Presented several high energy,
interactive dialogues around the state to discuss
MEDIATOR COMPETENCY:
Who will govern ADR?
Is the marketplace working?
This year, the California State Bar, Judicial Council, ABA Section of Dispute Resolution, Federal Mediation and Conciliation Service (FMCS) and Association for Conflict Resolution (ACR) have been discussing credentialing and reviewing standards of practice and conduct for mediators.
Is the free market serving mediators?
Is regulation of mediators on the horizon?
What standards should be adopted?
Who should enforce standards of practice?
Do we need a credential in
If so, who should do it? How?
Is deregulation helping mediation grow?
How is your practice affected?
REPORT ON DIALOGUES ON MEDIATOR REGULATION
ALAMEDA COUNTY BAR ADR SECTION
Jonathan Gross and Michael Carbone
One individual felt that complaints were unlikely because the mediator does not make a decision, although he noted that some mediators come across as biased. Choice of mediators will continue to dictated by the marketplace. People will still go the person who "gets the job done." Concerns expressed about creating a bureaucracy. Question was raised about grandfathering for qualified practitioners. Felt that CLE was a good idea, but who would provide it?
LOS ANGELES
Lee Jay Berman, Susan Bulfinch, and Michelle Katz
Reported by Susan Bulfinch
Consensus among the mediators in
*How do we set standards for such a diverse field as mediation? (different models and styles)
*If an agency actually certifies mediators, then how does it or will it “de-certify” members?
*Is there a demonstrated need to protect consumers?
*How do you measure competence? Will the marketplace decide?
Local associations like the Southern California Mediation Association (SCMA) have established criteria for certain levels of membership to include, for example, specific hours per year of continued education and/or training in mediation. This is one way to establish a common denominator for skills and to establish standards for professional membership. Moreover, SMCA uses an honor system and sets these criteria for members to self-certify.
The following traits were listed as being helpful or necessary to be a competent mediator: compensation (perception of professionalism), ethical, training and continuing education, experience, personality, talent to reach consensus, intuition, creativity, caring, trustworthy, perceptive, understanding, kindness, knowledge: process and substance,
sincerity, curiosity, intelligence, non-judgmental, empathy, optimism, tenacity, patience,
impartiality, lack of attachment (to outcome), tolerance, respect, communicate effectively, commitment, open mind, and chutzpah.
Western Justice Center Foundation
Lee Jay Berman and Susan Bulfinch
Reported by Susan Bulfinch
This was third and last of three dialogues in the greater Los Angeles/Ventura areas and
was well attended (35). There was an equal feeling on both sides that within five years some form of regulation in the field would exist; however, the consensus was that there should not be any regulation. When asked what organization might best set and enforce potential regulation (as yet undefined) answers included: state agency such as the Bureau of Consumer Affairs; a self-governing association like the SCMA; or perhaps the CDRC as a statewide organization that assists in developing public policy.
Questions raised by the group:
*What needs are not being met in the community?
*How do you measure competency?
*What hurdles should mediators overcome to maintain a level of competence?
*Who are the consumers?
What is working well?
Initial door is open in the field
Ample training and educational opportunities
Broadening the definition of mediation also broadens the market
Supply side is working well
Voluntary certification – in certain agencies, organizations, court programs
What is not working well?
People are known in one market but not another
Consumers (e.g., lawyers) forget who “I” am
Mediators tend to be very critical of each other
In practice, desire to have parties settle seems to become the prime objective
Distortion --- mediators in litigated arena appear larger than court mediation programs
Mediators seen as negotiators and not as mediators
Lack of resources for or among community programs (DRPA’s)
How might we improve and foster the use of mediation? Self-regulate before a government entity regulates us; have more dialogues to identify who we are as mediators; bring consumers of mediation into the system; educate the public: design a television show that illustrates mediation; develop niche markets – health care, for example; promote compensation for mediators (don’t give it away), do research and obtain empirical data to show that mediation works to reduce court congestion; create more opportunities to teach mediation in the schools and youth programs.
Susan Bulfinch, Michelle Katz, and Lee Jay Berman
Reported by Susan Bulfinch
There were about 20 attendees, most of whom were active mediators some of whom were lawyers and business professionals. In a general discussion regarding credentialing, the following items were listed as important to the field: professional designation, internships or apprenticeships, have mediation recognized as an art as opposed to science, have a practical exam, self-regulation as opposed to state or bureaucratic regulation, and no consensus was reached regarding levels of specialization.
