5.1 The Commission has identified several approaches to the regulation of dispute resolution. The various models and approaches which are used in the community to regulate the activities of professions and occupations have developed in an ad hoc, contingent manner. They reflect great diversity, and inconsistencies in philosophy and approach, nomenclature, standards, nature and extent of control. Not all may be readily applied to the practice of dispute resolution, although some are used already for particular purposes. They operate in conjunction with obligations imposed by statute and the common law, government administrative controls, and self-regulation, as wen as market forces. It is necessary therefore to analyse how well all the approaches currently used meet the community’s needs which have been identified.
PROFESSIONAL REGULATION MODEL
5.2 The traditional model of professional regulation was presented in the Discussion Paper as appropriate for mediators.1
5.3 Although there is no legal definition of a “profession’, there is a concept with distinguishing criteria which focus on an organised community of practitioners who share a systematic body of knowledge and skills acquired through long prescribed training, and commitment to a set of professional norms. These norms relate to competence, quality of performance and the service ideal, which places devotion to client’s interests above personal interests or commercial profit.2 A more recent approach to the definition of professions focuses on the process of establishing control over the market for services.3 A process by which an occupation is professionalised can be identified. The activities involved are familiar, and include defining professional tasks, creating a professional association, establishing standards for training and practice, seeking legal support for protective regulation, and creating a formal code of ethics.4
5.4 The typical measures for regulation of professions, are designed to affect the structure of the market for services and the conduct of participants. Codes of ethics and standards of practice regulate conduct by indicating how members of the profession should behave towards each other, their clients and the community. Disciplinary procedures enforce them.5 Structural regulation by licensing, certification, or registration affects the availability of practitioners and the way they can participate in the market. The most common method is to restrict entry by setting qualifying standards. Other approaches divide functions amongst separate groups (such as the distinction between specialists and general practitioners or between barristers and solicitors), or impose controls on organisation and ownership (for example on the right to practise independently).
5.5 Inconsistent or haphazard use of terminology causes confusion in discussion of regulatory policy. Definitions are given in Chapter 4 at para 4.3. Co-regulation, where the government delegates a great deal of responsibility for control to practitioners often has the appearance of self-regulation .6 Licensing means that practice is permitted only with government authority, although the terms registration or certification are also often used interchangeably for this situation.
Application to mediation
5.6 The applicability of the professional regulation model to mediation is not at all clear. Mediation can offer examples of most of the activities associated with the preliminary steps in the development of a new profession, but whether this is the likely result, or even the goal, is uncertain. Mediation is yet to take the “obvious first step” of becoming a full-time vocation.7 Most mediation is practised now, and is likely to continue so at least in the short to medium term, as an additional or associated role for an existing full-time occupation, or in a volunteer capacity. For others mediation represents skills added to existing professional techniques. Practice in most situations depends more on mastery of a process and the exercise of tacit elements of judgment and human relations skills than on the conventional professional training in a body of knowledge or doctrine. The substance of the knowledge required is still a matter for debate.
5.7 Within the ADR community there are ambivalent, even contradictory attitudes toward regarding mediation as a profession. Some see as both desirable and necessary the creation of a separate and discrete occupation, with academic training, strategies and ethics of its own.8 Within government agencies this is occurring already for example with plans for Mediators in the proposed Family Court Mediation Service, or conciliators in agencies administering legislation which requires conciliation. For others, establishing mediation as an occupation practised for reward conflicts with the ideologies of deprofessionalisation and client empowerment.9 According to this view, professionalism as a question of standards of practice and commitment to a code of ethics is preferred to a professionalised service based on academic qualifications alone.10
5.8 The communal sense of professional identity which provides a cohesive force for members of the professional group has not emerged. The Commission is aware of tensions and rivalries among dispute resolution practitioners.11 Submissions noted that regulation could be sought to secure private advantage for some sections of practice at the expense of others.12 It appears to the Commission that the narrow focus of training and limited experience of most practitioners prevents them understanding and valuing the nature of practice in diverse contexts, so that functional core beliefs which are a common attribute of professions have not yet developed.
