Comment: Ethical Duties of Mediation Trainers in the Promotion of Training Programs *

By David Plimpton

* This article appeared in SPIDR New England Update, Volume VI, Issue 1 (January 6, 1999) and SPIDR News, Volume 24, Number1/2, Winter/Spring 2000.  Used by permission of the Author and of SPIDR.

David Hoffman's President's Column in the last issue of SPIDR New England Update touches briefly upon the very important subject of the ethical duties of mediation trainers in the promotion of training programs. I am addressing this subject more fully in this article, because I strongly believe that addressing it forthrightly goes to the heart of our collective job of maintaining the integrity and high ethical standards of the ADR profession. In the past 10 years, many newly trained mediators have called me asking about ADR employment opportunities. Incredibly, most have been referred to me by their trainers, who know very well that there are few such opportunities.

I start with the premise that good mediation training has importance, value, and broad applicability to the lives and vocations of many. As a general proposition, more mediation training of more persons is a positive good.

My second premise is that although the ADR field may have great potential for the long-term future, there are unfortunately few employment opportunities in mediation. In addition, the hurdles for someone trying to establish an economically rewarding practice in mediation are almost insurmountable for some and only surmountable after a long period of effort and development for others. Even someone who is willing to start off as a volunteer mediator may find the competition stiff for mediator slots.

My third premise is that many mediation training programs are expensive and involve multi-day commitments and that many, if not most, people taking mediation training do so with the expectation, spoken or unspoken, that there exist career opportunities to match the skills for which they are being trained. They take training hoping to make a career change to mediation.

I offer the following from my admittedly unscientific survey of recent communications advertising mediation training: (1) 5 days (35 hours) - $950.00; (2) 3 days (20 hours) - $375.00; (3) 5 days (35 hours) - $900.00; (4) 6 days (36 hours) - $550.00; (5) 3 days (20 hours) - $750.00; (6) 5 days (30 hours) - $1195.00; (7) 3 days (20) hours - $725.00; (8) 4 days (30 hours) - $950.00. Several programs refer, at least obliquely, to developing opportunities to mediate, but most make no reference whatsoever to the status and availability of employment and other opportunities in the mediation field.

As a very senior ADR professional commented, according to David Hoffman's President's Column, the proliferation of mediation training programs is a "serious ethical problem." It is the combination of a growing number of expensive programs to train mediators in an environment of few economic opportunities for mediators, without any disclosure or explanation of this reality in the training programs, which creates the ethical problem. This issue is intertwined with the tension between maximizing economic opportunities (e.g., as trainers) in the ADR profession and the duty of the ADR professional to give full disclosure about the nature and value of ADR services and training.

In this context, it has been disturbing to me to see the proliferation of training programs which do not inform potential trainees of the limited employment opportunities in the ADR field. Trainers, in my view, have an ethical obligation not only to answer questions about opportunities if they are posed, but also to be candid about the economic realities in written communications to prospective trainees.

We expect lawyers to advise their clients about the availability of ADR and neutrals to disclose details, pros, cons, costs, conflicts, and other matters relating to prospective ADR processes. Why should we expect less of professional ADR trainers? It smacks of blaming the victim to suggest that the problem stems from the mistaken impression of trainees. Perhaps some trainees are less sophisticated and more naive than they should be. The same can be said of many clients and parties to ADR processes. It is our job to be candid even if it means they do not sign up for the representation, ADR process, or training. As one experienced Boston lawyer-mediator and NE SPIDR member has said:

"I think [this] is a disclosure item . . . that should be made a routine part of [training] promotional materials. New entrants to the field have no idea what the economics and demand is. If we are to remain a self-regulating practice, we need to develop our own regs. Yes, I know that makes life more regulated, but the training programs are a business, run for business reasons (for the most part) and should act accordingly."

Most professional codes in the ADR field call for honest and complete advertising and solicitation. International SPIDR's ethical standards of professional responsibility adopted in June, 1996 provide under advertising and solicitation:

All advertising must honestly represent the services to be rendered.

The Maine Association of Dispute Resolution Professional's Standards of Professional Conduct provide in Standard VII on Advertising and Solicitation:

Forms of advertising and solicitations which mislead or misrepresent are inappropriate.

