E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 6 Number 2 (June, 1999) Copyright E Law and/or authors File: tidwell62.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v6n1/tidwell62.txt http://www.murdoch.edu.au/elaw/issues/v6n1/tidwell62.html ________________________________________________________________________ It's the Process that Counts: Professionalising Mediation in New South Wales Alan Tidwell Contents * Introduction * What is Mediation? * The Domination of Mediation in Australia * Professionalisation in the Future * Ethical Review and Mediation * Conclusion * Bibliography * Notes Introduction 1. What is the future of professionalised mediation in New South Wales? What role will the legal profession play in influencing the course of mediation in the coming years? In 1998 the Australian Law Reform Commission (ALRC) noted, "Presently there is no national body to whom parties could take complaints about the conduct of neutral third parties [mediators]." (Australian Law Reform Commission, 1998: 159) The ALRC went on to comment that while lawyer mediators were governed by the strictures of their own professional bodies, non-lawyer mediators were less constrained. These and related sorts of issues bedevil the question of mediation professionalisation. Yet, despite good reasons to professionalise there is no guarantee that such professionalisation will occur. As Boulle (1996) notes: The established professions have a record of attempting to colonise new practices and use them to supplement their existing services. In the case of mediation, there are covetous eyes in the disciplines of law, social work, counselling, psychology, accountancy and business, all of which claim that mediation can be accommodated within their existing practices and organisations. 2. The future of professionalisation, it seems, remains indeterminate. Yet, there are forces at work seeking to overcome any anti-professionalisation trends. 3. In examining the questions of the future of mediation and its relationship to legal practice in New South Wales I will briefly discuss the nature of mediation, and outline more recent attempts by some legal practitioners to dominate mediation. Interestingly, as long ago as 1991 the relevant issues for the professionalisation of mediation had been already well established.[1] 4. By 1998 we have yet to see mediation absorbed by law or emerge as a profession in its own right. The forces that influence law's domination of mediation are both internal and external to the legal profession itself. 5. Before turning to the professionalisation of mediation the more general subject of the professionalisation will be addressed. Scimecca (1991) writing about the emergence of conflict resolution as a profession argues that there are three traits differentiating a profession from an occupation - 1) prolonged specialised training in a body of abstract knowledge, 2) a sense of service and 3) acceptance by the general public. 6. Hughes (cited in Macdonald 1995: 6) argues that the more compelling question concerns not what constitutes a profession, but rather the circumstances that lead to professionalisation. Daniel (1998) explains professionalisation as constituting the strategy through which an occupation gains exclusive, or near-exclusive, control over a body of esoteric, abstract knowledge and obtains entitlement to use that knowledge. Daniel (1990:45) also notes that the traits approach "...has given way to an historically informed focus on the process of professionalisation. This approach takes the dynamics of professionalisation as the key to understanding professions and their current dominance." Thus, by drawing on both those traits as outlined by Scimecca and focusing on the process of professionalisation I provide some insight into the project of mediation professionalisation and the law. What is Mediation? 7. Mediation is "...the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Mediation is a process that emphasizes the participants' own responsibility for making decisions that affect their lives." (Folberg and Taylor 1984:7-8) Typically, mediators receive very little training, usually only forty hours of hands on practice and classroom training. There are a growing number of experienced mediators (perhaps more than 200 hours of practice), but their numbers in Australia would probably not exceed one hundred. 8. Today, mediation in all of its forms is practiced throughout Australia. Mediation in Australia is represented by three broad categories of mediator, these are: 1. Lawyers Engaged in Dispute Resolution (LEADR), 2. family mediators (eg. Relationships Australia or the Family Court), and 3. non-lawyer mediators.