Category Archives: Mediator Certification and Credentialing

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?

Mediation certification, part 2: the conversation continues at Cafe Mediate

Each month at Cafe Mediate, the monthly podcast series, a group of ADR professionals gathers to discuss the business, practice, and future of the field.

Last month we began a two-part discussion of certification and credentialing for mediators in private practice. Professional mediator  and author Tammy Lenski, international business mediator Amanda Bucklow, commercial mediator Victoria Pynchon, conflict specialist and NYC law enforcement detective Jeff Thompson and I continue the conversation on mediator certification, exploring these and other questions:

  • Should certification be benchmarked to the lowest common denominator of qualifications, to a high standard that is difficult to achieve, or somewhere in between?
  • What value would certification offer the public, and how would it benefit individual mediators as well as the growth of mediation as a profession?
  • How do we know certification would improve the quality of mediation services for consumers?
  • In what ways might certification have a negative impact on mediators and growth as a profession?

You can download or listen to Mediator Certification: An Idea Whose Time Has Come? (Part 2).

To enjoy this and earlier episodes of Cafe Mediate (motto: “where conversation, not caffeine, is the stimulant”), you can:

We welcome your suggestions. If you have a question you’d like us to consider or a topic you’d like to hear us address, please submit your ideas in the comment section to this post.

Mediator certification focus of latest episode of Cafe Mediate podcast series

Cafe Mediate podcast series continuesEach month at Cafe Mediate a group of ADR professionals gathers for lively, unscripted discussion of topics relevant to the business, practice, and future of the field.

In the latest episode of this monthly podcast series professional mediator  and author Tammy Lenski, international business mediator Amanda Bucklow, commercial mediator Victoria Pynchon, and I begin a two-part discussion of a subject of particular interest to mediators: certification and credentialing for mediators in private practice. Joining us is pioneer and field leader Susanne Terry, an internationally respected dispute resolution practitioner, scholar, and ACR board member who is directly involved in shaping a national conversation on the issue of certification.

You can download or listen to Mediator Certification: An Idea Whose Time Has Come? (Part 1).

To enjoy this and earlier episodes of Cafe Mediate, you can:

Next month drop by Cafe Mediate (motto: “where conversation, not caffeine, is the stimulant”)  for Part 2 of the discussion on certification for mediators. In the meantime, Tammy suggests further reading on certification. I second her motion:

Public licensing and regulation of mediators: the arguments for and against

for or against public licensing of mediators?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:

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.

The log in your eye: eliminating gender bias in mediator performance evaluations

evaluating mediators without biasThe hot-button issue of mediator credentialing and credentialing seems to be on the minds of many folks in the ADR field these days. It has generated discussion, here and on other blogs (including Tammy Lenski’s, Vickie Pynchon’s, F. Peter Phillips’s, and Philip Loree’s).

Although I have not ruled out my support entirely for public credentialing for mediators in private practice, I have concerns aplenty not only about the wisdom and necessity of such schemes, but also about the challenges in establishing workable and meaningful ones – concerns which I would need to see fully addressed before I’d give my thumbs up.

Public credentialing of mediators will necessarily involve some kind of evaluation process – which raises a whole host of vexing questions. Among the many that I anticipate is one that particularly troubles me: given the realities of implicit bias, and the difficulties still facing women and minorities in gaining visibility in the upper reaches of our field, what would be done to ensure that any evaluation of mediators is free from it?

While sorting through the email that piled up while I was away on vacation during the first 10 days in August, I came across a message from the ABA Commission on Women in the Profession announcing that the latest issue of the electronic version of Perspectives, their quarterly magazine, was now available. It got me thinking. In that issue is an article by employment attorney Consuela Pinto, “Eliminating Barriers to Women’s Advancement: Focus on the Performance Evaluation Process“.

Emphasizing the importance of awareness-raising, Pinto sets out her recommendations for creating a bias-free evaluation process – recommendations that may transfer readily to a very different profession, mediation. I particularly like Pinto’s tips for evaluators:

  • Get educated about gender bias and examine your own biases.
  • Base your comments on actual performance and not potential.
  • Comment only on performance during the period under review.
  • Base your assessment on factual examples of behavior.
  • Weigh individual competencies similarly for all evaluatees regardless of gender.
  • Avoid using derogatory, disrespectful, or overtly biased comments.
  • Avoid basing comments or scores on the evaluatee’s adherence or failure to adhere to traditional gender stereotypes.
  • Review completed evaluations for consistency and objectivity.

Photo credit: Dominik Gwarek.

To certify or not to certify: that is the question as the mediation field struggles with professionalization

which way to go with the question of mediator certificationOne of the burning questions the U.S. mediation profession faces is a difficult one: is it time to professionalize the field and establish more formal mechanisms for credentialing?

As of today, the private practice of mediation in the United States is unlicensed and unregulated by the state. No public licensing boards  oversee or regulate the private practice of mediation. Barriers to entry into the profession are virtually non-existent; no degree, no experience, no training  is required before you order the business cards that proclaim you to be a mediator.

