Recently in these few years, the awareness of ADR was just started to grow in all over the world. Therefore, ADR is still fresh and new in some of the countries such as Nordic countries including Denmark. Even though the current status regarding ADR in Denmark is disappointing, but it is improving as ADR in Denmark is still undergo a developing stages and there are still many improvement need to be made.
Mediation as an alternate dispute resolution is not very popular in Nordic countries as the official research shown that the demand for mediation is very low. There are only 15 requests for mediation in Denmark, less than 20 in Norway and less than 5 in Sweden[ Jes Anker Mikkelsen, ‘Mediation ‘ Not for real litigators’? (BECH-BRUUN, December 2013) <http://www.theworldlawgroup.com/files/file/docs/Mediation%20-%20Not%20for%20real%20litigators_Bech-Bruun_December%202013.pdf> accessed on 20 April 2014]. The result shows that mediation is so pathetic in Denmark and other Nordic countries. However, the current situation will be improved in the future because it is still in the preliminary stage of ADR and the countries are putting their effort to overcome those problems.
Therefore, since 2003, mediation has been offered by the Danish Institute of Arbitration. Denmark also had come out with a special education for mediators, aiming to educate lawyers to become certified mediators in order to promote mediation. They are organised in Danish Mediation Lawyers with the support of Danish Bar and Law Society. Their main purpose is to offers mediation solution in private and commercial disputes for the people.
Compared to other Nordic countries, Denmark is more pleasant to welcome mediations such as court-annexed mediation to be introduce into its legal system. Danish Administration of Justice Act was amended in 2008 in order to introduce and enforce mediations which the Danish courts are very pleased with this kind of arrangement.
However, there is no uniform laws or standard on mediation in Denmark. Even though there is a Danish Arbitration Act 2005 for arbitration, but there is only a Rules on Mediation 2010 for mediation in Denmark. Both the Act and Rules are introduced by the Danish Institute of Arbitration which is a non-profit organisation founded in 1981 by numerous legal society and profession association such as Danish Bar and Law Society, Association of Danish Judges, Danish Federation of Small and Medium-sized Enterprises. Other area of profession associations such as Danish Construction Association, the Danish IT Industry Association, the Danish Society of Engineers and so on also joined the Danish Institute of Arbitration.
Even though Rules on Mediation 2010 is unclear about the standards for mediation practice and accreditation of mediation, Danish Arbitration Institute has adopted a set of guidelines and thus there are various types of mediation standards exist in practice throughout Denmark. Generally, there are two types of accreditation, which are national accreditation standard and self-regulatory accreditation standard.
Denmark is one of the countries which practice self-regulatory accreditation standard. Due to the absence of accreditation by Denmark government and judiciary, self-regulation is the most preferred method for regulating accreditation of mediation. Self-regulatory standards refers to those legal organisations such as professional associations for example Mediation Center of Denmark and Mediator Advokater. It have been developed on a sector by sector basis by court programs, employer bodies of mediators, industry bodies and so on[ Nadja Marie Alexander, International and Comparative Mediation: Legal Perspectives (Kluwer Law International, 2009) pg 83].
Mediation Center in Denmark
There are few mediation private organisations such as Mediation Center[ Mediation Center, ‘Mediation Education’ <http://www.mediationcenter.dk/mediationuddannelse.shtml> accessed on 21 April 2014.] in Denmark which provides certified training in mediation. There are different level of mediation education provided by Mediation Center, such as Mediation Training, Mediator Practitioner Training, Mediator Master Practitioner training.
Mediation Practitioner Training is a preliminary education aiming to train those who wish to work as mediators, facilitators and negotiators and this training is focusing the concerns, needs and interests of the disputing parties[ Mediation Center, ‘Mediation Practitioner Training’ <http://mediationcenter.dk/course-description-mediation-training-2012.pdf> accessed on 20 April 2014]. Highly competent teachers and experience mediators are hired to conduct the training with theory and practical teaching method which will enhance the learning process and the participant may experience the true are of mediation.
While Mediator Master Practitioner Training is for those who wish to obtain international certification as a mediator and learn to implement conflict design in orgaizations. It only provide for those who successfully passed the Mediator Practitioner training. This course will be completed with a written and oral exam in order to obtain certification and the area of focusing will be the conflict in design organizations.
There are other mediation center such as Danish Centre for Conflict Resolution which also offers a 75 hour of mediation program conducted on an intensive basis and after the completion of the training program, an accreditation certificate will be issued to the participants. These certificates will allow its holder to mediate in cases referred to them by the Danish Centre for Conflict Resolution.