[2] 9. LEADR provides referrals of mediators, trains would-be mediators, credentials mediators, lobbies on behalf of its membership and has an established code of ethics and practice. LEADR conducted mediations focus on a broad array of case types, including commercial, industrial relations, property, environmental, personal injury, family and native title to name a few. Not all LEADR mediators are necessarily lawyers, though most are. Centracare and Relationships Australia both practice family mediation. Typically, mediators working for these agencies have a social work or counselling background. Work in this area is increasingly recognised as being quite different from that conducted in other mediation settings. The 1996 Amendment to the Commonwealth Family Law Regulations stipulate that family mediators must have a university degree, diploma or other qualification in law, the social sciences or at least one year formal study of mediation or dispute resolution. In addition, the qualified family mediator must also have at least five days of training in mediation and have been involved in at least ten hours of supervised mediation training within a one year period. (1996 No. 71 Commonwealth Family Law Regulations (Amendment) - Reg 20, 60 (1-2)) 10. Unlike LEADR and family mediators the third category of mediators are best described as a loose collection of individuals and groups. For example, in NSW they are represented by several key organisations, including the Australian Commercial Dispute Centre (ACDC), the Community Justice Centres (CJC) and the Australian Dispute Resolution Association (ADRA). ACDC is a small but active provider of mediation training and mediation referral. ACDC is funded partly by the NSW Attorney General's Department and through their own business. Another major provider of mediation in NSW is the Community Justice Centres (CJC). The CJC's assist in resolving local and neighbourhood disputes, by utilising locally trained mediators. ADRA founded in 1987 drew board members from across the growing mediation field. (Rosemann: 87). ADRA collaborated with the Law Book Company in founding the first scholarly journal in Australia dedicated to 'dispute resolution', the Australian Dispute Resolution Journal. The Domination of Mediation in Australia 11. There has been an evolutionary process in which the legal profession has moved from questioning the usefulness of mediation to a position where mediation is largely dominated by the law. Early on lawyers and mediators were largely unknown and perhaps even antithetical to one another. Scutt (1986), for example, provides an articulate argument against the use of mediation in matters of family law. She argued "...that conciliation, counselling and mediation [in family law matters] may be dangerous concepts, denying rather than extending rights, or obfuscating the inequitable processes of dispute resolution." (Scutt, 1986: 200) Sir Gerard Brennan urged that courts not turn away from the practice of law towards mediation and other forms of ADR, such a move, he noted, "...weakens the very institution on which the orderly conduct of trade and commerce depends." (Brennan, 1990:226) 12. David (1991:3) described the relationship between mediation and law on institutional grounds writing: The legal system as it now is designed is oriented to defining the issues it will consider (through the causes of action it will recognise), to providing the method by which those issues can be presented to it and argued (the rules of pleading and evidence) and laying down the norms by which it will decide those issues (statutes and decided civil case law). It is expected that the parties and the dispute will fit into the system. She added, "In contrast, the orientation of the mediation process is to flexibility so that the process can be adapted to the individual dispute and to the parties to the dispute." (David: 4) Pears (1989: 163) noted that while many were judges and leaders within the various law societies were becoming aware of mediation that they were still a small minority. Still, "Others pay lip service to ADR [mediation] with little intention of allowing it to disturb what is for many a very comfortable and profitable status quo." Slowly, however, attitudes about mediation in the legal profession have changed. Some lawyers were being trained as mediators - no longer were law and mediation opposed to one another, in fact, there seemed to be a joining of forces. 