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.
We welcome your thoughts and comments about the Reports!
a. NMAS Effectiveness Survey Report – Part 3
What have we learned so far?
Part 1 of the Report provides insight into who participated in the survey.
Part 2 of the Report provides insight into whether mediators perceive the National Mediator Accreditation System (NMAS) as helpful in relation to six contexts.
Part 3 of the Report drills down even further into these contexts, and analyses them against four factors:
the mediator’s primary area of practice (type)
years of experience
Findings from the Part 3 indicate it has become ‘evident that some of these factors may indeed shape mediators’ perceptions of the NMAS’. In response to the main themes arising from the findings, Part 3 also includes six preliminary recommendations, signalling potential priorities for the MSB or its member organisations (MSB Orgs).
Here is a sample of the findings and recommendations contained in Part 3:
1. ‘Commercial mediators, conciliators and civil mediators are more likely than other types of mediators to perceive the NMAS as helpful’. This is surprising considering ‘community mediators, the group often most closely associated with facilitative mediation as described in the NMAS, were not as consistent or as positive as what some may have expected. For example, some may find it surprising that, while the numbers were small (8%), they, like FDRPs, reported the highest proportion of mediators labelling the NMAS as not helpful in connection to training and accreditation.’
RECOMMENDATION: ‘Identify ways to maximise the NMAS’s capacity in guiding everyday practice and promoting/developing mediation services irrespective of mediator type, level of experience or age.’
2. ‘The amount of time in practice or years of experience (YE) played a role in how mediators perceived the NMAS, with a number of statistically significant differences observed between YE groups regarding promoting and developing mediation services, promoting mediator credibility and promoting mediation as a profession.’
‘Notably, many of these differences centred around comparisons to the responses of mediators with 25–28 YE. This group reported the highest proportion of ‘very helpful’ responses in five of the six contexts.’
‘Curiously, these sentiments were often not reflected in the adjacent YE groups, prompting the question, “Was there a major change or event between 1993 and 1996 that may shed light on this group of mediators?”’. Part 3 of the Report makes the connection ‘that this period saw quite a surge in ADR-related reforms, including the establishment in 1995 of the National Alternative Dispute Resolution Advisory Council (NADRAC)’.
Interestingly, ‘mediators with 17–20 YE had the highest proportion of respondents labelling the NMAS as helpful in developing services, participating in CPD, promoting mediator credibility and promoting mediation as a profession.’ ‘Again, the corresponding period between 2001–2004 coincided with the release of several seminal NADRAC papers, including ‘A Framework for ADR Standards’ (April 2001)‘.
The report states that ‘while correlation is not causation, it would seem remiss not to acknowledge the correlation between these pivotal moments in ADR and’ the ‘statistically significant’ findings, ‘as they are likely to be representative more broadly’.
RECOMMENDATION: ‘Celebrate the ongoing legacy of NADRAC and its potential role in shaping how many mediators perceive the NMAS today.’
3. ‘There was minimal variation between genders and no statistically significant findings. This suggests that gender is unlikely to influence whether the NMAS was perceived as helpful across the given contexts.’
RECOMMENDATION: ‘Acknowledge that gender appeared to play almost no role in mediators’ perceptions of the NMAS’s helpfulness.’
The Effectiveness Survey was conducted in March 2021. The purpose of the survey was to ascertain the extent to which MSB member organisations and mediators perceive the NMAS Standards to be helpful. It was also an opportunity to gather data about the mediation community, some of which informed design the recent NMAS Review Survey.
The Effectiveness Survey Report will be released in four parts:
To review the complete summary of findings and recommendations, we invite you to read Parts 1, 2 and 3 of the Effectiveness Survey Report – available to download now on the NMAS Review Hub. The MSB is also releasing findings on their LinkedIn page and website. Follow them for more updates.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. We invite everyone in the DR community to visit regularly and/or subscribe to receive news updates and information about the upcoming NMAS Survey!
The NMAS Review Team
Emma-May Litchfield and Danielle Hutchinson
 Such as the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW); For more information in reforms during this time see Tom Altobelli, ‘Mediation in the Nineties: The Promise of the Past’ (2000) 4 Macarthur Law Review 103.
