Should mediation be regarded as a separate profession?

By Spencer Csapo-Grege

This post is the second in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.

 

I INTRODUCTION

For effective dispute intervention, mediation may be a necessity. Issues may arise as intervention through mediation requires a particular skill set that is not taught to all mediators. Because mediation requires independence of knowledge it could thus benefit from existing as a unique profession.

The central issue is whether the lack of legal, or other specialised expertise in independent mediation outweighs the positive benefits of independents being solely trained in mediation skills. I propose that it would – mediation should not be a distinct profession, based on three peripheral issues.

The first is that of qualification, it is already evident that Mediators can be sufficiently qualified to demonstrate an appropriate standard in their mediation ability.

The second issue addresses the need for professionalism, over the potential loss of individual comfort.

And, the third is the issue of Content – independent mediators may not understand, and hence be able to implement, necessary content into their mediation, such as a mediator not being able to recommend legal options due to a lack of formal training in the law.

separate

Mediation should remain a separate profession. Photo: creative commons source

II ISSUES OF QUALIFICATION

Dispute resolution practitioners currently rely on their status as professionals in other fields such as law, psychology or social work to demonstrate their expertise into the area of mediation. Due to this diversity there are mediation laws which both regulate the requisite standard of mediation, as well as mediator accreditation.

In the National Mediator Accreditation System mediators do not require a formal qualification to satisfy mediation standards. A requisite of experience in mediation, or good personal attributes can satisfy the qualification criteria – demonstrating the potential of being insufficient.

Hence it can be erroneously said that mediation would benefit from formal qualification as its independent identity as a profession will be established, rectifying this potential of insufficiency. However, mediation involves dealing with the individual’s specialised issue, and the accumulation of content relevant experiences aids in its resolution. Thus the identity of mediation is based on the content mediated upon, not on the process.

The current system is effective in recognising this through interconnecting mediation, as dispute resolution, into its relevant field, such as law.

If mediation was a separate profession, there may be two possible financial benefits. Firstly, having to pay someone who has been educated in another profession to mediate, such as law, can be more costly than if mediation was distinct, because the education requirements would likely be less. Secondly, because of this educational difference, Mediation is subject to possible monetary exploitation – lawyers’ fees can be standardised as expensive due to their legal expertise, and not because of their ability to mediate.

This is problematic because monetary gain should not be the driving force behind mediation. If a mediator only cares about making a profit, and not the parties’ situation, then they may stall time to earn a higher profit, even though it is not in the best interests of those involved. Thus a distinct profession of mediation, that is capable of attracting individuals desiring mediation for reasons other than financial gain remains beneficial.

Even though there is possible financial detriment and shortage of formal qualification, the established method of mediator qualification remains sufficient because it binds and aligns dispute intervention to its relevant field. However, the current system of qualification may not be adequate. This is because the National Mediation Accreditation System primarily focuses on facilitative mediation and fails to cover the full range of mediation practices.

However, this flaw also represent the adverse effect that separate mediation can bring – an inapplicability of appropriate mediation principles to specific subject matter and a possibility of exploitation due to mediator exclusivity. Thus, current mediation regulation should not be revolutionised so that mediation is an independent profession.

III ADDRESSING INDIVIDUAL WELL-BEING THROUGH PROFESSIONALISM

A Assistance of Therapeutic Mediation?

A contentious issue with the integration of mediation with other fields is the impact of the people involved on an individual level. If mediators were trained independently, there would be stronger emphasis on the individual and the relationship of the parties – thus therapeutic mediation could benefit. However, a professional able to help with the specific dispute at hand is likely to aid individual well-being because the parties will appreciate the mediator’s assistance on the basis of their professionalism – finding comfort in the mediator having relevant expertise to deal with the content matter of issue. For example, although a psychologist has better educated understanding of, and thus will take into account, the individuals emotional and mental well-being – as opposed to a lawyer. It is probable an individual will be more distressed in a psychologist trying to mediate for them in a matter of law, then a lawyer, because the psychologist is not trained in legal procedure.

B Advancement of Facilitative mediation?

Facilitative mediation is proven to be the most common form of mediation in Australia and is thus the recognized standard. If the integration of mediation advances facilitative mediation, then it indicates that mediation should not be a distinct profession. Integrating mediation provides for a more accurate basis of assessing an individual’s needs, which is important to facilitation, because it’s concerned with addressing both the personal and commercial needs of the parties. And, complete understanding of the individual’s options and abilities, in the case of law, are only prevalent because of the mediator’s legal background. Because mediators cannot usually give legal advice, parties are encouraged to have a lawyer attend with them as the need for legal understanding arises. Thus there is an issue in that a lawyer may want the most profitable outcome for themselves, and not necessarily the best situation for their client, and can, as an advisor to a party in mediation, cause disruption. This issue would be increased if mediators were separate and did not have legal training, because people would be further required to bring lawyers with them, for greater comprehension in choosing the best course of option between mediation and legal. Due to this dependent variable, the parties’ needs may not be prioritized and therefore a separate profession of mediation should not be established.

IV DIFFERENCE IN CONTENT

If mediation was a distinct profession would need to overcome the issue of how to achieve specialization in the subject matter of each mediation. We know that mediators intervene in the content of disputes, even in facilitative mediation. For effective intervention they must be familiar with the subject matter so that they can adequately provide information – based on all available knowledge. Content differentiation varies depending on the type of mediation, however, as outlined below, in general it is likely to indicate that mediation should not be a separate profession, but instead exist as a form of specialisation within its relevant profession. For example – as a lawyer, psychologist or social worker specialising in mediation, with requisite qualifications that demonstrate both their ability to work in the relevant field, as well as their ability to mediate.

