Draft National Accreditation Standards for Mediators

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An initiative of the National Mediation Conference and the mediation community

IAMA

Additional Submissions

All persons and organisations who provided submissions have been approached seeking their agreement to the publication of the submissions.  Where those persons or organisations agreed they have been published in an un-edited form.  Due to the variable length, some have been published as download-able documents while others are directly below.  The submissions can be accessed by using the links above or by scrolling down the page.

Concerns with the Proposed National Mediator Accreditation System

 Background

My name is Scott Dutton and I am an experienced mediator in the community sector (more than 200 formal mediations over 9 years). My experience has primarily been in the welfare and education sectors facilitating mediations for adolescents (homeless or at risk of) and their families. I have also facilitated mediations for students, teachers and parents in the education sector. 

 From this experience, I have developed a 2 day mediation training for professionals in the welfare and educational fields. Attendees include: youth workers, social workers, welfare managers, school principals, student welfare co-ordinators, etc. The training is a basic course that intends to give participants another tool to use with clients, students, colleagues and staff. Most of the participants already have many of the skills (i.e. listening skills, reframing) as they are in the helping professions.  Rather, they are generally seeking the framework and principles of mediation to both add to and consolidate what they are already doing. 

 Many of the participants do not use the mediation process in a formal setting. They either don’t have the resources (time/ workers/ space) or their role is not to be a ‘formal’ mediator. Thus, many of the participants use parts of the process in an informal way. The goal of most workers attending is not to be become formal, independent professional mediators, rather to gain some extra tools, principles and skills to be able to assist their clients, students, colleagues and staff in a more effective manner. 

 I currently facilitate the course in Melbourne, Brisbane, and Adelaide and will be running the training in Cairns, Hobart, Launceston and Sydney in 2006. The feedback received over the past 3 years has been extremely positive. Workers find the course to be beneficial, relevant to their work and are able to implement many of the techniques, microskills and steps of the mediation model into their work practice. The feedback has been that it meets their needs in terms of content, length (2 days) and cost. The cost of the course is approximately $260 which is about average for professional development in this field. 

 Changes required to the course to meet the RMAB’s requirements 

One of the concerns with the proposal is that for the course I provide to meet the accreditation requirements (i.e. to become a RMAB training provider) then:

Ø      the duration of the course would need to lengthen;

Ø      the cost of the course would need to increase. This would be due to lengthening the course to a minimum of 4 days (24hrs). In addition, as a sole trainer, the requirement of needing a written assessment by 2 members of the training team (or by 2 external assessors) would also require an extra trainer (or the 2 assessors) which again would increase the costs substantially; and,

Ø      the demands of the course would also increase (i.e. 6 simulated mediation sessions, assessment by 2 facilitators, a written exam of between 45-90 minutes; and written debriefing evaluations of 2 mediation simulations).

The effects of the changes for community / welfare / education workers

My concerns with the above are that the course is currently meeting worker needs. If the course lengthens, is more costly and extra demands are placed upon the participants, then it will not only not be meeting their needs but will exclude many workers in the field, who can neither afford the money nor the time to attend. It would increase the cost of attending and the time required to attend – when these sectors traditionally have a lack of both. 

Welfare workers, for example, generally have a maximum professional development budget per year that varies from about $200 - $400.  Feedback from teachers regarding the impact of time constraints is that they are very restricted in taking days off and schools themselves request that training be done after hours over consecutive weeks. 

On the other hand, if the course I present is not accredited, then I have concerns that workers may wonder why it is not accredited – they may think the course is not worthy, relevant or beneficial. And even though the majority of participants are not wanting to become professional mediators, they (and the agencies or institutions they work for) will still prefer an accredited course over an unaccredited course. Even so, many may not attend the more expensive (accredited) courses because they are concerned about the time and expense needed to attend; and, they may find the more formal professional mediator status (and legal contexts) of these courses off-putting (and not as relevant to their work contexts). 

Exclusion of the community / welfare / education sectors in the Proposed National Mediator Accreditation System

These concerns about mediation training for the community/welfare/ education sectors, leads me to another concern after reading through the accreditation proposal. It seems that it is geared to legal/institutional/commercial professionals and has no mention of, or inclusiveness, of the welfare and educational fields. It appears that the needs of these sectors have not been considered and thus discriminates against them. 

This is also exemplified in the proposal by the criteria required. Some of these criteria are much less relevant to the community/welfare/education sectors. For example on pg 11 of the proposal: The basic law of mediation on confidentiality, enforceability of mediation agreements and liability of mediators would have very little relevance for these sectors.

Mediation as a conflict resolution process may become rarified

People from the community/welfare/education sectors want to gain mediation and conflict resolution skills. However, if the proposal is adopted it may be prohibitive due to cost and time (or lack of accreditation). Thus, what may eventuate is that in these sectors the training won’t be accessible and mediation will not be circulated and promoted. It may become rarified – only for those with money, time and with the objective of wanting to become professional mediators. The sector may then become de-skilled in the use of mediation skills. The flow-on effect is that the impetus mediation has as a conflict resolution process within the community will not increase and may decrease – existing as a specialist enclave rather than becoming a potentially populist paradigm.

