The Dilution of Mediation

Mediation is becoming diluted as a form of alternative dispute resolution. Despite being touted as the be-all, end-all of resolving conflicts, an ugly truth has emerged. You don’t need qualifications, training, or expertise to be a “mediator.” You just have to call yourself one.

This would be absurd in any other profession where dispute resolution was key. Yet in mediation, the sole requirement for you to “mediate” a case is to call yourself a mediator and run with it. You need no training in persuasion, balancing power, or helping parties find alternative outcomes. When the bodies that govern the training and expertise of mediators don’t even bother to police themselves, the term means nothing.

Consider the Volunteer State. There is a specific rule that governs the conduct of mediators. It’s Tennessee Supreme Court Rule 31. If you are to become a “Rule 31 listed” mediator you have to pay out thousands of dollars in training fees to get “certified.” Then you submit an application and take continuing mediation education (CME) classes to keep your Rule 31 status.

The dirty secret of a “Rule 31” listing is that it only puts you on a list for judges who need a mediator at a moment’s notice when parties can’t agree on a neutral. It also grants you qualified judicial immunity when performing a Rule 31 mediation. That’s it. You’re arguably better off marketing yourself as a dispute resolution professional than spending time attending the CMEs that tell you to advise litigants to pack a lunch and bring a book because they’ll be in sessionĀ all day.

This means anyone can hold themselves out as a “mediator.” If you want your local pastor to “mediate” your divorce, they’re more than capable of doing it. Someone without a grasp of the law, persuasion, ability to “expand the pie” beyond nominal dispute resolution boundaries can “mediate” a case. When that person does so, their case is more than likely headed to trial.

In the legal profession, this would be untenable. Lawyers have to get a JD, pass the bar to show they’re minimally competent when practicing the law, and continually update themselves when it comes to their chosen profession. No one in their right mind would go to a criminal defense attorney and ask them to handle a bankruptcy case. The criminal defense attorney would be either desperate for money or foolish if they took said case, and an ethics complaint would most likely be in order if the crim law attorney held himself or herself out as a bankruptcy attorney.

Yet in mediation, anything goes. The party who wants to use Jim Bob from Farmer’s Insurance as the neutral of their choosing gets to do so as long as the other side agrees. Never mind Jim Bob has no training in mediation, doesn’t understand the process, or even has a solid grasp on the law that governs the case in dispute. As long as Jim Bob from Farmer’s calls himself a “mediator” he can mediate the case as he pleases, and to the parties’ detriment.

One way to fix this problem would be for mediation groups like the Alternative Dispute Resolution Commission to self-police, ensuring those who held themselves out as “mediators” actually had the minimal training and competency to fulfill a neutral’s role. This has worked wonders for the practice of Collaborative Law. If you bill yourself as a Collaborative practitioner, someone’s going to eventually ask you where you trained, who trained you, and what practice group you associate with. Insufficient answers will find you pressured to removing the “collaborative” word from your business cards.

If we set standards for training, expertise, and qualifications and enforced them for mediators as stringently as we do for doctors or lawyers then mediation standards would increase. Client satisfaction with the process would go through the roof, because the layperson would have to put in effort to see the process work. Fewer cases would go to trial, because the experienced professionals worthy of the label “mediator” would actually be able to use it.

Unfortunately, because we love to keep the playing field open, and want to see anyone become a “mediator,’ we will dilute the meaning of a very precise term in dispute resolution. And when words have no meaning in an alternative dispute resolution process, as they often do in real life, it’s easy to see why Mediation is Dead.