In a world where conflict is increasingly complex and the stakes ever higher, the need for a clear, adaptable approach to mediation has never been more important. If the world has seen unprecedented changes in the last one hundred years in demographics, travel and communication, the pace of changes in the last few years – from Covid-19 to Artificial Intelligence, has been beyond anything experienced.

When mediators compare notes at conferences, there is often a shared confession: my interventions are partly intuition, partly habit, and only occasionally informed by a structured checklist. Over the past decade, a number of frameworks have tried to bring more discipline to that intuition. A recent contribution is SOLVE: Mastering Conflict Resolution with the SOLVE Mediation Matrix by Leonardo D’Urso, Constantin-Adi Gavrilă and Julia Radanova.

The SOLVE Mediation Matrix is built on more than 25 years of mediation practice and tens of thousands of cases. It is a practical guide for professionals, including mediators, lawyers, judges, managers, HR experts, students, and anyone interested in effectively managing conflict and improving their resolution skills. It provides a comprehensive framework for navigating conflicts, difficult conversations, and tough decisions, offering specific techniques and strategies for achieving constructive outcomes. In a nutshell, from practice to theory and then right back to practice.

At the heart of the book is the SOLVE Matrix, which represents a mediation methodology of 5 steps (SOLVE):

1. Set the Stage: This represents the groundwork for mediation, including identifying the actors who should be involved, their views on the situation, understanding goals and expectations, clarifying roles, and agreeing on the conditions for dialogue.
2. Open the Process: The parties and the mediator usually come together to confirm the agreement to start the mediation process. The parties then articulate their perspectives while trying to restore communication, and the mediator helps them define the topics for conversation.
3. Listen & Understand: where the mediator engages deeply with each party, often in private sessions, to understand their underlying needs and interests, gathering sensitive information and ranking interests to inform the subsequent negotiations.
4. Validate Options – when potential solutions are generated, discussed and validated against a set of agreed criteria, while ensuring that all parties are satisfied that their top interests are represented.
5. Enable Resolution – when agreements are finalized and formalized, and the process concludes with clarity and mutual understanding, facilitating closure for all parties involved.

For each step, the Matrix offers over 140 elements, grouped into five categories (TASKS):

1. Targets: Clear objectives for what needs to be achieved in each stage by the mediators and participants.
2. Activities: Specific actions or steps that mediators and participants could undertake to accomplish the targets.
3. Strategies: Approaches that may be employed to effectively navigate each stage and perform the activities mentioned above.
4. Keys: Tangible resources, frameworks, forms, techniques, graphs and methods that assist in effectively implementing the strategies.
5. Skills: The personal competencies and abilities required to facilitate the mediation process successfully.

The 144 elements are not meant as a rigid checklist. Instead, the SOLVE Matrix is a flexible framework that adapts to different cases, sectors, mediation styles, and jurisdictions.

Why did we create this framework?

The reason for developing such a mediation framework is because modern practice has diversified faster than its conceptual foundations. Online platforms, restorative programmes, workplace schemes, and mandatory mediation, among others, have produced a patchwork of “scattered toolkits,” making it difficult to explain why a given intervention is used in a particular case. The SOLVE Matrix brings this scattered knowledge into one clear, teachable, and adaptable grid. It offers a common language for mediators—simple enough for training, yet flexible enough across sectors, types of cases, jurisdictions or mediation styles. It offers a common framework without prescribing one style.

Adaptability is essential

Every staged model risks becoming too rigid. The SOLVE Matrix is not just about what and how to do mediation, but—crucially—about why. It connects the goals of mediation with the activities and strategies needed to achieve them, all within a flexible structure.

In real cases, the process is rarely linear. For example, a private session during Listen & Understand may reveal new facts, requiring another round of Open the Process. Still, having a flexible map helps mediators and parties avoid skipping vital steps, like jumping to numbers before clarifying non-monetary interests, thus protecting the process’s efficiency. Also, by following the same roadmap, it is easier for mediators and advisors to discuss and agree on the process, therefore limiting the risk of confusing the parties regarding the approach.

The SOLVE Matrix has many possible practical uses:

• As a self-audit tool, practitioners can note which squares they routinely cover and which they neglect, turning the gaps into learning goals;
• As a client-preparation template, counsel can reverse-engineer the grid to brief parties on the Activities and Keys likely to surface in each phase and the information they should assemble;
• As a curriculum-design aid, trainers can map course modules onto the 25 squares to balance process, substance, and skill;
• In online mediation workflows, the Activities column can feed directly into platform checklists or automated prompts, supplying the explicit structure that virtual sessions require.

A fill-in Canvas accompanies the Matrix to support any of these applications. Practitioners are invited to treat the SOLVE Mediation Matrix as a living document—one they can annotate, adapt, and rearrange as new techniques emerge.

SOLVE is neither a silver bullet nor entirely new. Its value lies in organizing what mediators already do in a clear, teachable format. Whether the community adopts the full grid, extracts preferred slices, or uses it mainly as a reflective mirror will depend on individual style and context. One key takeaway is less about adopting each square than about asking better meta-questions: Which stage are we at, and what is the current Target? What can we do to align our Actions and Strategies? If the SOLVE Matrix helps prompt those questions, it will have served a useful purpose.

SOLVE: Mastering Conflict Resolution with the SOLVE Mediation Matrix is available at https://www.amazon.it/SOLVE-Mastering-Conflict-Resolution-Mediation/dp/B0F2GVN8RY/

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

Years ago, through my training in Neuro-Linguistic Programming, I learned about the word of systemic family therapist Virginia Satir. Satir was one of the original persons which NLP modelled and the Meta-Model was derived from her work. She was well known, not only for the depth of her psychological understanding but for her compassionately practical models of human communication.

One of her most enduring and valuable contributions is the set of communication styles she identified that often manifests in the face of stress and conflict. These are referred to as the Satir Categories and comprise of five communication styles. These are:

The Blamer: The blamer dominates. They criticize and accuse. This stance often masks fear or insecurity but comes across as forceful and controlling.
The Placater: The placater attempts to soothe and please everyone. They will apologize, agree, and acquiesce, even at the cost of their own needs. Underneath is often a fear of rejection or disapproval.
The Computer: The computer is calm, collected, and hyper-rational. They offer facts and logic, devoid of emotion. While appearing in control, they often disconnect from their feelings.
The Distractor: The distracter changes the subject, makes jokes, or introduces irrelevancies. This can be a way of avoiding discomfort or asserting freedom in the face of stress.
The Leveler: The leveler is authentic and congruent. Their words, emotions, and body language are aligned. This stance is grounded, open, and respectful of both self and others.

To be clear, these are not fixed personality types, but reflexive stances people adopt under pressure. We can see these roles emerge in almost every conflictual interaction, often shifting from moment to moment. But more importantly, these stances are relational—they do not exist in isolation. And this is where the real value lies for mediators.

When we mediate, we are not simply resolving issues; we are creating a space in which people navigate stress, power, fear, and sometimes shame.

When a party enters the room as a blamer—pointing fingers, assigning fault—the natural tendency may be to see them as difficult or aggressive. But what if we saw them through Satir’s lens? What if the blaming was a coping strategy rooted in fear or a desperate attempt to be heard?

Similarly, the placater may seem cooperative, even helpful. But beneath the surface, they may be erasing their own interests, leading to agreements that unravel or resentment that festers.

The Satir Categories give us a frame of compassion within which we can see behaviour not simply as something to manage, but as something to understand. We stop asking, “How do I fix this person?” and begin asking, “What are they protecting? What need is not being met?”

This perspective also allows us, as mediators, to become aware of our own reflexive tendencies. Do we placate in the face of aggression? Do we default to the computer when things get messy? The categories are not just tools for diagnosing others—they are mirrors that invite self-reflection.

An elegant piece of Satir’s insight is that communication is not just about what each person is doing, but how those behaviours interact. A party adopting one category may trigger another party into a complementary or opposing stance.

This is particularly relevant in mediation, where parties are often under emotional duress, navigating high-stakes issues. The reflexive stance of one person can evoke a reactive stance in another. These patterns, once set in motion, can either entrench conflict or open a door to resolution—depending on the mediator’s intervention.

To understand these interactions, consider the following table:

Blamer – Blamer: Power struggle with escalating attacks. Neither party yields, resulting in emotional standoffs and communication breakdown.
Blamer – Placater: Dominance-submission pattern. Blamer intensifies control; placater self-silences. May lead to placater burnout or covert resistance.
Blamer – Computer: Emotion vs. logic conflict. Blamer grows agitated by the computer’s detachment, often ending in stonewalling or emotional outbursts.
Blamer – Distracter: Mismatch in focus. Blamer seeks control; distracter avoids, causing mutual frustration or emotional shutdown.
Blamer – Leveler: If the leveler maintains calm and clarity, the blamer may shift from aggression to respectful engagement.
Placater – Placater: Excessive harmony. Both avoid conflict, leading to suppressed needs and fragile agreements that lack staying power.
Placater – Computer: Emotional disconnect. Placater seeks connection; computer offers logic. Placater feels unseen; computer feels burdened.
Placater – Distracter: Meandering, scattered dialogue. Neither anchors the conversation, fostering confusion and emotional bypassing.
Placater – Leveler: Leveler’s authenticity creates a safe space. Placater may begin asserting personal needs and expressing true feelings.
Computer – Computer: Efficient but sterile. Practical matters resolved logically, but emotional wounds risk being ignored.
Computer – Distracter: Breakdown in focus. Structured computer clashes with erratic distracter, leading to disconnection or mutual irritation.
Computer – Leveler: Harmonious blend. Computer offers structure; leveler contributes emotional insight. Can result in balanced, thoughtful communication.
Distracter – Distracter: Chaotic and energetic. Lacks direction or depth. Substantive issues are evaded; resolution is elusive.
Distracter – Leveler: Leveler grounds the distracter. If trust builds, distracter may drop deflection and speak more authentically.
Leveler – Leveler: Optimal dynamic. Both parties are authentic and grounded. Promotes deep, respectful, and creative conflict resolution.

How might a mediator interact in each of these dynamics?

Blamer – Blamer

Effect: Rapid escalation, blame cycles, positional entrenchment.
Mediator Strategy: De-escalate early. Use reframing to redirect to needs. Create separate space for storytelling. Normalize emotion.

Blamer – Placater

Effect: Power imbalance, emotional shutdown or resentment in placater.
Mediator Strategy: Empower placater by validating their perspective. Reflect blamer’s concerns in non-blaming language. Rebalance power.

Blamer – Computer

Effect: Disconnection. Blamer sees computer as aloof; computer sees blamer as irrational.
Mediator Strategy: Bridge emotional and rational frames. Invite each to reflect how they’re experiencing the other.

Blamer – Distracter

Effect: Misfire. Blamer seeks control; distracter sidesteps. Leads to frustration or ridicule.
Mediator Strategy: Name the dynamic. Ground the discussion. Redirect blame into constructive expression.

Blamer – Leveler

Effect: Tension can transform if the leveler stays grounded. Blamer may soften.
Mediator Strategy: Hold steady with the leveler. Help the blamer feel heard without conceding to attack.

Placater – Placater

Effect: Superficial harmony, unspoken needs, fragile agreements.
Mediator Strategy: Gently challenge both parties to express individual needs. Use curiosity to go deeper beneath the surface.

Placater – Computer

Effect: Misattunement—placater seeks approval; computer offers cold logic.
Mediator Strategy: Translate logic into emotional relevance. Invite placater to articulate their unmet needs clearly.

Placater – Distracter

Effect: Fragmented discussion, low focus, unresolved issues.
Mediator Strategy: Use structure to ground the dialogue. Keep redirecting toward core interests. Use light touch to engage both.

Placater – Leveler

Effect: Opportunity for healing. Placater may gain self-awareness and voice.
Mediator Strategy: Encourage leveler to model congruence. Affirm placater’s worth and invite authentic contribution.

Computer – Computer

Effect: Efficient but emotionally flat. May overlook underlying relational issues.
Mediator Strategy: Ask what matters beyond the facts. Introduce questions about values and emotions.

Computer – Distracter

Effect: Cognitive dissonance. Computer seeks order; distracter creates noise.
Mediator Strategy: Use structure to refocus. Invite distracter to name what they’re avoiding. Reaffirm purpose.

Computer – Leveler

Effect: Balanced potential. Logic meets authenticity; can lead to integrated resolution.
Mediator Strategy: Use leveler’s presence to draw emotional content from the computer. Keep both engaged.

Distracter – Distracter

Effect: Chaotic energy, fragmented conversation, little progress.
Mediator Strategy: Firmly refocus using agenda or process tools. Use humour carefully to transition to substance.

Distracter – Leveler

Effect: Distracter may feel safe to drop façade. Leveler anchors.
Mediator Strategy: Support leveler in modelling congruence. Engage distracter with playfulness, then pivot to substance.

Leveler – Leveler

Effect: Deep congruence, honest dialogue, high resolution potential.
Mediator Strategy: Maintain structure. Intervene minimally. Affirm progress and deepen where helpful.

So far, we have explored the dynamics that can occur when parties engage in the various Satir categories and what a mediator might do in response. But could the mediator could use them proactively?

Virginia Satir believed that any of the first four roles could be consciously adopted to produce specific effects. The same is true for mediators. By temporarily embodying one of the categories, a mediator can shift the emotional climate of the mediation room.

Using the Blamer: This must be done sparingly and with skill. At times, the mediator may need to play devil’s advocate or firmly challenge an inconsistency. A brief “blamer stance” can jolt a party into awareness, especially if they are overly passive or deflecting.

Using the Placater: When a party is feeling unsafe or unacknowledged, the mediator might temporarily adopt a gentle, placating tone to soothe and calm the room. This isn’t submission, but emotional alignment—a way of softening defensiveness.

Using the Computer: Especially useful when emotion is running high. Adopting a calm, measured voice and presenting facts or structure can restore a sense of order. The risk is emotional distance, so this needs to be balanced.

Using the Distracter: Humor, surprise, or shifting the focus temporarily can defuse tension or interrupt unproductive spirals. The distracter helps parties reset, especially when they are entrenched.

Returning to the Leveler: Ultimately, the mediator’s home base should be the leveler. From here, authenticity and congruence can be modelled. But the other stances are tools—not disguises, but deliberate moves in service of resolution.

Satir once wrote, “Every person is doing the best they can, given the resources they have.” The categories remind us that beneath every posture is a person trying to survive something difficult. From a mediator’s perspective, recognizing these dynamics allows for more strategic interventions.

