Expanding the Mediation Pie

NYSBA New York Dispute Resolution Lawyer | Fall 2009 | Vol.2 | No. 2 |  Pp 52/54

Editor’s Note: As the NYSBA Dispute Resolution Section embarks this year on a study of mediator credentialing, we thought IMI’s recently-launched web-based open access platform for credentialing international mediators would be of interest.

International Mediator Certification and Expanding the Mediation Pie[1]

By Michael Leathes, Director, International Mediation Institute

 

Over the years there has been a great deal of discussion about the pros and cons of mediator credentialing, a discussion which continues in various venues to date. However, there is a growing sense among many in the field that credentialing is critical if the field is to grow.  To foster the growth of mediation the International Mediation Institute (IMI) was set up as a foundation in 2007.[2]  IMI does not compete in the marketplace, is funded by donations, and its initial role is to credential quality mediators worldwide, enabling them to be easily identified through its search engine.  IMI launched its web based certified mediator data base, open to those seeking mediators without charge, in June of 2009. IMI’s wider mission is to promote and encourage the field and help the mediation pie to expand on a global basis for the benefit of all stakeholders.
Why do we need mediator credentialing?

Companies and professional firms, often do not fully appreciate the value mediation can deliver to them. It has been estimated that the total billings of all U.S. mediators in a single year approximates $500 million – roughly the same level of billings as the 50th largest US law firm.  Mediation is a small pie even in the country where its progress has been greatest. In my career as an in-house counsel, I have proposed mediation to many opponents. Most were rejected.  I estimate that only 1 in 50-100 proposals was accepted. The counter-parties just did not understand what was involved.  Mediators see the tail of cases that come to them; they rarely see or hear of those that don’t.

Mediators need to adopt and support the credentialing process and focus on the enlargement of the overall pie – mediation as a practice – and not merely on their own slice sugared by vested networks.  Although they compete head-to-head for business with the next mediator, if they fail to collaborate in the task of authenticating and validating the mediation field as a whole, their piece of the cake will not enlarge.

Qualifications are essential in the mediation field to foster the growth of the field. People can practice as a mediator almost everywhere without having been trained, possessing a licence, having to improve their skills or being independently tested or vetted, without being regulated and without the impetus to improve their own delivery.  Although the top mediators voluntarily seek to constantly improve their skills, their example is not followed by everyone in the field, robbing it of professional integrity.  As a result, the standards set by some – perhaps many – are often variable or opaque.

Around the world there are few Codes of Ethics or Codes of Conduct applying to mediators. Where they do exist, as they do in the United States, they are largely aspirational, unsupported by disciplinary processes and lacking real sanctions for the few unprofessional enough to transgress.

Another factor driving the need for certification is that some providers of mediation services in the international arena have low or undisclosed standards for admitting mediators to their panels and rosters.  This forces users of mediation services to rely too often on hearsay, reputation, word-of-mouth and gossip, backed up where available by references, to decide who in this field is a high quality provider or mediator.  The lack of a credible high-level qualification in most countries inhibits mediation being widely regarded as a true profession.

One reason that it has been difficult to achieve a consensus that credentialing is useful is that mediators have resisted defining their role. Many see mediation as a creative form that transcends categorization. Many think of themselves artists, magicians, free spirits, a unique case, and that there is no yardstick that can be applied to measure competency.    Mediator practices may indeed be widely divergent, but this resistance among mediators has resulted in mediation practice in most countries being balkanized into groups populated by competing providers.  Ironically, for people skilled in the art of convening warring parties and getting them to communicate positively, mediators often do not apply among themselves the very skills they employ with their clients to arrive at a credentialing process that works for a variety of mediation styles.

In short, absence of recognition as a profession restrains the field’s growth.  This can be changed, but acceptance and support by mediators, who have so far hesitated to drive that change themselves, is necessary.

 

IMI Certification

IMI has stepped up to the plate to fill this need and provide a set of international standards for mediators. IMI’s credentialing function is a user-driven initiative.  It emerged from 18 months of consultations with hundreds of users, mediators and providers of dispute resolution services worldwide.  Patterns emerged that were remarkably common and consistent around the world – though different countries were inevitably at different stages in the mediation development cycle.  One of the most consistent issues to emerge was that IMI found that users want a reliable, impartial and credible mechanism to find quality mediators.  They also need more reliable information to guide them in selecting suitable mediators.  Providers and mediators want to give that information with the minimum bureaucracy and cost.  These needs – from the demand and supply sides of the field – were not linked up on a single international platform.  IMI’s scheme focused on addressing both needs, internationally.

