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National Mediator Accreditation Standards

Menzies Mediation is approved and credited to provice mediation services under the National Medaitor Accredited Standards.
Below you will find information on the requirements to gain and maintain these standards.


Approval Standards

1 Application

1. These Approval Standards apply to any person who voluntarily seeks to be accredited under the National Mediator Accreditation System (the system) to act as a mediator and assist two or more participants to manage, settle or resolve disputes or to form a future plan of action through a process of mediation. Practitioners who act in these roles are referred to in these Approval Standards as mediators.

2. The Approval Standards:

(a) Specify requirements for mediators seeking to obtain approval under the voluntary national accreditation system; and

(b) Define minimum qualifications and training; and

(c) Assist in informing participants, prospective participants and others what qualifications and competencies can be expected of mediators.

3. As a condition of ongoing approval, mediators must comply with the Practice Standards and seek re-approval in accordance with these Approval Standards every two years. These Approval Standards should be read in conjunction with the Practice Standards that apply to mediators. 4. Mediation can take place in all areas where decisions are made. For example, mediation is

1. A mediation process is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.

2. The mediator[s] may assist the participants to:

(a) Communicate with each other; and

(b) Identify, clarify and explore disputed issues; and

(c) Generate and evaluate options; and

(d) Consider alternative processes for bringing any dispute or conflict to a conclusion; and

(e) Reach an agreement or make a decision about how to move for-ward and/or enhance their communication in a way that addresses participants’ mutual needs with respect to their individual interests based upon the principle of self-determination.

3. Mediation processes are primarily facilitative processes. The mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes.

4. Some mediators may also use a “blended” process that involves mediation and incorporates an “advisory” component, or a process that involves the provision of expert information and advice, where it enhances the decision making of the participants provided that the participants agree that such advice can be provided. Such processes may be defined as “conciliation” or “evaluative mediation”. Practitioners who manage such processes and provide expert advice are required to have appropriate expertise (see Section 5(4) below) and obtain clear consent from the participants in respect of undertaking any “blended” advisory process.

5. Mediation processes are a complement to, not a substitute for, the need for participants to obtain individual legal or other expert advice and support. Mediation processes may not be appropriate for all individuals or all circumstances.

2 Description of a mediation process

1. A mediation process is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.

2. The mediator[s] may assist the participants to:

(a) Communicate with each other; and

(b) Identify, clarify and explore disputed issues; and

(c) Generate and evaluate options; and

(d) Consider alternative processes for bringing any dispute or conflict to a conclusion; and

(e) Reach an agreement or make a decision about how to move for-ward and/or enhance their communication in a way that addresses participants’ mutual needs with respect to their individual interests based upon the principle of self-determination.

3. Mediation processes are primarily facilitative processes. The mediator provides assistance in managing a process which supports the participants to make decisions about future actions and outcomes.

4. Some mediators may also use a “blended” process that involves mediation and incorporates an “advisory” component, or a process that involves the provision of expert information and advice, where it enhances the decision making of the participants provided that the participants agree that such advice can be provided. Such processes may be defined as “conciliation” or “evaluative mediation”. Practitioners who manage such processes and provide expert advice are required to have appropriate expertise (see Section 5(4) below) and obtain clear consent from the participants in respect of undertaking any “blended” advisory process.

5. Mediation processes are a complement to, not a substitute for, the need for participants to obtain individual legal or other expert advice and support. Mediation processes may not be appropriate for all individuals or all circumstances.

3 Approval requirements for mediators

1. A mediator manages processes aimed at maximising the participants’ own decision making. The mediator must have personal qualities and appropriate life, social and work experience to conduct the process independently and professionally. To be accredited, the Recognised Mediation Accreditation Body (RMAB) requires a mediator to provide the following:

(a) Evidence of good character (see Section 3(2) below); and March 2012 Page 3

(b) An undertaking to comply with ongoing practice standards and compliance with any legislative and approval requirements (see Section 3(3) be-low); and

(c) Evidence of relevant insurance, statutory indemnity or employee status (see Section 3(4) below); and

(d) Payment of the Mediator Standards Board registration fee (see Section 3 (5) below)

(e) Evidence of membership or a relationship with an appropriate association or organisation that has appropriate and relevant ethical requirements, complaints and -disciplinary processes as well as ongoing professional support (see Section 3(6) below); this may be the RMAB itself but may also include other relevant memberships or relationships; and

(f) Evidence of mediator competence by reference to education, training and experience (see Section 4 below).

