ACR Mediator Certification
Task Force
You may submit your comments through the ACR
Discussion Board. You may also send your comments
directly to acr@ACRnet.org
or by fax at 202-464-9720.
Report and Recommendations
to the ACR Board of Directors
March 31, 2004
Executive Summary
The Board of Directors of the Association for
Conflict Resolution (ACR) authorized the creation
of a Task Force on Mediator Certification in November,
2002. The purpose of the Task Force was to design
a national certification program. The President
of ACR subsequently appointed the members of the
Task Force, and the Task Force convened three
times in 2003.
After considering a variety of options, the Task
Force recommends that ACR establish a Mediator
Certification Program with the following elements:
-
Presentation of a “portfolio”
of years of experience and training;
-
Successful completion of a written knowledge
assessment;
-
Periodic re-certification;
-
A process for requesting a waiver of some
of the requirements in exceptional or extraordinary
circumstances;
-
Potential de-certification for violation
of ethical and professional standards;
-
Appeals of decisions at various stages in
the certifying process.
The Mediator Certification Program is designed
to be purely voluntary and open both to members
and non-members of ACR. Mediators who want to
be certified will submit a comprehensive application
that outlines the necessary training and experience,
along with letters of reference and disclosure
statements. Only upon favorable review of this
“portfolio” will an applicant be permitted
to complete a written test (or possibly an oral
version). The certification will be active for
a period of three years, after which a mediator
may apply for re-certification. Mediators may
petition for a waiver of some of the requirements
for certification or re-certification in exceptional
or extraordinary circumstances. The burden will
be on the applicant to show good cause for a waiver.
A certified mediator may be de-certified for ethical
or professional violations. An appeals process
will be available at the stages of initial certification,
re-certification or de-certification.
The Mediator Certification Program is envisioned
to be self-financing. Applicants will be charged
a fee for certification (or perhaps separate fees
for filing the application and for taking the
test) and for re-certification.
Initially, assuming that ACR would create the
Mediator Certification Program, the certifying
entity would be related to ACR. The Task Force
recommends that ACR establish a separate but related
entity to administer the Mediator Certification
Program as soon as proves feasible. Later, when
practicable, the entity to certify mediators should
become an independent entity with an independent
governance structure.
A. Introduction to Proposed Mediator
Certification Program
Historical Background
In December of 2002, Nancy Peace, then President
of ACR, appointed a Task Force to study and recommend
an appropriate process for the certification of
mediators. The members of the Task Force are:
Steve Erickson and Marvin Johnson, Co-Chairs,
Peter Adler, Robert Benjamin, Rita Callahan, John
W. (Jack) Cooley, Dan DeStephen, Diane E. Kenty,
and Andrew Thomas. David Hart, CEO, and Nancy
Peace, Past President, serve ex officio. (See
brief biographical information in Appendix A.)
In 2003, the Task Force met in Washington D.C.
in January, April and December. The Task Force
presented an initial report to the ACR Board of
Directors in June, 2003.
As part of developing a design for the Mediator
Certification Program, the Task Force released
its initial report at the June, 2003 Leadership
Council meeting of ACR Chapter and Section leaders.
ACR also posted the initial report on its Web
site for public comments from July through November,
2003, and many individuals posted or sent comments
and suggestions. To obtain feedback from interested
organizations, ACR’s CEO sent letters to
several groups, including the American Bar Association
Section of Dispute Resolution (ABA-DRS), the National
Association of Community Mediation (NAFCM), the
Association of Family and Conciliation Courts
(AFCC), the Federal Mediation and Conciliation
Service (FMCS), and the Maryland Council for Dispute
Resolution. Comments were received from several
groups and were reviewed and incorporated as appropriate
into this report. Moreover, at its Annual Conference
in Orlando, Florida in October, 2003, ACR held
a workshop devoted to the prior report and to
the work of the Task Force. Many valuable comments
and suggestions about certification were received
at that session.
In conjunction with its work, the members of
the Task Force reviewed a body of literature concerning
credentialing of mediators and of other professionals.
These included publications of two of ACR’s
founding organizations, the Society of Professionals
of Dispute Resolution (SPIDR) and the Academy
of Family Mediators (AFM). The Task Force also
reviewed other documents related to mediator certification
programs currently in existence, such as the certification
programs of Family Mediation Canada and several
state groups. In addition, the Task Force revisited
various existing statements of standards of conduct
for mediators and other related material. (See
selected bibliography in Appendix B.)
The Task Force discussed whether a certification
process should be designed for other ADR neutrals,
such as arbitrators, facilitators, or conflict
managers. It was decided to focus on a certification
process for mediators. Task Force members agreed
that certification should and likely will be developed
or expanded for other neutrals in the future.
Core Values and Principles for Certification
Efforts
The Task Force has identified the following as
the core set of values that must be reflected
in any mediator certification process to be established:
1. Self determination by the parties
2. Impartiality of the mediator
3. Disclosure of conflicts of interest
4. Competence of the mediator
5. Confidentiality of the mediation process
6. Ensuring the quality of the process
7. Appropriate advertising and solicitation
8. Charging appropriate fees
9. Obligation to improve the mediation process
10. Ability to manage diversity in the mediation
process
These core values are drawn from the Model Standards
of Conduct for Mediators created jointly by the
Society of Professionals in Dispute Resolution,
the American Arbitration Association and the American
Bar Association in 1994.
The Task Force has also identified a set of guiding
principles for creating the certification process.
The certification process must be:
1. Easy to understand
2. Accessible to a broad range of practitioners
3. Should reflect core skills
4. Consistent with ACR values
5. Designed to allow for diversity of practice
and people
6. Designed to validate members’ knowledge
and experience
7. Focused on those areas of practice where uniformity
is required
8. Transparent to those seeking certification
9. Voluntary
Definition of Mediation
Any certification effort must be founded on a
clear definition of the process that it intends
to approve. The Task Force recommends that any
certification process established by ACR, or in
which ACR participates, should be based on a definition
of mediation drawn substantially from that adopted
by the National Association for Community Mediation.
