3.1 The ways in which mediators are appointed and conduct CJC mediations are important to the continued success of the program. Public confidence and willingness to participate in CJC mediations may depend on such matters as the perceived competence and impartiality of the mediator and their adherence to codes of practice and conduct.
3.2 There is also the potential for harm on various levels if mediators are not properly trained or do not follow appropriate standards, codes and guidelines. Astor and Chinkin have observed:
The practice of ADR is not without potential for harm. Individuals and organisations can suffer if ADR is badly conducted, fails to protect vulnerable parties or neglects the interest of vulnerable third parties. ... Bad practice may also involve risks to practitioners and to the public interest.1
3.3 The National Alternative Dispute Resolution Advisory Council (“NADRAC”) has identified a range of undesirable outcomes in terms of the risks arising for disputants and third parties, risks to practitioners and organisations and risks to public interests. The risks to disputants and third parties have been considered by NADRAC and include:
violence, unfair or unjust outcomes, non-resolution or escalation of disputes, being referred to the wrong process, needs not being addressed and coercion by another party or the ADR practitioner.2
The risks to practitioners and organisations include:
stress, loss of credibility, an oversupply of ADR practitioners and ADR training, fragmentation of the field and complaints from consumers.3
The risks to public interests include:
unfair or unjust outcomes, undermining public interest, increased litigation, loss of faith in the justice system and loss of international credibility.4
These potential problems can be addressed at a number of levels, including mediator selection, accreditation and training, by the setting of codes of practice, standards of competency and ethical standards and by the provision of mechanisms to ensure that appropriate standards are met. These issues are highlighted below.
MEDIATOR SELECTION
3.4 CJCs aim to appoint as mediators people from all walks of life, who are recruited from the communities which they intend to serve. No special occupational or educational qualifications are required of mediators.
3.5 The selection process for CJC mediators involves a number of discrete stages. The initial stages are aimed at assessing the suitability of applicants to take part in the basic mediator training program. Prospective mediators must first submit an application addressing matters such as future availability, geographic location and ability to travel. An information session on CJCs and mediation is then held for applicants followed by a group discussion which allows applicants to be observed interacting in a group. These activities are followed by a half hour written exercise aimed at further testing the suitability of applicants. Following an assessment of applicants based on the above together with relevant demographic criteria, applicants may be invited to attend a personal interview if one is considered necessary. Successful applicants are then invited to attend a
72 hour basic mediator training course.5 Successful completion of the course makes a trainee eligible for accreditation by the Attorney General.6
Representativeness
3.6 When first established, the panels of mediators were intended to reflect the composition of the communities in which they operated:
Mediators are selected to reflect the ethnic origins of members of the community, their primary or basic language, their educational and socio-economic backgrounds, their religious beliefs and cultural traditions.7
3.7 The current aim is to get a wide cross-section. A more representative group of mediators may improve access for marginal groups who might otherwise be discouraged from taking part in mediations.8 Although it is sometimes regarded as important to match the culture of the mediator with that of the participants, there may be cases where this is undesirable – for example where the parties and the mediator come from the same small community and have social links which might provoke fears about confidentiality. It is sometimes the case that it is more desirable for a mediator to be highly skilled at mediating cross-cultural issues rather than for them to belong to the same community as the parties. An issue of training, rather than selection, is thus raised.9
3.8 Assuming that the aim of recruiting mediators who reflect the composition of the community remains valid, consideration will need to be given to any barriers to the appointment of appropriate mediators. For example, requiring particular qualifications may make it difficult to appoint mediators who reflect the diversity of the local community, particularly members of minority groups.10 Positive recruitment and appointment of members of disadvantaged groups may need to be an exception to unlawful discrimination.11 It may be necessary to include a special measures provision in the Act.12 One model can be found in the Local Government Act 1993 (NSW) which provides that, in the event of any inconsistency between the Anti-Discrimination Act 1977 (NSW) and the provisions of an equal employment opportunity management plan, the provisions of the management plan prevail.13
3.9 It has also been suggested that having lawyers or retired magistrates as mediators might prove intimidating for some potential parties to CJC mediations.14 The risk of conscious or unconscious coercive pressure arising from a judicial officer acting as a mediator is even greater when the judicial officer has not retired.15
ISSUE 16
(a) Are CJC mediators sufficiently representative of the communities in which they operate?
(b) Should the aim of recruiting mediators who reflect the community in which they operate be included in legislation?
(c) Should special provision be made for the representation of minority groups on CJC mediator panels?
ACCREDITATION AND TRAINING
3.10 The accreditation of a mediator is on the recommendation of the Director subject to any policy guidelines and directions of the Council. A mediator can be accredited for a term not exceeding three years and accreditation may be renewed upon expiration. Decisions refusing to grant or revoking accreditation can be challenged in the Administrative Decisions Tribunal.16 A person cannot be a mediator at a CJC unless they have been accredited.17 The current practice is that mediators are accredited for a period of 12 months following their initial training and, after mentoring and assessment, may be accredited for a further period of three years. The relevant CJC regional co-ordinator is responsible for the supervision and assessment of mediators during the initial period of accreditation.18 The performance of mediators is assessed on their compliance with a document referred to as “Competencies for Mediators”.19 CJCs is currently developing new policies and processes for accreditation, reaccreditation, supervision, grievances and non-accreditation of mediators.