13. By the late 1980's and early 1990's many no longer ignored mediation, increasingly many in the legal profession saw its value. Some practicing lawyers were receiving training in mediation and tried to use mediation in their practice. Increasingly, mediation and ADR were taught in law schools, including University of Technology, Sydney and Macquarie University. In late 1988 the then Attorney General, the Honourable R. Mulock tasked the New South Wales Law Reform Commission with investigating the issue of training and accreditation for mediators. This is perhaps symbolic of the legal professions' move to dominate the field of mediation. The NSW Law Society issued recommendations in 1994 calling for "Mediation and other ADR programs, court-annexed or otherwise, should continue to be set up on an experimental basis...." (Dewdney, et.al., 1994: xvii) The call for expanding mediation programs illustrates that mediation was no longer viewed quite so problematically. 14. Over the course of the 1990's the interest of legal practitioners in mediation grew markedly. Sordo (1996:29) observes: "There have been over 900 matters referred to the Law Society mediation programme alone since its inception in 1991." No longer was mediation seen as outside or antithetical to the interests of the law. Instead, many practicing law see the rightful place of mediation as being situated within their own profession. The proximity of mediation with regard to law is amply demonstrated by the work of LEADR. 15. Yet, the reality is that while law dominates the practice of mediation, it does not totally consume it. There are still a number of non-lawyer mediators currently practicing. These include family mediators, community mediators and others. Professionalisation in the Future 16. What is the future of professionalisation of mediation? The answer resides, in part, with the degree to which mediation qualifies as a profession. To return to Scimecca's criteria these are a prolonged specialised training in a body of abstract knowledge, a sense of service and acceptance by the general public. The training that is relevant for the establishment of mediation as profession, within the larger profession of law, combines both training as a lawyer and as a mediator. Mediation accreditation by LEADR consists of completion of a LEADR workshop in mediation plus assessment (workshop plus assessment totals five days), plus payment of LEADR dues. This cycle must be repeated twice within a twenty-four month period in order to maintain accreditation. LEADR is not the only body to require mediators undergo a training period. ACDC and the CJC's also require mediator training. ACDC provides an optional accreditation day at the end of their three-day training course. The CJC's require 75 hours of training over an eight-week period, along with supervised mediation training before accreditation is granted. 17. LEADR's five day training period echoes the five day period found in the 1996 Amendment to the Family Law Act. This is an essential component to position LEADR mediators as qualified to mediate in family matters. Finding the LEADR five day period echoed in legislation is consistent with other legislative entitlements granted to those in the legal profession, as well as medicine for example. Regulating who can conduct family mediation also goes to address two key issues within the law: accountability and competition. Qualification as a lawyer obviously impacts upon both competition and accountability, making education a key to entry into family mediation and bringing the whole edifice of legal professional regulation into play. Misconduct as a family mediator, if by a lawyer, is a matter for the professional governing body. 18. Five days of training hardly qualifies as prolonged training in an abstract body of knowledge. The relationship between the state and the profession of law further supports the establishment of criteria favourable to lawyers taking on the function of mediators. Of course, lawyer-mediators are not the only ones covered by the 1996 amendments to the Family Law Act. Neither are lawyer-mediators the only group of individuals mentioned favourably in legislation. CJC mediators are accredited by the Attorney General, and are trained in-house by the CJC's. (Community Justice Centres Act 1983 - Sect 11) While members of the legal profession enjoy preferential treatment in Commonwealth and NSW state legislation with regard to mediation, they are not sole recipients of such favourable treatment in Commonwealth or state legislation. 19. Perhaps in an attempt to further enhance the level of training in abstract knowledge, as well as leverage competition in the marketplace, the NSW Law Society established the status of Specialist Accreditation (SA). SA status brings with it the mark of 'expert', which may provide the holder of SA status with competitive advantage in the marketplace. SA has been established in the field of mediation among others. In 1995 a SA panel was established by the NSW Law Society with the intention of developing the competencies indicative of a specialist in mediation. 