The NMAS Review Team are pleased to announce that the NMAS Review Survey is now open from 14 February – 4 March 2022.
The NMAS Review Survey is the important final stage of our consultation process for the current review of the National Mediator Accreditation System (NMAS). The Mediator Standards Board (MSB) will conduct further consultation in response to the recommendations arising out of the review.
This survey is designed for the entire dispute resolution community. We need your help to extend the invitation to people or organisations in your network. With your support, this survey has the potential to be one of the largest data gathering processes of its kind ever attempted in Australia, and will make an important contribution to the field of industry-based research into dispute resolution.
As academics, we all know that the the more people who answer the survey the more robust the data will be. We want all stakeholders to be represented — practitoners, organisations, academics, users — anyone with an interest in dispute resolution can make a valuable contribution. Consider distributing the invitation to your students who are participating in ADR subjects, members of committes (e.g. ADRAC, The Alernative Dispute Resolution Committee, etc.) lawyers who work with mediators, other academics, mediators and other non-determinative dispute resolution practitoners.
What is in the survey?
The NMAS Review Survey considers the current Approval and Practice Standards for NMAS accredited mediators (the Standards), the technical and structural elements of the NMAS (the System), as well as other areas for further investigation that have arisen from consultation so far.
The survey was developed in response to consultation and designed using a well-established methodology for the development of standards. Analysis of the survey will inform recommendations made to the MSB in relation to the review of the current NMAS.
The survey is made up of two parts:
Part 1: The Professional Practice Standards
Everyone who participates in the survey is asked to complete this section. It will take approximately 60 minutes to answer all of Part 1.
Part 2: The Approval Standards and System
We encourage everyone to complete this section. MSB Member Organisation hold specific responsibilities under the NMAS and will be automatically directed to complete both Parts 1 & 2. All other participants will be given the option to complete Part 2. It will take approximately 30 minutes to complete.
We anticipate that you may have questions. The NMAS Review Survey may look unlike any survey you have completed before — and there are several reasons for this.
For FAQs and a recording of recent NMAS Review Survey Information Session hosted by Mediation Institute, please visit NMAS Review Survey FAQs.
Thank you all for your support with the NMAS Review.
We will open the survey to the entire dispute resolution (DR) community and others with an interest in the future of mediation. With your support It has the potential to be one of the largest data gathering processes of its kind ever attempted in Australia.
You may notice that the survey is a little different from surveys you may have completed in the past. We think the DR community is up to the challenge, however, this might be one of the most challenging surveys our community has ever seen.
The questions are asked in a specific way using a well-established methodology for the development of standards. Participating in a survey of this type is a demanding task that requires deep reflection. It is rigorous and complex, perhaps unexpectedly so, as it examines all the information from the current NMAS — both the NMAS Standards and the System — as well as some questions that have emerged from our consultation with the DR community so far.
What we want from you
What we are asking of you is really important. The Mediator Standards Board (MSB) has recognised how valuable participating in this research is, by endorsing an hour of CPD for those who participate. We hope that by sharing this with you early you can be prepared to put time aside to complete the survey.
Every voice counts.
Please consider who else you might wish to share this post with to spread the message as widely as possible. With your help, the invitation to participate in the survey can be extended to thousands, including mediators, other non-determinative DR practitioners such as conciliators and FDRPs, community and other organisations, government bodies, academics — the list goes on.
We know from running previous surveys that results are impacted when a group is unrepresented in the data. For example, in the NMAS Effectiveness Survey, judge mediators as a group were under-represented and, as a consequence, we could not include them in comparative analysis with other types of mediators. What a missed opportunity!
The NMAS Review Team wishes to thank everyone involved for their generosity and valuable contribution to the consultation process so far. It has helped us to develop and refine the main part of the consultation — NMAS Review Survey. Contributors include:
29 Reference Group members
50 Workshop participants
600 participants in the Effectiveness Survey
46 people volunteered to pilot the NMAS Review Survey
The NMAS Review is an independent process, however, we would also like to acknowledge and extend our thanks to the MSB, in particular those on the NMAS Review sub-committee, for their support through this process.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. It includes reports, videos, resources, news updates, background information and more. We invite everyone in the DR community to visit and/or subscribe to receive updates or for a link to the NMAS Review Survey once released.