3.11 By way of comparison, the Australian Capital Territory Act allows for “standards of competency” to be prescribed for mediators before they can be registered.20 The registration of a mediator lasts for three years21 and may be renewed upon the relevant agency being satisfied that the mediator has “undertaken the further education in matters relating to mediation that is approved by the agency”.22
Qualifications, training and experience
3.12 Requiring particular qualifications for mediators may make it difficult to appoint mediators who reflect the diversity of the local community, particularly members of minority groups.23 This would especially be the case if tertiary qualifications were to be required.24 It has also been observed that:
[Formal] qualifications can be cumbersome and complex to develop and maintain. Such a requirement may also make ADR more of a “profession” and create greater exclusivity.25
3.13 In 1991 the New South Wales Law Reform Commission concluded that training of mediators was necessary:
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.26
However, it did not recommend that such training be made mandatory in legislation. There were two reasons for this position. First, the need for mandatory provision had not been demonstrated. Secondly, it was premature to prescribe the training required by mediators at what was then seen as an early stage of the development of the field.27 The Commission preferred to leave the question of qualifications and training to the administering agencies (as is still the case with respect to CJCs).28
3.14 It has also been suggested there is a need to recognise training and experience gained in mediation beyond that conducted by CJCs. This has become necessary because CJC mediators mediate for other panels which also have accreditation and training requirements.29 The widely varying standards and criteria for accreditation will be problematic if some form of mutual recognition is to be provided for.30 NADRAC has noted that the limited scope for mutual recognition within the ADR sector is consistent with the diversity of services offered. However, it has also observed that “it is desirable for accrediting bodies to develop a degree of mutual recognition ... so that wastage of time and resources is avoided”.31
Continuing education
3.15 The CJCs currently provide mediators with opportunities for learning and development with the aim of maintaining mediator competency and standards. The CJC Directorate and regional co-ordinators develop training programs in consultation with the Training Group and Professional Reference Group. Mediators can also seek approval from the regional co-ordinators to attend other programs of education and training in alternative dispute resolution that CJCs will recognise. The CJCs have developed a system whereby a mediator must accrue a certain number of “Continuing Mediation Accreditation points” in order to be considered for re-accreditation as a mediator. The 100 CMA points that mediators must accrue each year represent the completion of activities in the areas of practice, learning and development and organisational context.32 There is currently no legislative backing for this system of Continuing Mediation Accreditation.
3.16 In 1991 the New South Wales Law Reform Commission concluded that continuing education was essential for mediators:
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.33
3.17 The US Model Standards of Conduct for Mediators suggest that mediators “have a duty to improve the practice of mediation” and specifically that:
they have an obligation to use their knowledge to help educate the public about mediation; to make mediation accessible to those who would like to use it; to correct abuses; and to improve their professional skills and abilities.34
3.18 An example of legislatively-based continuing education requirements for mediators can be found in the New Jersey Court Rules which require all mediators to attend four hours of continuing education each year. The continuing education must relate to at least one of the following topics:
(A) reinforcing and enhancing mediation and negotiation concepts and skills,
(B) ethical issues associated with mediation practice, or
(C) other professional matters related to mediation.35
3.19 The approach in the New Jersey Rules of Court can be likened to mandatory continuing legal education36 which was introduced for lawyers in New South Wales in 1987.37 Relevant parts of the New South Wales Solicitors’ Rules that relate to mandatory continuing legal education are as follows:
42.1.1 the course may consist of an education programme, seminar, workshop, lecture, conference or discussion group or a multimedia or website based programme... or any combination of two or more of those events;
42.1.2 the course must be of significant intellectual or practical content and must deal primarily with matters directly related to the practice of law;
42.1.3 the course must be conducted by persons who are qualified by practical or academic experience in the subject covered;
42.1.4 the course must be relevant to a practitioner’s immediate or long term needs in relation to the practitioner’s professional development and to the practice of law.38
3.20 Legal Practitioners in New South Wales are also required to undertake, at least once every three years, “a course in connection with the management of the practice of law that deals only with the following issues”:
(a) equal employment opportunity,
(b) unlawful discrimination (including unlawful sexual harassment),
(c) occupational health and safety.39
This provision was included in the Legal Profession Regulation 2002 (NSW) in order to promote greater understanding of the significance of these issues to legal practice.40 Similarly it has been suggested that any training of CJC mediators should cover anti-discrimination issues, disability awareness and cultural awareness/sensitivity in relation to both Indigenous people and people of non-English speaking backgrounds.41 A focus on issues relevant to the mediation of disputes in the communities served by CJCs might be particularly appropriate, especially issues of cultural responses to disputes. The coverage of such issues aims to overcome systemic discrimination and to identify inequalities/power imbalances in existing relationships; and also to improve access for disadvantaged groups.42
ISSUE 18
(a) Should continuing education/training be required for CJC mediators?