20. Scimecca (1991) and Bayles in Barker (1992) also note that professions are characterised by a sense of service. An essential component of the legal profession's service ideal is captured by pro bono work. Add to this pro bono ethos the mediation scheme run by LEADR and the Legal Aid Commission of NSW. (LEADR Brief, 1996:7) Yet, the legal profession is not alone in giving service to the community. The CJC's also provide a service to the community through the provision of mediation to the local community free of charge. 21. Scimecca's third criterion is public recognition that a profession is indeed a profession. Professor Hilary Astor of the University of Sydney Law School, holding a named chair in dispute resolution, claimed the public had a lack of information about mediation and cited an AGB McNair survey reflecting that only about 17% of the population knew what mediation is. (LEADR Brief, 1997:4) The AGB McNair poll suggests that the general public do not recognise mediation as a profession in its own right, much less do they even know what it is. While children are increasingly exposed to mediation training in peer support programs, such as those offered in many NSW schools, it has yet to make itself generally felt and it will be some time before these children mature with their understanding of mediation. 22. It would appear that the evidence in support of the professional status of mediation is not conclusive. Lawyer-mediators do go through rigorous training in abstract knowledge, but that is more allied to their status as lawyers than it is to their status as mediators. Other non-lawyer mediators, with the exception of those qualified under the 1996 Amendment to the Family Law Act, are not required to undergo anything like rigorous training in abstract knowledge. With the exception of pro bono work, as exemplified by the LEADR pro bono mediation scheme, and work by the CJC's there is little that can be characterised as 'service' in mediation. Including the CJC's work as a service component is somewhat problematic as well. After all the CJC's are legislatively required to provide free mediation service. While mediators with the CJC's are paid a small sum, it is difficult to know what their motivation is. As mediation is not a household term one cannot help but suspect that CJC mediators are 'hungry' for the business, even if poorly paid. 23. Finally, mediation is not well known. There are few people who are full time mediators, and equally there are few that understand the practice of mediation. It does not appear as if mediation is publicly understood as a profession. Ethical Review and Mediation 24. One measure of the degree of professionalisation of mediation is the existence and use of a code of ethics or practice. Greenwood as cited in Daniel (1990:35) reflects the traits school in the sociology of professionalisation arguing that the establishment of an ethical code is one of the key traits that defines a profession. Cooks and Hale (1994:60) comment that in reviewing ethical codes of mediators in the US that "The number of professional organizations that have either developed or joined other groups in subscribing to a set of ethical standards is quite large." Included in the Cooks and Hale survey were the Society of Professionals in Dispute Resolution (SPIDR), the American Bar Association, and the American Arbitration Association. In Australia there are a number of organisations that boast a code of ethics. Examples of mediation organisations that have developed a code of ethics include the NSW Community Justice Centres, LEADR, and Relationships Australia. While codes do make a benchmark against which the conduct of the mediator is measurable in some way, there is no way of disciplining mediators. Unlike law and medicine, mediators cannot be disbarred or deregistered. 25. Membership discipline of members is a key concern in the administration of a code of ethics. No organisation today, claiming to be a professional body for mediators, has the capacity to control exit and entry from the community of mediators. Boulle (1996) argues that it is this lack of community that stands in the way of the emergence of a truly professional body of mediators. By establishing a community among mediators several things become possible. Most notable among them is the development of a peak body representing mediator interests. Lewis (1997:156), past president of ADRA, has argued that: A national peak body could give accountability in numerous important respects, enhancing the quality and standards of the practice of dispute resolution, the training, continuing education and supervision of mediators and other dispute resolution providers. 