The starting point for the analysis, I would think, ought to be: what are the goals of imposing any restrictions? I assume that the answer is: to protect both the parties to the mediation as well as the mediator. Protection of the mediator should be easy, however; anyone who lends his or her services for such a salutary goal ought to be entitled to the protections afforded to anyone else who provides the same service. Accordingly, protection of the parties would seem to be the aspect of the goals that is likely to prove most controversial.

However, the statute, as currently written and as proposed, protects neither unless certain conditions are met. In other words, as written, an untrained, inexperienced person can mediate a dispute, but will simply not be given the protections of the statute. So, how exactly does this accomplish either of the goals? I do not believe that it does.

Before addressing how to do that, the threshold inquiry, in my view, thus becomes: from what are the parties to be protected? Mediation is not like arbitration (or litigation), where the outcome is determined by another party. In that context, it makes sense to require the advocates and decision-makers to be specially trained, yet while the lawyers are, arbitrators are not. Why then, are mediators held to a hirer standard than arbitrators, when their outcome-determinative powers are so much less? (Perhaps this is an argument for training arbitrators as well.) Nevertheless, while an improperly-trained mediator cannot determine the outcome, he or she (in addition to all types of other bad outcomes) can certainly exacerbate an already difficult relationship.

Another reality that bears mention is that there are many different methods by which a mediator may be called upon to provide services (e.g., through the court system, hired directly by the parties, or retained through counsel), there are many different levels of informed consent that come into play. The statute, however, seems to provide protections inverse to the parties’ level of informed consent. Specifically, the statute permits the uninitiated mediator (someone with 30 hours of training, but no more other than being “appointed” by a judicial or governmental body) to mediate disputes through the courts for litigants who have no part in the selection of a mediator, while a “private” mediator selected by informed counsel, who presumably have selected the mediator after a proper evaluative process, must meet additional criteria.

With that as the framework, I would suggest that for someone to call themselves a mediator, they should be required to take the training. The training provides at least a baseline of knowledge and training to someone unfamiliar with mediation. Even for someone inured to mediation, the training provides a different perspective. Using myself as the example, I have handled many, many mediations as an advocate. Nevertheless, I was required to, and did, take the training. While an abbreviated training for someone with a background in mediation would have been a better option, there is little harm in having been required to sit through those aspects of the training that were not new. Instructively, having observed people who had limited to no prior experience in mediations or the law perform as mediators, I am convinced that the training serves its function. Thus, although I am generally opposed to bright-line tests, this one seems innocuous enough, and ensures that anyone who will be holding themselves out as a mediator will at least have been made familiar with the process and given baseline skills.

Realistically, the remaining requirements seem unnecessary. The ills of an inexperienced, albeit trained, mediator are neither sufficiently problematic to warrant additional restrictions, nor are they likely to be obviated by making the new mediator “accountable” to an ADR organization (or the courts/governmental body, as in the current statute). It bears mention, of course, that, as a practical matter, if the inexperienced mediator is not in one of these programs, he or she is also unlikely to develop much of a practice.

Simply put, if the intent of the statute is to protect the parties and the mediator, informed consent ought to be the proper method to accomplish the goals: label a person with training a “mediator”; no one else may use that appellation – but anyone providing the service should be entitled to the protections of the statute.

Given that I do not believe that the balance of the restrictions are necessary, I have not addressed the various issues that they raise.

I hope these comments were helpful – and I would be happy to discuss them, should anyone wish to follow up.

1. yes, mediator training and definition of mediator should be defined by statute, as we are the professionals and should assist our consumers with the basic standard.

2. yes, to adding:
“written agreement to participate”
and
“after such training”

I disagree with the following:

1. Disagree with a requirement of only 30 hours of training. This is NOT a sufficient time to learn much of anything. 100 hours is more realistic (though still low - I provide my mediators with well over 100 hours to prepare them to mediate).

2. Disagree with “accessible to a dispute resolution . . “. This condition has NO relationship to a mediator’s ability to mediate, unless this organiztion were required to provide training.

I would, however, agree to adding that condition to the requirement for a mediator as on-going condition of holding oneself out as a mediator.

3. Disagree with the “four years”, as this requirement could be met by someone entering into a mediation once a year, for a total of 4 mediations.

I would prefer a requirement 100 mediations, but accept as little as 10 mediations per year, for a total of 40 mediations.

Like other commenters, I reject the notion that privilege and qualification should be linked. I also oppose the recommended language. Here are a few of my reasons why:

The language is vague. A lawyer called me recently and asked me what “four years” means. How is that counted? I couldn’t tell him. No one knows. It’s meaningless. What about “professional experience”? “Professional” in my dictionary means “you get paid for your work”. Does this mean that volunteer mediators don’t count? And what do we mean by “experience”? Is it mediation only? Do we count related activities, such as facilitation, coaching, consulting, even arbitration? Or not?

The language fails to serve the purpose of quality assurance. Although the recommended language specifies 30 hours of mediation training, as all of us know mediation training like mediators themselves is unregulated. Anyone, whether “qualified” or not, whatever that means, can offer mediation training. Yes, you may have been trained, but were you well trained? In addition, since when is length of existence or years of experience any guarantee of competence or skill?

The language discourages diversity and innovation. Another possible hoop to jump through is “accountability to a dispute resolution organization in existence for at least 3 years”. Here’s the practical effect of that. I just launched a business with four experienced colleagues. It’s a business owned by a majority of women. Together we have a combined 75 years of experience. Under the UMA, there would be no problem with privilege for neutrals on our panel. Under the subcommittee’s recommended language, no such privilege for our panel members. Why? Only because our company hasn’t existed for 3 years. This language preserves the status quo for existing ADR firms, discourages competition, and stands in the way of business development. It also shuts the door on solos or d/b/a’s who have a roster of neutrals. That strikes me as arbitrary and unfair.

