As various forms of alternative dispute resolution (ADR) become increasingly available and generally a more acceptable means of resolving disputes, more questions about the practice of these alternatives are starting to be raised. While it is generally accepted that ADR techniques can, and should, have a role in conflict resolution, there is less consensus on what kind of regulation or oversight there should be for this emerging profession. What follows is an exploration into the risks and advantages of mandatory certification requirements, some of the arguments for and against, and the conclusion that there is a distinct need for increased regulation of mediators and the practice of mediation.
Mediation, as with other forms of ADR, is often thought of as being a recent innovation to provide an alternative forum within which to resolve conflicts. While somewhat true, mediation has deep roots and has been used in communities and cultures throughout the world for centuries.[1] Mediation is now offered in courts, nation-wide, as a means of docket-management,[2] and even attorneys are beginning to realize that engaging on collaborative and competitive levels simultaneously, is both possible and in the best interest of their clients.[3]
Currently the practice of mediation is largely unlicensed and unregulated, lacks any universal qualifications, and is left to each program or organization offering mediation services to establish its own requirements.[4] The debate over whether or not mediators should be subject to certain qualifications and/or standards, to become a regulated profession like doctors or lawyers, is fiercely contested.
Perhaps the difficulty of establishing and adopting nation-wide mediator qualifications is that there is no genuine consensus on the skills or characteristics that a mediator must possess to be effective in his/her role. There is however ample evidence that a majority of people acknowledge that there should be some kind of mediator qualifications and skills training.[5]
Having had an opportunity work alongside mediators trained at non-legal institutions[6] it quickly became clear to me just how varied mediation styles could be. Many of the mediators that I have worked with prefer to address the parties’ emotions, to approach the discussion as though they were therapists guiding them along an emotional journey to reach a settled end. Others prefer to break into caucuses just after the exchange has begun to ask each party what the lowest/highest dollar amount they will be satisfied with leaving with on that day, in an attempt to “cut to the chase”. I do not mean to imply that one approach is better than another, or that there is a right or wrong way to mediate disputes. In fact, I think that a large part of the qualifications requirement debate stems from this very reality; there are so many possible ways to effectively mediate a dispute that makes whole-hearted categorization of one kind or another, not only senseless but impossible.
Yet, even if we are to accept that styles, approaches, and personalities of mediators will vary as widely as the disputes they entertain, is it fair to require each of them to undergo prescribed training regimens? Is it fair, not to do so?
One important aspect of mandatory training requirements[7] is to consider the ultimate purpose; that the certification provides to the public (or parties) that they can trust the competency of the mediator and his/her services, even if they were otherwise unable to make such informed decisions.[8] In fact, this purpose dovetails quite nicely with one of the most fundamental pillars of the entire mediation practice: party self-determination. How are parties to select the mediator of their choosing if they are unfamiliar with the practice, individual mediators, etc.? The certification of mediators advances the very idea that parties should be free to select their mediator as they desire, and that they would be able to make informed decisions regarding their selection of a qualified, third-party neutral.
Some opposed to mediator certification are concerned that certification schema and the resulting quality of mediators have no direct relationship.[9] Even if there is no direct relationship between certification requirements and quality of mediators, the public should be assured that their third-party neutral has at least had an opportunity to acquire the most essential skills required for the practice of mediation. If we consider volunteer community mediators in the small claims court context, I am sure that we can all agree that their willingness to assist in conflict resolution and provide an alternative forum for dispute resolution is both noble and appreciated. However, there are certain legal rights and obligations that our communities have decided upon and expressed in the law. While both volunteer, non-legally trained mediators and lawyer-mediators alike are not to offer legal advice during a mediation session, certainly there is the likelihood that mediators with legal experience are somewhat more equipped to ask the parties more informed questions and assist them in finding an equitable resolution that is rooted in their respective legal rights. Equity demands that we, as mediators, understand the legal rights and obligations of the parties as we assist in the equitable resolution of disputes.
I do not intend to imply that all mediators should be legally trained. In fact, I believe that non-legally trained mediators offer a unique and meaningful perspective. However, requiring non-legally trained mediators to have an opportunity to become familiar with basic aspects of family law, landlord-tenant law, contract law, etc. would at least provide an opportunity for many mediators to at least be aware of the relevant law when assisting parties resolve their disputes.
It is unfortunate that mediators and mediation are not professionalized in our society. In fact the ideal mediator would likely be a licensed attorney, an accountant, a behavioral psychologist, a psychotherapist, an engineer, a contractor . . . The expectations of a mediator can vary so widely from mediation to mediation that some are concerned that mandatory certification requirements might act as a bar to entry into the field. If the certification requirements were broad enough so as to only encompass the most essential aspects of mediation, a training rooted mostly in apprentice-mentor relationships, and actual mediation experience followed by an extensive review of the session afterwards, such requirements would really only serve to ensure that the individuals that we trust and expect to help feuding parties resolve conflicts are up to the challenge.
