The good news is that such an imposed system hasn't happened. In part, that's because the involvement of high-level court and other officials in that 1990-1995 project, as well as in some other quality-control initiatives within the field, helped to enlighten people within judicial-administrative circles as to the wisdom of imposing court-ordered criteria.
But if anything, we may be seeing an outcome even more arbitrary than the one we had feared. Through our own inaction on this issue, qualification systems of other fields are, in effect, increasingly being used as proxies for our own.
In an ideal free-market system, a reasonably diligent buyer has enough information to be able to tell the outstanding product or service from the terrible. Yet in the real world, consumers are rarely given so obvious a choice. More likely the problem is telling the "pretty good" from the "pretty bad." And when the criteria are in doubt, or not clearly defined, it's not so easy for the consumer to measure the quality of a mediator.
Significant progress has been made toward accurately specifying criteria of mediation skill. Since 1995, we have had explicit and carefully worked-out sets, for "transformative" as well as settlement-oriented mediators. (See the Test Design Project's "Performance Based Assessment: A Methodology, for use in selecting, training and evaluating mediators," published in 1995 by the National Institute for Dispute Resolution.)
These definitions of skill stress the ability to gather information, empathize, remain impartial in heated situations, help the parties generate options and agreements, and manage the interaction. The specific illustrations of these skills must, of course, be tailored to the needs of specific programs. But we have demonstrated how these skills can, in fact, be demonstrated, using either role-play-based exams with actors (which come with significant running costs), or other technologies (at great setup and design expense, but lower running costs).
Draws from rich tradition
Performance-based qualification methods draw from a rich tradition, which goes back to the audition of a musician or actor as well as the "observation" requirements of other fields, such as psychology. Of all kinds of test applied in any field, the audition is probably the most widely recognized as fair and job-related. The performer must do the job to a schedule, under observation and under pressure. These conditions are closely equivalent to the circumstances of real work.
With the exception of a few stalwart programs, however, we in the mediation field have done little to implement this approach. Unfortunately, the result is not simply an innocuous "go slow" with all options preserved for a wiser day - because by failing to insist on what we have good reason to define as competence, we have created a vacuum.
In effect, we allow anybody to claim that he or she is good at all of the essential mediation criteria - even though many would-be mediators possess only one or two of these skills to any adequate degree, along with self-confidence and indefatigable marketing. Relatively few mediators I have met disparage their own skills - and in my experience, those who are most self-questioning are rarely the ones the public should worry the most about. But to the public, what mediators have to offer remains extremely intangible; Mediation is a "process," and even if there is a "settlement" to show as product, a host of intelligent commentators have pointed out why that is neither necessary nor sufficient evidence of competence on the mediator's part.
Indeed, much of the process can take place outside of the customer's presence, even in a confidential discussion with an opposing customer. Caveat emptor is disheartening enough when applied to a toaster or plumber; so when we mediators offer our services, it should not be surprising that parties look for some externally validated evidence of competence. They do look, and they take whatever "evidence" they can find.
This, I think, is the real reason why parties tend to give so much - often too much - weight to prospective mediators' credentials in law or substantive knowledge of the particular field which seems closest to the dispute (engineering, labor-management relations, family dynamics). Such credentials are prized because they are relatively standardized, and thus easy for the parties to recognize.
Ironically, the very diverse group of experts constituting the Test Design Project group, which had to resolve many areas of disagreement, had no serious disagreements when it came to this issue of substantive knowledge: We all agreed that beyond a basic familiarization with the subject matter, substantive knowledge was rarely one of the more important criteria of skill in a mediator. More than a basic and mediation-specific knowledge of law was seen as important only for certain types of cases, and far fewer than is generally supposed.
Random selection, fancy frames
But while other fields are quite firm in their criteria - and in dealing qualifications to practice - we in mediation actively market courses in our field to increasing numbers of essentially randomly-selected people. Using the absurdly arbitrary baseline of 40 hours of training, we hand out certificates at the end of that training time. These attractive certificates, nicely framed, promptly show up on office walls.
On one level, it is socially valuable to distribute important skills of mediation as widely as possible. But at the same time, such limited and arbitrary training standards help encourage a process of devaluation of the mediation field's skill demands. How many of us would be happy if other fields requiring skill on critically important matters - say, dentistry - qualified practitioners this way?
Such comparison to other fields, of course, raises the specter of "professionalization." But it is still too easy to confuse the pursuit of competence with pursuit of a "professionals only" agenda. That is pernicious. We have, if anything, a greater moral obligation to ensure competent service for those whose budgets restrict their choices to pro bono and public programs than for those who hire professional mediators. Any discussion of qualification for mediation should have at its base the interests of consumers and the public at large, neither of which is well served by our present inaction.
Beyond a few programs which insist on high standards and are willing to pay the costs for themselves, we have failed, so far, to provide the performance-based mechanisms by which skilled mediators can demonstrate to all comers that they have the key elements of effective performance. We have thus discouraged consumers and the public from valuing those elements highly.
More and more, we can expect the heavily-trumpeted legal and "substantive knowledge" skills to be used to fill the gap. The logical result makes mediation an adjunct function within each of several occupations which are really about something else. At the same time, on the professional side of the field, we are in effect helping to promote in the marketplace mediators whose key skills overlap the core skillset of mediation only to a degree, at the expense of those whose balance of skills is closest to mediation itself. Over a period of time, we should logically expect this to lower the public's reasonable expectations of what mediation should be able to accomplish.
By shrinking from the costs and hard decisions necessary to establish a meaningful performance-based system of qualification, we are thus implicitly accepting a misguided and self-defeating alternative.