By Professor Laurence Boulle, Thomas More Law School, Australian Catholic University
This piece complements the post by Associate Professor Bobette Wolski introducing the Australian National Mediator Accreditation System (NMAS) published on this blog earlier this month.
Version 2.0 of the NMAS became effective on 1 July 2015. It is designed to enhance the quality of mediation practice by up-dating and simplifying the previous standards and provide some structure to RMABs and the MSB.
This version had a painful and protracted parturition. Drafting should be easy but having been involved in these standards, and in a similar system abroad, I know this is not the case.
The political context
It is challenging to keep all interest groups within the tent, particularly lawyers who approach the practice standards from a risk perspective and are concerned that any specificity in regard to the mediation procedures could leave them exposed. Indeed, the legal profession might yet elect to set up its own standards.
The indeterminacy of words
As HLA Hart told us decades ago, all words have a core of certainty and a penumbra of uncertainty. As soon as one starts drafting the core seems to shrink and the penumbra to expand. Drafters spend hours pondering over the meanings of words. Fortunately the NMAS is not a bilingual document.
We all thought, post-NADRAC, that definitional conundrums were behind us. Sadly they are not. Drafters, at the risk of their health, endlessly revisit definitions of ‘mediation’, ‘conciliation’, ‘blended process’, ‘impartiality’, and the like. Thanks to the work of a few radical revolutionaries ‘neutrality’ was not defined but banned from the discourse.
Volunteers work in bursts of frenetic activity, followed by weeks and months during which the momentum is lost. In the eventual pursuant meeting they start again: definitions, words, politics and the rest. Not to mention the ego challenges which surface in the interstitial crevices of drafting projects.
The evidence question
Has the NMAS improved quality in the provision of mediation? As usual the evidence is meagre. Will version 2.0 enhance knowledge, skills and knowledge in the area? Time might tell. But it might not. Social science surveys tell us that social science can only survey 20% of the variables in human variables. Mediation is a social science.
For the above reasons all Standards, and all drafting, involve many compromises and many are reflected in the NMAS version 2.0. Now it’s over to the research scholars to analyse the contribution they make to dispute resolution practice. However please mind your definitions.