Informed, Involved, Inclusive: Laying The Foundations

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Rory Gowers & Milan Nitopi
This article is Part 1 of 3 in our series ‘Informed, Involved, Inclusive’.

Rory and Milan (left to right) presenting at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024.

Every culture is in conflict; and, we are all moderated by cultural norms and expectations. Where there is more cultural diversity, there is a greater chance for misunderstanding and an escalation of conflict.

In the context of meditation, facilitators who are not equipped with the necessary intercultural competencies risk undermining that process, which can contribute to difficult or unproductive communication and dialogue. Although competencies standards exist (such as the Intercultural Competence Specialisation by the International Mediation Institute), facilitator training in intercultural predisposition is limited. 

We presented our proposition to counter this serious gap in mediator development at the 12th Conference World Mediation Forum – Foro Mundial de Mediación in Brazil in November 2024 in our address: ‘Informed, Involved, Inclusive: A New Chapter In Intercultural Competence’. The Mastering Intercultural Mediation Implementation (MIMI) training program is based on three core foundations:

  1. Informed,
  2. Involved, and,
  3. Inclusive.

MIMI is a specific application of the my-RESPECT-ability model which entails the intercultural mediation principles, processes, and practices at the heart of the Intercultural Competence Playbook (Gowers 2023).

Visit my-RESPECT-ability to read more on the model or to enrol in introductory webinars.

In developing the MIMI training program we explored intercultural research concepts and approaches (including Dai & Chen, Sveiby & Skuthorpe, Gowers) as well as drawing on our combined lived experience and extensive mediation practice. Rory has lived in over 7 countries and brings insights from over a decade of real-life intercultural mediation practice (in public, private, and voluntary sectors).

Becoming interculturally competent is more than an intellectual and mindful journey. Therefore we decided it is crucial to centre our training model on participant transformation. As participants become more aware, more accepting, and more appreciative of an ‘other-culture’, they begin to develop competencies which enable them to facilitate intercultural interactions effectively.

An ‘other-culture’ is a class, community or sub-culture of any kind (social status, ethnicity, spiritual, gender identity, wealth, occupation, species, etc.) that is so different that it reveals in you a sense of personal discomfort or powerlessness (such as fear or anxiety or a capacity to interact). It is the feeling of being a total foreigner, in contrast to the feeling of being a relaxed tourist. It may be experienced as a feeling of alienation. This is what people from an other-culture experience when they enter into a new, dominant culture where they lack the capacity or the social skills to interact or negotiate on a level playing field.

Foreigner. 外人 Gaijin. 鬼佬 Gwáilóu. Stranieri. Gudiya. Alien. 

The word ‘gudiya’ refers to non-Indigenous people in the context of Aboriginal-English. Indigenous Australians adapted English to communicate with non-Indigenous people after their traditional languages were stolen and is a variety of English, distinct from Australian English.

There are many words to refer to an ‘outsider’ and we all have experienced this feeling at some point in our lives.

Communication and dialogue is an essential and fundamental aspect of mediation, but how do we consider this through the lens of the three cultural motifs:

  • the Eastern “We”
  • the Indigenous “Be”
  • the Western “Me”

In a Western context, ideals such as self-determination and non-partisanship (including neutrality and impartiality) are often discussed as being critical to an effective mediated outcome. But what do these aspects actually mean with consideration of other-cultures?

Whereas in an Eastern context, the ideal of achieving harmony appears critical to an effective mediated outcome. And, in an Indigenous context, ideals of responsibility and collective existence appear critical to an effective mediated outcome. Yet the Western understanding of ‘mediation’ does not translate well with ideals belonging to other-cultures.

We see here that ethical practice is shaped by varying culturally embedded needs and these needs are not exclusive to just one specific cultural perspective. In the context of communication and dialogue, they illustrate the interests, needs, concerns, and expectations of other-cultures. Unless a mediator is interculturally aware, accepting, and appreciative of other-culture perspectives and ethical frameworks, their ability to facilitate effective and enduring outcomes is significantly diminished.

Where all parties to an intercultural dispute are able to express and address their interests, needs, and concerns in culturally relevant ways, then a more creative, sustainable, and harmonious outcome can be achieved.

Mastering Intercultural Competence

Our intercultural competence training model is built on three foundations:

  1. Informed
  2. Involved
  3. Inclusive

Foundation 1: Informed (awareness)

The first foundation is focused on being better informed. By being better informed, we are led to an increased awareness. And, to be better informed we must turn our minds to the facts, feelings, and findings of intercultural research.

This foundation is a structured learning process centered on establishing the baseline knowledge of intercultural competence.

As it has been observed that a person’s experience of other-cultures is both an intellectual and mindful journey, knowledge of an other-culture is not itself enough to develop intercultural competence. Although the International Mediation Institute sets out the minimum standards for intercultural competence specialisation and set the pathway for internationally accepted mediation principles, we recognised that more was required in order to have a complete and comprehensive understanding of an other-culture.

In a Western context, unless we become aware and address our own inner conflict, we are unable to take a ‘balcony view’ of others’ conflict. By failing to adopt a balcony view, we lack impartiality and neutrality; concepts that are cornerstone to Western facilitative mediation practice. However, within other-cultures, a different approach might be taken.

Foundation 2: Involved (acceptance)

The second foundation is focused on being more involved. By being more involved, we are led to a greater acceptance of other-cultures. And, to be more involved we must immerse ourselves within an other-culture and listen to their stories, songs, and symbols.

We created this foundation to allow participants the opportunity to develop a deeper understanding of the other-cultures needs, values, and expectations by providing a full other-culture immersion program. This foundation is the heart of our training model.

This immersion program is crucial as participants must initially feel uncomfortable and confronted with unfamiliar aspects of an other-culture. This makes for a more profound intercultural learning experience. It is ourselves actually undergoing the change where we arrive at a deeper level of understanding and respect for other-cultures and their voice at the ‘table’.

As it takes time to begin immersing ourselves in an other-culture, some participants may elect to extend their immersion program to develop an even deeper understanding of the other-culture that they immersed themselves in.

Immersion is more than assimilation with, or imitation of, the other-culture. In their experience, participants learn respect for the values, needs, and expectations embedded within those other-cultures. It is to understand and accept that our eyes are but only one perspective in the world and that there are many eyes which look upon the face of this earth differently. All perspectives are valued.

Unlike how the International Mediator Institute Standards emphasise mediator proficiency of a particular culture and advocates for cross-cultural application, our approach is focused on competence in intercultural interaction.

To be cross-cultural is not to be intercultural. They are different. ‘Intercultural’ is described by Paula Schriefer as:

“communities in which there is a deep understanding and respect for all cultures. Intercultural communication focuses on the mutual exchange of ideas and cultural norms and the development of deep relationships. In an intercultural society, no one is left unchanged because everyone learns from one another and grows together.”

Foundation 3: Inclusive (appreciation)

The third foundation is focused on being more inclusive. By being more inclusive, we are led to a greater appreciation of other-culture’s wisdom, needs, and ways of working with conflict. And, to be more inclusive, we must turn our minds to choosing the most appropriate principles, processes, and practices of intercultural mediation for that culture.

