A Mediation Act: Do we need one?- AMINZ Conference Paper
Deborah Clapshaw & Susan Freeman-Greene
A. INTRODUCTION
1. DO WE NEED MEDIATION LEGISLATION?
This is a good topical question – but not an easy one. At first blush, as mediators, there seems
a simple answer. We want mediation to flourish. Surely a law that facilitates, supports and
regulates a dispute resolution process which has grown exponentially in use in the last decade
could only consolidate further growth.
However, a closer look suggests that mediation legislation might hamper the development of
mediation. In the United States, Benjamin1 questions whether the recent Uniform Mediation
Act 2001 is a Trojan Horse carrying within its belly notions that are likely to significantly alter
the original values and purposes of mediation practice. In Australia, Carroll2 asks what a
uniform mediation act would achieve: ‘is it a case of all for one and one for all?’ She also asks
whether there is a need for ‘one at all’?
The question – do we need mediation legislation? – is a vexed one which has resulted in
polarised debate in other jurisdictions. The need for the question to be addressed and the
debate to flourish in New Zealand is a reflection of the coming of age of mediation in this
country. We foresee a much greater focus on the theoretical framework for mediation in New
Zealand in the next decade. This will enhance the great strides mediation has taken in the last
decade, and result in a more thoughtful approach to its future development.
2. THE DEBATE
Viewed simplistically, but to provide a background to the discussion, the debate is as follows:
FOR: The increasing popularity of mediation makes it a powerful tool. Consumers are
at risk from incompetent, unethical and dangerous mediators. Legislation would improve the
quality of mediation services and provide protection for consumers. It would regulate mediators
by a process of registration and uniform standards as well as establishing a clear, consistent
and certain approach to definitional and fundamental process issues. Legislation would also
remove a number of taxing ethical dilemmas for mediators.
AGAINST: The beauty of mediation lies in its informality, voluntary nature, versatility and
adaptability. It accommodates different contexts and approaches. To regulate it would be the
death knell of mediation as we know it. Mediation legislation is superfluous and unnecessary –
particularly at this stage of its development.
3. OUTLINE OF THIS PAPER
To answer our question we need to explore a number of areas. In this paper we will:
(i) look at what general mediation legislation might achieve and its type – what would its
purpose and objectives be? What would such legislation cover? We will draw on
overseas experience – and debate – in this area. (Section B)
(ii) provide a sense of context – how mature is mediation in New Zealand? What are the
trends? What mediation legislation already exists? (Section C)
(iii) look at the possible problems in establishing such legislation and whether there is a
current harm or market failure which might warrant legislative intervention. We will then
evaluate its benefits and risks by exploring the tensions in the competing principles
central to this debate. (Section D)
(iv) consider the best way forward. Our view is that legislation may not be the best way to
ensure and sustain the development of mediation at this stage of mediation’s
development in New Zealand; there may be better alternatives. (Section E)
B. MEDIATION LEGISLATION – PURPOSES AND TYPE?
1. WHAT ARE THE OBJECTIVES OF MEDIATION LEGISLATION?
Calls for mediation legislation are driven by a number of objectives – which in turn are driven by
perceived benefits. The fact that the issue has been well explored in other parts of the world
helps us understand these.
Broadly these objectives include:
• State endorsement of the mediation process
• Clarification and consistency of models and/or approach.
• Certainty regarding fundamental process issues.
• Consumer protection.
• Mediator protection
A closer examination of each of these indicates the rationale behind the goals:
(i) State Endorsement
Legislation would provide the government’s endorsement of mediation as a significant dispute
resolution process. One of the barriers to the use of mediation is a sense that it is both
peripheral and a soft option. Mediation legislation would give it greater weight and credibility
and foster confidence in its use.
It would also raise awareness of mediation and counter another barrier to its use – lack of
information about what mediation actually is.
(ii) Clarification and Consistency of Models and/or Approach
As noted, an obstacle to mediation’s growth is lack of understanding of what mediation actually
is. Legislation could clarify this is by providing a standardised definition and standardised
procedures across the spectrum of mediation practice (both private and statutory). This would
allow ’the clutter‘ of the many statutory models in New Zealand to be cleared up. Such an
approach is advocated by commentators who consider that when a process is institutionalised,
as part of the State provided dispute resolution system, there should be consistent terminology
and a standard approach to process issues3.
(iii) Certainty
Another goal would be to increase the predictability and reliability of approach to fundamental
legal questions relating to mediation, in particular confidentiality of the process. As we will
discuss in Section D of this paper, these issues can and do cause practising mediators – and
users – some difficulty. Clear statutory guidelines on confidentiality and privilege issues would
provide certainty and protection to both practitioners and consumers of mediation.
Achieving consistency and certainty across the states on the important issues of confidentiality
and privilege in mediation was the primary goal of the Uniform Mediation Act 2001 (the ‘UMA’)
in the United States4. The UMA seeks to ‘replace the hundreds of pages of complex and often
conflicting statutes across the country with a few short pages of simple, accessible and helpful
rules’.5
(iv) Consumer Protection
One concern amongst mediators and the public is that as mediation is an unregulated practice,
consumers are at risk from inexperienced, unqualified, fly-by-night mediator “wannabes”.
Consumers are currently reliant on the representations made by the provider of the service as
to its quality. Therefore, to ensure that mediation is efficient and effective, the reasoning is that
there should be minimum qualifications for mediators and requirements of certification, training,
ethical codes and professional standards: if the professions and most trades are licensed
according to one standard of knowledge, adequacy and proficiency, then all mediators should
also be licensed and certified to one standard.
The aim would be to boost consumer protection through mediation legislation which
clarified the practice of mediation and introduced certainty in relation to the above
issues. This goal would be specifically targeted by legislation that:
• Codifies a set of standards and a system of registration and accreditation of mediators;
• Requires a certain level of disclosure between parties to mediation. Arguably, this
would place parties to mediation on a level playing field and shortcut some of the
legalistic discovery processes;
• Requires disclosure of mediator’s qualifications (and competency to mediate) and
conflicts of interest that would impact on their impartiality. Such disclosure would
ensure that mediation is efficient and effective, enhance credibility of the mediation
process and foster consumer confidence in it;
• Endorses the enforceability of agreements both to mediate and agreements made in
mediation. At present, “all forms of dispute resolution are dependent for their full
effectiveness on judicial recognition and acceptance because, without that recognition
and acceptance, they are not enforceable against the will of a defaulting party, and their
value is greatly reduced”6. Formal recognition by legislation of these agreements would
provide consumer protection. It would remove the existing scope for agreements to
mediate to be held invalid because the process prescribed is not sufficiently certain7
Traditionally, an agreement to agree is void for uncertainty8. As is an agreement to
mediate, which is incomplete because it fails to provide a mechanism or the means of
establishing a mechanism by which the purpose of the agreement can be achieved9.
