Tag Archives: mediator

RPS Coach is Biased – And Proud of It

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

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

Wrong.  That assumption is its own bad bias.

Biases are inevitable – in humans and bots alike.

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

But bias itself is unavoidable.

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

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

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

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

What the Heck is a Bias, Anyway?

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

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

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

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

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

‘Nuff said.

Where Do Biases / Preferences Come From?

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

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

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

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

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

Design Choices – aka Biases – in RPS Coach

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

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

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

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

Coach follows detailed instructions, including to:

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

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

Process Choice: Analysis Not Advocacy

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

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

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

Practice Systems Thinking

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

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

The Coming Marketplace of Dispute Resolution AI Tools

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

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

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

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

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

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

A Message from RPS Coach. Really

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

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

Coach has a thing for humans who ask good questions.

How Attorneys Can Be Quasi-Mediators

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

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

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

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

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

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

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

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

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

Do

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

Don’t

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

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

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

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

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

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

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

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

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

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

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

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

What is missing within intercultural mediation?

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

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

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

Why MIMI is the missing link–especially in 2025!

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

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

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

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

Who else can benefit from MIMI?

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

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

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

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

Join the MIMI Pilot Program—A Transformative Experience!

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

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

Expressions of interests close 31 May 2025.

Who should apply?

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

As a pilot participant, you will:

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

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

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

TIPS FOR NEW PRACTITIONERS: Getting your documents in order

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

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

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

What documents do you need?

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

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

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

How do you make these documents available?

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

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

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

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

Check the content is applicable

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

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

Check that the language is suitable

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

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

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

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

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

Conclusion

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

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

We consider different categories of documents, including:

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

Author Biography

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

Informed, Involved, Inclusive: The Proposed Curriculum

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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:

    1. Participant engagement
    2. Research informed learning
    3. Self-reflection
    4. 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:

    1. 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.
    2. 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.
    3. 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:

    1. 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.
    2. 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.
    3. 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:

    1. 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.
    2. 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.
    3. To present their intercultural practice statement to their cohort. This will be evidenced by their attendance and portfolio submission following the 5 days. 
    4. 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/

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

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

    Authors Expertise

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

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

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

    Call for Feedback

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

    Key Updates in the 7th Edition

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

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

    Proposed Topics for the New Edition

    The seventh edition will include chapters on:

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

    Engage with the Authors

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

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

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

    Informed, Involved, Inclusive: Laying The Foundations

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    Rory Gowers & Milan Nitopi
    This article is Part 1 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.

    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:

    1. Informed,
    2. Involved, and,
    3. 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:

    1. Informed
    2. Involved
    3. 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/

    The Problem with ‘Genuine Effort Certificates’ in Family Law and Options for Law Reform

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    Emma Mills
    Monash University

    In Australia, most parents who are trying to resolve a parenting dispute must first attempt family dispute resolution (‘FDR’), usually in the form of mediation. This must be done before commencing family law court proceedings. If FDR is unsuccessful, a family dispute resolution practitioner (‘FDRP’) will issue parties with a certificate to take to the court, which outlines why parties were unable to resolve their dispute during FDR. These are known as ‘genuine effort certificates’. However, genuine effort certificates given by FDRPs pose many issues, such as the lack of clarity about what a genuine effort looks like, lack of consistency and negatively impacting vulnerable parties. Due to these issues, I argue that changes should be made to the Family Law Act (‘FLA’). Specifically, I propose two separate solutions that could be considered. First, I propose that genuine effort should be a term that is defined in the FLA and second, that genuine effort certificates should be abolished and replaced with attendance certificates.

    What is the genuine effort certificate and FDR?

    In 2006, the Australian Government introduced changes to improve the Australian family law system. The main reason behind the sweeping reforms was to find ways for parents to come to a parenting agreement collaboratively, rather than commencing legal proceedings. Due to these reforms, attendance at FDR is effectively a pre-requisite for family law matters involving children. FDR is where a FDRP, who is independent to the parties, acts as a mediator to facilitate parties coming to a solution between themselves, so that they can seek to resolve their dispute outside of court. A court is unable to hear an application regarding a parenting dispute, unless a genuine effort certificate is issued by a FDRP or an exception applies. The certificates are based on whether parties have made a ‘genuine effort’ to participate in FDR. For example, a parent could be issued with a certificate that says that they ‘did not make a genuine effort to resolve the issue’ (‘non-genuine effort certificate’). The type of certificate issued can determine whether the court decides to send parties back to FDR and can be a consideration when determining to award costs against a party.

