Mediators are either selected by the parties (read: attorneys), or court appointed if the parties have been unable to select a mediator. We have a Dispute Resolution Commission that is part of our court system and the General Assembly and the State Supreme Court establishes the rules for the court ordered mediation, the requirements for certification, and the ethical code by which we practice. This certification process does not prefer one type of mediation approach over another. We are required to complete observations, and we’re free to select to observe any certified mediator as long as the parties agree to have us observe.

I do find, however, that the NC Bar Association promulgates the message that the only decent mediators are those who’ve practiced law in the area concerned in the case at hand. This creates, of course, a good ole white boys’ network. To further create exclusivity, an “Academy” has been formed for those who’ve been mediating since the mid 1990s. This, of course, places favorable emphasis on the “classic” model.

I tend to see styles of mediation along the continuum of the needs of the parties. My former life was in higher education and I’ve also coached. In trying to reach the student, you need a collection of methods/approaches from which to choose to help her/him “get it”. In my experience, where mediation is court ordered and attorneys are involved, the process tends to follow the classic format of joint opening then separate negotiating camps (perhaps because that is expected and considered the norm, rather than what might be more appropriate for the parties’ needs). However, so many more disputes/conflicts exist that affect daily lives that need mediation and that shouldn’t get into the legal system at all. Getting to this public with the education (or marketing) about what mediation is (a full range of styles and approaches), and its efficacy for resolving differences effectively and constructively is an important challenge to be addressed…whether through a certification/licensure program or via a professional organization that exists to do more than just control entry to the practice of mediation. Or perhaps through a grassroots effort?

Offered post exercise and pre-shower…how’s that?

Ellen

However, I take issue with your point that, “I believe that what people want in conflict is someone to make a decision. They want an arbitrator, adjudicator, lawyer or judge. It’s rather unfair to knock evaluative mediators and lawyer mediators and to fight amongst ourselves when it’s the public that is the real driving force here.” The research actually goes against this.

If you are a lawyer who is evaluative, this is likely to be your perspective since most evaluative mediators receive cases from either courts or other lawyers who, by their very nature, are oriented to desiring decisions. That doesn’t necessarily mean that the clients actually want this because the clients are rarely the ones who choose the forum or style of mediation. In the legal arena, an evaluative bent to mediation is often expected, a la JAMS (this from a former JAMS mediator who has done evaluative and facilitative mediation).

In other venues, evaluative mediation is a no-no! Try selling evaluative mediation in a workplace setting – or in public policy disputes.

And don’t get me started on why and how “alternative” dispute resolution has been totally corrupted by the courts.

The second reason, and more powerful one, which will I believe will allow lawyer mediators to do better out of regulation, is the issue of human nature. I believe that what people want in conflict is someone to make a decision. They want an arbitrator, adjudicator, lawyer or judge. It’s rather unfair to knock evaluative mediators and lawyer mediators and to fight amongst ourselves when it’s the public that is the real driving force here. The reason for this, and going wider again, is that we are largely a society of individualists, particularly when it comes to dispute and conflict. It’s a cultural thing; we lack an emphasis on relationships and particularly a relational approach to difficulties. When in dispute people want a decision, that is not a relational response. It’s a real achievement to come up with a decision that offers a sense of justice for both, and here we risk the win-lose, zero sum outcomes; which again chip away at the notion of relationship in our society.

Regulation is one aspect, information, education, social influence and cultural change should also be there. Our standards should be encouraging people to make the best choice, justice systems are interested in economic, proportionate and efficient methods of dispute resolution. There should be a stronger push for the efficacy of facilitative and transformative methods. The difficulty is similar to counselling; like trying to compare person centred approaches with cognitive behavioural therapy (CBT), one user led and responsive the other clearly measurable and sold as being done in 6 sessions. Both can be claimed for either, but the labels are there.

Legislation is making great progress, increasing pushing dispute resolution as an option in the early stages in broad range of sectors and disciplines. We need to push more, for choice, variety, for best fit. Certification needs to avoid favouring the neat, measurable forms of mediation. I’d like to see a regulation put also a push for diversity of practice, to influence infrastructure, market place, funding streams and development capital. Social value and cultural change should be in there as much as quantitative measures and research validation.

Finally, on a different note, these conversations started with a bias towards the shower as a thinking zone. I’d like to argue that, and push for a renaissance on the bath as a far superior thinking environment. The shower pales in comparison, the bath is a much more hallowed domain for creativity, it has a greater provenance, a distinguished history (“eureka”) and is now sadly neglected in society. Bring back the bath! Incorporate it into the certification process under personal development, reflective practice or CPD; you know you’re attracted to the idea!

As to certifying only a particular style of mediation, sure – why not – it doesn’t mean anything anyway. You can become a certified venusian mediator if you want. I don’t really care.

