As the new year approaches, Lawyers Weekly spoke with four mediators – Amber Williams, CEO of the Resolution Institute; Michael Mills, disputes lawyer and mediator at Solve Resolve; Nicole Davidson, principal at Nicole Davidson Negotiation; and Steve Lancken, managing director at Negocio Resolutions – who discussed the emerging trends poised to reshape the mediation landscape in the year ahead.

The transition from NMAS to AMDRAS

For Williams, one of the most significant shifts in the Australian mediation landscape is the transition from the National Mediator Accreditation System (NMAS) to the Australian Mediator and Dispute Resolution Accreditation Standards (AMDRAS).

This change, which is set to take full effect in 2025, introduces several key developments, including the introduction of tiered accreditation levels and the formalisation of specialisation within mediation practice.

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Under the revised tiered accreditation levels, Williams explained that “mediators can now apply for three distinct accreditation levels (accredited mediator, advanced mediator, and leading mediator) to reflect their experiences”.

Williams noted that these changes will have “notable impacts” on the Australian mediation sector, particularly by offering “clearer pathways to professional growth” and advancement for mediators.

However, the implementation of tiered accreditation is not without its challenges. Williams pointed out that it will likely lead to a “tiered pricing structure” within the industry, with advanced and leading mediators potentially commanding higher fees due to their additional training and experience.

She highlighted that this could be “particularly impactful” within the commercial mediation sector, where complex cases often require “higher levels of expertise”.

Moreover, Williams suggested that introducing more clearly defined accreditation levels is expected to intensify competition among mediators, prompting them to “focus on continuous learning, quality service delivery and innovation in their practice”.

In addition to focusing on accreditation, Williams explained that AMDRAS is poised to “elevate professionalism, encourage areas of specialisation, and has the potential to boost both competition and service quality within Australia’s mediation field”.

She emphasised that this shift offers substantial benefits for mediators, including clearer “pathways for career development and the chance to provide more tailored services”.

For clients, Williams believes the changes will be equally advantageous, as the new framework “creates a clearer, more diverse selection of options, enhancing transparency and choice within the industry”.

The rise of online and hybrid mediation models

Mills identified one of the most notable shifts in the mediation landscape is the rapid rise of online mediation.

While online mediation gained significant traction during the pandemic, Mills explained that it has continued to grow in popularity as parties increasingly seek more efficient and accessible dispute-resolution methods.

“Post a COVID abatement, there is an uptick in online mediations, as parties look for an efficient and quick means to resolve their disputes,” Mills said.

He also highlighted that online mediation has proven especially beneficial for businesses and individuals, providing a practical solution to mitigate the delays and costs often associated with more formal legal proceedings.

“The concerns and cost of higher interest rates, business and living expenses [have] also seen an increase in the number of mediations [that] involve business hardship.

“Mediation, with its emphasis on a quick, efficient and empathetic approach to dispute issues and resolution, seems to be proving increasingly attractive for business disputes,” Mills said.

Davidson echoed these views, observing that the continued rise of online mediation in the coming year is largely driven by the advantages it offers for individuals involved in more minor disputes.

“Online mediation continues to be a part of the mediation landscape. With the benefits of reduced costs for travel and room hire, particularly in smaller disputes, this will be an ongoing focus,” Davidson said.

To effectively prepare for this shift, Davidson emphasised that mediators must be well-versed and proficient with the technology that supports online mediation to ensure that the process remains both efficient and secure.

“Mediators need to be fully across the technology to offer a seamless experience for clients. This not only means using video conferencing effectively but goes further to easy document sharing and digital signing of documents,” Davidson said.

Mills also noted the growing interest in hybrid models despite resolution is a trend that mediators will encounter in the upcoming year.

“At the same time, hybrid models of alternative dispute resolution are also likely to grow in their use. For example, med/arb (combined process of mediation and arbitration) early neutral evaluation, conciliation, expert determination and the like,” Mills said.

“All of this means for mediators, seasoned and new alike, that 2025 is likely to bring a growing and probably increasingly sophisticated demand for ADR services.”

Demanding more from mediators

Davidson, recipient of the Mediator/Arbitrator of the Year award at the 2022 Lawyers Weekly Australian Law Awards, identified a key emerging trend for mediators in the coming years: the growing demand for them to expand their roles beyond traditional facilitation.

“Practitioners are starting to realise that they need to demand more from their mediators. It is not enough that the mediator runs a quick joint session and then shuttles offers between rooms,” Davidson said.

Davidson explained that mediators are increasingly expected to take a more active role in the negotiation process, contributing to more substantial value and helping to achieve lasting and impactful resolutions.

“The mediator needs to be adding value by getting involved in the negotiations in an active way. This means reality testing not just the legal positions but also the commercial outcomes,” Davidson said.

Additionally, Davidson stressed that this approach necessitates mediators “putting the client into the mediation as an active participant rather than a quiet observer”.

The rise of a transactional mindset

Lancken, recipient of the Mediator/Arbitrator of the Year award at the 2023 Lawyers Weekly Australian Law Awards, identified a key emerging trend in the mediation landscape: the growing prevalence of a “transactional mindset” among lawyers approaching mediation.

Lancken revealed that lawyers increasingly focus “on the money” early in the mediation process, often overlooking other critical aspects of a dispute, such as underlying “relationships and third-party impact”.

He added: “As Groucho said, however, ‘the disputes is never about what the dispute is about’.”

The emergence of early mediation and specialisation

Another key trend identified by Lancken is the growing frequency of mediation taking place before pleadings are formally closed.

He explained that this shift is primarily driven by the escalating litigation costs, prompting parties to seek more expedient and cost-effective dispute resolution methods.

“As litigation costs escalate, there is an urgency to resolve lower-value disputes early. I am seeing more mediations before pleadings are closed. And sometimes, lawyers are not invited to early mediation,” Lancken said.

Additionally, Lancken highlighted that another emerging trend that mediators should be mindful of is the substantial expansion of the mediator pool over recent years, which now enables clients to select mediators with specialised expertise tailored to the specific nature of their dispute.

“It is possible to find a mediator with just about every subject matter expertise such as construction, insurance, insolvency, intellectual property, family or property and estates,” Lancken said.

The court’s involvement in mediation

Another notable trend that Davidson revealed is the growing involvement of courts in the mediation process by “stepping into the role of mediator either through the registrars or judges”.

However, she noted that while this approach offers a cost-effective alternative for clients, it also presents challenges if it demands significant time and attention from them, potentially diverting focus from other essential priorities.

“While this may often be a cost saving to the clients compared with private mediation, given the backlog of cases, I wonder whether courts would be better off focusing on the matters that need to proceed to trial,” Davidson said.