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:
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.
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.
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.
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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.