THE TERMS OF REFERENCE

3.1 The terms of reference required the Commission to consider the need for training of mediators. The Commission’s conclusion is that training is necessary for a person to practise mediation and other consensual dispute resolution. This position was overwhelmingly supported in submissions received by the Commission. Nevertheless the Commission does not recommend that the Government regulate to make training mandatory. The need for such a requirement has not been demonstrated. Furthermore, the Commission considers that it is premature to prescribe the training necessary for mediators because of the early stage of its development, and the diversity of current mediation practice.

3.2 This Chapter contains a review of training currently available. At present, most practitioners are trained for a particular context or in the agency model where they intend to practise. Several issues related to training which were raised in the Discussion Paper are also considered, drawing attention to the diversity of approaches and difficulties in training.

NEED FOR TRAINING

The arguments

3.3 The most strongly expressed view in the submissions received by the Commission was that it is essential that mediators practise only when adequately trained, and that failure to do so would be a breach of a duty of care.¹ Whilst accepting the desirability of training, some submissions argued that it is not necessary or practical² to insist that all mediators train to meet a particular standard. The case against imposing mandatory training standards was also argued: it could affect the flexibility and diversity of mediation³ or restrict its viability.⁴ In several submissions the need for training was related to the context of practice and the complexity of the disputes.⁵ Some submissions considered the client’s degree of choice to be relevant. There was less need for training to be imposed where entry to mediation was more voluntary.⁶ In a free market, clients would not need the protection afforded by mandatory training.⁷ Another view was that mandatory training would be necessary when mediation was practised on a professional basis, particularly where the matter involved parties’ rights.⁸ It was also proposed that training should be required only for those mediation programs seeking to qualify for public funding.⁹

3.4 The Discussion Paper presented several arguments which the Commission had encountered in support of training.¹⁰ Many similar views were expressed in submissions. Two key themes underly the arguments supporting training. The first is based on the premise that it is the most effective means for a practitioner to acquire the competence necessary for practice which will not harm clients. It is suggested that untrained mediators will be less likely to know when entry to mediation or its continuation is inappropriate; will pressure parties into agreements; will fail to question parties who make agreements which are unworkable, unfair or do not meet their needs; and will lack techniques to deal with power imbalances, intense emotions etc.¹¹ Practising mediation requires performance and skills substantially different from those of any other practice or discipline. These skills are not automatically acquired from any other occupational background or academic qualification. Even persons with innate relevant personal skills will be more proficient with training. Sincerity and good intentions are not enough.¹² Training offers a mechanism to screen out the incompetent and the unsuitable. Training is an effective means to achieve a satisfactory quality of service. The second theme in arguments supporting training relates to the role of training in establishing credibility for the practice of mediation. It is important that clients and other significant groups such as the judiciary, the legal profession and others who could refer clients to mediation have evidence that mediators are qualified by their training and so have confidence in the process.

3.5 In submissions, the need for training was recognised as important to all concerned: mediators themselves, their clients, employers and service providers, training providers, and regulating authorities.¹³ However opinions were divided about the best means to impose a training requirement. The employer or program administration was most frequently mentioned as the most appropriate.¹⁴ Another preference was for a state regulatory system which would recognise some training courses for those purposes,¹⁵ but little support was expressed for legislation to apply generally to mediators except where training may be a prerequisite to government funding or the conferring of statutory protections.¹⁶ Legislation to require training was considered by others to be unnecessary or even counter-productive to the growth and flexibility of mediation .¹⁷ Self-regulating professional associations were seen to have a role in implementing any requirement for training.¹⁸

The Commission’s view

3.6 The Commission accepts that training for mediators is necessary for competence as a mediator and to enhance the credibility of mediation. We accept that no one is automatically qualified to perform the role of a mediator simply by virtue of professional or occupational qualifications in another discipline, or because of appropriate personal qualities. The role requires knowledge and skills of a distinct process. Training is the most effective way for a person to acquire expertise. Failure to undergo training in the process increases the risk that a mediator’s behaviour will be incompetent and unethical, and of harm to clients. The quality of mediation may be demonstrated to potential clients by reference to the training practitioners have undertaken. In this way its credibility can be established.

3.7 However, the Commission is not recommending legislation which would require mediators generally to undergo training before being permitted to practise. This position reflects the conclusions we have reached in Chapter 4 that no need has yet been demonstrated to impose government regulation on mediators. The Commission accepts that there may be a small degree of risk to clients from untrained mediators, but believes that this does not justify government regulation in addition to the mechanisms already operating.

3.8 Declining to make such a recommendation also recognises the formative state of both the theory and practice of dispute resolution, and the diversity in its practise. The Commission does not consider that it is feasible at this stage to prescribe confidently a particular form or standard of training which should be undertaken by mediators. This recognises the debate which occurs about many crucial issues concerned with training and the practice of mediation, and therefore the uncertainty about relevant content and standards.

