16 March 2006

Laurence Boulle
Professor of Law
Bond University

Email: lboulle@staff.bond.edu.au

Dear Professor Boulle

Submission - National Mediator Accreditation Scheme
This submission is provided by La Trobe University, School of Law – Conflict Resolution
Program staff.
La Trobe University Law is the largest provider of conflict resolution training in Australia. In
2005 it provided training to more than 500 individuals.
Also, La Trobe University is a significant provider of mediation training. It provides mediation
training and education in a range of settings including the undergraduate setting, the postgraduate
setting (where a range of programs operate leading to a Graduate Certificate in Conflict
Resolution, a Graduate Diploma in Conflict Resolution, a Graduate Diploma in Family Mediation,
a Masters of Conflict Resolution, a Masters of Law as well as two professional doctoral programs
and a PhD program). And it provides professional education training for a range of organizations,
including the Law Institute of Victoria.
La Trobe University provides a range of programs to meet industry specific guidelines and its
postgraduate program has been in operation for more than 10 years.

General comments
La Trobe University is generally supportive of the minimum criteria training approach adopted in
the draft documentation. Whilst it considers that the criteria are too basic, it understands that the
accreditation process is iterative and considers that threshold accreditation processes could be of
benefit in some sectors.

La Trobe University
1
City Campus, 215 Franklin Street
Melbourne VIC 3000 Australia
Telephone: +61 3 9285 5201
Facsimile: +61 3 9285 5231
Email: profstudy@latrobe.edu.au
Web: www.latrobe.edu.au/law

ABN 64 804 735 113

Primary concern
La Trobe University is however concerned about the relationship between training and
accreditation functions. In general, La Trobe University considers that mediation training is
carried out in a range of ways – for example, industry training (Relationships Australia, Unifam,
LEADR, IAMA, La Trobe University Professional Development, ACDC, Trillium etc), TAFE
training and University training. In La Trobe University’s view, a conflict of interest can exist if
the same body is carrying out training and final accreditation or certifying functions.
In our view, Mediators should be able to access training in a range of ways that meets minimum
requirements (as noted in the draft documentation). The training provider should not however be
required to accredit the mediator. This function should be undertaken by a professional body as is
the case with almost all other professions. The RMAB scheme assumes that mediators will be
educated or trained by the same body that accredits them. La Trobe University has no difficulty
with the notion that training organisations be registered or ‘approved’; it welcomes this
development. However La Trobe University considers that the ‘certifying function’ should be
carried out by professional bodies which are better equipped to deal with related issues such as
complaints, continuing accreditation, ancillary accreditation (for example, evidence of good fame
and character), mentorship and supervision, and the review of disciplinary and performance
management procedures.
La Trobe University notes that unlike the legal, medical, social work and psychology professions,
in which practitioners are required to have approved tertiary education training and separate
certification, mediators may come from a variety of professional and educational backgrounds.
Although both in Australia and overseas there are increasing opportunities for tertiary
qualifications specifically in mediation, the acquisition of mediation training often follows
grounding in other disciplines to which allegiances and responsibilities are owed, in the first
instance, to the relevant professional body. For example, the Psychotherapy and Counselling
Federation of Australia (PACFA)1 has its own ethical guidelines and membership criteria,
together with requirements for ongoing professional developments and a mechanism for
complaints to be referred to the Psychologists Registration Board. Mediators with social work
training who wish to be a member of the Australian Association of Social Workers must abide by
that organisation’s Code of Ethics,2 (although it is unclear whether this is so if the social worker is
acting as ‘a mediator).
La Trobe University considers that professional organisations that are already in existence, or that
may come into existence (by satisfying a minimum member requirement), such as VADRA,
LEADR, IAMA, the Law Society and Law Institutes etc should be responsible for certification
and ongoing accreditation. The notion of the training body also ‘certifying’ is particularly
problematic when one considers ongoing accreditation, complaints functions and maintaining a
register of mediators. These issues are discussed further below.
Whilst La Trobe University clearly is interested in training and educating mediators (and has done
so for many years), it does not consider that universities should be involved in these ongoing
functions or final certification. These functions are more appropriately carried out by professional
bodies that are not providing training. La Trobe University notes that other training bodies do not

1  PACFA is the national ‘umbrella’ association comprising affiliated professional associations of psychotherapists and
counselors: <http//www.pacfa.org.au> 
2  <http//www.aasw.asn.au> (August 2003) 

