If you want to make peace, you don’t talk to your friends. You talk to your enemies.

- Moshe Dayan

The Association for Conflict Resolution (ACR) and the American Bar Association (ABA) Section of Dispute Resolution are conducting an electronic survey regarding a proposed national certification program for mediators. ACR sent out an email regarding this survey to its members, the full text of which is reproduced below. Please feel free to pass this along.

The Association for Conflict Resolution (ACR) and the American Bar Association (ABA) Section of Dispute Resolution are exploring the feasibility of a proposed new national certification program for mediators. Certification is the voluntary process by which a nongovernmental organization grants recognition to an individual who has demonstrated certain knowledge, skills and abilities. Certification would not be tied to the completion of a specific course of education or training. We would now like to solicit the views of members, friends, and colleagues to help guide our thinking. We have created a short electronic survey to gather information on the issues we face in creating a certification program. Completing the survey will take no more than 10 minutes of your time. All individual responses will be kept confidential and the results will be aggregated electronically and made available to those taking the survey. In addition to completing the survey, please pass this invitation on to others who you feel would be interested in providing input into a national certification program for mediators. Also feel free to post

this invitation on your webpage.

If you have any questions about the survey, please contact Mark Wilson from the Association for Conflict Resolution at mwilson@ACRnet.org, or Daniel Taggart from the ABA’s Section of Dispute Resolution Section at taggartd@staff.abanet.org.

To participate in the survey, please go to: http://www.zoomerang.com/survey.zgi?p=WEB2243RLWV8U9

Please complete the survey by February 14, 2005

Thank you,

David A. Hart, ACR Chief Executive Officer

Ellen M. Miller, Director of the ABA Section of Dispute Resolution

Association for Conflict Resolution

Although mediation has exploded in popularity here in the U.S. over the last several decades, mediation itself possesses a history that is centuries old. It has been practiced since ancient times in China, Rome, Greece, and Africa and other places around the world. In the early days of this country native American traditions included mediation and conciliation to preserve relationships and promote harmony, and Puritans, and later on, the Quakers, utilized forms of mediation to address disputes within their communities.

Mediation is woven deeply into the traditions of many cultures. For an interesting example of mediation within a cultural context, read the article in a recent issue of The Green Bay Press-Gazette about the use of traditional methods of resolving disputes by the Hmong in Wisconsin.

The New England Patriots beat the Pittsburgh Steelers last night, 41-27, to become AFC Champions for the second year straight. In honor of this spectacular achievement, I’m posting the following quote from the immortal Vince Lombardi:

People who work together will win, whether it be against complex football defenses, or the problems of modern society.

Community associations—condominium or homeowners’ associations—are booming. According to the Community Association Institute, over a quarter of a million community associations are in existence here in the U.S. Almost 50 million Americans live in an association-managed community—or one out of every 6 Americans.

There are advantages to living in an association-managed community—in some of the tonier communities residents share access to such amenities as tennis courts and swimming pools.

But there’s a down side as well. As a means of preserving property values, community associations are typically governed by rules and covenants which place restrictions on what property owners can do with their property. These rules, sometimes arbitrarily enforced, can place stringent limits on property owners, imposing strict rules on everything from mailboxes and flags to landscaping and exterior paint colors.

Needless to say, disagreement often arises as to how these rules should be enforced or interpreted. This generates a huge amount of misery and litigation for association residents who run afoul of these rules.

As someone who has mediated disputes involving condominium associations, I know from experience that these kinds of conflicts can be highly contentious. Good fences do not always make good neighbors.

The California Law Revision Commission is considering a proposal to establish an agency with oversight of homeowners’ associations. The services and resources that would be available through such an agency would include mediation services.

That’s a great way to mend fences.

Thanks to my friend and colleague Moshe Cohen for alerting me to this story.

The latest edition of the yellow pages just landed on my front steps. I was looking through the “Mediation” section and came across a listing for a meditation studio. That happens all the time—people seem to have a tough time telling the difference between “mediation” and “meditation”. Mediation is always getting confused with something else. It’s enough to give even a well-adjusted mediator an identity crisis.

And if the news from Wisconsin is any indication, there are people in very high places who are more confused than anybody. The story goes like this…

The Wisconsin State Employees Union has been working without a contract since July 2003. Negotiations at this point are at a standstill. As a way to administer CPR to revive negotiations, the Union has invited Governor Jim Doyle and his administration to participate in mediation.

