Moving Mediation Practice Forward— Is It Time for Certification? (Part Two)

This article continues from the first part, which you can read here.

Is certification desired?

In 2016 IMI published a Biennial Census Survey Report on the field of international mediation and ADR. Mediators and stakeholders were asked several questions about what professional development attributes are valued when selecting a mediator. When mediators were asked about the type of support they valued in their profession they pointed to the ability to receive some form of tangible diploma, certification or professional license. The responses suggest that certification establishes self-confidence in mediators and confidence in clients.

From 2016-17, IMI conducted a series of events to determine the future of dispute resolution globally. One of the questions asked participants sought guidance on what areas they believed would most improve commercial dispute resolution. Overall, the fourth highest ranked answer was accreditation or certification systems for dispute resolution providers. Party representatives and non-adjudicative providers believe certification systems will improve commercial dispute resolution.

The European Union (EU) was lauded in 2008 when it adopted its Directive on Mediation. The Directive sets a framework for mediation as an integral part of access to justice and directs its Member States to develop mediation locally. Some Member States such as Italy and Turkey established mandatory mediation schemes that have increased the mediation experience. No central certification system is in place but the EU and its Member States regularly speak of registry systems. Can a certification system be far behind?

The 2012 ABA Report suggested that there may be a need for a certification process when mediation is mandatory through a public or private entity, or where the parties are unrepresented, or where the lawyers who select mediators do not have a good understanding of the mediation process. It is also believed that certification of a mediator is not needed in large civil disputes where the mediator is selected by sophisticated counsel or a party or an experienced insurance adjuster. These users are regular consumers of the mediation process and understand the subtleties of the process.

What now?

We can learn from the past and take ideas to the next level. We have certification models on an international level such as IMI and SIMI that are thriving and can be leveraged to address the concerns of opponents to certification.

The New York City Bar Association’s 2006 Report on Mediator Quality suggested that NYS mediator membership organisations develop a voluntary system for mediators to acquire the skills, training, and experience to qualify for accreditation. The system would be publicly available and mandatory for mediators who are compensated. Yes, the system should be self-funded by compensated mediators or the provider organisations to which they belong should financially support registration.

Might this be the next chapter in the growth 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.)

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