Mediators should be accredited and standards must be imposed.
Mediation is a voluntary procedure whereby an independent and impartial third party promotes then facilitates, but does not evaluate, the resolution of a dispute so that it is mutually acceptable by two opposing parties. It is based on full disclosure of all facts relating to the dispute, so that a fair and suitable agreement can be achieved between the disputants. The end product is a written agreement, detailing the issues involved, and the agreed upon outcome.
On the surface, this may seem a somewhat simplistic and straightforward procedure. Yet in reality, there exist many intricate underlying processes that must be adhered to, which make executing such events rather difficult. For a mediator to be effective, they must be well versed - if not proficient - in many spheres, including stages of mediation process, joint sessions, caucus, communication techniques, negotiation, neutrality, confidentiality, flexibility, paraphrasing or summarising, reality testing, self determination, identifying conflicts of interest, ethics, the exploration and identification of issues, as well as referring parties to alternative agencies where needs are beyond the scope of the service available. Unfortunately within Australia, as is the case with numerous other countries, there are no national or statewide statutes regulating the practice of mediation. Subject to laws on deception or misleading conduct, anyone can hold themselves out to be a mediator, without any training, experience or membership to professional associations, and their only form of regulation lies in market forces. It is for these reasons that debate has sparked, in reference to the general protection of society, for the use of such schemes as standards and accreditation.
The purpose of standards is to provide a minimum level of professionalism for all mediators, inspiring excellence through education, as well as guiding mediation participants, educators, policy makers, government organisations, and further more provide the foundation for any credentialing programs. During 1997, the American Bar Association designed thirteen such standards. These include the need for mediators to recognised the process of self-determination by all parties; the fulfillment of party expectations; define and describe the process of mediation, whilst assessing the capacity of all parties to mediate an agreement; conflicts of interest should be disclosed prior to any mediation, after which the case should be dismissed unless otherwise requested by both parties; complete disclosure should be made in regards to compensation, fees and charges to the parties; impartiality is the basis of all affairs; decisions should be based on sufficient information and knowledge; reasonable confidentiality must be maintained; effective assistance must be given to parents in relation to the best interest of their children; recognition of family abuse and/or neglect, including appropriate action; truthfulness in the accuracy of advertisements and solicitation; and that all mediators should strive to improve the practice of mediation, whilst not promising or guaranteeing results. For example, by such standards, a mediator would be able to perceive possible negative consequences of a proposed agreement, that one or both parties may not fully understand the ramifications thereof, and would raise these concerns. Furthermore, "under circumstances in which the mediator believes that manifest injustice would result if the agreement was signed as drafted, they would withdraw from the mediation prior to the agreement being signed".
Accreditation amongst other things, is the concept of belonging to an occupational group, which recognises that an individual has successfully completed a prescribed course and meets certain levels of performance. It implies that the accrediting body has some form of control, discipline, and responsibility over those accredited, failing which, the accreditation may be removed. Many mediators are genuinely interested in this concept, believing that will give them more viability to the general public as it will reflect their professionalism. Certification is also intended to allow states to fulfill their duty of care by providing a selection of competent mediators, who are approved by organisations, when mediation is considered mandatory. This will subsequently enhance the statues of mediation in the eyes of the public because the government will also be held accountable for it’s quality.
Pro standards and accreditation activist argue that a number of truly awful and repugnant individuals have set themselves in such positions to pray on the innocent by charging ridiculous prices outright, or even "prolonging events to increase their own financial gain", whilst offering inadequate services. In some instances, attorneys with suspended licenses undertake mediation cases and charge whatever the market will bear. It is believed that certification would be one of the best methods for producing safe guards, and weeding these people out of the system. According to Professor Kimberlee Kovach, an ADR commentator who has noticed the need for professionalisation, before a person is even allowed to receive mediation training, he should first be required to have a four-year college degree, or equivalent, such as work experience. Upon entry to mediation school, which should be at least one year in duration, they should be taught a combination of both theory and law, along with skills training and development. At present, most educational programs/workshops are only 40 hours in duration. Even though they are a valuable training opportunity within themselves, they should not be oversold as they lack the ability to fully orientate, or refine mediation skills. The third requirement suggested by Kovach concerns testing and evaluation. Before anyone is deemed competent enough to practice mediation, they should take and pass a one-day examination on the theory of mediation and law, much like a bar examination. One factor that Kovach does not consider is the follow up component to this training, in order to help the enrollees establish systems of in-service training, case supervision, or peer review so that the skills learned can be applied and honed through supervised practice. Listening to lectures, reading books, or "participating in simulations will not instantly transform even a person with considerable aptitude. The transformation will come through a combination of understanding, observation, practice, and supervision".
Obviously such ideals are overly optimistic on Kovach’s behalf, particularly when we consider that the mediation industry is still very much in it’s infancy. If we were to incorporate such standards, the competency of persons mediating would become unquestionable, whilst at the same time, any market saturation would be greatly reduced. Unfortunately, such high expectations would also lead to the genocide of the entire mediation industry.
