Alternative Dispute Resolution
Proposed Court Rules Introduce Mediation-Specific Qualifications for Neutrals Serving in Court-Annexed ADR Programs
INTRODUCTION—QUESTIONS TO ASK
Proposed amendments to Michigan’s court rules would allow nonlawyers who complete training and meet other qualifications to serve as mediators under court-sponsored ADR programs. Individuals meeting the experience and training qualifications outlined in the rule may be listed on court-maintained mediator rosters.
Concerns have been raised that mediators without law school training, litigation experience, or recognized expertise in specialized areas of the law may be ill equipped to mediate disputes pending in the courts. Underlying these concerns is a desire to protect the public from poor-quality services or potentially unfair settlements that some fear may result from services rendered by well-meaning but unqualified mediators.
Concerns have also been expressed regarding possible abuses by mediators. Some are concerned that the proposed rule does not provide adequate control over and discipline of mediators who may abuse the mediation process or their role in it. They point out that mediators who are not lawyers are not bound to uphold the same codes of ethics and professional responsibility as the state’s licensed lawyers. Also, because such individuals are not lawyers, they would fall outside the scope of control exercised by the State Bar and would be beyond the reach of the legal profession’s grievance and disciplinary procedures.
Accentuating these concerns is the recognition that court-approved mediator rosters may be interpreted by the public as an endorsement, or may confer legitimacy to those whose names appear on the list. Therefore, it is especially important that the individuals whose names appear on those rosters possess genuine ability and integrity.
Citing these concerns, the State Bar of Michigan has recommended that mediators who are not lawyers should be prohibited from serving in court-annexed mediation programs. The State Bar offers this as a way to prevent or reduce potential abuses and to protect the public from unfair mediation results and poor-quality services.
The concerns and objectives summarized above are important. Michigan’s citizens should not be required to sacrifice service quality or risk abuse at the hands of the unskilled or the unscrupulous in order to avail themselves of mediation services. Efforts to protect the public from abuses and to ensure access to quality dispute resolution services are laudable and should be supported. However, before adopting measures that will exclude some of the state’s most experienced ADR professionals from serving the public in court-annexed programs, other less extreme alternatives should be explored. Perhaps solutions can be devised that safeguard the public and maximize, rather than restrict, the public’s access to this state’s existing ADR resources.
It is worthwhile to ask what is gained and what is lost if court mediator rosters were open only to licensed attorneys. Would the public interest be advanced or hindered by such a policy? Is such a policy necessary to ensure that available mediators possess genuine ability and integrity? We should ask whether restricting court mediator rosters to lawyers would prevent abuses, or at least ensure that any abuses will be dealt with promptly and appropriately. We should ask whether there exist other, less restrictive and exclusive means to address these concerns.
This article is intended to invite further discussion on these questions. We can draw on our own experience and that of others who have wrestled with these issues before us. What follows is more information, which, we believe adds balance to the debate: Do other-qualified mediators add value to court-annexed mediation programs? What does our own state’s history and experience with mediation teach us? How have program planners in other states resolved these issues? Do the proposed rules themselves offer solutions?
STRIKING A BALANCE—MEDIATION-SPECIFIC QUALIFICATIONS
The stakeholders in this conversation agree that the public interest is served by making mediation services more accessible, affordable, and effective, so long as those services are safe and fair. Some ADR proponents focus on mediation-specific qualifications and training as the best strategy to meet these goals.
Many ADR proponents believe that all individuals who have the appropriate mediation training and qualifications to serve as mediators should be allowed to do so. These proponents encourage program planners to adopt policies that would allow individuals whose mediation qualifications have developed in arenas other than the legal profession to serve in and contribute to court-annexed mediation programs. Many of these proponents are lawyers themselves. In fact, the Dispute Resolution Section of the American Bar Association adopted a formal resolution affirming this position in April of 1999.1
Even ADR proponents favoring more inclusive policies would not do away with eligibility criteria for mediators. On the contrary, they are likely to press for standards which are more stringent and rigorous, not less so. However, these standards would be mediation-specific, i.e., designed to gauge one’s ability to successfully perform the tasks of a mediator. These proponents would acknowledge that many lawyers are well-suited to perform these tasks. However, they note that neither a law degree, litigation experience, nor recognized subject-matter expertise stand as reliable predictors of mediator effectiveness. Naturally, such credentials are helpful in some cases; however, many ADR proponents would agree that these credentials, by themselves, do not adequately prepare one to serve as a mediator.2
Standards for qualifying all mediators for appointment to court-approved rosters should be carefully considered before they are adopted and implemented. No mediation program can succeed without well-trained, capable mediators to support it. No one wants to waste time, money, and other finite resources designing ADR programs that are unlikely to improve dispute resolution options for Michigan citizens.
