What, if anything, reasonably provides mediation consumers with confidence about the quality of mediators’ services?
The expansion and maturation of mediation as a practice has understandably (and laudably) led many to begin to focus attention on questions of quality assurance. Those who care about mediation might wisely look to other practices or professions for indicators of what mechanisms are most effective. A careful look at these available mechanisms, however, reveals that none of them currently operates as effectively for mediation as they do for other practices and professions.
Some mechanisms fail because of the nature of mediation practice. Some fail because of the nature of current regulation or common law doctrines related to mediation. Some fail because of the current shape of the market for mediators. Only the fact that all four of the mechanisms fail in the context of mediation makes this a remarkable and unsustainable condition.
By understanding how quality assurance works in other practices, and by understanding how those mechanisms have evolved over time, we gain an important set of insights about the possible future(s) of mediation. Building on the descriptive and predictive components of this inquiry, we can then responsibly engage in a conversation about what that future ought to look like.
Michael Moffitt is the Dean for University of Oregon School of Law, Orlando J. and Marian H. Hollis Professor of Law, and Associate Director, ADR Center.
Before joining the Oregon law faculty in 2001, Michael Moffitt served as the clinical supervisor for the mediation program at Harvard Law School and taught negotiation at Harvard Law School and at the Ohio State University College of Law. Following a federal judicial clerkship, he spent several years with Conflict Management Group, consulting on negotiation and dispute resolution projects around the world. Professor Moffitt has published more than twenty scholarly articles on mediation, negotiation, and civil procedure. He co-edited The Handbook of Dispute Resolution (Jossey-Bass, 2005), an award-winning compilation of 31 original chapters by leading scholars and practitioners in the field. He also co-authored the innovative, student-focused book, Dispute Resolution: Examples & Explanations (Aspen 2008). The Provost of the University of Oregon named Professor Moffitt in the first group of recipients of a five-year award from the Oregon Fund for Faculty Excellence. The Oregon law school faculty awarded Professor Moffitt with the law school's Orlando J. Hollis Faculty Teaching Award. He is also the recipient of the University's Ersted Award for Distinguished Teaching. He is a devoted but mediocre snowboarder, an aggressive tennis player, and an avid wine taster. He spends most of his energy in a futile effort to keep up with his daughters.