OMA Secretary Linda Norris writes the following:
IS MEDIATION A PROFESSION?
A few members who object to voluntary mediator credentialing cite their belief that mediation is not a profession as one of their reasons. Hopefully, this is only a small fraction of our membership who feels this way, but we feel it still needs to be addressed as an issue to be addressed with regard to mediator credentialing.
One main reason for credentialing in the first place is to elevate the role of mediation in the public eye. OMA promotes the use of mediation and the professional practice of mediation. One of our goals is to increase the use of mediation throughout Ohio.
To this end, it is important for mediators to be viewed as the professionals that they aspire to be. There are hundreds of practitioners in Ohio who promote themselves as professional mediators, and we want to be able to help them substantiate their claims through credentialing. Credentialing is only one step but the Board feels an important one to allow mediators to demonstrate their training, education and experience that add up to the professional practice of mediation.
The public needs to have confidence that the mediator they choose has standing in the profession, is everything he/she claims to be, and is a professional in every sense of the word. As Robert Benjamin puts it, “The real test of the acceptance of professional mediation in our society will be the sustained and regular use of those services by a substantial number of people to manage conflicts that arise in their personal and business lives in the private market.” For this to happen, mediation has to be viewed as a profession with a code of ethics, standards of practice, accepted levels of training and education and a minimum number of mediation cases or hours under their belt
For mediation to be taken seriously as an alternative to settling disputes, there has to be a paradigm shift in our culture. What? A paradigm shift? Isn’t that sort of like moving a mountain? Yes, it is. And no one can do it alone. There has to be a strategic, calculated, frontal assault to conventional thinking much like the anti-drunk driving campaign wave that swept the country decades ago. This is, presumably, one reason why we have the Ohio Mediation Association: to pull together in a united front to help popularize mediation and to increase mediation opportunities for conflict resolvers. An important component of changing the public’s view of mediation is that of promoting mediation as a profession and vouching for the credibility, veracity, and reliability of individual mediators as professionals.
So, what do others define as a profession? Simply put, according to according to the Merriam Webster dictionary a profession is “a type of job that requires special education, training, or skill.” Bingo! We believe mediation meets these criteria. Other definitions abound. Here are a few that definitely support our assumption that mediation is, indeed, a profession:
Someone that wants to be part of society, who becomes competent in their chosen sector through training; maintains their skills through continuing professional development (CPD); and commits to behaving ethically, to protect the interests of the public.” (totalprofessions.com/more-about-professions/what-is-a-profession)
An “occupation that requires extensive education or a calling that requires special knowledge, skill, and preparation. (com/essays/criteria-of-a-profession-533795.html)
A “professional [who is] expected to maintain a high knowledge level and expertise; and[Who] is committed to continued training and development, driven by a code of ethics. Their integrity ensures that they adhere strongly to a set of values about how they do their work. (The Seven Characteristics of a Professional, Dianne Walker)
OMA wants all those who practice mediation to aspire to be professional mediators who have training, experience, education, a code of ethics and so on. Credentialing will set these apart from many who purport to be mediators with only a bare minimum of training, experience, or specialized education about dispute resolution. We hope that when the public turns to a mediator for help resolving a conflict, they can, with confidence, at least choose someone who has the basics of what we feel are professional standards required for the professional practice of mediation.
Many who hold licenses in other fields do not feel they need the extra credibility that credentialing provides for a mediator. Yet, many mediators feel that those licenses do not qualify them as a mediator and too often promote themselves as a mediator when they have only a bare minimum of training, DR education or experience. In a sense, credentialing could change the playing field to make it more equal and uniform between licensed specialists and mediators. Also, it will give those with specialized licenses additional credibility to demonstrate that they, too, have invested in developing mediation skills, acquiring DR training and obtaining mediation experience.
Finally, in setting up a credentialing program to help promote the professional practice of mediation, OMA is acting responsibly to help protect consumers by providing a minimum level of regulation of the profession by requiring background checks, proof of education, training, and experience; and a consumer complaint process and consequences for fraud or professional misconduct. In all, OMA is hoping to provide a comprehensive program that clearly endorses mediation as a profession provided the mediator meets established criteria for the professional practice of mediation as defined by our guidelines.
After members posed questions about OMA’s Mediator Credentialing Process at the 2017 Annual Conference, we held a phone conference open to all members on June 2nd. We had a thoughtful discussion of the process that included a number of proposed changes. A summary of some of the key points from this phone conference are detailed below:
June 2nd Phone Conference
One member raised the issue of ACR’s Model Standards for Mediator Certification Programs.
