Scottish Mediation Register: Review of Practice Standards for Mediators in Scotland

May 2011

Scottish Charity Number SC034921 Company Registered in Scotland SC258173 Registered Office: 18 York Place, Edinburgh, EH1 3EP

EXECUTIVE SUMMARY REVIEW: PURPOSE AND PROCESS THE STATUS QUO COMPARISONS: SCOTLAND AND THE REST OF THE UK PRACTICE STANDARDS: RANGE OF OPTIONS CURRENT CONTEXT: OPPORTUNITIES AND THREATS CONSULTATION: KEY FINDINGS RECOMMENDATIONS APPENDIX 1: MEDIATION CONSULTATION MEETING, EDINBURGH APPENDIX 2: CONSULTATION WITH RELATIONSHIPS SCOTLAND APPENDIX 3: PRACTICE STANDARDS FOR FAMILY MEDIATORS APPENDIX 4: INDIVIDUAL SUBMISSIONS

3 7 8 11 14 16 18 22 28 29 30 31

APPENDIX 5: MEDIATORS INSTITUTE OF IRELAND COMPETENCY FRAMEWORK 33

EXECUTIVE SUMMARY
In 2010 it was agreed that the time was ripe for a review of the Scottish Mediation Register Benchmark Standards. The Standards Board have agreed that the Review should seek to: Improve the quality assurance of mediation in Scotland Ensure the quality standards for the Register are benchmarked against similar schemes such as the Civil Mediation Council and the College of Mediators in England and Wales Strengthen the Register by exploring means of linking with other specialist professional registers in Scotland A review process was agreed which included consultation with current Register members and key stakeholders who were users of mediation services; a review of entry and current practice standards deployed by other mediation bodies in the UK and Ireland; a 3 person reference group comprising the Directors of the Scottish Mediation Network, Relationships Scotland and the Scottish Community Mediation Network; final approval of recommendations by the Standards Board of the Scottish Mediation Register. RECOMMENDATIONS Recommendation 1: The number of mediation hours required for training hours be increased from 30 to 40, to align with the College of Mediators and Civil Mediation Council. A minimum of 20 of these training hours must be spent in role play or practical exercise. Recommendation 2: A short life working group should be established to develop a broad competency framework for mediators in Scotland which would cover the different mediation families. The work group will include representatives from Family, Community and Commercial mediation. Once the Framework has been developed and adopted by the Standards Board, it will be used in the following ways to improve mediation practice in Scotland: All mediation training providers who are approved by the Scottish Mediation Network will be required to use the competency framework in their assessment of mediation trainees; All mediation training providers who are approved by the Scottish Mediation Network must have an assessment process to verify that individuals trained by them demonstrate the range of competencies in the Mediators Competency Framework. This assessment can be undertaken either by the trainer who observes trainees during the course of the training or by an external assessor or by a combination of both. All Registered Mediators in Scotland will use the competency framework as a learning and development tool to identify key competencies which need to be addressed in their CPD Learning and Development Plan. (See CPD). 3

The Competency Framework and Code of Conduct will be used in determining whether or not any complaints against a Mediator are upheld or dismissed.

Recommendation 3: The number of required hours of CPD in any one year is a minimum of 12 hours. Each mediator should be required to produce an annual Learning and Development Plan which is tagged to the Mediators Competency Framework; and CPD hours must be linked explicitly to the learning and development outcomes in the Learning and Development Plan and to Competencies within the Mediators Competency Framework. Training Providers who are approved by the Scottish Mediation Network must signal which competencies are being strengthened by CPD training and the number of CPD hours attached. Training Providers will provide a CPD statement/certificate to mediators completing the CPD training. These statements/certificates can be used to evidence that CPD requirements are being met by Register Members. The Standards Board reserve the right to increase the number of CPD hours required for the current practice standards of mediators in Scotland without embarking on a further review process. SMN will provide two types of CPD opportunities for Register Members: Share and Learn CPD opportunities where register members offer free CPD training to other register members on a share and learn basis. In these instances, SMN will only seek to recover the cost of organising the training event (teas/coffees/ lunches/venue costs/ and a minimal cost for staff time). CPD Events where SMN is paying a specialist mediator trainer to provide CPD on a cost recovery basis. In these instances SMN will only seek to recover the cost of organising the event (costs as above plus trainer fees and travel expenses). The Standards Board has the discretion to increase the number of CPD hours required. Recommendation 4: A Partnership Agreement be signed with Relationships Scotland and the Scottish Community Mediation Network which recognises their role in setting the qualifications and practice standards for Family and Community Mediators in Scotland respectively. Local services of Relationships Scotland and the Scottish Community Mediation Network would feature on the Register and Find a Mediator facility on the SMN website, and a back-end database would list all the mediators approved by Relationships Scotland and the Scottish Community Mediation Network. This back-end database would not be available to the public, who would instead be directed to the local services for whom these mediators work/volunteer. It is the responsibility of Relationships Scotland and the Scottish Community Mediation Network to verify that those mediators on their list meet the practice standards for family/community mediators and are operating within their supervision. 4

Only those mediators who were approved by Relationships Scotland or the Scottish Community Mediation Network, or who could evidence that their qualifications and practice standards were equivalent to those set by Relationships Scotland in respect of Family Mediators or the Scottish Community Mediation Network in respect of community mediators would be able to list themselves as family or community mediators on the Register. The Standards Board reserve the right to extend partnership agreements as above to other appropriate organisations. Recommendation 5: There should be a two tiered system of mediator registration as follows: Registered Mediator - requires completion of initial training and 2 mediations in the past 12 months and/or not less than 6 hours conducting mediations as principal mediator in the past 12 months. Advanced Mediator - requires completion of initial training and 15 mediations in the past 12 months and/or not less than 60 hours conducting mediations as principal mediator or co-mediator in the past 12 months. Recommendation 6: SMR has Approved Mediation Training Provider status accorded to those training providers who can demonstrate the following: All of their trainers meet with the current standard. The Mediation Competency Framework is used in the assessment of trainees on their courses. They certificate mediation basic training and CPD in accordance with the Mediation Competency Framework and CPD requirements. (Competencies strengthened are tagged to the Mediator Competency Framework and number of CPD hours are listed for each course provided). The form of accreditation and accrediting body should be made explicit to potential trainees. Recommendation 7: The SMR moves away from self certification to requiring all SMR registered mediators to maintain a portfolio which can be subject to random checks. It is proposed that each year between 10 and 15% of SMR registered mediators are asked to submit their portfolio to ensure that the Register requirements are being met and that this random independent verification process increases confidence in the Register amongst current and potential mediation service users. Recommendation 8: All SMR members are required to establish and maintain a portfolio which contains the following: Initial Training Certification Log of Mediations/ mediation hours undertaken Log of CPD Hours and CPD certificates Certificate of Insurance Annual Training and Development Plan 5

