National Mediator Accreditation System

 

Draft Proposal for Public Consultation

 

The Accreditation Sub-Committee of the National Mediation Conference Pty Ltd is pleased to be able to provide this initial draft document.  The document seeks to achieve several aims, principally:

 

More information about the operation of the sub-committee and the National Mediation Conference can be found at the web site - www.mediationconference.com.au .  This website will also allow you to view the document in a variety of electronic formats and to provide feedback to the facilitator engaged by the committee.

 

Feedback will be collated considered and a further draft will be issued.  Following this a broad public consultation is to be undertaken by the facilitator (Professor Laurence Boulle) in association with members of the sub-committee.

 

The document does not represent any settled or considered view of the committee individually or collectively.

 

Scott Pettersson

For the Sub-committee

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Table of Contents

 

Part 1                           Background and Procedure

Part II                          Basic Accreditation Proposal

Part III                         Key Issues for Consideration

Part IV                         General Consultation Questions

Part V                          Survey Questions

Part VI                         Flow-Chart of Proposed National

                         Mediator Accreditation System

 

 

 

 

Part I Background and Procedure

 

There has been considerable debate in Australia over the last 15 years over issues of accreditation, training, standards, codes of conduct and professional organisations for mediators. The debate has been conducted in the literature, at conferences and consultations, within policy-advisory bodies such as NADRAC, in commission reports, and in numerous other contexts.[1]

 

This debate has occurred in the absence of any national mandatory system of mediator accreditation in Australia, and the existence of numerous individual accreditation systems. The actual appointment of mediators is often based on word of mouth ‘accreditation’ and the professional status of mediators, regardless of their formally-recognised competence in the mediation process and mediator techniques.

This document does not canvas, analyse and evaluate the well-known themes and arguments relating to accreditation issues as found in the literature, policy documents, reports and other sources. While there is an enormous diversity of views in relation to accreditation, the ‘conventional wisdom’ is that there should be some movement towards a uniform system of mediator accreditation in Australia. This view was reflected in the decision of the Commonwealth Attorney-General’s Department to make funds available to the National Mediation Conference Pty Ltd (NMC) for the development of a proposal for a national system of Mediator Accreditation in Australia.

The proposal in this paper is therefore based on the assumption that some form of uniform mediator accreditation is appropriate at this stage of Australian mediation history. The case has been made and it is time to develop a specific proposal. Against this background the paper puts forwards various structures, processes and options for achieving the goal. It attempts to propose a system which is simple, achievable and would obtain significant support from credible players in the mediation movement.

 

Defining Accreditation

 

At its most basic level accreditation involves the formal recognition of individuals, organisations or programs in a particular profession, occupation or pursuit, in terms of specified objective standards relating to qualifications, competence and performance. Accreditation usually occurs in the context of organisational schemes designed to promote quality, standards and accountability among practitioners. It could apply to individual practitioners, to organisations which provide particular services, to specific service-providing programs, or to employers engaging practitioners in the area.

 

Accreditation involves an initial assessment against objective criteria of individuals, programs or organisations in the light of particular information and evidence.[2] It usually also involves some degree of ongoing monitoring, and the removal of accreditation (or de-accreditation) where the criteria are no longer satisfied. Accreditation systems are often reinforced in the promotion of quality, standards and ethics by practice requirements relating to codes of conduct, service delivery, compliance mechanisms and complaints-handling systems.

 

Nature of Consultation Process

The facilitator was engaged by an ad hoc committee appointed by the National Mediation Conference Pty Ltd. The NMC selected a broadly-based committee to appoint a facilitator for this undertaking, to oversee the facilitation process, and to report back to the Attorney-General’s Department. The committee comprises Helen Marks, Mary Walker, Warwick Soden, Scott Petterson, Sandra Boyle, Robert Crick, Franca Petrone, Bill Field, Gordon Tippett, Salli Browning and Karen Dey. The committee appointed Laurence Boulle to undertake the facilitation and report back. Neither the facilitator nor the committee has any decision-making authority in relation to accreditation issues. The budget for the initiative is approved by the committee from funds granted to the NMC by the Commonwealth Attorney-General for this purpose.

The objective of the facilitation process is to obtain consensus in the mediation community about accreditation issues. Here consensus refers neither to unanimity on all issues, nor to bare majoritarianism, but to a process which allows all relevant views to be aired, which considers options and refines those options in relation to key issues, which increases understanding within the community, and which produces outcomes which are perceived as legitimate because of the participatory and transparent nature of the processes followed.

