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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

The Time Has Come for Licensing and Best Practices

I've long been saying it will take a tragedy following services provided by unqualified mediators before the States will move in to set standards and require licensing.  Here's the first breath that will stir the leaves of change in Sacramento.

Unqualified mediators prey on broken families by Linda Diebelof the Toronto Star.
When Miriam and Andrew Grenville's 20-year marriage ended in 2006, they agreed on one thing – protecting their children from collateral damage was their utmost priority.

A Toronto-area family's problems with the mediator they'd hired to work on their daughter's messy divorce reached a nadir when her 6-year-old son came home with a bizarre story.

During a supervised visit with his father in a restaurant, the mediator told the waitress she was the little boy's "mommy."

"He was very distressed, very, because he didn't know what was going on," said a female family member, asking to remain anonymous because their case is still before the courts.

The family was aghast but initially didn't complain. They were afraid to fire the mediator, whom they paid more than $15,000, because they feared a negative report in family court.

"Everybody told us, `Don't make the mediator mad'," she said.

When they finally did try to file a complaint they found they had nowhere to turn: mediators aren't regulated in Ontario.

Instead, anybody can hang a shingle and plunge into a highly sensitive area of working with divorcing couples and their children at a time when most are financially and emotionally vulnerable.

For the remainder of the article, click here.

Listen, this is an access to justice issue, not simply a problem that the legal profession -- particularly those legal professionals who are mediators -- can ignore. 

"I don't do family law" or "I don't work with the kind of mid- to low-income people who can be taken advantage of in this manner," is no excuse.

This is an issue that we must now all join together in an attempt to vigorously address, retaining flexibility and creativity in the profession while at the same time preventing the practice of mediation by the unscrupulous.

I ask my readers to please weigh in on this issue.  I do not have the time to spearhead this effort but will offer my services as a team member to immediately begin addressing the ways in which we can impose standards and retain independence.

Fellow bloggers? 

Geoff?  (welcome back!)  Diane?  StephanieGini?  Colm (pre-blogger)?  LesMikeJohn? EricPhyllis? Jan?  CarriePaulaKristinaJoshDinaChristopherJohnTammy? ColinLeo? the Indisputably bloggers?

For responses from other bloggers that are not included in the comments below, see the following:

Chris Annunziata's Thoughtful Opposition to Licensing here -- primarily arguing that licensure would not prevent abuse; and, would bring the weight of inefficient and intrusive state bureaucracies into the process.  (But don't trust my summary; click on the link to get it direct from the horse's mouth)

Comments (6)

Read through and enter the discussion by using the form at the end
Tammy Lenski - January 14, 2008 2:18 PM

Oh my LORD! Stories like these make me want to weep in frustration for our field.

I'm afraid I have more questions than answers for you and your readers, Vickie. I hope that in any move to regulate, certify, license, accredit, these are attended to carefully:

1 - Who gets to decide on the regulating entity and qualifications? For the past several years I've seen ADR trainers and one or two new "associations" promote themselves to mediators as helping them become "certified in workplace mediation," for example, or "become a certified mediator by joining our association now." Most of them really mean "certificated" - you pay them to train you, they give you a certificate of attendance and don't bother to mention that you're not really certified in any sense that's meaningful to the field or the public. Approaches like this do more to line the pockets of the "certifier" than help the public.

2 - How will our national organizations play a meaningful and collaborative role in this? The ABA setting the standards will result, I fear, in criteria with a UPL tinge to them (why don't enough people ask about the Unauthorized Practice of Mediation?). Yet ACR has backed away from its certification role, an unfortunate decision to my thinking.

3 - Are we ready to step up to the plate in terms of in-depth learning about mediation? I can't name too many professions that serve the complexities of human nature and that have so many practitioners with less than a work-week's worth of training. More training doesn't necessarily a better mediator make, but too little increases the odds substantially of poor practice. Two colleagues and I wrote about this in the fall issue of ACResolution, so I'll leave off remaking the case here.