    As a result of the genuine effort certificate scheme, FDRPs have been referred to as being ‘gatekeepers to family courts’. There are some advantages to this. For instance, the genuine effort requirement places an obligation on parties to take responsibility to resolve the dispute before going to court. Following the introduction of the FDR requirement, there was a 25% reduction in court filings and parties reported high levels of satisfaction with the process. However, genuine effort is not defined in the FLA. The FLA does not provide any guidance as to what circumstances, conduct or factors constitute a ‘genuine’ or a ‘non-genuine’ effort. This means that the implementation of this requirement is problematic in practice.

    What are the negative impacts of the genuine effort certificates?

    Undermining the Impartiality of a Mediator

    The main role of a FDRP in mediation is to be ‘independent’ from parties. The neutrality of the FDRP is a fundamental component of the practice of mediation. Neutrality is described as going ‘to the heart’ of mediation theory and means ‘freedom from bias’. Field and Crowe talk about the ‘folklore of neutrality’, which suggests that true neutrality can be difficult to achieve. This concept is especially true in the context of the genuine effort certificates.

    When issuing a genuine effort certificate, FDRPs must make a subjective judgement about whether each party has genuinely attempted FDR. The FDRP may have to make a judgement about whether the party has acted reasonably. This can occur in situations where a party refuses to move from their initial position, which could be perceived as the party being unrealistic and unreasonable by the FDRP. Also, whilst FDRPs are trained to be as objective as possible, decisions about whether parties have been genuine in their effort may be unavoidably influenced by their own personal values, experiences and subconscious biases, particularly in the context of family and separation. This can mean that FDRPs may potentially act in a biased way when deciding on the type of certificate to issue.

    The genuine effort requirement, therefore, places immense pressure on FDRPs to make a judgement about how they perceive each party to be genuinely participating in the process. This function is arguably well beyond a FDRP’s scope as mediators, when they take on a role of being an ‘assessor’. The requirement for a FDRP to issue a genuine effort certificate is a legislative obligation that overrides the fundamental obligation of FDRPs to treat parties impartially, which is central to mediation.

    Lack of Clarity and Consistency

    As discussed earlier, the FLA does not define genuine effort. Therefore, whether a party has genuinely participated in FDR is a highly subjective analysis which must be undertaken by FDRPs in the absence of guidance on how a genuine effort is to be determined. Due to the lack of clarity, pressure is placed on parties to appear reasonable and cooperative, so that they can satisfy the individual FDRPs perception of genuine effort. This strain may impact parties to the extent that they do not feel like they can participate in the process in a full and frank manner, or negotiate effectively. For example, parties may change their behaviour, possibly to their detriment, if they know that the FDRP will be making a judgement about their behaviour. This strain placed upon parties, lawyers and FRDPs is a result of the genuine effort requirements being unclear and undefined.

    Since there is no definition of genuine effort, it is extremely difficult to promote consistency in the issuing of genuine effort certificates. FDRPs are often influenced by a range of factors, including their prior professional experiences and their personal views. This can mean that there is a lack of consistency for parties, which can create apprehension about what certificate they may be issued. Therefore, due to the lack of clarity about what is a genuine effort, it creates an area of law that is inconsistent and unreliable.

    Gendered Implications

    For parties to appear as though they are genuinely participating in the process, it is likely that the party must present as rational, reasonable and cooperative. This poses a risk for parties who may appear difficult, angry or unreasonable, to be seen as not genuinely participating.  This expectation can create problems, especially for vulnerable individuals, who might not fully understand what is expected of them.

    Viewing this through a gendered lens, Rachael Field argues that women are more likely to face unfair judgements and to be labelled as being ‘unreasonable’ after separation. This can make it harder for women to show FDRPs that they are genuinely trying to participate in the process. After separation, women are often already enduring gendered disadvantage, such as distress, poverty or repercussions of family violence, which can affect both how they behave and how their behaviour is perceived during FDRP. Also, when FDRPs evaluate how genuine parties are, they may be influenced by their societal views and values of women, including what they consider to be stereotypically feminine behaviour. This raises the possibility that if a woman behaves in a way that falls outside of gendered norms, she may then be issued with a non-genuine effort certificate. This can worsen the post separation vulnerability that women experience, especially if they then run the risk of receiving a cost order against them once the case progresses to court.

