CPR Alternatives
Volume 26 No. 3 -- March 2008
MEDIATORS' ALERT: NOW, CERTIFICATION GOES GLOBAL
BY JUDITH MEYER ©2008
The author is a lawyer and an adjunct professor of ADR at Cornell Law School in Ithaca, N.Y. She heads her own ADR provider and consulting firm, JPMeyer Associates, in Haverford, Pa. The author is joint-Vice-Chair of the IMI Independent Standards Commission discussed in this article.
A controversial idea is in play: Should commercial mediators be invited to apply for competency certification granted and administered by an international institute?
The International Mediation Institute, a nonprofit public-interest foundation established in April 2007, in The Hague, Netherlands, at the joint initiative of the American Arbitration Association, the Netherlands Mediation Institute and the Singapore Mediation Centre/Singapore International Arbitration Centre, has posted draft standards, criteria and rules for public comment through the end of this month. (Available at http.//imimediation.org/)
The certification initiative comes not from mediators, who have never had a penchant for putting hurdles in their own path, but from corporate mediation users of mediation. The IMI board chairman is Wolf von Kumberg, London-based assistant general counsel of Northrop Grumman Corp. The IMI Independent Standards Commission joint Vice-Chair is Michael McIlwrath, Senior Litigation Counsel at GE Infrastructure -- Oil & Gas in Florence, Italy.
[McIlwrath hosts a podcast series for the CPR Institute, which is publisher of this newsletter, at CPR's website. The author of this article is also joint Vice-Chair of the IMI Commission. Kathleen Bryan, CPR's president, and publisher of Alternatives, is one of 31 IMI Independent Standards Commission members. A full listing of members is available at www.imimediation.org.]
The International Mediation Institute has undertaken a task that no one has successfully completed in the three-decades in which mediation has moved from a new-age wild-idea to an accepted, institutionally embraced alternative to litigation.
Thirty years ago mediation was routinely misspelled as "meditation," or re-conjectured as "arbitration." Mediators were mostly in the business of educating potential clients--law firms and corporations--in the use of this new protocol. Riding a wave of opportunity, universities such as Pepperdine and Harvard began offering professional mediator training. Private training groups emerged next--indeed proliferated--offering basic, intermediate and advanced mediator training.
Most of the training came with a disclaimer: we can give you mediation training, but we cannot offer you mediation employment. Mediators who found marketplace success began to coalesce and self-identify, forming in the 1980s the Society for Professionals in Dispute Resolution, now the Association of Conflict Resolution; and in the 1990s the American Bar Association Section of Dispute Resolution, the International Academy of Mediators, and the American College of Civil Trial Mediators.
Federal and state courts, and private national and international providers such as the CPR Institute, the American Arbitration Association, the Financial Industry Regulatory Authority, and JAMS as well as innumerable local providers, created and now offer mediator panels. The judicially created panels tend to require some form of training before acceptance—sometimes attending a four-hour course, and others, such as Florida, going to a 30-hour training to be officially designated as a "Certified Mediator."
Almost a century ago, the passage of the Federal Arbitration Act in 1925 and the National Labor Relations Act a decade later created a profession. Labor arbitrators and mediators emerged as a breed apart, vetted by the National Academy of Arbitrators, for quality and professionalism that sets the gold-standard for integrity and competence in labor-management relations. Labor arbitrators and mediators are typically full-time and specifically trained and apprenticed as neutrals in the field of collective bargaining.
Mediators of commercial disputes -- emerging fifty years later -- operate under no universal set of rules, require no training or testing and are not licensed. The Uniform Mediation Act was approved by the National Conference of Commissioners on Uniform State Laws in 2001. A dozen states and the District of Columbia have adopted the UMA.
But the uniform law focuses on mediation protocols such as privilege, disclosure of conflicts, and party autonomy. It defines a mediator simply as "an individual who conducts a mediation."
In other words, a business card, a website and a market following make you a mediator. The only confirming ritual left to do, at least under the UMA, is to "conduct a mediation."
WE'RE THE OPPOSITION, TOO
The most vocal arguments made by mediators, at least in the United States, are against regulation. Recalling our 1970's origins as a grass-roots response to litigation's overwhelming financial, emotional and time costs, mediation appeared first in California, a jurisdiction fond of embracing the new and magical. Mediators talk of healing, of communication at many levels, of the "ah hah" moments when an irresolvable dispute is suddenly resolved.
