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.

19 responses to “Time for mediation certification in the U.S.? Not this way, thanks

  1. I was just thinking about this in the shower this morning (really!) What’s missing in mediation training is observation – both “mediators in training” observing mediators who are acknowledged leaders in the art as well as “mediators in training” being observed by those same leader-teachers. It’s not a perfect solution, but certainly, as you so persuasively argue, the answer is not to “codify” and hence calcify mediation practice. I know mediators don’t like to think of themselves as “counselors” in the therapeutic sense of the word (though I have often thought, “gee, I can’t help this person resolve their psychological problems in three HOURS”). But the way the art, theory and practice of psychotherapy (also a “black box” profession, i.e., unobserved) is handed down is through observation. I’m going to write an entire post on this (once I finish the 20 other things I’m working on!) but pass along the thought in its most raw form in response to the best analysis of the dangers of certification I’ve recently read.

  2. Vickie, thanks for your comment – I actually have some of my best insights in the shower myself. (Okay, probably way too much information…) Observation isn’t missing from the mediation training I do, but you’re right, we need to do more of it overall in our practice.

    In our field, we tend to conceal much of our work under the cloak of confidentiality – more opportunities for both new and experienced mediators to observe other mediators’ work might help all of us understand each other better, particularly when it comes to these philosophical differences. I’ve co-mediated with evaluative mediators, and it’s taught me a great deal; they’ve learned from me too.

    But this insistence on a right and a wrong way to mediate really gets to me. It’s as mistaken a view as those mediators who deem the trial a necessary evil. Let’s get beyond the “four legs good, two legs bad” view of evaluative v. facilitative mediation and really take a look at what our clients really need. After all, isn’t the point, as Frank Sander once observed at the dawn of the modern ADR movement, to let the forum fit the fuss?

  3. Victoria Moreno-Jackson

    Again, I think it all comes down to a question of quality (which as I’m married to a measurement and training expert, I believe there’s a way to measure. I’m just not quite sure what it is, and I have no idea of who would provide the resources to figure it out.) Certification and regulation are all trying to be a proxy for quality. I think an unskilled evaluative mediator runs the risk of just telling people what to do and calling it mediation. I think there’s a facilitative equivalent of that as well. Just because you’re a facilitative mediator doesn’t automatically mean that you’re helping someone.
    What I feel the need to challenge, and what I run into on a regular basis, it those who believe that only evaluative mediation has value. I recently had a lawyer ask me, when I explained that I wouldn’t evaluate the case being mediated, “What DO you do?” If the parties choose an evaluative process, after I’m comfortable that they understand the advantages and disadvantages of different styles, I’m okay with that. I just have a concern that when people ask for / assume an evaluative process that they are trying to use mediation as a private judicial process.
    It would be nice to have a concise definition / regulation of what mediation is or who a mediator is in order to be able to convey to people what we do (and probably hope that they’ll use our process more), but we run into the problems of –who gets to define it & what is the impact of that definition / regulation. Is that what you see as one of the issues – how do we regulate (for the purpose of ensuring quality / excellence in the profession) in a way that is meaningful and not overly exclusive?

  4. Diane – I agree with you completely. Not only does the writer you quote imagine that his way is the only valid type of practice, he certainly underestimates the ability and right of people to choose what they want – as you so well point out. The demand for certification is part of a guild mentality. It creates a way to limit the numbers of competitors and to stifle innovation. You present the case masterfully.

    My best — John

  5. Hi Diane
    Standards and regulation should reflect the diversity of practice. Regulation should offer simple clarity to consumers, helping them match their situation to their mediator. The consumer faces risks in making a choice. Service good and bad will be naturally regulated by the market place. Good service is not so easy to define when we deal with the issue of justice. We can afford some basic protection for consumers. A regulatory framework should require practitioner responsibility rather than specific practice prescription. The profession needs to help consumers make satisfying and successful choices. This includes a robust complaints procedure with consequences where the profession fails. I don’t think we can resist the rise of regulation. And those that do will find ways of establishing their own independent practitioner networks which will in turn find their own markets. I’m torn, yes the ideal and promise of mediation feels at risk. And also, As Jung says, what we resists grows. Thanks for the opportunity to be involved in the debate.
    Steve (not in the shower).

