Mediator Certification: Realizing its Potentials and Coping With its Limitations
by Michelle Robinson
In the last twenty-five years, mediation has become an increasingly important part of the world's "cultural and legal landscape."  Mediation has become formalized, institutionalized, applied in many different settings and ways, and incorporated into administrative and regulatory processes.  While many jurisdictions have instituted standards and requirements for mediation, there is little overall uniformity or coherence in this regulation.  As a result, several professional organizations, scholars, and other entities have explored the issue of mediator certification, researching and sometimes implementing certification programs.  This paper engages in a cost/benefit analysis of mediator certification, concludes that a well designed certification program would improve the apparent and actual quality of mediation, and determines that any effective program must be funded by sources other than application fees.
II. Should Mediators Be Regulated Through Certification?
This paper assumes that if mediators should be regulated, such regulation should take the form of voluntary certification. This assumption is based on states' and professional organizations' preference for voluntary certification rather than licensing.  This Part discusses the desirability of voluntary certification by engaging in a cost/benefit analysis.
A. The Benefits of Regulation
To decide whether mediator certification is desirable, one must (1) identify its goals and (2) consider the importance of those goals and whether certification can in fact accomplish them.  Accomplishment of those goals constitutes the benefits of certification.
This paper discusses eight major purposes that have been asserted for a voluntary national certification program.  Are these goals important, and can they be accomplished through mediator certification? This Section discusses each goal's importance and attainability.
(1) Increased competency. Mediator competency is the most important goal of certification, as competency is key to the quality of the mediation process.  Because mediators lead and control the entire mediation process and have the potential to influence its outcome,  it is important that they be competent. The relative importance of this goal is illustrated by the direct relationship between competence and many other goals of certification, which largely point back to the goal of competency. For example, the first goal, verification of training, experience, and study, is only relevant to the extent that it correlates to the underlying goal of competency. In fact, the only goals that are substantially independent of competency are practitioner influence on the field and protection against unethical mediators.
Certification has the potential to increase competency by requiring a certain level of skill-building activities (such as training and experience) and by "weeding out" some incompetent mediators. There are very few complaints about mediation services, but this may not indicate high quality, but only the fact that parties often are unaware of their rights or unable to evaluate mediator quality due to a lack of relevant knowledge.  Because of these potential reasons for the under-reporting of problems, it is difficult to assess the level of quality in mediation services and how much harm may have been done.  As discussed in Part III, certification can ensure competency only to a certain extent; however, it has the potential to raise the standard, thus decreasing the level of uncertainty.
(2) Uniform verification of basic training, experience and study. This goal is important only to the extent that it correlates to the underlying goal of ensuring that a mediator "has the necessary skill set"  —thus, this goal merely points back to the goal of mediator competency.
(3) Increased professionalism. Many mediators believe that increased professionalism is an important goal,  and most mediators believe it would be enhanced by a certification program.  However, there is "significant confusion and ambivalence" about the meaning of "professionalism."  Historically, professionalization commonly was rooted in a desire to control an occupation, often with the apparent goals of self-interest, self-protection, and avoidance of external control by either the government or the market.  Some of these goals may give professionalism a negative connotation, but there are potential benefits of such self-regulation: knowledgeable rule-makers, collegial networking, and the potential for "attentiveness to the shared goals, values and unresolved challenges" of mediation.  If increased professionalism can achieve these benefits, it may lead to more competent mediators.
(4) Criterion of qualifications for consumers. The third goal, to provide a market signal of quality for consumers, is important in that it would lower consumers' search costs, allowing consumers to choose mediators more easily and effectively.  The effectiveness of certification as a market signal, however, depends on the accuracy of certification as a measure of mediator quality, as discussed in Part III. If certification accurately identifies competent mediators, it may act as a beneficial market signal, facilitating and possibly expanding consumer use of mediators.
