The Keys to Mediation as a Global Profession

1. The Keys to Mediation as a Global Profession 7 Judith P. MeyerJPMeyer Associates, Haverford PA Jeremy LackAltenburger, Geneva, Switzerland Roland SchroederGeneral Electric Company, Fairfield, CT Irena VanenkovaInternational Mediation Institute, The Hague, The Netherlands Saturday, April 18, 2009 Session H10 9.30-10.45

2. The Keys to Mediation as a Global Profession 7 U A L I F I C A T I O N S Q   U N D E R S T A N D I N G  C C E P T A N A C E  L E A D E R S H I P I N S P I R A T I O N  T R A N S P A R A N C Y  Y A R D S T I C K S 

3. The Keys to Mediation as a Global Profession 7 Q U A L I F I C A T I O N S   U N D E R S T A N D I N G  C C E P T A N A C E  L E A D E R S H I P I N S P I R A T I O N  E N C Y T R A N S P A R  Y A R D S T I C K S 

4.         Any occupation wishing to exercise authority must find a technical basis for it, assert an exclusive jurisdiction, link both skill and jurisdiction to standards of training and convince the public that its services are uniquely trustworthy and tied to a set of professional norms Harold J. Wilensky Professor Emeritus of Political Science UC Berkeley The Professionalization of Everyone? 1964

5.  Q U A L I F I C A T I O N S • To practice as a mediator (in almost all countries) involves… • No initial educational requirements • No license to practice • No Continuing Professional Development • No independent testing • No vetting of skills • No self-regulation • Standards set by mediation providers vary widely • Most standards are not published

6.  Q U A L I F I C A T I O N S • And… • No uniform Code of Ethics/Conduct • Few disciplinary processes • Put another way… • Mediators have resisted definition, categorization • Mediators regard mediation as magic, an art form • - See themselves as magicians, artists • The market seems too balkanized for quality standards • - The status quo too difficult to change

7.  Q U A L I F I C A T I O N S • Training • There are many trainers, and many good ones • - But too many disparate offerings • Mainly basic or familiarization training • - Very little advanced training • Judicial panels typically require 4-40 hours • - Few accreditations/certifications/other qualifications • - No uniform assessment • - Little real quality control

8.  Q U A L I F I C A T I O N S • As a result… • Providers typically do not have admission standards • - Or, if they do, they do not publish them • Users are left to rely on the unknown • - Hearsay, reputation, references • Mediation lacks a credible technical foundation

9.  Q U A L I F I C A T I O N S • Leaving mediation as… • An occupation, a calling, an art, a science • - But not a recognized profession! • At best, a vicarious profession • - Dependent on practitioners’ unrelated status • Failing to gain recognition as a proper profession • - Which inhibits the growth of the field • Mediation is a Mongrel Profession • (Kenneth Cloke)

10.  Q U A L I F I C A T I O N S • What Mediation needs is credentialing qualifications… • Basic uniform qualifications - accreditation • - Minimum training standards • - Basic standards • - Independent assessment - pass/fail • Advanced uniform qualifications - certification • - Post-experience qualification • - High standards • - Independent assessment

11.  U N D E R S T A N D I N G  A C E C C E P T A N It is better to understand a little than to misunderstand a lot Anatole France 1844-1924

12.  U N D E R S T A N D I N G  A C E C C E P T A N • Mediation is a silent, slow-burn revolution • The What, How and Why are poorly understood • - Many users still skeptical about mediation • Mediators and providers are not well-organized • - Promote themselves more than the profession • Total mediation market is tiny • - $500m/pa in the US (JAMS estimate) • No wide scale promotion or education • - Still widely seen as alternative

13.  U N D E R S T A N D I N G  A C E C C E P T A N • Understanding must precede acceptance • - Much better promotion of the field needed to users • The US began the Silent Revolution • - The rest of the world is inheriting the status quo • - And will now professionalize mediation • National certification schemes are appearing fast • - All seek to certify competency & to professionalize • - All try to promote confidence in mediation/mediators

14.  U N D E R S T A N D I N G  A C E C C E P T A N Article 4 - EU Mediation Directive Member States shall encourage: By any means they consider appropriate the development of and adherence to voluntary codes of conduct by mediators and organizations providing mediation services, as well as other effective quality control mechanisms concerning the provision of mediation services 2. The initial and further training of mediators in order to ensure that mediation is conducted in an effective, impartial and competent way in relation to the parties.