  6. Victoria, John, and Steve, thanks for adding your two cents.

    Steve, I couldn’t agree more. I think that at some point, yes, for the sake of consumers of ADR services, we do need to face up to the need to create some kind of regulatory framework — the free love stage our profession is in can’t last forever after all. And your point is well taken — any standards that we set should reflect the array of philosophies of practice that have emerged. It’ll be the hardest conversation our field has yet faced, but we’ve got the training and skills to do it (at least I hope we do). Like you, I think that the market will take care of the bad apples, but I know that not everyone trusts the market these days (and given recent headlines, perhaps with good reason). Glad to know you’re not commenting from the shower, although Vickie and I highly recommend it as a space for private contemplation. 😉

    Victoria, you’re right to point out that misinformation and mutual misunderstanding flow in both directions, and that evaluative mediators at times can be guilty of mischaracterizing the work of facilitative mediators. All of us need to do better at recognizing the value that different styles bring, which need to be matched with the interests of well-informed consumers – that would be a step in the right direction. It helps to be ready with answers to questions like the challenging one that attorney posed to you. I’ve got my response ready for challenges like that. And of course facilitative mediators have no monopoly on doing quality work. You’ve put your finger right on it – how do we define best standards of practice in a way that’s inclusive not exclusive? I don’t have the answer for that one, but I’m here and willing to ask questions. So should we all.

    John, thanks for your kind support. Yes, I think you’ve spotted the problem — this looks to me like an effort to limit competition. I’m glad you’ve become a regular contributor to the conversation here, and I’m delighted that we connected on Twitter. Looking forward to hearing more from you.

  7. Pingback: Certification of Mediators « DIALOGIC Mediation Services

  8. Personally, BA in hand, two decades of business experience as a “coach” where my organizational psychology, proven informal and “undeclared” consensus building with a “partner” in review of the process and outcome has and continues to work for me well. I full agree with Mr. Erikson, but again, it’s mostly the ABA that pushes this agenda and they continue as far back as we can ever remember to try and “corner and control” any market around solving disputes no matter what we call it. Mediation more and more is being perceived by “the marketplace” as a “forced” concept because judges or commissioners now “order it” and in many areas, such as corporate governance (where the real white collar crimes happen daily) it’s written right into the Operating Agreement that legally sanctioned and certified mediation and mediators/arbitrators are to be the method for dispute resolution. This leave the “self governing” and “self responsibility” between mature (and psychologically healthy) adults for the “nurses office” or equivalent in most situations. The day I accept certification by a “self declared” organization will be when that organization is truly independent themselves, practices what “we all preach” and is not “under the thumb” of any other outside agency or professional “bully” association. I think you get my drift…

  9. But what are you suggesting, Clayton? That turnabout is fair play, and that because some facilitative practitioners don’t get respect that all those who play for the other team should be penalized? Just because some corporate executives and some members of the bar have attempted to co-opt ADR doesn’t seem to me to be a good enough reason to limit certification to facilitative practitioners.

    I agree that certification by a private organization raises questions – it’s all too easy for the public to confuse it with licensing by a state actor. And the bottom line is that I don’t trust ACR to get this one right. Exhibit A: Erickson’s emphasis on professional self-interest over the client’s interest.

  10. I’m not recommending “limiting” anyone. It’s an open market. I’m advocating “inclusive” approaches by all professionals and organizations that provide services. The model that works best is to have a “virtuous” initial approach of mediation for ANYONE and any group of individuals that desires to solve issues through cooperation. The certifications “guidelines” in mediation now typically come about through the legal profession who, as I stated before in my own blog many times, use the “hammer” in their own approach and style, which is what we all recognize is so damaging in that you can’t really “differentiate” the approach from arbitration at all. The main problem with ABA is that it is “looked to first” by all industries and professions for legal solutions and certified people from that profession. Add to that the “embedding” of legal mediation wordage into contracts, resolutions, charters and any other form of legal structure and it, by default, excludes “freedom of choice” for mediation users selecting other “styles” or forms.

    Personally I’ve never had an issue proceed to arbitration in my business career, but through mediating issues the results have been that everyone involved comes to realize other “dimensions” and “dynamics” that had not considered and typically they stop, for good and don’t move forward, or they, sometimes, “tear apart” what was not working and begin again, most often leaving out the identified issue (this could be an individual) that was a barrier or dysfunction. They solve it themselves without fear of formal judicial intervention, even though contractual agreements set up before hand provide for such outcomes. Believe me, I’ve seen situation where arbitration would have been better if not outright full legal due coarse, but unless there “money in it” or it’s “politically charged” most attorneys simply leave it alone and don’t address it at all.

