Setting up a Mediation Service

Author
David Purnell

I became involved in the Social Developers Network (SDN) in the early 1980s, and found it a stimulating experience to learn of the many creative community initiatives in which others were involved. I had myself helped form several organisations in Canberra, including Life Line, Australian Frontier, and the Churches Commission on International Affairs, and helped revive another (United Nations Association). I was keen to do what I could to promote peaceful relationships in the community and beyond. As a Quaker I had a strong commitment to working for peace and justice. I learned that there was something called mediation which was being used in NSW to deal with neighbourhood and other disputes, so I made enquiries and found that Wendy Faulkes (herself involved with SDN at an earlier time) was the director of the NSW program, which was part of the State Government bureaucracy.

It was the International Year of Peace (1986) and I had been discussing with several others in Canberra how to advance conflict resolution. We decided to hold a public meeting and invite Wendy Faulkes to speak about what was happening in NSW. The result was a meeting attended by 50 people, and considerable enthusiasm for the idea of setting up a mediation service in the ACT. A committee was formed (of which I was convener) to carry forward the idea. We felt it was appropriate in our setting to develop a community organisation and then seek government support, as this had been done with other agencies.

So began a long process, which involved writing a constitution, becoming an incorporated association, meeting with government officials, learning about what was going on in mediation around the world, writing submissions, and building community support. It was valuable to be able to draw on the NSW and overseas experience to demonstrate the cost-effectiveness of mediation in relation to court proceedings, and in terms of the success of mediation in achieving satisfying outcomes for parties in dispute. We adopted as our preferred mediation model the one that was in use in NSW. Two mediators were used (the co-mediation model), and the process included opening statements by each party, summaries of these by the mediators, setting an agenda of issues for discussion, exploring these in turn, holding a private session with each party, then bringing them together for negotiation and agreement, and preparing a document with the terms of their agreement, signed by each party, as a record. The mediators were drawn from the community as volunteers, and put through a training course to become competent in mediation as a process, and were paid on an hourly rate for the time spent in mediating.

At that time the ACT was run by the Federal bureaucracy, so our dealings were with the Federal Attorney-General's Department, which was not very interested in what it considered to be a 'State' matter. Subsequently the ACT got its self-government, so we switched out attention to the local bureaucrats and political parties. We had several friends who were involved in politics, and we approached them about how to get the mediation service off the ground. As a result, the first ACT government, led by the ALP, agreed to fund a pilot project, and put $100,000 in the Budget for this, allocated to the Conflict Resolution Service (CRS), as we were called. The Government did not show any interest in running the service itself, and was happy for CRS to take that role using the budgeted funds.

The Management Committee, of which I was the first president (for several years), worked on developing initial policies and procedures, and devising duty statements for the staff needed to run the service. We had moments of stress as we struggled to bring to birth this new service, as there were strong personalities on the Committee and a range of backgrounds in mediation, counselling, law, education, welfare, etc. We learnt early the need to be able to resolve conflict among ourselves if we were to be of use to others in conflict. We were not immune from conflict simply because of our commitment to CRS. On several occasions we had to suspend routine business to have 'clearness' sessions among ourselves to listen to each other. We structured our regular meetings to allow for consensus rather than voting, and to provide time for reflection and sharing as well as current business. Most members of the Committee also undertook the mediation training course.

We were able to recruit three staff - a Director, an Assistant Director, and an Administrative Assistant - to begin the Service early in 1990 at Acton House, near the central business district of Canberra. Because the three people began together, they were able to work as a team and to build up the resources and infrastructure as needed. This included furnishing offices, setting up a mediation room and waiting areas for parties/clients, advertising the service, recruiting and training mediators, and helping the Management Committee to work out policies.

Training was our major focus at the beginning. We had no difficulty in attracting volunteers, and we put them though a 72-hour program over several weeks, with the help of someone from the NSW Community Justice Centres as one of the trainers. I was one of the training panel. There was a strong emphasis on role plays and hands-on methods, to get trainees used to working with a partner on 'real' situations drawn from experience elsewhere. The panel of trainers then assessed each person and held an interview with them. Most were regarded as suitable (some had dropped out along the way as they realised mediation was not for them) and were accredited formally to the Service.

Neighbourhood disputes were the initial priority for CRS, and these came to us often via the police, as well as by people approaching us directly. Other kinds of disputes then began to come to CRS, including workplace, family, relationship, landlord/tenant, and town planning. The demand grew rapidly, as knowledge of the CRS spread, partly through word-of-mouth and partly through active efforts by staff and committee to speak to community groups and obtain media publicity. The procedure was that anyone could ask CRS to arrange a mediation, and our staff would then approach the other party (or parties) and seek their agreement to take part. Mediation was undertaken only when all parties agreed to participate. That voluntary aspect remains an important part of the CRS ethos. Even when people are referred to CRS as a normal part of the legal arrangements (eg with rental bond disputes) the CRS checks that the parties are taking part voluntarily.