Emma-May Litchfield and Danielle Hutchinson
Leading the NMAS Review Team
If you are an NMAS accredited mediator, we have been advised by the MSB that you can collect one CPD point for completing this survey under Section 3.5 of the NMAS. Please contact your RMAB for clarification.
We welcome your thoughts and comments about the Reports!
a. NMAS Effectiveness Survey Report – Part 2
What have we learned so far?
Part 2 of the Report provides insight into whether mediators perceive the National Mediator Accreditation System (NMAS) as helpful in relation to six contexts:
All ‘helpful’ responses
% all mediators
Promoting mediator credibility (Survey Q64)
Training & accreditation (Survey Q65)
Promoting mediation as a profession (Survey Q66)
Participating in CPD (Survey Q67)
Guiding everyday mediator practice (Survey Q68)
Promoting or developing mediation services (Survey Q69)
In response to the main themes arising from the findings, Part 2 also includes six preliminary recommendations, signalling potential priorities for the MSB or its member organisations (MSB Orgs).
Here is a sample of the findings and recommendations contained in Part 2:
1. ‘Overall, the NMAS was perceived as helpful. Importantly, MSB Orgs and mediators agree that the NMAS is most helpful in relation to promoting mediator credibility. This is a tremendous endorsement of everyone involved in the development and implementation of the NMAS, especially those who, from the outset, recognised the nexus between the quality of ADR services and community confidence in ADR.’
RECOMMENDATION: ‘Celebrate those who have contributed to the development and implementation of the existing NMAS.’
2. ‘When asked about how often they refer to the NMAS, specifically Part II Approval Standards and Part III Practice Standards, MSB Orgs reported referring to them more often than mediators. This was particularly so in relation to initial accreditation, where 26% of mediators reported never referring to the Approval Standards.’
‘Despite less than 2% of mediators reporting zero years of accreditation, 9% of mediators suggest they never refer to the Approval Standards in relation to reaccreditation requirements, and 11% report never referring to the Practice Standards in regard to competency and practice requirements.’
RECOMMENDATION: ‘Investigate ways to maximise mediator perceptions of NMAS helpfulness, including ways to promote mediator engagement with the NMAS, particularly the Approval and Practice Standards.’
3. ‘When referring to the NMAS Standards, It has become apparent that mediators and Member Orgs often mean the system as a whole. This confusion has the potential to have a negative impact — particularly given its use as a public-facing document and reference point within the intake process.’
RECOMMENDATION: ‘Clarify the existing nomenclature to ensure the distinction between the NMAS — which covers the entire accreditation system, including the responsibilities of the MSB and MSB Orgs — and the Standards, which describe the approval and practice requirements for mediators.’
The Effectiveness Survey was conducted in March 2021. The purpose of the survey was to ascertain the extent to which MSB member organisations and mediators perceive the NMAS Standards to be helpful. It was also an opportunity to gather data about the mediation community, some of which now informs the design of the upcoming main NMAS Survey. The Effectiveness Survey Report will be released in four parts:
To review the complete summary of findings and recommendations, we invite you to read Parts 1 and 2 of the Effectiveness Survey Report – available to download now on the NMAS Review Hub. The MSB is also releasing findings on their LinkedIn page and website. Follow them for more updates.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. We invite everyone in the DR community to visit regularly and/or subscribe to receive updates on the release of Parts 3 and 4 of the Effectiveness Survey Report and information about the upcoming NMAS Survey!
2021 has been challenging for everyone. We have not escaped, but we are proud to say there has been steady progress with the NMAS Review. While it has remained true to its initial purpose, the scope of the work has expanded significantly for all the right reasons – the broad consultation through the reference groups, workshops and the Effectiveness Survey showed that the mediation community wanted more. In particular, these groups were asked us to consider aspects reaching beyond the ‘Accreditation and Practice Standards’ and into the ‘System’ as a whole.
In response, we have stepped up and accepted this challenge. We are committed to ensuring that this more extensive process has all the resources it needs. Specifically, we are contributing additional time and energy to ensure the quality and depth remain high, even with this expanded process. We think this is a small price to pay and we thank everyone for their patience – we are sure that you are as excited as we are to see a rich and multi-dimensional outcome.
