Category Archives: Careers in Mediation

Mediation career myth-busting: 5 urban legends it's time to debunk

Mediation career urban legendsEver since the publication of a Forbes article that named mediation to its list of “America’s Most Surprising Six-Figure Jobs“, I’ve been inundated with emails from mediator-hopefuls eager to stake a claim to all that cash. Troubling to me, many of them hold mistaken notions about mediation as a profession and about qualifications to mediate. To help them, and save them and me time, I’ve decided to use this post to gather some persistent myths about careers in mediation and then swiftly dispatch them. Readers are of course welcome to add and then debunk in the comment section their own favorite urban legends about mediation practice.

24 (or 30 or 40) hours of training is all you need to become a mediator.

No, it’s not. A mediation training serves as an introduction to basic concepts: conflict behavior; a framework for negotiating; communication and conflict management skills; and ethical issues, just to name a few topics. It is an orientation to the profession, not an instant qualification. At that point you know enough to be dangerous but not enough to be good at it. Consider for example other occupations – therapist, accountant, electrician. Would you hire someone who had only 30 or 40 hours of training to help you through a difficult personal transition, give you tax advice for your business, or rewire your house? I didn’t think so. A well-conceived, well-run mediation training conducted by skilled mediators who are effective teachers serves as a sound introduction to mediation; it provides a foundation for the hard work ahead. But it’s a beginning and not an ending point. Beyond that first mediation training, it takes additional education and advanced training, including supervision by experienced practitioners over the course of dozens of cases, to develop the capacity to mediate effectively. Please read an article I’ve written about this, “Preparing mediators for practice: mediation training or mediation education?“.

Lawyers are already qualified to mediate by virtue of their profession and need little if any mediation training.

At the ABA Section on Dispute Resolution Spring Meeting in New York City in April, I attended a presentation on careers in ADR. I winced when I heard one of the panel members reassure the audience that lawyers automatically make great mediators since they already know a lot about negotiation. Not so. As a matter of fact, most people – and that includes lawyers – have little if any formal training in negotiation theory and skills, despite the fact that negotiating is something we all do daily. Moreover, the kind of negotiation that many lawyers are familiar with is traditional distributive, value-claiming bargaining and not the integrative, value-creating negotiation that mediation offers. In fact, given the adversarial nature of the practice of law, drilled into lawyers like me beginning with our first day of law school, lawyers who become mediators face the challenge of adapting to a practice based not on advocacy but on collaborative problem solving. Over the years, I’ve taught a lot of lawyers and judges to mediate; mediation is seldom second nature to my brothers and sisters at the bar and bench. It takes time to learn to develop new habits or retool finely honed skills to use in new contexts. For more discussion, read “You be the judge: do retiring justices make the best neutrals?

Lawyers always make the best mediators (or, alternatively, only lawyers can be mediators).

I’ve addressed that one here. Exceptional mediators come from a wide range of occupations and backgrounds. Some are lawyers; some are not. No one occupation serves as automatic guarantee of mediation talent.  Nor is a law degree or bar card required for private practice as a mediator. Let me be clear: mediation does not constitute the practice of law (PDF). However, several caveats: be aware that some disputes do require subject matter expertise, and certain panels demand specific qualifications or experience, which may include legal expertise or a bar admission. Be aware, too, that in some jurisdictions mediators may be limited with respect to the kinds of services they can provide and must take care to avoid engaging in the unauthorized practice of law. Before you hang out your shingle, educate yourself about mediation in the state where you plan to practice.

Online training in mediation is a great way to get certified as a mediator.

A web search for online mediation training will yield numerous results – there are plenty of programs out there. Although I am willing to be proved wrong, I think they’re a big waste of money and time. In fact, I cannot imagine why someone would want to learn to mediate this way. Here’s what I wrote two years ago (and I’ve seen nothing yet to persuade me to revise my opinion):

Online training for mediators warrants a special caveat. I have said this before and it is worth repeating: online mediation training which purports to prepare students for face-to-face mediation is not worth your time and money…If you’re thinking about getting training in mediation, please be aware that great mediation training is highly experiential and interactive, reinforcing the concepts of collaboration and teamwork. Acquisition of learning is achieved through interpersonal interaction–through class discussions, multi-party exercises, and role-playing. It’s a very much hands-on experience to get students in touch with the deeply interpersonal dynamics of mediation itself.

I would therefore caution you about mediation trainings offered as correspondence or distance learning courses which students complete online and at their own pace with no interaction with other students. A mediation correspondence course which affords no opportunity for face-to-face and group interaction with coaches and fellow students is simply no substitute for the real thing.

There’s another big drawback to online training in mediation: your first mediation training represents your very first network of contacts, support, and potential referral sources or even future business partners in the ADR field. If you do your basic mediation training online, you’ll miss that important first opportunity to build real-world connections, particularly ones close to where you live and work.

By the way – and this is an important point here – watch out for the word “certified” and be careful about training program claims about mediator “certification” – you can read more about that here. At the time I write this, public licensing or certification for mediators in private practice does not exist anywhere in the U.S.

I can make big money as a mediator – right after I finish my 30-hour training.