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currently ‘certify’ or accredit. For example, the Trillium Group does not accredit mediators. Many
overseas training organisations do not accredit. Instead, they certify attendance at training. La
Trobe University is aware that mediators trained through the various programs it runs seek
‘accreditation’ in a range of ways. For example, some are accredited through LEADR after
undertaking the separate video accreditation process and others are accredited through Law
Society and Law Institute arrangements. Others are ‘accredited’ through our agency placement
program.
In La Trobe University’s view, separating the training from the final certification has a number of
advantages. The possibility of a conflict of interest is considerably reduced and there is greater
certainty that minimum benchmarks are achieved. Such an approach also encourages the
development of new training providers. The separation of these functions could be achieved by
both LEADR and IAMA setting up separate ‘training’ arms. For other groups currently operating
in the area, such as university providers, TAFE and industry trainers such as Trillium, their
operations could continue on the same basis although there would naturally be a requirement that
their training meets or exceeds the minimum benchmark standard. VADRA and other professional
groups would need to consider to what extent they wished to certify (VADRA does not conduct
training but provides a continuing professional education function). In La Trobe University’s
view, this approach of separating education and training functions from certification functions is
more in line with existing professional certification approaches.
In respect of the proposed examination certification approach, La Trobe University is concerned
about the notion of a written examination. It favours a video accreditation approach and written
reflective analysis that comments upon ethical issues and power balance issues. La Trobe
University considers that examination approaches are often unhelpful in assessing competence
levels and encourage rote learning rather than more reflective approaches.
Once a practitioner has achieved the required qualifications or experience, sometimes referred to
as ‘hurdle’ requirements,3 there are two main issues to consider: 1) how can the competency be
maintained at the standard, or indeed continually improved; and 2) what are the consequences if a
practitioner falls below those standards?
La Trobe University agrees that continuing professional development should be a requirement.
The ways in which the requirement should be implemented, however, include an array of
possibilities and not be limited to RMAB updated training. They could include:
• participating in further mediation training
• attending a mediation conference
• writing an article, speaking or presenting at a conference;
• providing training
• being on the Board of a relevant body
• supervising or consulting on mediation work.
Complaints – ongoing accreditation issues
La Trobe University also considers that the external monitoring of complaints is essential (rather
than through training organisations), which raises the question: to what extent, without such

3  C Pou Jr, Mediator Quality Assurance:A Report to the Maryland Mediator Quality Assurance Oversight Committee, February 
2002, p. 2. 
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independence, can there be genuine quality ‘assurance’? It is interesting to note opposition to the
recent changes to the regulation of Victorian lawyers on the grounds that the changes have in
effect ‘…put lawyers back in charge of regulating lawyers.’ The critics contend that the ‘abolition
of the only functionally independent monitor of lawyers’ conduct will inevitably reduce the
accountability of lawyers to the community.’ Importantly, they also ask ‘Can any organisation
that depends financially on the subscription of its members succeed in eliminating conflict when
dealing with its complaints about those same members?’4 The issue is of even greater concern if
the same body is training, certifying and also dealing with complaints.
However, as an interim measure (subject to review as noted below) La Trobe University considers
that professional bodies who certify – but do not train – could take on the complaints function. La
Trobe University has previously suggested in its Family Standards work that a requirement for a
professional body in this area could be a minimum number of members and a complaints scheme
that complies with the ISO.
Another concern is that even where some sort of certification exists, disciplinary action may not
bar a practitioner from practice even for a serious breach or impropriety. For example, FMC’s
protocol5 is that any breach of the Code may result in the termination of membership in FMC
and/or revocation of FMC’s certification. Other than this penalty, FMC cannot monitor or enforce
compliance. In these circumstances, the practitioner can still practise, albeit without the sanction
of the FMC, thus impacting on their practice at least with (but probably only with) the more
informed members of the community.
By way of comparison, Rule 10.830 of the Supreme Court of Florida provides that the panel may
impose one or more of the following sanctions:
• Imposition of costs of the proceeding
• Oral admonishment
• Written reprimand
• Requirement for additional training, which may include the observation of mediations
• Restriction on types of cases which can be mediated in the future
• Suspension for a period of up to one year
• De-certification or, if the mediator is not certified, bar from service as a mediator under
Florida Rules of Civil Procedure
• Such other sanctions as are agreed to by the mediator and the panel.6
La Trobe University supports a broad range of responses to complaints handling that include
monitoring performance through mentorship, supervision and additional professional education
requirements.

4  ‘ The Age’, 29/08/03, at p. 13. 

