Tag Archives: law

Mind the Gap! *NEW* Findings on Practical Legal Training in NSW

Posted on by
Reply

Although the legal profession prides itself on rigorous training and high standards, recent research reveals a gap between education and practice.

On 9 April 2025, the New South Wales Legal Profession Admission Board (LPAB) released a research report conducted by Urbis that examined Practical Legal Training (PLT) in NSW (the report). This report offers crucial insights for legal educators, practitioners, and the profession as a whole as it provides a view of the current landscape of legal education.

The Graduate Perspective

Most interestingly, 1 in 3 PLT graduates (33%) did not agree that the coursework was useful and that the course lacked deep relevance to legal practice. Direct feedback included comments like:1

“The core and elective subjects were not particularly helpful for my career”

“… it is difficult to grasp what each subject is intended to achieve”

Many characterised their PLT experience as merely a “box-ticking” exercise, which is gravely concerning considering the program is designed to bridge the gap between academic learning and professional practice. The purpose of PLT is to prepare future lawyers with the knowledge and skills required to practice competently and confidently, though feedback signifies otherwise.

Further, graduates reported that professional experience gained as paralegals or in other legal roles proved more valuable than the coursework itself. This practical exposure apparently delivered what formal PLT could not.

Though this was not a shared experience for all. Some respondents reported inadequate supervision, including being stationed to complete mundane administrative tasks or working under difficult supervisors.

In particular, one participant highlighted the challenges that would typially be faced by ‘first-generation’ lawyers–those who lack established connections within the legal profession–and described witnessing exploitative practices, power imbalances, absent quality control, and a lack of accountability.

The Supervisor Perspective

On the other hand, the supervisor perspective appears to be equally troubling. Over 2 in 5 PLT supervisors (42%) expressed dissatisfaction with the practical legal skills demonstrated by graduates. Even more concerning, 4 in 5 reported that graduates frequently required support to complete basic tasks and that they were not adequately prepared for workplace realities. Supervisors were particularly blunt in their feedback, with some commenting that graduates:2

“… [were] not up to the standards in private practice compared to [those] before the pandemic”

“… [were] unable to construct a sentence, have no idea what a title deed is, how to put together a brief, answer the phone, address an envelope, construct a cogent argument or conduct legal research”

Yikes… the latter response particularly raises some alarm bells to say the least. However, the quality of work will naturally vary from person to person, as one supervisor identified.

Furthermore, and somewhat optimistically, many supervisors explained that essential skills were ultimately better taught “on the job”, particularly in small or ’boutique’ firms. This suggests that graduates who receive proper guidance early on in their careers can develop the necessary practical skills effectively regardless of any deficiencies or challenges they might face in their formal studies or training.

An Extension of an Invitation

On 14 April 2025, the Honourable Andrew Bell, Chief Justice of New South Wales, issued a statement responding to the findings in this report. His honour highlighted these concerns and extended an invitation to members of the profession to make a submission in response.

The Honourable Andrew Bell
Eighteenth Chief Justice of New South Wales, 2022 –
via Supreme Court of New South Wales webpage

I encourage readers, particularly practising lawyers, to peruse that report and consider its relevance to your own legal practice. Perhaps even make a submission to the LPAB with your concerns, reflections, insights, and experience.

A Personal Reflection

As a recently admitted NSW practitioner myself, though not a participant in this research, I can share and appreciate others’ likely frustration post-PLT and the intimidating reality in beginning the journey as a young lawyer.

The major concern emerging from this research is that the current PLT program fails to adequately equip students with the knowledge, skills, and competencies required for professional excellence. And if this is true for PLT, what does it suggest about the overall law curriculum from which it extends?

This gap became immediately apparent to me upon entering the profession. As a ‘second-generation’ lawyer, I was fortunate to have benefited from opportunities that offered invaluable guidance. Having worked with both barristers and solicitors during my PLT and early career–those whom I am most grateful–I received mentorship that provided me with essential skills which were not covered in my formal legal education.

It is unacceptable that not all graduates are afforded the same basic level of guidance and respect by supervisors or colleagues within the profession. It is an absolute privilege to be part of this great legal profession, and it is shameful that some might not recognise that privilege in this same light.

