The slow movement toward skills-based testing continues
This short 2001 article by law professor Ellen Waldman assesses the then "state of the art" of efforts to guarantee quality of mediation services. It appeared in Dispute Resolution Magazine, Fall 2001 (American Bar Association, Section of Dispute Resolution; Vol. 8, No. 1) and is reproduced here by permission.
Your construction defect case against your contractor, who is also a friend and neighbor, has just been referred to mediation. You have been provided the option of selecting a mediator from the court roster or choosing your own from the yellow pages. The court clerk tells you that the mediators on the court roster meet the statutory requirements for “qualified mediators.” And half of the mediators in the yellow-page advertisements boast of being “certified.” What assurances do these rosters or certificates provide? During the 20 years since mediation credentialing became a topic of debate, how far have we come as a field in providing reliable methods of quality assurance to the consumer? The answer, it would appear, is that we have traveled some distance, but, clearly, not far enough.
I. The Three Faces of Credentialing
A. Degree-Based Approaches
A brief glance at the credentialing landscape reveals several different approaches. The first approach relies on education and degree requirements to distinguish between those who can and cannot mediate. This approach has been almost unanimously rejected by the mediation community. Theorists and practitioners alike maintain that quality mediation does not flow from a particular educational track or professional status. Nonetheless, degree requirements are common in court-annexed mediation programs.
A number of states have adopted Maryland’s requirement that civil mediators possess “at least a bachelor’s degree from an accredited college or university.” Other states, like Florida and Indiana, require their civil mediators to possess a law degree. And even states that impose no degree requirement on mediators serving the general trial courts do require professional degrees when the dispute involves specialized subject matter such as divorce, probate or malpractice.
B. Training and Experience-Based Approaches
The second approach looks to training and experience to measure mediator competence. This approach is popular among court-annexed programs, private mediation providers and trade organizations. And perhaps this popularity is unsurprising. Grounding credentialing efforts in training and/or experience is both administratively simple and intuitively attractive. Administering a credentialing program based on training and experience requires only a simple review of the application form that applicants submit. And, intuitively, it makes sense to assume that mediators who have received didactic training and refined their skills in the mediation trenches would be at least minimally competent. However, this intuitive appeal may be misleading. No data exist to support the notion that training and experience requirements guarantee or are even substantially related to enhanced skills or effectiveness. Indeed, the limited data available suggest that training and experience are only indirectly related to mediator performance. And, despite the innumerable experiments with mediation credentialing taking place throughout the “laboratory of the states,” no specific amount of training or experience has emerged as an adequate or suitable method of assessing or ensuring quality. Indeed, training and experience requirements vary dramatically from jurisdiction to jurisdiction and from program to program. If one is an attorney, a four-hour mediation training is sufficient to mediate civil cases in York County, Pennsylvania. In Massachusetts, court mediators must attend 30 hours of training. Many states, including Georgia, Tennessee, and Indiana to name just a few, demand attendance at a 40-hour mediation training. Experience requirements are similarly variable, ranging from the minimum of three cases required of court mediators in Kansas to the 125 hours of experience required of those who wish to be credentialed by the Texas Credentialing Association, a consortium of mediation providers, judicial and consumer representatives.
C. Skills-Based Evaluation
A small minority of mediation providers, trade organizations and state courts have adopted a third cutting-edge approach that marries training and experience requirements with skills-based evaluation. The San Diego Mediation Center (SDMC), the Maryland Council for Dispute Resolution (MCDR), and Family Mediation Canada (FMC) offer voluntary certification programs. The Department of the Navy strongly encourages and the Massachusetts Office of Dispute Resolution (MODR) and the District and Circuit Courts of Virginia require their mediators to obtain certification in order to participate in their programs. While these organizations are not the only entities engaging in skills-based testing, they are representative in their diverse approach to qualifying mediators. The next section provides some historical background on the development of skills-based testing and highlights the different mechanisms currently being used to evaluate mediator performance.