(5) Practitioner influence on the development and direction of the field. This goal may be strongly correlated to the goal of professionalism, depending on how that term is interpreted. The importance of practitioners' influence on mediation development and direction may depend on point of view and the extent to which one believes in effective self-regulation. Assuming that mediation practitioners have superior knowledge about how to improve the practice and field of mediation, this goal seems proper. To the extent that practitioners control the certification process, such a program would serve this goal and improve the field of mediation.
(6) Consumer protection against incompetent or unethical mediators. "There is little empirical evidence that the public needs protection from... incompetent or unethical mediation services."  However, this may be due to the possible under-reporting of problems discussed above. Even if there is not currently a competency or ethics problem, if potential consumers of mediation fear incompetent or unethical mediators, then certification may ease those fears by ensuring competency and increasing credibility. The extent to which certification would ensure ethical practices may depend on ongoing supervision or de-certification procedures. 
(7) Reducing court congestion. Reduction in court congestion is an admirable goal, but the extent to which mediation itself reduces court congestion may be overestimated—because the vast majority of cases settle, it is likely that mediation influences the timing more often than the rate of settlements.  Nonetheless, early settlements reduce court congestion to some extent, and mediation may be particularly effective in settings with lower settlement rates, where there are more unsettled cases to be "converted" to settled cases. Certification may slightly increase settlement rates if it increases mediator competency.
(8) Promoting mediation by increasing credibility. Mediator certification promotes mediation by serving the previously stated goals, including providing a market signal of credibility,  thereby reassuring those who know little about mediation and may otherwise try to avoid it.  Thus, certification may increase the use of mediation as an alternative to less cost effective, flexible, and satisfying alternatives. 
In summary, scholars and professional organizations have asserted several goals of certification. Most of those goals point to or depend on achievement of the goal of mediator competency. Taken together, it appears that the potential benefits of certification would be great—but would they overcome the costs of such a program?
B. The Costs of Regulation
Costs are also crucial to consider, both in making the decision to regulate and in designing a regulatory system. Scholars and professional organizations have identified several potential costs of a national certification program.
Most obvious are the financial costs. ACR Mediation Certification Task Force ("ACR Task Force") recommends that a certification program be self-financed through application fees.  However, according to one survey, only 57% of mediators would be willing to pay up to $200 for certification, and only 18% of mediators would be willing to pay $300.  While market pressure may change these numbers, it is unclear whether such a system is sustainable. One must also consider the danger of excluding mediators through such a fee; as even "voluntary" certification may become a practical market necessity. 
Other costs of mediator certification include various non-economic risks in implementing such a program. Some of these risks are avoidable, and all should be considered in the design of any certification program.
Perhaps the biggest concern expressed by many in the field is the potential for certification to damage the diversity of mediation practice, including diversity of mediator backgrounds and practice styles.  Mediation is enriched by diversity and creativity in uses and styles of mediation,  and certification has the potential to inhibit that diversity and creativity through the imposition of educational and other requirements. For example, requiring certain educational qualifications may disproportionately affect qualified mediators from minority groups while accomplishing very little.  In fact, studies have found "little or no correlation between educational background or professional licenses and successful mediation practice."  Even training and experiential requirements may endanger diversity, as training can be expensive and a new mediator's ability to gain experience may rely on the ability to network, a factor that may decline with minority status. 
As discussed below, some certification programs use written examinations to evaluate applicants. If the test is not designed with the utmost care, it may exclude many competent mediators, especially those applicants who are unable to pay for test preparation. Indeed, whether any certification process should include a knowledge-based test is questionable. Only 40% of surveyed mediators believed that mediation "covers a unique body of knowledge that could be evaluated using a national certification process."  This leads to another risk: an inaccurate evaluation process could exclude qualified mediators while including (thus providing misleading credentials to) unqualified mediators.
The danger of "pricing out" some applicants, either through application fees or through practical preparation requirements, could be a huge cost to the mediation field in terms of lost diversity. On the other end of the spectrum, volunteer mediators and those with special expertise may not want to "jump through the hoops" if the certification requirements are burdensome, resulting in further exclusion of competent mediators.  This is especially problematic for courts that rely on volunteers, as ensuring competence is especially important in the court context.
