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Serving the Public: The Case for Formally Professionalizing Court-Connected and Litigated-Case Mediation

by Jack Goetz, Jennifer Kalfsbeek
April 2014

PDF of the complete article available below. Review the full PDF version of this article for an explanation on why formally recognizing court-connected and litigated-case mediation as a profession will better serve the public.

 

 

Introduction

It is not illegal for someone in California to raise a sign or to place an ad claiming to be a mediator, charge fees for mediation, and engage in this largely unregulated process intending to serve the public by helping parties resolve disputes. As the ninth largest global economy, California is a sizeable and an illustrative example of how the mediation field operates within the United States as well as where the field may be moving as the occupation evolves (Legislative Analyst’s Office, 2013).  Young (2006, p.725) notes, “most mediators in most states…can hang up a shingle without meeting any licensing or training requirements or agreeing to be bound by any ethical guidelines. Most mediators are beyond any state-sponsored sanctioning process.”  Jarrett (2009) writes that the field of mediation is borne out of the counterculture movements of the 1960’s and 1970’s, a rejection of a formalistic, legal system that resolves disagreements in a prescribed manner.  Thus, the field continues to have an occupational preference for no regulation, with perhaps a sentiment that, if mediator regulation became the norm, mediation would lose its creative spirit (Sternlight, 2013).  For this reason, the mediation community in the United States is debating the need to formally professionalize mediation.    

This article posits that the field of mediation can better serve the public by developing a system of public accountability that would elevate itself to a formal, professional status.  What’s more, the proverbial train may have already left the station in disputes that are resolved in a public forum: court-connected and litigated cases.  Client expectations, and the statutes protecting confidentiality in mediation, anticipate professionals, and the mediation practice therein has rapidly evolved towards professionalization.  These public-forum litigated case mediators are often regulated under local court or state rules, which also require some mediation training, thus putting them ahead of the rest of the field of mediation with regard to professionalization.  However, the final steps that are required by other professions, including inclusion of a common ethical code and a qualifying exam, are still not standard for mediators.  Without establishing some of the fundamental elements that are at the core of professions, including agreement on what constitutes mediator education or training and willingness of the field to keep out other would-be practitioners who do not meet a common standard, mediation has failed to live up to the standard of the other professions and therefore undercuts its value for the community.  Ultimately, in the absence of establishing a professional standard, the fundamental judgment and enforcement of what constitutes a “mediator” in public forum litigated cases is deferred to local courts, providing unevenness in application.  For example, in Los Angeles, one of the largest counties in the world, budget pressures ultimately led to the demise of the court-connected mediation panel (Los Angeles Superior Court, 2013), reputably the largest court-connected panel in the United States.

This article, attempts to answer the long debated issue about whether mediation is a profession, but leaves plenty for future research.  It does not attempt to answer the political question regarding which governmental or non-governmental body should professionalize mediators.  It does not attempt to define, other than by demonstrating what has been required to date in mediation and other occupations, what should be the ultimate standard for mediation professionalization. This article will, however, look at the sociological view of professions, review the current discussion and treatment of the mediation field, and analyze what it might take to move mediation as a whole, and then court-connected and litigated-case mediation, to profession status.   Finally, with special focus on court-connected and litigated-case mediation, this article will conclude by reviewing some of benefits and detriments of converting an occupation to one that is a recognized profession.

Defining Mediation and Court-Connected and Litigated-Case Types

Mediation is a process in which a third party, called a “neutral,” assists disputants in creating their own solution to a conflict. (Slaikeu, 1996)  Mediators do not make rulings in matters, but they facilitate problem solving between disputants. While some mediators are also attorneys, many are not.  Additionally, mediation is sometimes confused with arbitration; however, arbitration involves a hearing in which the arbitrator is charged with hearing evidence and making a court-like ruling. 

Mediators utilize the principle of party self-determination, facilitating negotiations between the parties until an agreed upon final settlement is reached.  If the mediator is involved in a dispute that has already been filed as a lawsuit, it is referred to as litigated-case mediation; if the mediator receives the mediation assignment under the auspices of a court process or the court has made the mediator’s name available to the parties, it is considered a court-connected case.  As noted previously, the mediation community in California and beyond is currently debating the need to formally professionalize the practice of mediation. 

