To certify or not to certify: that is the question as the mediation field struggles with professionalization

which way to go with the question of mediator certificationOne 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 centuryone 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.

18 responses to “To certify or not to certify: that is the question as the mediation field struggles with professionalization

  1. Pingback: Business Conflict Blog » Mediator Certification

  2. Katri Kytopuu

    We have discussed about professionalization of mediation here in Finland too. My view is from victim-offender mediation and in our system mediators are volunteer workers and the basic education is abt 35 hours. I think that the real question is, what mediation is and what is mediators supposed to do. Main goal to our mediators is to help people to communicate with each other. In our society people have lost their capacity to deal their own conflicts and as I see it, our mediation service is educating people to communicate and to learn how to find solutions to their own conflicts.

    Most of our mediators work in such places, where they work with people. So they have the basic “training” before they come to our course. Our work is to help them reflect their own communication style and support them to be even better communicators.

    In our system the work of these volunteers is priceless. We have created mediation system, because our legal system isn’t always the best option. My fear is that if mediators will someday be professionals, we might lose something essential. Too many times professionalism comes with narrow views of the world and what is possible and what is not.

    Our mediator education is ongoing process, where first 35 hours is just a starting point. In those hours we try to connect people to thought of joy of learning. Every mediation is a chance to learn something new. Every mediation is unique opportunity to create shared perspective of life as human beings. Every mediation is a chance to support people to help themselves. The most amazing mediations arise from situations where people find their strenghts and truly connect with each other.

    So instead of professionalization, I would like to concentrate to define, what are the central issues in mediator education, what should every mediator know.

  3. Katri, I so appreciate hearing from you and to learn something about mediation from the Finnish perspective. I was struck by something you wrote – “Too many times professionalism comes with narrow views of the world and what is possible and what is not”. That’s one argument levied against formal credentialing – that it might constrain a still-developing field. Look at the resistance to the collaborative law movement from members of the bar. What do others think? Will professionalization turn us into reactionaries suspicious of change?

  4. Diane,

    This is a topic close to my heart. I think we will never be accepted as a profession unless we have some sort of licensing or credentialing. The public does not understand what mediation is and I still get many attorneys and others who confuse it with arbitration. So, public education is key. Here in NJ, the NJ Association of Professional Mediators (of which I am a director) accredits mediators. About 25% of our members hold this status. i am going through the process now and it is not easy to do. But this is if the mediator wants that credential.

    My overall concern would be who may be excluded in a licensing scheme. For instance, many state and federal court mediation rosters require you to be an attorney. Would that be a requirement? Studies need to be done to correlate education and experience with effectiveness. It is hard to make decisions or even recommendations without facts. What about different styles of mediation?

    There far more questions than answers. Here in NJ, we have some leadership in addressing these issues (I am leading a mediation quality committee of the NJAPM). Nationally, with ACR, I am not so sure. They would be the logical one to fund these sorts of studies. They can’t seem to agree on anything.

  5. Marvin, I’m really glad you commented. I hope you’ll keep me and your other readers abreast of New Jersey’s efforts to address the question of mediator quality.

    Like you, I don’t see ACR in a leadership role here. They dropped the ball on this issue once already, with no notice to members. And I don’t see that they’re off to a promising start either, with one leader declaring certain models to be “bad” mediation.

    Maybe if we focused more on public education and less on credentialing…

  6. Pingback: Settle It Now Negotiation Blog > Diane Levin hits Mediator Credentialing Out of the Ballpark

  7. This issue was discussed at a meeting of the Southern California Mediation Association I attended a couple of weeks ago, and while there was no resolution of what credentialing of mediators should consist of, or who should undertake that task, there did seem to be a lot of interest in doing something about this issue, instead of just talking about it. I agree with you that if mediation is going to develop as a profession, it needs the trappings of a profession, including credentials, journals, institutes, courses, standards and practices, accountability, etc. I think that increased recognition of the validity of this field is in the interests of mediators as well as the public. It appears that since colleges and law schools are beginning to offer courses in negotiation and conflict resolution, that all of these trappings will eventually develop. When people start getting degrees in conflict resolution, they will need to call themselves something.

    One representative of a more community-based mediation program did offer the opinion, however, that if certification of mediators were required, and if those requirements were too onerous for the program’s mediators to obtain (these are people dealing with gang issues, police issues, and neighborhood disputes for the most part) then they would just have to invent a new name for the volunteers and staff that provide these valuable services. So credentialing mediators will not prevent people from continuing to act as peacemakers or negotiators in the way that people do now, whether they be clergy, counselors, judges, community organizers, or just friends. What it will do is make clear what people have the right to expect if they choose a certified mediator to help resolve their dispute.