C. Certification Is Recommended if Carefully Implemented.
While further research is necessary to determine the cost of implementing and maintaining a certification process, it appears that the benefits of a carefully designed program could outweigh the costs. Mediator competency is key to the field and practice of mediation, and mediators can have a significant positive or negative impact on parties who mediate—or even on those who do not, if mediator quality or apparent quality influenced the decision to avoid mediation. Given the apparent potential to further the goal of competency, to provide a market signal of that competency, and thereby to promote mediation, the benefits of certification seem worth the costs, if those costs can be kept to a minimum.
The high cost of losing mediator diversity or excluding many competent mediators, for example, does not seem justified by the benefits of certification—so the program must be designed in a way to avoid such high risk. In sum, it is important for any certification program to keep its goals, costs, and public concerns at the forefront of all activities, in order to avoid or minimize the risks discussed above.
III. A Look at Evaluative Methods
The challenge of identifying mediators worthy of certification is twofold. First is the difficulty of defining a "good mediator." Second is the challenge of evaluating a mediator to determine whether she fits that definition.
A. Defining a "Good Mediator"
The main problem with defining a good mediator is that there is little or no consensus on what makes one.  Many asserted characteristics of a good mediator are subjective and difficult to test consistently and fairly,  for example, listening skills, empathy,  interpersonal skills, information-gathering ability, and creativity.  Probably because these skills are so subjective, little research has been done on what characteristics lead to effective mediation.
In fact, possibly the only characteristic that has been empirically shown to affect mediation is experience. According to a study by Roselle L. Wissler, mediator experience alone increases the likelihood of settlement.  Thus, to the extent that increased settlement rates are the goal of mediator certification, the only empirically relevant qualification is experience. Factors that were shown to be irrelevant to settlement rates included hours of advanced training, role play training, familiarity with relevant law, and number of years in legal practice. 
The problem remains, however, that no single set of qualities can be accepted universally because mediators have different styles and approaches. While it is important to protect that diversity of practice, it also makes it difficult to identify what makes a good mediator.  Perhaps this is because there is no single definition of a "good mediator," but a variety of characteristics which, in varying combinations, lead to effective mediation. If a certification program is to be inclusive of all competent mediators, then, it must be either (1) flexible enough to identify competency without relying on a rigid list of characteristics or (2) over-inclusive, relying on a list of only the most core requirements for mediators in order to protect diversity among mediation approaches. An over-inclusive program would not serve the most important goal of certification, ensuring competency. Therefore, an effective certification program must be flexible enough to identify competency without relying on a rigid list of mediator characteristics.
B. Evaluating Mediators
As discussed above, it is extremely difficult to pin down a universal definition of a "good mediator" in terms of objective or even subjective characteristics. Therefore, evaluation of mediators must be flexible and effective without a conclusive and complete list of mediator qualities. Several evaluative methods have been proposed or implemented: counting hours of training and experience, written examination, performance evaluation, and holistic review.
(1) Counting Hours of Training and Experience ACR's recent proposal  is the primary example of evaluation through counting hours of training and experience. The ACR proposal requires specific amounts of training and experience, measured in hours and presented in a portfolio submitted with each application. Each applicant must have 100 hours of training, including at least 80 in mediation process skills,  and 100 hours of experience as a mediator or co-mediator in the last five years or 500 hours total during the applicant's lifetime. 
Hour requirements for training are problematic if they do not correlate to mediator competency. The ACR requirement seems excessive and pointless, given the results of Roselle L. Wissler's study  which suggest that ACR's required eighty hours of general mediation process training is no more beneficial to mediator competency than seven hours of such training.  According to Art Hinshaw and Roselle Wissler, studies are likely "to find that no relationship exists between mediator training and mediation outcomes."  Training requirements also increase the cost of mediator certification by benefiting those who are better able to pay for advanced training,  decreasing the financial diversity of the mediator pool.
