The 40-hour mediation training: a good argument for regulating the private practice of mediation

Regular readers know that for some time now I have not supported the movement favoring formal licensing or credentialing for mediators in private practice. I have remained unpersuaded by most of the arguments that favor it and am concerned about the difficulties in design and implementation and the impact on multijurisdictional work. (If you’re interested, I’ve collected the arguments on both sides, pro and con.)

That is, until now. A number of incidents over the past several months have made me increasingly sympathetic to the concerns voiced by advocates of regulation, who see regulation as a way for the mediation field to safeguard quality, limit practice to the qualified, and reclaim control over determining who gets to call themselves a mediator.

Briefly summarized, here are some recent events that changed my mind:

Example 1

My colleague, Jeff Thompson, alerted me to new rules adopted by the Nevada Supreme Court for court-connected foreclosure mediation which establish minimum standards for mediator qualifications (PDF) and that unwittingly perpetuate the myth that lawyers are automatically qualified to mediate by virtue of their bar cards. To mediate foreclosure disputes in Nevada, a mediator must:

(1) Be authorized to practice law in the State of Nevada; or

(2) Be an experienced mediator (defined as “an individual who has participated in a mediation training program consisting of at least 40 hours of classroom and role playing and has conducted 10 mediations as a co-mediator or sole mediator”).

These minimal requirements can be waived “for good cause”.

It’s worth noting that various groups and public officials were cc’d on the order, including the Nevada Bankers Association, the Clark County Bar Association, the Nevada Land Title Association, but not, however, a single mediators’ association.

Example 2

An individual teaching a course in mediation at a university contacted me to ask about mediation training. This instructor wanted to know whether I thought taking a basic mediation training might be a good way for them to “get certified as a mediator”. Apart from a few classes on ADR in law school, this person had received no training in mediation and had no professional experience mediating. The department head who hired this individual thought that the law school degree was sufficient qualification. This is not the first time by any means that a university-level instructor has contacted me with a query like this.

Example 3

Recognizing that there’s money to be made from the growing popularity of mediation, an organization not in the business of providing ADR services offers a minimal mediation training led by someone who is not a practicing mediator. So popular are these “trainings” that they fill up quickly. Evidently unaware that a handful of hours of mediocre mediation training is not enough to qualify someone to mediate professionally, several recent “graduates” of this program have launched mediation practices.

* * * * * * * * *

If you’re a mediator, you should be worried. If you’re a member of the public that currently uses mediation services or may use such services one day, you should be worried, too. If you’re a student enrolled in a mediation course at the undergraduate or graduate level who hasn’t checked the qualifications of your instructor, or someone who took a mediation training without doing some due diligence, you should be worried as well. And whether you think these examples suggest that it’s time to move toward better regulation of the profession, or whether you disagree, I think there’s one point reasonable people can agree on:

The mediation field has got to do a far, far better job than it is doing right now to police itself, and to take a principled stand against practices that diminish our professional integrity and worth.

40 hours of mediation training do not automatically make you a professional mediator – or a mediation trainer or teacher.

Neither does possession of a bar card, law degree, or judicial gown.

This should be obvious to all, but it’s not. And so I am no longer confident that in the absence of regulation that we can succeed in countering myths and promoting best practices. I think it’s time at last to get serious about credentialing.

Thoughts?

8 responses to “The 40-hour mediation training: a good argument for regulating the private practice of mediation

  1. Diane,

    I think part of the answer to the credentialing challenge is some sort of hybrid model – e.g., 1) regulation and enforcement of basic criteria to maintain ‘mediator’ status within a jurisdiction and 2) further, additional credentials associated with a specific service area – e.g., civil, divorce, family, elder…

    For most citizens, a huge challenge is can I trust this person to give me good service. And so, another credential consideration might be creation of more 3rd party trust verifiers – independent of regulators, and maybe even as another layer of a hybrid model. Mediator credentialing is a complex issue – the more checks and balances on the solution side, the better.

    As citizens we live in a largely self-assessing country(s), in which its’ largely left up to us to figure out what we are entitled to (e.g., good mediators) and where to find them (???). As a citizen, we need all the help we can get.

    The questions you pose are important. Thanks for taking initiative.

  2. John Shaffer

    Diane,

    I recommend anyone who reads this post backtrack your prior thoughts on this subject, first by linking to your first hyperlink above (the arguments on both sides, pro and con), and then backtracking some of the links at the bottom of the post you kindly provided there.