3.9 At this stage it seems appropriate that responsibility for requiring that practitioners are qualified by means of training lies with the management of the specific agencies or programs which employ or accredit them. They have the right to nominate the standard of training and any other qualifications practitioners must meet. Programs which are connected to a court or tribunal should require any practitioners engaged by them or staff employed to be trained or to undergo training for the program. Direct legislative or administrative controls over other dispute resolution programs should require training as a condition for public support by way of funding or legal privileges. The need for private independent practitioners to demonstrate training qualifications will arise from the operation of market forces and client demand. Professional associations also have a role to play in establishing training standards and recognising members qualifications by appropriate accreditation¹⁹ This is already occurring with the preparation by the Alternative Dispute Resolution of Australia (ADRA) of Draft Standards for the Training of Mediators. These contain recommendations on standards for agencies which train and accredit mediators for the selection of trainees, nature of courses (length, techniques, curriculum, assessment) practical requirements, and the need for statements of ethics and standards of practice. Lawyers Engaged in Alternative Dispute Resolution (LEADR), the Law Institute of Victoria and other legal professional associations have accreditation schemes. Stronger government regulation, including accreditation of courses, is neither necessary nor feasible at this stage of training.²⁰

3.10 The Commission is aware that this approach may allow inadequately trained practitioners to operate. It may also exacerbate the fragmentation and even divisiveness which at present characterise some areas of dispute resolution practice as different agencies pursue their own approaches to training requirements and standards. It is our hope and expectation that the maturing practice will demonstrate greater co-operation and willingness to share knowledge and understanding of how mediators should be trained. The Commission’s recommendations for an Advisory Council and the Dispute Resolution Database should contribute to this process. The disclosure in the Database of training commonly undertaken should educate potential clients of mediators about the usual level of training which can be expected of practitioners.

CURRENT TRAINING OPTIONS

3.11 Trainingforthosewhonowpractisedisputeresolutionisavailablefromavariety of sources^.21 The dominant experience in the last ten years has been the creation of tailor made courses to meet the needs of particular programs and contexts of dispute resolution. Mediators have been prepared with a common set of skills thought necessary for the Organisation or program which it is believed could not have been acquired in any pre-existing education or training.²² There are very few courses which constitute general preparation for dispute resolution practice. A second stage approach to training is emerging, with sources of instruction expanding to include professional associations, private commercial trainers and tertiary institutions. In these courses students are often drawn from different programs and areas of practice, and have an opportunity to appreciate the validity of different models and methods.²³ Over the period approaches to training have evolved in response to changing needs, the availability of resources and developments in the theory and practice of mediation. Clearly this will continue to happen.

Community mediation

3.12 Community mediators are almost exclusively trained for the agency with which they operate. Since 1980, New South Wales Community Justice Centres (CJC) have accredited community volunteers selected and trained through a basic 54 hour TAFE certificated course, supplemented recently by an additional requirement of a CJC course component. The structure, content, process and methodology have changed substan-tially over the period in response to changing perceptions of training needs.²⁴ Continuing training opportunities have also been provided so that mediators can fulfil CJC requirements for maintaining accreditation. In addition an accelerated course for mediators with prior training or experience has been offered.²⁵ For reasons related to CJC needs and funding, as well as for managerial flexibility, the CJC now conducts its own mediator training. This training role has also expanded to provide specific training programs for other government organisations and departments, such as Court Registrars,²⁶ and other mediation agencies.²⁷ The pioneer CJC model has been adopted and CJC expertise employed in the training for community mediation programs in Victoria, Queensland and the ACT. In Victoria mediators were originally trained at TAFE Colleges but responsibility for training has now been accepted by the Attorney-General’s Department and is centrally coordinated. Other community mediation centres which have grown directly out of community initiatives are most likely to have developed their own courses in-house, or may provide them in conjunction with a TAFE college or another educational institution.

Family dispute resolution

3.13 Mediators in agencies providing family dispute resolution have usually under-gone their initial training in association with that agency. The Family Mediation Centre (FMC) in New South Wales has an extensive ²⁸ training course in the agency’s model of mediation which has been supplemented with a shorter course for students with prior mediation training. Accreditation by the FMC requires successful completion of its courses, although there is provision to recognise other approved training.²⁹ The Marriage Guidance Council also has in-house training programs for its mediation services.

3.14 Recently established programs in family and parent/adolescent mediation funded under the Federal Government’s guidelines have met the need to have trained staff by various means: employing mediators trained elsewhere; engaging external trainers to devise courses tailored to the program; sending staff to relevant courses available elsewhere; or developing in-house courses. Some private practitioners in family dispute resolution have undertaken training overseas, as have some who work in agencies. Others have received agency training and now work independently. Additional training courses to update or expand skills are available from many of the sources noted above, and from the many trainers who visit Australia.³⁰

Commercial dispute resolution

3.15 Practitioners of commercial dispute resolution receive training from several sources. Although some training is tied to an agency, program or procedural model, the approach tends to be more generalist. This no doubt reflects the greater proportion of private practitioners in commercial dispute resolution, the less stringent adherence to a particular process or model within programs or agencies, and the nature of parties and disputes involved. Courses in commercial mediation and other relevant techniques and skills are available from sources such as the Australian Commercial Disputes Centre (ACDC), Lawyers Engaged in Alternative Dispute Resolution (LEADR), Bond University Dispute Resolution Centre and the Institute of Arbitrators Australia (I Arb A). As well, courses in negotiation and mediation are offered by some private management consultants and trainers.³¹ Seminars introducing and promoting consensual dispute resolution for commercial disputes to lawyers and clients are also provided by these sources.

