One of the issues hotly debated in the ADR field is whether it’s time for state licensing and regulation of the practice of mediation. The following are summaries of the arguments that each side to the debate has marshaled.
In the comments below, I’d welcome readers to add arguments that I’ve overlooked. I’m not critiquing the arguments, merely collecting them. The criticism I’ll leave for another day.
The arguments in support of state licensing of mediators:
- State regulation of the practice of mediation would assure the quality of mediation services by establishing best practices and setting standards of ethical conduct, increasing public confidence in ADR.
- State regulation would establish a mechanism for disciplining, rehabilitating, or suspending from practice those whose conduct falls below a specified standard.
- State licensing would enhance the professional standing of mediators and confer greater credibility upon the profession.
- State licensing would enable mediators to market their services more effectively and to compete more nimbly in the marketplace against other service providers.
- State licensing would protect mediators practicing within a defined geographic area, and give local practitioners preference over out-of-state practitioners.
- Given the long-standing uneasy relationship between lawyers and mediators, state licensing of mediators would level the playing field between lawyers, who hold state-issued licenses to practice law, and mediators, who do not hold state-issued licenses to practice mediation.
- State licensing would establish standards not only for mediators but also for the training and education of mediators. State regulation of mediation trainers and mediation training programs, which at present vary widely in terms of quality and effectiveness, would increase public confidence in institutions and programs that train mediators.
- State regulation would ensure that mediators possess professional liability insurance to compensate consumers for losses resulting from professional negligence by mediators.
- State regulation would result in a database of practitioner contact information, including office location or residence for service of process in the case of a legal proceeding or disciplinary action against the neutral.
- Licensing and related fees resulting from state regulation of mediation and mediation training would generate revenue for state coffers.
The arguments against state licensing of mediators:
- Apart from anecdote, no hard evidence supports state regulation of the practice of mediation to protect the public from the unethical or unskilled. At this time, no external pressures exist – such as demands by consumer watchdog or legal advocacy groups in response to actual harm to consumers caused by mediators — to place mediation practice under state regulation. The impetus comes from mediators themselves, not a concerned public.
- State licensing of professional activities typically results in geographic limits on the practice of such activity, prohibiting those who are unlicensed from operating within its jurisdiction. Given the multi-jurisdictional and transnational nature of much ADR practice, state licensing of mediators would unduly burden the practice of mediation and constrain the ability of mediators to practice.
- State licensing of mediators runs contrary to one of the foundational principles of mediation, self-determination. State licensing of neutrals would unfairly restrict the ability of parties to utilize a neutral of their choosing.
- State regulation rests upon the articulation of standards of practice, which promote and reward conformity in behavior but work to discourage innovation. (Consider, for example, the case of opposition by some members of the bar to the legal innovation known as collaborative law.) This would have an inhibiting effect on what is still an evolving field.
- Market forces and consumer preference already operate in place of state regulation, ensuring that the lion’s share of cases go to mediators with reputations for effectiveness.
- The positive benefits of state regulation could be achieved through the creation of certification mechanisms by private actors who understand the profession and its needs better than would state bureaucrats and politicians.
- Within the mediation profession, the differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.
- During economically difficult times, it is not sound policy to impose fees and erect bureaucratic barriers to the conduct of business by mediators in private practice, particularly in light of the lack of evidence to support state regulation.
- Creating barriers to practice and imposing licensing fees would unfairly burden mediators who provide low-bono or pro bono services in non-profit mediation programs, which traditionally serve disadvantaged communities.
Related posts on this subject:
Four times each year, the American Bar Association Section on Dispute Resolution publishes Dispute Resolution Magazine, covering trends and news that affect ADR practitioners and scholars. An article I wrote about blogging appeared in the Summer 2009 issue. The folks on the magazine’s editorial board have kindly given me permission to upload it to share it here with you.
This article, “Only Connect: The Impact of Blogging on the Field of ADR“, describes how blogging has changed the way ADR professionals do business, share and debate ideas, and build meaningful personal connections across (and despite) time zones.
