While we await this exciting reveal, the MSB ‘has decided to release the final report’ and ‘its associated materials’ submitted by the reviewers ‘including the Draft Code and proposed modifications to the NMAS, on the NMAS Review Hub‘.
As it relaeased the documents, the Board explained:
‘Although the Board chose to redraft the NMAS rather than establish a Code administered by a Code Administration Committee, the proposed new standards draw strongly from the review findings
‘The review findings were based on comprehensive research and consultation with our members, and across the mediation and dispute resolution community
‘Resolution Resources‘ vital work has informed the proposed new standards, including in delivering: greater clarity and focus in training methods and practice; multiple levels of accreditation; scope for the introduction of specialisations; considerable improvements in complaints handling and disciplinary processes, with greater involvement of the MSB in those areas; and an overall lifting of training and accreditation standards.’
We, the reviewers, are excited to share the output from the NMAS Review 2020-22 with you. We trust that the dispute resolution community will see evidence of its generous and rigorous participation in the findings, recommendations and the commentary throughout the Draft Code.
Consider what changes and additions need to be made to it. For example, changes and additions may incluse (subject to feedback received):
Consideration of the inclusion of conciliation or other DR processes into the NMAS; and
Provisions that take account of Aboriginal and Torres Strait Islander mediator needs and requirements.
Situate the NMAS in a domestic and international context
Including reviewing comparative international regulatory dispute systems
Following consultation, research and analysis, the NMAS Review team has made three (3) overarching recommendations and 10 targeted recommendations. (See NMAS Review Findings and Recommendations for further explanation, rationale and findings prompting each recommendation.)
The NMAS Review Findings and Recommendations and supporting materials, including the Draft Code, were submitted to the MSB for consideration June/July 2022. The Draft Code contains the proposed revisions to the NMAS, including an expanded training and accreditation framework, revised professional practice standards, as well as guidance on the administration of the Code and complaints handling.
In the statement, the MSB ‘has resolved to commit further resources to preparing short-, medium- and long-term responses to the Review. These will include clear transition periods for individuals and organisations that may be affected.
Christopher Boyle, the MSB Chair, has said “until threshold decisions have been made, it would be premature and distracting to engage in discussions about details of how recommendations might be implemented.” ‘The Board will continue engaging with the community’ and a ‘process of active engagement will be announced by the MSB in the coming months.’ The Board is not seeking feedback at this stage.
We look forward to sharing the supporting materials on the NMAS Review Hub in the coming months.
‘The outcome of Recommendation 1 will establish the parameters and requirements for implementing Recommendations 2 and 3.
‘The original intention of the NMAS was as ‘a voluntary industry and self-regulated accreditation scheme’. In keeping with this’, we ‘have drafted a voluntary industry code (The Draft Code) modelled on the ACCC guidelines for developing an industry code. It restructures the existing NMAS to provide a coherent framework that articulates the modifications and changes arising from the consultation.’
‘The Draft Code is designed to meet each element of the review’s brief and includes commentary throughout the document. It also provides options for an expanded application to accommodate a variety of non-determinative dispute resolution (NDR) practitioners, specifically family dispute resolution practitioners (FDRPs), conciliators and the potential for First Nations mediators.’
‘The existing NMAS Practice and Approval Standards have been assimilated into the Draft Code’s training and accreditation framework (TAF). It also incorporates modifications and changes arising out of the NMAS Review.
‘The TAF provides a framework that provides a pathway from graduate to advanced practitioner status. It also provides scope for an expanded application to accommodate a variety of non-determinative dispute resolution (NDR) practitioners, specifically family dispute resolution practitioners (FDRPs), conciliators and the potential for First Nations mediators.’
MEDIATION AS A PROFESSION
Findings ‘Despite community sentiment and the language often used, mediation does not currently possess all that is required to legitimately call itself a profession. E.g., it must have proven its ‘self-regulatory capacity – and been recognised by the combined Australian governments.
‘Consultation revealed that for a large proportion of mediators, it is a low-paid, insecure and low-demand industry that is difficult to enter. Complicating matters further, there do not appear to be professional bodies or associations that represent or advocate on their behalf.’
