I. IS TRAINING NECESSARY?

3.1 An argument can be made that mediators do not need to be trained. Some would go even further and advise that a mediator should avoid specialist training which could affect how mediation is performed. Some of these arguments are more directly applicable to the community mediation model than mediation generally. The view that there should be no specific training for mediators is taken for the following reasons:

• Mediators are born, not made. Mediation skills are innate and cannot really be learned.
• Mediation is just common sense. It is a ‘people’ job, best done by ordinary people, untainted by special learning or expertise which could inhibit resolution of the dispute by forcing the process into a predetermined mould. The role of peacemaker in a community is a natural one.
• Even if the role is performed by a person in an institutional context, ie in a mediation service, the success of mediation comes from the fact that mediators are people like their clients and not remote, judgmental or authoritarian figures. Professionalisation will undermine lay people’s confidence in handling their own disputes. It is contradictory to the philosophy of mediation.
• Mediators derive their authority from the consent of the parties. If the disputants consent to a person acting as a mediator, it is unnecessary that there be an externally imposed requirement that the mediator be trained.
• The pioneering practitioners of mediation services had little or no opportunity for formal training, yet were able to establish successful dispute resolution services.
• Especially in the infancy of the practice of mediation, it is too difficult and impractical to determine what is the correct training.
• There is no one right process for mediation. The result is what is important, not following the correct steps. An untrained mediator can be quite capable of guiding disputants to a resolution.
• The need for specific training can be avoided if mediators are chosen by a careful matching of their skills, experience and style with the dispute and disputants.
• If, according to mediation philosophy, appropriate solutions are likely to be generated by the disputants themselves, it is unnecessary to have mediators with expertise in substantive areas such as family law.

3.2 Although practise as a mediator does not always depend upon being formally trained, most mediators voluntarily undergo at least an introductory training course.¹ Support for the view that mediators should have training relies on arguments such as these:

• Given that some are natural mediators, they may not offer themselves in sufficient numbers to meet the growing demand for mediation. If not, it is necessary to train people.
• Even the performance of ‘naturals’ can be improved with training.
• In direct contradiction to the idea of the natural, lay mediator is the view which recognises that mediation is a distinct discipline which cannot be performed successfully by people ‘just like the disputants’. It requires practitioners with skills which cannot be learnt from any other existing source of training.
• The integrity and credibility of mediation will be promoted by trained practitioners. Users have a right to expect competent service, and not one tainted with the ‘second class justice’ criticism. Training practitioners is the best means of ensuring a quality service. Training programs enable mediators to learn the necessary skills and can identify those unlikely to be competent.
• As a management decision, a mediation service may have a preferred model of mediation. Mediators will need to be trained in the techniques of that model, particularly where co-mediators are used regularly.
• The philosophy of mediation maintains that a knowledge and understanding of mediation contributes to successful performance as a mediator and will enable mediators to educate the community in conflict resolution. Community development is an important feature of the neighbourhood mediation model.
• There is concern that mediators with limited or no training will be unaware of the dangers of the enthusiastic amateur.
• There are some situations where a mediator should have preparation in either the substantive matters or the techniques of dealing with people. Mediating in the shadow of family or criminal law or dealing with people under severe stress requires specific training to be most effective. Where the result, or failure to achieve one, will have a substantial impact on third parties, for example divorce, custody, business restructuring, or environmental disputes, knowledge of the context in which the resolution will operate is necessary.
• If mediators have legal liabilities or immunities it is imperative that they be competent, especially if they seek to be covered by professional indemnity insurance. Training is one means of developing competence.
• The training and experience of the mediator increases the probability of parties reaching successful settlement of the issues in dispute.
• Mediators need to behave ethically. Ethical violations are more likely to result from ignorance or poor training than intent. Training which addresses substantive ethics and provides a model of ethical behaviour will promote a more ethical service for consumers.

3.3 These arguments suggest that support for training of mediators is likely to come from various groups.

1. Mediators, who desire:
• to learn skills for themselves
• to promote the profession
• to protect themselves from legal liabilities.

2. Clients who expect

• to be given competent service
• to be helped do what they cannot do on their own
• to learn from the experience how to resolve conflict in the future.

