This is an excerpt (taken from the final author version and with edited footnotes) from our new book: Laurence Boulle and Rachael Field, Australian Dispute Resolution Law and Practice (Lexis Nexis, 2017) in which we support the move towards making the language of dispute resolution more contemporary by referring to DR rather than ADR. We look forward to your comments and responses as we post a number of excerpts over the month of December. Rachael and Laurence

Defining dispute resolution is not an easy task.^[1] There are many different processes that fall under the ambit of ‘DR’, and to complicate matters there is much internal diversity within processes which have the same label. When DR processes such as mediation and conciliation started to be widely used, they were collectively referred to as ‘alternative dispute resolution’ (ADR).  The acronym ADR originally denoted processes developed, intentionally or organically, as alternatives to those provided by courts and tribunals in formal justice systems.[2] Initially, there was angst and argument about what should be included in, or excluded from, the term.^[3] While ADR was originally associated with mediation, it came to include other processes such as neutral evaluation and case appraisal. This resulted in NADRAC (the National Alternative Dispute Resolution Advisory Council) defining ADR as,

… an umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them. ADR is commonly used as an abbreviation for alternative dispute resolution, but can also be used to mean assisted or appropriate dispute resolution. Some also use the term ADR to include approaches that enable parties to prevent or manage their own disputes without outside assistance.[4]

The NADRAC approach emphasised that ADR was understood in contradistinction to litigation. This reinforced rhetorical dichotomies in the literature around formal versus informal processes; speedy versus slow processes; processes that invite direct party participation versus those that exclude party participation; processes controlled by the parties versus those controlled by third parties; expensive versus inexpensive processes; coercive versus consensual processes; binding versus non-binding processes. These sorts of binary distinctions have always been simplistic and confining, and have long (and rightly) been acknowledged as such. These distinctions were based on false assumptions about levels of consistency and unity within ADR processes,^[5] which obscured ‘the many and important distinctions between different ADR processes, lumping them together as if ADR was one homogenous institution set apart from the courts’.[6] As a result, ADR processes were depicted as ‘the other’ (to litigation), bestowing a primacy on litigation that was historically and socially misleading in terms of the extent of litigation’s contribution to overall dispute resolution systems.[7] There is, however, another sense in which litigation enjoys a normative ‘primacy’ in legal dispute resolution: it has operated, and continues to some extent to operate, as an ultimate point of reference for all other dispute resolution processes and it has historically cast a shadow over their operation.

In the early 1990’s Julian Riekert, one of Australia’s founding writers in the area, identified three descriptors of ADR: first, ADR as including all forms of dispute resolution other than litigation; second, ADR as including dispute resolution processes that leave the form and content of any settlement to the parties; third, ADR as involving non-litigious processes with the intervention of an outside party.^[8] Riekert’s first definition continued the trend of defining ADR by reference to its alternative status to litigation.^[9] ADR was thus positioned for many years as the alternative option, and almost in opposition, to litigation. As a result, ADR processes and practices were viewed by some, particularly in the practising legal profession, with suspicion and distrust.[10] To redress these perceptions there were suggestions that ADR should be understood as signifying ‘additional’,^[11] ‘assisted’,^[12] ‘appropriate’,^[13] ‘administrative’^[14] or ‘amicable’ dispute resolution.^[15]

It is fair to say, then, that the use of the word ‘alternative’ as a descriptor for DR has long been inaccurate.[16] The processes understood to fall within its ambit are no longer  ‘alternative’ or ‘marginal’ because they are in fact often the primary, dominant or mainstream systems for resolving and managing conflicts and disputes, and are often sought out by the parties or mandated by DR clauses or by legislation.[17] Indeed, litigation might now be argued to be the true ‘alternative’ to the mainstream treatments of disputes, notwithstanding its normative influence in law and dispute resolution referred to above. Nevertheless, the term ADR still has currency and the durability of the acronym has meant that proposals for the adoption of terms such as those listed above, or other examples such as ‘innovative’ dispute resolution, or ‘non-adversarial justice’, have not gained the traction that might be expected or that they might deserve.^[18]

