Thursday, October 11, 2007

Mediation's identity crisis: it's time to regulate the profession

Mediation having an identity crisisMediation has been struggling with an identity crisis for years now. It's been confused with meditation. It's often mistaken for arbitration. And more recently an Illinois governor characterized a state-funded gang mediation program as "pork" to be trimmed from an overbloated budget. Wrong, wrong, wrong.

In the grand scheme of things, these are harmless errors that should prod professional mediators to do a better job at marketing and packaging their services and educating the public about mediation's advantages. Of far greater concern though to the field is the questionable use by a debt collection agency of the words "legal mediation" as part of the name of its business, reported today by Chris Annunziata at CKA Mediation & Arbitration Blog.

Chris observes, "As a libertarian, I am loathe to advocate governmental intervention, but shouldn't the bar in these states regulate the use of the term 'legal' and 'mediation'?"

While I agree with Chris that state bars should monitor the use of the word "legal" by businesses to describe their services, I am not sure that it's any business of the bar to regulate the use of the word "mediation" -- not when so many professional mediators are not attorneys and there is no requirement that mediators in private practice must also be members of the bar. Moreover, while it is true that a very few state courts do certify certain classes of mediators in court-connected programs, no U.S. state currently possesses the power to license mediators or to regulate the private practice of mediation.

This instance illustrates how urgent the need is for the mediation field here in the U.S. to move now to develop a formal system to qualify mediators and regulate the profession. The future of the field depends upon it; public confidence demands it. We can no longer argue that regulation will thwart innovation in a still developing field, that it is unnecessary or will be too costly, that it will discourage otherwise qualified individuals from entering the field, or that mediation itself resists definition.

We should act now, before others define mediation for us. It is, at last, time.