We created this foundation to allow participants the opportunity to further develop their intercultural mindset and heart-set behaviours. A participant is to adapt their current core principles, practices, and processes to the interests, needs, concerns, and expectations of the other-culture they immersed themselves in.

By putting learnings and reflections into practice, participants are able to accurately identify and address communication and dialogue issues within an intercultural context. This can be achieved with case studies or role play exercises.

Authors Biography

Rory Gowers is a Master of Dispute Resolution (MDR), a Master of Education (MEd), an intercultural mediator, and a business strategist, residing in Greater Sydney, Australia. Rory has extensive international experience as a visionary business problem solver, and certified results coach. Rory’s mission is to facilitate a more respectful world by inspiring people and groups to transform business ecosystems with practical sustainable solutions with a vision to facilitate a place for all and peace for all in our time. Contact Rory via
Webpage: www.myRESPECTability.com 
Email: rory.gowers@gmail.com
Mobile: +61 425 292 811
LinkedIn: www.linkedin.com/in/constructiveconflictsolutions

Milan Nitopi is an accredited lawyer and mediator with (soon) a Master of Laws in Family Dispute Resolution (LLM FDR). Milan has a passion concerning people, law, and resolution and he strives to equip people with skills for better communication and dialogue to address all kinds of conflict.
Contact Milan via
Email: manitopi@outlook.com
Mobile: +61 432 547 538
LinkedIn: www.linkedin.com/in/manitopi/

Motivating people to engage in conflict resolution services

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Samantha Hardy
This article has been republished and adapted with permission. The original publication can be located within The Conflict Management Academy.

When we look at how people typically promote conflict-related services, such as mediation, the services are often presented as a better option than other alternatives. In fact, this thinking is even found in the name “alternative dispute resolution”.

However, psychological research shows that using ‘scare’ tactics to try to motivate someone to do something tends not to work. This can be explained by what Wayne Hershberger (1986) first called “the law of approach and avoidance” and means that we tend to move towards pleasure and away from pain.

While you might think that telling someone about all the bad things that might happen if they leave their conflict unresolved would motivate them to move away from those bad things towards something better (e.g. mediation), the problem is that we have promoted our service by reference to the bad things, so they may well subconsciously move away from us!

When we feel an emotion that we find unpleasant, our brain’s natural response is to move away from the thing related to that emotion. In contrast, when we feel an emotion that we find pleasant, our brain is wired to approach.

However, in Shari Talbot’s book The Influential Mind, she explains that when we are trying to influence someone to do something, we have to be careful how we apply this logic. While we tend to move away from something that we see as unpleasant, we can also stop moving altogether if we are not sure about what we are moving towards.

Our brains are wired in such a way that anticipating a reward not only triggers approach, it is more likely to elicit action altogether. If you want someone to act quickly, promising a reward that elicits an anticipation of pleasure may be better than threatening them with a punishment that elicits an anticipation of pain.

In short – if we are trying to avoid something bad, we may move away from it, but we may also freeze if we are uncertain about what lies ahead of us. In contrast, if we know that something positive and rewarding lies ahead of us, we are more likely to actively take steps towards that better option.

This works for both words and images. 

A study of crowd funding requests carried out by Alexander Genevsky and Brian Knutson in 2015 examined 13,500 online requests for funding. These requests were often for financial support for people needing expensive medical treatment, and counter-intuitively, the research found that crowd funding requests were more likely to raise money if they showed someone happy and well rather than someone sick in a hospital bed.

If you search online stock photo libraries for photos relating to “conflict resolution”, you will perhaps be surprised to find that many of the images do not illustrate “resolution” but rather show people in conflict.

Here are some examples:

As well as the law of approach and avoidance, we need to consider people’s need for a sense of certainty and control.

Warnings and threats limit people’s sense of control, so instead we need to emphasize what needs to be done to reap rewards – which increases their sense of control.

So, what does this mean for marketing a service like mediation?

Firstly, talk about the benefits that clients will achieve by participating using an approach framework. Don’t just talk about the bad things they will avoid; also talk about the good things they will gain so that they can manage risk and also know what they can work towards.

Secondly, emphasise the client’s opportunities to make choices and take control of their future.

Thirdly, use positive images on your website, that show how people will feel and behave after they have used your services. 

Here are some examples:

Review your promotional material. If you want to make sure you are marketing your mediation services effectively, think about how much of your content is about what clients can avoid by engaging your services and how much of your content is about what clients can gain (rewards, pleasure) by engaging your services.

Think about the kinds of images you use. Consider whether those images show the problem a client wants resolved or how the client will feel after they work with you? Consider ideas that describe the outcomes people will gain from working with you and the associated positive emotions that those people will elicit.

Author Biography

Dr Samantha (Sam) Hardy is the Director and Lead Trainer of the Conflict Management Academy. Sam is an experienced mediator, conflict coach, and the founder of the REAL Conflict Coaching System™. She provides conflict support to managers and leaders across the world as well as professional development training, supervision and mentorship to mediators and coaches who work with clients in conflict. Sam is an accredited mediator under the Australian National Mediation Accreditation System (NMAS), a certified transformative mediator by the United States Institute of Conflict Transformation, and a certified narrative coach. She has been awarded Conflict Coach of the Year at the Australian Dispute Resolution Awards in 2022 as well as the Australian Resolution Institute Award for Service to Dispute Resolution in 2021 for her leadership and innovation in the field. Sam also publishes widely in dispute and conflict resolution, including Dispute Resolution in Australia, Mediation for Lawyers and Conflict Coaching Fundamentals: Working with Conflict Stories.

Defending Community Mediation: The Urgent Need to Save the CJC

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This is a post by guest author, Professor Lise Barry. Professor Barry is Dean of Macquarie Law School and editor with David Spencer and Lola Akin Ojelabi of the 4th and 5th Editions of “Dispute Resolution in Australia: Cases, Commentary and Materials” (Thomson Reuters). Lise is an accredited mediator and has been a member of the NSW Community Justice Panel since 2004.

On 17th October this year, I received a surprising email from the Department of Communities and Justice, announcing that the Government had decided to close down the Community Justice Centre (CJC) in NSW and repeal The Community Justice Centres Act 1983 (the Act), which establishes and governs the operation of the service, effective 30 June 2025. Mediators are in the dark about the basis on which this decision has been made.

What a terrible loss to the community.  To understand a little about the CJC it is useful to look at its history.

CJC was established as a pilot in 1980.  Writing at the time of the creation of pilot program for CJC, Deputy Chief Magistrate Kevin Anderson wrote:

“To a magistrate who has for years been acutely conscious of the failings of the conventional justice system, Community justice Centres hold great promise. The Community Justice Centre pilot project is an important development in the evolution of law and society in this country.  The experiment deserves support.”

Introducing the Community Justice Centre Act of 1980, the then Attorney General and Minister for Justice, the Hon Frank Walker QC, echoed the hope that “the availability of mediation will ease significantly the present burden on magistrates courts in dealing with minor disputes where the cost and emotional upset involved are entirely disproportionate to the results achieved at the hearing.”  Mr Walker praised “the 106 people from all walks of life and representing most ethnic communities who have shown such enthusiasm and dedication in their training to be mediators.”

