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

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