Comments on: Mediators pull plug on efforts to enact Uniform Mediation Act in Massachusetts

By: Diane Levin

Diane Levin — Thu, 22 Apr 2010 13:31:07 +0000

John, thanks for your comment! I couldn’t agree more. In my view it was indeed a mistake to make a statute bear more weight than it should have.

By: John G

John G — Tue, 13 Apr 2010 16:16:57 +0000

Too bad after all that work! But the dispute about the qualifications of mediators is a perfect illustration of the drafting principle that one should not put a substantive requirement into a definition. Doing so messes up the application of other substantive provisions that are unrelated in principle to the one that gets put into the definition.

Thus putting a training requirement in the definition means that provisions to protect confidentiality of mediators, which is completely independent as a matter of policy from whether mediators should be trained to a particular point, are not applicable to mediators without the requisite training. How is that consistent with the policy of the Act? It’s not – except as an in terrorem provision to scare untrained mediators off the work.

If one wants to regulate mediators (and I remember how controversial that was even in the early 1990s), then regulate them, but don’t mess up a statute that is aimed at different purposes, namely the proper conduct of mediations.

Otherwise smart lawyers (and others) often don’t understand this basic sort-it-out-right principle, to the harm of legislation.

By: 2009 Developments in Mediation: Mediation Confidentiality « Disputing

2009 Developments in Mediation: Mediation Confidentiality « Disputing — Thu, 31 Dec 2009 13:00:54 +0000

[...] With respect to Massachusetts, Diane Levin from the Mediation Channel commented that “after reaching impasse in its deliberations, the mediation community here in the Commonwealth has agree to put discussions regarding the UMA on hold for now and will revisit it at a later date”. She gives a thoughtful overview on her blog about the Massachusetts experience as the state considered adoption of the UMA. (read more here) [...]

By: Diane Levin

Diane Levin — Fri, 08 May 2009 19:37:03 +0000

Ericka, you know I agree with you on this, based on the many conversations we had over the long and arduous months. We need to do better; but I sadly doubt that we can. That’s my fear – not without a better-designed process, fully informed and knowledgeable participants, and better decision making. Too many of those who participate in these deliberations take it as an article of faith that 40 hours of training magically assures mediator quality, that “4 years of professional experience” is a finely-calibrated measure, and that those criteria are based on sound evidence and not on something that a few guys made up out of whole cloth during the course of a couple of hours spent cobbling this statute together. If I sound impatient, I’m not going to apologize for it. (I know you won’t ask me to, of course. I know you yourself ran out of patience long ago.)

By: Ericka Gray

Ericka Gray — Thu, 07 May 2009 18:34:19 +0000

Well, Diane, it has been quite the ride and, as you note, there was no consensus and a great deal of attachment to a set of qualifications based on air. “We’ve always done it this way” is not a good standard for establishing qualifications and research on just what makes a good mediator is sadly lacking in this field. The limited research we have (Margaret Herrman at UGA) hasn’t been considered by many. As for the UMA, we need to translate it into English! A carefully designed, facilitated process is essential for such deliberation. We need to do better next time.