    What are the solutions?

    As discussed, the way that genuine effort certificates are operationalised in practice may undermine the overall aim of increased participation in FDR for parenting disputes. There are two separate potential avenues for reform that I will now consider, which could assist in working towards addressing these problems.

    • Defining Genuine Effort

    As mentioned earlier, the lack of clarity around what counts as a genuine effort in FDR creates significant problems, especially for vulnerable parties and women post separation. Without a clear definition of genuine effort in the FLA, it reduces consistency for parties. Therefore, one solution is that the FLA should be amended to include a definition of genuine effort. This definition would provide a guideline for FDRPs, lawyers and parties. For example, the Migration Act 1958 (Cth) includes a provision where the holder of a certain visa has made a ‘genuine effort’ to commence employment or engage in business. A list of factors is included to help with the assessment of what is considered genuine effort in the circumstances. Whilst the factors included in the Migration Act are not helpful in assessing genuine effort in FDR, this provides an example of how the FLA can include such guidelines to assist in the interpretation of genuine effort.

    The possibility of using a list of factors has already been considered by leading family law scholars. For instance, Hilary Astor suggests that a definition of genuine effort should include factors such as the ‘willingness to consider options put forward by the other party’, ‘willingness to consider putting forward options’ and ‘willingness to focus on the needs and interests of the children’. These factors would help to give parties a guide on how they should act in FDR. These factors align with broader comments made by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 [at 156], where he says that parties should be open minded and receptive in mediation and be willing to put forward options for a resolution.

    These factors, therefore, could be legislated in the FLA. This would provide much needed clarity about what genuine effort means, which would in turn help to create consistency and provide parties with a clearer understanding about what is required of them during FDR.

    • Abolishing the Genuine Effort Certificate

    There are significant issues with issuing genuine effort certificates, which defining genuine effort in the FLA cannot alleviate alone. Therefore, an alternative solution that has been suggested is to abolish the types of genuine effort certificates issued altogether. Whilst defining genuine effort in the FLA may be of some assistance, determining whether parties are giving a genuine effort in FDR is still highly contextual in nature and would still require the FRDP to make a discretionary judgement. Simply providing FDRPs with a set of factors to be considered may not resolve the issue of FDRPs making a subjective decision about the type of certificate to issue or clarify FDRPs’ role within mediation.

    Instead, through abolishing the types of genuine effort certificates issued, the FDRP would instead issue an attendance certificate. This would simplify the process and would just require the FDRP to note whether participants did or did not attend FDR. An attendance certificate would help FDRPs to maintain their position of independence and neutrality within mediation, and would eliminate the issues around the lack of clarity and consistency. It would also help to alleviate the potential repercussions for parties who are issued with a non-genuine effort certificate, especially for women post separation. In addition, without having to assess parties’ behaviour, it would enable FDRPs to focus on their main goal: to assist parties to find a workable arrangement between themselves.

    Next Steps

    Whilst the genuine effort requirement has been an important factor in encouraging parties to try and resolve their parenting disputes through FDR, its implementation poses issues for parties, lawyers and FDRPs. In this post, I have proposed two separate pathways that could be followed to begin to address these problems. Introducing a factor-based definition of genuine effort into the FLA provides a small, short-term adjustment that can assist in clarifying the standard of genuine effort for parties. On the other hand, a more radical, longer-term solution is to abolish the genuine effort certificates altogether and replace them with mere attendance certificates. Attendance certificates would remove the evaluative function of FDRPs altogether, whilst still mandating engagement with FDR.

    Author Biography

    Emma Mills is a Law and Criminology student in the Faculty of Law at Monash University. Emma has a particular interest in social justice and volunteers with the Epilepsy Foundation in her spare time. After graduation, Emma wants to pursue a career in family law and to dedicate herself to creating a fairer legal system.

    What’s in a frame? Power, control and desire in the experience of family mediation.

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    picture-frame-427233_1920picture-frame-427233_1920

    We bring our readers another blog post, written by Assoc Prof Jill Howieson. The post is version of paper presented at the just concluded ADR Research Network Roundtable, 4 -5- December 2017 #ADRRN2017. Happy reading!