Although an agreement to take defined steps will be sufficiently certain10, this
requirement can be a stumbling block for draftspeople.
In addition, parties to mediation need to have confidence that the agreement they reach
in mediation will be enforceable. At present, common law principles govern the
question of enforcement where one party wishes to set aside the agreement. Where
this action is based on misconduct by the mediator, competing issues of immunity and
privilege arise.
(v) Mediator Protection
Mediator immunity is seen by many as a positive way to ensure that people enter the
‘profession’ without risk of suit, which in turn will help growth. A mediator is potentially legally
liable to others for a number of acts, including deviation from contractual obligations, departure
from ethical standards, failure to perform competently or gross misconduct or fraud. As the job
of a mediator is not as an advocate but involves the impartiality and neutrality demanded of
Judges, some believe that immunity from civil liability should be extended to mediators.
The idea then, is that mediator immunity from civil suit could be conferred by legislation.
However, this is not a unanimous view and has dissenters of international stature, such as
Justice Michael Kirby who considers that immunity should not be extended to private
mediators, as they may not have adequate training and are performing for reward to
themselves11. Even amongst those who consider mediator immunity is generally worthwhile,
there are questions as to its appropriate limits. See the further discussion below on this in D1.
2. WHAT KIND OF MEDIATION LEGISLATION ARE WE LOOKING AT?
The question “do we need a Mediation Act”? focuses on the big picture of mediation legislation.
The focus is on general legislation as opposed to context specific legislation. In other words, a
Mediation Act as opposed to mediation prescribed by statute as a dispute resolution process in
specific statutory contexts, for example the Residential Tenancies Act 1986, Employment
Relations Act 2000, Human Rights Act 1993, Privacy Act 1993, Resource Management Act
1991, and the Health and Disabilities Commissioner Act 1994, to name just a few of the many
New Zealand statutes which provide for a reference to mediation. In theory, a Mediation Act
would extend to all mediations (both statutory and private) conducted in the jurisdiction, unless
they were specifically excluded from the ambit of the Act.
Examples of general legislation which has been adopted in Australian Capital Territories
(“ACT”), Australia and the United States are considered below in Section B3.
We are also talking, in this paper, about provisions that are required to enhance and support
(as opposed to mandate or provide for) mediation and protect practitioners and users of it from
harm. Carroll identifies three specific types of legislation that exist to support and regulate
mediation. They are procedural, regulatory and beneficial and they each have different
functions. 12 A Mediation Act could contain all three types, or one or two only. The types are:
(i) Procedural legislation
This refers to legislation that specifies mediation as a dispute resolution process. It can either
compel parties to mediate or provide for (but not require) mediation. With this type of
legislation the powers of the mediator, and procedures to be followed, may also be prescribed.
This type of legislation reflects the trend towards the institutionalisation of mediation13, which
commentators note has spawned much of the extensive – but piecemeal – mediation regulation
that exists today in many jurisdictions.
(ii) Regulatory legislation
Legislation of this type regulates the practice of mediation by mediators. This type of legislation
deals with and prescribes standards of competency, appropriate qualifications and an approval
process or registration scheme.14
(iii) Beneficial legislation
Beneficial legislation protects mediators and consumers. It ‘supports the mediation process by
clarifying the rights, obligations and protections of parties to mediation, to mediators and, to a
limited extent, third parties to the mediation.’15 Typical provisions include protection of the
confidentiality of the process and protection of mediators from civil action”16.
The question ‘do we need a mediation act?’ focuses on the need for regulatory and beneficial
legislation. We are looking beyond the point of how we get to mediation (which may be via
statute, agreement or contract) and looking at the value of and difficulties with regulation and
protection of the process and those involved in it.
3. EXAMPLES OF GENERAL MEDIATION LEGISLATION OVERSEAS
(i) Australia
The need for mediation legislation has received considerable attention in Australia and has
been the subject of detailed consideration by NADRAC (the National Alternative Dispute
Resolution Advisory Council)17 in various papers, in particular: “A Framework for ADR
Standards”, 2001 and a 1997 discussion paper entitled “Issues of Fairness and Justice in
Alternative Dispute Resolution”.
The first of these (“A Framework for ADR Standards”) is a report to the Commonwealth
Attorney-General on the current position of standards for ADR in Australia and a future
direction for their development. It recommends that accreditation of ADR practitioners be
assessed on a sector by sector basis rather than by the application of uniform standards to
ADR processes and for self regulation by service providers.18
Notwithstanding, both ACT and Tasmania19 have adopted general mediation legislation and it
is on the agenda in Western Australia where there has been a recommendation by the Western
Australian Law Reform Commission that a Mediation Act be enacted.20.
The Mediation Act 1997 (ACT) contains both regulatory and beneficial provisions. The primary
purpose of the legislation is to establish a system of registration of mediators by an approved
agency, together with the standards of competency to be met. No particular model of
mediation is advocated by the legislation. Registered mediators are subject to provisions in the
Act relating to admissibility of evidence, protection from defamation and immunity from civil suit.
The Mediation Act 1997 does not provide, either, for exceptions to mediator immunity, or, for
the admissibility of evidence on the issue of mediator misconduct. Further discussion of this
takes place in section D below.
(ii) United States of America
The UMA was drafted as a collaborative effort between the National Conference of
Commissioners on Uniform State Laws (“NCCUSL”) and the American Bar Association (“ABA”)
Section on Dispute Resolution and was approved and recommended for an enactment by the
NCCUSL in August 2001. Its purpose was to provide the States with clear guidelines on issues
of confidentiality and privilege and ameliorate the problems arising from the fact that the current
rules on mediation are found in more than 2,500 state and federal statutes with more than 250
of these dealing with issues of confidentiality and privilege alone.
The primary focus and centrepiece of the UMA is a privilege that permits the parties, mediator
and non-party participants to prevent the use of mediation communications in legal
proceedings that take place after mediation. The objective is that the 250 odd privilege statutes
existing among the states be repealed and the model provisions adopted with the result that
what is, or is not, admissible in one jurisdiction will be treated in the same way in another
jurisdiction. Other rules relating to confidentiality (disclosure in circumstances other than legal
proceedings) and immunity continue to be dealt with by state laws.
The UMA also includes model provisions for the disclosure of conflicts of interest by the
mediator and compels mediators’ disclosure of qualifications when asked. The UMA does not
attempt to introduce uniform provisions relating to mediator qualifications or standards for
mediation. These also continue to be regulated by state laws.
