The Family Court refers to everything as mediation, which can create confusion. It would desirable for the court to distinguish the process used within the court.
Chief Justice Black (Federal Court of Australia)
I am writing in response to your ADR terminology discussion paper. My response reflects the views of the Court’s ADR Committee which has appreciated the opportunity to comment on the issues raised in the discussion paper.
The ADR Committee sees merit in exploring the suggestion in s 3.8 relating to court-based ADR. The Federal Court Act 1976 (s 53A) currently refers to mediation and arbitration, as do the Federal Court Rules (Order 72). The more recent Federal Magistrates Court Act 1999 utilises the term “Primary Dispute Resolution” in Part 4 of the Act, and in s 21 provides a list of processes covered by this terminology, including mediation, arbitration, neutral evaluation, case appraisal and conciliation.
The Federal Court sees ADR, including mediation, as part of the management of litigation. As a case management tool, these processes aim to reduce time spent by the Court in hearings and focus on those matters that require a definitive determination of fact or decisions on points of law.
The general ADR model currently adopted, and likely to continue in the near future, involves court officers undertaking confidential joint and separate discussions with parties on a without prejudice basis, to explore the issues between parties and options for resolution of the dispute. Court supervision and analysis of those matters suitable for ADR processes might be reflected more appropriately in alternative terminology such as “Court Supervised Case Resolution” or wording to that effect.
This approach to the terminology may better reflect the direction in which court based ADR processes are developing in the Court. It may however, need to be balanced against the growing awareness of litigants and the public of the term ‘mediation’ and the understanding of the general process suggested by the use of this more commonly accepted terminology.
If the person providing the service has directive or determinative powers, that needs to be explained clearly to the consumer.
However, if in context the Court officer does not have a directive or determinative role, the term “mediation” is appropriate.
The key is again in requiring that there be a proper explanation of the process that is to be adopted.
In the Federal Court, an appropriate title might be “Federal Court Registry Mediator”, with a description of the process explaining that the process follows the settlement approach (if appropriate).
In the VCAT system where a mediator is also a member of the Tribunal, it should be made clear that the mediator ceases to have any involvement in the case after the mediation comes to an end. (Anecdotal evidence suggests that some consumers are confused when the discover that the same person is sometimes a “mediator” and sometimes a “Tribunal member”.)
NSW Law Society
Yes. Granted that the term Mediation is generic, the process is distinguished by the element of negotiation. This may pre-suppose that the disputants partaking in the process have legal capacity to enter into binding agreements. The term would therefore lend itself to legal proceedings and has been adopted into legislation as set out above. Mediation however is also distinguished by the independence of the dispute resolver and the ability of the parties to disengage from the process at any time. It may therefore be confusing for Courts and therapeutic interests to use the term loosely. If every provider were located on the continuum this would be less difficult.
On the other hand, the Court has considerable influence in creating community understanding. For this reason it is important that the Court has a clear understanding of the process or processes that it offers. Appropriate description may reduce confusion.
Question Fourteen - Can clear distinctions be drawn among 'mediation', 'counselling' and 'therapy'? If so, what are these distinctions?
Counsellors and therapists are qualified in distinctive professional discipline which deal primarily with emotional and psychological problems at different depths of analysis. However, some service providers are trained in all these processes. A golden rule is that service users should be made aware, and give informed consent, to whichever process in combination of processes is being used and understand the professional qualifications/limitations of the providers.
There are clear distinctions between these things, or at least between mediation and the other two, and the use of terminology that connects these different processes should be avoided.
If these names are used in conjunction with one another, the users of each process will be confused about the particular process they are engaging in, and the role and ethical standards to be expected of the practitioner. This situation would not be helpful to the user, the practitioner or the professions.
Therapeutic and transformative mediation
Therapeutic and transformative mediation resemble counselling or therapy as they involve the mediator skilfully leading the parties to a higher level of discussion and opening the parties up to an understanding of the perspectives of the other, and of themselves.5 They are however particular styles of mediation and should not be confused with professions such as counselling and psychotherapy.
The goal of mediation is also vastly different from that of counselling or therapy. The goal of mediation is to help resolve a particular dispute between parties. It is a short-term goal for a recognizable and ostensible dispute or conflict. The goals of therapy and counselling are more long term goals for individual personal growth or behaviour modification, or for stabilising dysfunctional systems, such as a family or relationship system.
Counselling and Therapy
Counselling and therapy are the domain of psychologists and have an entirely different set of ethical and professional considerations to those of mediators. Counselling and therapeutic psychologists differ in the degree of complexity of problems they deal with and the orientation they use in the process. Both types of psychologists are taught to recognize problems and decide on their level of expertise in working with the problem.
Counselling is a specialization in professional psychology and as such is governed by the Australian Psychological Society and the registration board and has a clear set of ethics to guide practice (6 years training plus two years registration).
Counselling psychologists are trained to work with a wide range of psychological difficulties and disorders, but counsellors usually work with the range of problems encountered in the usual course of living eg bereavement, relationship breakdown, adjustment to step parenting, involuntary redundancy, sexual assault, sexual abuse, release from prison etc. In the field, it is said they work with the "worried well".
The goal of counselling is usually to help a normally mentally “healthy” person through a critical period of their life. It is more an individual goal, although it is also used for family and marriage crises.
Therapists usually have specialty training in one therapeutic approach and have years of supervision in this approach. For example a psycho-dynamic type of therapist will work with the most disturbed people, such as psychotics and those restrained involuntarily and will usually work several times a week for many years with their clients. They must have a helping profession background for example, psychology, psychiatry, or social work. Unlike most mediators and counsellors, psychodynamic therapists will have been through therapy themselves as part of their training and development.
Cognitive therapists may not work at the same depth and intensity with their clients or make the same long-term commitments as psychodynamic therapists, but their role is still to treat the individual or a dysfunction within a system such as a family or relationship system and help the individual or system function better.
Therapy can resemble mediation when working with a system, such as a family or relationship system, but the goal of therapy is not to resolve one problem within the system but to try to get to the core of the dysfunction and either modify or improve it.
The distinction between the three processes derives from this difference in the training and background of the practitioner, and in the goal and purpose of the process. The practitioners of each discipline would follow a different process depending on their orientation and would employ a different set of ethical standards.
‘Mediation’ should be used when describing the mediation, by a trained mediator, of a specific dispute or conflict with the purpose of resolving the particular dispute.
‘Counselling’ should used for the process where a trained counsellor works with an individual or family members with the purpose of assisting them to deal with problems encountered in the usual course of living or during a critical period of their lives.
‘Therapy’ should be used when a trained therapist works with individuals or a family system with the purpose of identifying and modifying a dysfunction through more long term and intensive work.
If these names are used in conjunction with one another, the danger is that each particular process (and ethical standard) will become blurred and confused with the others, which would not be helpful when people have to consider which process or practitioner they require to help them with their particular problem and whether the particular process has been successful in assisting them.
Transformative mediation is a more appropriate term to use if it is considered necessary to describe that particular style or type of mediation. The term therapeutic mediation should be avoided and the term counselling or therapy should not be used when the process is clearly mediation.