Struggles of a Junior Mediator: Building Ethical Confidence

With the advent of court-referred mediation in Rule 41A of the High Court Rules, mediation and related career opportunities have skyrocketed. Many entrepreneurs, law graduates and attorneys see this as the best time to gain accreditation as a mediator after completing a course and gaining panel membership to a mediation body as such. The superfluous nature of mediation as a career at present has simultaneously offered various career prospects, but also a difficulty in regulation and navigating of this field of newbie mediators. This article seeks to enlighten baby-mediators as to the struggles often faced in the context of the emerging dispute resolution space.

■ Accreditation and Regulation

Generally, the first hurdle faced by an aspirant mediator is gaining accreditation after completing a course. The 40-hour minimum duration of the various mediation courses available to the market may not appear as the largest challenge to graduates and/ or admitted attorneys. However, matriculated individuals are generally not barred from attendance of such course and may find it challenging to understand the legal implications and nuances that pair with mediation. Mediation courses that offer a form of accreditation are also required to conduct and assessment of the participants, which poses as a further hurdle for aspiring mediators with no background in tertiary education and/or law.

Another difficulty some may face in these mediation courses, are role-plays. While role-plays aim to mimic the environment of a real mediation and is a crucial part of an aspiring mediator’s journey, it may fail to fulfil the goal of successfully simulating a mediation. This makes it hard for new mediators to truly gain experience of real-life mediation in the course. Paired with the emerging number of online courses, such virtual role-plays compound the issue.

Apart from the course material/ theory and practical issues, the costs of these typical 5-day mediation courses may be quite exuberant for those that are unemployed with no savings, but who seek to gain a mediation accreditation to kickstart their careers. Those that are employed may face difficulties in securing leave to attend the relevant course where such courses run during working hours.

Ultimately, however, completing a mediation course after which one can be accredited seems to be the least tricky part of sustaining an entry-level career in mediation.

■ Gaining experience and education

Once accreditation is achieved, it is crucial for newbie-mediators to equip themselves with further experience and education on mediation and related fields such as law, psychology, sociology, social work, human resource management and public policy. A 5-day mediation course will not afford this kind of extensive education or experience, and it remains imperative for a newly accredited mediator to develop their skills and knowledge to successfully and ethically mediate a dispute. An educated mediator brings depth, versatility, and a comprehensive skill set to the intricate task of guiding parties towards mutually beneficial agreements.

One way that a newly accredited mediator can expand their knowledge and intellectual development, is by attending CPD-accredited courses (Continuous Professional Development). These points signify a commitment to staying proficient in the dynamic field of conflict resolution. By engaging in CPD activities, mediators continuously enhance their skills, stay informed about legal developments, and maintain the highest ethical standards. Attendance of such courses may however be limited where a newly accredited mediator has no extra income to sustain their education and professional development as such. This ongoing learning process is however of utmost importance, as it not only ensures mediators can adapt to the evolving landscape of conflicts but also inspires client confidence, promotes networking and collaboration within the profession, and often leads to professional recognition, reinforcing the mediator’s dedication to excellence in facilitating constructive resolutions.

Apart from theoretical development, newly accredited mediators must gain experience in the field before ethical mediation can be conducted. Inexperienced mediators may lack the practical skills and judgement needed to navigate complex disputes, potentially jeopardising the fairness and success of the mediation process. Engaging in mediation without the necessary experience could compromise the integrity of the process and undermine the trust of the parties involved, ultimately contravening the ethical principles that underpin the profession. Therefore, newbie mediators must make use of “shadowing” opportunities and co-mediate matters with an experienced mediator to ensure that they develop practical skills in relation to ethical and trauma-informed mediation.

■ Ethical mediation for junior mediators

The above-mentioned aspects of a mediation career may pose as a hurdle to some, where they lack additional financial resources to continue their professional development by attending paid courses.

A further issue can be identified in the lack of opportunities for co-mediation and “shadowing”, as many experienced mediators are hesitant to include an entry-level mediator in a sensitive matter. Sensitive disputes often involve heightened emotions, intricate legal considerations, and intricate power dynamics. Inexperienced mediators may not have encountered a wide range of challenging scenarios or developed the finesse required to navigate delicate conversations effectively. Introducing a newbie mediator to such situations could risk the quality and effectiveness of the mediation process, potentially impacting the parties involved. Experienced mediators, dedicated to maintaining the integrity and success of the mediation, may prefer to assign newcomers to less complex cases initially, allowing them to gradually build confidence and proficiency. This cautious approach may however bring hardship to newly accredited mediators who seek to gain practical experience. To compound the issue, courts are just as hesitant to allow inexperienced mediators to facilitate court-referred mediations.

The question of ethical mediation is of utmost importance when considering the knowledge and experience of a junior mediator. Some junior mediators may feel as though they are fully equipped to jump into mediations after gaining accreditation, without acknowledging the importance of further development and the shortfalls such courses when utilised in real-life disputes. This issue is compounded when a junior mediator has no background education in law, as the enforceability and legal viability of the resolutions reached in mediation may be at odds with a legally sound option. Such mediators tend to give mediation a bad name and fail to recognise that their mediations may be of a less than ethical standard, purely due to their lack of experience or knowledge.

The above-mentioned issue of rogue mediators is typically seen in disputes surrounding domestic violence, criminal cases, child abuse, human trafficking, where a deep understanding of trauma-informed communication is imperative to ethical mediation. Many mediators question the appropriateness of mediating for example domestic violence in principle, creating a tension in the field. Newly accredited mediators must take cognisance of these diverging views and dedicate themselves to continuous development, while committing to a trauma-informed approach to ensure ethical mediation of the disputes they may encounter in their dispute resolution career.

To conclude, junior mediators must build competency in order to uphold the principles of mediation. Diligent commitment to sustain sensitivity, empathy, and cultural awareness is essential for facilitating constructive resolutions, while ensuring that ethical principles, such as neutrality and confidentiality, are rigorously maintained. While junior mediators may face many ethical, theoretical and practical hurdles, it should not deter aspirant mediators to pursue dispute resolution. Restorative justice and Alternative Dispute Resolution remains a remarkable field that may serve to the goalpost of social harmony.

Written by Caro Opperman (LLB) (ADR Network), a law graduate and junior accredited mediator. 22 January 2024.