Revision of the National Mediator Accreditation System (NMAS) effective from 1 July 2015 will remove the requirement for mediators to demonstrate understanding of neutrality as an ethical competency. In addition, reference to the distinction between the process of mediation and its content and outcome have been omitted from the revised system. This distinction has been integral to the classic, facilitative model of mediation. The distinction was also central in understanding the role of the mediator as in control of the process of mediation but neutral as to its content and outcome.The principle of self-determination, referenced in the revised definition of mediation and newly included as an ethical competency, appears more explicitly as a central, guiding principle. Over time, neutrality and party self-determination have been central principles in defining and guiding the relationship between mediator and parties.
How will this relationship be constructed moving forward? This is the subject of my presentation at the ADR Ethics for Practitioners Symposium to be held at La Trobe University, School of Law and the Dispute Settlement Centre on 19 June 2015. The title of the presentation is: ‘Ethics in mediation: Centralising relationships of trust’.
I will advocate that relationships of trust can and should be the core organising principle of mediation practice. Furthermore, those relationships can and should be constructed from a socio-legal perspective that incorporates principles associated with both fiduciary and therapeutic relationships. This thesis is based upon empirical data of actual practice and incorporates existing practice principles. It therefore has immediate relevance for practitioners.
Development of this thesis has been the result over time of my examination of neutrality, self determination and reliance on the distinction between the process of mediation and its content and outcome as a central organising principle of practice. Papers tracing that development are referred to below.
Douglas, S (2013-12) ‘Neutrality, self-determination, fairness and differing models of mediation’ James Cook University Law Review, Special edition on conflict and dispute resolution, (19), 1-20.
Douglas, S (2012) ‘Constructions of neutrality in mediation’, Australasian Dispute Resolution Journal, 23 (2), 80-88.
Douglas, S (2009)’Questions of mediator neutrality and researcher objectivity: Examining reflexivity as a response’, Australasian Dispute Resolution Journal, 20 (1), 56-66.
Douglas, S (2008) ‘Neutrality in mediation: A study of mediator perceptions’, Queensland University of Technology Law and Justice Journal, 8 (1), 139-157.