SHARED UNDERSTANDING OF THE NMAS
Findings ‘Although the MSB and the NMAS is a respected brand, there is a lack of clarity and understanding in relation to:
NMAS structure, nomenclature and terminology
MSB’s role, particularly oversight and support
Expectations for training, accreditation and development of practice
‘Based on the above, there is a risk that:
The purpose of the NMAS which is to promote ‘quality, consistency and accountability of NMAS accredited mediators within the diversity of mediation practice in Australia’ is undermined and
The NMAS may fall short of serving as a document that ‘informs participants in mediation (participants) about what they can expect of an NMAS accredited mediator.’
Findings ‘The existing complaints system does not meet the expectations of the community, as is not integrated, does not account for the entire system and does not provide an avenue for independent review.’
LIMITATIONS OF THE NMAS
Findings ‘The NMAS was pioneering and is held in high regard for the vital role it has played in the development of mediation in Australia. The current review draws heavily on its strong foundation, yet consultation has revealed that, over time, it now has a number of limitations.’
POTENTIAL INCLUSION OF CONCILIATION AND FDR
Findings ‘If conciliation and other DR processes are to be included in the NMAS, it must:
Account for practitioners under co-existing schemes. E.g FDRPs
Acknowledge that the conciliation community has shown interest in a conciliator accreditation system.
Recognise a variety of practice and specialisation
‘Consultation revealed significantly more similarities than differences across NDR practice.’
CONSIDERATION OF PROVISIONS THAT TAKE ACCOUNT OF ABORIGINAL AND TORRES STRAIT ISLANDER NEEDS AND REQUIREMENTS
Findings ‘First Nations individuals, organisations and communities possess invaluable lived expertise that cannot be bought or earned. Those engaging in follow-up or further work must recognise this by centring self-determination. This means that First Nations individuals with expertise in working with communities on a national level, must lead all processes to ensure community voices are centred.
‘To achieve meaningful and effective consultation with First Nations individuals, organisations and communities, it is essential to develop or work with frameworks specifically designed to engage with First Nations people and/or people experiencing overlapping marginalisations.
‘In recognition of the diverse knowledges, strengths and needs of First Nations people, consultations must be paid and organised to include flexibility as to both timing and methodology, as well as scope to adapt processes as needed throughout the process.’
DIVERSITY AND INCLUSION
Findings ‘There is an increasing awareness of the importance of diversity and inclusion (D&I) across all industries. Despite best intentions, some attempts to account for D&I are ill-conceived or inappropriate. Mediation is no different, and consultation revealed a wide range of concerns related to D&I, including:
Diversity on the MSB
D&I considerations in the NMAS are narrow
Accessibility in relation to training and the provision of services’
SITUATING THE STANDARDS
The DR community exists beyond Australia and some considerations are worthwhile exploring to ensure the NMAS has global currency.
Australia is a signatory of the Singapore Convention.
There is international appetite to profesionalise the mediation industry.
Australia makes a distinction between mediation and conciliation processes. Internationally, this difference is not as distinct and the terms are ‘interchangeable’ in some contexts.
The international peer review process is underway, and Resolution Resources will provide this additional feedback to the MSB one all submissions are received.
The MSB will keep the community informed of the next steps.
We wish to acknowledge and thank everyone who contibuted to the consultation over the life of review. While it was challenging to capture the perspectives of such a diverse community, we trust that you see will yourselves in the recommendations.
We wish to extend a sincere thank you to everyone who participated in the NMAS Review Survey in March. As we said previously, ‘participating in a survey of this type is a demanding task that requires deep reflection. It is rigorous and complex’ and ‘might be one of the most challenging surveys the DR community has ever seen.’ ‘However, we think the community is up to the challenge.’
And you were!
The data are rich with consistent themes, and we are busily analysing them with our psychometricians to ensure we make robust, evidence-based recommendations to the MSB.
The NMAS Review Survey was the last step of a five-stage consultation process. We want to take the opportunity to acknowledge and thank everyone who contributed to the various stages of consultation. As we know, the DR community is diverse, and the practices within it are varied. While it was challenging to capture the perspectives of such a broad church, we hope that you see yourselves in the recommendations.
NMAS Review consultation process
Over the life of the review, we were able to gather input from different sources, including the existing NMAS, working groups, surveys, and current research. We also collected input over multiple points in time so that every consultation stage served to inform the next.
This combination resulted in each stage building cumulatively to provide a solid foundation upon which to base the recommendations. For example, in the NMAS Review Effectiveness Survey (Stage 3), people told us about their style of practice. The findings from the Effectiveness Survey (see Part 4 – Effective Survey Report coming soon) prompted us to undertake a deeper investigation into practice via the NMAS Review Survey (Stage 5).