In a truly bizarre twist, Doyle rejected these overtures. Using reasoning straight out of Alice’s Adventures in Wonderland, a spokesperson for the administration explained, “We are deeply disappointed that Council 24 has decided to walk away from the negotiating table. We do not believe that now is the time to throw in the towel on negotiations…”

Someone apparently forgot to tell the governor that mediation is widely defined as “assisted negotiation”. If the administration ever does agree to mediate, let’s just hope they don’t show up with yoga mats and crystals.

There’s no doubt about it, America’s really gone to the dogs—and to the cats, hamsters, and goldfish, too. Americans spend some $5.4 billion annually on their pets. (We’re not the only ones—according to a survey conducted in the U.K., 7 out 10 lucky British dogs receive Christmas presents from their owners.)

Americans are clearly very devoted to their pets. Therefore it’s not surprising to learn that when couples divorce, one of the wrenching decisions that must be made is determining custody of beloved pets, according to an article in today’s Boston Globe by pet expert Gina Spadafori.

This is one of those emotionally charged issues that a mediator can help a couple discuss in a constructive way to make sure that the transition will go more smoothly for everyone involved—the couple themselves, the children, and the pets. And it’s better to make your own decisions about something so important than to leave it in the hands of a judge who may be allergic to cats, hates dogs, and doesn’t appreciate the special bond you share with your four-legged friend.

The January 10, 2005, Massachusetts Lawyers Weekly reported on a Massachusetts Superior Court case which could have significant repercussions for the mediation field in Massachusetts. This case raises two issues of great importance to dispute resolution practitioners: 1) confidentiality within mediation and 2) how mediation and the role of the mediator are defined.

In a story captioned “Company That Ignored Mediator Could Be Liable for Bad Faith”, Massachusetts Lawyers Weekly reported that “An insurance company that ignored the advice of mediators during post-trial negotiations could be held liable for bad faith settlement practices.”

(To download the decision in PDF format, please click here.)

In this case, Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company (Lawyers Weekly No. 12-406-04) (21 pages) (Sikora, J.) (Suffolk Superior Court) (Civil Action No. 95-3079-A) (Dec. 16, 2004), the Superior Court judge denied the motion for summary judgment of the defendant Employers Insurance of Wausau (“Wausau”) against the Chapter 93A and Chapter 176D claims by the plaintiff Massachusetts Port Authority (“MassPort”).

(For those readers unfamiliar with Massachusetts law, Chapter 93A is more commonly known as the Massachusetts Consumer Protection Statute, and Chapter 176D protects consumers against unfair or deceptive acts or practices committed specifically by insurance companies.)

The court concluded that there was sufficient evidence of bad faith to warrant the denial of Wausau’s motion for summary judgment. This evidence included the defendant’s failure to heed advice from two different mediators.

In the words of the court, “the detailed chronology recited above contains abundant indications of issues of irrational or bad faith behavior…includ[ing]…Wausau’s imperviousness to the views of mediator Steadman…[and] Wausau’s continuing immobility against the views of mediator Shubow”. Decision at 12. (Emphasis mine.)

This post will consider this decision and the possible ramifications it holds for mediators in Massachusetts.

A. Mediation and confidentiality.

The first issue this case raises is relatively straightforward. Under Massachusetts law, communications made during the course of a mediation are privileged. The relevant statute, Massachusetts General Laws Chapter 233, Section 23C provides that:

All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.

The law is clear: such communications are confidential and cannot be disclosed, as they evidently were here, in “any judicial or administrative proceeding”. The only exception the statute allows for is the mediation of labor disputes, which this case plainly did not involve.

The question then is how in the world did evidence of Wausau’s refusal to consider the mediators’ opinions come in? It was inadmissible as a matter of law (at least in the opinion of this humble blogger).

Our analysis does not end here, however. There is a second paragraph to this statute which is also important, since it defines who a mediator is for purposes of the statute:

For the purposes of this section a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate
by a judicial or governmental body.

This means that the statute is triggered when the mediator a) enters into a written agreement with all the parties (a document mediators often refer to as an “Agreement to Mediate”), b) has completed at least 30 hours of training and c) meets one of three additional requirements (experience, accountability to a dispute resolution organization, or appointment by a judicial or governmental body).

