Serving Ohio’s Mediators and those in need of Mediation services

614.321.7922

Monthly Archives

May 2017

Debriefing the 2017 OMA Annual Conference

By | Uncategorized | No Comments

Thank you to everyone who attended our 2017 Annual Conference or made this event possible.  Both speakers were well-received, registrants participated wholeheartedly in activities, and had intense participation in our lunchtime discussion of mediator credentialing.  Our only regrets are that we sold out the room (next year we will find a larger venue) and ran out of time to discuss mediator credentialing (there is much yet to be said on the issue).

But, for those of you who participated, below is a debrief of the Conference:

Dr. Tanya Menon’s “Using Questions to Encourage Collaboration”

For our Keynote speaker, we reached outside of the ADR community and found new insights in the lecture by Dr. Tanya Menon of the OSU Fisher School of Business.

Using a brilliant example of a famous political negotiation, Dr. Menon described how questions can be a highly effective tool of persuasion.  Though mediators cannot apply this type of persuasion directly against one disputant, we can use these types of questions on both parties together (e.g., “How can we better focus this conversation on the interests of the children?”) or to coach individual parties in caucus (e.g., “How could you communicate that to the other side in a way that would persuade them to agree with you?”).

Dr. Menon also made a point that seems to contradict the commonly-held idea in mediation that parties should use “I” statements rather than “you” statements.  Dr. Menon argued that “I” is the least persuasive word in our language.  Though “I” statements avoid making attributions while defining the conflict, Dr. Menon pointed out that persuasion is all about “you.”  Perhaps, an effective mediation should begin with “I” statements and then transition to “you” questions.

Also, we want to thank our attendees for fully participating in the Murder Mystery activity conducted by Dr. Menon.  This was a difficult exercise, and we had a limited amount of time to do it.  The activity was a valid reminder that people tend to assume that everyone else has the same information, when that it rarely the case.

Jerry Weiss’s “Heart Mind and Soul: Insights from a Career of Reflective Mediation and Tools for Reinvigorating the Practice of Mediation”

Then, in the afternoon, we had Jerry Weiss present our Distinguished Practitioner Lecture.

Jerry was able to convey his wisdom about mediation with a variety of anecdotes from his career in civil mediation.  I certainly appreciated his thoughts on using a lengthy introduction to set a positive tone for the mediation, the role of uncertainty in his valuation of legal positions, and his overall aim to bring people into civil interaction until they humanize each other and develop hope in a resolution.  Jerry’s advice on delaying the exchange of numbers, eliciting meaning from numbers, and demanding a variety of numbers-based proposals should be useful to any mediator who faces a positional negotiation over a fixed pie.

I only wish that we had included a role-play performance by Jerry so that attendees could observe a distinguished mediator at work.  Maybe next year!

Awards and Distinctions

Finally, we gave a number of awards at the Conference to people who deserve further recognition.

First, the 2017 Better World Award went to Representative Keith Faber for legislating mediation as a public policy tool in Ohio.  Mediators need the support of our government officials, as most disputants approach these power-based forums before they are pushed into negotiation-based processes such as mediation.  By providing inexpensive mediation for public records disputes, Rep. Faber’s SB 321 is a welcome policy for the mediation profession and an example for other lawmakers to follow.  Furthermore, Rep. Faber maintains a private practice that is largely dedicated to mediating civil disputes.  In a brief statement to attendees, Rep. Faber described his use of mediation skills as a leader and commented that mediation work saves lives.

Also, we awarded our first annual Outstanding Volunteer Award to Linda Norris for reviving the Newsletter, creating flyers to promote the Conference, working on the Credentialing Proposal, and maintaining all of the functions of OMA Secretary.

Thank you all for attending.  We hope to see you next year!

Rebuttal to Prior Article about Credentialing

By | Uncategorized | No Comments

Written by Linda Norris, as a rebuttal to this post.

Credentialing mediators, as astutely outlined in Nathan’s article, is not only good for the profession and all mediators, but particularly good for many of us who are non-attorney mediators. We do not have the legitimacy of a license to fall back on that attorneys have. It doesn’t matter whether or not they are good or bad attorneys, good or bad mediators, the mere fact of having a license gives them a measure of credibility that the rest of us do not have.