Like the suspicions about Barack Obama’s birth certificate, this is one urban legend that just won’t die. No, you can’t. If you doubt me, then please read this: “Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?” Can you succeed in a career in mediation? Yes. But it takes hard work, effort, a sound business and marketing plan, a little luck, and a substantial investment in time. Building a profitable practice won’t happen overnight. And it won’t happen until long after your first mediation training is over.  While we’re on the subject of money, I do have an observation to make. As a mediation trainer, I’ve talked to a lot of people over the years who wanted to be mediators. It used to be that what motivated people to become mediators were things like the desire to do good or to be of service; or, in the case of the many lawyers I’ve worked with, to regain career satisfaction or find a saner way to help people resolve problems. But lately, judging from the emails I’ve gotten these days, the emphasis is less on idealism and more on naked economic ambition. There’s absolutely nothing wrong with making money as a mediator. In fact, I believe we should oppose institutional forces that seek to devalue our services. But if all you care about is the cash and not the clients, I have to wonder why you’re bothering.

Update:

My friend and colleague Tammy Lenski, who blogs at Making Mediation Your Day Job has debunked one more urban legend: “You say you’re a certified mediator. Says who?” This is a must-read post that clears up the confusion about the issue of mediator certification.

Please contact me…but kindly read this first if you need advice

please contact Mediation ChannelI’ve been blogging for over four years now. During that time I have gotten more emails than I could begin to count from readers asking for advice, looking for help, offering criticism or praise, passing along stuff they knew I’d enjoy, or just getting in touch to say hello. With only a few rare exceptions, I’ve enjoyed hearing from every one of them and have been happy to help when I can.

Your emails continue to come in, more so now than ever. So, to help us both, here are some things for you to know before you contact me.

If you have a conflict you’d like to resolve or you need help preparing for a negotiation or tough conversation…

Please get in touch. I’d be glad to take time to understand what you need and where you want to get to, and answer your questions about how you and I might work together. You can phone me, too, or Skype me.

If you are looking for legal advice…

I’m so sorry, but I can’t help you. Please contact and retain the services of a competent, licensed attorney admitted to practice in your jurisdiction who can give you the advice you need to help you with the decisions you’re facing. I wish you all the best.

If you are a blogger…

It’s always great to hear from a fellow blogger, particularly someone who’s new to blogging. Your fellow bloggers are here to help. If you haven’t done so yet, please read this post, “Just launched a dispute resolution blog? Here are 6 things effective bloggers do“. It contains advice that other bloggers gave me early on when I began blogging. If you have further questions, just give a shout.

If you want advice on becoming a mediator…

Before you contact me with any questions about becoming a mediator, I ask that you carefully read the following posts first, which address issues in mediation training, education, and career opportunities in the United States. They may answer your questions and save us both time:

I’d also suggest that you visit Making Mediation Your Day Job, a superb online resource on career and marketing for mediators by successful conflict resolution professional and educator Dr. Tammy Lenski. I highly recommend to you her book, Making Mediation Your Day Job: How to Market Your ADR Business Using Mediation Principles You Already Know.

If you have specific questions about becoming a mediator in your geographic location…

I practice in the U.S. If you want information on how to become a mediator elsewhere in the world, the best place to find it is to contact mediators in that country to learn about requirements for practice, as well as information about the market there for ADR services.

I practice in Massachusetts. If you want specific, detailed advice about practicing in some other state, I strongly urge you to get in touch with mediators in your area to find out what training, education, or other requirements would be necessary for you to succeed as a mediator there. Find professional membership organizations for mediators; they can be a good resource. Alternatively, visit the web site for the Association for Conflict Resolution where you can locate the regional chapter for your area.

If you’re having trouble finding someone to help you, let me know. I have contacts all over the U.S. and throughout the world. I’d be happy to help however I can.

If you are a recent graduate seeking mediation career advice or have just completed a mediation training…

Have you sought the advice and help of the career services office of your graduating institution? What about your professors? They should all be your starting point. If you haven’t done so already, get in touch with them and ask them for their advice. They’re there to help you.

Ditto for the organization that just trained you, if you have just completed a mediation training program. IMHO, any program worth its salt should be ready to answer your questions, be knowledgeable about issues involving careers in mediation, be prepared to help you take the next steps to continue your training and education as a mediator, and connect you with experienced mentors who can help you develop the capacity to mediate competently. (This is why I cannot emphasize enough the importance of thoroughly vetting any mediation training program before you invest your time and money. Too many training programs are happy to take your money and then send you on your way.)

If you are contemplating a degree program in dispute resolution and have questions about careers in that field…

Contact the career services office of that degree-granting institution. Ask them what their alumni are currently doing and what percentage have full-time employment in the field. Find out what kind of placement support will be available. Contact the faculty as well to ask for their views. If possible, request informational interviews with alumni to ask what they think and what advice they might give.  I can’t tell you whether getting a degree in dispute resolution or some other field makes sense for you; you might want to work with a career coach who can help you with those kinds of choices.

No matter what…

I take the time to personally respond to emails. If you contact me, I would appreciate it if you would be so kind as to acknowledge my reply and let me know that you received it. Sadly, people seem to forget that these days. Please remember that it’s a very small world and little things like that can make a difference. Build relationships wherever you can: it’s what mediation is about after all.

