©La Trobe University
ISBN - 1920 697 578
The consultants - La Trobe University
Towards quality facilitated processes in family conflict
Setting and monitoring standards
The relationship of PDR standards to other professional standards
Attaining competence/certification
Participation and feedback - collecting and interpreting information
Surveying consumers about services
Quality enhancement - involvement and commitment
Mentoring and expertise exchange
Training strategy and planning
This Research Report forms part of the work of the Professional Standards for Family Dispute Management Practitioners project undertaken by La Trobe University. The Project is a response to 'Raising the Standard: A Quality Framework for Primary Dispute Resolution under the Family Law Act 1975' and has been funded by the Commonwealth Government.
The project was originally intended to articulate a Quality Framework and provide an impact statement. However, after preliminary research was undertaken, the project was redesigned to focus upon professional standards. As part of this project brief the project team will formulate draft standards aimed at providing detailed information for persons seeking accreditation, organisations seeking to employ accredited persons, accredited bodies, and trainers and teaching institutions, which can address hurdle and ongoing accreditation measures.
Chapter 1 - Outlines the Professional Standards Project, provides a brief reference to those involved in the project, and describes the future work and the consultation process.
Chapter 2 - Reports on the developments that have taken place in the family conflict area over the past thirty years as well as relevant research. Recent initiatives are also discussed and research and initiatives that are specifically relevant to accreditation, complaints handling and quality enhancement are discussed.
Chapter 3 - Explores threshold accreditation and competency issues as well as ongoing issues associated with practitioner competency. Appendix C, Literature Review grid, summarises in tabular form much of the information contained in Chapter 3 concerning standards for primary dispute resolution and related fields, both in Australia and overseas.
Chapter 4 - Discusses feedback mechanisms, complaints management and data management in the context of supporting quality improvement, and considers these mechanisms in the context of a regulatory scheme. This chapter and Chapter 5 are more relevant to the possible longer term processes that could apply to practitioners in this area.
Chapter 5 - Explores issues relating to quality enhancement and commitment of dispute resolution practitioners. It focuses on how innovation in practice can enhance dispute resolution processes and considers how mentoring and a range of other mechanisms can be used to enhance quality and support practitioners in this area.
These consultations will assist the project team in the creation of a final Standards document in August 2004.
Family dispute management practitioners may be working solo, in partnerships or in organisations. The potential range of individuals and individuals within organisations providing such services is extremely large. Individuals may come from small or solo practices in traditionally defined professions such as law, psychology and social work, and professional counselling. They may also be people with standing in specific communities such as Aboriginal and Torres Strait Islander communities, particular ethnic groups and particular religious organisations.
Apart from approximately 100 agencies currently subsidised by the Commonwealth Government through the Family Relationships Program, facilitated dispute resolution might also be provided by individuals within legal and legal aid services, community and mental health agencies, and family therapy and generalist counselling agencies in a wide range of settings.
A critical goal of the project is the embedding of child-focussed and, whenever appropriate, child-inclusive practices into all facilitative family dispute resolution services.
The professional standards for family dispute management practitioners can form the basis of an accreditation system under the Act that:
The product from this project will be:
This project was initially designed to produce a Quality Framework that would cover the same range of processes and practitioners. After circulating a Literature Review and a Draft Research Report, the project scope was narrowed to reflect a greater focus upon standards for practitioners. This Research Report has been amended to reflect this changed project task. However, parts of this Report (Chapters 4 and 5 in particular) reflect the broader focus of the initial project parameters and are relevant in the current framing of standards as they indicate the possible future options to enhance quality in this area.
The project has a number of stages and a number of documents will be circulated during the project:
| Stages
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Date
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| Research Report Draft Standards and reporting Consultations Standards presented as -
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April 2004 May 2004 May, June and July 2004
August 2004
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Dr Fisher is the co-author of two major studies in the field of family law mediation for the Commonwealth Attorney-General's Department. He has worked on consultancies involving a number or organisations and government departments including the Family Court of Australia, the International Institute for Negotiation & Conflict Management, the Department of Justice (Vic) and the Correctional Services Division. He has just completed a consultancy in the design and delivery of 'Children in Focus', a national professional development program for practitioners in Primary Dispute Resolution (PDR). He has provided extensive training in conflict resolution and mediation for a range of organisations.
As a former Director of the Family Court Counselling Service in Melbourne, Dr Moloney has a long-standing interest in PDR, especially as it relates to family law. His doctoral dissertation was on judicial decision-making in child-related matters in the Family Court of Australia. He has published more than 50 articles and book chapters in this field and has worked with Dr Fisher as consultants in PDR-related projects for the following projects, among others:
The draft Standards will suggest integrated standards that can inform a modified approval/accreditation system and will be produced in May 2004.
The Standards will the range individual practitioners who assist people manage family separation - whether solo practitioners, working in partnership or within organisations - and who may seek approval under the Act.
Some questions are being asked in this initial consultation process that are referred to in Chapter 3.
Q 3.2 How can divergent interests among relevant stakeholders impact upon the introduction of effective PDR standards?
Q 3.3 To what extent can all fundamental issues of practice be covered by standards?
Q 3.4 How explicitly should standards deal with specific issues like the 'Best Interests of the Child' or family violence?
Q 3.5 If standards are necessary to promote quality practice, what should their specific purpose be?
Q3.6 How could standards address issues such as of power imbalance?
Q 3.7 How explicitly should standards deal with the tension between client autonomy and the interests of affected third parties, like children?
Q 3.8 Should standards include references to self-awareness and good character?
Q 3.9 Which competencies are core competencies? To what extent do they differ for mediators, conciliators,and counselors?
Q 3.10 What should the relationship be between PDR standards and other professional standards (to which a practitioner may have an obligation)?
Q 3.11 What is the ideal level of training or qualifications? To what extent should certification, if adopted, be based on performance? On credentials?
Q 3.12 Should tertiary qualifications be required? If so, should the requirements differ according to the area of PDR practice?
Q 3.13 Should competencies and certification in child-related and property-related matters be separated?
Q 3.14 What types of continuing professional development requirements are appropriate?
Q 3.15 Should there be consequences for non-compliance with standards?