I'm sure more questions will come to mind as I percolate and I read my fellow bloggers' thoughts.

Tammy Lenski, MediatorTech.com

Chris Annunziata - January 14, 2008 3:47 PM

Tammy, I agree with your 3rd point. As I mentioned, a 28 hour or even 50+ hour program will not discourage unscrupulous people from obtaining a rudimentary certification. I recognize that the non-lawyers want to ensure that law school does not become a prerequisite for the profession, but maybe there should be some additional schooling - say, a one year post-graduate program. No degree would be conferred, but completion of 20-30 credit hours of work would be pre-requisite for obtaining certification.

Jeremy Masten - January 14, 2008 11:15 PM

I have an idea for a combination of education and experience, sort of like the current CPA licensing process. First, the licensee would need one of several optional, appropriate advanced degrees (e.g., master's in psychology or J.D.). Then, before the individual could be licensed, they would undergo a period of apprenticeship (or internship, if you prefer), say 2 years, before they could practice on their own. I think it would be very difficult to examine mediation skills on a standardized test, though, so no test. I know the issue is far more complex than that, but I think the two most important things for broadly ensuring quality practitioners are education and experience.

Jan Frankel Schau - January 15, 2008 8:14 PM

I may be unpopular, but I think the only way mediators are going to get the credibility (and pay) we deserve is by someone qualifying us through some regulatory agency. Then some predatory fool can be reported and admonished or kicked out! I very much like Jeremy Masten's suggestion that the process be twofold--including experience under the supervision of a trained mediator and decent training, which should also be observed. I'm embarassed by the would-be mentees who have signed up and paid for $1000 trainings and gotten nothing about handling the litigated case, for example before the volunteer for court-annexed programs. It's okay to admit to ourselves and one another that licensure is not a dirty word or concept and that certain basic skills can be observed and improved through solid training and mentorship!

Marvin Schuldiner - January 16, 2008 11:33 PM

If we ever want to be seen as a true profession, we need to have some sort of licensing or certification. We can avoid the unpleasantness of having the government perform this by self regulating. Many other professions do so (accounting, finance).

It truly is a shame the ACR hasn't stepped up to the plate on that one beyond some advanced practitioner status. I understand their certification role was abandoned due to a lack of consensus. What does that say about mediators when we can't come to an agreement and resolve our own disputes? (Akin to doctors being poor patients?)

Perhaps the "ADR industry" (however we want to define that) also needs to do a better job of educating our clients and potential clients in what to look for in hiring a mediator. That should help clients avoid hiring the unethical or untrained mediators.

John - April 1, 2008 2:58 AM

Victoria, I'm sorry, but I missed this blog entry when it initially went up.

As it happens, I'm working on a journal article about graduate conflict resolution education that intersects with the issue you raise.

Here's an excerpt from my early draft:
"The void created by the field dragging its feet in linking graduate conflict resolution education to professional conflict resolution practice has resulted in a situation that fundamentally threatens the quality of conflict resolution work being done. Within mediation practice, for example, a dysfunctional patchwork of training and credentialing standards has sprung up wherein mediators typically have a limited amount of training (often 40 hours or less) in courses that focus entirely on skill development within the context of a single model or approach to mediation. However, there are multiple models of mediation, and mediation itself is just one of many process models and intervention roles for resolving disputes. Without any broader grounding in conflict resolution theory, research, intervention options, and ethics, mediators trained in this fashion risk not recognizing the limits and constraints of the approach. To make matters worse, the surplus of trained mediators in relation to mediation demand has created a system whereby, in the absence of enough mediation clients, some practitioners have turned to mediation training programs and specialized credentialing regimes as a business model. This seems to be one area where the free market has failed, and the resulting opportunistic and decentralized marketplace of mediation training and credentialing has created a situation where there are senseless and costly barriers to practicing mediation that have little relationship to the needs of ensuring mediator quality and improving and growing the field as a whole."

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