IMI Board Co-Chair Deborah Masucci and IMI Certified Mediator Laura Kaster recently spoke with Natalie Armstrong about mediator credentialling and opportunities for ongoing professionalisation. Watch the video, or scroll down to read a transcript.
- NA – Natalie Armstrong
- DM – Deborah Masucci
- LK – Laura Kaster
FULL TRANSCRIPT (with timecode)
00:00:05:28 – 00:00:49:00
NA: Hello everyone. Thanks very much for watching today’s video. Today I have with me two guests and we are going to be talking about a really important issue that’s come up numerous times in the resolution industry, and we’re not finished having the conversation, but hopefully my two guests will shed some light some insights and possibly some solutions to the issue of whether or not mediators and arbitrators in the United States should have a national or international accreditation or certification or credentialing program of some sort. So I want to welcome Deborah Masucci. Hello Deb how are you?
00:00:49:00 – 00:00:52:15
DM: I’m fine and you. This is a great day.
00:00:52:18 – 00:01:11:14
NA: I’m looking forward to it very much, and I really appreciate you being one of the people who has written about the topic, thought about the topic, researched the topic, and so I’m really glad to have you of course. You know as a colleague, I always enjoy speaking to you. And I also have with me today Laura Kastner. Hello Laura. How are you?
00:01:11:14 – 00:01:18:25
LK: I’m fine.
00:01:19:05 – 00:02:10:15
NA: Oh my goodness. Everyone this is our colleague Laura Kaster. Laura also is someone very passionate about the idea of credentialing mediators and arbitrators in the United States. And she and Deb have put forward a nationwide survey to a random group of more than 7000 mediators or arbitrators in the US. They’re going to be talking about the results of that survey during the course of today’s conversation, and hopefully we’ll be able to learn some more and maybe find our way through this conversation. So ladies, I will leave it to you now to talk a little bit about the survey, its results, its implications, and where it is that those conversations might take our industry in the future.
00:02:11:13 – 00:04:28:29
DM: Thank you very much Natalie. I know as you know I look at certification through the context of the International Mediation Institute. IMI has had a global certification process for over 10 years, and it really is one that’s quite different from other certification processes. This topic though is more timely right now, as primarily because in New York State, the chief judge has a push to increase the use of mediation and arbitration through the courts. So we know that with this push – and what they’re calling it is presumptive ADR – we know that’s what’s going to happen is that there’s going to be an extreme increase in cases being sent to mediation and arbitration, and also a commensurate need for an increase in mediators to address these cases, and a need for diverse mediators. So while you know IMI has been out there for 10 years, I think New York State is going to have to look at some form of certification or qualification to ensure the quality of the mediation process to the people, participants in it. The survey was very, very telling. The survey before this session showed that the people who responded were split about whether certification would improve mediator performance. However. 70 percent said that it would be it would it would increase respect for mediation. Also, 80 percent expressed a willingness to be certified, while sixty five percent believe certification would assist consumers in selecting mediators. So from my point of view, the results of this survey were very positive, and it looks like people are open to a discussion on certification.
00:04:29:07 – 00:05:50:16
DM: But the first hurdle that we have to address is ‘what is the definition of certification?’. And my article really talks about how some people define certification basically as is certificate you receive after attending a training program, whereas IMI looks at certification as a process where individuals are assessed about the knowledge they have about dispute resolution, the skills they’ve demonstrated in performing mediation, the training that they’ve attended, and then that’s capped off by a Feedback Digest which is a compilation of what consumers of that individual’s services have said about that individual – so there is a broad definition of what certification is, starting with what I think of as very minimal criteria for certification, to one that’s high standards for certification. Now Laura, you and I discussed some pitfalls with certification, especially in terms of assessment and testing.
