Lead Article: Mediator Certification - The Time has Come?

by Professor Sarah Rudolph Cole

In 2004, the adoption of certification standards for mediators is on the horizon. The American Bar Association (ABA), together with one of the major dispute resolution organizations, the Association for Conflict Resolution (ACR), have joined forces to consider the feasibility of developing a national mediator certification program. At the same time, ACR has put into place its first voluntary mediator certification program. In addition, Florida has proposed a new certification program for court mediators. The Federal Mediation and Conciliation Service (FMCS) also proposed a new certification system, although it was forced to shelve it due to financial considerations.

The proposed mediator certification plans focus on the number of hours a particular mediator has spent in mediation training, the mediator's experience and the mediator's ability. Yet, the methods used to measure these qualities are potentially problematic. This article will first summarize the various certification plans and then analyze their contents.

The recently finalized ACR certification plan focuses on assisting mediators with limited mediation experience to gain credibility within the marketplace. The voluntary certification program evaluates an applicant's portfolio of experience and training and requires that the applicant take a written test to become eligible for placement on the ACR roster. Successful applicants will be subject to periodic re-certification and decertification for ethical and professional standards violations. ACR also plans to "grandparent" experienced mediators onto the roster. In addition, applicants denied placement on the roster are entitled to appeal ACR's decision. A successful applicant for ACR's roster must have 100 hours of training, 80 of which must be training in mediation process skills. A mediator may satisfy up to 20 of the 100 hours as a trainer or teacher. The applicant must also demonstrate that they have 100 total hours of mediation or co-mediation within the last five years or 500 hours over a lifetime. Applicants must obtain professional liability insurance, disclose criminal convictions and provide letters of reference in order to gain and maintain placement on the roster.

Florida's court mediator credentialing system quantifies experience somewhat differently than does ACR. Rather than directly examining hours of training and experience, Florida has established a point system for credentialing mediators. While currently certified mediators would be grandparented into the new system, to obtain certification in the future, an applicant must have a combination of education and experience. For example, a prospective circuit court mediator would need to complete Florida mediation training, obtain 25 points for general education (a mediator would receive points for the highest level of education obtained; for example, 20 points for a college degree) and experience (1 point for each year that a mediator mediates 15 cases of any type). Florida mediators must also show that they have participated in a mentorship program. Mentorship means observation of pre-suit or court mediations or co-mediations within the court system for which the applicant wishes certification.

While most mediation organizations agree that certification of mediators is necessary, the current focus on meeting arbitrary hour or point requirements may ultimately undermine these organizations' goals. ACR, for example, claims that their proposed voluntary certification process is "designed with heightened attention and respect for all manner of diversity in the broadest sense." See ACR Task Force on Mediator Certification, Report to ACR Board of Directors (March 31, 2004), available at www.ACRnet.org. While ACR's intent to ensure diversity in the mediation pool is laudable, it seems likely that the goal of ensuring a diverse mediator pool will not be achieved through point systems and testing. Unfortunately, such systems tend to reward those who have sufficient funds to pay for mediation training and advanced degrees. Moreover, members of historically disadvantaged groups are unlikely to be able to satisfy experiential requirements necessary to obtain certification because they do not have the same ability to network as do members of the majority. The Florida plan suffers from the same difficulties as does the ACR plan.

While certification may provide benefits to the mediation field by protecting the public, promoting mediation, increasing the likelihood that some mediators may have more productive careers and reducing court congestion, providing certification through points accumulation and written testing seem problematic. Moreover, even though the current certification plans are voluntary, the ACR-ABA plan to explore creation of a national mediator certification program. The likelihood that certification will be viewed as an essential characteristic of a mediator if certification becomes widespread, suggests that mediators who choose not to pursue certification or who do not meet the arbitrary standards will not be able to maintain a viable practice.

An alternative to the current hours-centered certification plans would be to provide a more holistic review of each mediator applicant's file. Holistic review, perhaps conducted by committee at the particular certifying organization, might be more successful in protecting a diverse mediator pool and ensuring that mediators with considerable experience, who lack formal training, or those who have considerable training, but lack experience, may nevertheless receive certification. While perhaps inevitable, certification programs need not undermine diversity nor effectively preclude qualified mediators from continuing to practice their chosen profession.