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April 2018

The Credentialing Debate Continues

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As the official vote on the OMA proposal for voluntary mediator credentialing is underway (email “yes” or “no” to credentialing to ohiomediationvotes@gmail.com), we are updating you on the points and counterpoints about our credentialing proposal.

The Case for Voluntary Mediator Credentialing

The Ohio Mediation Association has taken the steps to draft a voluntary mediator credentialing process.  As explained below, this process provides increased legitimacy to mediators with the necessary qualifications who want credentials, provides extra support to mediators who want credentials but do not yet have the necessary qualifications, and has no effect on mediators who do not want credentials.

Some Want It, All Can Benefit from It

Mediators seeking increased visibility and legitimacy are the main stakeholders in the credentialing vote.  However, this may not be you.  Despite your disinterest in mediator credentialing, members such as yourself, the OMA organization, and the mediation profession as a whole would attain real benefits from OMA’s voluntary credentialing process.

Many experienced and competent mediators struggle to achieve recognition from potential clients or employers, and credentialing would benefit those mediators.  On the other hand, mediators who are more professionally secure should be unaffected by a voluntary credential.  However, because the “portfolio” credentialing process would be low-maintenance for OMA, and because we budgeted this process to provide OMA with extra income, this voluntary credentialing process will provide resources that OMA can use on additional trainings for members, updates to the website, and marketing for the mediation profession.

Furthermore, this voluntary credentialing process actually seeks to benefit mediators who have not achieved the training and experience to be credentialed under OMA.  Instead of only offering increased legitimacy to mediators with identified credentials, the OMA credentialing process requires advanced practitioners to “give back” to the profession by mentoring less experienced mediators or by passing knowledge through trainings or short articles accessible to OMA members.  Also, the basic credential provides newer mediators with goals that are achievable with a short but concentrated effort.  Therefore, OMA seeks to structure incentives such that experienced mediators will have the benefit of a professional credential and less experienced mediators will receive extra support and accessible requirements for credentialing.

Thus, OMA voluntary credentialing process leverages the need of some mediators to attain increased visibility and legitimacy in order to increase OMA’s programming capacity while incentivizing the dissemination of knowledge from more experienced mediators to less experienced mediators.

OMA is the Right Organization for the Job

Though the Ohio Mediation Association is run by a group of volunteers, we are the right organization to be promulgating in managing this system of voluntary mediator credentialing in Ohio.

OMA is a statewide professional association of mediators with a diverse membership of attorneys, mental health professionals, and educators who are representative of the mediation profession as a whole.  We are more flexible and responsive than government agencies, which is likely why other professions, such as law and medicine, created professional credentials before the government regulated their practices.  Some hope that the State of Ohio will bypass credentialing by the mediation profession and move straight to mediator licensure, but this was previously attempted and is not likely to happen.

Furthermore, though OMA is run by volunteers, we have shown that we are able to manage credentialing by the fact that we created this proposal through many drafts, invited stakeholder input, held conference calls and meetings that were open to the membership, and addressed concerns that were raised.  Implementing a portfolio-based credentialing process is not as time-intensive as creating and debating it, and while we created this credentialing process, we also revamped our website (with further improvements), organized two profitable Annual Conferences (last year’s was very well-received), conducted our first fall training, improved our emails, incorporated video conferencing into our meetings, and financed several efforts at publicity for OMA and mediation in Ohio.

How Does OMA’s Voluntary Credentialing Work, and Why?

OMA’s proposal for voluntary credentialing is targeted, objective, meaningful, and manageable.

First, OMA’s proposal targets it benefits to the widest array of mediators in the most effective manner, without harming mediators who are not seeking credentialing.  Because this proposal is a voluntary credential, it only offers increased legitimacy and visibility to mediators who want it. Many mediators who work for courts/agencies or have full-time law/counseling practices do not need additional legitimacy, so the existence of an optional credential will not affect them. Also, many of our members have varied levels of experience—we have therefore offered two credentialing tiers, so that the basic credential is attainable to newer mediators while the advanced credential recognizes the higher experience of mediators with longer DR careers.  This is the same type of system offered by other States that do credentialing, and it does not add to the administrative burden of the credentialing process. However, we go beyond the multi-tiered approaches of other states by requiring advanced practitioners to “give back” to the profession by passing knowledge to less experienced practitioners—this way, no group is maligned by the credentialing process and the field of mediation benefits from the greater dissemination of expert DR knowledge.