Thank you for taking the time to visit this blog. I appreciate all of my readers and look forward to hearing from you.

Dispute resolution job posting: Meta-Culture seeks trainer, facilitator and mediator

Meta-CultureI am honored to call friend the visionary entrepreneur and international dispute resolution professional Ashok Panikkar, who is the executive director of Meta-Culture, the only integrated dispute and relationship management consulting group in the Indian subcontinent. Meta-Culture, based in Bangalore, is in fact two companies: Meta-Culture Consulting (MCC), a corporate and social consulting business, and Meta-Culture Dialogics (MCD), a non-profit center that works in the community space.

Fast-growing and successful, Meta-Culture is currently hiring, seeking an experienced trainer, facilitator and mediator to deliver training programs, facilitate dialogue and conduct interventions in the field of conflict management and allied subjects. Primary responsibilities for the position include:

  • Client management and liaison with multinational companies and various social sector organizations in India and abroad.
  • Conducting innovative training programs in the areas of Conflict Management, Mediation, Negotiation, Cross-Cultural Communication, Critical Thinking, Creativity and Innovation.
  • Conducting diagnostics interviews, focus groups and needs assessments for training and consulting projects.
  • Preparing concept notes and recommendations for assessments and interventions.
  • Mediating disputes in the workplace and community.
  • Managing projects through their entire life cycle.

For further details, click here to download the complete job posting (PDF), along with information on qualifications and compensation. Inquiries or resumés with a cover letter may be directed to Rachel Burks, email Rachel@meta-culture.in, or call: +91-80-4152-4785/+91-80-4117-2421. Good luck to job hunters, and my best wishes to Meta-Culture, which celebrated its fourth anniversary on May 2.

Mediate.com CEO responds to questions about new Mediator Certification Program

questions for Mediate.com CEO Jim MelamedThe following interview is reprinted with permission from the Mediate.com web site, with thanks to Mediate.com CEO Jim Melamed. No enhanced interrogation methods were used in the making of this interview. Please feel free to add your comments at the end of this post.

Mediate.com Certification Program: A Grilling of Mediate.com CEO Jim Melamed

Three of the mediation world’s leading bloggers, Diane Levin, Geoff Sharp and Victoria Pynchon, not necessarily great fans of mediator certification, interviewed (think “grilled”) Mediate.com CEO, Jim Melamed, on the new Mediate.com Certification Program. Here is the interview:

Question: How will Mediate.com’s certification program work?

The Mediate.com certification program allows interested mediators to have their training, experience and professional information reviewed to see if they meet the stated Mediate.com certification standards. A critical component of the Mediate.com program is that we require all this submitted information to be transparently provided to the public. So, we don’t just review the qualifying information, we make everything we review publicly available. Needless to say, confidential information is neither requested nor disclosed.

Question: What are the benefits for the public? For the profession?

The primary benefits to the public include motivating mediators to provide comprehensive information conveniently online; having this information systematically presented to the largest possible audience; and Mediate.com offering the value-add service of taking a close look at the mediator’s provided information to ensure that it is comprehensive, congruent and satisfies the stated certification standards. Presumably, the Mediate.com Certification Program will be one of a number of factors helping people to make mediator selection decisions. For good reason, this program will elevate the confidence of many mediator selection decisions.

Still, let’s be clear, one does not need to be a Mediate.com Certified Mediator to mediate. For example, we have over 3,000 mediators in our directory and only about 500 are seemingly qualified or even apply for Mediate.com Certification. We believe in all cases that the right mediator for a particular situation is the one that participants want.

The benefits to the profession are: making it abundantly clear what it is that distinguishes mediation and insisting on these qualities; elevating standards for mediator information disclosure; providing a path for mediator development not based upon profession of origin nor advanced degrees; and, in the Internet age, satisfying consumer expectations in terms of transparency and disclosure. Mediate.com seeks to respond to these elevated information expectations.

Question: On what basis does the proposed certification rest?

Perhaps the greatest rationale for Mediate.com acting is that we believe acting is better than not acting.

For decades, the mediation field has, as a matter of policy, committed itself to “skills based assessment” and, later, to a “paper and pencil test,” none of which has yet been effectively developed or implemented. This is in spite of nearly two decades and millions of dollars of grant money being applied to these issues. The cost of this development and deployment of a true skills-based system would be enormous, if possible at all (we really do not know what makes an effective mediator in each practice area); so costly by my estimate that it is simply not going to happen, at least not for “all mediation,” over the next years.

The world of mediation is also breaking into niche mediation industries, each with its own culture and practice expectations. This is both good and challenging from a quality assurance perspective. For example, the behavior and skills that will be effective for a commercial mediator in a law firm conference room may be very different from the behavior and skills that will be effective in resolving a gang dispute, custody battle or workplace departmental battle. Still, we also simultaneously think that there is something to say for a system that brings all mediation and mediators together, if only to protect the good name of “mediation.”