There should be a transition period of 12 months to enable mediators to acquire the necessary evidence/ build up the log which demonstrates that they meet the initial training requirements and current practice requirements. Mediators who were members of the Scottish Mediation Register paid before 1st June 2011 will be deemed as having satisfied the requirements for this year. Recommendation 9: The current requirements for complaints handling remain with the following addition: All SMR Mediators should inform clients that when their own internal complaints handling process has been exhausted, the clients can, if they wish, take a complaint to the Standards Board. Recommendation 10: The current requirements for holding appropriate insurance remain. Recommendation 11: From 1st June 2011 only SMR mediators will be able to have a listing on the Find a Mediator facility on the SMN website. Only SMR mediators will be able to apply for entry to SMN panels, or to submit tenders for any mediations being brokered by SMN. The Find A Mediator facility will enable SMR mediators to advertise their services and range of mediation services available; there will be some information which is required: (which will relate to the mediation services provided/ geography covered etc) and there will also be space for mediators to advertise their own services.

REVIEW: PURPOSE AND PROCESS

The Standards Board for the Scottish Mediation Register (SMR) agreed that the time was ripe to review the Benchmark Standards and operation of the SMR. The Scottish Governments Justice Department have provided funding for this task .The Standards Board have agreed that the Review should seek to:

Improve the quality assurance of mediation in Scotland Ensure the quality standards for the Register are benchmarked against similar schemes such as the Civil Mediation Council and the College of Mediators in England and Wales Strengthen the Register by exploring means of linking with other specialist professional registers in Scotland

A three person review group has been established and involves Margaret Lynch, the Director of the Scottish Mediation Network, Ian McDonough in his capacity as Chair of the Standards Board and Stuart Valentine as Chief Executive of Relationship Scotland. Both Stuart and Ian are Board Members of SMN. The review process was as follows:

Invitation to participate in the Review was sent to all members of the SMR. The Consultation Paper and Questionnaire were sent to all members of the SMR. 3 Consultation events were scheduled where SMR members were given the opportunity to participate in the consultation in person (Edinburgh 23rd February, Aberdeen and Dundee 3rd March). The Consultation event in Edinburgh went ahead as scheduled, consultation events in Dundee and Aberdeen were cancelled due to lack of response. Telephone consultations were held with the two individuals who had registered for these events. Meetings were held with a variety of stakeholders including the Scottish Government, Mediation Service Users, ACAS, Scottish Community Mediation Network, and Relationships Scotland. A key stakeholders consultation questionnaire was sent to organisations and individuals who had used mediation services.

This Final Report has been produced by the 3 person review group (Stuart Valentine, Relationships Scotland; Ian McDonough, Scottish Community Mediation Network and Margaret Lynch, Director of the Scottish Mediation Network). It will be presented to the Scottish Mediation Register Standards Board who will determine which recommendations are accepted. This will be followed by a meeting to provide feedback to SMR members. The Final Report and decisions of the SMR Standards Board will be posted on the SMN website.

THE STATUS QUO

The Benchmark Standards for Mediators in Scotland was approved by the Benchmark Standards Group in 2007. The Scottish Mediation Register Standards Board are the current custodians of the Register and Benchmark Standards. The minimum benchmark standards for admission of a mediator to the Register cover: Adequate training from a trainer or team of trainers with appropriate experience A requirement for some form of initial mentoring or co-mediating to gain experience Post-training Continuing Practice Development (CPD) and practice support Adherence to an appropriate code of conduct An appropriate system for addressing concerns and handling complaints Appropriate Indemnity Insurance

Adequate training Mediators must have satisfactorily completed mediation training. The performance of the mediator during or on completion of mediation training must have been assessed as satisfactory. The mediation training should include training in: Principles and practice of mediation Stages in the mediation process Ethics and values of mediation The legal context of disputes (if any) Communication skills useful in mediation Negotiation skills and their application The effects of conflict and ways of managing it Diversity The mediation training will include not less than 30 hours of tuition and roleplay, (with at least 15 hours actively engaged in role play exercises or comediation with a trainer) including a formal assessment. The assessment should include direct observation of practice as a mediator in role play. The training must be provided by a trainer who has had sufficient training and experience themselves. Initial mentoring or co-mediating with an experienced mediator After mediation training, mediators will require to have participated in at least two mediations (totalling no less than 6 hours of mediation) as an observer, assistant or co-mediator before they are eligible to be admitted to the Scottish Mediation Register.

Continuing Practice Development (CPD) and Practice Support A mediator will require to plan, undertake and review at least 12 hours of continuing development and support each year. This CPD and practice support may include training, supervision, monitoring, mentoring, shadowing and peer review. The purpose of this CPD and practice support is to offer a framework for mediators to reflect on their practice in a structured way with view to learning and developing their skills. Code of Conduct As a minimum the mediator shall practice in accordance with the Scottish Mediation Networks Guidelines for the Practice of Mediation in Scotland being consistent with the European Union Model Code of Conduct for Mediators or such other code that accepts the SMN Guidelines as a minimum. A system for addressing concerns A mediator must have in place a written procedure for addressing concerns and handling complaints and keep written records of any complaints. The Standards Group will set out a fair process for handling concerns which may lead to the removal of a mediator from the Register for failing to meet the practice standards. Appropriate Insurance The mediator must have appropriate insurance in place for the activities that the mediator undertakes. Self Certification and Compliance The Scottish Mediation Register will offer information via a public website about mediators meeting or exceeding these minimum standards. The information will be self certified and will not be verified by the SMR. The only power that the (Practice Standards Group) PSG will have is to remove a mediator from the Register. The purpose of providing information on a public website is to encourage the development of yet higher standards in the practice of mediation. Mediators will be responsible for maintaining a record of their own compliance with these guidelines so that they can produce evidence if required to do so. Mediators will be expected to demonstrate, to the assessment, skills relating to: Developing and maintaining interaction with clients Preparing and setting up a mediation Managing the mediation process person making an

Active engagement in a role-play exercise will involve taking the role of the mediator, one of the parties or one of the parties representatives, (if appropriate).

