Category Archives: Online Publications and Articles on ADR

Resources online and beyond for the aspiring mediator

Connecting to ADR resources onlineGreetings to regular readers, new visitors, and to the members of the Mediation Works Executive Mediation Training, with whom I have the pleasure of working this week. To stimulate your curiosity and to encourage further exploration, I’ve pulled together a list of essential resources for aspiring mediators:

Mediate.com is always at the top of my recommended resource list. This premiere ADR site offers

Recommended mediation reading. The following posts recommend books in print and online articles for the mediation library:

Top ADR blogs. I know of no better resource for staying current with the latest issues in dispute resolution and negotiation than my fellow bloggers, who make it their business to keep abreast of essential news and trends. I collected my own list of essential bloggers to follow. You’ll no doubt find some of your own at the World Directory of ADR Blogs at ADRblogs.com, a site which tracks and catalogs dispute resolution blogs from across the globe, and one of my ongoing web projects.

Online discussion.

Mind and cognition. How people reach judgments and make decisions is of great interest to mediators. For intellectually curious mediators and negotiators interested in staying on top of the results of the latest research, here is a list of the best social and brain science blogs.

Self-awareness tools. Remaining vigilant for cognitive errors can be a challenge but is essential for effective dispute resolution practice. The following tools can help keep minds open.

Negotiation sites, blogs, and podcasts. A list of value-creating resources.

Mediation marketing. I only recommend one site: Dr. Tammy Lenski’s “Making Mediation Your Day Job“. Accept no substitutes. Tammy is the real deal, a successful professional mediator and author with an international reputation and the respect of mediators around the world.

Readers, if you have other suggestions, by all means please feel free to add them in the comment section below.

New on the mediation web: return of the king, launch of Werner Institute ADRhub

New on the ADR webAt its annual spring meeting, the American Bar Association Section on Dispute Resolution honored premier ADR and negotiation web site Mediate.com as the institutional recipient of the prestigious Lawyer as Problem Solver Award. In a moving acceptance speech, tinged with equal parts humor, reminiscence, and gratitude to supporters, Mediate.com co-founder Jim Melamed described the changes to the mediation field he has witnessed since the launch of this site and how technology has transformed the quality and degree of conversation among professionals, scholars, and consumers of ADR. (You can listen to Jim’s classy speech on Youtube.)

Joining (or in one case, rejoining) this vibrant conversation are two contributors I am pleased to welcome.

Internationally respected New Zealand commercial mediator, barrister, educator, and writer Geoff Sharp, one of the very best of the ADR bloggers, has returned to the blogosphere with a brand-new web site. Geoff’s Mediation Cubed Blog offers the mediator, educator and student the best thinking that scholarship and praxis can offer. This membership-only site is created exclusively for the mediation community to ensure that those who join are serious participants; registration is required. (This sounds daunting, but don’t let that deter you. I’m sure if you ask Geoff nicely he’ll allow you to sign up.)

ADR practitioner Jeff Thompson, a co-host of ADR podcast series Cafe Mediate, and author of the blog Enjoy Mediation, is the creative genius behind ADRhub, the Werner Institute’s ADR portal. Open to “academics, practitioners, scholars, professionals, students, ‘newbies’ and those interested in getting involved in the field“, ADRhub offers its members web events, news, online chat, job and event postings, and much, much more. Joining is free, in the best spirit of ADR. This promises to be a great place to hang out, and I look forward to meeting up with you there.

Photo credit: Jakub Krechowicz.

Top ADR site Mediate.com adds resources on gender

Premier dispute resolution web site Mediate.com has demonstrated its support for raising awareness of gender bias in ADR. Showing leadership and its commitment to social justice issues, Mediate.com has created a new section on gender, as well as a page on gender bias links.  This is just one more reason among many to visit Mediate.com, the top web site for news, information, and resources on ADR and negotiation.

Other features that make this site outstanding include:

To my good friends at Mediate.com, thank you as always for your support.

