The ADR Research Network is a group of Australian dispute resolution academics. Blogging & tweeting high quality, critical dispute resolution scholarship.
IN PERSON at BOND UNIVERSITY FACULTY OF LAW, ROBINA, GOLD COAST
There will be no registration fee for the 2023 Roundtable. Catering will be provided thanks to Bond University Faculty of Law. Participants will be responsible for their own travel and accommodation costs.
CALL FOR PAPER PROPOSALS
The 11th Annual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be hosted by the Bond University Faculty of Law at Bond University on the Gold Coast on Monday 6th and Tuesday 7th February 2023.
ADRRN Roundtables provide a collaborative and supportive research environment for work-shopping papers-in-progress.
The ADRRN is now calling for papers for the 2023 Roundtable. Paper proposals of no more than 300 words should be submitted via email to adrresearchnetwork@gmail.com by 2 December 2022. Presenters will have the option of submitting – prior to the Roundtable – a full draft of the paper for peer commentary. All presenters are invited to publish a 1000-word blog post on the ADRRN Blog at https://adrresearch.net/ after the Roundtable.
Paper proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective are welcome. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. The focus is on work in progress so usually papers should not have been published or submitted for publication.
The date for notification of acceptance is 16 December 2022. Presenters who are seeking peer commentary on a full draft of their papers should submit the full paper by 10 January 2023 (to allow commentators a month to review).
About the Australasian Dispute Resolution Research Network:
The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to support emerging, mid-career and established scholars to build excellence in the field and provide collegial peer support.
Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.
Network activities include maintaining the ADR Research Network blog at www.adrresearch.net and on Twitter and conducting annual scholarly round tables of work in progress since 2012. Guest blog post proposals are always welcome. Feel free to contact us if you have something to post.
As we don’t like hierarchies or unnecessary administration, we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog: https://adrnetwork.wordpress.com/. This is our primary means of communication. Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity are through Facebook “ADR Research Network” and Twitter @ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.
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.
OVERARCHING RECOMMENDATIONS
‘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.’
TARGETED RECOMMENDATIONS
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.’
COMPLAINTS HANDLING
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
Findings
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.
Next steps
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.
The Mediator Standards Board invites interested parties to submit a research proposal for the award of its Annual Research Grant (ARG). The ARG shall be for proposals up to the total value of $50,000.
CONTACT FOR FURTHER INFORMATION: enquiries are to be directed, in the first instance to: Ms Jenny Watson, Secretariat Officer, Mediator Standards Board.
The NMAS Review team at Resolution Resources has now completed our consultation phase of the independent review of the National Mediator Accreditation System (NMAS Review) and is currently preparing recommendations for the Mediator Standards Board (MSB).
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.
Tima Walker (Bond University) discusses her paper on ‘The Enforceability of International Dispute Resolution Mediation Agreements’ with members of the Australasian Dispute Resolution Research Network.
Joanne Burnett (Southern Cross University) discusses her paper on ‘What Is “Good” Practice Addressing Family Violence in Family Law Mediation?’ with members of the Australasian Dispute Resolution Research Network.
Claire Holland and Dr Judith Rafferty (James Cook University) discuss their paper on ‘A Case for Conflict Engagement’ with members of the Australasian Dispute Resolution Research Network.
Dr Amira Aftab (Western Sydney University) discusses her paper on ‘Navigating Cultural and Religious Needs in Family Dispute Resolution’ with members of the Australasian Dispute Resolution Research Network.
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
age and
gender
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).
‘Celebrate the ongoing legacy of NADRAC and its potential role in shaping how many mediators perceive the NMAS today’
PART 3: EFFECTIVENESS SURVEYNMAS REVIEW 2020-21
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[1], 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)[2]‘.
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
[1] 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.
Karen Bowers (University of Newcastle) discusses her paper on ‘Is Mediation the Best Medicine? Evaluating the Impact of Pre-Court Procedures for Medical Negligence Cases in Australia’ with members of the Australasian Dispute Resolution Research Network.
The Australian Dispute Resolution Research Network 