Here’s an excerpt:
In his 2006 book Conversation: A History of a Declining Art, author Stephen Miller evoked a golden age of discourse that England enjoyed in the 18th century. The seat of that renaissance of conversation was the coffeehouse, where wit and aphorism flourished. Men gathered to warm themselves with a dish of coffee, transact business, gather news, enjoy the latest gossip, and of course converse.
Although the British coffeehouse has largely faded from public memory, a spiritual descendant has emerged possessing many of its ancestor’s most distinctive attributes: the blog. Like its 18th century predecessor, the blog is simultaneously marketplace, library, and public square, with a wealth of views and ideas clamoring for consideration, attracting businesspeople, scholars, thinkers, writers, celebrities, and ordinary citizens.
ADR professionals and scholars perhaps would have felt at home in the 18th-century coffeehouse. We and the coffeehouse share similar virtues: ours is a field that promotes and pursues the exchange of ideas and information. It is fundamentally about conversation. And, like England in the 18th century, the ADR field is enjoying its own renaissance in discourse, one that flowers lushly online, thanks to the phenomenon of blogging, drawn to its capacity for bringing people and fresh thinking together…
For ADR bloggers and our readers, the phenomenon of blogging has dramatically affected us and the way we practice in three key areas: the business of ADR, the dissemination and discussion of information and ideas, and professional networking. I invite you to explore them with me…
The article also names some essential blogs to follow. Space constrained me, preventing me from adding all that I would. Here’s a far more comprehensive list of 24 outstanding alternative dispute resolution blogs to read regularly.
To do my part to improve argument and discourse everywhere, each month I feature a different fallacious argument. I launched the series in July with the straw man; discussed the false analogy in August; and in September explored the misused ellipsis.
Today I take great pleasure in introducing you to October’s Fallacious Argument of the Month, the confusion of cause and effect.
There’s an old joke that goes something like this: A guy walks into a bar, sits down, and orders a beer. As he waits for his beer, he claps his hands together again and again, loudly and insistently. Annoyed, the bartender asks, “Hey, pal, what’s up with the hand clapping?” The guy says, “It scares the elephants away.” “But,” says the bartender, “there aren’t any elephants around here.” The guy replies, “See? It’s working!”
It’s easy enough to snicker at the beer drinker’s logic. But unfortunately this confusion between cause and effect is no laughing matter. It’s a persistently occurring phenomenon. All too often, people readily assume that when Event B follows Event A, it must be because A caused B.
The confusion of cause and effect is often used for political purposes to manipulate public opinion by exploiting prejudice or fear. It has been used to attribute blame for a host of social ills to purported causes that have included feminism, video games, atheism, and the internet. But it is also often the product of careless or exploitative journalism. For example, when British schoolgirl Natalie Morton died unexpectedly from an undiagnosed malignant tumor shortly after she had received a vaccination to prevent cervical cancer, some media rushed to report that it was the vaccine that killed her, fueling public anxiety.
These false connections flourish best in the presence of closed minds and foregone conclusions. They persist only because countering them demands hard work – a willingness to discard assumptions and dig deep for the facts.
Some of you, particularly those with children, no doubt remember “Pirates of the Caribbean“, a 2003 movie based upon a Disneyland theme park ride. In one scene, the movie’s heroine attempts to parley with the villainous pirate captain, invoking the protection of the Pirate Code, a kind of seafaring Model Rules of Professional Conduct. He sneers at her entreaties, dismissing the Code as “more what you’d call ‘guidelines’ than actual rules”.
That’s pretty much the state of affairs the mediation profession in the U.S. finds itself in with its own Model Standards of Conduct.
As mediators, we are all aware of the existence of standards of conduct that are meant to guide our practice. We speak with reverence – and in capital letters - of principles such as Informed Consent, Self-Determination, Impartiality. Most basic mediation training programs include some treatment of ethics: what principles guide practice, and how might mediators respond to specific ethical challenges.
