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

Posted on 12/12/2025 by Peter Condliffe

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

Introduction

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

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

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

Our discussion unfolded in three ways summarised below.

The Conceptual Conversation

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

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

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

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

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

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

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

The Inclusivity Conversation

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

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

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

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

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

The Productive Social Change Conversation

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

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

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

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

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

Conclusion

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

Authors Biography

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

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

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

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

Posted on 02/10/2025 by John Lande

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

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

Many Lawyers Are Using AI – and Probably More Will Soon

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

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

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

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

Academic and Practitioner Perspectives About AI

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

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

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

Getting Started Using AI

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

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

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

The central role of party self-determination in mediation ethics

Posted on 19/12/2017 by Jonathan Crowe

Written by Professors Rachael Field and Jonathan Crowe. The post is a version of a paper delivered at the 6th ADR Research Network Roundtable, 4 -5 December 2017.

RF and JC Image

The dominant paradigm of mediation ethics has traditionally given a central role to the notion of mediator neutrality. However, this focus has been criticised in recent decades for being unrealistic and overlooking the power dynamics between the parties. In our forthcoming book, Mediation Ethics: From Theory to Practice, we advocate a new paradigm of mediation ethics focused on the notion of party self-determination. Why, then, is party self-determination a suitable candidate for this role?

The justification for making party self-determination the primary ethical imperative of mediation centres on two main arguments. The first argument is that the possibility of achieving self-determination for the parties is what distinguishes mediation from other dispute resolution processes and makes it a distinct and valuable process in its own right. The second argument is that the achievement of party self-determination provides a principled foundation for the legitimacy of the mediation process. We discuss these arguments briefly below.

Mediation as a distinct process

Party self-determination is the key factor distinguishing mediation from litigation and other dispute resolution processes, because mediation provides the parties with the ultimate power to decide how to resolve their dispute. A mediator’s role is to use their expertise so as to enable and empower the parties to reach their own decision. This characteristic of mediation is special and distinct.

This point is emphasised by the fact that in litigation, arbitration, and even conciliation processes, the focus is not on enabling and empowering the parties to take control of their dispute and to reach an outcome of their own determination. Rather, the focus is on the third party decision-maker or specialist judging the merits of the parties’ cases and imposing a decision. Such adjudicative activity is generally guided by objective norms or criteria—most often centred on the law. There is limited opportunity for party self-determination in such processes.

Party self-determination in mediation is also distinctive because it is relational—grounded in connection, cooperation and collaboration. This concept of self-determination is very different from an atomistic notion of autonomy that emphasises privacy and self. An atomistic conception of self-determination arguably underpins the adversarial legal system, because each party is encouraged to advocate single-mindedly for their own interests. In mediation, by contrast, party self-determination does not exist on an individual level; rather, it is holistic and relational, encompassing the needs and interests of both parties. If only one party experiences self-determination, the process has not succeeded in its aims.

Principled and legitimate outcomes

A second argument for emphasising party self-determination is that it provides a principled foundation for the legitimacy of the process. Party self-determination can be said to lead to principled outcomes because it reflects foundational values of our legal, social and political order. These include traditional liberal values, such as consent, autonomy, respect, privacy and dignity. However, they also include relational values, such as empathy, emotional expression and interpersonal dialogue.

These values highlight the importance of party involvement and collaboration in the negotiation, creative option generation and decision-making components of mediation. In mediation, the parties can achieve a principled outcome because they are deeply and thoroughly involved in working through the issues, discussing their individual and mutual perspectives, and developing the terms of the final resolution. Party engagement also promotes the personal dignity of the parties, particularly when the result is to avoid the inevitable costs and uncertainties of litigation.

Party self-determination also promotes principled outcomes because it yields a form of real world justice. Many disputes take place in a context where the parties have different needs, priorities and values. Parties value different things, and also value things differently. This means that compromises and trade-offs are an inevitable and constructive part of the process. Compromise, then, does not mean the process is unprincipled or illegitimate. Rather, the value of compromise represents a key principle in its own right. It can lead to a more principled and legitimate result than rule-based or adversarial approaches. The notion of party self-determination recognises and embodies this important value.

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

Posted on 13/12/2017 by jillhowiesonuwaeduau

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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.

Honesty and Candour in Mediation: Are They in Short Supply?

Posted on 14/12/2016 by Associate Professor Bobette Wolski

Mediation, like negotiation, is at its most basic a process of communication between parties in dispute. The aim in mediation is to find a mutually agreeable solution. The success of mediation might well depend on the ‘honesty’ and ‘candour’ of the parties and their representatives. The parties must be honest and open enough to find a zone of agreement.

The terms honesty and candour need to be defined. Elsewhere I have defined ‘honesty’ as a concept which concerns the accuracy of information conveyed, while ‘candour’ is a concept which goes to the heart of whether or not information is conveyed at all.