While the term ADR remains widely used and recognised, and while it is still the case that formal legal and justice systems continue to some extent to privilege litigation, there is now less anxiety over definitional questions, and over what is and what is not included in generic terms in the field. It is propitious that binary distinctions between ADR and litigation, and their respective attributes, are generally no longer regarded as appropriate. Litigation too has lost much of its assumed consistency and uniformity and currently has its own variations, adaptations and mutations, as we discuss in Chapter 10. Moreover the ‘institutionalisation’ of ADR has brought it within the purview of courts, tribunals, agencies and other aspects of formal justice processes where it is one component of overall systems for and approaches to assisting people in dispute to resolve and manage their matters. In other words, with ADR now established within courts, government agencies and private enterprises it must be viewed as part of the overall schema of dispute handling in the legal system and in society more broadly. Today we have a great diversity of processes available both within and outside the courts. There is also a realisation that whilst most disputes are not dealt with in litigation, non-litigated disputes are managed, at least to some extent, in the ‘shadow of the law’, that is they are informed by what would or could happen if the matter were litigated.^[19]

Our approach in this book is to avoid the term ‘alternative’ in identifying dispute resolution processes other than litigation, and simply to refer to ‘dispute resolution’ (DR) as encompassing all processes, including litigation.[20] ADR remains an historical term of art, recognised and understood by many within the legal and justice communities, but it is no longer a relevant or accurate descriptor for the future of DR practice, especially in legal contexts. It is used in this text only to reflect its use in cases or legislation or where its historical legacy makes it appropriate. When needing to distinguish non-litigious processes we refer to non-litigation DR (NLDR).

^[1] Eric Green was arguably the first to use the term ‘alternative dispute resolution’. See Eric Green, ‘Settling Large Case Litigation: An Alternative Approach’ (1978) 11 Loyola of Los Angeles Law Review 493. The Australian Productivity Commission has also recommended that common definitions about legal services be adopted in order to ‘maximise the usefulness of legal services data sets, (and) reform in the collection and reporting of data’: see recommendation 25.2 in Productivity Commission, Access to Justice Arrangements, Report No. 72 (Australian Government, 2014). See also Australian Law Reform Commission, Review of the Adversarial System of Litigation ADR — its Role in Federal Dispute Resolution, Issues Paper 25 (ALRC, 1998) section 2; Law Reform Commission, Ireland, Report on Alternative Dispute Resolution: Mediation and Conciliation, LRC 98-2010 (LRC Ireland, 2010), http://www.lawreform.ie, citing George Applebey, ‘What is Alternative Dispute Resolution?’ (1991-1992) 15 Holdsworth Law Review 20.

[2] See Frank EA Sander, Varieties of Dispute Processing, Address given at the Pound Conference on Causes of Dissatisfaction with Justice (1976), reprinted in A Leo Levin and Russel R Wheeler (eds), The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes or Popular Dissatisfaction with the Administration of Justice (West Publishing Co, 1979).

^[3]  Most notable were debates about whether arbitration could properly be included within the suite of ADR processes.

[4] NADRAC, Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution, (Australian Government, 2003), 4. See also NADRAC, Your Guide to Dispute Resolution (Australian Government, 2012), 5.

^[5] Brunet, for example, noted that ‘ADR is not a unitary concept’: Edward Brunet, ‘Questioning the Quality of Alternative Dispute Resolution’ (1987) 62 Tulane Law Review 1, 10.

[6] Robert A Baruch Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver University Law Review 335, 343.

[7] For example, Galanter has noted ‘the negotiated settlement of civil cases is not a marginal phenomenon; it is not an innovation; it is not some unusual alternative to litigation’: Marc Galanter, ‘A Settlement Judge Not a Trial Judge: Judicial Mediation in the US’ (1985) 12 Journal of Law and Society 1.

^[8] Julian Riekert, ‘Alternative Dispute Resolution in Australian Commercial Disputes — Quo Vadis?’ (1990) 1 Australian Dispute Resolution Journal 31.