    This certification debate also raises the very good question of what exactly does it take or should it take to qualify someone as a mediator. I think there are 3 components. A mediator should have specific training in mediation techniques (at least the typical 30 or 40 hour course). They should also have some background in another relevant field, whether law or clinical psychology or social work or real estate or international diplomacy or something else. And they should also have some sort of evaluation or internship experience. The tricky part is to make the requirements rigorous enough to be meaningful and valid, without disqualifying a lot of capable mediators from using the title.

    http://www.mediate-la.com/2009/07/is-mediation-profession.html

  8. Joe, thanks for the great comment and also for the report on the recent discussion. Interesting to hear the community mediator’s perspective on this – I think that’s no doubt true, that people will simply call it something else if they have to.

  9. Hello Diane, thanks for a great analysis of my article; you have really done a service to engage with the points I made. A friend sent me the link to your blog or I would not have ‘met’ you. This dialogue about the issue is really healthy. I haven’t a lot of time to write this comment so it might not be worded as well as I would hope, but you’ll get the point I’m sure.

    The issue I would discuss with you further harkens back to the question of ‘whose interests are served’ by credentials. I welcome your further comment about this: Your article and the comments seem to confirm my concern that credentials are about us, not about the quality of the process we offer. The theme I read into this post and the responses is that if we want credibility and respect we must offer credentials and become a profession. This is troublesome. My practice is really busy and I refuse to apply for the credentials that I would certainly get if I wanted. My clients ask about my experience, not my financial exposure. They are interested in my integrity not the initials after my name. We already are a profession. We have a body of strong literature, we do excellent research, we practice our craft daily with great effect, and we are respected by the courts that uphold our right to do what we do. The reason some of us appear to want to be credentialled is for promotion and personal marketing. While there is much to be said for the right to earn a living and market the service, and I’m grateful every day for getting paid to do work I love that has meaning for me, if that is the rationale let’s say it. If the reason for credentials and professionalizing is to justify fees for service, to help get work, and to shore up the organization that charges for assigning the tests to give/get the credential, then let’s not wrap the discourses in distractions.
    Respectfully,
    Deborah Sword

  10. Pingback: Should the States Certify and Regulate Mediators? | Loree Reinsurance and Arbitration Law Forum

  11. Deborah, thanks so much for weighing in. I do appreciate hearing from you.

    I fear though that you misunderstand my points, and read into them something I did not intend and certainly never said. I urge you to go back and read what I’ve written with care, not simply this post but others. You can click on the Mediator Certification and Credentialing category to read more. I don’t personally support certification or credentialing, although I think that those who advocate for formal licensing have good reasons that shouldn’t be dismissed out of hand.

    I have never said that it’s about us as mediators, not about the quality of the process; on the contrary, I have written passionately about quite the opposite. I have also not claimed in this post that “if we want credibility and respect we must offer credentials and become a profession”. I don’t see that my commenters have said that either. (We’re a profession already, Deborah; we don’t need formal licensing for that.) I do think though that the question of quality is one that we must confront; my experience as a mediation trainer confirms that for me every time I teach, since at almost every program someone already has their business cards printed, and sadly that person is usually the least self-aware and least gifted.

    Let me clear. I currently do not support formal licensing at this time. My point is this: pro or con, as we discuss this, we – all of us – need to base our reasons on reason and evidence. In discussing the reasons against, and I believe that there are enough of those that our field is not ready to move forward toward professionalization, we need to raise concerns about real not speculative harms. Otherwise, our legitimate concerns will be dismissed all too readily. You raised a number of arguments that are compelling; I was pointing out the Achilles heel in the others.

    You and I can no doubt claim allegiance on a number of issues. And I look forward to exploring our differences of opinion. But before you counter my viewpoints, I would simply ask that you take time to be sure that those are in fact my opinions.

    Thanks again, Deborah. I appreciate that you were here and took time to respond.

  12. Thanks for this article, Diane. I always appreciate it when you take up this issue.

    To ground our discussion of certification in a related dispute resolution field, let’s look at lawyers and the state with the lowest barrier to their entry into the profession — California. You do not have to go to law school in California to be a lawyer. You can still “read the law” just like Abe Lincoln did — apprenticing yourself to a lawyer who is willing to teach it to you in all its theoretical rigor and practical complexity. You can also study the law online here or attend a law school that is not accredited by the American Bar Association.

    To protect the public from fly-by-night law academies, California requires those who do not attend ABA-accredited law schools to take the “baby bar” after their first year of legal studies.

    The true barrier to entry is, of course, the Bar Exam. Pass that and you can hang out your shingle and learn legal practice the hard way — having the court clerk reject your papers at the courthouse; being run over by the Mac Truck of opposing counsel in deposition or court; spending long nights pouring over “how to” texts as you draft your first will or partnership agreement or divorce your first married couple.