Even with these inclusions, significant progress has been made, and we are excited to share some of the findings from the NMAS Effectiveness Survey.
b. Effectiveness Survey Report – Part 1
The Effectiveness Survey was conducted in March 2021. The purpose of the survey was to ascertain the extent to which MSB member organisations and mediators perceive the NMAS Standards to be effective. It was also an opportunity to gather data about the mediation community, some of which now informs the design of the upcoming main NMAS Survey. The Effectiveness Survey Report will be released in four parts:
Part 1 – Participants
Part 2 – Perceived effectiveness
Part 3 – Other factors
Part 4 – Mediator styles
What have we learned so far?
Part 1 of the Report provides insight into the participants, particularly the characteristics, areas of practice, and amount of work of the mediators surveyed. In response to the main themes arising from the findings, Part 1 also includes six preliminary recommendations, signalling potential priorities for the MSB or its member organisations.
Here is a sample of the findings and recommendations contained in Part 1:
1.There was a significant lack of diversity across various personal characteristics among the mediators surveyed, including cultural background, education, disability, and LGBTQIA+ status.
RECOMMENDATION: Develop and implement a diversity and inclusion strategy to promote greater representation within the mediation community.
2. For a majority of respondents, mediator practice makes up 50% or less of their overall work. Further, 63% of mediators reported being over the age of 55.
RECOMMENDATION: Conduct further research into the factors contributing to employment outcomes/equivalent practice opportunities for mediators to identify genuine pathways as professional mediators across all career stages.
3. Unlike other types of mediators, such as lawyer mediators, workplace mediators or community mediators, FDRPs and conciliators are the most active practitioners in terms of the number of mediations and mediation as a proportion of their overall work.
RECOMMENDATION: Continue consideration of conciliation and FDRP as potential inclusions in the NMAS Review, with the view to long-term options for enhanced representation within the MSB.
To review the complete summary of findings and recommendations, we invite you to read Part 1 of the Effectiveness Survey Report – available to download on the NMAS Hub. The MSB is also releasing findings on their LinkedIn page. Follow them for more updates. We have also written a short blog which includes some more of the findings to whet your appetite!
We welcome your thoughts and comments about the Report!
c. The NMAS Review Survey
The main NMAS Review Survey, which is the final part of the consultation process, will be open to all members of the DR community. However, there is still some work to be done on the survey to ensure it captures all of the input gathered so far. We will also conduct a pilot to help us test the reliability of the questions and structure of the survey.
There is a link to an expression of interest if you would like to be part of the pilot survey. When volunteering for the pilot, please consider that this is an additional task, and any data collected will only be used to improve the design of the NMAS Survey. It is not a substitute for participating in the NMAS Survey open to everyone in the DR community.
The NMAS Review Hub has been specifically constructed to provide up-to-date and transparent information about the review. We invite everyone in the DR community to visit regularly and/or subscribe to receive news updates.
Watch the NMAS Review Hub for the release of Parts 2, 3 and 4 of the Effectiveness Survey Report!
We are happy to report that the review of the National Mediator Standards is well underway. Reference Group participants have commenced lending their expertise towards the development of the Approval and Practice Standards Survey (The NMAS Survey).
The NMAS Review Team are currently seeking expressions of interest for February 2021 workshop waitlists and participants for The NMAS Survey pilot in April.
The NMAS Review 2020-21 is designed to be a collaborative process that actively seeks input from a diverse range of stakeholders across multiple points in time and using a variety of engagement strategies. This means stakeholders will have multiple opportunities to provide input over the life of the review.
The Approval and Practice Standards Survey (The NMAS Survey) is the primary instrument of the review and as such is the review proper. Unlike many traditional review processes, The NMAS Survey is being developed in consultation with the DR community through a range of forums including reference groups, collaborative workshops and pilots.
The findings arising out of The NMAS Survey will form the basis of the recommendations to the Mediator Standards Board (MSB).
Participation in The NMAS Survey is open to all stakeholders and interested parties. We invite you to be a reviewer by completing The NMAS Survey when it becomes available later in the year.