2. RMABs require mediators who apply to be accredited to provide evidence of “good character”. With respect to the requirement to be of “good character”, RMABs may, for example, request mediators to:

(a) Provide evidence that they are regarded as honest and fair, and that they are regarded as suited to practise mediation by reference to their life, social and work experience, for example, by seeking references from two members of their community who have known them for more than three years; and

(b) Show that they can meet the requirements of a police check in the State or States or Territory or Territories in which they practise; and

(c) Show that they are without any serious conviction or impairment that could influence their capacity to discharge their obligations in a competent, honest and appropriate manner; and

(d) Show that they are accredited with an existing scheme that has existing “good character” requirements that they comply with (for example, by referring to existing Law Institute, Law Society, Bar or Family Dispute Resolution Practitioner accreditation where relevant); and

(e) Satisfy the RMAB that they do not come into the category of a “prohibited person” (or its equivalent) as defined in a particular jurisdiction and also not be disqualified to practise by another professional association relating to any other profession (for example, a Law Society or a Medical Association) or must explain to the RMAB the circumstances under which they have previously been removed or suspended from acting as a mediator under these standards.

3. The mediator must undertake to the RMAB to comply with any relevant legislation, these Practice and Approval Standards and any other approval requirements that may relate to particular schemes.

4. In respect of the insurance, indemnity or employed status requirements, the mediator must provide the RMAB with evidence of their current status. This may be provided in a range of ways, for example, by a letter setting out any relevant employee status, or by showing how indemnity applies, or by showing proof of membership that incorporates insurance status, or by the mediator naming their insurer, providing an insurance policy number and its expiry date or, through some other relevant document. If a mediator wishes to practise using a “blended” model and in an advisory manner, the mediator must hold additional insurance relating to the provision of expert advice or must indicate how existing insurance, statutory or other immunities apply.

5. The mediator must pay the Mediator Standards Board (MSB) registration fee at the time of accreditation (and again on each occasion when the mediator is re-accredited). The fee is set annually by the MSB.

6. An RMAB must have the following characteristics:

a) More than ten mediator members accredited under the National Mediator Accreditation System; and

b) Provision of a range of member services such as, an ability to provide access to or refer mediators to ongoing professional development workshops, seminars and other programs and debriefing, or mentoring programs; and

c) A complaints system that either meets Benchmarks for Industry-based Customer Dispute Resolution or be able to refer a complaint to a Scheme that has been established by Statute; and,

d) Sound governance structures, financial viability and appropriate administrative resources; and,

e) Sound record-keeping in respect of the approval of practitioners and the approval of any in-house, outsourced or relevant educational courses; and,

(f) The capacity and expertise to assess training and education that may be offered by a range of training providers in respect of the training and education requirements set out in these Standards.

(g) Be a financial member of the Mediator Standards Board (MSB).

The MSB may adopt eligibility criteria for different classes of membership and may, at their discretion, approve or refuse an application for membership

4 Training and education

An RMAB can be a professional body, a mediation agency or Centre, a Court or Tribunal, or some other entity.

1. Mediators must demonstrate to an RMAB that they have appropriate competence by reference to applicable practice standards, their qualifications, training and experience. It is not necessary for the RMAB to provide education and training to individual mediators (see Section 5 below). Training and education may be provided by organisations other than RMABs, such as, industry training providers, universities and other training providers.

2. A mediator is required to meet the threshold approval requirements detailed below (see Section 5 below), as well as ongoing professional education requirements. A mediator who uses a “blended” process and provides information or advice in the context of a “blended” process must be competent to do so and possess the appropriate skills, knowledge and expertise.