For example, Standard 17 recommends no educational requirement (because education levels have not been empirically correlated to mediator skill levels).
Proposal: Remove Education requirements from the Proposal
Also, ACR’s Model Standards recommend a performance-based component. The counter-argument was raised that performance-based assessments of individual mediators, by way of observation and evaluation of actual mediation sessions, is burdensome to manage and increases subjectivity. We should not promote one style of mediation above others and should limit the effect of personal preferences in the credentialing process.
A criticism was raised that the credentialing proposal is not entirely objective. The example was raised about the last two questions on the open-book test (concerning issues and interests rather than the Model Standards of Mediator Conduct). A counter-argument was raised that the proposal strives for objectivity, and that the goal of objectivity (strict standards) is balanced with flexibility (which allows for some degree of subjectivity). The drafters admitted that the issues and interests questions could be better written.
Though the issues and interests questions were a source of criticism, critics supported some kind of test for mediators to demonstrate their ability to identify interests, frame issues, and ask questions. It was then suggested that this test could fulfill the ACR Model’s requirement for a performance-based component. It would be separate from the open-book test on the Model Standards of Conduct for Mediators (which only motivates applicants to read and digest the Model Standards).
Proposal: Have a separate “issues and interests” test as a replacement for performance-based component.
Another member raised the issue of ambiguity, specifically about the amount of professional contribution Advanced Mediation Practitioners would be required to complete under Section VI.(E). The drafters clarified that the required number of completed activities is “one” (i.e., Advanced Practitioners would be required to write one article/blog post, conduct one training, mentor one other mediator, volunteer at one ADR activity, or speak publicly about mediation at one event).
One member in a court-connected mediation program expressed the opinions of the mediators in that program, who asked, “Why should we have to do this?” The drafters clarified that this is a voluntary credentialing program, not designed for mediators who already have a stable source of income and cases. The intended beneficiaries are private practice mediators who compete for cases with mediators who have inadequate training in mediation.
The issue of licensure was raised by one member, asking why OMA would do this if the government could license mediation. Another member responded that the issue of licensure was considered by higher ups in the government, but these higher ups ended up saying, “Where is the damage of bad mediation? We will not license if there is no damage.” Government licensure of mediation does not appear to be imminent.
Some members were fearful that this process would drive members away. OMA leadership indicated that it would work on the proposal until it had broader support from the membership.
Some members indicated that OMA is not in the position to sustainably execute this proposal. Others thought it could be accomplished with little downside. Others saw the potential benefit to the mediation profession but did not think that the logistics of the current proposal were fleshed out enough. Eventually, everyone seemed to agree that we would be more comfortable if we knew more about the costs and logistics of this proposal.
Proposal: The Credentialing Committee and OMA Board will look into the specific costs of insurance and hiring people to review the applications. We can also put an example application together, see how difficult that process is, and see how long it takes a qualified person working for $20/hour to review the application.
Many OMA members remain mistrustful of the intentions of this Mediator Credentialing Proposal. We reiterate that this is a voluntary process it is not mean to exclude anyone from practicing mediation. While court employees and established mediators may decide to not participate in credentialing, many of our independent, private practice mediators may benefit from this process. Rather than excluding anyone from practicing mediation, this proposal is intended to better inform the market so that people seeking mediation services can more easily differentiate between trained and untrained mediators.
Also, legitimate concerns were raised about the uncertain costs and income of this project. Supporters believe that applications could be reviewed at a cost that is significantly below the $100-$150 application fee. However, many members wanted more concrete numbers. The Credentialing Committee will therefore take steps to gauge the amount of effort that it takes to fill out the credentialing application, the amount of time that it takes a paid intern or private practice mediator to review applications, the cost of insurance, and the number of expected applicants.
In the meantime, we invite further comments about the credentialing proposal. We will gather and respond to common concerns in an upcoming blog post. Stay posted.
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!
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.
If the concept of “dispute” could be narrowed down to one equation, it might provide broad insight and simple, useful directions to professionals who deal with disputes. After years of managing people in conflict with each other and people in conflict with the legal system, I would propose the following simple equation to describe any and every dispute:
If the left side of the minus sign is greater, there is no dispute. If the right side of the minus sign is greater (creating a negative value), then there is a dispute. I argue that this basic, all-encompassing formula applies to all disputes and, thereby, points out the centrality of expectations in these situations. Based on these conclusions, I will then argue that mediators could improve and simplify their interventions by placing expectations at the focus of the mediation process.
