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Diane Levin Hits Mediator Credentialing Out Of The Ballpark

by Victoria Pynchon
August 2009

From Settle It Now Negotiation Blog

Victoria Pynchon

Many ADR bloggers (including me) have written extensively about the imposition of standards or the implementation of "best practices" in mediation. 

This week, Diane Levin at the Mediation Channel, hits the issue out of the ballpark, summaizing the arguments on both sides; providing solid resources for study and analysis; and, raising the important issues the mediation community will ignore to its detriment.

As Levin writes in To certify or not to certify:

One 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.

Do continue reading Diane's post here; it's important, maybe even critical reading.

Here's my two sense (in bullet points so as not to bore you with prose).

  • some of the most important mediations -- small claims matters and civil harassment disputes -- are being conducted at the bottom of the profession by law students and the barely trained
    • why are these "small" or "emotional" matters so important? 
      • in civil harassment disputes, people's lives are often at stake;
      • small claims matters may be the only contact "ordinary" citizens have with the "justice system," a system that depends upon an educated and sympathetic citizenry to support and fund;
      • considerable harm could flow both to individuals and to the institution of justice itself as the Courts divert greater numbers of people away from formal and public court proceedings into private, informal, unsupervised proceedings with people who are spottily trained not only in conflict resolution, but also in the alternative to ADR -- one's day in Court.
  • the justice system which not only sanctions but promotes court-annexed mediation is lending its imprimatur to an alternative that can and too often is abusive, coercive, biased, secretive and unpatrolled
  • the lack of "best practices" diminishes the respect people have for the mediation process, both the lawyers who are "referred" to it by judges ("ordered" by any other name) and those lawyers' clients who do not understand why they are being shuttled away from their day in court into a conference room with mediators who may or may not be qualified to render passing-grade services, let alone excellent ones.
  • educational, training, and supervision requirements have not stifled innovation in that other secretive and unsupervised professional activity -- psychotherapy.  The potential for abuse in that relationship is even higher than the potential for harm caused by barely schooled and never supervised mediators.  Nevertheless, the potential for abuse to litigants, particularly unrepersented litigants in small claims and civil harassment actions is high.
  • one day, someone will be murdered by an enraged spouse, family member or next door neighbor who mediated their civil harassment case to an agreement rather than a restraining order.  I hate to say this but think it inevitable.  It will not be mediation's fault.  But mediation will pay if it has not established standards for court-annexed mediators, standards that include mentoring and supervision in the early days of one's mediation practice in court programs. 

Those are my thoughts.  Diane's post contains many more, together with some great links to the thoughts of others on both sides of the debate.  Don't miss it.

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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