00:05:50:25 – 00:07:10:24
LK: Yes, I want to go back to a point that you just made, which is we’re talking about an increase in the court systems, and what will amount to a cultural change, where we’re hoping mediation is really accepted by the lawyers, who will often select the mediator or certainly recommended to the clients or encourage the clients, and that sea change in the way that people and litigators will look at mediation needs to have a really good cadre of mediators, or it really won’t take place, and what will happen is a rejection of the entire system, if it’s poorly run or the mediators are not successful. And I know this, because I’ve been in New Jersey for a number of years, where we have a presumptive mediation system, and where the culture has in fact changed, and the variations in the pool of mediators have made it an enormous difference in the receptivity of the public to that from time to time. So I want to go back to your differentiation between qualifications and certifications.
00:07:11:03 – 00:07:36:03
LK: It is clear that the courts will have a qualification requirement. They will have minimum number of hours of training. I hope that will be universal. I do not agree with anyone who says that just because you’re skilled in a subject matter area that you can just go in and mediate. So I definitely think people have to have a form of qualification .
00:07:36:21 – 00:08:04:25
DM: Yeah, and part of that is some people are saying that individuals who just were advocates in mediation should not go through training. And I disagree with that also. I think that someone from an advocate’s point of view is using the process a little differently but make it you know maybe they don’t have to go through the same number of hours, but they really need to see things from a different perspective.
00:08:04:26 – 00:10:30:03
LK: And I actually think you know that if we want this to be a profession, mediation as a profession, as you treat it and I treat it, then there does have to be qualification – and I don’t think 40 hours, which is the standard for court qualification generally, is very much at all. I mean I think if you’re a massage person, you have more training than that in what they do, and I think if we want to treat this as a profession we ought not to be shy about saying you have to understand it. And quite frankly, even judges who’ve done settlement conferences routinely do not really have all of the same view of mediation, and when they lack the power behind the bench, it changes the dynamic. So I think the training is a given. My question though is, first of all at an entry-level we have to allow people to get into the field in some way. If we make the hurdle too high it means that we will not have diverse and wide training, and moving up into the skill level of the people that we need to have in this profession. So I don’t want to close the door. I want to make sure that people can differentiate. But I also do have real questions about casting over a wide swath of people. And people like at Educational Testing Service and the SATs and other people who test widely across a large band of people – they actually have a large training and teaching in how to make uniform testing questions and uniform questionnaires training the trainer, the people that are doing it. And I have serious concerns about that process, even though I am myself IMI Certified and CEDR Accredited, and I clearly believe that I should maximize my own skills. But that’s a different question than whether it can truly be objective and truly identify the good mediators.
00:10:30:15 – 00:11:47:21
DM: That’s all that always is a problem which again is why I look at an IMI Certification process, because there is an underground today where people share information about the mediators and arbitrators that they use and the criteria for who is a good mediator versus who is not so good sometimes turns around statements like whether they’re a good person, without looking at the individual’s skill in negotiating, or in working, and creating rapport with the parties, or gaining their trust. So you know that’s why again when I look at certificatio,n I try to look at it in the IMI mould, which is just more objective standard criteria that’s used by a qualifying local Qualifying Assessment Program to determine what that what the qualifications and what the competency of the individual are.
00:11:48:07 – 00:12:34:16
NA: So get to that point. I know that the question was asked on the survey who should be the administrator of this nationwide American credentialing rostering program. That might really benefit us. It would benefit our clients, it would benefit our industry. It seems like the vast majority of respondents were really on board with the idea, because as we all know this is a service industry, we serve people we know we’re not the court system we’re not the default. And so to best serve people and to best serve us, the industry providers, what did the survey response tell us about who should be the administrator of this kind of program?
00:12:35:28 – 00:12:59:16
DM: After the survey, I think I said they looked at the American Bar Association as as a credentialing organization, which surprised me a little bit. But maybe a way for the ABA to find an additional stream of revenue.
00:12:59:26 – 00:13:15:12
NA: I see what the survey result. Correct me if I’m wrong. I think the survey results were that they didn’t want – they had a preference for a no -Bar Association to run the program. Did I read that correctly?
00:13:15:12 – 00:13:43:25
DM: Actually you’re – I saw ABA and another one. What they said was the National Association for Community Mediators was one organization; a non-bar should be considered; a psychological or social institute that works with the court system, that’s a PhD. And surprisingly, they mention the American Arbitration Association.
