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Nathan Witkin

Questions for Mediators When Children Resist Contact with a Parent

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Mediations which include custody and parenting time can be very complex, especially when the family dynamics are complicated. Effective mediation requires close attention to the roles each party demonstrates in the session as well as any observable power dynamics. Mediators can ask questions that help identify and disrupt any negative dynamic during the mediation sessions. Asking the right questions is especially important when a high-conflict family is experiencing a child or children resisting contact with one of the parents.

In this article, we will look at two decision points a mediator can consider to determine if and how mediation of parenting time is an appropriate support for the family when a child is resisting or refusing to spend time with a parent. Additionally, we can consider ways mediation can best support the family. Consider these two decision points for giving a “green light” for mediation:

Are both parents willing to do all they can to support a relationship with both parents? Can the mediator discern that the parents are both sincerely committed to seeking resources and taking steps for the child(ren) to have as high-quality of a relationship with both parents as possible?

AND / OR

Do the parents agree to seek a mediated parenting plan which gives one parent significantly more time and more decision-making for the child(ren)?

Absent a “yes” to one or both of these questions, parenting time mediation is not an appropriate service for a family experiencing contact problems. When the parents are in conflict and do not agree that it is in the children’s best interest for the children to spend quality time and nurture a good relationship with both parents, other more appropriate services include education, counseling, coaching, co-parent coaching and/or parenting coordination. Mediators, even if they are qualified by training or experience, cannot advise a family how to address the refusal or resistance dynamic; specialized professionals are needed to teach or coach the parties to a new understanding, dynamic or commitment to sincerely support the child’s relationship with both parents.

One family in which I have an on-going role as the mediator, includes 3 children, all of whom state they “hate” their father and want to live with their mother full-time. The “Stone” parents report the children are adamant about moving to another state with their mother and are refusing all contact with their father, except for occasional shopping trips for sports equipment or back-to-school clothing. The mother insists the father is irresponsible and mean-spirited, withholding needed financial support. Mother states Father has all the power since he has an income and she is unemployed. Father insists he is losing “everything” since he pays child support and does not get to spend quality time with the children. I met with these parents in a joint session to mediate a new long-distance parenting plan. They agreed on #2, above, that Father will have significantly less time and impact on the children. Father does not want to pursue a legal route to attempt to remedy the situation; he wishes to mediate a plan that includes family counseling and gives him the right to exercise limited parenting time in the future, should the alignment between the children and mother shift, and allow the children to be free from the adult conflict.

As in all my initial mediation sessions with families experiencing contact resistance or refusal, I ask parents to come up with 6-8 statements of what they would like to create in order to support the best interests of their child(ren), and write these statements as the “vision” of success for the family. This is the first important step in uncovering and transforming parental dysfunction. Many parents openly report they want their child(ren) to freely love and enjoy both parents, have more ease in their co-parent communications, or create a schedule that maximizes the parenting time for each parent. In the case of the “Stone” family, the shared vision includes having children benefit from the resources of both parents and become independent thinkers as they grow through their teenage years.

It is a serious error for mediators to advise clients on what is best for them or their children, just like we cannot give legal advice. However, it is imperative mediators also not err by omitting relevant discussion addressing important factors in the family. When the children are resisting or refusing contact, important questions catalyze meaningful and significant conversation. In the case of the Stone family, I asked:

Have you had a professional assessment to determine if additional resources are needed to support the family?

How does Mother’s experience of Father affect the children’s opinions of Father?

What options can you consider to address the resistance and refusal dynamic in your family?

What specific goals do you have relating to the child’s relationship with each parent?

What special needs do the children have that may need to be addressed?

What are the expectations for communication between the child(ren) and each parent?

What, how and when will the parents communicate with each other on an on-going basis?

How can you provide an environment to keep the children out of the adult conflict?

One of the biggest mistakes parents make in complex custody and parenting time mediations is minimizing the impact of disrupted parent-child relationships. A lack of parenting time can deprive the child of important resources and interfere with normal development. Parenting time is a significant adult decision, not to be minimized by disgruntled “ex’s” or wished away by children speaking on behalf of a preferred parent. Mediators serve the family best when they invite discussion that supports both parents and invites them both to participate as fully and as safely as possible in the lives of their children.