This has understandably caused consternation among the many members of the profession concerned with quality assurance. It certainly troubles me, a trainer of mediators. And it has prompted some, like my colleague Victoria Pynchon, to wonder out loud whether it’s time to license mediators to protect the public from the unscrupulous.

As the use of ADR has spread, numerous institutions, providers of mediation services, and membership associations for ADR professionals have endeavored to set standards of quality for mediators. In Massachusetts, for example, the Supreme Judicial Court promulgated qualification standards for mediators serving in court-connected programs (PDF) (which set the bar very low indeed, requiring only 30 hours of training for mediators together with only minimal mentoring and evaluation). The Florida Court System has also established standards for mediators (PDF) providing services in programs under its purview. Meanwhile, private companies such as Mediate.com have taken steps to establish their own credentialing system, or, like the Association for Conflict Resolution, are weighing credentialing or certification for their members. Arguments in favor of credentialing run the gamut, from the paternalistic (quality assurance protects the consumer) to the pragmatic (professionalization improves the ability of mediators to compete in the marketplace; credentialing will increase mediators’ professional credibility).

As more people enter the profession, and as more consumers use ADR services, market forces and the pressures within and outside our profession push us, reluctantly perhaps, but inexorably, toward professionalization. Not so fast though, say opponents of certification.

Ombuds and blogger Tom Kosakowski points his readers toward a recent Mediate.com article by conflict manager Deborah Sword, “Professionalization of Conflict Resolvers,” which lays out some arguments against certification for conflict resolvers.  Kosakowski neatly summarizes Sword’s main points:

  • Conflict resolution is an ancient tradition that hasn’t needed certification;
  • Standardizing the process ignores the continuum of conflict resolution practice;
  • Conflict resolution is interdisciplinary and inclusive by nature while certification suggests that best practice and the principles can be quantified. Exclusionary requirements, such as needing the certification of one discipline or another, or some over-riding body, are contra-intuitive to the flexible, evolutionary nature of conflict resolution;
  • Education of users is the best protection, the alternative is to keep conflict resolution as mysterious and labyrinthine as the law, so that only practitioners understand it and problems must be turned over to the practitioner for resolution;
  • Conflict resolution is a life skill and there should not be any mystery about conflict resolution that demands that only professionals are licensed to practice.
  • Conflict resolution personalities (such as clear thinking, calm, appropriate risk taking, wisdom and a sense of humor) cannot be assessed by credentialing schemes;
  • Whose interests are being served? It seems to be the certificate granting agencies stand to gain the most; and
  • Where is the research? The data indication that “some practitioners are incompetent” is purely anecdotal and does not adequately justify certification.

Sword has raised some important concerns. I agree that the basis for any certification or credentialing scheme must be supported by evidence and not guesswork, and that credentialing be premised on fair and objective criteria not on arbitrarily chosen ones. I, too, worry that formal regulation could stifle innovation in a still-evolving profession. I agree, although for different reasons than Sword does, that assessment, a necessary component of any certification scheme, will prove challenging. We need to be careful that any scheme must not work to bar worthy practitioners from the table. And I think a healthy cynicism can aid us as we ask whose interests will a certification scheme advance.

But other arguments Sword makes have left me puzzled.

Sword believes, as do I, that “Conflict Resolution [sic] is a life skill”. But she sees it very differently:

Another discourse is that conflict resolution requires hours of training and practice for proficiency. Hopefully, that is true. However, it also not true. What we do is largely common sense and everyone should have access to the knowledge behind it. Credentialing can turn a life skill into an esoteric ritual that only the ordained can practice.

Having just concluded the final day of a 40-hour mediation training, and seen 22 participants struggle to master something Sword deems “largely common sense”, I must beg to differ.  Mastering conflict resolution skills is difficult; it takes time. If what ADR professionals do is largely a matter of common sense, then why do so many people have such a tough time resolving disputes themselves? Why does so much intractable conflict abound? Read any newspaper or tune into any major news program, and you’ll see the extraordinary difficulty human beings have in simply talking things out. If it were only that easy, no one would need lawyers, let alone mediators. Moreover, I think this line of reasoning does our field a grave disservice by devaluing the work ADR professionals undertake each day.

Sword argues that “Conflict Resolution is an ancient tradition.”  But so what if it is? So is medicine. So is law. So are tattooing and prostitution for that matter. Compelling reasons abound to regulate these practices, their antiquity notwithstanding. In any event, regulating the practice of medicine does not prevent me from cleaning and bandaging my son’s skinned knee. I doubt we need to fear that regulating conflict resolution will somehow result in penalties for the unauthorized practice of mediation if you settle that feud between your next-door neighbors.

She’s right that we need to educate consumers about conflict resolution practice; I’ve made the case before that ADR professionals owe as much to their clients. At this point, though, that seems to be the exception, not the rule. She worries that certification will somehow  “keep conflict resolution as mysterious and labyrinthine as the law, so that only practitioners understand it and problems must be turned over to the practitioner for resolution”. But that’s the way it already is; just ask Joseph P. McMahon, who has described the shortcomings of a process in which the mediator, not the disputants, is in control; or see what Leonard Riskin and Nancy Welsh have to say.

