Mediator certification: quality assurance or caveat emptor?

caveat emptor for mediator certificationAs my readers know, the private practice of mediation remains unregulated in the United States.  Some view this fact with consternation, others with relief.

Meanwhile, in the absence of public licensing of mediators in private practice, private organizations have stepped in to fill the void left by the state, offering private credentialing mechanisms. The giants in the field who have embarked on this path have done so with transparency, inviting the input of practitioners to shape such mechanisms,  and with honorable intentions and a concern for ethical practice, with the credibility that reputation has earned them.

There’s one problem. Just as anyone can hold themselves as a mediator, so, too, can any organization hold itself out as a credentialing body.

A colleague recently alerted me to one credentialing scheme that raised some warning flags. One private company has begun offering credentialing for mediators. It’s a business neither of us had heard of. The qualifications it specifies are minimal, setting the bar dismally low.

None of this is reassuring, not to consumers and not to mediators.

16 responses to “Mediator certification: quality assurance or caveat emptor?

  1. Diane,
    Great stuff… as always. The photo is brilliant. Made me think [note: start sarcasm], “Hmmm, I could use another certification certificate (hey, who can’t!?) but the problem is I don’t eat ribs- damn, damn, damn. Wait a second, I can just create my own on the computer and tell everyone I was was recently got my mediator certification from the ‘We Take Anyone’s Money Mediation Excellence Center’.”
    And then I can show it off to potential clients.
    I know what you are asking and the answer is yes- I will splurge and put little gold stars on each of the corners of the cerificate to make it look authentic.
    [note: end sarcasm]
    Now for me to flex my mediator knowledge (wait a second, more sarcasm! now cue open-ended question)-
    Diane, what do you suggest is done about this wide ranging issue?

    (btw, I know you get my humor Diane, I hope your audience does!)

  2. Jeff, I am doubled over, slapping my knees in helpless laughter. You always crack me up!

    In all seriousness, I have no idea what to do about this problem. But I thought calling it to my readers’ attention was at least a start. (And my apologies to Jeff and the other vegetarians out there for the sign in the photo.)

  3. I really appreciate that this topic is being explored. I am the Volunteer Coordinator for Community Mediation in Baltimore City. Mediators all over the state of Maryland have been clamoring for an official certification program. Currently, all of the community mediation centers in MD are coming together to develop a performance based evaluation program that will hopefully provide some credibility and potentially lead to an official certification program. I’m stuck on what could be done to prevent these fly-by-night organizations from issuing unofficial certificates, or what other professional, community and volunteer mediators can do to safeguard against false documentation.

  4. Rick, thanks for your input – it’s great to hear from a member of the community of community mediators.

    I have to say that I’m not sure myself what can be done. So long as the private practice of mediation remains unregulated by the state – and I’m not yet in agreement that regulation is what we truly need – this will remain an issue. All any of us can do is to continue to raise awareness among the public and among mediators themselves. I thought about outing this particular organization, but decided that discretion was the better part of valor.

  5. One of my criticisms of ACR is that they should be the organization taking the lead in this area and sadly, they haven’t (due to lack of consensus). When the dispute resolvers can’t come to a resolution of central problems, what does that say about us as a profession?

  6. I can’t believe it. I ordered the ribs. Where’s my certification? Please let me know when you find the drive through certification. Um, You would like a cheeseburger and fries. Would you like to supersize that with a mediator certification?

    On a serious note, the fact is the certification doesn’t help in a sophisticated market regarding getting business. People come to you because you can do the job, not because you have a piece of paper on the wall. Let’s take the example of the personal trainer. They have many certificates, but that is not why you go to them. If the personal trainer is slovenly and unfit, it is likely that you won’t go to him/her. On the other hand, if you hear that this personal trainer can make you like a movie star, you would go see that person.

    In an unsophisticated market where consumers who are unaware of what is good or not, a certificate may help get a case, but quality will count, if the mediator does not live up to what the certificate implies, then the certificate loses its value. Each time that happens to a different person, the certificate slowly becomes useless.