5  <http//www.fmc.ca> (August 2003) 
6  <http//www.flcourts.org> (August 2003) 

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Comments about the National Mediation Standard
As noted previously, La Trobe University is concerned about the low level approach taken to the
threshold standard but accepts the current practical limitation that may arise in terms of
suggesting more complex competency based training. It notes that areas of knowledge and skills
previously put forward by La Trobe University are suggested and agrees broadly with this
approach.
However, La Trobe University would suggest that timelines be put in place to develop additional
accreditation criteria for the future with a review to be conducted in 2010. La Trobe University
suggests this on the basis of recent trends towards mediation-specific training in Australia, some
tertiary based and ‘professionally oriented’, and is mindful of concerns that ‘… skills and
knowledge are acquired through many ways other than formal training and education.’
In addition, La Trobe University notes that the debate about qualifications can quickly become a
turf war among competing organisations seeking to gain advantage for their members or
constituents.7
As discussed above, such a review should recognise that third parties facilitating the management
of disputes may have prior training in a variety of fields. It is therefore important to recognise that
such practitioners may have competencies in other areas that may prove helpful in conflict
management.
In respect of future reviews, La Trobe University notes that there has been some discussion about
the most reliable way of assessing levels of competence. The most common manner is the
recognition of training and education backgrounds, that is, certification by the institution
providing the service. Nevertheless, the pioneering work done by SPIDR (now ACR)
unequivocally concludes, ‘… where standards were to be set, they should be performance based.’8
There are a variety of tools that can be used to assess a practitioner’s overall capacity to undertake
mediation. These range from formal university qualifications (the Supreme Court of Florida
requires that a mediator have a Masters Degree in social sciences or be a psychiatrist, attorney or
CPA and be able to show particular experience in the relevant field9) at one end of the scale to
competency-based measures. Alternatively, many organisations require that practitioners have
completed mediation training with an approved training organisation.
Many overseas bodies (and the ACT’s Mediation Act 199710) provide for a process of
accreditation or registration as a mediator. In the family sector, these of the Canadian FMC, for
example, has a certification process that has no legal status but is increasingly being required in
Canada by provincial judiciaries in relation to court-connected family and child mediation. These
accreditation requirements are very comprehensive and sit at the more stringent end of the
spectrum in the standards surveyed. For example, to be certified by FMC, it is recommended that
applicants show that they are university trained and provide evidence of at least 80 hours of basic
training in mediation plus an added 100 hours of related education and training. Mediators must
complete a practicum, sit an exam and do continuing professional education.11 This model has

7 H Astor & C Chinkin, Dispute Resolutionm in Australia, 2nd ed, Butterworths 2002, p. 219. 
8 Referred to by C Honeyman, ‘A Consensus on Mediators’ Qualifications’, Negotiation Journal 9:4 (October 1993), p. 296. 
9 <http//www.flcourts.org> (August 2003) 

10 Mediation Act 1997 (ACT). 
11
<http//www.fmc.ca> (August 2003) 
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been termed a ’hybrid’,12 as it combines paper standards with performance-based approaches and
development approaches.
The Florida Supreme Court requires mediators to have a degree or profession as referred to above,
to have completed training certified by the Court, observe and perform under supervision
mediations conducted by a certified family mediator. It also requires, as indicated earlier, that
mediators must also be of ‘good moral character’ to be considered for initial certification.13
It is logical that the content of training relates to the competencies required of mediators. The
content of mediation training should cover process, technical skills, ethics, personal development
and theoretical perspectives.14 Whilst the proposed Accreditation System recognises these to a
limited extent, it is important that this system does not become a low benchmark that is not
reviewed into the future.
Summary
In summary, La Trobe University submits the following:
1. That the benchmark set for training is low but acceptable in the current environment. La
Trobe University considers that review timelines should be set.
2. Training and certification (or accreditation) functions should be separated. Training and
education providers should meet the minimum training benchmark. Professional
organisations should certify or accredit and provide checks in relation to on going
professional education and ongoing accreditation requirements. La Trobe University also
considers that professional organisations should deal with complaints – but that this
should be subject to review and timelines and ISO requirements should be set.
La Trobe University considers that this approach will assist the mediation field to develop
into the future and reduce the conflict of interest issues that could otherwise arise. In
particular, the approach supports a range of training approaches and does not prevent
University or TAFE based programs from developing. The approach suggested is also
supportive of current arrangements (for example, Trillium, VADRA, Law Societies and
Institutes, Unfam, Relationships Australia, universities and TAFES) although La Trobe
University recognises that bodies such as IAMA and LEADR would be required to separate
training functions. La Trobe University suggests that this could be done into the future and
that this approach is more likely to lead to the development of more cohesive professional
associations and could also support professional merger approaches in the long term.
Yours sincerely,

Professor Tania Sourdin

Dr Tom Fisher
Clare Coburn
Alikki Vernon

12 C Pou, Mediator Quality Assurance:A Report to the Maryland Mediator Quality Assurance Oversight Committee, February 
2002 at p. 4. 
13 <http//www.flcourts.org> (August 2003) 

14 H Astor &  C Chinkin Dispute Resolutionm in Australia, 2nd ed, Butterworths 2002, p. 3.