To determine mediator eligibility criteria, it would be helpful to know which particular credentials or other factors are tied to mediator effectiveness. Certainly, if a correlation exists between a particular field of experience or professional education and mediation success, this information should be taken into account when setting mediator qualification standards. Few would dispute this. However, current research has not established a causal link between legal or other professional credentials and mediator effectiveness, integrity, or ability. Nor is there a body of evidence to establish that other-qualified mediators provide lower quality mediation services or pose higher risks of abusing the process or the public.
Eligibility criteria that would automatically preclude capable mediators from serving the public because they do not possess an attribute which may be unrelated to mediator effectiveness or personal integrity, do not accomplish the agreed upon goals and may be counterproductive. The best standards may be more mediation-specific.
OTHER-QUALIFIED MEDIATORS ADD VALUE TO COURT PROGRAMS
Do other-qualified mediators add value to court-annexed mediation programs? What is to be gained by including mediators from other disciplines?
The proposed rules contemplate that parties and their counsel will select their neutrals based on their own values, priorities, and objectives. Goals drive choices. The goals of program planners influence roster composition, i.e., eligibility requirements, who is on the list, and who is not. If program planners aspire to design successful dispute resolution programs, they are wise to pay careful attention to the goals of those likely to use the programs. User satisfaction translates into program success.
As participants become more familiar with mediation’s possibilities, they become more scrutinizing and sophisticated in choosing their mediator, taking care to match individual mediator styles and credentials to the needs of the case at hand. A diverse roster, offering a wide variety of qualified, well-trained mediators from multiple fields of experience and professional perspectives, may be seen as an advantage. It offers participants maximum control over their dispute resolution process. More control tends to enhance user satisfaction.
The proposed rules appropriately affirm the public’s right to design and utilize ADR options independent of court-sponsored programs. Proposed MCR 2.410(F)(6). However, it stands to reason that the overall quality and reputation of court-sponsored programs will benefit from regular and sustained use over time. A diverse roster, offering users a range of options, may encourage parties to select mediators from the courts’ rosters even for their independent ADR needs, thus enhancing the court program’s reputation and success.
By excluding other-qualified mediators from court rosters, an important learning opportunity may be missed. Michigan’s lawyer mediators and program planners have much to learn from their colleagues outside the legal profession. Some of this state’s most experienced mediators are not lawyers. Many of them have worked with courts to design pilot mediation programs and have trained lawyers and judges in mediation. The accumulated expertise of these other-qualified mediators is a resource, one that may prove invaluable as this state transitions from ad hoc to court-annexed ADR.
HISTORY IS REASSURING
History serves as a guide. Experience with mediators, both within this state and nationally, is instructive.
The work of other-qualified mediators, both within this state and nationally, is instructive. The practice of using third-party interveners goes back centuries in many cultures. In the United States, other-qualified mediators have played an important role in formal mediation programs in specific types of conflict for years. Parallel mediation processes, using other-qualified mediators, have developed over the last few decades in construction, health care, bankruptcy courts, the Community Relations division of the U.S. Department of Civil Rights, and community mediation programs in many states. Some of these use mediators with specific expertise in other professional fields.
Courts around the country began to incorporate facilitative mediation in state and federal court-annexed programs in the 1970s. One of the questions planners for many of these programs considered was whether parties would have access to other-qualified mediators through court-approved mediator rosters. Many states, including Georgia, North Carolina, Texas, and Virginia, include other-qualified mediators on court-approved mediator rosters, provided that they meet other mediation-specific criteria. The drafters of the proposed Uniform Mediation Act contemplated that courts and government entities may choose to appoint mediators from professions or backgrounds other than law.3
In Michigan, community-based mediation began in the early 1980s, with programs based in Detroit and Grand Rapids. These were modeled after U.S. Department of Justice programs in Atlanta and Los Angeles. In 1990, the Michigan Legislature created the Community Dispute Resolution Program (CDRP) Act,4 which funds community mediation services through court filing fees. The State Court Administrative Office (SCAO) provides program oversight. The programs now mediate cases referred from small claims, district, circuit, family, and probate courts, and conduct special programs for the U.S. Postal Service, U.S. Department of Agriculture, Michigan Department of Education, Michigan Department of Civil Rights, and Permanency Planning (Family Court). The CDRP program has also garnered a national reputation for its mediation skills training programs. Many of Michigan’s lawyer mediators received their early training in these programs. Nonetheless, most of the mediators serving in these programs do not have law degrees. Their ranks include corporate executives, educators, communication specialists, social workers, pastors, and other professionals.
