A New Policy on Mediator Credentialing

Vol. 19 No. 3

By

The issue of mediator credentialing provokes strong feelings in many of us. We want to see mediation recognized as a true profession and end stories about incompetent neutrals. At the same time we treasure the openness of the field and do not want anyone to impose a single “correct” way to mediate. Credentialing almost inevitably brings these values into tension.

I won’t cover here the arguments pro and con on this issue.[1] Instead let me summarize the recommendations of the ABA Section of Dispute Resolution Task Force on Mediator Credentialing, as approved by the Section Council in August 2012. You can view the Task Force Report on the Section’s Resources web site: http://ambar.org/disputeresources.

Varieties of Credentialing

Credentialing is widespread. Private training organizations, for example, regularly give their graduates certificates, and courts impose qualifications for membership on panels. What certification or credentialing means, however, varies enormously from one context to another. Some organizations require only that their students attend class, while others demand that candidates go through training, obtain experience in the field and demonstrate competence in specific skills.

In Florida, for instance, mediators can qualify for court certification by accumulating points based on education, training and experience in mentorships. Maryland, by contrast, decided not to impose statewide credentialing and instead created a program that encourages mediators to improve their skills over time.

A private center in San Diego requires candidates to complete training, observe and co-mediate several disputes and then be assessed as they mediate simulated cases. The International Mediation Institute’s certification process emphasizes transparency: Candidates are certified after receiving training by an approved organization and having several clients submit assessments of their work to a third party who compiles the data. A summary of this information is then put on the web for review by prospective users.

The Task Force

The Task Force on Credentialing included practicing mediators, academics, a system administrator and other experts. The question posed to the Task Force was whether to support credentialing activities by others, not whether the ABA should offer credentialing services itself. After fact-gathering and discussion, the members reached the following conclusions and recommendations about the need for credentialing and the characteristics of credentialing programs.

Need for Credentialing

Task Force members were divided on the basic questions of whether mediator credentialing has potential to assist consumers seeking a competent neutral and is the best process for competent mediators wishing to distinguish themselves in the marketplace, with no one holding a strong opinion. [2]  Members agreed that the need for credentialing is likely to be greatest:

  • When a court or public or private entity requires disputants to use, or sponsors or refers disputants to, specific programs or mediators.
  • When disputants enter mediation who are not knowledgeable about the process or the qualifications of individual providers and do not have counsel capable of advising them.
  • When lawyers and other professionals who choose mediators do not have a good understanding of mediation or find it difficult to identify competent mediators in a particular field or geographic area.

A majority of Task Force members believed that credentialing is not needed in large civil cases involving repeat users, while a minority believed a need exists in smaller cases where parties are represented by counsel who do not have the knowledge or resources to select competent mediators.

Characteristics of a Credentialing Program

Perhaps the Task Force’s most important recommendations concerned the minimum standards of quality that a credentialing program should meet. A program should:

1. Clearly define the skills, knowledge and values that persons it credentials must possess. Without a clear definition of the skills, knowledge and values a credentialed mediator must possess, credentialing organizations cannot assess whether a candidate possesses them and disputants cannot know what weight to place on a credential. Such definitions should be tailored to a specific form of mediation (family, large commercial, small claims, transformative, etc.) for which the credential is issued.

2. Ensure candidates have training adequate to instill those skills, knowledge and values. Such training should include:

a.    Substantial instruction, including experience acting as mediator in role-plays similar to the types of disputes for which the candidate seeks credentials.

b.    Observation of one or more actual mediations.

c.    Experience mediating one or more actual cases as co-mediator with a credentialed mediator.

3. Be administered by an organization distinct from the training organization. The Task Force concluded that it is problematic for the same organization both to charge for training and to assess whether its training has been successful. For the same reason that law schools are not permitted to decide whether their graduates pass the bar, training programs should not judge whether their efforts have been effective.

4. Have an assessment process capable of determining with consistency whether candidates possess the defined qualities. The Task Force believed that for credentialing to be credible, it must be based on a determination whether a candidate has acquired the skills, knowledge and values that comprise the credential. This requires a testing process based on specific criteria and a consistent method of evaluation. 

5. Explain clearly to persons likely to rely on its credential what is being certified. Credentialing is justified in large measure by the difficulty that some users have in choosing a competent mediator. For this reason a credentialing program should explain in a clear and understandable manner, to the persons expected to rely on its credential, the skills, knowledge and values its mediators possess. Organizations should make clear in particular whether a credential signifies that a mediator has attained a given level of competence and experience or simply confirms their attendance at a program, and should describe the form, school or style of mediation the organization is certifying.

6. Provide an accessible and transparent system to register complaints and provide feedback. Promptly and fairly investigate complaints and, if appropriate, de-credential mediators. Not all credentialed mediators can be expected to display in practice or retain over a career the skills and values required by their credential. Credentialing organizations must have an accessible and transparent mechanism to receive complaints about their mediators. A majority of the Task Force believed organizations should also have a process to monitor the performance of credentialed mediators such as periodic requests for feedback, and, if a complaint is received, to promptly investigate and fairly assess it and, if appropriate, de-credential the mediator. A minority believed such monitoring was not feasible, and that at least in situations where the users are “repeat players” it would be enough that the substance of any complaints be made available to users.

Concerns about Credentialing

Most important, perhaps, Task Force members concluded that neither American users of mediation nor American mediators presently show sufficient demand for credentials to fund the cost of a strong credentialing system (the fees charged to candidates in the San Diego program, for example, total almost $5,000).

The Task Force cautioned, finally, that credentialing should not:

  • Evolve into mandatory licensing,
  • Exclude non-lawyers from becoming mediators, or
  • Prevent disputants from voluntarily selecting a non-credentialed mediator.

ABA Section of Dispute Resolution Statement of Policy

The ABA Section of Dispute Resolution Council approved the report with the following statement of policy:

“The Section supports local initiatives and innovations in the field of credentialing, provided they meet the guidelines set forth in this report. Given, however, the lack of a consensus at this time about the attributes of the mediation process or a process for determining competency, the Section does not support creation of a single nationwide credentialing system.”

We hope the Section’s new policy will make mediator credentials more meaningful to the disputants who rely on them.

Dwight Golann is a professor at Suffolk University Law School. He is a practicing mediator and the author of the forthcoming ABA book “Sharing a Mediator’s Powers: Effective Advocacy in Settlement.” He served as chair of the Dispute Resolution Section’s Task Force on Mediator Credentialing. He can be contacted at dgolann@suffolk.edu.

[1] For excellent presentations, see www.law.suffolk.edu/ADRcredentials. For the results of a recent survey of international corporate counsel on what they seek in a mediator, see http://imimediation.org/imi-international-corporate-users-adr-survey-full-results.

[2] This may be because most members believed there is a lack of consensus within the field about what skills and behaviors are necessary and appropriate for a mediator and what processes should be considered “mediation,” even within a specific subject area (although some members believed the field has, or could, do so for particular schools or styles of mediation).

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