Lois McMaster Bujold, A Civil Campaign, 1999.
In 1993 the Supreme Court of Virginia created a mediation certification process to encourage its judges to refer cases to mediation. Unfortunately, the Supreme Court’s administrators believed that with a little training almost anyone could mediate and mediation should be free. That mindset continues today and arguably serves to undermine the establishment of mediation as a profession in Virginia. While many non-professionals take great pride in calling themselves “certified mediators” (over 1000 certified mediators exist in Virginia), the certification standards are decidedly not those of a profession and very few certified mediators actually earn their living by mediating. The Supreme Court’s administrators effectively created a free, volunteer resource in its effort to comfort judges who expressed concern about the quality of those mediators who would be receiving court referrals. At the time, the Supreme Court was encouraging Virginia’s judges to refer more cases to mediation. With the new certification process in place, if a mediator wanted to receive court-ordered cases, the mediator had to be certified by the Supreme Court of Virginia.
In theory, certification sounded great. Who could argue? In practice, Virginia’s certification requirements are so minimal as to make a mockery of “certified mediators” and of mediation as a profession. They have created a tremendous obstacle in the face of a burgeoning profession. The seemingly prestigious, but substantively hollow, stamp of approval - “certified by the Supreme Court of Virginia” - legitimizes mediators in the eyes of judges by providing a false sense of mediator competency. Certification has served to attract as mediators those who otherwise would not pursue mediation as a profession.
Admittedly, over time, Virginia’s certification requirements have increased incrementally. A recent change requires all prospective mediators to be “mentored” by other certified mediators who have achieved “Mentor” status. Sound impressive? It shouldn’t. Mediators must have only conducted five mediations or fifteen hours of mediation to qualify as a mentor. A change that becomes effective on January 1, 2007, doubles that experience level to a whopping ten cases or thirty hours of mediation. Even the newer standard is woefully inadequate for teaching and evaluating prospective mediators. Virginia’s certification process is inherently flawed by the effort to keep the standards low enough to attract the numbers required to fill the courts needs.
These low standards serve to promote lots of mediators to “certified” status while degrading the overall quality of mediators and mediation. The public is generally unaware that mediation certification standards are so elementary. “Certified by the Supreme Court of Virginia” sounds pretty legitimate and impressive, doesn’t it? Who would question the credentials of a “certified” mediator, especially if that mediator is not charging a fee? (Does the concept, “You get what you pay for” ever enter anyone’s mind?) Unfortunately, once a party has been exposed to poor mediation, it is not the certification process that is brought into question, but mediation in general. The user public doesn’t simply lose confidence in the particular mediator, but in mediation as a whole.
To make matters worse, in 2000, at the behest of the Supreme Court of Virginia’s administrators, Virginia’s legislators exacerbated the problem by replacing the free market system with one that limited court-referred custody, visitation, and support matters to $100 per case paid by the state. To put this in better context, from 1993-2000 mediators who wanted to receive court-ordered referrals had to be certified and provide free “evaluation sessions” to litigants referred by the court. Parties who decided to proceed with mediation could then choose a mediator (including the evaluation provider) and pay that mediator’s fees. Many mediators felt providing the free evaluation would increase their chance of being selected to conduct the mediation for a fee. Then, in 2000, at the urging of court system administrators and supported by the masses of non-professional, certified mediators, a state paid fee was imposed on a well-used piece of the mediation market. The 2000 law provides that a mediator appointed by the court shall provide a free custody, visitation, and/or child support mediation evaluation and receive $100 from the state if that mediator then conducts the mediation. Under the 2000 law, even if parties can afford to pay for mediation, they pay nothing. The evaluation mediator may not charge the parties a fee for the mediation. Taxpayers foot the bill. If the parties choose to mediate elsewhere, the second mediator may charge.
Since 2000, professional mediators who had served their community in the evaluation role have had to think twice about offering their time. Before, if I provided the evaluation, the parties could decide whether to use my services and pay my fee or choose a different mediator. Now, while the court system does not impress the services of mediators for free, if you put your name on a court’s list to provide free evaluations, you must also be willing to provide the related mediations for the state stipend of $100 per mediation. To be clear, that’s not $100 per hour, not even per session, but $100 per complete mediation - regardless of the number of sessions, whether it covers all or some of the issues of custody, visitation, and child support, whether its for one child or several, or whether it takes you two hours or ten. I have had to remove my name from local court lists to limit the number of court-referred cases I receive. I remain on the list only in the county I live in because I believe that as a professional I should offer my services pro bono to members of the community who otherwise couldn’t afford my services – the state’s stipend doesn’t even cover my administrative time and expense. Unfortunately, the 2000 law doesn’t allow me to serve only those who can’t afford to pay. At times I find I am offering free mediation services to parties who are each paying thousands of dollars in attorney’s fees.