5.9 There are other, practical, difficulties in applying schemes of professional regulation to mediators. These difficulties chiefly derive from the enormous diversity of contexts in which mediation is practised. Variables include factors such as the professional or occupational background, level and nature of training undertaken, the frequency or intensity of practice, employment status and the nature of remuneration of practitioners, as well as the substantive context of disputes and the institutional context in which practice occurs. Others relate to the manner in which mediation is performed, often dependent on the substance of the dispute, or the model or approach to mediation being used. Further difficulties are created by the nature of mediation itself, which relies so much on the personal qualities and interpersonal skills of the particular mediator in dealing with the parties in each dispute. The interdisciplinary nature of mediation, with perspectives drawn from communications, law, psychology, sociology, and many other areas creates difficulties for the discrete definition of professional tasks, the requisite knowledge and skills for their performance, standards of practice and ethical behaviours which are necessary for effective professional regulation. The novelty of practices which have only recently emerged as distinct activities undertaken formally and for reward further contributes to the difficulty in establishing the activities to which professional regulation should apply.
5.10 Despite these practical difficulties, professional regulation of mediation maybe feasible should this be what is desired. Specialisation, fragmentation and structural diversity of practice are features of many modem professions to which regulation is successfully applied.13 The legal profession is an obvious case.14 The concept is of a unitary profession whose members have the same basic qualifications but who practise in different branches. There are great internal distinctions but also a basic functional core.15 Mediation’s diversity may be overcome for the purposes of regulation but it appears to lack at this time the necessary universally accepted functional core for effective training and regulation. Social work has a variety of equally valid models of practice, and relies heavily on the exercise of human relations skills which makes the assessment and control of practice difficult,16 however it has emerged as a distinct profession with academic and practical training, standards of practice and ethical codes and legal liabilities. Regulation of mediation should be able to take account of different models, although this will require a greater understanding of competent and ethical practice than appears to exist at present.
5.11 Although the difficulties with regulating mediators on this model could be overcome, it is not recommended by the Commission. It is unnecessary and premature, given the lack of demonstrated need for government regulation at this level, and the current formative state of the practice.
ALTERNATIVE MODELS OF GOVERNMENT REGULATION
5.12 Direct government regulation by the means outlined above is not the only way of controlling the behaviour of members of occupational groups. Even without such approaches, no practice or occupation is unregulated. Various models exist. Some already apply to dispute resolution; others were suggested in submissions to the Commission.
Consumer protection
5.13 The common law imposes certain duties on people in trade and commerce which make them accountable to consumers and clients for injury or loss they may cause in the course of their dealings. The breadth and depth of these protections have been expanded considerably by the courts over the past half century. The common law has been strengthened by statutes which impose more explicit duties and/or sanctions. The Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 impose duties on mediators who fall within their terms. The definitions given to consumers, services, business, trade and commerce under the Fair Trading Act clearly makes it applicable to services provided by non-profit organisations or professionals, and to the full range of industrial and commercial activities.17 The Trade Practices Act will apply to some activities of professional mediators, and to incorporated services, including non-profit-making ones.18
5.14 Some submissions considered that reliance on consumer protection legislation was sufficient to protect the public.19 The regulatory scheme in the Fair Trading legislation is not designed to replace existing occupational or professional controls but to supplement them.20 Although general provisions of the Act will apply to dispute resolution practitioners, there is a more appropriate method for regulating mediators than using the Code of Practice provisions, given the occupational structure, the nature of their work and their proximity and relationship to the justice system.
5.15 The statutory creation of an ADR Services Ombudsman has been suggested in the context of a State ADR Service,21 modelled on the Legal Services Ombudsman, under the new Courts and Legal Services Act 1990 in the United Kingdom. Although this approach may be relevant in the situation for which it is proposed, the Commission is not persuaded that it is warranted in New South Wales.
Specific legislation
5.16 Legislative control can be exercised directly over dispute resolution agencies or programs. Community Justice Centres are regulated by the Community Justice Centres Act 1983. This detailed legislative model incorporates extensive control of the forms and processes of mediation used, the provision of mediation services, evaluation, accreditation of mediators, and makes the Centres administratively responsible to the Attorney General’s Department and to Parliament by means of an Annual Report. The Dispute Resolution Centres Act 1990 (Qld) is a similarly detailed statute, modelled closely on the New South Wales legislation.