Second, OMA’s proposal for mediator credentialing is objective.  Following the recommendations of the ACR Mediator Certification Task Force, our credentialing process is a “portfolio” that applicants fill out, indicating their experience and training.  Objective criteria are fair because the same standards apply uniformly to all applicants.  Furthermore, because there are many mediator styles that work differently based on the personalities of each mediator, it is probably not appropriate for certain mediators to subjectively evaluate the performance of others to determine who may be credentialed.  Finally, an objective process is easier to manage—applicants fill out the packet, and the Credentialing Committee reviews each packet and supporting documentation (estimated to take 45 minutes per application).

Third, OMA’s proposal for mediator credentialing is meaningful.  Credentialing is based on training and experience (we removed the education requirement based on ACR’s published recommendations and the sentiments of our members).  The application asks for specifics for mediation experience while also allowing for flexible reporting by mediators with years of experience.  The application then also requires specific information about trainings taken, which many of us keep track of for CLE/CEU purposes anyways.  However, beyond logging information, the applicants will sign an oath (standard for other professions), have a sponsor attest to their best practices, submit to a background check, and complete an open-book test on mediator ethics.  While this is manageable to assemble and verify, it would be easy for reviewers to check the veracity of information submitted and illegal to lie on the application.  Furthermore, the proposal allows the Credentialing Committee to recommend more training or even remove credentials (subject to an appeals process) in response to grievances against a mediator.

Finally, OMA’s proposal for mediator credentialing is manageable.  Once approved, funds from application fees will pay reviewers to verify the applications and sign up for insurance.  If the same group maintains the credential, the reviewing the much shorter re-credentialing applications will only happen every two years.  If the credential becomes popular, then the application fees will cover administrative costs, with extra invested into programming and publicity for all OMA members.  The management structure consists of a chairperson who reports to OMA leadership and hires assistance.  The chairperson is supported by two other committee members, and important decisions of the Credentialing Committee are reviewed by a separate, ad hoc Review Board from the OMA Executive Board.  This involves less manpower than was used to draft the proposal, so the process of creating and revising the credentialing draft is a testament to the work ethic of OMA leaders who would manage this process.

Responding to Concerns and Criticisms

Mediator credentialing is not for everyone, but it will not harm OMA or non-participants.

Some members expressed concern that credentialing will open OMA to legal liability.  We initially proposed the creation of a separate credentialing entity, but because the OMA Board believed that the benefits (and profits) from credentialing would outweigh the risks to the organization, we decided to keep credentialing in-house.  However, to further address concerns that OMA will be sued for negligent credentialing, we sought and found professional liability insurance to cover OMA from damages from any potential lawsuit (costs are covered by application fees).  Though this liability insurance does not cover mediators suing for interference with their ability to practice mediation, (1) this credential is voluntary, and does not diminish or denigrate mediators who choose not to be credentialed, (2) there is no right to practice mediation recognized under Ohio law, and (3) the credentialing process is affordable and accessible—spending $150 and 3-5 hours to fill out the application is easier than suing for the credential in court. Though there is a grievance procedure, as part of meaningful quality control, it contains an appeal process to the OMA Board.  If the experience of the Texas Mediator Credentialing Association is predictive, then 15 years of credentialing may produce one grievance.  From answering the emails coming into the OMA website for five years, I can attest that we do not get complaints about OMA members from clients.  Thus, the liability issue was explored with a separate entity, addressed with liability insurance, and is likely a minimal risk, regardless.

Other members expressed concern that credentialing may not be affordable.  We had initially based our pricing on what other credentialing states charge, content to trust that, what kept them afloat for years would work for us as well.  However, in response to a desire from OMA members for more concrete numbers, we test-piloted the review process for two applications (a Mediation Practitioner and an Advanced Mediation Practitioner).  At $20 per hour and 45 minutes per application, this cost ($15 per application) is well-covered by the $100-150 application fee, covering the first two-year period.  This application fee would also cover the upfront costs to modify the website and the cost of purchasing liability insurance ($495 for the first year). After budgeting the process, our conservative estimates are that credentialing will bring in a modest $660 to $1,200 to OMA for the first two years.  While this is not a huge profit, the credentialing process is not primarily intended to make money—it is about providing increased legitimacy to mediators who want it and motivating those mediators to give back to the rest of the profession.

And finally, there have been concerns about having a two-tiered credential.  As a preliminary matter, offering two tiers does not cause extra work (the main differences in the applications are the amount of experience/training reported).  Identifying some mediators as credentialed and others as advanced practitioners achieves a number of important goals.  First, it makes credentialing more accessible, giving newer mediators achievable goals towards which to strive and countering concerns that our credentialing process is overly exclusive.  Second, it adds meaning and value to the credential of people who have lengthy careers in mediation.  Third, offering a valuable distinction to newer and more experienced mediators expands the number of applicants who would benefit.  Fourth, the system of support between these groups should facilitate the passing of knowledge within our profession—we are currently seeing the first generation of career-mediators who are retiring without a vehicle for mentoring the next generation.  Though critics may argue that those with the mediator credential will not likely tell clients that there is a higher, advanced credential, many professionals tout their master’s degrees to employers and clients without needing to explain that other professionals have PhDs.

