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Nathan Witkin

Free Half-Day Training for OMA Members

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From 1:30 to 5:00pm on October 18, 2019, the Ohio Mediation Association is offering members a free half-day training in motivational interviewing.

James Portner, LISW-S LICDC-CS, will be presenting an overview and ethical considerations of motivational interviewing. Motivational Interviewing (MI) is an evidence-based practice developed to increase people’s motivation to change through collaborative conversations in an environment of compassion and empathy. The primary objective of this training series is to teach individuals the technical and relational skills of MI within the framework of the latest 3rd edition of William R. Miller and Stephen Rollnicks’; Motivational Interviewing; Helping People Change.

Many parties cannot contemplate compromise solutions to their dispute. MI could be a way to develop the parties’ motivations to change (likely in caucus). We have applied for CLEs and CEUs.

To Register, fill out this SurveyMonkey survey: https://www.surveymonkey.com/r/BXQW57W.

Member Spotlight: Tony Castelli

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This Member Spotlight features Tony Castelli, an accident and injury attorney who mediates insurance cases for several courts as well as private mediations for many types of civil cases.

Tony began his career as a social worker in 1973 before going to law school while working full time. He graduated and passed the Ohio Bar in 1981 and began practicing at a law firm where he would later become a Partner. He began his private practice in 1998, representing plaintiffs who have suffered injuries.

Tony is Vice-Chair of the Cincinnati Bar Association Alternative Dispute Resolution Section and has attended a week-long training at Harvard’s Program on Negotiation.

Where do you practice mediation, and what kinds of cases do you mediate?

I mediate cases throughout Ohio but primarily in the Greater Cincinnati Area.

From you experience practicing mediation, why do you believe that the mediation process is an effective process for resolving disputes?

Mediation causes the insurance company take a look at the case and put a value to it before significant money is spent on litigation. People get to be heard and are aware they are heard. So tactical active listening and empathy are critical.

What is your general philosophy or approach to mediation?

I like to give my own opening statement, but not the parties. I use both caucuses and joint sessions. I think the mediator should act as a communication facilitator by asking questions and enforcing ground rules. I like mediating through understanding as taught at Harvard’s program on negotiation. as well as using FBI hostage negotiation techniques. Although I’ve used the word “I” in this summary, it is something I stay away from in mediations.

What characteristics do you have that come in handy during mediations?

I reality test, often called “the legal table.” I am personable and know how to listen without interrupting. I know how to reframe and summarize. I know how to show empathy.

What advice would you give to disputants looking for a mediator?

Ask other lawyers, use the internet. Look for subject matter expertise, though that is not critical with a good mediator.

What are your thoughts on the development of mediation as a profession, practice, or field of study?

I think mediators try to become amateur psychologists and make things too complicated. Others are poorly trained and just carry offers back and forth. I enjoy meeting people and using the techniques I’ve learned to help the parties fashion a solution that works for both/all off them. Many mediators do not even introduce all of the parties to each other because they start in caucus. Starting off with this degree of disconnect between the parties is demeaning and prevents deeper resolutions, and yet, this practice is rampant. Why? Because they are afraid they or their client will anger the other side (back when every lawyer was trying their case in opening).

Member Spotlight: Edward Krauss

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This month’s member spotlight is our past president and elder statesman of mediation, Ed Krauss.

Ed served on the Ohio Commission on Dispute Resolution and Conflict Management before it was eliminated in statewide budget cuts in 2009.  He has been a diligent advocate for mediators in Ohio, and we appreciate his efforts.

More information about Ed is found on this website at https://www.mediateohio.org/members/krauss-edward/

Read below to learn more about Ed and his approach to mediation.

Where do you practice mediation, and what kinds of cases do you mediate?

I mediate anywhere within a four-hour drive of Columbus. I’ve mediated several cases in West Virginia and along the southern rim of Ohio. None yet in Detroit or Ann Arbor, but I’d be pleased to do so. Most of my practice is in or near Central Ohio.
Although I’ve done a wide range of mediations, including domestic (parenting agreements for married and never-married parents), my specialties are two:
Employment/personnel disputes. I have mediated approximately 240 cases for the United States Postal Service, plus numerous cases for government offices and the private sector.
Financial disputes. These have included property evaluations by the county, historical preservation, land use, economic development, taxes, contracts, repairs to vehicles and homes. The largest case was fifteen million dollars.

From your experience practicing mediation, why do you believe that the mediation process is an effective process for resolving disputes?

