11th ADR Research Network Roundtable 2023 Invitation and Draft Program

You are invited to the 11th ADR Research Network Roundtable 2023

Monday 6^th and Tuesday 7^th February 2023

The 2023 Roundtable will be held in-person at the Faculty of Law, Bond University, Robina, Gold Coast.

Please see more details of the draft program below.

There is no registration fee for the 2023 Roundtable.

Catering will be provided courtesy of Bond University’s Faculty of Law during the day. The Faculty will also coordinate an informal self-funded dinner for participants on Monday 6February close to Bond campus. Participants will be responsible for their own travel and accommodation costs.

Please register using this Eventbrite link: https://www.eventbrite.com.au/e/11th-adr-research-network-roundtable-2023-tickets-505842387197

We are delighted to announce that the 2023 ADRRN Roundtable will be an opportunity for conversation with eminent international scholars.

Professor Julie Macfarlane CM (Emerita Distinguished University Professor of Law, University of Windsor, Ontario, Canada) and Professor Sue Prince (Professor of Law, Exeter University, UK) will be presenting keynote papers on Monday 6 February with the opportunity for personal discussions with these renowned dispute resolution thought leaders.

Keynote Speaker – Professor Julie Macfarlane (Windsor)

Paper title: What ADR Research and Practice Tells Us About the Misuse of NDAs

The widespread and virtually default use of non-disclosure agreements (NDAs) in a wide range of civil settlement agreements rests on twin myths that ADR scholars and practitioners can easily explode. The first is that restricting the use of NDAs to their original purpose of protecting trade secrets and intellectual property will result in a collapse of settlement rates (consistent in common law jurisdictions for 35 years). The second is that the party who is insisting on the NDA (the defendant or their organization) will “walk” if an NDA is refused – whereas taking the matter into the public domain would be an even worse outcome for them.

The structure of NDAs requires that a victim or other plaintiff must protect the confidentiality of the perpetrator or alleged perpetrator in order to be assured their own privacy – an exchange transaction in a negotiation typically characterized by significant power imbalance. Scandals around the silencing of victims of harassment, assault, bullying, fraud and other misconduct have led legislatures around the world, including Australia, to consider restricting the use of NDAs to their original purpose, the protection of trade secrets. The Can’t Buy My Silence campaign, co-founded by Dr Julie Macfarlane and Zelda Perkins, have lobbied for legislation that has passed or is progressing in Ireland, Canada, the US and the UK.

Many mediators and arbitrators have integrated NDAs into their settlement agreements, with a template NDA clause now commonly appearing in settlement releases/ waivers. Some mediators have changed up their terms of mediation to include an indefinite NDA, rather than process confidentiality. What is the ethical and professional responsibility of the third party in this situation? And how can the ADR community educate both lawyers and the public to use confidentiality responsibly and ethically rather than as a means of  silencing victims and covering up misconduct?

Dr Julie Macfarlane has spent her adult life teaching in law schools on four continents, researching and working on progressive causes that she feels passionately about.

Julie is a Distinguished University Professor and Professor of Law (Emerita) at the University of Windsor. Julie’s first job as a law teacher was at University College, Cork (Republic of Ireland) in 1981, and then at Anglia Polytechnic University in England. Julie has also held numerous visiting appointments including at the City University of Hong Kong, the Kroc Institute of International Peace Studies at the University of Notre Dame, the University of Sydney and the University of New South Wales.

Julie grew up on the Isle of Wight and on the Sussex Downs in England. She lived in London, England, in the 1980’s where she completed her doctoral work while working as a parliamentary lobbyist to pay the bills. Learning to write speeches and legislation, and seeing change happen (or not), she caught the activism bug.

After a stint in Hong Kong where she designed a Bar Admission Program and founded a Free Women’s Legal Advice Centre, Julie moved to Canada in 1992. Support from many funders has enabled her to pursue research that tries to better understand, through lived experiences, misunderstood or ill-understood topics: from self-represented litigants to Islamic shari’a to survivors’ experiences reporting sexual harassment and violence.