5.17 A modification of this approach is to place agencies or programs within the administrative responsibility and funding of a government department, but provide only a minimal legislative framework, relying on administrative guidelines and/or local managements.22
Administrative controls
5.18 Another approach is for the Government to exercise administrative control over the particular program or agency or even individual practitioners using mechanisms to ensure accountability in management and service delivery. As a consequence of receiving funding or legal privileges, many dispute resolution agencies and services are already subject to regulation. Funds are distributed by the Commonwealth Attorney-General’s Department for family and parent/adolescent mediation to approved services.23 Criteria may include, but are not limited to, the level of qualifications and performance of individual staff. These can be applied with flexibility to account for diversity among agencies, and give agencies considerable autonomy while complying with guidelines.
5.19 Such a model is very useful where the State has an interest in ensuring quality and consistency in the standard of service provided across a range of agencies and programs. It may be useful where agencies or programs are used for court-connected ADR, are associated with a State-sponsored dispute resolution service,24 or receive government funding. With the growing trend for State involvement in the provision of dispute resolution services, both court-annexed and as part of agencies or departments, this is an approach which is likely to be used frequently. Principles of accountability demand that program administrators can demonstrate that the service meets an acceptable standard, and that mediators display an acceptable level of competence. Government administrative regulation in various forms is inevitable.
5.20 Whilesuchregulationisoftenveryeffective,atthisstagerelianceonthisapproach alone is not the most appropriate method for a regulatory system for mediation. Each administrative unit will have its own administrative needs and its own criteria. Stand-ardisation will be difficult to achieve, though a degree of co-ordination is desirable to encourage consistency. Considerable resources and expertise win be required to implement guidelines and monitor agencies. The greatest limitation of such an approach is that it ignores the small but significant private practice of dispute resolution. On the evidence from the United States and to date in Australia, private practice will expand and any general regulatory system should be able to encompass the whole range of mediation practices.
Vocational training regulation
5.21 Another approach suggested in submissions was to regulate the training courses provided for mediators.25 In this approach, training standards are developed, usually in consultation with the particular occupation, and courses offered are recognised or controlled in accordance with these criteria. In New South Wales there is legislation to establish an independent Vocational Education and Training Accreditation Board with responsibility to accredit public and private training courses.26 "Vocational” is not defined other than to exclude university and degree courses. The approach is deliberately broad to cover skills in all occupations but it is not intended to be comprehensive or compulsory. There is no reason why, in principle, this could not apply to training mediators, although the Board is yet to be established and no guidelines are available.
5.22 It is unlikely that the prospective statutory accreditation system will be a viable approach for regulating dispute resolution courses in the short term, should they come within the Board’s scope. Government regulation of training courses is premature, will require considerable resources, and will create practical difficulties. There are serious difficulties in establishing comparability among courses. It is likely to introduce an undesirable rigidity and inflexibility for courses which are in a constant state of change as theory and practice develop.27 In addition, it is relatively common for mediators to receive training outside the jurisdiction, both elsewhere in Australia and overseas, and international trainers conduct courses here.28 There is no evidence to suggest regulation should operate to restrict training to that available locally. Regulation which targets only courses in New South Wales will have a limited impact on the quality of training undertaken.
LEGAL LIABILITIES
5.23 Theconductofmediatorscanalsobecontrolledbytheapplicationofcivilliability, in the same way that the conduct of members of any profession or occupation can be called to account. When individual practitioners are liable for specific instances of actionable misconduct or incompetence it demonstrates to all the existence of a legal liability. It is argued that the existence of a legal liability will have a salutary effect on the quality of performance of all members of the group on which it falls as well as providing those who suffer harm with a means of redress.
Bases of legal liability
5.24 The Discussion Paper considered various bases of legal liability which could arise from a mediator’s relationship with clients.29 Any contract applying to the relationship will impose duties and liabilities. Principles of negligence are also a means of establishing a mediator’s liability. Claims arising from negligent misstatement are possible. Mediators may be liable for other torts (such as defamation) without reference to the mediator-client relationship. It has been argued in the United States that the law of fiduciary duties will impose obligations on a mediator which enable a client to seek redress.30
5.25 As indicated in the Discussion Paper, the taking of legal action against mediators may present practical problems in individual cases. There will be evidentiary difficulties in establishing liability and causation, identifying and quantifying damage, and determining the applicable standard of care or performance. Liability may be limited or excluded by agreement or on public policy grounds.
