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Mediate.com

A Townhall Meeting

by Phyllis Pollack
July 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

       Last Saturday, the Southern California Mediation Association (“SCMA”), (of which I am the incoming president. I admit my bias!) held its annual townhall meeting. More than 100 people attended. The topic of discussion was “Mediating Without a License: Is It Time For A Change.” During the three hour session, three different panels discussed the issues of qualifications, licensing, credentialing and regulation of mediation and mediators (moderated by Ivan K. Stevenson, Esq.). No real resolutions were reached but a lot of issues were put on the table for discussion, to ponder and to take away for further reflection and discussion.

       As many of you know, the different county superior courts in California have established their own court annexed mediation programs, setting minimum standards or qualifications for those wishing to be on that court’s panel. Recently, the Judicial Council of California (the policy making body of the California Judiciary) promulgated proposed statewide rules establishing minimum qualifications for mediators on court panels.

       The first panel (composed of Alan Wiener, Esq., Office Of the General Counsel, Administrative Office of the Courts, and the Hon. Jane L. Johnson, Judge of the Los Angeles Superior Court) discussed the history and background of these rules and the need for minimum qualifications of mediators on court panels, highlighting the history and experience of the Los Angeles  County Superior Court Mediator Panel. The most notable point that struck me was that in the court’s view, to be a member of the L.A. County Superior Court’s panel is not to be deemed a certification of the mediator. As far as the court is concerned, qualifying to be on a court’s panel is not a certification: the court is not in the business of “certifying” mediators! Thus, while the judiciary in Florida, Virginia, Texas and certain other states may be in the business of “certifying” mediators, the California courts are not! I find this interesting because to be on a court’s panel does mean “something’ to the consumer of mediator services. But, what exactly is the question.
 

      The second panel discussed these issues from the perspective of the academic world: two professors (Mary Culbert, Esq, Director of The Center for Conflict Resolution at Loyola Law School and Michael  H. White, Esq., Assistant Professor, Negotiation, Conflict Resolution  & Peace Building Program, California State University at Dominiquez Hills) addressed these thorny issues, evoking much discussion. Many salient questions/points were raised: (1) Before we address these issues, must we first define “mediation” and “mediation competence” as each term means different things to different people? (2) What is the goal of certification or licensing? Is it to protect the consumer? The profession or the mediator? Is it being done just to make everyone feel “good” or for some other reason? (3) Who should be the person or entity deciding whether a license or credential should be given? Should it be a statewide agency, a court, a private mediation organization (and will that organization’s imprinteur carry any sway or weight?), some other official body or what? (4) What criteria should be used to determine if someone is qualified? Book knowledge only? Skill sets? Or, a combination? As there are many different forms of mediations (e.g. community, family, court related) and many different types of mediators (transformative, evaluative, facilitative) should the same requirements apply to all? Or should they be different? If such licensing and credentialing is set up, what is to be done about oversight, continuing education, discipline and quality control in general? (5) Or, is the marketplace, (i.e., the economic forces of the marketplace) performing all of these functions now: weeding out the “bad” mediators and allowing the “good” ones to percolate to the top? These issues and more were raised during this one hour session to the point that we ran out of time.

        Ms. Culbert mentioned an informative study on this topic by Charles Pou, Jr. entitled “Maryland Mediator Quality Assurance Project Oversight” which is a September 28, 2001 draft of a research project looking into all of these issues. It is worth reviewing as it provides more questions than answers.

       The last panel addressed these issues from the standpoint of providers of mediation services. The panelists  belonged to different organizations providing such services. They included Richard Chernick, Esq., Vice President and Managing Director of JAMS Arbitration Practice, Michael  R. Powell, Esq., Vice  President, American Arbitration Association, and Angela Oh, Esq, Western Justice Center. They first noted that this issue has been addressed multiple times in the 1980’s, 1990’s and now in the new millennium, with still no outcome or resolution. The panel provided the reality test: in practical terms, when the consumer is looking to hire a mediator, she does not ask specifically about the training of the mediator. Rather, she asks other questions, about the mediator’s background in general, her experiences as a mediator and so forth. More times than not, the consumer is a repeat user who already has a list of acceptable mediators in mind and so simply picks one by name based on past personal experience. In essence, the market controls, keeping the “good” mediators busy and the not so good ones thinking about alternative employment opportunities. Thus, to these providers, if credentialing, licensing or certification does occur, they will insure that their panelists comply but otherwise will not be affected by it; it will be business as usual with the market dictating who is a “super” mediator.

      As this third panel was concluding, the point was raised that these issues become even thornier when viewed both internationally and across state lines within the United States. A short overview of the IMI ( International Mediation Institute) Certification  was given. But, then the interesting question was raised about mediators traveling across state lines within the United States to mediate; suppose she is “certified” or “licensed” in one state but does not meet the requirements of the other state? What is to be done? Unfortunately, we ran out of time to discuss this in more depth.

       Is this a hullaballoo over nothing? Do mediators really need a “license” or a “credential”?  For  what purpose and towards what end? Or, are market forces taking care of all of this for us?
      

       More importantly, is this something that the mediation community should or must attend to, . . .before  it is foisted on us by outsiders? That is, if we do not do it ourselves, will some outsider do it to us and for us. . . and probably not to our liking?

       A  lot of food for thought.

Biography


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.



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