In closing, it is important to make a couple of points. First, the Satir categories are not a rigid typology. It is a way of looking at communicational dynamics. Secondly, it is not static. A party manifesting a placating stance may well transform into a blamer if pushed too far. Hence, one must constantly be calibrating to where parties are coming from.

Of course, it is far more complex than a blog entry can do justice to. However, I hope it provides a starting point and that you have found this useful! Thanks for reading!

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

McWilliams contends that money is arguable the defining technology of humans over the last five thousand years as we moved from being a pyrophyte species shaped by fire, to a plutophyte species that has adapted to and been adapted by money. Unlike many of the scientific technologies money is ephemeral (particularly in its more modern forms), yet it is critical to the way we live our lives. When it does its job properly it is a means of exchange, a unit of account and a store of value. Amongst other things it facilitates trade and allows us to imagine, save for and invest in the future. 

Social technologies might be defined as things that help humans work together more efficiently and effectively. The most fundamental of these would probably be language, which allows for greater cooperation and the sharing of knowledge. Others would include:

• writing, which enables the recording and sharing of knowledge (McWilliams argues that the earliest forms of writing may well have been the recording of credit records)
• organisational arrangements – such as companies, which allow the organisation of work between individuals and teams and a reduction in transactions costs
• markets, which allow exchange of goods and services and facilitate the division of labour
• property systems, which determine how limited physical resources are owned and managed
• legal systems, which set parameters within which contracts can be made and enforced
• insurance and social security, which spread and share risks
• social norms and conventions, which help regulate the behaviour of individuals in society
• institutions, which facility interactions between companies and individuals and facilitate the development of trust and reduce transitions costs
• political systems, which determine how decisions are made and implemented, not least in setting the framework in which other social technologies operate 

There is an interesting relationship between the geography over which political systems operate and the geographical reach of other social and scientific technologies. Traditionally the frameworks for most technologies have been determined at a national or regional level, however increasingly, to be effective, these frameworks need to be multi-national, not least in the financial sphere where such things as the movement of capital can influence and constrain the actions of nation states. 

As with science based technology social technologies are always evolving and often the two go hand in hand as scientific discoveries open up possibilities that society than has to grapple with to make the most of (such as with AI at the moment). McWilliams cites an example of such co-development in Africa where mobile phone credit is used as a form of money where banking systems are not well developed.  

Innovation in the development of social technologies to increase productivity and improve outcomes can be as important as in the scientific technologies. The scope for innovation in social technologies may be higher given there are less physical constraints than for science based technology. Innovation in social technologies is in many respects only constrained by our imagination. The history of the development of money is a good example of how innovation in a social technology can be a facilitator of innovation elsewhere.

Mediation itself can be seen as a social technology. At its core it is a process which facilitates cooperation between participants to solve problems, build relationships, reduce costs and improve productivity. By deepening understanding and allowing scope for imaginatively exploring possibilities before decisions are taken it helps generate more effective outcomes and improves efficiency compared to more formal processes. Its flexibility as a process also allows room for innovation and experimentation – not least in the way in which new science based technologies such as AI might potentially enhance the mediation process.

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
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What Was the EU ODR Platform?

The EU Online Dispute Resolution Platform (ODR Platform) was set up in 2016 under the Regulation (EU) No 524/2013, as an alternative route to court for disputes arising from online sales or service contracts. The ODR Platform was designed as a user-friendly, multilingual online portal to help consumers and traders resolve disputes arising from online purchases. The platform aimed to facilitate out-of-court settlements by connecting parties with approved Alternative Dispute Resolution (ADR) bodies across the EU. It was particularly valuable for cross-border transactions, where language barriers and differing legal systems could otherwise complicate dispute resolution.

Why Was the ODR Platform Discontinued?

Following the EU Council’s decision dated 25 September 2024, and the Regulation (EU) 2024/3228 of the European Parliament and of the Council of 19 December 2024, the ODR Platform ceased to accept new complaints on 20 March 2025, and will be entirely discontinued on 20 July 2025. The decision to discontinue the ODR Platform was driven by several factors, including the following:
• Low Usage: Despite its potential, the platform saw limited uptake from both consumers and businesses. Many disputes continued to be resolved through traditional means or directly between parties. Only an average of 200 cases per year were forwarded to an ADR body, which is just 2% of complaints submitted across the EU.
• Administrative Challenges: Maintaining a multilingual, pan-European platform proved complex and resource-intensive.
• Evolving Digital Landscape: The rapid evolution of digital services has led to new expectations and needs for dispute resolution.

Reform of the Directive on Consumer ADR

The decision regarding the ODR Platform is linked with the Directive 2013/11/EU on alternative dispute resolution for consumer disputes (Directive on consumer ADR) that is undergoing significant reforms to enhance consumer rights and modernise out-of-court dispute resolution. The proposed changes include:

• Expanding the substantive scope by incorporating digital products, pre-contractual claims and non-contractual disputes such as discrimination or unfair commercial practices.
• Expanding the geographical scope to include traders outside the EU.
• Requiring businesses to provide written reasons for refusing to comply with ADR body decisions.
• Considering the development of a new ODR platform meeting current needs and standards.

What It Means for Businesses and Consumers?

Businesses should now remove any references to the ODR Platform (previously required under the Regulation) in their standard terms of purchase and/or websites, including hyperlinks to the ODR Platform website. Will the discontinuation of the ODR Platform have adverse consequences for consumers engaging in cross-border online shopping within the EU? The answer will depend on results of the review of the Directive on Consumer ADR (2013/11/EU). While the closure of the ODR Platform removes a centralized tool for resolving online disputes, consumers still have access to diverse mechanisms for seeking redress and will have to remain proactive to ensure their rights are protected in the evolving digital marketplace.

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

Back then, you could input a couple of sentences and get a few sentences in return. As the context window and overall sophistication of models has grown, it is now possible to upload hundreds of pages of documents and get very long and thoughtful responses back. Google’s NotebookLM, for example, can read a 500-page mediation bundle and give you back a summary of the key points in the dispute and a timeline of key events.

But if you just ask the model to act as a judge or arbitrator or mediator, you will generally get a defensive reply along the lines of “I am a large language model. I am not a lawyer. You need to consult your own lawyer in order to obtain accurate advice about how to settle this dispute, blah, blah.”

I had tried this a few times and never really made much progress.

Then I came across this paper in Science: “AI can help humans find common ground in democratic deliberation”

By serendipitous coincidence, I have a distant connection with one of the authors, Professor Chris Summerfield, a professor of cognitive neuroscience at Oxford and a member of the UK AI Safety panel. I got in touch with him to discuss his paper, and he kindly made time to chat. Chris explained how his team approached their challenge: they focused on politically charged questions (e.g., “Should we have capital punishment?” or “Should we invest more in rail travel?”) where opinions often diverge. Their method involved having the AI generate a series of reports, each iteration bringing the opposing sides closer to consensus. This process continued until the highest level of agreement was achieved. The AI slightly outperformed human mediators in this task, though the margin was modest.

Could AI do something similar with commercial disputes? It turns out that it can. I have now assembled a series of prompts which gently walk an AI through a thought process taking it from providing an initial summary of a dispute, through to considering possible outcomes if it goes to trial, then estimating the probability of those outcomes, then working through an expected value calculation, before finally suggesting a settlement figure for the two sides to consider.

As I have worked with large language models over the past few years, there have been plenty of occasions when I have literally sat in open-mouthed astonishment at the screen. Seeing GPT3 spontaneously generate an expected value calculation back in July 2022 was one such moment.

This was another: out of twelve anonymised disputes that I used in my recent testing, the model (once I had finessed the prompts with sufficient care) proposed a settlement figure which was, in every case, within 10% of the figure that the two sides settled at.

This is extraordinary. There is no way the model could have known where the two sides actually settled. The parties have reached that figure after months of negotiation and hours of mediation. The AI is reaching it just from reading the bundle.

All I did in this experiment was focus on careful prompting, and on figuring out a series of intermediate steps which would help the AI feel its way to a conclusion. I didn’t perform any fine-tuning on the model. (Fine-tuning involves providing the model with additional training on material specific to the domain of interest—such as property law or negotiation strategies, for example.) With fine-tuning added, it would surely be possible to create a model capable of predicting where two sides would settle with even more astonishing accuracy.

In an article I wrote in 2022 about GPT-3 I made this prediction which has turned out to be wrong:

“In another five years’ time, it seems to me that we will be able to give GPT-3 (or a similar system) a huge bundle of evidence relating to Alice and Bob’s dispute and it could provide a useful summary of the issues and provide reliable advice on how to resolve the dispute. It will certainly be able to do a reliable expected value calculation to set parameters for settlement discussions. And I would expect it to be able to distil what the key points of agreement and disagreement are, to help focus negotiations on those points.”

I was wrong because only two years have passed, not five.

Is AI-powered dispute resolution actually useful, though? Maybe not yet: I don’t think the world is ready for it.

At the moment, most people are not using AI in their day to day lives and are mostly unaware of how sophisticated it has become. If the disputing parties are presented with what they think is a number which the AI has plucked from thin air, they are unlikely to take it seriously. Part of the power of a drawn-out negotiation is that you come to understand that the offer on the table late at night after a long day of mediation is likely to be the best offer you will see.

I am confident that the number which the AI is suggesting is also very likely to be the best offer you will see, but most people would not have faith in that, I suspect.

This dynamic is likely to shift as AI becomes more integrated into professional services over the next few years. As lawyers and mediators begin incorporating AI tools into their daily workflow – first for document review and case analysis, then gradually for more sophisticated tasks – clients will become more accustomed to seeing and trusting AI-generated insights. The tipping point may come when major law firms and ADR providers begin openly advertising their use of AI to enhance their services, much as they did with e-discovery tools a decade ago. At that stage, having an AI assessment of settlement parameters could become not just accepted, but expected as part of the standard dispute resolution toolkit.

There may be particular scenarios where this would work now, though. Situations which currently use “interim binding” adjudications might be one such area. In construction disputes, an adjudicator’s decision can be binding on an interim basis, meaning the parties agree to accept it and continue working as if the decision is binding, but it is possible to later have the decision overturned by a court, arbitrator, or by agreement. This is to allow construction to continue swiftly, but with the fallback that one side could eventually seek to overturn the decision if they wanted to.

It also might be possible to take the disputing parties through a process which gives them confidence in the AI, before they see the proposed settlement figure. The AI could give them a short summary report, followed by a more sophisticated analysis, and so on, to establish credibility before offering to propose a settlement figure. This is the approach I am taking with the experimental service I have called Claudius ADR.

Are there other areas where the world might be ready to allow AI to help them resolve their disputes?

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

That was my first day on a two-week solo canoe expedition through Minnesota’s Boundary Waters Canoe Area (BWCA). At 53, with a family back in Dubai, I found myself alone, navigating 200 miles of lakes, rivers, and bogs. I had no technology, little human contact, and only a compass and topographical map to guide me. The learning curve was steep.

Yet this journey fundamentally reshaped my approach to conflict—and, by extension, my mediation practice. The lessons I learned about managing uncertainty, staying calm under pressure, and moving forward even when I felt lost translate powerfully into the mediation room. I want to share the most significant insights and show how they mirror the mindset and techniques effective mediators need when guiding parties through seemingly intractable disputes.

1. Discovering the “Yes, You Can” Mindset

On my second day, I was anxiously scouring the shoreline for the portage spot. Hours passed in confusion; every tree and inlet looked the same. My thoughts spiralled:

• I’m terrible at reading maps.
• My compass must be broken.
• I should have practiced more.

Gradually, I talked myself back to calm: You have time. You can figure this out. I methodically backtracked, checked each inlet, reoriented my map, and found the portage. It was a revelation to realize that I could halt my own panic, breathe, and reengage logically.

Application to Mediation:
Parties frequently arrive at a negotiation convinced a solution is impossible. A mediator’s gentle assertion— “Yes, you can solve this. Let’s find a way”—can open the door to creative thinking. I’ve learned that simply believing resolution is possible, even when conflict looks dire, helps parties manage their anxiety and keep trying. Much like my frantic shoreline search, persevering despite self-doubt is often half the battle.

2. Staying Calm in Uncertainty

When you’re alone in the wilderness, the prospect of getting lost is terrifying. One wrong turn on a large lake, and you can paddle for hours in the wrong direction. I felt that pit-of-the-stomach fear more than once, especially on expansive waters with no distinguishing markers.

Yet each time that panic rose, I had to breathe through it, slow down, and methodically re-check the map. I repeated “Be calm, be smart, breathe, believe.” under my breath whenever anxiety flared. Even if I was wrong about a route, I could correct course more easily when I didn’t let fear consume me.

Application to Mediation:
In conflict, people often feel disoriented, confused about the next steps, or overwhelmed by the tension. A mediator’s role is to steady the process—sometimes by summarizing the progress made, sometimes by literally calling a pause. When parties are mired in uncertainty, the mediator’s calm presence, confidence and structured guidance can feel like a compass in a dense fog. Showing people how to slow down, breathe, and find their bearings is often the turning point toward resolution.

3. Embracing Discomfort for Real Growth

One of the hardest lessons the BWCA taught me was that discomfort is inevitable. My shoulders ached from paddling and carrying the canoe. Bugs were relentless. And rain soaked everything from my sleeping bag to socks for days.

But I discovered a surprising payoff: once I accepted discomfort, I could focus better on problem-solving. Instead of protesting against the rain or the flies, I’d ask, What can I do right now to keep going? Maybe that meant adjusting my route due to the weather or taking an extra moment to treat my blistered feet. But I stopped wasting energy, wishing for conditions to be easier.

Application to Mediation:
Conflict is uncomfortable. People resist it or try to avoid its hardest parts. Yet, fully acknowledging that discomfort—anger, sadness, distrust—can help each side see what’s at stake. Mediators who encourage parties to face the tough emotions (“Yes, it’s upsetting, but let’s see what this tells us about what you truly need”) often see breakthroughs. When both sides stop battling the discomfort and, instead, explore what it reveals, real progress can happen.

4. Solitude: No One Else to Blame

The solitude of a solo canoe trip is stark—no one to blame if you tip over or misread the map. When I got stuck at a beaver dam, it was entirely upon me to find a solution. I often felt terrified, knowing that if I injured myself, there was no quick way to call for help.

After I capsized in rapids on my final day, I had to swim after my drifting packs and bail the canoe. For a moment, I wanted to collapse and rail against the situation. But who was there to blame? I had only myself, so I swam downstream, collected my packs, and pulled the canoe ashore. Strange as it seems, I learned to trust my own capacity in ways I never had before.