When opportune and appropriate to do so, we all ought to guide future lawyers, colleagues, and even opponents. This is not merely a matter of goodwill but rather a professional duty toward maintaining a competent, credible, and reputable profession.

Addressing this Gap

This gap in education and practice requires our urgent attention and reform.

To address an aspect of this problem, I will be speaking alongside Philippe Doyle Gray, Barrister-At-Law at 8 Wentworth Chambers, at the 2025 Australasian Law Academics Association Conference this July in our address titled “Evidence in a ‘Paperless’ Practice: Bridging the gap between theory and practice in legal education”.

Our address will focus on just one gap, specifically, how the Evidence Law compulsory unit fails to translate theoretical knowledge into professional “real-world” skills. We will explain that theory alone is insufficient in today’s legal landscape, particularly in an increasingly digital practice environment, and that graduands desperately need practical skills development before they enter into the workforce.

What You Can Do

While I have highlighted certain aspects that were revealed within the report, it contains many additional findings worthy of your attention, including issues around the high cost of completing PLT and the shift from face-to-face to online learning.

I strongly encourage all members of the profession to review the report in its entirety and take a keen interest in these issues. The quality of legal education directly impacts the quality of our profession.

  1. See report, 19. ↩︎
  2. See report, 32. ↩︎

The Role of Intermediaries in Enhancing Access to Justice in ADR

Posted on by
Reply

Dr Oz Susler & Dr John Taggart

Introduction

Over the past thirty years, there has been a ‘sea change’ in the treatment of vulnerable court and tribunal users in the United Kingdom. As noted by Lady Justice Hallett in the case of R v Lubemba: ‘Advocates must adapt to the witness, not the other way round.’ Formal rules now place a duty on judges in both civil and criminal cases to ensure that ‘every reasonable step’ is taken to facilitate the participation of witnesses in proceedings.

Emblematic of this culture shift has been the introduction of a new role known as the ‘intermediary’. The intermediary, a communication specialist, is one of a range of ‘special measures’ which were introduced in 1999 through the Youth Justice and Criminal Evidence Act (YJCEA) to improve the quality of evidence available to a court and reduce the stress associated with the justice process. The function of the intermediary is to communicate ‘questions put to the witness ’and ‘to any person asking such questions, the answers given by the witness in reply to them’. As well as assisting witnesses to give evidence in court, intermediaries also advise lawyers and judges on how best to communicate with the witness more broadly.

Background

In England and Wales, the first cohort of intermediaries was introduced in 2004 through what has become known as the ‘Witness Intermediary Scheme’ (WIS) which is run by the Ministry of Justice (MOJ). The WIS matches the vulnerable witness with an intermediary based on their communication needs. The majority of intermediaries operating in England and Wales are speech and language therapists; however, there has been an increase in numbers from other backgrounds, such as teaching, nursing, social work, psychology, and occupational therapy.

In Northern Ireland, a slightly different intermediary scheme operates compared to England and Wales. In 2013, the Department of Justice of Northern Ireland (DOJ) developed a model for the provision of intermediaries in the criminal justice system. This was based on the provisions of the Criminal Evidence (NI) Order 1999, which effectively mirror the provisions of the YJCEA. In Northern Ireland, intermediaries are all trained, registered, and regulated by the DOJ. As in England and Wales, the vast majority of those on the Registered Intermediary Scheme (RIS) register are speech and language therapists, with a number coming from a social work background. A crucial distinction between the intermediary schemes in England, Wales and Northern Ireland is that in the latter, both witnesses and defendants can access the services of registered intermediaries. The DOJ concluded that respect for the principle of ‘equality of arms’ demanded that all vulnerable individuals should be eligible for intermediary assistance.

Beyond Criminal Courts

The special measures regime in both England, Wales and Northern Ireland were originally intended to apply solely to criminal proceedings. However, requests began to be made for intermediary assistance in other justice fora, such as family courts and employment tribunals. Intermediaries now commonly assist vulnerable individuals in these settings in both jurisdictions. In a recent case in England and Wales, the High Court noted how the fundamental role of the intermediary in family courts and criminal courts is the same.1 As intermediaries have become more commonplace in criminal courts and family courts, relevant guidance has been developed to regulate the scope of their role in court. For example, in 2016, Mr Justice Charles, the Vice President of the Court of Protection in England and Wales published practical guidance entitled ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’. Another significant development in Great Britain has been the introduction of Practice Direction 1A, which also highlights the intermediary role in assisting vulnerable individuals to participate. In Northern Ireland, Practice Direction No.2/2019 contains detailed guidance on the intermediary role in criminal proceedings. Despite intermediaries regularly attending family court hearings, no equivalent guidance for civil courts has been issued.