The facilitation process commenced with a literature and resource search; liaison with the committee in face-to-face meeting and through email and telephonic contacts; consultation with experts on facilitating group consensus; investigation of software options for capture and sorting of submissions; and drafting of several versions of this proposal with feedback from committee members.

Outcomes

The proposals emanating from the facilitation process will be submitted to the Attorney-General’s Department, as the funder of the initiative, and to the NMC for discussion and approval by participants at the National Mediation Conference in Hobart from 3-5 May 2006.

 

Time-table

 

Mid-November 2005: Dissemination of Draft Proposal to all sectors of the Australian mediation community.

 

Mid-November 2005 to late January 2006: First Phase of Community Consultation Process during which electronic responses to the Draft Proposal can be submitted via the website.

 

Early February 2006: Redrafting of Accreditation Proposal in light of responses received during first consultation phase.

 

Mid-to Late February 2006: Second Phase of Community Consultation Process involving Public Forums in major centres attended by facilitator for consideration, discussion and refinement of proposal.

 

March 2006: Meeting between Facilitator and Committee and Final Drafting of Accreditation Proposal.

 

Mid-March 2006: Approval of Accreditation Proposal by Committee and Submission to the Attorney-General’s Department.

 

May 2006: Consideration and Approval of Accreditation System at National Mediation Conference, Hobart.

 

 

Part II   Basic Accreditation Proposal

 

Objectives

 

The main objectives of the National Mediator Accreditation System are the creation of a practical and credible system for the uniform recognition, certification or accreditation of mediators in Australia in order to improve mediator knowledge, skills and ethical standards, to promote quality of mediation practice, to serve and protect the needs of consumers of mediation services and provide accountability where they are not met, to enable mediators to gain external recognition of their skills, and to broaden the credibility and public acceptance of mediation.

 

A further objective of the scheme is to create greater consistency across different accreditation systems by providing some commonality in educational and training standards and competency assessment. While the proposed system is not comprehensive or compulsory, it would in the short term provide some entry level consistency for new mediators who chose to participate in it. This implies support by existing accreditation organisations of the new system.[3]

 

 

 

 

 

 

 

Throughout this document the term ‘Accreditation’ is used to refer to the recognition of mediators in terms of the National Mediator Standard, and ‘accreditation’ is used to refer mediator recognition outside of this proposal, for example in terms of specific mediator programs, such as a community justice system.

 

 

 

 

 

 

 

 

 

 

 

 

The conventional view is reflected, inter alia, in NADRAC reports referred to in this work, in community responses to those reports, and in views expressed at the 2004 National Mediation Conference in Darwin.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

While simplicity is an admirable goal, complexity awaits at many turns.

 

 

 

 

 

 

 

Similar terms to accreditation, with their own connotations, are registration, certification and licensing. The Family Law Regulations 1984 provide for a partial licensing system in the provision for ‘approved mediators’.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Defining Factors

 

The specific features of this proposal are based on the following considerations:

 

  • The Accreditation system should be perceived as legitimate by significant numbers of individuals and groups with interests in the practice and operation of mediation, including providers of mediation services, users of mediation, funding institutions and experts in the discipline
  • The Accreditation system will initially be based on the collaborative involvement of all sectors of the mediation movement without any requirement for legislation or external regulation.
  • The Accreditation system will initially accredit individual mediators, as opposed to mediation service-providers or specific mediation programs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

It follows the guidelines of NADRAC in its Standards Paper; some accreditation systems, such as that in Austria, are legislatively-based There may be support from certain stakeholders for some degree of state regulation or a mixture of external regulation and self-regulation. This proposal, however, is based on self-regulation. See Part V, S 3 below.

 

  • The Accreditation system will involve as little new infra-structure as is possible. Where feasible, functions will be devolved to existing organisations, such as those which already offer extensive mediation education and training.[4] This follows the approach of the NADRAC Standards report which recommended a framework in which ADR service-providers develop their own standards which take account of the elements of a mediator Code of Conduct.[5] It is also aligned with those current arrangements in which government entities are able to approve specific organisations which in turn can accredit individual mediators.[6]
  • The Accreditation system should promote consistency across mediation sectors, where this is possible, and allow for diversity where additional accreditation requirements are appropriate or already in existence.
  • The proposed system should be seen, and evaluated, as an initial step in the ongoing development of Accreditation which could subsequently be developed into a more elaborate system.
  • The Accreditation system should be transparent and accessible to both mediators and those using mediation services.
  • The Accreditation system should incorporate objective requirements and fair procedures both for those seeking accreditation and re-accreditation and for Accredited mediators who are subject to complaints and disciplinary action.
  • The Accreditation system should be compatible with relevant public policy embodied in legislation and with the assumptions and principles of the mediation process.
  • The Accreditation system should be comparable with similar accreditation systems.
  • The Accreditation system should be amenable to evaluation, review and adaptation over time.