3.16 Commercial mediation courses are generally open to anyone with relevant experience and interest. Other courses provided by the first three named trainers and private firms are tailored to the needs of the particular program, Organisation or context of dispute resolution in which they are given. Overseas training is also a feature of commercial dispute resolution, either undertaken in the United States ³² or from visiting trainers conducting courses in Australia.³³

Court and tribunal connected programs

3.17 There is no standard approach to training for personnel used in dispute resolution programs within courts, tribunals and administrative agencies. In some cases a comprehensive training program has been prepared but this is not common. Alternatively, staff attend conferences and courses which are generally available, such as those in negotiation skills or consensual dispute resolution. Some programs commission training providers to present standard courses with specific application to the program in question, or conduct in-house training. In those programs which engage an outside agency or individual practitioners to perform dispute resolution services, the availability of trained personnel is a factor in their appointment.

3.18 Finally, in some³⁴ of these programs, only minimal or no formal training is required or offered. Skills are developed on the job and through the shared experience of staff. Whilst this may have been an appropriate or even essential approach when the programs began, in the light of the opinions expressed in submissions received by the Commission, this situation should not be viewed as desirable. The issue of training for court and tribunal connected ADR programs is considered further in Chapter 6, and the discussion which follows is also relevant to them.

Tertiary institutions

3.19 The study of dispute resolution is becoming an accepted aspect of academic curricula in many disciplines, particularly law, but also in social work and industrial relations. Courses currently available do not have the objective of training students as dispute resolution practitioners, although some offer practical experience in negotiation and mediation skills. These courses are designed to make students familiar with the processes, to consider issues involved in their use, and enable them as professionals to evaluate dispute resolution options and make appropriate referrals.³⁵

3.20 Various strategies are being adopted as faculties incorporate dispute resolution into the curriculum. ³⁶ Initially dispute resolution is included within established subjects, then distinct advanced courses are created at both graduate and postgraduate levels. A further development is the creation of dedicated dispute resolution programs for post graduate study. Most law schools in Australia treat dispute resolution within existing courses; undergraduate courses are currently offered at four law schools, and post-graduate courses in three.³⁷ A Masters and Graduate Diploma in Dispute Resolution is being developed for the University of Technology, Sydney for graduates in law and other disciplines. The Dispute Resolution Centre at Bond University and the Conflict Resolution Centre at Macquarie University are both active in teaching and research. An interdisciplinary course is available at Macquarie University where the Conflict Resolution Centre has been established with the support of the Conflict Resolution Network. There are undergraduate courses concerned with mediation for social work students at two universities, where post-graduate research is also being undertaken.³⁸

OTHER ISSUES RELEVANT TO TRAINING

3.21 The Discussion Paper (DP 21) considered various aspects of training applicable to mediators. Most submissions offered comments on the series of questions posed in the Paper. The Commission is not concerned here with stipulating standards for training. This is unnecessary in the light of its recommendations; however, we believe that several issues should be addressed to highlight the perspectives expressed in submissions and to indicate some of the difficulties associated with training.

Sources of training

3.22 In the submissions, the desirability of training to meet diverse needs was frequently expressed ³⁹ Various combinations of training sources were recommended, for example those offering basic and specialised training; or supplementing theoretical classroom preparation with practical or apprenticeship components.⁴⁰ Most submissions favoured training being provided by experienced mediators or mediation services and professional associations. Preference was expressed for existing sources of mediator training. It appears that those currently providing training are considered appropriate and satisfactory as little criticism was voiced.⁴¹

3.23 The Commission considers that the diversification of training sources will continue in the future. This will be valuable. A monolithic training structure should be avoided. There is a concern that fragmentation will prevent agreement on training standards. Training at different levels is also likely to create a hierarchy (as in many other occupations) affecting the structure of the practice .⁴²

Tertiary institutions

3.24 Tertiary institutions were one of the sources of training advocated in some submissions.⁴³ Their involvement in providing professional training in dispute resolution has been limited to date. These submissions envisaged strong links between the tertiary institution and agencies for providing opportunities for practical experience. There was some call for specialised professional education at graduate or post-graduate level.⁴⁴ Evidence suggests tertiary level training is an area which will grow as practitioners themselves demand training at a higher level in order to improve their practice and to obtain formal credentials. Academic institutions are likely to supply the courses to meet perceived needs.

3.25 Although it is a development which may not be welcomed by the entire dispute resolution community, the Commission considers it is inevitable and also desirable that academic institutions play a greater role in providing education in dispute resolution. This does not mean, however, that it should be an exclusive or even dominating role, or that the role of current sources of training is to be diminished. Our position is based on the fact that dispute resolution will, in time, develop as a discrete professional practice for some.⁴⁵ and that such practitioners ought to have access to as sound a training in professional skills as desired, commensurate with the role and responsibility expected of professionals. Furthermore, people training in other disciplines will wish to acquire familiarity with, and a degree of proficiency in, the skills of dispute resolution without practising wholly or partly as a mediator.⁴⁶ A problem which will no doubt emerge for tertiary courses in dispute resolution practice is how to provide relevant practical or apprenticeship experiences for these courses.

