I. INTRODUCTION

4.1 The regulation of entry into or conduct within an occupation is an accepted aspect of business and professional activity in our society. Regulation in one form or another affects most occupations: accountants, barristers, chicken sexers and zoologists.¹ Controls may regulate entry into the occupation and the right to practise, use of the occupational description, day-to-day conduct, and the legal responsibility of practitioners.

4.2 The recent emergence of mediation as a distinct practice inevitably raises issues of the control and regulation of those who mediate. Mediators are responsible for overseeing disputants making agreements which can have significant implications for themselves and others in society. To the extent that mediation resolves a dispute which may otherwise have been decided by adjudication in a court of law, the questions of quality and accountability of mediators are serious matters. Making mediators accountable using judicial means, within the legal system, is developed in the next Chapter.

II. THE CURRENT SITUATION

4.3 In Australia the main controls on mediators occur through self-regulation. Mediators operating privately are subject to voluntary control. An agency providing mediation (or other dispute resolution services) is responsible for the quality of the practitioners employed by it in that only those meeting the qualifications and/or performance standards receive recognition and employment. In addition many agencies have a code of ethics or conduct to which their mediators are expected to adhere.

4.4 At a professional level practitioners have begun to address the question of whether to regulate themselves. No professional association administers entry qualifications, although one does accredit mediators and conciliators² and all have the promotion of high professional standards as an objective.³ ADRAA has formed an Ethics Sub-Committee to consider standards of practice and codes of ethics for mediators and other dispute resolvers. In view of the professional ethics by which they are already bound, members of other professions such as law and social work who also practise as mediators are in a special position. One solution has been to draft a code of ethics recognising the duality of professional responsibilities. The NSW Law Society’s “Guidelines for Solicitor Mediators” and the Victorian “Standards of Practice for Lawyer Mediators in Family Disputes” are examples of this. The lead has been set by dispute resolution professionals in the United States, where as many as 20 different organisations have standards of professional behaviour to which their members adhere.⁴

4.5 Statutory regulation of mediation practitioners in Australia operates in different ways:

• Legislation specific to an agency, like the Community Justice Centres Act 1983. It provides for the use of only accredited mediators. Accreditation is given by the Attorney General in accordance with policy guidelines determined by the CJC Council.⁵
• Court-annexed ADR programs usually operate with a Court-compiled and approved panel of people to whom disputes are assigned or from whom parties may select. The Victorian Building List mediation program works this way.
• Alternatively, court-annexed programs may recognise an external agency as the provider of dispute resolution services under the terms of a statute. It is not the individual practitioners who receive approval but the agency which is responsible for employing them. Counsellors and mediators working for agencies approved by the Commonwealth Attorney General are subject to provisions of the Family Law Act 1975 (Cth).⁶

III. IS REGULATION APPROPRIATE?

A. Regulatory Schemes

4.6 Although the reference specifies accreditation, this is only one term for the regulation of practitioners of mediation. There are many possible schemes which differ according to the source of authority for control, the structures adopted for administration, and the nature of the control.

• Government regulation depends on statutory authority, and can be administered directly by a government department or agency, or by a public body. It usually confers on a practitioner some legal status as a consequence of eligibility to practise, or legal liability for behaviour as a practitioner.
• Co-regulation describes the situation where administrative responsibility for the regulatory scheme is shared by the state with practitioners, in varying degrees of autonomy. Representatives of other interested parties can be involved in a public body exercising regulatory control. In the case of mediators those parties could include an agency employing mediators, a funding or parent body, educational or training institutions, and consumers or the general public. When responsibility for regulation is handed over almost entirely to representatives of the profession itself, it can give the appearance of self-regulation.
• Self-regulation occurs where controls are voluntarily imposed and administered by practitioners themselves. Representatives of any of the interested parties referred to above may also play a role in a self-regulatory scheme. Such regulation is a private matter and of itself confers no legal status or liability.

4.7 Various means of occupational control are possible. One difficulty in discussing regulatory schemes is created when the terminology is not consistent. Another occurs when the one method is used by both external and self-regulatory controls. For the purposes of discussion in this Paper we have chosen to adopt the following terms:⁷

Accreditation - used generally to confer recognition that a person has undergone a prescribed or accepted level of training or meets a prescribed standard of performance.

Registration - a list identifying practitioners providing a particular service which is compiled and published, usually by a public body. Inclusion may be conditional upon educational or practical qualifications and/or subscription to a code of practice. The right to identify with the occupational group may depend upon registration.

Certification - recognises that a person has completed a prescribed level of education or training or achieved a certain level of competence in performance or skills. It can be granted by either a public body, educational authority, or professional body. When granted by a public body the right to practise may depend on certification. The right to use a professional title often accompanies certification.

Licensure - permission to practise a profession is granted only to those holding a licence. Licences are usually issued on government authority when prescribed levels of education, performance or other qualifications are met, and on payment of a fee.