A dispute is an active clash between two people, whereas “conflict” is a broader concept that includes tensions and disagreements between people who are not necessarily engaging each other directly. Two people can have clashing interests, but it is only when they expect things of each other that they are in a dispute. And if Person A expects something from Person B in a situation that Person A is not involved in, then Person A is more of an intervener or third-party, rather than a disputant. If both people are involved in the situation, each will have expectations for themselves (“I can handle that” or “I shouldn’t be dealing with that”) and expectations for the other (“You shouldn’t have to do that” or “Why haven’t you done this yet?”).
The reason that there is a minus symbol between the left and right side is that if we expect more from ourselves than the other, there is no dispute—we will either do the thing ourselves or not (but also not expect the other to do it either). Then, when we expect something from someone else that we do not expect from ourselves, the other person will either meet this expectation (heading off the dispute) or will not (because they can’t/don’t expect themselves to have to comply). As a result, when people expect more from each other than they expect from themselves, they are in a dispute.
The reason that the formula is a comparison of expectations, rather than esteem or some other variable, is that without expectations there is no dispute. If there is only past action and resulting feelings, then there is no reason to continue interacting and no dispute (consider trying to mediate between two former friends who are each fully comfortable never talking to the other again). Commonly, however, past transgressions often come with future expectations, such as an apology, reimbursement for losses, or an assurance that similar transgressions will not occur again. Thus, unfulfilled expectations of each other are the reason that the parties continue to fight with each other despite the unpleasantness of the conflict.
This formula explains why certain people habitually find themselves in disputes–they expect little from themselves and much from others/the world (in the ADR Bible**, entitlement is the most grievous sin). It also explains why some people have managed to glide through life free from disputes—they expect much from themselves and little from anyone else (in the ADR Bible, selflessness and empathy are the ultimate virtues).
**Note: I’m not referring to an actual book here. There is no ADR Bible; unless you count the actual Bible.
So, what tips or procedures can be gleaned from this schema? I suggest that dispute resolution professionals (1) ask the parties early in the process about their expectations of the other side, (2) help them to identify and reflect on the values that underlie those expectations, and then (3) focus on each of their expectations for themselves in the situation. The details and inner-workings of this approach would play out as follows:
- “What are Each of You Expecting from the Other?”
After the disputants have vented their stories, the ADR professional should ask each disputant about his or her expectations of the other. This action would force them to be concrete in defining the dispute, offering details rather than expressions of general dissatisfaction. Defining the dispute shifts the parties from complaining about each other to formulating demands that can be compared, considered, and explored for potential overlap. Disputants seem to find it easier to complain than to ask for something, and shifting from reciprocal complaints to reciprocal demands is a shift from a bickering match to a negotiation. This change in mindset is discernible and can be jarring—consider how many laundry lists of complaints are cut short with an exasperated, “What do you want from me?” (i.e., “What are you expecting from me?”). Also, a focus on the expectations of the other side may focus the parties on the future, elevating the discussion from past misdeeds to available solutions. Finally, focusing on expectations of the other side will bring forward the larger, critical expectations that delineate the dispute (remember, the right side of the equation is larger in the mind of each disputant).
- “What is Important to You about Your Expectations from the Other?”
Next, the dispute resolution professional can help the parties analyze the values behind each of their expectations of the other. While motivations are not always stated upfront, each disputant will have deeper personal values that underlie the expectations they have for the other side. If their expectations are worth engaging in unhealthy conflict, they will be profoundly important to the disputants. Describing and deliberating on these values fulfill a number of productive functions in handling the dispute:
First, this conversation allows the parties to express the emotional core of their positions—the values on which they hinge their demands of the other side often have a strong emotional component. This expression of the emotional core then shifts the emotional component of the discussion to a more rational level. When the emotional centers of the brain—the fight-or-flight mechanisms of the lower brain structures—are active, they short-circuit the more rational levels, hindering problem-solving and decision-making. So, negotiating with emotions is akin to offering an amount of money to someone to not be afraid; whereas, speaking to someone about their fears is akin to psychotherapy, allowing them to think through and rationalize the thought processes behind their fears.