University of Denmark
In Denmark, there are two law faculties in the two oldest and largest university, which are University of Copenhagen and University of Aarhus which offer mediation course for law students. The courses are approximately 40 hours theory and practice followed by an exam. However, these courses does not satisfied the requirement for mediator accreditation such as academic exam and the amount of practical training which would otherwise be included for accreditation purposes.
Thus, the purpose of offering these courses is to increase the awareness of ADR process and increase the popularity of ADR. Throughout these courses, law students in these two university had generated their interest in mediation practice and would probably practise law with mediation in future which is a good choices[ Nadja Marie Alexander, Global Trends in Mediation (Kluwer Law International, 1 Jan 2006) pg 133].
Besides that in 2002, Law Faculty of University of Copenhagen had introduced a new postgraduate degree in mediation and conflict resolution which involves two years part time study. It is the first kind of interdisciplinary program in Nordic countries and its is aimed at those participants who are from legal, medical and business professional backgrounds to come and take this program. It provides the participants with an understanding of conflict and mediation on individual, national and international levels through theoretical basis. The participants must pass the exams in both theory and practical and also writing a thesis. Upon the completion of degree in mediation and conflict resolution, the participants will receive a certificate which accredited them as mediators[ Nadja Marie Alexander, Global Trends in Mediation (Kluwer Law International, 1 Jan 2006) pg 134].
Not only lawyers need to undergo the mediation training program, but even judges and attorneys need to undertook a seven day mediation training program which is also conducted by Law Faculty of Copenhagen University. This is to prepare the judges for the on coming implementation of court-annexed mediation where it requires judges to sit as a mediator and advise the parties.
However, it is not compulsory for the court to practise court mediation as there is no court-annexed mediation schemes in Denmark. This is because Denmark does not co-operate in all fields of EU-Law such as Mediation Directive which has been in force since 13 June 2008. The Mediation Directive requires the European Member States except Denmark to implement the necessary laws, regulations and administrative provisions regarding Mediation before 20 May 2011.
Mediation Directive covers all the essential issues on mediation such as scope of its application, quality of mediation, court and mediation, enforcement, confidentiality[ Dr Felix Steffek LLM, Mediation in the European Uion: An Introduction (Cambridge, June 20120) <http://www.diamesolavisi.net/kiosk/documentation/Steffek_Mediation_in_the_European_Union.pdf> accessed on 21 April 2014] and others in order to give a complete set of legislation and standardize all the rules and regulation governing mediation internationally. Due to some political reasons, Denmark have not accept to bound by this Mediation Directive[ Laura Ervo, Judges and Mediation: Scandinavian Court Culture and the Future of Mediation (Orebro University, 2 December 2011) <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CDAQFjAC&url=http%3A%2F%2Fwww.mediation-in-europe.eu%2Fdownload.asp%3Fln%3D%26idtema%3D1%26idtemacat%3D2%26file%3DNews%252FFiles%252F39%252FErvo.pdf&ei=N0RXU8jyL8jYigeJ54GwBQ&usg=AFQjCNGCR_ZHezjQ9k454QEryQImHrjQQQ&bvm=bv.65177938,d.aGc> accessed on 22 April 2014] and this refusal will definitely slow down the development of mediation in Denmark.
However, this does not means that mediation in Denmark is bad or low in quality. Historical shows that mediation in Denmark has been practiced since 1795[ Vibeke Vindeloev, ‘Mediation in Danish law – in retrospect and prospect’ (ADR Bulletin, 7 January 2003) <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1241&context=adr> accessed on 23 April 2014] with no laws regulating mediation and the profession of mediation until recent year. This already proven that mediation in Denmark has been a long living success without any regulation at all. Those new rules and regulations were acting as a force to aid mediation to reach a higher level.
Besides that, the Bar Association in Denmark has continued to offer similar training to attorneys and after the completion of their program, where the participants will receive a diploma and able to be called as attorney-mediators[ Nadja Marie Alexander, Global Trends in Mediation (Kluwer Law International, 1 Jan 2006) pg 134].