Considerable collaboration time and consultation was involved in the evolution of the UMA.
However, debate over it was highly polarised and even today the UMA does not have the
support and commitment of a number of interest groups, for example, the International
Academy of Mediators.
Moreover, the adoption is not a ‘done deal’ and there is opposition in some states. It is early
days, but at the time of writing only one state has adopted it though apparently it is being
introduced in a number of others this year where it has been recommended by state bar
associations and ADR committees.21
(iii) United Kingdom and Europe
Increasingly general mediation legislation is contemplated in this region, particularly in Europe.
However, as yet, no legislation of this sort has been implemented. Karl Mackie, the Chief
Executive of the Centre for Effective Dispute Resolution (CEDR), notes a trend in the United
Kingdom towards professionalisation and or institutionalisation of mediation which, he says,
raises concerns. This is within the context of a number of things: active case management
encouraging use of mediation; a significant increase in court referrals to CEDR Solve, CEDR’s
dispute resolution service; a government pledge for government departments to avoid litigation
by using ADR (underlined by statements of expectation that local authorities do the same); and
two significant cases suggesting refusal to mediate is a ‘high risk course to take.”22
The European Commission issued a green paper on ADR in April 2002. It covers issues such
as confidentiality, validity of consent and the training and accreditation of neutrals. CEDR has
responded to the green paper acknowledging the need for the maintenance of high standards
and reputation of mediation but advocating that excessive regulation is unhelpful to the
development of a relatively new process that requires nurturing.
The direction they will take is uncertain; what is clear is that they are in for a debate – this
debate.
C. CONTEXT: STATUS OF MEDIATION IN NEW ZEALAND
1. OVERVIEW AND TRENDS
Mediation and ADR is getting some traction in New Zealand. Of this, there is little question.
The question is how do we nurture its development; what is the best approach at this stage of
its development?
Where then, are we?
We are seeing the implementation of mediation and consideration of ADR procedures across a
spectrum of areas and to different degrees, at a number of different levels: the government;
industry, community and within the ADR world. It is in fact, these trends that generate the
enthusiasm for the protection and consistency that it is perceived legislation would bring.
(i) Government
The initiatives at this level highlight a significant trend towards use and development of
mediation. This shows, at least, the government has a fundamental appreciation that most
disputes get resolved. It is just a question of how and when – and at what cost. While we, as
ADR advocates, understand that costs savings are but one benefit, it is naïve to think that cost
efficiencies don’t sharpen the focus. Not least for the government which funds the court
infrastructure. Initiatives exist at:
• A policy level
The Law Commission is reviewing dispute resolution in the family court and courts in
general.
The Report on the Family Court dispute resolution system is expected by the end of
March, and with the distinction made in the Discussion Paper between the ‘judicial
mediation’ or settlement conference type mediation that typifies the existing family court
process – and a purist’s client centred mediation- comment is expected on the potential
benefits of the latter.
Seeking Solutions, the second stage of the overarching review of the courts system has
ADR squarely in the frame, with recognition in the paper of some of the advantages of
avoiding trial. Questions of the benefits (and risk) of integrating mediation into our civil
systems are raised and some preliminary options are canvassed.
It is arguable that these reviews are a gentle nudge in the direction of ADR – and
mediation – in themselves. Certainly the names: Access to Justice; Seeking Solutions
and even Family Court Dispute Resolution indicate a move to consensual, interactive
forms of resolving conflict as opposed to dispute disposal at the litigation end of the
spectrum.
• A legislative level
The most recent example of mediation legislation is in relation to the Weathertight
Homes Resolution Service Act 2002 – a piece of legislation created to respond to a
specific problem. This is discussed below. Another recent legislative intervention is the
dispute resolution framework set up under the Employment Relations Act 2000 which
has had a significant impact on management of employment relationship disputes.
• A practical level
The Weathertight Homes Dispute Resolution service is an example of a practical
response to a very real crisis. The ‘leaky homes’ saga threw up a quagmire of issues
for the legal and construction industry. The government clearly consulted widely before
designing the service but notably, ensured that dispute resolution professionals had key
roles in defining it. In addition dispute resolution expertise has been prioritised over
industry expertise (though in many cases they are combined) in the recently appointed
mediation panels.
Another practical initiative is being undertaken by the Department of Courts, which has
just commissioned a programme of research looking at ADR in civil cases. Within the
context of the promotion of ADR over the last 5 years through the case management
guidelines, this will look at how and why cases settle, what effect ADR has on the
process, what barriers to use might be and the quality of existing assurance
frameworks. This responds to a real need to have greater empirical evidence of the
benefits of ADR to parties – and the courts – in developing policy in the area.
(ii) Industry
There are a number of indications that commercial enterprises and particular industries have
an increasingly sophisticated awareness of the cost of conflict. They look to resolve it as early
as possible (through mediation and ADR processes) – and are beginning to consider how to
prevent it:
• Industry dispute resolution schemes are growing to deal with customer disputes and
complaints. The banking industry and the insurance industry have had ombudsman
schemes since 1992 and 1994 respectively. Last year, the electricity industry set up an
Electricity Commission and if we follow the Australian pattern, this could be extended to
the gas industry.
• Volumes of commercial mediation seem at worst static, and some practitioners report a
rise. While much of our information on this is anecdotal, it is clear that a number of
businesses have determined that mediation is a much more effective way of settling
disputes than beating a track to the court door. Practitioners report considerable repeat
business.
• Academics and commercial mediators are observing a trend towards self resolution.
Much academic discussion is around dispute systems design and conflict management
rather than dispute resolution. Globalisation may hasten this process as initiatives in
large multinational corporations filter through here. One commercial mediator recently
predicted that within 5-10 years we may see a seismic shift that sees a genuine fall off of
third party neutrals as parties approach conflict holistically and internally.
(iii) Community
Community mediation in New Zealand has not seen the same level of participation as say in
the United Kingdom and the United States. Schemes have been set up and failed for lack of
resources and public information. . In Australia, successful community programs are State
funded and it is interesting to note that such Community Justice Centres are one model
highlighted in the Law Commission’s recent discussion paper ‘Seeking Solutions’ as worth
considering.
The most sustained community initiative in a linked area is in restorative justice. Here
programmes that have developed from the roots up have found a groundswell of support and
are being taken seriously at the government level with publicly funded restorative justice
programmes and pilots being implemented in a number of regions.
(iv) Mediation community
As we know, New Zealand has two professional ADR organisations LEADR NZ and AMINZ.