This therefore raises many threshold questions which the MassPort decision leaves unanswered. Were there no written agreements between the mediators and the parties? Did the mediators fail to meet the requirements specified by the statute? Was this perhaps not a mediation at all, despite the fact that the judge in his decision uses the terms “mediator” and “mediation”?

If we assume that this was in fact a mediation, and if we assume next that the mediators met the requirements specified by the statute, then how did evidence of Wausau’s “imperviousness to the views” of the mediators come in when communications made during the course of a mediation are privileged and confidential? The answer to this question may well lie in the pleadings themselves or in the motion for summary judgment and the opposition to the motion that were filed with the court by Wausau and MassPort.

It is true that one of the questions which the courts have not yet addressed is to whom does the privilege belong—to the mediator or the parties, and who has the ability to waive that privilege. It is a topic on which mediators themselves are divided. I think a very strong argument could be made that the privilege belongs to both. And after all, settlement is to be encouraged, not discouraged. Mediation is an attractive option for disputants precisely because of the privacy and confidentiality it affords, giving parties the opportunity to talk through difficult issues and negotiate in confidence. (For a discussion of the privilege and the rationale behind confidentiality in mediation, see the opinion of the single Massachusetts Appeals Court justice in Leary v. Geoghan, Appeals Court Docket No.: 2002-J-0435.)

B. The definition of mediation and the mediator’s role.

The other issue this case raises is a complicated one.

Mediation is often (although not always, by any means) a facilitative process in which the neutral has no power or authority to impose a decision that binds the parties. The mediator assists the parties in negotiating with each other and as part of that process can assist each of them in realistically assessing the strengths and weaknesses of their own cases. (This stands in contrast to arbitration, in which an arbitrator is hired specifically to evaluate the parties’ cases and render a decision that is usually final and binding.)

Mediation is based in part upon the widely-accepted principle of party self-determination—it is up to the parties, not the mediator, to determine the outcome of the mediation. (See, for example, The Model Standards for Conduct developed through a joint effort of the American Arbitration Association, the American Bar Association Section of Dispute Resolution, and the Society for Professionals in Dispute Resolution, which provides that “Self-determination is the fundamental principle of mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement…The primary role of the mediator is to facilitate a voluntary resolution of a dispute.” (Emphasis mine.) See also the Supreme Judicial Court Uniform Rules on Dispute Resolution, Rule 9 (Ethical Standards), in particular Rules 9(c)(iv) and (vi), which provide respectively that “A neutral may use his or her knowledge to inform the parties deliberations, but shall not provide legal advice, counseling, or other professional services in connection with the dispute resolution process” and that “[i]n mediation, case evaluation, and other processes whose outcome depends upon the agreement of the parties, the neutral shall not coerce the parties in any manner to reach agreement.” (Emphasis mine.)

Part of what makes analysis of this issue so challenging is that there is much disagreement within the mediation community itself as to what constitutes the practice of mediation and how the mediator’s role is defined. There are a number of schools of philosophy of mediation practice, and there exist different models based on those philosophies. These models include the transformative, the facilitative (probably the most commonly taught in mediation training programs), and the evaluative. (For an analysis of these different philosophies, see the article by Zena D. Zumeta on Mediate.com.)

It may be significant that the mediators referred to in this case were judges, who tend to have an evaluative rather than a facilitative or transformative style. In evaluative mediation, mediators do make predictions about how judges might rule with respect to the claims and defenses each party raises.

It is certainly possible that the processes in which MassPort and Wausau participated were not mediations at all. It is not uncommon for dispute resolution professionals to engage in an activity which they call mediation but which is in fact another dispute resolution process entirely and more closely resembles case evaluation or a settlement conference.

In the MassPort case, the Superior Court judge endows the mediators with an authority and power which many in the dispute resolution community would argue that mediators typically do not (and should not) have. Whether to reach agreement or not in mediation is voluntary. A mediator does not possess the power to order parties to reach agreement or to impose a binding decision on the parties (unless the parties have contractually agreed to this), regardless of whether the mediator is using an evaluative or facilitative approach.

It ultimately matters what kind of processes MassPort and Wausau participated in because the applicability of the Massachusetts mediation confidentiality statute turns upon whether these were mediations or another kind of process entirely. The answer may rest upon the signed writing entered into between these parties and the mediators. The decision itself, however, does not address this threshold issue.