Other of Training Programme for Mediators
Starting on 1 January 2008, Denmark’s Executive Order had enforce that all lawyers and assistant attorneys who permanently practise law in Denmark under their home-country professional title have to participate in ongoing continuing education under Order No.1474 of 11 December 2007 of the Rules Of The Danish Bar and Law Society[ Rules Of The Danish Bar And Law Society 2008, Order No. 1474, Part 1 Section 1, <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.advokatsamfundet.dk%2FService%2FEnglish%2FRules%2F~%2Fmedia%2FEngelsk%2FAdvokatsamfundets_regler_2_eng_-_081208_eng1.ashx&ei=_dlUU5OMO8yA8gWc9IH4Bg&usg=AFQjCNFbmIkAjF_tvIMky0XObB4zDx-fgw&bvm=bv.65058239,d.dGc&cad=rja> accessed on 21 April 2014.].
According to Section 2 of the Order[ Rules??Of??The??Danish??Bar??And??Law??Society 2008, Order No. 1474, Part 1 Section 2, <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.advokatsamfundet.dk%2FService%2FEnglish%2FRules%2F~%2Fmedia%2FEngelsk%2FAdvokatsamfundets_regler_2_eng_-_081208_eng1.ashx&ei=_dlUU5OMO8yA8gWc9IH4Bg&usg=AFQjCNFbmIkAjF_tvIMky0XObB4zDx-fgw&bvm=bv.65058239,d.dGc&cad=rja> accessed on 21 April 2014.], ‘continuing education’ refers to education either general importance to practising law or specific importance to the assistant attorney or lawyer’s performance of his job. Basic education programme shall not be included in continuing education. In order to complete the continuing education, few requirements need to be fulfill under section 3 of the Order[ Rules??Of??The??Danish??Bar??And??Law??Society 2008, Order No. 1474, Part 1 Section 3, <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.advokatsamfundet.dk%2FService%2FEnglish%2FRules%2F~%2Fmedia%2FEngelsk%2FAdvokatsamfundets_regler_2_eng_-_081208_eng1.ashx&ei=_dlUU5OMO8yA8gWc9IH4Bg&usg=AFQjCNFbmIkAjF_tvIMky0XObB4zDx-fgw&bvm=bv.65058239,d.dGc&cad=rja> accessed on 21 April 2014.], for example, each of the course shall consist of at least three 45 minute lessons, the goal description or subject description must be clear and available and so on. They need to participate 54 lessons of continuing education which need to be done within a period of three years[ Rules??Of??The??Danish??Bar??And??Law??Society 2008, Order No. 1474, Part 1 Section 4(1), <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.advokatsamfundet.dk%2FService%2FEnglish%2FRules%2F~%2Fmedia%2FEngelsk%2FAdvokatsamfundets_regler_2_eng_-_081208_eng1.ashx&ei=_dlUU5OMO8yA8gWc9IH4Bg&usg=AFQjCNFbmIkAjF_tvIMky0XObB4zDx-fgw&bvm=bv.65058239,d.dGc&cad=rja> accessed on 21 April 2014.].
Therefore, there are many types of mediation courses delivered by different people in different professions. People from all around the world had come and shared their experiences and thoughts through mediation talk or course in Denmark. Most of the courses are at least three days course or five day course.
For example, David Miles who is a partner in a leading firm of solicitor, Glovers in Central London, had delivered a three day Construction Mediation Course to Danish Mediators in Middelfart, Denmark with a joint instructor with David Richbell of Mediation and Training Alternatives (MATA) and Henry Brown (author of “ADR Principles and Practice”) on 6, 7 and 8 October 2005 which was sponsored by Advokaternes Serviceselskab[ David Miles, ‘News: David Miles Delivers Construction Mediation Course in Denmark’ (October 2005) <http://www.glovers.co.uk/news.aspx?id=140&Page=1> accessed on 21 April 2014].
As stated earlier, mediators can come from different backgrounds of people. Thus, some of the mediation course such as ‘fudamentals of Mediation’ aims to educate suitable students so that they can act as mediators and it is organised by Hans Boserup who was the founder of mediator.dk[ Hans Boserup, ‘Get a Free E-mail Course in Conflict Resolution with Mediation’ (Mediator) <http://www.mediator.dk/en/> accessed on 19 April 2014]. It is a 4 days mediation course in Copenhagen, Demark on 19,20,26 and 27 August 2014 and the course covering six different ways to reconcile which are wide and comprehensive. After completion of the course, the students will qualified as a trained mediator while lawyers can fulfill 40 hours of their continuing education requirement of 54 hours[ Hans Boserup, ‘Fundamentals of Mediation'(Mediator) <http://www.mediator.dk/en/?P=COURSES.184.108.40.206.i> accessed on 19 April 2014].