Furthermore, when the parties express the emotional core behind their expectations, it brings each party to express the motivations behind their demands. While unassisted disputants tend to focus on stating complaints and demands instead of explaining them, this conversation reveals their internal thinking. This may lead to overlaps in values and goals between the parties (e.g., “It appears that both of you believe in the value of a close parent-child relationship”), from which the dispute resolution professional can build a mutual agenda for negotiation. However, even when they do not overlap, discussing underlying values may better allow the parties to understand each other and discuss their differences. Because these values are internal to each disputant, they cannot be debated or contradicted—for better or worse, it is what the other side is thinking. If they argue over their respective interpretations, they will be using their differing perspectives to offer each other new ways of thinking, they will be debating perspectives rather than attacking each other personally, and they should be better able to “agree to disagree” on what they cannot change and negotiate with their differing perspectives in mind.
Finally, stating the values behind their expectations of the other side will establish a high benchmark (the right side of the equation being larger than the left side) from which each disputant’s expectations for themselves can be measured…
- “…And What are Your Expectations from Yourself in this Situation?”
Disputants are often only able to discuss their own contributions to a conflict after they have fully expressed their demands (their expectations from the other side) and the emotions and justifications behind these demands (the values underlying these expectations). So, after a lengthy discussion of expectations and values, shifting the disputants from a focus on the other to a focus on themselves should feel logical and organic. And, because the parties have expressed high expectations of each other and then argued that these demands are supported by their personal values, they will then be confronted with applying these standards to themselves. Human beings have a deep psychological tendency toward consistency and should find it mentally grating to demand one standard from the other side and then apply a different standard to themselves.
I would predict that, placed in this situation, most parties will make a reciprocal demand/offer (i.e., “I’d be willing to do action in line with this value system if the other side did as well”).
Thus, I would argue that the above formula is a useful schematic for defining disputes and that the proposed three questions will best solve the equation and resolve the dispute.
It’s a common mediation experience. You are sitting with two disputants, keeping a conversation alive by avoiding inflammatory words and topics, when one or both of the parties come down from their initial positions to reach an agreement. Though they are common enough, these moments are referred to as “mediation magic.” The mediator does not know exactly what he or she did, but it worked.
This occurrence may be explained by an article in the Journal of Personality and Social Psychology described here. Researchers conducted a series of studies on the effects of priming either action or inaction on whether subjects changed their minds on an issue.
The outcome of these studies are that people are more likely to change their minds when primed to inaction (e.g., wait, slow, calm) and more likely to maintain their current opinions when primed to action (e.g., go, energy, motivation). The researchers surmised that being prepared to act brings existing opinions to the forefront of the mind, while being prepared to wait allows people to better scrutinize their ideas.
This lesson is also reflected in wisdom on creative problem-solving. This is why the first rule of brainstorming is to suspend judgment (action)–when participants move toward action, they hinder their ability to think in new and different ways.
How can these lessons be used by mediators? First, they indicate that you should not motivate participants to act. Asking the parties, “What are the two of you going to do about this?” will draw out their existing positions. Meanwhile, encouraging the parties to be calm, wait, listen, and take a break if necessary, will give them the breathing room to reconsider their thinking. Though action is necessary for the mediation to be productive, disputants are often already motivated to not be sitting across the table from an adversary, and resolution is one option for satiating the natural tendency toward conflict-avoidance.
Thus, a winning mediation strategy involves keeping the participants present in the conflict while encouraging them to be patient and wait.
On May 19, 2017, the Ohio Mediation Association will hold its first multi-session Annual Conference. Different speakers in the morning and afternoon will allow for multiple perspectives, more information, and a better experience for the audience. Our morning presenter is Dr. Tanya Menon, a notable researcher on the psychology of negotiation, and our afternoon presenter is Jerry Weiss, a mediator who is an experienced practitioner and lecturer.
Dr. Tanya Menon
Dr. Menon’s presentation is entitled “Using Questions to Encourage Collaboration.”
Because well-crafted questions are a key tool for facilitative mediation, Dr. Menon will provide exercises and analysis on the many uses of questions in negotiations.
First, questions can exert influence without exerting power. Dr. Menon will begin her presentation with a multimedia illustration on effective questioning that includes best uses of open-ended vs. close-ended questions and how to use questions to empower opponents in positive directions. She will also discuss psychological principles of persuasion, choice as a double-edged sword, and the power of positive and negative language.
