On 19th February 2015 a Bill with an obscure name was introduced into the ACT Legislative Assembly. Typically the ACT the Government is ahead of the curve when it comes to mediation.
The Bill amends both the ACT Civil and Administrative Tribunal Act 2008 (ACAT ACT) and the Civil Law (Wrongs) Act 2002. Those amendments define a mediator as a person accredited under the National Mediator Accreditation Scheme. The Bill is the first in any Australian Jurisdiction to adopt registration in the register of nationally accredited mediators by the Mediator Standards Board (MSB) as the qualification of mediators to be recognised by law.
The Bill is known as the Courts Legislation Amendment Bill.
The Bill is likely to become law by May 2015.
The Bill contain the following definitions
Accredited mediator means a person who is entered as a mediator in the register of nationally accredited mediators maintained by the Mediator Standards Board.
Mediator Standards Board means the incorporated body registered under the Corporations Act as the Mediator Standards Board Limited (ACN 145 829 812).
The ACACT Act defines mediation as follows,
mediation means a meeting between parties to an application and an accredited mediator, ordered under this Act, for resolving a matter to which the application relates, and includes a thing done to arrange the meeting (whether or not successfully); or to follow up anything raised in the meeting.
The Civil Wrongs Act defines mediation as being conducted by either an accredited mediator or a person appointed by the tribunal.
The Bill does not prevent the conduct of mediation in the ACT by mediators who are not accredited. Rather it provides protection to those who carry out mediation in accordance with the laws and offers very strong signals to Tribunals and Courts in the ACT that mediation should be conducted by mediators who are Nationally Accredited registered as such by the MSB.
Mediation Act Repealed
The Bill if passed into law will repeals the ACT Mediation Act 1997 which was the first in Australia to tackle the difficult issue of who is and is not an “accredited” mediator for the purpose of various laws. The Mediation Act required mediators who were to be registered under that legislation to meet the ACT Competency Standards for Mediators” published by the ACT Community Services and Health Industry Training Advisory Board Inc. Unfortunately the ACT Community Services and Health Industry Training Advisory Board Inc. does not seem to still exist (or at least a “google search” suggests so).
Removal of Immunity from Suit for mediators
Repealing the Mediation Act will mean that Mediators previously registered under that legislation no longer have the immunity provided by it under Section 12, which was the same as that which protects judges of the Supreme Court of the ACT. This legislative effect is consistent with the recommendation 5.9.1 of NADRAC in its report published in 2009 (Maintaining and Enhancing the integrity of ADR processes – From principles to practice through people), that mediators acting privately or appointed by the Courts should not have immunity from suit.
The idea that professional mediators have immunity (that is protection from being sued if they are negligent) might have had the effect of limiting the worth of mediation as a process to potential “clients”. After all, why should a professional mediator not be accountable for their negligent behaviour like all other professionals? The availability of inexpensive insurance and the relatively few cases reported of actions against mediators suggests that mediators are rarely accused of negligence that causes significant loss. We do not therefor think that this change will have any effect on the practice of mediation in the ACT except to make it more attractive.
Secrecy privilege and defamation protection
The amendments to the ACAT Act deal with the admissibility of “mediation material” and secrecy in Sections 35A to 35C. Mediators should be aware of the various exceptions to the secrecy provisions such as consent of the parties to the mediation, requirement under law and to protect personal safety. The Act seems to make it clear that the secrecy provisions are for the parties benefit not to protect the mediator.
The amendments to the Civil Laws (Wrongs) Act have no equivalent to Sections 35A to 35C.
Mediators and parties then should continue to be careful to consider appropriate contractual agreements in relation to privilege, confidentiality and secrecy.
The Bill is welcome recognition of the efficacy of the industry initiated voluntary accreditation standards and practice standards, and recognises the value of the work of those who toiled so hard to establish the National Standards and the Mediator Standards Board.
For the MSB, the legislation highlights the importance of ensuring that the NMAS Standards are appropriate and relevant to mediators and parties to disputes, and robust enough for governments to continue to have confidence in the Standards.
Recognised Mediator Accreditations Bodies (RMABs) have a vital role to ensure that mediators who they accredit under NMAS are competent and, that in so far as mediators do not conduct themselves in accordance with the Standards, that there are complaints, counselling and discipline processes that are robust and fair.
There is remains a discussion as to whether mandatory standards for mediators are necessary or rather that the voluntary nature of mediation is its own protection for consumers. In the meantime the ACT government has decided that standards are appropriate and, by adopting the industry’s own voluntary scheme, signals for the mediation “profession” an even higher obligation to ensure that our accreditation schemes meet community and government expectations.
Steve Lancken and Jay Qin