There is a saying that: ‘Charity begins at home and education starts from young’. Thus, Denmark are taking many effort to promote mediation and even trying to merge the good value of mediation into its society starting from young. In Denmark, there are special type of shool, which is school mediation which offers alternative conflict resolution as a method of handling conflicts between pupils and staffs[ Karin M. Villumsen, ‘School Mediation in Denmark – an overview’ (DCUM) (19 August 2011) <http://dcum.dk/school-mediation-in-denmark-overview> accessed on 19 April 2014]. The uniqueness of the school is that the mediation can take place with adults or pupils as mediators.
Most of the school mediation implemented under the categories of primary schools and it is still in its start-up phase just like ADR in Denmark but the outcome is satisfactory as the result shows the increment of happiness, safety and peaceful in school and develops the competences for pupils and staffs. The number of schools in Denmark working with school mediation is estimated between 30 to 50 schools and it will keep increasing in the following years as the interest is growing[ Karin M. Villumsen, ‘School Mediation in Denmark – an overview’ (DCUM) (19 August 2011) <http://dcum.dk/school-mediation-in-denmark-overview> accessed on 19 April 2014].
It will implant the good moral value in mediation which is the peace and harmony way to solve conflict into the students. With this kind of education, those popular issues in schools such as fighting, bullying and bad language may be avoided for the reason that the mediation has rooted in their life and behaviour. Recently, the Danish Cetre of Educational Environment(DCUM) had publish another material of guidance and inspiration for primary schools aiming to encourage conflict resolution and mediation in schools as an alternative to sanctions.
Thus, this shows that mediation not only comes in variates forms, it also applies in variates categories of people. This is why Denmark not only promoting mediation through it’s legal system, it also encourage mediation through education[ Karin M. Villumsen, ‘School Mediation in Denmark – an overview’ (DCUM) (19 August 2011) <http://dcum.dk/school-mediation-in-denmark-overview> accessed on 19 April 2014]. In the same time, it is also training potential students to become a good mediator in future. The students may learn the arts and skills of mediation which can only build up through time and experience. The is a brand new idea and good suggestion for other countries to learn and set up their own school mediation which may achieve the purpose of killing two birds with one stone.
Debates on Accreditation and Standards
After the accreditation of mediation started to introduce in all over the world, there are criticizm regarding this issue and the debate over accreditation and standards of mediators started to arose. This is because there are advantages and disadvantages of accreditation of mediation.
Starting with the advantages, which are the basic reason of accreditation of mediation, are basically these five advantages[ Felicity Hutcheson, ‘Current Trends, Process and Practice in Mediation and Alternative Dispute Resolution’ (Department of Labour, January 2008) <http://www.dol.govt.nz/PDFs/mediation-resolution.pdf> accessed on 21 April 2014 ]:
- To enhance the quality and ethics of mediation practice
- To protect consumers of mediation services
- To promote education about mediation
- To build consumer confidence in mediation services
- To improve the credibility of mediation as an alternative disputes resolution
- To build the capacity and coherence of the ADR field.
While the main part of the debates is mostly from the negative side of accreditation. Many of the people make a big mistake on the notions of mediation as a profession and qualifications to mediate. They think that the few hours of training is all they need to become a mediator which is so easy and cheap.
However, it is very wrong and untrue to think of that way. Mediation training is just an introduction to basic concepts and general knowledge about mediation. It is like an orientation to the profession but not an instant qualification[ Diane Levin, ‘Mediation career myth-busting: 5 urban legends it’s time to debunk’ (Mediation channel, 15 July 2009) <http://mediationchannel.com/2009/07/15/mediation-career-myth-busting-5-urban-legends-its-time-to-debunk/> accessed on 23 April 2014]. Attending few courses of training doesn’t means they are professional in mediation. Those required skills in mediation was unable to learn in few hours and it only develop through time and experience. Theoretical training is not the same in reality where it is more complicated and unexpected.
Another wrong assumption is that many of the people including some trainer in the mediation training thinks that lawyers are automatically a great mediators because of their profession and need only a little of mediation training. Even though lawyers are good in certain kind of negotiation, but this does not make them a good mediators.