The why's have it: teaching curiosity for effective negotiation and mediation

Cultivating curiosity in negotiators and mediatorsWhat makes Deepak Malhotra’s and Max H. Bazerman’s 2007 Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond so highly readable are the memorable anecdotes of real-world negotiations it contains. Among my favorites is one that concerns a colleague of the authors, a “negotiation genius” identified by his first name only, “Chris”.

Chris’s firm was negotiating with a small European company to purchase an ingredient for a new health-care product. The two firms agreed on a price but became deadlocked over the question of exclusivity – the American firm did not want to invest in a product containing an ingredient to which its competitors would have access, and the European company refused to sell the ingredient exclusively to the American firm. The American firm, surprised by the stubborn refusal of their European counterparts to agree to an exclusive arrangement, offered more money and other incentives, but the European firm wouldn’t budge. Malhotra and Bazerman describe what happened next:

As a last resort the U.S. team called Chris and asked him to fly to Europe to join them.

When Chris arrived and took a seat at the bargaining table, the argument over exclusivity continued. After listening briefly to the two sides, he interjected one simple word that changed the outcome of the negotiation. With it, he was able to structure a deal that both firms found agreeable. The word was “why”.

Chris simply asked the supplier why he would not provide exclusivity to a major corporation that was offering to buy as much of the ingredient as he could produce. The supplier’s answer was unexpected: exclusivity would require him to violate an agreement with his cousin, who current purchased 250 pounds of the ingredient each year to make a locally sold product. With this information in hand, Chris proposed a solution that helped the two firms quickly wrap up an agreement: the supplier would provide exclusivity with the exception of a few hundred pounds annually for the supplier’s cousin…

Why didn’t the other U.S. negotiators ask this simple question? Because, based on their prior business experience, they assumed they already knew the answer…

Other factors, I suspect, may have been in play here, working against the U.S. negotiators. Etiquette and social pressures inhibit inquiry. From a young age we learn that “it’s not polite to ask questions”. As we grow older, we worry that asking questions will make us look stupid, singling us out for unwelcome notice by the group.

In defiance of these deep-rooted social and cultural taboos on question-asking, virtually every best-selling negotiation text urges negotiators to “get curious”. G. Richard Shell, author of Bargaining for Advantage, prescribes a process that he calls “Information-Based Bargaining”, which emphasizes the importance of question-asking and careful listening, lauding the “relentless curiosity” skilled negotiators bring to the table. Mediation trainers also encourage curiosity in their students, so that they can delve deep into the needs and motivations of parties locked in conflict. In their classic work, The Making of a Mediator: Developing Artistry in Practice, Bernard Mayer and Alison Taylor define such artistry as “a commitment to curiosity and exploration”.

If curiosity is so essential to effective negotiation and conflict resolution, can educators and trainers teach curiosity? That’s a question that Vanderbilt University Law School Professor Chris Guthrie considers and answers in “I’m Curious: Can We Teach Curiosity?” (PDF) (copyright 2009 DRI Press, Hamline University School of Law). Determined to go beyond the “glib references to the need for curiosity” in negotiation literature, Professor Guthrie offers a short primer on the scientific study of curiosity and proposes some curiosity-enhancing teaching strategies. He concludes with a link to an article that appeared in Psychology Today in September 2006, “Cultivating Curiosity“, by Elizabeth Svoboda, which recommends three tips on how to “flex your curiosity muscle“, whether you’re negotiating, mediating, or doing something else entirely.

Incidentally, Professor Guthrie’s article is one chapter in an outstanding volume on negotiation pedagogy, Rethinking Negotiation Teaching: Innovations for Context and Culture, a collective effort to rethink how negotiation is taught in the 21st century. Those curious to learn more about negotiation teaching can download Professor Guthrie’s chapter along with the others at the Hamline University School of Law web site.

Only connect: the advantages of reading or writing blogs for the ADR professional

The joys of reading and writing blogs for the ADR professionalFour times each year, the American Bar Association Section on Dispute Resolution publishes Dispute Resolution Magazine, covering trends and news that affect ADR practitioners and scholars. An article I wrote about blogging appeared in the Summer 2009 issue. The folks on the magazine’s editorial board have kindly given me permission to upload it to share it here with you.