Experience requirements are less problematic according to the Wissler study, which found experience to be the only mediator quality relevant to settlement rates. 
Another problem with hours-counting is its rigidity. While the proposal includes the possibility of exceptions "in exceptional or extraordinary circumstances,"  it is unclear that this exception is broad enough to provide the necessary flexibility. As Professor Sarah Rudolph Cole points out, such a plan "might exclude a number of mediators who would otherwise satisfy the existing view of what constitutes a quality mediator."  Experience requirements also may create a "Catch-22" for inexperienced mediators if experience is hard to get without certification.
Another system, based on points-counting, is a variation on the hours-counting system and is exemplified by the Florida Supreme Court's recent proposal.  This proposal calls for a requirement of 100 points per applicant, with points coming from educational degrees, training, experience, and mentorship.  Depending on the type of mediator classification, the point total must include specific numbers of points from education, training, and experience.  Florida's point system is designed to support diversity in a way that a straight hours-counting system does not.  However, even with its slightly increased flexibility, the point system shares the problems of the hours-counting system, rewarding unnecessary education and training and fails to provide flexibility for those mediators who are competent but do not fit neatly into its point agenda.
(2) Examinations In addition to the hour counting described above, the ACR proposal includes a written examination of each certification applicant.  The exam covers topics such as conflict theory, cultural diversity, ethics, and the history of mediation,  reflecting ACR's conclusion that "a skilled mediator should be knowledgeable about different approaches and schools of thought, even if he or she works primarily in one."  The ACR proposal's examination requirement is problematic for two reasons: (1) the proposed areas of knowledge suggest that the tested material is not highly relevant to mediator competency, and (2) the examination is likely to exclude those who can not afford the extensive training necessary to pass it.
As discussed in Part II, Section B, it is unlikely that a knowledge-based test could accurately evaluate the competency of a mediator,  and such a test threatens the diversity of the certified mediator pool. However, a written exam could serve the limited purpose of testing objective knowledge critical to mediation, such as relevant law and procedure, and ability to identify sensitive cases which may require special training or other qualifications.
(3) Performance Evaluation by Parties or Observers A third way to evaluate mediators is by observing them in action; this can be done by formal evaluators or by parties in real mediations. A study has shown that evaluation by experienced mediation parties can distinguish between more and less skilled mediators and provide feedback on particular skills and areas that need improvement.  The biggest drawback of performance evaluation is its costly and time-consuming nature.  It also may also be inconsistent due to its subjectivity.
(4) Holistic Review Sarah Rudolph Cole suggests adding a holistic review to the existing point or hour requirements of the ACR or Florida proposals in order to ensure that qualified mediators are not excluded.  The reviewing entity could protect diversity and avoid over-exclusivity by applying a more flexible approach to certify those applicants who are qualified but do not fit into the rigid requirements of a point or hours system.  This process is more costly and inconsistent than hour- and point-counting; however, the need to provide flexibility outweighs the added costs inherent in a properly administered holistic review process.
There is a clear trade-off between accuracy and cost-effectiveness in the evaluative methods described above. While hours-counting and written examinations have the advantages of being objective and inexpensive, performance evaluations and holistic review are more accurate. In order to maintain flexibility and diversity, some amount of performance evaluation and holistic review is essential.
The benefits of certification are not worth a large loss in diversity of mediator backgrounds and approaches, and the benefits of certification would be compromised if granted to unqualified mediators. Therefore, it is crucial to any certification program have an accurate evaluation system. But what about the financial costs? As noted in Part II, 57% of mediators would be willing to pay only $200 for certification, and only 18% of mediators would be willing to pay $300.  These numbers do not bode well for an expensive application process, which may be economically unavailable or undesirable for many mediators, thus threatening mediator diversity—an unacceptable cost, as discussed above.