IMI convened an Independent Standards Commission of over 50 international thought leaders.  The ISC is independent of the IMI Board and establishes the conditions, standards and criteria for IMI Certification.  It represents all stakeholders – users, providers, mediators, judiciaries, educators, trainers and regulators.  All dedicate their time and expertise pro bono. For a limited period, the experienced mediators on panels of carefully selected leading provider and professional bodies have been admitted to IMI Certification without undergoing a competency assessment.  Thereafter, mediators can only become IMI Certified by being approved by an assessment body having a program that determines competency based on criteria established by the ISC.  These criteria are applicable irrespective of a mediator’s preferred mediation styles and the techniques employed to mediate.[3]

 

IMI’s Wider Mission

IMI’s over-riding vision is to stimulate positive change in the dispute resolution field.  Establishing criteria for certifying the competency of mediators is an early element of the mission because without mediator quality at the delivery end, further change will be unattainable and not worth the effort.  But, given an established mechanism for determining minimum quality standards for mediators, there are other critical parts of IMIS’ mission that must be deployed:

Promoting to users (a) mediation, and (b) how to find competent mediators  IMI can use its position as an independently-funded non-profit body to promote both the practice and the professionals in credible ways directly with users and relevant user groups, professional bodies, government agencies and judiciaries, articles and editorials, interactive channels and other strong media.  This will help mediators and providers by growing awareness and understanding of mediation among more users and avoiding duplication of effort.  IMI will seek to promote mediation in collaboration with government and inter-governmental agencies, all of which can make a dramatic difference by being seen to support, encourage and fund a faster uptake while striving for high standards and quality.

An Inter-Cultural Mediator Certification is also being developed aimed at IMI Certified mediators involving advanced knowledge and skills for handling disputes and negotiating deals involving people and issues with different cultural influences.

Providing impartial guidance and information to users of mediation services, including links to IMI qualifying institutions (Providers, Trainers and other bodies). As IMI will not provide mediation services, or benefit from mediations, IMI can be a credible source of objective information of the field.

Making available informative downloadable material about mediation, assisted negotiation and dispute resolution to assist and inspire users.

Providing support for the creation and advancement of mediation bodies in countries where mediation is unknown or poorly practiced.

Encouraging experience-generation schemes for newly-qualified mediators and those with limited experience and untried skills – providing links to those schemes worldwide.

A Scholarship Program designed to enable aspiring mediators to be properly trained, gain experience and qualify for IMI Certification.

A convening function to help bring disputing parties together.  Because IMI will not itself deliver mediations, it is in a unique position to propose to parties whose dispute has become a matter of public record that they consider mediation

A leadership role to help drive mediation into new fields  Examples include deal-making and negotiation, the relationships between Regulators and those regulated, class action and mass tort mediation, the use of mediation in WTO disputes and other inter-nation disputes, and online mediation.

 

The Road Ahead

Mediation has come a long way, but still has a long way to go.  And in many places it really is on the starting blocks, with tremendous potential. Setting high, visible, credible and consistent standards, everywhere, is a vital step, already achieved by some institutions but not by all.  Once done and more widely appreciated, mediation will become more respected and its practitioners will accede to true, independent professional status as mediators.  The mediation pie will then expand.

Bringing mediation out of its closet is one of the most exciting and important developments of our time.  All stakeholders, including users, providers, mediators, judiciaries, educators, trainers and regulators, can play a critical role in this endeavour.  If they choose to do so, they will practice an important principle preached by Mahatma Gandhi: You must be the future you wish to see in the world.

 

Michael Leathes spent his career as an in-house lawyer for a number of multi-national corporations.  Over the past 20 years he has been a strong promoter of mediation for achieving business outcomes.  He retired in 2007 to assist IMI achieve the above goals.  All comments on this article are welcome. To comment, please click here

 

[1] Reprinted with permission from: New York Dispute Resolution Lawyer, Fall 2009, Vol. 2, No.2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

[2] IMI’s founders and fund providers are the American Arbitration Association/International Center for   Dispute Resolution, Netherlands Mediation Institute, Singapore Mediation Centre and Singapore International Arbitration Centre.  IMI is registered as a Foundation in The Hague.

IMI’s Chairman is Michael McIlwrath, Senior Counsel – Litigation, GE Oil & Gas.

[3] To view the Criteria for Assessment Programs qualifying Mediators for IMI Certification, please click here

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