Challenges

The intermediary role has played a significant part in the move towards promoting ‘best evidence’ and accommodating the needs of vulnerable individuals in court. In this regard, the role has been ‘little short of revolutionary’. The Victims’ Commissioner in England and Wales recently described it as ‘the single biggest improvement in the criminal justice system over the last thirty years’. While the intermediary role is becoming further embedded into justice processes, the role has encountered several challenges. Here are a few of the most important ones:

Duration of Appointment

Ultimately, the duration of an intermediary’s appointment is at the discretion of the court. The court may allow for an intermediary to assist the vulnerable individual for the period of oral evidence or for the entire court proceedings (or possibly for something in between). Understandably, the role of a defendant in a criminal trial is different from a witness so the length of time communication assistance will be required can vary. For example, a defendant will have legal conferences with their lawyers throughout a trial whereas a witness will not. The relevant Practice Direction in Northern Ireland states that the intermediary role is restricted to the period of oral testimony while in England and Wales, a court may exercise its powers to appoint an intermediary for longer. Again, this is at the discretion of the judge. Certain commercial providers of intermediaries, such as Communicourt, strongly argue that communication as a concept is broad and that providing intermediary assistance only for the period of evidence is superficial. The counterargument to this point is that with limited resources, intermediaries should be appointed where they are most needed.

Neutrality

As a relatively new actor to the justice system, the scope of the intermediary role has been contested. One key aspect of the role is that intermediaries operate as officers of the court and, as such, are impartial. How intermediaries operate to facilitate communication and remain impartial is a question that warrants attention. For example, if an intermediary assisting an extremely emotional witness feels that reassuring them might help them and reduce anxiety, is this breaching their impartiality? One anecdotal example from Northern Ireland involved an intermediary putting their arm around a young witness in court to comfort them. It was ultimately held by the judge that this ‘crossed the line’ and the intermediary’s involvement in the case ceased. Regardless of the venue, consideration should be given to how intermediaries can be enabled to carry out their primary role of facilitating communication and be viewed as impartial.

Skills and Qualifications

As discussed above, the majority of intermediaries in both England, Wales and Northern Ireland come from a background in speech and language therapy or social work. The MOJ in England and Wales has tried in recent years to diversify the registered intermediary cohort. In terms of the ‘matching’ of intermediaries to vulnerable individuals based on the nature of the communication issue, it is preferable that there is a wide pool of background and skillsets. For example, some intermediaries work exclusively with young children while others work with the elderly or with people diagnosed with autism spectrum disorder2 or an intellectual disability. Ultimately, a court or tribunal appointing an intermediary should have the confidence that the intermediary has the requisite skillset to facilitate communication and provide clear, practical advice to the legal professionals. Although increasingly rare in practice, some courts have permitted lawyers to effectively cross-examine the intermediary about their experience and suitability for the role. It is suggested such a practice could underline the legitimacy of the role as well as the matching process undertaken by the DOJ or MOJ which have recruited, trained and ‘matched’ the intermediary to the vulnerable individual.

Intermediaries in Australia: Scope and Application

Following on from England, Wales and Northern Ireland, New South Wales was the first Australian jurisdiction to pass legislation for intermediaries in 2015.3 Currently, intermediaries are used within the criminal justice system in Tasmania, Queensland, South Australia4, New South Wales, Victoria5 and the Australian Capital Territory.6 Intermediaries are primarily used to assist vulnerable witnesses including children to give evidence for sexual offences and homicide cases.7 In the Victorian and ACT programmes, in addition to young people, any adult with a mental illness, intellectual disability, dementia or brain injury may be eligible to have an intermediary assist them in giving evidence in a police interview or court for particular criminal matter hearings.8 The reality is that vulnerable individuals experience barriers in access to justice not only in the criminal justice system, but, also in other areas that are connected to the broader legal system, including the civil justice system and court ordered Appropriate Dispute Resolution (ADR). In Australia, ADR processes are highly integrated in the legal system, thus many courts refer parties to participate in an ADR process. In many jurisdictions  attempting to participate in the ADR process may be a prerequisite to the matter proceeding to a hearing before the court.9