Other models of standards and accreditation within certain states of America tend to be divided into nine sections, and cover a broad range of topics similar to those mentioned earlier. Each of these standards state broad principles "so as to encompass varying situations and includes descriptive comments". In regard to mediator competence, these standards provide that no mediation shall take place by any individual who does not posses the necessary qualifications to satisfy the reasonable expectations of all parties involved in dispute. Similarly, one of the compulsory provisions in the New South Wales Law Society’s guidelines for mediators prohibits solicitors from acting as sole mediators unless they have satisfactorily completed an approved training course, had appropriate mediation experience, and are willing to undertake continuing education. It should be kept in mind though, that no degree could ultimately ensure complete competence. Even those who are knowledgeable professionals in many areas, still require some form of training to become proficient mediators.
One additional argument for the development of some formal structure includes the need for consistency in the application of an agreed upon mediation style. This includes the ability to understand the purpose of, as well as the ability to apply stages sequentially, multi-level focuses – incorporating past, present and future, whilst also facilitating the exploration of each issue within the mediation agenda, and acting as an agent of responsibility and reality for the parties involved.
Throughout the world, individual sects exist that oppose any form of accreditation of standardisation, claiming that such introductions would "inhibit the very fluidity/flexibility which has fostered the development of the field". They further believe that mediation should remain free to develop into different strains, each more suited to different forms of mediation or clientele compared to the others. In their eyes, extensive education at this early stage of formation would simply screen out competent mediators, not bad mediators who can still undertake and satisfactorily pass any prerequisites. Undoubtedly such a concept has it’s merits, but haplessly, what they do not seem to understand is that standards and accreditation are by no means a system intending the limitation of creativity, nor the promotion of only one style of dispute settlement. In fact, training should remain versatile, encouraging such train of thought and action, through continued feedback on the mediator’s behalf. Its main purpose should be to safeguard obnoxious and greedy individuals from pursuing their own needs through quick fix methods.
It is also argued "that as long as parties are voluntarily participating in mediation and given a choice as to whom their mediator will be, they should be allowed to choose anyone they see fit. The free market will then regulate who will continue to be an effective mediator". Such a concept is ludicrous. The majority of the population with any country find it difficult enough to even relate to the law, let alone select the competency of a mediator through colourful and convincing advertisements. If by some remote chance people were in fact able to make such decisions, we would have little need for dispute resolution bodies to begin with. In today’s age where technology is as diverse as it is confusing, we need specialist bodies to direct and guide us, as well as responsible for the information they provide.
In 1989, the Society of Professionals in Dispute Resolution (SPIDR) gained much recognition for their commission on ‘qualification and competency’. Their findings indicated that firstly, no evidence suggested formal degrees were necessary for competent performance, and secondly, that the "requirements for a college degree would create a significant barrier to the entry of many competent individuals into the profession". Questionably, if these so called ‘competent’ individuals were in fact as competent as we are lead to believe, would their obtaining qualifications even be an issue?
Regardless of all negatives regarding this issue, the importance of standards and accreditation can not be denied when considering special cases such as family violence or child custody. These disputes are extremely complex, "dealing with substantive matters" which could not be covered within one fourty-hour seminar. These issues require significantly different forms of training, including family dynamics, local judicial systems, behavioral and social sciences, procedures for child custody and visitation, child development in relation to the effects of divorce, as well as a broad understanding of psychology and mental health in order to propose realistic and effective decisions. Whilst requiring mediators to posses educational degrees will not guarantee the quality of child custody, or the resolution of violent domestic conflicts, "it will ensure a minimum basis of knowledge that will aid mediators as they work to resolve the issues that are involved within these types of disputes". Effectively handled, mediation can lead to reduced expenditure, in terms of time and money, as well as developing better communication skills for those involved, proving beneficial by reducing later conflicts that tend to develop when fulfilling obligations towards children. Subsequently, it has been noticed that children of mediated disputes tend to adjust better after divorce cases.
In order for mediation to be effective, there must be broad public confidence in the integrity and fairness of the process. Every mediator bears the responsibility of conducting mediations in a manner that instills confidence in the process, promotes trust in their integrity and competence, and handles disputes in accordance with the highest ethical standards. Which within itself, is an almost impossible task when we consider that many of the current mediators begun practicing before the current wave of seminars and classes, and thus "are basically self taught" experts or wishfuls. This is why quality, standards and accreditation are without a doubt increasingly important, particularly in developing a system whereby those in a position of power may be cross examined, as well as allowing for the protection of disputing parties from one another.
No overall consensus has as yet emerged as to what exact qualifications would best produce effectiveness and fairness. However, by introducing some form of guidance structure, the quality of services available to the public would be vastly improved by the reduction of any anomalies. For the most part, any arguments against the development of standards and accreditation are at best weak objections on the behalf of a few closed minded individuals.
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Written by Evan Sycamnias - 6-6-00