3. The managers of mediation programs, so that they can provide a service which has

• quality control
• standardisation among mediators
• a reputation for having ethical mediators.

4. Those who train mediators who wish to

• spread mediation skills
• have students for their courses.



5. Any authority responsible for regulating mediators for which training is

• an appropriate criterion for recognition
• a measure of quality control.



6. Those responsible for legal institutions who wish to ensure

• that the legal rights of parties are not neglected and
• that court processes are not impeded if mediation fails.

To what extent is training for mediators necessary or desirable?

II. MANDATORY TRAINING?

3.4 While recognising the counter arguments, we accept that there is widespread support for the training of mediators. The experience in Australia is that the mediation agency or program imposes some requirement for training on its own mediators although there is quite a range in the levels of training prescribed.² One professional association only accredits mediators and conciliators, using training as a criterion.³ In the United States several legislatures have established regulatory schemes, many of which involve training as a condition for recognition.⁴

3.5 The requirement that mediators be trained can be imposed in a number of ways, ranging from the least coercive pressure of market forces to a compulsory legislative requirement. Some of the options are these:

• The free market - in which consumers engage only those mediators who have an acceptable level of training.
• Mediation programs or agencies - which would employ or accredit only those mediators trained to the standard determined by the particular employer.
• Professional associations - which would admit to full membership or accredit only those practitioners meeting the levels of training established by the professional body.
• A regulating authority - whether it be government, co- or self-regulatory, the body responsible for formal recognition of practitioners would make completion of specified training a condition of recognition.
• The legislature - which would impose a statutory obligation on practising mediators to meet specific training requirements.

By what means should any requirement for mediator training be imposed?

III. WHO SHOULD BE ABLE TO TRAIN AS MEDIATORS?

3.6 Open entry to mediation training courses would mean that any person interested could enrol, regardless of intention to practise. Enrolment would have no pre-requisites such as educational or professional qualifications, demonstrated academic, personal or other abilities, or commitment.

3.7 Supporters of open entry argue that having qualifications in another field does not mean that a person is more likely to be a competent mediator, and that existing selection processes are incapable of identifying with accuracy all suitable candidates, and may eliminate some who, with training, will be successful mediators. The dissemination of peacemaking skills in the community is valuable, even if they are not practised formally.

3.8 The major obstacle to open entry is economic. The resources are not presently available. In practice, it is necessary to restrict training to those applicants who are likely to succeed. The difficulty therefore lies in determining the selection criteria.

3.9 Selection for entry into mediator training programs can be made in several ways, using various criteria. Examples from existing programs in Australia include:

• personal qualities (eg patience tolerance, assertiveness, abilities to remain objective, work co-operatively with others) as assessed by trainers observing aspiring trainees;⁵
• academic pre-requisites, (eg level of education, specific courses of study);
• professional qualifications and experience;
• criteria relevant to an aptitude for learning the skills of mediation;
• recommendation by current mediators, and/or professional bodies, based on the qualities suitable for becoming a successful mediator, including the social or professional standing of the person;⁶ and
• demonstrated commitment to the philosophy and practice of mediation.

3.10 The application of such selection criteria presents some difficulties. It is necessary to identify the previous knowledge, qualifications or experience considered relevant to effective practice. Legal experience could either be valuable for a mediator, or predispose that person to an adversarial style of dispute resolution. A person already in a caring profession, eg. social work, counselling or psychology may be more likely to succeed as a mediator than another professional. Objective assessment of personal qualities is always a difficult task. An overriding objective in selection of trainees may be to ensure a panel as diverse as the community from which they are drawn or the clients who will use mediation services.⁷ Any criteria used to select may be a genuine recognition of the pre-requisites for success in the training program, or constitute an attempt to limit entry to the field, regulate supply and demand, reduce competition, and elevate professional status.

Who should be able to train as mediators?