We are thus emphasizing these qualities to the consuming public:
• Participation in mediation negotiations is voluntary
• Participants have complete decision-making power
• The mediator is to be impartial between the participants
• Mediation communications are confidential unless understood otherwise
• Mediation allows for optimized solutions
• Mediation does not preclude any other process
• If participants do not reach agreement in mediation, their legal rights should not be prejudiced.

Now, to some, all of this is “obvious.” And we say, “of course.” But I will suggest that many state and federal agencies and court systems do not necessarily see things this way. They are far more interested in disputes being resolved and dockets cleared than in protecting the mediation process or in empowering participants to be at their best.

The world has also changed. Importantly, the Internet is now available as a source for the immediate delivery of unlimited information and comprehensive disclosure. In the context of empowering consumers and participants to “self-determine,” we think it is worthwhile to reward (with our mediation certification) those mediators that demonstrate substantial training, experience, clear commitment, and comprehensive information disclosure and transparency.

Question: What qualifications, standards, and/or objective criteria will certification be premised upon?

First, let me again emphasize that certification is completely voluntary. Mediate.com is not saying that any mediator needs to be certified. We believe that the right mediator is the one the participants want. So, we are certainly not precluding anyone from mediating.

As to the adopted training and experience standards, these have now been in place at Mediate.com for a number of years for self-evaluation as a “Senior Mediator” in our Qualifications Disclosure Program. In fact, these standards were originally adopted as an outgrowth of the work of the ACR Task Force on Certification. The ACR Task Force gave up, if only for practical reasons, on SPIDR’s previous commitment to a skills-based assessment. Despite the ACR Task Force’s commitment to a paper and pencil test in 2004, none has been developed nor implemented to date.
The concepts of skills-based or paper and pencil testing sounds great in the abstract. It is more challenging when, in this testing context, one needs to ask what specifically makes for an effective mediator, and how can we measure this in a valid and reliable way? Further, assuming you can somehow come up with this desired knowledge and skill base and all evaluation mechanisms, you would then need to identify the specific curriculum a mediator applicant would need to take to be best prepare to pass the test. And then one would need to approve those training programs. It all becomes rather endless and nothing happens.

And so, I suppose, the ultimate credibility of the Mediate.com standards comes from: 1) The ACR Task Force on Certification having reached essentially the same conclusions (except for the paper and pencil test); and 2) The elevated Mediate.com standard being better than either no standard or existent 30 or 40 hour (low) standards that too commonly exist. As imperfect as the Mediate.com’s program is, we believe that it is a step in the right direction and that it is what can be reasonably accomplished today.

Question: So, are experience and training a proxy for skill and ability?

Because of the difficulties raised above in measuring true skill-based competency (especially on an across-the-board mediation basis), I would say yes, extensive training and experience, including providing specific practice area case information, references, and all the other required disclosures are in fact a proxy. To some extent, this is appropriate (if only compared to reasonably available options). For example, when people ask me what I think mediation qualification standards should be, I sometimes half humorously respond: “You should need to mediate 10 cases and still want to mediate.” If we cannot reasonably measure competence per se, I would agree that elevated training and case experience, comprehensive disclosure, and perseverance may in fact be our best available proxy.

Question: How will Mediate.com’s Certification Program relate to emerging practice area, court, agency, and state mediator certification programs?

Mediate.com’s goal is to set reasonable standards for today available to the entire field of mediation. For those who find such accomplishment beneficial, this may well be a welcome means of establishing credibility and reputation. Surely, the Mediate.com program will not be the only certification program nor should it be. We welcome, expect and encourage the development of additional practice area, court, agency and state mediator certification programs. We suggest that these programs may also want to consider the 100 hour of training and 500 hours of casework standards, as these are based on the original ACR Certification Task Force Report and as a measure of consistency will likely assist both the public and the profession. In any event, this 100/500 standard is surely more appropriate than the current common 30 or 40 training requirements. We also think it important that judges, lawyers, and all other professionals understand that substantial mediation training and experience are necessary to be a most effective mediator and that simply being a silver-haired professional or retired judge is not enough.

Very specifically, I see the Mediate.com Certification Program rather easily integrating with the IMI certification program for commercial mediators (see http://www.imimediation.org) and, hopefully, with emerging divorce and workplace certification programs from ACR. Our hope is that Mediate.com’s efforts will serve as a catalyst further motivating such thoughtful development. Mediate.com literally requires our certified mediators to list all organizational affiliations (including other certifications) and we look forward to lending visibility to all meaningful efforts to elevate mediator performance.

Question: What kind of instrument or assessment will Mediate.com use?

The Certification Application is at this location: http://www.mediate.com/products/pg1128.cfm Additional guidance on the principles and values behind the assessment is available here: http://www.mediate.com/products/pg1129.cfm. What is critical to understand is that, whatever information Mediate.com reviews and considers for certification approval is the exact same information that will be transparently made available to the public. We will do our very best to treat applicants both as consistently and as flexibly as we can within the stated standards.

Question: Given that there are numerous (and often conflicting) models of practice, what will Mediate.com do to ensure that certification treats them all fairly and avoid privileging one over another?

