Professionalising Commercial Mediation: Discarding the Baggage of Idealised Professions

Commercial mediation is often described as an emerging profession. The word ‘profession’, however, conveys numerous ideas about the identity of an occupational group, function in society and ethical roles. Also, different sociological approaches attempt to understand professions in different ways. One way, which is accompanied by negative associations, is to see professionalisation as a social mobility project in which occupations strive towards commercial advantage by being resistant to competition and alternative forms of accountability; autonomy turns into monopolistic practice and elitism, and self-regulation becomes the mechanism by which to avoid the discipline of the courts and the rigours of the market. But this approach offers little in the way of understanding how an emerging profession is to take shape, as does any attempt to distinguish between professions and non-professions.


Occupations claiming professional status often rely on attributes seen to define a profession. This is done by selecting some occupations which, with certainty, are considered professions – usually, law and medicine – and identifying the characteristics which they share to give an ideal model against which other occupations may be compared.


The characteristics which usually describe this ideal model are:

  • Expertise, the mastery of which is drawn from an ever developing and complex theoretical base and necessarily involves lengthy study and training

  • Authoritative advice, which is related to expertise, and which clients follow without knowing why it is good advice

  • A social good at which the expertise is directed

  • Autonomy and self-regulation in setting standards of practice, the content of education, entry into and exit from the profession

  • Allegiance expressed through a pledge to follow a code of conduct

  • Greater prestige, influence and financial rewards than other occupations.

The attribute approach is seductive because it sets out a series of characteristics against which the transformation of an occupation to a profession can be assessed. However, drawing on an ideal model of profession comes with the danger that the changing conditions under which occupations operate are ignored.


More practitioners, including those in the established professions, are working in managed, employed or multi-disciplinary environments where there is a trend towards higher specialisation and a greater focus on working ‘with’ rather than ‘doing things for’ clients. Professionals themselves are increasingly becoming clients and business professions such as accountants, lawyers and bankers working on international projects are having an increasing influence.


These changing conditions also need to square with the state’s view of professionalisation as an instrument of social control which stresses the interest of consumer protection, safeguarding against bad practice and well-meaning incompetence. Moreover, the corporatist state, which has emerged in Britain over the last thirty years, has posed challenges to professional monopolies by seeking to promote competition amongst practitioners and ensuring that the consumer has the widest choice possible of professional services. The Office of Fair Trading (OFT) is particularly active in this respect. Its report of March 2001 on competition in the provision of professional services in England and Wales put the professions of law, accountancy and architecture under scrutiny.


In its progress statement, Competition in professions, one year later, the OFT reviewed the extent to which these professions had opened themselves up to competition and, at the same time, took the opportunity to declare its extended range of powers to address restrictions on competition. These powers include market investigations, enabling the OFT to refer markets to the Competition Commission, providing a fast-track complaints procedure for specified consumer organisations, and the provision of analysis and advice to the Government on the impact of laws and regulations. The progress statement envisages that the enforcement of competition law will provide the most effective way to promote the interests of consumers and provides a touchstone for occupational groups in new areas of practice looking at professionalisation.


Key considerations for an occupational group are the circumstances that lead to professionalisation: a process which embodies an ideology of professionalism and which, in turn, is inextricably linked to the form of relationship the occupational group has with the state.


In the case of commercial mediation, the increasing cost and duration of civil litigation, gave force to its development in support of the government’s Access to Justice project to make the civil courts more efficient and more cost effective in order to deter people from the combative process of litigation. Indeed the government, through the Lord Chancellor’s ‘pledge’, avoided the potential criticism that in asking the public to carefully consider not going to court it did not exclude its own departments and agencies.


However, civil justice is not restricted to dispute resolution. It is a system that aims to provide and encourage dispute avoidance and is linked to the government’s vision in the use of information technology to enable access to the law so that “experts in a field may adjudicate rather than experts in the law, in an increasing number of cases.” (Lord Chancellor’s Department. Civil.justice.2000, 2002: p.24). The occupation of civil and commercial mediation is not only seen as a resource for the administration and management of the justice system but also as a resource for its moral transformation; a resource to simultaneously maintain social order and effect social change.


Civil Justice and Alternative Dispute Resolution is also encompassed by the government’s economic strategy to encourage the private sector to take on the role of public sector provider. As such, the development of commercial mediation is best understood in terms of private enterprise developing a market for a public service which is closely associated with the civil justice system but is not, in its delivery, necessarily based on knowledge of the law, irrespective of the fact that there are lawyer mediators and that some mediation service providers only use lawyer mediators.


The question for civil and commercial mediation practitioners and service providers is whether professionalisation, in the sense of creating a qualifying association and claiming a professional identity as a single institutionalised group, is the most appropriate way to both safeguard the diversity of mediation practice and to secure the confidence and trust of mediation users regarding professional accountability.


Commercial mediation practice does tolerate the idea of a professional discipline. Beyond process understanding, the claim to emerging profession lies more in learning capability across disciplines and a high level of interpersonal skills than it does on the possession of a highly defined body of technical knowledge or core theoretical model.


It is difficult, if not impossible, to instil through training personal characteristics that pre-figure competence in mediation. Mediators very much use their own personality as an instrument of the mediation through which their skills are transmitted. The expert who works with a defined body of knowledge appears less relevant in commercial mediation but that does not mean that the commercial mediator cannot be an expert in mediation. The point is that mediation is not capable of being reduced to a neat set of skills that guarantee or predict its outcome. The link, therefore, between training and effectiveness is not entirely secure because an effective mediator is not guaranteed to get that way by taking lengthy training.


What is important is that people are in the position to choose to embark upon more training as a way of connecting their personality and identity within an area of practice where knowledge cannot be standardised, is continually developing and variable. Training, however, soon moves on to the question of accreditation and regulation.


There are a number of mediation organisations that provide training courses and some, like the Centre for Effective Dispute Resolution (CEDR), also have an accreditation function. Standards, though, may be different and the obvious point is that the more civil and commercial mediation becomes enshrined in the civil justice system, the more the likelihood of pressure to set and conform to standards in practice, particularly where the courts increasingly urge the parties to attempt mediation. There may be a temptation – particularly if it is thought that it is the extent of self-regulation which is the key component in defining a profession – to make a unilateral move to establish a regulatory body by way of a qualifying association to make mediators professionally accountable and to give comfort to the judiciary.


However, the regulation of professionals has always been a mixture of external regulation and self-regulation: more accurately, externally required but internally designed and operated. This is significant in the trans-national context of professions. For example, most of the European Commission’s legislation regarding professions has taken the form of directives.


Recently, the Legal Affairs Committee of the European Parliament debated the draft directive on the recognition of professional qualifications to enable the free movement of professionals within the European Union. The Committee, however, was unable to reach a consensus on the definition of a profession and whether the directive should be limited to the established professions or include other occupations. There was also discussion on whether in dealing with the recognition of qualifications, the European Parliament should support an all- embracing directive to cover all professions or whether directives should be profession specific.


Irrespective of whether a catch-all or sector specific approach is adopted, as a component of regulation, qualifications and standards must leave sufficient latitude in the regulatory mechanism to allow for different and emerging types of practice.


In its response to the European Commission’s Green Paper on Alternative Dispute Resolution in civil and commercial mediation (April 2002), CEDR urged the Commission to concentrate on promoting greater use of mediation: a directive, which would impose standards by means of external regulation, would, in all likelihood, restrict the flexibility of mediation practice and for that reason CEDR expressed a preference for the development of voluntary guidelines.


A steer away from external regulation at this stage, however, is not a steer away from consumer protection and professional accountability. For CEDR this takes the model of accreditation and peer review within a practitioner network, coupled with a formal mechanism of client (consumer) feedback on mediator performance. Although in itself, such a model may not be new, for commercial mediation the idea of profession as institutionalised expertise has little currency, and professionalism has more to do with individual practitioners engaging in groups of reflective and knowledge-based activities than it does with membership of a professional association or defined practice. It signals that the externally monitored, corporately organised service provider is replacing the idea of the independent, self-regulating professional, and that any attempts to put into place idealised attributes of professions is not only anachronistic but distorts the uniqueness and identity of a particular type of contemporary professional practice and the conditions under which it operates.


                        author

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