Application to Mediation:
Mediation sessions sometimes devolve into finger-pointing. “You ruined everything!” “It’s your fault!” But forward momentum comes when parties understand that no external rescuer or scapegoat can fix their conflict. Real progress often begins the moment they take personal accountability: “Here’s my part in this; here’s what I can do now.” A mediator skilled at shifting the focus to self-responsibility helps parties build new possibilities.

5. The Value of Slowing Down

By Day 4, my body was so sore I could hardly lift the paddle. In normal circumstances, I’d push on, certain that stopping “too early” would be lazy. But that morning, I decided to stay put instead. I spent the entire day in one spot, reading, swimming, sitting quietly, and noticing the forest around me.

That day gave me mental space to reflect on everything—my anxieties about the trip, my family and unresolved tensions in my life. I realized that some anxieties simply needed me to acknowledge them, instead of burying them under frantic action.

Application to Mediation:
In a tense negotiation, it’s tempting to barrel forward. But sometimes, the best strategy is to call a timeout—whether a short break or even pausing negotiations for a day or more. Giving participants a chance to process can soften rigid positions or spark creative ideas. And often, unexpected solutions appear in those moments of stillness when everyone steps back and gathers perspective.

6. Finding Joy in Small Moments

Not everything was hardship. I still laugh about a mother wild turkey and her brood jumping out at me—or skinny-dipping after an exhausting portage. One of my odd pleasures became flipping the canoe onto my shoulders—a small victory I never thought I could manage alone.

Such moments of joy and self-congratulation fuelled my motivation. They also helped me reframe each day: Yes, the bugs are fierce, but look at the beauty of the sunset, or My shoulders hurt, but I’m still upright and paddling. Focusing on those highs offered a much-needed emotional boost when I felt worn down.

Application to Mediation:
Conflict can be grim, so celebrating small positives can shift energy. Even simple acknowledgments, like pointing out where parties agree or noting improvements in their communication style, can inject hope into the process. Encouraging a bit of optimism or humour reminds everyone that not all is lost—that they’re capable of finding common ground, even if it seems remote at first.

7. Charting Your Course With Intention

I used to avoid map reading on group trips, preferring others to lead. Alone, I had no choice but to plan my route—deciding which lakes or portages to tackle and anticipating possible storms. This process of intentionally charting a course became deeply satisfying. Even when I’d get lost or stumble upon an unexpected beaver dam, the process of planning and adapting was my lifeline.

A key moment came when I confronted a series of marshy portages I’d been dreading. Instead of blindly hoping it would all work out, I gave myself permission to scope out each path first, double-check my map, and change direction if needed. That sense of agency transformed my anxiety into determination.

Application to Mediation:
In mediation, the process flow—whether addressing simpler issues first or tackling the most complex item right away—makes a huge difference. Involving parties in that choice can be empowering. When people feel they have input into how the discussion moves forward, they’re more committed to finding a resolution. And if it turns out they need to detour or revise their approach, they’re more flexible if they helped co-create the plan.

8. Gratitude as a Compass

By the end of my trip, gratitude overtook every other emotion. Gratitude to my parents for first bringing me to these waters decades ago and to whatever grace of nature let me survive rapids, storms, and miscalculations.

I realized that each difficulty—maddening bugs, swollen feet, terrifying winds—had shown me I was stronger and more resourceful than I’d believed. With gratitude, I could see the entire journey as a gift rather than a trial.

Application to Mediation:
When a mediation concludes, whether  the dispute is resolved or not, acknowledging the effort and growth both sides displayed can soften residual tension. Gratitude—for the willingness to come to the table, for the chance to speak openly—fosters an environment of respect that can outlast the mediation itself. It helps parties see that even if the process wasn’t perfect, they gained something valuable from trying.

Bringing It All Together: Lessons for Navigating Conflict

My canoe expedition taught me that internal resilience is the most important gear you can pack, whether you’re traveling alone through a wilderness or guiding parties in a dispute. Each day on the water required me to face adversity that no text message, or quick phone call could solve. I had to stay centred and trust my abilities.

The same goes for mediation. Here are a few distilled lessons:

1. Cultivate Steady Self-Talk:
   In stressful moments, the voice that says “Keep going, you’ve got this” can be lifesaving. In mediation, we can serve as that supportive voice for parties—or encourage them to develop that self-reassurance.
2. Sit with Discomfort:
   Conflict, like wilderness travel, is fraught with tension and fear. Yet stepping directly into that discomfort often reveals hidden reserves of creativity and compromise.
3. Pause When Needed:
   Whether it’s a base-camp day or a caucus break, taking a break to reflect can realign the process and inject clarity.
4. Embrace Accountability:
   When there’s no one else to blame, you figure out how to move forward. In mediation, accepting responsibility for your role in the conflict can be the catalyst for resolution.
5. Find Joy and Hope:
   Small moments of relief and humour can carry you through the hardest stretches—whether it’s finishing a brutal portage or agreeing on a minor point in a contentious negotiation.
6. Practice Gratitude:
   Recognizing growth and effort refines our perspective and helps us respect both the journey and the people with whom we share it.

Conclusion: The Ongoing Expedition

I returned from those two weeks exhausted, bruised, bug-bitten, and occasionally rattled by my own fears—but also enriched in ways I never imagined. Each day was a navigation puzzle that demanded resilience, creativity, and staying power.

In mediation, conflict can feel as disorienting as being alone on a huge lake in a storm. But if we acknowledge the discomfort, harness the power of calm focus, and accept that we are strong enough to keep paddling, we often find a way forward. Solitude in the wilderness taught me to trust my capacity for problem-solving; mediation, done well, does something similar: it shows people they’re capable of forging solutions, even when it appears there’s no path across the water.

Next time you feel lost—personally or professionally—imagine you’re gripping a paddle on an ominous lake. The map might not look like the terrain before you. You might worry that you’re hopelessly off track. But if you take a breath, recalibrate, and keep moving, you’ll discover a portage or a shoreline that leads to resolution. That is the essence of resilience—whether navigating remote lakes or guiding disputants to a peaceful shore.

More from our authors:

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	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

On April 18, 2025, an article published in O Globo – a major Brazilian newspaper prompted me to reflect. It reported on a recent study from Cornell University, revealing that the way we address artificial intelligence can significantly impact the quality of its responses. Saying “please” or “thank you” isn’t just good manners—it appears to help AI models like ChatGPT perform better.

This immediately brought to mind an earlier article from Exame (a prominent Brazilian business magazine), published in 2024, which had already suggested something similar. In it, researchers noted how emotionally charged or polite prompts—such as “please help me, this is vital for my thesis”—trigger more effective responses from language models. Kindness, it seems, is not just a human virtue. It also shapes how machines learn and interact with us.

But what does this have to do with conflict resolution?

A lot, as it turns out.

The article from Exame brought attention to a fascinating insight emerging from the world of artificial intelligence.

Generative AI models, such as ChatGPT, tend to perform better when prompted with kindness and emotional nuance. Requests that are polite and express urgency or personal relevance often activate deeper levels of the model’s responses than neutral instructions, producing more effective outcomes.

This insight raises an important question for those of us in the field of conflict resolution and mediation: If even machines respond better to kind communication, what can this teach us about human interaction—particularly in high-stakes, emotionally charged environments like mediation?

The Science Behind Kindness in Communication

Research cited in the Exame article involves institutions such as Microsoft, Beijing Normal University, and the Chinese Academy of Sciences. They found that the tone and emotional framing of prompts can affect how generative AI models behave.

For instance, emotionally loaded requests such as “Please help me, this is vital for my thesis defense” led to significantly more accurate and aligned responses than neutral instructions.

Nouha Dziri, a researcher at the Allen Institute for AI, explains that emotional prompts manipulate the underlying probabilistic mechanisms of the models, activating response pathways that might otherwise remain dormant. This aligns with findings from Anthropic and Google, which showed that even simple instructions like “take a deep breath” can improve reasoning performance on difficult tasks – quoted from Exame magazine.

But what does this have to do with humans?

Kindness, Empathy, and the Human Brain

Neuroscientific research has shown that empathy and emotional attunement activate specific brain regions, such as the anterior insula and the medial prefrontal cortex—areas responsible for processing emotional resonance and understanding others’ intentions (Decety & Jackson, 2006). In other words, our brains are wired to respond more openly and effectively to kindness.

In the context of mediation, this isn’t news. Mediators have long known that empathic listening and respectful communication are crucial tools for facilitating dialogue. But it’s striking to see that the very same principles now apply to our interactions with intelligent systems—hinting at universal laws of engagement that transcend biology.

Parallels with Mediation Practice

Effective mediation thrives on communication that fosters trust, understanding, and openness. Active listening, emotional validation, and mutual respect create a safe space where conflicting parties can explore solutions collaboratively.

Numerous studies support this. For example, a meta-analysis by Fehr and Gelfand (2010) found that mediators who employed empathic communication techniques were significantly more successful in resolving disputes. Similarly, Bush and Folger’s transformative mediation model emphasizes the importance of relational dynamics—empowerment and recognition—as key outcomes of the mediation process.

Interestingly, non-verbal communication also plays a dominant role in mediation, with some research suggesting that up to 93% of communication is non-verbal (Mehrabian, 1972). Tone, posture, facial expressions—all these subtle cues signal respect, attentiveness, and openness.

So when we bring kindness into a mediation room—through our words, tone, and presence—we’re not just being courteous. We’re activating deeply rooted neurological and psychological pathways that pave the way for resolution.

Final Reflections: AI and Humanity

These recent studies show that large language models absorb and reflect human norms and cultural nuances. The Cornell research, for example, found that the ideal level of politeness varies by language: English favors a moderate tone, while Japanese emphasizes a higher degree of formality. This suggests that kindness transcends both cultural and digital boundaries—and that emotionally aware communication can have universal value.

The fact that AI systems are more responsive to polite and emotionally aware prompts offers a surprising mirror to our own interactions. It reminds us that how we speak can be just as important as what we say. In mediation, this is a central truth. Kind communication isn’t just a moral ideal—it’s a strategic tool.

Moreover, as artificial intelligence becomes increasingly integrated into decision-making and social platforms, these findings invite us to reflect on the broader implications of designing ethical, emotionally literate technologies.

If even machines “listen better” when approached with kindness, maybe it’s time we reconsider how we speak to one another. In mediation—as in so many other human interactions—how we communicate can be the bridge between deadlock and resolution.

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

Settlement agreement

The parties had a longstanding commercial partnership, with their contract relying on general terms and conditions that included a dispute resolution provision for ICC arbitration seated in London. After a dispute arose regarding amounts allegedly due under the contract, the parties entered into a settlement agreement to settle the claims and terminate the contract, agreeing to “release and forever discharge” each other from their contractual obligations. The settlement agreement contained a jurisdiction clause whereby the parties agreed to “settle any dispute arising out of or in connection with” the settlement agreement in the English courts.

Court Proceedings in England

In July 2024, one of the parties commenced a claim in the English courts, alleging that the other party had induced it to enter into the settlement agreement through fraudulent or negligent misrepresentation. The question for the court was whether the dispute between the parties was subject to the exclusive jurisdiction of the English courts under the settlement agreement or to London-seated ICC arbitration under the dispute resolution provisions of the contract.

High Court’s Decision

The court refused to stay the proceedings and refer the parties to arbitration. It found that where dispute resolution provisions in a settlement agreement are inconsistent with those contained in a previous contract, the settlement agreement should generally be construed as superseding the earlier agreement. This is because it is usual for the “centre of gravity” to have changed such that the relationship is centered on the settlement agreement. The court relied on the leading case on this principle, Monde Petroleum SA v. WesternZagros Limited (22 January 2015), where the High Court held that the jurisdiction clause in a termination agreement between the parties superseded an arbitration clause in a prior consultancy agreement in favour of ICC arbitration.

Practical Implications

This decision is of significant practical value for mediators and parties entering into settlement agreements to resolve their disputes. The default position is that the dispute resolution clause in a relationship-ending settlement agreement would supersede the dispute resolution provision in the underlying contract, particularly where the parties have also incorporated an entire agreement clause and mutually released each other from their obligations under previous contracts. In other factual backgrounds other circumstances may also be relevant.

Conclusion

Mediators should discuss with parties settling their disputes whether they would like to apply an identical dispute resolution clause as in the underlying contract. Where parties opt for a different dispute resolution provisions, they should be clear as to the scope and application of the new clause to avoid uncertainty and limit the scope for any unwanted jurisdictional disputes. If the dispute resolution clause in a settlement agreement is intended to supersede a different and previously agreed dispute resolution clause in the underlying contract, this should be expressly stated in the settlement agreement.

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

Zero-sum thinking (one can only improve one’s position at someone else’s expense) seems to becoming ever more prevalent in some quarters. It is perhaps time to revisit game theory and the work of Robert Axelrod and others who have studied the evolution of cooperation to be reminded that a positive-sum world is both possible and essential.

Game theory analyses strategies that ‘rational players’ use to secure the best outcomes in interactive, interdependent ‘games’, where the outcome for each participant depends on the actions of all and the players don’t know what each other will do but know what they could do. Thomas Schelling summarised it as follows: “an attempt to formalise any kind of study of strategic behaviour where people are trying to affect or anticipate the behaviour of others” 

The classic game is ‘The Prisoners’ Dilemma’, formulated as follows:

• Two suspects are arrested on suspicion of a crime, for which there is no clear evidence
• They are locked in two separate rooms with no communication between them allowed
• There are three possible outcomes:
  • one confesses and one doesn’t – the confessor is pardoned and the other imprisoned for 5 years
  • both confess – both imprisoned for 12 months
  • both maintain innocence – both imprisoned for 1 month on a minor charge

The ‘rational’ outcome is both confess to minimise the risk of a very long sentence, even though a better outcome is possible if neither did – hence the dilemma.

This outcome is sometimes known as a ‘Nash Equilibrium’ (after mathematician and game theorist John Nash, portrayed in the film ‘A Beautiful Mind’), in that once a strategy is chosen neither side can then independently change their strategy without ending up in a less desirable position. As one obituary of Nash put it “there is at least one Nash equilibrium lying in wait to trap us in every situation of competition or conflict where the parties are unwilling or unable to communicate”.

Axelrod’s classic book ‘The Evolution of Cooperation’ was published over forty years ago and now seems more relevant than ever. In it he used the Prisoners’ Dilemma as the basis for a series of tournaments to see which was the most successful strategy if the game was repeated indefinitely (as opposed to the usual one-off event). The winning ‘Tit for Tat’ strategy was in many respects the simplest – cooperate on the first round and match the other player’s move in every subsequent round.

Axelrod describes this winning strategy as: nice (don’t defect first), provokable (respond to defection, don’t be a pushover), forgiving (perhaps most importantly, don’t bear a grudge if the other player changes behaviour) and clear (minimise the chance of misunderstanding) – an approach that can be applied in many real life circumstances. 

