Arbitration & Mediation

More Commentary on the Licensing of Mediators

By Victoria Pynchon

The word "license" is obviously a red flag in the mediation community -- so red that no one has yet picked up my thread of "best practices and standards." 

Frankly, I worry a little more about best practices and standards than licensing.  But I'm going to digest the opinions of others before further comment.

The comments below are by Canadian mediator Colm Brannigan, who also passes along this article -- Lawyers as Dispute Resolution Professionals -- published by the Law Society of British Columbia.

I will start by asking why do we have an almost knee-jerk reaction to criticism of “let’s make a rule or regulation”? If anything speaks to the co-option of ADR by the legal community this is it!

In Ontario, regulation of mediators is not on the horizon unless the power of this article is far beyond what I expect. We have just gone through a decade plus process of how to regulate independent paralegals. The end result is regulation by our Law Society. I suspect many mediators (including lawyer-mediators (I hate these hyphenated descriptions)) would not like mediation to be so regulated. In fact the law society has specifically exempted mediation from their description of “providing legal services” as long as you are not actually providing such services!

Several of our ADR organizations have “certification” procedures, insurance requirements etc. I have really mixed feelings about the certification/regulation debate even though I sit on a certification skills evaluation committee.

In practice as a lawyer before becoming a mediator, I have met “name” mediators who would easily qualify under any certification/regulation regime and yet are terrible mediators, if that’s indeed what they practice. On the other hand, there are those without formal academic qualifications who are wonderful.

How do we “protect the public” (and is it our “job” to do so?) without raising the entry level to such a height that we will become exclusive and elitist? Should there be different criteria for different types of practice? In effect we have this through court and other rosters.

Surely support by “professional” groups of their members combined with training/education of practitioners and the public is a more acceptable option? Through greater education, we can help the public ask the right questions – insurance, training, experience. Why go beyond this?

ADR is a movement as well as a profession. The more we certify/regulate, the more we become a profession, and get further away from being “Alternative”!

What are we trying to achieve? Protection of the public is noble, but “always” aligns with professional self-interest!

I open to being convinced otherwise!

I attach an interesting paper form the law Society of British Columbia!

One comment on the article is the obvious confusion between “mediation” and “custody assessment.” 

Full post as published by Settle It Now Negotiation Blog on January 14, 2008 (boomark / email).