This foundation is the heart of our training model.

This immersion program is crucial as participants must initially feel uncomfortable and confronted with unfamiliar aspects of an other-culture. This makes for a more profound intercultural learning experience. It is ourselves actually undergoing the change where we arrive at a deeper level of understanding and respect for other-cultures and their voice at the ‘table’.

As it takes time to begin immersing ourselves in an other-culture, some participants may elect to extend their immersion program to develop an even deeper understanding of the other-culture that they immersed themselves in.

Immersion is more than assimilation with, or imitation of, the other-culture. In their experience, participants learn respect for the values, needs, and expectations embedded within those other-cultures. It is to understand and accept that our eyes are but only one perspective in the world and that there are many eyes which look upon the face of this earth differently. All perspectives are valued.

Unlike how the International Mediator Institute Standards emphasise mediator proficiency of a particular culture and advocates for cross-cultural application, our approach is focused on competence in intercultural interaction.

To be cross-cultural is not to be intercultural. They are different. ‘Intercultural’ is described by Paula Schriefer as:

“communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.”

Foundation 3: Inclusive (appreciation)

The third foundation is focused on being more inclusive. By being more inclusive, we are led to a greater appreciation of other-culture’s wisdom, needs, and ways of working with conflict. And, to be more inclusive, we must turn our minds to choosing the most appropriate principles, processes, and practices of intercultural mediation for that culture.

We created this foundation to allow participants the opportunity to further develop their intercultural mindset and heart-set behaviours. A participant is to adapt their current core principles, practices, and processes to the interests, needs, concerns, and expectations of the other-culture they immersed themselves in.

By putting learnings and reflections into practice, participants are able to accurately identify and address communication and dialogue issues within an intercultural context. This can be achieved with case studies or role play exercises.

Authors Biography

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

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