5 Threshold training and education requirements

1. Unless “experience qualified” (see Section 5(3) below), from 1 January 2008, a mediator must have completed a mediation education and training course that:

(a) Is conducted by a training team comprised of a at least two instructors where the principal instructor[s] has more than three years’ experience as a mediator and has complied with the continuing accreditation requirements set out in Section 6 below for that period and has at least three years’ experience as an instructor; and

(b) Has assistant instructors or coaches with a ratio of one instructor or coach for every three course participants in the final coached simulation part of the training and where all coaches and instructors are accredited; and

(c) Is a program of a minimum of 38 hours in duration (which may be constituted by more than one mediation workshop provided not more than nine months has passed between workshops), excluding the assessment process referred to in Section 5(2) below; and

(d) Involves each course participant in at least nine simulated mediation sessions and in at least three simulations each course participant performs the role of mediator; and

(e) Provides written, debriefing coaching feedback in respect of two simulated mediations to each course participant by different members of the training team.

2. Unless “experience qualified” (see Section 5(3) below), from 1 January 2008, a mediator must also have completed to a competent standard, a written skills assessment of mediator competence that has been undertaken in addition to the 38-hour training workshop referred to above, where mediator competence in at least one 1.5 hour simulation has been undertaken by either a different member of the training team or a person who is independent of the training team. The written assessment must reflect the core competency areas referred to in the Practice Standards. The final skills assessment mediation simulation may be undertaken in the form of a video or DVD assessment with role players, or as an assessed exercise with role players. The written report must detail:

(a) The outcome of the skills assessment (in terms of competent or not yet competent); and

(b) Relevant strengths and how they were evidenced; and

(c) Relevant weaknesses and how they were evidenced; and

(d) Relevant recommendations for further training and skills development.

3. “Experience qualified” practitioners are those who have been assessed by an RMAB as demonstrating a level of competence by reference to the competencies expressed in the Practice Standards. An experience qualified mediator must either:

(a) Be resident in a linguistically and culturally diverse community for which specialised skills and knowledge are needed and/or from a rural/or remote community where there is difficulty in attending a mediation course or attaining tertiary or similar qualifications; or

(b) Have worked as a mediator prior to 1 January 2008 and have experience, training, and education that satisfies an RMAB that the mediator is equipped with the skills, knowledge and understandings set out in the core competencies referred to in the Practice Standards, and who has met the continuing accreditation requirements set out in Section 6 below in the 24 months prior to making an application.

4. Practitioners who seek to offer advice through the use of a “blended” process such as conciliation or advisory or evaluative mediation must also provide evidence to the RMAB of:

(a) their continuing registration, membership or equivalent within the professional area in which advice is to be given; and

(b) completion of an appropriate degree, or equivalent qualification in the area of their expertise from a university or former college of advanced education, of at least four years equivalent full-time duration, or a VET-approved organisation to a National Framework Level 6 standards; and

(c) a minimum of five years’ experience in the professional field in which they seek to provide advice.

6 Continuing accreditation requirements

1. Mediators who seek to be reaccredited must satisfy their RMAB that they continue to meet the approval requirements set out in Section 3 of this document. In addition mediators seeking re-accreditation must, within each two-year cycle, provide evidence to the RMAB that they have:

(a) Sufficient practice experience by showing that they have either:

(i) Conducted at least 25 hours of mediation, co-mediation or conciliation (in total duration) within the two-year cycle; or,

(ii) Where a mediator is unable to provide such evidence for reasons such as, a lack of work opportunities (in respect of newly qualified mediators); a focus on work undertaken as a dispute manager, facilitator, conflict coach or related area; a family, career or study break; illness or injury, an RMAB may re-quire the mediator to have completed no less than 10 hours of mediation, co-mediation or conciliation work per two-year cycle and may require that the mediator attend “top up” training or reassessment; and,

(b) Have completed at least 20 hours of continuing professional development in every two-year cycle that can be made up as follows:

(i) Attendance at continuing professional development courses, educational programs, seminars or workshops on mediation or related skill areas as referred to in the competencies (see the Practice Standards) (up to 20 hours);