B. Non-regulatory Methods

4.8 The alternative to regulatory controls imposed by government or a professional body is to leave decisions about the right to practise in the hands of either private agencies employing the practitioner or let market forces determine which mediators practise.⁸

• In the free market, people can offer themselves as mediators without accreditation, professional affiliation or training, and the consumer may freely engage any practitioner. That the person lacks qualifications or experience is immaterial, if the consumer freely chooses to employ that mediator.
• Encouraging disclosure of qualifications for those holding themselves out as mediators overcomes a disadvantage of the free market where the consumer may not be in a position to make a completely informed choice. The information which can be disclosed will inevitably depend upon what is considered necessary and relevant.
• Public and consumer education is a further step to helping the consumer make an informed choice. Responsibility for educating potential consumers about the services available and the basis on which the selection of a mediator should be made would lie, presumably, with the profession itself. This task is being pursued currently in the United States where several professional groups and services co-operatively are preparing consumer guides, written at different levels of sophistication.⁹

C. The Arguments¹⁰

1. Regulation

4.9 Supporters of regulatory control in any profession rely on two major arguments which hold that it serves the interests of the public, the consumers, and of the profession itself. There is evidence from both Australia and the United States that the debate among ADR practitioners about professionalisation and regulation recognises both.¹¹ This may, however, be altered with the increasing entrepreneurial activities in ADR.¹² Ironically, these objectives are shared by those who favour self-regulation and by those who are not in favour of any formal regulatory controls.

4.10 The arguments in favour of regulation are:

• Consumers must be protected from unqualified, incompetent and unethical practitioners. Only those with a sufficient standard of qualification and/or experience should practise. Consumers relying on the accreditation given by a public or professional body can expect service of a particular quality, which will not cause them damage or loss.
• The profession will benefit from having only qualified, competent and ethical practitioners. This will:

  - enhance the status of the profession generally, and in the eyes of funding or other important authorities;

  - improve public acceptance and use of the processes which have yet to gain the level of acceptance the profession would desire; and

  - protect the legal and financial position of members of the profession, for example with eligibility for professional indemnity insurance cover, or legal protection in issues such as liability for negligence, and confidentiality.

2. Self-regulation

4.11 Regulation of occupations or business activities by external authority, usually state, is not new. The view that regulation should be the responsibility only of the professional group itself has long been a fundamental aspect of professionalism. It is argued that professionals themselves, and not lay people, bureaucrats, or legislators are in the best position to understand and evaluate professional practice. Their knowledge and experience will enable them to:

• set standards of excellence to minimise inadequate service;
• monitor and accredit educational institutions which train practitioners; and
• establish ethics codes, and discipline those who do not act in accordance with them.¹³

4.12 In theory professional self-regulation will promote quality service by competent practitioners. The claim has already been made for mediation that its complexity “makes it difficult, if not impossible for the layman to judge the quality of the services rendered”, so that the only collective body capable of doing this comprises mediators themselves.¹⁴ Already the fear has been expressed that external controls will be imposed unless dispute resolution professionals set and monitor standards themselves.¹⁵ Since this position offers limited public accountability, it can raise the natural suspicion that policing from within can be used as a way to avoid responsibility. It also requires that practitioners recognise the scope of professional behaviour so that they will not exceed their limitations.

4.13 Self regulation has long relied on the assertions that professionals are in the best position to say what professional conduct best serves the public interest, and that they can be trusted to put the public interest ahead of sectional interests. Such claims are not readily accepted now for the established professions: lay members on regulatory bodies are commonplace. This situation recognises that representing professional and community interests are incompatible roles.¹⁶

3. Non-regulation

4.14 The supporters of non-regulation also seek consumer protection and professional integrity. They argue that those goals will be achieved more consistently with the values of mediation, more effectively, and with more freedom of choice by policies alternative to formal control.¹⁷ The major arguments advanced to reject formal regulation either by the state or the profession itself are these.

• Dispute resolution is an art, best mastered through practical experience; it is not possible to identify, teach, and assess the skills, qualities, and attributes that make an effective neutral.
• Although regulation may be considered in the future, it is premature to institutionalise the profession. Mediation is too new a field, because:

  - the methodology is as yet too unrefined to provide satisfactory standards by which to access qualifications;

  - nobody is yet qualified to set the standards. It would be arbitrary and perhaps self-serving for one professional or public body to assume that responsibility; and

  - the creativity and flexibility of mediation should not be restrained by the inevitable effects of regulation.