Potential Applications of the Intermediary in the Australian Civil Legal System

It can be argued that particular individuals who are identified as more likely to encounter greater barriers in access to justice than the general population, such as Autistic persons, or otherwise neurodivergent individuals, those living with a mental health condition or other neurological/intellectual disabilities, stand to benefit from an intermediary programme that is available in court ordered or legislation-based ADR processes.  Although it is recognised that ADR processes can be varied, this post focuses on the needs of Autistic persons who are subject to court ordered mediation.  While there is no research focused specifically on access to justice for Autistic people, there is significant research in relation to access to justice for people with disabilities.10 The Australian Law Reform Commission’s report11 details issues that may commonly arise when people with disabilities seek access to justice which include ‘communication barriers’ and ‘issues associated with giving instructions to legal representatives and capacity to participate in litigation’. The Report also discusses the issue of capacity to make decisions in their own best interest and in particular, the need for support in Decision-Making.12 Legal reform is likely to have limited practical impact if people do not have access to the support necessary to enable them to participate in legal processes.13 It is at this juncture that intermediaries have the opportunity to play an important role in supporting such individuals who participate in court ordered mediations, hence fostering greater access to justice.

Autistic people communicate differently to non-Autistic people. Further, Autistic people may misinterpret communication by others and may be misinterpreted in their own communication.14 This may give rise to challenges in access to justice in ADR contexts, particularly in mediation which is based on communication between the parties facilitated by a mediator. To fulfil the aims of the International Principles and Guidelines on Access to Justice for Persons with Disabilities,15 Autistic parties engaging in court-ordered ADR processes should have access to an intermediary for support if necessary. A pilot programme may be trialled where intermediaries are made available for court ordered16 family dispute resolution (FDR) mediations, based on clear eligibility criteria. Given the role of the intermediary is to facilitate communication and communication challenges being one of the most commonly challenging aspects of mediation for Autistic persons, this presents a valuable opportunity for Australia to lead other courts and extend the role of the intermediary into a new realm. Drawing on the experiences of England, Wales and Northern Ireland, Australia stands to benefit in taking part in such a significant step towards improving access to justice in ADR for vulnerable individuals, who often experience disadvantage as parties in ADR processes.17

Author Biography

Dr Özlem Sűsler is a graduate of the University of Melbourne and La Trobe University. She holds degrees in Arts, Education and Law and has been admitted as a Barrister and Solicitor of the Supreme Court of Victoria.

Özlem is a senior lecturer at La Trobe University, School of Law, where she coordinates and teaches ADR and Contract Law in the JD and LLB programmes. She is the immediate past director of the JD Programme. Dr Susler has researched and published internationally on ADR in the fields of international commercial arbitration and the scholarship of learning and teaching. More recently she has conducted qualitative research into the experience of Autistic persons engaging in ADR processes (publication forthcoming). Dr Susler has also played a key role in coaching La Trobe Law students in various ADR Mooting competitions. She is a graduate of the Chartered Institute of Arbitrators, the Australian Institute of Company Directors and an AMDRAS accredited mediator.

Dr John Taggart is a Lecturer in Law at Queens’ University, Belfast and the Director of the Institute of Criminology and Criminal Justice (ICCJ). He holds a PhD in Law from the London School of Economics (LSE) and is a member of the Inn of Court of Northern Ireland and a member of Lincoln’s Inn. John’s research focuses on the criminal process, criminal justice and socio-legal approaches to criminal law. John’s research looks at special measures in criminal courts and the role of the intermediary as a communication specialist for vulnerable court users. He has recently worked as an academic consultant to the Australian Capital Territory (ACT) Human Rights Commission and as a legal trainer to the Northern Ireland Department of Justice. John has published widely in publications including the Criminal Law Review, International Journal of Evidence and Proof, International Journal of Law in Context and the Journal of Law and Society.

