different brains shows different ways of thinking


Research into neurodiversity is on the rise. As the concept makes its way into the zeitgeist, it’s time for us to start thinking about the many implications for mediation.

By Danielle Hutchinson[1] and David Hutchinson[2]

What is neurodiversity?

Neurodiversity is an overarching term that refers to the variation in people’s behaviours and traits arising out of neurodevelopmental difference. While there is still debate about what differences fall under this umbrella, it typically includes autism spectrum disorder[3][4] (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyscalculia, dyspraxia and Tourette’s syndrome[5].

Within the current understanding, neurodiversity differs from mental Illness in that it is not about a person’s state of mental health or wellness. Instead, it is a healthy state that is simply neurologically distinct from that of ‘neurotypicals’. One of the common features of neurodiversity is that the difference between strengths and weaknesses are often magnified. For example, there may be an unusually large disparity between a person’s verbal reasoning and their working memory. While the variation is unique to each neurodiverse person, a familiar trope is that of the absent-minded professor. Diagram 1 shows common strengths and weaknesses for each condition[6].

neurodevelopmental conditions falling under the umbrella term neurodiversity

Diagram 1

Why is this important to mediators?

Research into neurodiversity is still in its early days. However, it is starting to become apparent that this disparity between finding some things extremely easy and other tasks almost impossible, can lead to confusion, frustration and misunderstanding in a range of contexts. This can be particularly so where the neurodiverse person has chosen not to share their diagnosis or is unaware of their neurodiversity.

Unfortunately, recent research into neurodiversity has shown that it is not uncommon for “employers, work coaches and authority figures to conclude that the individual is ‘not trying’, when undertaking particular tasks. Inconsistent performance is mistaken for a bad attitude or poor motivation, which leads to discrimination and perceptions of unfairness on behalf of the individual.”[7]

Given the potential for conflict to arise in such situations, and current estimates that as much as 30% of the population may have some form of be neurodiversity[8], it seems inevitable that as mediators we will need to consider the different ways that neurodiverse people make meaning of their interactions with others. More importantly, if we are to ensure that our practices are truly inclusive, we must start to consider the ways in which our practices may be premised on neurotypical assumptions.

For example, the following table outlines a few differences common to ASD and/or ADHD that may be misinterpreted as the neurodiverse person being deliberately difficult or as demonstrating traits of a high conflict personality.[9]

Traits that may impact on traditional mediation techniques
  • Difficulty experiencing, identifying and expressing emotions
  • Challenges with introspection, observing own mental and emotional processes, and/or identifying and responding to emotions in others
  • May struggle to communicate emotions to others
Black and white thinking
  • Polarised thinking patterns e.g. an argument or lack of agreement means the end of a friendship
  • Difficulty picking up on nuances and non-verbal gestures
  • Literal interpretation of conversations or agreements
Cognitive rigidity
  • Strong preference for rules and routines
  • Difficulty changing mental states or thinking about things in a different way
Executive functioning
  • Difficulty with tasks such as planning, problem solving, organisation, time management and working memory
Impulsiveness and inhibition
  • Acting without thinking things through or accounting for potential consequences
  • Difficulty allowing others to speak uninterrupted
  • Emotional self-regulation
Rejection sensitivity
  • Extreme sensitivity to being criticised or rejected, whether real or perceived
Sensory sensitivity
  • Can manifest as hyper or hypo-sensitivity
  • Bright lights, noise or smells can be distracting or distressing and inhibit ability to engage in activities

When we consider the typical facilitative mediation, it becomes apparent that we may have unintentionally set some neurodiverse people up to fail.

Where to next?

Each of these neurodevelopmental conditions manifests uniquely in each person, hence the catchphrase, “When you have met one neurodiverse person, you have met one neurodiverse person”. As mediators, it is not our role to diagnose or make assumptions. However, it is important that our practices are inclusive and can enable the full participation of all people involved. In providing an neuroinclusive environment we can start harnessing the many strengths of neurodiverse participants to find mutually beneficial and sustainable outcomes for all parties involved.