Not only are there constantly changing and emerging models of practice, there are entire new mediation industries being hatched on an ongoing basis. For example, two years ago, few people thought of foreclosure mediation, or mass catastrophe mediation or marital mediation, yet each of these niches is now rapidly growing. Bottomline here: we are not even asking about models other than to confirm in all circumstances that the participants have complete decision-making power.

Question: What will Mediate.com do to ensure that the program advances and not hinders professional diversity?

This is one of the biggest problems with both the current system and contemplated skills-based assessment. Because of the uncertainties as to what indicates a competent mediator, the marketplace tends to turn to traditional indicators of professional competence, such as a law or some other advanced graduate degree. In fact, without other available valuable indicators, consumers and their advisers may select an attorney mediator based upon his or her reputation as a litigator or a retired judge who just came off the bench. These kind of “conservative” profession of origin selections make in extremely hard for minorities and young professionals to break into the mediation ranks.

At the other end of the spectrum, imagining that we could somehow develop a competent skills-based assessment, there is recognition by the ACR Task Force that the cost of face-to-face evaluation would be approximately $2000 per candidate. This was also found to have an undesirable impact on diversity and the development of minority professionals as mediators.

In sum, while one may criticize the Mediate.com Certification Program, I do not see a strong objection being that it favors any particular mediation model nor that it is overly discriminatory. In fact, we take great pride in the clear pathway we provide for mediators, over time, moving up the ladder to eventually become Mediate.com Certified as well as certified by other mediation practice area initiatives.

Question: What will the application process involve? What about fees?

Mediate.com is offering Certified Mediator Status to Premium Members of Mediate.com who Qualify as a “Senior” Mediator (see http://www.mediate.com/articles/review.cfm and http://www.mediate.com/articles/faq.cfm)

Mediators must provide and annually update complete practice information including: all degrees earned, professional background, mediation and professional credentials and affiliations, description of mediation training completed, description of mediation practice and approach, description of mediation costs and fees, specification of mediation case experience on a practice area basis, at least one recent picture, an indication of liability insurance or not, and maintaining an ongoing professional activities log of 12 hours of annual continuing education.

The Mediate.com Certified Mediator must also post links to three or more references prepared to vouch for his or her mediation work, or the Certified Mediator must indicate that references are promptly available upon request.

In terms of cost, one needs to be a Premium Member of Mediate.com to apply ($199/yr). Assuming this, there is a $150 certification application and first year fee. $50 is refunded if you are not approved. There will also be a $50/yr certification renewal fee.

Question: How will the program be administered? What kind of complaint and enforcement mechanisms do you propose to put real teeth into this certification program?

Applications will be acknowledged and responded to within 30 days of submission. This response will be an approval, disapproval, request for additional information, and/or a request for a phone interview with the Mediate.com CEO. Applications will initially be approved or rejected by the Mediate.com CEO. Applicants can apply for certification once per calendar year.

Applicants may make one Request for Reconsideration per application, which will first be considered by the Mediate.com CEO and then, if approval is still lacking, will be submitted to a 3 member committee of the Mediate.com Advisory Board. This committee may request additional information and/or request one or more phone interviews. Final action upon a Request for Reconsideration will be made within 60 days.

All complaints against Mediate.com Certified Mediators will be promptly investigated by Mediate.com. Certified Mediator status may be rescinded by Mediate.com for good cause.

Preparing mediators for practice: mediation training or mediation education?

mediation training raises many questionsRecently the alert I set up to monitor appearances of the keyword “mediation” in Twitter posts pointed me to the following message: “Just got back from Civil Mediation Training (30 hrs) to be a Qualified Neutral”. The message took me aback.

30 hours? To be a “qualified neutral”? Qualified? For what?

The persistence of the notion that 30 or 40 hours is sufficient time to train neutrals has long troubled me, a trainer of mediators. It is one advanced by court-connected mediation programs, some private training companies, and mediators themselves. It is even codified in law and court rule. But to be confronted in this way by someone’s certainty that 30 hours prepared them adequately to mediate civil disputes was jolting.

In the trainings I am involved with, we make it clear to participants that a basic mediation training provides an orientation to the field of mediation but that hard work and further learning lie ahead. The best students are those who come away with the humble understanding that they do indeed have a long way to go toward mastery. The ones who keep me awake at night are those who already have their business cards printed on the last day of the training.

My colleague to the north, Tammy Lenski, is clearly troubled, too. She writes:

Is there a qualitative difference between training mediators and educating mediators? I think so and I’m going to put myself far out on the limb here. No doubt one of you will want to shake me right off.

While training will likely always have its place in the ADR world, I’d like to see greater embrace of educating and less commitment to short-term, “let-me-call-myself-certified” training.

Training is traditionally concerned with the development of skills and preparation for specific jobs or roles.

Education is traditionally concerned with the development of the intellect, stretching and learning to use one’s mind.

Like Tammy, I have to wonder out loud whether it’s time for our field to look closely and critically at what it takes to prepare people to become effective mediators. I know that 30 hours or 40 won’t do it. But what kind, degree, and amount of training or education or practical experience under supervision – or some combination of those – will produce a competent mediator?

Time for mediation certification in the U.S.? Not this way, thanks

caution proceed with careThe Association for Conflict Resolution‘s Family Section released the latest edition of its quarterly newsletter, Family Mediation News. A front page article insists in large typeface that “Certification of Mediators Needed Now More than Ever” (PDF).