Who is competent? What mediator traits determine competency?
Instinctive, listening, practice, intelligence, training, patience, humor, courage, humility, personality (warm, open, friendly), likeability, credibility, confidence, manners, reputation to see both sides, honesty, life experience, management skills, reflexive, meet the parties’ expectations and resolution rate responsiveness, creativity, flexibility, ethics, experience, neutrality/impartiality, determination, perseverance, tenacity, trust, facilitation, empathy, objectivity, self-awareness and knowledge, intuitive, substantive knowledge, higher education, compassionate, heart.
What is not working? Superior Court mediation program(s) are a distortion of the marketplace; community programs are dependent upon government support; volunteering for court mediation programs has not worked to develop individual practices or to get paid; regulation will not “fix” these problems; “resolution” at any cost?
What is needed? Empirical data and market research, empirical data on competency status; research whether people can comply with competence standards; training contexts need to be understood; increase user knowledge and awareness in the schools, community, etc.—outreach; more resources for low cost or pro bono services outside of the legal system; ability to foster innovation even if there is regulation.
MARIN COUNTY BAR ADR SECTION
Ruth Glick and Maury Zilber
Adamantly opposed to certification, let the marketplace govern.
Dave Finch, Rosemary Metrailer and Paul Taylor
General consensus was that someday the mediation industry will be subject to standards but most generally thought that limiting the regulation to establishment of minimum standards was enough. The nature of the minimum standards would depend upon the subject matter of the mediation. Saw little risk to sophisticated litigants represented by counsel from mediator incompetence. Minimum standards might include process training and requiring full disclosure of mediation style, experience and any possible bias or perception of bias. Most felt it important that the minimum standards not exclude community/citizen mediators. At least one person suggested two regulatory schemes: one for unrepresented parties in consumer mediations and another for parties represented by counsel. But there was not strong support for a governing body to oversee consumer mediation.
SAN FRANCISCO BAR MEDIATION COMMITTEE
Ruth Glick and Maury Zilber
Certification or some form of regulation is inevitable; not too favorable toward the ACR proposal; see value in requiring training, but also in mentoring, internship and continuing education. One or two reported hearing complaints about mediators doing it "by rote" and/or not being perceived as neutral. But no one seemed to feel that these complaints would be addressed by certification. No one felt that mediator selection would be influenced by certification.
Paul Dubow and Maury Zilber
Many favored credentialing although they felt it was irrelevant to their own practice. Many were initially impressed with the ACR proposal.
SAN JOSE
John Blackman and Ken Bryant
Report by Elizabeth Strickland
Attendees were mostly active mediators and a few in ADR administration
positions. The following votes were taken:
* Should the State of
* Should national voluntary certification be instituted? 1 yes vote out of 25. *
Should state voluntary certification be instituted? 1 yes vote out of 25.
Selected comments:
* Credentialing should not restrict people who have a gift for the mediation process from practicing mediation due to abstract regulations. Any credentialing program must take into consideration the broad category of mediators, and the fact that they come from all walks of life.
* There is still a minimal standard to be met in order to produce a good mediator. In
* Some minimum standards should be required, and we all know that practice of the process is the crucial element to become accomplished at the process and acquire the skills.
* Uniform standards should be created to which people could voluntarily ascribe, so the public will then have a baseline for what is a "good" mediator.
* Suggest using the existing CDRC Standards, which were created for that purpose 7-8 years ago.
* No credentialing or regulation should be so onerous that it precludes volunteers from giving back to the community. Too much interference can block a volunteer mediator from serving, if it makes the ability to practice mediation too complicated a goal to reach.
* As long as participation in mediation is still voluntary, regulation is not that important because people can choose not to continue if they don't like the mediator/process. Training is important but does not always equal competence. Ethics are the real key.
* If anything is to be regulated, it is the agencies that provide mediators. They should have to warrant that their mediators are trained, will comply with ethics, etc. That would protect the public. The agency/organization should do the quality control. That happens now. Example; the court screens applicants before putting them on the panel. There is no need for further intervention of any regulatory authority.
SAN MATEO COUNTY BAR ADR SECTION
John Blackman and Jim Madison
There were approximately 20 attendees. Most of the attendees were lawyers who are also active as mediators or ADR providers, though a few were either lawyers only or mediators only. Highlights of significant comments:
1. No one seemed to favor a national certification program, especially one as complicated and potentially expensive as the ACR proposal.