Meetings with the Department and Reference Group are also being held to develop a considered communication strategy, intended to be directed at those people who may be affected by the introduction of standards. From these meetings an agreed consultation plan will be formulated to ensure proper representation of targeted groups and to elicit the highest level of interest and involvement from within the sector.
It has been decided to distribute the draft Standards to stakeholders for comment, rather than starting with a clean slate and trying to develop a consensus model. This will be done at the earliest possible opportunity to give stakeholders time to consider their responses.
It is anticipated that consultations will be conducted in May, June and July 2004.
The project team is seeking early expressions of interest in the project and those who may be interested in contributing can contact the project team at:
Email: Profstudy@latrobe.edu.au
Phone: 03 9285 5201
A web site displaying information about the project will be regularly updated: www.latrobe.edu.au/law
Most sources agree that the term 'facilitation' is generally applied to groups rather than individuals, but Tillett also mentions 'facilitated decision-making' as an approach in which an impartial facilitator manages a process whereby two or more individuals 'seek to make a decision'. He continues, '[T]he facilitator is concerned to ensure that the agenda determined by the participants is worked through in the most effective and efficient manner, that time constraints are kept to, and that the participation of the parties is maximised.[2] Charlton adds, 'The facilitator works as a neutral process expert and avoids making substantive contributions, although there are some exceptions ...'[3] The NADRAC definition concurs, stating that '[t]he facilitator has no advisory or determinative role on the content of the matters discussed or the outcomo pf the process.'.[4]
Under the broad heading of 'Facilitation', NADRAC[5] makes a useful distinction between facilitated negotiation and indirect negotiation. Though both contain facilitative processes, the key difference between the two is that in the case of indirect negotiation
... parties to a dispute use representatives, (e.g. lawyers or agents) to identify issues to be negotiated, develop options, consider alternatives and endeavour to reach an agreement. The representatives act on behalf of the participants and may have authority to reach agreement on their behalf.[6]
The facilitative family dispute resolution services referred to in this report are in the category of directly facilitated processes. Within family disputes, these services have, or should have, the following characteristics:
With regard to conciliation, there appears to be tension between the current PDR intervention known as 'conciliation in children's matters' and the purist approach to 'facilitation'. Conciliators are expected to provide both information and advice about how parenting agreements may affect children. Such conciliation specially addresses the rights of children as unrepresented third parties and clearly has the aim of promoting the 'Best Interest of the Child', which is the paramount consideration of the Act with reference to parenting arrangements.[7] This tension replicates internal contradictions about client autonomy and mediator responsibility in many mediation codes.[8]
The focus of this project was initially on practitioners who engage directly as third parties in facilitative processes. This coverage is broad, including as a minimum those counsellors who work as mediators and mediator/conciliators (this could include lawyers, psychologists and social workers) working with family conflict in separation-related matters. Such practitioners, if not self-employed, may work in such a capacity for organisations like community-based dispute mediation and/or counselling agencies, courts, contact centres or legal firms. Their backgrounds, education, and professional orientations thus are more varied than those who belong solely to the established professions, and they may be subject to other professional standards. After this project commenced, the focus broadened somewhat. The increased use of blended advisory and facilitative processes - particularly in the family counselling mediation area where dispute resolution practitioners may give advice on possible impacts upon children - was considered to be an important additional area of focus. However, the focus of this project remains on 'primarily facilitative' processes rather than a broader focus on determinative or evaluative processes.
The Federal Magistrate's Court Act 1999 (C'th)[9] contains a wider definition of PDR which embraces the additional practices of neutral evaluation, case appraisal and conciliation.[10] Hence any framework established under the Act may not be applicable to all the PDR processes provided for in the Federal Magistrate's Court Act 1999.
The processes associated with property and parenting conferences in the Family Court, tended to reflect both the distinctive nature of the problem as well as the backgrounds of those presiding over the conferences.
For example, in Family Court financial disputes, legally qualified registrars and deputy registrars have tended to search for and apply normative solutions. They have aimed at exercising skilled judgement in assessing case law and in using that case law as a benchmark. Registrars may make legally informed assessments about the cases before them and suggest a range within which a final settlement might fall. Often, they may work with clients' legal representatives, with whom they might discuss points of law and precedent.
Parenting conferences in the Family Court have been very different. Generally speaking, emotions are higher, clients' legal representatives do not attend, findings of 'fact' are more difficult to establish and, as Dickey suggests, no previous case could be called upon to provide a precedent for a case that might follow.[11] Thus within each conference, court counsellors needed to make complex judgements about the extent to which they would acknowledge and work with the emotional content of each case, advocate actively on behalf of the children, and consider contingency plans with respect to arrangements that were likely to be somewhat experimental.[12]
Within individual court registries, there have been examples of counsellors and registrars worked together on combined financial and parenting disputes. More usually, however, property conferences and parenting conferences within the Court have tended to run parallel to each other.
The Family Court was not initially designed with a case management approach in mind.[13] It has been increasingly recognised, however, that children's interests are unlikely to be well served when disputes brought to the Court are simply allowed to proceed along paths driven principally by litigants, rather than being formally managed. Actively managed approaches to facilitated cases involving allegations of violence and child abuse have been developed in the Magellan Project[14] in Melbourne and the Columbus Project[15] in Western Australia. Both these projects offer potential blueprints for cooperative practice between legal and non-legal professionals and between litigation and more facilitative processes.
The term 'mediation', as a description of processes that took place in Family Court conferences described above, was not used in Australia until the early 1980s. In family law, the term, 'mediation' and also the term 'Alternative Dispute Resolution' were used to describe processes in property conferences[16] and parenting conferences[17] at a Victorian Legal Aid Commission conference on Alternative Dispute Resolution.[18] The first National Conference on Alternative Dispute Resolution, which contained a number of papers on family law disputes, took place in Canberra in 1986.[19]
In the late 1970s and early 1980s, small-scale generally action-oriented research within the Family Court had begun to suggest that a majority of disputes could be settled through 'conferencing' and without resort to court hearings.[20] The preliminary evidence indicated that early intervention correlated with better settlement rates. An influential early study[21] also suggested that settlement via 'conferencing' cost the taxpayer approximately one-seventh of the amount typically spent on litigation. One result of this study was an increase in the number of family court counselling staff who, it was assumed, would offer conferences to the growing number of potential litigants.
