The year 2012 marked a tectonic shift in the world of Alternative Dispute Resolution (ADR). In 2012, we experienced a global increase in acceptance of mediation as an alternative form of conflict resolution, and a worldwide dialogue about the need for uniform standards of practice for mediators. Domestically, the ADR/ABA Task Force on Mediator Credentialing rejected the idea of national credentialing mediators, but supported local efforts if credentialing rules comply with the guidelines set out in the Task Force’s Final Report. The Association for Conflict Resolution made recommendations for mediator certification in its Model Standards for Mediator Certification Programs, and the newly formed Academy of Professional Family Mediators is working to create certification requirements for its members.
Although no state licenses mediators in the U.S. (though California gave it a shot), many states require mandatory certification for mediators in court referred cases. (See, Handout: State Mediator Certification Requirements Prepared by Barbara Gellis Traub, J.D., M.L.S. July 2012).
Closer to home, Colorado felt the aftershocks: regulating mediators was the main topic at the 2012 ADR Conference. Why?
- Increase in Pro Se (self-represented) Litigants. Colorado State Judicial Department data from fiscal year 2012 showed that 68% of litigants in district court civil cases were pro se, as were 62% of the litigants in district court domestic relations cases.
- Increase in Court-Ordered Mediation. Because of the increases, state courts ordered more matters to mediation. As the number of mediations increased, unfortunately so did the number of complaints of mediator mediocrity.
- Increase in Mediator Competency Complaints. A report by the Judicial Branch Committee acknowledged problems with the lack of qualifications for mediators in state court-referred mediations. It concluded it was an “access to justice” issue: courts are ordering pro se litigants to mediate without adequate safeguards to insure that litigants participate with a competent, ethical, or trained mediator/ADR professional.
- ODRAC Request for a Supreme Court Directive. As a result, The Office of Dispute Resolution Advisory Committee (ODRAC) proposed that Supreme Court Chief Justice Michael Bender issue a Directive, requiring that only “credentialed” mediators/ADR professionals be used in state court-referred cases. The credentialing process, (requiring minimum standards and qualifications), would apply to all mediators and ADR professionals who handle court referred cases.
The ODRAC proposed general recommendations:
- Criminal Background Check / Professional License Status Check
- Minimum 40 hour Mediation Training based on National Standards
- Domestic Relations Specialized Training
- Continuing Education Requirements
- No JD or Minimum Higher Education Training Requirements
- Grievance or Complaint Process
The Court would compile a “Master List” of Mediators who comply with the Directive requirements, which would be circulated throughout the State courts. Judges could then provide litigants a choice of mediators who are bound by a grievance procedure, and held to a specific degree of professionalism and accountability. This would potentially expand the current list of mediators (70 ODR panelists), who provide much of the court referred mediation across the state. Chief Justice Michael Bender is set to step down as Chief Justice in March, and it’s unknown whether he will issue a Directive before then and, if so, whether it will contain some, all or none of the recommendations.
What Does This Mean for Colorado Neutrals?
The pump has been primed for 2013 to be a big year for neutrals. Mediation is on the rise everywhere; the public has an increased understanding of ADR and the mediation process. For those seeking to break into the court-referred casework, this could be a great opportunity, assuming you comply with the Directive requirements.
How Does The Mediation Association of Colorado Fit In?
Known as “theMAC,” The Mediation Association of Colorado played a large role in designing the recommendations. The ODRAC used theMAC’s educational and training requirements for becoming a Professional Member as the example for established excellence in standards of practice. We believe that Professional Members of the MAC should have an advantage if the Master List becomes a reality. TheMAC intends to work hard this year promoting its Professional Members to the public at large, and to the courts. Regardless of whether there is a Directive issued, TheMAC will work to educate the courts that its Professional Mediators are ethical, trained, experienced, and ready to step in whenever and wherever they are needed. After all, theMAC set the standard.
Our Mediators are located throughout Colorado, and are easily located on our “Find a Professional Mediator” search engine. Not a member yet? Make a 2013 Resolution to join theMAC and become a Professional Member – the timing’s perfect.
Robyn E. McDonald, Esq. is a Mediator in private practice and the new President of The Mediation Association of Colorado. She may be reached at McDonald Mediation Group, LLC, 4643 S. Ulster St., Ste. 800 Denver, CO 80237, 720-242-8887 or firstname.lastname@example.org. For more information, please visit her website at http://www.mmgadr.com.