Julie has received many awards for her work, including the International Academy of Mediators Award of Excellence (2005), the Institute for Social Policy Understanding Scholar of the Year Award (2012), the David Mundell Medal for Legal Writing (2016), one of Canada’s 25 Most Influential Lawyers (2017), the John M. Haynes Distinguished Mediator Award from the Association for Conflict Resolution (2017). She and the National Self-Represented Litigants Project have won multiple CLAWBIES (the Canadian legal “Oscars”!) for her blog, podcast and the project’s resources for self-represented litigants. In 2020 she was named to the Order of Canada.

Julie now writes, speaks, and lobbies on a range of social justice issues.

Keynote Speaker – Professor Sue Prince (Exeter)

Paper title: Coping with the demands of the future: the role of mediation in small claims proceedings in England and Wales

Statistical data has exposed the growing inefficiencies and lack of effectiveness of the courts at the present time, especially of lower courts dealing with small claims matters. Backlogs, the pandemic, cuts to services, the cost-of-living crisis have impacted on the user experience and led to a renewed interest in compulsory mediation. 

Greater investment in court modernisation and technology are all part of His Majesty’s Court and Tribunal Service (HMCTS) Reform Programme. This has been operating since 2016 with a view to modernising processes and practices.  One area of interest to senior policymakers is the use of Online Dispute Resolution (ODR).  This has led to the creation of Online Civil Money Claims (OCMC) process for claimants and defendants which is digital from start to finish.  Similar projects elsewhere in the world have made use of pathways and decision-trees to guide parties along an online route, which includes mediation as an integral aspect of the civil justice process.

Several government bodies and committees have reviewed the effectiveness of current processes related to low value cases.  Relevant reports on small claims (2022); pre-action protocols (2021); and ADR (2021) have all concluded that more focus should be given to increasing the use of ADR.  In the summer of 2022 the Ministry of Justice issued a formal consultation entitled ‘Increasing the use of mediation in the civil justice system’.  In this consultation the government proposed automatic referral to the HMCTS Small Claims Mediation Service, for all cases with a value of less than £10,000 (the small claims limit). 

This paper considers the role of mediation in the current small claims process and asks whether English courts are prepared for a mandatory system in the future.

Professor Sue Prince studied Law at the University of Exeter and completed her PhD in 2003. She has previously held senior University roles including Associate Academic Dean for Students, Associate Dean (Education) and Interim Head of the Law School.  She has been awarded a University Fellowship Award for Excellence in Teaching and is a Principal Fellow of the Higher Education Authority. She is the Director of the new Global Legal Education and Entrepreneurship Lab.

Sue’s research interests focus on access to justice in the civil courts looking particularly at the role of court-based mediation and compulsory mediation. She is currently involved as a consultant in the HMCTS Evaluation of the Opt Out scheme for mediation in civil cases. She has conducted a number of empirical studies of the impact of mediation in the courts for bodies such as the Civil Justice Council and the Ministry of Justice. Sue has published on the topic of mandatory mediation in Canada and has researched and published on mandatory projects in Florida and also in New Orleans after Hurricane Katrina.  She was a member of the Civil Justice Council Advisory Group on ODR led by Professor Richard Susskind, set up to explore the role that Online Dispute Resolution can play in resolving civil disputes in the courts. The initial report was published in February 2015 and has had huge impact on the development of the online courts in England and Wales. Sue was a member of the JUSTICE group on Preventing Digital Exclusion which published its Report in 2018. She has presented on the subject of ADR at the OECD and as part of the ADR Research Network in New Zealand.

Sue is currently on the panel of the national Law Society Learning and Development Steering Group with responsibility for learning design.  She is also working with LawTechUK, a branch of TechNation on the development of start-ups for law students.