Immunity
5.26 The Discussion Paper raised the question of conferring statutory immunity on mediators beyond that already given.31 The extent of the immunity so given has not been considered judicially, nor has the position of mediators without such protection. The Commission is not aware that action has been taken against a mediator in an Australian court, nor of any successful action in the United States.32 The Courts (Mediation and Arbitration) Act 1991 (Cth) recently passed by the Federal Parliament gives mediators and arbitrators when performing their statutory functions under the Family Law Act 1975 (Cth) and the Federal Court of Australia Act 1976 (Cth) the same protection and immunity as a judge.
5.27 With few exceptions, those making submissions accepted that mediators could face the civil liabilities mentioned by the Commission. Generally this was implicit in the submissions which called for statutory immunity to be conferred on mediators.33 The view that mediators should be held to common law and equitable obligations was strongly expressed, but in only a few submissions.34 It was argued that although a mediator acting outside the accepted model may incur legal liability, clients do not need to rely on those rights to seek legal redress as the more appropriate response should come from disciplinary action by the agency or a professional or regulatory body.35
5.28 The call for some form of immunity for mediators is widespread36 though the basis on which it is sought is rarely explained. The rationales offered in submissions relied on the role of mediators in the system of administration of justice or the protection afforded clients by the voluntary nature of Mediation. Some sought immunities analogous to those conferred on quasi-judicial arbitrators who are liable for fraud but not for negligence.37
The Commission’s view
5.29 It is clear that regulating the behaviour of mediators principally by means of enforcing individual legal liability presents considerable practical difficulties. As well, it is unlikely to be a favoured method for those who have chosen a private non adversarial approach to dispute resolution. While it does offer the possibility of direct redress for actual harm, it is only that harm recognised by or quantifiable at law. The educative or remedial impact of decisions will probably take a considerable length of time to come into effect, although the potential liability ought to have a salutary effect on conduct. It is likely to be of limited value if immunity is conferred, on more practitioners than now enjoy it, either by statute or court rule, or as courts decline to impose it as a matter of public policy.
5.30 The Commission does not believe that a general immunity from legal liability is either warranted or feasible, despite sweeping assertions that it is necessary, and attempts to extend by analogy judicial and arbitrator (quasi-judicial) immunities to a mediator whose relationship with the justice system is uncertain.38 The protections which are sought are in themselves limited, and given to those whose actions come under public scrutiny. At common law, the trend has been to place increasing responsibility on professionals, not to limit their liability.39 All mediators will not be unfailingly competent and ethical. Those who are not should be held accountable. In the absence of an authorised regulatory body which could discipline practitioners, redress can only be sought through employing agencies or professional associations, whose complaint handling mechanisms are still being developed.
5.31 In some circumstances, particularly where accountability and control mechanisms are available, it may be appropriate for particular classes of dispute resolution practitioners to be granted specific exemptions from liability by a court or legislature. This occurs in specific legislation for agencies or programs.40
Confidentiality
5.32 In the Discussion Paper the Commission raised the issue of and sought submissions on the need for protection of confidentiality in mediation. It is a topic of much interest and debate among the dispute resolution community.41 That the effectiveness of mediation depends on participation with openness and candour is almost a truism. Where reasons were given in submissions for seeking legal protection for the confidentiality of mediations, they related to the need to encourage parties to disclose information without fear that it would be used to their disadvantages.42 Practitioners are concerned, too, that they will be required by subpoena to disclose evidence of communications made within mediation proceedings.
5.33 Opinions differed on how the protection should be achieved. Some considered that it was appropriate to rely on the common law, particularly a contractual term providing for confidentiality in relation to the mediation.43 The extent to which such a term will be effective has not been tested in a court. Alternatively it was argued that mediation would be covered by the privilege extended to “without prejudice” settlement negotiations.44 It must be noted that this protection is granted for limited purposes so that its application will be restricted.45 Demand for statutory protection was strongly expressed, and submissions proposed as models the protections in the Community Justice Centres Act 1983 and the Family Law Act 1975(Cth).46
5.34 Certain mediators and mediation sessions already enjoy extensive statutory protection, notably under the Community Justice Centres Act 1983 s28(4), (5), (6), the Dispute Resolution Centres Act 1990 (Qld) s5.3, the Evidence Act 1958 (Vic) ss21J, 21 L, 21 M and the Family Law Act 1975 (Cth) s18. As well, processes in some court and tribunal programs and administrative agencies enjoy confidentiality protections which derive from court rules, administrative policy or statute.
