Celebrations were many in 2018. The New York State Bar Association Dispute Resolution Section celebrated its 10th Anniversary, the International Mediation Institute (IMI) also celebrated the same landmark, and the American Bar Association (ABA) Dispute Resolution Section held its 20th Spring Conference. The field of dispute resolution has grown and developed in the past two decades. The adoption of the Singapore Convention by UNCITRAL in 2018 is a testament to the popularity of mediation and its expansion to resolve cross-border disputes.
The year is also one for examination. In April 2018, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks established an Advisory Committee to evaluate alternative dispute resolution (ADR) practices and programmes in courts around the country to fortify the New York State (NYS) court system’s existing ADR programmes.2 The legal profession expects that the outcome of the Committee’s work will result in a substantial increase in court-sponsored mediation programmes. There will be a sharp focus on mediator quality with the recruitment of a large number of mediators to meet the demands of the court programs.
It is timely now to revisit the question of mediator certification (throughout the article the words certification and credentialed are interchangeable).
The Pros and Cons
Opponents of certification believe it is unnecessary since the market self-regulates when users select mediators whom they trust and have a proven track record for settlement. Many people who are regularly selected have no formal mediation training but are highly trusted by the people who select them. Confidence in their abilities grows with successful resolution of disputes. Opponents also view credentialing as a slippery slope to regulation, thereby increasing the cost of mediation, and a way to keep especially talented individuals out of the process.
There have been a number of reports published by U.S. legal professional organisations that concluded that organisations should focus on mediation and mediator quality in lieu of supporting a credentialing or certification process. However, if a certification process is established then it should not bar non-lawyers from becoming credentialed, hamper innovation, or bar disputants from selecting non-accredited mediators. The goal for a certification programme should be to protect consumers and ensure the integrity of the mediation process.
What is Certification?
According to the 2012 ABA Task Force on Mediator Credentialing there appears to be no common understanding of what a credential means in the context of mediation, either domestically or internationally, or what mediators should specifically be required to do or to demonstrate to obtain a credential. Most, if not all, private organisations and court systems that maintain panels of mediators require that members complete a training program. Some provide a certificate to anyone who completes training and meets other qualifications, without requiring them to demonstrate specific competencies. Other organisations require candidates to demonstrate specific skills through a testing process. Still others emphasize the provision of information, requiring mediators to provide client assessments which are made available to potential users.
In fact, many of the reports created after studying the issue indicate that it is unclear what should be the standard of measurement.
U.S. courts have standards for an individual to be certified to mediate in their specific courthouse. The standards are different for each court. Despite progress, many judges anecdotally report bad experiences and a lack of confidence in the court rosters.
Any certification scheme must be supported by evidence and not guesswork, and credentialing must be premised on fair and objective criteria, not on arbitrarily chosen ones.
In 2008, IMI was established to set high standards for mediation practice globally. The foundation of its promotion of such standards is a process to certify mediators. The core of IMI certification is a feedback digest for every certified mediator. The feedback digest is created by an independent reviewer who collects information from the mediator’s users on how the mediator operates. The user’s names are confidential, but the feedback digest is publicly available and transparent.
The IMI certification process includes many of the elements of a certification programme recommended in the 2012 ABA Report. The elements include: defined skills, knowledge and values that a credentialed person must possess; adequate training that includes role-playing, observation of the candidate being assessed and co-mediation with a certified mediator; the certification programme should be administered by an organisation different from the training organisation; an assessment process; an explanation of what credentialing means; and, an accessible, transparent complaint system.
The IMI certification model was bolstered to address the needs of Asia. In 2014, the Singapore International Mediation Institute (SIMI) was established based on the IMI model. Since then, SIMI has become a force in Asia promoting mediation and establishing Singapore as a centre for the resolution of business disputes.
Models for certification thus exist and are in demand to promote the professional, quality practice of mediation.
This article, and its companion piece, was originally published by the New York State Bar Association’s New York Dispute Resolution Lawyer’s Spring 2019 edition (Volume 12, Issue 1.)