DRAFT PROGRAM

Monday 6 February

9:30am-9:45am                                   Welcome and opening

9:45am-11:15am                                 Keynote: Julie Macfarlane (Windsor)

11:15am-12:00pm                               Claire Holland and Judith Rafferty (JCU)

12:00pm-1:00pm                                Lunch

1:00pm-2:30pm                                   Keynote: Sue Prince (Exeter)

2:30pm-3:00pm                                   Break

3:00pm-3:45pm                                   Jennifer Hurley (RMIT)

3:45pm-4:30pm                                   Dorcas Quek Anderson (SMU)

Tuesday 7 February

9:30am-10:15am                                 Lola Akin Ojelabi and Alysoun Boyle (RMIT)

10:15am-10:45am                               Break

10:45am-11:30am                               Nadja Alexander (SMU)

11:30am-12:15pm                               Kathy Douglas (RMIT)

12:15pm-1:15pm                                 Lunch

1:15pm-2:00pm                                   Laurence Boulle (Bond)

2:00pm-2:45pm                                   Emily Schindeler (Griffith)

2:45pm-3:15pm                                   Break

3:15pm-4:00pm                                   Craig Jones (QUT)

4:00pm-4:30pm                                   Closing and future plans

We very much look forward to welcoming you to Bond University for the 2023 ADR Research Network Roundtable!

Professors Jonathan Crowe and Rachael Field, Bond University Faculty of Law

2023 ADR Research Network Co-Presidents and Roundtable Convenors

You are invited to the 11th ADR Research Network Roundtable 2023

Monday 6^th and Tuesday 7^th February 2023

The 2023 Roundtable will be held in-person at the Faculty of Law, Bond University, Robina, Gold Coast.

There is no registration fee for the 2023 Roundtable.

Catering will be provided courtesy of Bond University’s Faculty of Law during the day. The Faculty will also coordinate an informal self-funded dinner for participants on Monday 6 February close to Bond campus. Participants will be responsible for their own travel and accommodation costs.

Please register using this Eventbrite link: https://www.eventbrite.com.au/e/11th-adr-research-network-roundtable-2023-tickets-505842387197

We are delighted to announce that the 2023 ADRRN Roundtable will be an opportunity for conversation with eminent international scholars.

Professor Julie Macfarlane CM (Emerita Distinguished University Professor of Law, University of Windsor, Ontario, Canada) and Professor Sue Prince (Professor of Law, Exeter University, UK) will be presenting keynote papers on Monday 6 February with the opportunity for personal discussions with these renowned dispute resolution thought leaders.

Keynote Speaker – Professor Julie Macfarlane (Windsor)

Keynote Speaker – Professor Sue Prince (Exeter)

Details of the draft program are to follow soon.

We very much look forward to welcoming you to Bond University for the 2023 ADR Research Network Roundtable!

Professors Jonathan Crowe and Rachael Field, Bond University Faculty of Law

2023 ADR Research Network Co-Presidents and Roundtable Convenors

Sovereign Citizens, Violence, and Native Title

Pascale Taplin and Claire Holland

Pascale Taplin is an anthropologist with over twenty years’ experience in community-led development projects and native title research in the Northern Territory and North Queensland. Pascale’s current research interests include disinformation and Australian conspiracist communities.

Claire is a Senior Lecturer and Director of the Conflict Management and Resolution Program at James Cook University.  She is a practicing mediator, conflict coach, workplace facilitator, and conflict management trainer. Her research interests include mediation and conflict resolution processes, interfaith dialogue, coaching and capacity building.

Photo by Markus Winkler on Unsplash

Recent media around the tragic shooting of two police officers and a civilian in Wieambilla South-West Queensland suggests that the perpetrators subscribed to anti-State Conspiracy theories (sometimes called “Sovereign Citizen” beliefs). Scholarship on the Sovereign Citizen narrative in America clearly demonstrates that these narratives cause social harm and can lead to violence. For example, Sarteschi (2021) in a narrative review with implications of violence towards law enforcement plots 74 instances of violence, many fatal, perpetrated by Sovereign Citizens against American law enforcement officers between 1983 and 2020.

