On October 4, 2017, the Los Angeles County Superior Court (LASC) issued a request for proposals (RFP) for civil mediation services. The RFP offers mediation providers the opportunity to help settle LASC cases in an effort to address LASC’s growing calendar overload. However, the RFP controversially excludes non-attorney mediators and attorney mediators with less than ten years of California Bar membership. This effectively disqualifies a significant number of mediators, many of whom have been successfully settling LASC cases for years. More- over, these restrictions have no basis in research on mediation success, which shows little difference in settlement rates between attorney and non- attorney mediators.
LASC’s RFP is a wake-up call for the mediation community. The RFP is evidence that if we fail to establish our own mediator qualifications, oth- ers will do it for us. And too often, they will do it in a way that is incon- sistent with our shared values and the values of the mediation profession. The RFP confirms the fears that have long existed in mediation circles. For example, in 2006 the San Diego-based National Conflict Resolution Center (NCRC) wrote:
The critical need for [a discussion on mediator qualifications] among those who practice is accentuated by the legitimate fear that if we don’t decide these things for our- selves (in the spirit of mediation, the empowering process that requires accountability and responsibility on the part of our clients), someone else will. We cannot afford an- other ‘surrogate’ profession to set the standards and in- form the consumers. … We believe that mediators should be the ones to establish mediator standards and enforce the guidelines that are essential to practice.
Fortunately, SCMA has not been idle. For several years, SCMA has investigated mediator credentialing through an ad hoc committee. The committee spent over five years listening to the community, evaluating research on the issue, and debating options. In its final report in 2013, the commit- tee wrote:
Whether the practice of mediation should be regulated or credentialed in any way has long been a contentious topic within the ADR community, which has yet to reach consensus on the issue. On the one hand, many practitioners see no compelling need for regulation or certification, as there has been no public outcry for it. … On the other hand, many mediators desire a credential that would be of benefit to themselves and the public. … These mediators favor some sort of credentialing out of interest in promoting and supporting the highest standards for our field and, for some, out of fear that unless we mediators regulate or certify ourselves, someone else will do it for us.
The committee concluded that a system of voluntary mediator certification would benefit both the public and the profession.
The committee’s efforts have led to the formation of a sister organization—the Mediator Certification Consortium of California (MC3)—that is creating a voluntary mediator certification that we hope will become the gold standard for the mediation profession. MC3 certification qualifies mediators based upon their mediation background, relevant education, and demonstrated skills. It requires:
80 hours of mediator education and training;
Performance criteria that includes prior mediation experience;
Live scan (fingerprinting) to ensure that inappropriate persons are not credentialed;
Criteria that require certified mediators to complete continuing education;
Commitment by mediators to both the ABA/AAA/ACR Model Standards of Conduct for Mediators and the California Rules of Court; and
A quality assurance process that will track complaints and, when necessary, discipline certified mediators.
MC3 certification will require that non-attorney mediators take a nuts-and-bolts course on litigation terminology, processes, rules, and procedures, similar to the prior requirement of LASC’s ADR panel. It will also require participating mediators to take the course on mediation ethics contained in the California Rules of Court as it is currently administered by the Administrative Office of the Courts.
LASC’s RFP is a missed opportunity. But it is also a chance for us to come together as mediators and create something better for our courts and our communities, and ultimately, for our profession. And that is an opportunity that we don’t want to miss.
Mediation is a powerful process but is still largely society’s best kept secret outside of the litigated case arena. Further professionalizing mediation promises to create public awareness and increase utilization. This program examines the impact of taking the next steps for mediators and disputants alike.
Jack Goetz and Barbara Brown will update the membership on the work of SCMA’s Ad Hoc Committee on Voluntary Mediator Certification.
Lee Blackman and Phyllis Pollack will update the membership on the most recent meetings of the California Law Revision Commission concerning possible revisions to the Evidence Code with respect to mediation confidentiality.
The Committee began 2014 by circulating the Committee’s Report and recommendations to the larger mediation community – educational institutions, mediation provider organizations, and organizations statewide that serve the mediation community in order to form the Consortium. The organizations, including SCMA, that agree to participate in implementing a new certification program in California will begin the process of organically growing the Consortium. That group will need to assess the projected demand for the certification program, determine a budget for administering the program based on the fees or dues that would have to be collected from certified members, finalize the procedures and requirements for certification, and determine how the consortium itself is to be organized and governed.
During the spring, the Committee was joined by representatives from a number of mediator organizations stretching geographically from Santa Ana to Santa Rosa. Those representatives and Committee members subdivided the ongoing work in developing the Consortium into 4 different Task Forces:
Each task force is led by a Committee member and the Committee and organizational representatives meet periodically to review and integrate the ongoing task force work.
The SCMA Ad Hoc Committee on Mediator Regulation and Certification started in January, 2013 meeting every three weeks throughout the year. We informed ourselves about existing research and programs in this area and looked at an abundance of literature containing arguments both for and against credentialing. We began with an open mind and a blank slate; we did not know where our work would lead. While not exhaustive, this is an overview of the issues we considered.
We looked at the extensive work done by the ABA and ACR, set forth above.
We looked at credentialing programs in other states.
We read widely on the topic.
We looked at statutes, both federal and state, which mandate mediation.
We considered existing credentialing programs in California and looked at the many and varied local opportunities for mediation training.
Very early on we delved into the complex issue of whether mediation is a profession, and found that there is broad disagreement on the topic but that mediation lacks the required formal educational degree, ethics codes, and regulatory schemes normally associated with formalized professions.
Throughout, the Committee had an overriding concern that any structure we came up with – should we come up with one – had to take into account the broad diversity of the field: the different styles of and theories regarding mediation; the fact that mediators come to the practice from different careers of origin; the fact that mediation takes place in a wide variety of settings and institutions; and the fact that some mediators are paid while some are volunteers.
The Committee ultimately concluded that the absence of a certifying agency and lack of a certification program along with the variety of training paths taken by mediators present a potential dilemma for users of mediation, who have no way to judge the education, training, and experience of a mediator. The Committee found that: a) barriers to entry into the mediation field are non-existent or very low and anyone can self-identify as a mediator and begin practicing without meeting any training requirement at all; b) any organization can offer mediation training or certificates with no universally accepted standards to guarantee degree of expertise or ethical practice; and c) the public may not know how to choose among mediators offering service. The Committee also found, however, that mediation is a unique method of conflict resolution and requires specialized training no matter what the background of the potential mediator, and that a voluntary certification program is the most currently feasible way to address the interests of the various groups and their concerns.
The Committee is therefore recommending that SCMA support a voluntary mediation certification program, that would certify mediators who can demonstrate sufficient knowledge and skills beyond the minimal amount required by many local and national panels and who also demonstrate an understanding of ethics and agree to abide by an ethical code. While the Committee reached consensus on parameters for the certification program, the Committee believes the community would be best served if SCMA takes the initiative and functions as a catalyst in seeking input from other key organizations to determine the exact specifications for this program. The program would be implemented by these key organizations that have joined together as a Consortium which would become the governing body of the certification process. Consortium members would agree to support the standards set by the requirements below and act as a reviewing organization to ensure that the standards of the program are maintained.