    “By the tragic gap I mean the gap between the hard realities around us and what we know is possible — not because we wish it were so, but because we’ve seen it with our own eyes.” —Parker J. Palmer

    In 2011, I wrote on the Kluwer Mediation blog. I wrote about the same transcripts from the family mediations that I have analysed for this paper. In 2011, I wrote that I was reading about desire in these transcripts. I had returned to my 1985 language, literature and culture textbook, Modern Literary Theory, and to psychoanalytic and linguistic theories to try to understand what I was reading.

    I was drawn particularly to Lacan and Foucault, and their analysis of language. A few years on and Parker J Palmer captivates me with his notion of the tragic gap –“the gap between the hard realities around us and what we know is possible.

    Now these concepts converge. Jacques Lacan’s lack, or the “endless chain of signifiers” that we use in pursuit of a ‘real’ satisfaction or desire; Michel Foucault’s recognisable objects (or hierarchies) of importance, and the practices that derive from them that we create to uphold power; and Parker J Palmer’s tension gap, where we “faithfully hold the tension between reality and possibility.” These are all concepts that can inform our understandings about mediation.

    Firstly, I wondered if we as mediators do not ‘faithfully hold the tension’; namely, the tension between what parties say they want and what they desire. The present analyses of the transcripts suggests that mediators can create tight frames for their mediation discourses and thereby impose a control on the parties’ language, and thus on their needs and desires – or at least their acknowledgement of their needs and desires.

    The Foucauldian analysis alerted us to the power that mediators can create through their language. It showed that a mediator’s language could create recognisable objects or hierarchies of importance, which has the effect of elevating these objects and giving them power. The mediators in the study were able to elevate the status of various ‘objects’ including the notion of ‘good parents’ who will compromise and come to agreements, and parents who displayed calm rational ways of disputing or negotiating through their choice of words. By elevating these objects, the mediators could control the practices that flowed from them. For instance, where the mediators accorded importance to the notion of ‘good parents’ and excluded ‘naughty parents’ from the discourse, this empowered the mediators to push the ‘naughty parents’ into attending child-focussed sessions.

    Further, with their language, the mediators seemed to create frameworks for the mediation that would cause the parties to work within those discoursal frames.  Through a repetition of Court-focused words, the mediators created court-focused frames, which had the effect of creating fear in the parties and empowered the mediators to push for agreement (to keep the parties out of court).  The parties would follow the mediator’s language and tailor their conversation to suit regardless of whether this was where they wanted to go or not. For instance, a discoursal frame of court had the result of moving the parties towards plans and agreements, and took them away from their ‘real’ fears and desires.

    Further, the results revealed that mediators would listen according to their mediation orientation. If mediators worked within a settlement orientated frame, then they would listen for agreements or signals that might lead to agreements and use interventions to suit, such as writing options on the whiteboard and recording agreements.  On the other hand, mediators working within a ‘best interests of the child’ framework would listen for examples about the child’s perspective and how the children might be experiencing the separation, and then choose child-focussed interventions to encourage the parents to think of themselves as parents rather than as disputants.

    Essentially, it seemed that despite their best intentions, the mediators would often miss the real desires of the parties and/or ignore the power discourse that they were creating as they pushed towards certain outcomes rather than sitting in the process tension of possibility.

    According to Lacan, needs, if left unattended (or are reframed), do not disappear but turn into desire. In 2011, I asked what language in mediation do we have to address the parties’ unmet needs and desires. Now, I ask, how do we even hear these desires and needs when we mask them so well with our own desires for outcomes?

    If we want to hear the desires of the parties (and I am not saying that all mediators do) then we need to begin to listen differently. We need to listen for the structures of desire in mediation that tell us what it is that the parties crave. We need to sit in the process-outcome tension and listen to the repetitions; the patterns and the experience of the parties so that they can access their true selves and their true desires, and then tell us what these are if they need to.

    The Lacanian analysis revealed that the parties would often repeat words or patterns of words that would give ideas about their desires:

    • their attachment desires (I haven’t found someone worth living with and having my children involved with; I don’t live with somebody that helps me share my rent, helps me share my bills).
    • desire to be a good parent or better person (But that will change in the next … probably ten weeks…that will change), or
    • a desire to give the children what they perceived they needed (I’ve always said to M and to a mediator that assessed me …They’re four boys. They need their dad).

     

    These examples of repetition occurred within conversations about which school the children would go to and who would pay for the children’s after-school sport activities—they were not so easily identifiable as desires.