It is clear that much confusion exists about what constitutes mediation and what does not, and what activities may or may not be defined as mediation. This is a problem for the field and one which practitioners need to address. We need clarity here, not just for judges deciding cases in which issues like these arise, but more importantly for the public which uses these services.

The fallout from this case on the mediation profession could be great. It is conceivable that this decision could act as a deterrent to parties contemplating mediation and drive away whole categories of disputants, particularly insurance companies who are major consumers of dispute resolution services. Why would anyone have any incentive to come to the mediation table at all when privilege can be disregarded and communications which a party believed were offered in confidence could later be introduced to that party’s detriment?

The good news is that this is a Superior Court decision and therefore carries relatively little weight in terms of setting judicial precedence. This will bear close watching, however, since there is always the likelihood that Wausau could appeal the denial of its motion, which means that this case could ultimately end up before the Supreme Judicial Court. And a decision from the highest court in the Commonwealth on an issue of this importance could hold serious consequences for the future of the mediation profession.

Many thanks to my friend and colleague Ericka Gray for bringing this case to my attention, as well as for the highly stimulating conversation about the issues raised by this decision.

I’m introducing a new feature here at MediationBlog. Every Monday I’ll be posting a “Mediation Quote of the Week”–a quotation relevant to mediation and conflict resolution.

Today is Martin Luther King Day. It therefore seems appropriate to offer up the following excerpt from one of Dr. King’s sermons:

…peace is not merely a distant goal we seek, but…a means by which we arrive at that goal. We must pursue peaceful ends through peaceful means. All of this is saying that, in the final analysis, means and ends must cohere because the end is preexistent in the means, and ultimately destructive means cannot bring about constructive ends…

Martin Luther King, Jr., 24 December 1967

As a soccer fan and a mediator, I was intrigued by a headline from the January 10, 2005, USAToday which read U.S. soccer players reject arbitration, propose mediation. Not surprising. While arbitration offers informality, privacy, and efficiency, making it an effective way to resolve disputes quickly, like litigation it produces win/lose outcomes which the disputing parties have no say in designing. Mediation, on the other hand, enables all sides to a dispute to negotiate together and produce results that will be fair and workable for everyone. The players score a goal for proposing mediation. I wish them all the best.

Plenty of cities and towns are getting hip to community mediation, as a story from ThisWeek Online entitled Mediation sometimes the cure for neighborhood disputes demonstrates. This story describes how the city of Burnsville, Minnesota, has found a way to address conflicts between neighbors by offering mediation services to city residents. What seems particularly successful about this program is the partnering among several city agencies and departments, including police, the zoning board, and others, along with the assistance of a mediator. The results of teamwork can be pretty impressive.

Doing some surfing this morning, I came across a terrific web site created by the Ohio Commission on Dispute Resolution and Conflict Management aimed at providing consumers with information on selecting a mediation training. This is definitely worth checking out, regardless of which state you happen to reside in.

One point this web site makes which is worth noting here–be skeptical of any organization that claims to provide “certification” upon completion of their training program. Find out exactly what “certification” means. Here in Massachusetts, for example, there exists no state agency that licenses or certifies mediators.

There are professional associations which do offer certification to its members, but that simply means that those professionals have met certain minimum requirements specified by the association.

I frequently get phone calls from people who are interested in becoming mediators. These people are motivated by a desire to help others, to transition into a more satisfying career, or to learn skills to help them do their current jobs more effectively. They come to me for help in finding a place where they can get training to help them achieve their goals.

What I typically discover is that the vast majority of these individuals do not know what questions they should be asking to help them choose the best training possible. They have no idea what they should be looking for in a training program. And that’s a big problem. While there are excellent programs providing mediation training, there are also some training programs that are woefully inadequate. Be smart in choosing a training.

My purpose in writing this article is to raise public awareness of the importance of doing your homework when it comes to making decisions regarding choosing a mediation training. Taking a mediation training constitutes an investment in your professional development, representing an important commitment of both time and money. The last thing you want is to waste either one of those precious commodities.

If you are interested in undergoing training to become a mediator, be an educated consumer. Research trainers and training programs carefully before making a commitment. The following questions were developed to assist you in gathering the information you will need to make an informed decision regarding the selection of an appropriate mediation training program.

1. What preliminary questions should I ask?

At present, there is no uniform regulatory scheme governing the practice of mediation, and, unlike other professions, such as law or medicine, there is no formal licensing or credentialing of mediators. States and governmental bodies such as courts set forth different requirements for mediators and mediation practice, so you should find out what requirements or qualifications standards for mediators are specified by the state you plan to practice in. (See Section 3, below, for information on Massachusetts.) A lead trainer or director of a training program should be familiar with these requirements.