By the mid 1980s, however, the Commonwealth Government had also begun to consider an expansion of what was now being termed 'family law mediation' into the community. In 1985, experimental services using a community-based mediation model (whereby non-professionals who had had some mediation training were employed on a sessional, as-needed basis), were funded in Wollongong, New South Wales, and Noble Park, an outer Melbourne suburb. The state-funded New South Wales Community Justice Centres (CJCs) were also established in 1983. Some time after its establishment, the Sydney-based CJC also began offering community-based mediation in family law cases.
The Wollongong initiative did not survive, but Noble Park flourished. It received funding beyond its initial establishment budget and went on to become the Family Mediation Centre, with branches in Gippsland and in the eastern and south eastern suburbs of Melbourne. The Centre abandoned the community mediation model described above in the mid 1990s. Whilst remaining community based, it moved towards a fully professional service.
Mediation was endorsed by the Chief Justice of the Family Court in 1990 and 'introduced' into the Family Court in 1992, at which time Court counsellors and registrars were designated as mediators. Although they received additional training, it was clear that much of what they had been doing prior to these changes had a great deal in common with what was now to become known as mediation[22].
At this time, external agencies were also invited to tender to conduct mediation services aimed at assisting separating couples with financial and parenting disputes. Evaluations of these services within the Court[23] and external to the Court[24] found high levels of client satisfaction, good settlement rates and good durability of arrangements.
Community based organisations played an important role in the development of the Court based services as well as services that operated outside Courts and were responsive to community needs. At the time of writing, approximately 100 agencies in approximately 400 locations are under the auspices of the Commonwealth Government's family relationships program.
The term 'Primary Dispute Resolution', though not without its problems, more accurately reflects the range of interventions that have increasingly become available to separating couples as an 'alternative' to litigation. The term was introduced as part of the 1995 reforms in family law in recognition of the fact that litigation and litigation-related processes tend to be expensive and destructive of relationships between former partners, who need to cooperate around ongoing parenting arrangements, and should be seen as an option of last resort. Such dispute processes were termed 'primary' because litigation processes were no longer seen as the normal case trajectory - that is, non-adversarial processes were to be regarded as the primary form of settling family law disputes regarding children.[25]
The Family Law Reform Act 1995 (C'th) emphasised the ongoing nature of parenting responsibility for children. It attempted to alter a perceived win/lose culture about children through a number of initiatives. These included a change from proprietorial oriented language (custody and access) to the more neutral (though somewhat awkwardly phrased) alternative of residency and contact. The emphasis was on negotiation rather than litigation. Also encouraged was the submission of 'parenting plans' that aimed to contextualise agreements and allow for more calibrated expressions of parenting aspirations than those found in conventional court orders.
As family forms continue to change, there is little doubt that post separation financial and parenting disputes are likely to become more rather than less complex. Indeed, the Report of House of Representatives Inquiry into child custody arrangements in the event of family separation,[27] has signalled by its very title,[28] the need to consider the particular circumstances of each child in each separating family. Consistent with this Report, the Commonwealth Government has strongly endorsed child-focussed and child-inclusive facilitative practices. As research has uncovered unequivocal evidence of the multiple negative impacts of enduring conflict on children,[29] notions that mediators should take no position with respect to the content of child-related disputes are being questioned by the recognition of the need for processes that actively advocate for children. The repertoire of what are now termed 'child and family mediators' can therefore include skills that invite and, if necessary, respectfully challenge parents to remain focussed on children's needs and that again, respectfully invite parents to consider the child-related consequences of continuing the conflict.[30]
It is clear, therefore, that facilitated negotiations in family law cases involving children may require ever more sophisticated and knowledge-based processes - and that the need for quality input will become more acute as time passes. It is also clear that if unnecessary protracted litigation is to be avoided, facilitators must be able to work across the legal, PDR and social science disciplines. They must have the capacity to enter each culture and 'speak each language'.[31] They must also become increasingly sophisticated in both working with the high-conflict end of the spectrum and in distinguishing these disputes from those in which a form of adjudication may be required.
Existing mechanisms take a number of different forms and have been developed by a diverse range of bodies. They include statutory regulation at both the federal and state level, government funding criteria, codes of practice, ethics and conduct developed by professional associations and training organisations, and the internal policy documents of individual community organisations. They contain provisions that overlap at some points and are inconsistent in application and scope at others. There is no uniform, comprehensive system of credentialing practitioners, enforcing standards or developing quality improvement strategies. Service users do not have access to a standard complaints procedure. Only service providers approved under the Act have access to safeguards relating to immunity or admissibility of evidence.
Part III of the Act outlines the obligations of approved primary dispute resolution services and the benefits arising from an 'approved' status. The Act affords family and child mediators and arbitrators authorised under it the same immunity from prosecution as judges, and admissions made in the course of counselling or mediation are deemed to be inadmissible in subsequent proceedings. Other benefits include the ability to advertise services in the Family Court and to receive referrals directly from it.
The Federal Magistrates Court Act 1999 (C'th) defines PDR to include counselling, mediation, arbitration, neutral evaluation, case appraisal, and conciliation, and an explanatory memorandum draws on the NADRAC definitions of these terms.
Since the Family Court redefined all PDR interventions as 'mediation' in 2000, there has been considerable confusion regarding the latter term within that context. Conciliation, however, is perhaps even more opaque since it is nowhere defined in the Act but is now used to settle family law matters with respect to children. It is clear that it is not exactly the same as the earlier usages in 'conciliation conferences' for property matters (O 24) or 'conciliation counselling'.[34]
Funded organisations must comply with a numbers of core (or essential) standards, based on the Australian Quality Council Framework. Approval is based on appropriate standards being developed and maintained by the agency in a number of areas including:
There is a discrepancy between the treatment of counsellors and mediators under the Regulations, with more extensive provisions relating to mediators in place.[36] In relation to counsellors, the Minister can authorise an individual counsellor to provide services outside an approved organisation if the Attorney-General deems that the person is suitable by virtue of their training and experience.[37] There is no similar provision to authorise private mediators although the Regulations do specify the requirements[38] to be a child and family mediator under the Act. This opt-in or self-select system is not complemented by a legislative enforcement mechanism to check compliance nor the financial incentive of meeting funding criteria, as they receive none. Individual practitioners are not prohibited from providing mediation services without approval but would not enjoy the same protections under the Act as their authorised colleagues.[39]
As mentioned above, conciliation is not separately identified in the Act. In practice, conciliation is regulated under the provisions relating to counselling, not mediation. This uncertainty as to the status of conciliation and also as to the definition of 'mediation' under the Act makes it difficult to establish clear and transparent standards.