For purposes of certifying practitioners of mediation,
the mediation process is defined as follows:
Mediation is a process of dispute resolution
in which one or more impartial third parties
intervenes in a conflict or dispute with the
consent of the participants and assists them
without coercion or the appearance of coercion.
In mediation, the decision-making authority
rests with the participants themselves and strongly
values the parties’ exercise of their
self determination. Recognizing participants’
needs, cultural differences, and variations
in style, the mediation process allows participants
to define and clarify issues, reduce obstacles
to communication, explore possible solutions,
and, when desired, reach a mutually satisfactory
agreement. Mediation presents the opportunity
to express differences and improve relationships
and mutual understanding, whether or not an
agreement is reached.
In the proposed Mediator Certification Program,
the written examination would be rooted in this
definition of mediation. At the same time, the
examination should reflect the importance of an
understanding of the full spectrum of mediation
models and styles of practice. The Task Force
concluded that a national certification effort
should not be limited to those who practice a
particular model of mediation. The Task Force
agreed that a skilled mediator should be knowledgeable
about different approaches and schools of thought,
even if he or she works primarily in one. In other
words, certification should be open to mediators
with a broad range of approaches and philosophies.
The Task Force recognized that some applicants
may not be certified if they do not embrace the
core values of mediation and the definition stated
above. By adopting this articulation, the Task
Force adopts and supports ACR’s standard
definition of mediation. The Task Force has agreed,
however, that adoption of this definition should
not be construed as an endorsement of only one
model of mediation to the exclusion of all others,
nor should the definition be used narrowly as
a “litmus test” for the granting of
certification.
Performance-Based Assessment
One of the most difficult issues that confronted
the Task Force was whether to include a performance-based
component as part of certification. This was also
the subject of many comments received in the public
comment period. For example, the Task Force considered
the possibility of requiring personal or videotaped
observation of applicants conducting mediation
sessions. Task Force members discussed many questions
about this method of assessment: Is it reliable?
Is it valid? Is it practical? Does it open the
door to subjectivity? Ultimately, the Task Force
concluded that inclusion of a performance-based
component of observable mediation skills is not
desirable at this stage of development of the
mediation field. The Task Force also concluded
(albeit without benefit of an actual business
plan) that performance-based assessment would
demand greater human and financial resources than
are likely to be available at the outset.
Thus, the Task Force reached a consensus that,
at least at the beginning, the proposed design
of the Mediator Certification Program would consist
of a portfolio review (an applicant’s presentation
of evidence of mediation experience and training)
and a knowledge assessment (an applicant’s
demonstration of knowledge of mediation through
a written or oral examination). In the view of
Task Force members, at this stage of development
of the mediation field, it would be a significant
leap forward to establish a commonly-accepted
threshold for a mediator’s knowledge of
conflict resolution and related topics, as well
as a baseline for experience in conducting actual
mediation. More extensive techniques for assessing
mediation skills, and more advanced levels of
certification for additional mediation experience,
will be welcome in the future.
Relation to ACR Membership Categories
Task Force members discussed where a certification
process would “fit” into the existing
membership categories of ACR. In designing the
proposed model of a Mediator Certification Program,
the Task Force agreed that a mediator need not
be a member of ACR to apply for certification,
even if ACR or an ACR-related entity were to be
the certifying body at the outset. Allowing mediators
who are not members of ACR to apply for certification
affords the greatest opportunity for credibility
and widespread acceptance of the certification
as a practice credential in the growing field
of mediation.
The Task Force also agreed that certification
could ultimately be linked to certain membership
categories or designations within ACR Sections.
Certification is conceived to be at a “low
intermediate” level for mediators who have
attained a substantial foundation of training,
knowledge and experience. The Task Force encourages
other subgroups within ACR, including Sections
and Chapters, to consider the requirement of basic
mediator certification as they develop other designations
such as “Advanced Practitioner” or
in compiling geographic or subject-matter referral
lists.
Self-Sustaining Program
It is the intention of the Task Force that the
Mediator Certification Program be financially
self-supporting. In order to achieve that objective,
it is envisioned that applicants will be assessed
a fee for certification. The charge may be imposed
in two parts: an initial charge for the review
of the “portfolio” of training and
experience, and, for those who pass through that
stage successfully, a second charge for the written
knowledge assessment. Fees would also be imposed
at the time of re-certification. As noted, the
Task Force agreed that the Mediator Certification
Program should be administered by an entity separate
from the ACR, though the Task Force recognized
that start-up costs and other practical considerations
may dictate that the Certifying Entity may initially
be related to ACR and may require financial resources
of ACR.
Efforts of Other ADR Organizations
As the Task Force convened, other national ADR
groups had already begun to consider the increasing
demands for quality of practice and credentialing
of practitioners. For example, the American Bar
Association’s Section on Dispute Resolution
had established a task force specifically to develop
a credential for mediators to establish their
qualifications and to guide consumers in selecting
providers of mediation services. The National
Association for Community Mediation had embarked
on a quality assurance project that focused on
initiatives to be taken by community mediation
programs. In the last two to three years, efforts
by these groups, ACR and others appeared to spring
from some common concerns and aspirations: elevating
the importance of quality in mediation practice,
emphasizing the need for adequate training and
background in the mediation process and distinguishing
mediation from other professional disciplines
(and precluding regulation by any other existing
profession). At the same time, the various organizational
efforts may have had some disparate origins and
intentions as well.
At the beginning stages of its work, the Task
Force concentrated on its charge to design a conceptual
model for a national mediator certification program.
Later, discussions included not only the “what”
and the “why” but the “how.”
Not wanting to speak for other groups, and in
light of different paths chosen by others, the
Task Force continued to carry out its task of
recommending a plan of action for ACR. Simultaneously,
the ABA Credentialing Task Force focused on proposals
for accreditation of mediator training programs,
and NAFCM focused on initiatives within community
programs for its own cadre of mediators.