Training Providers Trainers are expected to have completed mediation training that meets the minimum standard above and to have mediated in real life situations for at least 30 hours. Badging Organisations At the time the Benchmark Standards were approved, there were a range of organisations who delivered mediator training where the training provided exceeded the minimum standards required for inclusion on the Scottish Mediation Register; these included Relationship Scotland (Family Mediation), the Scottish Community Mediation Network (Community Mediation) and Core Solutions (Civil and Commercial Mediation) and the College of Mediators. There was the option of having entries on the Register badged to reflect the fact that the training provision attained, or the registration with another organisation, e.g. the College of Mediators, reflected the attainment of a higher standard of training or practice standards than was required by the SMR.

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COMPARISONS: SCOTLAND AND THE REST OF THE UK

Scotland In Scotland there are other organisations who control the practice requirements for mediators, in Family Mediation Relationships Scotland and in Community Mediation the Scottish Community Mediation Network (SCMN). Both of these organisations have practice standards which are greater than those required by the SMR. Scottish Community Mediation Network has a more rigorous formal assessment process which involves assessors, a clearly articulated framework of skills/ knowledge and standards which are being assessed, a quality assurance system for checking that the assessments are consistent and adhere to the standards and framework agreed. SCMN also require that individuals have participated in at least 5 mediations (2 for SMR) but over the same time period of 6 hours. CPD requirements are equivalent to SCMN. Relationships Scotland requires 200 hours of initial training over a 12- 18 month period to qualify as an accredited Family Mediator. The practice standards are more stringent that those of the SMR: accredited mediators are required to undertake a minimum of 10 hours practice and registered mediators 15 hours of practice per annum. In addition there are requirements to make case files available for review, attend an annual appraisal of mediation practice, and produce a training and development plan. In addition CALM Scotland is a group of 46 lawyers who are also trained as family mediators. CALM mediators are all family lawyers who are accredited as mediators by a Law Society panel who confirm that CALM lawyers have completed a 6 day initial training and pass an independent assessment, and complete 3 supervised mediations prior to joining the CALM panel of lawyer/mediators. CALMs current practice requirements require their mediator/lawyers to complete 1 supervised mediation per annum and attend 8 hours of mediation focussed CPD per annum. CALM require their mediator/lawyers to apply for re-accreditation every two years and this process consists of submission of a written application, confirmation of CPD and a written report of an independent assessment of a supervised mediation. There is also the Association of Mediators which has around 30 members. England and Wales Civil Mediation Council The Civil Mediation Council (CMC) has a more rigorous scheme than SMR in respect of initial training: they require 40 hours rather than 30, of which 50% should be devoted to role play and 50% of role plays must be supervised. This is assessment against agreed criteria. The accreditation scheme delegates accreditation of mediators to Provider Organisations which meet CMC standards. There is a requirement for current practice experience and mediators must demonstrate that they have taken part in at least 3 mediations in the last 12 months before being appointed as a lead mediator, and 2 mediations in the last 11

12 months prior to accreditation. Ongoing requirements are that mediators must have at least 6 hours of CPD and conducted at least 2 mediations in the last 1 month prior to re-accreditation. The College of Mediators Previously called the UK College of Family Mediators, they currently set practice standards in England and Wales for Family Mediators and signpost other approved training providers who are accredited by the National Open College Network (OCN) for other types of mediation training. The College requires a minimum of 40 training hours on a course offered by an approved provider who submits the course materials and assessment procedures for approval by the College of Mediators. The College specifies areas which must be covered in the course and provides a generic standard for all mediators and specific standards for family mediators. Once the course is completed the individual can apply to join the College and must in their first and every subsequent year of membership attain 15 hours of mediation practice and 10 hours of CPD. The Chartered Institute of Arbitrators Chartered Institute of Arbitrators also accredits Mediation training. Again their system of accreditation is more rigorous than SMN: they require 40 hours basic training either with CiARB on a CiARB approved trainer and that the candidate successfully completes a 2 day assessment course. The assessment is by observation of 2 mock mediations of one hours duration. To pass, candidates must be competent in people skills in both mediations and in process skills and management skills in at least one in either of their mediations. There are three levels of certification: Advanced Certificate, Diploma and Chartered Status. Northern Ireland Despite the fact that mediation has a much higher profile in Northern Ireland, there is not as yet a set of agreed practice standards for mediators. However it is likely that this issue will be addressed in the near future. Ireland The Mediators Institute of Ireland (MII) have different categories of membership: Practitioner Member, Certified Member, Associate Member, General Member and Trainee Member. Practitioner Members must have completed 100 hours of actual mediation including pre and post mediation (of which there must be at least 6 mediations of which at least 3 must be to agreement); or have completed an MII Approved Practitioner Course and completed 75 hours of actual mediation experience of which there must be at least 3 mediations. In addition they must attend at least 3 sharing and learning meetings, attend 6 sessions with a Case Consultant/Superior, maintain a log of mediations and pass a written assessment of 3 cases. (Family mediation requires a minimum of 100 face to face hours of mediation as does community mediation). The CPD requirement is 50 hours over a 3 year annualised cycle. A Certified Member must have completed a 60 hour MII Approved or equivalent course, which includes a mediation skills assessment. All assessments are conducted on a voluntary basis by other members of the MII. 12

International The International Mediation Institute (IMI) members must complete a Qualifying Assessment Programme. The nearest one to the UK is run from the Netherlands and it involves 80 hours of training. It is intended for experienced mediators and indicates that individuals with less than 200 hours of mediation experience across 20 mediations are unlikely to be successful. There are only 36 IMI members in the UK and only two in Scotland. Conclusion: The SMR has a significantly lower threshold in relation to number of foundation training hours required, specification of course content and competency levels to be attained, assessment procedures; and current practice requirements than almost every other UK based mediator registration scheme.