    In the end, Erikson presents the typical “double edged sword” I already have to deal with in my practice daily, especially being positioned in corporate markets. He’s advocating a genuine certification for “true and virtuous” mediation over the legal form that everyone recognizes is “different” from arbitration… so let him advocate it because his “discussion” will cause people to think and a more “differentiated market”, which is what we all want, will eventually emerge. If I knew I could get a certification that “differentiated” me from the ABA and the legal profession I would. My interest my whole life has been to help people solve issues outside of any “legal threat” structure, I have my “ways” and it works. And yes, I’ve broken the law by not complying with the fine print stating that parties WILL negotiate and mediate to solve issues with legal counsel, but no one wanted this, we ignored it and simply moved “past” the restriction.

    No doubt, this discussion could, as usual, go on indefinitely…

  11. I have enjoyed reading this site.

    Erickson’s concerns are that 1) mediation is gaining the reputation of being a manipulative and coercive process and 2) unqualified mediators are hanging out their shingles and giving us all a bad name. It seems that people are reacting negatively to the phrase “evaluative settlement conferencing techniques masquerading as mediation,” and yet I imagine that most or all of us know of instances where that shoe fits.

    Professionals in other fields found that they needed to define ethical practices and require certification to keep out the quacks. Is that not possible in this field?

  12. Debbie, thanks for visiting and for your kind feedback. I truly appreciate that you took the time to comment. You made some great points, and I’d like to try to respond.

    As you point out, Erickson does have some legitimate concerns. The problem lies with his approach and his reasoning, particularly his zero-sum view of mediation practice as either “good” (facilitative) or not (evaluative and directive).

    There are certainly mediators out there giving us all a bad name, but it’s not just the “unqualified mediators” (and I’m not sure precisely what that means or how we define the reverse, “qualified”) we have to worry about – there are mediators out there who’ve been practicing for years and who have undergone training who are nonetheless busy giving the profession a black eye. I agree that it serves no one well when evaluative settlement techniques masquerade as mediation, but there are examples from the other perspective, and I have heard trial lawyers with legitimate beefs about facilitative mediators who did little more than following their training and demonstrate “active listening” without moving the negotiations forward.

    I agree that we need to define ethical practices – but we already have attempted to have done so, as the numerous examples of rules of professional conduct for mediators attest. That has done little to keep the quacks out because they lack regulatory teeth and, as Michael Moffitt has correctly pointed out in several well reasoned articles, offer little practical value or guidance. We can and should do better, a point I think that you and I concur on.

    And I agree that as a field at some point — for the sake of public confidence and for the integrity of our profession — we will need to confront the question of credentialing together. However, it’s not so easy. For a rich discussion of the issue of credentialing, along with the very sensible questions we must face before we pursue it further, please scroll down to read the comments to this post on Vickie Pynchon’s negotiation blog.

    I hope no one mistakes my post for opposition to standards of practice. Of course we need them. But my points are this: as we develop those standards, let’s be inclusive. Let’s strive for nuance in our discussions, not a reductionist view of mediation practice. And let’s keep the client, not our own professional self-interest, at the fore.

    Debbie, thanks for raising great questions.

  13. Dear Diane,
    I have very much appreciated reading your blog, and particularly as the ACR co-chair of the Certification Committee. I take to heart your comments, as well as those of others. I do not want to comment on certification right now, as I actually do not have enough time at the moment. Just let me say that, in response to a member survey (ACR), sent out last spring in which there was a very strong desire for certification, we have taken up the gargantuan task of resuming the certification of mediators. Fortunately, there has been some amazing work done in the past that we will be able to build upon as we relaunch this effort. Many of the concerns expressed in this blog are also being considered as we go forward.

    Would love to know what you think of my question here.
    Just as a mediation process that ends in an arbitrated decision has been given a specific name of ‘med-arb,’ perhaps evaluative mediation should be renamed ‘med-eval’ so there would be a better understanding of the process into which one is entering.