I was struck when reading about the recruitment of mediators for this new service.  The Law Foundation of NSW conducted the pilot review, noting,

“Two or three hundred people initially applied for selection at each of the three centres…. Each centre aimed to recruit a group of trainees which was diverse in age, sex, educational background and country of birth.  Further criteria for selection included such personal characteristics as tolerance, assertiveness, and ease of manner.” 

These are qualities that todays’ mediators would also do well to possess.

By 2001, the name “Community Justice Centre” had made its way into the Macquarie Dictionary, defined as “a centre offering a free and confidential mediation services as an alternative to normal legal channels in disputes between parties who have an on-going relations, as members of a family, neighbours, etc.” (Macquarie Dictionary 3rd ed, 2001, 396).

2002 saw the development of Indigenous mediation services, initially in the Northern CJC region, resulting in accreditation of 63 Indigenous mediators trained in NSW by the year 2006.Writing about the Indigenous service in the Indigenous Law Bulletin of 2006, Bill Pritchard, Senior Aboriginal Programs Officer at CJC wrote: “The acceptance of the program by Indigenous people and communities is reflected in the number of mediations undertaken by CJCs where at least one party identifies as Aboriginal or Torres Strait Islander.” He noted the rise from 62 cases in 2001/2002 to a reported 258 mediations undertaken in the 10 months to 1 May 2006. 

In 2004, in preparation for a Law Reform Commission Inquiry into CJC, a survey of CJC clients was conducted and the findings published in Report 12. 76 mediation participants were interviewed, almost half of them neighbours, with approximately one third reporting that an Apprehended Personal Violence Order was involved.  Participants commented on the mediators skill, the opportunity for discussion, avoiding court and that the service was free.  Interestingly, the most common suggestion of participants was to increase public awareness of the free service. 

Success rates for CJC are high.  Report 12 noted “Of the 2,786 cases that were mediated at CJCs between 1 July 2002 and 30 June 2003, 82% resulted in an agreement between the parties.”  76% of participants reports that mediation had improved their situation. Today, CJC fact sheets report that over 80% of participants reach an agreement.

In 2005 a further review of CJC by NSW Law Reform Commission Report 16, recommended the inclusion of an objects clause into the CJC Act.  Relevantly, the current Objects of the CJC Act read:

3   Object of Act

The object of this Act is to provide for the establishment and operation of Community Justice Centres for the purpose of:

(a)  providing dispute resolution and conflict management services, including the mediation of disputes, and

(b)  training persons to be mediators, and

(c)  promoting alternative dispute resolution, and

(d)  contributing to the development of alternative dispute resolution in New South Wales by entering into connections and partnerships with the legal profession, courts, tribunals, the academic sector and other providers of alternative dispute resolution services, and

(e)  undertaking other matters incidental to the provision of dispute resolution and conflict management services.

The 2005 Report noted that the CJC mediations were conducted “by Mediators who provide their services on a sessional basis (receiving small remuneration)…”  The small remuneration remains true, with mediators currently earning $41.60 per hour – this is a role that CJC mediators take on for love, not money. 

You can imagine then how disappointed some long-term mediators were, some of whom had over 30 years of service to the community of NSW, when they were provided with two lines of thanks for their service in the emailed announcement.

One of those long term mediators was Barbara Jean Armitage OAM, who sadly passed away on 29th October this year, her SMH obituary noting, that Barbara was a “Feminist, committed activist and crafter, life member of the Australian Labor Party. Waverley Municipal Council Alderman 1979-1997, Mayor of Waverley 1987-1997, Local Government Grants Commission Chair 1999, Premier’s Crime Prevention Council member and accredited mediator with the Community Justice Centre.”  Barbara’s pride in her service as mediator so clear and so poignant.

CJC mediators are well trained.  I fondly recall the three weeks of full-time training that I undertook before commencing work with CJC.  More recently, CJC have provided much needed supervised experience for new mediators and are a source of much needed accreditation hours for panellists for whom mediation is a passion, but not a full-time job. They have been the Recognised Mediator Accrediting Body for hundreds of mediators in NSW.

The initial email I received, advised that the Dept Community and Justice will be establishing a new inhouse mediation service for court mandated referral from 1 July 2025.  Advice to the current panel members suggest that this service will primarily be in connection with the Crimes (Domestic and Personal Violence) Act 2007.

While services for victims of domestic and personal violence are desperately needed, the dissolution of the CJC will be a terrible blow to the community.

In the 20 years of mediation I have completed for CJC, I have helped countless neighbours resolve disputes about everything from trees, to noise, to construction, to parking.  I have mediated employment disputes about pay, bullying and harassment and disputes over promotions.  I have mediated commercial disputes, assisted local registers to manage unrepresented litigants on List Days, mediated disputes between builders and homeowners, between committee members of small craft organisations, and multi-party disputes involving community groups.  I have assisted separating couples with property disputes and worked with tenants in disputes with their landlords and mediated disputes between parents and teenagers and between schools and chronic school avoiders. Not a single client paid for these services.

The decision to close CJC is likely to lead to increased legal costs, drawn out and escalating disputes, pressure on local councils and the Land and Environment Court who rely on CJC to manage so many tree and fencing disputes, and of course, pressure on disputants. As several of my fellow mediators have asked, what steps will be taken to manage the increased pressure on police and the court system, once CJC is closed?

Many incorporated community associations, who have a constitution based on the Model Rules provided by Fair Trading, and which directs associations to CJC for mediation in the event of disputes, will be affected by the decision. What will be done to manage the impact on these associations?

s9 of the Model Constitution currently reads

Resolution of internal disputes

  • The following disputes must be referred to a Community Justice Centre within the meaning of the Community Justice Centres Act 1983 for mediation:
    • a dispute between 2 or more members of the association, but only if the dispute is between the members in their capacity as members, ora dispute between 1 or more members and the association.

    • If the dispute is not resolved by mediation within 3 months of being referred to the Community Justice Centre, the dispute must be referred to arbitration.

On Tuesday 12th November, the Hon Gareth Ward put a question on notice to the Premier: “I have in my hand documents indicating that the Government will be closing Community Justice Centres and sacking mediators across the State, who provide a valuable service. Will the Premier reverse these cuts?”

Let’s hope the answer will be yes.

The CJC has been a cornerstone of alternative dispute resolution in New South Wales, providing free and effective mediation that has benefited countless individuals and communities. The loss of the CJC will not only increase the burden on our legal system but also deprive many of a crucial resource for resolving conflicts amicably. I urge all mediators, legal professionals, and supporters of community justice to lobby the government to reconsider this decision.