Another layer of statutory regulation applies to mediators in the Australian Capital Territory. The Mediation Act 1997 (ACT) requires registered mediators to comply with the Competency Standards for Mediators developed by the ACT Community Services and Health Industry Training Board. These provisions are limited to mediators, which however, are not defined in the ACT legislation.
The Mediation Act 1997(ACT) establishes an accreditation system and sets up an accreditation procedure through a registration process. Registered mediators enjoy similar protections to those authorised or approved under the Act.
Standards and guidelines have also been set by a number of peak bodies. The Law Council of Australia, which is a national professional body for lawyers, together with Australian Law Societies and Bar Associations, have produced a voluntary, basic code of conduct - 'Ethical Standards for Mediators'.[40] This Code provides a general ethical and practical framework for the practice of all types of mediation, as defined in the standard. It is not applicable to other forms of PDR and ADR. As guidelines, the Code plays an educative function only for individuals, organisations and institutions involved in mediation. Its efficacy, therefore, depends on the extent to which it is adopted by members and other bodies.
The majority of the provisions in the guidelines refer to ethical issues such as impartiality, conflict of interest and confidentiality. It contains a general requirement that mediators have a level of competency that would satisfy the reasonable expectations of parties. Parties are entitled to be informed about the mediator's knowledge and skills. Obligations in respect of publicity and advertising are also covered, including disclosure of fees. Individual state law societies have also developed their own standards, for example, the Law Institute of Victoria Code of Practice and the Law Society of New South Wales guidelines. Many legal practitioners also obtain 'specialist accreditation' which ay be conferred after attendance and assessment requirements are met (for example in New South Wales, a practitioner may obtain specialist accreditation as a mediator or family law practitioner).
Leading Edge Dispute Resolvers (LEADR),[41] an Australasian, non-profit organisation, has developed a scheme for the accreditation of mediators (1998), and a set of rules for mediators which means it can accredit mediators providing its own training and accreditation process on a user-pays basis.
LEADR accreditation is one benchmark for the industry. LEADR is accredited under the Mediation Act 1997 (ACT) and has incorporated the Law Council's 'Ethical Standards for Mediators' into its standards.
LEADR panel membership is based on meeting a standard, which includes training criteria as well as experience-based qualifications, together with an assessment by a LEADR panel via videotape. There are also ongoing professional development requirements to remain accredited. The LEADR committee also has the discretion to remove a member's accreditation, in unspecified circumstances.
There is some monitoring of performance. A questionnaire, addressing the conduct of the mediation and the mediator, can be completed by the legal representatives of the disputants, and is then processed by the Accreditation Committee. This may provide some avenue for complaints.
A final level of regulation can be found in the internal policy documents of organisations providing PDR services. These documents generally address the implementation of the quality standards required by the funding body, and the Act and Family Law Act Regulations. Some examples are the New South Wales CJCs' Code of Professional Conduct for Community Justice Centre Mediators and the policy documents of the Family Mediation Centre (Vic).
In mid-2000, the government established the Family Law Pathways Advisory Group (Pathways) to advise on ways to improve the delivery of family law services to families experiencing separation. The resultant report, 'Out of the Maze - Pathways to the Future for Families Experiencing Separation',[43] released in August 2001, contained a number of recommendations in relation to PDR services, including the importance of early intervention, effective and appropriate referral, and improved accessibility to services. This current project has been cited in the government's response to that report[44] as one of the measures designed to improve the 'clarity, workability and flexibility of the current provisions and provide consistency with other aspects of the family law system and the wider legal system'.[45]
The most extensive and specific review of appropriate standards in the dispute resolution sector was undertaken by the National Alternative Dispute Resolution Advisory Council (NADRAC), at the same time as the Pathways inquiry. Although applicable to ADR processes generally, its 2001 report to the Commonwealth Attorney-General, 'A Framework for ADR Standards', was an important step towards the development of quality standards in the area of family law PDR.
The NADRAC report examines a range of possible standards models applicable to both individual practitioners and organisations. It contains a useful discussion of the various options, including codes, benchmarks, agreements, models and exemplars and suggests the development of standards in relation to education, training, assessment and selection, supervision, professional development and discipline. NADRAC recommends a code of practice as the appropriate framework and sets out, in broad terms, the essential elements of such a code.
One of the recommendations is for self-regulation rather than enforcing compliance through more direct regulation, or leaving it to market forces. The report stresses the need for an effective complaints mechanism, based on accepted standards with access to an independent second tier, perhaps in the form of an ADR ombudsman.
The selection processes for accreditation, it is argued, should be fair and transparent, and based on assessment of knowledge, skills and ethical requirements. A universal minimum standard in qualification is not supported. Under the preferred NADRAC model, practitioner competence would be measured by nationally accepted assessment standards and incorporate a lifelong learning approach.
In March 2004, NADRAC published a short paper on accreditation issues that is intended to focus discussion upon how a national accreditation system could evolve. This project will involve close liaison with NADRAC about national accreditation initiatives.
The NADRAC report contains a useful set of questions for establishing what may be an appropriate code in a particular context. In the family law context these could include:
In this project, the Commonwealth Government is seeking a means to improve practices and provide a process for recognition and approval of individual practitioners that are both transparent and reliable. Of importance is that standards should apply to all practitioners whether they are funded by the government of not. In addition, the standards will need to accommodate diversity, be flexible, not restrictive, and be aspirational. Standards of practice may also need to include minimum (core) requirements for continuous improvement.
The impact of implementation would be felt primarily in family and child counselling and mediation as these are the kinds of dispute resolution most frequently used pursuant to the Act.
