Family Mediation practice, education and
training standards in Australia 1

DALE BAGSHAW

ABSTRACT

Country:
Australia

Language:
English

In Australia, the Family Law Reform Act 1995 (enacted on June 11, 1996) makes counselling, conciliation and mediation the preferred methods of dispute resolution in family law in Australia, in particular where there are disputes over children, shifting the focus away from court imposed solutions. The term 'primary' is used in preference to 'alternative' to convey the message that these methods are to be the principle dispute resolution methods in family law matters. The changes to the Act also reflect an increased emphasis on children's rights and parental responsibility. Under the new provisions of the Family Law Act an approved mediator has the same protection and immunity as a judge in the Family Court of Australia (Section 19M).

With the introduction of the immunity clause in the Family Law Reform Act there were strong arguments presented for broadening the scope of the previous Rules and for making them enforceable. In 1995/6 the Family Services Council 2, advisory to the Commonwealth Attorney-General in Australia developed both minimum and aspirational standards for family mediators employed by agencies funded by the Commonwealth Government to mediate disputes arising as a consequence of separation and divorce. Procedural and ethical aspects of mediation practice were subsequently revised and implemented in the new Family Law Regulations. For the purpose of selection, family mediators are now required to possess minimum qualifications, education, training and experience as outlined in Regulations 60 and 61.

In addition, here are now various family mediation courses in Australian Universities. The first, at the University of South Australia, has been formally accredited since 1993 and has attracted post-graduate students from every State in Australia. In spite of these developments, however there are many unresolved questions and debates about standards for family mediation practice, education and training which will be outlined in this paper. For example, should family mediators be protected by legislation? How can mediators with legislative immunity be held accountable for their practice, especially if they are practising in private? What is an appropriate method for processing consumer complaints? What should the sanctions be for failure to comply with the Family Law Regulations? What is the minimum content for family mediation education and training courses? How should these courses be accredited and by whom?

DALE BAGSHAW

University of South Australia

Director, Conflict Management Research Group and Senior Lecturer in Social Work. Course Coordinator.

Index

Introduction
Issues giving rise to the
development of family
mediation standards in
Australia
Arguments for and
against the development
of family mediation
standards in Australia
Background to the family
mediation standards
Family mediation
standards
Conclusions
References
Notes

Introduction

In Australia one of the most contentious debates has been about who should be allowed to practice as a family mediator. With the changes to the Family Law Act 1975, effective in June 1996, concerns about mediator competence were heightened. The introduction of an immunity clause in Section 19M of the Family Law Act 1975, gives mediators the same protection as a judge in the Family Court of Australia. The Family Services Council, advisory to the Federal Attorney-General, responded to these concerns by developing a set of minimum and aspirational standards for family and child mediators employed by organisations funded by the Attorney-General's Department of the Commonwealth of Australia. This paper reports on these standards and the context within which they were developed, and explores the difficulties faced in the development of national standards for all family mediators in Australia.

The Family Law Reform Act 1995 (enacted on June 11, 1996) makes counselling, conciliation and mediation the preferred methods of dispute resolution in family law in Australia, in particular where there are disputes over children, shifting the focus away from court imposed solutions. The term Primary Dispute Resolution (PDR) is used in preference to Alternative Dispute Resolution (ADR) to convey the message that these methods are to be the principal dispute resolution methods in family law matters. The changes to the Act also reflect an increased emphasis on children's rights and parental responsibility.

The amended Family Law Act provides Family Law Regulations (FLR) which lay down a regulatory framework for the provision of PDR by community and private mediators. This paper does not discuss these regulations (refer to NADRAC 1997); rather it outlines and critiques the earlier development of the Family Services Council's Family Mediation Standards.

Issues giving rise to the development
of family mediation standards in Australia

The issue of mediator competence.

Until recently in Australia anyone could practice as a family mediator, regardless of professional background or training. There are many arguments for family mediators to have specialised education and training in mediation, in particular in family law arenas where the disputes are highly sensitive and complex, where there is potential for violence, and where children are caught in the middle of their parents' arguments. The central tenet of mediation is that the mediator plays a neutral and impartial role. The degree to which mediators intervene when there is an imbalance of power, or to uphold the "best interests" of a child, requires careful analysis based on a sound knowledge base (Bagshaw, 1990, 1992, 1995). In order to be impartial, a mediator from any cultural group also needs to be aware of personal, professional and cultural biases or 'blind spots'. This also requires knowledge about the impact of gender, ethnicity, race, ability and class on the disputants as well as how these cultural aspects affect the mediator and the process (Bagshaw, 1990, 1996).