When parties to a dispute are in mediation they have the power to decide the outcome. Of course they share that power, and both have a veto, which requires the mediator to help them work as a team, even if reluctantly, to find a mutually-acceptable resolution. In a court proceeding the parties have no power, the court has it all. In addition, a case will often take more than a year to get a court date due to various legal processes before the day in court, and two years is not uncommon. With mediation the question is “What is your schedule in two weeks?”

What is your general philosophy or approach to mediation?

I am a facilitative mediator. I don’t say who might be right or wrong, don’t offer any comments that sound like legal or financial advice. Rather, I help the parties find their own solution(s) by asking appropriate questions and helping the parties in their search for an acceptable outcome. In the words of my first instructor, Shelley Whalen, I defend the process.

What characteristics do you have that come in handy during mediations?

I have over three thousand hours of at-the-table experience. This is beneficial because mediation is both a science and an art. The science is the basic structure of mediation, guiding people through the search for an outcome acceptable to all parties, a process of organized problem solving. I’ve learned this and polished that learning through hundreds of hours of classes, including the excellent training opportunities offered by the Ohio Mediation Association (OMA). As for the art, all those hours at the table has allowed me to have a good feel for what to ask when, how to respond to anger or stubbornness or frustration or all the other emotions and behaviors that may be present. I’ve worked with many attorneys and know and appreciate their roles in providing advice and counsel to their clients during a mediation.

What advice would you give to disputants looking for a mediator?

Look on the OMA web site and read what mediators say about their experience and areas of practice. Give them a call or email; mediators are glad to hear from people interested in this form of dispute resolution and will explain what they do, how they work, what the fees are.

What are your thoughts on the development of mediation as a profession, practice, or field of study?

The biggest hurdle the profession faces is that mediation is rarely a part of the shared knowledge about how to resolve disputes – it is not in the American lexicon to any significant extent. When people are caught up in a conflict mediation does not readily come to mind as a way to find a positive outcome. OMA works to spread the word, to expand the use of mediation in the general public, but it is a true challenge.

What advice would you give to new mediators?

[1] Never forget that it is not your problem. You are there to help the parties share ideas and discuss the possible mutually-acceptable resolutions that may arise. If you are the hardest working person in the room it isn’t mediation.
[2] Questions are your friends. If you aren’t sure about something, ask. “How did it impact your company when the check bounced? What was your understanding of when the work would be completed? Which parent will carry the health insurance for the children?” If you have a question in your head, ask it.
[3] Silence is your friend. Often after an hour or two a point is reached where the two sides are showing movement toward a settlement, but seem stuck. Caucus is a valuable tool at this point, but before a caucus try this: Clearly state where both sides are, what has been decided, what has yet to be resolved. Verbally hold it up for them to see. Then SIT THERE. Don’t make hard eye contact; fiddle with your notes, jot things down, let them think. The chance that one of them will make a new offer in thirty seconds or less is high. It doesn’t mean the case will settle for sure, but it is a breakthrough moment, a way of getting past stuck. In general, don’t rush things, give people time to think, to consider, to formulate their next proposal.

Member Spotlight: Leah Hadley

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Leah is a CDFA and an MAFF.  Her website is https://www.greatlakesdfs.com

The first installment of our blog’s member spotlight series features Leah Hadley.

Located in Cleveland (but available by Zoom video conference), Leah works on domestic relations cases and specializes in financial analysis.

Financial issues in divorces are difficult, and and it is easier to negotiate knowing that the other side is fully disclosing assets.  Also, financial expertise helps each side understand the long-term consequences of particular divisions of assets and debts.

Leah was good enough to answer our questions:

Where do you practice mediation, and what kinds of cases do you mediate?

I practice in the Cleveland-area as well as virtually via Zoom video conferencing. My main office is in Middleburg Hts and I use office space in Beachwood and Westlake.

I primarily mediate domestic relations cases. With CDFA (Certified Divorce Financial Analyst) and MAFF (Master Analyst in Financial Forensics) designations, the majority of my cases have some level of financial complexity.

From your experience practicing mediation, why do you believe that the mediation process is an effective process for resolving disputes?

Mediation gives everyone a voice in the negotiation process, allowing parties to come up with their own solution that will work best for them. It also gives them much greater control over the outcome than if they use the court to determine their settlement.

What is your general philosophy or approach to mediation?

I begin each mediation by creating a clear framework for us to work within, laying out the process as well as ground rules. I work with the parties to identify the topics that need to be discussed and teach them communication strategies to make the most of their mediation sessions. I utilize my financial background by demonstrating the impact of proposals that are under consideration with the help of financial modeling software. I find the use of charts and graphs to be particularly helpful for those parties with limited financial knowledge, providing a visual illustration of various outcomes.

