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Comprehensive Mediation Regulation

Comments on the Texas Supreme Court Mediation Credentialling Task Force Report

The 5th Annual Texas Labor-Management Conference focused completely on dispute resolution and legal issues. It had a capacity crowd of mediators and dispute resolution professionals. Over three hundred people were in attendance. Less than 2% of the attendees were attorneys. If you wanted to see non-attorney, professional, dispute resolution practitioners, currently employed in mediation and related fields, this was the place to be.

Understanding the existence and function of these trained professionals is essential to anyone who speaks on the topic of certifying or regulating mediators. This is not the only area of non-attorney dispute resolution. The Federal Government channels tens of millions of dollars into mediation, mediators and training in education and school programs. My daughter's fourth grade classes included dispute resolution modules and have since pre-school. In our ten county region, our Regional Education Office (Region IX) has the only full time employee whose primary duty is mediation.

Before the regulation, certification and control of mediation is asserted by any group, I would suggest the following steps:

The initial, limited, approach and analysis of the issues is important. The work done on a topic limited to Court-annexed (e.g. Judge referred and ordered) mediation is excellent. However, it is important that this work be seen and used as a foundation, rather than being left as an end.

Mediation is a wide and varied area. Because of the ease of entry (even the forty hour training requirement is observed as much in the breach as the observance) the field is filled with individuals following the money and crossing over into any area of dispute resolution where a fee may be earned.

Further, many mediations require a very minimal skill set. Most well established mediators are basically self-educated and most training combines personal observations with current working model training. From ICAR's Ph.D. program at George Mason, to the killer week-end "40 lecture hour" marathon program offered by a non-lawyer in the Metroplex, there is still not significantly more than observations and practice with a simple "shuttle diplomacy" model. Mediation is a young discipline, an "art" (read "religion), not a science (read "reliable engineering process").

This is an excellent time for scientific, non-partisan, comprehensive study and approaches. It is my hope that the Texas Supreme Court task force will go forward and succeed in creating such an approach from the foundation they have created.


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