So, since 2000, non-professional mediators can not only become certified, but also, if certified, can receive a flow of business at $100 per case - not what one would call a professional fee, but it is at least something. I know of some non-professional mediators who conduct five or more court-referred mediations per week. Understandably, the number of certified mediators has jumped. Arguably, in terms of numbers, the needs of the Court have been met even though, not surprisingly, the quality of mediation has come into question.
In January 2003, as questions about the quality of mediation rose and after more than two million dollars ($2,000,000) of taxpayers’ money had been spent, I had a bill brought before the Virginia House of Delegates that would have eliminated Virginia’s funding of custody, visitation, and child support mediation except in cases where parties could not afford to pay. My proposed legislation would have required those parties who could afford to pay, who in many cases were paying thousands of dollars in legal fees, to pay for mediation. (When will the public realize they would save thousands of dollars by going to mediation first? When will mediators realize that the public won’t consider it necessary to pay for mediation if mediators mediate for free?) Court administrators and masses of non-professional, certified mediators, “waving their certificates” as one delegate later described them, showed up against my bill. Not one other professional mediator attended the legislative hearing. The political pressure by the Court’s administrators and the masses of certified mediators succeeded in keeping the $100 fee in place.
Under the 1993-2000 system, newly certified mediators could gain experience by conducting free evaluation sessions and offering their services at lower rates. Still the market controlled the actual mediator choice and fee. Since 2000, parties who want to have custody, visitation, and child support issues mediated can do so for free. Ironically, however, parties must first file with the court in order to take advantage of the free mediation program - it requires a court’s referral. Unnecessary court filings result. Parties who might have taken their cases directly to a mediator now benefit by going to court first. In addition, people who would not otherwise offer mediation services on a professional basis have become “certified mediators” because the ease of entry, the stamp of Supreme Court approval via certification, and the potential to receive “supplemental income,” even if only $100 per case, makes an attractive combination for non-professionals.
Even though Virginia’s free mediation program is limited to custody, visitation, and child support, it dominates the reputation of mediation in the eyes of judges, attorneys, and the public. Mediation is most often viewed as a non-professional, free service to which the public is entitled. Lest there be any doubt, the Court’s administrators distribute the following information to certified mediators asking them to advise potential mediators (those thinking of becoming certified) as follows:
“Generally speaking, the practice of mediation does not generate a full-time income. Once you are certified, there are opportunities to receive compensation for mediating court-referred cases … at a rate of $100 per case… Many mediators serve on a volunteer basis for community mediation centers across the state.”
That paints a pretty clear picture of the Virginia Court’s view of mediators and of mediation as a profession. You’ve probably heard, read, or believe a similar version of that view. As Lenin said, “A lie told often enough becomes the truth.” If mediators accept as truth the lie that one can’t make a living as a mediator, then it will be true. If mediators continue to work for free, then it will be true that mediation is free. I don’t know of anyone who makes a living providing his or her services for free.
I recently had an attorney argue with me that I had to offer my services to her client for free because the court had referred her client to me. In fact, the parties had specifically requested me. Fortunately, Virginia’s free mediation program requires a random assignment – if a party or attorney requests the court to appoint a specific mediator, that mediator may charge his or her standard fee. Can you imagine an experienced professional mediator’s caseload if clients could file with the court and demand that mediator for free?! But, more importantly, consider the perception this attorney had of mediation because of the state’s free mediation program. By the way, in response to the attorney’s demands that I mediate for free, I asked if she would return her retainer to her client and offer her legal services for free. She declined - horrified by the thought I’m sure. Attorneys can’t make a living by giving free legal advice. Judges, clerks, and other judicial administrators get paid. Why should mediators be any different?
The Court and State’s influence on the public’s understanding of mediation is also seen in the inclusion of mediation under the term “alternative dispute resolution” and the statutory definition of mediation that includes the words, “and enables [the parties] to understand and reach a mutually agreeable resolution to their dispute.” Va. Code Ann. §8.01-576.4. Interestingly, unlike the judicial system, mediation is not a process that first requires a dispute. Mediation is a process for facilitating communication between parties. The well-known phrase “alternative dispute resolution” is a subtle, but deceptive, misnomer that evolves from a mindset that requires a dispute. Much of the mediation I conduct is not to resolve a dispute, but to create a mutually acceptable plan for the future - before a dispute arises. Including mediation under the all-encompassing umbrella of ADR confuses the public.
As a founding member of the “ADR Section” of a local bar, I once suggested that we be more specific and call the section the “Mediation Section.” Although we had spent little if any time on anything but mediation, the other members felt ADR was more appropriate. I disagree. As mediators we should clearly distinguish ourselves from the judicial process and the quasi-judicial processes of arbitration, mini-trial, neutral case evaluation, etc., that fall under the ADR umbrella. For that reason, I don’t offer arbitration or other ADR services – only mediation.
