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A Supplement to a Newsletter from ADR Resources
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The topic of this supplement:  Certification of Mediators

Mediator certification usually comes up in the context of court-annexed mediation (for the purposes of this essay, defined as mediation of a conflict that has already resulted in a lawsuit and mediation as a process resulting from a referral by a court).

It is driven by two groups:  judges who want more comfort in their referrals to mediators and mediators (often non-lawyers) who want better access to referrals from judges.

As the mediation process in a state matures, the drive for certification dies down.  It is then renewed, usually by lawyer-mediators seeking to thin out the ranks of competitors and by judges who are concerned about possible (and actual) problems and abuses they had not thought of before.

This second wave effort also tends to die down (or bog down) too.

Finally, at some point, someone realizes that rather than certifying mediators, the state should certify training programs (much like the ABA certifies law schools).  This bogs down completely, unless the initial pool of training is university driven, in which case certification tends to develop as a second nature (e.g. see Kansas).  Note that sometimes this step comes before the others (e.g. Texas).

There are several reasons for this process and why while I admire those courts seeking to regulate mediators, I am beginning to think that this essay will suffice rather than the interviews I seem to give once every three-four months to another court's researcher.

  1. The dominant model for court-annexed mediation is shuttle diplomacy -- pure process mediation -- and it is easily and quickly taught.  My 13-year-old-daughter can handle 90% of the cases that use this method.  So could yours, with a little training -- probably a total of 1-2 hours of training, some simulation to get comfortable and a few observations to let the whole concept jell.  For more background see What is mediation? (part two)
  2. Selecting a mediator is intensely personal.  Most judges who appoint mediators allow the parties to choose someone else if they desire.  The result is that a mediation practice is much like an intensely personal services sales practice.
  3. The people pushing for certification, in the first instance, either develop mediation practices (in which case they lose interest in opening the referral process up) or they don't (in which case they drop out of mediation and move on to something else).  Or, last alternative, they end up creating huge, open panels where each mediator on the panel gets such a small amount of business (a referral a year or less) that it is the same as not having a panel at all.
  4. The people pushing for certification in the second instance realize that the marketplace continues to thin out the ranks of competition and lose interest in the process in the face of the type of resistance that they face and in the face of the reward to the effort they are expending.
  5. Those seeking to certify trainers soon realize that the trainers have significant income streams tied up in continuing to train and that those who just want consumer protection (both consumers of training and of mediation by those trained) don't have enough fire to continue.  See, btw, Ethical Duties of Mediation Trainers in the Promotion of Training Programs and Perspectives from a non-lawyer mediator.


I have yet to be able to find a nice, elegant way to wrap the above into a tidy package, but those five points (and you can search for the supporting materials at http://adrr.com/search/searchnow.htm if you don't remember the links) cover the basics of why so many certification projects begin with noble goals, progress to the important points (especially regulating training programs) and why they eventually fade out into stagnation.

So, do I think that certification is a good idea?  Yes, especially of trainers.

Do I think it is an idea whose time has come?  Kind of, I think it is an idea whose time has passed.

What about the real issues (e.g. choosing the right kind of mediator for each case, etc.) -- if court's had the time to spend on each case to do full and in depth evaluation they wouldn't be referring cases to mediation (since almost all courts start referring cases to mediation as a part of docket control).  The only solution I have now is that attorneys should learn enough about mediation and mediators that they can pick and choose the right mediator for each case as it is referred to mediation.  That is what I do.

As for community mediation, victim-offender, transformative workplace mediation, facilitation initiatives, public policy disputes, etc.?  Those are a completely different topic. See http://adrr.com/smu/health/index.htm for an idea of just how different they can be.

I welcome thoughts and feedback on this topic. Each researcher I've given an interview in the past couple-three years has promised me copies of their conclusions and results and I've yet to see a finished report ready for release.   

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Copyright 1999 Stephen R. Marsh

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