(b) If so, what should be the content of such courses?
(c) Should legislation prescribe any such content?
Assessing the training programs
3.21 Some concerns have been raised about the quality, rigour and value of the training and continuing education programs offered to mediators for the purposes of accreditation and continued accreditation.43 Regulations governing the assessment and approval of various training courses may, therefore, be considered desirable. On the other hand, in Report 67 the Commission made the following observations:
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. 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. 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.44
However, theory and practice have moved on in the ten or more years since these comments were made. Some action in this area may no longer be considered premature.
3.22 The Vocational Education and Training Accreditation Act 1990 (NSW) may provide a model for the assessment and approval of various training courses. It allows for education or training providers to seek accreditation of their vocational courses either by the Vocational Education and Training Board or by an authorised accrediting body.45
ISSUE 19
What provision, if any, should be made for the accreditation and evaluation of CJC mediator training programs?
STATUS AND REMUNERATION
Status of CJC mediators
3.23 Mediators are specifically not included within the category of “staff of Community Justice Centres” and are therefore not appointed or employed under the Public Sector Management Act 1988 (NSW).46 As ministerial appointees they are not subject to an award. However, they are expected to comply with the Attorney General’s Department’s Code of Conduct and the CJCs’ Mediators’ Code of Professional Conduct.
3.24 The status of mediators as ministerial appointees may be desirable because this status can help assure their clients that they are independent and will carry out their work without fear or favour.47
ISSUE 20
Should CJC mediators be employed under the Public Sector Management Act 1988 (NSW) or should they continue to be ministerial appointees?
Remuneration
3.25 The Act provides that a mediator is “entitled to be paid such remuneration as is determined in respect of the mediator by the Minister”.48 When CJCs were originally established it was felt that, while mediators’ efforts should receive some financial recognition, “there should be no encouragement to mediators to think of their CJC activities as a conventional job or as a major source of income”.49
3.26 Mediators are currently paid $23.47 per hour.50 Despite not being covered by the Public Sector Management Act, mediators receive some of the benefits that would otherwise be available to public sector employees. In addition to an hourly rate, mediators receive one-twelfth of annual gross earnings as a leave loading and also an employer contribution to superannuation based on gross earnings and payment of expenses. In 1998 the Attorney General observed:
their pay is indexed in line with public service wage movements and they have many of the rights and benefits of government employees, including workers compensation, pay in lieu of annual leave, superannuation, grievance procedures, training opportunities and ongoing professional development at no cost to them.51
3.27 It has also been suggested that as voluntary holders of statutory office, it cannot be said that they are subject to exploitation.52 While it is true that CJC mediators are not being forced to accept the office they hold, their level of remuneration may, if insufficient, amount to exploitation. One submission has drawn attention to the fact that the remuneration offered to CJC mediators is not in line with other statutory mediation programs.53
3.28 The Law Society’s Dispute Resolution Committee has made the following observation concerning the remuneration of mediators:
A review of the remuneration for mediators is timely in light of the importance of their role in the overall success of the CJC, the market rate offered by other government funded ADR programs and the effort the mediators have put in to maintain their CJC accreditation.54
3.29 There are a variety of options for the engagement of CJC mediators apart from bringing them under the Public Sector Management Act, such as making them casual employees of the Attorney General’s Department. It has also been suggested that CJC mediators should have an award to govern their remuneration and other employment conditions, as is the case with some other ministerial appointees, for example, Judges’ associates.55
Allowances
3.30 A further concern was raised in 1998 about mediators having to bear their own travel costs. At the time the Government noted that mediators were intended to provide mediation services in their local area and that no mediator was required to travel outside their local area.56 While the policy of using local mediators where possible is still in place, there is now an interim travel policy (effective 1 September 2002) which makes provision for the reimbursement of travel and accommodation costs in certain circumstances when travelling time exceeds 30 minutes travel each way.57 This goes some way to addressing a serious issue that has arisen for mediators operating outside the urban areas of the State.58
ISSUE 21
How should the remuneration of mediators be structured?