This article, “Only Connect: The Impact of Blogging on the Field of ADR“, describes how blogging has changed the way ADR professionals do business, share and debate ideas, and build meaningful personal connections across (and despite) time zones.

Here’s an excerpt:

In his 2006 book Conversation: A History of a Declining Art, author Stephen Miller evoked a golden age of discourse that England enjoyed in the 18th century. The seat of that renaissance of conversation was the coffeehouse, where wit and aphorism flourished. Men gathered to warm themselves with a dish of coffee, transact business, gather news, enjoy the latest gossip, and of course converse.

Although the British coffeehouse has largely faded from public memory, a spiritual descendant has emerged possessing many of its ancestor’s most distinctive attributes: the blog. Like its 18th century predecessor, the blog is simultaneously marketplace, library, and public square, with a wealth of views and ideas clamoring for consideration, attracting businesspeople, scholars, thinkers, writers, celebrities, and ordinary citizens.

ADR professionals and scholars perhaps would have felt at home in the 18th-century coffeehouse. We and the coffeehouse share similar virtues: ours is a field that promotes and pursues the exchange of ideas and information. It is fundamentally about conversation. And, like England in the 18th century, the ADR field is enjoying its own renaissance in discourse, one that flowers lushly online, thanks to the phenomenon of blogging, drawn to its capacity for bringing people and fresh thinking together…

For ADR bloggers and our readers, the phenomenon of blogging has dramatically affected us and the way we practice in three key areas: the business of ADR, the dissemination and discussion of information and ideas, and professional networking. I invite you to explore them with me…

The article also names some essential blogs to follow. Space constrained me, preventing me from adding all that I would. Here’s a far more comprehensive list of 24 outstanding alternative dispute resolution blogs to read regularly.

Grain of salt: how much does mediator behavior influence the outcome of mediation?

taking mediation research with a grain of saltThose of us who mediate like to believe that our skills and temperament influence parties who are poles apart to move toward resolution, reconciliation, or settlement. But how influential are we really?

My colleague, attorney and mediator Stephanie West Allen, steers readers toward an article by ADR academics James A. Wall, Jr. and Suzanne Chan-Serifin, “Civil Case Mediations: Observations and Conclusions“, in the new edition of The Jury Expert. This article appears to cast some doubt on how mighty that influence may be.

Concerned by the absence of “empirical studies that report mediators’, plaintiffs’ and defendants’ behaviors in mediation or more importantly that indicate how the various participants’ behaviors may influence the process or the outcome”, authors Wall and Chan-Serifin undertook an inquiry into mediation practice, observing 62 civil cases conducted by 21 attorneys and eight judges with substantial legal and ADR experience.

These observations led them to some conclusions that mediators may find humbling:

When we reflect on our study and its results, we find civil case mediation is a lot like aspirin: it works, but we don’t know exactly how. Consider that we found mediation frequently resulted in settlements but the settlement rate was dependent upon the case type. In attempting to obtain agreements, mediators pressed defendants as well as plaintiffs whenever they expressed high aspirations; however, they pressed plaintiffs more strongly than the defendants. But their pressing – like all of their other techniques – appeared to have little effect upon case settlements.

What are the practical implications of these findings? The primary implication – for mediators – is that they should acknowledge that the outcome of the mediation (e.g., agreement or nonagreement) is to some extent independent of the mediator’s behavior. This suggestion is consistent with Judge Wayne Brazil’s charge that mediators should not exaggerate their responsibility, ability or contribution to the mediation (Brazil, 2007). Rather, they should understand that they are hosting a negotiation process. . . .

The final implication is for scholars as well as practitioners. In the last decade there have been approximately 80 articles that advise mediators on the tactics and strategies they should employ. They are told to control emotions, obtain apologies, overcome perceptual errors, facilitate, define the problem, evaluate, not evaluate, not believe attorneys, be neutral, be fair, improvise, manage risks, focus on central elements, etc. Most of these prescriptions and proscriptions should not be proffered, because they assume the mediators control the mediation process. As noted previously, our evidence, as well as that from other studies indicate mediators do not have substantial control over the process. Rather, it seems that the case type and the plaintiffs’ behavior are the more influential factors.