• Regulation would interfere with the essentially private decision to employ a mediator. Consumers, especially if educated about mediation, can provide the necessary control.
• It is contrary to the philosophy of mediation to professionalise the process and remove control of dispute resolution from the hands of the people who use it. Similarly it is contradictory to establish rules, especially legally imposed, for an alternative to the rule-bound justice system.
• The imposition of controls on entry to the practice masks what is in reality establishment of exclusionary standards. Ensuring minimal competence usually becomes a requirement for as high a level of competence as possible. This operates to protect the employment and social standing of those already practising. It will also restrict the range of people eligible for entry such as members of some social or ethnic groups.
• Regulation and professionalisation impose costs which must be borne by practitioners, consumers and the public. These include the costs of preparing practitioners to enter the profession, (ie education and training); of complying with on-going requirements (eg continuing training); administration of any scheme; and any increased charges to consumers.
• There is, as yet, no general demand for the regulation of mediators other than from practitioners of dispute resolution and members of other, possibly threatened, professions.

Is some form of control of mediators necessary? Why?

If some form of control is desirable, what is the most appropriate means of control, and how should it be administered?

IV. CRITERIA FOR REGULATION

4.15 Support for the application of any of the regulatory schemes outlined above to the practice of mediation assumes that meaningful standards of preparation and/or performance are open to objective determination and evaluation. That is, it is possible to clarify the nature and level of training and the substantive knowledge as well as to accurately identify and measure the necessary skill for effective and competent practice.

4.16 The criteria on which regulation of mediators can be based are numerous. In the United States various legislatures, mediation agencies and professional associations have addressed the question of qualifications or establishing standards for mediators and other neutral third parties. Unfortunately that experience does not provide much direct guidance for there is no consistency among the statutes,¹⁸ and great variance between statutory and professional standards.¹⁹ There is little attempt to distinguish criteria for practice in separate subject areas,²⁰ or to recognise different levels of competence. These are some of the issues which must dealt with when establishing standards for eligibility to practise as a mediator. Of relevance, too, are the questions of automatic acceptance or disqualification applying, for example, to members of certain occupational groups or professions, and how to treat existing mediators unable to satisfy the criteria set when accreditation is introduced.

4.17 Specific criteria for accreditation can include, but are not limited to any one, or a combination of, the following:

Education	Previously acquired academic qualifications which may specify a first degree in a particular discipline or subjects.
Training	Vocational training specifying, for example, length of training, and content, or nominating approved courses.
Experience	May be measured by sessions of mediation, length of time in practice, consultation with experienced mediators, or review of agreements mediated.
Membership of professional association	By meeting a professional association’s criteria for admission which may, in turn, require compliance with other criteria, and may require adherence to a code of ethics or standards of behaviour.
Performance criteria	Demonstrated competent practice which could incorporate both knowledge and the skills of mediation.
Personal attributes	Attributes such as good character, social standing,21 professional reputation,22 involvement in the local community, commitment to mediation,23 or absence of personal or financial conflicts,24 could all be relevant.

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4.18 Consideration of the possible criteria for recognition of mediators must have regard to certain fundamental issues. Predominant must be the dual objectives of protecting the consumer and enhancing the profession by ensuring that all practioners are competent. Secondly, there is the question of what makes a competent mediator.

4.19 There are important aspects associated with each of the criteria listed above which should be considered. If relevant, the particular courses or levels of tertiary qualifications must be identified. Insisting on such qualifications may act as a barrier to entry to the field rather than ensure competent practitioners. The desirable types of training, curricula and standards, must be identified. It may be necessary to specify criteria for particular types of mediation, including aspects of substantive knowledge. Sufficient standards of performance must be established and evaluated. The relative importance of quality or quantity of experience needs to be determined, as well as how to assess it. The feasibility of professional and peer review must be considered. Deciding the relevant personal attributes, and their assessment presents some difficulties. An appropriate combination of criteria would need to be determined, including the extent, if any, of trading off one criteria for another.

What criteria are relevant in the regulation of mediators? How should those criteria be established and assessed?

V. SOME GENERAL ISSUES

A. Diversity

4.20 An underlying theme in ADR is diversity - of institutional settings and other contexts, of processes, objectives, and personnel.²⁵ There are some aspects of accreditation to which diversity is particularly relevant.

4.21 It is argued by some that diversity within the ranks of those who practise mediation is a virtue. Having a pool of mediators from which to match disputants is preferred by some mediation agencies.²⁶ This must affect the training and accreditation of mediators so as to achieve a panel representative of all social groups, avoiding exclusions based on race, sex, age, handicap, nationality, religion, or sexual preference.²⁷

4.22 The possibility of establishing a standard system of regulatory control which is both efficient and effective must create difficulties given the diversity of processes, programs and contexts in which mediation is used. Standardisation may be an inevitable result of regulation, making it impossible to preserve the creativity and flexibility which are so valuable in mediation and which enable practitioners to respond to the needs of different constituencies.