Another element that misdirects the certification requirements discussion is the idea that effective mediators are those that produce settlements. High settlement rates have come to mean high-quality mediation. Any practitioner can attest to the fact that settlement is dependant on so many variables, not solely the quality of the mediator. Measuring the effectiveness of mediators is another challenging and, in all likelihood, impossible feat. Some data indicates that mediator effectiveness is based on training, personal experience, and individual characteristics.[10] This siren song of statistical evidence used to validate one’s efficacy as a mediator needs to be avoided entirely.
Measuring the effectiveness of a mediator is not necessary to ensure that said mediator has had an opportunity to develop the essential skills needed to conduct a meaningful and productive mediation. In fact, mediator effectiveness should not even be relevant to the certification requirements discussion because it is in the interest of the industry (and the parties) as a whole to ensure that the best, most competent, and experienced mediators as well as those markedly less effective have all had an opportunity to learn the essentials and develop their skills as mediators.
Like many other professions, one’s effectiveness as a mediator does seem to have an intrinsic element to it. Extremely talented mediators that I have witnessed and tried to learn from, exude a certain disposition, ask the right questions in the right tone of voice, allow for silence when most appropriate – these aspects of a mediator cannot be taught or acquired and seem to flow from one’s general temperament. Chasing these characteristics is futile. Watching and imitating these gifted practitioners is a meaningful exercise for the inexperienced mediator, as it can instill a certain aspiration for them. But ensuring that every mediator is able to possess this innate predisposition to the practice of mediation is irrational and unreasonable.
Essentially, there are certain skills and training that every mediator should be exposed to. The patchwork requirements currently offered in the various states and their various courthouses do not offer a meaningful solution to ensuring that mediators are providing a high-quality, meaningful experience for disputing parties. The most reasonable solution at this time would be to establish a national Alternative Dispute Resolution Board (consisting of the most respected and experienced professional mediators in the nation), to establish a rigorous training program that is affordable and accessible to any person interested in becoming a mediator. This training should be followed-up with mandatory apprenticeships whereby inexperienced mediators have an opportunity to learn from their more experienced, professional mentors. There should be uniform national professional standards (including expectations surrounding confidentiality and ethical practices, among others) that are widely circulated, easily understandable, and legally enforceable. This kind of national uniformity would go a long way to ensure that every mediator has at least had an opportunity to acquire the most essential skills needed to conduct mediation, and would advance the practice of mediation by providing the public with some assurance that those acting as a mediator are capable of so doing.
While most states do have some modified version of what I have just proposed, national uniformity would advance the credibility of the practice, and make it easier for mediators to rely on uniform expectations of professional conduct. Mediation is too important a profession, too high a calling, too meaningful to individual communities and the nation at large to be as loosely regulated as it currently is. The practice is essential to advancing fairness and justice within our society and we should demand that those acting as mediators are qualified to do so. It is time for mediators to assume a role in modern society that is respected, venerated, and appreciated; developing meaningful, uniform, national standards will go a long way towards advancing these goals.
[1] Jay W. Stein, Mediation and the Constitution, 53 Disp. Res. J. 22, 27 (May 1998).
[2] W. Lee Dobbins, The Debate Over Mediator Qualifications: Can They Satisfy the Growing Need to Measure Competence Without Barring Entry into the Market?, 7 U. Fl. J. Law & Pub. Pol’y 95, 95 (Fall 1995).
[3] Tad Powers, Civil Mediation: A Culture of its Own, 36 VT Bar J. 28, 28 (Fall 2010).
[4] Norma Jean Hill, Qualification Requirements of Mediators, J. Disp. Res. 37, 37 (1998) (noting also that some states have established certain qualification requirements either through statute or adopted court rules).
[5] Kent J. Wagner, A New Era for the ADR Review Board – Facing Issues Through Strategic Planning, 20 Hamline J. Pub. L. & Pol’y 355, 370 (1999).
[6] Mainly those having graduated from the mediation training at the Woodbury College program.
[7] The term “mandatory training requirements” will be used interchangeably with the terms licensing or certification.
[8] K. Austin, et al., Mediator Certification: What are Some Practitioners Afraid Of?, 26 Alternatives to High Cost Litigation 181 (November 2008).
[9] Tony Willis, Mediator Accreditation: Is It Risk? Or Quality Enhancement?, 26 Alternatives to High Cost Litigation 165 (October 2008).
[10] See Carol J. King, Burdening Access to Justice: The Cost of Divorce Mediation on the Cheap, 73 St. John’s L. Rev. 375, 463-64 (1999).
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