It has been noted that in fields of work such as mediation '... we will never find one perfect, elegant solution to questions of quality assurance and accountability'.[46] Nevertheless, the complex and serious nature of PDR tasks and the nature of family conflict within which practitioners work, demands quality practice and clear lines of accountability. Thus, in recent years, there have been increasing attempts '... at codifying what effective mediators should do and what they should know',[47] and there seems to be a general trend in this direction. Certainly, as remarked by the consultant for a major report in the USA '... recent developments indicate that credentialing mediators in the name of promoting quality and protecting consumers is clearly a growth industry'.[48] However, the task is not simple, for in addition to the difficulties of definition, assessment, and monitoring, various industry stakeholders may have mutually incompatible interests.[49]
NADRAC also notes that standards can be expressed in a variety of ways, including: codes of practice, benchmarks, guidelines, models, exemplars, service charters, credentials, competencies and capabilities, as well as criteria for approval, certification, selection, endorsement or accreditation.[52]
Standards already developed for PDR in other jurisdictions most commonly use a Code of Practice or a Code of Ethics. For the purposes of this report, the term Code of Practice will be taken to include a Code of Ethics.[53] Guidelines for practice are also evident, and often contain any certification processes and requirements. A Code of Practice can be described as '... a set of rules...which are designed to control behaviour, products or services within a particular industry or area of activity' (NADRAC).[54] An ethical code enables
practitioners to get a sense of their basic commitments as professionals and offers them an understanding of the elements that must be weighed in making difficult decisions.[55]
The extent to which any standards might be developed and the way in which this could be achieved are the subject of discussion in this chapter, with reference to existing and developing standards in Australia and overseas.
The absence of any structure of procedural or substantive rules, in a process conducted without direct public scrutiny, presents the real danger of harm from inept or unethical practitioners ... [I]n mediation much more than in other dispute resolution processes, the quality of the process depends heavily on the quality of the practitioner.[56]
Standards consultant Charles Pou similarly observes, the '... characteristics that make mediation useful - its privacy, flexibility, and an atmosphere that encourages openness - can give rise to abuse ...'[57]
Although existing standards have commonality in their stated rationales, there are different emphases, often relating to the type of organisation that has produced the standard. A fairly typical list of reasons is given by the California Dispute Resolution Council (CDRC), a state-wide organisation of mediators, arbitrators and other neutral dispute resolvers. The CDRC Standards of Practice for California Mediators were developed in 2000 in collaboration with major dispute resolution organisations and individuals throughout the State of California. Their stated purposes include:
Judicial bodies may have further agendas. For example, the Ontario Family Courts have an accredited roster of mediators and cite 'access to mediators ' alongside quality control as the stated purposes of this arrangement.[61] Rather than simply promoting public understanding of mediation, the Florida Rules for Certified and Court-Appointed Mediators[62] aim by their inclusion of a requirement of 'good moral character' to protect participants in mediation and the public.
In some contexts uniformity is a driving force. The peak Canadian national body, Family Mediation Canada, states that the purpose of its Practice, Certification and Training Standards is to create 'national uniform standards that apply in relation to family mediation across Canada. '[63] The USA's Uniform Mediation Act (2001), which as of mid-2003 has been ratified in two states, declares that its primary purpose is to create a standard, nationwide framework for protecting the confidentiality of mediation communications and create more certainty for participants in the process.[64]
Organisations with a specific history of practice, such as the UK-based National Children's Home (NCH) children's charity, tend to reflect their particular perspective in the standards they develop. Hence, the NCH proposes that the standards specifically are designed as a contribution to the promotion of the safety and well being of children.[65]
Of primary concern to all parties in the development of standards is that prescribing minimum standards of practice entails a cost, though the issue seems less problematic when the standard purports to cover the ethical/legal context rather than the knowledge/skill base.
David Syme has suggested in his discussion paper for the World Mediation Forum in 2003 that quality is a 'balancing act between diversity and consistency.'
Diversity ensures that services are adaptable to meet the needs of individual clients. Consistency ensures that clients know what they can expect from these services, that is, they know what they are getting into.[66]
Family Mediation Canada (FMC[67]) addressed such concerns when developing its national standards in 1999. It '...engaged mediation practitioners in participatory consultations about standards of practice and certification for more than a decade.'[68] FMC considered it
... essential that assessments of mediator behaviours be objective and verifiable yet responsive to the reciprocal influences among knowledge, skills and process in a mediation context. The certification process was designed to accommodate various professional organizations and models of practice.[69]
In this way, there was a focus on the core '... values, methods understandings, knowledge and interests they shared.'[70] In 1997, the British Columbia Ministry of Attorney-General joined Family Mediation Canada as an equal partner in pilot testing and evaluating a process to assess and certify family mediators throughout Canada.[71]
Once standards have been developed in such a consultative way, it might be suggested that even though mediators may come from a variety of backgrounds, a shared stake in the outcome will promote adherence to the principles.
It is, however, unlikely that consultation with the full range of stakeholders will produce full consensus. In an interesting but neglected article, Pipkin and Rifkin propose a grid of stakeholders involved in regulating mediation. The grid is too limited for our purposes since it leaves out at lest one major stakeholder in the Australian context, the Government and its institutions. Nevertheless, it is suggestive of why it has been so difficult to create a more regulatory environment. Pipkin and Rifkin identify four major types of stakeholders:
Some organisations appear to have dealt with this dilemma by choosing multiple paths to competency. For example, the UKCFM path to registration includes training, supervision, and the submission of a practice portfolio.[75]
Any mechanism that allows certain individuals or organisations to practice their trade, by definition, excludes others. The ADR movement in the west may be traced to the development of community justice centres in the US starting in the 1970s.[76] Many community mediators, then and now, have been enthusiastic volunteers or low-paid casual employees with varying degrees of training. Some of the values that inspired the early ADR movement were, in fact, related to preventing mediation from becoming a distinctive profession and giving back control over dispute resolution to members of the community.[77]
Increased regulation of mediation and its incorporation into the mainstream justice system therefore can be seen to transform mediation into a 'discipline' or a means of organisation that 'contributes to the insertion of disciplined, orderly individuals into the machineries of production and the dominant economic, political, and legal relations of power.'[78] Thus, rather than alter the way in which disputes are resolved, the use of mediation merely reinforces existing power relationships.
In commenting on the introduction of requirements under the Act and the Family Law Act Regulations, Wade has pointed to dangers in the emergence of professions, i.e.
