Tuesday, November 27, 2007

In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past

Massachusetts mediators poised to make mistake in considering new language for Uniform Mediation ActIn April 2006, I reported that the Boston Bar Association proposed an amendment to the Massachusetts mediation confidentiality statute, Mass. Gen. Law. ch. 233, s. 23C. That statute protects from disclosure in a judicial or administrative proceeding "[a]ny communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person."

The BBA's proposal sparked an immediate backlash within the mediation community. What was radical about the BBA's proposed amendment was its change to the statutory definition of mediator. The current statute defines a mediator as "a person not a party to a dispute" who:

enters into a written agreement with the parties to assist them in resolving their disputes has completed at least thirty hours of training in mediation and either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years
The BBA's proposed amendment would eliminate these requirements and define a mediator simply as "an individual who conducts a mediation". At the time I condemned this proposal and argued for preserving the current definition.

As it turns out, the Boston Bar Association was right. And I was wrong.

And why that matters now is that today the mediation community in Massachusetts may be poised to make the same kind of mistake I did.

Let me explain why.

Some background first. A small group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting for the past year to consider whether to enact the Uniform Mediation Act ("UMA") here in the Commonwealth.

The UMA defines mediation as "a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute". It defines a mediator as "an individual who conducts a mediation" -- as did the Boston Bar Association's proposed language.

But a number of Massachusetts mediators who support the UMA want to replace its definition with the one currently in effect in the Commonwealth, along with some additional language.

A subcommittee of the Working Group supports the following definition:

A "mediator" shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator after such training or is accountable, after such training, to a dispute resolution organization which has been in existence for at least three years.

The phrase "dispute resolution organization" means a program with which neutrals are affiliated, through membership on a roster or a similar relationship, which administers, provides and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or a government agency. A program operated by a court employee may include one or more court employees or non-employees or a combination of court employees and non- employees on its roster.


As I said, adopting this language would be a big mistake. To see why, let's walk through each provision of the proposed language.

The written agreement requirement.

There is no doubt that good practice and common sense (not to mention the terms of at least one professional mediator liability insurance policy that I know of) dictate that mediators enter into a written agreement with their clients. Such agreements typically define the mediation process and the mediator's role, spell out exceptions to confidentiality, and describe the respective duties and obligations of the parties to the agreement. A mediator would be foolhardy not to enter into such an agreement

However, such a definition ignores the realities of practice. For example, what about the many solo mediators who conduct their own intake or speak with parties prior to meeting them to prepare them for the mediation or to answer questions about mediation and the mediator's role? Often parties reveal confidential information to mediators in those off-line, one-on-one conversations as a necessary part of intake and screening or the convening process. And sometimes those parties then elect to use a different neutral or even choose not to mediate their dispute at all -- which means that there is no written agreement between those parties and the mediator.

Under the UMA, which does not require a written agreement, such communications in these circumstances would be privileged as they should be. Under current Massachusetts law -- and the version of the UMA which some members of the Working Group support -- they are not. Asking parties to sign an agreement prior to having a preliminary conversation with the mediator -- even to gather information about the mediation process and its suitability for their own dispute-- is both unrealistic and burdensome to all involved. I can see no rational basis for excluding from the protection of the statute these communications.

Training hours requirement.

Don't get me wrong. I believe that all mediators should be adequately trained to serve as neutrals in the mediation of disputes. But a requirement of 30 hours of training in mediation is problematic for many reasons.

First, there is the problem of definition -- what exactly do we mean when we say "training in mediation" when so many competing models of mediation practice abound -- evaluative, facilitative, transformative, narrative, the list goes on? Each is normatively distinct and describes very differently the role and responsibilities of the mediator and the disputants. Some scholars and practitioners, in fact, have argued that evaluative mediation may not be mediation at all.

So if 30 hours of training is required, the question is, 30 hours of training in what kind of mediation? (To learn why this is not just a difference of semantics, read this excerpt from an article by ADR scholar and professor Michael Moffitt.)

The problem, too, lies with the number itself -- whether 30 hours or 40, is that sufficient preparation pedagogically speaking? Plenty of academics would say not, that immersion in a comprehensive curriculum in a formal university setting is necessary to master conflict dynamics and understand negotiation theory.

