Judy: We, as mediators, operate pretty much behind a scrim of privacy and confidentiality. It’s inevitable, because mediation generally happens behind closed doors and in confidence. We are as good as our reputations, but it is all word of mouth. As mediation grows, it needs some kind of institutionalization – but without the drawbacks of bureaucracy and complexity. Right now, many provider organizations and Mediator Colleges or Academies are their own competency-makers and credentialing agencies. Most don’t say what criteria they apply to assess a “competent” mediator. It is pretty confusing to all but the most sophisticated of users. User feedback to IMI during its Consultation Process last year indicated that users feel that certification would substantially aid their task identifying competent mediators. This is the marketplace speaking. We mediators should listen, then act. That’s why I accepted the invitation to join Mike as Vice-Chair the Independent Standards Commission convened by IMI.

Mike: Whether dealing in an international context or a purely domestic situation in any given country, an essential part of my job is to know about the different options available in dispute resolution. And while we have access to as much information as anyone else, we often find it confusing when it comes to assessing the competency and suitability of the third parties we would like to appoint, and this is true for both arbitrators and mediators. So if that is the situation with sophisticated users like us, then it is fair to assume that there is indeed a broader and even desperate need for more transparency and better information to aid users in making informed choices about private dispute resolvers. We would all like to see mediation grow as a global practice and profession. It is one of the few things that really is in everyone’s best interest. But the absence of standards and the gaps in information, or the asymmetries in access to that information, clearly restrict that growth around the world. Primarily, I have agreed to be Vice-Chair the Independent Standards Commission with Judy because I think the creation and promotion of standards and better access to information can help mediation succeed – better and more quickly - as a global profession.

2. Judy – in the US, why are there no national standards for mediators and are they going to come?

Judy: Certification and competency standards are inevitable, even though attempts by the ABA Task Force on Mediation Credentialing and by ACR to achieve this have stalled. These sterling efforts were defeated by structural considerations – effectively, the balkanization of mediation services – not because credentialing was itself a bad idea. It is only a matter of time before someone completes the task. IMI is different from past efforts first because it takes a global perspective, and also because it is based partly on user feedback as a standard-setting criteria. To my mind, this is far better than a State judiciary or legislature listing. It is important for the supply-end stakeholders in the field – the full-time mediators and providers – to have a say in shaping the inevitable. Through IMI we are being invited to do that. We need to seize the opportunity to define who we are, what our skill set is, adopt a universal code of ethics, and allow monitoring feedback. It is not radical. We need to speak up!

3. Mike – you are a senior in-house attorney with one of the world’s largest international corporations. Why is the competency of mediators important to international business?

Mike: Well, I know that as a former legal director you are playing the devil’s advocate by asking what seems to be a rhetorical question, but I suppose there may be some for whom this is not so obvious. Putting aside the issue of competency itself – which is important in everything - the real question is why is access to information about competency important? We see this in two areas. The first is just getting to mediation in the first place. If information about the process itself and about the third parties who may be involved is accessible to us but not the other side, then we are not going to get to a mediation in the first place. End of story. So you need some degree of transparency in order to build confidence in the process and the practitioners just to get things started.

4. Judy, let me turn the same question over to you from a professional perspective – why is competency certification important to mediators?

Judy: It’s the mirror image of what Mike has just said. But let me add that mediation is a subjective skill, very nuanced, and not easily tested. We talk about “judicial temperament” - a huge plus for those lawyers who become judges. We talk about the art of cross-examination and lawyers who come alive in the courtroom – these are all demonstrable skills, and for sure, heavily innate. Mediators “bring peace into the room”, but they don’t perform magic, and the process of peace-making is not mystical. I have met many users who would not use mediation again because they have submitted a dispute to an untrained, unknowing “mediator” who will use any heavy-handed technique to “settle” a dispute in order to advertise that he/she has “settled” the matter. Unskilled mediators consider their settlement rate the way Major League Baseball players view their batting averages - as a factor determining their reputation. This hurts all of us who know that what we bring to mediation is invaluable, but that it is the parties who settle a dispute, and that all of this is very contextual, not instantaneous, and nuanced. Let’s also use competency certification to “bring sense into the room”.