Source: It’s time we started talking about neurodiversity in mediation by Danielle Hutchinson and David Hutchinson. Republished with permission from The Australian Dispute Resolution Research Network  The ADR Research Network is a group of Australian dispute resolution academics. Blogging & tweeting high quality, critical dispute resolution scholarship.

[1]Danielle Hutchinson is a lawyer, mediator, author and co-founder of Resolution Resources. Danielle has lived experience of neurodiversity and, in consultation with experts in the field, is investigating neuroinclusive practices in mediation.

[2] David Hutchinson is an autistic researcher and writer.

[3] Difference as opposed to disorder is now being used by some researchers in the field e.g. Fletcher-Watson & Happe (2019) and preferred by many in the ASD community

[4] The DSM-5 now includes Asperger’s Syndrome within ASD as ASD1. Even so, many people identify strongly with being an ‘Aspie’ and the term remains in use for those who wish to identify as such.

[5] First coined in 1998 by Australian sociologist, Judy Singer in research into Autism. While there is no formal definition, the term has been adopted broadly and is widely accepted as encompassing the neurodevelopmental disorders described above; see also ‘What is Neurodiversity?’ National Symposium on Neurodiversity at Syracuse University (webpage, 2011) https://neurodiversitysymposium.wordpress.com/what-is-neurodiversity/

[6] Neurodiversity, Dyslexia Scotland (webpage)  https://www.dyslexiascotland.org.uk/sites/default/files/library/Neurodiversity%20Model_SDMar16.pdf

[7] Ashley Weinberg & Nancy Doyle, Psychology at work: Improving wellbeing and productivity in the workplace (British Psychological Society, 2017) 44.

[8] ‘Neurodiversity and other conditions’, ADHD Aware (web page, 2018)  https://adhdaware.org.uk/what-is-adhd/neurodiversity-and-other-conditions/

[9] See the work of Bill Eddy and Grant Lester on high conflict personalities and the vexatious litigant.

In adopting this party-centric, data-driven approach to conceptualising the future of mediation, it increases the potential for empowering practitioners, industry groups and government to take a conscious and purposeful approach to supporting and enabling truly effective dispute resolution processes and genuine access to justice.

It was an honour to contribute to the mediate.com peer reviewed series Seven Keys to Unlock Mediation’s Golden Age. The focus of our article is the importance of using data in shaping the future of mediation. The entire series is now available as a free e-book here: SEVEN KEYS TO UNLOCK MEDIATION’S GOLDEN AGE: A WORK BY 40 AUTHORS FROM_AROUND THE WORLD . You can download the the chrome e-book extension here: free chrome epub reader

In the 2nd Key-Data: Run the Global Pound Conference (GPC) Series every 5-7 Years, we suggest that by collecting data through events like regular GPCs, the DR community will be better placed to meet the needs of the people in dispute. Most importantly, this type of data can contribute to a deeper, evidence-based understanding of parties’ perceptions of the role and effectiveness of mediation in resolving disputes, including the ways in which it may have evolved and adapted to the different contexts in which it is used.

In adopting this party-centric, data-driven approach to conceptualising the future of mediation, it increases the potential for empowering practitioners, industry groups and government to take a conscious and purposeful approach to supporting and enabling truly effective dispute resolution processes and genuine access to justice.

World-renowned mediation thought leaders Nadja Alexander, Lela Love and Michael Leathes provide an excellent starting point to the series in their article Seven Keys to Unlock Mediation’s Golden Age – The Introduction where they list the seven keys as:

  1. Leadership
  2. Data
  3. Education
  4. Profession
  5. Technology
  6. Government
  7. Usage

They also explain that each key has between two and four articles, each no more than 1,111 words in length, contributed by some 40 leading authors around the world.

We hope you enjoy reading the contributions from the around the world just as much as we did.

Mediate.com logo


A new era for commercial DR which focuses on a party-centric model of dispute resolution.

Over a period of 18 months we analysed the data from the 301 focus groups held as part of the North American leg of the Global Pound Conference Series 2016-17. 

