I really look forward to preparing for and participating in our Cafe Mediate podcasts because it makes me re-view my assumptions and opinions especially those I may have previously given a lot of thought to and even written or spoken about. I really look forward to “meeting up” with my colleagues on line and I find each session provokes reflection particularly on the points which raised differences between us.

At the end of our latest Cafe Mediate podcast, I was asked what were my personal views on certification. My answer was that I had been against it for many years but that lately I had started to think there might be some benefits. To be honest, I am surprised at this shift in my views because the arguments against certification are still very compelling.

Like my fellow Cafe Mediator, Diane Levin, who has since written more on the subject in her recent post at Mediation Channel, I have noticed some changes in the market over the last 12 months. These changes have lead me to think resistance to certification might be counterproductive but deep down I still think that certification, regulation, call it what you will, will not answer the real questions we should be addressing about where the practice of mediation is going. I think nearly everyone agrees that by now it should be the first choice for the great majority of people in resolving disputes, simply because it works and because the alternative is uncertain, costly and generally unsatisfactory.

Shortly after the podcast I read a brilliant post on certification by Michael Port who has really put his finger on the key issues around “why bother?” It often takes an independent “third eye” to see other perspectives. This is what mediation is about, after all.

Michael Port writes about the value of certification generally and brings a really pertinent question sharply into focus for me: will certification mean more business for mediators?

This goes straight to the heart of the matter. What if it is not the lack of certification or comfort for end users that has got in the way of the market growing but the fact that there is focus on shaping the profession and not on building the business? What if underneath all this there talk about standards there it is more to do with identity and the enduring divide between the ‘profession’ label and the ‘business’ label? I can’t speak about the rest of the world but here in the UK there is a snobbery about professions compared with ‘business’. What if this is more about thinking that if you are part of a profession then you will get more business. Qualifications = higher prices? Profession = regular work.

Is it possible that mediators are suffering from an identity crisis based on the perception of the difference between a profession and business? Do we want to be professionals in practice, professionals in business, professional consultants, part of an Association, Institute, Academy, panel, chambers? Are we seeking to professionalize the practice of mediation to deal with a need to belong? I think professionalism is actually about trust and being part of a professional group sends a message that we have somehow passed a ‘trust’ exam. Most of the professions require that members be trustworthy and ethical.

What if it was more a question for some of being part of an existing profession and not wanting to give up that status?

Panels, chambers, associations have all been used as business models and none of them have worked in increasing the business but they have succeeded in dividing up the available pie. It is ironic that we talk about increasing the pie with our customers and then fall short in doing the same for ourselves.

The brilliant thing is that we have today some of the best tools ever to build fellowship and community and they are the tools of social media. We have a chance to build communities with a brand, benefits and an outreach that can surpass the membership of of any established profession and reach the people who need our skills without the gatekeepers who may have got in the way of the growth of this great service offering. In my next post, I will talk about why mediators need to get into social media.

If we had been more successful in building our business would we be so concerned about “certification”?

If you haven’t listened to the latest Cafe Mediate podcast yet then you will find it listed on iTunes or on Libsyn. Do leave a comment.

For those of you in and around London, you might be interested in a new production due to start on 29 September 2009.

New Production at the National Theatre

A dramatist seeks to understand the financial crisis.

On 15 September 2008, capitalism came to a grinding halt. This spring the National Theatre asked David Hare to write an urgent and immediate work to be staged this autumn that sought to find out what had happened, and why. Not so much a play as a compelling account of how, as the banks went bust, capitalism was replaced by a socialism that bailed out the rich alone.

Directed by Angus Jackson with a cast including Jasper Britton, last seen at the National in Oedipus (2008), along with Malcolm Sinclair (History Boys, 2006), Jemima Rooper (Her Naked Skin, 2008) and Paul Freeman who recently appeared in the London revival of Glengarry Glen Ross (2007).

Opens 29 September in the Lyttelton Theatre.

More info

David Hare has a reputation for getting to the heart of issues through confidential interviews with key “actors” and presenting his insights in compelling theatre. I have seen both his previous commentaries The Permanent Way (Privatisation of the UK Railway) and Stuff Happens (Events leading up to the war in Iraq) and both were extremely good.

Between 2003 and 2006 I interviewed 30 mediators and 30 experienced end users of mediation about what they thought made a good mediator. I also explored their views on regulation. This article covers the emerging results and my thoughts about what the results meant and still mean for the way we build our profession.

Bucklow CIArb Journal Nov 2006

21 July 2009 The Serious Fraud Office issued guidance on self reporting of serious fraud overseas.

The approach includes the possibility of negotiated settlement in “appropriate cases” rather than criminal prosecution.

There was a time when people said there was no place for negotiated settlement (mediation) in cases of corruption. I disagreed. I am glad to see a change.

There is a holistic approach to the guidance which seeks to establish a number of things as precursors to civil settlement and they include

is the Board of the corporate genuinely committed to resolving the issue and moving to a better corporate culture?

will the corporate want us, where possible, to work with regulators and criminal enforcement authorities, both in the UK and abroad, in order to reach a global settlement?

is the corporate prepared to work with us on the scope and handling of any additional investigation we consider to be necessary?

at the end of the investigation (and assuming acknowledgement of a problem) will the corporate be prepared to discuss resolution of the issue on the basis, for example, of restitution through civil recovery, a programme of training and culture change, appropriate action where necessary against individuals and at least in some cases external monitoring in a proportionate manner?

does the corporate understand that any resolution must satisfy the public interest and must be transparent? This will almost invariably involve a public statement although the terms of this will be discussed and agreed by the corporate and us.