    I’d also suggest reading the ACR 2004 proposal you refer and link to. Wow! We are a weird creature, we being humans, of course, to strive through legislation to secure the illusion of certainty, when, at least in part it’s the spirit of all this work we do that also matters. If the recent financial debacle(s) should amply demonstrate, anyone trying hard enough will always find ways around the regulations. And how do we certify spirit, much less define it?

    A danger presented by all this search for regulation is that the field we work in is transdisciplinary, not interdisciplinary. By transdisciplinary I mean that it rises above the individual disciplines, and incorporates them all. Law, psychology, sociology, religion or – as some prefer because the word I just used is so loaded – spirtuality (as in I am spiritual, but not religious), systems analysis and modification, and, I suspect, on and on into related fields already being looked at like narrative story telling, interpersonal and transpersonal relations, dance, music and composing (the latter three, and perhaps narrative, buiolding on the idea of art form.

    So the let’s go slow aspect of our search for “an answer” (are there many, should we think outside the box?) is probably very healthy, frustrating as it is not to have AN ANSWER.

    As always, kudos for your fine work.

    John

  3. Hi Diane,
    I also have mixed feelings about developing a certification process for mediators. By comparison, the International Association of Facilitators provides a Facilitator Certification Process. After completing an application and paying a fee, the facilitator’s application is reviewed by two accredited assessors. Successful candidates are invited to an assessment day for testing where they must demonstrate their skills, submit to interviews and and conduct a workshop designed to evaluate the candidate’s abilities. The IAC has identified core competencies for facilitators and the evaluations are designed to test these competencies.

    http://www.iaf-world.org/i4a

    What do you think about developing such a system for mediators?
    Dawn

    In theory this process sounds impressive but it also seems very subjective. Sounds like it provides a whole new industry for the certification process.

  4. I cannot tell you how many times I get a call or email from someone with 40-hours of training who wants to offer their volunteer services for our program. In nearly every case, it is from someone who has little knowledge of what a community mediation model looks like, has almost no experience, and yet has all the confidence in the world. We always require our mediators to go through our own training.
    It’s frightening what some people call mediation and mediation training. I am scared about how easily the public is being misled (and ripped off) by so called mediators and trainers with a modicum of training or experience.

    The change to certification has to come from within the field. If we allow anyone to wear the title of mediator regardless of their qualifications, then it’s only a matter of time before something goes terribly wrong, the industry falls under public scrutiny and restrictions start getting placed and enforced from outside the industry.

    I think a good way to look at this issue is to analyze how the public might select mediators if there is no certification process. Whether it’s cost, reputation, agreement rate or accessibility, these qualifiers don’t necessarily say much about how likely a mediator is to help you resolve your conflict. There needs to standards on what is considered mediation and what makes an effective mediator, and we need to be the ones to initiate that change.

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  6. Folks, these comments reflect the range of views on the question of certification – and, I think, mirror my own self-doubt and vacillations. Thanks to you all for adding your comments.

    I also want to offer apologies – because of technical difficulties, earlier comments on this post unfortunately have vanished. To those who took the time to make comments earlier, I am sorry for this unexpected problem and for the convenience. It’s as frustrating for me as no doubt it is for you.

  7. Dawn, I’m with you. Here in Maryland, community mediators have rallied together to develop a performance based evaluation process. I was just evaluated this past Saturday. I am a volunteer coordinator and I support the skill development of other community mediators, partly by co-mediating with them. I model the process and by give feedback to my co-mediators. Out of a possible 102 points, I expected to do quite well, and my colleagues assured me that I would likely achieve a score close to 102. While I am still very proud of my score (84), it was far from what I expected. During the feedback session, I learned some new skills that I cannot wait to implement. So, however advanced our skills may be, we probably all have a lot yet to learn. A performance based evaluation process is, to me, the best possible way that a mediator can have their skills assessed.

  8. One of the challenges with any evaluation system of course is ensuring that the system measures and weighs objectively. One of my colleagues who was involved in evaluating mediators in a pioneering program she was hired to run has described the gender bias that pervaded evaluations that were supposed to be objective.

    Rick, you sound like someone who cares very much about professional development – I so admire your openness to feedback and to continued learning. I’d be very interested in following the efforts of the Maryland community mediators. I hope you’ll keep me apprised. Perhaps you might even be interested in drafting a guest post for me on that subject. I’d be honored if you’d consider that.

    Once again, thanks to you all for commenting.

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