(ii) External supervision or auditing of their clinical practice (up to 15 hours);

(iii) Presentations at mediation or ADR seminars or workshops including two hours of preparation time for each hour delivered (up to 16 hours);

(iv) Representing clients in four mediations (up to a maximum of 8 hours);

(v) coaching, instructing or mentoring of trainee and/or less experienced mediators (up to 10 hours);

(vi) Role playing for trainee mediators and candidates for mediation assessment or observing mediations (up to 8 hours);

(vii) Mentoring of less experienced mediators and enabling observational opportunities (up to 10 hours).

(c) Must pay the Mediator Standards Board (MSB) registration fee at the time of re-accreditation. The fee is set annually by the MSB.

2. Ongoing accreditation as a mediator requires the mediator to meet the

practice standards and competencies described in the Practice Standards. An RMAB has discretion to remove or suspend a mediator in circumstances where it believes, on the balance of probabilities, that there has been non-compliance with the Practice Standards, other relevant ethical guidelines or professional requirements, or these Approval Standards. In relation to any removal or suspension, a mediator must be informed within 14 days of the concerns of the RMAB and provided with an opportunity to respond to the RMAB. The RMAB must have a process in place to deal with removal and suspension or must be able to provide access to a process where such decisions can be made in a procedurally fair manner.

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Practice Standards

1 Application

1) These Practice Standards apply to any mediator acting as a third party to support two or more individuals or entities to manage, settle or resolve disputes, or to form a future plan of action through a process of mediation and who voluntarily decides to become accredited under the National Mediator Accreditation Scheme. Practitioners who act in these roles are referred to in these Practice Standards as mediators. A mediator supports participants in a mediation process to identify, clarify and explore issues, to generate and consider options and to make decisions about future actions and outcomes. The Practice Standards are intended to govern the relationship of mediators with the participants in the mediation, their professional colleagues, courts and the general public so that all will benefit from high standards of practice in mediation.

2) The Practice Standards:

a) Specify practice and competency requirements for mediators; and
b) Inform participants and others about what they can expect of the mediation process and mediators.

3) Mediators voluntarily accredited under the Australian National Mediator Standards must comply with the Approval Standards as well as the Practice Standards. These Practice Standards should be read in conjunction with the Approval Standards.

4) There are a range of different mediation models in use across Australia. As noted in the Approval Standards, mediation can take place in all areas where decisions are made. For example, mediation is used in relation to commercial, community, workplace, environmental, construction, family, building, health and educational decision making. Mediation may be used where there is conflict or may be used to support future decision making. Mediators are drawn from diverse backgrounds and disciplines. Mediation may take place as a result of Court or Tribunal referral, prelitigation schemes, through industry schemes, community based schemes as well as through private referral, agency, self or other referral. These Practice Standards set out minimum practice requirements and recognise that some mediators who practice in particular areas of with particular models may choose to develop or comply with additional standards or requirements. Mediators may practice as ‘solo’ mediators or may co-mediate with another mediator.

5) Where mediators practice under existing legislative frameworks and there is a conflict between the requirements of these Practice Standards and any legislation, the respective legislative requirements will override those of the Practice Standards to the extent of any inconsistency.

2 Description of a Mediation Process

The purpose of a mediation process is to maximise participants’ decision making.

1) A mediation process is a process in which the participants, with the support of a mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to assist the participants to reach their decision.

2) Mediation processes are not a substitute for individual or organisational legal and/or other expert advice, or individual counselling or therapy. Mediation processes may not be appropriate for all disputants or all types of disputes.

3) The goal of a mediation process is agreed upon by the participants with the assistance of the mediator. Examples of goals may include assisting the participants to make a wise decision, to clarify the terms of a workable agreement and/or future patterns of communication that meet the participants’ needs and interests, as well as the needs and interests of others who are affected by the dispute.