Author Stephen K. Erickson, chair of ACR’s Taskforce on Mediator Certification, explains why he thinks so:

Certification of mediators is no longer an issue that should be debated. Certification is essential to the continued development of the mediation field and it must be accomplished in the near future for two important reasons: 1) Increasingly, adjudicative models of dispute resolution are being called “mediation” when, in fact, they are actually coercive and/or evaluative settlement conferencing techniques masquerading as mediation, and this confuses the public; and 2) ACR members who have toiled for years to provide the public with quality dispute resolution processes have difficulty marketing their products when the public is unable to distinguish between a qualified mediator and an unqualified person who decides to enter into the field with little or no training in mediation.

According to Erickson, before establishing certification one must first determine what constitutes “good mediation” (Erickson’s phrase, not mine).  When it comes to recognizing “good mediation”, however, Erickson seems to adhere to the Justice Potter Stewart school of “I know it when I see it“, or rather “I know it when I don’t see it”.  Erickson argues that since one of mediation’s central tenets is the principle of self-determination, mediation practices that fail to support self-determination do not constitute the competent practice of mediation. So, because they undermine self-determination, Erickson excludes from “good mediation” evaluative and directive approaches, such as mediation conducted by a “retired judge” or by a mediator not “from a behavioral science background” who relies heavily on caucusing (private meetings with parties individually, rather than joint meetings with all parties present).

I am personally uncomfortable with any labeling of mediation practices as either “good” or “bad”. This unnuanced view does not help us describe effective mediator process choices that produce for disputants successful and satisfying outcomes. Although at one time I argued in favor of formal credentialing or licensing, I no longer support it with the same fervor, since too many questions remain to be answered, and Erickson’s discussion of the issue of certification illustrates why I think we should all be concerned when anyone insists that certification is integral to the advancement of our field.

For one thing, who says that facilitative mediation is the best way to practice?  If self-determination matters as much as Erickson says it does, then what if parties prefer to work with an evaluative mediator? What if they really do want an evaluation at the end of a hard day of facilitative mediation to help them move beyond impasse?  What if they prefer to work in private meetings with the mediator, rather than directly with each other face-to-face? Why must we assume that one style of practice fits all?  In addition, who gets to decide what’s “good” or what’s “bad”? Surely not the mediator. If self-determination matters, shouldn’t we be listening to the users of mediation services tell us what works for them and what approach best fits their needs, rather than paternalistically insisting that we know what’s best for them?  Others, respected scholars, have pointed out that evaluation can in fact “bolster party self-determination … by leading to better-informed decision-making”.

Moreover, given how dysfunctional ACR has been for several years now as an organization and unresponsive to the concerns of members, why should I place confidence in its ability to steer a clear course for the ADR profession on the important question of certification, particularly since it has already dropped the ball once on this issue?

I agree with Erickson that self-determination is key, but not in the way he imagines it; I say let disputants determine for themselves what kind of mediator and what kind of process they need.

In fact, I would argue that another mediation principle is equally relevant: informed consent. Rather than excluding evaluative mediation from the list of “good” practices, perhaps it’s time instead to urge all who call themselves mediators to provide disputants with sufficient information about the approach they utilize — facilitative, transformative, evaluative, narrative, or a hybrid of approaches, who cares — so that the disputants themselves can make informed choices when it comes to selecting the best mediator for the job.

In the renewed call for certification, it strikes me as premature and unwise to exile members of our own community. New direction depends upon fresh thinking, not on orthodoxy. A facilitative mediator myself, I like to think that mediation remains a large enough tent that many styles remain welcome.

Too many mediators, not enough mediations: is it fair to keep training neutrals with career prospects so grim?

Mediation careers: road to success or straight to the poorhouseLast summer the Southern California Mediators Association posted to its blog an essay by mediator Christine von Wrangel provocatively titled, “Mediation: A Lucrative Career or a Ticket to the Poor House?“, a polemic directed against the many universities and training programs raising the career expectations of hundreds of mediator-hopefuls:

Almost every accredited or unaccredited university has jumped on the “mediation” bandwagon. Enrolling in these courses can cost students from $500 to well over $1,000 per course, depending on the provider. For universities, retired judges, conflict resolution institutions, government and private mediation providers, the business of offering mediation courses has become lucrative.

Marketing companies have now jumped on the band wagon, promising they can help mediators find a profitable niche in the market, provided of course they are willing to pay the thousands of dollars it takes to launch a marketing campaign.

Who are the winners in this mediation frenzy? Clearly, the providers of mediation training courses and related services.

Who are the losers? The students enrolling in these courses, because most have been lead to believe that they will be able to carve out a living as a mediator after “graduation.” And this is rarely the case.

Von Wrangel asked,

Is it ethical to continue to inundate the market with more mediation courses and classes, when most students who graduate face a superfluity of mediation providers, with little hope to start a successful mediation practice?

