July 2009

One of the burning questions the U.S. mediation profession faces is a difficult one: is it time to professionalize the field and establish more formal mechanisms for credentialing?

As of today, the private practice of mediation in the United States is unlicensed and unregulated by the state. No public licensing boards  oversee or regulate the private practice of mediation. Barriers to entry into the profession are virtually non-existent; no degree, no experience, no training  is required before you order the business cards that proclaim you to be a mediator.

This has understandably caused consternation among the many members of the profession concerned with quality assurance. It certainly troubles me, a trainer of mediators. And it has prompted some, like my colleague Victoria Pynchon, to wonder out loud whether it’s time to license mediators to protect the public from the unscrupulous.

As the use of ADR has spread, numerous institutions, providers of mediation services, and membership associations for ADR professionals have endeavored to set standards of quality for mediators. In Massachusetts, for example, the Supreme Judicial Court promulgated qualification standards for mediators serving in court-connected programs (PDF) (which set the bar very low indeed, requiring only 30 hours of training for mediators together with only minimal mentoring and evaluation). The Florida Court System has also established standards for mediators (PDF) providing services in programs under its purview. Meanwhile, private companies such as Mediate.com have taken steps to establish their own credentialing system, or, like the Association for Conflict Resolution, are weighing credentialing or certification for their members. Arguments in favor of credentialing run the gamut, from the paternalistic (quality assurance protects the consumer) to the pragmatic (professionalization improves the ability of mediators to compete in the marketplace; credentialing will increase mediators’ professional credibility).

As more people enter the profession, and as more consumers use ADR services, market forces and the pressures within and outside our profession push us, reluctantly perhaps, but inexorably, toward professionalization. Not so fast though, say opponents of certification.

Ombuds and blogger Tom Kosakowski points his readers toward a recent Mediate.com article by conflict manager Deborah Sword, “Professionalization of Conflict Resolvers,” which lays out some arguments against certification for conflict resolvers.  Kosakowski neatly summarizes Sword’s main points:

• Conflict resolution is an ancient tradition that hasn’t needed certification;
• Standardizing the process ignores the continuum of conflict resolution practice;
• Conflict resolution is interdisciplinary and inclusive by nature while certification suggests that best practice and the principles can be quantified. Exclusionary requirements, such as needing the certification of one discipline or another, or some over-riding body, are contra-intuitive to the flexible, evolutionary nature of conflict resolution;
• Education of users is the best protection, the alternative is to keep conflict resolution as mysterious and labyrinthine as the law, so that only practitioners understand it and problems must be turned over to the practitioner for resolution;
• Conflict resolution is a life skill and there should not be any mystery about conflict resolution that demands that only professionals are licensed to practice.
• Conflict resolution personalities (such as clear thinking, calm, appropriate risk taking, wisdom and a sense of humor) cannot be assessed by credentialing schemes;
• Whose interests are being served? It seems to be the certificate granting agencies stand to gain the most; and
• Where is the research? The data indication that “some practitioners are incompetent” is purely anecdotal and does not adequately justify certification.

Sword has raised some important concerns. I agree that the basis for any certification or credentialing scheme must be supported by evidence and not guesswork, and that credentialing be premised on fair and objective criteria not on arbitrarily chosen ones. I, too, worry that formal regulation could stifle innovation in a still-evolving profession. I agree, although for different reasons than Sword does, that assessment, a necessary component of any certification scheme, will prove challenging. We need to be careful that any scheme must not work to bar worthy practitioners from the table. And I think a healthy cynicism can aid us as we ask whose interests will a certification scheme advance.

But other arguments Sword makes have left me puzzled.

Sword believes, as do I, that “Conflict Resolution [sic] is a life skill”. But she sees it very differently:

Another discourse is that conflict resolution requires hours of training and practice for proficiency. Hopefully, that is true. However, it also not true. What we do is largely common sense and everyone should have access to the knowledge behind it. Credentialing can turn a life skill into an esoteric ritual that only the ordained can practice.

Having just concluded the final day of a 40-hour mediation training, and seen 22 participants struggle to master something Sword deems “largely common sense”, I must beg to differ.  Mastering conflict resolution skills is difficult; it takes time. If what ADR professionals do is largely a matter of common sense, then why do so many people have such a tough time resolving disputes themselves? Why does so much intractable conflict abound? Read any newspaper or tune into any major news program, and you’ll see the extraordinary difficulty human beings have in simply talking things out. If it were only that easy, no one would need lawyers, let alone mediators. Moreover, I think this line of reasoning does our field a grave disservice by devaluing the work ADR professionals undertake each day.

Sword argues that “Conflict Resolution is an ancient tradition.”  But so what if it is? So is medicine. So is law. So are tattooing and prostitution for that matter. Compelling reasons abound to regulate these practices, their antiquity notwithstanding. In any event, regulating the practice of medicine does not prevent me from cleaning and bandaging my son’s skinned knee. I doubt we need to fear that regulating conflict resolution will somehow result in penalties for the unauthorized practice of mediation if you settle that feud between your next-door neighbors.

She’s right that we need to educate consumers about conflict resolution practice; I’ve made the case before that ADR professionals owe as much to their clients. At this point, though, that seems to be the exception, not the rule. She worries that certification will somehow  “keep conflict resolution as mysterious and labyrinthine as the law, so that only practitioners understand it and problems must be turned over to the practitioner for resolution”. But that’s the way it already is; just ask Joseph P. McMahon, who has described the shortcomings of a process in which the mediator, not the disputants, is in control; or see what Leonard Riskin and Nancy Welsh have to say.

Sword also argues that it is not possible to test for conflict resolution aptitude. While I remain skeptical of the reliability of standardized tests, I am intrigued by the work of UC-Berkeley School of Law to develop an LSAT for the 21st century – one that emphasizes 26 “effectiveness factors” (PDF) that will sound familiar to those working and teaching in the conflict resolution field. At this point, I think the jury’s still out on this question.

I raise these questions not to dismiss Sword’s concerns about the movement toward professionalization but instead to insist that we raise objections based on real not speculative harms. While I appreciate Sword’s caution against certification, I prefer Michael Moffitt’s well-reasoned discussion of the credentialing problem in his article “The Four Ways to Assure Mediator Quality (and Why None of Them Work)” (to which I owe the earlier reference to body art). Moffitt writes,

This article begins, therefore, with an exploration of how consumers derive confidence in the services of practitioners outside of mediation. Why are we confident that the doctor we have chosen will not be lousy? The lawyer? The plumber? The tattoo artist? It turns out that, regardless of the context, whatever confidence we have in the quality of these practitioners’ services derives from one of four sources…

By understanding how quality assurance works in other practices, and by understanding how those mechanisms have evolved over time, we gain an important set of insights about the possible future(s) of mediation. Building on the descriptive and predictive components of this inquiry, we can then responsibly engage in a conversation about what that future ought to look like.

For its excellent and provocative analysis, proponents and opponents of professionalization alike will find this article worthwhile reading.

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