II. Performance-Testing: Then and Now
A. Early Efforts -- Defining Mediator Effectiveness, Evaluating Performance
The skills-based approach to assessing mediator competence was first conceptualized in the mid-1980s. In 1988 mediator Chris Honeyman began the first effort to isolate the particular skills required for effective mediation. Honeyman articulated seven core mediator competencies: Investigation, Empathy, Inventiveness and Problem-solving, Persuasion and Presentation Skills, Distraction, Managing the Interaction, and Substantive Knowledge. Honeyman also developed a performance exam that ranked mediators on a scale of one to nine on each of the seven parameters. While relatively simple in structure, Honeyman’s test was not designed as a one-size-fits-all invention, but as a flexible instrument that programs could modify to fit their particular needs. Honeyman’s work then continued in more elaborate form by empaneling the Test Design Project, an initiative sponsored by the National Institute of Dispute Resolution. The Project’s performance exam was adopted in modified form by a number of different institutions, including the Massachusetts Office of Dispute Resolution (MODR), operating in the Suffolk County Superior Court, and the San Diego Mediation Center (SDMC), a full-service mediation center. The SDMC certification program has been in place for eight years. More than 324 mediators have been certified, and according to SDMC statistics, evaluator scores are generally consistent for a given applicant. Since the program’s inception, the average variance between evaluators has never spanned more than two points. The MODR skills-evaluation program has occurred in two waves, resulting in the credentialing of 65 mediators. MODR’s program builds on its evaluation of mediator competence by offering trainings specifically geared to mediator strengths and weaknesses, as identified in the skills evaluation.
B. Second Generation Initiatives
(1.) Family Mediation Canada (FMC)
Family Mediation Canada’s voluntary certification program was the result of several years of consensus-building and field-testing. In 1994 the FMC and the Ministry of the Attorney General of British Columbia joined forces in a two-year pilot project to design, test and revise a certification process for family mediators. Together, the partners set up a three-tiered certification system that certifies family relations mediators (those mediating family conflicts excluding financial and property issues), family financial and property mediators (those mediating financial disputes), and comprehensive mediators (those mediating family conflicts, including support and property issues). The training and experience requirements are extensive. Family mediators seeking to mediate relational conflicts must obtain 180 hours of training; those who seek to mediate property and support issues as well must obtain 230 hours of training. Candidates must also take a four-hour written exam and participate in a 40-hour internship or submit a peer evaluation that testifies to the candidate’s competent professional experience. In the last step of the process, certification candidates submit a videotape of a simulated or real mediation and a critique of their own performance. Two FMC evaluators review the mediator’s videotape and self-critique. The videotape is assessed according to the following criteria: (1) Establishes and maintains a respectful trusting relationship with the participants, (2) Facilitates a collaborative relationship between the participants, (3) Manages power imbalances, (4) Attends to and explores participants’ interests, (5) Manages conflict appropriately, (6) Evaluates ongoing process, (7) Conducts the mediation ethically, (8) Helps participants identify and manage information, (9) Helps participants apply interest-based solutions. For each criterion, graders determine where, along a five-point competence continuum, the candidate falls. Candidates may be said to demonstrate outstanding, strong, satisfactory, inadequate, or no skill(s). Where a candidate’s performance is marginal, the candidate’s self-critique is reviewed to determine whether the candidate understands, at least theoretically, the fundamental qualities of good mediation. While the FMC standards seem to assume a largely facilitative approach, they do not penalize candidates who would provide legal or psychological information in a neutral and non-prejudicial fashion. Indeed, Linda Neilson and Peggy English, the program architects, characterize their certification effort as inclusive and designed to support multiple styles of thoughtful mediation practice.
(2) The Department of the Navy
The Department of the Navy established a DON Certified Mediator Program to provide services for all civilian personnel. Candidates in the four-tier process must obtain 20 hours of basic training plus 16 to 20 hours of advanced experiential training and must co-mediate three cases with feedback and coaching from an experienced mediator. The performance exam consists of a role play in which applicants are assessed on their ability to master each stage of the mediation process, as well as their ethics and communication skills. Aspects of the mediation process that are subject to scrutiny include the mediator’s opening statement, issue identification, joint discussions, use of caucus, resolution and closure, use of active listening, paraphrasing, reframing, and silence. The Navy’s approach to mediation is facilitative so the parties determine their options and terms for resolution. Subject matter experts are available during mediation to provide information on rules and regulations, and thus mediators are expected to avoid providing legal information themselves. The DON Certified Mediator Program has a high success rate of settlement and satisfaction. Currently there are 78 certified mediators throughout the world providing mediation services to Navy civilians.