It was a great privilege to gain insight into the inside workings of commercial dispute resolution in the United States of America and Canada. The findings have pointed towards a new era for commercial DR which focuses on a party-centric model of dispute resolution (PCDR).

This new way of thinking has been a major driver behind the development of our online dispute resolution triage platform MyDRHub.

The International Mediation Institute is releasing the suite of eight reports over January 2020. The suite includes seven local city reports and one comparative regional report as follows:

We encourage you to read these reports and let us know what you think. Some of the findings will seem obvious, but it is the first time we will have evidence to substantiate this ‘common knowledge’. Other findings are controversial and we look forward to engaging in robust discussion where rational minds differ.

Our sincerest thanks to Rosemary Howell for her recent piece, Mining Frank Sander’s Legacy – Triage And More In A Bold Australian Experiment   featuring the innovative dispute resolution triage platform developed by our very own Danielle Hutchinson.

The featured image shows Danielle at the National Mediation Conference 2019 explaining the way the platform matches the most appropriate dispute resolution process to the needs of the parties and their dispute.

We encourage anyone interested in following leading thinkers like Dr. Rosemary Howell, to head over to the Kluwer Mediation Blog.

Defining quality in dispute resolution can be a tricky process. It is particularly contentious when we consider that we are yet to reach consensus on how to define processes such as conciliation and mediation. Any attempt to define quality needs to strike a balance between being overly specific and overly general. Being too specific can result in a reductive and prescriptive checklist that limits a practitioner’s ability to respond to the needs of the parties. Being too general often results in a set of descriptors that are essentially meaningless or unhelpful to practitioners trying to reflect on or develop their practice.

One way to address this tension is to draw on existing cross-disciplinary frameworks which describe stages of development that focus less on what practitioners do and more on how or why they do it. By adopting this approach dispute resolution professionals have access to rich descriptions of practice that are flexible enough to accommodate a range of mediation models or practitioner styles.

To help practitioners start to work in this way, we developed a series of developmental scales for mediation that provide a snapshot of the knowledge, skills and attitudes as they typically develop in mediators. Feel free to use the developmental scales for mediation to get a baseline of your own knowledge, skills and attitudes. It is important to be mindful that not every mediator starts in the same place, and that development is not strictly linear. Even so, these tables can provide an indication of the typical behaviours that mediators may display at different stages of their professional development. These tables can be used as a general guide or can inform the development of quality assurance frameworks for specific dispute resolution programs or mediation models.

For example, these scales formed the basis of the Quality Assurance Frameworks (QAFs) developed by our very own Danielle Hutchinson for the Dispute Settlement Centre of Victoria (DSCV) within the Department of Justice and Community Safety Victoria (DJCS). Tailored QAFs were developed for their community mediation stream, personal safety intervention order stream, and Fast Track Mediation and Hearing (FTMH) partnership with the Victorian Civil and Administrative Tribunal (VCAT). An example of these program specific QAFs can be found here QAF examples

The DSCV QAF was designed to be a collaborative and confidential process where both an assessor and mediator complete an assessment of a live mediation. Feedback from mediators who have participated in the QAF process has been extremely positive. Typically mediators say that they genuinely appreciate the opportunity to actively reflect on their practice and set evidence-based, targeted professional learning goals that they can monitor over time. The also say that the QAF serves as an instructional framework which clearly describes what quality looks like and provides insight into the steps they will need to take to improve their practice.

Whether it is a QAF or an industry-wide standards framework like the one we are currently designing as part of the review of the National Mediator Accreditation System (NMAS), this inherent instructional capacity is essential to enabling self-reflective practice and targeted professional growth across novice and expert practitioners alike. Using the evidence-based tools such as the guidelines for writing quality criteria is key to not only ensuring your QAF or professional standards are flexible and transparent, but also that they can be relied upon to inform practice in a consistent and meaningful way.

AAA ADHD ASD Dispute Resolution dyscalculia dyslexia dyspraxia Frank Sander GPC IMI Kluwer Mediation Mediation skills multi-door courthouse MyDRHub Neurodiversity Neuroinclusive party-centric Quality Rosemary Howell Standards Torrette's syndrome Triage