In relation to the tragic events in Wieambilla, Joanne Grey, a scholar with the University of Sydney, is reported as saying that research suggests that people who have a distrust of institutions and are looking for someone to blame, may be more vulnerable to conspiracy theories (Baker, 2023). Elements of conspiracy theories are often adopted into the narratives of individuals who feel persecuted or harmed by governments or legal systems, as they may provide ‘victimhood narratives’ to explain perceived persecution or harm. This blog will highlight a current example of conspiracy narratives in the native title sector. With increasing numbers of people being drawn into anti-State and Sovereign Citizen conspiracy beliefs, it is critical that there is increased investment into understanding the societal drivers of these narratives.

Conspiracy Narratives and Native Title

Anecdotal evidence from native title practitioners suggests that Sovereign Citizen narratives are becoming increasingly common in the native title sector. Anti-State and conspiracist thinking disrupts the progress of native title claims by casting native title practitioners as agents of an evil, illegitimate corporation posing as government, thus introducing additional conflict, fear, and distrust to native title consultative processes. A forthcoming short reflection paper in press with the Dispute Resolution Review will explore what may drive claimants to bring conspiratorial beliefs to native title discussions, and the responses of practitioners and agencies of the State to such beliefs.

My friend is a dignified old fellow in his 80s, with carefully considered and warm old-fashioned manners. He grew up on a mission in North Australia, where he suffered abuse as a child. He speaks of the mission as a local arm of a far-reaching “Government” or “State” and the forced removal of First Nations people as calculated to enable the theft of their countries. After the National Apology, he formed a view that the government had found compassion for First Nations people and wrote a letter to the Queensland Premier describing the state sanctioned abuse he had survived. The Premier did not reply, or acknowledge receipt of, his letter.

Now my friend holds to a different set of beliefs. He says he is not an Australian citizen – which explains the lack of response from the Premier. My friend believes he is a “Sovereign Citizen” or a “SovCit”, under no obligation to observe Australian Law. He believes all government funded employees – including me – work for an illegitimate corporation which has run out the real Australian Government and is now intentionally conning him and all Australians for profit. In his view, he has discovered “the Truth”.[1]

The Sovereign Citizen (SovCit) movement, has been described by the Anti-Defamation League (2012) as among “…the most problematic domestic extremist movements in the United States”, and which counts among its founders white supremacists and violent extremists. SovCits thinking originated in the US, but is now transnational, having provided some impetus for the Australian “Freedom Rally” or “Canberra convoy” to Old Parliament House in February (Roose, 2022).

Any relationship to the longstanding Indigenous sovereignty movement in Australia is very recent, and in our view is not benign. Jack Latimore (2022) in an article in the Age says that alt-right SovCit actors co-opt Indigenous agendas, and have attempted a calculated “hostile takeover” at the Tent Embassy. Latimore calls the deliberate use of emotive political phrasing to capture Indigenous audiences “Blackfishing”.

In the reflection paper “Contextualizing belief in conspiracy theories: A case study in Native Title” Taplin will argue, that rather than acknowledging First Nations’ sovereignty and on that basis entering into inclusive dialogue about recognition, native title keeps structural power, including the power to judge certain types of cultural legitimacy in the hands of ‘experts’ in positions of authority. In this way, the native title claim process arguably perpetuates historical policies of State coercion and control. This birds-eye view exposes the structural issues that lead to disillusionment, and thus may make people vulnerable to conspiracist thinking. Taking a close-up view, Taplin speculates that the uptake of belief in conspiracy theories may be in part, a function of individual responses to those structural issues. She further argues that in the land rights / native title space, seeded from epistemic mistrust, belief in conspiracy theories fills the gap between the intention and the reality of the land rights movement in Australia.

Some of the native title practitioners Taplin has worked with trivialize claimant-come ‘bush lawyers’ who expound Sovereign Citizen narratives. Some give these people short shrift as a lost cause, at the same time disregarding the legitimate complaints that may well seed the issue. This is not a helpful response, and further alienates practitioners from clients. This only increases the risk of social harm. There are systemic drivers lending momentum to the uptake of conspiracy theories.