This Blog provides a platform to showcase new and emerging research in the field of dispute resolution. As such, I have invited Danielle and David Hutchinson who have an interest in neurodiversity, including its implications for mediation, to write a piece. Thank-you for sharing, Danielle and David.
Research into neurodiversity is on the rise. As the concept makes its way into the zeitgeist, it’s time for us to start thinking about the many implications for mediation.
What is neurodiversity?
Neurodiversity is an overarching term that refers to the variation in people’s behaviours and traits arising out of neurodevelopmental difference. While there is still debate about what differences fall under this umbrella, it typically includes autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), dyslexia, dyscalculia, dyspraxia and Tourette’s syndrome.
Within the current understanding, neurodiversity differs from mental Illness in that it is not about a person’s state of mental health or wellness. Instead it is a healthy state that is simply neurologically distinct from that of ‘neurotypicals’. One of the common features of neurodiversity is that the difference between strengths and weaknesses are often magnified. For example, there may be an unusually large disparity between a person’s verbal reasoning and their working memory. While the variation is unique to each neurodiverse person, a familiar trope is that of the absent-minded professor. Diagram 1 shows common strengths and weaknesses for each condition.
Why is this important to mediators?
Research into neurodiversity is still in its early days. However, it is starting to become apparent that that this disparity between finding some things extremely easy and other tasks almost impossible, can lead to confusion, frustration and misunderstanding in a range of contexts. This can be particularly so where the neurodiverse person has chosen not to share their diagnosis or is unaware of their neurodiversity.
Unfortunately, recent research into neurodiversity has shown that it is not uncommon for “employers, work coaches and authority figures to conclude that the individual is ‘not trying’, when undertaking particular tasks. Inconsistent performance is mistaken for a bad attitude or poor motivation, which leads to discrimination and perceptions of unfairness on behalf of the individual.”
Given the potential for conflict to arise in such situations, and current estimates that as much as 30% of the population may have some form of be neurodiversity, it seems inevitable that as mediators we will need to consider the different ways that neurodiverse people make meaning of their interactions with others. More importantly, if we are to ensure that our practices are truly inclusive, we must start to consider the ways in which our practices may be premised on neurotypical assumptions.
For example, the following table outlines a few differences common to ASD and/or ADHD that may be misinterpreted as the neurodiverse person being deliberately difficult or as demonstrating traits of a high conflict personality.
Traits that may impact on traditional mediation techniques
Difficulty experiencing, identifying and expressing emotions
Challenges with introspection, observing own mental and emotional processes, and/or identifying and responding to emotions in others
May struggle to communicate emotions to others
Black and white thinking
Polarised thinking patterns e.g. an argument or lack of agreement means the end of a friendship
Difficulty picking up on nuances and non-verbal gestures
Literal interpretation of conversations or agreements
Strong preference for rules and routines
Difficulty changing mental states or thinking about things in a different way
Difficulty with tasks such as planning, problem solving, organisation, time management and working memory
Impulsiveness and inhibition
Acting without thinking things through or accounting for potential consequences
Difficulty allowing others to speak uninterrupted
Extreme sensitivity to being criticised or rejected, whether real or perceived
Can manifest as hyper or hypo-sensitivity
Bright lights, noise or smells can be distracting or distressing and inhibit ability to engage in activities
When we consider the typical facilitative mediation, it becomes apparent that we may have unintentionally set some neurodiverse people up to fail.
Where to next?
Each of these neurodevelopmental conditions manifests uniquely in each person, hence the catchphrase, “When you have met one neurodiverse person, you have met one neurodiverse person”. As mediators, it is not our role to diagnose or make assumptions. However, it is important that our practices are inclusive and can enable the full participation of all people involved. In providing an inclusive environment we can start harnessing the many strengths of neurodiverse participants to find mutually beneficial and sustainable outcomes for all.
Danielle Hutchinson is a lawyer, mediator, author and co-founder of Resolution Resources. Danielle has lived experience of neurodiversity and, in consultation with experts in the field, is investigating neuroinclusive practices in mediation.
 David Hutchinson is an autistic researcher and writer in the field of autism
 Difference as opposed to disorder is now being used by some researchers in the field e.g. Fletcher-Watson & Happe (2019) and preferred by many in the ASD community
 The DSM-5 now includes Asperger’s Syndrome within ASD as ASD1. Even so, many people identify strongly with being an ‘Aspie’ and the term remains in use for those who wish to identify as such.