While more research is necessary to determine the exact cost of a program including the accurate but expensive methods of performance evaluations and holistic review, it appears that such a program would be too expensive to be funded solely by application fees. Furthermore, although the court system would benefit greatly from a certification program, the courts are an unlikely source of sufficient funding. The solution must come from some other source, perhaps from a federal grant for a national system or state funding for implementing the program on a smaller scale. Without such funding, a certification program appears to be too expensive to be both effective and inclusive.
 Preamble to the Mediator Certification Program, Association for Conflict Resolution (ACR) Mediator Certification Task Force, Report and Recommendations to the ACR Board of Directors 6 (March 31, 2004), available athttp://www.acrnet.org/pdfs/certificationreport2004.pdf (hereinafter "ACR Task Force Report").
 Id .
 Id .
 Several professional organizations have contemplated or implemented mediator certification. See , e.g., ADRWorld.com, ABA, ACR to Explore National Mediator Certification System (September 27, 2004), http://adrworld.com/sp.asp?id=27679; Justin Kelly, Colorado Group Considers Plan for Credentialing Mediators (Sept. 13, 2000), http://adrworld.com/sp.asp?id=27563; ACR Task Force Report, supra note 1, at 6.
 No state has adopted a formal licensure requirement, and most regulation of alternative dispute resolution consists of certification or rostering. Id. at 6. Licensure is inappropriate for mediation for several reasons including, for example, the nascent state of knowledge concerning what qualifications are required for effective mediation, the risk of arbitrary or inflexible standards in licensing, and the danger of losing diversity in the practice of mediation. Comm'n on Qualifications, Society for Professionals in Dispute Resolution, Report No. 2, at 18 (April 1995) [hereinafter " SPIDR Report No. 2"]. Licensing has also been criticized as too anti-competitive for the mediation field. Donald T. Weckstein, Mediator Certification: Why and How, 30 U.S.F. L. Rev. 757, 761 (1996).
 Sarah Rudolph Cole, Mediator Certification: Has the Time Come?, 11 Disp. Resol. Mag. 7, 7 (2005).
 ACR Task Force Report, supra note 1, at 7; Weckstein, supra note 5, at 767–68.
 Id. at 7.
 See Russell, infra note 23, at 613.
 Id. at 192.
 Id. at 193.
 Cole, supra note 6, at 8.
 See Survey of Students in the Mediation Practicum and Multiparty Mediation Practicum, The Ohio State University Moritz College of Law (Nov. 2005) (on file with author) [hereinafter "Student Survey"].
 ACR/ABA Mediator Certification Feasibility Study at 4 (2005), available at http://www.acrnet.org/pdfs/certificationresults2005.pdf (results of an online survey of over 3100 mediators conducted by the ACR and the Dispute Resolution Section of the ABA as part of a study on the feasibility of mediator certification) [hereinafter "Feasibility Study"].
 Craig McEwen, Giving Meaning to Mediator Professionalism , 11 No. 3 Disp. Resol. Mag. 3 (Spring 2005).
 Id . at 3–4.
 McEwen, supra note 15, at 5. See also Charles Pou, Jr., Assuring Excellence, or Merely Reassuring? Policy and Practice in Promoting Mediator Quality, 2004 U. Mo. J. Disp. Resol. 303, 306.
 Cole, supra note 6, at 8. Of mediators surveyed, 63% believed that a national certification program would be valuable to consumers; only 12% thought otherwise. Feasibility Study, supra note 14, at 2.
 Weckstein, supra note 5, at 768 (citing Jay Folberg & Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation 262–63 (1984)).
 Unfortunately, a certification program probably could not avoid all unscrupulous practice, as formal complaints are likely to be infrequent. McEwen, supra note 15, at 6.
 Weckstein, supra note 5, at 771.
 Most mediators believe that a national certification process would enhance the public image of mediators. Feasibility Study, supra note 14, at 3.