  1. West Northamptonshire Council (acting via Northamptonshire Children’s Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 [43].
    ↩︎
  2. Autism Spectrum Disorder is referred to as ‘autism’ hereafter.  The term ‘autism’ throughout this paper intends to refer to individuals with a diagnosis of autism and no co-occurring intellectual disability. This article uses identity-first language (e.g., ‘Autistic person’) because many autistic people prefer it (Bury et al., 2020; Kenny et al., 2016), and it is considered less discriminatory (Bottema-Beutel et al., 2021).
    ↩︎
  3. See Criminal Procedure Amendment (Child Sexual Offence) Evidence Pilot Act 2015 (NSW).
    ↩︎
  4. South Australia provides a communication assistance scheme. See Evidence Act 1929 (SA) and Summary Offences Regulations 2016 (SA).
    ↩︎
  5. New South Wales introduced an intermediary programme in 2016 and Victoria in 2018.
    ↩︎
  6. Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT).
    ↩︎
  7. See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>.
    ↩︎
  8. See eg <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/intermediary-program/about-the-intermediary-program#program-history>. In Victoria the criminal matters are restricted to witnesses in homicide matters and victims of sexual abuse.
    ↩︎
  9. For example. the Federal and Family Circuit Court of Australia generally makes it mandatory (unless exceptions apply) for the parties to be referred to Family Dispute Resolution under s.13C(1)(b) of the Family Law Act 1975 (Cth) to attempt to resolve their disputes.
    ↩︎
  10. See, eg, ‘The Justice Project’ Final Report, Part 1 ‘People with Disability’ (August 2018) Law Council of Australia <https://lawcouncil.au/justice-project/final-report>.
    ↩︎
  11. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws – Final Report, August 2014 available at <https://www.alrc.gov.au/publication/equality-capacity-and-disability-in-commonwealth-laws-alrc-report-124/>.
    ↩︎
  12. Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws (Final Report, August 2014) p 4. (Access to justice issues | ALRC).
    ↩︎
  13. Ibid p 7.
    ↩︎
  14. See eg, Maya Albin, Isabella Chawrun, and Ami Tint, “Rethinking Social Communication Support: Exploring Communication Partner Training for Autistic Adults and Their Neurotypical Communication Partners” (2024) Autism in Adulthood <https://doi.org/10.1089/aut.2023.0>
    ↩︎
  15. ‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’ (2020) United Nations Special Rapporteur on the Rights of Persons with Disabilities. Hereinafter referred to as ‘Guidelines’.
    ↩︎
  16. This programme would be implemented through the Australian Family and Federal Circuit Courts.
    ↩︎
  17. Forthcoming qualitative research article on the disadvantage experienced by Autistic adults who participated as a party to mediation is available upon request from Dr Ozlem Susler.
    ↩︎

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

Posted on by
1

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)

Posted on by
Reply

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)

Posted on by
Reply

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)

Posted on by
Reply

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)

Posted on by
Reply

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’

Posted on by
Reply

We welcome and encourage you all to join our recently established LinkedIn discussion group.

Many of you may already be subscribed and are familiar with this Australian Dispute Resolution Research Network Blog. For those newcomers, this is a place where us practitioners, professionals, researchers, academics and students alike can collaborate and share our ideas on all things relating to dispute resolution, ideas of which, reach over 17,000 individuals per year and has over 25,000 hits.

The LinkedIn discussion group is a relatively new forum which has been created to provide us all a space to continue discussing our ideas and thoughts as well as to gain a further reach to those who may not be subscribed to this Blog. The discussion group is much like a ‘town hall’ rather than an official publishing forum. It is a place where you may speak freely of your ideas and thoughts relating to the topics of concern, but we ask kindly that you do not promote your commercial practices in law or dispute resolution and that you credit any authors where relevant. The discussion group follows the same guidelines here on our Blog.

To view or join the LinkedIn discussion group, you will be required to create or sign in to your LinkedIn account. For those who may not be familiar with LinkedIn, it is a social platform that is designed to connect professionals and peers to network and develop career opportunities. It is a great platform for practitioners, academics, and researchers to keep up to date with developments in their field as well as students and newly established professionals to get a running-start to their career.

Following the publishing of an article on this Blog, we encourage authors to post something brief in the LinkedIn discussion group. This allows a further reach to readers who may not be subscribed to this Blog. Some things to consider including in your LinkedIn post are relevant hashtags, appropriate emojis, and of course, the link to your blog!