3.26 There is another role for academic institutions the importance of which should not be underestimated. It is occurring now in the United States, and to some extent in Great Britain. Research undertaken within tertiary institutions will result in a greater understanding of dispute resolution theory and philosophy, of the elements of practice of dispute resolution and of effective and ethical behaviour. This will serve to remedy what has been identified as a serious deficiency in dispute resolution training. ⁴⁷

Who should be trained?

3.27 Selection of persons to undergo training is generally a matter for course organ-isers. The Commission is not concerned with the exercise of their authority and responsibility to determine who meets the particular entrance criteria. Rather, the Commission is concerned with general principles and setting criteria for access to and suitability for undergoing training. Selection is a key element in the design of mediator training programs. The nature of the students will have a direct impact on the course content, and the demands of practice and training will determine selection criteria.⁴⁸

3.28 As to who should be entitled to undergo training, the view expressed in the majority of submissions is that there should be no pre-determined restrictions. This view was based on both ideological ⁴⁹ and practical reasons.⁵⁰ In some submissions the distinction was made between selection for entry to a training course, and for employment as a mediator: the criteria or restrictions would be applied at the later stage.⁵¹ A similar distinction applies in professions or occupations such as law which require character tests before admission to practice. Where restrictive selection criteria were supported, many submissions referred to personal qualities and commitment to the philosophy of mediations ⁵² Others would make the interests of clients paramount in the selection process.⁵³ A criterion for selection of trainees for community mediation services, for example, is the need to reflect the ethnic and cultural diversity of their clients.⁵⁴ The Commission was also urged to consider the desirability of recruitment of mediators with particular language skills for community mediation .⁵⁵

3.29 The necessity for academic qualifications or occupational background is strongly debated. Some submissions referred to the need for people with special sensitivities and skills or with existing specialist knowledge in some contexts, particularly family disputes.⁵⁶ Commercial mediators are sought from the legal profession and the branches of industry and commerce in which the disputes arise. It was argued in one submission that trainee family mediators should have legal or behavioural science qualifications ⁵⁷ because of the specialised knowledge required for the practice of family mediation. Alternatively, the community mediation model as applied to family mediation vigor-ously maintains that non-professional intervention in family matters is successful, and that academic qualifications are unnecessary, or may even be a hindrance in training family mediators.⁵⁸ There was generally no support in the submissions for a prerequisite of academic qualifications for mediation training.

The Commission’s view

3.30 The Commission agrees with the view that mediation requires intellectual ability and with the proposition that the presence or absence of academic qualifications is not conclusive evidence of such ability. As noted in the Discussion Paper, completely open entry to courses may be a noble aspiration, but economic pressures and scarce resources are the reality. This makes the selection process an essential element of the design of effective training programs. Constraints on resources and time may determine the nature of prerequisite knowledge, skills or qualities. The basis on which selection is made will reflect the underlying assumptions of those involved, for instance that many kinds of people can learn to mediate community disputes, or that pre-existing substantive knowledge is necessary. Considerations of equity and access may also influence selection criteria. These assumptions should be carefully considered and articulated. It will also reflect the goals of training, such as enhancing community dispute resolution skills as well as preparing mediators for a particular service.⁵⁹ Administrators in all programs face the problem of identifying and screening out those likely to be unsuitable mediators, a task made more difficult when they have not been discouraged either before or during training.

Selection criteria

3.31 The criteria which are frequently cited for selection of mediators are personal qualities: an aptitude for developing the skills of mediation and for undertaking mediation, and demonstrated commitment to the practice, the philosophy and principles of mediation.⁶⁰ Some enumerations of desirable personal qualities suggest mediators should be aspiring secular saints. All focus on the need to be flexible, non-judgmental, self aware and assertive, have empathy for others and a sense of humour.⁶¹ A rarely articulated ⁶² but important criterion for dispute resolution in highly emotive areas of interpersonal disputes is the absence of unresolved personal experiences which may impinge on the mediator’s necessary neutrality and impartiality.

3.32 It is not always clear how these qualities are to be assessed.⁶³ Selection based on aptitude presupposes that the abilities which give a person the aptitude to perform or learn the skills of effective mediation may be identified and that whether a person has these abilities can be determined. It also presumes a consensus about what constitutes effectiveness in mediation, what skills are required of a good mediator, and a clear understanding of the role of the mediator.⁶⁴ Given the debate about the latter, and limited research about the former, selection based on aptitude criteria must be tentative.

3.33 The uncertainty in this area suggests that various approaches should be considered and evaluated. One recent research project in the United States ⁶⁵ suggests that it may be possible to design an evaluation process for selecting and training mediators. Component skills of effectiveness in mediation were identified ⁶⁶ and selection based on demonstrated performance of those skills. There seemed to be no strong correlation between presenting qualifications (including prior mediation training or experience and professional qualifications and performance), or interview-based assessments of ability to mediate effectively, and demonstrated performance of the skills identified. However, on-the-job performance appeared to correlate with performance on evaluation. Honeymann (1990) found little correlation between actual mediator performance and any other factor: age, sex, race, prior experience, law school grades, or relative performance in a written exam.