... a selected group of workers are granted a state monopoly, state funds and certain statutory privileges in exchange for assurances of quality of services provided. Access to the monopoly becomes increasingly difficult as the insiders progressively raise the training standards in order to exclude "outsiders".[79]
Wade offers his comment in the context of the emergence of mediation as a 'profession'. However, as Pipkin and Rifkin ask, ' [I]s mediation to be an autonomous profession' or 'a new specialty in the catalogue of skills offered by existing professions, such as law, mental health, or social work? '[80]
Moreover, just having standards will not ensure best practice, even if all practitioners adhere to them. There also are tensions inherent in the practice of ADR, and its subset of PDR, that codes generally do not even recognise, much less address effectively, issues such as the fundamental tension between client empowerment and interests of an unrepresented third party such as a child.[81]
Of the range of standards identified by NADRAC, many of the overseas approaches to PDR considered in our initial research embedded standards in some kind of code.
The codes examined clearly differ in their coverage and intent. For example, the National Children's Home (NCH) Code is a loose set of standards, an internal written statement, without external sanctions, which guides the workers in that organisation in relation to best (child focussed) practice.[82] The Family Mediation Centre (Vic) guidelines are similar.[83] NCH mediators may also belong to the United Kingdom College of Family Mediators (UKCFM), a professional organisation, and as members they may additionally be required to comply with the UKCFM Code of Practice for Family Mediators.[84] The UKCFM Code is similar to the Association for Conflict Resolution's Standards, which are expressed to be a 'guide' for good practice rather than legal rules or standards of liability.[85]
Such codes are not enforceable per se, with a breach resulting only in loss of certification or membership. A mediator can still practise. More direct loss may be suffered by a mediator in a judicial setting, where a breach of the standards may result in a ban on future practice in that jurisdiction (e.g. one of the more severe consequences listed amongst a range by the Supreme Court of Florida[86]).
Judicial bodies sometimes incorporate the codes of less formal organisations into their own standards. For example, Family Mediation Canada's Code has been adopted by the Department of Justice Nova Scotia. The Family Division of the Supreme Court of Nova Scotia has guidelines for its roster of mediators qualified to mediate in that division. It refers to its own key areas of competencies but broadens them by reference to the other FMC Code.
The NADRAC report identifies some of the choices that can be made in relation to the spectrum of standards, that is:
The need to recognise and deal with domestic violence is also accorded varying prominence in the standards. The Judicial Council of Virginia requires that mediators have 'Domestic Abuse Training';[96] ACR requires that mediators should have knowledge of and training in '... the impact of family conflict on parents, children and other participants, including knowledge of child development, domestic abuse and child abuse and neglect.'[97]
The question of exactly what standards should apply to practitioners involves both determining the core 'competencies' practitioners should be required to demonstrate and how prescriptively they should be expressed. 'Competencies' can be described as the '... specification of knowledge and skills and the application of that knowledge and skill to the standard of performance required in the workplace.'[98]
The UKCFM Competence Assessment for Family Mediators, which imposes a seemingly rigorous process whereby mediators can apply to be registered with the College by demonstrating their mediation competence as a mediator, takes this approach. The guidelines state that competence is both about knowledge and '... about seeing how you apply knowledge in a working environment.'[99] The UKCFM guidelines refer broadly to the competencies of knowledge of policy, methods and procedures, self-awareness and an application of ethics.
A local example of competence standards are those developed by the Australia National Training Authority for mediation, which can be found on the National Training Information Service website.[100] There appear to be six separate mediation standards, including, among others:
Other standards mirror such concerns in a more subtle way. For example, ACR specifies that a family mediator '... shall recognise a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.'[102] The FMC competencies also sit at this end of the spectrum, including not just the ability to assess the degree of power imbalance but also the '... ability to use techniques to redress power imbalances.'[103] In both cases, the actual steps to be taken are omitted, although it is clearly both the knowledge and the application that make a good mediation. The approach allows for the client differences encountered in mediation and for the individual mediator's own style and strengths, whilst articulating the very fundamental notions we would see as core competencies. Little direction, however, is given as to how to balance the notions when they come up against each other in practice - such as the tension between preserving party self-determination and attending to power imbalances.[104]
NADRAC suggests five elements be included in codes of practice applicable to service providers. These are:
These most commonly cited competencies are:
1. Knowledge: a very comprehensive stipulation as to knowledge has been made by the Ontario Family Courts, Canada.[106] The following are drawn from these as an example of the variety of areas in which a mediator may be required to have knowledge of:
Interestingly, there is no mention of NADRAC's suggested category of self- knowledge, which includes awareness of personal responses and of the impact of self on the parties and the process.[107] A related area concerns the actual character of the practitioner. Though not a common standard, the Florida 'Rules for Certified and Court Appointed Mediators' refer at length to the requirement that a mediator be of 'good moral character '. In some ways this is more of a base line test, measured in terms of previous felonies and their relevance to such things as the area of mediation in which certification is sought.[108]
The FMC Practice, Certification and Training Standards,[109] which is not intended as a code of conduct but as a guide to mediators seeking certification, refers more specifically to personal qualities important to mediation. These include 'a non directive, non-judgemental nature in respecting the individuality and autonomy of others', 'personal warmth', 'flexibility' and 'interpersonal understanding and intelligence', amongst many others. Such a list seems to represent one end of the spectrum in terms of being aspirational and bes- practice oriented, perhaps because it sits in a practice guideline rather than a code of practice or ethics.