The Commission’s view
5.35 Indeterminingwhetherconfidentialityprotectionsshouldbegranteditisneces-sary to weigh the competing interests of the right to know and the right to privacy. Clearly the effectiveness of mediation will be enhanced when parties can discuss all their needs and interests without fear that this may subsequently be revealed or used against them. However, the public interest and the protection of peoples’ rights requires that certain information should not be concealed.
5.36 The Commission does not believe that a general confidentiality privilege for mediation is either feasible or warranted. The class of persons or processes on which it may be conferred cannot readily be ascertained. Nor is the Commission convinced that the case for a general protection has been demonstrated. It is proper, however, that specific classes of mediators, or proceedings, be given a confidentiality privilege. This should be done in the context of a particular program, or agency, or statute, such as has already occurred.
5.37 The nature of the privilege to be granted is also in issue. Blanket protection is not appropriate. Exceptions have been provided for matters such as reporting allegations of physical or substance abuse, criminal activities or threatened criminal activities, for legal actions arising out of mediation proceedings, for purposes of research and evaluation, and with the consent of all parties.47 There are many situations like these in which exemptions should be considered when confidentiality is proposed.48
SELF-REGULATION
5.38 Pure self-regulation occurs where any direct control on members of an occupa-tion is voluntarily imposed and administered by the practitioners themselves. It is entirely a private matter, without government authority, and of itself confers no legal status or liability. The traditional model consists of a representative occupational/ professional association which applies membership criteria, determines standards of training and practice and promulgates a code of ethics to which members voluntarily adhere and administers complaint handling procedures. Disciplinary procedures may follow, but without the sanction of the State. In practice, many self-regulatory schemes involve representatives from other interested groups. For mediators these could include representatives from among program or agency administrators, funding or parent bodies, educational or training institutions, related professional associations, consumers and the general public. As well as serving the public interest in this way occupational/professional associations are responsible for representing members’ interests, for example on employment issues. An alternative approach to self-regulation is at the level of service delivery, with each employer or provider assuming responsibility for the quality of service, including the qualifications of staff.
Benefits
5.39 Self-regulation can deliver a range of benefits, although its effectiveness is limited. It has the virtues of flexibility and low cost and is said to result in higher standards of practice and ethical behaviour. Where a professional or occupational group publicly assumes responsibility for the training, education and discipline of its members, and promotes a code of conduct, the public interest may be served. The benefits appear to depend upon the appropriateness of the ethical rules, the extent of adherence and self discipline among practitioners, the complaint handling mechanisms in operation, the availability of meaningful sanctions for non-compliance, and community participation.49 Self-regulation is appropriate where problems for consumers are not widespread and significant, and can be dealt with by recourse to alternative remedies.50 Naturally, there is concern about the conflict of interest as associations claim to serve both the interests of members and the public. These interests cannot always be coterminous. Other problems arise in respect of the public perception of the motives behind certain restrictions on the behaviour of practitioners (eg on advertising) so that the ideal of public service does not always match the reality.51 Without ethical rules directed at the public (rather than professional) interest and meaningful sanctions to enforce disciplinary measures, self-regulation will not necessarily protect the public from incompetent and unethical practitioners.
Current approaches
5.40 Apart from the regulatory controls already referred to, the practice of consensual dispute resolution is largely self-regulating. The most common approach is for each agency or program to take responsibility for the quality of the service it provides. Several measures have been variously adopted. These include a thorough selection process for trainees; accreditation after training; apprenticeship and supervised practice; the mandatory use of a uniform model or a co-mediation model; debriefing and regular supervision; and the use of observers.52 Professional associations are beginning to take a more active role in ensuring quality of service from their members, although it is much more tentative than the approach at agency level. The Institute of Arbitrators Australia maintains a Register of Conciliators and Mediators.53 The courts, legal profession and parties use this register to nominate practioners for particular disputes. LEADR is accrediting lawyers as mediators in each State. Requirements for accreditation include undertaking approved training with satisfactory evaluation, a minimum period of relevant legal practice, and continuing education.54 In addition, LEADR provides training to lawyers wanting to practise as mediators as well as to courts, tribunals and government. The Law Institute of Victoria plans to establish Alternative Dispute Resolution as a specialisation for which members may check accreditation.55
5.41 Various codes of conduct or standards of practice for dispute resolution exist. ADRA has a Code of Professional Conduct for members.56 The New South Wales Law Society Dispute Resolution Committee has prepared Guidelines for Solicitors who Act as Mediators. It contains guidelines which are compulsory relating to training, impartiality, neutrality and confidentiality and others concerning a mediator’s duties and procedures.57 The Law Institute of Victoria has Standards of Practice for Lawyer Mediators in Family Disputes and recently has drafted a Code for Lawyer Mediators.58 Some agencies or programs have a code of conduct to which their practitioners must adhere,59 dealing with matters such as the mediator’s responsibilities to the parties, the process, the agency, and the profession.