What our proposal provides is a relatively uncomplicated and valid process for mediators to establish their bona fides, so to speak. We know that we cannot speak to the quality of a mediator’s practice, but we can be a mechanism for mediators to at least establish their qualifications. In other words, they’ve paid their dues and have met minimal standards of acceptance within the profession. This is important for many of us, especially when we are theoretically competing against licensed attorneys. Face it, the public already places legitimacy at the feet of attorneys compared to the relative obscurity of the mediation profession.

In contrast, however, to the issue of a license that was proposed as a better alternative for mediators than the credentialing process advocated by OMA, please consider what Peggy English and Linda Neilson of the Family Mediators Canada have stated, “..if the field of mediation were to remain a respected and viable alternative to litigation and courts, the mediation community would have to develop a mechanism to promote highly competent specialized family mediation practitioners. Practitioners considered it important that the mediation community set its own standards and assessment processes rather than have them imposed by judicial, administrative, or governmental bodies that possessed little specialized knowledge of the field.” (“Certifying Mediators,” Chapter 21, p. 485, Divorce and Family Mediation, Folberg, ed., et. al.) Licensure was researched as an alternative and found to be wanting for these reasons and for the complex and time-consuming process it would involve. It would take years to accomplish; finding someone to sponsor a bill; working with politicians – lobbying even; writing legislation if passed; developing a bureaucratic structure; and overcoming other obstacles. Two separate credentialing committees unanimously decided that this was not the best choice for our needs.

And, speaking of bureaucracy, it was alleged that the credentialing process would be a “distraction” from the regular responsibilities of the OMA Board. Further, it was asserted within a context of overall sustainability, that volunteers can’t be relied on to do a good job, to stick with it, and to do “due diligence.” Several examples were used to substantiate these points, and it seems that these are specious at best.

First, allegations about the Board not being responsible with regard to the consideration of finances, maintenance of our website, reduced membership, poor conference attendance, and carefully considering the consequences of adopting a credentialing process is presumptive. The Board carefully looked at how the credentialing process would be financed, and it was determined that in the long-run, it would be self-sustaining. Issues of liability were also considered, and it was determined (as Nathan has carefully outlined) that risk to OMA is negligible. It is a serious issue and was not taken lightly. To assert that the credentialing process would be a “distraction” is unfair and without any solid proof. Thousands of NPOs operate on volunteerism. Many volunteers give more passionately to their volunteer work than they do to their paid work, simply because they want to be there and they believe in their cause.

The problems with our website have been detailed in a Board meeting and are being addressed. The problem isn’t that we are “distracted,” but that it costs money to address these problems. Our current provider inherited a flawed program, and it took us a while before we realized that there were several problems. We are not ignoring it and have intentions of finding remedies. As for low membership, it has been stated by more than one long-time member that the membership has ebbed and flowed over the years. We may be at a low point, but one reason may be that we haven’t specifically had a strategic plan for outreach and staying in touch with members. We are working on that. Another remedy is a plan we have for a membership drive in the 2nd half of this year. Its theme is “Each one, Reach One,” and it is the goal that every member recruits one new member. Our plan for this will be briefly discussed at the annual conference. Also, attendance at this year’s conference has increased over last year’s. We also have more plans to improve OMA and our services to our members. The backhanded criticisms of the board were done without knowledge of what the Board is working on or how and what decisions have been made.

It was mentioned in the “con” article that one reason we don’t need a credentialing proposal is because ACR and maybe other organizations offer certification. Well, ACR’s offerings are for specific fields of practice and cost $230.00 a year. Our process is much less expensive. And, once our website issues are resolved, credentialed mediators will be entered into an Ohio data base, not a national one. It would seem that most consumers would first turn to an Ohio service for an Ohio mediator before searching a national data base such as ACR’s.

Another issue which is tied to liability but which was identified with regard to vouching for the quality of a mediator’s practice has to do with the standards we adopted. These are pretty well established throughout the profession. They are standards, not thermometers. We can’t measure quality, unless we develop a very complicated and lengthy process such as that of Family Mediation Canada that requires extensive testing and observation of actual mediation sessions. Even then, you still have issues of subjectivity. It just goes with trying to measure most human activities. ACR has a disclaimer in its application process:
I understand that an Advanced Practitioner (AP) is a member of the Association for Conflict Resolution (ACR) who has met standards specified by ACR that identify practitioners with significant advanced training and experience in providing the specified type of alternative dispute resolution service. However, this designation is not, in and of itself, an assurance of competence, relevant knowledge and experience or quality of the services being provided; and ACR makes no warranties or representations with respect to the work performed by any of its Advanced Practitioners.
All we can really do is attest to the fact that a mediator has jumped a specified number of hurdles, and by and large, meets basic requirements to be a credentialed mediator.

