The Quiet Rise of Mediation

As a legal professional - lawyer or barrister - you will have observed the ongoing change in the litigation and tribunal landscape with the requirement that genuine pre- and post- action steps be taken to resolve matters, commonly by the use of mediation.

State and Commonwealth legislation and regulatory bodies regularly make provision for mediation before the commencement of legal action, with most Courts and tribunals ordering that mediation take place before actions are allowed to proceed.

Similarly, it is now common for rules of incorporation and contracts to include dispute resolution provisions that require the use of mediation.

It is also increasingly common for legislative and non-legislative provisions to require the use of an ‘Accredited Mediator’, with mediator training and accreditation a prerequisite for selection on most Court and government mediator panels.

The Australian Mediator Standards Board (MSB), being the body that first established and continues to oversee the National Mediator Accreditation System (NMAS), has recently conducted a review of its training and accreditation framework, culminating in the release of revised draft standards.

The revised standards, currently referred to as the Australian Mediator and Dispute Resolution Accreditation System (AMDRAS), seek to improve the quality and consistency of mediation training and accreditation, establish levels of mediation accreditation for the first time, and provide scope for the introduction of specialist practitioners (such as conciliators and family dispute resolution practitioners).

This, along with the MSB’s continued promotion of mediator accreditation within and outside of the legal profession, is expected to cause consumers and those referring matters to mediation to ask the question, “Are you accredited?”.

What are the Risks for Legal Professionals using Unqualified Mediators?

The revised draft standards are based on research performed by and on behalf of the MSB between 2020 and 2022, involving 800-plus contributors from across the Australian dispute resolution community. This research identified four practice domains and 25 core professional attributes that signify best practice that all mediators will be required to demonstrate before becoming accredited.

Once accredited, mediators must maintain appropriate levels of insurance, remain a member of an accreditation body with an approved complaints handling policy, and demonstrate minimum hours of meditation practice and CPD each two-year cycle.

Practitioners recommending and engaging unaccredited mediators take an unnecessary risk that the person they are putting forward does not come with these assurances and will not deliver best practice.

With the revised framework extending recognition of ‘Advanced’ and ‘Leading’ mediators, in addition to specialisations, it is expected that the market will increasingly become aware of these quality indicators and mediators will be chosen accordingly.

Referrers will increasingly need to be able to answer why they’ve referred a client to someone who is not professionally recognised, or ‘unaccredited’.

Would you allow a builder without a builder's license to build your home?

Knowing What to Expect from a Mediator

Most have experienced mediations where the “mediator” or “conciliator” considers their role to be that of a mere gate keeper. Once they have the parties in the room, they think their job is done, leaving the heavy lifting to the lawyers and barristers. If and when these mediators become more involved, it is often to facilitate a positional and purely commercial bargaining process, with little to no engagement with or between parties.

That is not the standard expected of an Accredited Mediator.

Mediators should be expected to facilitate discussions between parties and their advisors, with a view to identifying the source of conflict, what is informing the parties’ decision making, and the interests and objectives of the parties. The introduction of legal argument, entitlements and risk is often important, but should be delivered appropriately and balanced with interests-based discussions and solutions.

When delivered in line with best practice, the mediation process encourages transparency in what is a confidential and without prejudice setting, and allows parties to make informed decisions. It also opens up the prospect of outcomes that are mutually acceptable to the parties, including outcomes that may not otherwise be available via traditional systems.

To achieve this, mediators delivering best practice will engage with, and where possible facilitate engagement between, parties. Ideally, this is done with the support of the parties’ advisors, requiring both the mediator and those representing parties to understand and respect the mediation process.

Mediation advocacy skills are far different to those required in the Court room, and with mediations increasing year on year (and Court appearances reducing at a similar or faster rate), practitioners will be well served in completing mediation training, to understand both the process in greater depth, and what to expect of mediators in a best practice scenario.

For this reason, the revised standards also introduce a Certificate of Training for those who wish to complete mediation training but not become accredited and conduct mediations themselves.

Knowing if a Mediator is Accredited

The Mediator Standards Board maintains a current register of all Accredited Mediators. Before engaging or recommending a mediator check the register to ensure you are putting someone forward that is committed to best practice.

Visit https://msb.org.au/mediators to check the register.

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Mediator Standards Board is the peak body for Accredited Mediators in Australia. The MSB plays a crucial role in supporting and promoting high standards within the mediation community and enhance the quality of mediation services in Australia.