What comes next?
The NMAS Review team at Resolution Resources will complete its role by:
delivering its recommendations to the MSB at the end of June 2022; and
facilitating the international peer review it has recommended to the MSB.
For more information on the NMAS Review, please visit the NMAS Hub.
We welcome your thoughts and comments about the Reports!
a. NMAS Effectiveness Survey Report – Part 3
What have we learned so far?
Part 1 of the Report provides insight into who participated in the survey.
Part 2 of the Report provides insight into whether mediators perceive the National Mediator Accreditation System (NMAS) as helpful in relation to six contexts.
Part 3 of the Report drills down even further into these contexts, and analyses them against four factors:
the mediator’s primary area of practice (type)
years of experience
Findings from the Part 3 indicate it has become ‘evident that some of these factors may indeed shape mediators’ perceptions of the NMAS’. In response to the main themes arising from the findings, Part 3 also includes six preliminary recommendations, signalling potential priorities for the MSB or its member organisations (MSB Orgs).
Here is a sample of the findings and recommendations contained in Part 3:
1. ‘Commercial mediators, conciliators and civil mediators are more likely than other types of mediators to perceive the NMAS as helpful’. This is surprising considering ‘community mediators, the group often most closely associated with facilitative mediation as described in the NMAS, were not as consistent or as positive as what some may have expected. For example, some may find it surprising that, while the numbers were small (8%), they, like FDRPs, reported the highest proportion of mediators labelling the NMAS as not helpful in connection to training and accreditation.’
RECOMMENDATION: ‘Identify ways to maximise the NMAS’s capacity in guiding everyday practice and promoting/developing mediation services irrespective of mediator type, level of experience or age.’
2. ‘The amount of time in practice or years of experience (YE) played a role in how mediators perceived the NMAS, with a number of statistically significant differences observed between YE groups regarding promoting and developing mediation services, promoting mediator credibility and promoting mediation as a profession.’
‘Notably, many of these differences centred around comparisons to the responses of mediators with 25–28 YE. This group reported the highest proportion of ‘very helpful’ responses in five of the six contexts.’
‘Curiously, these sentiments were often not reflected in the adjacent YE groups, prompting the question, “Was there a major change or event between 1993 and 1996 that may shed light on this group of mediators?”’. Part 3 of the Report makes the connection ‘that this period saw quite a surge in ADR-related reforms, including the establishment in 1995 of the National Alternative Dispute Resolution Advisory Council (NADRAC)’.
Interestingly, ‘mediators with 17–20 YE had the highest proportion of respondents labelling the NMAS as helpful in developing services, participating in CPD, promoting mediator credibility and promoting mediation as a profession.’ ‘Again, the corresponding period between 2001–2004 coincided with the release of several seminal NADRAC papers, including ‘A Framework for ADR Standards’ (April 2001)‘.
The report states that ‘while correlation is not causation, it would seem remiss not to acknowledge the correlation between these pivotal moments in ADR and’ the ‘statistically significant’ findings, ‘as they are likely to be representative more broadly’.
RECOMMENDATION: ‘Celebrate the ongoing legacy of NADRAC and its potential role in shaping how many mediators perceive the NMAS today.’
3. ‘There was minimal variation between genders and no statistically significant findings. This suggests that gender is unlikely to influence whether the NMAS was perceived as helpful across the given contexts.’
RECOMMENDATION: ‘Acknowledge that gender appeared to play almost no role in mediators’ perceptions of the NMAS’s helpfulness.’
The Effectiveness Survey was conducted in March 2021. The purpose of the survey was to ascertain the extent to which MSB member organisations and mediators perceive the NMAS Standards to be helpful. It was also an opportunity to gather data about the mediation community, some of which informed design the recent NMAS Review Survey.
The Effectiveness Survey Report will be released in four parts:
To review the complete summary of findings and recommendations, we invite you to read Parts 1, 2 and 3 of the Effectiveness Survey Report – available to download now on the NMAS Review Hub. The MSB is also releasing findings on their LinkedIn page and website. Follow them for more updates.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. We invite everyone in the DR community to visit regularly and/or subscribe to receive news updates and information about the upcoming NMAS Survey!