^[9] This, however, did not include socially disapproved methods of dispute resolution such as coercion. Another critique of the word ‘alternative’ is that it implies deviance from a norm, as in ‘alternative life style’; in this sense, too, it was argued that labelling the new developments as ‘alternative’ processes was unfortunate. However, for others the concept ‘alternative’ carried the positive implication of difference from convention. In common parlance ‘alternative’ has a wide range of connotations, from approving notions of something different to the staid and conventional, to derogatory senses of deviation from the accepted and normative.

[10] Owen M Fiss, ‘Against Settlement’ (1984) 93 Yale Law Journal 1073 commenting at 1075: ‘I do not believe that settlement as a generic practice is preferable to judgment or should be institutionalized on a wholesale and indiscriminate basis. It should be treated instead as a highly problematic technique for streamlining dockets.’

^[11] Sir Laurence Street, ‘The Language of Alternative Dispute Resolution’ (1992) 66 Australian Law Journal 194. Street’s preference for the term ‘additional’ did not imply rejection of emphasis on litigation, which he considered a ‘fundamental element’ of western democracy. Rather, he viewed ADR as ‘supportive’ of litigation. See also David Spencer, Principles of Dispute Resolution (Lawbook Co, 2011), 3.

^[12] See, for example, Paul Lynch, ‘The Implementation of Assisted Dispute Resolution in Taxation of Costs in Queensland — Amendments to Order 91 of The Rules of the Supreme Court of Queensland’ (1995) Queensland Law Society Journal 53.

^[13] The term ‘appropriate dispute resolution’ is still used in Victorian legislation, keeping the acronym alive – see, for example, the Civil Procedure Act 2010 (Vic), s 77. See also Department of Justice, Victoria, New Directions for the Victorian Justice System 2004–2014: Attorney General’s Justice Statement (Victorian Government, 2004), 33 where it is said that ADR is increasingly referred to as ‘appropriate dispute resolution’, ‘in recognition of the fact that such approaches are often not just an alternative to litigation, but may be the most appropriate way to resolve a dispute’, citing Chapter 4 of the Victorian Law Reform Commission, Civil Justice Review: Report (Victorian Government, 2008), 212.

^[14] This expression is more limited in that it refers to steps taken during the performance of a construction project by those responsible for delivery of the project rather than by outside third parties. See, for example, Douglas Jones, ‘A Critical Analysis of the Means Commonly Adopted to Avoid Disputes in the Construction Industry’ (1998) 14 Building and Construction Law Journal 31, 33.

^[15] See, for example, David Hollands, ‘FIDIC’s Provision for Amicable Settlement of Disputes’ (1989) 6 (1) International Construction Law Review 33. See also the International Chamber of Commerce, Rules of Arbitration, in force as from 1 January 2012 which refer in Appendix IV on Case Management Techniques to ‘amicable’ dispute resolution methods, http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/.

[16] In some contexts ‘ADR’ is part of a broader concept of ‘resolution processes’ for example the Civil and Administrative Tribunal Act (NSW) 2013, s 37 is headed, ‘Tribunal to promote use of resolution processes’ and permits the Tribunal  to use (or require parties to proceedings to use) any one or more ‘resolution process’. It defines ‘resolution process’ as any process, including … alternative dispute resolution, in which parties are assisted to resolve or narrow the issues between them.

[17] Anne Bihancov, ‘What is an Example of a Good Dispute Resolution Clause and Why?’ (2014) Evaluation of ADR Paper 3 available from http://www.civiljustice.info/adreval/3.

^[18] In 1994 McLaren and Sanderson proposed the use of the term ‘innovative dispute resolution’: see Richard McLaren and John Sanderson, Innovative Dispute Resolution: The Alternative (Carswell Thomson Professional Publishing, 1994). Another formulation is ‘less-drastic’ forms of dispute resolution: see William Fox, International Commercial Agreements (Kluwer Law International, 3rd ed, 1998), 213. See also, Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non-Adversarial Justice (The Federation Press, 2^nd ed, 2014).