They have similar general goals in terms of mediation – development and promotion. It is also
well understood that each of their particular origins have caused them to develop in different
ways and meet different needs. While this isn’t the place to look at these matters, we suggest
that the existence of the two organisations may simply reflect the relative immaturity of
mediation as a profession. It is still finding its way. As it grows and develops and strands are
pulled together – it may be that the natural evolution is towards one professional organisation
as in other professions. The concept of a peak mediation accreditation body has been
considered in Australia.
2. EXISTING LEGISLATION IN NEW ZEALAND
The above trends and developments occur against a backdrop of the incorporation of ADR
processes into statute over the last 30 years. We have no single piece of general mediation
legislation but a range of procedural and regulatory measures that reference mediation or ADR
to some degree in specific contexts. In 1999, there were approximately 30 statutes containing
some type of mediation or conciliation model of dispute resolution23.
Some of this subject specific legislation mandates the use of ‘mediation’ or ADR and regulates
the process and the mediators to a degree. For example, the Residential Tenancies Act 1986
and the Employment Relations Act 2000 provide for the appointment of mediators and specify
the rules that apply to mediations occurring within the context of the particular Act.
This legislation typically regulates institutionalised State employee panels of mediators, rather
than private mediation although there are some exceptions, for example under the Medical
Practitioners Act 1995 where private mediators are contracted on an ad hoc basis. The most
Deborah Clapshaw & Susan Freeman-Greene
AMINZ Conference, Auckland, 21/22 February 2003
Arbitrators’ and Mediators’ Institute of New Zealand Inc. 206
recent is the Weathertight Homes Resolution Services Act 2002 which regulates private
mediators contracted to the Service for a fixed period of time.
Other legislation provides for processes that pay lip service to mediation, but stipulate a
decision making process. For example, the Fire service Act 1975 prescribes the appointment
of a rural fire mediator ‘to investigate and determine’ matters with their ‘decision’ being final and
binding.
Overall there is very little consistency in the approach to mediation (both in definitional and
procedural terms) in these statutes 24 which raises concerns .
3. SUMMARY
In our view the general trends and the current legislative environment indicate a healthy,
dynamic but young mediation environment. It is piecemeal and in some instances,
problematical for the reasons we highlight in this paper, but the trends suggest that the ideas
are evolving, initiatives are being tested and across the spectrum of our dealings with each
other, awareness of the benefits of mediation is taking hold.
D. EVALUATION: POSSIBLE PROBLEMS & REAL TENSIONS
1. POTENTIAL PROBLEMS WITH ESTABLISHING MEDIATION LEGISLATION?
A closer look at general mediation legislation highlights a number of difficulties:
• Creating suitable definitions and descriptions
• Creating suitable standards and rules
• Registration and review of mediator conduct
• Integration with existing legislation and practice
(i) Creating suitable definitions and descriptions
Deborah Clapshaw & Susan Freeman-Greene
AMINZ Conference, Auckland, 21/22 February 2003
Arbitrators’ and Mediators’ Institute of New Zealand Inc. 207
The objective here would be to create clear and consistent definitions of ‘mediation’ and
‘mediator’. The legislation would describe and define a mediation ‘model’ and delimit mediation
process.
The difficulties with this are two fold.
Firstly, defining mediation by itself is a minefield. Boulle25 expands on this and notes a number
of reasons: the terms often used in defining mediation such as voluntary and neutrality are in
themselves open to widely differing interpretation; it hasn’t yet developed a coherent theoretical
base; it is used in different senses, with different agendas, in different contexts; and there is
wide diversity in its practice, use and purpose. Where would legislators put their line in the
sand in this milieu? Would they define it conceptually or descriptively? How, and by whose
standards, could they get it ‘right’?
And ‘mediation’ is just one of the words that would need definition.
The debate in the United States over definitions within the UMA shows the conundrums that
need to be faced. The words ‘neutral’ and ‘impartial’ are not attached to the mediator in the
definition of mediation in the model. This is due to the acceptance that these words suggest an
ideal that is impossible to attain. Yet an open letter put together by Susan Dearborn entitled
the ‘Identity of a Mediator’ argues strongly that mediation needs to be defined by its aspirational
qualities and to do away with them ‘results in a loss of an essential characteristic and core
value of the mediation process, and fundamentally changes the role of mediators in dispute
resolution.’26
The second difficulty, which follows on from the first, is the inevitable consequence of putting
the development of mediation into a straitjacket. Think of legislation that describes and
proscribes the mediation process; should it, for example, prescribe a purely facilitative
process? A number of mediators ‘provide information’, ‘evaluate’ and some ‘advise’. Would
they be excluded from coverage of any statute? Even facilitative mediators reality check and
play the devil’s advocate – a form of pressure. While an expert mediator may be very clear on
the limits here, we suggest a number aren’t – and yet may well be effective in their context.
Mediation legislation, in one stroke, could remove one of mediation’s strengths – its versatility.
Benjamin states27:
The intent and inspiration for mediation practice is to view disputes outside of the strict
constraints of the legal dispute resolution paradigm; mediation is a kind of safety valve or
escape hatch out of a bogged down and often myopic system. Many times for example, in
divorce or environmental disputes, courts and lawyers are not only ineffective in managing the
dispute, but actually exacerbate the conflict. Mediation allows for a more systemic and
thoughtful approach and gives individuals and communities more direct responsibility for the
required problem solving… …A perhaps unintended, but none the less serious consequence
of the UMA, is that mediation is likely to be more closely associated with, and brought in under
the auspices of being legal practice and the overall effectiveness of the process limited thereby.
These points suggest great care is needed. The divergence of opinion and polarisation of
views point to the answer – that it is plainly too soon to put the line in the sand. As Benjamin
continued in respect of the UMA:
Like a dictionary defines words, a uniform code defines behavior. To paraphrase Voltaire, he
who compiles a dictionary of words, sets meaning and constructs reality. Whether unwitting or
intentional, so too do the drafters of the UMA effectively define mediation practice.28
As we think about the possibility of legislation, we may be wise to heed this caution.
(ii) Creating suitable standards and rules
The objective here would be to provide certainty in the rules that apply to mediation –
particularly in areas that raise vexing questions for mediators – frequently ethical.
One area that challenges mediators and users of mediation are limits of confidentiality. Linked
to this (and often confused with this) are issues of privilege and mediator immunity – and these
are areas that would be addressed in a mediation act. Again, it seems an attractive
proposition to clarify and ensure consistency in these difficult areas. But it is far from
straightforward. Rather than trying to define and distinguish these legalistic concepts29 – in this
section we just want to highlight some of the vexing dilemmas that arise in attempting to delimit
and codify them.