5. Both of you – in brief – is mediation a profession?

Mike: Although I would very much like it to be the contrary, I would have to say that mediation is not a profession, at least not globally. At best it is an emerging profession, as several have said before me, and is in different stages of development in countries around the world. Further, its growth is often inconsistent in ways that are not always beneficial to the development of mediation as a profession in its own right. For example, in our experience in countries where mediation is still in incipient stages of development, there is no practice of mediators telling parties beforehand which code of ethics governs their conduct or which disciplinary process will apply if needed. Most parties would feel better about the process – and more inclined to try it – if they knew they are becoming involved in a process that is not just a subsidiary or derivation of the local legal profession. True “professionals” will subscribe to a comprehensive code of ethics and will welcome accountability rather than avoid it. If they are rarely used, these are hallmarks of any real profession.

Judy: I agree - we are not yet a profession. “Throw a stone, hit a mediator.” I do not think I know anyone – psychologist or lawyer – who does not consider him/herself a mediator. As the market tries to figure out who is a mediator, and then, just as importantly, who is competent for a given mediation, it needs to be able to sort out skill sets and training background. There is absolutely no single place even within a relatively small geographic area like a US State, where one can go for truly reliable competency information. Groups like the IAM and ACCTM, and there are a few others in the world, were created in part to identify the “best of breed” on an international basis. But it needs to be more than a listing of resumés. IMI Certification can help achieve this goal.

6. Do professional mediators have anything to fear from having their competency certified?

Mike: Not unless they fear the growth of their own practices and mediation generally! I honestly do not see why anyone would fear an opportunity to convey at once a message about their abilities as a mediator and bring it out into the open in a credible fashion where potential users like us can see them. For example, one of the ideas being discussed with IMI is the use of feedback and making this available to both mediators and potential future users in the form of digests. Whether or not this is ultimately the strategy adopted, I think the availability of information like this would make parties more open to mediation and as a practical matter aid them in choosing a mediator. And I think mediators would also benefit from hearing from parties about their performance. No one can doubt the effectiveness of feedback as a mechanism to rapidly improve performance, regardless of whether the subject is an entire business or an individual. For example, my own company, General Electric, has adopted a method called “Net Promotor Score”, which is a process of actively seeking out data about customer satisfaction and, importantly, whether our customers would recommend us to others. Like other large companies, we also have a formal system for ensuring that our employees receive timely and comprehensive feedback on their individual performance, which is also useful for prospective managers when employees apply for promotions or new positions within the company. Yet I have never had the occasion in which mediators (or arbitrators) have asked us what we thought about their management of the dispute, although to be honest parties do not usually offer to tell them. In fact, it is a shame that after all the hard work that a neutral can put into resolving a dispute, no one has yet developed a responsible way of harvesting that sort of information to aid both the mediator and future users.

Judy: One of my frustrations in this field is that it is not a field at all. I agreed to teach mediation at Cornell in order to read the literature of negotiation and mediation, which, having read, feel that it should be mandatory for becoming a mediator or an advocate in mediation. I do not wish to exclude anyone from our field. However, I wish to work among the most committed and educated of our trade. We cannot be a profession without standards, which means approved training and certification. If that means “excluding” the uncommitted, the lazy, the retired judge looking to top off a pension because “mediation” is a no-brainer, easy-to-do, occasional way to pick up revenue, or the person with a contact list but little skill, or the “gee, anyone can do this” wanna-be, I am willing to “exclude” those people. I want to be part of an inclusive group of committed, dedicated, passionate and educated-in-our field commercial mediators. Anyone willing to work to that end will not be excluded, has nothing to fear and has much to gain.

7. IMI is proposing to require Certified Mediators to exhibit high standards – Why not certify basic competency as a result of testing in training programs rather than publish digests of feedback from users?

Judy: Most commentators during IMI’s Consultation Process felt that IMI Certification should be for experienced, practicing mediators, otherwise, it would be meaningless to users. Many, however, did not want to belong to an exclusive club - although, in fact, we do belong to one! On the other hand, the IAM, the ACCTM, CPR, the European Parliament, and others are constantly stressing the importance of excellence. It is not inconsistent to say that “anyone can join”, provided “anyone” meets high standards for admission. Mediation should not be a full-employment act for anyone who decides to dabble. One of the responders during IMI’s Consultation Process said, “mediation should be an elite statement, not an exclusive one.” We are an emerging profession; it behooves us to set very high standards. When we can meet those, we can lower the bar, if the marketplace desires, or set varying levels of competence. But to propel ourselves into proper professional status, to deliver to users what they need to make the right choices, we need more than training – we need to prove that in practice we are competent.

