Divorce Mediation Standarts in Australia: Overview of Nmas

The concept of divorce mediation is deeply explore in the following essay as well as base improvment of National Mediator Standards Board (NMAS) in the US. The National Mediator Standards Board aims to encourage quality, consistency, and responsibility regarding mediation practice in Australia. This system was established in 2008 and currently holds the National Mediator Accreditation Standards for individuals wishing to become a mediator. Although I believe this system may be proven helpful in most cases, over recent years there has been flaws in the system that could be further developed based on regulation standards set in California.

What is Mediation? Mediation in Australia is defined as ‘a process in which the participants to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop opinions, consider alternatives and endeavor to reach an agreement'. A mediators role in negotiations and mediation is to be illustrate impartial and unbiased behaviour and to use their knowledge to assist parties in coming up with a mutually acceptable agreement. Types of mediation can include facilitative, evaluative and transformative.

Mediation Regulation, Accreditation and Other Standards in Australia

I strongly believe mediation is significantly regulated in Australia. The Mediator Standards Board (MBS) are responsible for the regulation of accreditation and standards in Australia, these standards are referred to as the National Mediator Accreditation System (NMAS) which were first introduced in 2008.

Negotiation has proven to be an effective part of a lawyers responsibilities as they must evaluate relationships between two or more parties and be able to effectively manage conflict in disputes. ‘In business, as in life, you don’t get what you deserve, you get what you negotiate’. One of the most effective ways for parties to resolve a dispute is through principled negotiation which can be facilitated by a negotiator or by parties themselves. Often, negotiators will already have determined what parties best case scenario and worst-case scenario is. The main features of this process include separating people from the problem, focusing on interests, thinking of various possibilities, and claim the outcome is based on certain criteria. Usually parties may encounter difficulties in negotiations such as ultimatums, lying or planned delays, therefore if this happens it is important to remember to participate in role reversal, taking a break and reality checking in order to have the best chance of resolving their issues. Before participating in this process parties should develop their own strategies by making a list of what they wish to achieve in the process.

]The creation of a Recognised Mediator Accreditation Body (RMAB) assists in the process of accreditation requests of mediators. These requests may include a 38-hour workshop with mediation hearings, written assessments and a good character test. Mediators must follow basic rules such as age and experience and will need to be re accredited every two years. Finally, they must comply with approval standards which include training and assessments and reading the practice standards listed under NMAS.

Overview and Background of NMAS

The National Mediator Accreditation System comprises of multiple foundations that all intertwine including, approval standards used throughout the training process, practice standards which help accredited mediators recognise the minimum practice requirements, Recognised Mediator Accreditation Bodies (RMABs) who help in the process of accrediting mediators, the Mediator Standards Board (MSB) who are responsible for NMAS and the register of nationally accredited mediators.

The purpose of NMAS is to ‘promote quality, consistency, and accountability of NMAS accredited mediators within the diversity of mediation practice in Australia. It informs participants in the mediation (participants) about what they can expect of an NMAS accredited mediator’.

NMAS approval standards are applicable to any individual seeks accreditation to a mediator who is currently accredited with NMAS. These approval standards help to specify the training, qualities, and experience needed to become an accredited mediator. If they wish to renew their accreditation, they need to comply with the NMAS practice standards. In addition to this, there is an extensive list of requirements that must be met which include disclosing any prior criminal convictions and providing written references showing they have good character.

Practice standards under NMAS disclose the minimum hours of practice and competence needed to become an accredited mediator, it also provides information about what will be expected of them during the process of mediation (where a mediator uses their skills to help participants in mediation make their own decisions), and finally must align with the NMAS approval standards.

There are a number of qualifications that RMABs must have to accredit a mediator including a financial membership, the capability to refer members to undertake in specific activities, a complaints system and a minimum of ten accredited mediators of NMAS who bona fide members or workers just to name a few.

I believe another vital element of NMAS is the MSB who oversees the continuous development and upkeep of NMAS and the National Register. Some of their key requirements include updating NMAS when it is needed and supervising the application of approval and practice standards ensuring they are consistent and provide public protection surrounding mediation accreditation.

The National Register is a system that issues reminders to accredited mediators when their accreditation needs to be renewed. The National Register is a list of mediators who have been accredited in accordance with NMAS.

Background andOoverview of the US California Framework

The majority of California law regarding mediation regulation and confidentiality in mediation comes from the California Evidence Code. According to section 1115 (a) of the Evidence Code mediation is defined as ‘a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement’.

On January 1st, 2019 a new California law was created, which required a lawyer to ensure their clients understood any allegations towards California's legal protections in regard to mediation communications before a client deciding to take part in mediation. 'If the client has already agreed to mediation before seeking counsel - by participating in divorce mediation, or signing a contract with a mediation clause, for instance - then informed consent will be required as soon as possible after engaging counsel'.

The framework regarding mediation regulation in California significantly differs from mediation regulation in Australia. California holds strong beliefs on confidentiality and insists that mediation should be consented to by both parties, ‘all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential’.

As of August 1st, 2017 California, has implemented a fundamental framework that heavily assists in the process of mediation which is known as the Regulatory Robustness Rating (RRR). This system emphasises regulatory standards to govern the robustness of a jurisdiction's supervisory framework compared to trans-national mediation. This system suggests options to ‘analyse the quality and robustness of a jurisdiction’s regulatory framework for cross-border mediation, factor such an analysis into choices about governing law in mediation clauses and other agreements, inform law and policymaking in relation to cross-border mediation’. This system includes 12 pieces of important criteria that are ranked according to their importance.