15.  U N D E R S T A N D I N G  A C E C C E P T A N England & Wales

16.  U N D E R S T A N D I N G  A C E C C E P T A N Australia

17.  U N D E R S T A N D I N G  A C E C C E P T A N The Netherlands

18.  U N D E R S T A N D I N G  A C E C C E P T A N

19.  L E A D E R S H I P  I N S P I R A T I O N • Most professions have a single national focal point • Mediation in US has numerous national focal points • ABA Section ACR • CPR Academy of Family Mediators • IAM/ACCTM Global InterMediation • Similar pattern in UK, Switzerland, France, elsewhere • They are not joined up, nationally or internationally • - No common practice or training standards • - No common assessment standards/credentialing • - Creates considerable confusion for users

20.  L E A D E R S H I P  I N S P I R A T I O N • PAST INITIATIVES • Task Forces on Mediator Credentialing • ABA - 2001/02 • ACR 2003/03 • Conclusion - fragmentation of practice inhibits progress • Consigned to the “too-difficult” or “not now” box • Status Quo = • Nothing significant has happened to date • User is left to figure it out

21.  L E A D E R S H I P  I N S P I R A T I O N • Progress stymied by a combination of: • Lack of a single focal point • Absence of leadership acceptable to all stakeholders • Nationalistic navel-gazing • Complacency“not broken, don’t fix” • Apathy“who cares” • Fear“will I need to do anything” • Feudalism“I don’t want to re-open my market” • Intolerance“that’s not mediation!” • Failure to think globally and in a “flat world” • “Balkanization” of practice + bureaucracy • Lack of global exchanges/interest in best practices

22.  L E A D E R S H I P  I N S P I R A T I O N Bureaucracy defends the status quo long past the time when the quo has lost its status Professor Lawrence J. Peter The Peter Principle

23.  L E A D E R S H I P  I N S P I R A T I O N Status Quo - you know, that’s Latin for the mess we’re in Ronald Reagan

24.  L E A D E R S H I P  I N S P I R A T I O N I believe that it is a time for mediators from all walks of life to look to the common goal first and to their individual goals and positions second. We will all have to give a little so we can reap the benefits Hon. Justice Murray Kellam AO Chair, NADRAC (National ADR Advisory Council of Australia) 9th National Mediation Conference, Perth, 12 September 2008

25.  L E A D E R S H I P  I N S P I R A T I O N • Leadership • ABA Section and ACR have leadership credentials • - ABA Section admits non-lawyers • - Embrace all fields of practice • - Huge memberships - all stakeholders represented • - Credibility • - US-Nationwide with strong international links • Need to Create a new US professional body? • France • - Académie de la Médiation • - Institut Français de Certification des Médiateurs

26.  L E A D E R S H I P  I N S P I R A T I O N • Inspiration • Must inspire users of mediation services • - Generate their real understanding of the process • - Impart a strong sense of professionalism • - Create genuine trust in mediators (“transparency”) • - Credible, helpful promotion • - Encourage parties to praise/value the process • Develop “selective pressure” on enhancing mediator skills • Mediation as part of negotiation or business training • Broaden the range of ADR skills of mediators • Integration of mediation into a broader range of activities

27.  T R A N S P A R E N C Y  A R D S T I C K S Y • Trust is dependent on transparency • - Opacity kills credibility • Yet mediation takes place in private • - Confidences must be protected • Providers must encourage greater transparency • - Make skills/experience of panel transparent • - Share that knowledge with users • Mediators must make personal skills transparent • - But not via self-congratulatory claims • - Via Feedback

28.  T R A N S P A R E N C Y  A R D S T I C K S Y • Transparency of training and experience levels • Continuing Professional Development • Uniform and meaningful Codes of Ethics/Conduct • Complaints processes with real sanctions • Public evidence of thought and practice leadership • Mediators’ Google profiles • Articles, presentations • Teaching • Pro bono work

29. Be a Yardstick of Quality. Be in an environment where excellence is expected Steve Jobs

30.  T R A N S P A R E N C Y  A R D S T I C K S Y • Transparency of measurement • - Passed the right training programs • - Independently assessed + transparent criteria • Feedback from prior users is a key Yardstick • - Independent and objectively verified • The credibility of Professionalism depends on it! • Trust depends on it! • Mediation depends on it! • Your future depends on it!

31. The Keys to Mediation as a Global Profession 7 Q U A L I F I C A T I O N S   U N D E R S T A N D I N G  C C E P T A N A C E  L E A D E R S H I P I N S P I R A T I O N  E N C Y T R A N S P A R  Y A R D S T I C K S 

32. International Mediation Institute www.IMImediation.org

33. The goals of IMI are to establish: • High quality standards for mediators worldwide • IMI Certification as a hallmark of quality • Transparency via feedback • An open search engine to find Certified mediators • Enhanced understanding of mediation • Global growth in mediation acceptance and use International Mediation Institute

34. The IMI Foundation • Registered in The Hague as a stichting in April 2007 Offices in the International NGO building • Funded mainly by patrons and users • Founding Institutions: AAA/ICDR, NMI, SMC/SIAC - providers of initial funding Board of Directors 2009 Chair: Michael McIlwrath (GE - Oil & Gas) Directors: Wolf von Kumberg (Northrop Grumman Corp) Michael Leathes (IMI) Nominees of the Founding Institutions

35. The IMI Foundation Independent Standards Commission (ISC): Prof. Tommy Koh (Chair) Judith Meyer (Vice-Chair) Geoff Sharp (Vice-Chair) Eileen Carroll (Vice-Chair) Bruce Whitney (Vice-Chair) 46 thought leaders from 24 countries on all Continents Representing all stakeholders (Users, Mediators, Providers, Trainers, Educators, Judiciary, Regulators) ISC is independent of the IMI Board - no crossover ISC decides on IMI’s Standards and Criteria