Disparaging remarks were made about the proposal’s language, proofreading errors, ambiguity, and terminology. We invited comments on at least two different occasions and held a Stakeholder’s Meeting to expand the input and flush out problems. It would have been helpful to have had this feedback before the final draft. These are easy fixes. They are legitimate concerns but certainly no reason to throw the baby out with the bath. Even though four of us proofread the document, errors still occurred. That is a universally acknowledged problem with publication of a document and which is why publishing houses hire professional editors and proofreaders. You just get too close to it, and don’t see the errors because you’ve looked at too many times, and are usually reading to see if the last changes got made. The committee welcomes such feedback and members should be assured that these and similar comments will certainly be useful when and if a Credentialing Committee undertakes to implement this proposal.

As regards the issue of other states not adopting credentialing or certification programs, we really can’t speak to why some have and others haven’t. Florida has one but it is through the courts as do some others. Some states have tried and failed because they couldn’t reach consensus. Two successful ones, Texas and Washington were contacted and interviewed by two members of our Credentialing Proposal Committee. Both gave positive feedback, stated that they have had few, if any problems, and overwhelmingly endorsed the process as favorable to their members. Just because someone hasn’t done it, isn’t much of reason not to. Also, ACR has put forth detailed guidelines for adopting credentialing processes. Why would they do that if they don’t think that it is a worthwhile objective?

In all, I hope members will see the value of a credentialing program. As a non-attorney mediator, I certainly expect to derive benefits from it, and I suspect others do too. I think it also adds some additional legitimacy to attorney-mediators as there has been a lot of criticism about attorneys who take the basic 13-hour mediation training and then offer their mediation services to the public. Nathan did a good job of putting forth the benefits. Most of the issues with the proposal itself can be corrected. Many of the negatives are based on speculation and not being privy to Board deliberations and decisions. I will be very happy if this process is implemented, and I get to put Credentialed Advanced Mediator Practitioner on my business cards and website. Please support our hard work and our due diligence. We think we have presented a very comprehensive, well thought out program that is sustainable, realistic, practical, and beneficial to each individual member and to our organization as a whole.

Mediator Credentialing Articles: Pro and Con

By | Uncategorized | No Comments

Mediator Credentialing: An Optional Process that Benefits Individual Mediators, Supports OMA, and Furthers the Mediation Profession

By Nathan Witkin

At the end of this month, you will have the opportunity to vote on an OMA initiative that will improve your mediation practice, our professional association, and the field of mediation in Ohio.  This initiative is OMA’s Mediator Credentialing proposal.  It is the product of years of background research, a full-year drafting effort, feedback from many levels, and many hours of effort.  We are all in agreement that there are many unqualified mediators out there who take attention and credibility away from professionals with specific expertise in mediation.  Our membership requested an optional credentialing process, our Board wanted the benefit of implementing this process, and our profession will benefit from your affirmative vote for this proposal.

 

As explained below, the benefits of a mediator credentialing process include the opportunity for experienced mediators to stand out over less-trained mediators, support for newer mediators seeking professional development, stronger connections within our profession, transmission of knowledge among mediators, a measure of quality control in mediations, and public confidence in the mediation process.  In comparison, the potential downsides are negligible.

First, mediator credentialing will allow you to differentiate yourself from mediators who do not have the training and experience of a full-time professional mediator.  Many people want to be mediators, and there is a myth that professional mediation requires minimal training and experience.  As a result, OMA members compete professionally with volunteers and professionals whose expertise is in non-mediation fields.  Credentialing will thereby allow disputants to find trained and experienced mediators, improving our practices, programs, and profession.

Second, our two-tiered approach offers “Advanced Practitioner” status so that the most experienced mediators can stand out as being exceptionally qualified.  With this degree of respect also comes responsibility to pass on knowledge through training, writing, or mentoring.  These are activities already undertaken by many advanced mediators, and OMA will provide the infrastructure to make it easier for those who do not.  This infrastructure will include a blog where you can post kernels of wisdom, a pool of lower-tiered mediators who need a quick debrief after a bad session, and training events for you to show off the tools you developed over a longer mediation career.

