Copyright 2003 ADRWorld.com . Reprinted with permission.
The Association for Conflict Resolution has joined a growing chorus of groups urging the Federal Mediation and Conciliation Service to open up its proposed roster of employment mediators to neutrals who also serve as advocates and loosen qualification criteria.
ACR in formal comments to FMCS on the proposed roster, known as the “Access to Neutrals Initiative,” said the agency should simply require full disclosure by roster members rather than exclude those who advocate for parties in legal proceedings, an approach that could prevent many qualified neutrals from winning a spot on the list.
That exclusion would “not be in the best interests of the roster or the parties,” ACR said.
Similar concerns were raised recently by a number of sections of the American Bar Association.
FMCS proposed creation of the roster in early May. Under its plan, the publicly available roster would be filled by professional private-sector neutrals who can demonstrate a combination of education, training and experience, which meet certain standards for employment, public policy or multi-party regulatory negotiation dispute resolution.
Eligibility for the roster would be based on points accrued through a combination of ADR experience, ADR education, substantive experience in workplace conflict resolution, and substantive education in workplace subjects.
ACR, a membership organization comprised of ADR practitioners and professionals, said in its comments to FMCS on the proposal that governmental agencies have the right to set their own qualifications and requirements for service on a roster, and the standards for this one in particular should be set high.
The association however said it is concerned that the “standards are so high that only a small pool of the most successful mediators in the nation will be approved.” In order to address this concern, a time limit should be placed on the “accumulation of experience, preferably seven years,” ACR said.
ACR also is opposed to placing a cap on the number of mediators that could be included on the FMCS roster because any “cap would set an arbitrary exclusion point that is contrary to the stated premise of the point system standard,” and a “larger roster will allow clients a greater choice relative to geographic area, fees and specific workplace mediation experience.”
Due process for individuals applying to the roster is a concern of ACR and while FMCS has proposed an appeals process for neutrals denied inclusion on the roster, ACR recommended that “the appeals process be more completely delineated with greater development of the due process aspects of such an appeal system,” the comments say. In addition, ACR would like to see “that a due process appeal system be established for any mediator de-listed from the roster.”
ACR also offered FMCS a set of principles for the roster. Inclusion criteria should reflect knowledge and skills relevant to the types of anticipated disputes, “emphasize collaborative conflict resolution skills,” and “experience requirements relevant to effective mediation such as mediation, facilitation, and dispute resolution system design consultation,” the association said.
However, experience requirements should not include arbitration, mini-trials or fact finding proceedings because they are not sufficiently related to skills required in mediation or conciliation, it said.
The roster also should recognize mediation experience in all types of disputes, emphasize mediation skills over substantive law knowledge and permit diverse mediation styles, according to ACR.
ACR also suggested that in the interests of fairness and allowing market forces to determine mediator selection, the number of points a mediator initially earns should not be divulged to anyone.
Points earned should remain confidential in order to avoid creating different levels on the roster because this “would further concentrate work into an upper elite group making it more difficult for lower scoring qualified roster mediators to get cases to establish their capabilities and meet the re-listing requirements for cases,” ACR said, and it “has not been demonstrated that higher scores are predictive of higher ability.”