Mediation's identity crisis: it's time to regulate the profession

Mediation having an identity crisisMediation has been struggling with an identity crisis for years now. It’s been confused with meditation. It’s often mistaken for arbitration. And more recently an Illinois governor characterized a state-funded gang mediation program as “pork” to be trimmed from an overbloated budget. Wrong, wrong, wrong.

In the grand scheme of things, these are harmless errors that should prod professional mediators to do a better job at marketing and packaging their services and educating the public about mediation’s advantages. Of far greater concern though to the field is the questionable use by a debt collection agency of the words “legal mediation” as part of the name of its business, reported today by Chris Annunziata at CKA Mediation & Arbitration Blog.

Chris observes, “As a libertarian, I am loathe to advocate governmental intervention, but shouldn’t the bar in these states regulate the use of the term ‘legal’ and ‘mediation’?”

While I agree with Chris that state bars should monitor the use of the word “legal” by businesses to describe their services, I am not sure that it’s any business of the bar to regulate the use of the word “mediation” — not when so many professional mediators are not attorneys and there is no requirement that mediators in private practice must also be members of the bar. Moreover, while it is true that a very few state courts do certify certain classes of mediators in court-connected programs, no U.S. state currently possesses the power to license mediators or to regulate the private practice of mediation.

This instance illustrates how urgent the need is for the mediation field here in the U.S. to move now to develop a formal system to qualify mediators and regulate the profession. The future of the field depends upon it; public confidence demands it. We can no longer argue that regulation will thwart innovation in a still developing field, that it is unnecessary or will be too costly, that it will discourage otherwise qualified individuals from entering the field, or that mediation itself resists definition.

We should act now, before others define mediation for us. It is, at last, time.

4 responses to “Mediation's identity crisis: it's time to regulate the profession

  1. Chris Annunziata

    Your point that some mediators are not lawyers is well taken. Here in Georgia, however, the registration of mediators is controlled by the Commission on Dispute Resolution, a body appointed by our state Supreme Court. And most mediators (in this marketplace) perform a legal function – they facilitate the resolution of ongoing litigation. So, in my mind, mediation is tied to the legal profession, which is, in turn, regulated by the Supreme Court and the Bar. There may be other groups willing to take up the banner, but to me, it would seem logical that the Bar would take the lead in helping make uniform the rules and regulations governing mediation.

  2. Chris, thanks for your comments! You make some good points. I think though that you’re going to make a lot of professional mediators who aren’t lawyers very nervous! I certainly agree with you that the bar needs to be a participant in the discussion about regulating the private practice of mediation, but it should be one participant among many. And given the still-existing (and long-standing) tension between attorneys who mediate and professional mediators who aren’t attorneys (despite the ABA’s clearly stated position that mediation does not constitute the practice of law), I’m not sure that many outside the bar would wish to see the bar play the leading role here. And let’s not forget that many mediations — perhaps even the vast majority of them — continue to take place far from the shadow of the courthouse.I also want to be clear about the distinction that I’m drawing. Certainly courts that approve mediators to provide services in court-connected programs need to have oversight of those neutrals. What I’m pointing to is the private practice of mediation which is wholly unregulated here in the U.S.That’s the conversation that all stakeholders need to take part in. And the issue you pointed us to highlights how imperative it is for mediators throughout the U.S. to insist that we face the question of licensing and regulation of the private practice of mediation now.Thanks for your great comment, Chris! I’m a big fan of your blog and really value your viewpoints. All the best,Diane

  3. This quote from the former president of the ABA is in reference to a book about mediation written by a trial lawyer that I enjoyed very much.”John Van Winkle is a convert from the cult of litigation to the religion of mediation. His writing is lucid, concise, sprightly and blessedly withoutfootnotes. For the novice, his exposition will educate and train. For the veteran, it will recall, highlight, emphasize and solidity. For all of us, his vision of the lawyer’s role as the high priest of mediation inspires.”– Jerome J. Shestack, Attorney, Wolf & Block, Former President of the American Bar AssociationIn the book, as I recall, Mr. Van Winkle observes that our legal system is in need of overhaul and that the dysfunction can be laid at the doorstep of the lawyers themselves. I agree with Diane that the bar should certainly be a participant, but only one among many.

  4. I agree that we need to look carefully at mediator qualifications, but it is no different than any other profession – looking only at training, or even whether or not someone has passed a test, guarantees only training and not quality. However, as a mediator with 17 years experience, and having worked in conflict management for 31 years, I would not want any particular profession to dominate. There are certain cases where attorney/mediators are desirable, but attorneys now regulate the qualification of the mediator by hiring only those lawyers who are subject-matter experts. Written qualification standards will not change that. Remember, the fact that someone passes the bar exam does not guarantee that he or she is a competent attorney – the exam is a threshold only.However, the vast majority of mediations are not “legal” in nature in that they are not in litigation. These are the disputes that non-lawyer mediators handle, such as workplace conflicts, small claims cases, parenting plans, boundary disputes, interpersonal conflicts, elder care, victim-offender mediation, organizational conflict, and so on. The bar should have no power to regulate who mediates these cases, though I believe that some form of credentialing is necessary. Even so, it will not guarantee quality – the marketplace will sort that out.