They are normally familiar with the traditional kind of distributive negotiation, which is also called as ‘win-lose’ bargaining. Assuming two parties are fighting for a pie and they are not able to expand the pie, one party will get a big part of pie while the other party get a smaller part. On the other hand, mediation offers another kind of negotiation, which is intergrative or interest-based negotiation[ Brad Spangler, ‘Distributie Bargaining’ (Beyond Intractability, June 2003) <http://www.beyondintractability.org/essay/distributive-bargaining> accessed on 24 April 2014]. It is different from distributive negotiation where mediators are helping the parties to find a ‘win-win’ solution to their dispute through intergrative negotiation[ Brad Spangler, ‘ Integrative or Interest-Based Bargaining’ (Beyond Intractability, June 2003) <http://www.beyondintractability.org/essay/interest-based-bargaining> accessed on 14 April 2014]. It is a negotiation focusing on the interest of the parties including the needs, desires, wishes, concerns and fears which is important to each side. It makes the ‘pie’ bigger in order to satisfied the interest and needs of both parties. Thus, it is a different kind of professions and no lawyers are natural mediators. Everyone must bare this in mind to avoid confusion and misunderstanding.
Besides that, some of the people also misunderstood that mediation is a specifically only for lawyers or law degree holders. It is an untrue statement because mediator can come from a wide range of occupations and backgrounds, for example from the range of student and housewife until judge and officer. However, if the disputes involving the area of law, then they should leave it to lawyer mediator who are expert in law.
Furthermore, there are criticizm on the online training in mediation with certification. With the development of technology in recent years, many things are able to do in websites and internet. There are plenty of online mediation training with certificate which is offered by some organisations. These kind of training was strongly criticize by Diane Levin who is the author of many mediation articles in Mediation Channel[ Diane Levin, ‘Mediation career myth-busting: 5 urban legends it’s time to debunk’ (Mediation channel, 15 July 2009) <http://mediationchannel.com/2009/07/15/mediation-career-myth-busting-5-urban-legends-its-time-to-debunk/> accessed on 23 April 2014]. I agree with her point that these kind of online mediation training is a big waste of money and time and it is definately not the way to learn mediation correctly and efficiency.
Mediation is all about the interactions, communications and understanding with the people around who are having disputes. Learning mediation through the lifeless computer screen won’t benefit much to the participants. They will not able to learn and feel the true art of mediation which requires special skills and techniques. Generally, mediation training is first channel to build your own network of contacts, support and potential partners in the future[ Diane Levin, ‘Mediation career myth-busting: 5 urban legends it’s time to debunk’ (Mediation channel, 15 July 2009) <http://mediationchannel.com/2009/07/15/mediation-career-myth-busting-5-urban-legends-its-time-to-debunk/> accessed on 23 April 2014]. If you do mediation training online, you will gain nothing but a piece of certificate and loss this kind of opportunity to build up a real world connections which is so connected to the profession and practise.
In the past, during the ruling of King Christian V who was the first to introduce mediation in all civil cases in Denmark[ Vibeke Vindeloev, ‘Mediation in Danish Law – in retrospect and prospect (ADR Bulletin 7 January 2003) <http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1241&context=adr> accessed on 18 April 2014], mediators does not received salary for the reason that it is a public duty and a duty of honour for them to carry out mediation. However, in this modern society, people are more concern about their salary and profit rather than their duty and responsibility in their job. Mediation used to be a sacred and holy job where the motivation for people to become a mediator is to serve the society or to regain career satisfaction. However, things has change as time goes by, these kind of idealism is fading away while naked economic ambition is increasing[ Diane Levin, ‘Mediation career myth-busting: 5 urban legends it’s time to debunk’ (Mediation channel, 15 July 2009) <http://mediationchannel.com/2009/07/15/mediation-career-myth-busting-5-urban-legends-its-time-to-debunk/> accessed on 23 April 2014]. Those people think that they are going to make a big profit or big success right after their 30 hour training. We are not saying that one cannot succeed in a career in mediation but at least not in an instant success after mediation training. Every profession including mediation requires effort, hard work, planning, luck, time and experience in order to gain a success. As the famous saying: ‘No Pain, No Gain.’ There is no short cut way to achieve success in this world.
Certified Mediator vs Certificated Mediator
There is a serious issue highlighted by Dr. Tammy Lenski regarding who is the real qualified/certified mediator. This is because there is a huge difference between getting a certificate of completion and being a truly certified mediator. She explain the difference is that: ‘The certificate does not mean you’re certified. It means you’re certificated[ Tammy Lenski, You Say You’re a Certified Mediator. Say Who? (Lenski.com, 19 July 2009) <http://lenski.com/blog/you-say-youre-a-certified-mediator-says-who/>].’ There are some certified mediation training available in the market but not all training come with a legitimate certification. This is because there are may organisation which may provide mediation training for those countries which adopt the self-regulatory accreditation in mediation. Therefore, the problem is who is a legitimate certifier?
