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Smoke and Mirrors: The Importance of Credibility

by Barry Simon
June 2002 Barry Simon
I had just finished a landlord tenant mediation. When the clients left, I turned to the three observers, soon-to-be mediators themselves, and asked for their comments and reactions. I was surprised when the conversation quickly turned to credentialing.

One of the observers mentioned that once he finished his required hours of observation, he would be a “certified mediator.” I replied that the State of California (which is where I live) does not license mediators (nor does any other state as of this writing in May, 2002). Another observer said their training program assured them that they would be certified. I replied that perhaps they would receive a piece of paper proclaiming they were certified BY THE PROGRAM, but it did not mean that they had been certified by the state.

Then, the third mediator said it straight out: this program “certification” would give them the opportunity to play on the public’s pre-conceptions when it sees the word “certified,” namely that these mediators had been given a Seal of Approval by some official organization - perhaps even by the state‘s licensing body, the Department of Consumer Affairs. In reality, it is just smoke and mirrors.

ITS ALL IN THE PERCEPTION

Granted, this kind of certification is prevalent all over the United States. In fact, this is THE credentialing system that currently exists. And since it is not a universally applied set of standards, it means different things in different states and even in different cities as well as from program to program. There is nothing illegal about this kind of certification. It is just relatively meaningless when it comes to being a unanimously accepted indicator of competency. But this is the current state of credentialing in our community - a crazy quilt of rules, regulations, standards and legislation. Sadly, while states license hair stylists, plumbers and car mechanics, neutrals are left in credibility limbo. So we resort to legal deceptions. Sleights of hand. Word ruses. Trompe d’oeil for mediators.

Unfortunately, in the absence of any credentialing system, law makers and the public have by default turned to other indicators of competency, namely college degrees and substantive knowledge. This can lead to some illogical situations. Thus, in one state a mediator must have a particular degree to handle certain disputes for which another state does not require a similar degree. Does this degree requirement mean that the first state is getting better mediations than the other state that does not require this degree? Or does this discrepancy point to a basic misunderstanding about the mediator’s role?

For example, in California’s Family Court one must either be a therapist or an attorney in order to do visitation and custody mediations. This is the law. This was codified by our legislature. You might ask “What does a therapist and an attorney have in common that would make their distinctly different disciplines appropriate for these kinds of disputes?“ The only answer can be - a degree (and, perhaps, a strong lobbying effort by one of the these professions).

If the legislature is looking for a psychological evaluation of the family, one could understand the need for a therapist (although some states train the mediator to do this rather than falling back on a degree in therapy). But why an attorney? Are attorneys good therapists? If the goal is to emphasize the legal ramifications of visitation and custody, then why a therapist? In other words, what’s the legislature’s intention? The answer, I suspect, is to fulfill their need for the credibility that comes with a degree.

Clearly, we have to find a better way to assure competency while guaranteeing quality.

THE CREDENTIALING DEBATE

The credentialing debate in the conflict resolution community has a long history. Those against it argue that it does not take years of formal education to train a gifted mediator who might as easily be a dock worker, a corporate manager or a college educated professional. Credentialing presents the picture of a closed profession dominated by those with the time and wherewithal to acquire all the mandatory education. Given mediation’s birth as a grassroots solution to what was perceived as a dysfunctional court system, turning mediation into a privileged licensed practice is nothing short of betrayal.

Those in favor of credentialing argue that a consistent level of skills will be the result, imparting quality assurance to the public. It would replace the current practice of using other professions’ degrees as a guarantee of competence. Furthermore, it will solve the problem of those who could hire conflict managers as service providers but will not currently do so because they have no way of knowing a provider’s competency. And for a profession with low self-esteem, credentialing will also offer some much needed status.

These are all valid arguments. Even if this debate were resolved today, another challenge would lie ahead - the establishment of criteria by which to judge a mediator’s competency.

THE CRITERIA CHALLENGE

In a fictitious debate between two professors written by Nancy Rogers and Frank Sander (Dispute Resolution Magazine, Spring, 1997), the difficulty of creating such criteria is underscored. They write about a real study that examined 650 cases mediated by volunteer attorneys. It concluded that “the amount of training had no significant effect” on settlement rates, on client satisfaction or perceptions of fairness. “Expertise in the subject matter of the dispute did not affect settlement, either.”

Ironically, this study labels as negligible indicators of a mediator’s competency the very criteria most used today to qualify mediators - training and substantive knowledge. If neither education nor subject expertise can serve as the criteria, what can be used? Experience. “(E)xperience mediating seemed to be the only aspect of qualifications that was related to increased settlement.” Does this mean a mediator with more experience is a better mediator than one with less experience? Is credentialing merely a numbers game? Or is there another way to measure experience other than in total disputes handled or years of practice?

A possible answer comes from the Hewlett-NIDR Test Design Project (1990-1995) which was an effort to devise better selection, training and evaluation tools for the emerging mediation profession. Suggesting that a valid measure is one that is skills based, Christopher Honeyman (“Consensus Newsletter,” January, 1999), who was the director of the Project, enumerated skills the Project believed can be demonstrated and measured - “the ability to gather information, empathize, remain impartial in heated situations, help the parties generate options and agreements, and manage the interaction.” The assumption is that the more experience you have, the better developed these skills should be.

Honeyman warned, however, that “the mediation field (has) done little to implement this approach,” resulting in a vacuum in which anyone can claim to be an accomplished mediator, where settlement rates stand in for competency, and the lack of an easily understood standardized credential has allowed “…the heavily-trumpeted legal and ‘substantive knowledge’ skills to be used to fill the gap.”