It is hoped that other groups may endorse the
design of the proposed Mediator Certification
Program. Further, the Task Force recognizes that
opportunities may arise for ACR to work with other
groups in refining and/or implementing certification
for mediators on a national scale. The recommendations
of the Task Force are not intended to prescribe
an exclusive undertaking by ACR, nor do they in
any way preclude the expansion of the certification
effort beyond ACR. The Task Force recognizes that
a certification program must be embraced by, and
representative of, the wider mediation field if
is to become truly national in scope and widely
accepted both by mediators and the public as a
valuable credential.
If opportunities arise, the Task Force recommends
that ACR consider how best to work with partners
in advancing the goal of a recognized, respected
certification program for mediators. The Task
Force urges that ACR maintain a broad vision regarding
certification that reflects the full spectrum
of ACR’s membership and ACR’s commitment
to diversity of practice and practitioners in
the mediation field.
B. Preamble to Mediator Certification
Program
The following Preamble is presented as an introduction
to a description of the proposed Mediator Certification
Program. It seeks to set forth more fully ACR’s
philosophy and rationale for establishing and
fostering certification for mediators.
In the last twenty-five years, the practice of
mediation, facilitation and numerous other variations
of third-party involvement in negotiating issues
and disputes has increasingly become a part of
the cultural and legal landscape throughout the
world. In this relatively short period of time,
“meditative” processes have become
formalized and institutionalized. Moreover, different
schools and styles of mediation practice (i.e.,
facilitative, law-centered, transformative, evaluative,
managerial, etc.) have found acceptance in different
settings, in different areas of application, and
for different purposes.
Today, the range extends from personal injury,
employment, land use, family and family and divorce
disputes—deep in the shadow of legal court
action—to a spectrum of issues that individuals,
groups, organizations or communities may want
or need to address, independently or prior to
or after formal legal process. Throughout United
States, Canada, Australia, the United Kingdom,
New Zealand and many other countries, mediation
has been incorporated as part of administrative
and regulatory process. Finally, arbitration,
a related but nonetheless distinct mode of dispute
management in which a third party renders a binding
or advisory determination in a dispute, has been
available for even longer and is a common contractual
or legal requirement.
Many states and jurisdictions have begun to set
standards and requirements for mediators and arbitrators,
although none have adopted formal licensure. At
present, the regulation of ADR practice most often
relies on forms of certification or rostering.
While there is a good measure of overlap, there
is little overall uniformity or coherence in the
various practice codes, which hampers the development
of the field. After nearly a quarter of a century,
bringing a greater degree of coherence to the
field is necessary to foster the continuing development
of a vital and distinct conflict management profession.
ACR is the only organization of dispute management
practitioners that expressly invites and reflects
members from all countries around the world, every
context of dispute management practice and every
profession. Thus, ACR is uniquely situated to
undertake the difficult but necessary work of
developing a coherent and uniform process of voluntary
certification for practitioners that is not dependent
on a formal professional degree but is centered
on mediation fundamentals.
Purpose
A voluntary certification process can
offer at least four important benefits.
First, the process would allow for a more uniform
verification of a basic level of training, experience
and study by practitioners. At present, multiple
mediation programs across numerous states are
establishing separate requirements, and there
is no accepted procedure for granting recognition
or comity to the validity of foreign programs.
This often necessitates redundant training and
results in substantial administrative costs to
programs and practitioners. The proliferation
of mediation programs and rosters, each with separate
qualifying requirements that are not compatible,
discourages the participation of skilled practitioners
who might move from one state to another or wish
to gain experience in different contexts or settings.
A national (and international) mediator certification
program will achieve an economy of resources and
lessen the competition that is now growing between
conflict resolution programs—a level of
competition that can undermine a mediation community.
Second, a mediator certification process would
begin to establish a more solid foundation of
competency and professionalism. Certification
would provide practitioners with a symbol of their
personal and professional commitment to a disciplined
course of study, scrutiny by their peers, and
adherence to the higher principles of professional
practice. They have been willing to subject themselves
to a rigorous process of review by a credible
and recognized national organization.
Third, completion of the certification process
could offer consumers another valid criterion
by which to gauge the qualifications of conflict
management practitioners in the marketplace. While
carefully avoiding the projection that certification
is a warranty of competency, it remains a useful
factor to be considered in choosing a mediator.
Fourth, a certification process would allow ACR
members to influence the future development and
direction of the field. Emphasizing the core principles
of party self-determination, impartiality and
diversity in its broadest sense, the certification
process would encourage a practice of mediation
that is respectful of the parties’ self-determination.
The certification process would include individuals
regardless of their profession of origin.
Guiding Principles, Concerns and Caveats.
ACR is deeply mindful of the many valid concerns
that have been raised by practitioners over the
years, many of which address the reluctance to
enact a voluntary certification process. The proposed
Mediator Certification Program makes every effort
to minimize those risks directly both by establishing
guiding principles and in providing checks and
balances in the program operation. Those underpinning
concerns are as follows:
There is no intention to use, confuse or substitute
educational degrees, whether basic, professional
or advanced, with certification.
Diversity includes, but is not limited to, differences
of race, gender, ethnicity, cultural background,
religious affiliation, socioeconomic status, sexual
orientation, disability, and language.
The robust and vital discussion in the field
between proponents of different styles of practice
should not be affected or impeded by the certification
process. There is an express intention to focus
on generic standards of practice in North America
and elsewhere that are bedrock to different styles
and schools of thought.
The purpose of a voluntary certification process
should not be confused with discussions about
“best practices.” Rather than seek
to establish that a given practitioner knows the
“right way” to approach a given situation
or circumstance, it will make clear that he or
she understands that the parties’ self-determination
is a fundamental mediation principle, is aware
of the most salient available techniques and is
sufficiently well versed in the dynamics of the
conflict and other relevant factors that might
impinge on the dispute and ought be considered
in its management.. Elements of best practices
will serve as the foundation for the written knowledge
assessment. The test design process should draw
upon other organizations’ best work to identify
best practices.
Admittedly, the mediation process and attendant
conflict resolution concepts that lie at the heart
of the proposed Mediator Certification Program
are Western and, indeed, North American in orientation.