While most commentators agree that mediators need specialised training, there is no consensus about the nature and content of that training. The Society for Professionals in Dispute Resolution (SPIDR) and the Academy of Family Mediators (AFM) in the US, Family Mediation Canada (FMC) and National Family Mediation (NFM) in the UK, have moved away from a professional qualification requirement for practitioner membership towards performance based criteria. In 1992, the Family Law Council in Australia recommended tertiary level qualifications for family mediation. This was supported by the Family Services Council's 'Family Mediation Standards' Working Party in 1995/6 and now, to a certain extent, by the Family Law Regulations. In particular where there is court-connected or mandated mediation, mediators should have requisite training and experience which is "made public and available to interested parties" (Feerick, 1995; Bagshaw, 1995). Any discussion about the education and training of family mediators, however, must contend with the issue of standards, ethics, accreditation and certification.

The issue of immunity.

"Self-determination is a fundamental principle of mediation, and the primary role of the mediator is to facilitate voluntary, uncoerced resolution of a dispute" (Feerick, 1995,
page 5).
The inability of the mediator to coerce parties makes it essential that the mediator be able to promise confidentiality within defined limits. The parties should be free to be open and honest and recognition of a mediator's privilege against testifying in court is essential to ensure this (Family Law Council, 1992).

Under the new provisions of the Family Law Act an approved mediator has the same protection and immunity as a judge in the Family Court of Australia (Section 19M). This immunity clause strengthened the arguments for introducing standards for mediators and for broadening the scope of the previous Rules by making these enforceable (Family Services Council, 1995). Procedural and ethical aspects of mediation practice have since been revised in the new Family Law Regulations. For the purpose of selection, family mediators are now required to possess minimum qualifications, education, training and experience as outlined in Regulations 60 and 61.

Arguments for and against the development of family mediation standards in Australia.

In 1995, Charlesworth (1995, page 26), along with other prominent family mediators in Australia, highlighted the need for standards for family mediators noting that one "requirement for justice is that the parties are treated fairly at all times. For this, quality control of mediators is essential". As an occupation becomes established, ethical codes and standards are usually developed by professional associations to support the paramount interests of consumers.

"Setting standards for an activity can serve a variety of purposes and may have a range of effects. If done by an authority, it may constitute rule making and be coercive. If promulgated by a representative body, standards may serve an advisory and educational purpose. Standards which are both proscriptive and prescriptive may provide a model or norm for the conduct of the activity" (Bishop 1982, page 461, cited by the Family Law Council, 1992).

Standards of conduct for mediators perform at least "three major functions: to serve as a guide to the conduct of mediators, to educate the mediating parties and to promote public confidence in mediation" (Feerick, 1995: 4).

Existing codes of ethics and standards of conduct for mediators usually define address a range of factors. These include:
· the mediation process itself;
· the mediator's role within the process;
· mediator neutrality and impartiality;
· control of the process and outcome;
· informed consent;
· conflicts of interest, including professional and social relationships between the mediator and the parties and legal representatives prior to, during and after the mediation;
· obligations to confidentiality within the process and external to the process;
· the quality and conduct of the mediation process;
· mediator eligibility and competence;
· advertising by mediators and private agencies in relation to the process, its benefits and the mediator qualifications; and
· fees for mediators. (Feerick, 1995; Sourdin, Scott & David, 1994; Cooks & Hale, 1994.)

Arguments against developing codes of ethics and standards of conduct for family mediators include: that mediators from other professional backgrounds such as social work and law are already bound by codes of ethics, and consumers should make the ultimate decision as to which service they will use. Additional arguments against regulation of mediators were set out by the Australian National Alternative Dispute Resolution Advisory Council (NADRAC 1997, page 11):

"A number of very well known and experienced ADR professionals in Australia are strongly opposed to any regulation of mediation. The reasons for this include: the fact that there has been little evidence of complaint to date; the infancy of the profession; the contradiction between regulation and ADR philosophy; the benefits of the free market; the danger of creating a professional monopoly; and, the fact that other countries have not yet regulated ADR services on a national basis."

The arguments presented in the NADRAC Report for regulation of ADR services primarily related to the need to protect consumers of ADR services. These arguments included the need for practitioner accountability,, informed consumer choice, credibility of ADR and its practitioners, credibility of service providers, and Government accountability. In considering these arguments NADRAC (1997, page 18) concluded that:

"the failure to set some minimum standards as to the necessary qualifications, training, supervised practical experience and continuing education for family and child mediators would significantly increase the risk of harm to participants in family mediations as well as to others who may have an interest in mediated outcomes, such as children."