 First coined in 1998 by Australian sociologist, Judy Singer in research into Autism. While there is no formal definition, the term has been adopted broadly and is widely accepted as encompassing the neurodevelopmental disorders described above; see also ‘What is Neurodiversity?’ National Symposium on Neurodiversity at Syracuse University (webpage, 2011) https://neurodiversitysymposium.wordpress.com/what-is-neurodiversity/
As modern mediation enters its 5th full decade, it is timely to admit an inconvenient truth: global uptake of mediation appears to have plateaued far short of its potential. Is the mediation field around the world just going to do the same things over and over while hoping for a major uptick in growth? Einstein famously called this “insanity”.
Several great thinkers have memorably noted that the way to predict the future is to invent it. But this is a challenge in a deeply fragmented, highly competitive, often misunderstood field. ‘The Seven Keys to Unlock Mediation’s Golden Age’ aims to mobilise an international conversation about how the field can trigger exponential growth over the next 10 years.
The introduction by Professor Nadja Alexander and Lela P. Love exhort stakeholders to imagine a new order illustrated by over 20 peer-reviewed propositions by 40 writers in 16 countries. Seven contributors are Australasians. Each piece is no longer than 1,111 words. The propositions are clustered into Seven Keys: Leadership, Data, Education, Profession, Technology, Government and Usage. They intersect to create what Professors Alexander and Love characterise as a whole greater than the sum of its parts.
Dr Rosemary Howell and Alan Limbury, with Ken Cloke and Joan Goldsmith, frame the work with a plea for the main players to come together and provide collaborative, mediative leadership with both a unified vision for the field and a clear mission and path to achieve it. A vision and mission that empower stakeholders to become the owners, and not merely renters, of the field’s future. The propositions that follow this call for mediative leadership all describe elements that can help shape the vision and implement it through the mission and include:
Generating credible science to support mediation skills and processes and to develop new theories from empirical and other field-sourced research data
Repeating the Global Pound Conference series periodically
Developing a “Negotiation Index” app packed with instant wisdom and evidence to aid mediators and parties
Widely teaching mediation as a core subject
Training mediators more thoroughly, not least in culture and neuroscience
Ensuring mediation is publicly respected as a true professional practice
Seeing mediators openly declare what they believe
Subscribing to a Code of Disclosure
Leveraging technology more effectively
Engendering visible Government engagement, including walking the talk and implementing the Singapore Mediation Convention
Proactively marketing mediation to users
Promoting mediation to facilitate deal making
Increasing peer mediation programs in schools
Promoting the value of women mediators
Making mediation a pre-requisite to litigation and more systemically encouraged and fused in arbitration
Helping inexperienced mediators gain a practice foothold with mentoring and practice programmes, and finally
If the main players collaborate to share leadership internationally and develop a single vision with a credible mission and a comprehensive budget, it should be fundable on a worldwide scale – it’s been done before!
Joanna Kalowski concludes with Many Paths, One Way. She calls upon the world’s leading stakeholders in mediation to chart the new future, adopt and build upon the Seven Keys as a springboard, and develop it collaboratively with energy and enthusiasm on a global scale.
Seven Keys to Unlock Mediation’s Golden Age was serialised on Mediate.com in June and July 2020.
The complete downloadable pdf of the Seven Keys is anticipated to be made available as part of the mediate.com 25th Anniversary in September 2020 as a no-charge e-book. Once published, the work may be reproduced in accordance with a Creative Commons licence provided within the document.
Interviews with many of the Seven Keys’ contributors have also been recorded and will be made available in conjunction with this publication.
The continuing development of ADR processes has brought with it a significant growth in litigation which explores issues such as enforceability, good faith negotiation and cost sanctions for failing to mediate. These cases add to our understanding of how the field of ADR is continuing to develop.
With this in mind we have been fortunate to receive permission from Alan Limbury, Senior Fellow, Melbourne Law School, to reproduce his recent Kluwer Blogpost. Please read Alan’s blogpost below.
