These are the real bottom-line questions that need to be answered without ten more years of debate. The answers will only be found when mediation becomes “legitimate”.
The ADR Section of the American Bar Association (ABA) has developed a proposal regarding the nagging problem of the Unauthorized Practice of Law (UPL) by mediators. Meanwhile, a joint committee of lawyers and mediators has recently proposed the Uniform Mediation Act (UMA). It is clear that both of these initiatives are needed. However, they are piecemeal attempts to further define the murky boundaries between mediation and the practice of law. The attempts are on the right track, and should be continued and further refined by bars and mediation associations; but neither of these initiatives promotes the establishment of mediation as a licensed profession. What follows here is a proposal that might assist in the further development of mediation as a licensed profession in the State of Washington utilizing a newly created concept.
The Washington State Supreme Court recently enacted a scheme for licensing and regulating Limited Practice Officers (LPOs). While several law related services are under consideration for this designation, this development has within it the seeds of great opportunity for the mediation community. At the same time, licensing mediators may satisfy many of the concerns bar associations, individual lawyers, and even mediators have about mediation and the public good.
On September 1, 2001 General Rules (GR) 24 and 25 of the Supreme Court effectively changed the playing field for mediators and other non-legal, or some might say “quasi-legal”, professions. GR 24 (b) established for the first time that “Whether or not they constitute the practice of law, the following are permitted: …(4) Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.” GR 25 Established the Practice of Law Board (POLB) to:
“. . .promote access to affordable and reliable legal and law-related services, expand public confidence in the administration of justice, make recommendations regarding the circumstances under which non-lawyers may be involved in the delivery of certain types of legal and law-related services, enforce rules prohibiting individuals and organizations from engaging in unauthorized legal and law related services that pose a threat to the general public, and to ensure that those engaged in the delivery of legal services in the state of Washington have the requisite skills and competencies necessary to serve the public.”
The Supreme Court, using nominations recently submitted by the Washington State Bar Association Board of Governors and others, is presently appointing the POLB. It will consist of 13 members, and at least four of them will be non-lawyers. Among its duties and powers will be to recommend instances when non-lawyers should be authorized to engage in the limited practice of law, (i.e., certain activities that otherwise constitute the practice of law as defined in GR 24).
LPO’s are being created within designated professions whose activities, in and of themselves, do not constitute the practice of law, but which perform services that contain elements of legal practice. It has long been difficult for professionals in those related fields to know if and when they may do things they have traditionally done without committing the UPL. The courts have had the same problem divining when an act or set of acts constitutes the UPL. Historic examples exist in the real estate and title insurance fields. Accountancy and financial planning are other areas that have more recently become areas of concern for bar associations.
The basic premise of the LPO concept is that it may not really matter whether a well trained, experienced and qualified professional in a non-legal field practices law or not. In fact, there has come the realization that access to justice may require more efficient and less expensive law-related services than lawyers can or will provide. Likewise, there are many non-legal services, provided by lawyers at a premium, many cannot afford. Rather than require that such a specialized provider be or become a lawyer, it may be sufficient, and more advantageous for all concerned, that he or she be licensed and regulated by a separate LPO Board containing expertise within both the legal and non-legal profession involved in that area of legal or quasi-legal practice.
The concerns of the public good can be met, the respective non-legal professions can continue to be practiced by non-lawyers, and the bar can have input to assure that ethical and practice standards meet its concerns as well. While the LPO movement has begun in more traditional professions, it seems only to make sense that it could be a very good fit in the fledgling profession of mediation.
Much of the noise, energy, and heat developed in the past five or so years in the mediation and legal communities over what mediation “is” or “should be”, has resulted from the grinding between traditional legal concepts and relatively new and emerging non-legal, social theories of conflict resolution. Much of the struggle by mediators has been made more so because non-lawyer mediators do not have the resources necessary to create, over-night (or maybe ever), the kind of institution that courts and bar associations have become. Indeed, by the nature of mediation and its practice, it is likely that mediation will never enjoy the money, structure, and influence enjoyed by lawyers, bar associations, and courts. Certainly, institutional constructs run contra to the very strength and essence of mediation.
The Washington Mediation Association (WMA), together with the state’s Dispute Resolution Centers (DRCs), has been actively engaged in the creation and implementation of a standard of practice and certification procedure. Serious problems remain in the area of policing practitioners. First, certification as well as membership in the WMA is voluntary. Second, the organization has relatively meager resources.
The Washington State Bar Association (WSBA) has made attempts through its Dispute Resolution (DR) Section to activate courts in the state with an Alternative Dispute Resolution Rule, but has been unsuccessful in getting “across” the BOG (Board of Governors) with even the tamest of proposals. Those who expended so much time and energy in the process have become weary and bleary-eyed. Everyone continues to get hung up in the “jurisdiction” and “turf war” problems. There are suspicions within many outside the legal profession that lawyers see mediation as an income threat, and there are those in each profession who are suspicious of the other for sundry reasons of ethics and philosophy.
Rather than “going it alone” on the continued path which strains against the existing legal institutions, then, why not utilize the mechanisms of those very institutions for licensing, standardizing, and policing by establishing mediation as a recognized LPO profession? Granted, many mediators will never perform any act that remotely smacks of UPL. Because of the context and nature of much mediation, UPL is just not a concern. However, there is a great segment of mediation practice by non-lawyers, lawyers, retired lawyers, and judges, which runs right along the foggy boundary between mediation practice and legal practice; indeed, many times with a foot in each practice area. This last area is much to the concern of mediator theorists, and subject to misunderstanding by and threat to disputing parties.
A further promise offered by the POLB resides in the potential ability of mediators to use the board’s position within the bar to bring active and retired lawyer-mediators and judge-mediators in line with “good mediation practice” as well. While many reside within the bar that possess wonderful training, knowledge, skill, philosophy, and aptitude in the art of mediation, there are many there who mediate and who do not even want to or think they need to possess those qualities. Rather than howl outside the gate for reform within the bar, why not go inside and with its own credentials, put some teeth in our mediator-ethics-skills-principals-imperatives.
Because of the nature of the mediation beast, bright lines will never be able to be drawn. Context plays too great a role in the process for meaningful distinction. Rather than stand around arguing over which of the endless hypothetical instances fit or don’t fit within the “legal practice” tent or which practices constitute facilitative or directive mediation and why, it would seem much better for all to commit our energies toward developing a regulated practice of mediation as soon as possible; together, with, and alongside of the legal profession.
A very good way to get our arms around the whole bushel, including the issues addressed by the UPL and UMA initiatives as well as those they don’t address, would be to create the Mediator Limited Practice Officer, and bless the licensed practice of mediation without a license to practice law, but within the standards set by, oversight of, and recourse to the POLB. The WMA, the DRC Association, and the WSBA DR Section should go to work immediately to make this happen through their joint efforts and within the Supreme Court’s framework that will soon exist within the WSBA. The sooner and more vigorously the WMA sets upon this task, the more influence it, and non-lawyer mediators, will have in the resulting standards and oversight.
If mediators do not accept the potential invitation from the state Supreme Court to become licensed and regulated using its new scheme, just how will mediators become “legitimate creatures”? The only other body with such authorizing powers is the legislature – does anyone among us really want to “go there”?