By Professor Laurence Boulle, Thomas More Law School, Australian Catholic University
  

This piece complements the post by Associate Professor Bobette Wolski introducing the Australian National Mediator Accreditation System (NMAS) published on this blog earlier this month. 

Background

Version 2.0 of the NMAS became effective on 1 July 2015. It is designed to enhance the quality of mediation practice by up-dating and simplifying the previous standards and provide some structure to RMABs and the MSB.

This version had a painful and protracted parturition. Drafting should be easy but having been involved in these standards, and in a similar system abroad, I know this is not the case.

The political context

It is challenging to keep all interest groups within the tent, particularly lawyers who approach the practice standards from a risk perspective and are concerned that any specificity in regard to the mediation procedures could leave them exposed. Indeed, the legal profession might yet elect to set up its own standards.

The indeterminacy of words

As HLA Hart told us decades ago, all words have a core of certainty and a penumbra of uncertainty. As soon as one starts drafting the core seems to shrink and the penumbra to expand. Drafters spend hours pondering over the meanings of words. Fortunately the NMAS is not a bilingual document.

Definitional challenges

We all thought, post-NADRAC, that definitional conundrums were behind us. Sadly they are not. Drafters, at the risk of their health, endlessly revisit definitions of ‘mediation’, ‘conciliation’, ‘blended process’, ‘impartiality’, and the like. Thanks to the work of a few radical revolutionaries ‘neutrality’ was not defined but banned from the discourse.

Organisational challenges

Volunteers work in bursts of frenetic activity, followed by weeks and months during which the momentum is lost. In the eventual pursuant meeting they start again: definitions, words, politics and the rest. Not to mention the ego challenges which surface in the interstitial crevices of drafting projects.

The evidence question

Has the NMAS improved quality in the provision of mediation? As usual the evidence is meagre. Will version 2.0 enhance knowledge, skills and knowledge in the area? Time might tell. But it might not. Social science surveys tell us that social science can only survey 20% of the variables in human variables. Mediation is a social science.

The result

For the above reasons all Standards, and all drafting, involve many compromises and many are reflected in the NMAS version 2.0. Now it’s over to the research scholars to analyse the contribution they make to dispute resolution practice. However please mind your definitions.

Olivia Rundle’s article ‘Lawyers’ participation in mediation and professional ethical disposition’ (2015) 18(1) Legal Ethics 46 is a must read for mediation professionals, dispute resolution academics and legal practitioners. In it, Olivia reveals the variable and contextual role lawyers can play in mediation through an exploration of the relationship between a lawyer’s ethical orientation and their participation in mediation. She builds on and develops her previous work on models of lawyer participation in mediation (see particularly Olivia Rundle ‘A Spectrum of Contributions that Lawyers can make to Mediation’ (2009) 20 (4) Australasian Dispute Resolution Journal 220).

In her article, Olivia demonstrates the breadth of factors that may influence lawyers’ participation in mediation as well as the potentially complex and variable impact the particular matrix of factors that impacts on any individual lawyer may have. The article begins by mapping the structural, external and personal influences on lawyer participation in mediation. Lawyer behaviour in mediation is then explored using a combination of Parker and Evans’ four categories of lawyers’ ethical orientations to legal practice and three of Olivia’s models of lawyer participation that may occur in mediation. Issues associated with the purpose in mediation of, relationship with client of and challenges to adversarial advocates, responsible lawyers and moral activists are examined. In the conclusion, Olivia makes recommendations about how the analysis in the article should impact upon mediator practice and encourages self-reflection by lawyers about their role in mediation because of its importance to their achieving their aims.

This article brings a new, intellectually rigorous perspective to the discussion about lawyer behaviour and participation in mediation. The debate is certainly no longer simply whether lawyers’ participation in mediation is beneficial or detrimental. The real issues are far more nuanced and include how can and when will lawyers effectively participate in mediation.   As Olivia identifies, this raises significant issues for mediators and lawyers. Is there even a potential it raises new disciplinary and ethical issues for lawyers?

By Bobette Wolski, Bond University

By now, most mediators in Australia are familiar with the National Mediator Accreditation System which facilitates accreditation of mediators (and the creation and maintenance of a national list) and regulation of their conduct.

The National Mediator Accreditation System (‘NMAS’) commenced operation in Australia on 1 January 2008. The NMAS is an industry-based system which relies on voluntary compliance by mediator organisations (known as Recognised Mediator Accreditation Bodies or RMABs) that agree to accredit mediators in accordance with stipulated NMAS Standards. Two sets of Standards were promulgated in 2007-2008: Approval Standards which define minimum qualifications and training for accreditation and Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator. The NMAS and the Standards were recently revised, with the revisions becoming effective on 1 July 2015. As a result of the revisions, the Approval and Practice Standards are set within the context of a ‘broader document covering ancillary aspects of the NMAS’ including an Introductory section (Part I), more formal provision with respect to RMABs including the imposition of an obligation on them to upload to the National Register the list of mediators accredited by them (Part IV), provision with respect to the Register of Nationally Accredited Mediators (Part V) and a section dealing with membership and responsibilities of the Mediator Standards Board (MSB) (Part VI). (See letter from Anna Lee Cribb, Chair of MSB to members, dated 8 March 2015, together with a history of the development of the standards, available from the NMAS website).

