January 29, 2020 Dispute Resolution Magazine

On Professional Practice

What does “competence” mean – and is it an ethical obligation?

Sharon Press

The success of our field, like that of any group of professionals, depends on the delivery of valuable services by skilled practitioners. We need to be knowledgeable, we need to be effective, and we need to be competent, both to serve our clients and to uphold our responsibilities as disciplined, reliable professionals. But what does “competence” mean and look like? Is being a “competent” provider of dispute resolution services an ethical obligation?

These questions are pressing enough in the abstract, but in today’s real world, where the huge Baby Boomer generation is aging and the general population of the United States is growing older, they’re especially important. According to the US Census Bureau, by 2035, this country will have nearly 2 million more people who are 65 and older than under the age of 18.

The aging of America shows up throughout society, and dispute resolution is no exception. Dispute resolution practitioners are on average older than the general population, and many volunteer and community mediation program panels include people who started mediating as they approached or entered retirement and have been on the roster for decades. Experience is an asset, and we know that many clients seek out practitioners with considerable track records. Competence might not have been an issue when these neutrals began their practices, but what about after 10, 20, or even 30 years?

Of course, age alone does not determine competence; today it’s heartening to see many people who are productive and effective decades past the once-mandatory retirement age. But as we all age and some of us cross a line, knowing what “competent” means will be increasingly crucial.

What the codes and standards say

Unfortunately, the official codes don’t offer much guidance. Canon I of the Code of Ethics for Arbitrators in Commercial Disputes states that an arbitrator should accept appointment only if “fully satisfied … that he or she is competent to serve…” The term “competent,” however, is not defined in the canon, and the ABA/College of Commercial Arbitrators annotation to the code does not include any citations to cases where competence was called into question.

The Model Standards of Conduct for Mediators includes a standard devoted to competence, standard IV. It contains three primary provisions: the first is that the mediator “shall only mediate when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.” A person who offers to serve as a mediator “creates the expectation” that she or he is competent to mediate effectively. The provision also articulates an expectation that the mediator will make available to the parties information about the mediator’s training, education, experience, and approach to conducting mediation.

The second provision states that if a mediator realizes during a mediation that he or she is not competent to mediate, the mediator should discuss this with the parties as soon as practicable and take appropriate steps, which may include withdrawing or requesting appropriate assistance.

The third provision prohibits mediators from serving as a mediator while impaired by drugs, alcohol, medication, “or otherwise.”

The standard also includes a reference to a mediator attending educational programs and related activities to maintain and enhance the mediator’s knowledge and skills. 

Let’s look more closely at some of the key phrases in the competence standard.

The reasonable expectations of the parties: This phrase walks the balance between a recognition that in mediation, parties have the right to exercise self-determination (and that therefore their expectations for mediation should be honored) and the recognition that mediation is a particular process with specific norms (and that therefore mediators can push back against the unreasonable expectations of the parties). If the parties expect the mediator to be a subject- matter expert, is that a reasonable expectation? The answer probably depends on the mediator’s stated approach to conducting a mediation. 

Discuss with the parties as soon as practicable if the mediator realizes during the mediation that he or she is not competent to mediate: Here there is a recognition that sometimes a mediator may not understand that he or she is not competent to mediate until after the mediation has begun. In such circumstances, the mediator needs to do something “as soon as practicable,” which we can interpret to mean as soon as time and circumstances allow. But then the standards leave flexibility as to what the mediator is required to do. The mediator must take “appropriate steps,” but because every mediation is different and context matters, the standards leave open the possibility that the mediator might withdraw, get assistance, or take other appropriate action.

Impaired: While the Model Standards do not offer a definition of competence, by including the catchphrase “otherwise,” competence goes beyond impairment due to drugs, alcohol, or medication and certainly could be a reference to mental capacity. I believe that an appropriate conclusion is that mediators should not serve when they lack the mental capacity to do so.

The view from Florida

I have seen firsthand how challenging the concept of “competent” can be. When I served as the Director of the Florida Dispute Resolution Center, we were fortunate to have volunteer mediators in our county mediation programs, which work on civil cases in which up to $15,000 is in dispute. These volunteers, mostly retirees, were willing to commit hundreds of hours to the mediation offices. But even then, the question of competence was a big one, and the county mediation directors had many difficult conversations with long-time volunteers whom they had to counsel out of service. For many of these volunteers, this was an incredibly painful conversation because the mediation program had become more than just a volunteer experience; it was a place where they had made close friends, developed a strong community, and felt that they were making a difference in people’s lives. While the individuals themselves often had a difficult time recognizing that they were slowing down and lacked the mental capacity to mediate, the program directors believed they owed an ethical responsibility to the litigants.

The programs whose volunteers had developed strong camaraderie had the most challenging time dealing compassionately and clearly with mediators who were no longer “competent” in the eyes of program administrators, and many who tried to counsel them to step down found that despite their best intentions, those conversations left the mediators feeling insulted and discarded. Attempts to create alternative ways for people to serve the program were often not welcome, partly, I think, out of embarrassment that others would know that they could no longer mediate.

In those days Florida’s mandatory retirement age of 70 for judges (it was increased to 75 in 2018) was hugely unpopular with the judiciary, and there was little support among members of the Supreme Court Committee on ADR Rules and Policy for a mandatory retirement age for certified mediators. The committee also resisted designation of an age limit, believing that any one number would be arbitrary. Every mediator is an individual, and some might be competent and interested in mediating well into their 90s, while others might develop cognitive or other challenges decades earlier.

Dealing with mediators involved in mediation programs is one enormous challenge, but what about mediators and arbitrators who work as private practitioners? While the conversations I heard about in Florida were difficult, they took place because someone was responsible for coordinating services who had the perspective needed to recognize problems and feel ethical duties to clients. Who is obligated to tell a respected, private-practitioner mediator or arbitrator that she or he needs to retire? The number of jurisdictions without a mechanism or individual to address these concerns far outnumbers the jurisdictions in which a party could file a complaint that could be investigated. And even if a complaint is filed, are the ethical standards regarding competence clear enough to merit action?

As Americans age, these questions will grow in both number and urgency. The time has come to address what competence really means and who should be responsible for assuring that we deliver the high-quality services that our clients expect and deserve.

Download the PDF

    Sharon Press

    Sharon Press is a Professor of Law and Director of the Dispute Resolution Institute at Mitchell Hamline School of Law. She served as a member of the Model Standards for Mediators (2005) Drafting Committee. Before joining the faculty at Mitchell Hamline School of Law, she served as Director of the Florida Dispute Resolution Center, where she was responsible for the Florida state court system’s dispute resolution programs. She can be reached at sharon.press@mitchellhamline.edu.