The NMAS Review Team
Emma-May Litchfield and Danielle Hutchinson
 Such as the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW); For more information in reforms during this time see Tom Altobelli, ‘Mediation in the Nineties: The Promise of the Past’ (2000) 4 Macarthur Law Review 103.
The NMAS Review Team are pleased to announce that the NMAS Review Survey is now open from 14 February – 4 March 2022.
The NMAS Review Survey is the important final stage of our consultation process for the current review of the National Mediator Accreditation System (NMAS). The Mediator Standards Board (MSB) will conduct further consultation in response to the recommendations arising out of the review.
This survey is designed for the entire dispute resolution community. We need your help to extend the invitation to people or organisations in your network. With your support, this survey has the potential to be one of the largest data gathering processes of its kind ever attempted in Australia, and will make an important contribution to the field of industry-based research into dispute resolution.
As academics, we all know that the the more people who answer the survey the more robust the data will be. We want all stakeholders to be represented — practitoners, organisations, academics, users — anyone with an interest in dispute resolution can make a valuable contribution. Consider distributing the invitation to your students who are participating in ADR subjects, members of committes (e.g. ADRAC, The Alernative Dispute Resolution Committee, etc.) lawyers who work with mediators, other academics, mediators and other non-determinative dispute resolution practitoners.
What is in the survey?
The NMAS Review Survey considers the current Approval and Practice Standards for NMAS accredited mediators (the Standards), the technical and structural elements of the NMAS (the System), as well as other areas for further investigation that have arisen from consultation so far.
The survey was developed in response to consultation and designed using a well-established methodology for the development of standards. Analysis of the survey will inform recommendations made to the MSB in relation to the review of the current NMAS.
The survey is made up of two parts:
Part 1: The Professional Practice Standards
Everyone who participates in the survey is asked to complete this section. It will take approximately 60 minutes to answer all of Part 1.
Part 2: The Approval Standards and System
We encourage everyone to complete this section. MSB Member Organisation hold specific responsibilities under the NMAS and will be automatically directed to complete both Parts 1 & 2. All other participants will be given the option to complete Part 2. It will take approximately 30 minutes to complete.
We anticipate that you may have questions. The NMAS Review Survey may look unlike any survey you have completed before — and there are several reasons for this.
For FAQs and a recording of recent NMAS Review Survey Information Session hosted by Mediation Institute, please visit NMAS Review Survey FAQs.
Thank you all for your support with the NMAS Review.
We will open the survey to the entire dispute resolution (DR) community and others with an interest in the future of mediation. With your support It has the potential to be one of the largest data gathering processes of its kind ever attempted in Australia.
You may notice that the survey is a little different from surveys you may have completed in the past. We think the DR community is up to the challenge, however, this might be one of the most challenging surveys our community has ever seen.
The questions are asked in a specific way using a well-established methodology for the development of standards. Participating in a survey of this type is a demanding task that requires deep reflection. It is rigorous and complex, perhaps unexpectedly so, as it examines all the information from the current NMAS — both the NMAS Standards and the System — as well as some questions that have emerged from our consultation with the DR community so far.
What we want from you
What we are asking of you is really important. The Mediator Standards Board (MSB) has recognised how valuable participating in this research is, by endorsing an hour of CPD for those who participate. We hope that by sharing this with you early you can be prepared to put time aside to complete the survey.
Every voice counts.
Please consider who else you might wish to share this post with to spread the message as widely as possible. With your help, the invitation to participate in the survey can be extended to thousands, including mediators, other non-determinative DR practitioners such as conciliators and FDRPs, community and other organisations, government bodies, academics — the list goes on.
We know from running previous surveys that results are impacted when a group is unrepresented in the data. For example, in the NMAS Effectiveness Survey, judge mediators as a group were under-represented and, as a consequence, we could not include them in comparative analysis with other types of mediators. What a missed opportunity!
The NMAS Review Team wishes to thank everyone involved for their generosity and valuable contribution to the consultation process so far. It has helped us to develop and refine the main part of the consultation — NMAS Review Survey. Contributors include:
29 Reference Group members
50 Workshop participants
600 participants in the Effectiveness Survey
46 people volunteered to pilot the NMAS Review Survey
The NMAS Review is an independent process, however, we would also like to acknowledge and extend our thanks to the MSB, in particular those on the NMAS Review sub-committee, for their support through this process.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. It includes reports, videos, resources, news updates, background information and more. We invite everyone in the DR community to visit and/or subscribe to receive updates or for a link to the NMAS Review Survey once released.