The training requirement is premised on the notion that training prepares people to be more effective mediators. But in an unlicensed and unregulated field not only are the mediators themselves unregulated but so too are the mediation trainers. Institutions of higher learning must meet recognized accreditation standards. But in the U.S. mediation trainings and trainers are accountable to no one. So while someone may have 30 hours of mediation training under her belt, it doesn't mean that she has had the right kind of training.

Importantly, too, the 30-hour requirement inhibits party choice of mediators -- ironic when self-determination by parties is a core tenet of mediation. Such a requirement also reflects an unfortunate provincialism. It could deprive neutrals who have arrived in Massachusetts from other states or indeed from other countries of the benefits of this statute, discouraging professional and cultural diversity, as well as innovation, in what is still a young and evolving field.


Four years of professional experience.

There are so many problems with this requirement, I'm not sure where to begin. First of all, why four, a wholly arbitrary number? What is the four years based on? Why not three? Or two? Or none? Why should parties be denied the benefit of this statute solely because they selected a neutral possessed of three years, eleven months, and nine days of professional experience? Or even one day of experience, if this is the neutral the parties have selected and trust? And what about individuals who have a real aptitude for mediation? I meet a number of them each year in the trainings I conduct -- people who demonstrate true talent and skill. Why should someone like that be arbitrarily excluded from the statutory meaning of "mediator" simply because they don't have the requisite four years?

Also, what exactly is "four years"? Does that mean 40 hours each week spent mediating for 50 weeks out of every year? Does that mean one case a day? Or one case each week? Or something else?

And what constitutes "professional experience"? According to my dictionary, "professional" means "following an occupation as a means of livelihood or for gain". What does that mean for the many volunteer community mediators who provide pro bono (or low bono) services in small claims or neighborhood settings? Don't they count? Are they amateurs, not professionals? And maybe "four years of professional experience" doesn't mean mediation experience at all. For example, I'm not just a mediator -- I coach and train people in conflict resolution and negotiation skills. Does that work count as "professional experience"? After all, I'm using my skills and knowledge developed as a mediator to deliver those services.

Besides, if the goal is to assure public confidence in mediators, since when is length of years of experience any guarantee that a neutral is any good? A requirement like this does nothing to address or weed out incompetence.

Accountability to a dispute resolution organization which has been in existence for at least three years.

This requirement suffers from the same issues of arbitrariness that the preceding one did. Why three years? I just founded a dispute resolution firm with four partners; together we have over 75 years of experience. One of our members is a pioneering leader in the field and my other partners are no slouches themselves. But because our company is only a few months old, it doesn't count for purposes of this statute.

Again, if public confidence in mediators is the goal, what does the length of existence of a particular organization have to do with it? The length of time in which an organization has been in existence is no guarantee of anything, including its commitment to excellence and best practices.

The problem too is one of language. What did the drafters mean by "accountable to a dispute resolution organization"? What precisely does it mean to be "accountable"? And what about "dispute resolution organization"? Conceivably this could mean an organization that provides arbitration services only but no mediation -- which makes little sense if the objective is to ensure proper supervision of mediators.

This leads me to a final point. This requirement does not recognize alternative methods to build skills and develop the capacity to mediate -- supervision by an experienced and qualified mentor in solo practice, for example, but one who is not part of a "dispute resolution organization".





Let me be clear. I share the goal of building public confidence in the mediation field that motivates those who support this definition. And I agree that establishing threshold requirements for training and credentialing mediators is critical to achieving that goal. But training and credentialing are topics so important that they warrant an independent inquiry, separate from consideration of a statute that concerns evidentiary privilege -- and one that answers, not ignores, the questions I raise here.

I respect those who first wrestled with the question of how to define a mediator when the Massachusetts confidentiality statute was enacted in 1985. And I salute those striving today who wrestle anew with this issue. But we can't shy away from asking hard questions now just because it may be politically expedient to do so or because we fear that raising those questions might show disrespect to the pioneers who came before us.

We owe it to those who will follow us.