However, NADRAC also considered it to be important to make sure that any regulations or standards retain sufficient flexibility to allow mediators to adopt the most suitable mediation process for the disputants and the particular dispute.

To varying degrees 'ethical issues' in the new field of family mediation have created tensions between legally qualified mediators and others with commitment, aptitude or training for the role, such as social workers. The most blatant attacks on non-lawyer mediators have emanated from North American lawyers. In Australia these defensive postures are somewhat tentative but have been evident, particularly in relation to mediation of property disputes (Charlesworth, 1995).

Earlier attempts to introduce standards of practice for mediators in Australia were made by the New South Wales Law Reform Commission (1991); the Australian Dispute Resolution Association (ADRA, 1991); the Family Law Council (FLC 1992) and the Centre for Dispute Resolution, University of Technology, Sydney (UTS, 1994). Various legal bodies in Australia accredit lawyers only, for example Leaders Engaged in Alternative Dispute Resolution (LEADR), the Australian Institute for Family Law Arbitrators and Mediators (AIFLAM), State Law Societies and the Law Council of Australia. Accreditation normally involves completing an approved course, often with little or no assessment. LEADR run their own courses and AIFLAM contract with Bond University for their courses. Universities, such as the University of South Australia, The Melbourne University and the University of Technology Sydney, run undergraduate and postgraduate courses in family mediation, usually taught cooperatively by social science and law academics. Some Universities include family mediation in the undergraduate law and/or social work curricula 3, often as an elective.

Legislative standards for family mediators in Australia

With the introduction of Section 19M under the new provisions of the Family Law Act an approved 'family and child' mediator has the same protection and immunity as a judge in the Family Court of Australia. Section 19N also specifies that "evidence of anything said, or any admission made, at a meeting or conference … is not admissible" if the meeting or conference is conducted by a "family and child counsellor", "court mediator", or "subject to the regulations, a community mediator or a private mediator" (Australian Family Law Act 1975, page 991). In 1995, given the introduction of the immunity clause for family mediators in the Family Law Reform Act 1995, and in the absence of Family Law regulations for mediators, the Family Services Council decided to develop standards for family mediators employed by agencies approved by the Family Services Branch, Legal Aid and Family Services, Attorney-General's Department.

Background to the development of Family
Mediation Standards by the Family Services
Council during 1995/6.

The Family Services Council's Family Mediation Standards

This section outlines the Family Services Council's Family Mediation Standards that were developed in 1995 and forwarded to the Commonwealth Attorney-General as advice in 1996.

Section 1

1.1 Who must comply with the standards?

The Family Mediation Standards were developed for family mediation organisations approved by the Attorney-General under the Family Law Act 1975, and for persons authorised to offer family and child mediation on behalf of these organisations, whether on a full-time, part-time, sessional or casual basis. Mediation under the Family Law Act is referred to in the legislation as "family and child mediation" and this is defined as "mediation of any dispute that could be the subject of proceedings (other than prescribed proceedings) under the Act and that involves: (a) a parent or adoptive parent of a child; (b) a child; or (c) a party to a marriage."

All approved mediation organisations, and mediators authorised by them to offer mediation, must also comply with the requirements of the Family Law Act and its Regulations. The Regulations prescribe minimum requirements to be complied with by community mediators and also by private mediators in relation to the family and child services they provide.


1.2 What functions do the standards serve?

The family mediation standards are intended to perform four major functions:
· to establish the required standards for community-based organisations approved by the Attorney-General for the conduct of family and child mediation and for the selection, education and training of family mediators;
· to serve as a guide for the best practice of family mediation and family mediation education and training;
· to inform the mediating parties about family mediation; and
· to promote public confidence in mediation as a process for resolving family disputes.

1.3 What are the obligations of organisations bound by these standards?

Community-based organisations approved by the Attorney-General under the Family Law Act are required to comply with the requirements of the Act and its Regulations in relation to the provision of family and child mediation services. Section 2 of the standards outlines requirements and obligations which, in the Family Services Council's view, should be complied with in order to ensure continued approval as mediation organisations.

Section 2.

Required Standards for Family Mediators

2.1 Definition of family mediation

The term mediation is used to describe a wide range of interventions, but is defined in the document as: "the process by which the parties, together with the assistance of an impartial person or persons, voluntarily and systematically isolate issues in need of consideration, develop a range of options to resolve those issues, consider alternatives, and reach a consensual settlement that will take into account the interests and needs of all concerned. Mediation is a process that emphasises the parties' responsibility for making decisions that affect their lives, giving consideration to the best interests of children involved".