Conspiracy Narratives and Violence

In an analysis of the relationship between belief in conspiracy theories and violent extremism, Basit (2021) observes that both conspiracy communities and violent extremist groups narrate “… an ‘us versus them’ world view where a sharp in-group and out-group distinction, punctuated by distrust and polarization, exists”, and further that “conspiracy theories are linked to threat perception, prejudices and negative attitudes about powerful outgroups.” Unfortunately, the recent police and citizen killings in South-West Queensland demonstrate the potential for violent action to stem from Sovereign Citizen narratives in Australia. Until now, Australia had been relatively unaffected by radicalized, violent Sovereign Citizens. The question moving forward is how do Native Title practitioners, and other stakeholders, engage with Sovereign Citizen beliefs.

Learning how to manage, negotiate and/or navigate through multiple worldviews is increasingly going to be an essential skill for police and practitioners working across fraught legal, cultural, and historical contexts. Further research is required for a deeper understanding of the phenomena of Sovereign Citizen conspiracy beliefs in Australia. A practice note is forthcoming: Taplin, P (2023, in press) Contextualizing belief in conspiracy theories: A case study in Native Title, Dispute Resolution Review, (2), p 1-11, and a research project on contemporary issues in dealing with Sovereign Citizen narratives and conspiracy theories in Native Title anthropology is currently underway.

For engagement with the authors, please email pascale.taplin@outlook.com

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[1] Extract from upcoming publication, Taplin, P (2023, in press) Contextualizing belief in conspiracy theories: A case study in Native Title, Dispute Resolution Review, (2), p 1-11.

REFERENCES

The lawless ones: The resurgence of the sovereign citizen movement. (2012). Anti-Defamation League ADL100 Special Report. (2nd ed.) https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/Lawless-Ones-2012-Edition-WEB-final.pdf

Barker, J. (2023, December 13). As a principal, he was feted for his success. Now he’s linked to two police killings. Sydney Morning Herald. https://www.smh.com.au/national/queensland/as-a-principal-he-was-feted-for-his-success-now-he-s-linked-to-two-police-killings-20221213-p5c601.html

Basit, A. (2021). Conspiracy Theories and Violent Extremism. Counter Terrorist Trends and Analyses, 13(3), pp.1-9.

Latimore, J. (2022, January 8). ‘Blackfishing’: Alt-right pushes to co-opt Aboriginal Tent Embassy to cause. Sydney Morning Herald. https://www.smh.com.au/national/blackfishing-alt-right-pushes-to-co-opt-aboriginal-tent-embassy-to-cause-20220105-p59lzj.html   

Roose, J. (2022, February 15). How ‘freedom rally’ protesters and populist right-wing politics may play a role in the federal election. The Conversation https://theconversation.com/how-freedom-rally-protesters-and-populist-right-wing-politics-may-play-a-role-in-the-federal-election-176533

Sarteschi, C.M. (2021) Sovereign Citizens: A narrative review with implications of violence towards law enforcement. Aggression and Violent Behavior (60)https://doi.org/10.1016/j.avb.2020.101509

Call for Papers: 11th ADR Research Network Roundtable 2023

MONDAY 6^th and TUESDAY 7^th FEBRUARY 2023

IN PERSON at BOND UNIVERSITY FACULTY OF LAW, ROBINA, GOLD COAST

There will be no registration fee for the 2023 Roundtable. Catering will be provided thanks to Bond University Faculty of Law. Participants will be responsible for their own travel and accommodation costs.

CALL FOR PAPER PROPOSALS

The 11th Annual Research Roundtable of the Australasian Dispute Resolution Research Network (ADRRN) will be hosted by the Bond University Faculty of Law at Bond University on the Gold Coast on Monday 6^th and Tuesday 7^th February 2023.

ADRRN Roundtables provide a collaborative and supportive research environment for work-shopping papers-in-progress.

The ADRRN is now calling for papers for the 2023 Roundtable. Paper proposals of no more than 300 words should be submitted via email to adrresearchnetwork@gmail.com by 2 December 2022. Presenters will have the option of submitting – prior to the Roundtable – a full draft of the paper for peer commentary. All presenters are invited to publish a 1000-word blog post on the ADRRN Blog at https://adrresearch.net/ after the Roundtable.