2. Skills: Ontario skills competencies include:
3. Ethics: NADRAC refers to ethics as the attitudes and conduct of individual ADR practitioners, and articulates a number of dimensions[115] that are incorporated to varying extents in the codes of some of the organisations surveyed:
... intended to be exclusive and do not in any way limit the responsibilities the mediator has under codes of ethics or professional responsibility promulgated by any other profession to which the mediator belongs ...[121]
It is probable that at this point these other standards will involve greater responsibilities than those required in PDR. For example, the minimum level of education required to become a full member of the Australian Psychological Society (APS) is six years university training.[122] Social workers are required to have a Bachelor of Social Work before they are entitled to practice in the profession. There is no such requirement for mediators and to date it has been thought that no '... particular type or degree of prior education or job experience had been shown to be an effective predictor of success as a mediator ...'[123] Or, as Astor and Chinkin state
The argument that mediators need some understanding of the relevant law, of the dynamics of human relationships or of ethical issues that arise, is not necessarily an argument that mediation must be done by professionals in those fields. However it is an argument for training mediators...[124]
There has been a trend towards mediation-specific training in Australia, some tertiary based and 'professionally oriented', despite the concerns that '... skills and knowledge are acquired through many ways other than formal training and education' and that a
... requirement for a formal qualification in ADR could be excessive, especially when ADR is one of several functions performed professionally by the practitioner. Qualifications can be cumbersome and complex to develop and maintain. Formal educational requirement may also make ADR more of a 'profession' and create greater exclusivity.[125]
In addition, the debate about qualifications can quickly become a turf war among competing organisations seeking to gain advantage for their members or constituents.[126]
There has been some discussion about the most reliable way of assessing levels of competence. The most common manner is the recognition of training and education backgrounds, i.e. certification by the institution providing the service. Nevertheless, the pioneering work done by SPIDR (now ACR) unequivocally concludes, '... where standards were to be set, they should be performance based.'[127]
Many overseas bodies (the ACT's Mediation Act 1997[129] refers to mediators not just family mediators) provide for a process of accreditation or registration as a family mediator. FMC, for example, has a certification process that has no legal status but is increasingly being required in Canada by provincial judiciaries in relation to court-connected family and child mediation. The requirements for certification are very comprehensive and sit at the more stringent end of the spectrum in the standards surveyed. For example, to be certified by FMC, it is recommended that applicants show that they are university trained and provide evidence of at least 80 hours of basic training in mediation plus an added 100 hours of related education and training. Mediators must complete a practicum, sit an exam and do continuing professional education.[130] This model has been termed a 'hybrid',[131] as it combines paper standards with performance-based approaches and development approaches.
The Florida Supreme Court requires mediators to have a degree or profession as referred to above, to have completed training certified by the Court, observe and perform under supervision mediations conducted by a certified family mediator. It also requires, as indicated earlier, that mediators must also be of 'good moral character' to be considered for initial certification.[132]
Some standards refer to continuing professional development as a requirement. These include those of the ACR (general standard that mediators should continuously improve their professional skills and abilities, by participating in relevant continuing education programs, among other activities) and FMC.[140] Some go further, such as the Family Mediation Nova Scotia (FMNS)'s Practising Member Requirement,[141] which stipulates that failure to complete a declaration of continuing education may be grounds for termination of 'practising status'. The ways in which the requirement can be met are outlined as follows and provide an interesting array of possibilities:
Very few of the standards examined appear to be linked with external monitoring of complaints, which raises the question of to what extent, without such independence, can there be genuine quality 'assurance'? It is interesting to note opposition to the recently announced changes to the regulation of Victorian lawyers on the ground that the changes have in effect '...put lawyers back in charge of regulating lawyers' The critics contend that the 'abolition of the only functionally independent monitor of lawyers' conduct will inevitably reduce the accountability of lawyers to the community.' Importantly, they also ask 'Can any organisation that depends financially on the subscription of its members succeed in eliminating conflict when dealing with its complaints about those same members?'[144]
By way of comparison, Rule 10.830 of the Supreme Court of Florida provides that the panel may impose one or more of the following sanctions:
This chapter reflects on the broader focus of the initial project parameters and is relevant to the current framing of standards as it indicates some possible future options to enhance quality in this area. Quality assurance measures are based on two principles: that services can be accountable to those who access them; and, that quality improvement requires a commitment to regular evaluation and measurement of quality improvements.
'Future' issues surrounding participation and feedback in quality improvement and enhancement that may arise if the focus on quality is extended beyond standards, are explored in this chapter. Much of the material is organised in themes often represented in the quality improvement area. For example, the work of Business Excellence Australia,[147] which is focussed upon developing organisational excellence through the delivery of high quality services, is one area of reference. Other important works in this field have included the Disability Support Framework that was developed in Queensland.[148]
In the literature about accreditation issues in the conflict resolution and conflict management area, there is often little reference to ongoing quality improvement measures. However, many services within Australia are committed to ensuring that their services are evaluated and measured. For example, organisations funded by the Commonwealth Government under the Family Relationships Services Program are required to comply with a quality framework established under the FAMQIS.[149] These organisations currently provide a significant amount of family conflict facilitation in Australia. Services are required to document client feedback and evaluation procedures and must establish complaint procedures that comply with natural justice. Compliance also provides that this information is then used to improve services.[150] There are also standards applicable to data collection, including confidentiality and privacy issues, and ongoing assessment and monitoring of performance.[151]
Recently some commentators who have considered conflict resolution approaches have supported the need for continuing feedback approaches and the desirability of sound complaint management processes (to deal with complaints about dispute resolution and management processes). For example, one commentator in the United States has noted that key elements of a quality assurance system will involve user feedback and a complaint handling procedure, and has noted that relatively little attention appears to have been paid to specifics.[152]
In the Australian context, NADRAC has also considered that provision for client feedback and complaints is an essential part of a quality system, and recommended it form part of any code of practice in the alternative dispute resolution field.[153]
Another important issue relates to the cost of surveying and the need to ensure that practitioners are not unduly burdened by requirements to seek customer inputs.[155]
However despite these issues (which may also exist in other industries), it is clear that client input can play a vital role in improving quality and ensuring that services are responsive to client needs. The Australian Business Excellence Framework approached this issue by devising a checklist to assist business to identify priority areas.[156] In the checklist, businesses were asked a range of questions on a four-point scale (Never, Sometimes, Often, Always) that included, 'My organisation uses identified gaps between client expectation and perceived value to drive process improvement', and 'Progress against organisational indicators is regularly analysed.'
In addition to surveying, internal auditing can be of assistance and provide feedback from those involved in service provision. For example, job analysis and other tools can assist with this process.[157]
In addition, complaints processes may vary greatly between states. Essentially these types of complaints processes rely on industry self-regulation and/ or external regulation. Industry self-regulation has a number of advantages. However, given the breadth of types of practitioners in the conflict resolution area and the multi-disciplinary nature of practice, it may not be possible to consider self-regulation or industry self-regulation. There may be too many individuals and professional groups practising in the field for self-regulation to be practical or effective.