00:13:43:29 – 00:13:59:26
NA: And then what were the survey responses like for those individuals who responded that they wanted for our industry to create something totally fresh and totally new to represent us in this way.
00:14:11:15 – 00:15:01:11
DM: So the responses very interestingly said – 44 percent said -an existing non -Bar Association ADR organization or association. Twenty seven percent said a completely separate neutral company. So they’re looking at someone who’s not done this before, or actually doesn’t have a stake in the process. And then the third was the American Bar Association. So the push is – and it follows, don’t you think, Laura – because what we’re talking about is a process that has a lot of psychology that enters into when and how people settle and why,
00:15:01:26 – 00:15:57:27
LK: And which really undergirds my concern about this. I mean I think that one of the impediments to hiring diverse neutrals, for example, is that they are largely hired through the law firms, and they’re still a white male hierarchy in the law firms. And if if a diversity columnist’s policies of the corporations of the clients are actually applied, rather than this filtering effect, I think you would get a more satisfactory arrangement. I also really think the IMI feedback is a vehicle for creating a reputation for a mediator that is useful in the selection process, and helps solve the problem of lack of information, which is I think driving a lot of the choosing.
00:15:57:28 – 00:16:56:23
LK: The reason why I say – I believe that judges, for example, are more readily chosen is because there’s a lot of information out there on the judge, and you can ask people and they’ll know the person. So if there’s a circular thing that’s happening – “do you know them?”. If you know them, they get chosen, and new people have trouble breaking in. So I like the IMI feedback thing – again I’m concerned about credentialing being the bottom step of getting into the market. I think I like the fact that the court qualification process allows for new people to get training, get started, get some of that feedback, and then I think maybe credentialing is a higher level after someone’s really gone and some practice in the establishment in the field, and then can make themselves into a master mediator. So that’s that’s where I.
00:16:57:04 – 00:18:09:26
DM: Yeah no I don’t. I believe we agree on that, because when IMI certification was first discussed, it was for the higher and higher quality people who were experienced and knowledgeable, and it was a standard to be achieved not just be an entry-level standard, but you know the the barriers that exist today have more to do with the entry ticket aspect for both diverse and and experienced people. And I think there needs to be more emphasis on mentoring, to get people into the system and encouraged to co-mediate, so that people have experience with more experienced people, and sponsorship, to get individuals who are experienced to identify individuals who they will affirmatively sponsor and recommend if they’re not available. So those are the three things that we’re not doing enough of .
00:18:09:29 – 00:19:40:10
LK: I agree. But I also think that the clients need to think about diversity in this context, when they think about it in all other contexts, they sort of skip this one. So I think that that’s very important. But in terms of the certification, again, I want it to be fair. I don’t want it to be say, so subjective that there’s discomfort by the people who are applying, that it’s fairly administered. I also think it’s very time intensive to do it real certification. You have to observe someone in some form of mediation. And so I think that that’s expensive, also, which is an important factor. And I think barriers to entry have to be very carefully thought about. And that’s my concern as both fairness objectivity even-handedness over wide populations, and whether or not we really know what makes a good mediator. Honestly I’m not sure that that’s so clear. People who are very successful vary quite a lot. Some people do, you know mediators suggestion, at the end of the mediation and they very successful doing that. And some people are almost religiously opposed to them. So how do you measure that.
00:19:40:20 – 00:20:22:15
DM: Well and that goes to consumer choice. It’s not a matter of measuring, it’s a matter of knowing both the style of the mediator, and and parties knowing what they want – because from an internal point of view, when I was working within a company, they did not like mediators who were potted plants. They did not want a mediator who was a messenger. They wanted a mediator who in many respects was an evaluator, and not only helped the parties evaluate their strengths and weaknesses, but told them what the outcome really could be
00:20:22:22 – 00:20:30:11
LK: But a certification project couldn’t say that kind of mediator is better.
00:20:30:15 – 00:20:35:22
DM: It really could not. No that’s correct it should and it should not.