Though the certification offered will be open
to practitioners around the world, it will be
based on current North American notions of mediation.
Specifically, this certification process is a
foundation upon which the various Sections might
establish qualifications for “Advanced Practitioner”
membership.
The certification process should be useful and
available to any person who wishes to enhance
his or her professional qualifications, whether
or not the individual is a member of ACR. This
will increase the likelihood of general acceptance
throughout the field. The process is designed
to be efficient without compromising the level
of rigor necessary to be adapted as a standard
for conflict management professionals.
Training, knowledge, and experience are strong
indicators of competency. Voluntary certification
is important not only for what it does, but also
for what it symbolizes. By participating in a
voluntary certification process, a practitioner
states his or her willingness to take the necessary
steps to prepare adequately to provide effective
support for people who choose to pursue the negotiation
and management of issues or conflicts. It reflects
a practitioner’s unbridled commitment to
the ultimate principle of mediation, facilitation
and conflict management practice: that people
are capable of making substantially informed and
consensual decisions in matters that directly
affect their lives, if given the opportunity.
The Mediator Certification Program set forth herein
wholeheartedly supports that commitment.
C. “Portfolio” Requirements
of Certification Applicants
The Task Force agreed that training and experience
are the two primary components of the “portfolio”
that an applicant must present in seeking certification.
The experience base must necessarily be active
experience as a mediator in a mediation process.
The Task Force does not recommend that the application
attempt to distinguish among particular types
or philosophies of mediation in assessing that
mediation experience. The most important feature
is that it be actual practice as a mediator.
1. Training or Coursework. First,
an applicant must be able to document the completion
of at least 100 total hours of training or academic
coursework in conflict resolution. Of these 100
hours, 80 hours must consist of training in mediation
process skills. The 20 additional hours above
those required in mediation process skills may
fall in subject matters related to any of the
areas of the areas to be covered in the knowledge
assessment. Hours spent as a trainer or teacher
of programs/courses related to the knowledge categories
can be counted as part of the 20 hours.
2. Mediation Experience. Second,
an applicant must be able to document at least
100 total hours of mediation or active co-mediation
within the last five (5) years, or 500 hours of
mediation or active co-mediation over a lifetime
of practice. Observation of mediation sessions
does not constitute mediation experience and will
not count towards these hours.
3. Letters of Reference. As
part of a “portfolio,” an applicant
for certification must submit three (3) letters
of reference from individuals who are familiar
with the applicant’s mediation work.
4. Disclosures. Applicants must
also disclose criminal convictions or professional
disciplinary actions. The Certifying Entity may
refuse to certify an applicant who has been convicted
of a criminal offense or been disciplined by a
professional organization on ethical grounds,
unless the applicant can demonstrate that the
conviction or disciplinary matter is not relevant
to professional and ethical issues associated
with the practice of mediation. Failure to disclose
complete and accurate information could constitute
grounds for de-certification once the errors or
omissions are discovered.
D. Description of Written Exam: Knowledge
Areas to be Tested
The Task Force recommends that ACR should contract
with a consultant to work with the Task Force
members or some other group of ACR members to
develop the written knowledge assessment. The
test would be administered through the Certifying
Entity created specifically to handle the Mediator
Certification Program (possibly ACR or a related
entity at the outset). Prior to any “official”
testing, the written examination will have to
be designed and fully tested before the Mediator
Certification Program can be launched.
The Task Force does not envision that a test
preparation course would be offered by ACR or
a related entity to potential applicants for certification.
Rather, the Task Force believes that applicants
should be able to rely on previous education and
training or be able to self-study to take the
test.
The test may be conducted online, or applicants
may be requested to take the examination in a
written or oral version at a specific location
and time. The Certifying Entity will necessarily
fulfill its responsibilities to offer disability
access and accommodations. Depending on the ultimate
examination design, it may or may not be a closed
or open book examination. It is envisioned that
the examination will be a multiple-choice type
to facilitate and accelerate the task of grading.
At present, the Task Force foresees that the
test will be created and offered in English, though
mediators in many countries may wish to apply
for certification and take the test. A U.S. or
Canada residency requirement is not recommended.
It is hoped that the Certifying Entity will possess
the capability to offer the written test (as well
as an oral version) in other languages in the
future.
The Task Force has identified the basic array
of subject areas that would be included in the
written knowledge assessment for the Mediator
Certification Program. Using the list of attributes
developed by Family Mediation Canada as a starting
point, the Task Force recommends testing eleven
knowledge areas. The topics to be tested are as
follows (in no order of priority):
-
Communication
-
Conflict Theory
-
Content Management and Resources
-
Cultural Diversity
-
Ethics
-
History of Mediation
-
Models, Strategies and Styles
-
Negotiation
-
Process Structure
-
Role of Third Party
-
Systems and Group Dynamics
Examples of more specific sub-issues within each
subject matter area include the following:
Communication: message construction—appropriate
choice of words to convey intended meaning; styles
of communication; effective listening; supportive/defensive
communication; effective feedback; asking good
questions; identity issues; meta-communication
(nonverbal); perception; barriers to effective
communication; stereotyping; reframing and clarifying;
managing emotions; how to connect with people;
learning styles; theories of communication; pacing;
reason and emotion; communication channels; empathy
Conflict Theory: distributive
and integrative; constructive and destructive
conflict (e.g., Deutsch); conflict and culture
(e.g., Roth); escalation and de-escalation; theory
and philosophy of conflict; social justice; religious/moral
traditions; spectrum of conflict management processes;
equity theory
Content Management and Resources:
impact of content; identifying and finding resources;
managing content resources in the process; awareness
of legal issues, financial/tax issues, counseling/therapy
issues, trade and business issues, “custody”
issues, health care/medical issues and scientific
issues; supporting participants with disabilities
or special needs; mediator as “advocate”
Cultural Diversity: meaning
and use of language; negotiation rituals; use
of interpreters; customs; understanding culture
in varying contexts, including neighborhoods,
organizations, ethnic groups, religions, etc.