Paper proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective are welcome. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. The focus is on work in progress so usually papers should not have been published or submitted for publication.

The date for notification of acceptance is 16 December 2022. Presenters who are seeking peer commentary on a full draft of their papers should submit the full paper by 10 January 2023 (to allow commentators a month to review). 

About the Australasian Dispute Resolution Research Network:

The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to support emerging, mid-career and established scholars to build excellence in the field and provide collegial peer support.

Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.

Network activities include maintaining the ADR Research Network blog at www.adrresearch.net and on Twitter and conducting annual scholarly round tables of work in progress since 2012. Guest blog post proposals are always welcome. Feel free to contact us if you have something to post.

As we don’t like hierarchies or unnecessary administration, we don’t have any membership list or legal organisational framework. The way to become a member of the ADR Research Network is to subscribe to the blog: https://adrnetwork.wordpress.com/. This is our primary means of communication. Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity are through Facebook “ADR Research Network” and Twitter @ADRResearch, but engagement on these platforms is not necessary to keep track of blog activity.

If you have any questions or require further information please contact us at adrresearchnetwork@gmail.com or rfield@bond.edu.au and jcrowe@bond.edu.au.

We look forward to gathering as a Network and sharing our work-in-progress in February 2023.

Jonathan Crowe and Rachael Field

2023 ADR Research Network Co-Presidents and Roundtable Conveners

NMAS Review 2022 – Findings and Recommendations now available

Following the recent media statement from the Mediator Standards Board (MSB), Resolution Resources are pleased to announce that the MSB has released the findings and recommendations from the independent review of the National Mediator Accreditation System (NMAS Review 2020-22). The report is now available on the MSB website and the NMAS Review Hub.

The purpose of the review was to:

• Evaluate the effectiveness of the NMAS
• Consider what changes and additions need to be made to it. For example, changes and additions may incluse (subject to feedback received):
  • Consideration of the inclusion of conciliation or other DR processes into the NMAS; and
  • Provisions that take account of Aboriginal and Torres Strait Islander mediator needs and requirements.
• Situate the NMAS in a domestic and international context
  • Including reviewing comparative international regulatory dispute systems

Following consultation, research and analysis, the NMAS Review team has made three (3) overarching recommendations and 10 targeted recommendations. (See NMAS Review Findings and Recommendations for further explanation, rationale and findings prompting each recommendation.)

The NMAS Review Findings and Recommendations and supporting materials, including the Draft Code, were submitted to the MSB for consideration June/July 2022. The Draft Code contains the proposed revisions to the NMAS, including an expanded training and accreditation framework, revised professional practice standards, as well as guidance on the administration of the Code and complaints handling.

In the statement, the MSB ‘has resolved to commit further resources to preparing short-, medium- and long-term responses to the Review. These will include clear transition periods for individuals and organisations that may be affected.

Christopher Boyle, the MSB Chair, has said “until threshold decisions have been made, it would be premature and distracting to engage in discussions about details of how recommendations might be implemented.” ‘The Board will continue engaging with the community’ and a ‘process of active engagement will be announced by the MSB in the coming months.’ The Board is not seeking feedback at this stage.

We look forward to sharing the supporting materials on the NMAS Review Hub in the coming months.

OVERARCHING RECOMMENDATIONS

‘The outcome of Recommendation 1 will establish the parameters and requirements for implementing Recommendations 2 and 3.

‘The original intention of the NMAS was as ‘a voluntary industry and self-regulated accreditation scheme’. In keeping with this’, we ‘have drafted a voluntary industry code (The Draft Code) modelled on the ACCC guidelines for developing an industry code. It restructures the existing NMAS to provide a coherent framework that articulates the modifications and changes arising from the consultation.’

‘The Draft Code is designed to meet each element of the review’s brief and includes commentary throughout the document. It also provides options for an expanded application to accommodate a variety of non-determinative dispute resolution (NDR) practitioners, specifically family dispute resolution practitioners (FDRPs), conciliators and the potential for First Nations mediators.’

