{"id":1406,"date":"2014-04-11T22:16:16","date_gmt":"2014-04-12T02:16:16","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=1406"},"modified":"2014-04-11T22:16:16","modified_gmt":"2014-04-12T02:16:16","slug":"licensing-mediators-aba-dr-iv","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2014\/04\/licensing-mediators-aba-dr-iv\/","title":{"rendered":"Licensing Mediators — ABA DR IV"},"content":{"rendered":"

At the Miami ABA Dispute Resolution Conference, James Coban, Janice Fletcher, Art Hinshaw and Susan Yates addressed the provocative topic, \u201cCosmetologists Are Licensed, Why Aren\u2019t Mediators?\u201d<\/p>\n

Ms. Yates, of Resolution Systems Institute, clarified some terms of art for the sake of the discussion.\u00a0 \u201cCredentialing\u201d is the big umbrella, the widest term.\u00a0 \u201cCertification\u201d is what a court does.\u00a0 \u201cLicensure\u201d goes beyond courts and is similar to how doctors or lawyers professionally practice.\u00a0 She noted in passing that 1500 hours of training are required to practice as a licensed cosmetologist in Illinois<\/a>.<\/p>\n

\"\"<\/p>\n

Art Hinshaw, of Arizona State University, related a story of an Arizona mediator who claimed (impossibly) to have mediated 3000 divorces over a period of 8 years.\u00a0 He was a disbarred lawyer from Vermont who moved to Arizona, and held himself out as \u201cSuperior Court Trained.\u201d\u00a0 A female client seeking divorce mediation became emotionally attached to him.\u00a0 He prepared and filed documents on her behalf with the court, at all times asking her for money.\u00a0 After the (uncontested) divorce was granted he did not inform her of the facts, but rather demanded another $25,000 to \u201cwrap up her case.\u201d\u00a0 She ended up paying him over $87,000 over a year.\u00a0 This also went on with more than 30 other victims.\u00a0 The Bar could do little \u2013 he was not a lawyer and not practicing as a lawyer, and suits for Unauthorized Practice of Law or other civil claims were only partially effective.\u00a0 He was, however, charged with criminal fraud, convicted, and is in prison until 2024.<\/p>\n

Hinshaw articulated strong public policy arguments for licensing:\u00a0 protecting the public from bad mediators (meaning evil, not unskilled); getting information to the public to prevent their being duped; providing a standard of care for negligence claims against mediators; improving mediator quality by imposing a professionally responsible barrier to entry; and enhancing the credibility of licensed mediators.\u00a0 He added that there is nothing \u201cspecial\u201d about mediators that should exempt them from a licensing requirement that is imposed on hundreds of other professions.<\/a><\/p>\n

Jim Coben, who teaches at Hamline, argued against, citing his recent co-authored article in Dispute Resolution Magazine<\/em> titled \u201cThere Ought Not to Be a Law.<\/a>\u201d\u00a0 He first replied to Hinshaw\u2019s story by saying that the law does not provide a remedy to every deserving claimant.\u00a0 What are the unintended consequences of a legislative response to the sad story?\u00a0 How would licensing affect the parties expenses?\u00a0 Administrative expenses?\u00a0 Process flexibility?\u00a0 Party autonomy?\u00a0 Public confidence in mediation?\u00a0\u00a0 In all cases the answer is unattractive.\u00a0 Regulated monopolies impose higher costs on customers and regulators.\u00a0 Parties\u2019 choices are more restricted.\u00a0 And consumption of services is lower.<\/p>\n

So taking aside the single horror story, there is no evidence of harm.\u00a0 No claims are brought for mediator malpractice, and damages from bad mediation are even more elusive.\u00a0 Nor is there a distinction of lodged grievances among states that regulate mediators and states that don\u2019t. \u00a0Indeed, in no state is there a big problem of asserted claims against mediators.\u00a0 That is, there is no consumer-led demand for licensing mediators.\u00a0 Defining the profession is itself difficult: the UMA\u2019s definition would be rejected by a transformative mediator and is different from the EU Directive\u2019s definition.\u00a0 Finally, said Coben, \u201cOften, those crying loudest for regulation are those whose vision of mediation isn’t selling well in the free market.\u201d<\/p>\n

\"\"<\/p>\n

Janice Fleischer, Director of the Florida Dispute Resolution Center, got Coben to concede that lawyers should be licensed, and noted that of the 97,000 lawyers in Florida only 0.4% are subject to grievances.\u00a0 So just looking at whether people bring grievances is not how one should make a decision about professional licensing.\u00a0 Florida mediators include both lawyers and non-lawyers, most of whom welcome credentialing licensure for marketing purposes.\u00a0 In Florida a consumer can look up whether a mediator is certified, in what areas, and whether any sanctions have been levied against her. \u00a0Fleischer also noted that, in Florida, mediators giving evaluations constitute a \u201cproblem\u201d that certification would address (evaluation being prohibited under Florida\u2019s court-annexed rules). \u00a0This point did little to advance her argument in some quarters.<\/p>\n

Indeed, that consequence alone is enough to turn my thumb down.\u00a0 Parties in Florida who seek to learn from a retired judge the likely outcome or probable value of their dispute can\u2019t get it without violating ethical rules? \u00a0I can’t believe it. \u00a0Maybe they do it, but call it something other than mediation.\u00a0 \u201cI’ve scheduled a giraffe on our case next Tuesday at 10:00.\u201d<\/p>\n

\"\"<\/p>\n","protected":false},"excerpt":{"rendered":"

Certification and accreditation aside — should mediators be licensed?<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,35,14,26],"tags":[12,15,33,16],"class_list":["post-1406","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-ethics","category-mediation","category-teaching","tag-culture","tag-mediation","tag-public-policy","tag-small-business"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1406","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1406"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1406\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1406"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1406"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1406"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}