Nature of training courses

3.34 The preferences expressed in submissions about desirable features of training courses reflected the diversity of training currently available. The nature of any mediator training program will be determined by the interrelationship of a number of factors. These include the purpose of the course, the prevailing concept and chosen model of mediation, the backgrounds of students and their availability, resources, the context for which training is given, the organisational setting, the target service, its clients and principles.⁶⁷ Furthermore, it will be influenced by several other, not necessarily articu-lated, assumptions about the role of mediators, the transferability of skills, theories of conflict resolution, empowerment, social change and ultimately, human nature.⁶⁸

3.35 The obligation to cater for diverse needs in the nature and method of training was recognised in the submissions. Many advocated a mix of basic and specialised courses.⁶⁹ Many emphasised the importance of continuing education and refresher courses where practice has lapsed. ⁷⁰ Continuing education has been recognised as necessary in many professions.⁷¹ The Commission would suggest that continuing education is essential for a practice such as mediation, which is only in its formative stages with standards of practice and ethical codes yet to be established, and where initial training is not usually extensive.

3.36 The overriding focus in mediator training is to produce competency in the skills of mediation. There seems to be broad agreement that the curriculum should include the following topics:⁷²

1. Knowledge of mediation and negotiation theory.

2. The process of mediation.

3. The substantive and procedural context in which mediation will occur.

4. Skills of the mediator, including analytical, communication, organisational and interpersonal.

5. Attitudes, values and ethics of practice.

The curriculum of existing training courses with which the Commission is familiar is based on these components, although the degree of uniformity may be more apparent than real as the weighting of and approach to each varies considerably. Some submissions proposed additional subjects for a syllabus such as management (case and agency), issues of social justice and equity, body language, thinking and logic.⁷³ Cross-cultural issues, and the use of interpreters were also mentioned as necessary in courses for mediators likely to encounter ethnic clients and cross-cultural issues.⁷⁴

Substantive knowledge

3.37 The place of substantive knowledge is one area where the views in submissions reflected the unresolved debate about whether there is a generic process of mediation and whether mediation can be taught and practised without reference to the substantive context in which it occurs.⁷⁵ Some considered such preparation necessary (either in the core or as a specialised component) but others rejected its relevance.⁷⁶ One submission argued that the extent of specialist knowledge needed for family mediation was such as to justify requiring law or behavioural science qualifications, a view obviously not shared by those responsible for training family mediators in community agencies. Others argue that the crucial issue is how the knowledge is used in the mediation process (ie whether mediators recognise when advice is required).⁷⁷ There is concern that mediators may cause harm because they lack relevant knowledge to skilfully deal with the dynamics of interpersonal disputes.⁷⁸

Legal knowledge

3.38 The category of necessary substantive knowledge most often mentioned was legal. This was explained by the mediator’s need to identify the legal implications of the dispute, to consider the viability or enforceability of settlements reached, to refer parties to obtain independent legal advice where this is thought necessary,⁷⁹ or to understand the legal rights and responsibilities of parties and mediators.⁸⁰ One submission proposed that legal knowledge is necessary only for an intake worker in community mediation or a mediator in a government department administrating a law “as it could only be used to decide right and wrong”.⁸¹ This view of the role of legal knowledge would not find wide support. For family mediation, it is considered useftil to have legal knowledge relevent to parenting and financial and property agreements. The professional or occupational background and training of many who practise family mediation provides much of this substantive knowledge. Where the community mediation model is used, the background of mediators makes it necessary to address those issues in training. The express objective of one course is to make the mediators capable of recognising the limits of their knowledge and responsibility, and where referral and consultation is appropriate.⁸²

PROBLEMS ASSOCIATED WITH TRAINING MEDIATORS

3.39 The teaching of mediation in particular, and conflict resolution in general, has received attention only in very recent years. The nature of training required and its novelty creates some interesting dilemmas. The Commission feels that it is appropriate to highlight some of these.

No pedagogical tradition

3.40 A major problem facing trainers is that there is no established pedagogical tradition. This means courses have been developed in isolation to meet the particular situation. Frequently much duplication has occurred. In these circumstances there is much scope for creativity but also for idiosyncrasy in what is taught and how. Principles of curriculum design involve establishing goals and objectives, determining the essential knowledge base and specific skills and attitudes for course content and identifying the methodology necessary to produce competency and evaluate efficacy.⁸³ There are many perspectives from which these can be approached in the training of mediators, and there is relatively little by way of theoretical bases on which to rely. There is, as yet, little systematic dialogue or sound research on what constitutes effective curriculum and training programs. Some research is being published in the United States but is not always readily available to program designers in Australia.⁸⁴ With more experience, evaluation opportunities, and the involvement of academic and research institutions principles for mediator training should develop, Recent American commentators have suggested that the targets for research should include the efficacy of particular teaching techniques, the degree to which such variables are translated into quality service delivery,⁸⁵ comparative analyses of the effectiveness of training programs and models, and what other knowledge would improve mediator performance.⁸⁶