Behind the scene, the process of drafting of standards of conduct is itself fraught with difficulties. Most standards end up representing a compromise between various possibilities eg between being specific and prescriptive on the one hand and general and aspirational on the other; and reflecting the tension between the need for certainty, predictability and enforceability on the one hand and flexibility and scope for the exercise of discretion on the other.

Laurence Boulle AM, Professor of Law at the Australian Catholic University, author of many popular mediation texts including Mediation: Principles, Process, Practice and former chair of the Mediator Standards Board was asked to share his experience of the process of drafting the NMAS Standards.

In ‘The Dispute Tree and the Legal Forest’ (2014) 10 The Annual Review of Law and Social Science 105, Albiston, Edelman and Milligan propose replacement of Miller and Sarat’s dispute pyramid with a dispute tree.  They further suggest the stages of the emergence and transformation of disputes – that is, naming, blaming and claiming (Felstiner W et al, “The Emergence and Transformation of Disputes: Naming, Blaming Claiming” (1980-81) 15 (3-4) Law and Society Review 631) – be conceptualised as non-linear and fluid.

Why a Dispute Tree?

The dispute pyramid was proposed by Miller and Sarat in: Miller RE and Sarat A, ‘Grievances, Claims, and Disputes: Assessing the Adversary Culture’ (1980) 15 Law and Society Review 525:

Albiston, Edelman and Milligan argue the metaphor of a tree with many branches better reflects the non-linear and dynamic nature of dispute resolution as well as the legal and non-legal means by which people may seek to resolve disputes.  They propose the dispute tree depicts that endeavours may be made to resolve disputes via various formal and informal means at the same time, that is, each different means that is pursued is represented by a separate branch on the tree. Some branches may bear fruit (substantive outcomes such as compensation) or flowers (symbolic results).  Other branches may wither, their growth may be stunted or they may never bear fruit or flower.  Albiston, Edelman and Milligan further argue the metaphor of a tree opens up the broader metaphor of the dispute tree existing within a forest and that this better represents the social environment in which disputes emerge and transform.



Four young ladies watching a game of cricket, Brisbane

Jackman, George ; Queensland Newspapers Pty Ltd

Collection reference: GL-12 George Jackman Photograph Albums

John Oxley Library, State Library of Queensland | Undated

This post is by Associate Professor Bobette Wolski from Bond Univesity in Queensland. In it, Bobette asks some questions which we’d love your views on. You can comment by replying the this email (if you are a subscriber to our blog) or by responding in the comments box below this post in our blog. We’d love to hear your thoughts.

This month, I would like to get a conversation started about ethics and values in mediation. What are your thoughts on any or all of the following questions? 

What are the critical ethical issues for mediators? Does the answer differ according to the context of the mediation (eg whether it is a commercial matter or a family matter; and whether it is court-annexed or private)? Are there special concerns attached to mandatory mediation?

What responsibility, if any, does a mediator have for outcome fairness? Assuming the procedure used is fair and that the proposed outcome does not involve the commission of an offence or fraud, should a mediator intervene to protect a party against a manifestly unfair agreement and if so, what intervention is permitted?

Should a mediator intervene to protect the interests of parties who are not involved in the mediation but nonetheless affected by its outcome? Assuming again the procedure used is fair and that the proposed outcome does not involve the commission of an offence or fraud, should a mediator intervene to protect third parties. Does the answer depend on the subject matter of the dispute? For example, in family law disputes an obligation to consider the interests of children is imposed on mediators (and legal representatives) by relevant legislation. What about in other contexts?

What can a mediator do to balance the scales when confronted with a power imbalance?

Assume that the mediator has tried everything listed in s 6.2 of the new NMAS Practice Standards. Assume further that one party is well off financially and has retained a QC. The other party is unrepresented and has no access to funds. The mediator believes that the unrepresented party is agreeing to particular terms because they are exhausted and want to end the matter. The unrepresented party appears to understand the consequences of the proposed agreement. Can and should the mediator intervene and if so, what can he or she do.

If there is a conflict of values in mediation, how should they be prioritised? There is a conflict of values involved in most of the questions set out above eg mediators might have to make a choice between self-determination, impartiality and process fairness. Is self-determination the central value of mediation?

Can you find the answer to any of these questions in the new NMAS Practice Standards? Should the answers be in the Standards?