Discrimination against smaller providers becoming RMAB’s

I also felt that the criteria to become a RMAB exempts smaller private providers. Usage of the word ‘institute’ throughout the document signifies this.  I would be very concerned that only larger organisations would be able to become RMAB’s thus discriminating against smaller ‘hands-on’ training providers. From my experience in the field, and having been trained and also having facilitated training at larger RTO’s, the quality of training does not necessarily improve with the size of the organisation.  Small does not equate with shonky as large does not necessarily guarantee quality. I feel the definition of service providers is narrow and I am concerned that the proposal is promoting and developing an ‘insitutional’ mediation which excludes the development of ‘community’ mediation (i.e. community, welfare, education sectors). A cartel of larger already established institutions vs. small private training providers?

Folberg & Taylor (1984) write regarding training approaches and the need for diversity: 

 There is ample room for a diversity of training approaches so that those seeking mediation skills and understanding can have a choice of courses and programs. The training of people from the community to help resolve local disputes or people from a work setting to resolve workplace conflicts might be reasonably accomplished in a practical program designed for a one-day format. Such a workshop might introduce basic mediation concepts and skills, particularly for use in their existing roles… .  

(Mediation: A comprehensive guide to resolving clients without litigation p. 234-235)

 In addition, the expectation that the RMAB’s accredit mediators, provide Continuing Professional Development and that they deal with complaints and discipline issues of mediators that they accredit, highlights the proposal’s preference for larger organisations as RMAB’s. Smaller private trainers are less likely to have the resources and the infrastructure to provide all of the above.

 Accountability

Another concern is the accountability and possible inconsistency of the accreditation process of the RMAB’s.  An independent body is required to ensure appropriate standards of accreditation are maintained and to ensure independent disciplinary procedures. 

 Proposed changes:

I would like to see that the community/welfare/education sector needs are included in the future draft proposal.  Formal recognition, endorsement and credibility need to be given to courses like mine that are meeting the needs of the workers in these fields successfully.  These courses are necessary, valid, beneficial and relevant for the workers – feedback and enrolments (often by worker recommendation) attest to this.  They want it!  It meets their needs.

I propose a number of options: 

Ø      that courses like mine (and Fred Stern’s) are formally acknowledged by the Mediation Accreditation System;

Ø      that there be different levels of accreditation – that there also be a level for the community/welfare/education sectors where workers are wanting to gain an extra skill rather than become a formal, professional, stand-alone mediator; 

Ø      and/or that accreditation be applicable over a time frame. For example, I am in the process of writing a Level 2 (advanced) training that has been requested by workers. It will again be only 2 days and there would be a reasonable time frame between participants completing Level 1 and then Level 2. This time would allow participants to gain experience and further knowledge - to practice their skills and reflect (a process suggested by Haynes). 

Yours Sincerely,

Scott Dutton

Scott Dutton BSW, BSc., MAASW

Mediation & Training Consultant

With Clear & Dynamic Communication

Dear Accreditation Sub-Committee (Gregory Rooney, Mediator, South Australia)

 These are some of my thoughts on the general issue of accreditation.

 Accreditation is something that occurs in a developing profession when there is a critical mass of practitioners who are having an impact on a particular section of society.  This can take decades to evolve as with the Real Estate and Human Resources professions.  It is not in dispute that the mediation profession has not reached this critical mass.  The current push for accreditation by the government would not appear to be aimed at remedying any problem with those few mediators who are currently in practice.  To this extent there is a premature element to the push to develop an accreditation scheme.

However it is clear that the discussion paper is based on a number of assumptions.  Firstly (page 2 third Para) there is something referred to as ‘conventional wisdom'.  This concept is not explained.  However we are told that it is telling us there should be 'some movement" towards a uniform system of mediator accreditation. In the next paragraph we are told there is an 'assumption" that mediation accreditation in now appropriate.  The next sentence reads "The case has been made and it is time to develop a specific proposal. 

I sense that the meaning behind these two paragraphs is " accreditation will happen so you had better join the discussion"

The first point I would like to make to the national body is you will only get the most out of this process if there is an open and frank discussion that is inclusive of all views on the threshold issue of the need for accreditation.  There must be some acknowledgment of the dangers in bringing in accreditation when there are so few practising mediators.  It is important to keep these dangers in mind when addressing how a proposed scheme would work.

An example of the consequences of bringing in a pre-mature accreditation system was the introduction of Division 2 'Family and Child Mediators' into the Family Law Act Regulations.  These regulations attempted to prescribe among other things pre- mediation meetings and restrictions on mediating where power imbalances and violence were present.   A number of legal aid commissions had for some time operated mediation programs that did not include pre mediation meetings nor differentiated between violent and non violent couples.  As a consequence they re- badged their mediations as conferences and their mediators as conference chairpersons and continued to mediate.  So a premature accreditation system can lead to instances of re badging of the mediation product.  It has the real potential to fracture the profession at the very time it should be uniting.