Ethical codes also put a high value on disclosure regarding the mediation services and explanation of the basis for compensation, fees and charges. The AAA, ABA and SPIDR Standards of Conduct for Mediators provides in VIII on fees as follows:

The parties should be provided sufficient information about fees at the outset of the mediation to determine if they wish to obtain the services of a mediator.

By analogy to some of the ethical and professional guidelines discussed above, I believe it is clear that trainers should disclose fully in written materials and at the training the known opportunities, limits, and obstacles in mediation employment and professional practice opportunities.

I am unaware, in the limited research I was able to do in the preparation of this article, that this issue has been addressed directly in very much detail either by commentators or in ethical codes or guidelines. Kathy Birt addressed a related issue in the Spring 1994 issue of SPIDR New England News in an article entitled, "Is It Ethical to Offer Graduate Degrees in Mediation When There are So Few Jobs in the Field of Dispute Resolution?" As Kathy observes, and the situation has not changed in four years:

Although overall interest in the ADR field is growing exponentially, actual jobs in the field are few. At the same time, the number of people requesting and receiving training in ADR is increasing each year ... Some believe the field is becoming glutted and question whether the profession ought to encourage the continued training of yet more mediators ...

Kathy appears to conclude that it is a good thing to see colleges and universities offering advanced degrees in ADR because it helps give credibility and legitimacy to ADR. She also suggests that we should not be overly concerned with whether graduates of such degree programs will find employment because many look into the job market before they pursue an advanced degree and expect to earn income from other pursuits besides ADR. In addition, she notes that law schools are still training lawyers even though our society reflects an increasing number of unemployed attorneys.

Whether Kathy's conclusions are correct with respect to advanced degrees, I suggest that those taking training programs may be less sophisticated than those seeking advanced degrees and do not necessarily investigate the job market before they take expensive training programs. In addition, the fact that law schools continue to turn out lawyers even though most people would agree there are too many lawyers in our society cannot in any way justify a similar inappropriate or unethical approach with respect to mediation training programs.

David Hoffman believes we should train more mediators and more trainers in order to make mediation a skill we all use in our work and family lives, regardless of whether we get paid for it. That might be fine if trainers marketed training as a valuable life skill or of assistance to people in their jobs, businesses, and so forth (along with the explanation that the ability to take mediation skills beyond that into paying employment or professional activity is very difficult because of limited opportunities). However, I question whether most people would be willing to pay the tuition being charged for many mediation training programs with such a marketing and disclosure approach.

In addition, one might similarly argue that an ideal world would have more persons having a better knowledge and understanding of the law so that they could protect themselves in their dealings with others. Therefore, the argument would go: We should have more law schools because that will lead to better knowledge of the law on the part of more persons. One does not need a law degree to understand the law and one does not need to be trained as a professional mediator in order to improve one's skills in dealing with conflict.

I look forward to continued discussions on this subject, as well as clarification of the ethical standards governing promotional materials for mediation training programs.

DAVID PLIMPTON, ESQ.

Plimpton & Esposito
P. O. Box 2760
South Portland, Maine 04116-2760

Tel. 207/767/6565
Fax. 207/767/8111
E-mail: plimespo@gwi.net

David Plimpton is a graduate of Brown University and University of Pennsylvania Law School. Mr. Plimpton practiced law for over 33 years, having been with the Portland firm of Drummond Woodsum Plimpton & MacMahon (now Drummond Woodsum & MacMahon) from 1966 through 1994. In 1988 Mr. Plimpton established a professional dispute resolution practice, which he now conducts full-time. His experience includes service as a mediator, arbitrator, facilitator, hearing officer, referee, and special master in over 800 disputes involving the following areas: commercial, securities, real estate, construction, personal injury, disability, employment, workers' compensation, business, partnership, divorce, land use and environmental, organizational, and policy disputes. Mr. Plimpton is listed on the Panels of the American Arbitration Association, American Health Lawyers Association, National Employment Mediation Services, National Association of Securities Dealers, New York Stock Exchange, Private Adjudication Center, and Distinguished Neutrals of the CPR Institute for Dispute Resolution.

This essay is Copyright 2000 in David Plimpton, All rights Reserved. Used by permission.  Everything in the FAQ about not using materials without permission applies with the same vigor to this article.  If you want to use it, contact David Plimpton.  He is a dispute resolution professional after all, and very pleasant.

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