The Master Mediator, Mediator Training & Credentialing Evolution of the Marketplace Caseload (Web)
July 1, 2008
Ninth Installment of the Master Mediator Column.
MEDIATOR TRAINING AND CREDENTIALING
Richard M. Reilly, a former American Arbitration Association senior vice president, says that with regard to credentialing a 40-hour mediator training course really only identifies the people who can never do it right.
Classroom theory and technique are essential starting points but mediators learn their craft in the field. Training is only the platform and should not be mistaken for a license of competency.
A model of mentorship combined with sole field experience and continuing engagement with mediation theory via reading and participation in gatherings with peers furthers professionalism. I am in favor of credentialing on a national or international basis at the advanced level based upon proven marketplace success over a period of years.
From 1979-1981, I learned my skill as an arbitrator sitting as an apprentice at the side of a respected labor arbitrator. I did not take a class and then announce myself as a practitioner.
Now, in 2006, I have come to believe that this type of one-on-one field experience is the best way to develop mediators. Taking a cue from Florida-based Upchurch Watson White & Max Mediation Group Inc. (see http://www.uww-adr.com and John Upchurch, “Florida Firm Trains and Leverages Its New Mediation Associates,” 20 Alternatives 1 (January 2002)--I have accepted two newer professionals as associate mediators within my organization, Impartial Dispute Resolution Services, of Pittsburgh. IDRS doesn’t promote the associates as being ready to act alone to resolve major claims.
The associate model has been used successfully in professional firms, academia and other arenas for many years. This categorization is superior to calling people "interns," or something similar which does not recognize the associates’ education or accomplishments in other professional or business areas.
EVOLUTION OF THE MARKETPLACE CASELOAD
In 1999 I wrote an Alternatives article noting that my experience leads me to believe that the mediation caseload consists of two basic types. In 50% of the disputes, there is a preexisting settlement zone–a virtual overlap--and the function of the mediator is, as Harvard Law School Prof. Robert H. Mnookin frames it, to remove strategic barriers and address inherent tensions to obtain resolution. See Robert A. Creo, “Blind Trust Method: A Technique for Resolving Multi-Defendant Cases,” 17 Alternatives 145 (September 1999).
The other 50% of the claims involve a good-faith gap in the parties’ expectations, values, goals or evaluations. Mediators are successful in those cases by creating, not bridging over, new ground.
In the former cases, the mediator uncovers the resolution and can do so effectively in a passive or facilitative style. In the true gap cases, an activist approach, either evaluative or directive, may be necessary. In the past few years, my practice has shifted to perhaps a 20-80 rule, where only 20%--one day per week--involves uncovering the agreement.
I used to teach basic mediation by telling the story of Michelangelo creating the David. He started seeking the perfect marble, which was senza cera, without wax. Vendors would hide flaws by placing wax in the marble. This obviously came to our language for truth and honesty. When asked how he created David he explained how he started with the marble and removed everything that was not David.
I used to think that was an apt analogy for mediators to keep in mind. My evolution now is that it works in less than 50% of the cases and perhaps for many mediators whose experience mirrors mine, only 20% of the time.
This is a function of many factors, including increased sophistication of the parties in selecting cases and their ability to maximize the efficacy of the process. For those at the high-priced end of the market, parties may only retain these mediators for the difficult cases.
by Robert A. Creo
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He also is a member of Alternatives’ editorial board. He can be reached at email@example.com.