Certifying International Competency Standards for Mediators

Certifying International Competency Standards for Mediators (Article by Michael Leathes)

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When you innovate, be prepared for people telling you you’re nuts
Larry J. Ellison, CEO Oracle

Little did I know, after retiring from a career as an in-house corporate lawyer, that I would effectively assume a role as a new-age transformative mediator, balancing the needs and interests of users of mediation services with those of mediators themselves.  Here I am, doing just that, and being told by some mediators that the status quo should be left alone, or at best tweaked. But, as Laurence Peter asked in The Peter Principle, has the quo lost its status?

A year ago I was invited to lead the International Mediation Institute (IMI), a new public-interest foundation in The Hague designed to turn mediation into a true profession on a global scale.  IMI’s founders are leading non-profit dispute resolution institutions – the American Arbitration Association/International Center for Dispute Resolution, the Netherlands Mediation Institute and the Singapore Mediation Centre/Singapore International Arbitration Centre.  The core remit of the IMI sounds laudable – to establish a set of globally-applicable transparent standards for mediators, to help raise professional practice standards, to enable those who use the services of a mediator to establish that person’s professional competency in advance with a high degree of confidence, and to enhance the standing and therefore the value of professional mediators.  A side benefit is that such a voluntary, self-regulating system would head off government pressure to regulate mediators.  I accepted the invitation as I have experienced the need for mediation standards as an international user over many years.

I have since received the most enthusiastic support for change from many constituencies around the world.  Not surprisingly, those who get into disputes and find themselves urgently needing the services of a mediator, like companies and their legal advisers, are passionate to satisfy themselves in advance that the person in whom they will invest their complete trust is an absolute professional, adheres to the highest standards, and, above all, really is a competent mediator.  Judges have the same desire, as they often direct warring disputants into the arms of mediators and want to be sure they are in strong and capable hands.  NGOs feel the same way, as do government institutions and educationalists.

Mediators respond less consistently. Some welcome IMI’s proposals with constructive comments (the draft proposals are now available for comment at www.IMImediation.org).  Some ignore IMI.  Others ridicule it, saying the initiative is overly ambitious.  Some openly oppose IMI’s ideas. Why does this spread of reactions seem to come only from mediators?

Let’s first be clear about the status quo and how IMI is proposing it should change.  Then let’s analyze the range of reactions, try to separate the issues from the emotions, and explore the realistic options for progressing this field into a true, independent, profession to benefit all.

Is Mediation a profession?

Unfortunately – no.  That is not to say mediators are not professionals, because most certainly are.  But they are mainly recognized as such in their independent capacities as attorneys, surveyors, psychotherapists and many other disciplines.  Mediation is a vicarious profession – it relies for its credibility on the separate professional standing of its practitioners.  Some would say it is an emerging profession.  Few claim it is a profession of its own.

To achieve true professional status in its own right, mediation needs to take on the mantle of the established, recognized professions.  Professional status is not something that can credibly piggy-back on other professions, particularly where, as in the case of mediation, practitioners come from many different backgrounds and by no means everyone has the special skills required of a mediator.  For mediation to be considered, by its users, as a proper profession, mediators need to strive for transparent high standards of practice, training, ongoing education and delivery as well as ethical conduct and have a clear disciplinary process.   And because, in this shrinking world, many of the big-ticket disputes are international in nature, those standards should be broadly shared around the globe.

This is not a new subject.  It has been thought about already.

In the US, where modern mediation began in earnest with the 1976 Pound Conference in Minneapolis, educationalists like Professor Sander at Harvard and NGOs like CPR Institute have led a focus on the subject for a long time.  In 2001, the American Bar Association’s Section of Dispute Resolution and the Association for Conflict Resolution (ACR) both convened Task Forces to study how mediator credentialing could be instituted nationally across the board in the US.  However, both concluded that implementing a national certification program for mediators faced significant hurdles, due mainly to the balkanization of the practice among various groups, such as commercial, family and community practitioners and the mediation programs of the various State and Federal Courts.

Canada, however, addressed the issue more successfully when a group of users – corporations and law firms – convened and funded the ADR Institute of Canada, a national non-profit organization, which has successfully set mediator standards throughout the country.

Across the Atlantic, the European Commission launched a European Code of Conduct for Mediators in 2004.  The current draft European Mediation Directive contains a specific provision urging the introduction of quality control mechanisms for mediators and mediation providers.  The Netherlands Mediation Institute has already done so in Holland. England & Wales created a Civil Mediation Council to credential mediation providers (but not mediators themselves), and Belgium has a Federal Mediation Commission with similar aims.  Scotland, however, maintains a Mediation Register for practicing mediators.