    So, what do parties say as they seek attachment to calm their unattached selves, or calmness to keep their selves intact in the chaos of conflict? What hidden desires does their language conceal? In the transcripts, there were prolonged, sometimes nonsensical discussions about the location, denomination and even the principal of the children’s schools—signifiers perhaps? There were discussions about the children’s dental plan or child payments —masquerading as desires for closure and the ‘gestalt’ perhaps?

    We can never really know, but we can guess. We can sit in the tension gap of the unfolding of meanings and the ongoing and reflexive nature of mediation. The research shows that mediators tend to focus on the agreements more so than the parties do. The parties’ conversations tended more towards an articulation of what they were experiencing rather than towards concrete agreements.  We could look at the relationship between language, outcomes and experience more closely.  As Parker J Palmer writes, tension in life is ‘inevitable, inexorable, [and] inescapable’.  We could use this tension and assist the parties to make meaning out of their situations, actions and desires; to move from the jumble of conflict – the chaos – to the destination of desire, or at least understanding their desire; to make meaning in the disorganised realm, whether of experience or thought, and sort this out into an understanding of needs.

    But, what mediation language do we use? What do we use as signifiers? And what desire is repressed as we substitute our language of desire for the language of courts, or child development or parties’ needs?

    In 2011, I wondered whether, in every mediation, we were selling ourselves short. I wondered whether, with our future focus, our discourse of agreement, as we shape and mould, whether we were trying to camouflage that which is continually trying to show itself – our gaps, our cracks, our ugliness, our humanity, our beauty, our desires! I think in 2017, the answer might be a resounding yes.

     

     

     

     

    Nearly Neutral: A Mediator’s Best Bet

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    By Amanda Selvarajah

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

     

    the-gate-by-guillaume-delebarre

    ‘The Gate’ by  Guillaume Delebarre: Creative commons source

    The National Mediator Accreditation System removed “neutrality” as a requirement on their list of ethical standards in 2015. This may suggest a trend away from the truly “neutral” mediator in the sense of a ‘detached third-party’. But does this mean we are to rule out neutrality entirely as an ethical consideration in mediation? With a trend of increasingly interventionist mediators, a complete disregard of the concept could place participants at great risk of being subjected to ethically dubious decisions.

         Perhaps the reason for the mediation community’s shift from neutrality is not because of a flaw in neutrality itself, but rather a failure to grasp a version of neutrality that can and should be an important element of an ethical mediation. Instead of defining neutrality as an unattainable attribute intrinsic in the nature of a mediator, perhaps we should be viewing neutrality as a constant practical endeavour throughout the mediation process, a mediator who’s nearly neutral.

    Why Neutral At All?

    A mediator in its simplest description is a ‘trained, impartial third party’ who assists parties in making their own decisions. However, mediation remains unregulated and virtually unmonitored as it is typically conducted in private with assurances of confidentiality. Mediated parties are expected to relinquish a guarantee of the principles of justice and fairness that would be inescapable in a common law court. It is these qualities of mediation that leave participants particularly vulnerable to a biased decision in the event of a potentially opinionated, interventionist mediator. Therefore, it is the consensual participation in the process and the assurance of “neutrality” that many consider the source of the process’s legitimacy.

    On the spectrum of mediator involvement in mediation, the facilitative approach, which focuses a mediator’s role to procedural stages, leaves parties with as much freedom and control in the substance and outcome of the mediation as possible. The evaluative approach, on the other hand, has even been disregarded by some, like the Victorian Association for Dispute Resolution, as being a form of mediation at all. They argued that the mediator’s ‘input into the content, and sometimes the outcome’ of the mediation made the process inherently contrary to the core principles of mediation.

    Such or any mediator involvement may suggest, as critics of the evaluative mediation approach do, an immediate breach of neutrality. But this is only the case if neutrality is restricted to a ‘strict, dualistic sense of the mediator either being or not being neutral.’

    Why Not Be Absolutely Neutral?

    To truly make the case for a re-imagined concept of neutrality, one must first accept the bold suggestion that mediations are not neutral in its literal sense and could likely never be so. Mental health professionals have found that ‘there is no such thing as total impartiality, neutrality, or lack of bias when working with people, even though as practitioners they may strive for such ideals.’ In mediation specifically, research has shown that in practice, mediators may affect and influence mediation at almost all stages of the process. Examples include ‘the ways they structure the interchange between the parties, in terms of the sequencing of storytelling and the framing of responses and what needs to be responded to.’ It follows then that any assessment of a mediator’s success in reference to their ability to be neutral, in the literal sense of the word, would set almost all our mediators up for failure.