4.23 There are diverse ways of being a mediator. Regulatory controls will need to recognise the different institutional settings and subject areas in which mediators perform, the varying models they use, the different backgrounds from which mediators are drawn, the different paths by which they enter the practice of mediation, the differing terms of employment and remuneration they work under, and their varying levels of opportunity for practice and experience.

Is the issue of the regulation of mediators affected by the diversity in ADR?

B. Degree of Choice

4.24 The extent to which disputants exercise free will in choosing mediation, a program, and the particular mediator/s varies markedly. Ideally, disputants have the greatest possible degree of choice, but frequently this is not so. Resort to mediation may be compulsory, or a decision induced by the persuasive force of the less desired alternative. Disputants do not always have the freedom to select a mutually acceptable mediator. This has been recognised in a principle proposed by SPIDR for American mediators. It holds that there should be no standards save for disclosure by mediators where the parties have completely free choice; where parties have no choice, standards and accreditation should be determined by a public body. Where parties have some choice it would be the responsibility of the agency providing the mediation service to establish criteria for mediator accreditation and to disclose as much relevant information about the mediator as may affect the choice of mediator by the disputants.²⁸

4.25 The nature of the disclosure mediators or agencies would be required to make poses a further problem. It depends on what is considered relevant to the practice of mediation in a competent manner. Aspects which have been suggested include training and experience of mediators, any relevant personal, financial or business interests or biases, and any codes of ethics to which they adhere.

What is the relevance of principles based on disputants’ choice?

FOOTNOTES

1. Victorian LRC Principles for Occupational Regulation Occupational_Regulation Report No 2 Appendix A which lists 166 regulated occupations in that State.

2. The Institute of Arbitrators Australia has a Register of Concilators and Mediators.

3. Associations including ADRAA, IAA, Mediation Association of Victoria (MAV), South Australian Dispute Resolution Association (SADRA) and Lawyers Engaged in Alternative Dispute Resolution (LEADR).

4. For example Society of Professionals in Dispute Resolution (SPIDR) and the Academy of Family Mediators; see also Gregg B Walker “Training Mediators: Teaching About Ethical Concerns and Obligations” (1988) 19 Mediation Quarterly 33.

5. Community Justice Centres Act s11.

6. For example mediators at Family Mediation Centre, Noble Park and Family Mediation Centres, New South Wales.

7. See also Victorian LRC Principles for Occupational Regulation note 1 at 3; Australian LRC Insurance Agents and Brokers ALRC Report No 16 (AGPS, Canberra, 1980) at 78; see Christopher W Moore “Training Mediators for Family Dispute Resolution” (1983) 2 Mediation Quarterly 79 at 80.

8. See Society of Professionals in Dispute Resolution (SPIDR), Commission on Qualifications, Issues Paper (Draft), unpublished, October 1988; hereafter SPIDR Issues Paper.

9. See “The Art in the States” ADRAA Newsletter (May, 1989) at 3.

10. See generally New South Wales LRC The Legal Profession Discussion Paper No 1 General Regulation (LRC, Sydney, 1979) and First Report on the Legal Profession General Regulation and Structure (LRC 31, 1982); Victorian LRC Principles for Occupational Regulation note 1.

11. See SPIDR Issues Paper note 8.

12. There is evidence of the selling of certifications by at least one New York based organisation, see Linda Hack “Model Legislation” (1987) 18 Mediation Quarterly 9 at 13.

13. Jack R Bierig “Whatever Happened to Professional Self-Regulation?” (1983) 69 American Bar Association Journal 616; see also NSWLRC The Legal Profession DP 1 General Regulation note 10 at 119.

14. Deborah Sundermann “The Dilemma of Regulating Mediation” (1985) 22 Houston Law Review 841 at 866.

15. Judith A Saul “Community Dispute Resolution: Ensuring Quality Retaining Diversity” unpublished paper, Tompkins County Community Resolution Centre, Ithaca, New York, 1988 at 2.

16. NSWLRC The Legal Profession DP 1 General Regulation note 10 at 122.

17. John Lande “Speaking for Mediation” (1987) 17 Mediation Quarterly 23.

18. Katheryn M Dutenhaver “Qualifications of Family Mediators” (1988) 19 Mediation Quarterly 3 at 6-7.

19. Id.

20. Except perhaps for family mediators, for example the Academy of Family Mediators standards for membership.

21. As applicable in mediation in China and Japan, and perhaps in an intangible way in various Australian programs.

22. Relevant for ACDC, IAA mediators.

23. For example Community Justice Centre mediators in New South Wales.

24. For example in Kansas and Louisiana statutes controlling mediation in custody matters, Dutenhaver note 18 at 9.

25. This diversity has been highlighted throughout the Discussion Paper. See also “The Art in the States” note 9.

26. Community Justice Centres and other neighbourhood mediation services.

27. SPIDR Issues Paper at 14.

28. SPIDR Issues Paper at 10-12.

29. SPIDR Issues Paper at 12-13.