Behaving “Professionally” versus Being a Recognized Professional

            It is common for members of occupations to ask themselves if they should become a formalized “profession.”  This occupationally defining question can lead to complex discussions among colleagues.  A person behaving in a manner that is respectful and appropriate among occupational peers is often said to be acting professionally.  Yet not all occupations are “professions.” Sociologist Craig McEwan notes on mediator professionalism that the “effort to offer professionalism without professionalization suggests multiple meanings of these concepts…” (2005, p. 3).  Cleary, the notion of “profession” is widely used yet not commonly understood.

            Pavalko’s seminal text notes that defining “profession” is complex because we use the word “profession” in varying ways.   Pavalko notes three ways in which “profession” is commonly understood: 1) profession as full-time activity, 2) profession as competence, and 3) the professions (Pavalko, p. 9).  The former two notions refer to common colloquial ways in which people refer to being professional; the latter refers to what it means to be a formally recognized profession, with the rights and restrictions attached to this status.  Mediation’s occupational status is linked to the understanding of these distinctions.

            One is oftentimes considered “professional,” or engaging in a “profession,” when referring to their “full-time performance of an activity for pay in contrast to engaging in the activity on a part-time basis, as a recreational activity, or without pay” (Pavalko, p. 9).  An athlete or actor who moves from amateur status to working for pay will oftentimes separate themselves from amateurs by referring to themselves as “professional athletes” and “professional actors (Pavalko, p. 9).”    The term “professional,” in these instances, denotes making a living at doing the specified activity.  It is also the case that one may wish to convey their specialized skill in an area, or their competence and proficiency in performing a specific set of tasks, by stating that they are a “professional.” This is done to instill confidence in consumers.  When someone publicizes that they are a professional carpenter, they are conveying that they are highly skilled at the carpentry trade; “businesses that advertise in this way are attempting to capitalize on popular understandings of the meaning of the term ‘professional’ and turn them to their own commercial advantage (Pavalko, p. 9).” 

            These colloquial notions of being “professional” blur the distinction between occupations in which people can earn a living and those that have earned the status that is derived from being part of a formalized profession.  Occupations that are formalized “professions” possess characteristics that transcend the fact that one can earn a living in the performance of that occupation.  In meeting these additional standards, members of the professions enjoy privileges and the status reserved for occupations that have set qualifications; most importantly  the public they serve can trust that their providers meet a set of standards that are established and overseen by the experts in that field.

The Professions: A Detailed Explanation

In order to be a formally recognized profession, an occupation must possess five sociologically defining characteristics of professions as listed  below and described in the sections to follow (Kendall, 2013; MacDonald, 1997, Pavalko, 1988, Rossides, 1998). 

  • Service to the Public
  • Code of Ethics
  • Self-Regulation
  • Specialized Education
  • Authority

This article will look at a number of professions that are recognized in the United States and throughout the globe, from physicians to social workers, all of which meet this sociologically defining test.  Many occupational groups meet some of the characteristics of professions, and because of the definitional blurring that occurs between the word “professional” or acting “professionally” in contrast to being a member of a profession, it may seem that more occupations are professions than what is the case.    

Mediation is not Yet a Profession

Detailed in the sections to follow is an explanation of each of the characteristics of the sociological definition for professions and a perspective as to whether mediation meets the characteristic.  Table 1 provides a summary of these sections by assessing six established professions, the general field of mediation, and court-connected mediation, against the five criteria for professions.  The test reveals that mediation as a whole does not possess all of the characteristics of a profession.  However, court-connected mediation is closer to meeting the characteristics and could lead the field into professionalization by setting out to fully meet the final characteristics. 

Service to the public: Mediation meets this criterion.  Most professionals become practitioners because they wish to serve society.  Others are members of professions that, at least in part, are considered necessary for society’s greater good.  Therefore, service to the public is one of the more distinct characteristics of professional practitioners, like nurses and teachers who “…have concern for others that go beyond their self interest of personal comfort.” (Kendall, 2013, p. 392)  Most professional work groups, like physicians, social workers, and psychologists seek to underscore the “ideal of service” to society as their primary objective. (Pavalko, 1988, p. 23)

Service to the public is critical to professions because “the work of the professions is seen as strongly related to the realization of [societal] values” (Pavalko, p. 21).  Values are widely held notions regarding what is good or bad, right or wrong, desirable or undesirable within a society.  (Williams, 1970)  Values provide us with the principles and the subjective lens from which we evaluate behaviors, events, objects, etc. (Kendall, 2013).  Common values held in the United States include: justice, liberty, personal safety and security, and the belief that individuals should have access to lifelong health and happiness. 

