Adr terminology Responses to nadrac discussion Paper



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Law Society of SA


It is difficult to draw clear distinctions. The process of mediating behavioural problems can be perceived as counselling although the mediator may not have that intention.

Mediation is about getting an outcome – counselling can be a long term process for the management of issues.


Federal Magistrates Service

In 2002, the FMS surveyed the CBOs which deliver PDR services for the organisation. The overwhelming response was that clients are not comfortable with the use of the term “counselling”. They are confused as to why they need “counselling”. Clients who are ordered to attend “counselling” are usually referred into a mediation or conciliation process once they have completed intakes which suits their needs more appropriately than “counselling”.


“Counselling” is used throughout Part VII if the Family Law Act. Section 21 of the Federal Magistrates Act and section 14 of the Family Law Act both define “counselling” in a PDR context. However, as it is causing confusion for clients, these definitions should be reconsidered.

Law Institute of Victoria

Members of the ADR committee apply the following distinctions:




  • Mediators: Manage a process to resolve a dispute by mutual agreement.

  • Counsellors: Address interpersonal relationship issues to adjust them.

  • Therapists: Deal with personal disorders to cure them.

In the context of dispute resolution or conflict resolution, we see mediation as the appropriate tool.


Terminology should clarify that mediators, when mediating, are not counsellors or therapists. However we recognise that some mediators may choose to use their counselling or therapy skills to good effect during the mediation process.

NSW Law Society

While clear distinctions can and should be drawn, this is generally not done. Counsellors practice mediation along with other professionals. Mediation is driven by negotiation but often therapy must occur to allow the disputant to join in the decision making process. By emphasising these distinctions the benefit of moving from one process to another in the course of dispute resolution may be lost. Very often it is necessary to allow the ventilation of emotion for the mediation or conciliation to progress. This ventilation is in one sense, therapeutic. Provided that the Mediator or other third party knows what he or she is doing, that helps the process. Often pent up emotion is the barrier to reaching a settlement. Once that barrier is removed, a resolution of the dispute is easier. In children’s cases, parties are often ignorant about what is best for their child. In allowing or encouraging discussion of children’s issues a Mediator will often need to take on the role of a counsellor. This distinction between mediation, counselling and therapy is clear but each of these skills must sometimes be used in all three processes. The appropriateness of the use is a matter of degree and depends on the competence and experience of the third party. As a result, the potential for dispute management by engaging appropriate intervention at the appropriate time in the history of the struggle may be eroded if appropriate referrals to other professionals are not made. The Society accepts what you say in section 3.9 and cannot improve on the distinction the authors have made amongst mediation and counselling. It is normally important for the third party intervenor to decide before (s)he starts any process whether the principal purpose is to mediate, counsel or provide therapy. There are conflicts in providing all three at once. Normally only one of the three can be competently provided at the same time as the third party has different professional responsibilities to each of the clients and to the process. Mediation, counselling and therapy can be complementary and simultaneous or separate. The key performance indicator is the resolution of some or all of the issues which give rise to the dispute but generally only one of the processes can be used at the same time. It is to be noted that a contrary view is taken by at least one of our members who responds to this question with a resounding, yes.


Question Fifteen - How should the different meanings of ‘community mediation’ be distinguished?

Yvonne Craig

In the UK community mediation is generally understood to provide services to neighbours but distinctive prefixes can be used ie. Asian/Manchester/Housing Mediation Service


LEADR

The different meanings of ‘community mediation’ could be distinguished in the following way:

(a) when mediators from a community panel are involved the term “community mediators” should be used;

(b) when the subject matter of the dispute being mediated is a community issue the term “community mediation” should be used;

(d) when the mediation service being provided is by a non-government or community organisation the term “community mediation service” should be used.

Law Institute of Victoria

The Law Institute has not attempted to answer this question in this submission.


NSW Law Society

The Society has no objection to NADRAC’s present description of “community mediation” continuing to be used. The community mediators have played an important role as pioneers of mediation in Australia as role models and trainers. There will always be a role for them in resolving neighbourhood and community disputes.


Question Sixteen - What terms should be used to describe ADR and related processes within the criminal justice system?

Yvonne Craig

Same principles as (1 & 5) NB. Present British proposals for an Institute of Mediation and Restorative Justice will work on this. www.kcl,ac.uk/cljs (Kings College London)


LEADR

Victim-offender mediation is a well known and accepted concept. That the word victim-offender precedes the word mediation prevents the word mediation becoming associated solely with the criminal justice system.


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