Non Attorney Mediators- Not Welcome?!?

Non Attorney Mediators- Not Welcome!?

Recently someone said having mediators on court mediation rosters be limited to those who are also an attorney was a reasonable rule.

I do not agree.

I vehemently disagree.

Things are dangerously becoming more and more an “us versus them” situation. The two sides to the “us and them” issue are non attorney mediators and mediators who also happen to be attorneys. I happen to belong to the “us” side.

Before I continue, let’s go back to the first paragraph. I ask each of you reading this, is it reasonable to have only mediator’s who are also attorneys be allowed on court rosters? Please, leave some feedback. Let’s hear it from both sides.

By the way, a reason the person gave for the law degree requirement is because of the education you then know the mediator has which then qualifies them to be on the roster. Yes, being educated and possessing a law degree gives a mediator a wealth of insider knowledge of the courts and the understanding of the various jargon and processes but does that translate into a requisite for a mediator?

If this continues, the mediation field for those without law degrees is going to shrink and I believe it can eradicate people like me from being involved. As I type this, I realized perhaps an important point to make- the ‘reasonable comment’ was in relation to a court service where the mediators will be paid. This brings up another question I have- is it ok for mediators without a law degree to mediate in the courts as long as they are volunteers? When it comes to getting paid, is that just for attorneys?

What is a mediator without a law degree to do? To answer my own question with a question, does it matter if I applied for one of these positions and said that I have a Masters Degree in Dispute Resolution? Surely that would fulfill the education requirement… right?

Another potential way to prevent the “us” from losing out to the “them” is (drum roll please) certification. Yes, certification. It seems like all talk on the Internet recently has been around the certification process of mediators. Could a national or international certification scheme help mediators in this case? [read recent comments on mediation certification at Mediation Channel, Mediate.com, Negotiation Law Blog and the Ombuds Blog]

Mediators need to increase their power and certification might be the way to do that. Yet another question for everyone- is it healthy that the ABA’s section on Dispute Resolution is arguably one of the most powerful ADR groups in the country, maybe in the world? What does that say for the field since it is an attorney based organization?

If the ACR could get a certification scheme up and running that could help level the playing field that seems to be titling in a direction heavily towards “them”. I recently became certified by the International Mediation Institute and they very well can potentially help as well. What I particularly like about IMI is 1) they are a non-profit organization and 2) they do not offer any services but are instead just a location for people to find qualified mediators.

The way I see certification helping is I think it will make choosing certified mediators become a ‘reasonable’ choice. A proper certification program, which I purposely will not go into here and that is a separate issue in itself, would give its mediators credibility as they have proved through the certification process they are educated, knowledgeable and have the requisite skills needed to mediate. There, no law degree is required anymore!

I would like to keep this short as many people have already given opinions recently on the pro and con side of certification of mediators. What I am trying to do is show a new angle of how it might benefit mediators.

It does not have to be “us versus them” but under a united certification plan, we all can be “us” under a process where a law degree does not exclude people.

6 comments:

  1. Jeff, bravo for shining the spotlight on this issue. I'm an attorney, but it makes me crazy when I see my fellow lawyers seeking to privilege attorneys who mediate over mediators who aren't attorneys. At the ABA Section on DR conference in NYC, I heard members of our field - even respected leaders who should know better - argue that there are cases only attorneys should be permitted to mediate. What nonsense. I work closely with three colleagues who routinely mediate so-called "legal" disputes who aren't attorneys and who are extraordinarily talented at helping disputants get to yes and reach value-creating agreement. You and I haven't worked together, but something tells me that you are also one tremendously skilled dispute resolver. The notion that attorneys are somehow qualified to mediate by virtue of their profession of origin is utter nonsense. This is one urban legend that just won't give up the ghost.

    However, Jeff, I fear I must disagree with you that ACR will be of any use here. As I have pointed out in several blog posts, there's real concern that ACR's certification scheme will create different divisions and rifts within our field, if the writing of at least one individual involved in spearheading such efforts is any indication.

    If certification or licensing is the way to go, and I remain unconvinced that it is at least for now, all of us need to beat down doors that bar entry to any of us simply because of profession of origin, philosophy of practice, or any other factors unrelated to our ability to mediate.

    Thanks as always for writing a thought-provoking post, Jeff!

    ReplyDelete
  2. Diane,

    Thanks for visiting and leaving a comment (as always!).

    The question I ask (and not just to you)- since we agree that barring mediators from rosters just because they are not an attorney should not be occuring- what can be done about it?

    ReplyDelete
  3. Yea! Jeff!
    I've been beating the drum about this since 1993. Now mediators have become more mainstream, so maybe we have the power to stand up for our qualified rights. You are either an attorney or a mediator. Or your practice is flying in the face of state statutes on mediation, which happens too often here in Houston Courts. It is a real travesty the way some attorneys approach mediation. They use is as a negotiated settlement agreement. They aren't third party neutrals. And it is even a worse travesty when quality mediators are ignored for the thousands of mediations court appointed because they are not attorneys.

    This profession has so much potential, but it gets lost with the old guard who hasn't stood up for mediation as a real profession by professional mediators. I'm glad to see some young blood who might be able to help us older ones break through the professional barriers.

    You are either a veterinarian or a dentist. You should practice as one or the other. This profession (mediation) needs to adhere to the definition of each profession.

    Kudos!

    Barbara Manousso
    Texas Credentialed Distinguished Mediator who has had a good practice since 1993, but it could be better.

    ReplyDelete
  4. I a reading your posts with interest as I am considering applying for the Dispute Resolution Master's program at a local college. I was going to get an MBA but changed course once I heard about the DR program because it sounds more like "me". I already got the looking-down-the-nose treatment from an attorney when I asked her for her opinion of the program. She stated that she knows someone who had taken the seminar at the same college and sniffed, "I don't know why." That made me wonder (1) if attorneys in general are looking at ADR mediators as pests who should be exterminated as soon as possible and (2) how I would actually use the Master's other than going up against said attorneys who think that only attorneys should mediate.

    Any thoughts would be appreciated as this program is expensive and I need to be sure that I can get work in the field once I am done. Thanks!

    ReplyDelete
  5. Hi, you made very good effort to make this knowledge full post, your post provide me some great information about the topic above written. You keep all things around a central topic this increase my interest , you did amazing work .
    law firms

    ReplyDelete
  6. It is indeed a great article to obtain useful information on this subject. Keep posting.

    ReplyDelete

Popular Posts