This article originally appeared in the January 1999 issue of Consensus, a
newspaper published jointly by the Consensus
Building Institute and the MIT-Harvard Public
Disputes Program.
When a small group of us
began trying to design better and less expensive
competence tests for mediation nearly a decade
ago, out greatest concern was that failure to
develop performance-based methods of
credentialing mediators would lead to an
arbitrary system of qualification, one imposed by
the courts or other central authority. We formed
the Test Design Project, a national and diverse
group of academic and practitioner experts in
dispute resolution, largely to obviate that
possibility.
The good news is that such an imposed system
hasn’t happened. In part, that’s because the
involvement of high-level court and other
officials in that 1990-1995 project, as well as
in some other quality-control initiatives within
the field, helped to enlighten people within
judicial-administrative circles as to the wisdom
of imposing court-ordered criteria.
But if anything, we may be seeing an outcome
even more arbitrary than the one we had feared.
Through our own inaction on this issue,
qualification systems of other fields are, in
effect, increasingly being used as proxies for
our own.
In an ideal free-market system, a reasonably
diligent buyer has enough information to be able
to tell the outstanding product or service from
the terrible. Yet in the real world, consumers
are rarely given so obvious a choice. More likely
the problem is telling the “pretty
good” from the “pretty bad.” And
when the criteria are in doubt, or not clearly
defined, it’s not so easy for the consumer to
measure the quality of a mediator.
Significant progress has been made toward
accurately specifying criteria of mediation
skill. Since 1995, we have had explicit and
carefully worked-out sets, for
“transformative” as well as
settlement-oriented mediators. (See the Test
Design Project’s “Performance Based
Assessment: A Methodology, for use in selecting,
training and evaluating mediators,”
published in 1995 by the National Institute for
Dispute Resolution.)
These definitions of skill stress the ability
to gather information, empathize, remain
impartial in heated situations, help the parties
generate options and agreements, and manage the
interaction. The specific illustrations of these
skills must, of course, be tailored to the needs
of specific programs. But we have demonstrated
how these skills can, in fact, be demonstrated,
using either role-play-based exams with actors
(which come with significant running costs), or
other technologies (at great setup and design
expense, but lower running costs).
Draws from rich tradition
Performance-based qualification methods draw
from a rich tradition, which goes back to the
audition of a musician or actor as well as the
“observation” requirements of other
fields, such as psychology. Of all kinds of test
applied in any field, the audition is probably
the most widely recognized as fair and
job-related. The performer must do the job to a
schedule, under observation and under pressure.
These conditions are closely equivalent to the
circumstances of real work.
With the exception of a few stalwart programs,
however, we in the mediation field have done
little to implement this approach. Unfortunately,
the result is not simply an innocuous “go
slow” with all options preserved for a wiser
day – because by failing to insist on what we
have good reason to define as competence, we have
created a vacuum.
In effect, we allow anybody to claim that he
or she is good at all of the essential mediation
criteria – even though many would-be mediators
possess only one or two of these skills to any
adequate degree, along with self-confidence and
indefatigable marketing. Relatively few mediators
I have met disparage their own skills – and in my
experience, those who are most self-questioning
are rarely the ones the public should worry the
most about. But to the public, what mediators
have to offer remains extremely intangible;
Mediation is a “process,” and even if
there is a “settlement” to show as
product, a host of intelligent commentators have
pointed out why that is neither necessary nor
sufficient evidence of competence on the
mediator’s part.
Indeed, much of the process can take place
outside of the customer’s presence, even in a
confidential discussion with an opposing
customer. Caveat emptor is disheartening enough
when applied to a toaster or plumber; so when we
mediators offer our services, it should not be
surprising that parties look for some externally
validated evidence of competence. They do look,
and they take whatever “evidence” they
can find.
This, I think, is the real reason why parties
tend to give so much – often too much – weight to
prospective mediators’ credentials in law or
substantive knowledge of the particular field
which seems closest to the dispute (engineering,
labor-management relations, family dynamics).
Such credentials are prized because they are
relatively standardized, and thus easy for the
parties to recognize.
Ironically, the very diverse group of experts
constituting the Test Design Project group, which
had to resolve many areas of disagreement, had no
serious disagreements when it came to this issue
of substantive knowledge: We all agreed that
beyond a basic familiarization with the subject
matter, substantive knowledge was rarely one of
the more important criteria of skill in a
mediator. More than a basic and
mediation-specific knowledge of law was seen as
important only for certain types of cases, and
far fewer than is generally supposed.
Random selection, fancy frames
But while other fields are quite firm in their
criteria – and in dealing qualifications to
practice – we in mediation actively market
courses in our field to increasing numbers of
essentially randomly-selected people. Using the
absurdly arbitrary baseline of 40 hours of
training, we hand out certificates at the end of
that training time. These attractive
certificates, nicely framed, promptly show up on
office walls.
On one level, it is socially valuable to
distribute important skills of mediation as
widely as possible. But at the same time, such
limited and arbitrary training standards help
encourage a process of devaluation of the
mediation field’s skill demands. How many of us
would be happy if other fields requiring skill on
critically important matters – say, dentistry –
qualified practitioners this way?
Such comparison to other fields, of course,
raises the specter of
“professionalization.” But it is still
too easy to confuse the pursuit of competence
with pursuit of a “professionals only”
agenda. That is pernicious. We have, if anything,
a greater moral obligation to ensure competent
service for those whose budgets restrict their
choices to pro bono and public programs than for
those who hire professional mediators. Any
discussion of qualification for mediation should
have at its base the interests of consumers and
the public at large, neither of which is well
served by our present inaction.
Beyond a few programs which insist on high
standards and are willing to pay the costs for
themselves, we have failed, so far, to provide
the performance-based mechanisms by which skilled
mediators can demonstrate to all comers that they
have the key elements of effective performance.
We have thus discouraged consumers and the public
from valuing those elements highly.
More and more, we can expect the
heavily-trumpeted legal and “substantive
knowledge” skills to be used to fill the
gap. The logical result makes mediation an
adjunct function within each of several
occupations which are really about something
else. At the same time, on the professional side
of the field, we are in effect helping to promote
in the marketplace mediators whose key skills
overlap the core skillset of mediation only to a
degree, at the expense of those whose balance of
skills is closest to mediation itself. Over a
period of time, we should logically expect this
to lower the public’s reasonable expectations of
what mediation should be able to accomplish.
By shrinking from the costs and hard decisions
necessary to establish a meaningful
performance-based system of qualification, we are
thus implicitly accepting a misguided and
self-defeating alternative.
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