The pursuit of this strategy leads to the evolution of cooperation. Key factors in this process are reciprocity, concern for the future (it casts a long shadow in Axelrod’s terms) and a clear memory of the past. In the real world, where players can interact, good communication also plays a vital role in avoiding misunderstandings, widening perspectives and generating cooperation.

When cooperation evolves it crowds out zero-sum thinking and leads to a greater concern for the achievement of mutual gains. This allows for such things as division of labour, sharing of risk, economies of scale, trade and public good production. It also allows trust to flourish and minimises the costs of non-productive activity needed to ensure compliance and guard against cheating, although some safeguards will still be required. Put another way cooperation boosts productivity and supports economic and social development.

The one important caveat to this is when dishonest cooperation leads to monopolies, corruption and other practices that extract value rather than create it and concentrate it in relatively few hands, as this article on the ‘Guilded Age’ demonstrates. This highlights the need for ‘cheater suppression’ mechanisms, particularly where cooperation is scaled up. This is one of the three principles of cooperation across many types of systems identified by Athena Aktipis in this fascinating paper. The other two are the ability to walk away from uncooperative partners (a twist on the Tit for Tat strategy) and that resource sharing should be based on the needs of the recipient.

It could be argued that sharing the fruits of economic development more equitably might be considered zero-sum, as those less well off improve their circumstances at the expense of those with more. However, evidence from more egalitarian societies suggest that the benefits of sharing are felt by all in terms of greater trust, cohesion, health, safety and overall wellbeing. On top of this a more equitable distribution could well have more quantifiable economic benefits across the board given the varying propensities of different income groups to consume and save.

A recent blog by Kenneth Cloke reminds us of the Thomas-Kilmann model of responses to conflict, which illustrates that cooperation in pursuit of the interests of all parties is the most effective form of dispute resolution. Cloke describes this collaborative approach as: “collectively, creatively, or caringly (i.e., in a combined self- and other-oriented, interest-based way) with maximal concern for both people and results.” He also develops the approach further to demonstrate how zero-sum thinking can quickly become negative-sum as conflicts escalate and damaging others becomes as, if not more, important than pursuing one’s interests.

Much work on cooperation is built on micro foundations, yet the issues that confront us as a species are profound, multi-national in scale and well beyond the reach of any one nation, no matter how powerful (e.g. climate change and offshore tax avoidance), making the need for global cooperation even more imperative. As Bertrand Russell put it: “The only thing that will redeem mankind is cooperation … it is common to wish well to oneself, but in our … unified world, wishing well to oneself is sure to be futile unless it is combined with wishing well to others.” 

At times of crisis turning inwards to try to protect what’s close to you is very tempting, but can be counter productive. The dangers of overly focussing on one’s own interests are graphically illustrated in a quote from Charles Kindleberger’s history of the economic crisis of the 1930’s: “When every country turned to protect its national private interest, the world public interest went down the drain, and with it the private interests of all.” In contrast, while not perfect, the international institutions set up in the aftermath of the second world war have been a demonstration of what can be achieved through greater cooperation.

The benefits of deepening cooperation through building trust, improving communication, testing assumptions, finding common ground, exploring ways forward and seeking mutual gains will come as no surprise to those involved in mediation. Zero-sum thinking is self defeating in almost all contexts, particularly when it spirals into a negative-sum abyss. Generating more positive-sum thought and action is vital for the future – we should look for every opportunity to plant and nurture a few seeds.

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

From 2019 to 2022, the New Zealand International Arbitration Centre (NZIAC) collaborated with Gerard Doolin on an international research initiative exploring the causes of software project misalignment and the role of Alternative Dispute Resolution (ADR) mechanisms in mitigating or resolving emerging contract disputes. Gerard Doolin, an NZIAC Panel Mediator and member of the Vienna International Arbitration Centre (VIAC) Mediator List, specializes in software project disputes.

The findings of this research, published in the report Avoiding Conflict and Improving Dispute Resolution for IT Projects, highlight that misalignment often originates in the analysis, design, or build phases due to gaps or omissions in requirements. These issues may stem from vendor-customer engagement during procurement, deficiencies in the vendor’s solution, or a combination of both.

Software project misalignment can have severe consequences, including cost overruns, missed deadlines, and, ultimately, project failure. When issues remain unresolved, disputes often escalate into formal contract claims, leading to arbitration or litigation, which can be costly and time-consuming.

In such scenarios, engaging a neutral mediator with industry expertise at an early stage can help prevent disputes from escalating. To support this approach, NZIAC and Mr. Doolin developed contract modules based on Agile or Waterfall governance frameworks. These modules encourage early identification of delivery risks, exhaustive dialogue to find solutions, and, if necessary, engagement with a mediator with industry knowledge or an adjudicator with technical expertise to issue interim binding determinations. The aim is to reset project delivery rather than allow disputes to spiral out of control.

The key factors for successful resolution after a software project becomes misaligned are confidence in the solution, its delivery, and the relationships between stakeholders. Without these elements, project recovery can be significantly more challenging.

The Mediator’s Role in Software Project Disputes

Preparation: Framing the Issues

A mediator’s role extends beyond reviewing contractual terms. They should request that each party provide a concise summary of their commercial, technical, and project delivery perspectives on the causes of misalignment. Given that software project disputes often arise in the early to mid-project phase, common issues include delays, dissatisfaction with solutions, personnel performance concerns, skill gaps, or budget constraints.

To ensure a structured approach, the mediator should issue a thematic questionnaire asking each party to articulate their views on misalignment within a specific project phase (e.g., analysis, design, build, or test) and a corresponding matter (e.g., scope, deliverables, personnel, schedule, or budget). This helps to clarify whether the issue stems from a lack of understanding of business requirements, miscommunication between teams, or unexpected technical challenges.

The mediator can then consolidate the responses into a list of key commercial, technical, and delivery issues, along with any differences in perspective, to guide discussions in mediation. By identifying gaps in understanding early on, the mediator can help focus the discussion on the most critical areas.

Process: A Workshop Approach

For software project disputes, an initial workshop-style meeting with a structured agenda is recommended. This format allows parties to discuss key subject matters in a neutral and open setting.

Key considerations for the mediator in this process include:

• Neutral Facilitation: Creating a safe space for parties to share their perspectives without prejudice, ensuring active and respectful listening.
• Prioritization of Issues: Carefully listening to the evolution of the parties’ commercial, technical, and contractual positions, intervening where necessary to reframe and prioritize interlinked issues.
• Hierarchy Considerations: Noting whether individuals in project management or technical roles feel free to speak openly in the presence of senior managers and encouraging their participation.
• Joint and Separate Sessions: Beginning with a joint session to share respective views, followed by breakout sessions as needed to explore priority issues in depth and bridge gaps between parties.

Ensuring the presence of key decision-makers—senior project managers, software specialists, service area managers, and executives—is crucial. While legal counsel may participate, the mediation process should initially focus on open exploration rather than rigid legal positioning.

Tools: Creating an Issue Framework

Software project disputes often involve complex technical and delivery issues. To manage this effectively, the mediator should develop an Issue or Negotiation Framework, a structured document that organizes subject matter issues:

• By project phase (e.g., analysis, design, build, test)
• By category (e.g., technical issues, commercial budget concerns, system design specifications, integration scope)
• By priority level based on resolution urgency (e.g., critical milestone deliverables)

The mediator should continuously update and share this framework with parties throughout the process. By doing so, the mediator helps maintain momentum in resolving issues and ensures that all concerns are tracked and addressed systematically.

Managing the Mediation Process

Structuring the Mediation Timeline

Each issue may require time for review beyond the mediation sessions. Before concluding an initial mediation day, the parties should agree on the scope of outstanding issues, the parameters for their review, and a realistic but accelerated timetable for resolution.

Key stakeholders who participated in mediation must remain engaged in follow-up discussions rather than delegating matters to new colleagues, unless a subject matter expert is required. Consistency in participation helps ensure continuity in understanding and decision-making.

Observing, Assisting, and Reinvigorating

Mediating software project disputes demands acute observation and facilitation skills. Software systems are inherently complex, and project stakeholders often attend mediation while simultaneously managing ongoing project responsibilities.

Project managers, in particular, hold crucial granular knowledge of project delivery issues. The mediator should observe signs of fatigue, frustration, or loss of confidence in the process and, where necessary, intervene to reset and reinvigorate the discussions. Encouraging breaks, revisiting priorities, and fostering constructive dialogue can help maintain engagement and focus.

The Interplay of Project Relationships and Conflict Resolution

Software project misalignment is not just about technical and delivery concerns—it also impacts relationships. Strained relationships, particularly among project managers who engage in daily operational discussions, can exacerbate conflict.

During joint and private sessions, the mediator should facilitate discussions that help reset working relationships alongside resolving technical issues. This relational reset can be vital to ensuring successful ongoing collaboration.

Avoiding Pitfalls: Balancing Monetary and Delivery Resolutions

A key risk in software project mediation is prioritizing financial settlements over resolving technical misalignment. Organizations may push for early agreement on revised costs before completing a comprehensive technical review. However, this can lead to:

• Incompletely addressed costs, requiring subsequent internal approvals that may be difficult to obtain
• Ongoing project risks, as unresolved technical issues may resurface and disrupt progress before contractual variations are finalized

To mitigate these risks, the mediator should guide parties toward resolving financial and technical disputes in parallel, ensuring a holistic resolution. Encouraging parties to consider both immediate and long-term implications of their agreements can help prevent recurring disputes.

Conclusion

Mediating misaligned software projects requires a multifaceted approach. The mediator must systematically triage and align the parties on core issues while fostering patience and persistence. Utilizing structured tools such as the Issue Framework and maintaining momentum through a well-monitored resolution timetable are crucial.

When software projects become mired in delays and disputes, the mediator serves as a neutral facilitator, providing a space to re-explore, review, and reset both the project and stakeholder relationships. By doing so, mediators help parties find solutions that prevent costly and prolonged arbitration or litigation, ultimately restoring confidence in project delivery and collaboration.

More from our authors:

	EU Cross-Border Commercial Mediation: Listening to Disputants - Changing the Frame; Framing the Changes by By Anna Howard € 93
	The Singapore Convention on Mediation: A Commentary by By Nadja Alexander & Shouyu Chong € 160
	Essays on Mediation: Dealing with Disputes in the 21st Century by Edited by Ian Macduff € 160

EU institutions are demonstrating increasing institutional support for mediation in family matters. A recent study has established that 20 out of the 27 EU Member States already utilise one or several models of fostering family mediation in a mandatory form, while at least nine Member States are in the process of adopting some form of mandatory family mediation. These developments reflect a gradual shift towards referring family conflicts to mediation as a priority.  While such approaches may be beneficial in terms of saving time and money while improving parties’ communication, they do not address the question of how  different ongoing forms of domestic violence may influence the decision to mediate and impact  dynamics of family mediation (Murphy & Rubinson, 2005). Various mandatory mediation models provide victims of domestic violence with the right not to participate in the mediation process on the grounds of previous violence having been documented. Other models entrust the presiding judge with powers to decide whether to waive the obligation to mediate on grounds of evidence.

Some authors state that the element of domestic violence may be treated as an important predictor of failure to reach an agreement or reaching biased agreements that overly favour the aggressor (Ballard et al., 2011). Others point out that obligatory participation in mediation for victims of abuse causes them to experience intimidation and control to such an extent that they cannot safely participate (Cleak et al., 2018). At the same time, levels of domestic violence are increasing globally according to a report by the World Health Organization et al. (2014), becoming a serious social problem which often remains hidden. On an EU level, at least two women are killed every day in the EU as a result of this problem. At the same time, two in every 10 women have experienced physical and/or sexual violence committed by a partner or a friend, whereas three in 10 are victims of such violence perpetrated directly by a family member (Report by the European Union Agency for Fundamental Rights (2014). These alarming numbers put forth in the context of mandatory mediation pose the question of how domestic violence concerns are addressed in mandatory mediation processes, the prime objective of which is to preserve and restore communication between parties, while aiming to resolve the dispute in a manner that encompasses the interests of all family members.

Amidst this debate, the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) was adopted in 2011 as the first legally binding European regulation that creates a comprehensive framework of protection, which has been ratified by the EU and is in force as of 1 October 2023. Although the scope of the Istanbul Convention was the creation of a framework to protect women and children against domestic violence, Article 48 of the Istanbul Convention explicitly prohibits mandatory alternative dispute resolution methods, including mediation, in cases where abuse is reported by one of the partners. The rationale behind such a ban is elucidated further in para. 251 and 252 of the Explanatory Report to the Convention (2011), which stipulate that while the benefits of alternative methods are not in question, their application in cases of violence may have a negative effect, in particular if participation in such alternative dispute resolution methods is mandatory and replaces adversarial court proceedings.

This notion is rooted in the concept that ‘victims of such violence can never enter alternative dispute resolution processes on a level equal to that of the perpetrator’ (Explanatory Report to the Convention (2011)), thus arguing that in order to avoid the re-privatisation of domestic violence, it is the responsibility of the state to provide access to adversarial court proceedings presided over by a neutral judge. Consequently, Article 48(1) of the Istanbul Convention requires parties to prohibit mandatory participation in any alternative dispute resolution processes in domestic criminal and civil law. The importance of this provision as an integral part of the protection of victims of domestic violence has been reaffirmed by annual reports of the Council of Europe’s Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO; Council of Europe, 2021).

GREVIO has expressed its concerns in its 3^rd General report with reference to Slovenia, where courts often encourage parties to conclude a settlement even if serious violence has occurred between them. Moreover, the report further found the system in Denmark to be inappropriate for couples whose relationships have been marred by violence with respect to decisions taken on custody and visitation, where it noted that family courts did not exist and that conflicts about custody and visitation were presided over through a system of joint meetings between the two parents, guided or mediated by the state administration.

GREVIO’s position is only strengthened by the conclusions of studies on the compliance of particular countries with the Istanbul Convention, where Italy was praised for the measures taken and progress achieved – in particular, the amendments made to family law proceedings within the civil procedure code to address cases of domestic and gender-based violence. This included the prohibition of mediation in cases of domestic violence and the requirement for family judges to request information on pending proceedings against the perpetrator or on previous convictions (Conclusions on the implementation of Recommendations in respect of Italy, 2023).

However, Norway and certain other countries were urged to take immediate action to recognise the power imbalances in relationships marred by violence and ensure that all offers of mediation are accepted entirely voluntarily and through all available means. These means include guidelines and training offered to mediators that focus on the gendered dynamics of domestic violence and its impact on the ability of victims to enter the mediation process on a par with the perpetrator (Recommendation on the implementation of Istanbul Convention, 2021).