(when primary and when secondary); assumptions
and stereotyping; high context and low context
cultures (e.g., Edward Hall); respecting, removing,
or ignoring cultural barriers; the impact of cultural
diversity on conflict situations and the mediation
process; accessibility and accommodation; equity
and diversity; the influence of “isms”
(e.g., sexism, racism, heterosexism) on individuals
and the mediation process
Ethics: awareness of codes and
standards of practice; informed consent; self-determination;
conflicts of interest; UP of other professions;
confidentiality, competence; quality of process;
advertising and marketing; fees; obligation to
the field; diversity; duty to best interest of
child; normative vs. process standards (fairness);
duty to report (to court or reporting abuse, fraud
or criminal/violent behavior; duty” to report
malpractice; awareness of conflicting ethical
and professional codes; when to withdraw; grievance
process; substantive competency
History of Mediation: community
mediation; history of labor origins; Community
Relations Service; Pound Conference; prison programs;
history of major organizations; other cultures—impact
and influences; classical literature within the
field
Models, Strategies and Styles:
principles; assumptions; values; commonalities;
outcomes; transformative; law-based; facilitative;
evaluative; business; advice and information;
goals; directive-ness; cultural models; cyber;
assessing risks and advantages of models; matching
models to contexts and parties
Negotiation: theories of negotiation;
negotiation styles; tactics and strategies; elements
of cooperative negotiation; timing; interests
and positions; bargaining ranges; BATNAs; walk-aways;
mutual gains; positional bargaining; generating
and testing options; brainstorming; issue formulation;
drafting agreements; decision making; 3rd party
roles; persuasion/influencing; power and power
imbalances; caucus and other techniques; multiple
parties; multiple or limited issues; use of experts;
risk analysis; transaction costs; ground rules;
creative thinking; problem-solving; problem recognition/issue
formulation; negotiation planning and coaching;
visual display of information; dirty tricks; deception;
managing impasses
Process Structure: limited/multiple
parties and issues; convening; gaining commitment
to the process; information gathering; issue formulation;
negotiation format; confirming understanding;
caucuses; negotiation process; resolving impasses;
agreements to mediate; rules of mediation; agenda-setting;
termination of mediation; managing the presence
of 3rd parties; process pacing and timing
Role of Third Party (your role
when you walk into the room): neutrality; impartiality;
mediation vs. other conflict resolution processes;
who is the client; mediation as a formal role
vs. informal mediation processes and techniques
within other contexts or roles
Systems and Group Dynamics:
systems theory; impact of third party; coalitions
and alliances; boundaries; roles; group think;
trans-generational patterns (tradition); precedent;
subsystems; norms; change dynamics
E. Re-Certification Process
After discussing possible standards and procedures
for re-certification, the Task Force recommends
that the initial certification be valid for a
period of three years. To be re-certified, a mediator
must:
-
Submit re-certification statements (or a
re-certification “application”);
and
-
Have completed 30 hours of Continuing Education
Units (CEUs) over the previous three-year
period of certification. CEUs will be recognized
for a broad spectrum of training, presentations,
continuing education courses, and conference
workshops.
An applicant who has documented 500 lifetime
hours of practice at the initial certification
would not be required to document any additional
practice hours for re-certification. An applicant
who does not document 500 practice hours for the
initial certification must document at least 50
additional practice hours for each re-certification
until a total of 500 lifetime hours is reached.
Once a mediator has reached 500 lifetime hours
of practice, no additional practice hours will
be required for re-certification.
F. De-Certification Process
The Task Force recommends that the Mediator Certification
Program include a component of de-certification.
Any certified mediator who is found by the Certifying
Entity’s Ethics Review Committee to have
violated ACR’s ethical standards, or other
applicable standards of ethical conduct, may be
de-certified. If the certified mediator is a member
of ACR, that mediator may also have his or her
ACR membership terminated, as determined by ACR
policy.
The sequence of steps of a de-certification process
has not yet been developed, but it is likely that
those steps would include thorough review by the
Certifying Entity’s Ethics Review Committee
(i.e., persons designated to conduct such a review
on behalf of the Certifying Entity), due process
to permit a response by the mediator, and a deliberative
decision. The de-certification process will include
a mediation step and/or possibly an arbitral proceeding.
The ACR Ethics Committee might be one source
of referrals for potential certification, as might
other organizational committees devoted to ethical
or professional violations. Individual consumers
of mediation services could also petition for
the de-certification of a certified mediator
G. Relationship of Mediator Certification
Program to ACR Ethics Review Process
The procedures of the Mediator Certification
Program will be distinct from ACR’s Ethics
Committee Review Process for complaints from consumers
or other practitioners about alleged ethical violations
of ACR members. The two processes may intersect,
however, if the ACR Ethics Committee’s Review
Process yields grounds for de-certification of
a certified mediator.
At present, all complaints about ACR members
related to practice issues are referred to ACR’s
Ethics Committee. It is presumed that the Ethics
Committee would continue to review complaints
regarding ACR members who are not certified mediators.
A separate reviewing group affiliated with the
Certifying Entity will be established in conjunction
with the Mediator Certification Program to review
complaints about certified mediators.
The Task Force recommends that in implementing
the Mediator Certification Program, the standards
regarding good character and fitness used by other
certifying organizations should be reviewed.
H. Relationship of Certification to
ACR’s Advanced Practitioner Membership
Prior to the merger of AFM, CREnet, and SPIDR,
AFM had a membership designation of “Practitioner”
for which one could qualify by taking a specified
number of AFM-approved trainings, conducting a
prescribed number of mediations that were then
reviewed by Practitioner peers, and completing
several hours of supervision. The merger plan
for the three organizations provided that the
rechristened “Advanced Practitioner”
designation, available to ACR Family Section members,
be expanded so that ACR members in other specialties
could attain this designation also. An ACR Task
Force on Advanced Practitioner Membership was
created to recommend a framework for the development
of the Advanced Practitioner Member category for
other Sections. That group has suggested that
the Mediator Certification Program should be a
prerequisite to becoming an Advanced Practitioner
Member. That is, they assume that the initial
certification of mediators will set a relatively
low bar, and that each Section may establish its
own criteria for Advanced Practitioner Membership
status by setting forth additional or more substantial
requirements.