As is often observed, mediation operates within the ‘shadow of the law’. When it effectively
resolves a dispute these problematical questions may be avoided (though in some situations
they are pre-empted). But when mediation (or a mediator) ‘fails’ – or has shortcomings – or is
perceived by a party or representative to have shortcomings then these issues come sharply
into focus. They can also arise where a settlement has been reached but disclosure (in breach
of a confidentiality obligation) has occurred, or where evidence of an outcome (or a statement
made within mediation) is relevant to enforce an agreement. Questions then arise as to
appropriate limits on protection of the process and the mediator (arguably essential for
mediation to work in the first place) and the need for the court, (or other adjudicating body), to
have all the evidence before it at the next stage.
We note that the characteristic of confidentiality runs counter to the public nature of court
proceedings – so that when the two types of process intersect, as when mediation is not
successful or outcomes need to be enforced, there will be different perspectives on which
principles should prevail.
A closer look at confidentiality highlights the complex considerations in working out appropriate
limits and standards.
Confidentiality generally refers to an obligation on parties and mediators not to disclose – to
any third party – information given in confidence. This is important to the mediation process – it
increases parties willingness to engage in mediation if they believe what they say can’t be
publicised amongst work colleagues, business competitors and so on. Information exchanged
in mediation to settle legal proceedings is, as between parties, usually ‘privileged’ and ‘without
prejudice’, which prevents one side using information or documents, disclosed in mediation as
evidence in a subsequent court hearing. The rationale behind protecting confidentiality – and
privacy – is that it encourages open and frank dialogue, which in turn promotes the prospect of
settlement. It also protects mediators and reinforces their impartiality by excluding them from
pressure to make disclosures during the mediation (where the mediator has private meetings
with one or other party) or after the mediation in later proceedings.30
It is however generally accepted that there are limits on confidentiality – some of these limits
are prescribed by context specific legislation, some by common law, some by mediators’
contracts and some through codes of conduct. Depending on where the ‘protection’ and the
‘limit’ derive from, there will be very different – and often uncertain implications. For example,
enforceability – and remedies for breach of confidentiality – will vary according to where the
obligation comes from; it may be injunctive relief, compensation, and imposition of penalties
and so on.
What we observe (and have experienced as practitioners) in trying to come to grips with the
debate), is that it seems like a government manipulating the economy – regulation or correction
in one area cannot happen without distortion or consequences in another. Perhaps the best
way of illustrating the linkages and consequences is to make a few observations and raise a
few issues around these subjects. These are just a few of the multitude of issues that arise
when you examine this area:
• Immunity is considered valuable for mediators on the basis that they ought to operate
without fear of suit, for a number of reasons: for the job to appeal; for the effective
administration of justice; the ability to ‘review’ the process would undermine
confidentiality and thus its integrity; and as mediator’s are ‘neutral’ and parties have full
control of the outcome, parties cannot complain about the outcome. But, we would
suggest that contrary to the ideal, mediators do influence outcomes; neutrality is a
bogus concept and process management impacts on the parties’ choices. Unethical or
incompetent mediation practice ought to be challengeable. This brings us back full
circle to the ‘confidentiality’ debate – or mediator regulation (which is discussed in (iii)
below).
• Statutory immunity often provides blanket immunity (is that wise?), yet private mediators
rely on contractual terms and may never achieve the same protections31.
• Where statutory immunity has been granted in general legislation, questions are still
asked about limiting immunity. The Mediation Act 1997 (ACT) provides for no
exceptions to mediator immunity or for the admissibility of evidence on the issue of
mediator misconduct despite calls for limitations and exceptions by the ACT Attorney
General in the Discussion Paper preceding the implementation of the legislation. 32
• Common law privilege may protect information in respect of one dispute, but what if the
information gained or learned is relevant in another dispute? This was at issue in Carter
Holt Harvey Forests Ltd v Sunnex Logging Ltd (unrep) 7 June 2000 CA 272/00 where
the competing principles were articulated. But even if you provide clarity on this – what
about the learned understanding of representatives – or parties – about others
negotiating strategies or ‘’bottom lines’?
• Assuming you wish to address ‘confidentiality’ to provide consistency and certainty –
choices need to be made as to which aspect of it you wish to cover. Even after a
lengthy process to establish a uniform act in the United States – it only addresses
confidentiality in legal proceedings. Other rules relating to confidentiality (other forms of
disclosure) and immunity will continue to be dealt with by state laws.33
• How do you standardise who confidentiality might apply to when there may be different
needs in different contexts? For example, in environmental public policy disputes there
will be a much greater need to inform and involve outside constituents – than in say, a
dispute between neighbours.
• Who should ‘without prejudice’ privilege extend to? Just the parties to the agreement,
or other interested parties in the same dispute?
• How do you enforce confidentiality in a real sense? Litigation costs associated with
seeking a remedy are prohibitive and there are some real evidential issues as to breach
and loss. A statute may not help. Under the Employment Relations Act 2000, remedy
by way of a compliance order can be taken out through the Employment Relations
Authority reinforcing the confidentiality provisions – but if there has already been a
breach, then the damage may be done. Otherwise, remedies for parties to a settlement
under the ERA are simply those that derive from breach of contract at common law –
with the consequential evidential issues as to breach and loss.
• Even with provisions protecting statements made in mediation from use in subsequent
legal proceedings there may be problems. A statement made about a fact in mediation
may be protected but if a party approaches mediation as a fishing expedition, the
information could be sourced another way (for example, through discovery) even if the
statement itself can’t be revealed.34
• Supposedly obvious limitations to privilege – or confidentiality – pose difficult questions.
For example a typical limitation might be on ‘communications which constitute or
disclose criminal conduct.”’ But attempting to nail this down raises as many questions
as it answers. First question – what if someone indicated proposed criminal conduct?
Is that covered by the limitation? Secondly, where is the line? We might be clear of our
duty to disclose if someone admits drug dealing, but is a mediator operating under this
provision obliged to disclose if they find out in the course of a mediation that a party is
claiming a benefit – and working? Or that there has been some petty theft by an
employee? Or that a punch up took place that is clearly ‘assault’? Or that criminal
activity is simply alleged by one party? The truth is that individual mediators make their
own judgements on these matters according to their own ethical thresholds no matter
what code they are operating under. They would still need to under general legislation
– the answers are not clear-cut.
These areas are fraught. The extensive debate in the area – as to where obligations should
fall, what the limits of them should be, how far protection should extend and what exceptions
there should be – underscores how difficult it is to draw and hold a coherent line through these
principles that accords with divergent philosophical standpoints. The courts in different
jurisdictions around the world are trying to grapple with them and find the appropriate balance
between the numerous competing values.