^[19] Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950. But see Carrie Menkel-Meadow, ‘Lawyer Negotiations: Theories and Realities — What We Learn from Mediation’ (1993) 56 Modern Law Review 361 at 371, querying whether Mnookin and Kornhauser are correct in their assessment of how the law influences out of court settlements.

[20] Note the title of NADRAC’s definitions publication changed from Alternative Dispute Resolution Definitions in 1997 to Dispute Resolution Terms: The Use of Terms in (Alternative) Dispute Resolution in 2003. See also Policy Developments, ‘Towards Consistency in ADR Terms’ (1998) 1(1) ADR Bulletin 7.

Professor David Bamford of Flinders Law School invites interested dispute resolution researchers to attend the 2017 Civil Justice Research and Teaching Symposium. Keynote speaker is Carrie Menkel-Meadow, internationally renown dispute resolution scholar. An additional bonus is that the Adelaide Fringe Festival is on at the same time. You will see from the invitation that the Call for Papers is open.

The Civil Justice Research and Teaching forum is an established gathering of legal academics who teach civil procedure and conduct research into civil justice issues. Typically these gatherings have been informal and supportive opportunities to exchange ideas. There are many excellent reasons for dispute resolution focused academics to engage with this group. Obviously, formal civil justice processes are simply one narrow part of the broader dispute management and resolution system that deals with private disputes. As David Bamford said when I asked him whether I could make this post:

I would encourage the  dispute resolution scholars to attend. I really see what we do as a subset of the DR field – DR using courts.

To properly understand the civil justice system, it is essential to know about dispute resolution mechanisms that are part of that system. This is reflected in reports such as the Productivity Commission’s 2014 Access to Justice Arrangements, the focus on dispute resolution in civil justice research (see for example the Australian Centre for Justice Innovation’s Civil Justice Online Clearinghouse), and the teaching of dispute resolution within civil litigation/procedure units in Australian law schools (see for example: NADRAC, Teaching ADR in Australian Law Schools (2012); Pauline Collins, ‘Resistance to the Teaching of ADR in the Legal Academy’ (2015) 26 Australasian Dispute Resolution Journal 64, 68;  James Duffy & Rachel Field, ‘Why ADR Must be a Mandatory Subject in the Law Degree: A Cheat Sheet for the Willing and a Primer for the Non-believer’ (2014) 25 Australasian Dispute Resolution Journal 9, 17; Kathy Douglas, ‘The Teaching of ADR in Australian Law Schools: Promoting Non-Adversarial Practice in Law’ (2011) 22 Australasian Dispute Resolution Journal 1).

Many dispute resolution researchers who teach in law schools will be aware that consultation is in progress regarding a proposed amendment to the LACC/Priestley 11/Admission Requirement subject area of “Civil Procedure.” Essentially, the amendment would redefine the subject area as “Civil Dispute Resolution” and add “Dispute Resolution” to the list of sub-topics that must have been studied by applicants for admission to legal practice. This change reflects the reality that pre-trial civil procedure cannot be taught in isolation from dispute resolution mechanisms other than trial. The change has the potential to build better links between academics focused upon formal justice system processes and those focused mainly on non-judicial decision making. The Civil Justice Research and Teaching Symposium is an excellent opportunity to strengthen those bonds.

Some of our network members are already part of the civil justice research and teaching group, and we look forward to some new faces in Adelaide.

A holiday in Italy is always a wonderful experience, especially when it includes the beautiful city of Florence. My recent Italian holiday was made even more pleasurable by the opportunity to visit with the Chiara Tondini and Nadia Sportolaro, the Managing Team of The Florence International Mediation Chamber (FIMC).

A branch of the Florence Chamber of Commerce, FIMC was established in 2015 with the goal of offering an international mediation service to Italian companies involved in international commercial relationships and to foreign companies who very wisely choose to resolve their disputes in Florence.

FIMC has a lot to offer its commercial clients. It has a growing panel of experienced mediators from around the world (including Australia) accredited to rigorous international standards and a mediation room with a marvellous view over the city – a drawcard in itself!

FIMC is continuing to build its profile and will host the Florence session of the Global Pound Conference series, an international program involving over 36 events in more than 26 countries and which has been featured in several of these blog posts.