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PRACTICE STANDARDS: RANGE OF OPTIONS

A review across a number of organisations setting Mediation Practice Standards reveals a menu of options for practice standards amongst which the following elements are the most prominently featured:Training Minimum Training Hours Requirement Specification of content of approved training programmes Assessment by training providers/ Assessment by independent assessors Framework of Competencies and evidence required to demonstrate compliance Practice Mediation Practice Hours mock mediation/ observations/ assistant or comediations Number of mediations completed Continuing Professional Development Minimum number of hours Specification of CPD training types Proof of Current Practice1 Minimum number of mediations undertaken in previous year Minimum number of mediation hours provided in previous year External Practice Supervision/ Audit2 Minimum number of hours of supervision accessed in previous year Minimum %age of supervision hours to hours of mediation practice accessed in previous year Levels of Accreditation/Practice Standards Attained Practice Mediator attains threshold practice standards Registered Mediator attains higher than threshold practice standards and reflects the fact that more mediations have been conducted/ mediation hours undertaken; greater level of CPD hours undertaken and reduced the number of External Practice Supervision hours/%age hours required Mediator Trainer attains threshold practice standards plus a specified number of mediation hours completed Mediation Practice Supervisor attains threshold practice standards plus a number of specified mediation hours completed
1 2

Usually extended to 18 months in the case of women who have taken maternity leave As Above

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Other Requirements Adherence to a Code of Conduct Appropriate Insurance Maintenance of a Portfolio: certificates of Initial training/CPD, case studies and practice reviews which evidence compliance with practice standards

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CURRENT CONTEXT: OPPORTUNITIES AND THREATS

Opportunities There has been a review of the Civil Justice system in Scotland and the Scottish Government will be looking at implementing some of the recommendations from the review. As a result of widespread consultation with key stakeholders, mediation is likely to feature prominently and there will be a focus on looking at how mediation can assist with the resolution of small claims disputes. There is likely to be legislation coming forward in the second session of the new parliament (2012/13) and this presents the first opportunity to hardwire mediation into the civil justice system in Scotland. The Scottish Parliament passed the Public Sector Reform Act Scotland 2010 which gives prominence to mediation in the complaints handling process which is to be rolled out across all of Scotlands public sector organisations. Key stakeholders have informed us that if this opportunity is to be realised, there needs to be a better guarantee around quality assurance of mediation services than is currently available. There have been similar moves on other jurisdictions within the UK and the Republic of Ireland. In England and Wales the Civil Mediation Council and College of Mediators have increased their practice standards, and in Northern Ireland there will be a discussion on quality assurance and regulation of mediation provision as a consequence of the Northern Ireland Governments Access to Justice Programme. The bodies involved in this discussion in Ireland are the Justice Department, Mediation Northern Ireland and the Mediators Institute Ireland. A meeting of the Civil Mediation Council, College of Mediators, Mediation Northern Ireland, Mediators Institute of Ireland and Scottish Mediation Network was held as part of the Review process. It found that there was a common interest in ensuring some level of equivalency between the Practice Standards for Mediators in Ireland and the British Isles. In particular there was agreement on the need for further collaboration on: Current and new developments around practice standards and quality assurance in the different jurisdictions of the UK and Ireland. Opportunities to be found in achieving a degree of harmonisation or equivalency around practice standards, quality assurance and dealing with complaints. Ways of evidencing how changes in practice standards and quality assurance result in improved outcomes in relation to better and more consistent service delivery by mediators. Threats There are clear dangers for mediators in Scotland if our Register Standards are seen to be below the threshold which is accepted and operates in other parts of 16

the UK. The most obvious are a loss of credibility, a sense of a two-track approach within the UK (with Scotland in the slow lane) and the possibility of mediators and mediation providers from other parts of the UK gaining a competitive advantage when bidding for work in Scotland.

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CONSULTATION: KEY FINDINGS

Scottish Government and Mediation Service Users Feedback from the Scottish Government and Mediation Service Users indicate that there is a demand for:

A sufficient cohort group of mediators in Scotland who are skilled and competent in the delivery of mediation services. A transparent system of independent validation of skills and experience.

The Scottish Government submitted their opinion on the degree of transparency required of the SMR: If we wish to ensure confidence about the quality of mediation amongst members of the general public and commercial enterprises in order to encourage its uptake, then self certification, in our view, is a non-starter. Anyone can set themselves up as a mediator without any form of training and there is no quality check or verification of statements made online when registering for the SMR and self certifying. The most secure method of the options suggested is the last one Full disclosure of portfolio on application/renewal of SMR entry. This of course has resource implications and given the constrained financial circumstances that we all find ourselves in at present, it may be difficult to achieve. But if the mediation community is serious in its attempts to increase the knowledge and uptake of mediation, then in our view, it is something they ought to be prepared to do. People need assurance, especially when being asked to try something new, that there is a good chance it will work. Many people, if they understand that self certifying by the mediators is the only assurance they can have, will not be instilled with confidence. Failing the resources to do that (and this is not something which the Scottish Government would be able to find additional funding for) then we would strongly urge that you use a combination of the first two. Some training providers may be able to provide the verification required for any one individual, but I suspect that some mediators may still fall through the cracks so a random sample sounds a good idea. We were told at the meeting in London that this is what is done in other jurisdictions and Scottish mediators, in our view, need to follow suit if they are not to be left behind. Private sector users of mediation services tended to opt for a transparent system of prior customer/user recommendation. Mediation Service Providers 31 members of the SMR responded to the questionnaire which is a 34.5% response rate. The responses to the questions were as follows:

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Should the Practice Standards for Mediators in Scotland align with the Civil Mediation Council, College of Mediators and other organisations which set practice standards for Mediators in the UK and Ireland: this would mean increasing the number of initial training hours from 30 to 40? Yes 25% No 12.9% Other 6.5% 2. Should the practice standards for mediators in Scotland include a requirement for external assessment against an agreed competency framework? Yes 73.3% No 26.7% 3. Should the practice standards for mediators in Scotland continue to require that individuals have participated in at least 2 mediations of not less than 6 hours duration as an observer, assistant or co-mediator sufficient? Yes 83.9% No 16.1% 4. Should the practice standards for mediators in Scotland continue to require that mediators have completed a specified number of relevant CPD hours per annum? Yes 93.5% No 6.5% 5. If Yes, 12 15 20 please indicate your preference for the CPD requirement hours CPD: 51.7% hours CPD: 37.9% hours CPD: 10.3%

