I recently had a conversation where an employee Family Dispute Resolution Practitioner was concerned about their employers proposed expansion into other forms of mediation. They asked their employer about whether they might need some training in the specific contexts and also whether they would need NMAS Mediator Accreditation.
The response by the employer was: “We’ve been advised that FDR trumps NMAS accreditation” I don’t know who gave them this advice but it is wrong.
The national mediator accreditation system (NMAS) is not the same as the Family Dispute Resolution Practitioner (FDRP) registration system.
It is like one person playing Euchre and the other playing Poker and expecting anything other than chaos!
These are the facts as we see them as a Recognised Mediator Accreditation Body (RMAB) under the National Mediator Accreditation System (NMAS) and an approved complaint handling body for Family Dispute Resolution Practitioners (FDRPs) by the Australian Attorney Generals Department.
Mediation and Family Dispute Resolution have different regulations.
NMAS Accreditation is an industry-standard accreditation for all forms of mediation other than Family Dispute Resolution.
NMAS is administered by the Mediators Standards Board www.msb.org.au with delegated authority to train, assesses and accredit to Regonised Mediator Accreditation Bodies (RMAB’s) such as Mediation Institute.
Our role is to ensure that applicants for NMAS accreditation meet and continue to meet the training, good character and ethical obligations imposed by the standards.
Family Dispute Resolution Practitioners are registered under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 which only apply to FDR work and are administered by the Australian Attorney Generals Department. These regulations don’t relate to any non-family law mediation.
Complaint Handling
Mediation Institute as part of our membership services considers complaints made against members. FDR complaint handling and NMAS Mediator complaints are considered against different regulations and requirements.
Mediation Institute considers complaints against both systems but do not consider complaints against FDRP’s doing other mediation work without being NMAS accredited members. They would be working unaccredited and may be putting their professional indemnity insurance at risk, if they have actually insured themselves.
Professional Indemnity Insurance
We can’t provide information and advice about Insurance so we recommend that you contact your insurer to make sure that working without any accreditation does not put your insurance at risk. Generally professional indemnity relates to conduct that falls between illegal conduct and appropriate conduct. In other words, claims made against you for breaches of duty or professional conduct. If you don’t have any professional accreditation or registration what conduct would that relate to?
Changes in requirements for Professional Indemnity Insurance.
How to get NMAS Accreditation if you are a FDRP.
If you are a practicing FDRP and have conducted more than 100 hours of mediation in the past two years you may be able to apply for the experienced qualified pathway to NMAS Accreditation.
You will need to provide evidence of the following:
- Past training in dispute resolution – being an FDRP indicates that you have had appropriate training at some point as you would have provided that evidence to the Attorney Generals Department when you registered.
- Evidence of 100 hours of mediation in the preceding two years. If you haven’t been mediating you will need to do the NMAS training.
- Evidence of competence in the workplace from two people.
- Assessment of competence which we do online at a time that suits you.
- Meet the other requirements for NMAS Accreditation such as good character, professional indemnity insurance cover and so on. NMAS Standards.
The answer is No!
FDR Practitioner registration does not trump NMAS Accreditation for non-FDR work.
Mediation Institute believes that:
- You shouldn’t be trying to do Family Law Mediation if you are not a registered Family Dispute Resolution Practitioner.
- You shouldn’t be offering to do other forms of mediation if you are not a NMAS Accredited Mediator.
What happens if …?
Q. Someone makes a complaint about non-FDR work but I am not a NMAS Mediator?
A. We will check the NMAS Register to see if you are accredited with another RMAB. If you are we will refer the complainant on to your RMAB.
If you are not NMAS accredited we will tell the client that you do not have a professional complaint handling body and assist them with going back to you with their concerns.
If they indicate that highly unethical behaviour has occurred we would direct them to the relevant consumer complaint authority in your jurisdiction. We may also consider how that impacts your good character requirements as a FDRP and take further information and consult with the Practitioner Registration Unit in the Attorney Generals Department.
We would not disclose your name without speaking with you about the issues raised.
We would not speak with you without the permission of the person making the complaint however we could not officially consider the complaint as we do not have the authority to do so.
Q. What if they are employed by an organisation?
A. The organisation would be required to have their own complaint handling process where they would have to appropriately deal with complaints about non-accredited staff members offering mediation services. If there was a situation of negligence that results in a claim they would need to look to their insurer to see if they would cover the costs. We would advise that this is something that is done before offering services delivered by unaccredited people in a role where there is an accreditation system.
Q. I’m a lawyer so can’t I just say I am a mediator?
A. The role of lawyer and mediator are very different. As a lawyer you are an advocate and adviser for one party.
As a mediator you work as an independent facilitator where you can’t ethically provide independent legal advice to either party. Even if you are providing a hybrid or evaluative service under the NMAS Standards you must continue to support client self-determination.
We would advise that you check with your law society and your insurer regarding offering mediation services without being NMAS Accredited.
If you have other hypothetical please let us know.