THE PRESENT SITUATION

In February, 2002, Charles Pou, Jr. presented a report to the Maryland Mediator Quality Assurance Oversight Committee. This effort to explore ways through which the public can be guaranteed quality dispute resolution services was spearheaded by MACRO, an agency within the Maryland judiciary, and included other invited dispute resolution groups in Maryland. The Report explains that most Quality Assurance (QA) systems (which includes credentialing) require a combination of “hurdles” that a mediator “must meet at the outset to engage in practice” and “maintenance” that broadens and enhances a mediator’s skills over time.

In truth, these “hurdles-and-maintenance” requirements have been used by various mediation programs for years. Probably in order to minimize the cost of a bureaucracy, most systems have been, in Pou’s words, “at the ‘minimalist’ end of the spectrum.” The hurdles have generally required attendance at a particular program’s basic mediation training or easily substantiated proof of other training and/or a degree from some other “relevant” profession - in other words, paper. Maintenance has primarily consisted of some basic continuing education requirements. However, Pou reports that “(v)irtually no one interviewed believed that paper credentials or written testing can adequately measure mediator competence or potential.” Instead, the interviewees indicated a preference for “observation of performance” as the only valid means of assessing a mediator’s skills and ability. As the Report points out, this approach is very costly.

Pou includes a selective overview of current credentialing systems as well as efforts to establish new approaches. For example, he sites the Association of Conflict Resolution’s (ACR) exploration of “Advanced Practitioner Members” which puts mediators into specialty categories, such as environmental, public policy, commercial, labor-management, community, etc. This could be the basis for a credentialing program, with each category identifying “(1) needed practice competencies…and (2) what would be measured and how…”

In Texas, the State Bar’s Mediator Credentialing Association is establishing a voluntary mediator credentialing system. According to a November, 2001, story by Justin Kelly from the ADRWorld.com website, the Association proposes a four tiered system, a kind of graduated hurdle, that rewards “top” membership status to those with more hours of study and mediation experience and less to “beginners” As critics of credentialing might point out, this approach leaves behind those who cannot afford all this expensive training, as does any other program with a high hurdle.

This would certainly be true of the approach adopted by the Family Mediation Canada (FMC). Being both high hurdle and high maintenance, it requires a 13 page application, 80 hours of basic training, an additional 100 hours of related education and training, an assessment process with a videotaped skills demonstration, a self-evaluation and a four hour written exam on substantive issues.

The Maryland report suggests five possible prototypes, including their merits and potential drawbacks:

  • no hurdle/no maintenance - a market-based, buyer beware system with no-barriers;
  • high hurdle/high maintenance - a highly professionalized system like FMC’s which would build QA but possibly at the expense of diversity because of the high cost of its training requirements;
  • high hurdle/low maintenance - a system, like the U.S. Institute of Environmental Conflict Resolution (U.S. IECR), that sets a very high standard for entrance, such as many case hours and extensive substantive education, but places less emphasis on continuing education which assures quality initially but not necessarily in the long term;
  • low hurdle/low maintenance - a system that requires basic training with some experience and some continuing education, such as the one used by many community and court programs in Southern California, thereby providing basic QA from a large, diverse pool of mediators but at a marginal, non-credibility building level;
  • low hurdle/high maintenance - a system in which only basic training is required but places more emphasis on continued skills building, an approach used more frequently by programs in other parts of the United States, thereby providing a large and diverse pool but also requiring an extensive support structure to guarantee this approach’s high maintenance level.

Variations of these approaches are either already in place or being discussed and developed in Massachusetts, Colorado, New York, Idaho, Washington, D.C., Virginia, Florida, Tennessee, Georgia, the U.S. Navy, the U.S. Postal Service, the National Association for Community Mediation, and the Federal Mediation and Conciliation Service.

WHITHER THE FUTURE?

While the creation of a credible credentialing system will not be an easy task, it is also not impossible. And clearly, the time has arrived for us to make mediators honest, giving them the credibility they deserve while providing the public with the consistent quality they rightfully expect. Furthermore, if conflict resolution is ever to become a credible profession, it will be partially built on a foundation of quality assurance only attained in Western Society through credentialing.

Currently, except for very specific programs that target a narrow area of expertise and, therefore, have a high hurdle for conflict resolvers to meet, the general emphasis is on low end certification either through completion of training, participation in a mediation program or a combination of both. Plus, some programs do have a higher requirement for maintenance. But if real credibility is to be achieved across the board for all practitioners of dispute resolution skills, the goal must be the licensing of neutrals through a meaningful system provided by either a professional organization or the state. We have seen what the state has done in the past to our profession. Consequently, the only dependable alternative is a professional organization. As experience tells us, those who create their own agreements will be more satisfied with the outcome. Why, then, should the creation of a credentialing system be any different? If it is going to address our best interests, we have to create it ourselves. Unfortunately, despite a lot of discussion, panels, committees and articles, there seems to be little desire by our mediation organizations to step forward and take on this challenge. By default, it is handed to the courts with its litigation point of view or worse, the legislature with its hidden, lobbyist inspired agendas and faulty reasoning.

Therefore, it is important that we put aside our trepidation, no matter how valid it may be, and begin our journey to create our own credentialing system, and I do not mean on a theoretical level. It must be a functioning system that can be adapted state by state. We must have a blueprint that speaks directly to who we are and what we do and need. Without this, we will be forced to live with what inevitably others create for us. And like agreements not created by the parties, the resulting system will be less than satisfactory.

Credentialing is coming. This is our future. We must not let it slip through our fingers.

Biography


Barry Simon is a conflict manager in private practice who has conducted mediations concerning community issues, divorce, same gender relationship dissolutions and workplace conflicts as well as facilitating meetings, coaching and training people in basic dispute resolution skills.

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Website: www.resolvenow.com

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