    Anyway, that is just my 2 cents.

  7. “In all seriousness, I have no idea what to do about this problem.”

    Yes you do. The only reason ersatz certifications exist is because there is a vacuum. If there was an authentic, professional mediator certification program that all could point to as rigorous and respected, then this type of BS would not occur. You don’t have to be a proponent of a “public option” to think that a state certification process would be best positioned to occupy this position of recognition and status.

  8. Diane,

    Awesome post! The ribs better be good!!!!

    I have been involved in this issue since the early 90’s with the ABA (was the Chair of the Associates Committee of the DR Section and subsequently Vice Chair Mediation) and have been an active proponent of nationwide certification (the Aussies must have heard me as they now have a nationalized certification process); its way past time for national certification in the USA of mediation. I had proposed that the National Council of Dispute Resolution Organizations be the entity as it is a compilation of all the major ADR organizations at the time, am not sure of its status now, not only for national certification, which obviously is the most pressing need, but for the ability to develop a national policy and presence as to mediation and ADR, as well as being able to offer its members and potential certified mediators a wide benefits needed by the profession, from all forms of insurance to discounted tickets to national ADR conferences as well as state events as well as other benefits a large organization can provide. Unfortunately, the problem is and has been each ADR organiztion has its own turf to protect as such no national consesus has been possible, until all organizations see the benefits to its respective members it is but a pipe dream…

    I have also been active in NY with NYSDRA in helping in the volunteer effort to create a certification process in NY (as well as the ethics and standards component for said certified mediators and am currently co-chair of the ethics & standards committee at nysdra) which would obviously involve NYSDRA members but allows others who are mediators to seek certification, however the sticky issue is how do you have any control as to disciplinary issues with the public as only NYDSRA members could be taken to task by the public for any infractions; as a private not for profit organization the certification as with the pig place is limited in terms of any kind of significant recognition albeit NYSDRA certification would possibly in the future be possible for a state model given the nexus between the community mediation centers in NYS and the nexus with the NYS office of court administration possibly develping a certification state wide for all mediators! Florida thus far seems to have the best and professional organized state mediator certification program to which I am a Fl. Supreme Court Certified mediator Since the early 90’s. it is a full scale professional program run by ADR professionals and the Judiciary another model, perhaps via the U.S. Supreme Court could offer such a program on a national baisis…food for thought…

    Again, it is imperative that a National Certification program be put in place in the USA so that it can be recognized as a profession.

    All the best,

    Marty Gofberg

  9. How can we even begin to regulate something that hasn’t been consistently defined? As the “field” matures and evolves, I think it will become clearer as to whether regulation might be helpful in any way.

    I don’t think we’re there yet. . .and may never will be.

    Hopefully, would-be mediators won’t fall prey to the enterprising McBeans of the world offering mediation certification ala Star-On/Star-Off machine-style. . .!

    Thanks, Diane. Hope you’re having a good week.
    Debra

  10. Hi, Diane –

    You always raise good points about this issue, and private credentialing is just the latest wrinkle. Practitioners need to be accountable and clients need some form of recourse to clients who believe they’ve received incompetent or unethical services. I think those two can be achieved without the rigidity of formal requirements for qualification under a licensing system. In your July article you mentioned the need to see evidence of problems before coming up with solutions, and that’s exactly right. After more than 25 years of listening to the same arguments about no system vs command & control, I’d like to see evidence-based proposals for a much greater variety of ideas.

    The roster systems have evolved on their own, and we should start with a careful evaluation of what the current ADR world has come up with.

    John

  11. Hi, folks, glad to hear that this post (and photo) provoked such great discussion and humor. Excellent points made, too, particularly yours, Marty, about ADR turf wars making it difficult for mediators to come together to tackle this issue. I’m uneasy though with the dominant role that the courts and the bar have played in developing credentialing mechanisms for mediators; we all know of the uneasy and mutually mistrustful alliance between lawyers who mediate and mediators who aren’t lawyers.