Except for the above, however, no further references are made to the screening of domestic violence cases in the context of mandatory family mediation processes. This aspect is of particular importance in the context of the evolution of mandatory mediation models in Europe, which often take place with domestic violence in the background. Even if it is undeniable that the countries that ratified the Convention shall exempt cases where there are signs of domestic violence, the question remains as to how it is to be ensured that signs of domestic violence are acknowledged and addressed by a mediator or a judge hearing a family case in a manner that allows the mediation process to continue only if participants are willing, truly empowered, and self-determined in the procedure, and if it is possible to ensure the safety of such a process.

Analysis of Lithuanian mediation provisions provide victims of violence with the chance to avoid taking part in the mediation process alongside the perpetrator of the act of violence. This can occur at the victim’s own initiative. A different approach has been adopted in Bulgaria, where according to the recently repealed mandatory mediation provisions a judge may refrain from ordering the disputants into mediation in case of evidence of domestic violence. Through effecting such waivers, victims are afforded a higher level of protection by not being coerced into a process that may endanger their physical or emotional well-being. While such an approach may be deemed positive, it also shares some downsides, as the existing legal framework does not apply a time limit for using domestic violence records as a waiver for this obligation. This may lead to a situation where domestic violence appeared much earlier and does not have any relevance to the current divorce or other family dispute for which mandatory mediation would otherwise apply. Thus, even if a past instance of domestic violence does not per se lead to a power imbalance between the parties in the present, the individual who experienced it is still entitled to opt for an exemption from mandatory mediation, thereby limiting the other party’s opportunity to participate in this conciliatory process.

Elaborating on the above, the question of what type of screening is required for domestic violence protection measures should be considered and integrated as part of mandatory family mediation processes. However, the Istanbul Convention leaves this question without a clear solution, and it is for the national legislation and the practices that apply therein to handle this matter.

In addition, we must also acknowledge that a number of domestic violence victims do not identify themselves as such or prefer not to circumvent the mediation process. Moreover, some victims may not be aware of the existence of such an exception, particularly if they are not represented by a legal professional. Due to these circumstances, the presence of domestic violence may only become apparent during an ongoing mediation and particularly, if specific screening for domestic violence is conducted ahead of the procedure. Currently though, no unified methodology for addressing cases of domestic violence within mediation have been identified in the EU, which can result in victims being coerced into mediation without appropriate support and safety measures. This is further coupled with the notable lack of additional qualifications and multidisciplinary expertise requirements towards mediators tasked with mandatory family mediation, such as the need for a psychological background, expertise in child development, domestic violence power dynamics and mental health awareness.

In conclusion, there is a substantial gap between the different treatments of domestic violence cases in mediation across the European Union. This necessitates additional regulation, particularly in the context of mandatory mediation models in the presence of indicators of domestic violence. The compliance of the existing legal framework with Article 48 of the Istanbul Convention can be considered as an appropriate example and a significant first step towards ensuring the protection of victims of domestic violence in the context of mediation.

However, this legislative setting is not sufficient to address the challenges that have emerged. Thus, it is advisable for the EU to consider the adoption of uniform screening tools developed specifically for mediation and based on the available best practices in the field. It would also be pertinent to consider the adoption of additional guidance, standards or protocols that govern the peculiarities of cases of this nature, which would enable mediators to identify domestic violence and adjust the mediation process in the context of different forms of domestic violence, particularly in relation to mandatory mediation.

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The High Court decision in DKH Retail Ltd v City Football Group Ltd EWHC 3231 (Ch) to order compulsory mediation despite the defendant’s objections is an example of the application of Churchill in subsequent cases. In that case, the claimant made an application for compulsory mediation at a pre-trial review. One of the reasons why the defendant objected was because it was too close to trial and that the parties had already spent a large amount in legal costs. The High Court acknowledged this, but ordered mediation nevertheless.

Legal Reforms

Earlier in 2024, the Ministry of Justice introduced compulsory mediation for all new monetary claims under £10,000 on the small claims track. Claims issued after 22 May 2024 are now subject to compulsory mediation. The aim is to resolve cases early and free up Court time. With small claims taking over a year to reach trial, this move is expected to also help reduce waiting times for those matters that do go to a hearing.

In the wake of the Churchill decision, the Civil Procedure Rules Committee launched a consultation on proposed amendments to the Civil Procedure Rules (CPR) to address the Court’s authority to compel parties to engage in ADR. The amendments to the CPR came into effect on 1 October 2024, and so it is important for clients and their lawyers to understand how this decision will affect litigation strategies and the conduct of cases moving forward. ADR, particularly mediation, will become even more central to resolving disputes efficiently. Although the Churchill decision talks about ADR, the writer’s experience is that mediation is the method preferred by courts especially given the compulsory mediation in small claims.

Churchill v Merthyr Tydfil Borough Council [2023]

In Churchill, the claimant brought a case against Merthyr Tydfil Borough Council, which centred around property damage. The key issue was whether the Court had the authority to compel both parties to engage in mediation as part of the dispute resolution process. Historically, in Halsey v Milton Keynes General NHS Trust [2004], the Court had ruled that it could not order or compel parties to engage in ADR.

However, in Churchill, the Court of Appeal held that under certain circumstances, courts could order a stay in proceedings to allow ADR to take place. This decision effectively overruled the long-standing precedent in Halsey, opening the door to a more assertive role for Courts in encouraging or even mandating mediation/ ADR where appropriate. In DKH Retail Ltd v City Football Group Ltd, the High Court noted that mediation would offer the parties options for settlement that may not be available through the Court.

What does this mean for litigants and their lawyers?

For clients and solicitors, the decision in Churchill and its subsequent application in DKH Retail Ltd v City Football Group Ltd means that there is now a greater emphasis on resolving disputes through mediation and other forms of ADR. In practical terms, it means that:

1. Court-mandated mediation: Litigants can no longer rely on avoiding ADR or mediation simply because they prefer to proceed to trial. If the Court believes mediation could assist in resolving the dispute, it may now order it.

2. Cost implications: Failure to engage in mediation or ADR, when ordered by the Court, could result in adverse cost orders. For example, even if a litigant wins their case, they could be penalised on costs if the Court finds they unreasonably refused to engage in mediation/ADR.

3. Litigation strategies: Lawyers need to be proactive in advising clients on the benefits of mediation/ADR early in the process. It is no longer enough to dismiss mediation/ADR if it appears unsuitable; a detailed explanation of why mediation/ADR is not appropriate will now need to be provided.

This shift makes it critical for parties to approach litigation with an open mind toward ADR from the outset, as Courts will likely be more willing to impose mediation in an effort to save Court time and reduce legal costs.

What are the changes to the Civil Procedure Rules?

Previously, the Court’s overriding objective required it to encourage parties to use ADR. This has now been strengthened to “ordering and encouraging” parties to engage in ADR. In reality, this will mean mediation more often than not.

The Court’s case management powers have been updated to include new rules allowing it to “order the parties to engage in alternative dispute resolution”.

Amendments to the CPR affecting both fast-track and multi-track cases now require the Court to consider ordering or encouraging mediation/ADR when issuing directions. For fast-track cases, the Court must specifically assess whether mediation/ADR should be mandated or encouraged. Similarly, in multi-track cases, the new rules oblige the Court to evaluate the need for mediation/ADR when setting directions.

The rules now include specific provisions on costs, granting the Court broad discretion to issue cost orders. When deciding costs, the Court will consider the parties’ conduct. If a party has failed to comply with or unreasonably refused to engage in mediation/ADR, they must provide strong evidence justifying their decision. They will need to explain why their case was unsuitable for mediation/ADR or why they rejected an ADR offer from their opponent. Failure to convince the Court may result in cost penalties, even if the party succeeds in their claim.

The new amendments to the CPR, effective from October 2024, reflect the Ministry of Justice’s ongoing commitment to promoting ADR. Forms of ADR, like mediation, often boast high success rates and are typically faster and more cost-effective than going to trial. However, they require both parties to actively engage and be open to settlement. If either party is firmly entrenched in their position, ADR may prove ineffective, potentially leading to wasted time and costs.

What parties should bear in mind in terms of mediation or other forms of ADR when litigating

In light of the changes introduced by the Churchill decision and the amendments to the CPR, parties should keep several key points in mind.

• First, ADR has become a core component of litigation, and engaging in it early can save both time and costs; it is not merely a formality but a genuine opportunity to resolve disputes.

• Additionally, mediation or some other form of ADR is likely to be mandated by the Court, so parties who refuse this must provide compelling reasons for their stance; otherwise, they risk incurring adverse cost consequences.

• Early discussions between parties and their lawyers about ADR options are crucial, as settling matters promptly can help avoid lengthy and costly court proceedings. Finally, parties should be prepared for the possibility that the Court may order mediation/ADR, as resistance to ADR is unlikely to be viewed favourably, particularly under the new CPR provisions.

Why this is a welcome move

The decisions in Churchill and DKH Retail Ltd v City Football Group Ltd and the changes to the CPR are a positive development for litigants and the legal system alike. Mediation has long been recognised for its efficiency in resolving disputes, for its potential for cost-saving, faster resolution, flexibility and control, and maintaining relationships.

The updates to the CPR primarily serve to reinforce existing practices rather than introduce fundamental changes. Courts already possess the discretion to implement what these updates propose. For instance, it is common for Courts to pause proceedings to allow parties to consider mediation, requiring them to report back after this period. Even when a stay is not ordered, Courts typically take into account the need for parties to have adequate time to engage in mediation when establishing the procedural timetable for a case. However, the new rules provide additional impetus for judges to actively encourage or mandate mediation or another form of ADR, offering a clear basis for such decisions.

In conclusion, the decisions in Churchill and DKH Retail Ltd v City Football Group Ltd and the changes to the CPR represent a cultural shift towards encouraging early resolution of disputes. This will benefit parties by saving time, costs, and the stress associated with protracted Court proceedings. Generally, the success of ADR is closely linked to the level of genuine commitment from the parties involved. There is a risk that a party may treat the process superficially, using mediation merely as a fact-finding exercise rather than with a genuine intent to settle. Fostering a culture where parties carefully consider mediation for their specific dispute would represent a positive shift.

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The Trouble with Defining Neutrality

Neutrality in mediation demands a mediator’s absence of bias or partiality requiring vigilance against both explicit bias towards a specific party as well as unconscious bias. It encompasses treating parties equally, having no personal stake in the outcome, and avoiding any influence from financial interests or external pressures like the government. Yet, as scholars like Astor and Mayer point out, these definitions are neither comprehensive nor universally accepted. For instance, Mayer dissects neutrality into structural, behavioural, emotional, perceptual, and aspirational dimensions, each with its own complexities.

The confusion further extends to neutrality’s overlap with impartiality. Some argue neutrality means the absence of pre-existing relationships, while impartiality refers to being unbiased in the mediator’s conduct. Others use the terms interchangeably, further muddying the waters. This lack of clarity makes neutrality a challenging concept to pin down and apply consistently in practice.

Moreover, the very idea of being entirely neutral is contradictory, and in reality, challenging, owing to the very nature of the concept, which is evident from its definition as discussed, thus leaving it more as a theoretical aspiration. If neutrality requires mediators to have no personal perspective or influence, can such a role ever truly be fulfilled? Astor notes that mediators often bring their experiences, perspectives, and values into the process, consciously or unconsciously. Thus, even if one were to strive for perfect neutrality, human nature itself might render this impossible.

Can Neutrality Truly Be Achieved?

If defining neutrality is hard, attaining it is even harder. Mediators are human, shaped by their own experiences, cultural contexts, and subconscious biases. Becker’s critique emphasises that even seemingly innocuous actions—a slight nod, a word choice—can betray a mediator’s influence. Empirical studies show that mediators often guide conversations, steer outcomes, or unwittingly favour one party over the other, even when striving for neutrality.

Power imbalances further, exacerbate this issue. In cases where one party holds more sway—economically, socially, or otherwise—strict neutrality might in fact, perpetuate injustices rather than resolve them. Feminist and critical legal scholars highlight how an insistence on neutrality often disadvantages marginalised groups, unintentionally aligning mediators with the more powerful party. In such scenarios, neutrality becomes a paradox: treating parties equally can entrench inequalities, while addressing these disparities violates the principle of neutrality. It is of course debatable whether rectifying any systemic power imbalances is in the first place within or outside the mediator’s purview. Nonetheless these considerations further question the attainability of neutrality.

Neutrality also falters in high-conflict or emotionally charged disputes. Mediators tasked with keeping the peace might naturally favour approaches that calm tensions, inadvertently sidelining parties who are more confrontational but equally valid in their grievances. This inclination further reveals  how neutrality may skew the mediation process without the mediator’s conscious awareness.

Despite these challenges, some argue for the possibility of “external neutrality,” where mediators consciously separate their biases from their actions. This approach however relies on self-awareness and self-regulation—skills that are often easier said than done. Ultimately, as Boulle succinctly puts it, neutrality remains “the most pervasive and misleading myth about mediation.”

Is Neutrality Even Desirable?

The discussions above, forces one to question that even if one could both define and attain neutrality in certain circumstances, is it actually desirable? Scholars like Mayer argue otherwise, suggesting that disputants often seek more than a neutral facilitator. Parties in mediation frequently need guidance, advocacy, and support—roles that a strictly neutral mediator cannot fulfil. By clinging to the neutrality ideal, mediators might miss opportunities to build trust, foster open dialogue, and address power imbalances effectively.

Research supports this shift. Studies reveal a positive correlation between mediator assertiveness and successful settlements. Active involvement, rather than detached neutrality, often leads to more equitable outcomes. Furthermore, aspirational neutrality can constrain mediators, forcing them to navigate between opposing demands: detachment and proactive intervention. This tension hampers their ability to address the real needs of the parties involved.

In some situations, neutrality might even harm the mediation process. For instance, in cases involving domestic abuse or extreme power imbalances, a neutral stance risks legitimising the status quo, leaving the disadvantaged party without meaningful recourse. There is of course, the ethical dilemma regarding whether such extreme cases should be mediated at all, but then at least mediators who adopt a more active role can challenge these dynamics and create space for equitable solutions.

Alternatives to Neutrality

So, if neutrality falls short, what should replace it? Scholars like Mulcahy and Astor propose more practical, nuanced approaches.

Transparency and Bias Acknowledgment

Mulcahy advocates for transparency. Rather than feigning impartiality, mediators should openly acknowledge their biases and values. This approach shifts the focus from the mediator to the parties, empowering them to make informed decisions about the process and its outcomes. Transparency fosters trust and encourages an honest, collaborative environment.