Third, by recognizing and encouraging the transmission of knowledge between more-experienced and less-experienced mediators, credentialing will foster closer relationships within the mediation profession.  Currently, mediation is largely a field of disconnected individuals.  The profession has existed long enough to see practitioners with decades of experience potentially retiring without passing on their skills to the next generation.  Without imposing unreasonable action, the proposed credentialing draft prods experienced and fledgling mediators to form better connections so that the mediation profession avoids stagnation.

Fourth, by recognizing excellence in the field of mediation, credentialing will also allow OMA to provide a degree of quality control over mediators.  With a manageable complaint process, OMA will be able to potentially revoke the credentials or recommend training when necessary.  Texas has applied mediator credentialing for 15 years, and their experience is that complaints about mediators come in frequently, but they are never about mediators who are credentialed by their organization.  By providing a benefit that can be suspended, credentialing will therefore allow OMA to provide a degree of quality control to the mediation profession in Ohio.

This process would foster public trust in our profession without creating entry barriers to non-credentialed mediators.  Remember, non-credentialed mediators will be in the same position whether or not our credentialing process is available.  And, if you do not currently meet the proposed standards, do not be disheartened—a person with no mediation background should be able to attain these standards by the time the public will be demanding that their mediators be OMA credentialed.

 

Now, consider the potential downsides of mediator credentialing.

One criticism is that credentialing will be difficult to manage.  We have addressed this problem with a series of objective, yet meaningful measures of mediator competence.  Because the credentialing process is objective, considering applicants will be as easy as reviewing applications and potentially checking on the information reported.  Independent mediators, interns, or graduate students could be hired to review applications for a decent hourly wage.  Though simple, our credentialing draft remains meaningful by requiring logs of training and experience, an associate to write a “best practices” letter about the applicant, and an open-book test on mediator ethics.

Thus, the difficulty of credentialing was largely undertaken in drafting the credentialing process (a hurdle we have already vaulted).  Implementation is as easy as voting yes for this proposal.  Thereafter, the fees garnered through this process will pay for its management, with leftover amounts going to support OMA (as explained below, this is why the OMA Board decided to keep this credentialing process within OMA rather than creating a separate credentialing organization).

As a related criticism, some may argue that credentialing would be better managed by the government, as opposed to an all-volunteer professional association.  There are a number of flaws with this perspective.  First, if the government could better manage mediator credentialing, the courts or leglislature would have already acted.  The truth is that OMA is quicker, more flexible, and more purely staffed by professional mediators than any existing government body.  We are therefore fully qualified to undertake this credentialing effort.  Second, the government has not proven to be more organized in regulating the mediation profession.  Though the Ohio Uniform Mediation Act copied the national uniform model, a typo existed in the law from 2005 to 2014.  Finally, and this is crucial, every profession has regulated itself first.  Before governments regulated who could practice law or medicine, these professions issued their own professional standards.  Historically, every profession has developed around a body of knowledge/skill until those with this expertise decided to set themselves apart from non-experts—this was always done, first, with professional standards applied internally and, later, with the government adopting and enforcing those professional requirements.  Waiting for non-expert government officials to formulate standards for us would not only be unnecessary and counterproductive, it would also be unnatural.

Another criticism is that credentialing will be imprecise.  Mediation occurs in private settings, and mediator quality may be a matter of debate even among experienced members of our field.  As a result, any efforts to measure mediators against each other will be fraught with difficulties.  However, this is the very reason that our credentialing efforts use objective measures rather than subjective assessments.

Critics may also argue that applicants may be dishonest in reporting their mediation experience and training.  This is, again, why objective measures are preferable—they are more easily verifiable.  To some degree, every established profession requires its members to truthfully report their qualifications.  The credentialing proposal also addresses this flaw by requiring applicants to have another professional verify their skills with a brief letter.  Also, our complaints process and mentor/mentee relationships will provide ongoing oversight of credentialed mediators.

Finally, some critics will argue that mediator credentialing opens OMA to liability.  As the argument goes, if a mediator we credential is sued for negligence or malpractice, then we could be joined as a co-defendant.  OMA considered this risk, and even took steps to create a separate organization to administer Ohio’s mediator credentialing (the Ohio Mediation Credentialing Organization).  Though this course of action would protect OMA from risk, it would also prevent OMA from obtaining the benefits of administering Ohio’s mediator credentialing.  The OMA Board considered this tradeoff and found the benefits to outweigh the risks.  All mediation organizations are hurting right now, and the possibility of receiving an extra source of funding was too much of a benefit to pass up.  The risks are minimal because mediators are rarely sued, and when they are, it is difficult to prove proximate cause to damages in order to establish liability.  Again, Texas’s mediator credentialing organization has operated for 15 years and has never been involved in a lawsuit.  Thus, the chance that a mediator (especially a credentialed mediator) would be sued is small, and the chance that we would be brought into a lawsuit is even smaller.  Regardless, we are shopping for insurance, though mediator credentialing is not a product that has been created and tested by insurance companies.  Also, our credentialing process includes an open-book test that is designed to be a refresher on mediator ethics, and we are looking into purchasing insurance for our credentialing efforts.