Emma-May Litchfield and Danielle Hutchinson
Leading the NMAS Review Team
If you are an NMAS accredited mediator, we have been advised by the MSB that you can collect one CPD point for completing this survey under Section 3.5 of the NMAS. Please contact your RMAB for clarification.
We welcome your thoughts and comments about the Reports!
a. NMAS Effectiveness Survey Report – Part 2
What have we learned so far?
Part 2 of the Report provides insight into whether mediators perceive the National Mediator Accreditation System (NMAS) as helpful in relation to six contexts:
All ‘helpful’ responses
% all mediators
Promoting mediator credibility (Survey Q64)
Training & accreditation (Survey Q65)
Promoting mediation as a profession (Survey Q66)
Participating in CPD (Survey Q67)
Guiding everyday mediator practice (Survey Q68)
Promoting or developing mediation services (Survey Q69)
In response to the main themes arising from the findings, Part 2 also includes six preliminary recommendations, signalling potential priorities for the MSB or its member organisations (MSB Orgs).
Here is a sample of the findings and recommendations contained in Part 2:
1. ‘Overall, the NMAS was perceived as helpful. Importantly, MSB Orgs and mediators agree that the NMAS is most helpful in relation to promoting mediator credibility. This is a tremendous endorsement of everyone involved in the development and implementation of the NMAS, especially those who, from the outset, recognised the nexus between the quality of ADR services and community confidence in ADR.’
RECOMMENDATION: ‘Celebrate those who have contributed to the development and implementation of the existing NMAS.’
2. ‘When asked about how often they refer to the NMAS, specifically Part II Approval Standards and Part III Practice Standards, MSB Orgs reported referring to them more often than mediators. This was particularly so in relation to initial accreditation, where 26% of mediators reported never referring to the Approval Standards.’
‘Despite less than 2% of mediators reporting zero years of accreditation, 9% of mediators suggest they never refer to the Approval Standards in relation to reaccreditation requirements, and 11% report never referring to the Practice Standards in regard to competency and practice requirements.’
RECOMMENDATION: ‘Investigate ways to maximise mediator perceptions of NMAS helpfulness, including ways to promote mediator engagement with the NMAS, particularly the Approval and Practice Standards.’
3. ‘When referring to the NMAS Standards, It has become apparent that mediators and Member Orgs often mean the system as a whole. This confusion has the potential to have a negative impact — particularly given its use as a public-facing document and reference point within the intake process.’
RECOMMENDATION: ‘Clarify the existing nomenclature to ensure the distinction between the NMAS — which covers the entire accreditation system, including the responsibilities of the MSB and MSB Orgs — and the Standards, which describe the approval and practice requirements for mediators.’
The Effectiveness Survey was conducted in March 2021. The purpose of the survey was to ascertain the extent to which MSB member organisations and mediators perceive the NMAS Standards to be helpful. It was also an opportunity to gather data about the mediation community, some of which now informs the design of the upcoming main NMAS Survey. The Effectiveness Survey Report will be released in four parts:
To review the complete summary of findings and recommendations, we invite you to read Parts 1 and 2 of the Effectiveness Survey Report – available to download now on the NMAS Review Hub. The MSB is also releasing findings on their LinkedIn page and website. Follow them for more updates.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. We invite everyone in the DR community to visit regularly and/or subscribe to receive updates on the release of Parts 3 and 4 of the Effectiveness Survey Report and information about the upcoming NMAS Survey!
2021 has been challenging for everyone. We have not escaped, but we are proud to say there has been steady progress with the NMAS Review. While it has remained true to its initial purpose, the scope of the work has expanded significantly for all the right reasons – the broad consultation through the reference groups, workshops and the Effectiveness Survey showed that the mediation community wanted more. In particular, these groups were asked us to consider aspects reaching beyond the ‘Accreditation and Practice Standards’ and into the ‘System’ as a whole.
In response, we have stepped up and accepted this challenge. We are committed to ensuring that this more extensive process has all the resources it needs. Specifically, we are contributing additional time and energy to ensure the quality and depth remain high, even with this expanded process. We think this is a small price to pay and we thank everyone for their patience – we are sure that you are as excited as we are to see a rich and multi-dimensional outcome.
