Peter Condliffe PhD
Chair, AMDRAS

This post is the third in a four-part series as written by Peter Condliffe and based on his presentation in the Australian Dispute Resolution Association ‘International Mediation Conference’ on 15 August 2024 at Sydney.

The Review

When in 2019 we started the review of the NMAS it was with one eye on international and cultural undercurrents that it may interact with it as noted above. Accordingly, Resolution Resources (RR), the independent contractor employed to do the initial research, provided the Board as part of its contracted wori a document titled, “Situating the Current NMAS Within the Broader Dispute Resolution Field: An International Comparative Analysis NMAS Review 2020- 21.”

When in 2019 we started the review of the NMAS it was with one eye on international and cultural undercurrents that it may interact with it as noted above. Accordingly, Resolution Resources (RR), the independent contractor employed to do the initial research, provided the Board as part of its contracted work a document titled, “Situating the Current NMAS Within the Broader Dispute Resolution Field: An International Comparative Analysis NMAS Review 2020- 21.”

More generally before and through the course of the review it had also become apparent to the Board that there were a number of issues with the system that required addressing including:

• How to respond to the emergence of disparate non-determinative dispute resolution practices (NDR) that could possibly benefit from access to an accreditation scheme.
• Issues in interpretation of the standards and interaction with public (website based) information.
• Constitutional arrangements around MSB membership which seemed to be moribund.
• A need for greater MSB oversight of training including the establishment of training objectives and attributes.
• The engagement with and involvement of indigenous communities.
• The lack of a structure for advancement and recognition of practice experience.
• The need for a clearer and accessible complaints mechanism for users of services.
• A lack of understanding in some areas of the dispute resolution community about the scope and advantages of a national system of accreditation

The review process involved extensive engagement and conversations with all MSB members, State and Commonwealth courts and tribunals, universities and training organisations, accredited and non-accredited mediators, and various other stakeholders across the dispute resolution community.

RR delivered its final report in the second half of 2022 which included a finding that, whilst the facilitative model of mediation remains a strong foundation, many accredited and nonaccredited mediators step outside of that model in their day-to-day practice. The research highlighted that the practice of mediation has evolved over time and developed a wide reach including to legal systems, workplaces, elder mediation, restorative justice processes and indigenous peacebuilding. It is because of these developments that the Board considered that there was a need to rewrite and further develop the standards to make them more up to date, more flexible and consistent with the perceived needs of those providing and practising in this field.

The research also found that there was a perceived need for greater clarity in the training requirements for accreditation and how, once accredited, mediators could seek further opportunities, if they desired, to seek more advanced levels of accreditation. The trainers engaged in training our mediators perhaps required some more guidance and the Board itself needed to ensure that those doing the training were accredited so that there was both some understanding of and commitment to the standards. Up until this time training as it developed under NMAS, in the sense of who did it and how it was delivered appeared ad hoc and piecemeal. In my view this has been an enduring weakness in the system.

Since the delivery of the research the MSB has spent significant time developing a revised set of national standards recognising these key findings whilst seeking to stay true to the original objects of the MSB. That is, to promote and maintain consistent and quality mediation training, accreditation and practice, primarily for reasons of consumer protection.

The new standards are structured in a way that will provide more guidance to stakeholders and the opportunity for the standards to continue to evolve alongside the practice of “dispute resolution” in Australia. I prefer the words “conflict management” but “dispute resolution” is a term more commonly in use. “Conflict management” is, in my view, a more inclusive term and provides a better framework for practice for the simple reason that while many conflicts cannot be resolved, most can be managed. Further, in many situations the generation or escalation of conflict is both an honourable and worthwhile objective if managed properly. So, while the aim of much conflict management is the resolution of that conflict, it is more realistic (and logical) to accept that this will not always be achievable, or even desirable, in some circumstances. In other words, the term avoids the possible assumption that to be successful or to have a positive outcome the conflict must be resolved.

In late 2023, a draft of the revised standards was published. What followed was an extensive consultation process, including a series of online presentations and Q&A sessions presented by MSB directors. The MSB also received and has since reviewed dozens of written responses from various stakeholders and dispute resolution practitioners as well as members. This feedback led to further amendments to the earlier draft, with the final version released on 1st May 202424. The box below outlines the major changes to the system.

Key Features of AMDRAS

• Facilitative mediation remains the foundation for initial training and accreditation but, as before, there is provision to allow accredited mediators to deliver other models.
• Mediation is described (but not defined) and four core “Professional Practice Domains” are defined and articulated to give a more rounded overview of what the knowledge and practice base of mediation encompasses. These are Professional Knowledge, Professional Skills, Professional Ethics and Responsibilities and Professional Development. These guide the development of key principles in the standards and through training delivery and continuing professional development.
• Initial training has been increased from 38 to 45 hours and ongoing training requirements have been further developed and clarified.
• The potential for specialisation have been introduced and it is expected that these specialisations will involve training additional and supplementary to the core training.
• Levels of accreditation are introduced, namely Accredited Mediator, Advanced Mediator and Leading Mediator, each with different practice and CPD requirements. Apart from the initial Accredited Mediator level these are voluntary and noncompulsory components of the system.
• A code of ethics is included for the first time.
• Training providers under AMDRAS will need to be registered.
• A model complaints management outline has been provided as an appendix to AMDRAS. This is based on a verified widely used model and intended as a guide to the minimum requirements for such a process.

In April 2024 the Board released a set of “transition rules.” The transitional provisions provided that all training and accreditation bodies would have a period of 12 months to transition from NMAS to AMDRAS. During this time existing RMABs and accredited mediators will be automatically re-registered under the new system with the opportunity to begin training and accrediting to the AMDRAS standards once the revised processes have been reviewed and approved by the Board. The transition period will begin on 1 July 2024 and last until 30 June 2025.

On 1st May 2024 the MSB published a series of guidelines for each of the major stakeholder groups (mediators, accreditation bodies and training providers). The Board, recognises that the transition from NMAS to AMDRAS will likely impact resourcing and requirements of all organisations involved in mediator training and accreditation. To this end the MSB has begun a review of this aspect.

The culmination of the review process and introduction of AMDRAS represents an important evolution of mediator accreditation, training and practice in the Australian dispute resolution landscape. The introduction of the possibility of developing specialisations within a national regulatory framework in an innovative development which will take some time to evolve and develop. Once settled and operating the system will hopefully continue to evolve and be adaptable to the changing requirements of a more diverse and complex environment.

Author Biography

Peter is a Barrister, qualified teacher and mediator. He has also been previously employed in several management and human rights roles including with the United Nations. He is an experienced teacher presenting courses in universities and other organizations. His book “Conflict Management: A Practical Guide” (Lexis Nexis, 2019, 6th Ed.) is well known to many dispute resolution practitioners and negotiators with a 7th edition to be published in 2025. He is Chair of the Australian Mediator and Dispute Resolution Accreditation Standards Board (formerly the Mediator Standards Board) and has served as a Director since 2019 holding positions as Secretary and Convenor of the Research and Review Committees. As well he was the initial drafter of mediation courses for the Dispute Resolution Centres of Victoria; Department of Justice (QLD); the Institute of Arbitrators and Mediators (IAMA – now part of the Resolution Institute) and the Victorian Bar. He is the Principal Instructor in the Victorian Bars’ Lawyers Mediation Certificate which is a specialist course for lawyer mediators. He was the founding President of The Victorian Association for Restorative Justice and is Deputy Chair, ADR Committee of the Victorian Bar, Deputy-President, Council of the Ageing (Vic.), and Member, Senior Rights Victoria Advisory Committee.