COMPETENCY STANDARDS
3.31 Standards are desirable to ensure appropriate levels of mediator competency.59 Standards provide a means of assessing the competency of individual mediators and can cover a wide range of knowledge, skills and abilities. The attainment of certain standards could also be a requirement for the accreditation or continuing accreditation of mediators. For example, knowledge of and ability to adhere to codes of practice and ethical guidelines may be a standard that mediators should be required to show competency in.60
3.32 Because competency standards do not necessarily rely on formal qualifications they are more appropriate for mediators who conduct community mediation.61 However, even though competency standards may be more inclusive of mediators from different backgrounds, care must be taken to ensure that they “do not import inappropriate cultural bias” when applied to members of minority or disadvantaged groups.62
CJCs’ Competencies for Mediators
3.33 In October 1999 CJCs management adopted “Competencies for Mediators” which were adapted from the Australian Capital Territory’s “Competency Standards for Mediators”.63 The ACT standards are stated to “define the core competencies required of mediators in a wide range of settings and contexts”. These competencies are contained in detailed lists of functions under seven major unit headings:
1. plan and prepare mediation (“functions involved in preparing to conduct a mediation”);
2. establish climate for mediation (“functions related to the introductory phases of the mediation process, which establishes atmosphere to maintain neutral, impartial, non-judgemental relationship with parties”);
3. create a framework for discussion (“functions required to manage information exchange in order to identify, isolate and clarify issues”);
4. facilitate exploration of issues (“functions required to explore issues to develop options and ensure contributions to discussions are balanced between the parties”);
5. promote negotiation (“functions involved in negotiation and problem solving”);
6. identify and establish outcomes (“functions involved in identifying and recording outcomes and closing mediation”);
7. maintain professional standards (“process of maintenance and review of professional standards”).64
Each unit contains a detailed list of “performance criteria” to aid in assessment. The standards are also accompanied by a detailed list of evidence that assessors must look to for each of the categories.
3.34 In the ACT these standards have been declared to be “standards of competency” required for the registration of mediators under the Mediation Act 1997 (ACT).65 In New South Wales the “Competencies for Mediators” have merely been adopted by CJCs for the purposes of internal assessment. Other examples of systems for establishing/enforcing standards of competency follow.
NADRAC
3.35 NADRAC has adopted a framework for standards which groups standards into three broad categories. For the purposes of this Issues Paper these categories relate to mediation practices, mediators themselves and mediation organisations.66 There will obviously be some overlap between the categories, especially those relating to mediation practices and those relating to the mediators themselves.67
3.36 NADRAC has included the following areas within the category relating to mediators themselves: education, training, assessment, selection, supervision, professional development and discipline.68
3.37 In proposing a framework for the development of standards in alternative dispute resolution, NADRAC has proposed the treatment of the “development of standards as an evolutionary process requiring long term commitment, not a one-off solution”.69 NADRAC also noted the need to develop standards continuously “to improve the quality of ADR practice, and the credibility and capacity of the ADR field”.70
United Kingdom College of Family Mediators
3.38 The UK College of Family Mediators has established a procedure for assessing mediator competence whereby mediators are assessed against standards and performance criteria. There are four units, each containing a number of elements for which evidence of competence is required.
Each element is assessed against a set of performance criteria. The units are as follows:
Unit 1 Prepare and set up mediation
Element 1.1 Establish the appropriateness of the mediation process with each party
Element 1.2 Agree the conditions and boundaries of the mediation with the parties
Unit 2 Stage the mediation process
Element 2.1 Establish the issues for each party
Element 2.2 Explore concerns with the parties
Element 2.3 Assist in the identification and evaluation of potential options
Element 2.4 Build and secure agreements between parties
Unit 3 Manage the process of mediation
Element 3.1 Facilitate exchanges between the parties
Element 3.2 Manage conflict and address power imbalances
Unit 4 Evaluate and develop own work
Element 4.1 Evaluate own practice
Element 4.2 Ensure continuing professional development
Element 4.3 Operate within an agreed ethical code of practice71
Each applicant must demonstrate, by written evidence, including case studies, how their knowledge has been applied in practice. Successful completion of this procedure allows candidates to apply for full membership of the College. The Legal Services Commission also recognises the results of these assessments when deciding whether mediators should undertake publicly funded family mediation work in England and Wales.72
CODES OF PRACTICE
3.39 For the purpose of this paper “codes of practice” in relation to mediation refer to instruments and guidelines that govern the way that mediators conduct mediations (sometimes also referred to as “codes of conduct”). The competencies that mediators need to have to conduct mediations have already been dealt with above.73 Mediation is increasingly governed by various policies, guidelines, codes of practice and standards. This is the result of increasing professionalisation of the industry.
The role of codes of practice
3.40 In the United States the American Arbitration Association, the American Bar Association (Section of Dispute Resolution) and the Society of Professionals in Dispute Resolution have developed Model Standards of Conduct for Mediators. The preface to the document states that the model standards are intended:
to serve as a guide for the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.
3.41 NADRAC has highlighted the need to “develop and implement particular standards, contained in a code of practice, to assist in educating and protecting consumers and to build consumer confidence in ADR”.74 These codes of practice are seen as complementary to other ADR standards that have been, or will be, developed.