Key Themes of the US California Jurisdiction Framework

There are many similarities and differences between the mediation regulation standards in California compared to Australia in terms of voluntary mediation, sanctions by law if mediation is not tried in good faith and accreditation standards. The main mediation style used in both Australia and California is facilitative and evaluative however California tends to lean more to the evaluative side and Australia to the facilitative.

Mediation regulation in California is always voluntary. The state courts regarding all jurisdictions are separated by counties with one system for 58 different counties. Each county has its own Supreme court that has its own set of local rules and ADR programs using the provisions laid out in the California Code of Civil Procedure (CCP). Therefore, mediation is usually always voluntary the Code of Civil Procedure states ‘the court shall not order a case into mediation where the amount in controversy exceeds $50,000’. In Australia, this process is the opposite as it is not always voluntary. 

California offers no sanctions by law or courts if mediation is not tried in good faith. Courts in California can not order sanctions for not mediating in good faith as it goes against California's confidentiality laws. The most common sanction established in the Van Slyke v Gibson 2007[footnoteRef:9] case is the phrase stating that the losing party must pay the winning parties attorney fees won't apply if this party violated the guideline concerned with mediation participation. This process is completely different in Australia as courts take certificates into consideration when deciding to refer parties to mediation and each party in proceedings is responsible for their own costs ‘each party to proceedings under this Act shall bear his or her own costs’. This helps ensure that parties attempt to resolve their dispute hence why they must file a genuine steps statement when submitting their applications.

One of the most significant differences between these countries is the mediator accreditation standards. In the United States becoming a mediator is not a licensed profession, and typically anyone can become a mediator regardless of their experience and training. Whereas, in Australia mediators may not be required to be accredited apart from in family dispute resolution cases. However, the NMAS system was established to assist aspiring mediators with the accreditation process and their standards. California states that the number of hours needed for basic mediator training is 40 hours, and as I mentioned previously Australia only requires 38 hours of basic training. Finally, neither California or Australia requires accreditation through a written exam or performance-based test, however, Australia requires accreditation through sets of rules where California does not.

On the other hand, one feature that both California and Australia share is that mediation is compulsory in certain situations. Despite most cases in California stating they will not be forced into attending mediation, under section 1775.5 of CCP higher courts have ordered compulsory mediation for civil cases that don't exceed $50,000. Similarly, in Australia mediation is mandatory for Family Law cases.

Areas For NMAS Improvement

Although I credit NMAS for being effective in some instances through the continuous development of the system, I personally believe there are many elements to this fundamental system that could be further improved to increase the efficiency and effectiveness for aspiring mediators in Australia.

As we know for a mediator to be accredited in Australia one of the processes, they must comply with is the strict approval standards. However, in the United States becoming a mediator is not a licensed profession and anyone is able to become a mediator regardless of their training and California also does not have a strict set of rules that need to be followed for this process. Therefore, adopting California’s behaviours to this approach could benefit the way mediation is regulated in Australia.

I am also concerned with the State or Federal system deciding to accredit mediators under the system as the ‘pool’ of mediators chosen may be limited. This may also deter several experienced mediators from pursuing accreditation leaving the Commonwealth without many skilled mediators. This may be improved by allowing anyone to become a mediator which would give the Commonwealth the opportunity to gain skilled mediators. Additionally, seeking re-accreditation every two years is a process that can become very time consuming for mediators and RMABs due to having to resubmit the lengthy evidence process under NMAS. Therefore, NMAS could be improved by ensuring this process is not so difficult or time-consuming and provide a process that is more impartial when choosing mediators to be accredited.

The final and most important element I will mention that could be improved is regarding NMAS and the training and education required to be an accredited mediator. As I mentioned prior the number of hours approximately needed for training mediators is 40 hours, this may not be a sufficient amount of time to train aspiring mediators. Nevertheless, the solution to this problem is simple instead of a 40 hours program the number of hours should be increased to 140 (excluding assessments). Although increasing the hours of training may add additional costs to this process increasing training hours will provide many advantages long term. Increasing training hours will lead to higher standards of mediators by raising the benchmark for qualifications and provide a greater understanding of the practical skills required in the mediation process.

Bibliography

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4. Kelly, J. B. (2020). Children's adjustment in conflicted marriage and divorce: A decade review of research. Journal of the American Academy of Child & Adolescent Psychiatry, 59(2), 240-250.

5. Kressel, K. (2013). Mediation research: The process and effectiveness of third-party intervention. John Wiley & Sons.

6. Landau, J., & Deutsch, R. M. (2013). Psychology and family law: A new area of collaboration. Journal of Clinical Psychology, 69(5), 415-424.

7. Lorig, T. S. (2017). Divorce Mediation from the Inside Out: A Mindful Approach to Divorce. American Bar Association.

8. Notarius, C. I., & Buongiorno, R. M. (1992). Longitudinal follow-up of marital interaction and the dissolution of marriage. Journal of Consulting and Clinical Psychology, 60(4), 660-667.

9. Pearson, J., & Thoennes, N. (1991). Mediation and separation: A longitudinal analysis. Journal of Divorce & Remarriage, 15(3-4), 163-179.

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10. Weiss, R. L. (1994). The marital interaction coding system. In Handbook of family measurement techniques (Vol. 3, pp. 344-346). Sage Publications.