We suggest that one of the reasons they have difficulty is due to the relative immaturity of
mediation as a profession and the somewhat unnatural and conflicting principles that underline
the differences between ADR and mediation processes (consensual and subjective) and
adversarial litigation processes (imposed and ostensibly objective). We fear that in trying to
regulate and codify some of these legal and ethical problems we may create more problems
than we solve. It is simply too early.
(iii) Registration and review of mediator conduct
Again, on the surface this seems an easy way to address issues of mediator accountability. If
mediators are regulated then exceptions to immunity could be neatly dovetailed in. More
detailed scrutiny of this leads to further questions. Leaving aside the conceptual conflict
between protecting confidentiality and reviewing parts of the process for the purposes of
reviewing mediator conduct, there are additional problems:
• The very flexible and informal nature of mediation, the range of different styles,
approaches and ‘models’ makes it extremely difficult to formulate standards of
competence and criteria against which they will be measured. This is hard enough in
specific areas. For example, users of the Mediation Service, where 40 mediators deal
in similar types of work, report a huge diversity in approach and style. This is not in itself
a bad thing. Issues of consistency need to be balanced with the need to tailor ones
approach to a particular situation. Issues of standards of competence need to be
evaluated in accordance with the goals of the service and the legislation it supports.
This all takes time.
• Our professional bodies, whose business is this area – have different measures of
competence and different hurdles to jump to establish them. Questions of process
knowledge and management have to be balanced against ‘skills’ for example – and
expert, practising mediators are not always in agreement about whether an appropriate
level of competence is reached.
• Indeed, qualifications do not always guarantee a better service. In one American study
there were no significant differences in results achieved with a less qualified mediator
than with a more qualified mediator. What counted were not qualifications but
experience and style.35
• Fears have been expressed that creation of standards and regulation could result in a
cartel or an elite class of mediators.36 Benjamin worries that the style of mediation
would be unduly conformed to a more legalistic approach, potentially overrun by
lawyers and that its uniqueness, that is, mediation reflecting a different and important
approach to managing conflict that includes multiple disciplines and respects peoples’
ability to make competent decisions for themselves – will be lost.37
(iv) Integration with existing legislation and practice
Legislation will require policy decisions on the degree of reform that the mediation field
requires. It will require answers to questions in two areas – each of which will impact on the
type, nature and extent of legislation and how that integrates with existing legislation and
practice. The questions – and difficulties – are:
• What should be covered by any such legislation?
• How do you integrate existing legislation into general legislation?
• How important is context-specific legislation and how would you integrate it?
What should be covered by legislation?
Which particular aspects of the field should be reformed and which should be allowed to
develop organically? There is enormous scope for different approaches to this question: will
legislation codify existing understandings and practice in the mediation field or will it go further?
Is this indeed possible? For example, are there mainstream approaches which can lay claim to
define the mediation process? Will it take a different approach to regulatory and beneficial
provisions? Will it leave registration to professional organisations such as LEADR or AMINZ
and provide for immunity of prosecution for mediators? And so on.
The difficulties in determining the extent of coverage of any such legislation is evident from the
US experience and the UMA – where ultimately it ended up with but one primary focus (See
Section B3(ii)).
We believe that our inability to answer these questions clearly, indicates they are not ready to
be answered.
How do you integrate existing legislation into general legislation?
While the idea of consistency may appeal, integrating existing legislation that references
mediation into general legislation would prove an extremely difficult process. As we have
noted, there are a number of references to mediation and conciliation. The models are widely
divergent and frequently, according to Claire Baylis38, problematic as they approach every
aspect of process and practice in different ways – from terminology, to substance. Baylis’s
view is that much of the legislation has been implemented randomly, without thought for its
effectiveness (or fairness) in resolving disputes – or particular types of dispute. While that is a
concern, we are more worried that general legislation may overlook what we see as highly
important – a considered analysis of what type of process and approach different contexts
require.
How important is context-specific legislation and how do you integrate it?
This raises the critical question – can one size really fit all? Our view is that the answer is no.
Different types of dispute have very different needs. Any general legislation should
accommodate the many different types of disputes which are mediated. Yet it became clear to
the drafters of the UMA that it was impossible to know about the full range of disputes
mediated:
While many experts are knowledgeable about traditional court mediation programs and
traditional private mediation practices, there exists a wide range of other disputes that are
“mediated” in other contexts and the extent to which these practices exist are difficult to
ascertain.39
Remembering that the UMA’s primary focus was on confidentiality, the example of child
protection mediation highlighted the problem. Typically mediation in this area involves the noncriminal issues in cases of child abuse and neglect such as placement of the child, visitation,
treatment for the child and parents, and so on. Allegations of child abuse and neglect
frequently form part of the mediation communication. Issues arose as to whether or not this
information ought to be protected given public policy. However, without protection, those
involved in this area recognised that parents will not be likely to discuss these allegations in
mediation – which ‘will likely serve to inhibit what has been shown to be a very helpful form of
ADR in an area that benefits children, parents and the state’.40
This is but one example – there are all sorts of areas where different types of dispute will have
different requirements. Some may have different needs for confidentiality, for example, under
the Employment Relations Act 2000, collective bargaining (done by the mediation service) is
excluded from the general confidentiality provisions for mediation services. Other types of
disputes may have different requirements for representation and mediation qualifications. For
example, family mediators may need additional training in family psychology or law.
Both in terms of integrating existing context specific legislation – and any new context specific
legislation – there would need to be exclusions to the general legislation. It is foreseeable that
there would end up being so many exceptions to the general rules that they would be
meaningless.
2. WHAT ARE THE TENSIONS: THE COMPETING PRINCIPLES?
As in any area where new legislation is considered, there are many competing principles and
tensions. The tensions to be specifically addressed here are:
• Consumer protection v over regulation.
• Consistency v diversity.
• Process protection v mediator accountability.
• Uniform legislation v context specific legislation.
• Appropriate legislation v ‘hyperlexis’.
(i) Consumer protection v Over regulation
The consumer protection goals of mediation legislation are meritorious but there are enormous
problems associated with their achievement through general legislation, which we discussed in
section D1. This raises the question whether the actual and perceived risks are sufficient to
warrant Government intervention, or whether there are adequate protections in place.
From a broad perspective there are already some generic protections in place. Consumer
protection legislation may afford parties to mediations some protection namely, the Consumer
Guarantees Act 1993 and the Fair Trading Act 1986. For example, Section 9 of the latter, the
“catch –all’ misleading and deceptive conduct provision, may be invoked where a private
mediator misrepresents their qualifications and competency to mediate.
As noted, there are professional bodies providing training and accreditation services and
regulating mediators in New Zealand. Both AMINZ and LEADR act as private accreditators of
mediators and promote mediator quality and accountability. However, their influence extends
only to mediator members, with other private mediators (and mediations) being regulated only
by market forces.