Wellington mediator Geoff Sharp points his readers to a study recently released that provides the statistical evidence for von Wrangel’s concerns. In a report titled, “Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice“, Urška Velikonja, a Teaching Fellow at Harvard University, presents data that the supply of mediators far outstrips their demand and paints a distressing picture of the realities of mediation practice for the hundreds of aspiring mediators who emerge each year from trainings and degree programs across the U.S.

Velikonja singles out mediation trainers for some sharp criticism:

The failure by mediation trainers to provide accurate information about opportunities to make money in mediation contributes to excess entry in the market for mediation services….[I]naccurate information about the availability of mediation jobs as well as overoptimism lead aspirant mediators to spend money on mediation training and starting a mediation practice, and incur opportunity costs by foregoing other career opportunities. Not only may the failure of mediation trainers to fully disclose the pros and cons of mediation practice and correct trainee misapprehensions be unethical, it also leads to socially inefficient outcomes. To correct this misallocation of resources, mediation training programs should disclose information about “the known opportunities, limits, and obstacles in mediation in mediation employment and professional practice opportunities.”

She even anticipates the counterargument mediation trainers often trot out:

While it is true that mediation may be a useful skill in our work and familial lives, it is likely that fewer people would spend hundreds or thousands of dollars on mediation training without the expectation that training could lead to a career change.

I at least am one mediation trainer who is brutally honest when people contact me for advice on becoming a mediator. I cringe every time I hear someone tell me that they plan to leave a well-paying job to become a mediator as soon as they finish their basic mediation training. I routinely tell people not to quit their day jobs, although many of them seem determined to do so, buoyed up by an unreliable optimism. And I despair when I get the inevitable email from a recent university graduate with a degree in conflict resolution, desperately looking for work as a mediator and frustrated because their college placement office could not help them find a job.

I don’t believe (yet, at any rate) that we should stop training people to be mediators. I still believe that the skills are useful in workplace, civic, and family settings. But Velikonja’s report should be required reading for anyone who is thinking about becoming a mediator. And I hope mediation trainers take the time to read it, too.

You be the judge: do retiring justices make the best neutrals?

Judges as neutralsAn article in this week’s Massachusetts Lawyer’s Weekly asks, “Retiring judges have always flocked to ADR. But do they make the best neutrals?” While judges may make great arbitrators — a role which is essentially judging in a private forum — whether they make good mediators is a whole other story.

ADR legend Frank Sander, interviewed for the article, had the following observations:

“Arbitration is private judging, so I think it is very natural that judges would want to become arbitrators, and they generally do a good job,” says Frank E. Sander, a Harvard Law School professor who is considered a pioneer of ADR for his work studying the topic over the past three decades.

But mediation is a very different process, and Sander questions whether judges can step down from the bench and instantly be “competent [as] mediators without further training.”

“True mediation — and I don’t mean settlement activity by judges — is a complex process that requires very different qualities from judging because you’re looking for an accommodative resolution,” he says. “You’re not assessing fault; you’re trying to find a mutually acceptable resolution.”

If a lawyer is looking for a competent mediator, he should not assume that a judge is that person, maintains Sander. In fact, he says, “you should almost assume that a judge wouldn’t be good, though there are clear exceptions to that. … Mediation is a future-oriented process, and court and litigation are past-oriented processes.”

My friend Geoff Sharp, a New Zealand barrister and mediator, weighed in on this issue a year or so ago with “Great on paper, crap at the table“. Geoff linked to an article by mediator Jeff Kichaven, who recounts his experience at the 2006 American Bar Association Section on Dispute Resolution conference with a general counsel who didn’t seem to appreciate the difference between mediators and judges. Kichaven distinguishes the role of the judge from that of the mediator:

Critically, the skills of the professional mediator are completely different than the skills of a judge. The job of the judge is to judge others. The skills of a judge serve a system where juries of strangers follow preset rules and make decisions that are supposed to be consistent and predictable. Judges, therefore, master rules of evidence to restrict conversation and help juries reach these consistent, predictable results. Hearsay, relevance, opinion—these and other limiting rules focus the jury on legally-germane issues and consistent results. Skilled application of these rules is necessary for the professional judge.

Mediators are unshackled from that system. The job of the mediator is not to judge at all. The mediator’s job is to stay curious and leave decision-making to the parties themselves, based on their own standards. Results are individual, spontaneous, and sometimes quite unpredictable. So mediators and judges direct conversations differently. Good mediation technique helps parties gather and exchange whatever information is important to them. That information can address the emotional, financial, and other barriers to settlement. It can go far beyond the “relevant” and “admissible.” So, skill in applying the rules of evidence is not only unnecessary, it can be destructive. A different skill in guiding communication is required.

Kichaven then adds,

Being a good mediator, therefore, has very little to do with having been a good judge. Frankly, it also has very little to do with having been a good lawyer. Just as there are a lot of former judges who are lousy mediators, a lot of former lawyers stink at it too. Additionally, there are excellent mediators who never even went to law school, much less served on the bench. The quality of a mediator depends on the ability to take the litigating lawyers’ own evaluations of cases and test whether, in the eyes of the clients, those evaluations make sense logically, feel right emotionally, and seem doable practically. When those tests are met, cases will settle.