Conversely, some occupational groups have become professions because their formal professional status requires that practitioners engage in their work with an eye towards serving the public.  This group of professionals, including public accountants and architects, may not have chosen their occupation because they were compelled to serve the greater good, but they cannot legitimately engage in their fields unless they learn to abide by professional standards that require them to uphold accountability to the public and public safety.  

Mediation meets the criterion of service to the public because it seeks to facilitate an agreement between consenting parties in disagreement.  Mediation supports the values of peace, justice and cooperation.  The societal benefits of this value-laden action include reducing litigation costs for private parties and the courts, fostering peaceful communities, and providing service to individuals and entities that otherwise might not have access to these services. 

Code of ethics: Mediation does not currently meet this criterion.  Codes of ethics are sanctioned norms, or expected behaviors and practices, that are articulated by regulating bodies.  While some occupations and work groups possess codes of ethics, all professions possess a code of ethics by which all members of the profession are required to obey.  (Pavalko, 1988)   Because professions self-regulate, professionals can be held accountable for their actions and required to adherence to their professional code of ethics or risk losing their professional status.  While all professions possess a code of ethics, professionals are not necessarily more honorable than non-professionals.  However, because professional regulating bodies oversee their members, and sanction their codes, professions can assure the public that they will uphold their codes and, if a professional member breaks a code, their actions are punishable.  

Possessing a code of ethics also reinforces the “service to the public” value of professions as it serves as a promise of responsibility to society.  (Pavalko, 1988) 

Many organizations have developed codes of ethics for mediators (Model Standards of Conduct for Mediators, American Bar Association, 2005; International Mediation Institute, 2013; California Dispute Resolution Council, 2013).  Court-connected panels have regulatory systems that often include a code of ethics.  Jarrett (2009, p. 63) writes “A review of a sample of thirty mediator ethics codes from prominent mediator organizations revealed that these codes have almost all reproduced the neutrality and/or impartiality ethics in their definition of mediation.”  Despite the proliferation of, and commonalities between, the various codes, there is no universal regulatory system that exists to enforce them for the mediation field except on a fluctuating region by region basis. Should mediation self-regulate those regulations would include the creation and enforcement of a common code of ethics.       

Self-regulation: court-connected panels are close to meeting this criterion, mediation overall lacks self-regulation.  An occupational group is not a profession without self-regulation, in part because, without regulation, an occupational group cannot fully, and ethically, serve the public.  “All professions have licensing, accreditation, and/or regulatory associations that set professional standards and that require members to adhere to a code of ethics as a form of public accountancy” (Kendall, 2013, p. 392).  The argument that mediation should not be regulated is therefore an argument that mediation is not a profession.

Three facets of professions underscore the necessary inclusion of self-regulation as a key characteristic of all professions: autonomy of practice; a qualifying examination; and a professional oversight body.  Some occupations include some of these “self-regulation” facets, which can lead people to believe that an occupational group is fully self-regulating.  Recognized “professions” however meet all three facets of self-regulation. 

            First, a distinctive feature of professional work is that professionals typically engage in their work independent of direct supervision.  A “professional” is expected to rely on their own judgment in selecting the correct approach to a task or the best technique to use when solving a problem (Kendall, 2013).  Professional groups possess “the freedom and power to regulate their own work behavior and working conditions” (Pavalko, 1988, p. 25).  With this privilege of autonomy comes the responsibility to self-regulate.  To act autonomously, without regulatory oversight, may eventually lead to an abuse of power and possible discrediting of an occupation altogether.  Mediators act autonomously when they work with clients.  According to McEwan (2005) and Freidson (1994), members of professions “control their own work,” on a day-to-day working basis as well as on a professional-level scale.  Coben (2000) chronicles how mediators rely on their best judgment or self-imposed restraint to honor the mediation principle of self-determination as they influence the parties towards settlement.  Therefore, mediation meets the characteristic of autonomy.  Herein lies the dilemma; mediators act autonomously, yet if they abuse this power, there are no common, formal remedies in place for wronged parties because mediation is not yet fully regulated.  In fact, Young (2006) chronicles the inability of disputants to successfully sue mediators, even in situations in which allegedly substandard mediation practices are utilized that injure disputants. 

