By Bobette Wolski, Bond University
By now, most mediators in Australia are familiar with the National Mediator Accreditation System which facilitates accreditation of mediators (and the creation and maintenance of a national list) and regulation of their conduct.
The National Mediator Accreditation System (‘NMAS’) commenced operation in Australia on 1 January 2008. The NMAS is an industry-based system which relies on voluntary compliance by mediator organisations (known as Recognised Mediator Accreditation Bodies or RMABs) that agree to accredit mediators in accordance with stipulated NMAS Standards. Two sets of Standards were promulgated in 2007-2008: Approval Standards which define minimum qualifications and training for accreditation and Practice Standards which specify the minimum practice and competency requirements of a NMAS accredited mediator. The NMAS and the Standards were recently revised, with the revisions becoming effective on 1 July 2015. As a result of the revisions, the Approval and Practice Standards are set within the context of a ‘broader document covering ancillary aspects of the NMAS’ including an Introductory section (Part I), more formal provision with respect to RMABs including the imposition of an obligation on them to upload to the National Register the list of mediators accredited by them (Part IV), provision with respect to the Register of Nationally Accredited Mediators (Part V) and a section dealing with membership and responsibilities of the Mediator Standards Board (MSB) (Part VI). (See letter from Anna Lee Cribb, Chair of MSB to members, dated 8 March 2015, together with a history of the development of the standards, available from the NMAS website).
Behind the scene, the process of drafting of standards of conduct is itself fraught with difficulties. Most standards end up representing a compromise between various possibilities eg between being specific and prescriptive on the one hand and general and aspirational on the other; and reflecting the tension between the need for certainty, predictability and enforceability on the one hand and flexibility and scope for the exercise of discretion on the other.
Laurence Boulle AM, Professor of Law at the Australian Catholic University, author of many popular mediation texts including Mediation: Principles, Process, Practice and former chair of the Mediator Standards Board was asked to share his experience of the process of drafting the NMAS Standards.