As the Civil Mediation Council (CMC) moves towards accrediting individual mediators, Suzanne Lowe, Chairman of the National Mediation Providers Association (NMPA) and Managing Director of a UK mediation service provider asks if this is a step in the right direction, or a step too far?
The CMC have developed a government supported accreditation scheme to accredit mediation providers. In order to be accredited or reaccredited the mediation provider has to fulfill a number of requirements which effectively mean that they monitor mediators who are on their panel.
The NMPA represents the majority of CMC accredited providers offering mediation services throughout the UK.
My organisation is a member of the NMPA and therefore accredited by the CMC. Adhering to an accreditation process has not been a begrudging task but a given. Most would agree that the emerging profession, and it is a profession, have to have quality standards. In fact I would go so far as to suggest that these should be higher, but that is a story for another day. Suffice it to say, within my organisation, we have developed our own professional guidance criteria, which go beyond the basic requirements of the CMC.
Because I know that we go above and beyond the basic requirements, I have always shied away from the idea of further formal regulation being imposed upon the mediation profession. Lets face it, at present, we can all sit around talking about what mediators should or should not do, which fills the void of the lack of mediation work generally!
But in the last year I have been made aware of a number of independent mediators (not subject to the rules of any accredited mediation provider), who have indefensibly breached all codes of conduct, written by their accrediting training body or otherwise accepted in the mediation world, which has made me reconsider my original view.
Most recently I was contacted through Linkedin by an excited legal representative, eager to tell of the settlement reached in a mediation between his client and a PLC. When I enquired as to how he was able to report the outcome of the mediation, given the usual confidentiality constraints, he told me that none of the parties were asked to sign an agreement to mediate, which makes provision for this at the outset of the mediation. As far as he was concerned, he therefore had carte blanche to report.
In addition he told me that documents had been sent to the mediator in advance of the mediation with the express instructions that they were not to be disclosed to the other side. On the day of the mediation he discovered that they had been sent to the other side!
When I tentatively enquired as to who the mediator was, I was shocked to discover that it was a mediator that I would guess 98% of all readers and indeed the mediation community and legal world that use mediation would know, by name at least. A name in their own right who, to my knowledge, until very recently, was not part of any CMC accredited organisation.
As a brand name that mediator is currently free to do as they will with no constraints. But as that brand name is associated with all the powers that be in the mediation world, including the CMC, they bring into question the integrity of all these official bodies that I have seen their name stamped upon.
This, of course, will have the undoubted consequence of undermining the work of those bodies involved in trying to informally regulate the profession, without intervention by government legislation. For the majority of mediators who maintain their professionalism and integrity, it is not least of all appalling that such a mediator can have used their profile to abandon the very foundation rules of mediation and be beyond any official recrimination.
When I asked the lawyer who had nominated this mediator, he said that he had insisted upon this mediator as that mediator was well known and respected in their field. With that came a premium fee.
The wider consequence for the rest of us mediators and organisations, is that the likes of this mediator will bring the profession into disrepute. If parties lose faith in such a high profile character, who to them is effectively flying the flag for mediation, then mediation will lose credibility in an already difficult market.
Who knows how far reaching the damage will be?
So, I have reached the conclusion that there is a need for some kind of regulation for individual mediators. But even if this mediator had been regulated in some way would the self -imposed regulations be enough? Who in reality is actually going to scrutinize that mediator? If they are a big name who or what organisation is going to take on that challenge?
In my organisation, it is not enough to tick the boxes to say you are CPD compliant etc. The mediators are appraised regularly. As far as is possible lead mediators have an assistant, (whether they like it or not), so there is dual feedback and, hopefully, feedback from the parties to a mediation. If we think the mediator needs refresher training, it becomes mandatory to enable them to remain on the panel. For those who think they are above that they are out. It has happened - fortunately not often - but we take a hard line.
We were once faced with a mediator who complained that he was ambushed in a mediation where it transpired that there were many more parties to the dispute than for which he had been briefed. He was right. We had been hoodwinked for a cheap mediation. But his complaint was that we had ruined his 100% success rate at resolving mediations. My response was that I was glad, because when his success rate became more important than the parties to the dispute, he had a problem.
In my view, some of the most dangerous mediators are the more experienced ones that fall into bad habits, live off their brand (usually legal) and are incapable of self- reflection. This is pure arrogance.
I was once asked if I would consider taking on a very well known QC with an interest as a mediator. When I asked if they had had any mediation training, the aghast response was, to the effect of “You can’t ask him that – he would be such a good asset for the organisation.” To which my response was, – “ If he is not prepared to train then – no thank you.” That QC is currently being touted around as a “mediator” with no training whatsoever. In my view this is a recipe for disaster and very damaging for the emerging mediation profession.
The views expressed above are the authors only and not representative of any organisation to which she is associated.