Sword also argues that it is not possible to test for conflict resolution aptitude. While I remain skeptical of the reliability of standardized tests, I am intrigued by the work of UC-Berkeley School of Law to develop an LSAT for the 21st centuryone that emphasizes 26 “effectiveness factors” (PDF) that will sound familiar to those working and teaching in the conflict resolution field. At this point, I think the jury’s still out on this question.

I raise these questions not to dismiss Sword’s concerns about the movement toward professionalization but instead to insist that we raise objections based on real not speculative harms. While I appreciate Sword’s caution against certification, I prefer Michael Moffitt‘s well-reasoned discussion of the credentialing problem in his article “The Four Ways to Assure Mediator Quality (and Why None of Them Work)” (to which I owe the earlier reference to body art). Moffitt writes,

This article begins, therefore, with an exploration of how consumers derive confidence in the services of practitioners outside of mediation. Why are we confident that the doctor we have chosen will not be lousy? The lawyer? The plumber? The tattoo artist? It turns out that, regardless of the context, whatever confidence we have in the quality of these practitioners’ services derives from one of four sources

By understanding how quality assurance works in other practices, and by understanding how those mechanisms have evolved over time, we gain an important set of insights about the possible future(s) of mediation. Building on the descriptive and predictive components of this inquiry, we can then responsibly engage in a conversation about what that future ought to look like.

For its excellent and provocative analysis, proponents and opponents of professionalization alike will find this article worthwhile reading.

Mediation credentialing: what about mediation trainers?

questions for the mediation fieldMuch discussion has taken place of late about credentialing or certifying mediators or what it means to prepare mediators for competent practice. All too often, number of hours of mediation training serves as proxy for proficiency and skill.  That is certainly the case in Massachusetts, which has a law protecting mediation communications from disclosure in court only if the mediation is conducted by a mediator who has, among other things, completed at least 30 hours of training. Recently mediators in Massachusetts considered increasing those hours from 30 to 40, although discussions stalled out and are now on hold.

Time and again I have heard Massachusetts mediators defend this provision, arguing that it protects the public.  In reality, it does not. Why? Two reasons. One, the 30 hours were pulled from thin air – an arbitrary number made up by the drafters of the Massachusetts law. And two, mediation trainers and training programs that prepare mediators for private practice are unregulated. Just as anyone can hold themselves out as a mediator in private practice, so, too, can anyone hold themselves out as a trainer of mediators. Quality of programs vary widely; some programs are good and some are not. Even if a mediator has 30 or 40 or 400 hours of training, where’s the assurance that any of that training was conducted by competent, knowledgeable instructors?

As we discuss what it takes to prepare individuals to become effective mediators, we must also be willing to look at what it takes to prepare individuals to teach or train mediators.

Mediation certification back on track at Association for Conflict Resolution, but bumps in road ahead

go slow on mediator certificationIn its June 2009 Update (PDF), the Association for Conflict Resolution (ACR) reports that it’s full steam ahead for the ACR Certification Task Force, resuscitated after a three-year break.

According to Nancy Gardner, Co-Chair of the ACR Mediator Certification Task Force, a 2008 survey indicated support for certification from ACR member, providing the impetus for reviving the Task Force. Gardner reports that ACR’s board adopted a call for certification that would be premised upon

basic principles and practices that are applicable across the broad range of mediation, e.g. client self-determination, mediator neutrality, management of process, understanding of conflict theory, etc., but also

  • reliability, involving not only requirements for experience and training but also assessments of knowledge and performance-based skills;
  • accountability, which requires Standards and a Code of Ethics, specific to the areas of expertise with a credible grievance procedure; and
  • inclusivity, requiring that it be available and achievable by diverse demographic groups, and that it be model-neutral.

Certification itself would rest upon training, a portfolio of experience, and an assessment of knowledge and performance-based skills.

Mediators in the U.S. will be watching the efforts of the Task Force closely as its work unfolds.  I already see several challenges that I wonder how ACR will address.

First, the call for inclusivity and a “model-neutral” approach is contradicted by an article written by Gardner’s co-chair Stephen Erickson for ACR’s Family Section newsletter, in which he argued that only certain models of mediation practice should be eligible for certification, expressly excluding evaluative mediation.This is hardly a promising start, not when one of the task force leaders has already made up his mind that “model-neutral” means “all models except”.

Second, the proposed certification framework includes a performance-based assessment. Given ACR’s stated commitment to diversity, I must ask what ACR will do to ensure that such assessments are free from bias and based on objective criteria not subjective observations. Given the widely reported gender discrimination that female musicians suffered until orchestras began utilizing blind auditions to assess candidates, as well as early studies that suggest the existence of discrimination against women who mediate, not to mention real-life anecdotal accounts, ACR must be prepared to explain what steps it can take to reassure women, and minorities, too, that the process will indeed achieve not thwart inclusiveness.

With a hat tip to Ericka Gray.

(Photo credit: Asif Akbar.)

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.