    Chris, I know you’re a strong proponent of formal credentialing. But you’re wrong about something – no, I don’t know the answer, nor am I being coy in suggesting I don’t. I wish I did know. I’d rather for now we focus on questions and not answers, since there are plenty of good ones to raise before we act. It’s all too easy to suggest that we need formal state licensing. But unless virtually every one of the 50 states has a licensing scheme, with a mechanism to impose penalties for phony credentialing, the certification mills will continue to do business unchecked.

    Mediation, incidentally, isn’t the only field in which these kinds of ersatz credentialing schemes exist. I’ve seen “negotiation certification” programs aplenty. It’s all a lot of nonsense, but I suppose there are some willing to part with money to get a meaningless paper credential to hang on an office wall. But does that mean that we want to start regulating the practice of negotiation just to put a stop to these certification businesses?

    I think we’re all in agreement that it’s a problem when anyone – not simply the recognized and respected – can offer “mediator certification”. But I don’t think any of us can yet lay claim to the best or the right answer for how to remedy it.

  12. John,
    You said, “After more than 25 years of listening to the same arguments about no system vs command & control, I’d like to see evidence-based proposals for a much greater variety of ideas.”
    I am not saying there are heaps of complaints out there (nor am I saying there are none) but how could evidence be submitted when no one is collecting it?
    Correct me if I am wrong, but unless someone is part of a roster (i.e. JAMS), there is no method for a party to file a complaint against a mediator.
    -Jeff

  13. Dear Diane,

    thank you very much for raising this topic. In my country (Czech Republic), there is an act on mediation being prepared. The issue whether public licensing regulation is needed is subject of strong disagreement. I just returned from a conference on ADR, where this issue was discussed. The authors of the bill at our Ministry of Justice want to have control over mediation profession and, therefore, they propose state-controled licensing. The mediation profession strongly disagrees on the other side.

    I am interested in the debate, because I am currently working on my PhD thesis on ADR. Therefore, the experiences and opinions expressed at this forum are very inspiring…

    Zbysek

  14. Zbysek, I’m delighted that you visited this blog and took time to post your comment. Thank you so much. It’s fascinating for me as an American to hear about the conversation underway in the Czech Republic. I hope you’ll keep me and my readers updated. I wish good luck to my Czech colleagues, fellow mediators, and best wishes to you on your PhD.

  15. Greetings to one and all:

    Diane, you and I have corresponded on this subject matter before, but what the heck, while I wait for my order of PORK lets do it again.

    Its always enjoyable to read your take on matters when time allows. Good luck, and keep on doing the enjoyable work you do!

    First I will tell you that I respond to this matter as a Certified Mediator since 1993, and a Certified Personal Trainer since 2007.

    I was amongst the first BBB trained and certified mediators in the State of Connecticut, and I was one of the very first State Certified Mediators as well. In addition I have been certified not only as a mediator, but as an arbitrator. I practiced these skills for more than 15 years before accepting that in Connecticut at least, it is nearly impossible to make a living as a mediator/arbitrator unless you are also a JD. In fact, in Connecticut, it is virtually illegal to do it any other way. At the risk of offending all of you JD holders out there, as long as that is true, ADR has no valid future in the state.

    Next I will share with you that I have been both a pro bono and compensated ADR practitioner for the State working with both the Judicial and Consumer Protections Departments. My work has won numerous kudo’s and praise.

    I was also asked to offer a program for lawyers, “Mediation for adversarial practitioners” which I authored on several occasions, before funding dried up. It was moderately well attended and won praise from those who did.

    After attempting to obtain a decent score on the LSAT twice in five years, and being turned down by three second tier schools, I back burnered that plan as well.

    In the ensuing years, I have gained my Personal Training Certification, as well as other numerous related certifications.