The Task Force leaves the direct or indirect
linkage between certification and certain ACR
membership categories if any, to be determined
by the ACR Board of Directors.
I. Sequence of Steps in the Mediator Certification
Process
The Task Force recommends that the application
process should be as streamlined and efficient
as possible. For example, the procedures for application
and notice should be computerized so as to minimize
the amount of paid-staff time required. Because
the Mediator Certification Program is envisioned
as a basic, or entry level, rite of passage into
the mediation profession, the Task Force anticipated
that, at the outset, there would be a high volume
of applications by ACR members and non-members
who already have or have exceeded the minimum
experience and training requirements. This initial
onslaught of applications would predictably taper
off after the first year or two of the operation
of the Mediator Certification Program.
The recommended steps for an applicant to apply
for and acquire certification are as follows:
-
Complete and submit an application (electronic
or by mail) to the Certifying Entity (or ACR,
if it should serve that purpose initially).
The application would contain the information,
declarations and references needed for the
portfolio review. A non-refundable application
fee would be required to accompany the application
to cover the costs of the application process.
-
The Certifying Entity would notify the applicant
when it had all received the necessary information
so that the portfolio review could begin.
-
A staff member of the Certifying Entity
would review the applicant’s complete
portfolio and determine whether the minimum
portfolio requirements had been met.
-
The Certifying Entity would send notice
to the applicant advising of the results of
the portfolio review.
-
Approved applicants would receive notice
of their passing the portfolio review
aspect of the certification process and
would be advised of the procedures for
taking the written examination. Applicants
could request an oral examination in lieu
of a written examination.
-
Applicants not approved would be allowed
a specified time to appeal or to resubmit
an application and portfolio that would
satisfy minimum portfolio requirement
-
Approved applicants would complete the written
(or oral) examination. The Certifying Entity
would ensure that disability access obligations
are met and reasonable accommodations offered.
-
The Certifying Entity would review the completed
examinations to identify any grading errors
and to determine whether the results are above
or below the pre-established pass/fail point.
Applicants receiving a failing grade would
be allowed a specified time frame to submit
an appeal. (The proposed appeal process is
described below in this Report.)
-
The Certifying Entity certifies applicants
who satisfy all prerequisites.
J. Appeals of Denial of Certification
or Re-Certification (and of De-Certification)
From its review of professional certification
materials, the Task Force learned that nearly
all certification programs have an established
appeal process for applicants. The appeal process
allows an applicant the opportunity to question
or challenge procedural inconsistencies and the
substantive aspects of the certification process.
A successful approach to an appeal process envisions
a system that is fair, logical, and consistently
applied to each applicant.
In most certification appeal systems, there may
be several different levels of appeals that could
be classified as either informal or formal. The
majority of appeals are, in most cases, effectively
addressed at the informal stage of the appeal
process. Often, an applicant’s questions
or challenges are resolved when the Certifying
Entity provides additional information about what
transpired or by giving an applicant the opportunity
to present comments to the national office. On
the other hand, when staff responses are delayed
or inadequate, applicants may seek fairness or
justice by proceeding to the more formal appeal
process, and perhaps to litigation ultimately.
The typical appeal response hierarchies for informal
and formal appeals are:
A. Informal Appeals
1. Administrative Program Staff
2. Executive Director of Certifying Entity
B. Formal Appeals
1. Executive Director of Certifying Entity
(if no prior informal appeal)
2. Certification Appeals Committee
A suggested outline of a possible appeal system
is described below. It is based in part on the
appeals process in use by Family Mediation Canada,
and it integrates aspects of the appeal response
hierarchies described above. The proposed appeal
process is skeletal and will be fleshed out at
a later time.
It is imperative that any appeal process be confidential
and administered so as to accord adequate measures
of fairness and justice to all who participate
in it. The appeal process outlined below is based
on the assumption that the applicant must exhaust
an informal appeal before proceeding to the formal
appeal process.
It is contemplated that an appeal could be initiated
after any of the following events: (1) a review
of the applicant’s portfolio of training
and experience in the application; (2) failure
of the written examination; (3) an unsuccessful
periodic re-certification process; or (4) an adverse
decision in a de-certification process.
Suggested Informal Appeal Process
1. An applicant may initiate an informal appeal
from any adverse decision in the original application,
re-application processes or de-certification processes.
An applicant who appeals a decision is called
an “appellant.”
2. An applicant may initiate an informal appeal
by submitting to the Certifying Entity’s
Administrator (“Administrator”) a
written notice and a brief accompanying statement
describing the basis for the informal appeal.
The appellant must submit the appeal notice within
30 days of an adverse decision. On written request
of the appellant, the Administrator may extend
the time for submitting the appeal notice by an
additional 30 days.
3. The Administrator (or designee) may then
contact the appellant to answer any questions
that the appellant may have regarding the certification
or appeal processes and to see whether the appellant’s
appeal can be resolved without further resort
to the appeal process.
4. If the Administrator and the appellant are
able to resolve the appeal informally, the appeal
is deemed settled, and the appellant signs a statement
to that effect. The Administrator may adjust the
appellant’s records to allow the appellant
additional time to resubmit his or her portfolio
in the reapplication process or to prepare for
a reexamination.
5. If the Administrator and the appellant are
unable to resolve the appeal within 30 days of
receipt of written notice and brief statement,
the Executive Director of the Certifying Entity
shall be promptly notified of that fact. The Executive
Director may attempt to resolve the matter informally
as he or she deems appropriate. If the Executive
Director is successful, he or she sends the matter
back to the Administrator with instructions to
the Administrator to follow the procedures described
in paragraph 4, above.
Suggested Formal Appeal Process
1. If the Executive Director does not wish to
attempt an informal settlement of the appeal,
or if he or she is unsuccessful in reaching an
informal settlement, the Executive Director sends
the matter back to the Administrator with instructions
to give written notice to the appellant of his
or her formal appeal rights.