Transparency also promotes accountability. When mediators openly disclose their potential biases, they invite scrutiny and dialogue, creating a more balanced power dynamic. For example, a mediator handling a corporate dispute might reveal a prior background in corporate law. This disclosure allows parties to weigh the mediator’s perspective and adjust their expectations accordingly.

Reflexivity and Inclusivity

Astor emphasizes the importance of self-awareness in mediation, urging mediators to recognize how their cultural, political, and personal experiences shape their perspectives. Rothman extends this idea with a reflexive approach, arguing that true neutrality is unattainable. Instead of striving for detachment, mediators should engage in disciplined self-reflection—becoming aware of their biases and assessing how these influence their interactions with parties. Reflexivity allows mediators to consciously navigate their own perspectives while ensuring they do not unconsciously reinforce power imbalances.

Inclusivity is a natural extension of this reflexive practice. By acknowledging their own positionality, mediators can better engage with underrepresented voices and marginalized perspectives, ensuring that all parties feel heard. This does not mean imposing an external sense of fairness but rather fostering an environment where diverse viewpoints shape the mediation process. In doing so, mediators enhance not only the perceived fairness of the process but also the durability of its outcomes.

At its core, reflexivity does not undermine party autonomy but strengthens it. By being attuned to their own influence on the process, mediators can more effectively empower parties to take ownership of their disputes and solutions. This shift from an illusion of neutrality to an engaged, self-aware practice ultimately leads to a more inclusive and equitable mediation experience.

Advocacy and Empowerment

Mayer and others suggest moving beyond neutrality toward advocacy. Mediators can play an active role in levelling the playing field, ensuring that disadvantaged parties have a voice. This doesn’t mean taking sides but rather facilitating a process where fairness prevails over rigid adherence to neutrality. In doing so, mediators must however ensure that their efforts to promote fairness are truly shaped by the parties’ circumstances and the mediation process itself rather than their own sense of justice.

Further, advocacy doesn’t necessarily compromise the mediator’s role. Instead, it redefines it. By advocating for equitable participation and ensuring that power imbalances are addressed, mediators can enhance the integrity of the process., This is, however, only attainable if done with restraint. A mediator must intervene enough to prevent exploitation or coercion while avoiding actions that could be perceived as favouring one side. The challenge lies in distinguishing between necessary intervention and undue influence. In cases where one party lacks resources or knowledge, a mediator’s guidance can bridge these gaps without undermining the overall fairness of the proceedings. Having said that, the line between guidance and advocacy is thin, and crossing it risks shifting from facilitation to partiality. Mediators must always consider that their role does not involve championing an outcome but creating conditions where parties can negotiate on more equal footing without distorting the process in favour of one side.

A New Vision for Mediation

In conclusion, one may argue that the time to reassess the significance of the pursuit of ‘neutrality’ in mediation is now upon us. Instead of neutrality, embracing approaches that prioritise fairness, transparency, and empowerment can help mediation evolve into a more effective, inclusive, and just method of dispute resolution.

Further, while neutrality might be overrated, the potential of mediation is not. Let’s reimagine the mediator’s role—not as a passive observer but as an active facilitator of equitable outcomes. The result? A mediation process that truly serves its purpose: resolving conflicts in a way that is fair, balanced, and transformative.

By replacing neutrality with more practical principles, mediators can help parties navigate disputes with greater clarity and purpose. Transparency fosters trust, self-awareness, reflexivity, and inclusivity enhance fairness, and advocacy empowers the vulnerable. Together, these elements form the foundation of a new mediation paradigm—one that aligns with the realities of human interaction and the complexities of conflict.

Ultimately, this shift isn’t just about redefining mediation; it’s about improving it. When mediators move beyond neutrality, they unlock the full potential of their role, enabling outcomes that are not only just but also transformative for all involved.

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On February 6, 2025, the 2nd Brazilian Mediation Day took place at Paris-Panthéon-Assas during the ICC Mediation Week, marking another important milestone in the development of mediation both in Brazil and internationally. Organized by the Brazilian Mediation Day Committee, under the coordination of Rissiane Goulart and Marina Gouveia, in collaboration with the International Mediation Institute (IMI), the event brought together leading experts to discuss key issues shaping the future of mediation.

Throughout the event, discussions focused on key best practices that have been gaining relevance globally, with topics ranging from the importance of negotiation skills for lawyers, and how well-prepared attorneys can prevent prolonged litigation, to the use of artificial intelligence in dispute resolution. Among these discussions, third-party funding was highlighted as a growing point of interest, expanding beyond arbitration into mediation. This shift is particularly significant for Brazil, where funding mechanisms and their impact on consensual dispute resolution are still evolving and require further exploration.

One of the main points raised was how investors assess the feasibility of a settlement. When a third-party funder is involved, the decision on whether and when to settle is influenced not only by the original parties’ interests but also by the investor’s expected financial return. This creates two distinct scenarios:

1️ – Mediation as a strategic tool – If funders recognize that a quick settlement can yield economic benefits and mitigate unnecessary risks, they may actively encourage negotiation and consensual dispute resolution.

2️ – Mediation as a barrier to funding – In some cases, funders may prefer to push the case forward, betting on a more favorable arbitral or judicial decision, even if it means a prolonged and costly process. This is particularly true when they perceive that an early settlement would result in a lower return than expected.

The discussion also highlighted the role of timing in decision-making. If a case can be resolved through mediation within six months, this may be seen as a win for all parties. On the other hand, some disputes may extend over several years, requiring continuous investment that could become unsustainable.

Moreover, it was emphasized that funders are not a homogeneous group—some actively participate in negotiations, while others take a more hands-off approach, merely assessing financial risks. This diversity in strategies makes the debate even more relevant.

Conclusion

Litigation funding and mediation are not necessarily opposing forces. When properly aligned, they can complement each other and enhance the efficiency of resolving complex disputes. However, for mediation to be effectively integrated as a viable alternative, mediators must understand funders’ motivations and structure discussions that balance economic and legal interests.

The discussions at the 2nd Brazilian Mediation Day reinforced an important point: mediation should not be merely a secondary option—it should be positioned as a strategic tool for business dispute resolution and sustainable solutions. As mediation continues to gain traction in both the legal and business spheres, events like this demonstrate its increasing relevance and the importance of engaging with all stakeholders — including funders — to ensure that mediation remains at the forefront of dispute resolution strategies.

We now look forward to the 3rd Brazilian Mediation Day, eager to continue these discussions and see how mediation will further evolve on the global stage.

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Fisher and Ury’s Getting to Yes (first published in 1981 and never out of print)  was followed ten years later by Ury’s Getting Past No.  Both made a significant impact on our negotiation preparation and engagement.

These texts, and others that followed, changed the landscape of negotiation in ways that have been remarkable and enduring. They moved our thinking significantly –  from the common view that negotiation is a transactional process to what we would now call a systems thinking based approach.

Fisher and Ury reimagine negotiation as a series of moving and interacting elements, where a change to one element creates the possibility of a cascade of changes to others. This reflects the dynamic nature of many negotiations.

The idea of ‘The Golden Bridge’ – a tool from Getting Past No

For those of us whose conflict work brings us into regular contact with  uncooperative and intransigent parties, Ury’s five-step strategy is a strategic marvel. His concept of the Golden Bridge, his step four, draws on the concept of negotiation jujitsu:

• drawing the other side in the direction in which you want them to move by reframing
• stepping to the other side so you can jointly explore the solution
• making it as easy as possible for the other to say yes

Ury explains that:

“you may be tempted to push—to cajole, to insist, and to apply pressure. But pushing may actually make it more difficult for the other side to agree. It underscores the fact that the proposal is your idea, not theirs. It fails to address their unmet interests. It makes it harder for them to go along without appearing to be giving in to your pressure. And it makes the prospect of agreement seem, if anything, more overwhelming.”

“Instead of pushing the other side toward an agreement, you need to do the opposite. You need to draw them in the direction you want them to move. Your job is to build a golden bridge across the chasm. You need to reframe a retreat from their position as an advance toward a better solution.”

Ury’s repertoire of tools also includes his concept of The Third Side. He identifies the first and second sides as the opponents in a negotiation. The Golden Bridge is a vehicle to encourage the parties to walk together aided by The Third side – particularly relevant in national and international conflict.

Ury calls this ‘a swarm from the third side’ – a critical mass of influence from the community.

These are constructive, attractive ideas. My question is – are they the answer today? Ury’s answer is a resounding yes! In support of this  in his new book he describes himself as a ‘possibilist’ – a very attractive description of his belief that since conflict is created by humans it can be transformed by humans.

Exploring the history of The Golden Bridge

Ury himself, together with various commentators on his work, attributes the concept of The Golden Bridge to the Chinese general, military strategist, writer and philosopher Sun Tzu (although numerous historians dispute the authorship).

His military text, The Art of War, written 2500 years ago, contains 13 chapters of simple instructions for preparing and engaging in warfare. He provides a masterful frame for a good outcome:

‘The Supreme art of war is to subdue the enemy without fighting’

Sun Tzu’s text is well worth revisiting. Despite how his work is reported, he does not actually talk about ‘The Golden Bridge’ (at least not in the translations I have consulted) and his concept is the polar opposite of Ury’s.

Sun Tzu is counselling leaders to ‘leave an outlet free’ so a party facing certain defeat can escape. What Ury has done is to rework this idea to give us the Golden Bridge – an outlet that both parties can use together. He counsels us to help the other party to reframe a retreat from their position to an advance towards a better outcome.  A very different message from the original.

Where does that take us in the age of hyper-polarisation?

Nationally and internationally, we are seeing a retreat to transactional, win/lose behaviour where powerful players display a contempt for working relationships and characterise compromise and bipartisanship as weak. Powerful players are demanding the return to a positional and binary approach. The middle ground is being made unavailable through a variety of means.

Ury remains convinced that conflict can be overcome using the tools he advocates.

However, I think we need to consider 2 more lessons from The Art of War itself:

• Leaving the outlet free, as Sun Tzu advocates, is really another version of the BATNA. Our BATNA is our Plan B. It is where we may form other alliances; retreat to the balcony to wait and see (doing nothing, at least for now); focus on making our own defences impenetrable or seek intervention from a regulator or powerful authority. It tells us whether to stay or to utilise what Sun Tzu names “the free outlet”.

Dealing with bullying and threats requires a strategy that is independent and not reliant on cooperation or collaboration.

Despite what we are counselled to do in Getting to Yes, we may also need to be hard on the problem and on the people – where relationships are so impossibly toxic that seeking to repair them can only be seen as weakness by the other side and an encouragement to bully us harder.

In my view we have entered the most important Plan B era in living memory.

• The text also comments on the role of chaos as a very deliberate tactic to distract and fragment forces, wasting resources and unwinding alliances. I am not suggesting that we follow Sun Tzu’s advocacy and engage in this tool of war. Rather I am advocating that we strongly call it out so that we are not blindsided by it. At present, the deliberate proliferation of chaos by players who see no downside to the outcome is chilling and dangerous.

We are certainly facing a huge challenge.

Perhaps we need a cameo appearance from Sun Tzu to show us how to stare it down!

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Part I of this 2-part series, dealt with the following aspects of the Act: the underlying objective behind enforcement of the Act; the scope of applicability of the Act; how does the Act define the term “Mediation” and the significance of that definition; and lastly, the meaning of a “mediation agreement” as provided under the Act.

Part II, goes further and looks into various other aspects of the Act, inter alia, the concept of “pre-litigation mediation”; the process for appointing  a mediator; time limits to complete a mediation; enforcement and challenge to a mediation settlement agreement; provisions attempting to institutionalize mediation; online mediation and confidentiality in a mediation.

II.                        Scheme of the Mediation Act, 2023 – Continued

A.                 What is the Idea of “Pre-litigation Mediation” Under the Act?

Pre-litigation mediation (PLM) means a process where prospective litigants to a commercial or civil dispute attempt to resolve their dispute using mediation before they approach any court in India for filing a suit or proceeding. As per Section 5 of the Act, irrespective of the existence or non-existence of a mediation agreement, the parties may voluntarily and with mutual consent opt to settle their dispute (before filing any civil or commercial suit or proceedings) through mediation under the provisions of the Act. This is a critical feature of the Act and one that hopefully many  parties will avail themselves of without having to go through the rigors of litigation.

Although the process of PLM has been made voluntary under the Act, Section 7(1) of the Act empowers courts and tribunals to refer the parties to a dispute to mediation, at any stage of the proceedings. Section 7(2)empowers such courts and tribunals to pass any suitable interim order to protect the interest of the parties, in cases where such court or tribunal has referred the parties to mediation under Section 7(1). While the Act provides for such a power, it does not lay down the scope of the interim orders that may be passed, unlike Section 9 of the Arbitration and Conciliation Act, 1996 which sets out the framework of an interim order of protection in an arbitration proceeding. Empowered with Section 7, in many cases where Courts feel parties can sit across the table and settle their disputes, Courts may take this opportunity to encourage mediation much more than prior to this Act coming into force. It remains to be seen how often Courts will use this tool.

B.                 How is a Mediator Appointed Under the Act?

Section 8 of the Act gives complete autonomy to the parties in appointing mediators (of any nationality). The only condition imposed in appointing a mediator of a foreign nationality is that such person shall possess such qualifications, experience and accreditations as may be specified under the Act. In the event the parties fail to name a mutually agreed mediator, the party seeking mediation shall approach a “mediation service provider” in other words, a mediation institution, making an application for the appointment of a mediator. Upon such application, the said mediation service provider shall within 7 days of the application, appoint a mediator as agreed by the parties or from the panel of mediators maintained by the mediation service provider (as the case may be). It must be noted that the Government has not yet notified and / or published a list of recognized mediation service providers.

C.                 What is the Time Limit for Completion of Mediation Under the Act?

Section 18 of the Act provides that  mediations conducted as per the provisions of the Act shall be completed within 180 days (including the time of any extension agreed to by consent between the parties). While the idea behind such defined time limits is ensuring the efficiency of the process and preventing any delaying tactic that may be adopted by parties, the Act does not speak of what happens at the end of the 180 days. Perhaps it should provide for, like in the case of arbitrations, how parties may continue mediating – perhaps by an application to the prothonotary or registrar of courts instead of to a court.

D.                Is the Settlement Agreement Arrived at as a Result of Mediation Binding?

As per Section 27 of the Act, a settlement agreement arrived at as a result of mediation conducted under the provisions of the Act is binding on the parties. Such settlement agreement shall be enforceable in the same manner as if it were a judgment or decree passed by a court. The said settlement agreement, may, therefore, be relied on by the parties by way of defence, set off or otherwise in any legal proceeding.