Do the new NMAS practice standards cater for the diversity of mediation practice or are they unduly weighed towards a facilitative approach? How can the diversity of mediation practice be captured and catered for in a single set of Practice Standards? 



Dr Bobette Wolski 12 November 2015

The following job ad has been received by the Network, for those interested in dispute resolution opportunities in Sydney:

"An excellent opportunity to join a small mediation firm located in the CBD as an executive assistant to the principal has arisen for someone who has a law degree, is studying towards a law degree, or has legal experience. The role offers a rare opportunity to be exposed to and participate in dispute resolution processes. You will also enjoy great work/life balance and more. Find out more about the role here."

Our series of ADR Research Network blog posts for October concludes with a profile of network member, Dr Kathy Douglas.

1. ​Introductory information:​

• Full title and name:Dr Kathy Douglas, Deputy Head, Graduate School of Business and Law, RMIT University
• Primary professional identity (i.e., academic, RHD student, practitioner – please include a link to your staff ID page/website): Academic (http://www1.rmit.edu.au/staff/kdouglas)
• Institutions/Organisations that you work for: RMIT University
• Where research fits in your professional work (i.e., your primary professional identity, or something that supplements other activity): Research in ADR is a prime focus of my work at RMIT

2. Why did you become interested in the dispute resolution field? I took a Masters level course in ADR at Monash University and fell in love with the field.  Soon after I trained with LEADR and then began work as a sessional mediator.
3. What is your particular area of dispute resolution research interest? Mediation theory and practice, ADR in legal education and conflict resolution and planning.
4. Whose research has influenced you? Why/How? I think that Laurence Boulle influenced me due to his thinking about models of mediation practice and his focus on the emerging ADR field in Australia.
5.   What dispute resolution research are you involved in at the moment? ADR in Legal Education; Procedural justice and mediation; Conciliation and industry schemes and conflict in planning in Melbourne.  I have a forthcoming article on ADR in legal education coming out in the International Journal of the Legal Profession.
6. Where would you like to take your dispute resolution research work over the next ten years? I would mainly like to focus on better integrating the theory and practice of mediation. I like being a ‘prac-academic’.  Someone who tries to improve practice in mediation.
7. What advice do you have for emerging dispute resolution researchers? Join the network.  It’s a wonderful group of generous academics and practitioners.

John Woodward’s recommendation for the ADR Reading List is Tania Sourdin, Alternative Dispute Resolution (4th ed, Thomson Reuters, 2012).

I would have to say that the book which opened my eyes to the possibilities of ADR (after 30 years of legal practice as a litigator) and which encouraged me to read more widely was Sourdin’s book on Alternative Dispute Resolution.  I also like Spencer and Hardy’s Dispute Resolution in Australia. 

UNSW Law has announced its postgraduate coursework scholarship for 2016, worth $10,000. It can be used across all of the UNSW Law masters programs, including the Master of Dispute Resolution. For full details, see http://www.law.unsw.edu.au/future-students/postgraduate/scholarships-prizes

Information about a fellowship opportunity open to non-US citizens:

The Weinstein JAMS International Fellowship Program, inaugurated in 2008,
provides opportunities for qualified individuals from outside the United
States to study dispute resolution processes and practices in the U.S. to
assist them in their efforts to advance the resolution of disputes in their
home countries.

The JAMS Foundation will approve Fellowships of up to $20,000 in support of
projects outlined by Fellowship applicants. The Program is intended for
individuals who have demonstrated experience with and commitment to the field
of Alternative Dispute Resolution (ADR) and who seek to increase the
availability of dispute resolution education, training and services in their
own countries and beyond.

The Fellowship Program is designed to be flexible and open to innovation, and
applicants are encouraged to be creative in pursuing activities in the U.S.
that will serve to expand the use of ADR in their home countries.

Fellowships may be from one month to four months in duration. While
applicants may propose activities lasting longer than four months, Fellowship
funding is limited to the Fellowship period.

It is anticipated that Fellows will come from countries that do not have an
established culture of using alternative dispute resolution (ADR) for cases
in litigation. Part of Fellows’ time in the U.S. will be spent observing how
JAMS administers and resolves such cases.

Depending on the nature of their proposal, Fellows may also participate in
university-based programs or be affiliated with other organizations or
institutions that may help to advance their interests and goals. Such
affiliations can take many forms, from formal enrollment in graduate degree
programs to more informal arrangements providing varying degrees of access
and support.

Applicants are strongly encouraged to research and begin to establish such
affiliations prior to or concurrent with their Fellowship application. While
the JAMS Foundation makes every effort to facilitate introductions where
possible, it is Applicant’s responsibility to research available
opportunities and to establish affiliations with the organizations or
institutions with which they intend to work or study.

More details are available at  http://www.jamsadr.com/weinstein-fellowship/