3.42 The Australian Law Reform Commission has expressed the view that codes of practice should fulfil the following roles:
- serve as a guide for the conduct of ADR sessions, particularly in assisting practitioners to identify and address ethical and other issues that may arise during and after the sessions
- assist ADR practitioners to develop a sense of commitment and responsibility towards their profession
- educate consumers about ADR processes
- promote public confidence in ADR.75
CJC regulation of practice
3.43 The CJC Act itself provides for the setting of policies and guidelines. For example, the functions of the CJC Council includes the determination of “policy guidelines for the operation of Community Justice Centres”.76 More specifically, the Act provides that the CJC Council can determine policy guidelines for the “provision of mediation services and for the operation and management of Community Justice Centres” and for “commencing and conducting” a CJC mediation session.77 However, for the most part it appears that the CJCs’ policies, guidelines and codes are determined by CJCs, as a business centre of the Attorney General’s Department, in the normal course of business.
Code of Professional Conduct for Mediators
3.44 The CJCs have adopted a Code of Professional Conduct for CJC Mediators without the need for legislative backing. The Code supplements provisions in the Act and also complements protocols contained in the Code of Conduct and Ethics of the NSW Attorney General’s Department. The Code of Professional Conduct is arranged under three broad headings:
- Responsibility of mediators to the parties: which includes ensuring the voluntary participation of the parties and that mediators act honestly and impartially in their interests;
- Responsibility of mediators towards the mediation process: which includes ensuring that processes are followed and that mediators maintain impartiality and neutrality, observe confidentiality and terminate sessions where appropriate;
- Responsibility of mediators towards CJCs and the profession: which includes commitment to learning and development and observance of proper conduct towards other mediators.78
Coverage of codes of practice
3.45 Codes of practice can cover a wide range of activities. Some of the possible areas that can be covered, or that are already covered by various codes and guidelines, are also covered at a general level by provisions of the CJC Act, for example, those regarding confidentiality of information disclosed at a mediation.
3.46 Numerous bodies have produced codes of practice to govern the conduct of mediations, the content varying depending on context.79 NADRAC, for example, has identified some particular issues relating to ADR that should be addressed in codes of practice. These include:
- informed and effective participation by the parties;
- the appropriateness of the dispute for the process;
- accessibility;
- fairness in procedure;
- termination of the process; and
- maintenance of confidentiality.80
3.47 Other commentators have divided matters to be dealt with by codes of practice into two areas:
- ethical matters, which relate to mediator behaviour and include issues such as neutrality, fairness and impartiality;81 and
- practical standards, including requirements of confidentiality, informing parties about the nature of mediation and conflicts of interest.82
Duty to third parties
3.48 Consideration must also be given to the extent that mediators have a duty to third parties to a mediation. This is particularly so in relation to vulnerable third parties who may be affected by the outcome of the mediation, for example, children and other people under a disability, either in family relationship or financial disputes.83 Examples include where separating parents come to an agreement that threatens the welfare of their children or where claimants to a deceased estate come to an agreement that does not take into account other parties who may also be entitled to provision under the Family Provision Act 1982 (NSW). NADRAC has recognised the potential risks to third parties that may arise from the way that some mediations are conducted, in particular the possibility of violence, the escalation of the dispute, and failure to meet legitimate needs.84
ISSUE 23
What issues should be addressed in codes of practice for CJC mediations?
Establishing codes of practice
3.49 The content of codes of practice can be imposed in various ways, for example, by statute, by regulation or by codes and guidelines developed at an administrative level. The requirement to develop codes and guidelines can also be imposed by legislation or regulation. Such provisions can also dictate the way in which the codes and guidelines are further developed.
3.50 There is considerable debate on the question of who should be responsible for mediation standards.85 There is support for both government regulation and industry self-regulation. One argument in favour of at least some government regulation is the need to ensure that particular standards are met in cases where mediation is mandatory.86 Proposals have also been mooted for a national peak body to determine ADR standards, however, it has been noted that there is “presently no body with a mandate and the necessary independence to establish a peak body”.87 However, failing the existence of a national body to determine standards, some provision needs to be made to set standards of practice and conduct for CJCs.
3.51 In addition to the current position for CJCs, one approach is to make specific reference in legislation allowing for the development of codes of practice. The Anti-Discrimination Board supports legislation enabling the development of standards or codes of practice for the conduct of mediation by CJCs.88 Legislative provisions could, for example, entrench a role for the CJCs Council in the development of codes of practice.
3.52 A recent example in the New South Wales statute book can be found in the Osteopaths Act 2001 (NSW) which provides that the Osteopaths Registration Board “may establish a code of professional conduct setting out guidelines that should be observed by registered osteopaths in their professional practice”.89 The Act also gives the responsible minister the power to order the Board to establish, amend or replace a code of professional conduct where the minister considers such to be necessary. The procedures that the Board is to follow in establishing, amending or replacing a code of conduct are also outlined in the Act and include requirements to put drafts on exhibition and to seek public comment.90 The above procedures are necessary because, ultimately, the Board can enforce adherence to the code by the possibility of deregistration. This is not currently the case with mediators, although breaches of a code for CJC mediators could be dealt with by declining to offer them further work. The question of enforcement of codes is dealt with in the following section.