6. Should the practice standards for mediators in Scotland include a current practice requirement to complete a minimum number of mediations/mediation hours per annum? Yes 67.7% No 32.3% 7. If yes, how many mediations/ mediation hours should be specified as a current practice requirement per annum. 3 mediations or 6 mediation hours: 47.6% 5 mediations or 10 mediation hours: 52.4% 8. Should the Register Entry for mediators in Scotland enable the display of the number of mediations conducted/ number of successful mediations concluded/ number of mediation hours undertaken in the last 12 months? Yes 29% No 71% 9. Should practice standards for mediators in Scotland require a minimum number of external practice supervision hours per annum? Yes 54.8% No 45.2% 19

10. Should the practice standards for mediators in Scotland indicate different levels of mediation experience? Yes 61.3% No 38.7% 11. If Yes, can you indicate if the following is broadly acceptable: Certified Mediator Initial Training and 2 mediations: 31.3% Registered Mediator Initial Training and 15 successful mediations: 68.8% 12. Should the practice standards for Mediator Trainers and External Supervisors in Scotland be fixed at a higher level than the practice standards for mediators? Yes 61.3% No 38.7% 13. If yes, can you indicate what additional requirements would be appropriate for Mediation Trainers and Mediation Supervisers 14. What kind of verification process should there be to ensure that practice standards are being meet and maintained? Random audit of portfolios: 32.3% Delegation of verification process to approved training providers: 12.9% Self Certification with requirement to demonstrate evidence upon request: 74.2% Full disclosure of portfolio on application/renewal of SMR entry: 16.1% 15. Would you like one registration form which covers all forms of mediation and mediation services that you provide? Yes 96.7% No 3.3% 16. What features would you like to include in the register entry? Testimonies of Clients: 60.9% Success Rate: 17.4% Number of mediations completed in the last 12 months: 87% 17. Would you be prepared to disclose the number of mediation hours/mediations undertaken in the last 12 months on the Register as a means of indicating current practice to potential customers and clients? Yes 54.8% No 45.2% 18 If the verification process for the Register is to be made more robust, would you be prepared to pay for this in increased registration fees? Yes 48.8% No 51.6%
Comments on the questionnaire included: Concerns that a focus on the number of mediations conducted would

benefit a small number of individuals who have more experience and opportunities than others to mediate. Some questioned whether volume was a good indicator of quality. 20

If solicitors do not have to publicise how many cases they have defended or houses they have sold, why should mediators be asked how many mediations they have concluded. Supervised mediation should be avoided post training as it affects the dynamics of the mediation with clients who should be the mediators sole focus of attention. There was some debate around how success was defined in relation to mediation. The fact that many mediators find it difficult to access clients who are willing to attempt and pay for mediation needs to be taken into consideration. Some respondents welcomed SMR seeking and providing anonymous feedback from clients and using this to rate mediators on websites; Having two grades of mediation practitioners is very useful and is done in other professions. SMR cant realistically require 15 mediations completed and implemented most registration portfolios ask for a mix of successful and unsuccessful cases, perhaps because we can learn from our mistakes. I would support something like 15 completed cases. Testimonies from clients is high risk in relation to advertising standards, this is the sort of thing people should put on their own websites if they choose. I would be happy to pay up to 130 for a Register entry if the website was fixed. It is definitely important to bring in robust quality control for mediators. If mediations concluded in the previous 12 months were shown alone, it might give a distorted picture of some peoples level of skill and experience: eg if a very experienced mediator conducted few mediations in the last 12 months; it would be better to show number of mediations conducted over the last 12 months/ and last 60 months. Client satisfaction rates are a better indicator than number of mediations concluded. It is essential to strengthen the benchmark standard and to introduce verification. A balance needs to be struck as the volume of mediations in Scotland is small and the income generated for CPD is lower and the opportunity to build up mediation hours is lower. But it is wrong to have the current requirement for CPD exclude any ongoing actual mediation practice. Concerns were expressed that making practice standards more robust might price them out of the range of many mediators: need to ensure that it is possible for mediators to maintain practice at a price they can afford. For users, government legislators and the public regulation will give the profession greater credibility generally. For mediation to grow, users must have confidence in the standards and competence of mediators. A mentoring system could be set up to help mediators who wish to increase their hours of practice to the required standard.

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RECOMMENDATIONS
Basic Training There was a general consensus that the number of mediation hours required for basic training should increase from 30 to 40. If SMN were to follow the example of the College of Mediators and Civil Mediation Council, this would include: The Civil Mediation Council requires 40 hours, of which 50% should be devoted to role play and 50% of role plays must be supervised. The College of Mediators requires a minimum of 40 training hours on a course offered by an approved provider who submits the course materials and assessment procedures for approval by the College of Mediators. The College specifies areas which must be covered in the course and provides a generic standard for all mediators and specific standards for family mediators. Recommendation 1: The number of mediation hours required for training hours be increased from 30 to 40, to align with the College of Mediators and Civil Mediation Council. A minimum of 20 of these training hours must be spent in role play or practical exercise. Competency Framework The Mediators Institute of Ireland has developed a Competency Framework for Mediators which is included in appendix 6 for illustrative purposes:Recommendation 2 A short life working group should be established to develop a broad competency framework for mediators in Scotland which would cover the different mediation families. The work group will include representatives from Family, Community and Commercial mediation. Once the Framework has been developed and adopted by the Standards Board, it will be used in the following ways to improve mediation practice in Scotland: All mediation training providers who are approved by the Scottish Mediation Network will be required to use the competency framework in their assessment of mediation trainees; All mediation training providers who are approved by the Scottish Mediation Network must have an assessment process to verify that individuals trained by them demonstrate the range of competencies in the Mediators Competency Framework. This assessment can be undertaken either by the trainer who observes trainees during the course of the training or by an external assessor or by a combination of both. All Registered Mediators in Scotland will use the competency framework as a learning and development tool to identify key competencies which need to be addressed in their CPD Learning and Development Plan. (See CPD). The Competency Framework and Code of Conduct will be used in determining whether or not any complaints against a Mediator are upheld or dismissed. 22