If you, personally, do not believe in mediator credentialing, you do not have to participate.  Because this is a voluntary process, not applying for credentialing will maintain the current status quo of your mediation practice.  Though this process may not be for you, there are trained and experienced mediators who are looking to stand out with any additional badge of expertise.  OMA aims to meet this need as part of its efforts to promote the professional practice of mediation in Ohio.

 

As a final note on our efforts in creating the current credentialing draft, the Credentialing Committee has exerted an amount of effort on the current draft that is not likely to be replicated.  The last time OMA attempted a credentialing draft, the process lost steam, and it was another 5 years before the political will culminated in another effort.  Over the last year, our Credentialing Committee met in person for four day-long meetings (with members driving a total of 2,280 miles), had four lengthy conference calls, produced 8 separate drafts of the credentialing proposal, consulted the OMA membership twice, conducted independent research, and consulted stakeholders, courts, insurance companies, and credentialing bodies from other states.  If this credentialing draft is not approved, the prospects for future credentialing efforts will be grim.

In conclusion, OMA’s current credentialing effort offers substantial benefit to the mediators who are interested in becoming credentialed and should create long-term benefits for the profession of mediation in Ohio.  Our Credentialing Committee has channeled a large amount of research, information, and feedback into the proposed credentialing process.  We therefore encourage you to vote your approval for OMA’s mediator credentialing process.

OMA Credentialing:  Wrong Proposal, Wrong Time

By Jay M. Patterson

Members should vote No on the OMA proposal to implement mediator credentialing.  Although the goals sought to be achieved by the proposal are laudable goals, the proposal will either not achieve those goals, or those goals could be met through other means without the negative consequences that would be brought on by the implementation of the plan.

 

Perhaps the most fundamental reason the proposal should not be adopted is that it attempts to achieve or, depending on your perspective, impose a professional standard through a not for profit organization that utilizes all or virtually all volunteers with no real enforceable job duty reporting structures to ensure such an ambitious endeavor will get carried out consistently, thoroughly and sustainably.  In such a model, virtually no one is getting paid to do their job fully, vigorously, and with due diligence.  Although the proposal does call for a paid administrative assistant to process applications and perform clerical duties, the real work of decision making and verification, if it is done at all, is to be done by volunteers.  Given the current state of OMA’s modest financial resources, it is questionable whether it is a good use of its treasury to pay a person to do mere clerical duties.  Further, even if the proposal magically called for all credentialing personnel to be paid, the revenue generated from the plan would not be sufficient to create enough financial incentive to ensure the plan is carried out with due diligence in the way that it likely would be if the duties were staff’s day job.  As the proposal is constituted, no one stands to lose their livelihood if they do not perform their job dutifully and well.  As a past Vice President, President, Immediate Past President and longtime member of OMA, I have seen the energy and capacity of OMA ebb and flow over the years.  I know first-hand how difficult it is to create and implement initiatives that over the long run are meaningful and sustainable in an organization that has no real job-reporting responsibilities or economic incentives for thorough and timely execution of job responsibilities.  When faced with the many competing family, employment and other responsibilities, work on volunteer responsibilities is often the first thing that is sacrificed.

 

Second, the plan does not require verification of some of the required standards.  It allows for verification of such things as an applicant’s alternative to a bachelor’s or higher degree or of the hours or number of cases mediated, but it does not require it.  Moreover, some of the standards are not only vague but highly subjective.  (See Section VI. A. 1. a. and b., for example.)  Combining a lack of required verification with vague or subjective standards through volunteers who have no real economic incentive to seek verification will likely create a dangerous scenario where some proffered credentials are inconsistently approved or not approved or not verified at all.  This, in turn, will lead to the appearance of true professional standards but in reality is anything but that.  If the standards are not carried out thoroughly and consistently over time with due diligence, it will represent, at best, a hollow promise to the general public and, at worst, a misrepresentation.  Standards that are not real are worse than no standards at all.  While, as will be noted below, I favor having standards that are real and clear and verified by professional regulators, at least the current status quo without standards on the state level, avoids a hollow promise or a misrepresentation.