Second, even within the field there are differing perspectives on how mediation itself should be defined and what constitutes the practice of mediation. You should be aware that there are different models and approaches—facilitative, transformative and evaluative—in mediation practice which define the mediator’s role in different ways. The facilitative is probably the best-known and most commonly taught. Be sure to find out what philosophy the training program utilizes and what core beliefs and values the program will teach participants.

Third, find out from the lead trainer what kinds of skills and techniques they believe are integral to effective mediation practice. Ask what the training will prepare students for upon its conclusion. Ask whether the program utilizes solo or co-mediation and why.

Fourth, in addition to inquiring about the program’s philosophy, it is also important to ask about the design of the mediation training program. How will skills and concepts be taught? What information will students receive on ethical guidelines and issues? What is the student to teacher ratio? How is time allocated among presentation, group discussion, and application, including role-playing? What kinds of materials, including a manual, will be provided to students? What is the bibliography for this program?

2. What should I look for in a lead trainer and training faculty?

The Mediation Training Standards developed by the Massachusetts Association of Mediation Programs and Practitioners provide sound recommendations for trainer qualifications: “The mediation trainer should have extensive experience as a mediator in order to be accepted as a credible teacher and role model. Thorough knowledge of the mediation process and a mediator’s techniques and strategic choices is also essential.” Added to this should be a comprehensive understanding of the ethical rules governing mediator conduct.

Find out what you can about the lead trainer, other members of the training faculty, and their professional backgrounds. What kind of work do they do in the mediation field? What types of cases do they mediate? How long have they been mediating? How long has this organization been providing training services? How many individuals have they trained?

Other essential qualifications to look for include whether the trainers

• are active in the dispute resolution field through membership in professional associations, dispute resolution panels, and organizations committed to the advancement of dispute resolution
• are committed to best practices and continuing education by regularly upgrading their skills and theoretical grounding on an ongoing basis through advanced training and attendance at conferences and other educational programs
• have a demonstrated commitment to the dispute resolution community through public awareness initiatives and support of other dispute resolution professionals
• through their connections in the dispute resolution community can help you identify and network with dispute resolution professionals and others who can provide mentoring, guidance, or information to help you get started in the mediation field

I cannot emphasize how important these characteristics and qualifications are. There do exist mediation trainings conducted by wholly unqualified trainers, so it is critical to find out all you can about the trainers. Definitely request to see bios or resumes for trainers as well.

3. How many hours of training should I receive?

The answer to that question depends upon what state you intend to practice in. Here in Massachusetts, state law specifies a minimum of 30 hours of training in order for mediators to be covered by the mediator confidentiality statute (Massachusetts General Laws Chapter 233, § 23C). In addition, the Supreme Judicial Court recently created Guidelines for Implementation of Qualifications Standards for Neutrals which set forth requirements for mediators in court-connected dispute resolution programs. These Guidelines specify a minimum of 30 hours of mediation training for mediators, with 36 to 40 hours recommended. The more hours of training that a mediation training provides participants, the more comprehensive and in-depth the training is likely to be.

To see what other states require, there is a draft report entitled State Mediator Rosters and Qualifications prepared by the Institute of Government, College of Professional Studies at the University of Arkansas at Little Rock, which provides an overview of the requirements specified by the 50 states for mediators.

4. What should a training curriculum cover?

At a minimum, a basic mediation training curriculum will typically cover the following topics:

• Overview of ADR processes
• Principles of mediation
• Stages and goals of mediation process
• Role of mediator
• Nature of conflict/behaviors in conflict
• Mediation skills, including negotiation skills, interactive listening, question-asking, use of neutral language, reframing, interest identification, addressing barriers to agreement, agreement writing
• Values and bias awareness
• Cultural diversity
• Power imbalance
• Working with attorneys and representatives of parties
• Ethical issues, including confidentiality, impartiality, informed consent, conflict of interest, fees, responsibilities to 3rd parties, advertising and soliciting, withdrawal by mediator

This material is typically taught utilizing a range of teaching methods, including lecture, large and small group discussion, interactive exercises, and coached role-playing. Trainings should provide at least three opportunities for a participant to play a mediator in coached role-playing under the supervision of an experienced mediator, who will provide feedback to support and facilitate learning.