What characteristics do you have that come in handy during mediations?

One of the most important characteristics of a good mediator is that they are a good listener. Active listening has always come naturally to me and I model it for my clients. It is so important for everyone involved in a mediation to feel heard

My background is in financial analysis so many of the mediations that I facilitate involve some level of financial complexity. Having a strong financial background helps me know what questions to ask to help parties consider a variety of solutions.

What advice would you give to disputants looking for a mediator?

Look for an experienced mediator who has demonstrated a commitment to the practice of mediation. Ask them about their experience mediating cases like yours. Most importantly, find someone who you feel comfortable with, someone who you think will help you to stay calm and clear-headed as you negotiate your settlement.

What advice would you give to new mediators?

I would recommend that new mediators connect with more experienced mediators in either a practice group or informally. When I have a tough case, I find tremendous value in being able to discuss how to approach certain issues with my colleagues.

Reflections on the 2019 Annual Conference

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For our 2019 Annual Conference, we were fortunate to have clinical psychologist Dr. Joseph Shannon speak to us. His talk was a mixture of up-to-date research on the science of personality disorders, anecdotes involving personality disordered people, and tips on how to address people with different types of personality disorders.

The first lesson I took away from Dr. Shannon’s talk was on how to guide disputants in coming to terms with the other party’s inflexibility. A personality disorder is defined as an enduring pattern of behavior that causes emotional distress unrelated to substance abuse or other diagnosable mental health issue. When counseling people who are in a professional, family, or romantic relationship with someone causing them distress, Dr. Shannon asks them whether this behavior occurs with other people and contexts. If it does, he attempts to redirect them away from attempting to change that person (research indicates that personality disorders require years of therapy and some are impossible to change).

The next lesson was to be direct, respectful, and assertive with people who have dramatic, anxious, or antisocial personality disorders. However, this does not apply to malignant narcissists (people who have lost compassionate parts of their brain). To address a narcissist, be honest with them, point out their strengths, and appeal to their selfish self-interest to convince them that adopting pro-social behaviors will benefit them.

Dr. Shannon also provided us with a general framework for reasoning with unreasonable people and a variety of tips for deescalating conflict.

The pathway for reasoning with unreasonable people included:

  1. Lead with empathy and respect to make the person feel validated and heard;
  2. Set boundaries and be consistent;
  3. Identify a strength and genuinely complement it;
  4. Tie that identified strength to your process (show them how pursuing their best selves will lead to a resolution of their dispute).

Tips for deescalation included:

  1. Keep yourself calm and relaxed;
  2. Help them take a deep breath with a slow exhale (the slow exhale brings blood to the brain to improve thinking);
  3. Face the person with consistent eye contact;
  4. Speak in a soft, slow, and measured tone (this will calm them and calm you);
  5. Ask open-ended questions;
  6. Ask them to count from 1 to 10 slowly (note: this is the most effective evidence-based practice for calming someone down).

Membership Meeting Brainstorm

For our membership meeting this year, we held a structured brainstorming session in which we identified topics for OMA to address and then had groups brainstorm ideas under each topic. The topic areas were publicity, professional development, community mediation, events, and miscellaneous.

The publicity team suggested cross-pollination with other professional organizations, giving talks to other groups about mediation, and OMA “ambassadors.”

The professional development team suggested a practitioner’s bootcamp, mentoring program, and co-mediation referral system.

The community mediation team discussed trainings that we could offer in the community, community liaison roles for different regions, and referral sources.

The events team suggested that we co-sponsor a training with MANO, train attorneys on how to prep clients for mediation,

And the miscellaneous team suggested that we develop tech tools for mediators, share training resources, develop an app, and connect the pubic to mediators.

These ideas therefore pointed to an regional OMA ambassador role (connecting the public to mediators, speaking to local organizations) and a referral network (connecting mediators with other mediators).  If you are interested in implementing either of these ideas, start a conversation in the comment section below or email omapresident@gmail.com.

Better World Award

Finally, this year our Better World Award went to Shirley Cochran. Shirley is an OMA past-president and an early advocate of mediation who has consistently given her time and effort to helping mediators in Ohio. She was instrumental in implementing a program that convinced judges of the usefulness of mediation, and she is known widely for mentoring and defending mediators without compensation. Because of the good turnout at this year’s conference, we had all subsequent OMA presidents to recognize Shirley’s remarkable set of achievements.

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.