Organizations like the Association for Conflict Resolution and the ABA Section on Dispute Resolution have drafted and approved such standards for their members. Private ADR providers have established rules for neutrals serving on their panels. Courts have promulgated them for neutrals serving in court-connected programs.
Although violation of these standards of conduct might cost you your membership card or result in your removal from a court-connected ADR panel, these standards are generally aspirational, as the preamble to the ABA/AAA/ACR Model Standards of Conduct for Mediators acknowledges:
These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.
The fact is that not one of these bodies of ethical standards regulates with the force of actual authority the conduct of mediators in private practice. They are, in the words of the pirate chief, more what you’d call guidelines.
Why do I point this out? So long as the private practice of mediation remains unregulated in the U.S., we must do our own policing. The state does not regulate us; we regulate ourselves. We each bear the responsibility of educating ourselves about our field’s best practices and conducting ourselves accordingly. And for those of us who train new mediators, we owe it to our profession to encourage those we mentor to strive with us to advance the field. Although principles such as competence and quality of practice may be aspirational only, at least for now, they are values that enhance our public standing.
Unlike the fictional pirates in Hollywood films, they have real-world impact.
Confidentiality stands as a cornerstone of mediation practice. It encourages the resolution of disputes by allowing those in conflict to candidly discuss the issues they face, secure in the knowledge that what they say in the mediator’s presence cannot be held against them later. In pop culture parlance, what happens in Vegas, stays in Vegas.
Thousands of laws, judicial decisions, scholarly articles, and customary practice among neutrals speak to the important role that confidentiality plays and the value that institutions, users of ADR, and mediators themselves place upon it. Disputants reasonably expect that the disclosures they make will remain in the mediator’s confidence. Often mediators themselves establish or reinforce these expectations at the commencement of mediation by making an introductory statement intended to orient the parties to the process and establish basic guidelines for how the mediator and disputants will work together. This introduction usually includes reassurance by the mediator that what is discussed or disclosed will “stay in the room”. People rarely inquire further into what this means precisely; mediators themselves are sometimes overwhelmed by the difficulties in satisfactorily explaining confidentiality in all its complexity.
Despite these expectations, despite the professional and scholarly emphasis on its virtues, confidentiality is vulnerable and not always assured, as a recent case makes plain. In an article on her always informative Negotiation Law Blog, “Mediator Testifies for Insurance Carrier and Court Enforces Mediated Settlement Agreement against Policyholder“, Victoria Pynchon discusses with dismay Palmer v. State Farm General Insurance, a California case in which a mediator filed a declaration in support of an insurer’s motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings. You can read her unflinching criticism of the mediator’s conduct here. This case also prompted complex commercial litigation lawyer Stephen Goldberg to ask on his own blog, “Can Your Mediator Be Your Enemy?“, finding that sometimes, sadly, the answer may be yes.
So what’s a disputant to do to protect themselves up front? Mediators and parties typically enter into a signed agreement known as an agreement to mediate (PDF). Among other matters, this agreement customarily addresses the issue of confidentiality – its scope, exceptions, waiver, and the obligations of those involved to uphold it. Typically such agreements include language prohibiting the parties from calling the mediator as a witness or from subpoenaing the mediator (PDF). Such a provision is important for mediators, for whom confidentiality – and impartiality – are stock in trade. Most of us who mediate have no wish to be in the position of disclosing information revealed to us in confidence or providing testimony that would most certainly give one side victory over the other.
But confidentiality provisions also protect the parties. Before mediating your dispute, review the language of the agreement to mediate with care. Make sure you know what you’re getting. I know that what I am about to say risks provoking cries of outrage from mediators who see mediation as a refuge from the legal system for ordinary people who shouldn’t have to hire lawyers, but needless to say, if you’re not an attorney or don’t have one representing you, consider getting competent legal advice before signing an agreement to mediate. It is after all a contract. If the Palmer case teaches us anything, it’s that parties – not just mediators – must take care to safeguard confidentiality.