Some former judges have taken the training, gained the experience, and joined the mediation profession. Many others rest on their laurels, on the “weight of the robe” and the “force of the gavel,” and cannot go beyond the raw evaluations that good litigators already know. If all you are looking for is the ability to call back to a boss at the home office and say, “Judge X told us the case is worth Y dollars,” maybe you don’t need a professional mediator. But sophisticated users are left flat by this two-dimensional approach.

As someone who has trained a number of judges over the years to be mediators, I couldn’t agree more with both Sander and Kichaven. Just because you were a judge does not mean you’re going to be a great mediator.

Judges, far more so than others, struggle in mediation trainings to grasp the concepts and put a mediator’s skills into practice. That’s not surprising. With a lifetime of experience judging — and being good at it, too — it’s difficult for them to assume a wholly new and unfamiliar role.

Can a judge be a good mediator? With training, mentoring, talent, and aptitude, the answer is yes. But without training? No way. But this is true of anyone, not just judges. No one — and I mean no one — is automatically qualified to be a mediator by virtue of their profession of origin.

Making Mediation Your Day Job: great mediation marketing resource now available in print

It’s official — successful professional mediator and ADR marketing coach Tammy Lenski has announced that her book, Making Mediation Your Day Job, is at last on online store bookshelves.

I’ve had a chance to read the book for myself. Here’s what I think:

Shakespeare once wrote, “This above all: to thine own self be true.” These words, written 400 years ago, resonate today. They do so especially for the many professional mediators who cringe at the very thought of marketing — with its associations with shameless self-promotion, glad-handing, and cold-calling. For many mediators, marketing just feels wrong.

Now, at long last, there’s a guidebook that achieves something no other mediation marketing resource has done. It helps mediators do the impossible: become more effective marketers and remain true to themselves and their work. Dr. Tammy Lenski, a mediator and mediation marketing coach who has run her own successful practice since 1997, has created Making Mediation Your Day Job, the definitive resource for mediators who want a realistic, practical blueprint for marketing their practice.

The clue to Dr. Lenski’s formula for success is in the second half of the title of the book: How to Market Your ADR Business Using Mediation Principles You Already Know. She asks readers, “Would you enjoy marketing more if your primary aim isn’t selling and self-promotion? I’m betting most of you would say yes.” Like the skilled practitioner she is, she reframes, inviting readers to see marketing anew, “as dialogue or as a learning conversation”, something mediators already know how to do, and do well.

Using humor, anecdotes, and real-life examples drawn from her clients, her students, and her own experience, Dr. Lenski encourages her readers to step outside their comfort zone and draw upon the professional skills they already have to build opportunities. She also offers sensible productivity tips, business planning advice, and useful exercises that help mediators master marketing.

What also distinguishes this work from the numerous resources available now on mediation marketing is its emphasis on professional integrity — on honoring the profession through a commitment to mediation excellence. Dr. Lenski reminds readers that it’s not just good marketing that matters; mediators also have a duty to uphold standards of excellence and develop their professional skills. She wisely observes, “In the end, it’s the quality of the work you deliver that’s going to help keep the clients coming.”

More than a book, Making Mediation Your Day Job functions like an honest conversation with a wise and caring friend. Dr. Lenski writes as someone who has been there and understands where and why any of us get stuck when it comes to marketing. She’s there to nudge us forward, with encouragement and straight talk. Making Mediation Your Day Job offers authentic, real-world advice for mediators who want to use marketing to take their practice to the next level — and all the while stay true to themselves and their work.

Congratulations, Tammy!

All in a day's work: is mediation an ideal career choice?

Is mediation a good career for you?The Wall Street Journal on its CareerJournal.com web site reports on the results of its recent survey “2006 Best Careers“.

CareerJournal.com lists 14 attributes that make a career choice an excellent one:

Advancement
Autonomy
Contribution to Society
Creativity
Customer Contact
Friendly Co-workers
Impressive to Others
Income
Intellectual Stimulation
Job Security
Lower Stress
Predictable Hours
Work-Life Balance
Benefits

Although mediation doesn’t seem to have made CareerJournal.com’s list of most satisfying careers, mediation does meet many of these criteria. Plenty of intellectual stimulation, low stress, no indentured servitude to the Almighty Billable Hour, with lots of emphasis on contribution to society and work/life balance. (The only areas that a mediation career may come up short in are income and job security, which can prove illusive although not unobtainable. One of the jokes that mediators like to tell mediation trainees illustrates this all too well: What’s the difference between a mediator and a large cheese pizza? The pizza can feed a family of four.)

This special feature of CareerJournal.com comes with advice for anyone contemplating a career change. Articles to consider include “How to Switch Careers in Midlife” and “Five Almost Painless Ways To Make a Career Change“, which recommend one step in particular that make especially good sense for anyone who wants to transition to mediation from another career: Start a parallel career. (I would not recommend Step No. 5: Go cold turkey. Quitting your day job is rarely a wise move.)

For my thoughts on mediation training and careers, please read “How to become a mediator: five frequently asked questions about training and careers in mediation“.

For a list of blogs (good resources since they offer regularly updated content) that focus specifically on marketing for mediators, visit the World Directory of Alternative Dispute Resolution Blogs.

(Via the excellent George’s Employment Blawg.)