As there is no legal legislation governing the accreditation of mediation in Denmark, some of the organisation might make people ‘assume’ and claim that they are offering certification training program which in fact they are not legitimate certifier. There are so many mediation training program, where some of them are superb while some are poor. Some of the mediation training provider claim that certification as part of their marketing in order to suit the demand of the public where people are willing to spend their money just for the title as a certified mediator[ Tammy Lenski, You Say You’re a Certified Mediator. Say Who? (Lenski.com, 19 July 2009) <http://lenski.com/blog/you-say-youre-a-certified-mediator-says-who/> ].
Moreover, Dr Cloke also strongly disagree with the licensing the mediation profession on 5 grounds[ Cloke, K. The Cross Roads of Conflict: A Journey into the Heart of Dispute Resolution. Janis Publications. 2006. Canada at p329]. First of all, he thinks that it will exacerbate the differences between license and non-license mediator which will lead to the encouragement of territoriality and competition. This is because accreditation of the mediation will threaten the interest and status of those who already practise mediation for many years before the accreditation.
Furthermore, Dr Cloke believes that it will reduce the supply of mediators in market as there are trainings and exams need to be complete and also need to pay a certain amount of money for the licensing fee. However, these two grounds are commonly raised against all professionalism by those who wish to object the accreditation[Christine Grice, ‘Accreditation of Mediators and Mediator Training – Developing a Unified Assessment and Accreditation System’ ( 24 – 25 February 2011) <http://barcouncil.org.my/conference1/pdf/10.ACCREDITATIONOFMEDIATORSANDMEDIATORTRAINING.pd> accessed on 24 April 2014.].
Besides that, Dr Cloke thinks that accreditation will freeze the ideas and techniques regarding mediation. It will impose formalities and standards to mediation process where mediation will become rigid and limited. The worry is that those participants of the mediation training will only apply the training materials blindly in their mediation without being creativity and flexibility. This is why Dr Cloke are concern about limiting the freedom and development of mediation in future[ Cloke, K. The Cross Roads of Conflict: A Journey into the Heart of Dispute Resolution. Janis Publications. 2006. Canada at p329].
Recommendation and Opinions
In my opinion, it is necessary to have accreditation of mediation in all of the countries. As the demand for mediation increased, there must be some guideline and regulation to govern on this area. It is foreseeable that there must be some impact after the introduction of the accreditation. However, there are ways to cure the demerit of the accreditation such as having campaign or talk with the correct teaching to rectify the mind set of the people.
Furthermore, those training program should clearly stated and explained that mediation is nobody’s exclusive domain, it is not a specific professions only for lawyers. This is to avoid misunderstanding of the profession and to maintain the flexibility of mediation. It is also should be conducted in a creative and practical way in the sense that it does not restrict the nature of mediation.
Besides that, there should be a comprehensive legislation governing the legitimacy of the mediation training program certifier in order to curb those illegal certificate issued by those illegal training provider. This will ensure the right and protection of the participants to obtain a qualified certificate to practise in mediation.
There also should be some specific law or exemption clauses protecting those old mediators who had been practise for a long period of time before the accreditation in order to protect their right and interest. This is because those experience mediators are far more better and experience than those fresh certified mediators. Therefore, there should be some exemptions for them to be exempted from some of the trainings or exams which they already very familiar so that it will not waste their time and energy.
Summary of the Debates on Accreditation and Standards
To enhance the quality and ethics of mediation practice
To protect consumers of mediation services
To promote education about mediation
To build consumer confidence in mediation services
To improve the credibility of mediation as an alternative disputes resolution
To build the capacity and coherence of the ADR field.
To provide the certainty of qualification and standard of mediation
mistaken on the notions of mediation as a profession and qualifications to mediate
Wrongful assumption of lawyers as a natural mediator
Wrongful assumption that only lawyers or law degree holder can practice as a mediator
Online mediation training is worthless and meaningless
9. Mediator Attributes, Skills and Role
Characteristics of Mediator
Human, is complicated in nature while dealing with two disputing parties is far more complicated. This is why being a mediator is not an easy job as a mediator is working with the 3 P’s, which are supporting the people, controlling the process and solving the problem. This means that very mediation starts with comforting and easing the parties, being the communication channel between the parties and finally helping the parties to search for a solution which serves the best interest.