36. The IMI Foundation • Entirely non-profit • An easy open-access search engine for users • Establish standards and assessment criteria • Capable of being applied worldwide • Usable as a model for national standards • A forum for: • Promoting Mediation, quality mediators, provider bodies • Avoiding duplication of effort

37. The IMI Foundation • Entirely non-profit • An easy open-access search engine for users • A forum for: • Promoting Mediation, quality mediators and provider bodies • Avoiding duplication of effort • Not a service provider • Not set up to compete with anyone • Will not earn any income from mediations • An enabling body for the benefit of the market • Not there to limit or confine anyone or anything • Not a peak or superior body • Designed to benefit users, mediators, providers, trainers

38. Vision Generate enhanced confidence in mediators and improved understanding of mediation in order to position mediation as the preferred dispute resolution process globally and make a significant contribution to the advancement of international peace and harmony

39. Mission Several global-scale goals: • Set transparent, competency standards • All styles of mediation • High quality • User accessibility • Aid best practice sharing • Consistent with forging a global profession • Promote the use of mediation • To potential users

40. Challenges • Many types • Business, Community, Family, Political ... • Many styles • Facilitative, Evaluative, Transformative, Hybrids … • Different cultural/legal expectations • Huge variety in how mediation is practiced • Mediators not organized internationally • Nor, often, nationally • Some exceptions - eg Australia, The Netherlands

41. Why Become IMI Certified? • To help establish mediation as a profession • To remove the risk of reliance by Users on word-of-mouth, hearsay and guesswork • To maximize the prospects of being selected by ANY user • To establish experience-based competency via Feedback Digest and other info in Profile • Credible marketing for a nominal cost

42. The Scheme To become IMI Certified, a Mediator must: • Prove their competency via assessment • Applying common standards set by IMI • Appoint Reviewer • To prepare a summary (Digest) of feedback • Upload Profile on IMI Portal • Complete with Feedback Digest

43. The Scheme - Profile Required sections • Contact details • Main Mediator Practice Areas • Experience as a Mediator • Mediation style • Code of Conduct • Applicable Complaints Process • Professional Indemnity Insurance • Feedback Digest

44. The Scheme - Profile Optional sections • Current Position & Background • Professional Affiliations • Fee Rate Information • Peer Reviews • References • Mediation Education and Training • Teaching • Publications 

45. The Scheme - Feedback Digest • Gather Feedback from Users • IMI Feedback Request Form • Example of real Feedback • Appoint a Reviewer • IMI Guidelines on appointing a Reviewer • Reviewer to prepare Feedback Digest • IMI Guidelines on Feedback Digest for Reviewers • Example of Feedback Digest • Reviewer to upload Feedback Digest in to the Profile

46. Experience Qualification Path Grandfathering for experienced commercial mediators No need to take a certification assessment Window runs January 1 - June 30 2009 Applies to mediators: Category 1 Already passed an approved experience-based competency assessment, or Category 2 Member of an approved Panel and endorsed by that Provider, or Category 3 Able to provide two references from prior users + practice logbook

47. EQP - Category 1 (Provisional list) Applies to mediators: Category 1 Already passed an approved experience-based competency assessment, or Category 2 Member of an approved Panel and endorsed by that Provider, or Category 3 Able to provide two references from prior users + practice logbook • ADRIC (ADRIC Chartered Mediator)   
 • AMINZ  (AMINZ Mediator Fellow)   
 • BBMC (BBMC Accredited Mediator)  • CIArb (CIArb Mediation Fellow)   • LEADR (LEADR Advanced Mediator)    • NMI (NMI Certified Mediator)  

48. EQP - Category 2 (Provisional list) Applies to mediators: Category 1 Already passed an approved experience-based competency assessment, or Category 2 Member of an approved Panel and endorsed by that Provider ACB Group (NL) ADR Chambers (Canada) ADR Center (Italy) ACCTM (US) AAA Mediation (US) CMAP (France) CEDR Solve (UK) CIArb (Intnl) Core Mediation (UK) CPR Institute (US) IAM (Intnl) IIAM (India) INTA (Intnl) JAMS (US) MII (Ireland) NCRC (US) Resolex (UK) SKWM-CSMC (CH) SMC (Singapore) Tokiso (SA) WAMS (US) WIPO (Intnl)

49. EQP - Solo Applies to mediators: Category 1 Already passed an approved experience-based competency assessment, or Category 2 Member of an approved Panel and endorsed by that Provider, or Category 3 Able to provide two references from prior users + practice logbook Solo Practitioners able to provide: • A log containing non-confidential information of the dates and nature of at least 10 mediations conducted by the applicant in the previous two years and • At least two written references from prior Users in different mediations where the reference provider attests to the applicant’s competency as a Mediator based upon actual prior experience

50. Nominal Listing Fee • Annual $160/€125 • to help cover search engine maintenance costs • Not billed until the Third Quarter of 2009