The mother in the Stone family has tried to speak for the children as a way of supporting her alignment with them. As the mediator, I continuously remind the mother I am not aligning with her narrative or analysis of why the contact problems persist. I am focused only on facilitating authentic agreements and referring out the complex issues of loyalty binds or poor parenting to their professionals. With the Stone parents, I am focused on bringing the parents to a place of agreement on parenting time should the father choose to exercise his right to have specific time with the children at some point in the future.

As in the case of the Stone Family, mediations for families where a child is resisting or refusing contact require careful attention to the complexity of the family dynamic and awareness of the positive impact a mediator’s questions can have on the family.

For more information on helpful ways families and professionals can address contact problems, attend the Workshop for Resisted Parents and Professionals Who Work With Themon September 15, 2018 in Delaware, Ohio. More information on this training may be found here.

Amy Armstrong, PCI Certified Parent Coach®, Mediator, Parenting Coordinatorat The Center for Family Resolution www.thecenterforfamilyresolution.com

Reactions to the 2018 Annual Conference

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On April 27, 2018, the Ohio Mediation Association convened its Annual Conference at the event center of the Bob Evan’s national headquarters in New Albany.  Our speakers were crisis negotiator, Det. Terrence Kelley, and nationally renowned mediator, Zena Zumeta.  Each discussed a process that was not traditional mediation but presented useful insights for mediators.

Detective Terrence Kelley

Det. Kelley gave a dynamic presentation from the front lines of crisis negotiation, with stories from hundreds of police barricades and even audio and video clips of crises that he deescalated.  In his experience, people in crisis are inwardly focused, they are triggered by an event that had occurred 24-48 hours before the police are called, and resolving the crisis is about finding the trigger and talking the person through it. The average negotiation is 4.5 hours, with many people burning out after 90 minutes (when stress hormones are depleted).

 

Detective Kelley’s presentation demonstrated how similar crisis negotiation techniques are to mediation techniques.  Crisis negotiators essentially use active listening skills to calm the subject down until they are ready to surrender to the authorities.  Key takeaways were to never let an emotion go unlabeled, to find and build from positive emotions (e.g., pride commitment, devotion), to use effective pauses to draw attention to important things just said, to use open-ended questions that defy a one-word answer (e.g., “Tell me about…”), and to use voice to slow and soften the conversation.  By being persistently respectful while using many active listening skills also employed by mediators, crisis negotiators are able to diffuse deadly situations.

One idea I had from listening to subjects hang up on Det. Kelley multiple times before eventually surrendering is that mediators could give high-stress disputants a “walk-out” room. In their openings, mediators could point out the “walk-out room” where parties can go if they are feeling overwhelmed. This would allow parties to exit a situation in the mediation that is unbearable without terminating the entire mediation.  Think of it as a pressure valve.  It seemed that many of the subjects Det. Kelley confronted were hanging up when the conversation became too intense but could come back to the conversation when they cooled down.

Thus, Det. Kelley’s presentation was interesting, dynamic, and insightful.

Zena Zumeta

Next, Zena Zumeta gave a presentation on another process that has similarities with mediation—conflict coaching.  Conflict coaching was originally developed by mediators when one disputant does not show up for the mediation session and the disputant who did appear still wants advice on dealing with conflict.  Conflict coaching is an interesting skill that our private practice mediators could put to better use in the many cases in which one disputant refuses to come to the table.

However, this presentation also had interesting implications for mediators conducting mediations. Zena’s presentation revolved around the idea that people think and talk in stories.  Conflict coaches help their clients understand their situation and craft the best possible story.  This could be used by mediators in caucus to bring disputants to think deeply about their side of the conflict.  Encouraging disputants to explore their stories is a way of getting them to step back and analyze their actions from a more-objective, outside perspective.  The sense that I get is that people want to maintain a story in which they are the hero, and because heroes do not squabble, an outside perspective may bring them to adopt the noble stances from which conflicts are more likely resolved.