Ongoing Independent Assessment against Competency Framework At present the resources are not available to individual mediators or to the Network to provide a vehicle for the ongoing independent assessment against the competency framework. However the direction of travel may well be that at some point in the future revisiting this issue to build in a future requirement for mediation practitioners to undergo an independent assessment every 3 or 5 years to verify that they demonstrate the range of competencies required for mediator practitioners in Scotland. Continuing Professional Development At present mediators struggle to resource the requirement to fulfil 12 hours of CPD per annum. The current CPD requirements are loose and are not explicitly linked to the development of core skills or competencies. Recommendation 3: The number of required hours of CPD in any one year is a minimum of 12 hours. Each mediator should be required to produce an annual Learning and Development Plan which is tagged to the Mediators Competency Framework; and CPD hours must be linked explicitly to the learning and development outcomes in the Learning and Development Plan and to Competencies within the Mediators Competency Framework. Training Providers who are approved by the Scottish Mediation Network must signal which competencies are being strengthened by CPD training and the number of CPD hours attached. Training Providers will provide a CPD statement/certificate to mediators completing the CPD training. These statements/certificates can be used to evidence that CPD requirements are being met by Register Members. The Standards Board reserve the right to increase the number of CPD hours required for the current practice standards of mediators in Scotland without embarking on a further review process. SMN will provide two types of CPD opportunities for Register Members: Share and Learn CPD opportunities where register members offer free CPD training to other register members on a share and learn basis. In these instances, SMN will only seek to recover the cost of organising the training event (teas/coffees/ lunches/venue costs/ and a minimal cost for staff time). CPD Events where SMN is paying a specialist mediator trainer to provide CPD on a cost recovery basis. In these instances SMN will only seek to recover the cost of organising the event (costs as above plus trainer fees and travel expenses). The Standards Board has the discretion to increase the number of CPD hours required. External Practice Supervision It would be unrealistic at present to require external practice supervision as a requirement of Registration: the resources available to mediators are not there to make this feasible. To introduce such a requirement at this stage would make

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it impossible for many mediators to maintain their practice requirements. However we would encourage the following: The development of Practice Supervision Circles where a number of mediators can come together and use peer review and case study techniques as a means of supporting practice development. The integration of practice peer review and case study techniques by the existing Mediation Initiative Groups. In the event that mediators take part in mediation circles or practice peer reviews, the hours could be count towards their CPD requirement. Designation of Mediators At present there is nothing to prevent an individual who has completed the basic mediation training to post a register entry indicating that they are able to conduct Family or Community Mediations. This could have the deleterious effect of diluting the standards required for family and community mediators in Scotland. Recommendation 4: A Partnership Agreement be signed with Relationships Scotland and the Scottish Community Mediation Network which recognises their role in setting the qualifications and practice standards for Family and Community Mediators in Scotland respectively. Local services of Relationships Scotland and the Scottish Community Mediation Network would feature on the Register and Find a Mediator facility on the SMN website, and a back-end database would list all the mediators approved by Relationships Scotland and the Scottish Community Mediation Network. This back-end database would not be available to the public, who would instead be directed to the local services for whom these mediators work/volunteer. It is the responsibility of Relationships Scotland and the Scottish Community Mediation Network to verify that those mediators on their list meet the practice standards for family/community mediators and are operating within their supervision. Only those mediators who were approved by Relationships Scotland or the Scottish Community Mediation Network, or who could evidence that their qualifications and practice standards were equivalent to those set by Relationships Scotland in respect of Family Mediators or the Scottish Community Mediation Network in respect of community mediators would be able to list themselves as family or community mediators on the Register. The Standards Board reserve the right to extend agreements as above to other appropriate organisations. partnership

Current Practice Requirements At present there are no current practice requirements in respect of the number of mediations conducted/ mediation hours undertaken per annum. Some mediators have indicated in the consultation that this would be a very challenging requirement to put in place because the volume of mediations taking place is insufficient to support such a requirement. However, there was an overwhelming majority in favour of putting in place a current practice 24

requirement to complete a minimum number of mediation hours/ mediations concluded per annum. There was an even split between those electing for a minimum of 3 mediations concluded/ 6 mediation hours undertaken and those electing for 5 mediations concluded/ 10 mediation hours undertaken as the minimum current practice requirement. Recommendation 5: There should be a two tiered system of mediator registration as follows: Registered Mediator - requires completion of initial training and 2 mediations in the past 12 months and/or not less than 6 hours conducting mediations as principal mediator in the past 12 months. Advanced Mediator - requires completion of initial training and 15 mediations in the past 12 months and/or not less than 60 hours conducting mediations as principal mediator or co-mediator in the past 12 months.

Progression At present there is no facility for progression or experience levels to be recognised within the Register. In the consultation exercise, there was an overwhelming majority in favour of having practice standards which reflected different levels of mediation experience. There were also concerns expressed by some mediators that this would create a situation where the more experienced mediators would be afforded more opportunities to mediate.

Mediation Training Providers Currently mediation trainers are expected to have completed mediation training that meets the minimum standard and to have mediated in real life situations for at least 30 hours. Recommendation 6: SMR has Approved Mediation Training Provider status accorded to those training providers who can demonstrate the following: All of their trainers meet with the current standard. The Mediation Competency Framework is used in the assessment of trainees on their courses. They certificate mediation basic training and CPD in accordance with the Mediation Competency Framework and CPD requirements. (Competencies strengthened are tagged to the Mediator Competency Framework and number of CPD hours are listed for each course provided). The form of accreditation and accrediting body should be made explicit to potential trainees. Transparency Until now the Register has operated on the basis of self certification, and the consultation exercise confirmed that the majority of Register Members wished that it continues to do so. However key stakeholders, not least the Scottish 25

Government have indicated that it is no longer a tenable position. In their view self certification undermines the Register and is a barrier to growing confidence in mediation amongst current and potential mediation service users. Recommendation 7: The SMR moves away from self certification to requiring all SMR registered mediators to maintain a portfolio which can be subject to random checks. It is proposed that each year between 10 and 15% of SMR registered mediators are asked to submit their portfolio to ensure that the Register requirements are being met and that this random independent verification process increases confidence in the Register amongst current and potential mediation service users. Maintenance of a Portfolio Recommendation 8: All SMR members are required to establish and maintain a portfolio which contains the following: Initial Training Certification by an Approved Training Provider Log of Mediations/ mediation hours undertaken Log of CPD Hours and CPD certificates Certificate of Insurance Annual Training and Development Plan There should be a transition period of 12 months to enable mediators to acquire the necessary evidence/ build up the log which demonstrates that they meet the initial training requirements and current practice requirements. Mediators who were members of the Scottish Mediation Register paid before 1st June 2011 will be deemed as having satisfied the requirements for this year.