Honesty the flower: credit Creative Commons see below

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While it makes sense for the parties to be honest and open enough to find a mutually acceptable solution, only a fool would rush into a mediation and reveal, at the outset, their BATNAs, WATNAs, and bottom lines.

As for mediators, they are constantly handling information gleaned from the parties in dispute. Often they have to run ‘messages’ back and forth from separate sessions with the parties.

This short discussion looks at the obligations, if any, which fall upon the mediation participants and mediators to be honest and candid.

Parties and their representatives – duties owed to mediators and to each other

Agreements/Legislation

Standard form agreements to mediate and relevant legislation do not usually impose an obligation to be honest and/or candid, although they often require parties to ‘cooperate’ with each other and with the mediator to carry out tasks such as isolation of issues in dispute, exploration of options and so on. Many legislative schemes require the parties to participate in good faith. The terms ‘cooperation’ and ‘good faith’ (and ‘genuine effort’) are rarely defined in agreements to mediate or by relevant legislation but the courts have discerned some common elements (eg attendance at the mediation by someone with authority to settle). Some guidance on behaviour which is not inconsistent with good faith in mediation is also available from cases and commentaries. Good faith does not require a party to act against self-interest and it does not require a party to take ‘any step to advance the interests of the other party’.[1] Good faith does not require the parties to engage in total disclosure. There is no requirement to reveal all of one’s negotiation goals and bottom lines.

Lawyers, as agents for their clients, are also bound by the obligation to act in good faith. A lawyer cannot mislead the mediator or his or her opponent about a material fact for it is recognised that such action (or inaction, where a false statement needs to be corrected) constitutes bad faith.

Negotiation Convention

It is sometimes assumed that interest-based negotiation, which underlies the facilitative model of mediation, requires honesty and candour. Negotiators adhering to an interest-based approach might explain their positions and interests (and refrain from misleading on these matters) with the idea of finding a solution that meets each parties’ interests, but the prescription to be honest and forthcoming with information stops at positions and interests. There is no requirement under this model of negotiation to disclose one’s BATNA or bottom lines.

Rules of Professional Conduct for Lawyers

If the parties are legally represented, the level of regulation intensifies. Legal representatives are subject to the ‘law of lawyering’ including the rules of conduct of the legal profession. These rules set out obligations owed by lawyers to courts and tribunals, clients, opponents and other parties.

Lawyers cannot mislead or deceive the court on any matter. They must advise the court of any adverse legal authorities and legislation. They must be honest and courteous to clients. They must not mislead or deceive their opponents. They must treat everyone with whom they interact, with honesty and courtesy.

Aside from the requirement to advise the court about adverse legal authorities and legislation, the rules do not impose a positive obligation to reveal information unless it is necessary to correct a half-truth or to correct a prior statement which has since become false.

The rules in relation to clients, opponents and others are easily transferable to mediation. The rules in relation to courts are an awkward fit in mediation. It seems that practitioners must treat mediators as courts (see the definition of ‘court’ in the professional conduct rules). If this is the case, practitioners must never mislead or deceive a mediator and they must reveal adverse legal authorities and legislation. I say that this is an awkward fit because mediators do not make substantive decisions and, unless he or she is an evaluative mediator, a mediator seems to have no need for information on adverse authorities and legislation. What is clear is that practitioners do not have to reveal other information either to the mediator or to an opponent save if it is necessary to correct a half truth or correct a statement which has become false (and of course, the practitioner must not reveal information without the consent of the client).

Mediators – duties owed to participants

The NMAS Standards

Assuming that a mediator is accredited under the NMAS and ‘bound’ by the scheme’s Practice Standards (PS), the mediator owes a duty of honesty in regard to matters of advertising and promotion of mediation. But that may be the extent of the mediator’s obligation for honesty under the PS. The mediator might owe an obligation to act with ‘integrity’ but the meaning of that term is not clear.

Rules of Professional Conduct for Lawyers

If the mediator is a lawyer, he or she is still subject to the law of lawyering.

Lawyer mediators owe obligations to the court (not to mislead or deceive). A lawyer mediator is still a lawyer and could not, for example, be a party to a fraud committed during mediation.

The rules governing the relationship of lawyers and opponents seems to have no application to mediators. Mediation participants are not the mediator’s opponents.

Mediation participants are not clients in the traditional sense.

It may be that participants are best considered to be ‘others’ (they are certainly not courts). If this assumption is correct, mediators are obliged to treat mediation participants with honesty and courtesy but there is, at least under the legal profession’s rules, no requirement for candour.

What is the safest course?

The best advice for parties (and their legal representatives) is to reveal information slowly and cautiously. If information is conveyed, care must be taken to ensure that it is accurate. Lawyer mediators must also take care to ensure that any information they convey is accurate. Since there is no general duty of candour, all those who participate in mediation – including mediators – must think before they talk. At times, they may want to take refuge in a silent ‘safe harbour’.

[1] United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 (3 July 2009) [76] (Allsop P).