5.42 Most recently ADRA is preparing Standards for the Training of Mediators which contains a proposal for accreditation of training programs by ADRA, and detailed criteria on which evaluation of a training program would be made.60 It recommends standards for agencies which train and accredit mediators on the selection of trainees, the nature of training courses (length, techniques, trainers, curriculum, assessment) practical training, and the need for statements of ethics and standards of practice.
Submissions
5.43 Self-regulation in one of its many forms was the preferred option in several submissions. It was claimed that greater control was unnecessary or should be positively avoided.61 Other supporters considered this form of regulation would be the least likely to restrict flexibility and creativity as the practice of mediation develops.62 Most appeared to accept that it would serve compatibly the dual objectives of public and professional interest, although the Commission had expressed concerns about this in the Discussion Paper.63
5.44 Somecommunitymediationservicesarguedstronglyforself-regulationfortheir services.64 Such agencies argue that centralised state regulation is inappropriate for volunteer services which are part of a community movement. It is unwarranted and unnecessary as the “community development” process in operation ensures accountability by means which involve consumers, management committees, and professional links. It was claimed that imposition of external controls would create animosity in mediators and management, and threaten the viability of services by imposing extra costs and uncertainty about funding, and unwarranted levels of responsibility on volunteers.
5.45 Other proposals for self-regulatory systems made in submissions were actually advocating co-regulation, in the traditional model of professional regulation. One submission proposed legislation to be administered by a professional associations65 to license mediators, accredit training courses and set standards of practice. Alternatively, maintenance of a register of qualified mediators was envisaged. Another proposal for voluntary registration argued that standards of practice and criteria should be determined by a body broadly representative of the field, although practitioners would of necessity play an important role.66
The Commission’s conclusions
5.46 In the context of mediation, substantial self-regulation is an important means of ensuring the quality and accountability of dispute resolution services, particularly in conjunction with the various forms of government regulation which are already in place. There is currently no evidence that professional self-regulation favours practitioners’ private interests over the public interest in this area. The current consumer orientation and the volunteer status of many practitioners of dispute resolution, make this an area classically appropriate for self-regulation.
5.47 However, there are steps which should be considered to safeguard further the public interest. Self-regulation will develop more sophisticated mechanisms for prescribing and monitoring standards of training and practice as the theory and practice of dispute resolution develop. Greater involvement of consumers is possible. Formal mechanisms for handling complaints and providing consumer redress within the self regulatory approaches should also be considered, particularly where practitioners’ legal liability is uncertain or negated by legislation. Codes of conduct and standards of practice have a valuable educative function. They do, however, have only limited potential for ensuring accountability, particularly for defining competent and ethical behaviour across the varied contexts in which dispute resolution is practised. Also, codes of conduct and standards of practice cannot enforce sanctions.
5.48 Finally, there is a limitation on the effectiveness of self-regulation by a profes-sional association because of the fragmentation found in the practice of dispute resolution. No professional association commands the allegiance of practitioners from across the spectrum. Significant divisions and even rivalries exist among practitioners trained in different models, or operating in different contexts. These reflect the fact that the practice of dispute resolution is very young and has not matured to the point where there can be a discrete professional identity with a thorough understanding of profes-sional tasks, standards of practice and training and ethical behaviour on which self regulation (or any formal regulation) can be securely based.