FIMC is active internationally – for example, it is working with the Permanent Court of Arbitration in The Hague to secure the right to become the Italian host for its arbitrations and mediations. It is also an official observer of the UNCITRAL Working Group II which is investigating developing an enforceability vehicle for international mediated settlement agreements along the lines of the New York Convention which applies in the arbitration environment.

The Chamber of Commerce of Florence (CCF) of which FIMC is a branch, was founded in 1770 – via a statute enacted by Grand-Duke Pietro Leopoldo of Tuscany.  Since 1998 it has been handling domestic mediation services and 6,000 cases later it has an enviable track record.

The CCF domestic mediation service operates under Legislative Decree no. 28/2010, the single legislative instrument controlling both mandatory and voluntary mediation in Italy. It ensures that parties cannot litigate most (but not all) matters without a trial of mediation.

With typical Italian creativity, the constitutional challenge to 28/2010, spearheaded by the legal profession (which succeeded on a technicality) has been overcome by an amendment which has proved wise and durable – parties are still required to attend the commencement of a mediation prior to issuing legal proceedings, however they are given the opportunity to opt out of the process before the formal mediation commences.  Once the parties agree to commence a mediation and settle the dispute, the operation of the Legislative Decree creates an immediately enforceable agreement – this provision extends to both mandatory and voluntary mediation.

The operation of this regime has been surprising successful – an interesting lesson for us in Australia. The chart below, provided by FIMC, provides insight into the success of the process.  

As Chiara and Nadia explain, requiring all parties to come to the mediation table, even in a preliminary way, provides the opportunity for parties, who might otherwise not be willing to initiate a mediation, to consider what mediation has to offer and choose to stay. The process is also efficient, low cost and not punitive for those parties who do opt out – removing the argument lawyers often use here about the unnecessary expense imposed by a mandatory regime.

As the chart demonstrates, more than 50% of parties who attend the introductory session choose to stay and of those matters, more than 60% settle.

Yet another reason to visit Florence![1]

[1] Discover more at: www.fimcmediation.com

Dr Sue Douglas‘ presentation at the Australasian Law Teacher’s Association Conference in Wellington, New Zealand in July was titled “Constructions of Reflective Practice in Dispute Resolution”. This builds upon a paper that Sue presented at the 2014 National Mediation Conference.

The research project

Sue’s project is motivated by a curiosity about what FDRPs understand to be reflective practice. This focus on practitioner views is consistent with Sue’s preference for a ground up approach to her research. Sue is interviewing FDRPs on the Sunshine Coast about their understanding of reflection and the place that reflection has in their practice.

So far, Sue has found that the practitioners have diverse perspectives and practices. Practitioners do not appear to be familiar with literature about reflection or models of reflection.When asked whether it is important that they be supported to engage with literature about reflection, Sue noted the realities of practice and her belief that the practitioner experience should be a touchstone in the development of recommendations.

The planned outcome of the research is the development of a model for reflection that practitioners will be able to use within their practice context, and which supports high quality critical reflection. The model will be informed by the literature about critical reflection as well as the practitioners’ insights gained through Sue’s empirical work.

What is already known about reflection

Critical reflection is an important activity in dispute resolution practitioner practice, as it moderates and informs decisions regarding:

• neutrality and independence;
• unconcious bias;
• lack of neutrality;
• dealing with prejudices;
• cultural sensitivity;
• other ethical dilemmas;
• looking back on self; and
• taking a broad focus upon social structures and processes.

Reflection is a well established professional activity in many professions, who have developed standards and models to guide practitioners to be reflective. It is the activity that assists professionals to perform the artistry of practice.

Reflection is not mentioned in the National Mediator Accreditation Standards, but could be viewed as a “meta-competence.” A mediator specific model of reflection that builds upon what is already known from existing models and approaches in other professions, as well as the vast literature about reflection, will be a valuable contribution to the field.

This post summarises some themes of my keynote address at the recent National Mediation Conference, entitled ‘Two Models of Mediation Ethics’. (Thanks to Emma-May Litchfield for the photo.)