 Weckstein, supra note 5, at 773. Senator Newton R. Russell shared the goal of increasing mediator credibility when he sponsored a mediator certification bill in 1995. Newton R. Russell, Mediation: The Need and a Plan for Voluntary Certification , 30 USF L. Rev. 613 (1996). The bill attempted to "give the public a modicum of comfort when they employ an officially credentialed mediator." Id. at 614.
 See Weckstein, supra note 5, at 772.
 ACR Task Force Report, supra note 1, at 1.
 Feasibility Study, supra note 14, at 5.
 See infra note 34 and accompanying text (discussing the risk of "pricing out" mediators).
 Weckstein, supra note 5, at 769–71; ACR Task Force Report, supra note 1, at 8.
 Weckstein, supra note 5, at 775. It is important that any system of regulation recognize and embrace a variety of approaches. See Ellen A. Waldman, The Challenge of Certification: How to Ensure Mediator Competence While Preserving Diversity , 30 U.S.F. L. Rev. 723, 756–57 (1996).
 See Matthew Daiker, No J.D. Required: The Critical Role and Contributions of Non-Lawyer Mediators, 24 Rev. Litig. 499 (2005).
 Weckstein, supra note 5, at 770 (citing Comm'n on Qualifications, Society for Professionals in Dispute Resolution, Qualifying Neutrals: The Basic Principles 15–16 (1989), and several other sources). Certain educational degrees may be useful in special circumstances, however, such as in child custody and visitation mediations. See Bobby Marzine Harges, Mediator Qualifications: The Trend Toward Professionalization, 1997 BYU L. Rev. 687, 700–07.
 Cole, supra note 6, at 9–10.
 Feasibility Study, supra note 14, at 3.
 Id. Only twelve of twenty-two mediation students surveyed responded that their willingness to volunteer as an in-court mediator would continue if it required a $200 certification. Student Survey, supra note 13.
 Cole, supra note 6, at 7.
 See Cole, supra note 6, at 7.
See Nancy H. Rogers & Richard A. Salem, A Student's Guide to mediation and the Law 12– 13 (1987).
 Roselle L. Wissler, Court-Connected Mediation in General Civil Cases: What we Know from Empirical Research, 17 Ohio St. J. Disp. Resol. 641, 699–700 (2002).
 Id. at 678–79.
 Id. Wissler's study suggests that advanced training does not offer an increase in settlement rates compared to minimal training. Id. at 654–55.
 See Robert A. Baruch Bush, One Size Does Not Fit All: A Pluralistic Approach to Mediator Performance Testing and Quality Assurance, 19 Ohio St. J. on Disp. Resol. 965 (2004).
 ACR Task Force Report, supra note 1.
 Id. at 9.
 Id. at 9–10.
 Wissler, supra note 39 and accompanying text.
 Art Hinshaw and Roselle L. Wissler, How Do We Know that Mediation Training Works?, 12 Disp. Resol. Mag. 21, 21 (2005).
 Cole, supra note 6, at 9.
 Wissler, supra note 38 and accompanying text.
 ACR Task Force Report, supra note 1, at 1.
 Cole, supra note 6, at 9.
 ADRWorld.com, Florida Proposes Point System for Mediator Certification (Aug. 18, 2004), http://adrworld.com/sp.asp.
ACR Task Force Report, supra note 1, at 10.
 Id. at 9–10.
 Id. at 4.
 See Cole, supra note 6, at 10.
 Roselle L. Wissler & Robert W. Rack, Jr., Assessing Mediator Performance: The Usefulness of Participant Questionnaires, 2004 Curators U. Mo. J. Disp. Resol. 229, 253–54.
 Stephanie A. Henning, A Framework for Developing Mediator Certification Programs, 4 Harv. Negot. L. Rev. 201 (1999) The ACR Task Force concluded that such assessment would be too expensive in terms of human and financial resources. ACR Task Force Report, supra note 1, at 4.
 Cole, supra note 6, at 9–10.
 Feasibility Study, supra note 14, at 5.