2.2 Focus of the family mediation standards

Family mediation is used for many purposes in the broader Australian community 5.The focus of the Family Mediation Standards document is on the organisations approved by the Attorney-General under the Family Law Act to provide family and child mediation as a form of assistance to family members in managing and resolving disputes that are primarily about matters arising from the restructuring of families and their relationships before, during and after separation, including: · how and when separation will occur; · future parenting responsibilities and plans; · financial maintenance and support of family members; and · the distribution of property and responsibility for debts.

2.3 Principles

In the conduct of family mediation, the Family Services Council recommended that organisations should ensure that mediators maintain and fulfil the following fundamental principles and obligations:
· Consensual Decision-making. A mediator shall recognise that mediation is based on voluntary participation, on informed choice, and on consensual, non-coercive methods of achieving agreement.
· Impartiality. Mediators have an obligation to maintain impartiality towards all parties at all times. Impartiality, or lack of bias towards the parties and the issues, implies a commitment to assist all parties to reach a mutually satisfactory agreement regardless of personal and/or cultural characteristics, background or performance at the mediation. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obliged to withdraw.
· Conflicts of Interest. If at the time of referral a mediator is aware of any actual or potential conflicts of interest the mediator shall not accept the referral. Regulation 65 specifies the minimum requirements of mediators concerning conflicts of interest. The need to protect against conflicts of interest also governs conduct after mediation.
· Confidentiality. Organisations and mediators shall maintain principles of confidentiality, both within and external to the process, as specified under Section 19K of the Family Law Act 1975 and Regulation 66.
· Parental Rights and Responsibilities. When mediation involves making decisions and agreements which affect the lives and well being of children, mediators shall raise with parents their rights and responsibilities towards their children as outlined under Section 61B of the Family Law Act 1975 and Regulation 63, including the children's right to have their needs and interests taken into account in any negotiations and decision making, and the role of children in decision making.
· Safety. Organisations and mediators shall give priority to the safety of all persons involved before, during and following the mediation session, including parties, their children and organisational staff.


2.4 Responsibilities of Family Mediation Organisations and Family Mediators

Mediation is a structured process involving stages of explanation, clarification, exploration, negotiation and agreement. Within this process the Family Services Council recommended that organisations ensure that mediators maintain the principles outlined in 2.3 and, in particular, fulfil the following obligations:

Screening, Assessment and Preparation for Mediation
While approaches to pre-mediation or intake may vary, this stage should be clearly defined, comply with Regulations 62 and 63, and address the following:
· Suitability for mediation shall be determined by the mediator, initially in separate contact with each party, which includes ascertaining any history of family violence and assessing: the likely safety of parties; equality of power; the risk of child abuse; and the emotional, physical and psychological health of parties. Where there is a separate intake officer, it shall remain the responsibility of the mediator to ensure that mediation is suited to the needs of the parties. Mediation shall not begin if either party lacks sufficient competence and willingness to: collect and provide necessary information; identify their own needs and interests; identify and take into account the needs and interests of their children; or to negotiate for themselves.
· It is presumed that mediation will normally not be suitable in cases where there is a substantial imbalance of power; a history or risk of violence in the parties' relationship; a history or risk of child abuse; a fear in one party of the other party's control or potential for violence; and other limiting factors such as mental disability or illness, or substance abuse. Mediation can only proceed when it is assessed by the mediator that mediation is appropriate as prescribed under Regulation 62, and that all family members are safe and all parties to the mediation can participate effectively.
· The organisation and/or mediator shall provide clear information about other options for dispute resolution, and make appropriate referrals where necessary.
· The organisation and/or mediator shall provide clear information in a written statement to each party to the mediation at least one day before mediation commences as outlined under Regulation 63.
· The mediator shall outline confidentiality and disclosure obligations in accordance with Section 19K, Family Law Act 1975 and Regulation 66, including where and how records are kept. This statement shall include the nature of all private sessions with the parties, and limits to confidentiality with regard to these sessions.
· Mediators shall inform parties that mediators are protected under the Family Law Act 1975 and are thereby immune from civil liability for anything said or done by the mediator in the performance of his or her functions as a mediator.
· The organisation and/or mediator shall obtain agreement from the parties about when, how and by whom the fees and expenses should be paid.
· The mediator shall only involve other persons (for example, professionals, experts, support persons, advocates, children, interpreters) in mediation sessions if the purpose is clear and all parties have consented to their presence and involvement.
· Recognising that there are a range of views on the involvement of children in decision making, the mediator shall raise with the parties how best to identify and address the needs and interests of any children likely to be affected by the outcome of the negotiations and decision making in mediation.
· The mediator shall not advise parties about what to do in relation to each other, or provide them with legal advice, but rather shall encourage them to seek legal advice.