4) The mediation process may:

a) Assist the participants to define and clarify the issues under consideration;

b) Assist participants to communicate and exchange relevant information;

c) Invite the clarification of issues and disputes to increase the range of options;

d) Provide opportunities for understanding;

e) Facilitate an awareness of mutual and individual interests;

f) Help the participants generate and evaluate various options; and

g) Promote a focus on the interests and needs of those who may be subject to, or affected by, the situation and proposed options.

5) Mediators do not advise upon, evaluate or determine disputes. They assist in managing the process of dispute and conflict resolution whereby the participants agree upon the outcomes, when appropriate. Mediation is essentially a process that maximises the self determination of the participants. The principle of self-determination requires that mediation processes be non-directive as to content.

6) Some mediation processes may involve participants seeking expert information from a mediator which will not infringe upon participant self-determination. Such information is deemed to be consistent with a mediation process if that information is couched in general and non-prescriptive terms, and presented at a stage of the process which enables participants to integrate it into their decision making. Such information might include the provision of general information and a reference to available material that could assist the participants. For example, a referral to resources that could be used by parents in a family dispute to determine the impact of options upon children or other family members.

7) Some mediators may use a ‘blended process’ model whereby they provide advice. These processes are sometimes referred to as ‘advisory mediation’, ‘evaluative mediation’ or ‘conciliation’. Such processes may involve the provision of expert information and advice, provided it is given in a manner that enhances the principle of self-determination and provided that the participants request that such advice be provided. Mediators who provide expert advice are required to have appropriate expertise (see Approval Standards at Section 5 (4)) and to obtain the consent of participants prior to providing any advisory process.

3 Starting a Mediation Process

Before mediating, a mediator should ensure that an outline of the mediation process has been given to the participants.

3) The objectives of an intake process may include:

a) Determining whether mediation is appropriate and whether variations are required (for example, using an interpreter or a co-mediation model in culturally and linguistically diverse communities or varying arrangements where violence is an issue).

b) Assisting the participants to prepare for the process. Participants who are prepared and who have received relevant advice are in the best position to make an informed decision when attending a mediation.

c) Ensuring that every participant receives information about the roles of each party in the mediation; this discussion may involve questions relating to the role of lawyers, support people and others.

d) Checking whether any information needs to be exchanged, how this can be done and what information, documents or things need to be available during the mediation process.

e) Settling any preliminary procedural issues, for example:

i) What documents/notes will be kept by the mediator?

ii) Will the process be confidential (if it is an internal process, what reporting will take place)?

iii) Will the participants have authority to negotiate?

f) Clarifying the terms of any agreement to enter into the process.

g) Settling venue and timing issues.

4) The mediator should:

a) Describe and explain the mediation process that is to be used;

b) Where necessary, discuss the appropriateness of the process for the participants in light of their particular circumstances, the benefits and risks of the process, and the other alternatives open to the participants;

c) Discuss the confidentiality of the mediation and any limitations on such confidentiality;

d) Advise the participants about how they or the mediator can suspend or terminate the mediation;

e) Reach agreement with the participants about any costs and how such costs are to be paid;

f) Advise the participants about any indemnity provisions contained in any agreement to mediate, for example, where a mediator seeks to be indemnified in respect of his or her costs in response to any legal costs that may be incurred by the mediator;

g) Advise the participants of the mediator’s role in relation to the provision of advice or other services for example:

i) If the mediator is also a lawyer, he or she shall inform the participants that he or she cannot provide legal advice unless using a ‘blended process’ model and with their clear consent or represent any of the participants in any related legal action,

ii) If the mediator is a psychologist, counselor or therapist, he or she shall inform the participants that he or she cannot counsel or practise therapy with either or any of the participants.

h) Discuss with or inform the participants about the procedures and practices in the mediation, such as:

i) The circumstances under which separate sessions may be held,

ii) How participants may seek information and advice from a variety of sources during the process,

iii) How participants may withdraw from the process,

iv) That participants are not required to reach an agreement,

v) The opportunities for separate communication with the participants and/or with their legal representatives,

v) The circumstances in which other persons can be involved in the process, for example, the participation of experts, support persons or interpreters who may be involved in the mediation.