00:20:35:29 – 00:21:15:05
LK: So then what are the criteria? I’ve trained a lot of mediators, and my impression is that establishing rapport – which is a very difficult thing to measure or to understand even – is actually the critical element of mediator success. So how would we establish a certification program that says, “Debbie Masucci, she just walks into a room and everybody feels like she’s on their side.” You know that’s not something that’s very easily evaluated.
00:21:15:05 – 00:22:27:01
DM: No, it’s very subjective, because you know, I don’t create that rapport with everybody I meet. Some people don’t like me. Surprise surprise. But some other people love me, and it is I think it is a matter of style. But again, that again becomes a circular – what I depend upon is the the Feedback Digest, where that style does come out. The other thing that that that we need to I think have more emphasis on is creating some sort of digest where people can volunteer to be called to secure feedback. Right now I’ll call you I’ll call, you know, like ten of my best friends if I don’t know a mediator, but they’re all biased in one way or form – and I’m lucky to have that network. The majority of consumers don’t have that network, and they’re really – you know – working in the dark.
00:22:27:12 – 00:22:57:07
LK: And that’s why the IMI feedback concept is the best contribution to the field. But again, I’m concerned an evaluator, certifier, ann accreditor saying, you know, “yeah, you’re good, you’re good, or you’re better, or you’re best” – I’m not sure they will know. And I do think that people that work with you have a better handle on that.
00:22:57:17 – 00:23:24:09
DM: Yeah yeah well you know that, it’s very interesting, because I think culture also feeds into that. Many people who use the problem-solving approach and a facilitator model will evaluate individuals on that basis – but in Asia, and parts of Asia – specifically China – they’re looking for an evaluator.
00:23:24:09 – 00:24:28:19
LK: What we’ve learned from from your work on the Global Pound is that really in many, many places and maybe even in the United States, people are looking for a solution right. They’re not so much wedded to a process, and in fact it may be that mixing evaluation and facilitation is a better process, or for most people, if they’re not reaching a solution maybe you do whatever you have to do at that point to help them reach a solution, or maybe you plan the process differently and start earlier with process discussions like in guided choice mediation. But all of this to me argues that we’re not ready for prime time one certification. Or accreditation, because we’re still in the discussion about what can work for whom and when. And I think that’s an important discussion.
00:24:28:20 – 00:25:16:13
DM: Yeah I think you’re right. I think you’re right. And I think that maybe we can summarize it the whole discussion with “and this is just the beginning of a journey”. We need to look at all of the models that are out there. We need to define what people mean by certification. We have to figure out who will actually be delivering the process, or administering the program. And there are critical aspects that that administrator has to grapple with, including the criteria that’s used, who are the assessors, and ensure that it’s not only objective, transparent, but fair and then ensures diversity.
00:25:16:13 – 00:25:43:11
LK: I totally agree with all of that and I think the New York courts experiment that’s going to be coming – and I think we’ll be involved in that – I think we have to keep an eye on making sure that the mediation services provided actually are good so that the bar and the public can change their mind about the process and use it better.
00:25:43:11 – 00:27:12:05
NA: Well I think also we need to go into it understanding that because we don’t have all the answers, we don’t have all the labels for all the boxes that need to be ticked, we need to go into it with an organization that understands that we not only anticipate, but we expect them to evolve, and make it better and better and better as we learn more about what our consumers want for definitions for training, for experience, for the balance between the arts and the science of what it is that we do. And so we would I think hope that any organization that we would develop or work with has the ability to allow our industry to evolve naturally and organically so that we can be the best service providers that we can be for our clients – because ultimately I have never met I’ve never in 25 years met a mediator or an arbitrator that doesn’t understand that they’re in the service industry. Our whole goal is to provide a service to help people. And if an organization were developed that limited the ways in which we could serve our clients, we wouldn’t be onboard with that at all. So we want to have an organization that helps us, that represents us, that puts us forward in the best light, that will let our industry move and evolve in an organic way. I think that’s important too.
00:27:12:06 – 00:27:35:27
DM: So to borrow a borrow a term from business, the best mediators are always looking for continuous improvement. And that’s why the best mediators are always