Mediation Sessions

Key responsibilities and tasks of the mediator in mediation sessions involve controlling and facilitating the mediation process, using the knowledge and skills identified in Section 3 of the standards. Specific tasks include:
· clarifying parties' needs, interests and concerns and the needs, interests and concerns of other persons affected, especially children;
· ensuring effective termination, including early termination, if and when appropriate, and referral to other appropriate services as required;
· facilitating parties' negotiations;
· recording and documenting agreements and ensuring that any record of the mediation is stored securely to prevent unauthorised access.


Other Responsibilities.

Organisations shall ensure that facilities are accessible, appropriate, ensure confidentiality and assure safety and security of the parties and the organisational staff.

Mediators shall be accessible and provide an appropriate service to those who need it, whatever their sexual preference, sex or marital status, physical or intellectual ability, political or religious conviction, race, colour, national or ethnic origin, culture or language. This may require the involvement of advocates, support persons or interpreters and/or an adaptation of the mediation process or setting to conform with the traditions of a particular group, such as an Aboriginal or Torres Strait Islander community.

Organisations and mediators shall engage in the following activities:
· maintain financial and statistical records as required;
· administrative activities, including outreach travel;
· briefing and de-briefing of mediators before and after sessions, as required by the mediator(s) and/or the supervisor;
· regular, ongoing supervision, in-service education and training, and performance appraisal;
· follow-up, review and evaluation of service delivery to ensure quality outcomes;
· research to improve the knowledge base of mediation;
· render anonymous all identifying information when materials are used for research or training purposes;
· liaise/network with relevant individuals and organisations;
· educate the community about, and promote, the mediation process.

Section 3:

Aspirational Standards for Family Mediators

The Family Services Council considered that a competent family mediator should aspire to demonstrate the knowledge and skills outlined in this section. Mediation does not have a fixed body of knowledge and skills that fall naturally within one established profession. The following competencies provide a basis for the highest quality, comprehensive, family mediation. They represent professional views on best practice at the time of writing and will require regular review and updating.

3.1 Knowledge of the Theory, Literature and Research

A competent family mediator should demonstrate knowledge of the following areas:

Mediation
· Theories of conflict and approaches to its management and/or resolution.
· The relationship between mediation and other dispute resolution processes and therapeutic interventions.
· Negotiation and mediation theory and processes.
· The impact on mediation of diversity in the following areas: gender, culture, race and ethnicity, physical and intellectual abilities and disabilities, sexuality, socio-economic, language and literacy.
· The theory and dynamics of power in mediation.
· Current public debates about the range of dispute resolution processes.
· Ethical and moral dilemmas in family mediation.
· Legal, financial, counselling, education, community and other relevant resources (for referral outside, or for use within the mediation process).
· Current research relevant to family mediation.
· Standards of practice for family mediation.

Family
· Theories about the impact of the social and cultural context on families, including the impact on attitudes and approaches to family conflict.
· The stages and effects of separation, divorce and remarriage on couples, children, the extended family and significant others.
· Critiques of relevant family theories and family research in areas such as: couple and family formation; family life cycle; family communication; family conflict; patterns of parenting after separation; divorce and remarriage.
· Research and theories about family violence.
· Theories of child development and research on the impact of abuse, neglect and trauma on children.
· Crisis theory and crisis management.
· The financial and economic consequences of separation and divorce for children, women and men.
· The dynamics and effects of power, abuse, coercion and control in families and society.
Legal information and knowledge
· Legal information relevant to the issues to be mediated, including knowledge of relevant legislation.


3.2 Communication Skills

A competent family mediator should be able to demonstrate an ability to:
· Attend, listen and respond accurately and empathically to parties.
· Model assertiveness skills as appropriate.
· Be sensitive to verbal and non-verbal cues.
· Model and promote respectful behaviour.
· Use clear, non-emotive and culturally relevant language.
· Reframe negative comments and perceptions in positive terms.
· Clarify information and assumptions.
· Summarise communications and consolidate areas of agreement.
· Use a range of appropriate questioning techniques.
· Confront in an appropriate and timely manner.
· Assist the parties to move from positions and to frame and assert their own needs and interests.
· Provide useful feedback in a timely manner.
· Communicate in a way that is sensitive to the diversity of the parties.
· Communicate with children who are invited to attend or contribute to the mediation process in a manner appropriate to their age and stage of development, and enable them to talk about their own interests and needs.
· Work effectively with interpreters.
· Communicate in a fair and balanced way, without bias or partiality.


