Negotiation Law Blog - The Time Has Come for Licensing and Best Practices - Comments http://www.negotiationlawblog.com/ Southern California Arbitration Mediation & Conflict Resolution: Settle it Now Dispute Resolution Services: Serving Los Angeles, Beverly Hills, Century City en Copyright 2012 Fri, 23 Mar 2012 01:06:19 -0800 Fri, 23 Mar 2012 01:06:19 -0800 http://www.sixapart.com/movabletype/?v=4.32-en http://blogs.law.harvard.edu/tech/rss Tammy Lenski 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

]]> http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22170 http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22170 Conflict ResolutionEthicsLegal PracticeMediationTruth Justice and the American Way Mon, 14 Jan 2008 12:46:28 -0800 Victoria Pynchon Chris Annunziata 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.

]]> http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22171 http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22171 Conflict ResolutionEthicsLegal PracticeMediationTruth Justice and the American Way Mon, 14 Jan 2008 12:46:28 -0800 Victoria Pynchon Jeremy Masten 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.

]]> http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22172 http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22172 Conflict ResolutionEthicsLegal PracticeMediationTruth Justice and the American Way Mon, 14 Jan 2008 12:46:28 -0800 Victoria Pynchon Jan Frankel Schau 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!

]]> http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22173 http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22173 Conflict ResolutionEthicsLegal PracticeMediationTruth Justice and the American Way Mon, 14 Jan 2008 12:46:28 -0800 Victoria Pynchon Marvin Schuldiner 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.

]]> http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22174 http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22174 Conflict ResolutionEthicsLegal PracticeMediationTruth Justice and the American Way Mon, 14 Jan 2008 12:46:28 -0800 Victoria Pynchon John 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."

]]> http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22175 http://www.negotiationlawblog.com/conflict-resolution/the-time-has-come-for-licensing-and-best-practices/#22175 Conflict ResolutionEthicsLegal PracticeMediationTruth Justice and the American Way Mon, 14 Jan 2008 12:46:28 -0800 Victoria Pynchon