In New Zealand, the public sector Industry Training Organisation (ITO) has established
mediation unit standards for registration on the New Zealand Qualifications Authority national
qualifications framework. These standards are new but could potentially provide the norm for
training outcomes in the future.
Both AMINZ and LEADR have adopted professional codes of conduct to act as guidelines for
mediation practice. Additional guidelines and standards have also been established in specific
areas of mediation practice. For example, the guidelines for Family Mediation developed by a
National Working Party on Mediation in 1996.
It has been asked whether these kinds of standards play more than a de minimis role:
Standards, while known by most practising mediators, are regarded as little more than a
benchmark of accepted conduct where any issues of practice and ethics may arise, but not
necessarily binding upon the mediator or enforceable by the parties to the mediation”41
We recognise that these and many other international standards provide guiding principles for
ethical behaviour only. This topic is beyond the scope of this paper but, in essence, the
argument is that it is often not possible to prescribe specific ethical rules in the myriad of
circumstances in which ethical issues may arise. The absence of clear prescriptive rules is
acknowledged and. the reasons for this have been explored in section D. We do not believe
this compromises the value and efficacy of mediation sufficiently to warrant legislation.
In the United States the International Academy of Mediators (IAM) promoted the view that
uniform legislation ‘must not be restricted to the granite-like rigidity of conventional legal theory.
It must be sufficiently adaptable to permit the continued growth of mediation as the social
process that enhances individual citizens’ understanding and ability to successfully resolve their
own problems.’42
We endorse this approach and favour self regulation through the two professional
organisations in New Zealand which have become increasingly more active in the areas of
training, accreditation, standards and quality control of their members. AMINZ has recently
developed a comprehensive complaint and disciplinary procedure and both organisations have
introduced stringent continuing education and experiential requirements for continued
accreditation.
You only need to look at arbitration to caution against regulation. Arbitration, like mediation,
was originally intended to be an informal and efficient alternative to adjudication. With
increasing regulation, that process, has in our view become so legalistic and formalistic that it is
as costly and cumbersome as the litigation process. We would not wish to see mediation
succumb to the same fate. As one commentator has suggested: ‘We must be wary of letting
regulators go so far that we will soon be searching for methods to deregulate a process which
is no longer alternative.’43
It is perhaps also worth noting that legislative regulation of mediation outside of a Court or
governmental agency setting, where arguably different considerations apply, is antithetical to
the current trend towards the deregulation of professions and industry.
(ii) Consistency v Diversity
These competing principles were recognised and balanced by NADRAC in its consideration of
the development of standards for ADR in Australia. NADRAC believes that it is important to
recognise the diversity of contexts in which ADR is practised and to promote the development
of standards within those particular contexts (the diversity principle). Equally, it is necessary to
promote some consistency in the practice of ADR by identifying essential standards for all ADR
service providers (the consistency principle). Overall, NADRAC44 proposed the development of
standards for ADR based on a framework and that all ADR service providers be required to
adopt and comply with codes of practice established in their sector.
If there has to be a choice, we favour diversity over consistency. NADRAC purports to have
found a way through, which will allow both (see The Way Forward in E below). And that may
be an intermediate step. But if the question is mediation legislation – or not – consistency is
less significant in a country the size of New Zealand, where the problems arising from
jurisdictional differences across states and between state and federal law simply do not apply.
In our opinion, mediation in New Zealand is too young for it to be circumscribed by a drive for a
degree of consistency, which may put a stake in the ground but simultaneously knock out its
heart.
(iii) Protection of the Integrity of the Process v Mediator Accountability
This topic has been discussed in detail in Section D1. The tension is between preserving the
defining characteristics of mediation, namely, its privacy and confidentiality and the need for
mediators to be accountable for their actions. As noted, different approaches have been
adopted in different jurisdictions. For example, in ACT there is a blanket exclusion on
mediation communications being disclosed in subsequent legal proceedings with the effect that
evidence on the issue of mediator misconduct is inadmissible and mediator immunity is
absolute. In the United States by contrast, there is an express exception to mediation privilege
to permit evidence of professional misconduct by a mediator45.
Case law in New Zealand suggests that the courts will enforce the confidentiality of the
mediation process and contractual terms, which protect mediators from civil liability. Therefore,
we are in favour of the status quo.
(iv) Uniform legislation v Context- specific legislation
It is not questioned that some degree of regulation is required for Court annexed mediation and
Government endorsed mediation within statutory tribunals and Government agencies.
Consumers and practitioners in these mediation schemes can be afforded protection by the
inclusion of procedural guidelines in the relevant statutory framework, rather than in a broad
uniform act which would inappropriately apply uniform standards across the diversity of practice
areas – in a way that does not reflect specific needs in particular areas. Again, the problems
with general as opposed to context-specific legislation are discussed in D1 above.
(v) Appropriate legislation v ‘Hyperlexis’
Sir Geoffrey Palmer’s diagnosis of our condition ‘hyperlexis’ – or an overactive law making
gland – is worth noting here. He comments that:
New Zealanders tend to exhibit an innocent and misplaced faith in the efficacy of legislation …
We seem to be addicted to passing legislation for the sake of it, and to believe that legislation
can cure our inner most ills … As a respected New Zealand Judge, Sir Alexander Turner, wrote
in 1980:
“The belief is widely held, that there is not a human situation so bad but that legislation … will
effectively be able to cure it.46
For there to be a reason for legislation, we need to look for the harm – what should be
protected against? The most likely danger is from incompetent or unethical mediators. But in
1989 the New South Wales Law Reform Commission after reviewing the need for consumer
protection and arguments for and against regulation of mediators concluded that the risks to
clients did not warrant government intervention.47 CEDR and NADRAC have recently also
expressed this view.48
In our view uniform legislation is superfluous to need. There is no significant harm or market
failure that would justify a new law. The risks associated with this stage of mediation’s
evolution do not outweigh the benefits of its organic growth. Legislation would stultify and
inhibit its natural development which, while improvements could be made, is adequately
regulated by the market, by professional organisations and in the case of statutory mediation
panels, by context specific legislative provision.
THE THE WAY FORWARD: LEGISLATION OR BETTER ALTERNATIVES?
To answer this, we need to identify what the prime goal of the mediation field in this country is.
In our view, the prime need is for mediation to continue to develop and become a mainstream
dispute resolution process. Will mediation legislation or other alternatives better advance that
goal?