ENFORCEMENT OF STANDARDS, CODES AND GUIDELINES
3.53 It has been observed, in relation to mediation in Australia generally, that “existing standards are educational, for the most part, rather than enforceable”.91 Is it then desirable to move to an enforceable, rather than an educational model? For example, should codes of practice include mechanisms for dealing with complaints, or for assessing the performance of mediators? This is a major question for the ADR profession generally. Currently there is no one body responsible for enforcing mediation standards. There are some mechanisms in place, for example, the Law Society could conceivably discipline solicitors who breach their mediation guidelines,92 and the courts will have a supervisory role in relation to mediators who have been included on their lists. For example, the Chief Justice may amend the Supreme Court’s list of mediators “for any reason that the Chief Justice considers appropriate”.93
3.54 The New South Wales Law Society’s Charter on Mediation Practice provides an opportunity for participants to provide feedback on the mediation process under the Law Society Mediation Program. The Charter states:
Your positive, constructive and informed feedback will help us to maintain the standard of mediation service provided by the Law Society Program at the highest possible level.94
3.55 Any provisions aimed at enforcing standards of practice and conduct will have to take into account the issues of admissibility and confidentiality of information disclosed during the course of a mediation. It is possible that the admissibility and confidentiality provisions may prevent review of the conduct of a mediation.95 Review by the Ombudsman of the conduct of mediators during mediation is already expressly excluded by the CJC Act.96
Consumer choice/market regulation
3.56 One means of encouraging the use of suitably qualified mediators is to allow the parties to make their own assessment of the mediator’s qualifications and abilities before consenting to enter the process. The commentary to the US Model Standards of Conduct for Mediators suggests that “mediators should have available for parties information relevant to training, education and experience” and that “the requirements for appearing on a list of mediators must be made public and available to interested persons”.97 This approach is necessary for parties to give as fully informed consent to a mediation as is possible.
3.57 For most parties, however, the assessment of a mediator’s qualifications may not be an informed one. Many members of the community do not have a high awareness of mediation and may be subject to various external pressures (institutional and personal) to participate.98 The qualifications of mediators may mean little to them and they may not be able to differentiate between good and poor qualifications.
3.58 It may also be administratively difficult to make available a pool of mediators to meet the requirements of some parties. It must also be remembered that CJC mediators provide their services on a voluntary basis, are not remunerated at market rates and their services are provided free of charge to most clients.
IMPARTIALITY OF MEDIATORS
3.59 It is essential that mediators be able to conduct mediations in an impartial manner. If a mediator is not impartial or appears not to be impartial, the confidence of the disputing parties in the process can be undermined.99 Failure to be impartial can arise from personal relationships and interests or from prejudices and biases (that may also amount to unlawful discrimination). The impartiality of mediators is an issue that could be included in the list of matters to be dealt with by codes of practice and other similar instruments.100
3.60 Conflicts of interest and other factors impinging on a mediator’s impartiality and neutrality are rather more likely to arise in small rural communities where there may only be a limited panel of mediators available to choose from. Resource implications also tend to come up in such circumstances, for example, where the cost or inconvenience of getting an “impartial” mediator from another locality may be great.
3.61 However, it should also be noted that in some instances impartiality may not be desirable to some groups. In some cultures the use of a neutral “stranger” may not be considered appropriate,101 or may not even be practically possible. Strategies may have to be developed, for example in Indigenous communities, that acknowledge the close community ties that parties to a mediation may share with their mediators.102 In some cases it can be said that “neutrality and confidentiality are non-issues”, for example, in some Indigenous communities.103
3.62 There are a number of strategies that may be employed to help avoid the possibility of mediator partiality. A basic mechanism to avoid some conflicts is a provision that allows a mediator to terminate the mediation session at any time. Such a mechanism is provided for in the CJC Act.104 The provision, however, relies on the mediator identifying potential conflicts and biases. Another option is, therefore, to allow the parties to challenge the impartiality of the mediator. An example of a specific provision can be found in the New Jersey Court Rules which stipulate that a mediator or either one of the parties may terminate a mediation session if “a party challenges the impartiality of the mediator”.105
3.63 In some cases it may be desirable that the conflict be fully declared and for it be left to the parties to consent to the continuation of the mediation having taken into account all of the circumstances. The US Model Standards of Conduct for Mediators state that mediators should disclose all actual and potential conflicts of interest and should decline to act unless all parties agree to continue.106 The NSW Law Society’s Revised Guidelines for Solicitors who act as Mediators require full disclosure of any potential issues with the possibility of the parties agreeing to proceed with the mediation.107
3.64 Appropriate education and training may also help mediators overcome biases that are more subtle and less easy to identify but which nonetheless give rise to partial treatment of particular parties to a mediation.108
ISSUE 26
What provisions, if any, are required with respect to the impartiality of CJC mediators?
