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.

by R. David Donoghue Welcome to the August 2009 Carnival of Trust. The Carnival of Trust is a monthly, traveling review of the last month’s best posts related to various aspects of trust in the business world. It is much……

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!

Welcome to the August 2009 Carnival of Trust. The Carnival of Trust is a monthly, traveling review of the last month’s best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links t…

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.

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.

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.

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