We encourage all to engage, contribute, and participate in discussions with other members and posts, whether that is here on this Blog, the discussion group, Facebook Page at “ADR Research Network” or X (formerly Twitter) @ADRResearch.

For enquires, more information, or if you are interested in publishing an article on our Blog, please contact our Editors in Chief, Sam Houssain and Milan A. Nitopi.

International Commercial Arbitration, its Application of the Law, and the Flexibility of its Process

Posted on by
Reply

By Dr Benjamin Hayward

Photo: Dennis Jarvis, Creative Commons

In a previous contribution to the ADRRN Blog, I argued in favour of taking a little bit of flexibility away from international commercial arbitration.

In my previous post, I noted that while arbitration is ADR, it remains a type of formal dispute resolution.  It also involves application of the law.  Still, where a contract doesn’t include a choice of law clause, arbitrators have to identify the law they will apply.  My doctoral research explored the significant discretion arbitrators have in this regard.

That discretion is a problem if parties chose to arbitrate because they want enhanced certainty about their legal rights.  It’s even more problematic in some particular categories of case where arbitrators have to identify the governing law even after the parties tried to agree on this issue themselves.

I’ve been thinking a bit more about this topic following a recent episode of The Arbitration Station podcast, which included a really great discussion about becoming an arbitrator.  Co-host Brian Kotick made some interesting observations about this issue, set in the context of how arbitrators decide their cases:

‘[I]t’s all discretionary at the end of the day and you can’t really predict universally what’s to be decided … I think it depends on how you approach being an arbitrator.  I know some arbitrators, their approach is “I’m only going to decide on the arguments – legal arguments and factual arguments – that are presented to me”.  And if you take that approach I think it’s much easier because your intellectual curiosity will not lead you in the wrong direction …

Another approach is finding justice – “capital J justice” – in which case you’re going to kind of take a more active role, do your own independent research perhaps … in which case it’s much more difficult of a task …”

So is arbitration about applying the law, or is it about more general notions of commercial justice?  Or is the true position somewhere in between?  Parties can specifically agree to give arbitrators the power to decide based on principles of equity and fairness, but this is extremely rare.  What, then, is the best view of arbitration’s decision-making process where they don’t do so?

In 2013, the High Court of Australia decided a constitutional challenge to the validity of an important part of Australia’s International Arbitration Act.  In upholding the legislation, it conceptualised the role of courts in enforcing arbitral awards as holding the parties to their initial agreement to arbitrate: rather than merely rubber-stamping arbitrators’ legal analyses.  The Court also held that there is no strict legal rule, in international commercial arbitration, that arbitrators must apply the law correctly.

This gets us part-way to the answer.  For a bit more, we can look to the grounds for challenging arbitral awards.

Under the Model Law and the New York Convention, both adopted in Australia, these grounds don’t include an error of law.  They do include public policy grounds.  Public policy doesn’t cover arbitrators’ ordinary legal errors, but it might cover very significant infringements of fundamental legal principles, such as the rule against double recovery.

Of more interest to me, however, is the ground relating to arbitrators not following the parties’ agreed procedure.  Application of the law is a matter of substance, but identifying what law to apply in the first place is a procedural question.  As I’ve discussed previously on this blog, arbitration laws and rules give arbitrators significant discretion in identifying the governing law.  However, they do still set out at least broad frameworks for making that decision.

While potential mistakes in the law’s application are just part and parcel of choosing arbitration as a form of ADR, in my view, parties remain protected against arbitrators violating the procedure required for identifying that law in the first place.

This is an idea I’ve been interested in for a while now.  What does it say about the exact nature of decision-making in international commercial arbitration?  I’m not yet sure, but I’m looking forward to exploring that question in my future research.

Mediation in the Media

Posted on by
1

Last night, I watched Episode 1 of Series 2 of Redfern Now,  a compelling Australian drama on the ABC.   That episode contained a number of scenes that would be useful for teaching mediation or dispute resolution, including a mediation between a grandmother and her son-in-law, as well as a coroner’s court scene.    In fact, there are quite a few useful, and some amusing, examples of dispute resolution in the media.    Together with Nicole Cullen of Cullaborate, I have a Pinterest board where I’ve been archiving media clips that I have come across.   If you know any,  feel free to let us know in the comments below!    The link is http://www.pinterest.com/cullaborate/mediation-in-the-media/