PREVENTING UNDESIRABLE OUTCOMES
3.65 Another discrete issue that can be included in the matters dealt with by codes of practice is whether mediators should be able to prevent mediation outcomes that may be discriminatory, unethical, illegal or otherwise against public policy.109
3.66 CJCs were originally intended to “assist parties to a dispute to find their own solution, thereby ensuring that the result is acceptable to the parties”.110 This approach may prove problematic when the parties agree to an outcome that could be seen as involving prejudice, discrimination or being in some other way contrary to public policy. Indeed, it has been suggested that the informal nature of mediation, particularly community mediation, may make it easier for some parties to express prejudices which they might refrain from expressing in more formal environments.111
3.67 The problem exists on a continuum ranging from the outcome of a mediation implying support of, for example, the entrenchment of traditional gender roles, right the way to agreements amounting to the continuation of an abusive relationship or unlawful activity. One case study from the US illustrates the problem at one end of the continuum:
Mr Valdez offered to paint the curb a foot and a half on either side of the driveway. If a Valdez car ever extended over that point, then Mr Janaslav was to tell Mr Valdez, and the car would be moved. Mr Valdez said the communication should be between the two heads of the households because “men understand these things better.” The women of the two families agreed to the plan. The mediation panelists swallowed hard – they clearly did not share the views of the two families that “men understand these things better,” yet they remained nonjudgmental to make the agreement work. The program reported that the agreement was successful; the families reported that the problem was solved.112
3.68 Various questions arise from this and many similar circumstances, such as when should mediators act to prevent outcomes that are not desirable? To what extent should anti-discrimination principles override the ability of the parties to reach a solution? Is mediation at CJCs intended to overcome discrimination? One possible approach to these situations has been for mediators to withdraw from the mediation if they find the outcome of the mediation ethically unacceptable.113 Such matters are clear when the agreement involves illegal action, however, matters are less clear when the outcomes are unfair or unethical.114
ISSUE 27
What provision, if any, should be made to prevent mediation outcomes that are discriminatory, unethical, illegal or otherwise against public policy?
Footnotes
1. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 205.
2. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 31.
3. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 32.
4. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 32.
5. CJCs, Interim policy – recruitment and selection of mediator trainees (December 2001).
6. On accreditation of CJC mediators see para 3.10-3.11 below.
7. NSW, Parliamentary Debates (Hansard) Legislative Council, 22 November 1983 at 3025.
8. Anti-Discrimination Board, Preliminary submission at 5.
9. The training of CJC mediators is dealt with at para 3.12-3.22 below.
10. See D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 70.
11. See Anti-Discrimination Board, Preliminary submission at 8.
12. Anti-Discrimination Board, Preliminary submission at 8.
13. Local Government Act 1993 (NSW) s 346.
14. J C Price, Preliminary submission.
15. NSW Law Reform Commission, Training and accreditation of mediators (Report 67, 1991) (“NSWLRC Report 67”) at para 6.29.
16. Community Justice Centres Act 1983 (NSW) s 11.
17. Community Justice Centres Act 1983 (NSW) s 4(1).
18. CJCs, Policy and procedures on mediator accreditation (November 2001).
19. See para 3.33-3.34 below.
20. Mediation Act 1997 (ACT) s 4(1).
21. Mediation Act 1997 (ACT) s 6.
22. Mediation Act 1997 (ACT) s 7(2)(b).
23. See D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 70.
24. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 212. See also National Alternative Dispute Resolution Advisory Council, Primary dispute resolution in family law (A Report to the Attorney General on Part 5 of the Family Law Regulations, 1997) at para 4.20-4.23.
25. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 57.
26. NSWLRC Report 67 at para 3.6.
27. NSWLRC Report 67 at para 3.7-3.8.
28. NSWLRC Report 67 at para 3.9.
29. M S Dewdney, Preliminary submission at 4.
30. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 232-233.
31. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 83.
32. CJCs, Policy and procedures on mediator accreditation (November 2001). For example, the conduct of 6 mediations amounts to 60 points, completion of one core compulsory training course (of 6 hours) amounts to 10 points.
33. NSWLRC Report 67 at para 3.35.
34. US Model standards of conduct for mediators item IX.
35. NJ Court Rules 1969 r 1:40-12(b)(3).
36. See Legal Profession Act 1987 (NSW) s 57N and Legal Profession Regulation 2002 (NSW) cl 142.
37. Legal Practitioner (Amendment) Act 1987 (NSW) Sch 1.
38. Law Society of NSW, Revised professional conduct and practice rules 1995 Regulation 42.
39. Legal Profession Regulation 2002 (NSW) cl 142.
40. NSW Attorney General’s Department, Regulatory Impact Statement: Legal Profession Regulation 2002 (2002) at 64.
41. See Coalition of Aboriginal Legal Services, Preliminary submission at 2; Anti-Discrimination Board, Preliminary submission at 6
42. Anti-Discrimination Board, Preliminary submission at 4, 5.
43. Confidential 1, Preliminary submission at 3; G Barclay, Preliminary submission at 1.
44. NSWLRC Report 67 at para 5.22.
45. Vocational Education and Training Accreditation Act 1990 (NSW) s 12, s 15.
46. Community Justice Centres Act 1983 (NSW) s 12.
47. Confidential 1, Preliminary submission at 4.
48. Community Justice Centres Act 1983 (NSW) s 12(2).
49. J Schwartzkoff and J Morgan, Community Justice Centres: a report on the New South Wales pilot project, 1979-81 (Law Foundation of NSW, 1982) at 15.