Second, all professions possess a qualifying examination that certifies or licenses one as a credentialed practitioner.  Common nomenclature on this topic can be confusing.  Some occupational groups, like physicians and dentists, require their members to be “certified” by passing a certification examination that is overseen by their private, professional association in addition to being licensed by their states to practice (American Board of Medical Specialties, 2013).  Others, like nurses and social workers, expect their practitioners to become “licensed” by passing a state-sanctioned examination that qualifies them to practice in a state.  (American Nurses Association, 2013; Association of Social Work Boards, 2013)  Other groups still, including teachers and attorneys, speak of an overarching examination, or credentialing test, which sets the bar for entry to become a  practicing member of the profession before they obtain a state-license to practice (American Bar Association, 2013; American Teachers Association, 2013)

A professional may be certified by their professional body and licensed by their state to practice, or they may pass a licensing exam in their state which qualifies them to practice.  Therefore, some professions require certification and licensing and others may require just private certification or state licensure.  The key distinction between licensing and certification is that “licensing is a mandatory credentialing process established by a state government board.  Certification is a voluntary credentialing process by a non-governmental, private professional association. In some cases, professional certification is a requirement for employment, even when a state license is not necessary” (World Education Services, 2013).   Regardless of the terminology used, or the type of qualification that is applied to the profession (a state-mandated license or not), a qualifying exam of some type – like the bar examination for attorneys, the Medical Board Certification Examination for physicians and dentists, and the Social Work Licensing Exam – is a required facet of self-regulation for all recognized professions.  A license, certification, or other qualifying examination serves as a screening device. The objective of these qualifying examinations is to protect the interests of the public by assuring that practitioners hold an agreed-upon level of knowledge and skill, and by filtering out those with substandard levels of knowledge and skill.  In its February, 1997 report (p. 5) on teaching professionalization, the National Center for Educational Statistics, “Professions require credentials.  That is, nearly all professions require completion of an officially sanctioned or accredited training program and passage of examinations in order to obtain certification, a credential or a licensure to practice.”  However, the field of mediation does not yet require its practitioners to pass a qualifying examination to work as “mediators.”       

The third and final facet of self-regulation is the existence of a profession-specific oversight body.  To pass a qualifying exam alone only establishes that one can work as a member of the occupation, and it sets a bar-for-entry to practice; however, it does not assure compliance to any occupational codes of practice or a common code of ethics.  To be fully self-regulated, an occupation must also include a governing or oversight body that assures adherence to the codes and approved practices of the work group.    To regulate is to serve the greater good of the public, because through the process of self-regulation, a common code of ethics is adopted, a formal bar-for-entry is established, and an oversight body is created to monitor the actions of the professionals and to enforce adherence to the professional codes.  Typically, the last step in becoming a formalized profession is self-regulation, because regulation requires the establishment of a qualifying exam, adoption of a common code of ethics, adoption of a professional oversight body of peer professionals, and lastly, the establishment of a standard for specialized education – the fourth characteristic of professions.  As of the time of this writing, no recognized oversight body that monitors mediators existed.  However, courts often maintain a complaint process (Young, 2006); therefore, court mediation panels are closer to meeting the definition of a profession under the self-regulation standard than the rest of mediation.    

Specialized education: mediation as a whole does not meet this criterion; court-connected mediation panels may meet this criterion.  Because members of professions are expected to make autonomous judgments, pass a qualifying examination, and adopt and embody a professional code of ethics, professionals are characterized by the successful attainment of a specialized education.  While it is recognized that all occupational work involves the acquisition of skills and knowledge, professional work requires: 1) education that focuses on an abstract and complex knowledge-base, 2) practical training, and 3) continuing education throughout one’s participation as a professional.  In order to accomplish the specialized educational goals of a profession, professions today require members to attain a degree in higher education

Rossides (1998) writes that professions are largely defined by the specific academic education required for competence.  Specialized training in higher education is one of the key qualifiers for professions (Kendall, 2013; Rossides, 1998).  Medical doctors, licensed social workers, and attorneys need graduate level degrees to meet the educational standards of their professions.  Accountants and teachers need baccalaureate degrees to qualify.  Nurses need a minimum of an associate’s degree.  Mediation, because it is largely unregulated in the United States, does not have a common degree or specified education level that is expected in the field, with the possible exception of some court-connected panels.  However, the variation in court-connected panels is extreme.  Some courts in Minnesota, Oregon and Maine require no degree at all (Minnesota Supreme Court, 2013; Oregon Mediation Association, 2013; State of Maine Judicial Branch, 2013).  Some courts in California and Virginia require a bachelor’s degree (Superior Court of California, County of San Diego, 2013; Supreme Court of Virginia, 2013).  Others still in Georgia and California require a law degree (Georgia Supreme Court, 2013; Superior Court of California, County of Orange, 2013).  While the wisdom of requiring a law degree will be discussed in this article’s concluding remarks, the court-connected mediators who have earned a higher education degree are closer to meeting the professional norm for higher education attainment for professions.