 

Key Proposal

 

That Australian mediators will be able to achieve the status of Mediators Accredited according to the National Mediation Standard if they satisfy the requirements referred to in the National Mediator Accreditation system.

 

Scope of Accreditation System

 

Applicable to Mediators

 

The Accreditation system will apply only to mediators and mediation and not to other dispute resolution practitioners such as arbitrators, case appraisers or neutral evaluators providing advisory or determinative processes.

 

Here the term mediation is understood in terms of the NADRAC definition of the process.[7]

 

Voluntary System

 

The Accreditation system will be voluntary and optional for those mediator practitioners who wish to hold themselves out as being accredited according to the National Mediation Standard.

 

 

 

Initial Stage of Accreditation

 

The system will be of a basic nature in relation to the requirements for Accreditation and the consequences of Accreditation. As a first stage of Accreditation it may be replaced by a more extensive model in the future, involving features such as licensing, regulation and practice monopolies and additional levels or grades of Accreditation. It is, however, a stand-alone system which could endure in its own right, even if there is not another more extensive stage of Accreditation; it therefore makes no assumptions about future Accreditation developments.

 

Single Level of Accreditation

 

The system provides for only one level of mediator Accreditation and leaves open the option of intermediate or advanced Accreditation being developed at future stages.

 

Scope for Additional accreditation

 

The system allows for additional requirements to be prescribed for the individual accreditation systems established by legislation and regulations, or by membership organisations, service-providers and users of mediation such as courts and tribunals.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mutual recognition is easier at the training and assessment levels first, while organisations could have different additional criteria for accreditation, depending on the context of their mediation practice.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As this stage of Accreditation is voluntary and does not involve mandatory licensing, the proposal does not deal with many of the potentially problematic definitional issues in ADR field.

 

 

 

 

 

 

 

 

It will not constitute a licensing system which would exclude those not accredited to the National Mediation Standard from holding themselves out as practising mediators. Most current accreditation systems in Australia are voluntary.

 

A disadvantages of a system that is not voluntary is that it would require attention to the definition and scope of mediation so that it is distinguished from comparable processes such as conciliation, facilitation and counselling. A mandatory system would also require more rigorous attention to accreditation of practitioners involved in ‘hybrid’ dispute resolution processes, such as med-arb.

 

 

 

 

 

 

 

 

 

 

 

Some membership organisations have provisions for Basic and Advanced levels of accreditation.

 

 

 

 

 

For example the Family Law Regulations 1984 already have higher level requirements than proposed for the National Mediation Standard.

 

A Professional Association or Peak Body

 

The Accreditation system does not depend on the establishment of a peak body, professional association or industry body for mediators.[8]

 

The Accreditation system may create impetus for a professional association or peak body but this option is beyond the terms of the current investigation and report.

 

Infra-structural Requirements

 

Although the Accreditation system does not require the establishment of a professional association or peak body, it does necessitate consideration of some level of infra-structure to administer and support specific aspects of the system.

 

The system requires the following functions to be exercised through appropriate structural arrangements and procedures:

 

  • The function of approving and supervising the bodies recognised as having the capacity to Accredit mediators (referred to here as the Recognition and Supervision of Mediator Accreditation function).

 

  • The function of dealing with, or overseeing the handling of complaints against Accredited mediators and, where these are not resolved, of determining whether mediators are in breach of a Code of Conduct and, where appropriate, imposing sanctions (referred to here as the Feedback, Complaints and Discipline function).
  • The function of developing and maintaining an accurate national Register of Mediators Accredited according to the National Mediator Standard (referred to as the Register function).
  • The function of undertaking a future review and evaluation of the Accreditation system and, if appropriate, making recommendations for its adaptation (referred to as the Evaluation and Review function).

 

Organisational options are suggested in Part III below for the performance of these functions and attention will be given to them during the consultation processes.

 

 

 

See Part III, below

 

 

 

 

There are well-established professional associations in the law, medicine, accounting and psychology, all regarded as independent ‘professions’.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Compliance

 

Compliance with the Accreditation system will mainly occur through the Recognition and Supervision of Mediator Accreditation function and the Feedback, Complaints and Discipline function. Indirect compliance will occur through the role of Recogni