It is becoming increasingly common to speak about mediation as a profession. There is broad agreement among sociologists as to the main hallmarks of a profession. These include institutionalised education and training; a body of specialised knowledge and expertise; professional licensing; workplace autonomy; a communal code of ethics; and peer to peer accountability. Mediation in Australia now fulfils many of these yardsticks. Specialised mediation courses are offered by universities and other institutions. Many of these courses are designed to fulfil the requirements of the National Mediator Accreditation Scheme (NMAS). Shared ethical codes exist in the form of the Practice Standards associated with NMAS, as well as codes maintained by other bodies, such as the Law Council of Australia.

Why, then, might some people think that mediation in Australia still falls short of being a profession? One concern might relate to the absence of a coordinated process for professional discipline. The Mediator Standards associated with the NMAS are maintained by the national Mediator Standards Board (MSB), but the MSB does not hear complaints or impose disciplinary sanctions. Complaints must instead be directed to the Recognised Mediator Accreditation Body (RMAB) to which the mediator belongs. There are more than thirty-five such bodies recognised by the MSB and their complaints processes vary widely. Can it really therefore be said that mediation has the kinds of accountability processes that characterise a profession?

This is a complex and important question. It raises deep issues about how we think about professional ethics, both in terms of where ethical standards come from and how they are enforced. This issue, in turn, signals questions about the nature of the mediation community. Should a professional community ideally have a centralised body that promulgates and enforces ethical standards? Or is a more decentralised model sometimes appropriate? If mediation increasingly views itself as a distinctive profession, does this necessarily mean we should move towards a more coordinated model of professional discipline? Does legal regulation have a role to play in ensuring universal accreditation and disciplinary processes?

These are questions the mediation community must ask itself as part of its process of growth, maturity and professionalisation. My suggestion is that we need to distinguish two different models for thinking about mediation ethics and decide, as a professional community, which path we wish to follow. The first option is the regulatory model familiar from its adoption by the legal profession. The regulatory model assumes that ethical rules will be drafted by influential members of the profession and promulgated as a code binding upon all. The standards contained in the code will be taught as part of a standardised accreditation process, often linked to licensing and enforced by legal regulations. Formal complaints about breaches will be adjudicated by a body of practitioners with the power to impose professional sanctions, such as suspension or withdrawal of accreditation.

An alternative way of thinking about professional ethics is what I call the practice model. The practice model begins with the insight that intuitive judgments lie at the heart of ethical discourse. Ethical standards, on this view, do not arise when they are formulated by a body of experts. Rather, they emerge and evolve over time as members of a professional community respond to ethical scenarios. The decisions made by individual practitioners are repeated and internalised when the same situations recur over time. These judgments are then shared and reinforced through communication with other members, who may have had similar experiences. As a result, certain kinds of responses come to be widely shared within the group. The members of the group may then reflect individually and collectively upon these responses, expressing them as principles that are adopted as guides for future conduct.

There are, I think, three key features of mediation that make it particularly hospitable to the practice model of professional ethics outlined above. First, mediation is an inherently relational process. The regulatory model mirrors, to some extent, the traditional focus of legal practice on litigation—a hierarchical, formalistic and coercive form of dispute resolution. Mediation, by contrast, has often been presented as offering a more relational alternative to the adversarial norms of the courtroom process. Mediation takes many diverse forms, but at its core lies the simple idea of parties sitting down together and discussing their interests in a structured format. Mediation, in this sense, places a heavy emphasis on what the French philosopher Emmanuel Levinas calls the face-to-face encounter with the other. This makes it particularly well suited to generate meaningful discourse about ethical responsibilities.

Second, mediation has long been regarded as a relatively unstructured form of dispute resolution—certainly by contrast to litigation and the courtroom environment. It is unstructured both in the sense of being relatively informal in its procedures and in the sense of not being governed by substantive rules for resolving the dispute at hand. Mediation, of course, is not entirely unstructured: mediators will often set out ground rules and disputes may implicitly take place in the shadow of the law. Nonetheless, this feature of mediation makes it a far more dynamic environment than many other forms of dispute resolution. Mediators are innovators: the process enables them to try new things and evolve their practices over time.