Conclusion

The Taskforce on Sustainable Futures, assembled by the Ohio Commission on Dispute Resolution & Conflict Management, surveyed mediators in 2010 and found that a majority of DR professionals favored quality assurance, minimum competencies, and certification at the state level.  Building on prior efforts, OMA has now built a credentialing model that balances the competing interests of the newer and experienced mediators without threatening mediators who already have professional credentials or secure mediation jobs. While credentialing will only be directly applied by the mediators who want it, this process should motivate our advanced colleagues to write articles for our blog (increasing OMA’s online presence), give newer mediators concrete goals to achieve in training and experience, and implement a quality control grievance procedure which is an accoutrement of a profession.

As mediators, we tend to crave consensus. However, we need to accept the fact that not all of our members will participate in credentialing.  Because mediators are also currently a profession of individuals, we are also largely disconnected from each other.  In its mission to facilitate contact and support among mediators, OMA asks you to support mediator credentialing even if you do not intend to use it yourself.

OMA Credentialing: After Another Year; Still Wrong Proposal, Still Wrong Time

Members should vote No on the OMA proposal to implement mediator credentialing.  Passage of the proposal either will cause harm to OMA as an organization or to the field as a whole in Ohio or, at minimum, will not achieve the goals it seeks to achieve.  Further, those goals could easily be achieved through other means without risking the negative consequences on OMA as an organization.

After concerns were expressed about the proposal last year, the Credentialing Committee shelved it an attempt to improve it.  Unfortunately, despite a yearlong public relations campaign to try to win favor from membership, the proposal does virtually nothing to address the concerns expressed in any meaningful way.  While a few minor tweaks have been made, virtually none of the concerns raised by members nor concerns raised in last year’s article urging a NO vote have been addressed.  I urge mediators to, in addition to reading the rational for the No vote in this article, revisit “OMA Credentialing:  Wrong Proposal, Wrong Time” posted on the OMA web site on May 13, 2017.  With a little diligence you can find it on the OMA web site. (After logging in, go to the Member Center tab and click on Mediator Blog. Next, click on the Archives for May 2017 and scroll down to the May 13th, “Mediator Credentialing Articles: Pro and Con” and then scroll down in that document to read, “OMA Credentialing: Wrong Proposal, Wrong Time”.)  This will surely be an investment of your time but it is imperative that OMA members not be complacent on this issue.  The issue is far too important to not fully investigate it.  We mediators value informeddecisions not just decisions based on superficial knowledge. Members should be mindful of that principal in making a decision on this proposal.   Further, it is important that members actually take a position on this one way or the other and that members actually cast a vote, and not leave it to others to decide.   Moreover, it is critical that a Yes or No vote not be made simply on the basis of whether you personally plan to seek the credential.  The direction OMA takes on this issue will have strong reverberations for OMA and on the profession in Ohio for a long, long time.  Through this proposal, OMA proposes to go well beyond its traditional role of directly dealing with the needs of members.  OMA now seeks to affirmatively hold itself out to the public as having established some legitimate, fair and sustainable way to measure whether a mediator merits the public’s business.  While a close reading of the proposal with a critical eye reveals that it does not create such a system, it is also clear that this OMA pivot toward the public represents a huge and unwanted leap from OMA’s traditional accountabilities and roles and poses risks to OMA as an organization and to all Ohio mediators, credentialed or not.

One of the changes made to the proposal is a non-binding, unenforceable pledge to obtain insurance for OMA’s administration of the program.  However, despite assertions to the contrary, the proposal leaves OMA exposed to significant risk of liability.  Although the proponents of the proposal state that the liability concerns have now been addressed by claiming that OMA will be covered by liability insurance, that assertion fails to state that the insurance will not cover all types of claims.  Upon deeper inquiry, it has been explained that the insurance would not cover any claim by an applicant that OMA has improperly failed to certify, or improperly decertified.  It seems the insurance would only cover claims made by the general public that OMA improperly certified a mediator or failed to decertify.  When pressed on this risk, the response by proponents seems to be that such an allegation by an applicant is unlikely to be made.  Well, a homeowner might deem there to be minimal risk of one’s house burning down but that does not make it good policy to risk not having insurance for that purpose given the catastrophic nature of that event. Make no mistake, a law suit by a mediator alleging an improper decision regarding certification would be devastating to OMA irrespective of whether liability were to be found by a court. Indeed, the merits or lack thereof regarding a mediator’s claim for failure to certify or for improperly decertifying is somewhat irrelevant.  The attorney fees alone for such a claim would in very short order annihilate OMA’s meager treasury and thus threaten its very existence irrespective of the merits of such a law suit.  In addition, a requirement of retention of insurance is nowhere to be found in the proposal members are asked to approve.  Therefore, the proposal, if passed, would not require insurance and OMA could choose to not obtain it or could at any time discontinue even the limited coverage being sought thus leaving OMA even more exposed.  If you think that would not happen, consider how much push back the credentialing committee gave when these liability concerns were repeatedly raised for months prior to last year’s scheduled vote that was then aborted at the 11thhour after concerns were again raised at that conference.  So if there was so much resistance to obtaining any insurance at all, it is not such a leap to think that future or even current OMA leadership will discontinue it since many of those resisting addressing the liability concerns are likely to remain on the OMA board for the foreseeable future.