 

Third, the proposal has and will continue distract OMA as an organization from advancing the field in more achievable, realistic, and sustainable ways.    As evidence of the assertion that credentialing has and will act as a distraction from higher priorities for OMA, I offer three observations: 1. Despite the current version of the OMA web site having gone live some time ago, parts of it still do not function properly.  For example, perhaps the most important part of the site, which most impacts the profession’s interaction with the general public, i.e. “Find a Mediator,” still does not operate properly.  In multiple attempts, on different computers I was unable to do a search for a mediator in the way that the former OMA web site could.  Previously, one could search for a mediator by the type of dispute, geographic location, etc.  That tool is especially useful for a person who is trying to find a mediator according to criteria important to the person doing the search as opposed to looking for a mediator already known to the person.  That function appears to not be available currently.  The current site only allows for a list of mediators which is not especially useful to the general public unless one is looking for a specific mediator.  Moreover, if one attempts to display the list in alphabetical order, the list does not appear in alphabetical order.  The site also purports to allow one to display a list of mediators in “last active” order, whatever that means.  However, when I chose that function, the same exact list as the incorrect alphabetical list appeared.  2. Attendance at the OMA conference has been abysmal in recent years.  From my time on the board, I recall conference attendees in the area of 100 or more.  Those in attendance at recent conferences, especially last year, can attest to attendance falling far short of 100.  3. OMA membership appears to be declining.  In my time on the board membership was also in the neighborhood of 100.  Based on a look at the OMA web site, it would seem current membership is far below that level.  Unlike prior years, I believe there is now only one court that is a member of OMA (and that one court is only a member because I have asked the court I work for to be that member.)  Having an effective professional organization requires real, nuts and bolts organizing that involve such things as member and officer recruitment and retention, and building the treasury so that those human and financial resources can be utilized to advance the field.  There are also more pressing priorities that OMA could and should engage in that would have a greater impact on advancing the field and many of the goals professed to be achieved by the proposal.  For example, OMA could do more outreach to governmental entities, private businesses and civic associations as well as to other business and professional associations to tout the benefits of mediation, encourage the creation of quality mediation programs, or explore partnership initiatives to help disputants consider mediation.  Such efforts may not be flashy and glamorous but it is the life blood of the long term success of any professional organization.  The human resources and energy consumed by the creation and implementation of the credentialing proposal has and will continue to diminish the capacity of that OMA is in its current evolution to advance the field in other more meaningful, sustainable ways.

 

Fourth, and related to the above reason the proposal should not be adopted, the human resources needed to execute the proposal will deplete the pool of people who will serve on the board and fully implement their duties.  In OMA’s current evolution as a professional organization, it has been quite hard enough for OMA to get people to run for election and serve in an officer position or to fill an appointed board member position.  That difficulty will be exacerbated by the time and effort required by the execution of the credentialing plan.  People only have so much time to give.  If someone is serving on the credentialing committee, that person may not be willing to simultaneously serve on the board or, even if they do, they may not perform those duties timely and efficiently.  Given the small pool of persons available to serve on the OMA board, it seems unwise to dilute that pool further by creating a need for even more personnel.  At least at this point in OMA’s development, it would be far better to focus the limited human resources on more realistic sustainable projects rather than on this ambitious credentialing plan.  Again, when faced with competing demands on one’s time, volunteer duties are usually the first to be sacrificed.  While it might be possible to imagine a time in the future when OMA is big enough and strong enough to carry out such an ambitious program as proposed, that time has not yet arrived and it is not likely to arise until other more basic and fundamental initiatives are undertaken by OMA.

 