A third feature of mediation that lends itself to the practice model is its interest-based focus. It is commonly accepted that whereas litigation focuses on legal rights and duties, mediation focuses on the interests of the parties. This enables mediation to retain its flexibility and forge a workable outcome in each dispute. The interests-based focus of mediation also makes it hospitable to a model of professional ethics that views ethics as a set of shared responsibilities, rather than a set of formal rules imposed from above. Ethics, understood in this way, can be responsive to the needs and interests of all those affected by the mediation process. It need not be constrained by the feasibility or desirability of formal attributions of blame.

It is important for the mediation community—including both practitioners and scholars—to reflect upon its distinctive attributes and avoid complacency about its shared values. If mediators want their community to be defined by relationality, dynamism and shared responsibility, rather than by hierarchies and formal rules, they need to be able to articulate that vision and fight for it. They should not simply accede to the widespread assumption that a mature professional ethics equates to a regulatory model. The mediation profession needs to have an ongoing dialogue about the prospect of centralised licensing and regulation (as has occurred in other jurisdictions) and ask whether that is really what its members want. It is up to the mediation community to determine its shared goals and values—and whether these are best realised through a regulatory or practice-based approach to ethical life.

This post has been contributed by Judith Herrmann and Claire Holland, who are both lecturers in the Conflict Management and Resolution program at James Cook University (JCU).

Judith and Claire presented at this year’s National Mediation Conference. They discussed their personal experiences with developing training for mediators in different cultural settings overseas, including the Thailand-Burma border and the Central African Republic (CAR). Claire and Judith reflected on how their studies in conflict management and resolution as well as their mediation training in Australia had assisted them in developing training modules in these different settings. They evaluated which skills and procedural features of the Australian facilitative mediation model they found to be of greatest use and which procedures needed to be modified to be applicable to the specific locations in which they worked.

The Australian mediation standards are based on a “Western” approach to dispute resolution, such as maintaining confidentiality, managing power imbalances, maximising self-determination, etc. and not all of them necessarily find exact application in other cultural settings. The concept of creating a ‘safe space’ to talk, for example, has a different meaning in a refugee camp compared to the Australian context. Also, the idea of having a third party with ‘no vested interest in the outcome’ is unrealistic in remote villages, such as in CAR, where village chiefs are often the accepted providers of all conflict resolution processes. Additionally, maintaining confidentiality can be both impractical and undesirable in particular contexts. When discussing how mediation could work for culturally specific conflicts, such as adultery or witchcraft, mediation practices taught in the western mediation models are especially challenged.

Ideally, mediation training and conflict resolution tools are developed with the needs of the recipients of the service in mind. When creating training resources that meet local needs it is important to consider how far the definition of ‘mediation’ can be stretched and what innovations can be adapted within the process that are supported by literature and informed by practice.

Judith and Claire highlighted challenges for practitioners who are trained in a “Western” mediation model and who are working in culturally diverse settings where the client’s prior experience and expectations of ‘mediation’ may differ greatly from the views of the practitioner/trainer. Judith and Claire flagged the importance of being flexible in one’s approach to meet the needs of the participants of a process, and to innovatively and creatively adapt one’s knowledge and skills to different contexts. The presentation also highlighted the benefits of sharing experiences with practitioners and academics to contribute to the conversation of the evolving nature of mediation practice.

Judith and Claire concluded that their postgraduate studies in Conflict Management and Resolution were invaluable in developing their ability to analyse and respond creatively to issues in various cultural settings.  Judith completed her studies at JCU, where she is now the Director of the Conflict Management and Resolution program. This program builds students’ knowledge and skills in analysing, managing and resolving conflict, with subjects such as negotiation, mediation, facilitation, group conferencing and conflict coaching. Courses on offer include a Masters, a Graduate Certificate as well as Professional Development options. JCU offers flexible study with online subjects and optional weekend block-mode classes. If you are interested in doing any further study in Conflict Management and Resolution, check out the JCU program at  www.jcu.edu.au/conflictresolution