November 29, 2012

Regulating the Rogue Mediator

By Art Hinshaw

At the Works-in-Progress Conference at Ohio State (again, great job putting the conference together) I presented an early draft of a paper entitled Regulating the Rogue Mediator.  The abstract is below, and yes it is the longest abstract in the history of mankind.

At present the private practice of mediation is unlicensed and unregulated.  Barriers to entry into the field are virtually non-existent and there is no systemic method of protecting the public and the profession from unscrupulous mediators.  For those unfamiliar with the problems unscrupulous mediators create, I present the Arizona experience.  Over a eight-year period from 1998 to 2006 an Arizona “mediator” generated 34 complaints to the State Bar and the Arizona Attorney General’s Office.  Because of the lack of any kind of mediation-related infrastructure both entities felt powerless to address the mounting complaints.  While this rogue mediator’s actions eventually ended in a 16 year prison sentence, the lack of an entity devoted to regulating mediators resulted in harm to numerous people over an eight year period.  Against the backdrop of this extreme case, this project considers whether it is time for the states to regulate mediators. 

As the field continues to professionalize, the issue of regulation attracts more interest, particularly among practitioners.  Regulation serves both the public’s interest in protection from the unscrupulous and the practitioners’ interests of limiting the supply of mediators and increasing the profession’s profile.  State regulation has yet to catch on for a couple of reasons, most notably because of the difficulty in defining mediation in a manner that places legitimate boundaries around its practice and the field field’s lack of agreement on enforceable standards of practice. Furthermore, lawyers have a near monopoly on conflict resolution services and many fear that regulation may push non-lawyer mediators out of the field.  This article refutes these short-sighted arguments because they focus on the field’s past disagreements without recognizing the viability of regulation that allows the field to retain its current levels of flexibility and creativity.  

This article proposes the regulation of compensated mediators who invoke the protection of state and federal mediation rules and statutes.  Such a mechanism captures those who provide the most recognized professional services under the mediation label while protecting against overbreadth problems.  Regulation can take one of three forms: registration, certification, or licensure.  Registration, while able to ensure meaningful entry requirements, is unlikely to provide sufficient oversight.  Between certification and licensure, the only real difference is that it is typically illegal for unlicensed individuals to perform a licensed service.  For that reason, this article proposes certification over licensure. 

The best method for determining entry requirements, continuing practice requirements, and sanctionable conduct would be a large-scale dispute system design process.  Such projects have proven surprisingly difficult, however, so this article proposes a jumping-off place for the discussion: entry-level requirements of training plus an apprenticeship period, regulation by an entity that is already in existence (State ADR office/State Supreme Court), and a complaint system based on minimal competency.  Several state Supreme Courts already have programs that could be models, and the fees for certification and continued certification could support the added costs for running the program.

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