Fifth, the proposal creates a risk of liability on OMA.  This exposure could come in multiple ways.  One way might be an allegation by the public that OMA improperly certified a mediator.  Although some may dismiss this concern as far-fetched, the risk may not be that remote.  Some members may have seen the report on 60 Minutes which reported on a law suit that could be analogous to OMA’s proposal.  As I understand the report, some national football league players sued the NFL Players Association, whom I believe is the players’ union, alleging that the association improperly listed a financial advisor as one for players to consider using for financial advice.  It was alleged that at least one of the advisors on the player’s association list gave improper advice.  Another potential exposure could come from a mediator alleging improper denial of credentialing or improper removal of the credential.  Whether such allegations would be meritorious is almost beside the point.  Just one law suit would likely devastate OMA’s small treasury in defending the action, thus threatening the mere existence of OMA and its ability to support the profession.  Although the proposal purports to call for insurance for the individuals serving on the committee or the board, it does not seem to call for insurance for OMA as an organization.  Further, even if such insurance for the organization was obtained, that is money that could otherwise be used for initiatives that advance the field in more meaningful and realistic ways.  In addition, no costs information for insurance has been provided so that members can make an informed decision about whether credentialing is worth diverting OMA’s meager treasury toward any insurance costs now and insurance cost increases the future.   Although not in the proposal as far as I can see, some have discussed requiring the applicant to waive ones right to sue.  Even if that were to be the case, it would not address the costs of a law suit filed by a consumer of mediation services.  Moreover, even if a waiver signed by applicant would hold up in court, members should consider if they believe it is fair or proper for the OMA to take away an applicant’s right to assert one’s claim for improper administration of the program.

 

Sixth, it appears a credential of sorts is already offered through the Association for Conflict Resolution (ACR).  As I understand it, ACR calls it a membership level but, like the OMA proposal, it is in effect a stamp of approval by a professional association for the purpose of setting that person apart from those that have not obtained the approval.  Therefore, a member who deems getting some sort of stamp of approval from a professional mediation organization may do so already without OMA experiencing the negative consequences of having its own duplicative credentialing program.

 

Seventh, there is a better, less risky route to achieving the goals cited in the proposal such as the stated, “promoting recognition of mediators as professionals.”  For many years, I have been saying the profession needs to look for ways to increase its legitimacy and acceptance as a true profession that can improve quality of life for countless persons.  I have further said that one of the most important ways to do this is to have meaningful professional standards with teeth.  One of the most important aspects of professional legitimacy is the accoutrements of a profession.  Perhaps the single most important accoutrement to a profession is a license granted by the state.  In the end, licensure is the only route that has any chance of achieving the long term perception by the general public that the profession is legitimate.  So the mediation profession will ultimately need to institute licensure administered by the executive branch (not the judicial branch) of state government after the credentialing plan has undergone a thorough rulemaking process to ensure clear, fair, and consistent standards in the granting of the “stamp of approval” and with professional regulators whose job depends on doing the job well and with due diligence.  After all, many other fields must be licensed.  Hair stylists must be licensed.  Dental hygienists must be licensed, all through the executive branch of government.   There is no good reason the same should not hold for the mediation profession.  Some may say licensure is impossible to achieve.  While I admit licensure is the harder route, declaring licensure impossible without even trying to achieve it makes the impossibility declaration self-fulfilling.  In addition, even if licensure is not possible in the near future, it does not make it advisable to institute an unwise plan to be carried out with virtually all volunteer, non-expert personnel with energy that will ebb and flow over time.  Some might also say OMA’s mediation program is a step in the direction of someday achieving licensure.  It is just the opposite.  If credentialing is instituted in Ohio, it will then be used as an excuse to say licensure is unnecessary.  But even if you don’t favor licensure, it does not make this credentialing proposal any more advisable given all the negatives associated with it.

 

Eighth, the proposal has numerous places where the language contains non sequiturs and is confusing, vague, subjective, and unwise.   Time and space do not allow me to go through all the places in which the proposal does this.  Without dwelling on the fact that some roman numerals in the proposal are followed by letters while others are followed by numbers and while still others are followed by parts, and without dwelling on the fact that the proposal refers to a “general mediator” without that designation being mentioned elsewhere, I will point out a couple of troubling spots which may not even be the most troubling.  A close read of the proposal, including the test and forms by members will lead to other examples.

One example of unartful drafting can be found in Section XII Part 4 regarding the Review Board.  The section leaves many unanswered questions about procedure.   Who decides the makeup of the review board?  Do the review board members have terms or can the review board members be manipulated to produce a given result?  What might constitute a conflict of interest thus disqualifying that person from serving on the review board or, in another section, the credentialing committee?  What happens if a review board member abstains from voting thus making the proposal’s required majority vote mathematically impossible? These questions and more remain unanswered.