E.                 Challenge to Mediated Settlement Agreement

The Act also provides a mechanism for challenging a mediated settlement agreement under Section 28 of the Act. As per Section 28(1) of the Act a party to a mediated settlement agreement may challenge the same by filing an application under Section 28 of the Act before the court or tribunal (notified by the central and / or the state governments) having jurisdiction on the grounds of:

• Fraud;
• Corruption;
• Impersonation; or
• Where the subject matter of the dispute was not fit for mediation as per Section 6 of the Act.

Section 28(3) imposes a limitation of 90 days for challenging a mediated settlement agreement from the day the party seeking to challenge has received the said agreement under Section 19(3) of the Act. This limitation is extendable by 90 days where the court is satisfied that there existed sufficient cause for the delay.

It is important to note that a conjoint reading of Sections 27 and 28 would lead one to think what would happen to enforcement proceeding under Section 27 where a simultaneous proceeding challenging the mediated settlement agreement has been initiated under Section 28. Does the effect of initiation of Section 28 proceedings lead to an automatic stay on the Section 27 proceedings? The provision is silent on the point. Under the Arbitration and Conciliation Act, 1996 (as amended in 2015), such challenge proceedings do not automatically stay enforcement. This is something which has not been dealt under the Act and would be open to the interpretation of the Courts in India.

F.                 Does the Act Recognize Online Mediations and / or ODR?

The Act has been able to keep pace with the technological advancements in the space of dispute resolution, and hence, recognizes online mediation under the Act. Section 30 of the Act provides that a mediation can (at any stage) be conducted online where the parties have arrived at such a decision through written consent. Such online mediations may be conducted inter alia, with video or audio conferencing, secure chat rooms, encrypted electronic mail, as long as, the confidentiality and integrity of the process is maintained. It, therefore, means that a mediation settlement agreement arrived at as a result of such online mediations shall have the same mandate and enforceability as that of the one arrived at through an in-person process.

G.                What Disputes are Considered Unfit for Mediation Under the Act?

There are certain disputes and / or subject matter that have been explicitly declared as unfit for mediation under the Act. Section 6 provides that disputes or matters set out in the First Schedule shall not be referred to mediation under the Act. The First Schedule provides for an indicative list of such disputes and subject matter. Disputes considered to be unfit for mediation under the Act include Disputes involving:

• Serious and specific allegations of fraud;
• Claims against minors, persons of unsound mind;
• Prosecution for criminal offences;
• Claims against minors;
• Matters in conflict with public policy or opposed to the basic notions of morality or justice under any law for the time being in force; and
• An effect on the rights of a third party.

H.                Mediation Council of India

Section 31 of the Act seeks to promote institutional mediation in the country by establishing a central authority for mediation known as the “Mediation Council of India” (MCI). As per Section 38 of the Act, the MCI shall perform various duties like, registering mediators, recognising mediation service providers and institutes, grading of mediation service providers etc. Further, Section 40 of the Act recognises “mediation service providers” and mediation institutions and provides that all such service providers and / or institutions recognised by the MCI shall be graded by the MCI. These mediation service providers shall be responsible for appointing mediators in terms of Section 8 of the Act. We believe this would amount to over-regulating the process and can ultimately affect the efficiency of the process. In our view, there is no requirement for a council. Mediations should be left as an open, autonomous process, may it be institutional or otherwise.

I.                   Confidentiality

Sections 22 and 23 of the Act, read together, lay down the framework for maintaining confidentiality in a mediation process. Section 22 provides that all parties and participants including the mediator and mediation service provider are bound not to disclose any matter in relation to a mediation proceeding. This includes, acknowledgements, opinions, suggestions, promises, proposals, apologies, and admissions made; acceptance, or willingness to accept, proposals; documents prepared to facilitate the mediation; any other communication in relation to the mediation. Further, it is prohibited to make and / or maintain audio and / or video recordings of a mediation proceeding, whether conducted in person or online.

The Act also prohibits the parties from introducing as evidence in any proceeding before any court and / or tribunal, any information and / or communication in relation to a mediation proceeding and the relevant court and / or tribunal is also prohibited from taking any such evidence into account, Further, no stakeholder in a mediation proceeding including experts and advisers shall be compelled to disclose any communication or information in relation to a mediation proceeding, including the content of negotiations or offers or counteroffers.

The only exceptions to the confidentiality obligations laid down under the Act are:

• Where such disclosure is required for the purpose of registration, enforcement and challenge of a mediated settlement agreement (Section 22(4) of the Act);
• Information sought to be provided to prove or dispute a claim or complaint for the professional misconduct of a mediator (Section 23(1) of the Act); and
• Disclosure of information which qualifies as (Section 23(2) of the Act):

• (i) A threat or statement of a plan to commit an offence under any law;
• (ii) Information in relation to domestic violence or child abuse; and
• (iii) Statements showing imminent threat to public health or safety.

III.                        Conclusion

India is a party  to the Singapore Convention on Mediation (not ratified), which provides for a uniform framework for enforcement of settlement agreements arising from international mediations. Despite this, in the present scheme of the Act, where a settlement agreement has been given parity with a decree, the scope of applicability of the provisions of the Act have been restricted to only such international mediations which are conducted in India (Section 2 of the Act). Perhaps,  parliament should consider accounting for enforcement of mediation (settlement) agreements that may be made between parties (whether Indian or otherwise) outside India as well. Section 2 when read with Section 27 does not seem to provide for enforcement of such settlement agreements. This can be achieved by ratifying the Singapore Convention on Mediation and passing necessary amendments to the Act giving effect to the said Convention.

Further, the Act under Section 5 sought to make PLM mandatory for the parties seeking to litigate their civil or commercial disputes. This Section was however amended to be an optional one.

It may be argued that in the adversarial justice system in India, making PLM mandatory would have been more suitable to tackle the situation of judicial delay. By mandating prospective litigants to take their dispute to mediation, (i) it introduces and encourages parties to use the mediation mechanism, which may, hitherto, have been a completely foreign concept for them; and (ii) such mandated mediation increases the chances of the dispute in question being settled at the pre-litigation stage.

However, there are valid counterviews to this position. It has been pointed out that mandating  mediation would be against the concept of mediation itself which is that it is essentially a voluntary process. Further, it is feared also feared that in the event mediation is mandated, the parties to a dispute may use the requirement to mediate a dispute before approaching courts as another tool to delay the proceedings in a dispute, in addition to the already existing tools to delay a civil and / or commercial proceeding before the courts. Further, mandating mediation may not necessarily ensure amicable settlement of disputes between parties, for the parties may conduct mediation as a mere formality to comply with the Act and proceed with litigating the matter before the courts.

Another important feature of the Act pertains to its applicability to cases where the Government is a party. Section 2(iv) provides that the Act shall not apply where one of the parties to the dispute is the Government except in situations where the matter is a commercial one. It is important to note here that the Government has been termed as the “biggest litigant” accounting for almost 50% of the total pending cases across the country. Therefore, restricting the Government from the applicability of the Act and consequently from PLM under Section 5 of the Act might be fatal to the aims and objectives of the Act. This is also a bit of a mixed message.

All in all, though, this Act is a welcome step for the enhancement of ADR in India which keeps court involvement minimal.

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Mediation is commonly used as a form of appropriate dispute resolution (ADR) for various types of disputes, and this is increasingly so for intellectual property (IP) disputes. As recorded in the inaugural IP section of the Singapore International Dispute Resolution Academy (SIDRA) Survey: 2024 Final Report (SIDRA IP Survey), 86% of the respondents indicated that mediation is one of the most commonly used dispute resolution mechanisms for IP disputes.

The flexibility and freedom that come with mediation are unique to it and are generally not found in other forms of dispute resolution such as arbitration and litigation. Parties are at liberty to choose when to mediate, whether prior to the commencement of official proceedings (e.g., arbitration or litigation) or even during the proceedings as and when they deem suitable. Furthermore, mediation is mostly confidential, thus empowering parties with the confidence to share information with each other and negotiate in good faith.

However, only 14% of the respondents to the SIDRA IP Survey said that they actually preferred mediation. The cloak of secrecy surrounding the process and outcomes of mediations may have hindered a clear understanding of the benefits that come with mediating IP disputes, especially since there is generally no information available on the success rate or the types of IP disputes that are suitable for mediation. There have, thus, been calls in the SIDRA IP Survey for increased transparency in IP dispute resolution processes.

There are multiple facets to transparency, such as the appointment of mediators, the process and the outcome. The present article is only concerned with transparency in the process and seeks to first discuss the “dialectic tension” between confidentiality and transparency in mediation, specifically for IP disputes. This is then followed by delving into the Association of Southeast Asian Nations (ASEAN) Mediation Programme (AMP) developed by the World Intellectual Property Organisation (WIPO) in partnership with the Intellectual Property Office of Singapore (IPOS), which reflects the demand for more transparency in IP mediation but still balances it with confidentiality.

Dialectic tension between confidentiality and transparency in IP mediation

Confidentiality in mediation

One of the key draws of mediation lies in its confidentiality. There are three types of confidentiality: (1) insider-outsider; (2) insider-insider; and (3) insider-court. Insider-outsider confidentiality is what people commonly associate with mediation – the idea of keeping discussions in the session private to only those involved. Insider-insider confidentiality refers to the regulation of information shared during the caucuses, more commonly known as private sessions between the mediator and one of the parties. The other party is not privy to this information unless the disclosing party consents to the information being shared. Insider-court confidentiality is known as “without prejudice”, where mediation communications are typically prohibited from being used in any subsequent court or arbitral proceedings as evidence should the mediation fail.

The importance of having information shared during mediation kept confidential cannot be over-emphasised – it enables parties to prioritise the merits of the dispute rather than diverting their attention to potential ramifications, such as on their commercial interests, reputation, and commercial and personal relationships. 79% of the respondents to the SIDRA IP Survey indicated that confidentiality is an important or absolutely crucial factor to consider when choosing the type of dispute resolution mechanism to resolve IP disputes. 64% of the respondents were satisfied with the confidential nature of the dispute resolution mechanism they had chosen, regardless of whether it is mediation or otherwise.

However, confidentiality in mediation is not absolute. It is generally circumscribed by certain exceptions. The mediator may disclose confidential information in necessary situations to stakeholders beyond the mediation such as the court or law enforcement agencies without needing to obtain consent from the parties. One such example that is frequently highlighted by mediators in practice is when a parent divulges to the mediator (in a family dispute) that he or she intends to take their child overseas and keep them there permanently. This is especially worrying when the parent is not granted the appropriate rights and obligations to keep the child overseas with them. The mediator would then be obliged to report this to the relevant authorities.

The confidential nature of mediation becomes a double-edged sword, especially in IP mediation, with interested parties unable to access information about previous cases. They are thus, unaware of the suitability of mediation for their disputes and the possible solutions that they may be able to obtain through mediation. This then restricts the development of creative ideas and solutions in the IP industry.

Transparency in mediation

There have been calls in the SIDRA IP Survey for more clarity and transparency in the rules and procedures for IP dispute resolution. 86% of the respondents to the SIDRA IP Survey ranked clarity and transparency in rules and procedures as an important factor affecting their choice of dispute resolution mechanism but only 57% indicated that they are satisfied with this factor.

This is interesting since mediation and litigation have been chosen by respondents to the Survey as the most commonly used dispute resolution mechanisms for IP disputes. However, mediation is confidential unlike litigation, suggesting that while mediation is a popular dispute resolution mechanism for IP disputes, respondents are unhappy with the lack of transparency in the mediation process. This would then likely explain the low preference for mediation in IP disputes despite it being one of the most commonly used dispute resolution mechanisms. The SIDRA IP Survey thus, echoes the demand for transparency in the IP mediation process.

Transparency in mediation is not a new concept. Transparency in IP mediation allows for access to information that was previously unavailable, such as the details of the mediation process and the outcomes. Interested parties would be able to get ideas on how to approach their own disputes as well. It would also allow the owner of the IP to receive “public affirmation of the validity and ownership of the [IP] right, which might act as a deterrent to future infringers”, while still enjoying the benefits that come with mediation.

 While transparency in the IP mediation process has its benefits, it should not be absolute. Complete transparency would defeat the purpose of opting for mediation, which is to take advantage of its confidentiality. There should be a suitable middle ground.

AMP

Unique features of AMP

There have been programmes and initiatives that reflect this trend. An example is the AMP launched in 2023, which allows parties to enjoy the best of both worlds – the confidentiality that comes with mediation, and to some degree the transparency that comes with litigation. This programme is a result of the collaboration efforts between the Singapore government and WIPO, where businesses with an IP dispute in ASEAN countries are eligible for up to SGD 8,000 in funding for “mediations administered by the WIPO Arbitration and Mediation Center’s Office” in Singapore. The administration fee for the WIPO Center is also waived.

This programme is unique, wherein parties must consent to named publicity (excluding details of settlement terms) and to providing feedback on the mediation experience. The programme publishes concrete real-life cases on its website of how IP disputes are resolved through mediation. Further, publication of the names of mediating parties on the IPOS Hearings and Mediation Department website encourages potential disputants to choose mediation. This is especially so if well-known brands are involved since this reduces the resistance that small and medium enterprises may have towards mediating disputes as compared to litigating, since there may be fear of power imbalances in mediation or other similar concerns. However, this transparency is not unqualified, and parties are not required to reveal their settlement details. This instils trust in potential parties thinking of utilising such programmes. There is also no requirement under the AMP that parties must settle their dispute.

The AMP experience

At the time of writing, there have been five cases – all successful settlements – under this programme. The very first case in 2023 involved two groups of family members contesting the trademarks used in association with Chew’s Optics by Chew’s Optics (Bishan) and Chew’s Optics (Kovan) – the latter two supposedly with no proper licensing. Another notable dispute involved claims of trademark infringement, passing off and malicious falsehood. The parties in this case had already reached a settlement previously where the party in breach agreed to, inter alia, publish an apology on their website. However, the parties found themselves in litigation once again due to differences in interpretation of the settlement terms. They then sought assistance of this programme and managed to successfully resolve the matter. More details of these mediations can be found on the IPOS website.

The IPOS Hearings and Mediation Department has published not just details of the process, but also feedback from lawyers and parties. The case summaries describe the challenges that arose during the mediations, such as parties finding it difficult to depart from their positions and how mediators managed to skilfully address these issues by tapping into their expertise or calling for caucuses (private sessions). Parties were also very satisfied with the mediation process, highlighting its confidential nature and cost-effectiveness, which further strengthened their “commitment to maintaining harmonious business relationships with their partners while upholding their commercial interests ethically and responsibly”. The successful mediations also allowed parties to “put the dispute to rest and focus on [their] business”.