THE PROPOSED RULES OFFER SAFEGUARDS
The proposed rules offer solutions and safeguards.
The proposed rules, themselves, offer reasonable safeguards to protect the public from potential abuses, unfair results, or poor quality mediation services. First, the rule grants the mediator no authority to decide whether, when, or on what terms a dispute may be resolved. If the case settles through mediation, it happens as a result of the parties’ voluntary and mutual decision to enter into an agreement. In addition, the rule contemplates a facilitative rule for the neutral rather than a strictly evaluative or award-rendering one. In other words, the primary task for participants in mediation is to deal with each other. Put simply, it is the mediators’ task to help them do so. Contrast this with the neutrals’ role described under the current version of MCR 2.4035 (evaluation) or an arbitrator’s role (award-rendering).
In addition, the proposed rules impose qualifications standards for mediators serving in court-approved ADR programs. Mediators who do not meet the necessary qualifications and training criteria will not be admitted to court rosters. Proposed MCR 2.411(C) (regarding qualifications for mediators in civil cases) and Proposed MCR 3.216(E) (regarding qualifications for mediators in domestic relations cases). The proposed court rules also call for regular evaluation and assessment of mediators’ performance and their adherence to program quality standards. Mediators failing to meet performance standards or otherwise maintain standards of conduct and quality may be removed from court rosters. Proposed MCR 2.411(A)(4) and 2.411(E).
The public interest is served by making mediation services more accessible, affordable, and effective, so long as those services are safe and fair. The proposed court rules on ADR strike a good balance. They incorporate safeguards to monitor and evaluate mediator performance, discourage abuses, and address problems if they occur. The rules include standards for disqualifying mediators from serving under court programs and removing them from court rosters when necessary.
Other-qualified mediators add value to court-annexed mediation programs. The term ‘‘mediation’’ encompasses a spectrum of mediation approaches, techniques, and skill sets. This is one of its strengths. Mediation is attractive because it has the flexibility to be what the participants need it to be; it reserves for the participants the right and the opportunity to decide for themselves what type of mediator will best serve them.
The proposed rules should broaden the public’s dispute resolution options, not restrict them. By incorporating mediation-specific eligibility criteria as a condition for appointment to court-approved rosters, the proposed rules allow court programs and the public to continue to benefit from the accumulated expertise of Michigan’s diverse mediation community.
1 The American Bar Association Section of Dispute Resolution formally adopted the following resolution on April 24, 1999: The Section of Dispute Resolution has noted that many court-connected ADR programs and other dispute resolution programs have restricted participation to neutrals who are lawyers. The Section believes that the eligibility criteria for dispute resolution programs should permit all individuals who have the appropriate training and qualifications to serve as neutrals, regardless of whether they are lawyers.
2 This being said, additional training may be necessary for some veteran mediators as well. For example, many experienced mediators (both lawyers and others) are accustomed to conducting mediations independent of court involvement. Their mediation training may be up-to-date; however, if they are unfamiliar with court schedules and administrative procedures, they may need assistance to help them adapt to a new mediation environment.
3 The Draft Uniform Mediation Act defines a mediator as ‘‘an impartial individual, of any profession or background who is appointed by a court or government entity or engaged by disputants through agreement evidenced by a record.’’ Section 2(B)(4). The Draft UMA is the work of Drafting Committees appointed by the National Conference of Commissioners on Uniform State Law and the American Bar Association Dispute Resolution Section. The full text of the current draft and official comments can be found at: http://www.law.upenn.edu/library/ulc/ulc.htm.
4 See MCL 691.1551 et seq.
5 ‘‘Mediation’’ is distinguished from the case evaluation process found in the current version of the court rules at MCR 2.403. If adopted, the proposed court rule amendments would correct this labeling error by renaming that process ‘‘Case Evaluation.’’