IV. HOW SHOULD MEDIATORS BE TRAINED?

3.11 Training for mediators is available in Australia through a variety of courses. In addition, many mediators attend courses and conferences in the United States.⁸ Although not yet established as a distinct academic discipline, introductory ADR, mediation, and negotiation courses are available at many tertiary institutions: in law schools and in other faculties.⁹ They are also regularly the subject of continuing professional education seminars for lawyers. The teaching of conflict resolution skills generally is proliferating.¹⁰

3.12 The alternatives presented below are not intended to be exhaustive and are generally drawn from examples of training courses of which the Commission is aware. It is important that the Commission’s inquiry consider all existing courses as well as what is thought to be appropriate or possible in training programs. Experiences of those who have trained as mediators and their evaluation of courses are of particular interest to the Commission.

A. Source of Training

3.13 Programs can be offered, either alone or in co-operation, by the following sources.

• A tertiary institution, in post-graduate courses, through continuing education programs, or within the undergraduate curriculum.
• An adult or further education service, for example at Technical and Further Education Colleges (TAFE).
• A mediation service or agency offering either training in-house only, or a course open to outsiders as well.
• A professional body or association of practitioners of mediation.

• Private organisations or individuals.

What is the most appropriate source of mediator training?

B. Nature of Training

3.14 Courses currently available to train mediators show marked variation in the extent of training considered the necessary minimum, the level at which instruction is offered, and the balance between academic and practical components. As yet mediation is not available in an extensive, academic course comparable with other professions, nor even as a discipline within regular professional education. Options for the provision of mediator training include the following:

• Full time in semester or year courses at tertiary level in undergraduate or post-graduate programs.
• Part time study in semester or year courses.
• Intensive courses of from 2 to 10 days or the equivalent in hours over a longer period.
• Brief seminars and workshops, commonly held to introduce basic concepts and skills to a general audience or as continuing education.
• Apprenticeship emphasising on-the-job training.
• A probationary period attached to any form of training which would constitute part of the training program.
• Continuing professional education, either voluntary or mandatory, which it is argued is necessary to ensure continued competent practice by updating skills and knowledge.

What is the most appropriate method of training mediators?

C. Curriculum

3.15 In view of the common aims of mediator training courses and their interdisciplinary nature, it is not surprising that the curricula of which the Commission are aware reveal a superficial uniformity. The subjects referred to below are usually taught, although there is no consistency as to the detailed content of or emphasis given to each subject. Courses recognise that a mediator must be prepared with both knowledge and skills, but do not always agree on the particulars. Differences can be caused by the context and purpose of the course, and the nature and background of both participants and tutors.

3.16 The following subjects are usually found in the curriculum of a mediator training program:¹¹

1. Understanding conflict.
2. Mediation theory and procedures, including negotiation.
3. Mediation skills.
4. Substantive knowledge - ie knowledge relevant to the context of the dispute e.g. family, educational, consumer, environmental.
5. Mediation ethics and standards of practice.

3.17 One view of mediation is that a mediator acquires skills which can be used irrespective of the subject matter of the dispute. If this is so, the curriculum of a training program should concentrate only on those generic skills and be content-free. Alternatively it is argued that knowledge relevant to the legal and social context of the dispute is a pre-requisite for competent mediation. Thus, for example, the training received by a family mediator should include substantive matters such as family and human development, divorce law and procedures, and community support services.¹² Where a disputant’s culture is likely to differ from the mediator’s an awareness of culturally-determined values and behaviour should be included.¹³

What is the core curriculum in which a mediator should be trained?

If mediator training programs should contain specialised knowledge components, what is the appropriate content?

D. Methodology

3.18 Where a trainee’s performance is such an important outcome of the program, special teaching strategies are required. As a mediator will need to acquire both skills and knowledge, the methodology of any training program must contain teaching strategies appropriate for both cognitive and behavioural learning. It must also be appropriate for adult students, who are likely to have a vast and varied experience.

3.19 What little research has been done on training mediators has found that performance improves with experience at mediating so that a training program should provide participants with experiential opportunities,¹⁴ and the benefit of frequent professional and peer critiques.¹⁵ Experience in mediating can come from observation, participation in role plays and simulations, and actual performance. Although requiring a great commitment of resources, supervision and assessment of all practical experiences is suggested. It is also argued that mediation training should confront the issue of ethics directly, and not as an afterthought and give students experience of the ethical quandries which can arise in practice.¹⁶

What are the most appropriate strategies for training mediators?