I come from a profession of origin (psychology) in which I hold a license and in which there are many, many “schools” or “styles” of practice, ranging from cognitive-behavioral to positive psychology to narrative psychology to…you name it – it probably exits.

Licensing occurs through measuring a body of knowledge that applicants have learned – or at least memorized for the exam – and on knowledge of ethical practice.

I use psychology as an example because it resonates with mediation for me – the sheer variety of issues ranging from personality disorders to couples problems to eating disorders (in mediation, types of conflicts such as environmental, divorce, commercial, etc – and please don’t read these as directly analogous to the psychological issues I listed! I haven’t had my coffee yet!)

Next is the question of what is certification for? To protect the consumer from “bad” mediators? If so, how do we define bad? Generally as unethical, not as someone who is practicing a particular style of mediation. Is is to limit the number of mediators so as to limit competition? I won’t even begin to address that one. How about assist us with marketing? That would really help and I would welcome it but value a wide range of styles and approaches.

Licensing, however, has teeth. It means that you have met criteria, passed an exam (same as certification but here comes the good part) and are subject to real oversight and disciplinary action, including loss of licensing, if you do bad stuff to people! Like practice unethically, steal, etc. Now that has some teeth!

Based on how you’ve described your own approach, I think that you and I practice in similar ways and are kindred spirits at the table. Like you, I embrace the approach that allows disputants to define as broadly as possible the issues – an approach Len Riskin and Nancy Welsh described in Is that All There is? The ‘Problem’ in Court-Oriented Mediation, a look at the extent to which court-oriented mediation today reflects the dominance and preferences of lawyers and insurance claims adjusters. I agree that ideally all mediators should be conversant with different approaches to be fully flexible when working with parties. You poetically capture the potential and possibilities that the facilitative model can reveal, giving way to that moment when “the parties struggle through the chaos and can truly get to the light”. Well said.

But here’s my question for you. As powerfully effective as facilitative mediation can be, isn’t it simply one way and one way only? I know evaluative mediators who practice with tremendous skill, deploying a range of techniques, including facilitative ones, to help parties define issues and reach settlement. And I know facilitative mediators who fold in evaluative practices, using them strategically to best serve the parties. What of them?

And I keep coming back to the parties themselves and the importance of self-determination. What if the parties truly want to narrowly define the issues? What if the parties really want to know what a subject matter expert thinks, at the end of a long day of striving when impasse remains unbroken? Is it any less mediation simply because the mediator – who, unlike true evaluators like judges and arbitrators, has no power to impose a decision – shares an expert’s viewpoint? Trying to tease apart all these strands and threads of practice and technique is I think unproductive and ultimately impractical.

But if it is so important that we must define mediation once and for all, and I’m not yet persuaded that the time has arrived to do that, we cannot do it successfully unless we bring all practitioners to the table to discuss it. My concern is that at the outset, one style of mediation has seemingly been privileged over all others. That seems to me an unfortunate starting point. Like you, I think that facilitative mediation, with its capacity to define issues widely and address a whole host of concerns – legal, emotional, interpersonal, behavioral, community, economic, and so on – offers a great deal. However, I don’t think that gives me the right to say that it alone deserves the name “mediation”.

Nancy, if that’s what you call “rambling”, I look forward to what you do when you have rigorously marshaled your thoughts! You wrote honestly and compellingly, and I am grateful to you for your comment.

There is one issue I’d be curious in turn now for your thoughts on.

In this post, I described ACR as “dysfunctional” and “unresponsive to the concerns of its members” – a view I hold, regretfully, as a one-time member and a member of the board for several years of one of ACR’s most active chapters, New England. I wish it were otherwise, but given my own experience and observations, I do not believe ACR has the credibility to address the issue of certification. I’m not alone in thinking that. (If you’re curious why I think so critically of ACR, you can read a post I wrote about “Serving and keeping your membership – an open letter to organizations for ADR professionals” – all of the points I make capture the ways in which ACR fell down on the job.) I have to ask, why is ACR still relevant? and why should any of us – particularly those of us who abandoned it – trust ACR to address the issue of certification in a way that does honor to the full spectrum of the mediation community?

Would love to know what you think of my question here.
Just as a mediation process that ends in an arbitrated decision has been given a specific name of ‘med-arb,’ perhaps evaluative mediation should be renamed ‘med-eval’ so there would be a better understanding of the process into which one is entering.