    I have also obtained Certification as a Hypnotist (okay, all laughing must now cease….here comes my pork, finally).

    What are the connections, many.

    Yes, many of you laughed about the first inference of a similarity between personal training and ADR.

    Many of you again laughed with my mention of Hypnosis certification and you are waiting some link between it and ADR.

    Here is comes folks, and stop laughing….ADR is to law what Personal Training is to Exercise Science and Hypnosis is to Psychology that same thing; warm and fuzzy but not proven to really exist!

    I’m really upset by this….after waiting all this time and I get cold fatty pork! TAKE IT BACK! Does this place have a certified chef cooking the food or what?

    If you believe what most of us reading this blog believe, then mediation and ADR in general is a proven science, not an art.

    Likewise as another writer expressed if you go to a personal trainer and see results, you become a believer, and same to of a hypnotist and those skills he/she employs.

    But the results of an ADR practitioner like those of a trainer and those of a hypnotist are not scientifically quantifiable. At least they have yet to be proven as such. Given that, ADR will continue to fall prey to disrespectful comments, and profiteering opportunities.

    Several states are now contemplating the licensing (dare I say taxing) Personal Trainers. Its an interesting battle to follow. There has already been formed an industry wide body which is in the final phases of creating a industry wide accepted credential which will be based upon a test. Its taken more than three years to get to its still very controversial point, and its neither widely sought or recognized yet.

    There are more “Guilds” than you can shake a stick at in the world of Hypnosis willing to “credential you” without so much as even ordering pork, but they all of course want your money.

    At the same time, medical science has proven hypnosis works as much for pain management, weight loss, smoking cessation and many other applications, in the world of science, even far more than either ADR or for that matter personal training have proven their worth in the legal world or fitness world. So there you have it the most laughed at is the most proven and yet faces the same problem as ADR in terms of certification and credentialing.

    To the comment made by one author that one does not need the credential, as they’re reputation is what will enable them. That might be true for some, but for most, the credential is what opens the world to considering what your reputation will some day be.

    As good and sought out as I was as a mediator, even by lawyers, I was unable to establish a practice in the state, and from what my due diligence showed me, out of state. I would have gladly relocated to continue to follow my passion for ADR had I been able to find a way to make a living at it. Unfortunately it seemed while it was law in Connecticut, it was unwritten law elsewhere with few exceptions….without a JD mediation/ADR was a more difficult or not for profit career move.

    To overcome the training, credentialing issue that exists now and will exist for a long time to come, we have to look to the consumer and the educator for an answer. Multi-hour exams are little more than a snapshot in time as to how one will address a given situation. Hap Hazard training by self anointed trainers and “experts” only creates more questions and doubts than it answers.

    In out nation, degree granting institutions are deemed to have the answers for some reason. If you want a great business opportunity (don’t open a pork restaurant) open a school. If your students succeed, they are your greatest marketing asset. If they fail you simply share with them you don’t believe they put in the effort…and it becomes their problem all over again. That written, we need the colleges and universities that are now offering ADR programs, both law school based and theological based, to work together with an association to both come up with the ultimate credential standards and then also bring in our own association to create a “bar exam” sort of speak.

    I suggest this though, rather than a bar exam type of test, why not instead have it be a mentored apprenticeship. Not one that is insurmountable, but one that enables those with the desire and skills to prove their ability. At the same time these mentorships would allow/enable hard evidence to be gathered to answer many of the questions we need to answer as to the process and its outcomes.

    You’ll please excuse me now…seems my vegetarian pizza has arrived hot from next door…hopefully I can digest them before I get back my client at the wellness center.

    Please offer up your comments and thoughts! Communication: its what its all about!

    Live Well! Be Well! Exercise!

    Thanks for reading-

    Matt Fenichel
    Mfen651@aol.com

  16. Pingback: Mediator certification: new Cafe Mediate podcast | Mediation marketing and career guide: Making mediation your day job

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