One key question identified by Karl Mackie of CEDR, relates to two basic characteristics of
mediation – its subjectivity and flexibility: should the parties fundamentally determine the design
of the ADR process, or should an institutional agency determine the procedure?49 In other
words, should the ADR process be tailored to the parties, the type of dispute – or can one size
fit all? CEDR have moved away from the label ADR towards EDR – Effective Dispute
Resolution. This recognises – not only the flexibility of mediation, but also the variations in
what might constitute EDR at different times – that is the spectrum of dispute resolution
(including litigation). As we have indicated – there is even a spectrum of process within
mediation (from passive facilitation to directive evaluation and different combinations thereof).
Mackie concludes: ‘it would be inappropriate therefore to start from a presumption that there
can be a simple set of regulations or ethical guidelines for EDR’. We agree, and implementing
one set of rules under a legislative framework would impact on growth.
What then are the alternatives? Do we need to do anything at all? Are there ways we could
more effectively expand the use of the process, build up the credibility (and accountability) of
mediators, keep standards high and ensure integrity of the basic values of the process? How
do we best nurture the evolution of mediation?
A number of recommendations were made by NADRAC in its report “A Framework for ADR
Standards”. 50 Some of these include:
• Continuation of the development of standards for ADR – to maintain and improve the
quality and status of ADR – within a framework that allows organisational variation
within particular contexts, but also a general code of practice which could be widely
applicable across the whole ADR field. The key to this is that it be an ongoing process
that responds to evolution of the field. Such a code would cover issues such as
informed consent, appropriateness of a process for a particular dispute, practitioner
requirements of knowledge, skills and ethics and so on.
• Greater self regulation by professional bodies – with the need for greater or lesser
regulation to be assessed on a sector by sector basis.
• The development of a peak body (from the ADR field itself) which could provide the
appropriate infrastructure for development and implementation of appropriate
standards.
• An effective independent complaints mechanism that relates back to a code of practice.
• Accreditation to be determined on a sector by sector basis.
• Concerted consumer information and education initiatives
In New Zealand we see evidence of context specific and self-regulation. Private mediators are
‘regulated’ by increasingly sophisticated market forces and in many cases by our two
professional bodies. Statutory mediators are regulated by direct context specific legislation.
Private mediators contracted to undertake mediation under statute, for example, the
Weathertight Homes Dispute Resolution Service, are governed by both statute and the rules of
their professional associations.
These forms of ‘regulation’ help to meet the demands to keep the standards bar high, and
ensure adequate protection. Do we need more? Our view is that continued evolution – even
ad hoc – is preferable to general and constraining legislation.
But we recognise that there is room to focus on some of the issues that informal development
raises. For that reason we believe the NADRAC approach, and some of its recommendations
for moving forward (without wholesale legislation) are worth considering. A ‘peak body’ driven
by the ADR industry which addresses these issues coherently may be necessary. The diverse
contexts need to be allowed to thrive, but an overarching and dynamic code of practice driven
by the ADR industry and informed and promoted by all service providers, government, and
consumer bodies is a potential way through the competing requirements to allow the field to
burgeon and maintain its integrity.
CEDR’s view is similar in conclusion – general legislation is not considered a way forward.
Rather, development of mediation is seen as best achieved through the encouragement of
business, court and government policies and the use of penalties for failure to use mediation in
appropriate cases. One key initiative in the UK has been the Lord Chancellor’s Departments
government pledge in March 2001 that all government departments seek to avoid litigation by
using mediation and other neutral-assisted dispute resolution procedures wherever possible.
Even local authorities, while not bound by the government’s pledge are still expected to
consider using mediation where appropriate. Corporate pledges in America have also been
effective in growing awareness of and encouraging use of mediation and ADR.
Our view parallels the approaches of NADRAC and CEDR –issues will fall out of the ways ADR
and mediation develop, but general legislation is not the answer to them. We don’t wish to see
mediation follow the path of its first cousin, arbitration. The risks of over formalising the
process and allowing it to be captured by the professions are that its overall effectiveness will
be reduced. Preservation of the unique and special nature of mediation requires that it not be
seized upon or held captive in the camp of any particular discipline and that it not be required to
conform to a legalistic approach which would be embodied in comprehensive uniform
legislation.51
F. CONCLUSION
One of the symbolic pictures of the mediation process is the diamond. We frequently use it to
show how its shape (from top to bottom) reflects the stages of the process. An initial
presentation of positions and issues may seem relatively limited, but through expression and
exploration, mediators broaden the scope of the discussion unmasking interests, conflicts and
perspectives that may not have been apparent at the outset. Frequently this seems chaotic
and even disturbing to those of us used to working with controlled information and within
certain parameters. However, experience tells us that without this ‘chaotic’ stage frequently
mediation fails – impasses occur and parties get stuck at the same place they were before the
mediation. Going straight to solutions – or trying to narrow down the issues too early is
counterproductive. In terms of the diamond – you need its broad middle, before you can start
tapering it down, moving through defined issues to options and ultimately reaching solutions.
In our view, the diamond is also a useful metaphor for the broader development of mediation.
We are at the beginning of the chaotic stage –still working towards the broad middle of the
diamond. The field is evolving and changing rapidly. The initiatives and developments we see
give the impression of maturity, but we believe we are reasonably early in the stages of the
development spectrum. We need some time at this stage before we can see our way clearly
to answer some of the questions we have posed in this paper. Until we have greater clarity on
them, our view is that general legislation would be going too far too soon.
Karl Mackie of CEDR 52says ‘the primary need for European and UK government initiatives
concerns the promulgation of the social environment and actions necessary to enable the
growth of EDR [Effective Dispute Resolution] referrals, not the regulation of EDR practice or of
the profession. The proven benefits of mediation alongside limited risks justify this approach of
promotion as a priority compared to regulation.’
We agree: the same reasoning applies in New Zealand. In time the market may need to be
regulated, but premature regulation may inhibit the growth of a fundamentally adaptable and
flexible process. For now, we can work on some intermediate – and less risky – ways to
continue the nurturing of our profession: increased self regulation; promotion of dispute
resolution clauses; promotion of initiatives in industry and government such as ‘pledges’ to
support wholesale use; consideration of ‘peak’ bodies to promote codes of practice; and the
continued efforts of our professional bodies (AMINZ and LEADR) to set benchmarks that have
credibility with both consumers and practitioners.
As Jean Jacques Rousseau said “good laws lead to the making of better ones; bad ones bring
about worse”. We caution against allowing our over active law making gland to dominate and
prescribe instead a wait and see approach, allowing mediation to progress naturally and
unimpeded to adulthood.
The authors of this paper are both practising mediators and have written the paper from that standpoint. Deborah is a mediator in private practice and Susan is with the Employment Relations Service. The views expressed in this paper are their personal views.