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Several State Bar Associations are considering credentialling for mediators (such as board certification or a similar approach). The following is my opinion on what should be done.
I have participated in mediation since 1985 or so. While much of what I have done in the past has been low intensity (several times a year rather than several times a week), I am currently affiliated with USA&M as both a mediator and an arbitrator. Much of my past practice involved serving as a mediation advocate.
One thing that always struck me in my practice, both as an advocate and as a neutral, was the great variety in mediator technique. Where one mediator considers separate caucuses a detriment to dispute resolution, another begins in them. One mediator handles all her cases on a contingent fee, another claims that is an ethical breach. Where one nationally known mediator insists on extensive pre-session work, another regionally famous mediator refuses to engage in it. One insists on a single marathon session -- refusing to break no matter how long it takes, another works the "session" into one hour increments stretching over several months and refuses to go over more than five minutes in any session.
All of these mediators have vast sums of anecdotal experience upon which they base the theories they have for why and how mediation does (and should) work. All of them are successful with their methods. Very successful in a professional, statistical and financial sense.
While looking at this vast series of alternatives one also sees the instructors. All of them are basically self-taught -- having begun mediation before the current wave of seminars and classes. Certainly, some of them received some training from seminars or "40-hour" programs (including those from other states or countries), but, in reality, they are self-taught pioneers creating a new science.
Many of them use the most widely taught model, which begins with the joint session, followed by individual caucuses until settlement (the "shuttlecock" model). I use that method. However, the widest taught model is not the only or necessarily the best model. There are many other models taught, both in Texas and at major universities, as well as in some foreign countries.
Further, with the most widely taught model, anyone can teach it, anyone can use it (more or less) and the public is becoming familiar with it.
I have seen where non-lawyers teach the "shuttlecock" method to attorneys with suspended licenses who then sign up to charge whatever the market will bear, social services workers who approach federal judges for assignments, and just about every other type of instructor and student. Most of the other models have less eclectic distribution, but the practitioners of those models seem to have the same range of qualifications -- from expert to wishful.
This has led to a flood of mediators with vastly different methods, abilities and experience, all marketing themselves to a relatively inexperienced market.
From my observations of the market, the mediators and the instructors, I see the following reasons for certification of instructors and of mediators:
1. Market saturation. A number of mediators have expressed concern over the "throw a rock out a window, hit three mediators" situation in some metropolitan areas. Certification is seen as a way to reduce competition and desaturate the markets. This reason has already been spoken of so openly that it will be impossible to avoid a challenge (FTC or otherwise) based on anti-trust considerations with almost any certification proposal.
2. Enforcing a single mediation model. A number of individuals have taken the position that widespread practices (followed by their "competitors") are unethical or improper and should be prohibited. From billing methods to caucus styles, there are some sharp disagreements. There is a belief that certification will "vindicate" one side or the other.
3. Weeding. A number of truly awful and repugnant individuals have set themselves up as qualified mediators. Certification is seen as a method of weeding these people out that is faster than other methods.
4. Marketing. Many feel that they can sell their services better and have a competitive advantage if they can tell the public that the mediator is certified rather than "just" a mediator.
5. Professionalism. A number of mediators subscribe to the board certification model and feel it will give them a credential that has a value as a reflection of professionalism.
My thesis is that these are the five reasons for certification that should be addressed in any analysis of the issue and any proposal for change. Failing to address any of the five reasons will result in flawed analysis. In the subheadings that follow, I address the five reasons for certification in light of what I see to be real world constraints and facts.
Current Market Mechanisms as they affect certification
The market currently has its own certification program. Natural forces and methods have resulted in some de facto standards and certifications.
As I see it, a "Certified Mediator" is one who has been certified by an "acceptable" 40-hour training course. The major providers (AAA, AFI, USA&M, etc.) all have certifying programs. A person who lists themselves as a "Certified Mediator" should list themselves as an "AAA Certified Mediator" or an (Association of Attorney-Mediators Certified Mediator," etc., as per their certifying group).
This identifies to the market just how and from whom the mediator received training and qualification and makes organizations responsible for those they chose to make into mediators.
Not only should mediators represent themselves by the group that provides their certification standards it should be noted that many mediators actually do hold themselves out by group identity and are selected for service based on the qualifications of the organization that certified them.
So first, I propose that any initial or transitional step follow the market.
That is a simple interim step that allows certifying. One would put the duty to regulate and discipline on the certifying organization.
Next, A Test Case Proposal
Following an interim solution for mediation (while a model is worked out that addresses, in a legal and ethical fashion, the forces for a more comprehensive certification), I suggest that the bar associations move forward to regulate arbitrators.
Arbitration is an area that would provide good practice for regulation of mediation.
This is because arbitration is much more formalized and exact with specific protocols for the various types and forms of arbitration.
1. Interim Certification.
Interim Certification for Arbitrators would be "XYZ Certified Arbitrators." "XYZ" being the name of the certifying group (e.g. AFI Certified or AAA Certified).
2. Registered Arbitrators.
This would follow with "XYZ State Bar ADR Section Registered Arbitrators."
Registration as an Arbitrator would require a 40 hour ADR course from an approved provider. It would also require an 8 hour Arbitration Course.
Finally, a designated self-study supplement and an examination (written, multiple choice) would be used to qualify a properly educated person for Registration as an Arbitrator.
3. Board Certified Arbitrators.
To become a Board Certified Arbitrator would require 40 additional hours of CLE, a serious test, 20 arbitrations over the past four years, and a minimum 20% of the lawyer's practice dedicated to Arbitration.
This is a standard similar to the other Board Certification standards.
Next, Moving on to Mediation
Once the ADR Arbitration program had all of the kinks worked out of it, then the issue of providing credentials for mediators might be appropriate.
After all, mediation is still an infant science and is no where near as formal, exact or as rigid in protocols and format as Arbitration. I think that the ADR Sections should take on the "easy" job first, then (assuming success) they can re-evaluate the hard job and get that one done, following the same model.
Until then, Courts, parties and attorneys will have to rely upon word of mouth, their own experiences, and the standards that each of the groups adopts.
Of course I am biased by my experiences. Last month in church I was asked why a group of non-lawyers was allowed to advertise that they provided legal services. Their advertisements stated the required disclaimer. "Not Certified by the Texas Board of Legal Certification" was taken to mean (by my friend at church) that the law firm did not contain licensed lawyers. (In Texas the statement means that the person is a lawyer who has not been board certified). That mistake, thinking "not certified = not a lawyer" is a much too common apprehension.
I do not want to see that misunderstanding happen with mediation, nor do I want to see one model or theory enshrined as correct and the rest regulated as improper, immoral or unethical.
Finally, I do not want to see certification used as a tool to cut off otherwise qualified mediators in a positional power play or grab for market share, whether between attorneys and retired judges, legal professionals and non-lawyers, or any other groups.
It is my hope that the bar associations will not rush into any particular certification program but will instead give the possibilities rational consideration, looking at all the elements, and then try out the theories in increments, from most exact to least.
After all, we as mediators wouldn't mediate something by fiat and without consensus. Why should we approach the regulation of mediators any differently?
This Website is by Stephen R.
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