Mike: Of course any standards must respect the fact that users will have high expectations of competency and a single bad experience may turn them off forever. Initial high quality training is vital, and so is ongoing training and education. But the barriers to entry, to certification, must not be difficult to attain for any competent mediator. It would be counter-productive to impose unnecessary bureaucracy or undue costs through certification requirements that could actually prevent the growth of mediation in practice areas and emerging markets where resources are already scarce and mediation is badly needed. At the end of the day, what will ultimately prove competency is the experience of users.

8. Is this an initiative to certify competency in the countries where mediation is practiced most often? You have both said it is a “global” initiative, but how?

Mike: We need to find a method for certifying the competency of mediators that both respects and at the same time transcends local conditions. It needs to be applicable to lawyers and non-lawyers alike, and to mediators from environments where mediation is virtually mandatory all the way through to countries where it is virtually unknown. For companies that do business locally in many different countries, as well as transact business from one country to another, worldwide applicability is important.

Judy: I would add two observations from the perspective of mediators. First, one of IMI’s two competency certifications is focused on intercultural mediation competency. There is a substantial opportunity for mediators from all over the world to be selected to act as a neutral way outside their historic operational area. We should globalize mediation practice to the full, share best practices more widely, and expand. Competency certification can offer a way to achieve this. Secondly, in the spirit of true professionalism, IMI Certified Mediators would be encouraged, through earning competency points, to engage in activities of professional leadership – such as supporting embryonic mediation ventures, mentoring schemes and enabling less experienced mediators to shadow them in real mediations.

9. And what about mediators who handle local neighborhood and social disputes. Can their competency be certified too?

Judy: That’s the goal. We need to start somewhere, but we don’t need to draw lines in the sand of development and progress.

Mike: Although I’m conscious I have an international corporate background, I see no reason why competency certification should benefit only large corporations and commercial mediators. On the contrary, I think that if multinationals like us really do care about the local communities where we are present, and have a commitment to public service and social responsibility, this is where we can show it. We are an employer and are citizens of the communities where we do business, and are as just as much impacted as anyone else by issues of employment, social and community relationships, and so on.

10. Project yourselves 5 years ahead. What do you envisage?

Mike: Hah! I see myself not having made a penny myself from mediation but hopefully having at least contributed towards making the world a better place for my children’s generation. That probably sounds silly or ridiculously grandiose, but as an international litigator what else are you going to tell your grandchildren? That you won some arbitrations and settled some cases? It’s a tough world that’s not getting any easier. The next generation will need the right tools and the best people everywhere and anywhere to face up to the problems we are leaving them. I will accept being called naïve and say that I really do believe that mediation is part of the long term solution. By leveraging the terrific reputations of the organizations and brilliant professionals who are already part of this initiative, we really stand a chance of making a difference. Maybe we will succeed, or maybe not, but as I have said many times when trying to get another party to mediate – the payoffs are so great, and the downside non-existent, how could you not want try?

Judy: The issue is what form will competency will take. Responsible mediators – and thankfully that comprises the majority of us – will take a more engaged and involved role in shaping the future of this quasi-profession. As users like Mike express their needs more openly, I believe an increasing number of mediators will seek certification. They will do so not just for their own professional development, but also because they genuinely feel a need to move with the times, to be the future rather than let others, like regulators, determine it for them. While the parameters are established, there will be debate, challenge and sometimes disagreement, but I think mediation will emerge as a profession. It’s inevitable, if we make it happen.

Leslie Mooyaart: Judy and Mike – Thank you for your honest and refreshing insights. As you know, I have experience on both sides of this equation – I have been a corporate general counsel and therefore a user, and now I am a mediator and therefore a service provider. What I take out of your comments most strikingly is that, though you approach these issues from your different positions, your interests coincide. I wish you well in leading the Independent Standards Commission which, like you, I hope will recommend a competency certification scheme that addresses both user and mediator needs alike. Judy, the last thing you said reminded me of one of one of the most important pieces of advice handed down to us. It came from Mahatma Gandhi – “You must be the future you wish to see in the world”. I wish the Commission well in this important endeavour.

The Hague, The Netherlands – January 10^th 2008