Mediators come from all walks of life and from all disciplines--from law, psychology, psychiatry, social work, the clergy, and human resources. The ABA's DR Section is unique in admitting non-lawyer members. Now, a quarter-century into our enterprise, the profession has self-sorted into groups that do community dispute mediation, divorce and custody mediation, employment, and commercial mediation. We have talked for decades about self-policing, about ethical standards, about best practices, about the qualities of a good mediator, but we have never talked about competency certification or, even more daring, a competency assessment system. In addition to proposing mediator competency standards, the IMI proposes a mediator competency assessment system which invites feedback from users.
The IMI initiative fills a gap created by the following conditions:
Mediation practice is fragmented among its many styles and disciplines nationally and locally.
No single organization focused on mediation has a global reach.
Most ADR organizations are providers in a highly competitive market.
Most ADR organizations are arbitration-focused.
Most ADR bodies have insufficient funding to launch an international initiative.
Mediation providers are inadequately organized internationally.
In the U.S., previous attempts to certify mediators have stalled.
A user-driven initiative has not been attempted.
Certainly, an ambition to establish global mediator competency standards is not for the faint-hearted, and IMI boasts an array of provider, trainer, corporate and mediator representatives as its consultants. A mediator who meets the detailed IMI requirements may hold himself or herself out as an IMI Certified Mediator, entitled to use the IMI title and logo.
The basic agenda IMI proposes looks like this: Mediator competency will be based on four components or "competency streams." The competency streams include requisite training by an IMI-approved provider. Mediators will earn accreditation on the successful completion of an approved course. There are grandfathering provisions for mediators who already have completed training equivalencies.
"Continuing Professional Development" will be required. This is similar to CLE for lawyers, and an assurance that a committed mediator will acquire state-of-the-art knowledge, leading to best practices and cutting-edge skills.
A mediation ethics code will be launched to which IMI mediators will adhere. A disciplinary committee will be formed to consider reported violations. Mediator ethics presently are governed by a potpourri of state statutes and provider rules with no supervising body charged with oversight. IMI certified mediators will be required to evidence leadership and act as mentors in their field, first generation requirements that may be revisited as the practice becomes a profession.
FEEDBACK WILL BE CONTROVERSIAL
Feedback forms will be available to users who will be asked to complete them. The feedback will be summarized by an IMI assessor and posted on the mediator's IMI website biography. Negative feedback will not be included unless a consistent pattern is shown.
Without a doubt, the feedback proposal will be highly controversial as feedback will inform third parties about style and competency. Mediators presently work behind a scrim of privacy. They rarely advertise their preferred style--facilitative, evaluative, transformative, etc.--partly because good mediators use a fluid range of styles in the course of a single mediation, and partly because mediators are unused to and uncomfortable with self-description -- yet users are increasingly asking mediators before hire what style they use. AAA mediator website profiles now include a mediator's self-assessment of his or her style.
Competency is an even more highly charged issue. There is no universal agreement on what constitutes mediator competence. Mediators rightly fear that a failed mediation will result in a disgruntled party report. The harder a mediation, for whatever reason, the greater is the likelihood of non-settlement. Presumably, the IMI internal feedback assessment will take into account the nuanced complexities of feedback from a user in a mediation that did not resolve the dispute.
There has been to date no international push to publish lists of qualified mediators meeting rigorous standards put into play by a foundation operating globally. That this foundation is funded by users makes it impossible to ignore. The draft standards are receiving 500+ hits on the website daily, and already have generated vocal bravos as a way to make a cottage industry a profession with standards and accountability, and heated opposition as being unnecessary, intrusive, impossibly cumbersome and bureaucratic.
There are many in the mediation community who will vigorously oppose any regulation as a matter of principle. Others will ignore regulation out of indifference, or the assumption that if it isn't broken, then it doesn't need fixing.
For decades a vocal few have suggested we have an operating ethos and a way of assuring the delivery of quality services, but our inherent diversity and unwillingness to evolve into a defined and definable profession dissuaded us from the work involved. Our clients--the companies we look to for business--have now shouldered the task. They need greater transparency and wider access. They need to define us and to have a better understanding of who we are, what we do and why we are good at what we do. Their claim is that this effort will give commercial mediators greater acceptance and therefore wider use in commercial disputes.
We may not like our inner sanctum invaded by the people paying our fees, but we need pay attention if we want a voice in our own future. The IMI has asked for comment. Neutrals should make it a point to read, reflect and comment upon the Draft Standards.
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