There has been a lot of pioneering work done using mediation in situations where there is violence and power imbalances.  Creating an accreditation system requires the creation of a definition of mediation.  This involves placing limits on the outer boundaries at a time when those outer boundaries need to be explored.  It is important that this experimentation continue and be part of the mediation family rather being forced out by an accreditation system driven by 'conventional wisdom".

The next question to consider is - Are you going to define' what is  mediation' and 'who is a mediator'?  The first attempt by the Law Society of New South Wales to create accredited specialists in mediation failed because there was no uniform concept of what was the acceptable mediation model.  The accreditation system became driven by individual differences between very experienced mediators as to what were acceptable practices.  Open warfare ensued with motions of no confidence moved against the accreditation committee and so on.

Therefore the next question is- Who is going to do the accreditation?   Who is going to accredit those who are going to do the accrediting?  Who is going to accredit those who are going to accredit those doing the accrediting and so on...............  Are we going to rely on 'conventional wisdom' to decide these questions.

There are two issues that have arisen within the mediation profession that relate to the definition of mediation.  

1. People and groups who use term mediation inappropriately.  For example; 

 *    Judges, lawyers and counsellors who call themselves mediators without having undertaking any mediation training.   

*     The Family Court of Australia re-badging their counsellors as mediators so as to give an impression of being a pro-mediation court.

*      Lawyers who describe lawyer to lawyer negotiation ( without a mediator) as mediation

 2.  People and groups who disguise the fact that they are mediators by describing them selves as being involved in conferencing, facilitation, conciliation or other such names.  For example, the legal aid conferencing programs and some compensation schemes.

Problem number 1 can be partly solved by mandating minimal training requirements.  Problem number 2 is much harder to deal with. Anything but the broadest definition of mediation will drive more people into artificially defining themselves out of the profession.  

The next question to consider is-  Is mediation going to be defined to cover any third party neutral irrespective of how they describe themselves?  If not, what is the point of accreditation if people can continue to practice using an alternate title. 

The problem for the national body and those driving this issue is that mediation is a grass roots movement that is constantly evolving.  Each new national mediation conference brings forth examples where the principals of mediation have been applied to different parts of our society.   It is a bottom up evolution that is taking place.  A national accreditation system is a top down response that might end up fracturing the movement.   

In my view it is important that any accreditation system not impede this evolutionary process.  There must be an open door policy to encourage new players into the mediation family.   The focus needs to be on increasing the number of people who can give up their day jobs and become fulltime professional mediators.  Mediation will only graduate into full profession status when there is a critical mass of professional mediators.  The accreditation system must be weighted towards attracting new players rather than just giving established practitioners extra status.

While there might be some short term advantage to have an accreditation system that favours the established mediators and professions it will be to no avail if it fractures the profession.   The outcome of this accreditation process will go a long way in determining whether the mediation profession becomes a broad church or just one specialised subset of those who practice as third party neutrals.

Greg Rooney

Victorian Association for Dispute Resolution

 The VADR response is a number of pages in length and comprehensive in nature.  It is accessible by following this link

La Trobe University

The La Trobe University response is a number of pages in length and has been provided in a PDF format.  It is accessible by following this link

FEEDBACK - (Mark Jeffreys)

LEADR - Association of Dispute Resolvers

The LEADR  response is a number of pages in length and comprehensive in nature.  It is accessible by following this link

John Pollard

In addition to the matters I raised at the Meeting on Friday night, there is one further matter which should be considered, namely whether mediation training agencies should undertake some assessment of candidates for training in mediation to see if the person is likely to be suited to mediation once trained. I know from a number of lawyers who undertook mediation training that they knew a short time after completing the course that they were not suited to mediating. 

I recall that when Unifam began its first mediation training course, the first 3 weekends were spent doing a self awareness course to try to identify personality or character types in the trainees which might help them through the course. I had not done anything like that previously & I was surprised at what it taught me about myself at that particular time in my life. It certainly helped me to have insight into my own prejudices & to alert me during my subsequent Mediation career to remember & acknowledge my biases & prejudices. It also alerted the trainers to be cautious about accrediting  some candidates who subsequently were not accredited.  I believe that all training institutions should have some process of identifying personality types who would normally not be successful as mediators.  

There may already be studies done on this subject which could be used. If a person is training to become a mediator he /she might appreciate being told at an early stage that they may not be suited to that work saving time money & disappointment.  I appreciate this causes extra work for the training  agencies  &  adds to the time needed for the course and probably adds to the cost of the course.    

John is a Sydney based lawyer and mediator working for Watts McCray Lawyers

IAMA 

The IAMA response has been provided in PDF format.  It is accessible by following this link