    However, regardless of a mediator’s ability to be neutral, there is the added consideration that absolute neutrality may not even be conducive to the goals of a truly successful mediation. For example, in the case of the simultaneous expectations that a mediator be both absolutely neutral but also committed to facilitating an equal conversation, one often comes at the cost of the other.

    Mediated parties often experience a power imbalance. Therefore, a hands-off mediator may in these cases fail to protect ‘vulnerable parties from inappropriate pressure’. In family law mediation (family dispute resolution or FDR), for example, parties often meet at very unequal terms. Mediators in these cases may be caught between either claiming a position of absolute neutrality, thereby stripping them of the power to ‘redress imbalances’, or recognising a role in sometimes having to take ‘affirmative action… to achieve a balanced agreement.’

    Family dispute resolution practitioners must consider if ‘family dispute resolution is appropriate’ before mediation is undergone. This may allow for vulnerable parties to be excluded from the mediation process, sparing mediators the struggle of balancing these competing expectations. But some victims still ‘feel that FDR processes fail to identify and manage the risk of family violence effectively.’ The exclusion also does nothing for parties beyond family abuse dynamics who may still be more vulnerable than the other party due to cultural, societal or financial factors.

    This concept of absolute neutrality is similarly challenging for indigenous mediators, to whom Western notions of neutrality may not make sense. In indigenous mediation it has been recommended that a respected elder would likely be the more appropriate choice of mediator than a neutral third-party. Selecting a mediator for their ability to intimately understand the parties as opposed to their ability to detach themselves from them is arguably in direct opposition to Western expectations of a successful mediator. A commonality in our understandings of a successful mediation, however, may be the increasing interest in addressing the conflict at the heart of mediations.

    Therapeutic jurisprudence, a philosophy focused on critically viewing our legal systems to maximise the health and wellbeing of those who engage with it, has been applied to improve and direct law reform throughout Australia’s legal system. Critically assessing the purely facilitative mediation process through a therapeutic jurisprudence lens unearths the potentially anti-therapeutic effects of having a non-interventional, solution-centric mediator who as a result, fails to address and redress the underlying tensions at the heart of parties’ relationships. The development of therapeutic jurisprudence throughout Australia is proof that the indigenous community’s focus on rebuilding and strengthening relationships is not unique and could be facilitated in mediations with a more involved mediator.

    A New, Nearly Neutral Approach

    Neutrality was seen as a cornerstone of mediation’s procedural fairness, the idea that ‘what is required by procedural fairness is a fair hearing, not a fair outcome’. The facilitative approach has, therefore, been described as having the highest regard for procedural fairness on the basis of perhaps a rather simplistic equating of a fair hearing with a decision-maker who allows parties to make their own case with as little intervention as possible.

    This argument assumes, however, that participants of mediation are always equally capable of articulating and pursuing their own interests and that they are always more concerned with a practical outcome than a resolution of the underlying feelings and conflict which brought on the mediation in the first place.

    However, research has shown that in mediation ‘the basis of authoritativeness (e.g. of the ability to gain voluntary acceptance from members of the public) is changing from neutrality-based to trust-based.’ This suggests that contrary to advocates for neutral mediators, parties may actually prefer a more interventionist mediator who is willing to foster openness and build a relationship of trust over a detached one.

    So perhaps instead of aligning neutrality with a mediator who never intervenes, it would be best to hold mediators’ interventions to standards ‘of non-partisan fairness or impartiality’ instead. For example, weighing, as an objective third-party, whether an intervention would make sense to ‘facilitate a productive dialogue by encouraging or even coaching reticent or inarticulate parties’ to promote a generally more just proceeding. After all, in the immortal words of Theodore Roosevelt, ‘Impartial justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.’

     

    Amanda Selvarajah is (@amanda_darshini) currently in her third year of the Bachelor of Law (Honours) program at Monash University. Her research has focused on questioning the limits of the law and its rooms for improvement across a variety of fields. Last year, her research into the abuse of forensic evidence in court was selected for presentation at the International Conference of Undergraduate Research.