Complaints Handling All SMR Mediators are currently required to make available details of a complaints handling process to their clients and potential clients. SMN can provide a sample complaints handling process for SMR mediators to use. Recommendation 9: The current requirements for complaints handling remain with the following addition:All SMR Mediators should inform clients that when their own internal complaints handling process has been exhausted, the clients can, if they wish, take a complaint to the Standards Board as described in the Code of Conduct. Appropriate Insurance The mediator must have appropriate insurance in place for the activities that the mediator undertakes. 26

Recommendation 10: The current requirements for holding appropriate insurance remain.

Register Entry At present all members of the SMR get a listing on the Find a Mediator facility, and individuals who are not trained, qualified or registered mediators are also able to advertise at no cost on the Find A Mediator facility. This situation undermines the Register and places properly trained and qualified mediators at a disadvantage. Recommendation 11: From 1st June 2011 only SMR mediators will be able to have a listing on the Find a Mediator facility on the SMN website. Only SMR mediators will be able to apply for entry to SMN panels, or to submit tenders for any mediations being brokered by SMN. The Find A Mediator facility will enable SMR mediators to advertise their services and range of mediation services available; there will be some information which is required: (which will relate to the mediation services provided/ geography covered etc) and there will also be space for mediators to advertise their own services.

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APPENDIX 1: MEDIATION CONSULTATION MEETING, EDINBURGH

The general conclusions of the meeting were as follows:Entry Level The Scottish Mediation practice standards should be equivalent to those in the rest of the UK. Transparency was important and some means of external validation that the practice standards were being met or adhered to was desirable. The basic training for mediators should be tied to specified outcomes and related to a competency framework. A pool of assessors should be developed to ensure that all those entering the Register were competent in mediation skills and knowledge. There should be a probationary period following completion of basic training to allow new mediators to access mentoring and support from more experienced mediators; they should be required to undertake an actual mediation prior to registration. Current Practice Standards There should be a progression framework which enables people to move from being newly trained mediators, to being registered mediators, to being experienced mediators. Current Practice Standards should be comprised of a required amount of current practice (number of mediations or mediation hours in the last 12 months); support (CPD share and leanring opportunities) and Supervision. Each mediator should be required to produce a development plan which identifies which skills and areas of practice are to be improved and this should determine what is to be attended to in the allotted CPD hours required of all mediators. Random selection of portfolios and observed practice by the pool of assessors should exist to ensure that the system is robust and externally verified. There was a concern that currently mediators would struggle to meet these proposed new standards and that SMN should do what it can to enable mediators to comply; consideration should also be given to a transitional period of 12 months to give mediators time to put all the new requirements in place.

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APPENDIX 2: CONSULTATION WITH RELATIONSHIPS SCOTLAND

The conclusions reached at the consultation meeting with Relationship Scotland were as follows:In view of the fact that Relationship Scotland have their own requirements for the training of family mediators, and have developed a fairly rigorous set of practice standards for assessing the competence of family mediators that it would be sensible to bring this within the ambit of the Scottish Mediation Register. It was agreed that a Partnership Agreement could be framed which: Recognises the investment already made by Relationships Scotland into the Quality Assurance of family mediators who are employed by their services. Delegates to Relationship Scotland the setting of practice standards for Family Mediators in Scotland3, and determining the evidence which will be required to evidence that these practice standards have been achieved Delegates to Relationship Scotland the verification that the mediators employed by Relationship Scotlands local services meet the required standards Recognises that Relationship Scotlands investment in quality assurance and setting the practice standards for Family Mediators substantially reduced the resources required by SMN to set and quality assure practice standards for Family Mediators and therefore a differential rate will be required for registration Recognises the imperative of ensuring that all 13 local services of Relationship Scotland that provide family mediation are listed on the register and that all family mediators (approx. 80) are included in a back end database for reporting purposes to the Scottish Government. In view of all of the above it is proposed that:Relationship Scotland pay a corporate rate to join the register which provides: Relationship Scotland registration. Listing for all 13 local services of Relationship Scotland that provide family mediation. Listing for all family mediators on a back end database which is not accessible to the public. If individual mediators of Relationships Scotland local services who meet the current practice requirements for family mediators wish to join the register in their own right, they may do so at a reduced rate of 40 per annum.

The proposal is that practice standards for family mediators in Scotland would need to align with those articulated by Relationships Scotland or CALM

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APPENDIX 3: PRACTICE STANDARDS FOR FAMILY MEDIATORS

Accredited and Registered family mediators working for local services affiliated to Relationships Scotland must meet annual requirements for practice, continuing professional development (CPD) and supervision. Mediation Practice: Mediators must undertake a minimum number of practice hours per year. For accredited mediators this is 10 hours per year and for registered mediators this is 15 hours per year. CPD:

Mediators must maintain and improve their skills, and evidence this with a minimum of 10 CPD points each year. A minimum of 5 points (Category A) must be undertaken with an approved provider (eg RS or through the local service CPD approval process). The remaining 5 points (Category B) may be undertaken in a variety of ways including research, teaching, writing articles. Mediators must not undertake all their CPD with the same trainer.

Supervision: Mediators must maintain a minimum level of supervision per year. For accredited mediators this minimum is 4 hours per year or 10% of mediation practice hours whichever is the greater, subject to a maximum of 12 hours. For registered mediators this minimum is 2 hours per year or 5% of mediation practice hours whichever is the greater, subject to a maximum of 12 hours. General: Mediators must keep a log or record of their mediation practice hours, their supervision hours and their CPD hours (Category A and B) each year to supply the necessary information on their RS annual renewal form. Mediators must complete an RS renewal form annually, and both mediators and supervisors must sign this form to confirm that the information provided is correct.