(3) The Maryland Council for Dispute Resolution (MCDR)
MCDR has been providing a voluntary certification for Maryland mediators since 1996. While working on a small scale (to date, 27 mediators have been certified) MCDR has developed a sophisticated program that has been tailored to adapt to both evaluative and transformative practices. Additionally, MCDR has borrowed FMC’s practice of encouraging reflective thinking and practice by requesting that each applicant submit a statement of mediator philosophy. MCDR’s evaluation form contains a seven-point scale, ranging from unacceptable (1) to exceptional (7). MCDR’s form, like the Navy’s form, appears to track stages of the mediation process as well as particular qualities and behaviors. The various categories assessed include orientation to mediation, information gathering, creating empathy, process management, agreement creation and writing, and closure. Process management appears to be the most closely scrutinized skill, with twelve separate sub parts. These include questions surrounding the mediator’s ability to assist in clarifying areas of agreement, identifying issues, encouraging the pursuit of additional information, identifying interest -based principles for evaluation of proposals, encouraging party brainstorming, using notes to focus parties, reality testing, maintaining future focus and refraining from coercion or the provision of legal advice.
(4) The Supreme Court of Virginia
In Virginia, mediators who would like to be on the court’s roster for civil or family cases must, in addition to the standard training and experience requirements, co-mediate a certain number of cases with a certified “Mentor” mediator, who then evaluates the applicant on ten separate measures. As in the Navy and MCDR screening instruments, the measures correspond to various stages of the mediation process as well as to more general qualities. The categories for assessment include introduction, information sharing, issue clarification, generation of options, resolution/closure, communication skills, use of special techniques (such as caucus and outside experts), and personal and professional qualities. Under Personal Qualities, a mediator’s dress, appearance and ability to develop rapport and trust are evaluated. Under Professional Qualities, time management skills, maintaining neutrality, possessing adequate knowledge of issues and avoiding coercion, judgment or pressure are assessed. On each measure, the Mentor rates the applicant on a five-point scale, ranging from inadequate to excellent. At the conclusion of this section of the form, the Mentor issues a recommendation that the applicant either be certified or be denied certification. If the Mentor recommends that the applicant be denied certification, the Mentor is then asked to provide suggested courses of action that the applicant might pursue in order to attain certification, such as additional training, more co-mediations, or additional experience mediating certain issues. The requirements for certification in specialty areas -- juvenile and domestic relations, family are even more rigorous.
III. Why is Skills-Based Testing the Exception, Not the Rule?
While some credentialing programs include performance testing, these programs remain the exception, not the rule. Why is this so? Surely, resource conservation supplies one answer. Performance-based assessments are expensive, in terms of both time and money. Those who evaluate applicant performance must be trained and compensated for grading the exam. The test itself, whether performed live or submitted as a videotape, requires scheduling and coordination. Appropriate role-plays must be devised, role players and mediators assembled, and facilities reserved. All this is much harder than a quick review of an application form. However, these pragmatic concerns alone don’t supply a complete explanation. A program that seeks to adopt a performance-based method of certification must first determine what constitutes effective mediation. This, in and of itself, is a Herculean task. While the debate regarding mediation’s goals and aims has been rich, it has not yielded any clear-cut consensus. Basic questions regarding mediation’s goals and methods still inspire spirited disagreement: Should mediators aspire to generate settlement, relationship repair or psychological transformation? Does the mediator have responsibility for the fairness of any agreement reached, for its conformity with social norms? Is evaluation appropriate? If so, sometimes, always, never? Consensus remains elusive. The fact that no consensus yet exists on these rather foundational questions complicates any effort to establish performance-based certification standards. If the field holds within it multiple visions of what mediation is, then efforts to distill the essential qualities and skills of a mediator will remain problematic. Performance-based criteria for certification will likely be adopted only by organizations with a clear and cohesive definition of what mediation does or does not entail. Larger groups and constituencies, like state judicial councils or federal agencies, may avoid performance-based assessments if they are unable to settle upon a core set of mediation principles or methodologies. Adopting broader, more general, degree or education requirements is far simpler and skirts definitional quandaries. We see these complications at work in several ongoing projects. The Federal Mediation and Conciliation Service (FMCS) has spent the last year forming focus groups and discussing with academic partners the criteria that should be used in an FMCS voluntary credential program. The Service has eschewed degree requirements and will likely require candidates to obtain training from courses following an approved curriculum. The Service is considering performance-based testing, but movement is slow because of the difficulty in establishing a consensus among evaluative, facilitative, transformative and directive mediators regarding which skills should be assessed and how. The Carl Vinson Institute in Georgia, in conjunction with the Academy of Family Mediator’s Voluntary Mediator Certification Project, has compiled extensive data on the skills and knowledge bases essential for competent mediation. This collaborative effort, entitled the Mediator Skills Project, has yielded an enormously detailed mediator profile, but it would appear that the Project is moving away from the development of performance-based testing instruments and toward construction of a written exam that tests substantive knowledge rather than skills.