E. Who Is Entitled To Train Mediators?

3.20 Australian experience has yet to duplicate that of the United States where training mediators is a big business. Training courses in negotiation and mediation independent of any agency employing mediators are prolific, being offered by several academic and private institutions or individuals. The more usual method in Australia has been for the agency to rely on local resources for in-house courses, or to encourage an academic or training institution to develop a suitable course for its personnel. On several occasions ADR experts have been brought from overseas to conduct training courses.¹⁷ Others who are currently training mediators are members of professional bodies and private dispute resolution organisations, and well as some private practitioners. Many, but not all, have themselves undergone training as mediators, often in the United States.

3.21 The quality of training programs and their staff must be as important a consideration as the quality of the mediators who receive tuition from them. Effective instruction depends upon the competence of trainers. It is usual for an educator to have qualifications and experience in the discipline being taught, as well as teaching skills. Finding sufficient suitable staff for mediator training programs must be difficult for a number of structural reasons. Mediation is only in its formative stages as a distinct practice. It does not have an established qualification procedure or a large pool of experienced practitioners. Research into the practice and teaching of mediation is only in its infancy, and teaching materials are not readily available. Yet the applications of mediation and the numbers seeking training as mediators are expanding rapidly. Services pioneering mediation either geographically or in a subject area of disputes face particular problems. It is possible that in the innovative climate which exists in some sections of the ADR movement, enthusiasm rather than capacity provides the impetus to train mediators. Whose interests are being met by the training, the client, the trainee, or the training provider, is also of concern.

What are the appropriate qualifications for those who are to train mediators?

FOOTNOTES

1. Gregg B Walker “Training Mediators: Teaching About Ethical Concerns and Obligations” (1988) 19 Mediation Quarterly 33.

2. Neighbourhood mediators usually attend semester length courses, of about 70 hours, whilst ACDC mediators undergo intensive 2 or 3 day training. See Linda Fisher “Managing Programmes, Quality Control and Training” in Mugford (ed) Alternative Dispute Resolution note 3 ch 1 at 285.

3. The Institute of Arbitrators Australia compiles and publishes a Register of Conciliators and Mediators, making training a condition of inclusion.

4. See Katheryn M Dutenhaver “Qualifications of Family Mediators” (1988) 19 Mediation Quarterly 3.

5. Used by Community Justice Centres, NSW.

6. The method employed by ACDC.

7. See Community Justice Centres Information Kit - Mediator Training 1/87 at 1.

8. Courses run by CDR Associates, Colorado and the Harvard Program on Negotiation attract many Australian mediators.

9. For example, Sydney and Melbourne University Law Schools have under graduate and postgraduate courses respectively, and ADR is being taught in the School of Social Work, University of New South Wales. A Dispute Resolution Centre has been established at Bond University.

10. Particularly through the work of the Conflict Resolution Network (CRN). An interdisciplinary Conflict Resolution Course which includes mediation is taught at Macquarie University, where a Conflict Resolution Foundation has been established and a centre for Conflict Resolution is planned. This Centre would provide academic courses, professional training for mediators and others, and a clinical dispute resolution program.

11. See Jay Folberg and Alison Taylor Mediation at 236-242; Christopher W Moore “Training Mediators For Family Dispute Resolution” (1983) 2 Mediation Quarterly 79 at 83.

12. See Sarah Childs Grebe “Family Mediation Training Programs: Establishing Standards” (1988) 19 Mediation Quarterly 13.

13. Culture can be other than the traditional ethnic sense, including corporate, political, gender or class. See Culture’s Consequences in Dispute Resolution, Proceedings of ADRAA Conference, October 1988 (ADRAA, Sydney, 1989).

14. Jessica Pearson “The Denver Child Custody Mediation Project: Progress Report No.5” Unpublished paper, September 1981, quoted in Christopher W Moore “Training Mediators for Family Dispute Resolution” (1983) 2 Mediation Quarterly 79 at 81.

15. Robert B Moberly “A Pedagogy For Negotiation” (1984) 34 Journal of Legal Education 315.

16. Walker note 1 at 35.

17. The traffic is two-way, as CRN trainers conducted seminars for staff at the United Nations in 1988, Conflict Resolution Network News (April 1989) at 4.