The Problem with ‘Genuine Effort Certificates’ in Family Law and Options for Law Reform

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Emma Mills
Monash University

In Australia, most parents who are trying to resolve a parenting dispute must first attempt family dispute resolution (‘FDR’), usually in the form of mediation. This must be done before commencing family law court proceedings. If FDR is unsuccessful, a family dispute resolution practitioner (‘FDRP’) will issue parties with a certificate to take to the court, which outlines why parties were unable to resolve their dispute during FDR. These are known as ‘genuine effort certificates’. However, genuine effort certificates given by FDRPs pose many issues, such as the lack of clarity about what a genuine effort looks like, lack of consistency and negatively impacting vulnerable parties. Due to these issues, I argue that changes should be made to the Family Law Act (‘FLA’). Specifically, I propose two separate solutions that could be considered. First, I propose that genuine effort should be a term that is defined in the FLA and second, that genuine effort certificates should be abolished and replaced with attendance certificates.

What is the genuine effort certificate and FDR?

In 2006, the Australian Government introduced changes to improve the Australian family law system. The main reason behind the sweeping reforms was to find ways for parents to come to a parenting agreement collaboratively, rather than commencing legal proceedings. Due to these reforms, attendance at FDR is effectively a pre-requisite for family law matters involving children. FDR is where a FDRP, who is independent to the parties, acts as a mediator to facilitate parties coming to a solution between themselves, so that they can seek to resolve their dispute outside of court. A court is unable to hear an application regarding a parenting dispute, unless a genuine effort certificate is issued by a FDRP or an exception applies. The certificates are based on whether parties have made a ‘genuine effort’ to participate in FDR. For example, a parent could be issued with a certificate that says that they ‘did not make a genuine effort to resolve the issue’ (‘non-genuine effort certificate’). The type of certificate issued can determine whether the court decides to send parties back to FDR and can be a consideration when determining to award costs against a party.

As a result of the genuine effort certificate scheme, FDRPs have been referred to as being ‘gatekeepers to family courts’. There are some advantages to this. For instance, the genuine effort requirement places an obligation on parties to take responsibility to resolve the dispute before going to court. Following the introduction of the FDR requirement, there was a 25% reduction in court filings and parties reported high levels of satisfaction with the process. However, genuine effort is not defined in the FLA. The FLA does not provide any guidance as to what circumstances, conduct or factors constitute a ‘genuine’ or a ‘non-genuine’ effort. This means that the implementation of this requirement is problematic in practice.

What are the negative impacts of the genuine effort certificates?

Undermining the Impartiality of a Mediator

The main role of a FDRP in mediation is to be ‘independent’ from parties. The neutrality of the FDRP is a fundamental component of the practice of mediation. Neutrality is described as going ‘to the heart’ of mediation theory and means ‘freedom from bias’. Field and Crowe talk about the ‘folklore of neutrality’, which suggests that true neutrality can be difficult to achieve. This concept is especially true in the context of the genuine effort certificates.

When issuing a genuine effort certificate, FDRPs must make a subjective judgement about whether each party has genuinely attempted FDR. The FDRP may have to make a judgement about whether the party has acted reasonably. This can occur in situations where a party refuses to move from their initial position, which could be perceived as the party being unrealistic and unreasonable by the FDRP. Also, whilst FDRPs are trained to be as objective as possible, decisions about whether parties have been genuine in their effort may be unavoidably influenced by their own personal values, experiences and subconscious biases, particularly in the context of family and separation. This can mean that FDRPs may potentially act in a biased way when deciding on the type of certificate to issue.

The genuine effort requirement, therefore, places immense pressure on FDRPs to make a judgement about how they perceive each party to be genuinely participating in the process. This function is arguably well beyond a FDRP’s scope as mediators, when they take on a role of being an ‘assessor’. The requirement for a FDRP to issue a genuine effort certificate is a legislative obligation that overrides the fundamental obligation of FDRPs to treat parties impartially, which is central to mediation.

Lack of Clarity and Consistency

As discussed earlier, the FLA does not define genuine effort. Therefore, whether a party has genuinely participated in FDR is a highly subjective analysis which must be undertaken by FDRPs in the absence of guidance on how a genuine effort is to be determined. Due to the lack of clarity, pressure is placed on parties to appear reasonable and cooperative, so that they can satisfy the individual FDRPs perception of genuine effort. This strain may impact parties to the extent that they do not feel like they can participate in the process in a full and frank manner, or negotiate effectively. For example, parties may change their behaviour, possibly to their detriment, if they know that the FDRP will be making a judgement about their behaviour. This strain placed upon parties, lawyers and FRDPs is a result of the genuine effort requirements being unclear and undefined.

Since there is no definition of genuine effort, it is extremely difficult to promote consistency in the issuing of genuine effort certificates. FDRPs are often influenced by a range of factors, including their prior professional experiences and their personal views. This can mean that there is a lack of consistency for parties, which can create apprehension about what certificate they may be issued. Therefore, due to the lack of clarity about what is a genuine effort, it creates an area of law that is inconsistent and unreliable.

Gendered Implications

For parties to appear as though they are genuinely participating in the process, it is likely that the party must present as rational, reasonable and cooperative. This poses a risk for parties who may appear difficult, angry or unreasonable, to be seen as not genuinely participating.  This expectation can create problems, especially for vulnerable individuals, who might not fully understand what is expected of them.

Viewing this through a gendered lens, Rachael Field argues that women are more likely to face unfair judgements and to be labelled as being ‘unreasonable’ after separation. This can make it harder for women to show FDRPs that they are genuinely trying to participate in the process. After separation, women are often already enduring gendered disadvantage, such as distress, poverty or repercussions of family violence, which can affect both how they behave and how their behaviour is perceived during FDRP. Also, when FDRPs evaluate how genuine parties are, they may be influenced by their societal views and values of women, including what they consider to be stereotypically feminine behaviour. This raises the possibility that if a woman behaves in a way that falls outside of gendered norms, she may then be issued with a non-genuine effort certificate. This can worsen the post separation vulnerability that women experience, especially if they then run the risk of receiving a cost order against them once the case progresses to court.

What are the solutions?

As discussed, the way that genuine effort certificates are operationalised in practice may undermine the overall aim of increased participation in FDR for parenting disputes. There are two separate potential avenues for reform that I will now consider, which could assist in working towards addressing these problems.

  • Defining Genuine Effort

As mentioned earlier, the lack of clarity around what counts as a genuine effort in FDR creates significant problems, especially for vulnerable parties and women post separation. Without a clear definition of genuine effort in the FLA, it reduces consistency for parties. Therefore, one solution is that the FLA should be amended to include a definition of genuine effort. This definition would provide a guideline for FDRPs, lawyers and parties. For example, the Migration Act 1958 (Cth) includes a provision where the holder of a certain visa has made a ‘genuine effort’ to commence employment or engage in business. A list of factors is included to help with the assessment of what is considered genuine effort in the circumstances. Whilst the factors included in the Migration Act are not helpful in assessing genuine effort in FDR, this provides an example of how the FLA can include such guidelines to assist in the interpretation of genuine effort.

The possibility of using a list of factors has already been considered by leading family law scholars. For instance, Hilary Astor suggests that a definition of genuine effort should include factors such as the ‘willingness to consider options put forward by the other party’, ‘willingness to consider putting forward options’ and ‘willingness to focus on the needs and interests of the children’. These factors would help to give parties a guide on how they should act in FDR. These factors align with broader comments made by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 [at 156], where he says that parties should be open minded and receptive in mediation and be willing to put forward options for a resolution.