3.3 Process Skills

A competent family mediator should be able to demonstrate an ability to:
· Educate parties and significant others about the mediation process and the role of the mediator.
· Screen for suitability for mediation, including identifying imbalances of power, competence to negotiate and the risk or fear of violence in order to intervene appropriately and ensure safety for the parties, their children and others, including organisational staff.
· Distinguish where there are reasonable grounds for suspecting past or present abuse or ill treatment of a child, report to the prescribed child welfare authority in accordance with the Family Law Act 1975, and take appropriate action to ensure the safety of all persons.
· Make referrals in an appropriate and timely manner.
· Ascertain whether or not the mediator is appropriate for the case.
· Establish ground rules and an explicit agreement to mediate.
· Assist parties to effectively solve problems and/or make decisions by encouraging them to adhere to the following steps:
· identify and prioritise issues to be mediated;
· explore the interests and needs of all people concerned, including children;
· invent a range of options for mutual benefit;
· negotiate mutually acceptable outcomes.
· Continually assess and manage imbalances and shifts of power.
· Make appropriate and timely use of private sessions.
· Constructively manage high levels of conflict and emotion.
· Maintain a positive, present and future focus on the problem, rather than the parties, in order to ensure commitment to the task.
· Be patient and match the pace of the parties.
· Manage the process whilst avoiding interference with the parties' control over content and outcome.
· Identify, manage and/or refer crisis situations.
· Assist parties to resolve impasses.
· Test the parties' understanding of the short and long term reality and practicality of their agreements.
· Write agreements that accurately reflect the parties' language and intent in a way that can be readily interpreted by lawyers when necessary.
· Encourage parties to seek independent legal advice (where relevant).
· Terminate the mediation at any stage in a safe, timely and appropriate manner.
· Follow-up and review as appropriate.
· Participate in organisational evaluations of the short and long term effectiveness of mediation.

3.4 Co-mediation Skills

As a co-mediator a competent family mediator should be able to demonstrate an ability to:
· Establish mutual rapport and a respectful relationship with their co-mediator.
· Prepare and plan in a co-operative manner prior to the mediation.
· Work as a member of a team in a flexible, supportive manner.
· Model flexibility and adaptability with regard to differences in gender, age and professional background.
· Model effective problem solving behaviour and a respect for difference.
· Model effective communication patterns and relationships.
· Review and learn from the co-mediation relationship.


3.5 Working with Other Professionals

A competent family mediator should be able to demonstrate an ability to:
· Educate other professionals about the mediation process and the mediator role as required by the organisation.
· Recognise the nature of the roles of other professionals; consult with, and make informed and appropriate referrals to relevant organisations, professionals and experts.
· Respect and enforce agreements made with regard to confidentiality.
· Ensure clarity about the role and tasks of the other professionals participating, either directly or indirectly, in the mediation process.
· Clarify the involvement, tasks and limits of interpreters.

Section 4:

Selection, Education and Training of Family Mediators.

The Family Services Council noted that mediation services are provided to people at a critical time in their lives when they are required to restructure their families and relationships. The assistance provided should therefore be specialised and of high quality. The following recommendations were made by the Council.

4.1 Selection of Family Mediators

The selection, education and training of mediators shall be conducted with an appreciation of the high level of knowledge, skill and expertise required for family mediation to be effective. Family mediation organisations shall ensure that the selection criteria for mediators include a demonstrated capacity to undertake mediation work, and organisations shall assess the ability of the potential mediator to acquire the required knowledge and skills within an appropriate time frame. Basic knowledge is normally acquired in pre-existing professional education, followed by specialist mediation education and training.

Mediator Qualities

For the purpose of selection, family and child mediators shall possess the following qualities:
· impartiality;
· a personal aptitude to undertake the work;
· an ability to work within the philosophy and the provisions of the Family Law Act, 1975;
· an ability and willingness to conform with these standards.

Mediator Qualifications, Training and Experience

For the purpose of selection, family and child mediators shall possess the minimum qualifications, training and experience as outlined in Family Law Regulations 60 and 61.