2. The appellant must submit a written notice
requesting a formal appeal within 30 days of the
date of the written notice from the Administrator
advising the appellant of his or her formal appeal
rights. The Administrator has discretion to extend
the time for filing the formal appeal notice for
an additional 30 days. The notice requesting a
formal appeal must be accompanied by a statement
describing the basis for the appeal. This basis
may be modified as a result of information obtained
in the informal appeal process.
3. If the appellant does not submit a notice
requesting a formal appeal (with an accompanying
statement) within the specified time limit, as
extended by the Administrator, the appeal will
be deemed settled by default.
4. If the appellant submits a timely notice requesting
a formal appeal, within 30 days of receipt of
a complete request for formal appeal (including
the accompanying statement), the Chairperson of
the Certifying Entity’s Certification Appeals
Committee will appoint a panel of three certified,
experienced mediators from a pool of panel members
designated as the Certification Appeals Committee
by the Certifying Entity’s Board of Directors
to serve as members of the appellate panel. The
three appellate panel members so appointed will
not have any personal, professional or pecuniary
conflict of interest with the appellant. The appellant
will have a right to challenge for cause any appellant
panel member appointed to hear his or her appeal.
The Chairperson of the Certification Appeals Committee
may appoint an additional certified mediator to
be on call if the appellant wishes to pursue a
confidential mediated resolution during the proceedings.
5. As soon as practicable, but no later than
60 days following appointment of the appellate
panel, the appellate panel will hear the evidence
presented by the appellant. The Administrator
or designee may respond to the evidence and present
his or her own evidence. Appellant and the Certifying
Entity will be entitled to legal counsel or other
representation at this hearing. The hearing will
be in the nature of an arbitration proceeding.
Rules of evidence will not be strictly enforced.
6. After hearing all of the evidence, the panel
will render its decision in writing within 10
days of the conclusion of the hearing. Its decision
will be the final determination of the appellant’s
appeal.
7. After a minimum of 90 days following the issuance
of a decision in an unsuccessful appeal of the
denial of certification or re-certification, an
appellant may re-apply to the Certifying Entity
for certification or re-certification.
K. Recommendations and Initial Implementation
Steps
The Task Force recommends that:
1. The ACR Board of Directors approve the model
of the Mediator Certification Program described
in this report.
2. ACR make certification a strategic priority
of the ACR Board of Directors and the Development
Committee for 2004.
3. ACR identify and engage the appropriate consultant(s)
to work with ACR on continuing to develop the
Mediator Certification Program, including the
following tasks: to conduct market research to
determine the feasibility of the Mediator Certification
Program; to prepare a business plan for the Mediator
Certification Program; to create the written knowledge
test; and to refine the application process.
4. The President of ACR appoint a small steering
committee or task force to spearhead the implementation
of the Mediator Certification Program, to prepare
an overall strategic plan for certification and
to work with the consultant(s) on the next stages
of making the Mediator Certification Program operational.
5. ACR secure the resources necessary to pursue
the creation of the Mediation Certification Program.
6. ACR continue to explore possible collaboration
with other organizations and stakeholders in the
establishment of the Mediator Certification Program,
with the President and CEO serving as ACR’s
key contacts.
7. ACR undertake regular communication with its
membership to ascertain the membership’s
preferences concerning certification, to elicit
suggestions and feedback in response to ACR’s
ongoing efforts and to report progress in establishing
the Mediator Certification Program.
L. Conclusion
This report completes the charge to the ACR Task
Force on Mediation Certification. The Task Force
wishes to express its gratitude to ACR for the
opportunity to serve ACR and its membership.
Appendix A:
Short Biographies of Task Force Members
Stephen Erickson, J.D., Co-Chair
Erickson Mediation Institute
Minneapolis, Minnesota
Mr. Erickson has worked full time as a mediator
since 1980. A 1974 graduate of the University
of Minnesota Law School, Mr. Erickson was one
of the founding members of the Academy of Family
Mediators (AFM, one of ACR’s founding organizations)
and served as its second president. He mediates
in the areas of divorce, employment and large
group conflicts. His most recent book is The Practitioner’s
Guide to Mediation: A Client Centered Approach,
published by John Wiley and Sons, 2001. Mr. Erickson
is a member of the ACR Board of Directors.
Marvin E. Johnson, J.D., Co-Chair
Executive Director, Center for Alternative
Dispute Resolution
Crofton, Maryland
Marvin Johnson is a nationally recognized mediator,
arbitrator, and trainer with over 27 years of
dispute resolution experience. He serves on the
JAMS panel of resolution experts and is the Founder
and Executive Director of the Center for Alternative
Dispute Resolution. Mr. Johnson received his J.D.
from Catholic University. He holds a B.S. in Business
Administration from Kent State University and
an M.S. in Industrial Relations from the University
of Wisconsin. Mr. Johnson has worked for the Department
of Labor, the Federal Labor Relations Authority,
the Federal Mediation and Conciliation Service,
the National Treasury Employees Union, the National
Football League Players’ Association, the
National Academy of Conciliators, and was Professor
of Labor Relations, Law, and Dispute Resolution
at Bowie State University. The President of the
United States, the Governor of Maryland and the
Chief Judge of the Maryland Court of Appeals have
recognized Mr. Johnson’s dispute resolution
expertise by appointing him to the Federal Service
Impasses Panel, Maryland State Labor Relations
Board and the Maryland Alternative Dispute Resolution
Commission (now the Maryland Mediation and Conflict
Resolution Office), respectively. Mr. Johnson
has co-authored several articles, including “Racial
Profiling in America: The Problem and the Challenge”
(Fall 2003), “Adjusting to Changing Priorities”
(2002), and “Emotionally Intelligent Mediation:
Four Key Competencies” (2001). He is a member
of the ACR Board of Directors.
Peter S. Adler, Ph.D.
