With mediation well and truly embedded in Australia’s legal landscape, is mandatory accreditation the next step for Australian mediators?
Mediation is now well and truly embedded in the legal landscape, with the vast majority of cases now settled out of court. However, the efficacy of the process may be undermined without a mandatory requirement for mediators to be accredited, including those mediators with a legal background.
If anyone can call themselves a mediator, what is the benchmark for best practice? What are the systems and standards that govern its success?
These questions would be resolved through mandatory accreditation for all mediators. Currently, only those who are accredited under the under the National Mediator Accreditation System (NMAS) are trained to recognised industry standards.
“We want the market to demand that mediators be accredited,” says Christopher Boyle, former Registrar of the Supreme Court of Western Australia, and current Chair of the Mediator Standards Board (MSB), which supports and promotes excellence in mediator standards and accreditation.
“Like any system of professional registration, it provides an assurance that the person has the appropriate skills and training, and that their approach is underpinned by a disciplinary system and adequate insurance. Currently, this is not a requirement for mediators, and we think it is a cause for concern.”
The value of accreditation
There are more than 3,700 accredited mediators across Australia and 39 Recognised Mediator Accreditation Bodies (RMAB) registered under the NMAS.
NMAS-accredited mediators must undergo a thorough training program, which requires training providers to blend theory with practice, and independent assessment before becoming accredited.
Stephen Dickinson, founder of South Australian-based ANSR. Dispute Resolution and MSB board member, explains that training for NMAS accreditation follows an internationally recognised process.
“There's an assumption that mediator training and accreditation focuses on soft skills, such as active listening, empathy and reframing,” he says. “Of course, those skills are very important for mediators, but the training focuses much more on the mediation process. This includes what is known as the facilitative model, which encourages parties to engage in discussions about their interests, their needs, their objectives and their grievances, before focusing on legal and non-legal solutions. This is a proven process that has been developed over many years, is embraced internationally, and is the model that NMAS training and accreditation is based upon.”
Dickinson adds that there can be challenges for former lawyers and decision makers who conduct mediations without completing training and accreditation.
“As lawyers, we are trained to come up with legal solutions for our clients – what legal principles and relief apply to a particular set of facts and circumstances,” he says. “When lawyers come to the table as mediators without accreditation and appropriate training, they naturally focus on solutions, but that should be the second stage of the process, not the first. Focussing on legal solutions from the outset disregards the primary principles and purpose of mediation.”
Mediation in the mainstream
Accreditation requires independent assessment and accredited mediators must have professional indemnity insurance that specifically covers their work as a mediator. Once a mediator is accredited, their accrediting body also becomes their complaints handling body.
Accredited mediators are also required to maintain a high level of skill and experience, which includes meeting thresholds for continued professional development every two years.
“Mediation is becoming the norm,” says Boyle. “Most disputes are in fact settled one way or another by agreement. For example, in the Supreme Court of Western Australia, where I've got a lot of experience, the trial rate of civil actions is somewhere around 3 per cent. That means 97 per cent of actions are resolved by a means other than having a Jjudge decide who's right and who's wrong. Large corporations and other institutions increasingly recognise that litigation is not a cost-effective way of solving disputes and many commercial agreements now provide dispute resolution clauses, which often call for mediation.”
Boyle adds that the litigation process assumes that a dispute can't be settled or that agreement can't be reached without determination by a court.
“The fact is that with the right framework, parties can reach an agreement about how to settle a dispute without agreeing on any of the matters in dispute,” he says. “The subject matter of mediation is human conflict, and it's the understanding of human conflict and how to manage it that is at the core of the mediator’s skills.”
Dickinson stresses that mandatory accreditation would benefit mediators and lawyers alike, but most importantly those experiencing conflict and who find themselves as parties at mediation.
“As a member of the Mediator Standards Board, an organisation that encourages and promotes training and accreditation, I obviously think it should be mandatory, but this view also comes from my experience as a commercial litigator, where I've represented many parties at mediation,” he says.
“Now I conduct mediations, I realise in practice the value that accreditation brings to the process, and to outcomes.”
For more on how accredited mediators set the benchmark for ADR excellence, visit Mediator Standards Board at msb.org.au or visit our LinkedIn Profile
Article originally published in partnership with Lawyers Weekly
Published on 01 Feb, 2022