Additional criteria for selection

Selection of family and child mediators for organisational work shall in general be without regard to sex or marital status; sexual preference; physical disability; political or religious conviction; race, colour, national or ethnic origin, or culture. However, family mediators may be selected to work in an organisation if they have appropriate qualifications and experience plus one or more of these particular characteristics where this would facilitate the organisation's provision of service to a particular client group. For example where the clientele of an organisation is predominantly from a particular ethnic background, and/or where a balance of male/female or lawyer/social scientist is required for co-mediation with separating couples.

4.2 Education and Training of Family Mediators

Family mediation organisations shall ensure that mediators are competent and have the required level of knowledge and skill to mediate effectively. The education and training of family mediators shall address the principles, knowledge and skills outlined in sections 2 and 3 of the Family Law Act. At the completion of the defined training period, there shall be a formal assessment of the trainee's knowledge and skills in each of the areas of training.

Organisations and family mediators shall maintain a commitment to supervision of mediators and to ongoing/continuing education, training and assessment of mediators. Mediators shall be required to maintain an adequate level of knowledge, skill and practice experience.

4.3 Involvement with Tertiary Education Institutions

The Family Services Council believed that the development of family mediation in Australia requires the deployment of a significant group of educated and trained professionals who regard family mediation as their primary professional activity and interest. Whether researchers, academics or practitioners, this group will play a significant part in the development of family mediation services that will effectively meet the needs of consumers.

The Council also considered that the involvement of family mediation organisations with approved tertiary education institutions in Australia will promote the necessary developments in family mediation and should be encouraged, for example through: consultancies, research, placement of students and the provision of workshops, undergraduate and graduate courses in mediation. There was an expectation that organisations will work towards participating in the establishment, development and conduct of a suitable graduate or post-graduate course in each State. Ideally these courses should allow for entry of people who do not have a degree, but have sufficient ability and substantial practical experience in family mediation" (Family Services Council, 1996, pages 1-11).

Conclusions.
Towards a national consensus on standards for family mediators?

Mediation is a relatively new and emerging 'quasi-profession' in Australia and the development of standards should be viewed in that light. Many of our current assumptions about what is 'good' or 'competent' practice have yet to be tested. Many of the principles espoused by the Family Services Council's standards are based on what we have learned in our prior professions, what is accepted at this point in time as 'best ethical practice', and a particular set of Western cultural norms and beliefs. We know from past experience that untested, culturally-biased assumptions can lead to devastating outcomes for some clients in the long term.

Developing standards of practice is only one way to clarify ethical issues of concern. A number of Australian mediators have cast doubt on whether or not standards can ensure ethical practice (e.g Astor and Chinkin, 1991; Campbell, 1998). Many concepts in the standards are difficult to define clearly and are subject to different interpretations. For example the concept of 'impartiality', seen as an essential mediator quality, is based on notions of fairness (Cooks and Hale, 1994). Notions of fairness are influenced by many factors including: the broader economic, social and cultural context; the values of the organisation and/or community within which the mediator works; the mediator's cultural and professional background, personal world view and life experience; and political influences.

The application of standards can also be fraught with dilemmas. If the mediator's view of fairness differs from the view of the parties, or each party to a conflict has a different view of fairness, then whose view takes precedence? Is an interests-based approach to mediation necessarily the best approach for all clients? Can a mediator balance power without jeopardising his or her actual, or perceived, impartiality? Is it possible, or desirable for a mediator to promote the best interests of the child in mediation without appearing biased, and/or influencing the outcomes of a negotiation between the parties? Research from the standpoint of the users of mediation is essential to inform mediation practice. Research is not value free and what counts as 'knowledge' or 'truth' is influenced by the dominant professional, economic, cultural and social discourses of the day (Foucault, 1980).

Many ethical dilemmas that arise for mediators are difficult to address and will be resolved in different ways by different mediators using different ethical and cultural perspectives. Campbell (1998: 120-1) outlines three main schools of ethical theory which may in some way influence a mediator's personal ethical standards - utilitarian theory, deontological theory and virtue theory. He argues that as mediators we "need to remain open to others' points of view and accepting of differences between us". Much relies on personal value judgements made in the privacy of the mediation room. Standards cannot and should not provide definitive answers, they should act as guides only in the absence of knowledge.

Presently a number of professional bodies in Australia have laid down their own guidelines for uniform mediation practice. However, apart from the requirements of Part 5 the Family Law Regulations, there has been no success in developing uniform national standards for practice, education and training in family mediation, other than those developed by the Family Services Council. It was intended that these standards be subjected to thorough critical analysis and debate that desirably should have occurred on an ongoing basis. However in the absence of a national body the standards have remained as they were written in 1995/6.