These factors, therefore, could be legislated in the FLA. This would provide much needed clarity about what genuine effort means, which would in turn help to create consistency and provide parties with a clearer understanding about what is required of them during FDR.

  • Abolishing the Genuine Effort Certificate

There are significant issues with issuing genuine effort certificates, which defining genuine effort in the FLA cannot alleviate alone. Therefore, an alternative solution that has been suggested is to abolish the types of genuine effort certificates issued altogether. Whilst defining genuine effort in the FLA may be of some assistance, determining whether parties are giving a genuine effort in FDR is still highly contextual in nature and would still require the FRDP to make a discretionary judgement. Simply providing FDRPs with a set of factors to be considered may not resolve the issue of FDRPs making a subjective decision about the type of certificate to issue or clarify FDRPs’ role within mediation.

Instead, through abolishing the types of genuine effort certificates issued, the FDRP would instead issue an attendance certificate. This would simplify the process and would just require the FDRP to note whether participants did or did not attend FDR. An attendance certificate would help FDRPs to maintain their position of independence and neutrality within mediation, and would eliminate the issues around the lack of clarity and consistency. It would also help to alleviate the potential repercussions for parties who are issued with a non-genuine effort certificate, especially for women post separation. In addition, without having to assess parties’ behaviour, it would enable FDRPs to focus on their main goal: to assist parties to find a workable arrangement between themselves.

Next Steps

Whilst the genuine effort requirement has been an important factor in encouraging parties to try and resolve their parenting disputes through FDR, its implementation poses issues for parties, lawyers and FDRPs. In this post, I have proposed two separate pathways that could be followed to begin to address these problems. Introducing a factor-based definition of genuine effort into the FLA provides a small, short-term adjustment that can assist in clarifying the standard of genuine effort for parties. On the other hand, a more radical, longer-term solution is to abolish the genuine effort certificates altogether and replace them with mere attendance certificates. Attendance certificates would remove the evaluative function of FDRPs altogether, whilst still mandating engagement with FDR.

Author Biography

Emma Mills is a Law and Criminology student in the Faculty of Law at Monash University. Emma has a particular interest in social justice and volunteers with the Epilepsy Foundation in her spare time. After graduation, Emma wants to pursue a career in family law and to dedicate herself to creating a fairer legal system.

Mediation: Australia’s Place in the International Scene (Part 4 of 4)

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Peter Condliffe PhD
Chair, AMDRAS

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

Where Does Australia Sit in the International Dispute Resolution Field?

The research conducted for the MSB, referred to above, used several key indicators for establishing a comparison between a number of jurisdictions: Australia, New Zealand, Singapore, Honk Kong, United Kingdom, USA and also against the multi-national International Mediation Institutes system. These indicators were:

  • Regulation of Mediation
  • Accreditation Systems
  • Mediation Style
  • Specialisations

Let me deal with each of these aspects in turn.

Regulation

What the researchers concluded was that Australia sits approximately “in the middle” of regulatory regimes. They contrast Australia with the Italian legislated system which mandates areas where mediation may be conducted and also with the UK and USA systems where mediation is largely unregulated. Australia, like all of these jurisdictions does have civil procedure rules that promote the use of dispute resolution and dispute resolution processes. However, what is noteworthy about both Australia and New Zealand jurisdictions is that they do legislate for the use of conciliation across a range of conflict areas and for dispute resolution processes in family law matters. In Australia family dispute resolution practitioners (FDRPs) are required to have obtained certain qualifications and be registered to practice in that field. This is contrasted with the situation in Singapore where judges take a proactive approach in managing family disputes where they can appoint anyone to act as mediator as there are no legislative requirements for mediator qualifications. Other jurisdictions, such as the UK and Hong Kong, maintain registers or panels of family mediators, but again without any legislative scheme for the requirements of mediators.

In Australia likewise many conciliation schemes require certain qualifications for practice including mediation (NMAS) accreditation in many instances. Our own review research showed that most conciliators reported that they followed a “mediation” type process.

Accreditation

In reference to accreditation all of the mediator accreditation systems analysed require training (usually a five-day course) with an assessment and application process. There are national mediator accreditation systems in Australia, Hong Kong and Italy. Hong Kong and Italy operate centralised accreditation systems (Hong Kong Mediation Accreditation Association Limited (HKMAAL) and the Italian Ministry of Justice, respectively), while Australia has a decentralised system through Registered Mediator Accreditation Bodies (RMABs). However, in other countries, accreditation systems are generally managed by professional organisations, which each have their own standards. Therefore, the credibility or status of accreditation in these latter countries is organization and often discipline dependent.

Mediation Style

In relation to mediation style there appears to be a consensus among jurisdictions that mediation standards either do not presume a particular style of mediation or presume the facilitative style of mediation. It is clear that the “definition” of mediation in NMAS could be regarded as a facilitative one. However these Standards also allowed for a “blended process” which could involve the giving of advice. They also allowed for conciliation to be recognised as part of a mediators practice. In other words, the Australian system allows for some flexibility in mediation style. This seems to be replicated in other jurisdiction New Zealand and the European Union. There has been a slight change under the new AMDRAS regime where facilitative mediation is preferred as the training model for accreditation and is not defined but rather described. This is coupled with the adoption of a broad-based outline of professional practice called the “four professional domains” which are outlined in detail in Part V of the AMDRAS standards. These provide a much more wholistic description of mediation practice than one limited to a definition.

There were several reasons for this preference for a definition. Like Boulle I find the use of definitions for mediation (and other dispute resolution practices) problematical in that a definition is like a picture of a dancer on a wall. It gives you a static glimpse of something but does not allow for the spontaneity, fluidity and improvisations that a real dancer may go through. I also note that NADRAC, when it provided a comprehensive glossary of dispute resolution terms in 2003, suggested that it is better to describe rather than define such terms. Also, an expert legal drafter that the MSB used to provide advice upon an early draft of the revised standards advised against providing a definition because it could potentially add to liability problems for mediators both in terms of process and outcomes.

The AMDRAS standards provides therefore, in effect, for a range of mediation type practices in acknowledgement that this is how practice is done. My view is that it is generally best to teach a facilitative model in initial mediation training to equip mediators with a wide and inclusive variety of skills but fame in against the reality of actual practice. This realistically reflects the increasing diversity in mediation practice both domestically and internationally.