So, the next time you have to give a disputant bad news that the other side is avoiding mediation, you could tell them about conflict coaching and help guide them to craft a best possible story given their situation.

Ed Leaves the Board

2018 marked 8 years of Ed Krauss’s leadership on the OMA Executive Board.  As Vice President and then President, Ed helped to guide the Ohio Mediation Association into the organization it is today.  Professional associations of mediators across the United States have been on the decline in recent years, but Ed helped OMA stay afloat amid these challenges.  His warm and friendly presence on the Board will be missed, and we wish him success in his future endeavors.

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.

The Benefits of Shared Parenting: A Conversation with Dr. Donald Hubin

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The vast majority of parenting arrangements are created by agreement of the parents.  It is therefore critical that mediators, as the professionals that facilitate parenting negotiations, remain knowledgeable about the current research on the effects of different parenting plans on families and children.
Towards this end, two OMA Board members met with and interviewed Dr. Donald Hubin, the Ohio affiliate of the National Parents Organization.  Dr. Hubin directed us to recent research on the effects of shared parenting arrangements, and encouraged us to share this research with you.
As described below, this research presents a scientific consensus on the benefits of shared parenting as compared to sole custody parenting arrangements.  First, in the early stages of child development, having a stable relationship with each parent increases a child’s odds of forming secure attachments.  The benefits of attachment theory are supported by research comparing the child’s attachment to each parent at 15 months to the behavior of the same child at age 8, and showing that at least one stable relationship produce better behavior in later childhood.  An interesting note from this research is that it did not matter whether the stable relationship was with the mother or the father.  Experts on parenting also note that mothers and fathers each provide some unique contributions to child development.  These and another data undermine the assumption that young children should spend maximum time with one parent.
Second, Dr. Hubin notes that children experience the loss of a relationship as a traumatic event.  Research on parenting notes the troubling effect of one parent dropping out of the child’s life when provided an unsatisfactorily small amount of parenting time.  Empirical research also indicates that majority of fathers and children want parenting plans that are closer to equal time than alternating weekends with a midweek non-overnight.  Analysis of American parents who are living together finds that average parenting responsibilities are divided 64% to the mother and 36% to the father (or a little less than 2.5 days per week for the father and a little more than a 4.5 days per week for the mother, if divided into distinct days).  This may be why there is an emerging consensus among researchers that 33% is the minimum standard amount of parenting time to establish a culturally normal relationship between parent and child.  Anything less than the amount of contact established during the parent’s cohabitation could be seen as a loss to the child and nonresidential parent.
While there is optimism for the benefits of more equal parenting time, shared parenting arrangements can have negative effects on children if the parent gaining time is violent, neglectful, or mentally ill and/or if either parent directly involves the child in inter-parental conflict.  It should be noted that inter-parental conflict may be managed with arrangements that involve fewer exchanges and neutral exchange points (in which the parents do not interact).  However, after controlling for other factors, researchers have found that children are more satisfied and better adjusted in shared parenting arrangements, regardless of the levels of inter-parental conflict.  While high-conflict parenting is harmful to children regardless of parenting time divisions, it seems that shared parenting arrangements are protective against parental conflict and other harms facing children.  This appears to be true even though 80% of shared parenting arrangements reported involved at least one reluctant parent at the outset.
The overall finding is that more contact with nonresidential parents creates benefits for children that do not come at the expense of the relationship with the residential parent.  After reviewing the research, I would hypothesize that residential parents who push the other parent away put the child through a traumatic loss of relationship that harms that child’s ability to form secure attachments.  Greediness by parents at the mediation table may therefore harm their own long-term relationship with the child as well as the emotional, social, and academic outcomes for the child growing up.

The Professional Practice of Mediation

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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.

Credentialing Conference Call

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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.

 

Conclusion:

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.

Debriefing the 2017 OMA Annual Conference

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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 Articles: Pro and Con

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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.

Defining and Solving the Dispute Equation

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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.

Explanation

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.

Application

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:

  1. “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).

  1. “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…

  1. “…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.

Wait: The Magic of Mediation

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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.