Another example of troubling language or an unwise standard is found in Section II A. and J.  These sections purport to define Alternative Dispute Resolution (ADR) and Sponsor (the person who is to attest to an applicant’s mediation skills).  If the credential is a mediation credential, it seems inappropriate to allow anyone from the field of ADR to speak to the applicant’s skill as a mediator but who may have no actual knowledge or experience in mediation as a discipline separate from the broader field of ADR. Moreover, in Section II. J., a sponsor is defined as one “one who can attest to the training, experience and character of an applicant.”  But in Section IV. 7., it states the applicant is to submit a letter from the sponsor “who can attest to the applicant’s demonstration of mediation skills…”  To make it even more confusing, Section V. lists an entirely different set of guidelines to which the sponsor is to attest.  It is unclear if the sponsor can speak to any one of those things or whether all of those factors must be addressed.   In addition, under the definitional language of a sponsor it says a person “should” be (but apparently is not required to be) in the field of ADR.  So arguably, the sponsor need not even be in the field of ADR, let alone mediation.  This sets up a situation in which a sponsor could merely attest to something such as, for example, “the applicant would make a good mediator because he/she has good people skills” without actually knowing anything at all about mediation practice.  Most mediators would say that people skills alone are not a good test of mediation skills, but given the confusing language that could allow for differing interpretations, who knows what some future credentialing committee or review board member might think.  The value of even requiring sponsorship is, in the first place, questionable but if it is to be required shouldn’t the requirements for what is to be attested to be more clear?  And if this is a mediation credential, why wouldn’t the program require that the sponsor exclusively have actual and extensive mediation experience not just experience in any field of ADR or potentially no mediation or ADR experience?

While I certainly acknowledge and appreciate that the committee that created the proposal worked hard and put much time and thought into the proposal, it is fair to say that its authors are not experts at regulation.  And while this proposal may not be regulation in the strictest sense of the word, it clearly is an attempt to impose standards that must be met in order to gain approval by another entity.  The troubling language allows room for differing interpretations over time and would lead to inconsistent decisions regarding approval or disapproval.  This risk is especially great given the high turnover rate inherent in mostly volunteer administration of the program and with low economic incentive to have vigilant review.  If the proposal itself has such troubling language, what will the actual execution of credentialing look like?  One could dismiss any one of the instances of troubling language as mere nit picking.  But, taken together, the numerous instances of troubling language found by a close read of it do not inspire confidence that OMA in its current evolution as an organization can do credentialing well enough.  This is in no way a disparaging commentary on the current OMA board or the authors of the proposal.  While President of OMA, I came to the same conclusion that OMA as an organization was not ready to take on this ambitious plan.  If the program is not done well it will undermine the meaningfulness of the credential and, over time, serve to undermine consumer and even mediator confidence in it.  The problematic language and subsequent problematic implementation could also lead to negative perceptions of OMA by members and prospective members thus potentially reducing its membership and in turn threatening its financial and human resources to advance the field in other ways.

 

Ninth, the proposal asserts that Ohio seeks to join three other states it implies have a mediation credentialing program.  I would venture a guess that the states that have established such a credentialing program remain an extreme minority.  If it is true that only a handful of states have instituted credentialing through their respective state professional associations, that might say something about the wisdom of the majority of the states that have chosen not to undertake this huge responsibility.  Moreover, even if one assumes those credentialing programs in the few states that have implemented it have done so successfully, that says next to nothing about how effective it would be in Ohio given the current state of the evolution of the profession and the evolution of OMA as an organization.  What may be fine in one state may not be workable in another state.  The state associations that have implemented credentialing may well have started with stronger associations with higher membership rates and with higher participation rates in mediation as a mechanism for dispute resolution.  My recollection from a presentation at a previous OMA conference from a representative from one of the state associations mentioned in the proposal, i.e. Washington, it seemed that state did have mediation more widely used and with a stronger association.  So citing implementation of credentialing in a minority of states with circumstances that are likely quite different from those in Ohio is not a legitimate argument that OMA should implement it.

 

You might say “we have to do something in order for mediators to claim their rightful place among professionals.”  It is true something(s) do need to be done.  It’s just that this proposal is not the something that needs done.   After all, throwing water on a stovetop grease fire is doing something.  It just doesn’t solve the problem and it usually makes it worse

 

I urge members to make your decision on this issue not on the mere idea of credentialing.  Rather, I encourage members to read every word of the proposal and think about how the actual language would or would not work;  whether at this point in the evolution of OMA as an organization, it can be carried out well and consistently over the long run; whether this is the best use of OMA’s human and financial resources, whether one could get some stamp of approval from another source such as ACR without the negative consequences associated with the OMA proposal; and whether the advancement of the field might be better and more realistically achieved in other ways.