FOOTNOTES
1. DP 21 Chapter 4.
2. Harold Wilensky “The Professionalisation of Everyone” (1964) 70 The American Journal of Sociology 137.
3. See T J Johnson Profession and Power (1972); M S Larson The Rise of Professionalism: A Sociological Analysis (University of California Press, Berkeley, 1977); and Richard L Abel The Legal Profession in England and Wales (Blackwell, Oxford, 1988). See David Weisbrot Australian Lawyers (Longrnan Cheshire, Melbourne, 1989) at 4-5.
4. Wilensky note 2; also United Kingdom Monopolies Commission, Report on the general effect on the public interest of certain restrictive practices so far as they prevail in relation to the supply of professional services, (HMSO, 1970) at 5.
5. Trade Practices Commission Regulation of Professional Markets in Australia: Issues for Review (Canberra, December 1990) at 18. Purely self-regulatory schemes adopt the same approach to control conduct of members of the occupational group. It occurs, however, without the force of sanctions supported with State authority.
6. Professional bodies such as those of lawyers and doctors which appear to have a large degree of control over their own members exercise it with statutory authority and are in fact accountable in varying degrees to the State. See Legal Profession Act 1987.
7. Wilensky note 2 at 142.
8. 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, referring to family mediation.
9. SCMS; see Peter Adier “Is ADR a Social Movement?” (1987) 3 Negotiation Journal 59.
10. SCMS; Wendy Faulkes “The Modern Development of Alternative Dispute Resolution in Australia” (1990) 1 Australian Dispute Resolution Journal 61 at 65.
11. See, for example “Peacemakers at Each Others’ Throats” Business Review Weekly (June 9, 1989) 93; Faulkes note 10.
12. Davenport, Wade.
13. Management, by comparison, has not taken the professionalisation path.
14. Roman Tomasic The Sociology of Law (Sage, London, 1985) at 44-45.
15. Weisbrot note 3 Chapter 1.
16. Stephanie Chariesworth, J Neville Turner and Lynne Foreman Lawyers, Social Workers and Families (Federation Press, Sydney, 1990) Chapter 2.
17. eg the two Codes of Practice already promulgated relate to retirement villages and the education export industry, Retirement Village Code Practice Regulation 1989 (NSW) No 691,1989, Education Export (Industry) Code of Practice Regulation 1990 (NSW) No 43, 1990.
18. Trade Practices Act 1974 (Cth) s6(4) definitions of business, services; ss4 and 52.
19. Pengifley, Davenport.
20. eg it does not replace the Legal Profession Act 1987 for solicitors.
21. Victoria Attorney -General’s Working Party on Alternative Dispute Resolution Report (Attorney-General’s Department, Melbourne, June 1990) para 4.27.
22. eg Victorian Dispute Settlement Centres, governed by the Evidence Act 1958 (Vic) Division 8 - Dispute Settlement Centres ss21L-21N.
23. See Guidelines for organisations seeking approval under the Family Law Act 1975 (Cth) - Part 11, Marriage Act 1961 (Cth) - Part 1A in relation to the conduct of programs of marriage counselling, family mediation or marriage education (Attorney-General’s Department, Canberra, 1988); Guidelines for organisations seeking funding of Youth Homelessness Services: Adolescent Mediator; Family Therapy, (Attorney-General’s-Department, Canberra, 1989).
24. Such as that proposed for Victoria by the Victorian Attorney-General’s Working Party on Alternative Dispute Resolution.
25. CJC, Pengilley, ADRA.
26. Vocational Education and Training Accreditation Act 1990.
27. See Linda Fisher “Third Party Neutrals - Issues in Training” (1991) 2 Australian Dispute Resolution Journal 12.
28. CDR Associates from Colorado, USA conducted several 3-5 day courses in Australia in 1990 for organisations such as LEADR, Mediation Association of Queensland and Family Mediation Centre, (NSW).
29. DP 21 Chapter 5.
30. See Arthur A Chaykin “ Mediator Liability: A New Role For Fiduciary Duties?” (1984) 53 University of Cincinnati Law Review 731 at 732; Arthur A Chaykin “The Liabilities and Immunities of Mediators - A Hostile Environment for Model Legislation” (1986) 2 Ohio State Journal on Dispute Resolution 47 at 70.
31. To CJC mediators, by CJC Act 1983 s27; to Dispute Resolution Centre mediators in Victoria, Evidence Act 1958 (Vic) s2l N and Queensland Dispute Resolution Centres Act 1990 (Old) s5.2.