Interdisciplinary approach

3.41 The difficulties are compounded by the interdisciplinary nature of dispute resolution theory and practice. It has perspectives from the disciplines of sociology, psychology, law, as well as from counselling, communications, political science, organisational behaviour, anthropology, industrial relations, semiotics and game theory. The need to integrate these perspectives places important demands on course design. The challenge is to master the elements from individual disciplines, to translate and apply them across fields, and integrate them into a coherent and effective teaching program so that practitioners are prepared to respond to the multi-dimensional disputes which win confront them.⁸⁷

Need for theoretical base

3.42 Somecommentatorshavenotedtheabs-nceofaclearlyidentifiedandunderstood theoretical and philosophical basis in training given to mediators,⁸⁸ though it ought to be of “central, crucial and critical importance.”⁸⁹ The development of theories of mediation, of dispute or conflict resolution and of conflict itself have not received the attention that has been devoted to experimentation in practice and the implementation of programs. Courses focus on the practical, the “how to”. Rarely are the theoretical origins of the prescribed procedures identified, explained, or subject to critical analysis. Many courses operate as if, or even declare that, the practice of dispute resolution can take place in a theoretical vacuum, while others present a cursory, one dimensional analysis. Texts available on the mediation process are largely process-oriented, designed for teaching the skills and how to set up in practice and contain limited, if any, treatment of theoretical, philosophical or ideological issues.⁹⁰ Models of mediation are more readily distinguished by differences in process than those of theory or philosophy, although there may be significant differences in underlying theoretical assumptions, ideology and values. Training courses for particular models are characterised by positional statements, prohibitions and exhortations, often without explaining the theoretical backdrop.

3.43 The need to expose course participants to a range of theoretical perspectives has been advocated.⁹¹ As it is unlikely that any one theory can provide a satisfactory and coherent explanation of conflict, it is argued that students should explore a range of theories critically, creatively, and be encouraged to develop their own personal ap-proaches. Theoretical studies can also take account of cultural issues and the cultural context of dispute resolution theories and practice, and raise questions of social justice, structural conflict, structural violence, social inequality and ideology.⁹²

Skills training

3.44 Several difficulties are inherent in what appears to be the dominant purpose of training courses, that is to develop students’ practical skills. Courses frequently adopt process rules which are to be followed strictly, although it is argued that mediators should be exposed to the widest range of strategies and techniques so that flexibility may be achieved in practice.⁹³ Submissions advocated experiential learning,⁹⁴ although the demands of such an approach may not always be understood or there may be no clear model for implementing it.⁹⁵

3.45 Role plays and simulations heavily dominate teaching methods - a situation which creates unique methodological problems. Classroom dynamics can be volatile and unpredictable, requiring careful managements.⁹⁶

Ethics

3.46 A final difficulty is created by the need to address issues of ethical practice in training, particularly, but by no means exclusively, for mediation of interpersonal disputes. This has implications both for what to teach and how to teach it. It can be said that every decision of a dispute resolution practitioner is an ethical one. Recent writing has pointed to difficulties in training practitioners to consider the ethical implications of their performance and how to respond to the inevitable ethical dilemmas they win encounter.⁹⁷ Role-playing, which dominates training strategies, is considered inadequate for integrating knowledge into an ethical framework.⁹⁸ Courses need to provide grounding in philosophical and ethical theory, and explore tacit ethical assumptions,⁹⁹ rather than prepare mediators on the basis of ethical behaviours according to a particular model. Codes of conduct face the danger of falling between the narrowness of being model or agency specific, or being so general as to be little more than pious statements of intention. It has been suggested that ethical teaching and codes should address matters such as legal rights and duties, the limits of competency, and how to deal with specific situations, such as disclosure of physical and substance abuse or illegal activities.¹⁰⁰

TRAINERS

3.47 Ideally, those who train practitioners in dispute resolution should have both teaching skills and experience in (and indeed commitment to) mediation.¹⁰¹ The ideal is not always attainable. There are significant structural and practical problems for a practice like dispute resolution, which is in its formative stages. The need to train mediators is pressing, and suitably qualified instructors are not always available. Paradoxically, a criticism is made of the oversupply of trainers from the ranks of those who, after undergoing only basic training and without extensive practical experience, or formal qualifications or skills as educators, proffer themselves as trainers.

3.48 Submissions to the Commission recognised the dilemmas noted in the Discussion Paper about the source and qualifications of trainers, although there are no clear solutions.¹⁰² Formal regulation of trainers at this stage was said to be infeasible and premature,¹⁰³ although it was advocated and may need to be considered in the future. This conclusion is consistent with the Commission’s view on the need for regulation of training and practitioners generally. It is premature to require formal standards to be met when they cannot be established or enforced readily, nor has need for such a level of intervention been demonstrated. The Commission’s recommendation for an Advisory Council and the Database will provide a means by which the qualifications of trainers are on the public record and the quality of training is open to review.

1. See LEADR, ADRA, CJC, Fisher, Forrest, and Tillett.

2. Monk, Harvey, LEADR.

3 . Lismore NC, Fine, LEADR.

4.SCMS.

5. eg Pengilley.

6. MAV, Van T.

7. Davenport.

8. FLSLCA.

9. Wade.

10. DP 21 para 3.2.

11. See Family Law Council Family Mediation Discussion Paper (Canberra, 1990) at 31.

12. Greg Tillett Conflict Resolution: Training and Education Unpublished paper given at the Conflict Resolution Trainers’ Conference, (Sydney, November 1989) (Tillett CRN) at 9.