Even with these inclusions, significant progress has been made, and we are excited to share some of the findings from the NMAS Effectiveness Survey.
b. Effectiveness Survey Report – Part 1
The Effectiveness Survey was conducted in March 2021. The purpose of the survey was to ascertain the extent to which MSB member organisations and mediators perceive the NMAS Standards to be effective. It was also an opportunity to gather data about the mediation community, some of which now informs the design of the upcoming main NMAS Survey. The Effectiveness Survey Report will be released in four parts:
Part 1 – Participants
Part 2 – Perceived effectiveness
Part 3 – Other factors
Part 4 – Mediator styles
What have we learned so far?
Part 1 of the Report provides insight into the participants, particularly the characteristics, areas of practice, and amount of work of the mediators surveyed. In response to the main themes arising from the findings, Part 1 also includes six preliminary recommendations, signalling potential priorities for the MSB or its member organisations.
Here is a sample of the findings and recommendations contained in Part 1:
1.There was a significant lack of diversity across various personal characteristics among the mediators surveyed, including cultural background, education, disability, and LGBTQIA+ status.
RECOMMENDATION: Develop and implement a diversity and inclusion strategy to promote greater representation within the mediation community.
2. For a majority of respondents, mediator practice makes up 50% or less of their overall work. Further, 63% of mediators reported being over the age of 55.
RECOMMENDATION: Conduct further research into the factors contributing to employment outcomes/equivalent practice opportunities for mediators to identify genuine pathways as professional mediators across all career stages.
3. Unlike other types of mediators, such as lawyer mediators, workplace mediators or community mediators, FDRPs and conciliators are the most active practitioners in terms of the number of mediations and mediation as a proportion of their overall work.
RECOMMENDATION: Continue consideration of conciliation and FDRP as potential inclusions in the NMAS Review, with the view to long-term options for enhanced representation within the MSB.
To review the complete summary of findings and recommendations, we invite you to read Part 1 of the Effectiveness Survey Report – available to download on the NMAS Hub. The MSB is also releasing findings on their LinkedIn page. Follow them for more updates. We have also written a short blog which includes some more of the findings to whet your appetite!
We welcome your thoughts and comments about the Report!
c. The NMAS Review Survey
The main NMAS Review Survey, which is the final part of the consultation process, will be open to all members of the DR community. However, there is still some work to be done on the survey to ensure it captures all of the input gathered so far. We will also conduct a pilot to help us test the reliability of the questions and structure of the survey.
There is a link to an expression of interest if you would like to be part of the pilot survey. When volunteering for the pilot, please consider that this is an additional task, and any data collected will only be used to improve the design of the NMAS Survey. It is not a substitute for participating in the NMAS Survey open to everyone in the DR community.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. We invite everyone in the DR community to visit regularly and/or subscribe to receive news updates.
Watch the NMAS Review Hub for the release of Parts 2, 3 and 4 of the Effectiveness Survey Report!
We are happy to report that the review of the National Mediator Standards is well underway. Reference Group participants have commenced lending their expertise towards the development of the Approval and Practice Standards Survey (The NMAS Survey).
The NMAS Review Team are currently seeking expressions of interest for February 2021 workshop waitlists and participants for The NMAS Survey pilot in April.
The NMAS Review 2020-21 is designed to be a collaborative process that actively seeks input from a diverse range of stakeholders across multiple points in time and using a variety of engagement strategies. This means stakeholders will have multiple opportunities to provide input over the life of the review.
The Approval and Practice Standards Survey (The NMAS Survey) is the primary instrument of the review and as such is the review proper. Unlike many traditional review processes, The NMAS Survey is being developed in consultation with the DR community through a range of forums including reference groups, collaborative workshops and pilots.
The findings arising out of The NMAS Survey will form the basis of the recommendations to the Mediator Standards Board (MSB).
Participation in The NMAS Survey is open to all stakeholders and interested parties. We invite you to be a reviewer by completing The NMAS Survey when it becomes available later in the year.
This Blog provides a platform to showcase new and emerging research in the field of dispute resolution. As such, I have invited Danielle and David Hutchinson who have an interest in neurodiversity, including its implications for mediation, to write a piece. Thank-you for sharing, Danielle and David.
Research into neurodiversity is on the rise. As the concept makes its way into the zeitgeist, it’s time for us to start thinking about the many implications for mediation.
What is neurodiversity?