Specialisations

Regulatory attempts to allow for specialisation seem to be limited globally. In Australia conciliation is historically regarded as distinct from mediation and there is interest in developing it as a specialisation. A report by ADRAC in 2021 showed that over 100 pieces of legislation prescribe conciliation as part of a dispute resolution process. This Report attempted to discern separate definitional and operational domains for conciliation. However, I agree with Professor Laurence Boulle’s 2022 critique that the ADRAC’s attempt to define conciliation so as to differentiate it from mediation is not convincing and instead demonstrates a considerable number of similarities and overlaps. He argues that “…definitionally, practically and professionally…” attempts to differentiate the two “twins”, as he termed the processes, are undermined by the diversity inherent in both. Also, it is my view that attempts by certain groups organisations to promote this differentiation is and will be counterproductive and goes against both practice trends and wider developments internationally. It was notable that the initial research for the review of the standards commissioned by the MSB, demonstrated that most conciliators tend to use the same process as mediators and seek the same CPD activities as mediators. The context of practice is obviously important as most conciliation is conducted under regulatory schemes where they have a legislated right or obligation to ensure compliance with the scheme. This distinction between the two processes does not seem to be as apparent in other jurisdictions outside Australia. Further, it is clear that internationally the trend is to incorporate conciliation within the rubric of mediation.

It is noted that the Singapore Convention, which Australia is a party to, has adopted a more inclusive terminology by formally incorporating a number of processes within the term “mediation.” It is also worth noting that whilst UNCITRAL introduced conciliation rules in 1980 these were amended in 2018 to become the UNCITRAL Model Law on International Commercial Mediation. The UNCITRAL model law offers member and non-member states a regulatory model for adoption, with or without amendment, into their domestic legislation. The change in nomenclature from “conciliation” to “mediation” is not insignificant and reflects the international trends towards the latter. One could also, amongst others, note the EU Mediation Directive on Civil and Commercial Aspects of Mediation. This Directive establishes a regulatory framework within which EU member states are required to address aspects of crossborder civil and commercial mediation law throughout the European Union.

What AMDRAS does now is to allow for the possibility of specialisations where a practitioner is both registered as an accredited mediator and “….has met the criteria of specialist accreditation specified from time to time by the Board.” The AMDRAS Board may act on its own motion, or on application from a relevant organisation or organisations for recognition under AMDRAS of a Specialist Dispute Resolution program which the organisation/s administers. The criteria, including CPD and practice requirements, once set by the Board will be published as an addendum to the Standards. This would provide an avenue for specialisations within the dispute resolution field to seek and apply national standards. It potentially addresses some of the developmental issues occurring in the field and would, for example, allow national recognition of international mediation, online dispute resolution, conciliation, elder mediation and family dispute resolution programs and processes.

As noted, the new AMDRAS provides a broad description, but not a definition, of mediation and dispute resolution which would encompass a variety of processes including conciliation just as the previous NMAS did. Further, it recognizes that mediators practice across a broad spectrum of non-determinative dispute resolution practices using a broad range of methodologies.

Author Biography

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

Mediation: Australia’s Place in the International Scene (Part 3 of 4)

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Peter Condliffe PhD
Chair, AMDRAS

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

The Review

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

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

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

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

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

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

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

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

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

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

Key Features of AMDRAS

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

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

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

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

Author Biography

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

Mediation: Australia’s Place in the International Scene (Part 2 of 4)

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Peter Condliffe PhD
Chair, AMDRAS

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

The Evolution of the Australian Way

The NMAS was a very Australian way of regulating practitioner training, skills development and registration. Since its commencement in 2008 it has, until this recent review, remained virtually static as the mediation field around it has evolved. But even after this review its four central core features of voluntariness and decentralisation, reflexiveness and responsiveness remains.

It relies on voluntary compliance by the accreditation bodies (formerly called Recognised Mediator Accreditation Bodies (RMABs) and now termed Recognised Accreditation Providers) that agree to accredit mediators in accordance with the requisite standard. Involvement in the system is not mandatory and is reliant upon voluntary compliance and membership.

It can be described as an industry based decentralised system where training (both initial and ongoing) as well as registration is conducted by a number of disparate organisations known as Recognised Mediator Accreditation Bodies (RMABs). In many ways it both mirrored and accommodated the Australian federal constitutional system which “spreads” various aspects of governance and administration across multiple representative parliaments and bodies to accommodate the needs of widely disparate but culturally contiguous geographical regions. This decentralized regulatory system is replicated in many parts of the Australian workplace and economy. In part this is a recognition of the vast distances involved but also of the protection of more localised interest groups.

At about the time the NMAS was formed in 2008 Nadja Alexander insightfully described it as a “self-regulatory” approach to regulation embodying reflexive and responsive approaches or theories. These terms she defines as:

“Responsiveness refers to collaboration between government and the group or collective being regulated. Reflexion means that actors have the opportunity to identify issues, reflect upon them and negotiate their own solutions. In their purest form self-regulatory approaches refer to community-based initiatives embracing collaborative, consultative and reflective processes, as distinct from top down policy regulation.”

If one looks at the foundation documents that relate to the formation of the NMAS one can see these core elements being engaged. The role of government seeding grants and reports published by affiliated government bodies associated with a groundswell from industry groups and mediators themselves came together to create the initial framework. It is a regulatory framework that contrasts with more highly centralised regulatory regimes in such disparate places as Hong Kong and Italy (the Hong Kong Mediation Accreditation Association Limited (HKMAAL) and the Italian Ministry of Justice, respectively) which Alexander would probably term a “formal legislative approach”. But it also can be contrasted with more open association market-based systems such as presently operating in the United States of America and the United Kingdom. In many ways it can be seen as a “middling approach” to regulation and compliance.

The provenance of this model went back, at least, to the year 2000 when a government affiliated advisory body known as the National Alternative Dispute Resolution Advisory Council (NADRAC) launched a discussion paper on “The Development of Standards for ADR” which formed the basis for consultation on this issue. This Report stated that:

“NADRAC proposes a framework for the development of standards for ADR, in which responsibility is shared across service providers, practitioners, and government and non-government organisations (Recommendation 1). It proposes the following strategies:

(i) Facilitate the ongoing development of standards at the sector, program and service provider level, in order to improve the quality of ADR practice and to enhance the credibility and capacity of the ADR field.

(ii) Implement particular standards, within a code of practice, in order to educate and protect consumers, and build consumer confidence in ADR processes.”

One can see in these initial proposals the genesis of the decentralised model. In March 2004, NADRAC released a further paper on mediator accreditation, “Who Says You’re a Mediator? Towards a National System for Accrediting Mediators”. The aim of this paper was to obtain information and to stimulate discussion in the lead‐up to a national workshop on mediation standards. Discussion on it was facilitated at the 7th National Mediation Conference in Darwin on 2 July 2004. With the help of a grant from the federal Attorney-General’s Department the Conference established a broad-based Committee to work on implementation and the establishment of the standards. Notably, for the system’s subsequent development this Committee was representative of the various industry sectors involved, reflected the geographic and disciplinary diversity of practitioners and included members who were suitably experienced in both the practice of mediation and its administration.

At a subsequent conference in 2006 the National Mediation Committee was then formed to attempt to move the proposal forward and to assist to draft standards and a system for mediator accreditation. However, this committee was not able to move the proposal forward and no accreditation system was established at this time. It was not until a further grant was obtained in 2007 by the Western Australian Dispute Resolution Association (WADRA) and a further period of consultation and refinement of the draft Standards made that they were finally operationalized at the beginning of 2008. Professor Tania Sourdin, the academic who conducted this second consultation, recommended and cemented in place the establishment of a voluntary industry system under which organisations that met certain criteria could accredit mediators. This has been a cornerstone of the system ever since. With the help of some more funding the National Mediator Accreditation Committee (NMAC) became the Mediator Standards Board in 2010.