13. See DP 21 para 3.3.

14. SADRA, Fisher, Forrest, Van T, SCMS, Gosnells DIC.

15. I Arb A, ADRA, FLSLCA, Tiliett.

16. Wade.

17. Davenport, MGCSA, LEADR, LIV.

18. Forrest.

19. See Chapter 5 para 5.21.

20. See Chapter 5 paras 5.6-5.11.

21. Information in this section about training courses was supplied to the Commission in the course of enquiries on this reference and for the Directory of Dispute Resolution which the Commission is Publishing.

22. See Linda Fisher “Third Party Neutrals - Issues in Training” (1991) 2 Australian Dispute Resolution Journal 12 at 15-16; Victoria Attorney-General’s Working Party on Alternative Dispute Resolution Report (Attorney-General’s Department, Melbourne, June 1990) at 46.

23. LEADR, ADRA.

24. Fisher note 22 at 15.

25. CJC Annual Report 1989-1990 at 8.

26. Supreme Court Registrars for Issues and Listings Conferences, District Court Registrars for Pre-Trial Conferences, CJC Annual Report 1988-1989 at 12.

27. See CJC Annual Report 1989-1990 at 19.

28. Originally 150 hours but 200 in 1991.

29. Eric Stevenson “The Use of Community Mediation in the Family Mediation Centre (NSW)” (1990) 1 Australian Dispute Resolution Journal 24 at 28.

30. eg CDR Associates, Colorado conducted courses in 1989 and 1990.

31. eg Effective Negotiation Services.

32. eg Harvard Program on Negotiation, CDR Associates, Colorado.

33. CDR Associates, Colorado conducted a course for LEADR in October 1990 in Commercial Mediation.

34. Perhaps the majority, see Greg Tillett Conciliation: Processes, Projections and Problems Unpublished Address to the National Conciliators’ Conference, (Sydney, May 1990) (Tillett NCC).

35. See Hilary Astor and Christine Chinkin “Teaching Dispute Resolution: A Reflection and Analysis”(1990) 2 Legal Education Review l; and “Dispute Resolution as Part of legal Education” (1990) 1 Australian Dispute Resolution Journal 208 at 208-9.

36. Jenny David “Integrating Alternative Dispute Resolution (ADR) in Law Schools” (1991) 2 Australian Dispute Resolution Journal 5; J E Effron “Breaking Adjudication’s Monopoly: Alternatives Come to Law School” (1991) 2 Australian Dispute Resolution Journal 21. For patterns of development in the United States see Madeleine Crohn “Dispute Resolution and Higher Education” (1985) 1 Negotiation Journal 301. Of particular interest is the extent to which alternative dispute resolution processes are incorporated into clinical education programs: Lyn Winzer “Developments in ADR: United States” Mediation Association of Victoria Newsletter (December 1989) at 6.

37. Survey by the I-aw Council of Australia, August 1990.

38. Universities of New South Wales and South Australia.

39. SADRA, Tillet Forrest, Law Society, Luwenburg, MGCSA, CJC, Davenport, Harvey, Lismore NC, SCMS.

40. MGCSA, LEADR, LIV, MAV, I Arb A.

41. But see CJC, Meggs, Davenport, Tillett.

42. Tillett.

43. FLSLCA, I Arb A, LEADR, LIV, MAV, Lismore NC, Leeuwenburg.

44. Gerondis.

45. As is occurring in the United States, particularly with divorce mediation, see Elizabeth J Koopman and E Joan Hunt “Divorce Mediation: Issues in Defining, Educating and Implementing a New and Needed Profession” (1983) 21 Conciliation Courts Review 25 at 29.

46. University of Technology, Sydney LLM course in international commercial dispute resolution has included the ACDC mediator training course; see also Leonard Riskin “Mediation in Law Schools” (1984) 34 Journal of Legal Education 259.

47. See below paras 3.40-3.43.

48. See Joseph Stulberg and Ruth Montgomery “Design Requirements for Mediator Development Programs” (1987) 15 Hofstra Law Review 499.

49. SCMS, MAV.

50. LEADR, SADRA.

51. SCMS, Fisher, Davenport, Fine, FMC, ADRA, and CJC in which was noted concern with training courses giving unrealistic expectations to students about employment opportune des.

52. Fisher, Gerondis, WADRC, LEADR, Harvey, LIV, Lismore NC.

53. Gosnells DIC, FMC.

54. CJC Annual Report 1989-1990 at 7; Victoria Neighbourhood Mediation Centres Evaluation Report (Attorney-General’s Department, Melbourne, 1989).

55. Ethnic Affairs.

56. MGCSA, I Arb A, Renouf, FLSLCA, CJC; PeterAdier “The Balancing Act of Mediation Training” [1984] Training and Development Journal (July) 55.

57. Renouf.

58. Stevenson note 29 at 24, quoting Margaret L Shaw and W Patrick Phear Parent Child Mediation Manual 1989 (The Institute of Judicial Administration, New York, 1989).

