Why the change, and what does it mean for lawyer-mediators and the legal profession?

The Mediator Standards Board

Australia’s Mediator Standards Board (MSB) was first established with financial support from the Federal Government, primarily due to concerns that the unregulated and diverse nature of mediation and other dispute resolution practices in Australia created a risk to consumers.

The inaugural members of the MSB were charged with establishing training and accreditation standards for mediators in Australia and did so by adopting the internationally accepted facilitative model as its foundation.

Since the birth of NMAS, more than 4,000 mediators have become accredited under that system, and it is now common for public and private bodies, tribunals, and courts to require their mediators to be nationally accredited.

The facilitative model and the “blended process”

A majority of those accredited under NMAS commit to delivering the facilitative model of mediation, by which they are expected to encourage parties to communicate directly (where appropriate), identify, clarify and explore their respective interests, exchange information, consider alternatives, generate options, negotiate and make their own decisions. Importantly, the mediator performs a non-advisory and non-determinative role.

NMAS also offers accreditation to deliver a “blended process”, such as evaluative mediation or conciliation, which can involve the provision of advice subject to the mediator:

• seeking and obtaining express consent from parties to use the blended process;
• holding current knowledge and experience, and professional registration, membership or employment within the professional area in which advice is given;
• holding current professional indemnity insurance or statutory immunity; and
• respecting the fundamental principle of self-determination.

The primary reason for these requirements is consumer protection where users of mediation and dispute resolution services should understand the role of their mediator and the process they are embarking upon, and where professionals should only provide advice in areas in which they hold the requisite knowledge, experience, role and insurances.

National Consultation

In 2019, the MSB commenced a review of NMAS by engaging an independent contractor, Resolution Resources, to conduct a data driven analysis of the practice of mediation in Australia. This process involved extensive engagement with all MSB members (including no less than 8 bar associations and law societies), State and Commonwealth courts and tribunals, universities and training organisations, accredited and non-accredited mediators, and various other stakeholders across the dispute resolution community.

Resolution Resources delivered its final report in the second half of 2022 which included a finding that, whilst the facilitative model of mediation remains a strong foundation, many accredited and non-accredited mediators step outside of that model in their day-to-day practice.

This can be explained by various factors, including lawyer mediators delivering advisory and evaluative (and at times determinative) processes, as well as diversity of practice in the delivery of dispute resolution services.

Although a large percentage of NMAS accredited mediators are legally trained and qualified, the practice of mediation stretches far beyond the legal profession, including in areas such as workplace, elder mediation, restorative justice, indigenous peacebuilding, and the list goes on.

The MSB seeks to deliver a system and set of standards that serves all fields of practice.

AMDRAS: the Evolution of Mediator Accreditation

The MSB has spent the past 12-18 months developing a revised set of national standards recognising this key finding whilst seeking to stay true to the original objects of the MSB; that is, promoting and maintaining consistent and quality mediation training, accreditation and practice, primarily for reasons of consumer protection.

In October of last year, a draft of the revised standards was published. What followed was an extensive consultation process, including a series of online presentations and Q&A sessions with MSB directors. The MSB also received and has since reviewed dozens of written responses from various stakeholders and dispute resolution practitioners. Feedback received has led to amendments to the earlier draft, with the final version due over coming months.

The new system will:

• Retain the facilitative model as the foundation for all mediator training and accreditation.
• Permit accredited mediators to deliver advisory and evaluative processes (where appropriate).
• Allow mediators to become accredited through alternative pathways, recognising there are some fields where aspects of the facilitative model may be inappropriate or unworkable (examples being restorative justice and indigenous peacebuilding).
• Introduce for the first time areas of specialisation – here the MSB is expecting sectors of the dispute resolution community to apply to accredit dispute resolution specialists that will involve training additional and supplementary to the core AMDRAS training. Without being pre-emptive, the MSB has expressed interest in engaging with those practicing conciliation, family dispute resolution practitioners, elder mediators, restorative justice practitioners and indigenous peacebuilders.
• Also introduce a “Certificate of Training” for those who wish to complete mediation training with no immediate intention to become accredited and practicing mediators.

New Levels of Accreditation

With the new AMDRAS system, levels of accreditation will be introduced, namely Accredited Mediator, Advanced Mediator and Leading Mediator, each with different practice and CPD requirements. The Accredited and Advanced levels have been introduced to differentiate between those recently accredited and those with greater

experience. These levels have also been introduced recognising that it can be difficult for some mediators to secure work in the early stages of their mediation career, and that others choose to practice mediation part-time or periodically. Research revealed that users of mediation and dispute resolution services would benefit from some indication of experience when engaging their mediator.

The category of Leading Mediator will be available to those who have significant experience and are proven contributors to mediation and dispute resolution practice in Australia. It is envisaged that Leading Mediators will perform a leadership role, including by mentoring and supervising less experienced mediators and practitioners, this being a further need identified in the recent NMAS Review.

Other changes

AMDRAS also provides greater detail and guidance regarding training, continuing professional development, complaints handling, and ethics, all with a view to improving quality and consistency of mediator training, accreditation and practice across Australia. This detail and guidance responds to calls from training and accreditation bodies for more support in these areas. It will also provide more guidance for those who want to take a “break” from their practice including through the introduction of a non-practising certificate.

There will also be a modest increase in training hours (from 38 to 45), the introduction of a written assessment for core AMDRAS training, and a slight increase in the time allowed for simulated assessments (1.5 to 2 hours) to respond to feedback from the training community that many students struggle to complete all stages of the mediation process during their training and accreditation.

Transitional provisions

Prior to the release of the new standards, the MSB will be publishing transitional provisions, recognising that the transition from NMAS to AMDRAS will likely impact resourcing and requirements of all organisations involved in mediator training and accreditation. The Board also recognises that practitioners that are currently accredited, and those that have commenced or completed NMAS training, will be keen to understand the impact on their current and future status.

The transitional provisions will provide all training and accreditation bodies with a favourable period (of no less than 12 months) to transition from NMAS to AMDRAS, and be accompanied by guidance notes for practitioners, and training organisations to assist with the transition.

The impact on lawyers and lawyer-mediators?

The MSB considers the impact of the new standards on lawyers and lawyer-mediators to be largely positive. Whilst there is a modest increase in training and accreditation requirements, AMDRAS seeks to provide opportunities for practitioners to deliver

mediation and dispute resolution services best suited to their area of practice, with greater clarity and protections. AMDRAS also seeks to recognise different areas of expertise and experience by introducing specialisations and levels of accreditation.

By introducing a Certificate of Training, the AMDRAS framework creates an opportunity for lawyers who participate in mediation and dispute resolution processes to acquire knowledge and skills that will benefit their day-to-day practice.

Next Steps

The culmination of the review process and introduction of AMDRAS represents an important evolution of mediator training and accreditation in the Australian dispute resolution landscape. The Mediator Standards Board sees the transition to AMDRAS as a logical next step to support the increasing use of mediation within the legal system in Australia.

The Mediator Standards Board is the peak body for mediator training and accreditation in Australia. Overseeing the development and maintenance of the framework and standards for professional training and accreditation, the MSB seeks to ensure quality, consistency, and best practice in the delivery of mediation and dispute resolution services across Australia. Visit www.msb.org.au to learn more.