5. What happens after a training? How can I gain mediation experience and mentoring?

Before you take a basic mediation training offered through an organization, find out what opportunities are available to obtain mediation experience after the training is over. Such opportunities are typically available on a volunteer basis, usually through small claims cases at local district courts. Beginning mediators are teamed up with more experienced mediators for coaching and support in developing skills. This can be an effective way to build the skills you acquired through training and to become acquainted with others in the field. There is generally no cost to the volunteer mediator for participating in such a program, but you should be prepared to ask whether there are any costs or membership fees associated with volunteering.

In addition, organizations may offer practica to individuals who have completed a mediation program. A practicum provides intensive supervision and coaching to newly trained mediators by experienced and highly qualified mentors. Its purpose is to increase a mediator’s effectiveness and support the acquisition, development and refinement of skills and techniques. Enrollment is usually limited, and organizations typically charge tuition for such programs.

6. What can I expect to pay for basic mediation training?

Cost can range from as little as $600 for training offered through an all-volunteer community mediation program to several thousand dollars. In the Greater Boston area, you can expect to pay in the $650 to $1800 range for basic mediation training.

A basic mediation training should be viewed as an investment in your professional development. Although there is no licensing or certification of mediators in the Commonwealth of Massachusetts, mediators nonetheless consider themselves to be professionals. Professionals such as social workers, psychologists, attorneys, and others invest in getting the education they need to perform their jobs effectively, including post-secondary and advanced degrees and continuing education. Aspiring mediators should do likewise in selecting carefully the training that will prepare them to become effective professionals. Therefore, you should approach mediation training in the same way you would any other professional training by choosing a training program that will help you achieve your professional and personal goals. A quality mediation training may cost more, but it provides greater benefit in the long run.

7. Where can I get mediation training?

For those of you in the New England area, information on upcoming training programs may be found on the web site for the Association for Conflict Resolution, New England Chapter (NE-ACR), a non-profit association “dedicated to serving its members and the public by providing expertise and resources on the field of conflict resolution…[Its] members are mediators, arbitrators, facilitators and educators from different backgrounds and professions from across the six New England states.” NE-ACR’s goal is “to build the understanding and use of quality conflict resolution services.” Click on the link for “ADR Calendar” for a list of trainings offered around the New England area. However, be aware that NE-ACR cannot ensure the quality of the programs listed in its calendar–you still need to do your homework before making any commitment.

That’s one way to find trainings. You can also contact the leaders of professional associations for dispute resolution practitioners in your area and ask them for their recommendations. For those of you outside the New England area, the Association for Conflict Resolution is a good place to go to find local chapters in your area, as well as to locate professional mediators in your community. Find out from them what trainings they might recommend, and talk to a number of practitioners.

The important thing, however, is to do your homework. You’ll be glad you took the time.

[Important note: Since I published this post back in January 2005, I have revisited this issue. For further information on careers in mediation and choosing a mediation training, click here.]

Technorati tags: Mediation, mediation training, mediator certification

I frequently get phone calls from people who are interested in becoming mediators. These people are motivated by a desire to help others, to transition into a more satisfying career, or to learn skills to help them do their current jobs more effectively. They come to me for help in finding a place where they can get training to help them achieve their goals.

What I typically discover is that the vast majority of these individuals do not know what questions they should be asking to help them choose the best training possible. They have no idea what they should be looking for in a training program. And that’s a big problem. While there are excellent programs providing mediation training, there are also some training programs that are woefully inadequate. Be smart in choosing a training.

My purpose in writing this article is to raise public awareness of the importance of doing your homework when it comes to making decisions regarding choosing a mediation training. Taking a mediation training constitutes an investment in your professional development, representing an important commitment of both time and money. The last thing you want is to waste either one of those precious commodities.

If you are interested in undergoing training to become a mediator, be an educated consumer. Research trainers and training programs carefully before making a commitment. The following questions were developed to assist you in gathering the information you will need to make an informed decision regarding the selection of an appropriate mediation training program.

1. What preliminary questions should I ask?

At present, there is no uniform regulatory scheme governing the practice of mediation, and, unlike other professions, such as law or medicine, there is no formal licensing or credentialing of mediators. States and governmental bodies such as courts set forth different requirements for mediators and mediation practice, so you should find out what requirements or qualifications standards for mediators are specified by the state you plan to practice in. (See Section 3, below, for information on Massachusetts.) A lead trainer or director of a training program should be familiar with these requirements.