IV. The Future of Skills-Based Testing
Although the mediation community has bandied about the idea of skills-based certification programs for some time, implementation is slow and halting. Not only are performance exams administratively cumbersome and politically charged, they also create some cognitive dissonance for a professional culture grounded in pluralism. While mediation stresses the importance of inclusion, performance tests exclude those who fail to make the grade. While large segments of the mediation community are committed to power balancing, performance tests vest considerable power in an evaluator or panel of evaluators. While mediation lauds neutrality, performance tests require a positive or negative assessment. While mediation strives to avoid judgment, performance exams require that judgment be doled out in the form of a critique. While mediation strives to treat all disputants as equals, performance testing establishes hierarchy. And while mediation stresses that each disputant’s view must be heard and accorded equal respect, performance testing acknowledges that, when it comes to speaking as a mediator, not every voice or viewpoint is equally valid. But while the adoption of performance exams may prompt vertigo, their rejection poses equal perils. Training and experience requirements are simply not suitable proxies for mediation skills. They reveal that the mediator has inhabited environs that would allow for the acquisition of certain skill sets. They do not guarantee that the mediator has actually acquired the skills. A mediator who attests to having completed a 40-hour training and presided over ten mediations offers no evidence that she has absorbed the information provided in the training or has performed well or even adequately in each of the mediations. “Quality control” measures that rely on training and experience alone support Woody Allen’s adage that half of life -- or in this case mediation credentialing -- involves just showing up. Finally, experience and degree requirements vest control of credentialing squarely in the hands of the mediator. But if mediation exists not for the mediator, but for the parties, the examination structure, which enlists raters as a proxy for actual parties, would seem to serve that ideal better than inviting mediators to declare themselves competent after jumping through specified training and experience hoops. Performance-based testing, if done correctly, promises an accurate and effective mechanism for ensuring competent and effective mediation. However, programs and providers who seek to use performance tests must be prepared to invest significant resources in the endeavor. The testing instrument adopted should be the product of collaborative effort, with input sought from experienced mediators and mediation consumers alike. Evaluators must be well trained to implement the instruments provided. And, perhaps most important, the leadership in any skills-based credentialing effort must decide either to adopt an instrument that explicitly tests for one particular mediation style, or to adopt an instrument whose criteria are sufficiently broad and general to allow for multiple styles. The lack of consensus that currently exists in the mediation field generally need not impede particular programs in their quest to identify mediators who are able to provide the kind of service each program requires. The particular nature of that service may differ from program to program. What matters is that program leadership knows what it is looking for and that mediation consumers know what they are being provided. As the mediation field matures, it is likely that more mediation providers will continue to offer voluntary certification programs. Further, state and federal courts will likely continue, in increasing numbers, to require mediators to clear certain hurdles before being able to join the court-referred rosters. Whether these initiatives will include performance-based testing remains unclear. The future of such testing will hinge largely on how well the mediation community reconciles and assimilates competing visions of its craft, and how well a field committed to managing power among disputing parties can balance power within itself.
Ellen Waldman is a professor at the Thomas Jefferson School of Law, San Diego, Calif. She can be reached at firstname.lastname@example.org.
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