The most appropriate option for parties to take may not be that of pure mediation but, for mediation to be a specialisation in a range of professions, such as law. Lawyers are trained in law and can rely on that experience to resolve the issue in a way that may be practical in the circumstances. This is because the legal avenue, may be more feasible then pure mediation. Thus, for a dispute to be resolved in a balanced manner the recommendation of legal options can also play a vital role in mediation – such as through settlement mediation to determine if the matter can be practically resolved in the legal sense, not just through negotiation. Hence, if mediation was independent, it would be difficult to intervene in disputes because the intervener, the mediator, may not fully comprehend the matters of discourse.

Mediation as a separate profession causes another issue in that if a mediator was mediating on a legal matter, but was not trained in the law, they would not be able to predict court decisions, and pressure parties into accepting on the basis of their predictions. Essentially evaluative mediation would be non-existent, or at best, less accurate. Thus, as evident, it is not feasible to blend all the content on which mediation can be applied, into one distinct profession.

V CONCLUSION

Mediation incorporates differing aspects and thus its independence can create broadness which undermines the field itself. The first two issues discussed, that of qualification and professionalism are contentious, and indicate possible support for independence – financial benefit towards the public and emotional health of the parties. Support for the third issue is highlighted as many mediation services focus on the resolution of relationship issues, and not just legal problems. However because relationship issues can be largely influenced by the law, a requisite of comprehension which remains vital to mediation. The third concern discussed demonstrates that this requisite of comprehension only exists with the knowledge gained through formal training in a relevant profession – supporting the current system. Mediation is hence mutually intertwined with its relevant subject matter, whilst benefit is also provided in its separation. As a result, the most suitable conclusion is that there should be organisations within the relevant professions, such as law, to manage mediation – it should be an area of specialised expertise, and not an area of independence.

 

Mr Spencer Csapo-Grege is a third year law student at Monash University with a primary interest in international law, banking and investments. He wishes to focus specifically on international investments, with a particular orientation towards banking. Furthermore, Spencer aims to be involved with international politics through the United Nations – he believes that state sovereignty has no place in a globalised world. For the practice of domestic law, Spencer’s interests are in alternative dispute resolution as he believes that most issues should be resolved outside of the court system. Currently Spencer runs a licensed investigations business and aims to finish his undergraduate studies at the end of 2017.

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About Dr Becky Batagol

Dr Becky Batagol is a senior lecturer in law at the Faculty of Law, Monash University. In 2017, she is the President of the Australian Dispute Resolution Research Network. She is a researcher and teacher with a focus on family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law. Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles. Becky is the chief-editor of the ADR Research Network blog and tweets regularly under the handle @BeckyBatagol.

One thought on “Should mediation be regarded as a separate profession?

  1. Thank you for this post Spencer. Whether or not content knowledge is important for mediation quality is a long standing debate, and the desirability of content knowledge arguably varies between mediation model and/or legislative requirements imposed upon the mediator (eg in FDR). One of the most common ethical dilemmas in mediation practice is deciding how best to respond to parties who misunderstand the external objective knowledge that applies to their dispute (eg their legal rights and/or entitlements, the likely legal outcome of their dispute, the likely psychological effect of proposed parenting arrangements on children). Mediators with content knowledge often try to actively resist bringing that knowledge into the mediation room. Others are content to meet the expectations of parties or lawyers, who may have chosen the mediator because they want advice and/or information (another grey distinction). I think you bring an interesting perspective – that the mediator needs some level of understanding of the content of the mediation, because that is what defines the process itself. I’d like to offer an alternative view. I remember distinctly an FDR process where I was confused about the complex arrangements that the parties were discussing. I decided that it didn’t matter whether or not I understood, and went with it, mapping on a whiteboard what they discussed. I thought there was no need to impose my need to understand on their time and space. It was an interesting experience, because by the end of an hour I understood what they were talking about, and they found the whiteboard quite helpful in organising their complexity/chaos and deciding what they wanted to do. It makes me tend towards a view that maybe the mediator’s understanding doesn’t matter so much. Our main skill is in providing a place, time, and framework within which the parties can communicate. Or is it?
    I think that your observation that many mediators specialise within particular content areas of expertise is very true, and specialisation makes sense in terms of building expertise and reputation within particular communities. I do think that the NMAS requires mediation training. It is true that there are some ways [2.5] that experienced mediators may obtain accreditation without undertaking the minimum 38 hour training that meets the requirements of [2.3] & [2.4]. However, they need to demonstrate the equivalent level of demonstrated competence in mediation itself. These alternative pathways reflect the youth of the mediation field, and are primarily designed to enable experienced mediators to obtain accreditation without unnecessarily engaging in baseline training.
    But do mediators really need that “other” area of expertise? I for one would love to develop the first undergraduate course called “Bachelor of Dispute Resolution”. People could combine it with their “other” discipline to equip them for specialised mediation practice, but perhaps the brave could undertake a straight DR degree with practitioner training alongside? I hope that a greater presence of DR in university undergraduate programmes, across many disciplines, is on the horizon.
    All worthy subjects for conversation, thanks again for raising your interesting views and contributing here. Rigorous conversation is what we’re all about.

    Liked by 1 person

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