    The Bar exam has been justly criticized as THE bar to entry, given the fact that it only tests one’s critical thinking and memorization skills — not the hand’s on practice of law.

    The market and State Bar Associations take pretty good care of the consumers of legal services because lawyers practice in the open, in the light of day. The market is not, however, a good watch dog for consumers of mediation services because mediation is conducted in private, in secret, and without supervision of any kind – either by required mentors or by any disciplinary boards. Disputants in litigated cases do, of course, have lawyers, but mediation, as you and your commenters have observed, is also practiced in community mediation centers and in Court-annexed panels where no lawyers are present (parties to civil harassment actions for instance).

    Those parties rarely have the skill, wisdom or knowledge necessary to judge whether the services they’re receiving are competent or not. Often they are not. And the consequences of a badly managed mediation range all the way from a bad business solution to a relational result that ends in physical harm to one of the parties.

    Finally, because courts place their imprimatur on court-annexed mediation, unsupervised, poorly trained, unskilled and and inexperienced mediators can, in large enough numbers, deprive a large group of our citizens of meaningful access to the Courts. In other words, bad mediators pose a real threat to our ability to deliver justice to those most in need of it.

    These are the reasons why I support certification of mediators. None of them have anything to do with making mediation a “profession” or providing mediators with some superficial burnish to their reputations. I, for instance, have an LL.M in Dispute Resolution which I don’t much talk about because no one in my market considers it at all relevant or beneficial. Similarly, no one in my market is going to be impressed by a “certificate” from a governmental or non-governmental entity of my “authenticity.”

    What I would hope a certification program would do is to establish “best practices” to which all mediators — transformational, facilitative, or evaluative — could aspire and demonstrate proficiency in; require a specified number of hours of supervised hand’s on mediation training; and, perhaps even require continuing education.

    Certification would not GUARANTEE our fellow citizens access to quality mediation, but it would at least provide some indication to those least able to watch out for their own interests that the person to whom they are entrusting important life decisions has a minimal amount of supervised training and a required course in ethics.

  13. Vickie, as always, I appreciate the good common sense you inject into any debate about the important and perplexing issues that our field must confront. Thanks for providing the compelling reasons in support of certification. I do agree that we can look to analogous fields for cautionary tales and for best advice.

    Let’s keep the lines of communication open and engage on the merits as you have done. Thanks again so very much, Vickie. You know how much your opinions matter to me.

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  15. Diane, you and I have discussed this issue for many years and it scared the (insert your favorit expletive here) out of me. A few problems with the entire conversation include the following: 1) a one week training program is the entry for mediation. Even if we add on additional training course and supervised practice, this is far less than any other licensed or certified profession that I’m aware of, including massage therapy, plumbing, manicurist, and certainly psychologist, lawyer, physician, etc. 2) Skills based assessment requires developing assessments that actually measure specific behaviors of mediators that other mediators agree are essential to effective mediation, that the assessment measures what it says it measures, all raters agree with the ratings, the instrument has been validated and is legally defensible. So far, not one of the performance-based assessments in use meets any of these criteria.

    These are just two of the problems with the conversation. The other major problem is that it is a self-serving conversation. Why are we talking about this? For marketing purposes. Having the term “certified” on our business card carries some type of message to the potential consumer. Certification has no real teeth – the worst that can happen is the certifying organization slaps the hand of the certified whatever and the person goes to another organization and gets certified there.

    Until and if we have licensing, which is the true protection for the consumer, in my humble but outspoken opinion, this conversation is about marketing, regulating styles of mediation, and plain old turf. Nothing new. But, don’t sell it for something it isn’t, please!

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  18. Ericka, I’ve been hoping you’d weigh in. Sorry it took so long to moderate your comment – I took a much-needed 10-day vacation and just returned today.

    You and I are battle-scarred veterans of the recent turf war here in Massachusetts involving the Uniform Mediation Act and the demand by many of our colleagues to graft a credentialing scheme onto a statute that deals with evidentiary privilege. We were lone voices in the wilderness. Our experience, yours and mine together, has no doubt contributed to my own cynicism about the national debate over credentialing. You’ve called a spade a spade, and I agree largely with your point – that too often the insistence on credentialing and standards is just a flimsy cover for the real agenda – turf guarding and a desire for a more effective marketing tool.

    However, a word of defense for those who support credentialing. I do know those who do have legitimate concerns about unregulated mediators – like my friend Vickie Pynchon who is sincerely concerned about the quality of mediation services and the impact on an unknowing and unsuspecting public. She has written with convincing passion, based on her own experience and observations, to make the case for credentialing. I invite you to read what she has to say.

    I worry though that not enough proponents of credentialing are motivated by the same sincerity. I’ve got good reason to be doubtful.

    Always great to hear from you, E.

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