Key questions to be resolved in the development of nationally agreed-upon standards include:
· Is the development of standards desirable? If so, whose standards should prevail?
· Are the standards inclusive of all cultural groups and practices and if not, which groups and practices do they marginalise?
· How specific or general, proscriptive or prescriptive, should standards be?
· How will standards be monitored and by whom?
· Should the standards be generic to all mediators or specialised according to field of practice?
· What standards should apply to mediation courses and mediator educators and trainers (if any)?
It should also be noted that the development of family mediation standards by governments should be scrutinised in the context of the current economic-rationalist agenda of deregulation and cost-cutting, which can dictate choice of model, setting and/or approach to dealing with disputes (Bagshaw 1997).

In October 1996 the National Alternative Dispute Resolution Advisory Council (NADRAC), advisory to the Commonwealth Government, was asked by the Attorney-General to review aspects of the Family Law Regulations in response to some concerns from the field, and has subsequently recommended changes to the Regulations in a report to the Attorney-General (NADRAC, 1997). NADRAC has also published a Discussion Paper on the Issues of Fairness and Justice in Alternative Dispute Resolution (NADRAC 1997) and another Discussion Paper more recently on The Development of Standards for Alternative Dispute Resolution in Australia (NADRAC 2000). NADRAC is currently conducting consultations on the issue of standards with key individuals and organisations in every capital city in Australia. In their Discussion Paper, NADRAC (2000, page 5) has used the Standards Association of Australia's definition of a standard:

"a published document which sets out technical specifications or other criteria necessary to ensure that a material or method [or person] will consistently do the job it[or he or she] is intended to do".

NADRAC has formed the view that, given the wide range of ADR processes and the diversity of situations and circumstances in which they are practised, it is not possible to develop a single prescriptive set of standards to cover all ADR service provision. They are also of the view that the development of standards should not be determined by a single body or institution, such as NADRAC, but should involve the service providers and all other stakeholders. Their Discussion Paper therefore proposes a provisional framework for approaching and undertaking the development of standards in any area of ADR. They note that for family mediation where there is separation and divorce the Family Services Council's Standards are already in place, but recommend that standards be developed for the broader field of family mediation, including parent-adolescent mediation, disputes about the provision of wills and the care of elderly family members.

It has been argued in this paper that for standards of practice for family mediators to be relevant and acceptable, they should desirably arise out of considerable debate at the "grass roots" level as issues emerge, and be open to modification and change over time. It is essential that in any further development of national standards for mediators in Australia, the dispute resolution field should continue to be fully consulted.

References

(2) The Family Services Council (FSC) was formed in 1994 as an independent advisory council charged with advising the Commonwealth Attorney-General on policy and practice for the Family Relationships Services Program. Members of the first Council (1994 -1996) - Dale Bagshaw (Chairperson), Coleen Clare, Helen Disney, Peter Fisher, Dianne Gibson, Susan Gribben, Kathy Mack, Tom Paterson and Paul Tyrrell.

(3) For example the fourth year of the Bachelor of Social Work, School of Social Work & Social Policy, University of South Australia

(4) Members of the FSC Family Mediation Standards Working Party 1995: Dale Bagshaw (Convenor), Professor Hilary Astor (University of Sydney), Stephanie Charlesworth (mediator and consultant), Coleen Clare (Assistant Secretary, Family and Community Services Branch, LAFS), Barbara Coddington (family lawyer), Linda Fisher (Relationships Australia NSW), Tony Gee (Family Court of Australia), Dianne Gibson (Family Services Australia), Susan Gribben (Relationships Australia Victoria), Associate Professor Kathy Mack (Flinders University), Philip Theobold (President of AIFLAM), Professor John Wade (Bond University).

(5) Family mediation, broadly defined, can also include assisting people with: division of responsibility for the care of elderly parents; the care and discipline of children; parental conflict with children/adolescents; family finances; family business arrangements, such as with family farms or properties, family trusts; family involvement with organisations, such as schools or welfare agencies; adoption and foster care; pre-nuptial and cohabitation agreements; guardianship matters; wills and inheritances and other intergenerational, inter and intra family issues. A dispute in one or more of the these areas may arise for a couple already seeking mediation assistance with decisions arising from their separation and divorce, and may or may not, involve additional parties. In such circumstances it may be appropriate, if in their interests and they all agree, for the disputes to be dealt with by the same mediator(s) or service.