According to Pavalko, “a profession is an occupation that has developed a complex knowledge-base that serves as the basis of its members’ claim to special expertise” (p. 20).  Pavalko also points out that with professional education, emphasis is placed on “mastering the ability to manipulate ideas, symbols, concepts and principles rather than things and physical objects” (p. 23).  The abstract and complex core knowledge-base that could support mediation as a profession is written into the minimum qualification standards for some state statutes and court-connected panels.

California, for example, has codified this core knowledge in the Dispute Resolution Programs Act (DRPA, 2013).  DRPA authorizes public funding for dispute resolution conducted under certain conditions, including that mediators who are conducting a mediation that qualifies for funding meet a minimum of 25 hours of classroom training, including at least 10 hours of lecture and discussion on specific topics germane to mediation theory, and 10 hours of mediation role plays using simulated disputes.  The abstract and complex core knowledge specified by that statute includes, communication skills and techniques, building trust, gathering facts, framing issues, empowerment tactics, effective listening and clarification skills, problem identification, identifying options, building consensus, as well as being able to manage the mediation process through settlement.  DRPA, however, does not require its mediators to have a higher education degree.

While individual variances in hours devoted to acquiring and maintaining the mediation-specific abstract and complex knowledge base exist, the topics that are at the center of the DRPA statute also resonate with court-connected panel requirements elsewhere.  Raines, Hedeen and Barton (2010) recently recommended a universal core training requirement of 24 hours for court-connected mediations that included training on the mediation process and fundamental skills, including listening, questioning, framing skills, and ethical practice, with additional hours depending upon the area and setting of the mediation practice.   Previously cited Oregon and Minnesota are other examples of mediator training models largely based on similar topics enumerated by DRPA and the Raines, Hedeen and Barton study.

Professions also typically expect their members to engage in practical training and continuing education.  Proof of practice by way of residency training, clinical hours, or practical training hours is required of most professions including physicians, social workers, nurses and teachers (American Medication Association, 2013; American Nurses Association, 2013; American Teachers Association, 2013; National Association of Social Workers, 2013).  Lastly, all formal professions explored in this article require continuing education while a practitioner remains a member of their profession.

While this article was not written to be a comprehensive national or state-specific look at what the courts have required in terms of specialized education and training (see Mediation Training International Institute, 2013 for a state by state listing), the trend with those who have looked at the issue of mediating the court-connected or litigated-case is to push the field towards professionalization in this category.  Courts often define a core complex knowledge-base, and may require either an undergraduate or law degree in addition to 24-60 hours of mediation-specific training.  Additionally, courts often seek mediator commitment to follow court rules; to require some prior mediation experience; to require some engagement in continued mediator training; and attempt to regulate mediators against whom complaints have been filed by litigants. 

Authority: litigated-case and court-connected mediators are assumed to meet this criterion; mediation in general does not meet the criterion.  Because professionals possess specialized knowledge and skills that are recognized by the public to be of value, professions exist to support the greater good of a society.  Combined with their power to self-regulate, professionals possess significant authority in society (Kendall, 2013).  If an occupational group possesses the first four characteristics of a profession, the final yet critically impacting characteristic – authority – is inherent.  Power can be garnered through legitimate and illegitimate means.  One can gain power over others because members of the community fear them, or believe that they must obey a person because that person or his/her perceived position has persuaded them to do so.  At some point in the pre-professional history of professions, anyone in society could have held themselves out to be a “healer,” “solicitor,” or “teacher.”  It is often at this point in the life cycle of a “profession” when occupational groups determine if there is a need to become a profession, for the sake of the greater good of the public.  Authority is power that is accepted to be legitimate (Kendall, 2013); professionals possess the power of authority. 

Conclusion

Mediators who take the position that they do not want to be regulated are unavoidably taking the position that they do not want mediation to be a recognized profession.  While that may serve those who identify with the counterculture roots of mediation, it inevitably deprives one of the primary users of mediation – the disputants in litigated-cases – a regulated resource upon which the public can rely.  As the Los Angeles Superior Court has found with the dissolution of its mediator panels with no obvious replacement in sight, there is a need to professionalize the world of litigated-case or court-connected mediation.  Without that professionalization, public resources will continue to be excessively spent on the duplicative process of replicating local panels with arguably indistinguishably different criteria in order to serve an already overburdened court system. 




 
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