5) Wherever considered beneficial by the participants, the agreement to enter into mediation will be in writing. Any agreement with respect to the confidentiality of a session, or any waiver of such confidentiality, may also be acknowledged in writing by all participants. If there is no written agreement, for example, where mediation is conducted by a Court or Tribunal member and is governed by legislation, then the mediator will record the participants’ understanding as to entry into the process and confidentiality.

6) Mediators will provide the participants with a copy of these Practice Standards, or advise where and how they can be accessed, for example, by referring to a web site.

4 Power Issues

Mediators shall have completed training that assists them to recognise power imbalance and issues relating to control and intimidation and take appropriate steps to manage the mediation process accordingly.

2) If at any time abuse is present, or implied or threatened, the mediator shall take appropriate measures to ensure the safety of participants. Options include:

a) Activating appropriate pre-determined security protocols;

b) Using video conferencing or other personal protective and screening arrangements;

c) Requiring separate sessions with the participants;

d) Enabling a friend, representative, advocate, or legal representative to attend the mediation sessions;

e) Referring the participants to appropriate resources; and

f) Suspending or terminating the mediation session, with appropriate steps to protect the safety of the participants.

5 Impartial and Ethical Practice

A mediator must conduct the dispute resolution process in an impartial manner and adhere to ethical standards of practice.

1. Impartiality means freedom from favouritism or bias either in word or action, or the omission of word or action, that might give the appearance of such favouritism or bias. A mediator will disclose actual and potential grounds of bias and conflicts of interest. The participants shall be free to retain the mediator by an informed waiver of the conflict of interest. However, if in the view of the mediator, a bias or conflict of interest impairs their impartiality, the mediator will withdraw regardless of the express agreement of the participants.

2) A mediator should identify and disclose any potential grounds of bias or conflict of interest that emerge at any time in the process. Clearly, such disclosures are best made before the start of a process and in time to allow the participants to select an alternative mediator. Mediators should take reasonable steps to minimise the chances of being in a position of potential bias or conflict of interest before the process commences.

3) A mediator should avoid conflicts of interest, or potential grounds for bias or the perception of a conflict of interest, in recommending the services of other professionals. Where possible, the mediator should provide several alternatives if recommending referrals to other practitioners and services.

4) A mediator will not use information about participants obtained in mediation for personal gain or advantage.

5) The perception by one or both of the participants that the mediator is partial does not in itself require the mediator to withdraw. In such circumstances, however, the mediator must remind all parties of a right to terminate the mediation process.

6) A mediator should not become involved in relationships with parties that might impair the practitioner’s professional judgment or in any way increase the risk of exploiting clients. Except where culturally required, practitioners will not facilitate disputes involving close friends, relatives, colleagues/supervisors or students.

7) Mediators should adhere to, and be familiar with, the code of conduct or ethical standards prescribed by the organisation or association with which they have membership (see Approval Standards).

6 Confidentiality

A mediator should respect the confidentiality of the participants.

1) A mediator shall not voluntarily disclose to anyone who is not a party to the mediation any information obtained except:

a) Non-identifying information for necessary administrative, research, supervisory or educational purposes; or

b) With the consent of the participants to the mediation process; or

c) When required to do so by law; or

d) Where permitted by existing ethical guidelines or requirements and the information discloses an actual or potential threat to human life or safety.

2) The mediator will clarify the participants’ expectations of confidentiality before undertaking the mediation process. Any written agreement to enter into the process should include provisions concerning confidentiality.

3) Before undertaking the mediation process, the mediator will inform the participants of the limitations of confidentiality, such as statutory, judicially or ethically mandated reporting, such as any reporting required pursuant to professional ethical requirements.

4) If the mediator holds separate sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon before the sessions.

5) If subpoenaed, or otherwise notified to testify or to produce documents, the mediator should attempt to inform the participants as soon as reasonably practicable. The mediator should not give evidence without an order of the Court or Tribunal if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants. The mediator may include indemnification provisions in relation to costs incurred (see Section 3(2) (f)).