2. No one favored licensing by the state, especially if it fell under the Department of Consumer Affairs.
3. There was less resistance to credentialing, "as long as" (in the words of one participant), "it didn't mean anything." In other words, some form of credentialing might not be too bad as long as you didn't have to have it in order to call yourself a mediator and provide mediation services.
4. A huge issue - perhaps the biggest issue in this entire debate - is (somewhat surprisingly): "What is 'mediation?'" In other words, just exactly what is it that would be regulated, or credentialed, or licensed?
- Some felt that while 'ordinary' mediators need not be credentialed, perhaps "family law mediators" should be, because they help draft marital settlement agreements and in so doing frequently advise unrepresented parties.
- One person (family law practitioner) felt that family law mediation should only be done by lawyers - indeed only by lawyers who are certified family law specialists - and since what they do is so close to practicing law, there should be a track for becoming a certified family law mediator through the State Bar.
- Another person (family law mediator) took issue with the analogy that mediation is more of an art than a science, saying that people expect 'results' from mediation, but not from art, and people can be harmed by bad results, so there should be a way to prevent bad mediators from getting people bad results, and some form of credentialing might prevent that.
- A responsive comment to this was that perhaps what "family law mediators" do isn't really 'mediation' (which is not to denigrate what they do at all - just to say there are enough differences in the processes that differing standards or treatment (or a different name) may be appropriate at some point in time).
Personally, I was quite taken aback by the lively argument and lack of consensus over what is mediation and what isn't. The wild differences of opinion in such a small but highly sophisticated group as to key issues, such as, is what family law mediators do really mediation; the old evaluative vs. facilitative debate (with lively discussion about so-called 'transformative mediation' as well); whether student mediators would be hauled off to jail for daring to practice mediation without a license; whether having more letters after one's name (such as "certified mediator") meant you were better than those who didn't, and whether this would help or actually affirmatively mislead the public; etc. Seeing these wild differences of opinion and lively debate led me to the following thoughts:
(a) how can we regulate a 'field' where those highly in the know on the subject can't even agree on the parameters or dimensions of what 'the field' is;
(b) no one can even come close to articulating what makes a good mediator and what makes a bad mediator (except in the grossest of terms, which is completely unhelpful);
(c) there are many different types of 'mediation' and those differences must be taken into account with any credentialing scheme; 'mediation' occurs in many different contexts, which also need to be accounted for in any credentialing scheme;
(d) given the above, wouldn't it be best to wait until we know more about this topic and field before we try to regulate it (especially since there is no real or present threat to the populace of lots of people being victimized by incompetent mediators).
5. We didn't have time to discuss whether a voluntary pledge to adhere to a set of recognized standards of conduct for mediators would either be sufficient in-house policing of competence, or whether it might be sufficient to stave off governmental regulation.
6. One person who couldn't come sent in some written comments. She raises excellent points about the disasters of licensing and regulation in the health care industry, and how that has unnecessarily created a lot of tension, in-fighting, and power struggles, and has actually done more harm to the profession and the public weal than good.
Michael P. Carbone
Mediator & Arbitrator
One
Tel: (415) 357-1622
Fax: (415) 357-1633
Email: mcarbone@mygoodoffices.com
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CREDENTIALING AND STANDARDS
Below is a list of sites that you may wish to refer to for information on mediator credentialing and standards of practice.
CDRC Standards of Practice: http://www.cdrc.net/pg2.cfm
ACR/AAA/ABA Model Standards: http://www.acrnet.org/about/initiatives/QualityAssurance/JCMSCM.htm
California Rules of Court, Rule 1620 (Rules of Conduct for Mediators in Court-Connected Mediation Programs for Civil Cases): http://www.mediationtools.com/rules/crc1620.html
ACR Mediator Credentialing Program: http://www.acrnet.org/about/taskforces/certification.htm
ABA Section on Dispute Resolution Credentialing Task Force Report: http://www.abanet.org/dispute/taksforce_report_2003.pdf
FMCS Access to Neutrals Registry Initiative: http://www.fmcs.gov/internet/itemDetail.asp?categoryID=67&itemID=17208
Jeff Kichaven's August 2004 article on confidentiality as it impacts upon mediator competency; http://www.irmi.com/Expert/Articles/2004/Kichaven08.aspx