At the Miami ABA Dispute Resolution Conference, James Coban, Janice Fletcher, Art Hinshaw and Susan Yates addressed the provocative topic, “Cosmetologists Are Licensed, Why Aren’t Mediators?”
Ms. Yates, of Resolution Systems Institute, clarified some terms of art for the sake of the discussion. “Credentialing” is the big umbrella, the widest term. “Certification” is what a court does. “Licensure” goes beyond courts and is similar to how doctors or lawyers professionally practice. She noted in passing that 1500 hours of training are required to practice as a licensed cosmetologist in Illinois.
Art Hinshaw, of Arizona State University, related a story of an Arizona mediator who claimed (impossibly) to have mediated 3000 divorces over a period of 8 years. He was a disbarred lawyer from Vermont who moved to Arizona, and held himself out as “Superior Court Trained.” A female client seeking divorce mediation became emotionally attached to him. He prepared and filed documents on her behalf with the court, at all times asking her for money. After the (uncontested) divorce was granted he did not inform her of the facts, but rather demanded another $25,000 to “wrap up her case.” She ended up paying him over $87,000 over a year. This also went on with more than 30 other victims. The Bar could do little – he was not a lawyer and not practicing as a lawyer, and suits for Unauthorized Practice of Law or other civil claims were only partially effective. He was, however, charged with criminal fraud, convicted, and is in prison until 2024.
Hinshaw articulated strong public policy arguments for licensing: protecting the public from bad mediators (meaning evil, not unskilled); getting information to the public to prevent their being duped; providing a standard of care for negligence claims against mediators; improving mediator quality by imposing a professionally responsible barrier to entry; and enhancing the credibility of licensed mediators. He added that there is nothing “special” about mediators that should exempt them from a licensing requirement that is imposed on hundreds of other professions.
Jim Coben, who teaches at Hamline, argued against, citing his recent co-authored article in Dispute Resolution Magazine titled “There Ought Not to Be a Law.” He first replied to Hinshaw’s story by saying that the law does not provide a remedy to every deserving claimant. What are the unintended consequences of a legislative response to the sad story? How would licensing affect the parties expenses? Administrative expenses? Process flexibility? Party autonomy? Public confidence in mediation? In all cases the answer is unattractive. Regulated monopolies impose higher costs on customers and regulators. Parties’ choices are more restricted. And consumption of services is lower.
So taking aside the single horror story, there is no evidence of harm. No claims are brought for mediator malpractice, and damages from bad mediation are even more elusive. Nor is there a distinction of lodged grievances among states that regulate mediators and states that don’t. Indeed, in no state is there a big problem of asserted claims against mediators. That is, there is no consumer-led demand for licensing mediators. Defining the profession is itself difficult: the UMA’s definition would be rejected by a transformative mediator and is different from the EU Directive’s definition. Finally, said Coben, “Often, those crying loudest for regulation are those whose vision of mediation isn’t selling well in the free market.”
Janice Fleischer, Director of the Florida Dispute Resolution Center, got Coben to concede that lawyers should be licensed, and noted that of the 97,000 lawyers in Florida only 0.4% are subject to grievances. So just looking at whether people bring grievances is not how one should make a decision about professional licensing. Florida mediators include both lawyers and non-lawyers, most of whom welcome credentialing licensure for marketing purposes. In Florida a consumer can look up whether a mediator is certified, in what areas, and whether any sanctions have been levied against her. Fleischer also noted that, in Florida, mediators giving evaluations constitute a “problem” that certification would address (evaluation being prohibited under Florida’s court-annexed rules). This point did little to advance her argument in some quarters.
Indeed, that consequence alone is enough to turn my thumb down. Parties in Florida who seek to learn from a retired judge the likely outcome or probable value of their dispute can’t get it without violating ethical rules? I can’t believe it. Maybe they do it, but call it something other than mediation. “I’ve scheduled a giraffe on our case next Tuesday at 10:00.”
