Regulating, Certifying, Creating Barriers to Entry….

Business Conflict Blog by Peter Phillips

There seems to be a presumption that being a mediator implicates public policy, and that the practice of mediation needs to be somehow regulated for the public good.

In my region, for example, one must demonstrate training, skills or both in order to be listed on various court-annexed mediation panels. At the same time, however, many of those courts don’t mind in the least if parties go to a mediator of their choosing irrespective of whether that person is listed on the court-maintained panel.

The Spring 2013 issue of Dispute Resolution — the excellent publication of the ABA Dispute Resolution Section — is devoted to mediator criteria, qualifications, accreditation, regulation, and so on. The International Mediation Institute was founded with a mission to create standards for mediator professionalism. And in Prague a few weeks ago, the World Mediation Forum reported on astonishingly harsh regulations for those who offer themselves as mediators.

A panel was offered featuring Andreja Kokali of Ljubljana, Slovenia; Zoe Giannopoulou of Thessaloniki, Greece; and Martina Doležalová of Prague, and moderated by French mediator Fabienne Van Der Vleugel. In the course of the discussion, it was explained that, in many markets in which commercial mediation has not yet fully developed, there exist unfortunate policies – either by law or regulation – restricting its market growth, by emphasizing both required training, and in some cases citizenship, in order for a mediation practitioner to appear on “approved” panels. For example, in Turkey only Turks can be registered to mediate. In the Czech Republic, a “visiting mediator” – that is, someone from another country who has not satisfied the Czech requirements to be a certified mediator – must apply to the Ministry of Justice to get accreditation. One is free to work anywhere in the EU – just not as a “registered” or “certified” professional mediator.

The irony of this situation appeared to be lost on the participants, who expressed more concern for creating and enforcing professional standards for mediators than for encouraging customers to actually engage them. The model proposed by Texas mediator Jeff Abrams – that anyone be able to mediate, allowing the consumers of the service to determine who is good and who is not – was never seriously debated.

Why should this be? One could well imagine a well-developed market (such as the sale of securities to non-professionals) being regulated on the ground that the market is mature, prone to fraud, and may injure unwary or naive purchasers. But the mediation market is neither active nor regularly visited by the unwary, and poor mediators do not profit from illicit or fraudulent behavior. The consequences of poor mediation? As Jeff Abrams put it, “You have a bad day.”

Requiring a minimal skill-set before mediators can practice clearly benefits skill-set providers, but it is hard to measure the impact of required training on the mediation profession since so few mediators — whether skilled or not — actually work.

I am at a loss. Are these standards imposed to protect the existing crop of mediators from entrants who might dilute the market? But there is no market to dilute. Are they imposed in a scheme to create a market for training, in the absence of a market for the trained? Possible but unlikely; that strategy is too nefarious and too short-sighted. Do quasi-governmental standards reflect a perception that poor mediators can cause harm to the public, like poor doctors, poor dentists and poor plumbers? That makes no sense at all.

I open the floor: Why is the market for mediators regulated?

                       

F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >