One of the issues hotly debated in the ADR field is whether it’s time for state licensing and regulation of the practice of mediation. The following are summaries of the arguments that each side to the debate has marshaled.
In the comments below, I’d welcome readers to add arguments that I’ve overlooked. I’m not critiquing the arguments, merely collecting them. The criticism I’ll leave for another day.
The arguments in support of state licensing of mediators:
- State regulation of the practice of mediation would assure the quality of mediation services by establishing best practices and setting standards of ethical conduct, increasing public confidence in ADR.
- State regulation would establish a mechanism for disciplining, rehabilitating, or suspending from practice those whose conduct falls below a specified standard.
- State licensing would enhance the professional standing of mediators and confer greater credibility upon the profession.
- State licensing would enable mediators to market their services more effectively and to compete more nimbly in the marketplace against other service providers.
- State licensing would protect mediators practicing within a defined geographic area, and give local practitioners preference over out-of-state practitioners.
- Given the long-standing uneasy relationship between lawyers and mediators, state licensing of mediators would level the playing field between lawyers, who hold state-issued licenses to practice law, and mediators, who do not hold state-issued licenses to practice mediation.
- State licensing would establish standards not only for mediators but also for the training and education of mediators. State regulation of mediation trainers and mediation training programs, which at present vary widely in terms of quality and effectiveness, would increase public confidence in institutions and programs that train mediators.
- State regulation would ensure that mediators possess professional liability insurance to compensate consumers for losses resulting from professional negligence by mediators.
- State regulation would result in a database of practitioner contact information, including office location or residence for service of process in the case of a legal proceeding or disciplinary action against the neutral.
- Licensing and related fees resulting from state regulation of mediation and mediation training would generate revenue for state coffers.
The arguments against state licensing of mediators:
- Apart from anecdote, no hard evidence supports state regulation of the practice of mediation to protect the public from the unethical or unskilled. At this time, no external pressures exist – such as demands by consumer watchdog or legal advocacy groups in response to actual harm to consumers caused by mediators — to place mediation practice under state regulation. The impetus comes from mediators themselves, not a concerned public.
- State licensing of professional activities typically results in geographic limits on the practice of such activity, prohibiting those who are unlicensed from operating within its jurisdiction. Given the multi-jurisdictional and transnational nature of much ADR practice, state licensing of mediators would unduly burden the practice of mediation and constrain the ability of mediators to practice.
- State licensing of mediators runs contrary to one of the foundational principles of mediation, self-determination. State licensing of neutrals would unfairly restrict the ability of parties to utilize a neutral of their choosing.
- State regulation rests upon the articulation of standards of practice, which promote and reward conformity in behavior but work to discourage innovation. (Consider, for example, the case of opposition by some members of the bar to the legal innovation known as collaborative law.) This would have an inhibiting effect on what is still an evolving field.
- Market forces and consumer preference already operate in place of state regulation, ensuring that the lion’s share of cases go to mediators with reputations for effectiveness.
- The positive benefits of state regulation could be achieved through the creation of certification mechanisms by private actors who understand the profession and its needs better than would state bureaucrats and politicians.
- Within the mediation profession, the differences among the various approaches to mediation practice, including the role that the neutral and participants play and how broadly or narrowly issues are defined, are significant. Given these ecumenical differences, establishing universally applicable and acceptable standards of mediation practice would be extremely difficult and take years to achieve if at all.
- During economically difficult times, it is not sound policy to impose fees and erect bureaucratic barriers to the conduct of business by mediators in private practice, particularly in light of the lack of evidence to support state regulation.
- Creating barriers to practice and imposing licensing fees would unfairly burden mediators who provide low-bono or pro bono services in non-profit mediation programs, which traditionally serve disadvantaged communities.