‘The existing NMAS Practice and Approval Standards have been assimilated into the Draft Code’s training and accreditation framework (TAF). It also incorporates modifications and changes arising out of the NMAS Review.

‘The TAF provides a framework that provides a pathway from graduate to advanced practitioner status. It also provides scope for an expanded application to accommodate a variety of non-determinative dispute resolution (NDR) practitioners, specifically family dispute resolution practitioners (FDRPs), conciliators and the potential for First Nations mediators.’

TARGETED RECOMMENDATIONS

MEDIATION AS A PROFESSION

Findings
‘Despite community sentiment and the language often used, mediation does not currently possess all that is required to legitimately call itself a profession. E.g., it must have proven its ‘self-regulatory capacity – and been recognised by the combined Australian governments.

‘Consultation revealed that for a large proportion of mediators, it is a low-paid, insecure and low-demand industry that is difficult to enter. Complicating matters further, there do not appear to be professional bodies or associations that represent or advocate on their behalf.’

SHARED UNDERSTANDING OF THE NMAS

Findings
‘Although the MSB and the NMAS is a respected brand, there is a lack of clarity and understanding in relation to:

• NMAS structure, nomenclature and terminology
• MSB’s role, particularly oversight and support
• Expectations for training, accreditation and development of practice

‘Based on the above, there is a risk that:

• The purpose of the NMAS which is to promote ‘quality, consistency and accountability of NMAS accredited mediators within the diversity of mediation practice in Australia’ is undermined and
• The NMAS may fall short of serving as a document that ‘informs participants in mediation (participants) about what they can expect of an NMAS accredited mediator.’

COMPLAINTS HANDLING

Findings
‘The existing complaints system does not meet the expectations of the community, as is not integrated, does not account for the entire system and does not provide an avenue for independent review.’

LIMITATIONS OF THE NMAS

Findings
‘The NMAS was pioneering and is held in high regard for the vital role it has played in the development of mediation in Australia. The current review draws heavily on its strong foundation, yet consultation has revealed that, over time, it now has a number of limitations.’

POTENTIAL INCLUSION OF CONCILIATION AND FDR

Findings
‘If conciliation and other DR processes are to be included in the NMAS, it must:

• Account for practitioners under co-existing schemes. E.g FDRPs
• Acknowledge that the conciliation community has shown interest in a conciliator accreditation system.
• Recognise a variety of practice and specialisation

‘Consultation revealed significantly more similarities than differences across NDR practice.’

CONSIDERATION OF PROVISIONS THAT TAKE ACCOUNT OF
ABORIGINAL AND TORRES STRAIT ISLANDER NEEDS AND
REQUIREMENTS

Findings
‘First Nations individuals, organisations and communities possess invaluable lived expertise that cannot be bought or earned. Those engaging in follow-up or further work must recognise this by centring self-determination. This means that First Nations individuals with expertise in working with communities on a national level, must lead all processes to ensure community voices are centred.

‘To achieve meaningful and effective consultation with First Nations individuals, organisations and communities, it is essential to develop or work with frameworks specifically designed to engage with First Nations people and/or people experiencing overlapping marginalisations.

‘In recognition of the diverse knowledges, strengths and needs of First Nations people, consultations must be paid and organised to include flexibility as to both timing and methodology, as well as scope to adapt processes as needed throughout the process.’

DIVERSITY AND INCLUSION

Findings
‘There is an increasing awareness of the importance of diversity and inclusion (D&I) across all industries. Despite best intentions, some attempts to account for D&I are ill-conceived or inappropriate. Mediation is no different, and consultation revealed a wide range of concerns related to D&I, including:

• Diversity on the MSB
• D&I considerations in the NMAS are narrow
• Accessibility in relation to training and the provision of services’

SITUATING THE STANDARDS

Findings

• The DR community exists beyond Australia and some considerations are worthwhile exploring to ensure the NMAS has global currency.
• Australia is a signatory of the Singapore Convention.
• There is international appetite to profesionalise the mediation industry.
• Australia makes a distinction between mediation and conciliation processes. Internationally, this difference is not as distinct and the terms are ‘interchangeable’ in some contexts.

