Assuring Quality in ADR Practice & Programs

Other Approaches to Assuring Mediator Competence

Credentialing is not the only way to assure quality practice by neutrals. Numerous methods of assessing mediator competence are available and they ought to be used in complementary combinations. Exclusive reliance on only one method—for example interviews, references or performance testing—is likely to measure certain elements of competence while neglecting others.

These methods and approaches to assessing mediator competence generally involve a combination of several of the following:

Training standards
Mentoring or supervision
Continuing education and training
Amount of experience (number of cases)
Performance tests or live or taped demonstrations
Monitoring and user evaluations
Complaint procedures.
References
Interviews
Advisory panels.
Market approaches.

Numerous methods for assessing competence are available. These alternative methods and approaches to credentialing neutrals generally involve a combination of several of the following:

Training Standards - Some programs or standards-setters choose to certify specific trainers or to address the content of the training program that should be offered to mediators. Several entities have adopted standards for approving mediator training programs, such as the Academy of Family Mediators. The Florida and Georgia state courts require all mediators registered for court and domestic relations cases to be trained by training programs they have approved. The Florida Supreme Court Committee on Mediation and Arbitration Training provides the Supreme Court with recommendations relating to all aspects of mediation and arbitration training including the development of mediation training program standards, mentorship requirements, continuing education requirements and certification of mediation and arbitration programs. (See Florida's 2000 Training Standards, and Georgia's Training Approval Guidelines.)

While a few states have been fairly specific as to length and curriculum of the training, and/or the trainers' credentials, a more common approach is to follow the National Standards for Court-Connected Mediation Programs, early, and somewhat simplistic, advice that courts need not certify training programs but should ensure that they include role-playing with feedback. In Massachusetts, a standards-development effort concluded similarly that mediation training should emphasize interactive participation, and encouraging 'learning by doing' in a constructive and supportive atmosphere. It also said training "should include a mixture of theory and practice that enhances the performance of trainees and provide a variety of learning techniques that reflect a sensitivity to individual learning styles."

The Ohio Commission on Dispute Resolution and Conflict Management has prepared a useful Consumer Guide for Selecting a Trainer.

Mentoring or supervision - Some programs, like the Massachusetts Office of Dispute Resolution's environmental mediation program, carefully assess a neutral's performance and provide appropriate follow-up to assure quality. Programs may use this method in connection with a credentialing process, or they may employ mentoring alone because it allows them to avoid developing a credentialing process and the attendant controversies and uncertainties over its effectiveness. Their approach generally involves co-mediation or some form of apprenticeship, with experienced neutrals observing or leading new or problematic ones in actual sessions. They also provide targeted follow-on training or mentoring, and occasionally offer telephone advice for neutrals with specific concerns.

Continuing education or training - Some programs, like the aforementioned Massachusetts program, hold periodic seminars, conferences, or training sessions with interested neutrals as well as those with special needs concerning skills development or handling commonly experienced problems.

Amount of experience (number of cases) - Numerous programs and rosters permit any neutral to practice provided he or she has "logged" a certain minimum number of cases or hours in mediation. This is sometimes referred to as the amount of actual "flying time". (See the FDIC and USIECR roster requirements as examples.)

Performance tests or demonstrations - Many neutrals believe qualifications are best measured through performance tests, such as participating in mock mediation sessions in which candidates have a chance to demonstrate their ability. SPIDR's Commission on Qualifications, for example, recommended that "where standards are set they should be performance-based." Efforts are underway to develop these kinds of competency tests. (See, for example, the Test Design Project's Performance-Based Assessment: A Methodology, for Use in Selecting, Training and Evaluating Mediator.) Several programs have employed performance-based approaches to select candidates for training. For example, the Massachusetts Office of Dispute Resolution has a panel of more than 65 private-sector neutrals who were chosen based on a performance-based selection and training process.

Monitoring and user evaluations - ADR programs may also wish to systematically monitor neutrals' performance to identify situations involving quality concerns. Some programs, like MODR's and the CPR roster, rely extensively on feedback from users as a tool to assess their neutrals. A similar approach used by some programs involves removing those neutrals who are never selected by parties. Another common method is using post-mediation questionnaires or evaluations from the attorneys and/or parties in each case to ascertain whether they found mediation helpful, and whether the mediator maintained neutrality, understood the issues, stimulated creative solutions, helped them reach agreement, and whether they would use the mediator again.

Complaint procedures - Establishing complaint procedures or a complaint "hotline" for parties is a method some programs may employ to promote quality. A few programs, such as MODR, then follow up with targeted mentoring or training when parties' assessments indicate troublesome patterns of behavior by certain neutrals.

References - A few programs have required neutrals to provide references from prior cases.

Interviews - A few programs—such as the D.C. Superior Court's Multi-Door Courthouse and some individual agencies' collateral duty mediator programs—rely on interviews as part of their mediator selection process, or get reports from the neutrals themselves and use them as a tool in assessing understanding and performance.

Advisory panels - Some jurisdictions employ more formal procedures for assuring that neutrals perform adequately. The Florida Supreme Court, for example, created advisory panels to field written requests from mediators on ethics questions and party grievances. The typical sanction in Florida has tended toward requiring further training or imposing restrictions on certain types of practice (e.g., no more family cases). A very few mediators have been suspended. In practice, however, agency programs have seldom found it necessary to employ such formal procedures.

Market approaches - Some programs take a "free market" approach. Supporters of this method fear that licensing or certification may be restrictive and rob ADR of valuable perspectives and approaches. They believe a market approach will ensure that only the best mediators continue to practice. This philosophy recognizes that a "market" solution requires consumers to be well-informed, so that they are better able to assess the kind of assistance they need and to evaluate the performance of the practitioner and program. Several state entities employing this method have devised consumer guides on selecting a neutral. See, for example, the Alaska Judicial Council's Consumer Guide to Selecting a Mediator and the Ohio Commission on Dispute Resolution and Conflict Management's Consumer Guide: What You Need to Know When Selecting a Mediator.

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