6) With the participants’ consent, the mediator may discuss the mediation process with the participants’ lawyers and other expert advisors where such advisers have not attended all or part of the actual mediation session.

7) Where the participants reach an agreement in a mediation process, the substance of the proposed agreement may, with the permission of participants, be disclosed to their respective representatives, advisors or others and may be used in a de-identified form for debriefing, research processes and discussion purposes.

8) The mediator should maintain confidentiality in the storage and disposal of client records and must ensure that office and administrative staff maintain such confidentiality. Overall, mediators are not required to retain documents relating to a dispute although they may retain any written agreement to enter into the mediation process and any written agreement as to outcomes. Some mediators may also choose to retain notes relating to the content of the dispute particularly where duty-of-care or duty-to-warn issues are identified.

7 Competence

Mediators must be competent and have relevant skills and knowledge.

1) Mediators should seek regular professional debriefing. The purpose of debriefing is to address matters relating to skills development, conceptual and professional issues, ethical dilemmas, and to ensure the ongoing emotional health of mediators. Debriefing can take place following a solo mediation, a co-mediation, in groups or through independent sessions with another experienced mediator.

2) Mediators should also participate in continuing professional development training. Where possible, mediators should also participate in programs of peer consultation and should help train and mentor the work of less experienced mediators.

3) Mediators should be competent and have the capacity to apply knowledge, skills and an ethical understanding and commitment in the areas listed below. Mediators demonstrate competence by showing that they have the requisite knowledge and skills and can apply them. Mediators are required to ensure that ongoing professional development is focused on achieving and maintaining competencies including:

a) KNOWLEDGE

In areas including, but not limited to:

iv) Communication patterns in conflict and negotiation situations.

ix) The roles and functions of support persons, lawyers and other professionals in mediation.

x) The law of mediation on confidentiality, enforceability of mediated agreements and liability of mediators.

b) SKILLS

In areas including, but not limited to:

iv) Appropriate communication skills, including listening, questioning, reflecting and summarising, required for the conduct of mediation.

v) Negotiation techniques and the mediator’s role in facilitating negotiation and problem-solving.

vi) Mediator interventions appropriate for standard difficulties in mediation

c) ETHICAL UNDERSTANDINGS

In relation to:

iv) Neutrality and impartiality.

8 Inter-professional Relations

Mediators should respect the relationships with professional advisers, other mediators and experts which complement their practice of mediation.

9 Procedural Fairness

A mediator will conduct the mediation process in a procedurally fair manner.

2) The mediator will provide each participant with an opportunity to speak and to be heard in the mediation, and to articulate his or her own needs, interests and concerns.

3) If a mediator, after consultation with a participant, believes that a participant is unable or unwilling to participate in the process, the mediator may suspend or terminate the mediation process.

4) The mediator should encourage and support balanced negotiations and should understand how manipulative or intimidating negotiating tactics can be employed by participants.

5) To enable negotiations to proceed in a fair and orderly manner or for an agreement to be reached, if a participant needs either additional information or assistance, the mediator must ensure that participants have sufficient time and opportunity to access sources of advice or information.

6) Participants should be encouraged, where appropriate, to obtain independent professional advice or information.

7) It is a fundamental principle of the mediation process that competent and informed participants can reach an agreement which may differ from litigated outcomes. The mediator, however, has a duty to support the participants in assessing the feasibility and practicality of any proposed agreement in both the long and short term, in accordance with the participant’s own subjective criteria of fairness, taking cultural differences and where appropriate, the interests of any vulnerable stakeholders into account.

8) The primary responsibility for the resolution of a dispute rests with the participants.

The mediator will not pressure participants into an agreement or make a substantive decision on behalf of any participant.

10 Information Provided by the Mediator

The mediator has no advisory or determinative role in regard to the content of the matter being mediated or its outcome. The mediator can advise upon and determine the mediation process that is used.

1) Consistent with the standards relating to impartiality and preserving participant self-determination, a mediator may, with the clearly informed consent of the participants, provide the participants with information that the mediator is qualified by training or experience to provide. Such information should be couched in general terms.