In launching the MSB, his Honor Justice Murray Kellam AO, the then Chairman of NADRAC noted that Australia was the only country to have established a national scheme for mediator standards and accreditation and that the NMAS had ‘prompted the biggest transformation to the professional landscape in the history of mediation in Australia by providing an overarching, base level of accreditation for all mediators irrespective of their field of work.’ Whilst government seeding funds to initiate the NMAS had been obtained it was clear from the onset of these developments that the MSB would need to be wholly funded by RMABs and for practical purposes, by mediators seeking accreditation through RMABs. The MSB passed a significant milestone in 2015 when it successfully concluded a process of consultation and minor revision of the NMAS. The introduction of the new AMDRAS system represents the first significant review of the Standards.

Author Biography

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

Mediation: Australia’s Place in the International Scene (Part 1 of 4)

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Peter Condliffe PhD
Chair, AMDRAS

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

The Australian system appears to be a unique industry-based system which allows for a common accreditation of mediators across a wide spectrum of professional disciplines. Furthermore, it is a decentralised and diverse system allowing for different styles of mediation whilst maintaining robust central standards for both initial and ongoing training. This latter aspect has been given more emphasis in the new AMDRAS system. The decentralisation of the Australian system makes it flexible in allowing for the cohabitation of the dispute resolution space by different species of practitioners and organizations which are widely divergent in their interests and social functions. The regulatory landscape of Australia provides for some legislative intervention in particular categories of disputes and dispute resolution which allows for a strong culture of private practice and referrals alongside a range of government run or funded services. These unique factors have caused a fusion of thought and practice which has positioned Australia as a country where mediation, and dispute resolution more generally, has matured and diversified under the rubric of a common set of core values. The combination of a decentralised system with adherence to a core set of principles has served the Australian community well since 2008 and will continue to do. Importantly, it will also fit more easily into trends identified in the international mediation field.

Background

As Nadja Alexander a Singapore based academic and an expert on comparative Australian and international conflict management systems stated in a recent paper,

“lf the 20th century was the arbitration century then this century, without a doubt, is the mediation century. The need for greater flexibility, diversity and accessibility in dispute resolution has challenged legal and arbitration systems and opened the door to dispute resolution mechanisms that feature co- operative, interest-based approaches to decision-making that can move easily across cultures…”

What Alexander concluded was that mediation as a process was increasingly the “process of choice” in international dispute resolution in the 1990s and, more recently, the legal instruments to regulate it. She argues that the growing internationalisation of mediation has led to a greater appreciation of diverse practice models and the cultural assumptions underpinning them. To her, and others, it is clear that mediation and other dispute resolution processes have both to be understood in both cultural and international contexts. This was something that the Mediator Standards Board (now the AMDRAS Board) also considered when, in 2019 it began to consider changes to the Australian accreditation system. As part of the tender process the contractor was asked to “…include a review of comparative international regulatory dispute resolution systems…”. It was clear that we had to place ourselves both in cultural and international contexts so as to better understand what we were undertaking.

At about the same time as the international context of mediation was changing in the 1990s my own professional practice took me into a number of pivotal experiences that informed how I think about the interaction of conflict management processes, place and culture. The first was my experience in Cambodia in the 1990s as a United Nations Human Right worker and educator. Cambodia, at that time was a society where the rule of law and civil authority were minimal, and it impacted upon the ways in which its members managed conflict. This experience had a significant impact on me and pricked my interest particularly in restorative justice processes but also how conflict is managed in different cultural contexts. There is one incident that was particularly informative and that was to do with the murder of a “witch” in a town called Sisophon in the then wilds of north-west Cambodia. She practised her craft in a nearby village. Unfortunately, the village had experienced some unexpected bad luck, which resulted in several deaths and illnesses. The relatives of the victims blamed the witch. They decided that the best course of action was to kill her. They approached the headman of the village with their plan and he approved. The unfortunate witch was killed.

The police were called in. Rather than arresting the suspects, the police called a meeting of the witch’s aggrieved relatives and the perpetrators. The meeting was held to discuss compensation to the witch’s relatives. This done, the matter was closed. Presumably, the police and the headman both received a share of the proceeds.

No attempt was made to bring the perpetrators of the crime to justice. No formal charges were laid. It was as if the State of Cambodia with its panoply of Western-style laws did not exist. The idea that the State may have an interest in these events was not contemplated or, if it were, it was an interest of very low priority. The very idea of ‘crime’ was different here. These events reminded of similar stories from the medieval Europe.

This was only one of a large number of instances that came to my attention where Cambodian citizenry and officials reached their own solutions to problems and conflicts. The desire to engage in ‘self-help’ or third-party interventions outside the formal legal system was widespread. The killing of “witches” in Cambodia appeared to be common, as I came across a number of prisoners described in the official records as ‘witch killers’.

Unlike our concept of public wrongs, which entitles the State to interfere in the lives of its citizens, the fate of the witch of Sisophon was determined by proto-State concepts of private and communal interests. The definition of crime was not the prerogative of the State but that of the people directly involved and according to their local customs. In Cambodia, even today there is often little understanding of, or perceived need for, a high-level justice system to protect citizens from often authoritarian or fearsome regimes. The rhythm of life beats to a different drum. Conflict and its various manifestations are perceived and dealt with differently in this society than they are others or in our own. In other words the context in which conflict and social wrongs occurs is critical to the form and function of processes engaged to deal with them.

The second major influence upon me was the work of John Paul Lederach whom I first encountered in the 1990s when I began to teach conflict management courses. Lederach argues that understanding conflict requires an understanding of the culture of a group. Lederach interprets culture to mean the shared knowledge schemes created by a set of people for perceiving, interpreting, expressing and responding to social realities around them. By comparing dispute processes in various cultures he provides clear examples of how dispute managers go through similar functions or phases but the form of these may vary widely.

The third was my contact with First Nations approaches to conflict which I began to be involved in as a mediator in the 1990s in Queensland. What I found through this experience was that my presumptions about mediation process and functions needed to be significantly adapted to this different cultural milieu. More recently some research partly funded by the AMDRAS Board and managed by Professor Tania Sourdin of Newcastle University has clearly indicated these differences and the inadequacy of our understanding of them. The key questions this research, and others like it poses, is how do we better understand indigenous systems of conflict management and how can we both adapt to them and engage them. This has been and still is a particular challenge for our national mediation accreditation system. So, what is this Australian accreditation system?

Author Biography

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

Join the discussion, speak within our ‘Town Hall’

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We Need to Talk About … the EU AI Act!

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Maxi Scherer
This article has been republished with permission. The original publication can be located within the Kluwer Arbitration Blog.