26. In addition, of course, such a peak body could serve as a point of contact for consumers of mediation who may have complaints or problems to raise. More importantly, such a peak body would create the community within which debates over ethical issues could be undertaken. Conclusion 27. The tensions of professionalisation of mediation in Australia are not hard to find. The question of who is a mediator and what body of knowledge is required for practice is a troubled one. Contributing to the troubled debates is the lack of clear community among mediators - who is a member of the community and who wields power within the community continues to bedevil mediators. Underlying all of this is the troublesome matter of professionalisation. Is mediation a profession? It seems that if mediation is a profession it is mostly so because of its relationship to the practice of law. Legal practitioners already have established the legitimacy, relationship with the state and formal structures to allow for professionalisation. By co-opting the practice of mediation into law, legal practitioners can more readily facilitate the professionalisation process. In so doing, legal practitioners will come to dominate debates within mediation, and may even (though unlikely) define mediation in such a way that eradicates non-lawyer mediators. 28. This is not to say, however, that non-lawyer mediators cannot achieve some sort of professional status. It suggests, however, that to do so without the assistance of other professions will be a difficult task. The lack of a powerful national body representing all mediators also acts against the professionalisation process. As long as mediators appear divided professionalisation will be difficult to achieve. Thus, gaining that important state licence of self-regulation will be that much more elusive. Bibliography 1996 No. 71 Commonwealth Family Law Regulations (Amendment) - Reg 20, http://www.austlii.edu.au/ Astor, Hilary and Christine Chinkin, Dispute Resolution in Australia, Butterworths, Sydney, 1992. Australian Law Reform Commission, "Review of the Adversarial System of Litigation: ADR - Its Role in Federal Dispute Resolution", Issue Paper 25, June 1998. Barker, S. F., "What is a Profession?", Professional Ethics, 1992, 1(1&2): 73-99. Boulle, Lawrence, Mediation: Principles, Process and Practice, Butterworths, Sydney, 1996. Brennan, Gerard, "Professional Orientation: Business or Law?," Australian Dispute Resolution Journal, November 1990, 1(4): 225-227. Condliffe, Peter, Conflict Management : A Practical Guide, Tafe Publications, Abbotsford, Victoria, 1991. Community Justice Centres Act 1983 - Sect 11, http://www.austlii.edu.au/ Daniel, Ann, Scapegoats for a Profession, Harwood Academic, Amsterdam, 1998. Daniel, Ann, Medicine and the State: Professional Autonomy and Public Accountability, Allen & Unwin, Sydney, 1990. David, Jennifer, "Alternative Dispute Resolution - What is it?," Alternative Dispute Resolution Seminar Proceedings, edited by Jane Mugford, Australian Institute of Criminology, Phillip, ACT, 1986: 25-62. Dewdney, Micheline, Sordo, Bridget, and Christine Chinkin, Contemporary Developments in Mediation within the Legal System and Evaluation of the 1992-3 Settlement Week Program, The Law Society of New South Wales, Sydney, April 1994. Folberg, Jay and Alison Taylor, Mediation, Jossey-Bass Publications, San Francisco, 1984. LEADR Brief, "The NSW Pro Bono Mediation Scheme", Winter 1996, 6(4): 7. LEADR Brief, "The Future of Dispute Resolution in Australia," Spring 1997, 7(4):2-9. Lewis, Paul, "Editorial: Lots of Planes, but no Hangar," Australian Dispute Resolution Journal, August, 1997, 8(3): 154-157. Little, Miles, Human Medicine, Cambridge University Press, 1995. Macdonald, Keith, The Sociology of Professions, Sage Publications, London, 1995. Mediation: Current Controversies and Future Directions, Centre for Conflict Resolution, Macquarie University, Sydney, 1991. Pears, Gordon, Beyond Dispute: Alternative Dispute Resolution in Australia, Corporate Impacts Publications, Edgecliff, NSW, 1989. Rosemann, Louise, "The Birth of ADRA: Past and Future Visions", Australian Dispute Resolution Journal, May 1997, 8(2): 85-92. Scimecca, Joseph, "Conflict Resolution in the United States: An Emerging Profession?" in (eds) Avruch, Kevin, Black, Peter and Joseph Scimecca, Conflict Resolution: Cross-Cultural Perspectives, Greenwood Press, New York, 1991. Scutt, Jocelynne, "Privitisation of Justice: Power Differentials, Inequality and the Palliative of Counselling and Mediation," Alternative Dispute Resolution Seminar Proceedings, edited by Jane Mugford, Australian Institute of Criminology, Phillip, ACT, 1986: 185-212. Sordo, Bridget, "The Lawyer's Role in Mediation," Australian Dispute Resolution Journal, February 1996, 7(1): 20-30. Notes [1] See Mediation: Current Controversies and Future Directions, Centre for Conflict Resolution, Macquarie University, 1991. [2] Within each category are a myriad of sub-types, my purpose here is to focus the readers attention on the broad spread of mediator types, rather than on the detail under each heading.