Another change to the proposal not only does not improve it but actually makes it worse.  If approved, the membership will lose all control over the certification program the second it is passed.  Section XII, Part 9 places all future power over the certification program in the hands of three or four board members.  There is zero opportunity for the membership as a whole to make any decision whatsoever on whether and what amendments would be approved.  (See Section XII, Part 9.)  Concentrating in so few hands the power over something as important as how the general public perceives the profession of mediation is far out of bounds and entirely inappropriate.

Moreover, the plan is completely devoid of any trace of transparency.  These decisions will be made in the proverbial smoked filled room by appointees with no term limits or with any way for the membership or the public to monitor decisions and the diligence under which those decisions were or were not made.  Unlike credentialing executed by the executive branch government subject to the Public Records Act, there is absolutely no enforceable ability for members or the general public to seek and obtain records so as to ensure proper execution of the plan.

Huge numbers of hours of OMA time have been consumed in this ill-conceived, poorly drafted, highly subjective plan to, in essence, assist a certain segment of OMA’s membership, essentially private practice mediators (of which, by the way, I happen to be one).  It has been stated that this will be especially helpful to those mediators.  However, OMA is not an organization only or even primarily for the benefit of private practice mediators.  It exists to represent the needs of all mediator members in Ohio.  Proponents might fairly point out that any mediator, private or not, can seek the credential.  While that is certainly true, members can make their own judgment about what segment of OMA’s membership will actually seek the credential. It is alarming that such a huge expenditure of OMA’s human resources has and will continue to be diverted toward the needs of only some of OMA’s members instead of concentrating on initiatives that would benefit all its members.  Members should be mindful of what it wants OMA to be as an organization when making a decision on this issue.  One of the benefits claimed by the proponents of this proposal is, “…fostering greater cohesion within the mediation profession…”  The fact that the proposal has been in the works for at least two years including an aborted planned vote a year ago speaks volumes on just how controversial this plan is.   Continuing to spend so much time and effort on something this controversial and for the benefit of essentially one segment of its membership seems to be the antithesis of fostering cohesion.

Another of the changes to the proposal relates to a bit more and somewhat complicated procedural aspects to the Rules of Operation.  The plan leaves unchanged the inescapable fact that it will be executed by all or virtually all volunteer personnel with no real enforceable accountabilities to ensure that the plan will be carried out consistently among all applicants. This is especially true given that the plan allows but does not even require that information submitted by the applicant be verified and allows for highly subjective and vague judgments by those tasked with deciding on approval.  [As just three examples, see the use of words such as “may seek…verification…” (Section XII, Part 2), “will not have the duty to investigate…” (Section XII, Part 4), and “Credentials from other states will be handled on a case by case basis…” (Section IX).]  There are more examples but time and space do not allow me to point them all out.  Look for yourself and you will see others.  In the final analysis, this plan contains vague, subjective, and contradictory language that is to be executed by folks who are not expert regulators but volunteers with other demands on their time and who will not lose their jobs and livelihood if they do not do it well. This is not a recipe for success. Given all its flaws, the plan, especially over time, is not likely to be carried out well and the plan will thus have the opposite effect on the proponent’s claimed benefit of “…increasing consumer confidence…” in mediation.

I again urge all members to make your decision not based on the mere idea of credentialing.  Rather members should read every word of the revised 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, the proposal 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 a mediator 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 in Ohio might be better and more realistically achieved in other ways.

One final note about process:  So as to foster informed decisions, a pledge was made that, after final modifications to the proposal were made and prior to the actual vote, another round of articles would be sent to OMA members, one urging a Yes vote and one urging a No vote. Sadly, these articles were not sent prior to the commencement of voting.  If you voted yes and you find the points in this No vote article persuasive, I urge you to inform the vote counters that you wish to recast your vote to No prior to the end of the voting period.