Mediators, don’t panic yet. Sixty-two civil cases mediated by 29 mediators does not seem a large enough sample to draw reliable, universally applicable conclusions from. Stephanie has already raised some good questions herself in her post. I would add some of my own.

  • What model or philosophy of mediation practice do these 29 mediators rely upon? It’s not clear from the article, and the differences among the various approaches to mediation practice, including the role that each participant plays and how broadly or narrowly issues are defined, are significant. They matter. I for one would welcome research that examines what influence if any different models of mediation may bear on resolving conflict. It’s time at last to test the assumptions that so many of us hold about the efficacy of the various models of practice (and of course we all have our favorites).
  • What about other kinds of disputes?  What would the results be if instead the study involved observations of disputes not in litigation – cases in which the law and the court play no role?
  • What about the identities of the participants themselves? Does it matter that the mediators were all members of the bar and that these cases involved attorneys and represented clients? What differences might we observe if the professional identities of the players were wholly different?

As provocative and arresting as the conclusions may be that the authors draw from their observations, I don’t think it’s time yet for mediators to rewrite their marketing materials or for mediation trainers and educators to revise mediation training materials or course outlines. The authors are correct to point out that we most certainly do need more studies of mediation. Our profession – and consumers of mediation services – would benefit from further and in-depth research that illuminates whether and how mediators influence the parties at the negotiation table.

Recommended reading: 24 alternative dispute resolution blogs to follow

ADRblogs.comRecently Mediator Blah…Blah…, one of my favorite ADR blogs, sadly ceased publication. I will miss friend and fellow blogger Geoff Sharp‘s intelligent, emotionally honest writing and wit.

Fortunately there are other blogs, written by talented, insightful practitioners, that can fill the void that Geoff’s absence has created. I have compiled a list of currently active blogs that I recommend to you, with a few words on why.

Creating a list like this was challenging, with so many worthy ADR blogs to choose from. I fear that some I may have inadvertently overlooked, and as I’ve written this post, I’ve had to change the number in the title several times.

I therefore invite you, gentle reader, to add your own recommendations in the comment section below.

Enduring Classics

These blogs have been around for quite a long time, in one form or another. The quality of their writing and the usefulness of the information they provide explain their longevity. They are:

  • Settle It Now Negotiation Law Blog, by Victoria Pynchon, contains consistently superb discussion and analysis of issues in negotiation, as well as unflinching self-honesty and debate on controversial issues.
  • Idealawg, by Stephanie West Allen, artfully weaves in discussion of law, conflict resolution, scientific discoveries, and creativity; will get your neurons firing.
  • Campus ADR Tech Blog, by technological wizard Bill Warters, consistently links to useful tools and resources for ADR practitioners, trainers, and educators. A long-time favorite of mine.
  • Making Mediation Your Day Job, by Tammy Lenski. Other ADR marketing “experts” have come and gone. To appreciate why Tammy’s site endures while others have long since faded away, visit the latest incarnation of her site helping mediators build successful practices.
  • PGP Mediation Blog, by Phyllis Pollack. Phyllis leaves the door to the mediation room open just a crack so you can listen in and learn from her experiences at the table.
  • CKA Mediation and Arbitration Blog, by Chris Annunziata. We all need a gutsy contrarian, someone willing to dispatch sacred cows or tell us when the emperor wears no clothes.  Chris pulls no punches, whether tackling lawsuit abuse or discussing practice issues that the mediator in Georgia faces – such as this recent post on the “deregistration” of a mediator by the Georgia Office of Dispute Resolution.

Global Perspectives

These are blogs that present views beyond U.S. borders. They enrich our understanding of conflict resolution and negotiation.