The requirement of a signed writing between the parties and the mediator ignores the realities of practice. Under the UMA, all communications are privileged from the moment the phone rings until the parties shake hands and walk off into the sunset together. That means that if a person calls around, interviewing mediators like you about her dispute in an effort to find the right mediator for the job, and gather information about the process, those conversations are privileged, even if that person hires someone else and not you. And that’s as it should be. It’s in fact what parties expect as they share sensitive information with you. But not so with the recommended language, which requires that there be an agreement to participate. That means if a party decides not to hire you, there’s no signed agreement and with it no privilege for that phone conversation. And that’s unacceptable.

In addition, mistakes happen. Sometimes mediators are in a hurry or forget to have parties sign the agreement to mediate. Perhaps they lost it or an assistant misplaced a file. Disaster or catastrophe can strike. That happens. Why should innocent parties be penalized and lose the right to invoke the privilege due to the negligence of the mediator or the mediator’s staff? Or an act of God? What’s the rational basis for forcing everyone — mediators and parties alike — to have to jump through needless hoops?

For more reasons why I oppose the proposed language, you can read an article I recently wrote on the UMA.

I think it is a mistake to so strictly tie qualifications to confidentiality and privilege, one which can significantly harm the public and consumers of mediation services, as well as function to discourage people from seeking such services and/or weaken rather than strengthen the profession. There are too many variables in terms of quality and individual services and I think there’s too much of a bias built into the statute as is, favoring organizations and community mediation centers vs. those in, or who would be in private practice, for example, significantly impacting not only the public’s right to choose but, effectively, certain others’ right to practice as well.

That’s enough for now, I guess. Thanks.

To allow the benefits of statutory privilege and confidentiality to extend only to mediators who meet certain criteria takes away party self-determination in their selection of a mediator.

Secondly, the terms included are arbitrary. 30 hours is not a magic number. The current standard nationally is 40 hours. Many commercial mediators who come in from out of state to mediate major commercial disputes. An individual who practices solo and not through a panel would not qualify. Therefore, these standards are geared towards court, government, and community mediators, not commercial and private mediators and not mediators who are not from or based in Massachusetts. This is quite exclusionary. Again, if we want to set up certification, then we should set up certification.

Requiring a written agreement to participate in mediation narrows when the privilege and confidentiality of the information and documents submitted begins. In many mediations, there are intake conversations, memoranda that are submitted, and other information that most assume are confidential. Under this language, a mediator would have to warn people that anything they say is NOT confidential until they sign an agreement. When does the mediation process begin? And, is the consumer going to understand the bright line?

Please do not confuse qualifications with privilege and confidentiality in one statute. This is a non-starter for me!

2. However, the idea that being “accountable to a dispute resolution organization that has been in existence for at least three years” can be treated as the equivalent of of four years of professional experience seems strange. No professional oranization that I am aware of engages in supervision of its members’ mediations. This means that joining an organization such as ACR or MCFM can replace the expectation of actual
experience. Am I misundestanding? It suggests that taking a 30 hour basic training, and joing an organization is all it takes to put up a shingle.

Being a member of such organizations can be one expectation, attending a certain number of hours of relevant professional development every year with recognized trainers, can be another. Most importantly, experience, as expressed in a demonstrated number of mediated (or co-mediated) cases, preferably with the first ____(twenty? more?) done under supervision, ought to be part of the definition of who can be recognized as a mediator under this statute.

- Thank you all on the MASS UMA committee for your hard work.

I believe that the designation of “mediator” should not hinge on a written agreement.

Requiring a written agreement to qualify one as a mediator and trigger the privilege and protection of confidentiality is to allow the document to trump the reality of one’s role and the parties’ expectations.

Parties reach out to mediators — whether to interview them, learn about the process, hire them, etc. — and they share sensitive information during this preliminary contact. I’m sure it would be surprising for most to later learn that they were not technically engaging with a “mediator,” let alone unprotected by confidentiality.

I suggest the definition read:

“A ‘mediator’ shall mean a person not a party to a dispute who, by inquiry and consent of the parties, written or otherwise, (1) agrees to participate with the parties to assist them in resolving their disputes, (2) has completed at least thirty hours of training in mediation, and (3) who either has four years of professional experience as a mediator after such training or is accountable to a dispute resolution organization which has been in existence for at least three years.

The statute may later include a provision speaking to mediators’ obligations and require them to obtain a written agreement reflecting party consent before continuing to participate beyond the initial party contact; and require that the agreement specifically include language of acknowledgement of the mediating parties’ rights and privileges as being retroactively applicable to such initial party contact.

The privilege attaches to the process. The definition of the professional serves the public and the users of the service. Nothing could be plainer to me. Whatever the interests may be favoring the definition of a mediator, they are quite separate from the interests in the process. Users of mediation are not well served by having the privilege limited to only certain providers because those providers are not the only ones participating in the process of mediation.

The process does not just happen when the parties sit down after having chosen the mediator and the location, but before when the parties are selecting the mediator, and defining their agendas and determining who can do best what they want. Therefore, more than one person will be the mediator for some uncertain time until the parties have determined who shall do it for them. Only then will they contemplate signing an agreement. In fact, that very agreement to mediate is itself likely to be negotiated and therefore not protected by the privilege until it is signed.

I remember when the process was called “Informal Dispute Resolution” which reflected that it took places in stages, over time, and might involve a separate intake process from the designated mediation. If it is not all privileged from the informal opening of the process by the parties in communicating their case to many possible people and professionals, to its formal conclusion, then the parties will not be free to choose the best suited mediator for their needs, and no sensible mediator will listen to anything without a written agreement, which no sensible party will sign at that point.