It raises some interesting questions but on first reading, it seems to be progress.

Thanks to CMS Cameron McKenna – Law-Now for the alert

A report published last month by the Georgia Commission on Dispute Resolution found a family mediator, who was also a licensed psychologist, guilty of gross misconduct.  This refers to breaches of their published Ethical Standards for Mediators, and specifically for failing to “avoid any dual relationship with a party which would cause any question about the mediator’s impartiality” and for failing to show “impartiality in word and deed” and “failing to maintain the confidentiality of the statements made in mediation.”

I have a strong sense that this is a landmark story for mediators around the world for many reasons and that commercial mediators should not be tempted to discount the importance of this on the basis that it concerns a family mediator.

Which hat shall I wear today?

The main points in the report are as follows:

The Committee found that Respondent established relationships with the subject matter of the couple’s divorce, and that Respondent engaged in multiple professional relationships with Complainant’s family, in violation of the Ethical Standards for Mediators. Respondent’s multiple roles created a clear conflict of interest and eroded the integrity of the mediation process. And it was foreseeable that Respondent’s multiple roles would prompt Complainant to question Respondent’s impartiality as a mediator, even if Respondent did not display any actual partiality. When it was clear that Respondent’s credibility was beyond repair, Respondent did not withdraw as mediator as the rules require.

The second breach occurred because ‘in denying the motion, the court wrote in its order that it “found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

and then

“In May 2007, Respondent submitted to the court an eight-page affidavit because his “integrity and skill as a mediator was called into question in court.” The court needed to know “the true reason for the failed mediation,” Respondent stated. “I sought only to clear my name by describing [Complainant’s] manner and approach throughout the mediation process.

The Commission found that

By recounting in his affidavit Complainant’s behavior during the mediation, Respondent apparently believed that Complainant’s behavior was not a “statement” or “information” and therefore not subject to confidentiality requirements. That is incorrect, as emphasized by Advisory Opinion 6.4 Therefore Respondent’s description in his affidavit of Complainant’s behavior in the mediation violated the confidentiality rules. 5 Of course, a party’s oral statements during a mediation would certainly be “information”and thus confidential. Therefore Respondent’s quoting and paraphrasing of Complainant’s mediation and caucus statements in the affidavit violated the confidentiality rules. 6.

To sum up, Respondent’s testifying voluntarily in open court about the mediation and Respondent’s voluntary submission to the court of an affidavit detailing Complainant’s behavior and words in the mediation constituted multiple violations of the confidentiality rules.

Conclusion
This case demonstrates the fragility of a mediator’s credibility and the need for the mediator to scrupulously guard against even the perception of impartiality and bias. It also shows how that credibility, once lost, is nearly impossible to restore. Therefore, the committee strongly cautions against mediators handling cases in which the parties have engaged or intend to engage the mediator in another professional capacity. Mediators may find themselves violating not just the ethics rules for mediators, but also the ethics rules governing their other professions.

The Committee further recommends that mediators never voluntarily testify about their mediations under any circumstances other than those covered by the exceptions to confidentiality in the Supreme Court ADR Rules. If necessary, subpoenaed mediators should enlist the assistance of the local court ADR program director or the Georgia Office of Dispute Resolution in quashing the subpoena and educating court and counsel.

Likewise courts should never require or allow mediators to testify about their mediations. The mediator’s promise of privacy to the parties – which allows them to communicate fully and openly without fear that the information would be used against them later – is critical to the success of the mediation process.

The fact that the Georgia Commission on Dispute Resolution chose to publish the report is significant. It sends a clear message that having an Ethical Standards for Mediators means something and that those responsible for supervising should be and are prepared to investigate and take action. This is good for the profession. It is also good for the promotion of self regulation as opposed to the any other variety.

From the practicing mediator’s point of view (and I include commercial mediators in this) there are a number of helpful reminders. I do not know all the facts and circumstances and so the following points arise from my thoughts about the significance of this report and the issues identified by the commission.

1. re-read your own code of ethics and reflect on the conditions where you might breach the code;
2. be aware that your determination to find a solution doesn’t keep you engaged in the mediation for longer than is useful to the parties: maintain your objectivity;
3. be aware that your expertise in other fields doesn’t cloud your judgment or seduce you into taking inappropriate risks. Simply put, when you are engaged as a mediator, act as a mediator and more importantly, be seen to act as a mediator and not as a therapist/counselor/lawyer/barrister/arbitrator;
4. resist all temptation to leverage your other business practice development from your mediations.  It is so easy to say “I can do that for you”. Good intentions are not a good defence!
5. Notwithstanding that one’s reputation is vital working capital, be careful how quickly you rise to defend it and be sure you need to. Perhaps someone else is better placed to do that for you. Paradoxically, the ego is so often the enemy of reputation.

I feel extremely sorry for the mediator in question. This is the mediator’s nightmare. It does bring home the importance of the support of a professional body, peer reviews, and developing a good habit of reflective practice all of these help to minimise the risk of the “train leaving the rails”.

Does this story make you feel uncomfortable? Do you agree or do you have different views? Have you had a close shave?