There are also issues about what may constitute a 'complaint'. For example, most law societies have promulgated standards of conduct for solicitor mediators.[158] Other professional bodies and community organisations have also established standards for their accredited mediators.[159]
The Law Council of Australia has promulgated model ethical standards for mediators.[160] The content of the standards is similar to the Society for Professionals in Dispute Resolution - SPIDR's Model Standards of Conduct for Mediators.[161] The standards are drafted as core principles with attached commentary. The commentary provides practitioners with guidance as to ethical issues that may arise in the course of the mediation. In particular, there is extensive commentary covering issues of impartiality, conflicts of interest and confidentiality. The model standard also warns mediators that their 'conduct should not be influenced by a desire to achieve a high settlement rate.'[162] However, such standards may indicate preferred approaches but may not indicate what forms the basis of a legitimate complaint. For example, to what extent can mediators who provide an opinion as to the likely outcome of a dispute be the subject of a successful complaint? The lack of clarity surrounding process definitions creates a lack of certainty about what may constitute a complaint.
Practice standards may also be maintained by codes of conduct which may be entirely voluntary or may result in sanctions if breached. At present most codes of conduct are in the form of guidelines without any specified sanction for breach of the code.[163] However, sanctions may be indirectly applied through re-accreditation requirements. Practitioners who do not comply with an organisation's code of practice are unlikely to be re-accredited.[164]
As with education, training and accreditation there is no one body overseeing the maintenance of practice standards. Some ADR practitioners believe that the diversity of mediation practice is so great that it is difficult to justify the establishment of one accrediting body in Australia.[165] The same argument could be used against a national body for the maintenance of standards. Pou[166] has also noted that grievance and enforcement processes may raise confidentiality challenges. In addition, complaint processes could attempt to employ mediative, ombuds, or other interest-based approaches - at least at the first stage - in lieu of formal hearings. However, relatively little attention has been focussed on the mechanics of grievance and ethics processes. NADRAC recommended an independent second tier, such as an industry ombudsman or similar, form part of a complaints' mechanism, but recognised the practical difficulties associated with its introduction in a diverse and fragmented field.[167]
Courts and tribunals that have mandatory referrals to ADR processes may also have particular responsibilities for ensuring the maintenance of standards, given that disputants are obliged to use these processes.[168]
One option for developing a uniform complaints handling process could involve referring complaints to an existing framework such as the Commonwealth ombudsman. This has a number of advantages - such as one central complaints body - as well as disadvantages. For example, lack of industry 'ownership' and potential issues in terms of feedback mechanisms.
Any future quality framework could be viewed as requiring more than reaching a benchmark or standard of practice. Instead it could be regarded as the systems, processes and procedures that promote best practice and continuous improvement, as well as minimising risks and poor practice.[171]
Most quality systems designers suggest that in order to entrench quality systems and outcomes, it is important to create a quality culture rather than a compliance culture. This means a culture committed to continual enhancement of its quality rather than just making sure that a framework meets the minimum standards required.[172] In the family conflict area, this may require ensuring that practitioners who are involved in facilitative processes are valued and fostering an environment that promotes innovation and high quality services.
This chapter explores the various ways quality standards can move beyond compliance and assist to create a culture of quality enhancement, by encouraging the commitment to and the participation of those who deliver services in this field to continuous improvement and best practice. In view of the project focus on 'standards', this chapter is intended to inform longer term research into how quality can be improved.
It is in the interests of the future development of mediation to respect a diversity of approaches and practices, to include rather than exclude potential practitioners, and to encourage the continuing evolution of the discipline[173].
In addition to diversity in practice, family conflict resolution practices are not comprised of static processes, and arguably any quality framework needs to encourage the continuing innovation, evolution and development of the discipline[174]. In the Australian context, both NADRAC and expert contributors to 'Raising the Standard', have endorsed the value of protecting and promoting ongoing innovation and development in the mediation field.[175] Any quality framework also needs to support the ongoing development and evolution of practice.
Exploring and testing new models and practices is one way of stimulating innovation and improvemenst in practice. Funding from government or other sources can support innovative projects that may be portable and assist families involved in conflict.
In recent years, there have been a number of initiatives that have trialled new ways of assisting couples in entrenched conflict to resolve their disputes, particularly disputes about children. Two examples are the development of a child- inclusive practice model[176] and combining mediation with therapy.[177]
A model of child-inclusive practice was researched and piloted with a government grant at the Family Mediation Centre in Melbourne.[178] This initiative eventually led to the Australia-wide Children in Focus program, a series of symposia and workshops[179] which aimed to inform and skill practitioners about child-focussed and child-inclusive practice. It is an illustration of how exploring new practice models can have a significant impact on the nature of practice.
Another recent example, the Conjoint Mediation and Therapy (CoMeT) pilot, was conducted by two Victorian agencies and with seeding finance provided by the Commonwealth Attorney-General's Department. This project was directed at addressing the needs of those involved in intractable family conflict where standard mediation models had had little impact. The model combined mediation and therapeutic strategies. The pilot is now being trialled more extensively.[180]
The Family Court is currently trialling a more facilitative and inquisitorial model of hearing that involves families in conflict. The trial is yet to be evaluated but its existence indicates the scope for possible extensions of process in this area.
Mentoring processes and sharing information about good practice can assist to enhance a quality culture by supporting and promoting skills transfer within the sector, and can be considered part of ongoing professional development and supervision. Family law facilitation is an evolving field, in which innovative and varied ways of dealing with family conflict and improving models and practice are being explored. Mentoring and the exchange of expertise provide ways for the skills and knowledge involved in new models of practice to be disseminated, as well as providing a mechanism for expanding existing competencies. Mentoring ought not to be only part of initial training, or part of inducting new mediators into an agency. It can be an ongoing process that encourages and rewards cross-fertilisation of ideas and practice by a variety of mechanisms, and could extend beyond community agencies to the sector as a whole.
Mentoring may be particularly effective for regional and sole practitioners who may not have the benefit of working within an existing mentoring organisational structure and who may not benefit from the same level of ongoing professional education. Non aligned practitioners could, for example, be required to be part of a mentoring program that involves linking with either funded or unfunded agencies or individuals. This could be adopted in a flexible manner or could form part of ongoing self or external audit processes.