Neurodiversity is an overarching term that refers to the variation in people’s behaviours and traits arising out of neurodevelopmental difference. While there is still debate about what differences fall under this umbrella, it typically includes autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyscalculia, dyspraxia and Tourette’s syndrome.
Within the current understanding, neurodiversity differs from mental Illness in that it is not about a person’s state of mental health or wellness. Instead it is a healthy state that is simply neurologically distinct from that of ‘neurotypicals’. One of the common features of neurodiversity is that the difference between strengths and weaknesses are often magnified. For example, there may be an unusually large disparity between a person’s verbal reasoning and their working memory. While the variation is unique to each neurodiverse person, a familiar trope is that of the absent-minded professor. Diagram 1 shows common strengths and weaknesses for each condition.
Why is this important to mediators?
Research into neurodiversity is still in its early days. However, it is starting to become apparent that that this disparity between finding some things extremely easy and other tasks almost impossible, can lead to confusion, frustration and misunderstanding in a range of contexts. This can be particularly so where the neurodiverse person has chosen not to share their diagnosis or is unaware of their neurodiversity.
Unfortunately, recent research into neurodiversity has shown that it is not uncommon for “employers, work coaches and authority figures to conclude that the individual is ‘not trying’, when undertaking particular tasks. Inconsistent performance is mistaken for a bad attitude or poor motivation, which leads to discrimination and perceptions of unfairness on behalf of the individual.”
Given the potential for conflict to arise in such situations, and current estimates that as much as 30% of the population may have some form of be neurodiversity, it seems inevitable that as mediators we will need to consider the different ways that neurodiverse people make meaning of their interactions with others. More importantly, if we are to ensure that our practices are truly inclusive, we must start to consider the ways in which our practices may be premised on neurotypical assumptions.
For example, the following table outlines a few differences common to ASD and/or ADHD that may be misinterpreted as the neurodiverse person being deliberately difficult or as demonstrating traits of a high conflict personality.
Traits that may impact on traditional mediation techniques
Difficulty experiencing, identifying and expressing emotions
Challenges with introspection, observing own mental and emotional processes, and/or identifying and responding to emotions in others
May struggle to communicate emotions to others
Black and white thinking
Polarised thinking patterns e.g. an argument or lack of agreement means the end of a friendship
Difficulty picking up on nuances and non-verbal gestures
Literal interpretation of conversations or agreements
Strong preference for rules and routines
Difficulty changing mental states or thinking about things in a different way
Difficulty with tasks such as planning, problem solving, organisation, time management and working memory
Impulsiveness and inhibition
Acting without thinking things through or accounting for potential consequences
Difficulty allowing others to speak uninterrupted
Extreme sensitivity to being criticised or rejected, whether real or perceived
Can manifest as hyper or hypo-sensitivity
Bright lights, noise or smells can be distracting or distressing and inhibit ability to engage in activities
When we consider the typical facilitative mediation, it becomes apparent that we may have unintentionally set some neurodiverse people up to fail.
Where to next?
Each of these neurodevelopmental conditions manifests uniquely in each person, hence the catchphrase, “When you have met one neurodiverse person, you have met one neurodiverse person”. As mediators, it is not our role to diagnose or make assumptions. However, it is important that our practices are inclusive and can enable the full participation of all people involved. In providing an inclusive environment we can start harnessing the many strengths of neurodiverse participants to find mutually beneficial and sustainable outcomes for all.
Danielle Hutchinson is a lawyer, mediator, author and co-founder of Resolution Resources. Danielle has lived experience of neurodiversity and, in consultation with experts in the field, is investigating neuroinclusive practices in mediation.
 David Hutchinson is an autistic researcher and writer in the field of autism
 Difference as opposed to disorder is now being used by some researchers in the field e.g. Fletcher-Watson & Happe (2019) and preferred by many in the ASD community
 The DSM-5 now includes Asperger’s Syndrome within ASD as ASD1. Even so, many people identify strongly with being an ‘Aspie’ and the term remains in use for those who wish to identify as such.
 First coined in 1998 by Australian sociologist, Judy Singer in research into Autism. While there is no formal definition, the term has been adopted broadly and is widely accepted as encompassing the neurodevelopmental disorders described above; see also ‘What is Neurodiversity?’ National Symposium on Neurodiversity at Syracuse University (webpage, 2011) https://neurodiversitysymposium.wordpress.com/what-is-neurodiversity/