    I personally am a mediator (family and workplace) and recently have become a parenting coordinator. I consider myself someone who can work within various models of mediation, i.e. facilitative, directive, transformative, all within a given mediation, and I try to gear my approach to the parties’ personalities, the kind of case, the goals of the parties, if represented, who are they representatives and their styles of advocacy, the expectations of the mediation process by parties (and representatives), what is happening in the mediation at a given moment, etc. Personally, I think a skilled mediator should be knowledgeable about all of the models, and know when to apply some methods over others. But always, the moment in mediation I prize the most, regardless of what model I am using, is when the parties struggle through the chaos and can truly get to the light at the end of the tunnel on their own. I don’t like to take that experience away from them by giving them the “right” answer, regardless of how strong the temptation. And besides, is the “right” answer a ‘legal’ right answer, an emotional “right” answer for this particular set of disputants, a “right” answer as to how a jurist might see the case, or a “right” answer given by Judge A vs Judge B? My good friend, colleague and mentor, Steve Abel, is known for teaching us that going to court is like playing darts, except the dart board is constantly moving and you are backwards and blindfolded. So, “evaluative’ is a very tricky question on many counts.
    Bottom line, if someone wants an evaluation after trying to settle, why not call it by its proper name of “Early Neutral Evaluation.” It is a perfectly respectable ADR process. Why must we pretend it is mediation, if we know from the beginning that the ‘mediator’ is going to give an evaluation before it all ends. It is similar to the tension I see between the collaborative law and cooperative law practitioners. Knowing that you can go to court, by not signing the disqualification clause, can have a huge impact on how the case is handled by the parties and the attorneys. I would say the same of mediation – knowing the mediator is going to give the right answer before it all ends just takes away the parties’ taking responsibility, and no doubt, takes away what could be a very positive experience.
    I’ve certainly rambled on. Would love to hear your thoughts.

  14. Nancy, it’s really great to hear from you, and I thank you for contributing.

    Based on how you’ve described your own approach, I think that you and I practice in similar ways and are kindred spirits at the table. Like you, I embrace the approach that allows disputants to define as broadly as possible the issues – an approach Len Riskin and Nancy Welsh described in Is that All There is? The ‘Problem’ in Court-Oriented Mediation, a look at the extent to which court-oriented mediation today reflects the dominance and preferences of lawyers and insurance claims adjusters. I agree that ideally all mediators should be conversant with different approaches to be fully flexible when working with parties. You poetically capture the potential and possibilities that the facilitative model can reveal, giving way to that moment when “the parties struggle through the chaos and can truly get to the light”. Well said.

    But here’s my question for you. As powerfully effective as facilitative mediation can be, isn’t it simply one way and one way only? I know evaluative mediators who practice with tremendous skill, deploying a range of techniques, including facilitative ones, to help parties define issues and reach settlement. And I know facilitative mediators who fold in evaluative practices, using them strategically to best serve the parties. What of them?

    And I keep coming back to the parties themselves and the importance of self-determination. What if the parties truly want to narrowly define the issues? What if the parties really want to know what a subject matter expert thinks, at the end of a long day of striving when impasse remains unbroken? Is it any less mediation simply because the mediator – who, unlike true evaluators like judges and arbitrators, has no power to impose a decision – shares an expert’s viewpoint? Trying to tease apart all these strands and threads of practice and technique is I think unproductive and ultimately impractical.

    But if it is so important that we must define mediation once and for all, and I’m not yet persuaded that the time has arrived to do that, we cannot do it successfully unless we bring all practitioners to the table to discuss it. My concern is that at the outset, one style of mediation has seemingly been privileged over all others. That seems to me an unfortunate starting point. Like you, I think that facilitative mediation, with its capacity to define issues widely and address a whole host of concerns – legal, emotional, interpersonal, behavioral, community, economic, and so on – offers a great deal. However, I don’t think that gives me the right to say that it alone deserves the name “mediation”.

    Nancy, if that’s what you call “rambling”, I look forward to what you do when you have rigorously marshaled your thoughts! You wrote honestly and compellingly, and I am grateful to you for your comment.

    There is one issue I’d be curious in turn now for your thoughts on.