2) A mediator should only provide information within the limits of his or her qualifications and competence while conducting a mediation.

3) Mediators shall not explore or provide interpretations of behaviour or statements with the aim of providing assistance of a counselling nature nor should they provide legal advice (see ss5 below).

4) Where appropriate, for example, in some family, environmental and workplace disputes, the mediator has a responsibility to facilitate a discussion about the participants’ awareness of the interests of others affected by the dispute, and by the proposed agreement, and to assist the participants to consider the separate and individual needs of other such persons.

5) If a mediator, upon request, uses a ‘blended process’ model, such as evaluative mediation or conciliation, this process must be the subject of clear consent normally through the use of a mediation or similar agreement.

6) Mediators will provide information about their specialist and relevant training, education and expertise to participants upon request.

11 Termination of the Mediation Process

The mediator may suspend or terminate a mediation process if continuation of the process might harm or prejudice one or more of the participants.

1) Mediators should be alert to situations where parties or their advisors seek to misuse the mediation process to achieve other ends such as:

a) delaying proceedings in the hope of reinforcing the continuation of an existing arrangement or prolong litigation or obtain other advantage; or

b) ‘buying’ time in order to dissipate or conceal assets; or

c) where, in the opinion of the mediator, one or both participants is in some other way acting in bad faith.

2) A mediator may suspend or terminate the mediation process if in the opinion of the mediator it is being used for a purpose other than a mutual attempt to arrive at resolution or its usefulness has in some other way been exhausted. Mediators should, where possible, provide reasonable notice to the participants.

3) The mediator may withdraw from the mediation process when any agreement is being reached by the participants that the mediator believes is unconscionable. If terminating or withdrawing from a mediation process, the mediator should assist the parties in assessing further process options for dealing with their dispute.

12 Charges for Services

The mediator should make explicit to parties all charges related to the practitioner’s services and how they are calculated.

1) The mediator will explain any fees to be charged for the mediation process and any related costs. The mediator must also obtain agreement from the participants as to how any fees will be shared and the method of payment.

2) Any written agreement with the participants about the mediation process should include a description of any fee arrangements with the mediator.

3) A mediator will not base fees on the outcome of the mediation, but it is not unethical for a mediator to act pro bono or to leave to the discretion of the parties the payment of any fees.

4) f any retainer has been collected before mediation services have been rendered, any unearned fees should be returned promptly upon termination of the mediation process.

13 Making Public Statements and Promotion of Services

The mediator should ensure that public statements made by the mediator promoting business are accurate.

1) The purpose of public statements concerning mediation processes should be to:

a) educate the public about the process in order to help the public make informed judgments and choices; and

b) present the mediation process objectively, as one which seeks to empower participants directly and constitutes only one of several methods for arriving at an outcome.

2) Public communications should not mislead the public, misrepresent facts or contain any:

a) statements likely to mislead or deceive by making only a partial disclosure of relevant facts; or

b) statements intended or likely to create false or unjustified expectations of favourable results.

3) When advertising professional services, mediators should restrict themselves to matters which educate and inform the public. These could include the following information to describe the mediator and the services offered, such as: name, address, telephone and facsimile numbers, email address, office hours, relevant academic degree(s), specialist subject expertise, relevant training and experience in the mediation process, mediation qualifications such as certifications and accreditations, appropriate professional affiliations and membership status, advantages of a mediation process, and any additional relevant or important consumer information. In particular:

a) mediators should refrain from promises and guarantees of results. However, a mediator may report on de-identified information about any evaluation of their services that might assist parties to better understand the mediation process; and

b) mediators must accurately represent their qualifications and their relevance and significance.

4) Mediators should, where possible, encourage and/or participate in research that can support further professional and public education.

5) Mediators can promote their accreditation or additional accreditation and membership under this system.


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Alternative Dispute Resolution & Mediation Specialists | Cairns | Ph 0400 840 676 | ABN: 69 203 830 108

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You should make your own enquiries or seek independent professional advice before making any decisions concerning your own interests.

2017 Menzies Mediation