50. Information supplied by D Sharp, Director, CJCs (20 August 2003).
51. NSW, Parliamentary Debates (Hansard) Legislative Council, 16 June 1998 at 5883.
52. NSW, Parliamentary Debates (Hansard) Legislative Council, 2 June 1998 at 5478.
53. M S Dewdney, Preliminary submission at 3. Another submission has provided a detailed salary structure proposal for CJC mediators: J Hallinan, Preliminary submission at 3-4.
54. Law Society of NSW, Preliminary submission at 1.
55. J Hallinan, Preliminary submission at 3.
56. NSW, Parliamentary Debates (Hansard) Legislative Council, 16 June 1998 at 5883.
57. CJCs, Policy: interim travel policy (effective 1 September 2002).
58. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 September 2001 at 16873.
59. See H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 214.
60. On codes of practice, see para 3.39-3.52 below.
61. Astor and Chinkin at 216. On the question of formal qualifications in community mediation, see para 3.12 above.
62. Astor and Chinkin at 216.
63. ACT Community Services and Health Industry Training Advisory Board, ACT competency standards for mediators (1995).
64. Compare National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 105-109.
65. Mediation Act 1997 (ACT) s 4; Declaration of Standards of Competency, Instrument No 65 of 2000 (ACT).
66. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 51-52.
67. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at para 1.44-1.52.
68. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 55.
69. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 70.
70. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 70.
71. UK College of Family Mediators, Competence assessment for family mediators: portfolio guidelines, specification and template (effective from 1 January 2003) at 6.
72. UK College of Family Mediators, Competence assessment for family mediators: portfolio guidelines, specification and template (effective from 1 January 2003) at 2.
73. Para 3.31-3.38.
74. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 70.
75. Australian Law Reform Commission, Review of the adversarial system of litigation: ADR – Its role in federal dispute resolution (Issues Paper 25, 1998) at para 8.6.
76. Community Justice Centres Act 1983 (NSW) s 6(1)(a).
77. Community Justice Centres Act 1983 (NSW) s 20(1), s 21(1).
78. CJCs, Code of professional conduct for CJC mediators.
79. See H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, 2002) at 220-221. A list of Australian practice standards may be found at National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 43.
80. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 98-99.
81. See para 3.59-3.64 below.
82. Astor and Chinkin at 224-225.
83. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, 2002) at 229-230.
84. National Alternative Dispute Resolution Advisory Council, A framework for ADR standards (Report to the Commonwealth Attorney General, 2001) at 31-33.
85. Astor and Chinkin at 222-224.
86. See para 2.36-2.42.
87. Astor and Chinkin at 223.
88. Anti-Discrimination Board, Preliminary submission at 6.
89. Osteopaths Act 2001 (NSW) s 19.
90. Osteopaths Act 2001 (NSW) s 19.
91. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 224.
92. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 224.
93. Supreme Court Act 1970 (NSW) s 110O(5). See also District Court Act 1973 (NSW) s 164E(5); Local Courts (Civil Claims) Act 1970 (NSW) s 21P(5).
94. “The Law Society of NSW Charter on mediation practice: A guide to the rights and responsibilities of participants” (1997) 35(11) Law Society Journal 68 at 69.
95. On the provisions relating to admissibility and confidentiality, see para 4.11-4.19 and para 4.26-4.32 below.
96. See para 4.20-4.22.
97. US Model standards of conduct for mediators item IV.
98. See H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 158, 203, 207, 222.
99. See US Model standards of conduct for mediators item II.
100. See para 3.39-3.52 above.
101. Astor and Chinkin at 154.
102. L Behrendt, Aboriginal dispute resolution: a step towards self-determination and community autonomy (Federation Press, Sydney, 1995) at 63.
103. See M Sauvé, “Mediation: towards an Aboriginal conceptualisation” (1996) 3(80) Aboriginal Law Bulletin 10 at 10. See also para 6.5 below.
104. Community Justice Centres Act 1983 (NSW) s 24(2).
105. NJ Court Rules 1969 r 1:40-4(f)(1)(B).
106. US Model standards of conduct for mediators item III.
107. Item 5.
108. On continuing education, see para 3.20 above.
109. Anti-Discrimination Board, Preliminary submission at 7.
110. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 19 October 1983 at 1882.
111. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 40-41.
112. D McGillis, Community mediation programs: developments and challenges (US National Institute of Justice, 1997) at 13.
113. H Astor and C Chinkin, Dispute resolution in Australia (2nd edition, LexisNexis Butterworths, Australia, 2002) at 230-231.
114. Astor and Chinkin at 229-230.