    In this post, I described ACR as “dysfunctional” and “unresponsive to the concerns of its members” – a view I hold, regretfully, as a one-time member and a member of the board for several years of one of ACR’s most active chapters, New England. I wish it were otherwise, but given my own experience and observations, I do not believe ACR has the credibility to address the issue of certification. I’m not alone in thinking that. (If you’re curious why I think so critically of ACR, you can read a post I wrote about “Serving and keeping your membership – an open letter to organizations for ADR professionals” – all of the points I make capture the ways in which ACR fell down on the job.) I have to ask, why is ACR still relevant? and why should any of us – particularly those of us who abandoned it – trust ACR to address the issue of certification in a way that does honor to the full spectrum of the mediation community?

  15. The biggest problem with certification is that it still doesn’t regulate the use of the name “mediator.” Only state licensure does that, as far as I know. Therefore, stating that you are a certified mediator means little in the eyes of the consumer (or anyone else for that matter) since there are other organizations that “certify” if you take a class or are a mediator with a certain organization such as JAMS or AAA and pay your fee. Unless there is real regulation, certification means nothing. ACR becoming a certifying organization is, in my humble opinion, too late and too little. It is irrelevant to the field at this point.

    As to certifying only a particular style of mediation, sure – why not – it doesn’t mean anything anyway. You can become a certified venusian mediator if you want. I don’t really care.

    I come from a profession of origin (psychology) in which I hold a license and in which there are many, many “schools” or “styles” of practice, ranging from cognitive-behavioral to positive psychology to narrative psychology to…you name it – it probably exits.

    Licensing occurs through measuring a body of knowledge that applicants have learned – or at least memorized for the exam – and on knowledge of ethical practice.

    I use psychology as an example because it resonates with mediation for me – the sheer variety of issues ranging from personality disorders to couples problems to eating disorders (in mediation, types of conflicts such as environmental, divorce, commercial, etc – and please don’t read these as directly analogous to the psychological issues I listed! I haven’t had my coffee yet!)

    Next is the question of what is certification for? To protect the consumer from “bad” mediators? If so, how do we define bad? Generally as unethical, not as someone who is practicing a particular style of mediation. Is is to limit the number of mediators so as to limit competition? I won’t even begin to address that one. How about assist us with marketing? That would really help and I would welcome it but value a wide range of styles and approaches.

    Licensing, however, has teeth. It means that you have met criteria, passed an exam (same as certification but here comes the good part) and are subject to real oversight and disciplinary action, including loss of licensing, if you do bad stuff to people! Like practice unethically, steal, etc. Now that has some teeth!

  16. Each time a comment appears here I notice a desire to respond, to join the debate. Then I notice my desire drain away. I wasn’t sure quite sure why, I have managed to name that. There are some fundamental forces that I wrestle with on this issue. Firstly, in a bitter, twisted and ‘not invited to the party kind of way’ I feel that evaluative lawyer mediators will do quite well out certification and regulation of the sector. For two reasons, one because they are probably in the driving seat on this. Two, I just can’t escape a sense of bitterness when someone says they do what I do (facilitative mediation) and they may do but I just don’t quite believe them. I judge their competency and values as a poor cousin, a pale imitation. How many people have we met that say they ‘do a bit of that mediating’, e.g.: refereeing at little league on weekends, there’s value there in that notion of ‘mediator’ but it’s not quite a profession. I’d love to know how lawyers feel when someone decides, despite their counsel, to represent themselves, thinking they can do this anyway! The feeling is greatly exaggerated when I say I’m a transformative mediator.

    The second reason, and more powerful one, which will I believe will allow lawyer mediators to do better out of regulation, is the issue of human nature. I believe that what people want in conflict is someone to make a decision. They want an arbitrator, adjudicator, lawyer or judge. It’s rather unfair to knock evaluative mediators and lawyer mediators and to fight amongst ourselves when it’s the public that is the real driving force here. The reason for this, and going wider again, is that we are largely a society of individualists, particularly when it comes to dispute and conflict. It’s a cultural thing; we lack an emphasis on relationships and particularly a relational approach to difficulties. When in dispute people want a decision, that is not a relational response. It’s a real achievement to come up with a decision that offers a sense of justice for both, and here we risk the win-lose, zero sum outcomes; which again chip away at the notion of relationship in our society.

    Regulation is one aspect, information, education, social influence and cultural change should also be there. Our standards should be encouraging people to make the best choice, justice systems are interested in economic, proportionate and efficient methods of dispute resolution. There should be a stronger push for the efficacy of facilitative and transformative methods. The difficulty is similar to counselling; like trying to compare person centred approaches with cognitive behavioural therapy (CBT), one user led and responsive the other clearly measurable and sold as being done in 6 sessions. Both can be claimed for either, but the labels are there.