A success mediator depends very much on his personal characteristics and skills. Besides that, he must a person who is able to cope with great stress and have a combination of characteristics, experience, knowledge and specialist skills in order to achieve success in mediation[ Liverpool John Moores University, ‘Mediator Criteria, Skills & Training’ <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.ljmu.ac.uk%2Fpersonnel%2Fpersonnel_docs%2FMediation-_skills_and_qualities_of_a_mediator.doc&ei=ehhVU-yJNIb88QWQ7IKYCQ&usg=AFQjCNHnymhKYviqy90rkN4jmeRAJKS9tw>accessed on 18 April 2014].
First of all, a mediator must be able to control his emotions and alway be cool and calm. A person who easily get frustrated and annoyed is not suitable to be a mediator because he will emotionally involved with the parties which make things worse. He must have self-control to avoid displays of genuine frustration, sympathy,tiredness, irritation, which will cause him to lose the initiative during questioning and lose the passion to mediate. However, he must be able to fake any of these emotions if necessary circumstances.
On the other hand, mediators must be very patience while leading the parties so that he will be able to give full attention to the disputants and stay focused. He must also be able to tolerate high emotion, arguments, interruptions and tears especially in family matters. There are great impact when a mediator displaying his impatience. It may cause the parties to lose respect to the mediator which will reduce the mediator’s effectiveness and subsequently the parties will losing their faith in mediation. Thus, no matter how boring or annoying, the mediator must smile and listen carefully to the parties with eye contact. This shows the sign of listening and care about their disputes[ Sam Imperati, ‘Traits of a Mediator’ (Mediate.com, January 2009)<http://www.mediate.com/articles/imperati1.cfm> accessed on 22 April 2014].
Besides that, creativity in helping disputing parties to find solutions is also very important to mediators. The character of mediation is flexible and informality. However, it depends on how creative and imaginative of the mediator to lead the disputants while controlling the process[ Liverpool John Moores University, ‘Mediator Criteria, Skills & Training’ <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.ljmu.ac.uk%2Fpersonnel%2Fpersonnel_docs%2FMediation-_skills_and_qualities_of_a_mediator.doc&ei=ehhVU-yJNIb88QWQ7IKYCQ&usg=AFQjCNHnymhKYviqy90rkN4jmeRAJKS9tw>accessed on 18 April 2014]. Anything which is impossible in court, may be possible in mediation.
Skills of Mediator
Generally, there are few important skills which must posses in mediators. Building rapport is one of the most fundamental mediation where it only occurs when two or more people feel that they are in sync or feeling similar to each other. It is an important skill to mediator because rapport is used to build relationships with others quickly and to gain their trust and confidence. It is a very powerful tool which allows mediators to guide the disputants to step out their defensive roles that they have created and start cooperating[ Emma Robson, ‘5 Basic Mediation Skills Everyone Should Know’ (Coflict Gateway, 20 November 2011) <http://www.conflictgateway.com/features/182-5-basic-mediation-skills-everyone-needs-to-know.html> Acessed on 17 April 2014].
On the other hand, active listening is also a key to successful mediation. It is not just normal listening skill but a communication technique which requires the listener to understand, identify, interpret, evaluate and pick up the main points or issues of what they have hear. This is not an easy skill for anyone to posses, as according to the research done by Newcastle University in 2002, 78% of the participants who was trained in active listening showed the signs of passive listening and tend to glaze over the disputants blankly within 15 minutes of hearing the dispute[ Emma Robson, ‘5 Basic Mediation Skills Everyone Should Know’ (Coflict Gateway, 20 November 2011) <http://www.conflictgateway.com/features/182-5-basic-mediation-skills-everyone-needs-to-know.html> Acessed on 17 April 2014]. Although it is not easy to posses this skill, but one may develop this skill through time and experience.
Sometimes, it feels like hitting a brick wall when you tried to mediate for the disputes. People will tend to keep repeating the same things and giving no tolerance to their rights or issues. Without breaking through this ‘ice wall’, the problem will be twisting around and remain unsolved and this is where mediator’s job comes in. Moving past an impasse is not an easy job and this skill can take years for a professional mediator to learn. Mediator may start off by easing the disputants into a dialogue to relax the tense situation[ Emma Robson, ‘5 Basic Mediation Skills Everyone Should Know’ (Coflict Gateway, 20 November 2011) <http://www.conflictgateway.com/features/182-5-basic-mediation-skills-everyone-needs-to-know.html> Acessed on 17 April 2014]. Carefully select the questions need to be ask and observe the background of both of the parties for the reason that it is quite often the parties can have a mindset which is stuck in the past. Thus, mediator should lead them to step out of the pass and help them identify the available choices for them to end the disputes.