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APPENDIX 4: INDIVIDUAL SUBMISSIONS

Consultation with Bob Ballantyne Robert Ballantyne: not currently a register member; he is a member of the Network and pays 40 and advertises mediation services on the Find a Mediator facility which is currently provided as a free service. SMN should get behind the SVQ Level 4 qualification which was withdrawn by SQA last year because of lack of numbers. SACRO were the only training organisation promoting it it should be promoted by the Network. RB accepts this is part of a separate piece of work being done by the Network and would be happy to chat to Kathleen King about it. As far as the register is concerned, I didnt join the register as I couldnt see the benefit in doing so I can advertise my services on the Find a Mediator page on the website and use the SVQ qualification as a professional standard. ML explained that the facility for free advertising on the Find a Mediator page would probably be withdrawn as funding structure had changed and in order to support the quality assurance agenda, SMN would only advertise the services of Register Members i.e. people who met training and current practice requirements. RB indicated that with the economic downturn, there was a dearth of mediation business around and that he would have to think about whether or not economically it made sense to continue with mediation. If the cost of joining the register was much more than 90, it might be problematic. Jeannie Felsinger; February 2011 General Observations: The Standards Board should issue a set of guidelines on compliance with the new training standards and practice requirements. There is a concern that if you increase the training standards of practice requirements that it might be difficult for some to meet them in which case the network should create CPD opportunities to enable people to meet the new standard. Q3 Should the practice standards for mediators in Scotland continue to require that individuals have participated in at least 2 mediations of not less than 6 hours duration as an observer, assistant or co-mediator sufficient? The Network should play a stronger role in encouraging its members to comediate and creating opportunities for newly trained mediators to observe or assist with mediations. Q8 Should the Register entry for mediators in Scotland enable the display of the number of mediations conducted/number of successful mediations concluded/number of mediation hours undertaken in the last 12 months? There is a concern that if this were to be put in place that it would favour the more experienced mediators and result in fewer referrals to mediators with less 31

experience. This would result in a reduction in the opportunities available to newly trained or less experienced mediators and would not contribute to a levelling up of skills and experience. The concern about the display of the number of mediations conducted in the last 12 months a very experienced mediator who has not mediated many cases in the last 12 months but who has many mediations under their belt before that date could be disadvantageously compared to another mediator whose experience was mainly in the last 12 months. It would be better to enable the display of number of mediations in the last 12 months alongside the number of mediations conducted since qualifying/or since registration. Q9 Should practice standards for mediators in Scotland require a minimum number of external practice supervision hours per annum? How could this be facilitated when very few of us are earning sufficient money from the practice of mediation to support the investment in external supervision? Perhaps this is something which the network could facilitate? But the requirement would need to apply to all on the register so even those who are considered to be experienced mediators would need to use external supervisors to support their practice. Q14 What kind of verification process should there be to ensure that training and practice standards are being met? Register members could complete an annual return showing training and CPD certificates, and a logbook. Q17 Not sure what my response to this would be...

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APPENDIX 5: MEDIATORS INSTITUTE OF IRELAND COMPETENCY FRAMEWORK

The concept of competency includes all aspects of performance. It includes: Performance at an acceptable advanced level of mediation skills Organising tasks Responding and reacting appropriately when things go wrong Fulfilling a role Transfer of skills and knowledge to new situations Practitioner Members should have core and advanced competencies and, where appropriate, specialist competencies for particular sectors. At Practitioner level the applicant will be expected to demonstrate through their interventions in mediation, through their agreements, and via critical reflection, a good working knowledge of many of the areas outlined below. Mediators are constrained by the MII Code of Ethics only to work within their competence. Practitioner Member Core Competencies A. Managing the Relationship in Mediation 1. To establish a respectful and trusting relationship with participants: Protects and affirms participants rights to self-determination Maintains and supports participants integrity Creates sufficient trust so that participants can allow emotions to surface and the real issues can be addressed Participants demonstrate they are willing to work with risks because of the quality of trust in the Mediator and the process 2. To establish a collaborative relationship between participants: Works with participants to promote mutual understanding, insight and empathy for the other(s) Enhances participants commitment to their new collaborative working relationship 3. To appropriately manage power imbalances: Works with participants to develop or create a process that ensures equality Protects and affirms participants rights to self-determination Maintains and supports participants integrity and dignity Establishes and maintains a working environment based on equality with all participants The ability to give and receive appropriate constructive comments and feedback B. Managing the Process of Mediation 1. To attend to and explore participants interests: Identifies mutual and individual interests 33

 Capacity to both differentiate and connect interests of participants Works with participants to identify principles based on underlying interests 2. To manage conflict appropriately: Uses interventions to seek clarification Confronts discrepancies Uses immediacy to attend to non-verbal cues Reframes statements to defuse conflict and gain consensus Asks questions to surface real conflict issue then manages the conflict dynamic Is comfortable with conflict - assists participants to deal with conflict in a healthy, healing manner Facilitates ongoing, positive communication patterns if appropriate C. Manages the Content of the Mediation 1. To help participants to identify and manage information: Assists in the organisation of information Supports participants ability to assimilate new information Encourages participants to develop a framework for gathering and tracking the information needed Assists the participants to apply interest based criteria for judging information Ensures information is integrated throughout the process. 2. To help participants apply interest based solutions: Helps participants to identify principles and criteria to guide their decisionmaking Assists participants to select a wide range of options which best meet their mutual and individual interests Encourages participants to reality test their decisions Works with parties to develop their own principles to evaluate their solutions. D. Manages the Agreement(s) The applicant should submit sample copies of their agreement to mediate and also copies of relevant mediation agreements with additional information regarding: Building towards agreement Clarity about the function of the agreement Consideration of the language used Review E. Manages Personal Awareness Emotional Accurate self assessment Self-confidence Integral vision Self control Transparency Adaptability Achievement Initiative Optimism

The participants personal awareness should be assessed both from their case 34

submissions and also from the personal statement which describes the applicants practice and experience.

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