Second, even within the field there are differing perspectives on how mediation itself should be defined and what constitutes the practice of mediation. You should be aware that there are different models and approaches—facilitative, transformative and evaluative—in mediation practice which define the mediator’s role in different ways. The facilitative is probably the best-known and most commonly taught. Be sure to find out what philosophy the training program utilizes and what core beliefs and values the program will teach participants.

Third, find out from the lead trainer what kinds of skills and techniques they believe are integral to effective mediation practice. Ask what the training will prepare students for upon its conclusion. Ask whether the program utilizes solo or co-mediation and why.

Fourth, in addition to inquiring about the program’s philosophy, it is also important to ask about the design of the mediation training program. How will skills and concepts be taught? What information will students receive on ethical guidelines and issues? What is the student to teacher ratio? How is time allocated among presentation, group discussion, and application, including role-playing? What kinds of materials, including a manual, will be provided to students? What is the bibliography for this program?

2. What should I look for in a lead trainer and training faculty?

The Mediation Training Standards developed by the Massachusetts Association of Mediation Programs and Practitioners provide sound recommendations for trainer qualifications: “The mediation trainer should have extensive experience as a mediator in order to be accepted as a credible teacher and role model. Thorough knowledge of the mediation process and a mediator’s techniques and strategic choices is also essential.” Added to this should be a comprehensive understanding of the ethical rules governing mediator conduct.

Find out what you can about the lead trainer, other members of the training faculty, and their professional backgrounds. What kind of work do they do in the mediation field? What types of cases do they mediate? How long have they been mediating? How long has this organization been providing training services? How many individuals have they trained?

Other essential qualifications to look for include whether the trainers

• are active in the dispute resolution field through membership in professional associations, dispute resolution panels, and organizations committed to the advancement of dispute resolution
• are committed to best practices and continuing education by regularly upgrading their skills and theoretical grounding on an ongoing basis through advanced training and attendance at conferences and other educational programs
• have a demonstrated commitment to the dispute resolution community through public awareness initiatives and support of other dispute resolution professionals
• through their connections in the dispute resolution community can help you identify and network with dispute resolution professionals and others who can provide mentoring, guidance, or information to help you get started in the mediation field

I cannot emphasize how important these characteristics and qualifications are. There do exist mediation trainings conducted by wholly unqualified trainers, so it is critical to find out all you can about the trainers. Definitely request to see bios or resumes for trainers as well.

3. How many hours of training should I receive?

The answer to that question depends upon what state you intend to practice in. Here in Massachusetts, state law specifies a minimum of 30 hours of training in order for mediators to be covered by the mediator confidentiality statute (Massachusetts General Laws Chapter 233, § 23C). In addition, the Supreme Judicial Court recently created Guidelines for Implementation of Qualifications Standards for Neutrals which set forth requirements for mediators in court-connected dispute resolution programs. These Guidelines specify a minimum of 30 hours of mediation training for mediators, with 36 to 40 hours recommended. The more hours of training that a mediation training provides participants, the more comprehensive and in-depth the training is likely to be.

To see what other states require, there is a draft report entitled State Mediator Rosters and Qualifications prepared by the Institute of Government, College of Professional Studies at the University of Arkansas at Little Rock, which provides an overview of the requirements specified by the 50 states for mediators.

4. What should a training curriculum cover?

At a minimum, a basic mediation training curriculum will typically cover the following topics:

• Overview of ADR processes
• Principles of mediation
• Stages and goals of mediation process
• Role of mediator
• Nature of conflict/behaviors in conflict
• Mediation skills, including negotiation skills, interactive listening, question-asking, use of neutral language, reframing, interest identification, addressing barriers to agreement, agreement writing
• Values and bias awareness
• Cultural diversity
• Power imbalance
• Working with attorneys and representatives of parties
• Ethical issues, including confidentiality, impartiality, informed consent, conflict of interest, fees, responsibilities to 3rd parties, advertising and soliciting, withdrawal by mediator

This material is typically taught utilizing a range of teaching methods, including lecture, large and small group discussion, interactive exercises, and coached role-playing. Trainings should provide at least three opportunities for a participant to play a mediator in coached role-playing under the supervision of an experienced mediator, who will provide feedback to support and facilitate learning.