Written by Alan Limbury, Kluwer Arbitration Blog 22 June 2020
The impact of the COVID-19 pandemic on the administration of justice has led to commendable judicial innovation, such as the use of virtual hearings, while much of the workload has been postponed until the resumption of face to face hearings is declared safe.
In a message to judges in the UK Civil and Family Courts in March, the Lord Chief Justice said:
“It is clear that this pandemic will not be a phenomenon that continues only for a few weeks. At the best it will suppress the normal functioning of society for many months. For that reason we all need to recognise that we will be using technology to conduct business which even a month ago would have been unthinkable. Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned. I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.”
“…it seems to us likely that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of article 6 [of the European Convention on Human Rights].”
In 2010 the European Court of Justice differed, holding that a mandatory out-of-court settlement procedure is not contrary to European law so long as it does not result in a binding decision, does not cause a substantial delay in litigating, does not oust the court’s jurisdiction due to limitation periods and is not excessively costly: Rosalba Alassini and others v Telecom Italia SpA and others.
That was not the end of Halsey however, because Dyson LJ continued:
“Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it. We would adopt what the editors of Volume 1 of the White Book (2003) say at para 1.4.11:
‘The hallmark of ADR procedures, and perhaps the key to their effectiveness in individual cases, is that they are processes voluntarily entered into by the parties in dispute with outcomes, if the parties so wish, which are non-binding. Consequently the court cannot direct that such methods be used but may merely encourage and facilitate.’”
Comment: that unfortunately erroneous passage from the White Book fails to address the substance of Harvard Professor Frank E A Sander’s well-known and compelling statement: “There is a difference between coercion into mediation and coercion in mediation.”
Dyson LJ went on:
“If the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process. If a judge takes the view that the case is suitable for ADR, then he or she is not, of course, obliged to take at face value the expressed opposition of the parties. In such a case, the judge should explore the reasons for any resistance to ADR. But if the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it… we reiterate that the court’s role is to encourage, not to compel.”
Halsey established a regime whereby the courts may impose cost sanctions against successful litigants on the grounds that they unreasonably refused to engage in ADR. Such penalties are, of course, necessarily imposed after the decision on the merits of the case, whereas a power to order parties into mediation would be exercised before the final decision.
Even before the 2010 Alassini decision, Sir Anthony Clarke, in The Future of Civil Mediations, (2008) 74 Arbitration 4, 419 said:
“It is of course a cliché that you can take a horse to water but whether it drinks is another thing entirely. That it is a cliché does not render it the less true. But what can perhaps be said is that a horse (even a very obstinate horse) is more likely to drink if taken to water. We should be doing more to encourage (and perhaps direct) the horse to go to the trough. The more horses approach the trough the more will drink from it. Litigants being like horses we should give them every assistance to settle their disputes in this way. We do them, and the justice system, a disservice if we do not.”
“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer. Perhaps, therefore, it is time to review the rule in Halsey…”
“…The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”
“… if the Working Group were free to choose we would be minded to allow judges to make orders in particular cases compelling an unwilling party or unwilling parties to attend a mediation or engage in some form of ADR.”
In its 2018 Final Report, the Working Group refrained from suggesting such a course, instead advocating increased encouragement into ADR at various stages and, at 9.24, proposing a system, as in British Columbia, in which a formal Notice to Mediate from one party to another triggers mediation by a mediator on a court-approved panel. The court is not involved unless the parties cannot agree on the mediator or otherwise seek its intervention.
While such a scheme would undoubtedly be useful, both in disposing of cases and in increasing awareness of ADR, the missing element is what I see as the clearly desirable power of the court, as it considers appropriate, to order parties into mediation whether or not they consent. In my 2018 Kluwer blog, I touched upon the way in which Australian courts use their statutory power to make such orders.
“If, as seems likely, there is a risk that the courts will become overwhelmed by a wave of commercial cases, a combination of the number of adjourned cases built up during the lockdown together with a rush of new litigation arising from the pandemic, then there will be lengthy delays to hearings and trials. It must be possible that the judges will have to take practical steps to ease the pressure. One obvious step is to require all parties to engage, or re-engage in some form of ADR, almost certainly mediation, as a condition of bringing or continuing litigation.”
Perhaps the pressure caused by the COVID-19 pandemic makes this time for the UK to dump Halsey and adopt this approach.