I would like to mention an important group of people who used the CRS from the earliest days. They were those with a non-English speaking background, as one of our staff with links with ethnic groups helped spread the word about the Service. CRS offered a unique opportunity for these people to access a community service that met their need for dealing with difficult situations, some of which were exacerbated by language and cultural misunderstandings. This led to the use of interpreters to assist in mediations, and a set of protocols was developed to ensure that interpreters did not unduly influence the mediation process. The use of interpreters has since spread to disputes involving deaf parties.

As CRS developed, the Director and Management Committee made sure that government grants continued to be approved regardless of the political party in power in the ACT. This meant regular meetings with politicians and bureaucrats to show the extent of use of the Service and the success rates being achieved. It also included inviting ministers to present our accreditation certificates to new trainees on completion of their training. Around 80% of mediations led to an outcome that satisfied the parties. Follow-up research with parties after several months reinforced the conclusion that the mediation approach had become a valuable resource for the Canberra community. The politicians therefore responded positively to requests for ongoing support, and additional funds became available for work with non-English speakers, and for an initiative to promote mediation to young people. In addition, rental bond disputes between landlords and tenants were automatically referred to CRS as the first port of call, before any possible court action could occur. We took on an extra staff person for youth work, involving training young mediators (as young as 14) and developing school-based peer mediation programs.

One area of involvement that developed for CRS was community meetings. We found that groups that wanted assistance running public meetings on contentious issues (eg mental health, town planning) sought independent people to chair these meetings. CRS became adept at providing trained mediators for such occasions. Our training program was by now more sophisticated, and included extensions of basic mediation, including facilitation and negotiation. We were even being asked to provide training packages to larger institutions, such as public service departments and private firms. The armed services also sought our help in training their staff in conflict resolution skills. A set of mediation competencies was eventually adopted nationally, largely based on the CRS experience. We formed links with the Canberra Institute of Technology and the Australian National University in mediation training work, and undertook mediation work with the Australian Institute for Aboriginal Studies and other Indigenous organisations.

After about five years CRS had become well established, and had a high profile and good reputation. It was part of an interstate network of mediation agencies, was advising governments on mediation policy, and was helping other agencies (eg courts, family mediation) learn how to use mediation skills. Because of the large number of people trained in mediation by CRS, there was also a community resource of knowledge and skill in conflict resolution. This was an outcome of the CRS philosophy to use trained volunteers from the community to help others in dispute, rather than relying on professionals.

This, however, was a danger for CRS and other community mediation services, as professional groups of lawyers and counsellors sought to join the mediation circle. The result was that, in some fields such as family mediation, the qualifications laid down became professional ones rather than competency-based, thereby excluding a number of experienced mediators. Governments responded to such pressure in drafting legislation and offering funding. It is now unclear whether community mediation can be as prominent as it has been in the past decade, despite its considerable successes throughout Australia in helping people in crisis.

In the late 90s CRS ran into difficulties as competition for government funds increased, other agencies came into the field, and other funding sources became harder to find. As a result CRS had to reduce staff and operate on a more limited basis. However at the beginning of the new millennium it has had something of a revival and is continuing to operate in new premises with new staff and an upsurge of mediation requests. I am still a mediator with CRS, although I have given up an committee involvement. A look at the most recent Annual Report reveals the following:

  • neighbour disputes constitute over half those mediated
  • separated couple disputes fill second place
  • family, workplace, business and organisational disputes are also dealt with
  • agreement is reached in over three-quarters of cases mediated
  • a quarter of the parties were born overseas
  • feedback from parties is overwhelmingly positive
  • CRS offers a range of services to the community - including training school students in mediation, offering conflict resolution skills to community groups, facilitating public meetings, and giving dispute advice.

Training and accreditation have become more sophisticated in recent times. Mediators are expected to complete their initial training by working as a co-mediator with an experienced mediator, and are accredited for two years at a time. They are expected to comply with ongoing training provisions by attending regular supervision sessions and specific-topic training. A good example is the ongoing changes in family law regulations, requiring mediators to be familiar with appropriate legal requirements. This adds to the skills of the mediators, as well as to the complexity of their task.

One major advance for mediators is that there is now legislation protecting them from appearing as witnesses in court. There have been rare cases where legal advocates have 'threatened' to bring mediators into court, but they have not ended up in the witness box. A consent form is used by CRS to get agreement from parties not to draw mediators into legal processes. It is also made clear that any written agreement made during mediation cannot be treated as a legal document - it must be referred to legal practitioners if such a document is required.

Mediation remains a significant resource for resolving conflicts, and for educating people in constructive ways to deal with conflict. Its advent has improved awareness of the value of seeking non-legal and non-violent means to deal with crises and problems. Mediation is essentially about providing a process whereby parties can communicate and work out the way forward. It is important that mediation not be time-bound, but allow parties to explore issues in full. Short cuts rarely work in dispute resolution, whether between individuals or nations.

Contact
david.christine@iinet.net.au