5. What happens after a training? How can I gain mediation experience and mentoring?

Before you take a basic mediation training offered through an organization, find out what opportunities are available to obtain mediation experience after the training is over. Such opportunities are typically available on a volunteer basis, usually through small claims cases at local district courts. Beginning mediators are teamed up with more experienced mediators for coaching and support in developing skills. This can be an effective way to build the skills you acquired through training and to become acquainted with others in the field. There is generally no cost to the volunteer mediator for participating in such a program, but you should be prepared to ask whether there are any costs or membership fees associated with volunteering.

In addition, organizations may offer practica to individuals who have completed a mediation program. A practicum provides intensive supervision and coaching to newly trained mediators by experienced and highly qualified mentors. Its purpose is to increase a mediator’s effectiveness and support the acquisition, development and refinement of skills and techniques. Enrollment is usually limited, and organizations typically charge tuition for such programs.

6. What can I expect to pay for basic mediation training?

Cost can range from as little as $600 for training offered through an all-volunteer community mediation program to several thousand dollars. In the Greater Boston area, you can expect to pay in the $650 to $1800 range for basic mediation training.

A basic mediation training should be viewed as an investment in your professional development. Although there is no licensing or certification of mediators in the Commonwealth of Massachusetts, mediators nonetheless consider themselves to be professionals. Professionals such as social workers, psychologists, attorneys, and others invest in getting the education they need to perform their jobs effectively, including post-secondary and advanced degrees and continuing education. Aspiring mediators should do likewise in selecting carefully the training that will prepare them to become effective professionals. Therefore, you should approach mediation training in the same way you would any other professional training by choosing a training program that will help you achieve your professional and personal goals. A quality mediation training may cost more, but it provides greater benefit in the long run.

7. Where can I get mediation training?

For those of you in the New England area, information on upcoming training programs may be found on the web site for the Association for Conflict Resolution, New England Chapter (NE-ACR), a non-profit association “dedicated to serving its members and the public by providing expertise and resources on the field of conflict resolution…[Its] members are mediators, arbitrators, facilitators and educators from different backgrounds and professions from across the six New England states.” NE-ACR’s goal is “to build the understanding and use of quality conflict resolution services.” Click on the link for “ADR Calendar” for a list of trainings offered around the New England area. However, be aware that NE-ACR cannot ensure the quality of the programs listed in its calendar–you still need to do your homework before making any commitment.

That’s one way to find trainings. You can also contact the leaders of professional associations for dispute resolution practitioners in your area and ask them for their recommendations. For those of you outside the New England area, the Association for Conflict Resolution is a good place to go to find local chapters in your area, as well as to locate professional mediators in your community. Find out from them what trainings they might recommend, and talk to a number of practitioners.

The important thing, however, is to do your homework. You’ll be glad you took the time.

[Important note: Since I published this post back in January 2005, I have revisited this issue. For further information on careers in mediation and choosing a mediation training, click here.]

Technorati tags: Mediation, mediation training, mediator certification

I’m Diane Levin, a mediator, trainer and attorney who’s been in the dispute resolution field for 10 years. I’m founder and co-principal of Partnering Solutions, LLC, which provides a full range of dispute resolution services to individuals, organizations, families and others seeking creative solutions to life and business challenges.

The integrity of the profession is important to many of us in the field, so among my goals is the promotion of best practices to encourage consumer confidence in the dispute resolution field.

As a practitioner, I get lots of phone calls from two main categories of information-seekers: people who are looking for a mediator on the one hand; and people who are interested in exploring training and careers in mediation on the other. I try to help both those kinds of people get the information they need to make informed choices.

This blog was created to provide people with information about the mediation field on such topics as:

For people looking for a mediator:



a Deciding whether mediation is the right process for your dispute.

a How to choose a mediator.

For people interested in a career in mediation:



a What do I need to know about the field and job opportunities?

a What kind of training should I have and where can I get training?

a What should I look for in a mediation training program?

a What happens when a mediation training is over? Where do I go from here?

a What can I do to build my skills and become an effective practitioner?

For mediation practitioners and trainers:

a Information about the field, including ethical issues, practice standards, and best practices.

a Online resources, including web sites and blogs.

a News about the mediation field–its uses, its applications, its successes, its future.

If there are topics you’d like to see covered, or have feedback to offer, you’re welcome to send it along to: mediationblog@verizon.net.

Thank you for visiting!