There has been a lot of talk about artificial intelligence (“AI”) in international arbitration in recent years.  I vividly remember when I gave the keynote speech on “International Arbitration 3.0 – How Artificial Intelligence Will Change Dispute Resolution” at the Vienna Arbitration Days 2018.  At the time, people were quite skeptical about the topic, but apparently intrigued enough to select it at the GAR awards as the best lecture of the year.  Since then, the international arbitration community has evolved, and it is now undisputed that AI systems have a significant and increasing impact on international arbitration (see e.g., Maxi Scherer, Chapter 39: Artificial Intelligence in Arbitral Decision-Making: The New Enlightenment?, in Cavinder Bull, Loretta Malintoppi, et al., (eds), ICCA Congress Series, Volume 2, pp. 683 – 694 (2023)).  For instance, counsel frequently employ AI tools for document review and research purposes, and there is a rising demand for these systems in transcription and translation tasks.

As AI systems continue to develop, it is also important to create a harmonized ecosystem where AI “collaborates” effectively with arbitration practitioners – be it with counsel or arbitrators.  Among the most burning questions is whether there is a need to regulate AI, either broadly or in international arbitration more specifically.  Recently, I gave the 6th Sciences Po Mayer Brown arbitration lecture on the question “Do We Need to Regulate the Use of Artificial Intelligence in International Arbitration?”  While there is burgeoning regulation in court proceedings (such as by the UK Courts and Tribunal Judiciary and the Dubai International Financial Centre (DIFC)), very little exists that applies to international arbitration.  In April 2024, the Silicon Valley Arbitration and Mediation Center published the “Guidelines on the Use of Artificial Intelligence (AI) in International Arbitration,” as an attempt to propose some form of optional regulation.

On a broader level, the European Union Artificial Intelligence Act (the “Act”), a landmark legislation that lays down harmonised rules on artificial intelligence, was adopted by the European Parliament on 13 March 2024 and will enter into force after its publication in the EU Official Journal.  Despite being described as the most comprehensive piece of legislation in the AI field, the international arbitration community has paid little, if any, attention to this regulation and few practitioners are aware that the Act has the potential to apply to international arbitration proceedings (but see here), and in particular to arbitrators.  This blog discusses how the activities of arbitrators may fall within the material, personal, territorial and temporal scope of the Act.

Material Scope

The Act takes a risk-based approach, which means that it classifies economic activities according to the likelihood of harm caused by AI systems, and the regulatory duties vary according to this level of risk (Recital 26).

For instance, there is a general duty of AI literacy, which means that providers and deployers of AI systems shall take appropriate measures to gain the knowledge and skills to “make an informed deployment of AI systems, as well as to gain awareness about the opportunities and risks of AI and possible harm it can cause” (Recital 56).

Activities of arbitrators may be classified as “high-risk”.  Annex III, Art 8(a) provides that “AI systems intended to be used by a judicial authority or on their behalf to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts or used in a similar way in alternative dispute resolution” (emphasis added) are to be classified as high-risk AI systems.  The reference to “alternative dispute resolution” is likely to include international arbitration.  This is confirmed by Recital 61 which provides that “AI systems intended to be used by alternative dispute resolution bodies for [the purposes of the administration of justice and democratic processes] should also be considered to be high-risk when the outcomes of the alternative dispute resolution proceedings produce legal effects for the parties.” (emphasis added).

Article 6(3) contains exceptions to the high-risk classification, namely where otherwise high-risk AI systems are used in a way that does not pose a significant risk of harm to the health, safety or fundamental rights of natural persons.  This applies to situations in which:

“(a) the AI system is intended to perform a narrow procedural task;
(b) the AI system is intended to improve the result of a previously completed human activity;
(c) the AI system is intended to detect decision-making patterns or deviations from prior decision-making patterns and is not meant to replace or influence the previously completed human assessment, without proper human review; or
(d) the AI system is intended to perform a preparatory task to an assessment.”

In which circumstances these exceptions apply is not immediately clear from the Act.  Nor is the answer clear to the critical question whether one can conclude from Article 6(3) that international arbitration will fall under the high-risk activities category only if natural persons are concerned.

Personal Scope

The Act distinguishes between different regulated entities.  Providers, importers and manufacturers of AI systems bear the most stringent obligations under the Act (Articles 16, 25).  However, “deployers” of AI systems also fall under the scope of the Act. A “deployer” is defined in Article 3(4) as “any natural or legal person, public authority, agency or other body using an AI system under its authority except where the AI system is used in the course of a personal non-professional activity.”  Arbitrators, as natural persons using AI systems for a professional activity, thus fall under the personal scope of the Act.

Deployers of high-risk activities have to follow a certain number of regulatory obligations, such as the obligations to (i) take appropriate technical and organizational measures to ensure that the AI systems are used in accordance with their instructions (Article 26(1)), (ii) monitor their operation (Article 26(4)), (iii) assign human oversight to natural persons who have the necessary competence, training, authority and support (Article 26(2)), (iv) ensure the input data is relevant and sufficiently representative (Article 26(4)), and (v) keep the logs automatically generated by the system for a period of at least six months (Article 26(6)).  In certain situations, deployers have additional duties to carry out data protection impact assessments (Article 26(9)) and cooperate with national EU authorities (Article 26(12)).  In case of non-compliance, financial and non-financial sanctions are foreseen (Article 99).

Territorial Scope

The Act outlines its territorial scope in Article 2.  The Act applies if the deployer of AI systems either (i) has its place of establishment or is located within the EU (Article 2(b)); or (ii) has its place of establishment outside the EU but “where the output produced by the AI system is used in the Union.” (Article 2(c)).

The application of this provision to international arbitration is not straightforward.

Concerning Article 2(b), one could argue that the place of habitual residence of an arbitrator is where she is established or located.  However, this means that in a three-member tribunal, one or two arbitrators might be covered by the Act, while the other one or two might not.  An interpretation that favours a more uniform application amongst tribunal members would be to consider the place of establishment of the tribunal (as opposed to its individual members), which would likely be determined by the seat of the arbitration.

It is even more complicated to assess in which circumstances the Act could apply if we consider Article 2(c).  The interpretation difficulty turns around the requirement that the output produced by the AI system must have been “used” in the EU.  Arguably, if AI systems have been used by the arbitral tribunal, the AI system’s output has impacted the award, which in turn has legal effects on an EU-based party.  Is the location of one of the parties in the EU thus sufficient to conclude that the “output produced by the AI system is used in the EU”?  Or, otherwise, is it sufficient that an award could ultimately be enforced against assets located in the EU?  If one were to answer in the positive, this would mean that the Act could have potentially significant extraterritorial consequences: it could apply even if the seat of the arbitration is outside the EU, the arbitrators are based outside the EU, and one of the parties is located outside the EU.

Temporal Scope

The Act will be implemented in stages.  Most provisions related to high-risk AI systems will apply 24 months after the Act has entered into force (Article 113).

Fortunately, this means that the international arbitration community still has time to consider the extent to which the use of AI in international arbitration by arbitrators falls under the Act.  What is sure, however, is that we need to engage in the debate!

I wish to thank Russell Childree, Dr. Ole Jensen, Andra Ioana Curutiu, Alice Dupouy, and Alexey Schitikov, colleagues at Wilmer Cutler Pickering Hale and Dorr LLP, for their research and assistance.