Furthermore, a mediator must posses the art of persuasive and also knowledge about psychology in order to lead the disputing parties. This is because the fundamental duties of mediators is to help the parties to communicate and lead them to find possible solutions but not giving advise or deciding the dispute. Therefore, the art of persuasive and psychology are very helpful in carry out mediation and will ensure a smooth process with a high successful rate.
By combining all of the skills mention above, mediator will be able to develop an analytical problem solving skills, which is the ability to identify and separate the issues involved and find the possible answers by framing these issues. Sensitivity of feeling may helps the mediator to find the answer and also to detect any unusual issues such as serious criminal offence so that he may stop the mediation in time.
Besides that, mediator as a communicator must be able to use clear, simple and neutral language in speaking so that the parties may understand the questions and answer correctly. He must adapt to the varied personalities which he will encounter and imagine himself to the parties position so that he may smoothly shift his questioning and approach techniques according to the operational environment and the personality of the party.
Role of Mediator
It is crucial that the mediator play his role correctly and effectively. This is because the role of mediator directly affects the credibility of mediation industry where the disputants are giving their trust and faith to the mediator to solve their problem. As we can see the recent news in Malaysia, Yusof Holmes Abdullah as UK arbitrator in the KLRCA, was charged with bribery in the Penang Malaysian Sessions Court on 25 June 2013 and this is the first time an arbitrator has been charged with corruption in Malaysia. Imagine this kind of news will bring how great an impact to the people who trusted in ADR and how many people will doubt the credibility of ADR. With this kind of example, mediators should practise mediation with honest, neutral and equality in order to protect the pride and dignity as a peace maker in the society.
According to the Rules on Mediation 2010 of the Danish Institute of Arbitration[ Rules on Mediation 2010 (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014], it laid down all the rules and roles which the mediator has an obligation to follow and obey. The roles of mediator is basically similar to all other countries such as Malaysia. Generally, after consulting with the parties, the Mediator will decide the time and place of the mediation proceeding.
Acting as a neutral party, the mediator shall ensure that the parties are treated with equality and giving each party the full opportunity to present its case[ Rules on Mediation 2010, Article 11( Par. 2), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014]. The mediation may be conducted in a joint session or a caucus session or combine of both sessions with the permission of the parties. In caucusing, the mediator meets separately with a party in the absence of the other party while in a joint session, both of the parties will be present with the mediator sitting in the middle. The Mediator shall be free to meet and communicate orally and in writing with the parties during the mediation process[ Rules on Mediation 2010, Article 11( Par. 3), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014].
Every countries around the world including Denmark treated the confidentiality of mediation in a very serious manner. As usual, all the information and evidence given to the Mediator by any party shall remain private and confidential. It shall not be disclosed to the other party without the exttppress permission of the party producing the information[ Rules on Mediation 2010, Article 11( Par. 4), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014]. The mediator neither be called as a witnesses nor produce evidences in court. All of the notes and records must be destroyed immediately upon the conclusion of the mediation proceedings[ Rules on Mediation 2010, Article 15( Par. 5), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014] in order to maintain and protect the confidentiality of the clients.
During the mediation proceedings, mediator shall use his skills to identify the interests and needs of the parties and assist the parties to the reach a mutual agreement which they wish to see[ Rules on Mediation 2010, Article 11( Par. 5), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014]. Mediator will act as a middle man to communicate with the parties and assist them to think out of the box so that they explore more possible ways to solve the disputes.
Mediator cannot decide the outcome of the dispute between the parties or give advises and opinions in relation to the resolution of the dispute[ Rules on Mediation 2010, Article 11( Par. 6), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014]. Mediator can only control the process while the parties controls the outcome. However, if both of the parties requested the mediator to draft a proposed settlement and the Mediator does not object to it, the Mediator may draft a proposal for a resolution of the dispute[ Rules on Mediation 2010, Article 11( Par. 7), (Danish Institute of Arbitration) <http://www.voldgiftsinstituttet.dk/en/Menu/Mediation> accessed on 20 April 2014]. This is very similar to conciliation as the conciliator plays a relatively direct role in the disputes by making proposals for settlement to the disputants.
Summary of the Characteristic, Skills and Role of Mediator
Characteristic Skills Role
Calm Build rapport skills
Active listening skills
Analytical problem solving skills
Able to use simple and clear language
Decide the time and date
Provide help and assistance
Treat the parties equally
Communicate and guide the conversation
Not to decide or give advise
Questioner and clarifier
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