Next, questions can hurt or hinder our ability to bridge perspectives in order to solve problems. In this segment, participants will engage in an interactive communications exercise that will demonstrate the conversational traps that arise from perspectives that are subtly, yet importantly, different. This exercise will be a challenge for communications professionals, and it will also remind participants of the struggles that disputants experience at the mediation table. Dr. Menon will again discuss pertinent theories in the psychology of conflict resolution.
Finally, Dr. Menon will present new ideas on using questions to generate creativity. Concepts beyond standard brainstorming will be presented and explored. These exercises will allow disputants to consider their problems in more flexible angles and allow mediators to guide the generation of more options for parties to consider.
Jerry Weiss is a civil mediator who maintains an eye for the emotional component to negotiations and an openness to the transformative potential of mediation. Though Jerry remains one of the longest full-time mediation practitioners in Ohio, he has remained active as a lecturer, serving as an adjunct law professor and delivering nearly 60 presentations on mediation across the US, Canada, and New Zealand.
Jerry’s presentation is entitled “Heart, Mind, and Soul: Insights from a Career of Reflective Mediation and Tools for Reinvigorating the Practice of Mediation.”
Jerry will be packing a career’s worth of practical insight into a three-hour presentation. His lectures will involve a mix of practical tools, personal anecdotes, useful research, thoughts on the inner workings of mediation, and a variety of frameworks that Jerry has found to be useful in his career as a mediator. Jerry sees many mediators taking a rote, overly-methodical approach to disputes. He will present the reasons and methods for empowering the emotional core of mediation.
Jerry’s presentation will touch on a wide variety of topics, all aiming to improve your mediation practice. His presentation will end with a lengthy armchair discussion and Q&A. As a dedicated and reflective practitioner, an experienced teacher, and long-time mediation advocate, we are sure that Jerry will be able to provide participants with much insight.
Mediation continues to struggle as a profession. In fact, many doubt that we are a profession, confident that all of the skills required for mediation are already held by experienced attorneys or could be easily taught in a weekend-long training to volunteers. And, if mediation is already fully developed as a process and profession, then those skeptics are correct. Mediation is underused and most practicing mediators do not have extensive mediation training.
The reason for this is that mediation has been stinted in its development and still has room to grow. When mediation was first introduced in America, it faced fierce opposition as a new and different process. As a result, mediation adopted the ideal of impartiality–using the impartiality of judges as a familiar analog. Impartiality can also leave mediators fearful of using influence in the process.
Mediators can be more than a crossing guard, making sure that disputants do not speak over each other. Mediators can be more than the people who remind parties about the risk and expense of going to court.
This is not to say that we should carry the power of attorneys to predict courtroom outcomes or the power of judges to decide these outcomes. We have no power. But a lack of power allows for freedom.
Unlike judges and attorneys, mediators have the freedom to disagree with disputants. Attorneys must appease their clients, and judges must maintain an air of impartiality prior to making a decision. Mediators, on the other hand, have the freedom to speak discomforting truths. But, because disputants can discontinue mediation the moment they feel offended, we must speak these discomforting truths with supreme levels of skill and persuasion.
This is why we must continue to expand and develop our mediation skills. Though the basics of mediation can be taught to anyone in a relatively short amount of time, it takes a large toolbox and nuanced skill to weld a lack of power in a powerful way. However, in order to develop our skills and tools, we must learn from each other and look to new and different sources of knowledge.
This is why our bi-monthly meetings are shifting to skill-building round-table discussions. We are the professionals who are searching for better ways to mediate. Though the flood of clients did not coalesce when the public learned about and accepted the basic mediation process, we now have the legitimacy to try new and different things. So, our aspiration with these skill-building sessions is that each participant shares his or her favorite mediation tool, and everyone walks away with a full toolbox.
This is also why we looked to present different, practical perspectives at our upcoming Annual Conference. For the first time, we are presenting different speakers in the morning and afternoon and giving you the choice of attending one or both sessions. Our morning speaker is a Harvard and Stanford-educated academic who is highly prolific in the social science research of negotiation behaviors. Her work includes new ideas and frameworks that have the potential to deepen your mediation practice. Our afternoon speaker is an accomplished mediation practitioner who has remained reflective of his practice, delivering 60 conference presentations and teaching mediation as an adjunct law professor. He has build a full career of practical experience at the mediation table and will be sharing his favorite tools with you.
We hope to see you at our next skill-building meeting and at the Annual Conference on May 19th.