Australia recently introduced national practice and approval standards, a major development in a country gripped by this issue for several years.

But none of this activity is aimed at forging a true international profession of mediation.  It remains an emerging profession almost everywhere, with patchy credibility among users.

Proposing Change

IMI was created to enable users to be more confident about a mediator’s competence, enhancing the independent professional status of mediators and thereby encouraging greater use of mediation.  So IMI’s starting point is the user, the customer.  But in addressing users’ needs, IMI aims to ensure that the needs of mediators are also properly accommodated – and that their professional abilities are fully recognized and appreciated.  For users, IMI aims to be a tool for finding the right competent mediator.  For mediators, IMI needs to represent a remarkably good marketing platform for their skills on local and international levels.

To achieve this combination, IMI is suggesting a way of establishing competency based in significant part on actual user feedback converted over time into anonymised digests by independent parties using guidelines prepared by IMI.  Each Certified Mediator would have a regularly updated digest of feedback, which would be openly accessible to all users via IMI’s website.  Potentially, it could go further, with expert assessments included as well.

Of course, there needs to be a bit more to it than that.  Transparent summarized feedback alone is an insufficient measure of all-round professionalism.  Mediators need to be trained to specific minimum standards, because some training courses only last a day or two and barely scratch the surface of the treasure chest of tools and techniques mediators need to know how to use.  And, because this is a fast-developing field, proper continuing education principles need to be put in place, just as there are in any mainstream profession.  There needs to be a minimum standard for what goes into an acceptable code of ethical conduct, because some that are out there are just a few lines of vague generality.  And a disciplinary process.  But, essentially, that’s all IMI is proposing so far as mediator competency standards are concerned.

IMI is suggesting that experienced mediators who already have a certain number of feedbacks from parties whose mediations they have handled may apply to be “grandfathered” as Certified Mediators if they are willing to appoint an acceptable independent third party or assessor to prepare their feedback digest in line with IMI’s proposed guidelines.  Certified Mediators would pay no dues or fees to IMI; the idea is that IMI will be funded by users, not by the mediators who seek certification of their competency.

IMI’s draft guidelines for preparing feedback digests are quite simple and easy to follow.  They also deal with how negative feedback is to be handled – essentially, it is proposed that a negative comment from users about a Certified Mediator’s performance will be included in the feedback digest if that comment is repeated more than three times by parties in different mediations.  The will protect mediators from parties who occasionally misdirect at the mediator their frustration over achieving what they regard as a poor outcome – which may have little or no bearing on the mediator’s competency.

A Spread of Reactions and Views

Many mediators have expressed strong support for these proposals, while having a number of suggestions for improving the draft standards.  On the underlying principle, most have said that they recognize that high standards and transparency are vital to the goal of creating an independent professional status for mediators and heading off government regulation.  Most also accept that word-of-mouth recommendations and listings in directories are inadequate.  They agree that users need a reliable and objective insight into a mediator’s prior performance, while respecting the fact that mediations take place in private and more often than not even parties’ identities are confidential.  Many recognize that accumulated feedback, summarized into digests, builds into a fair indicator of a mediator’s competence, and forward-thinking mediators typically see the marketing value of having a really credible way in which their competency skills can come to the attention of a vast number of users. One commentator pointed to a famous line in The Peter Principle, the classic work in this whole area: “Competence, like truth, beauty and contact lenses, is in the eye of the beholder”.

Despite supporting the idea of competency certification and the general principles proposed by IMI, some leading mediators and educationalists feel they do not go far enough.  One key concern raised is that user feedback is often given by people unable to recognize real competence in a mediator, and what they are expressing on a feedback form is their level of overall satisfaction with the process or the outcome.  The way to overcome this, some suggest, is to require Certified Mediators periodically to be assessed by someone expert in evaluating real mediator skills – in live action (with the assessor present, but silent, during a mediation) or in simulated conditions in a roleplay performed by professionals who really test the mediator’s skills.  It is suggested that a suitable summary of the assessor’s evaluation is then included in the Certified Mediator’s website profile.  Those proposing this approach recognize that this involves greater cost and organizational consequences but feel that it is amply justified by the enhanced sophistication and quality of competency information available to users.