  • The Mediation Times, by Amanda Bucklow, U.K., addresses an international audience and seeks to expand the role of mediation to resolve disputes. (FYI, Amanda recently published the results of her own research on mediator skills and attributes.)
  • ICT for Peace, by Sanjana Hattotuwo, Sri Lanka. This outstanding blog explores the use of technology for conflict transformation and the critical role of citizen media in social justice.
  • MediAsian, by Ian Macduff, Singapore. Published by a relocated New Zealander – born in Malaysia, now living and working in Singapore – this blog discusses mediation and dispute resolution in Asia, including the role that culture plays.
  • Reporting on Conflict: Peacemakers Trust Media Watch Blog, edited by Catherine Morris, Canada. This blog rounds up news on dispute resolution, conflict transformation and peace building, gathered from sources around the world. Essential for anyone interested in following international news on conflict resolution.
  • Dialogic Mediation, by Arnold Zeman, Canada. This blog publishes less frequently than others, but quality not quantity matters. Consider for example, this illuminating article on transformative mediation, which got me to confront my own assumptions about this model of practice.

Newer Voices, Robust Discussion

These newer contributors have elevated the quality of discourse in the ADR blogosphere or have reinvigorated it with fresh ideas or new direction.

Specializations

These blogs focus on specialty areas in ADR.

  • Loree Reinsurance and Arbitration Law Forum, by Philip J.  Loree, Jr., contributor and editor.  This niche blog is distinguished by scholarly, sophisticated discussion and analysis of issues in reinsurance and commercial litigation and arbitration.
  • Disputing, by Victoria VanBuren, contributor and editor. Recently celebrating four years of blogging, Disputing focuses its writing on news and discussion on the resolution of commercial disputes through arbitration and mediation.
  • IP ADR Blog, by Eric van Ginkel, Les Weinstein, Victoria Pynchon, and Michael Young. Expect from this blog high-level analysis of issues involving the resolution of intellectual property disputes, including business strategy and tactics.
  • The Ombuds Blog, by Tom Kosakowski. An essential source for news and job postings for the ombudsman.
  • ADR Prof Blog, by Andrea Schneider, Michael Moffitt, Sarah Cole, Art Hinshaw, Jill Gross, and Cynthia Alkon. To the best of my knowledge, this is the only blog with a special focus on ADR teaching and scholarship. Don’t assume that its academic pedigree signifies starchiness and pretense; on the contrary. Expect to find relevant news, useful links, and sly humor, delivered in an admirably concise package.

Easy Listening

This is the one podcast among this group of blogs. It is always worth listening to.

  • International Dispute Negotiation, hosted by Michael McIlwrath and the International Institute for Conflict Resolution and Prevention (CPR). This high-quality podcast series featuring conversations with leading thinkers and practitioners with a global perspective on ADR. (I just wish that CPR would stop messing with the RSS settings for this podcast – I just discovered that the feed changed yet again, which meant that I missed learning of recent podcasts via my newsreader. Hint, hint.)

Unsung Heroes

These are blogs published by folks who consistently produce great writing but haven’t garnered the attention IMHO I think they merit. Here’s some link love for these deserving blogs:

Of course there are still roughly 200 other ADR blogs over at my other site, ADRblogs.com, which tracks and catalogs blogs from 30 countries across the globe.

For other outstanding blogs, see Mediate.com’s Featured Blogs page, or pay a visit to the world-wide gallery of ADR blogs at the web site of the International Mediation Institute.

Interview with new ABA Section on Dispute Resolution chair Homer LaRue at Enjoy Mediation Blog

Homer LaRueNYPD officer detective and ADR professional Jeff Thompson has posted an interview with new ABA Section on Dispute Resolution chair Homer LaRue at his blog, Enjoy Mediation.

LaRue discusses the Section’s priorities for the coming years (but alas, does not reveal which blogs he reads regularly).

[Update, 8/28/2009: Jeff just alerted me that he has been promoted to NYPD detective. Jeff, congratulations on the promotion! I know it's well deserved.]

Mediate.com proves there is indeed such thing as a free lunch

free lunch at Mediate.comWhat’s not to love about free?

Mediate.com, the premier web site for news, resources, ideas, tips, and information on ADR and negotiation, reminds me of just how good free can be.

Available at Mediate.com are all kinds of goodies including:

With tasty offerings like these, no wonder Mediate.com continues to be the top ADR site.

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.