It might appear hopeless to attempt to earn a living as a mediator in such an environment. It might seem absurd to give up a successful legal career to pursue mediation as a livelihood. But, in 1990, I did just that. I will not deny that it has been a challenging road, but it is one I would take again. I have succeeded in earning my living as a full-time, private, professional mediator. From this experience and perspective, I can share a few observations:
- Regardless of the state, court, and bar’s influence on mediation, if mediators want to be treated and viewed as professionals, we must be professional. Primarily seeking taxpayer funded business from the state or complaining that the state should pay more for court related mediation will not move mediation forward as an independent profession. As long as mediators continue to feed from the government trough as their primary source of sustenance, mediation will be viewed as nothing more than a free service offered through the court system – not as a self-standing, separate, and independent profession.
- Looking to the judicial system for mediation business is like expecting an old dog to learn a new trick. Recently I listened to the chief judge of a large local circuit court bewail the state of his overcrowded docket and describe the steps he had taken to address the issue. Not once did he mention mediation. Afterwards, I suggested that he might find relief by referring cases to mediation. He looked at me as if I’d accused him of judicial impropriety. “By the time parties arrive in my court,” he exclaimed, “they know about mediation, they’ve had the opportunity to go to mediation, and they deserve their day in court!” His attitude was an excellent reason for his overcrowded docket.
- The court system has no incentive or motivation to treat mediation as a profession. Despite questions of quality, the courts want to believe that any certified mediator can mediate. Non-professional mediators meet the court system’s need for numbers. Let’s not expect the Court to treat mediators as professionals as long as so many mediators offer themselves for free. Furthermore, let’s not expect the vast numbers of non-professional mediators to give up their roles as “certified” or volunteer mediators, especially if they are even nominally compensated for their efforts. Let’s not expect an under funded juvenile court system that needs more judges and more clerks to handle the growing numbers of cases to stop its docket clearing use of mediation for custody, visitation, and support cases. Let’s not expect a circuit court to suddenly start referring cases to mediation when it’s chief judge views its role so self-righteously, even in the face of an overwhelming caseload.
- What would happen if we stopped making the legal/judicial system responsible for our livelihood and stopped blaming it for mediation’s lack of standing as a profession? What if we decided that professional mediators should attract clients before those clients resort to the legal/judicial system? That would require independent, professional marketing and advertising efforts to educate the market. It would entail the risk of private sector entrepreneurship. It would require developing a professional reputation so you would be seen as an appropriate alternative to the other professionals, such as attorneys, that the public now views as its only option. Creating a professional reputation will require educating the public through public speaking, writing articles, and offering seminars. It will require identifying and meeting those in your community who will be sources of professional mediation referrals. Many lawyers, judges, therapists, and potential clients assume they know how mediation works and believe themselves capable of assessing whether their particular case is appropriate for mediation. If you don’t meet and educate them otherwise, many will continually decide that mediation is not appropriate for their case. I often ask judges and attorneys to describe the reasons that a particular case would not be appropriate for mediation. Almost always, I am then able to explain how mediation can effectively address those concerns and why those are the very reasons mediation is so appropriate.
- The traditional course of hiring attorneys and entering the legal system is well entrenched, and despite its shortcomings, is hard to change. Especially in Virginia, becoming a professional mediator requires overcoming the perception that anyone can mediate and that mediation should be free. It requires resolve and determination, patience and perseverance, and a sense of humor - all qualities of good mediators, but still, not an easy undertaking.
Having said all that, the good news is, notwithstanding the state, court, and bar’s influence in Virginia in crafting the mediation message as a free entitlement, professional mediation still sells. An educated market recognizes private, paid, professional mediation as a much needed and preferable service. Not only is professional mediation an appealing alternative to the time-consuming, destructive, and expensive process of litigation, but it is also a much more effective and efficient process for planning the future in almost any context. As we all know, mediation takes less time, costs less, and creates better, more customized arrangements than attorneys or judges can create within the limits of the legal system. Moreover, as we also know, since the parties directly participate in creating mediated arrangements, they are more likely to comply with them. That’s a message that makes sense in the marketplace.
So, move on. Be professional. Be successful in spite of the court’s free alternatives. Know that the market is smart enough to distinguish between a professional and a non-professional, between a government program and a private professional service, between professional quality and non-professional quality. I know it to be true. Those few intrepid mediators who move into the marketplace as professionals, unfettered by expectations that the government, through the court system, will provide a base of business, and who make the commitment any professional who wishes to succeed must make in order to succeed, will succeed. The more of us who do, the more impact professional mediators will have on establishing the reputation of mediation as a profession. There are too few examples of successful, professional mediators. Become another.