Next steps

The international peer review process is underway, and Resolution Resources will provide this additional feedback to the MSB one all submissions are received.

The MSB will keep the community informed of the next steps.

We wish to acknowledge and thank everyone who contibuted to the consultation over the life of review. While it was challenging to capture the perspectives of such a diverse community, we trust that you see will yourselves in the recommendations.

Danielle Hutchinson and Emma-May Litchfield

Resolution Resources

Annual Research Grant Call 2022: Mediator Standards Board

The Mediator Standards Board invites interested parties to submit a research proposal for the award of its Annual Research Grant (ARG).   The ARG shall be for proposals up to the total value of $50,000. 

INFORMATION FOR PROPOSERS: :  https://msb.org.au/themes/msb/assets/documents/MSBARGProposal_Call_2022.pdf.

CONTACT FOR FURTHER INFORMATION: enquiries are to be directed, in the first instance to:  Ms Jenny Watson, Secretariat Officer, Mediator Standards Board.

Email:  info@msb.org.au   Telephone:  61 3 9005 1903

The call for proposals closes at 2.00 pm on 15 July 2022 electronically by email to Ms Jenny Watson at info@msb.org.au. 

The NMAS Review May 2022 update: consultation complete

The NMAS Review team at Resolution Resources has now completed our consultation phase of the independent review of the National Mediator Accreditation System (NMAS Review) and is currently preparing recommendations for the Mediator Standards Board (MSB).

We wish to extend a sincere thank you to everyone who participated in the NMAS Review Survey in March. As we said previously, ‘participating in a survey of this type is a demanding task that requires deep reflection. It is rigorous and complex’ and ‘might be one of the most challenging surveys the DR community has ever seen.’ ‘However, we think the community is up to the challenge.’

And you were!

The data are rich with consistent themes, and we are busily analysing them with our psychometricians to ensure we make robust, evidence-based recommendations to the MSB.

The NMAS Review Survey was the last step of a five-stage consultation process. We want to take the opportunity to acknowledge and thank everyone who contributed to the various stages of consultation. As we know, the DR community is diverse, and the practices within it are varied. While it was challenging to capture the perspectives of such a broad church, we hope that you see yourselves in the recommendations.

NMAS Review consultation process

Over the life of the review, we were able to gather input from different sources, including the existing NMAS, working groups, surveys, and current research. We also collected input over multiple points in time so that every consultation stage served to inform the next.

This combination resulted in each stage building cumulatively to provide a solid foundation upon which to base the recommendations. For example, in the NMAS Review Effectiveness Survey (Stage 3), people told us about their style of practice. The findings from the Effectiveness Survey (see Part 4 – Effective Survey Report coming soon) prompted us to undertake a deeper investigation into practice via the NMAS Review Survey (Stage 5).

What comes next?

The NMAS Review team at Resolution Resources will complete its role by:

• delivering its recommendations to the MSB at the end of June 2022; and
• facilitating the international peer review it has recommended to the MSB.

For more information on the NMAS Review, please visit the NMAS Hub.

Link to NMAS Review Hub

Emma-May Litchfield and Danielle Hutchinson

NMAS Review Team — Resolution Resources

Tima Walker: ADR Research Network 10th Annual Roundtable 2022

Tima Walker (Bond University) discusses her paper on ‘The Enforceability of International Dispute Resolution Mediation Agreements’ with members of the Australasian Dispute Resolution Research Network.

Joanne Burnett: ADR Research Network 10th Annual Roundtable 2022

Joanne Burnett (Southern Cross University) discusses her paper on ‘What Is “Good” Practice Addressing Family Violence in Family Law Mediation?’ with members of the Australasian Dispute Resolution Research Network.

Claire Holland and Dr Judith Rafferty: ADR Research Network 10th Annual Roundtable 2022

Claire Holland and Dr Judith Rafferty (James Cook University) discuss their paper on ‘A Case for Conflict Engagement’ with members of the Australasian Dispute Resolution Research Network.