32. Most recently the Californian Court of Appeal decided that third party neutrals should be granted absolute quasi-judicial immunity from lawsuits relating to the performance of judicially connected dispute resolution services: Howard v Drapkin (2d July 31, 1990) 222 Cal Appeals 3d 843.
33. ie the argument must be based on an acceptance that clients will have at least a prima facie case of damage for which a mediator could be held responsible.
34. See Fine, Davenport, Wade, FLSLCA, Van T, LEADR.
35. FMC. ADRA implies a similar view.
36. See Pengilley, Law Society, ADRA, Tillett, LIV, FMC, SADRA.
37. eg Commercial Arbitration Act 1984 (NSW) s5 1; see I Arb A, SADRA, Monk, LIV, but see also Fine.
38. Although this was clearly done in the California case Howard v Drapkin note 32.
39. Since Hedley Ryme v Heller [ 19641 AC 465.
40. To CJC mediators, by CJC Act (1983) s27; to Dispute Resolution Centre mediators in Victoria, Evidence Act 1958(Vic) s2l; and mediators in Dispute Resolution Centres, Queensland, Dispute Resolution Centres Act 1990 (Qld) s5.2.
41. Scottish Law Commission Confidentiality in Family Mediation, DP 92 (1991). See Note “Protecting Confidentiality in Mediation” (1984) 98 Harvard Law Review 441; Hugh McIsaac “Confidentiality: An Exploration of Issues” (1985) 8 Mediation Quarterly 57; Lawrence R Freedman and Michael L Prigoff “Confidentiality in Mediation: The Need for Protection” (1986) 2 Ohio State Journal on Dispute Resolution 37; Eileen P Friedman “Protection of Confidentiality in the Mediation of Minor Disputes” (1982) 11 Capital University Law Review 181; Eric D Green “A Heretical View of the Mediation Privilege” (1986) 2 Ohio State Journal on Dispute Resolution 1 at 5; John P McCrory “Confidentiality in the Mediation of Matrimonial Disputes” (1988) 51 Modern Law Review 442.
42. See Fine, MGCSA, SCMS, SADRA, LEADR, LIV, Van T, FMC.
43. Wade, Renouf, Davenport, I Arb A.
44. SCMS, LEADR, LIV.
45. See D Byme and ID Heydon Cross on Evidence (Butterworths, Sydney, 1991) paras 25,350 - 25,385.
46. See Fine, FLSLCA, Law Society, MGCSA, SADRA, Leeuwenburg, MAV, ADRA, CJC, Tillett, Foffest, FMC.
47. See eg CJC Act 1983 s28; DRC Act 1990 (Old) s5.3.
48. See Administrative Dispute Resolution Act 1990 (US) PL101-552 for a comprehensive list of possibilities.
49. See Trade Practices Commission Self-Regulation in Australian Industry and the Professions (AGPS, Canberra, 1988) Vol 1 Report at 14.
50. Victorian LRC Principles for Occupational Regulation, Occupational Regulation Report No 2 (VLRC, Regulation Review Unit, Melbourne, 1988) at 5.
51. See with respect to lawyers, Weisbrot note 3 at 192-200; see also Jack R Bierig “Whatever Happened to Professional Self-Regulation?” (1983) 69 American Bar Association Journal 616.
52. See CJC, FMC, Lismore NC, Gosnelis DIC.
53. The Institute of Arbitrators Australia List of Conciliators and Mediators (Edition 1 November 1988).
54. LEADR Brief Vol 2 (2) at 1.
55. Graeme Mills “Accreditation of ADR Specialists” (1991) 65 Law Institute Journal 57.
56. ADRAA Newsletter, November 1989 Vol 3 (4).
57. (1988) 26 Law Society Journal (6) 29.
58. (1985) 59 Law Institute Journal 163.
59. eg Family Mediation Centre Noble Park, Southern Community Mediation Centre, CJC.
60. ADRA Draft Standards for the Training of Mediators, (unpublished April 1991).
61. Davenport, Forrest.
62. Leeuwenburg, LEADR, LIV.
63. DP 21 para 4.13; FMC.
64. See SCMS, Lismore NC.
65. ADRA.
66. Tillett.