However, not everyone sees these proposals as a fundamental positive which has yet room for improvement.  Many are silent, or at best sceptical, unsure or nervous about changing the way things are.  They are waiting to see the final product before passing judgement, knowing that they can always apply to be IMI Certified at the appropriate time.  Some say that IMI’s proposals will, if implemented, create a barrier to those wanting to become practicing mediators, will make it harder to introduce an alternative scheme and say it will impede, not enhance, the emerging profession.

I do not feel that IMI’s proposals will act as any kind of barrier to entry, or make it harder to implement another scheme.  Other credentialing schemes can, will and should continue to exist and flourish – IMI does not seek in any way to compete with or to replace them.  There is already a profound barrier to entry that urgently needs removing; talented people aspiring to become mediators are often finding themselves effectively frozen out from mediating opportunities by the domination of a few with established networks. Certification would introduce a more transparent and straightforward path through the superficial layers of protective professional positioning and focus on clear standards and how well users (and, potentially, assessors) rate a mediator.  Far from being a barrier to entry, this will help lower the existing barriers and open opportunities to others – provided they are, in fact, competent.

Some claim that the proposed scheme is bureaucratic, complex and costly and that it is a one-size-fits-all approach that ignores different legal systems and the many ways in which mediation is practiced around the world.  They also point out that other professions do not have feedback schemes, so why should mediators?

I am passionately against avoidable bureaucracy and complexity.  A certain amount of rulemaking is inherent in any society with high standards, and that includes any profession.  The task will be to keep it as unencumbered as possible while minimizing the prospect of abuse and maximising the credibility of the standards.  There may be more scope for simplification, and specific ideas will be carefully considered.  There will be some cost in the generation of feedback digests because, for credibility purposes, they need to be prepared by an independent source.  However, that cost would be a tiny proportion of the value created – for both the user and for the Certified Mediator – and less costly than many conventional, less credible forms of mediator marketing.

Nor are IMI’s proposals a one-size-fits-all approach – quite the reverse, in fact.  They merely inject transparency into the frame and set high minimum standards of professionalism.  Mediators can have feedback digests irrespective of the forms or styles of mediation they choose to adopt or what legal systems sit in the background.  The fact that other professions do not require feedback summaries is irrelevant.  Comparable professions do not have to play catch-up in the credibility stakes.  If mediation is to emerge as a true independent profession, quickly, it needs something poignant, relevant and user-friendly to distinguish its practitioners on a pure competency level.  I understand that many professional people strongly dislike being appraised and have become unaccustomed to it.  Some may fear it.  But the demands of the world’s users are changing fast.  We need to detach ourselves from the cynical view that “all professions as conspiracies against the laity” as George Bernard Shaw claimed.  For mediators, IMI is an innovative and value-added way to do it.  I can think of none better.

Almost all those who have so far expressed opposition to IMI’s proposals claim to be in favour of standards for mediators and agree that there is a need for a scheme of standards that would work.  But none has so far suggested what would work better, and at best seem to propose tweaking the status quo rather than changing it substantively.  Some objectors have said that any standards should bedriven, set and monitored by mediators, not by users.

I do not share the view that certification of competency should only be driven and monitored by mediators.  That would simply encourage the “conspiracy against the laity” supporters.  Users of mediation services, being the real market-makers, have a profound interest in this area.  They have a perfect right to help determine who is competent.  The fact that IMI is largely a user-driven initiative does not preclude a central role for mediators.  Indeed, IMI’s proposals on feedback digests enable mediators to appoint independent parties – generally other Certified Mediators and approved provider bodies and professional institutions – to prepare the feedback digests.  Actually, the system will largely be a self-managed voluntary scheme, though under the scrutiny of users.

So rather than view IMI as a threat, and dismiss its proposals with generalised objections and without suggestions for something better to go in its place, we need ideas for improving IMI’s draft proposals.  We are listening carefully to the many suggestions being offered about training and provider standards.  Also how feedback forms should be configured and arranged, and whether professional competency assessments should be included as an option or as a requirement.  All such comments are warmly welcomed and taken seriously.

Next Step

IMI prepared its current proposals following a five month global consultation process, details of which are summarised on IMI’s website.  IMI has convened an Independent Standards Commission of profound international expertise and embracing all involved constituencies.  Everyone with a view is invited to let us have their comments.  The Commission will review all comments received on the proposals and then improve them, recommending a final scheme to IMI’s Board for adoption by the summer of this year.  Hopefully, in the coming few months, all those impacted by this important issue will focus carefully on the details, will express their views to enable the Commission to consider them, and will