    Legislation is making great progress, increasing pushing dispute resolution as an option in the early stages in broad range of sectors and disciplines. We need to push more, for choice, variety, for best fit. Certification needs to avoid favouring the neat, measurable forms of mediation. I’d like to see a regulation put also a push for diversity of practice, to influence infrastructure, market place, funding streams and development capital. Social value and cultural change should be in there as much as quantitative measures and research validation.

    Finally, on a different note, these conversations started with a bias towards the shower as a thinking zone. I’d like to argue that, and push for a renaissance on the bath as a far superior thinking environment. The shower pales in comparison, the bath is a much more hallowed domain for creativity, it has a greater provenance, a distinguished history (“eureka”) and is now sadly neglected in society. Bring back the bath! Incorporate it into the certification process under personal development, reflective practice or CPD; you know you’re attracted to the idea!

  17. Hooray for the bath! I must agree that the bath is much more conducive to thinking than the shower.

    However, I take issue with your point that, “I believe that what people want in conflict is someone to make a decision. They want an arbitrator, adjudicator, lawyer or judge. It’s rather unfair to knock evaluative mediators and lawyer mediators and to fight amongst ourselves when it’s the public that is the real driving force here.” The research actually goes against this.

    If you are a lawyer who is evaluative, this is likely to be your perspective since most evaluative mediators receive cases from either courts or other lawyers who, by their very nature, are oriented to desiring decisions. That doesn’t necessarily mean that the clients actually want this because the clients are rarely the ones who choose the forum or style of mediation. In the legal arena, an evaluative bent to mediation is often expected, a la JAMS (this from a former JAMS mediator who has done evaluative and facilitative mediation).

    In other venues, evaluative mediation is a no-no! Try selling evaluative mediation in a workplace setting – or in public policy disputes.

    And don’t get me started on why and how “alternative” dispute resolution has been totally corrupted by the courts.

  18. I have appreciated reading everyone’s contributions to this discussion. I offer my observations as a mediator in a state in which mediation is required for civil and family cases, and which requires that mediators be certified (North Carolina). I am also a licensed attorney (Illinois).

    Mediators are either selected by the parties (read: attorneys), or court appointed if the parties have been unable to select a mediator. We have a Dispute Resolution Commission that is part of our court system and the General Assembly and the State Supreme Court establishes the rules for the court ordered mediation, the requirements for certification, and the ethical code by which we practice. This certification process does not prefer one type of mediation approach over another. We are required to complete observations, and we’re free to select to observe any certified mediator as long as the parties agree to have us observe.

    I do find, however, that the NC Bar Association promulgates the message that the only decent mediators are those who’ve practiced law in the area concerned in the case at hand. This creates, of course, a good ole white boys’ network. To further create exclusivity, an “Academy” has been formed for those who’ve been mediating since the mid 1990s. This, of course, places favorable emphasis on the “classic” model.

    I tend to see styles of mediation along the continuum of the needs of the parties. My former life was in higher education and I’ve also coached. In trying to reach the student, you need a collection of methods/approaches from which to choose to help her/him “get it”. In my experience, where mediation is court ordered and attorneys are involved, the process tends to follow the classic format of joint opening then separate negotiating camps (perhaps because that is expected and considered the norm, rather than what might be more appropriate for the parties’ needs). However, so many more disputes/conflicts exist that affect daily lives that need mediation and that shouldn’t get into the legal system at all. Getting to this public with the education (or marketing) about what mediation is (a full range of styles and approaches), and its efficacy for resolving differences effectively and constructively is an important challenge to be addressed…whether through a certification/licensure program or via a professional organization that exists to do more than just control entry to the practice of mediation. Or perhaps through a grassroots effort?

    Offered post exercise and pre-shower…how’s that?


  19. I enjoyed reading all the views so far available in this blog. Just coming out from the shower with a towel in hand, I am trying to piece together your thoughts. If mediation is tailored to make differences in lives of disputants then let us stop rambling over “evaluative” or “facilitative” approaches and use both if neccessary to resolve conflicts. Mediation is a calling. And if you are called into the profession, you are already established and qualified to be a peace maker and needs no other certification.