Director, Center for Science and Public Policy,
Keystone Center
Keystone, Colorado
Peter S. Adler, Ph.D. is Director of the Center
for Science and Public Policy at the Keystone
Center in Keystone, Colorado. He has served in
executive positions with the Hawaii Justice Foundation
(1992-2001), the Hawaii Supreme Court’s
Center for Alternative Dispute Resolution (1985–1992),
the Neighborhood Justice Center (1979–1985),
and he is a former Peace Corps Volunteer and Outward
Bound instructor. His specialty is multi-party
negotiation and problem solving, and he writes,
trains, and teaches in the areas of mediation
and conflict management. He served as President
of the Society of Professionals in Dispute Resolution
(SPIDR), one of ACR’s founding organizations.
Robert D. Benjamin, J.D., M.S.W.
Mediation & Conflict Management Services
Portland, Oregon
Mr. Benjamin practices mediation in all dispute
contexts, including business, employment, family
and divorce, and presents negotiation and mediation
programs nationally and internationally. He is
an Adjunct Assistant Professor at Washington University’s
George Warren Brown School of Social Work, and
Adjunct Professor of Mediation in the Conflict
Resolution Program at Indiana State University.
He is former president of the Academy of Family
Mediators (AFM), one of ACR’s founding organizations.
Rita Callahan, M.S.
Working It Out
Atlanta, Georgia
Ms. Callahan is a mediator, trainer, coach, consultant,
facilitator and speaker and has consulted with
companies including USDA, American Express, CNN,
BP-Amoco, Justice Center of Atlanta, IBM, Prudential,
MCI, Regions Bank, GlaxoWellcome and Novartis
for the last 15 years. She provides mediation,
facilitation and conflict resolution training
for companies and government agencies, coaches
mediators and managers throughout the United States,
and is a requested speaker. She is Co-Founder
and President of ACR’s Georgia Chapter,
Co-Chairs ACR’s Workplace Section and has
a master’s degree in Decision Science.
John (Jack) W. Cooley, J.D.
Judicial Dispute Resolution, Inc.
Evanston, Illinois
John W. (Jack) Cooley is a former United States
Magistrate, Assistant United States Attorney,
Senior Staff Attorney for the United States Court
of Appeals for the Seventh Circuit, and a litigation
partner in a Chicago law firm. He is the current
Chair of the Mediation Committee of the ABA Section
of Dispute Resolution. He is a Fellow of the American
Bar Foundation, the International Academy of Mediators,
and the Chartered Institute of Arbitrators, London,
England. In private practice in the Chicago area,
he is a founding member of Judicial Dispute Resolution,
Inc., (“JDR”). He has served as a
Special Master for federal judges and as an arbitrator
and mediator in a wide variety of complex, multi-million
dollar commercial disputes, both domestic and
international. He is an Adjunct Professor at Northwestern
University School of Law where he teaches a course
on negotiation and mediation and has published
four books on Alternative Dispute Resolution.
He is a graduate of the United States Military
Academy at West Point and of the University of
Notre Dame Law School, receiving a year of his
legal training in international and comparative
law at the School’s Centre for Legal Studies
in London, England.
Dan DeStephen, Ph.D.
Director, Center for Teaching and Learning,
Wright State University
Dayton, Ohio
Mr. DeStephen is Professor of Communications
and Director of the Center for Teaching and Learning
at Wright State University in Dayton, Ohio. He
is also a trainer and practitioner in the areas
of workplace mediation and interest-based bargaining.
Mr. DeStephen served as Treasurer on ACR’s
Founding Board of Directors, and currently Co-Chairs
ACR’s 2004 Annual Conference Program Committee.
Diane Kenty, M.Div., J.D.
Director, Office of Court ADR, Maine Administrative
Office of the Courts
West Bath, Maine
Ms. Kenty, a member of ACR’s Board of Directors,
served as the President of ACR’s New England
Chapter from 2000–2002 and has been a member
of the Chapter Task Force since 1999. Formerly
a member of ACR’s Ethics Committee, she
is also former co-chair of ACR’s Court ADR
Section. She currently serves as Vice President
of the Maine Association of Dispute Resolution
Professionals (MADRP) and co-chairs MADRP’s
Practice Quality Committee. Diane is Director
of the Office of Court ADR for the state courts
of Maine. A graduate of Oberlin College, Union
Theological Seminary and Georgetown University
Law Center, she previously practiced law in Boston
Nancy E. Peace, M.A.
Mediator/Arbitrator
Newburyport, Massachusetts
Ms. Peace is an experienced mediator, labor arbitrator
and trainer. She teaches in the Program on Negotiation
at Harvard Law School and is a member of the National
Academy of Arbitrators, the American Arbitration
Association, the Industrial Relations Research
Association, as well as an associate member of
the American Bar Association. Ms. Peace holds
a B.A. from Ohio Wesleyan University, an M.A.
from the University of Michigan and a DLS from
Columbia University. She is a Past President of
ACR.
Andrew Thomas, M.P.A.
Director, Center for Dispute Resolution
Rochester, New York
Mr. Thomas has been instrumental in the development
of mediation in upstate New York and the expansion
of conflict resolution to a variety of settings,
including public elementary and high schools.
He serves on the Board of Directors of the Institute
for the Study of Conflict Transformation and is
also one of its Associates. He is also a former
Chair of the National Association for Community
Mediation. His training activities include training
for the United States Postal Service in its REDRESS
mediation program.
David A. Hart, M.A. (Ex-officio
member of the Task Force)
Chief Executive Officer, Association for Conflict
Resolution
Washington, D.C.
David A. Hart is Chief Executive Officer of the
Association for Conflict Resolution. Prior to
accepting the CEO position, David served as director
of the Americans with Disabilities Act (ADA) Mediation
Program at the Key Bridge Foundation in Washington,
D.C. He holds a bachelor’s degree in Peace
and Conflict Resolution Studies from Oberlin College
and a master’s degree in Political Science
from Syracuse University’s Maxwell School.
While at Syracuse, he earned Certificates of Achievement
from the Program on the Analysis and Resolution
of Conflict (PARC), and the Institute on Creative
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