I personally am a mediator (family and workplace) and recently have become a parenting coordinator. I consider myself someone who can work within various models of mediation, i.e. facilitative, directive, transformative, all within a given mediation, and I try to gear my approach to the parties’ personalities, the kind of case, the goals of the parties, if represented, who are they representatives and their styles of advocacy, the expectations of the mediation process by parties (and representatives), what is happening in the mediation at a given moment, etc. Personally, I think a skilled mediator should be knowledgeable about all of the models, and know when to apply some methods over others. But always, the moment in mediation I prize the most, regardless of what model I am using, is when the parties struggle through the chaos and can truly get to the light at the end of the tunnel on their own. I don’t like to take that experience away from them by giving them the “right” answer, regardless of how strong the temptation. And besides, is the “right” answer a ‘legal’ right answer, an emotional “right” answer for this particular set of disputants, a “right” answer as to how a jurist might see the case, or a “right” answer given by Judge A vs Judge B? My good friend, colleague and mentor, Steve Abel, is known for teaching us that going to court is like playing darts, except the dart board is constantly moving and you are backwards and blindfolded. So, “evaluative’ is a very tricky question on many counts.
Bottom line, if someone wants an evaluation after trying to settle, why not call it by its proper name of “Early Neutral Evaluation.” It is a perfectly respectable ADR process. Why must we pretend it is mediation, if we know from the beginning that the ‘mediator’ is going to give an evaluation before it all ends. It is similar to the tension I see between the collaborative law and cooperative law practitioners. Knowing that you can go to court, by not signing the disqualification clause, can have a huge impact on how the case is handled by the parties and the attorneys. I would say the same of mediation – knowing the mediator is going to give the right answer before it all ends just takes away the parties’ taking responsibility, and no doubt, takes away what could be a very positive experience.
I’ve certainly rambled on. Would love to hear your thoughts.

As you point out, Erickson does have some legitimate concerns. The problem lies with his approach and his reasoning, particularly his zero-sum view of mediation practice as either “good” (facilitative) or not (evaluative and directive).

There are certainly mediators out there giving us all a bad name, but it’s not just the “unqualified mediators” (and I’m not sure precisely what that means or how we define the reverse, “qualified”) we have to worry about – there are mediators out there who’ve been practicing for years and who have undergone training who are nonetheless busy giving the profession a black eye. I agree that it serves no one well when evaluative settlement techniques masquerade as mediation, but there are examples from the other perspective, and I have heard trial lawyers with legitimate beefs about facilitative mediators who did little more than following their training and demonstrate “active listening” without moving the negotiations forward.

I agree that we need to define ethical practices – but we already have attempted to have done so, as the numerous examples of rules of professional conduct for mediators attest. That has done little to keep the quacks out because they lack regulatory teeth and, as Michael Moffitt has correctly pointed out in several well reasoned articles, offer little practical value or guidance. We can and should do better, a point I think that you and I concur on.

And I agree that as a field at some point — for the sake of public confidence and for the integrity of our profession — we will need to confront the question of credentialing together. However, it’s not so easy. For a rich discussion of the issue of credentialing, along with the very sensible questions we must face before we pursue it further, please scroll down to read the comments to this post on Vickie Pynchon’s negotiation blog.

I hope no one mistakes my post for opposition to standards of practice. Of course we need them. But my points are this: as we develop those standards, let’s be inclusive. Let’s strive for nuance in our discussions, not a reductionist view of mediation practice. And let’s keep the client, not our own professional self-interest, at the fore.

Debbie, thanks for raising great questions.

Erickson’s concerns are that 1) mediation is gaining the reputation of being a manipulative and coercive process and 2) unqualified mediators are hanging out their shingles and giving us all a bad name. It seems that people are reacting negatively to the phrase “evaluative settlement conferencing techniques masquerading as mediation,” and yet I imagine that most or all of us know of instances where that shoe fits.

Professionals in other fields found that they needed to define ethical practices and require certification to keep out the quacks. Is that not possible in this field?

Personally I’ve never had an issue proceed to arbitration in my business career, but through mediating issues the results have been that everyone involved comes to realize other “dimensions” and “dynamics” that had not considered and typically they stop, for good and don’t move forward, or they, sometimes, “tear apart” what was not working and begin again, most often leaving out the identified issue (this could be an individual) that was a barrier or dysfunction. They solve it themselves without fear of formal judicial intervention, even though contractual agreements set up before hand provide for such outcomes. Believe me, I’ve seen situation where arbitration would have been better if not outright full legal due coarse, but unless there “money in it” or it’s “politically charged” most attorneys simply leave it alone and don’t address it at all.

In the end, Erikson presents the typical “double edged sword” I already have to deal with in my practice daily, especially being positioned in corporate markets. He’s advocating a genuine certification for “true and virtuous” mediation over the legal form that everyone recognizes is “different” from arbitration… so let him advocate it because his “discussion” will cause people to think and a more “differentiated market”, which is what we all want, will eventually emerge. If I knew I could get a certification that “differentiated” me from the ABA and the legal profession I would. My interest my whole life has been to help people solve issues outside of any “legal threat” structure, I have my “ways” and it works. And yes, I’ve broken the law by not complying with the fine print stating that parties WILL negotiate and mediate to solve issues with legal counsel, but no one wanted this, we ignored it and simply moved “past” the restriction.

No doubt, this discussion could, as usual, go on indefinitely…