Conclusion

The confidentiality of mediation is one of its main advantages but could also be a drawback. Parties interested in using mediation for IP disputes may be deterred when they lack access to information about the process and outcomes. This is evidenced by the SIDRA IP Survey where respondents indicated that they wanted more clarity and transparency in the rules and procedures, such as mediation, when it comes to IP disputes. A controlled degree of transparency, such as that provided by the AMP, allows parties to acquire a better understanding of the kind of solutions that they may be able to achieve beyond formal litigation or arbitration proceedings. Publication of parties’ experiences of mediating their IP disputes could help future disputants better appreciate the benefits of mediation and consequently, encourage further uptake of mediation for IP disputes.

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Susskind charts the history of the development of Gross Domestic Product (GDP) to measure economic growth and it’s evolution into the primary political objective and yardstick against which much is judged in many parts of the globe. One of its real attractions is that it boils down a lot of complex information into one, regularly issued, apparently up to date measure, although few really understand what is involved in its calculation and it is frequently revised as new information becomes available.

It can be argued that the simplicity and regularity of the GDP measure has led to too much attention being focussed on the promise of growth compared to its price. In addition, as many have pointed out, there is a real danger in trying capture too much in one measure and that GDP has many shortcomings both technical and conceptual. For example, it may underplay improvements in the quality of output, it doesn’t include non-traded goods like housework and captures damaging activities, such a pollution, which can increase output.

Many attempts have been made to try and refine GDP measurement to overcome these problems, but the risk in doing this is that they overcomplicate it. It’s also impossible to boil down everything that’s important into one meaningful measure. Susskind favours a more comprehensive dashboard of indicators to try and capture broader societal wellbeing (Scotland’s National Performance Framework is an example of one such approach). Such a dashboard could include a measure of GDP, but it would be only one component.

Such a dashboard can help stimulate discussions over how to resolve the growth dilemma by making some of the trade-offs more transparent. It could also highlight where there might be synergies e.g. the impact of improved environment on health and the impact of improved health on productivity etc. This should help public policy to be more ‘joined up’.

To guide the moral and political judgments involved in addressing the trade-offs between the promise and price of growth Susskind argues for the need for more ‘mini-publics’ like citizens assemblies. These will give citizens greater agency in political processes and to use the latent political energy pent up in society for constructive rather than destructive purposes. There are already examples of where such an approach has helped decision making on very contentious issues such as abortion and gay marriage.

The use of mini-publics allows citizens to be informed by experts, share their hopes, fears and concerns, build understanding of different perspectives and consider options. They also provide a forum for much greater participation in political deliberation, which allows for more nuance than more binary processes such as referenda.

Such processes also allow more time for reflection, something that seems all too absent in much of politics today. As David Runciman puts it in the conclusion to a chapter on John Rawls in his book ‘The History of Ideas’: “If so-called real politics doesn’t give us the time to reflect, then what is it but shadow boxing, a charade? It is barely real at all.”

At a time when attitudes in so many places become ever more polarised trying to encourage a more constructive, participative and reflective approach might seem like a big ask . Nevertheless if we are to make any progress it will require something like this. Our current approach to politics, where the relationship between politicians and citizens is akin to vendors hawking their wares to relatively passive consumers, doesn’t seem up to the task.

A more participative democracy will certainly take some brave leadership and skilled facilitation. The leadership may well come in part from a bottom up groundswell demanding a fresh, creative approach to resolve the dilemmas we face. If this does happen those, such as mediators, who have the facilitation skills needed, may well find themselves in greater demand.

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That India is a litigious country and that the courts have a backlog of a huge number of cases is a well-worn cliché. Against such a backdrop, the stage has been set for a mediation law for India which will aim to encourage parties to mediate and resolve disputes instead of stepping through the door of court houses. As a litigator for the past 13 years, this can be said with some emphasis: India needs to adopt and participate in mediation.  Disputes germinate from differences of opinion, family matters, a sense of being treated unfairly, a measure of revenge (“let’s teach the counterparty a lesson!”) or sometimes just because parties do not know any better. Disputes of this nature can be resolved far more efficiently and dare we say, more effectively with mediation. A dispute does not have to be a zero-sum game – which is what typically results from adversarial litigation.

Mediation can enure for the benefit of all with both parties feeling like they gained something. With specialized training in mediation, mediators can make a real and systemic difference to parties who actively choose mediation over litigation. Currently the attitude towards mediation (even when statutorily mandated such as under the Commercial Courts Act, 2015) is casual and a step that parties just want to get over as an empty formality to move to the next stage of litigating. This has resulted in mediation often not being taken seriously.

Additionally, there is no formalized way for a mediation agreement to be recognized in the manner that an arbitration award is, unless parties choose to go down the route of conciliation under the (Indian) Arbitration and Conciliation Act, 1996 where a conciliation award is recognized as an arbitration award (under Section 74) or if the parties pass a consent award (under Section 30). The new law that will be introduced solves this problem (as we discuss later in this piece). India badly needs a culture of mediation. Perhaps a new law will introduce that culture.

The Mediation Bill, 2021 (Bill) was tabled before the Rajya Sabha on December 20, 2021. Following its introduction before the Rajya Sabha, the Bill got referred to the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (Standing Committee). The Standing Committee after reviewing the Bill, submitted its report on July 13, 2022 (Standing Committee Report) consisting of its recommendations. Based on these recommendations, the union cabinet, on July 19, 2023, gave a nod to the Bill with certain important amendments. The Rajya Sabha, on August 1, 2023 and the Lok Sabha on August 7, 2023, passed the Bill along with the cabinet’s amendments. Finally, the Bill received the President’s assent and was notified in the official Gazette on September 15, 2023, as the Mediation Act, 2023 (Act).

This 2-part series analyses various important aspects of the Act. Part I of the article deals with the underlying objective behind enforcement of the Act; the scope of applicability of the Act; how does the Act define the term “Mediation” and the significance of such a definition given under the Act; and lastly, Part II attempts an understanding the meaning of a “mediation agreement” as provided under the Act.

II.     Scheme of the Mediation Act, 2023

A.        What does the Act Seeks to Achieve?

The Act, under Section 5, seeks to give formal recognition to mediation in India by laying down a framework for the conduct of mediation in India and in doing so promote mediation as a default pre-cursor to any civil and / or commercial litigation in India. Section 27 of the Act seeks to give formal recognition to settlements arrived at because of a successful mediation process, by providing for its enforceability as a decree of an Indian court. The Act, under Section 31, also intends to institutionalize mediation by establishing a central body called the “Mediation Council of India”. The Act, under Section 30, gives formal recognition to online mediations, thereby attempting to keep pace with the technological advancements in this arena of dispute settlement.

B.        What is the Scope of Applicability of the Act?

As per Section 1 of the Act, it applies to both domestic and international mediations provided they are conducted within the territorial boundaries of India. Section 2 of the Act, states that all mediations which are conducted in India, shall be regulated by the provisions of the Act where all the  parties to the mediation are Indian, or there exists a mediation agreement between the parties providing for the mediation to be conducted in accordance with the provisions of the Act, or the mediation is an international mediation having at least one of the parties to the said mediation being a foreign national.

This essentially means that there is no recognition of cross-border mediation settlement agreements, i.e., a mediation settlement agreement arrived at because of a mediation conducted outside India. India is a signatory to the Singapore Convention on Mediation (from August 7, 2019), however, has not ratified it. Therefore, unlike the New York Convention, which has been adopted under the Arbitration and Conciliation Act, 1996, for recognition of foreign arbitral awards, the Singapore Convention on Mediation has not been adopted into the Act.

The applicability of the Act is restricted by Section 2(iv), which exempts the Act’s applicability to such non-commercial disputes where the Central or any of the State Governments (including agencies, public bodies, corporations etc. controlled by such government(s)) is a party. The Act incorporates the definition of the term “commercial” from the Commercial Courts Act 2015, s 2(1)(c). The government being exempt from the applicability of the Act can continue to litigate if the disputes are non-commercial. This is a feature of the Act which requires reconsideration given that the government is the largest litigant in the country, and it would help to have even non-commercial matters mediated. This is discussed in more detail later in the article.

C.        What does the term “Mediation” Mean According to the Act?

As per Section 2(h) of the Act, “mediation” is defined to be a process which “includes a process, whether referred to by the expression mediation, pre-litigation mediation, online mediation, community mediation, conciliation or an expression of similar import, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person referred to as mediator, who does not have the authority to impose a settlement upon the parties to the dispute;”.

The following are some important takeaways from the above definition:

• Part III of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) which lays down the provisions for regulating ‘conciliation’ will become redundant since this part of the law collapses into this Act;
• The definition is extremely broad and covers for example, technological advances in the form of online mediation. ODR centers can now offer mediation with arbitration; and
• Considering that the definition is an inclusive / liberal definition, it would mean that so long as even an implied intent to mediate can be seen from a dispute resolution clause, parties can opt for or be referred to mediation.

D.        What Qualifies as a “Mediation Agreement” Under the Act?

The Act requires that a mediation agreement to be recognized as such shall be in writing (either as an independent agreement or as a clause in a contract) for the purpose of submitting the dispute between the parties concerned to be resolved through mediation. What is interesting to note in this context is the ambit of what can be an “agreement in writing”. According to Section 4(3), a mediation agreement shall be deemed to be in writing if it is recorded in any of the following ways:

• a document signed between the parties;
• physical and / or electronic correspondence exchanged between the parties; and
• a pleading in any suit or any other proceeding wherein one of the parties has alleged the existence of a mediation agreement between the parties and the same has not been denied by the other party / parties involved.

A perusal of the above would further indicate the intent of the legislature to give the broadest possible application to of the Act to prospective litigation in the country. While mediation is a voluntary dispute resolution mechanism, considering the aforesaid legislative intent, it can be said that the courts on seeing a mediation clause can recommend the parties to attempt mediating their dispute and even during the proceeding, in accordance with Section 7 of the Act, Courts can refer parties to mediation.

While the Act provides for a wide ambit for what may be a valid mediation agreement, it will be interesting to see the effect of the aforesaid provision on the interpretation of multi-tier arbitration clauses where mediation is prescribed as a pre-arbitration procedure. While the parties to such an arbitration clause, may rely on the provisions of the Act, especially Section 4, to contest the initiation of an arbitration, another important question of law that may come before the Indian courts would be in relation to the power of the said parties to approach the courts to seek interim measures of protection under Section 9 of the Arbitration Act prior to mediation taking place.

Given the overall voluntary nature of the mediation process, which is clear from an overall review of the Act, the courts in the country are likely to conclude that a party would not be estopped from approaching the court under Section 9 of the Arbitration Act at a pre-arbitration stage. However, considering Section 7 of the Act, the courts may recommend mediation to the parties when it appears to the court that the dispute could be settled through mediation, rather than going into an adversarial process.

The next part of this 2-part series investigates some other interesting aspects of the Act. Part-II, inter alia, talks about the concept of “pre-litigation mediation”; the process for appointing a mediator; time limits to complete a mediation; enforcement and challenge to a mediation settlement agreement; provisions attempting to institutionalize mediation; online mediation and confidentiality in a mediation.

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Michael’s message

“It has to be said that while the 1976 Pound Conference undoubtedly got things moving in terms of the development of mediation and other forms of early dispute resolution, it had its unfortunate aspects.  It was a conference of jurists, educators and practitioners – with not a single user being heard or apparently consulted.  Not surprisingly, the core solution it tabled lay firmly within the framework of established legal process – the multi-door courthouse.  Any process that was not adjudicative was labelled “alternative”.  The user perspective perceives the courthouse and the tribunal as the alternative method to resolve disputes.  So this extremely unfortunate characterisation of anything non-adjudicatorial as “alternative” stuck – and stuck to this day, generating a sort of homeopathic feel to negotiation, whether assisted by a neutral or not.  More than anything else, I believe this has restrained the development of mediation over the past 35+ years.

“Negotiation within the framework of an extant court or tribunal proceeding tends to be led by lawyers.  When outside counsel negotiate, they tend, as Professor Marc Galanter observed, to “litigotiate” – i.e. their solutions and options tend to be confined to the positional issues and trade-offs, or at least to the litigation framework – i.e. their comfort zone.  Mediation breaks those conventional positional chains and gets the parties to consider their needs rather than just their expressed wants, so the option field expands way beyond the litigation framework.  Moreover, mediation should be seen as a way to avoid and prevent disputes from crystallising, and not just resolving them once in the court or tribunal docket.  Lawyers favour mediation – but tend to do so only at the tail end of the standard litigious process (by when they have earned the vast bulk of their fees), not at the start of a dispute, when ADR is perceived by them as an acronym for Alarming Drop in Revenue.  A telling statistic is that, of 76 in-house counsel polled last year, almost half felt that outside counsel were an impediment to mediation, and only 15% felt that they were not (with the remainder unsure or ambivalent).

“There seems to be confusion over whether arbitration is ADR.  I don’t think it is.  Arbitration is a standard, conventional dispute resolution process that sits alongside litigation.  I define ADR (if I have to, because I very much dislike the term) as any non-binding dispute resolution process.

“Lawyers react to the expressed needs of the market.  Users’ needs have to be expressed in terms of hard, incontrovertible data before they will listen.  Only then will private practitioners adapt and mediation will cease being reliant on court-annexed schemes and start to become the spontaneous, natural and prime way to resolve conflicts and shake off the unfortunate “alternative” legacy of the 1976 Pound Conference.  That’s the intention behind the 2015 Pound – which, by the way, needs to be global.”

Michael’s contributions

Michael’s last comment was a reference to what started as a gathering that he arranged on October 29, 2014, at the Guildhall in London, of users of mediation, lawyers, mediators, academics and others involved in dispute resolution processes, to answer questions aimed at finding out to what extent the various participants held common or different views. At Michael’s instigation, the Guildhall meeting led, in turn, to the 2016-2017 Global Pound Conference, in which a similar process was repeated in 28 venues across 24 countries, resulting in actionable data contained in a series of reports. A summary of the overall outcome of the series, identifying global data trends and regional differences is here.

Michael was a co-founder of the International Mediation Institute and also conceived and was the driving force behind the numerous contributions to  Seven Keys to Unlock Mediation’s Golden Age, a series of 25 peer reviewed articles accompanied by videos with the authors.

Thanks to Michael’s enormous contributions to the development of mediation worldwide, the situation has improved (a bit) since 2014 but there’s still more to be done for mediation to become the “spontaneous, natural and prime way to resolve conflicts”.

Let’s keep trying.

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