59. Stulberg and Montgomery note 48 at 552-3.

60. Lismore NC, LEADR, LIV, Gerondis. See ADRA Draft Standards for the Training of Mediators.

61. See for example CJCAnnual Report 1989-90 at 8, ADRA Draft Standards for Training Mediators.

62. See Lisa Parkinson “Qualification and Training of Divorce Mediators on Britain” in Vermont Law School Dispute Resolution Project The Role of Mediation in Divorce Proceedings - A Comparative Perspective (United States, Canada and Great Britain) (Vermont Law School, Vermont, 1987) 185 at 191.

63. ADRA Draft Standards proposes use of written applications and personal interviews by at least two qualified and experienced mediators.

64. Jay Folberg and Alison Taylor Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation (Jossey-Bass, San Francisco, 1984) at 38-65; John Schwartzkoff and Jenny Morgan Community Justice Centres: a Report on the New South Wales Pilot Project, 1979-81 (Law Foundation of New South Wales, Sydney, 1982) at 39-40; Stulberg and Mortgomery note 48 at 503-8; Robert A Baruch Bush “Efficiency and Protection, or Empowerment and Recognition?: The Mediator’s Role and Ethical Standards in Mediation” (1989) 41 Florida Law Review 253.

65. Brad Honoroff, David Matz and David O’Connor “Putting Mediation Skills to the Test” (1990) 6 Negotiation Journal 37.

66. Based on and testing the propositions of Christopher Honeymann “Five Elements of Mediation” (1988) 4 Negotiation Journal 149; and “On Evaluating Mediators” (1990) 6 Negotiation Journal 23.

67. See David A Cruickshank “Training Mediators in British Columbia: Moving Toward Competency-based Training” (1989) 7 Journal of Professional Legal Education 23 at 24; Family Law Council, Family Mediation Discussion Paper (Canberra, 1990) at 31-2.

68. Tillett, NCC note 34 at 3-5; Kevin Avruch and Peter W Black “Ideas of Human Nature in Contemporary Conflict Resolution Theory” (1990) 6 Negotiation Journal 221.

69. See ADRA, MAV, Tillett.

70. Forrest, LEADR, LIV, CJC, ADRA, Tillett.

71. eg MCLE for solicitors.

72. DP 21 para 3.16. See Cruickshank note 67; Fisher note 22.

73. See MGCSA, SCMS, Forrest, WADRC, I Arb A; Tillett.

74. MGCSA, Fisher, SADRA, Ethnic Affairs.

75. See Folberg and Taylor note 64 at 7; Christopher Moore The Mediation Process: (Jossey-Bass, San Francisco, 1986); Adler note 56.

76. SCMS.

77. eg FMC.

78. Meggs, Renouf.

79. LEADR, WADRC, LIV, Wade.

80. Tillett.

81. SCMS.

82. Stevenson note 29 at 27; see also Moore note 75.

83. Elizabeth Koopman “The Education and Training of Mediators” in J C Hansen (ed) Divorce and Family Mediation (Aspen Systems, Rockville, 1985) 118 at 124.

84. See Kenneth Kressel and Dean G Pruitt Mediation Research (Jossey-Bass, San Francisco, 1989).

85. Koopman note 83 at 139.

86. Beatrice Schultz “Conflict Resolution Training Programs: Implications for Theory and Research” (1989) 5 Negotiation Journal 301.

87. Raymond Albert “Mediator Expectations and Professional Training: Implications for Teaching Dispute Resolution” [19851 Missouri Journal of Dispute Resolution 73.

88. See generally Tfliett NCC, note 34, CRIV note 12, Schultz note 86, Adler note 56.

89. Tillett.

90. See Blair H Sheppard “The Art and Science of Mediation” (Book Review) (1988) 4 Negotiation Journal 161 for a discussion of this approach in texts on the mediation process.

91. Tiflett, NCC note 34, CRN note 12; Albert note 87.

92. Tillett, NCC note 34 at 6.

93. Tillett, CRN note 12 at 6, 34.

94. SCMS, LEADR, Tillett, Fisher.

95. Roy J Lewicki “Challenges of Teaching Negotiation” (1986) 2 Negotiation Journal 15.

96. See Lewicki, note 95; Astor and Chinkin note 35.

97. See generally for the teaching of ethics to mediators: Sarah Childs Grebe, Karen Irvin and Michael Lang “A Model of Ethical Decision Making in Mediation” (1989) 7 Mediation Quarterly 133; Sarah Childs Grebe “Ethical Issues in Conflict Resolution: Divorce Mediation’ (1989) 5 Negotiation Journal 179; Kevin Gibson “The Ethical Basis of Mediation: Why Mediators Need Philosophers” (1989) 7 Mediation Quarterly 41; Gregg B Walker “Training Mediators: Teaching About Ethical Concerns and Obligations” (1988) 19 Mediation Quarterly 33.

98. Cruickshank note 67.

99. Grebe, Irvin, and Lang, note 97; Gibson note 97.

100. Tillett; see Grebe note 97 at 79, Walker note 97 at 34.

101. I Arb A, Lismore NC, SCMS, LEADR, LIV, WADRC, Fisher, FLSLCA.

102. MAV, Davenport, Fine, MGCSA, Lismore NC.

103. LEADR, LIV.

104. CJC.