The popularity of alternative dispute resolution (ADR) looks set to increase as excessive and ever-increasing court backlogs continue to delay access to justice. Most Australian courts already have statutory powers to refer cases to mediation and some regulations make the process mandatory.
But how can anyone involved in mediation – or in mandating the process – be confident that a mediator will bring the highest level of skills and experience to the table?
The process of mediation brings two or more disputing parties together and invites an independent person to facilitate discussions and help identify options and solutions that meet the needs and interests of the parties. Government bodies frequently report that 80 + per cent of cases referred to mediation are resolved whether before or after formal court proceedings have been commenced.
The challenge, however, is that anyone can call themselves a mediator in what remains a self-regulated industry and profession. Only those who are accredited under the National Mediator Accreditation System (NMAS) are trained to a recognised level of industry standards.
“Not all mediators are the same,” says Bianca Keys, Chair of the Mediator Standards Board (Oct 2019 – Oct 2021), which supports and promotes excellence in mediator standards and accreditation.
“We know that ADR processes are already the norm among government personnel involved in dispute resolution policy development and legislation, but the process requires a sound practitioner to support it. That’s why accreditation is so important. We need to ensure we’re requiring practitioners to have this level of training wherever mediation is referred to in documentation”
Independence, competence and consumer protection
There are currently more than 3,700 accredited mediators across Australia and 39 Recognised Mediator Accreditation Bodies (RMAB) registered under the NMAS.
NMAS accreditation is well regarded by regulators and practitioners alike. It’s also a prerequisite for inclusion on most State and Commonwealth mediation panels and across most industry bodies and regulators.
NMAS-accredited mediators must undergo a thorough training program, which blends theory with practice.
“They need to demonstrate that they can enter the marketplace with the knowledge of how to read the room and respond accordingly,” says Keys. “There are also ethical principles to uphold about making people feel safe and confident in the mediator and the process. These principles include impartiality, confidentiality and upholding a commitment to self-determination, rather than pressuring people in any way.”
Accreditation requires intensive training, ongoing practice and education, and independent assessment; Accredited mediators must also hold professional indemnity insurance that specifically covers their work as a mediator.
“Before anyone can apply to be accredited as a mediator, they need to be able to demonstrate good character,” says Keys.
“Once they’re accredited, their accrediting body becomes their complaints handling body. This all provides consumers peace of mind in knowing that their accredited mediator is competent, that they’re adequately insured and that there’s an independent complaints mechanism in place, should they need to use it.”
Keys adds that accredited mediators are also required to maintain a high level of skill and experience.
“This is a really important aspect of the accreditation system,” she says. “In any two-year period, thresholds must be met for experience and for continued professional development.
“The aim is to ensure currency of knowledge, skills and experience so that people are not met with a mediator who is out of practice.”
Mediation as a mandatory process?
Mediation is one of the most accepted forms of ADR. In some cases, it’s compulsory.
In July this year, for instance, the NSW Government enacted the Retail and Other Commercial Leases (COVID-19) Regulation 2021, which requires mandatory mediation to settle disputes between commercial property owners and eligible tenants. This legislation is mirrored across other States and jurisdictions and has been a vital tool in reducing the need for Court intervention for lessors and lessees already facing great uncertainty and stress as a result of the pandemic.
“I’d be hesitant to say that mediation should be mandated across the board, because I think there’s a lot of power in people making the choice to mediate,” says Keys. “But, having said that, I can see a lot of good that’s come from those areas where mandatory mediation has been introduced.
“It’s changed how people approach disputes in a very positive way,” adds Keys. “In our current times, where there is such uncertainty, mediation can help people to have important conversations and to feel supported by someone who assists them to think through the problem and the possibilities. The ability to reduce the stress of this uncertainty and actually achieve results is extremely beneficial.”
Keys notes that mediation is increasingly the norm as lawmakers and policy developers seek to improve access and efficiency in our legal systems.
“When government is helping write industry codes of conduct, regulations, legislation, or setting guidelines for best practise in the drafting of contracts, any reference to mediation should be accompanied by the word ‘accredited’. That’s because accreditation ensures quality, expertise, and consumer protection.”
For more on how accredited mediators bring credibility and consumer protection to the ADR process, contact the Mediator Standards Board at msb.org.au.