Certification, Licensure & Competency
HISTORY OF MEDIATION IN OREGON:
CERTIFICATION, LICENSURE, AND ENHANCING
The Oregon Mediation Association (OMA) was founded in 1986. Its purposes included establishing ethical standards and developing programs to help insure that Oregon mediators were well qualified. In 1988, OMA first adopted its own â€œStandards of Practice.â€� However, no efforts were made to adopt competency standards until the Oregon Mediator Competency Work Group was convened in 1995. In the ensuing years, OMA has adopted Core Standards of Mediation Practice, a Complaint Process, Quality Enhancement Initiatives, Strategic Plans, and Model Guidelines for Private Practitioner Mediator Education, Training, and Experience. The continuing goal is to enhance mediator competency. Certification and Licensure have been uniformly rejected has not being viable alternatives. This History will explore the reasons why.
Oregon Mediator Competency Work Group.
The Work Group was a joint effort of OMA and the Oregon Dispute Resolution Commission (ODRC). The ODRC was established by the Oregon legislature in 1989. It was charged with the statutory mandate of developing qualifications, rules, and standards for individuals and programs providing dispute resolution services with state funds. The ODRC had an interest in ensuring mediator competency and promoting â€œbest practicesâ€� in the field in so far as the State of Oregon was involved.
The Work Group considered various policy options for ensuring competency. That work was hindered by the difficulty in agreeing on how to define â€œmediation,â€� on the effect of party control in selecting mediators and the mediation process, on the application to both private and public mediators, and on finding uniform competencies that applied to all areas of practice. Ultimately, the Work Group agreed that three options should receive continuing attention:
Two other options were rejected: Licensure and doing nothing.
The Work Group also recommended that a Complaint Process be established, that penalties for ethical violations should be explored, and that OMA should explore funding for continuing work involving the issue of mediator competency.
The Work Group issued its final report (Report) on July 15, 1998. That Report can be found at: http://www.omediate.org/docs/1998mediatorcompetency.pdf.
The Report lists the following advantages and disadvantages of Licensure:
Advantages: (1) Clarifies the profession of mediation; (2) Protects the public and the practitioner; and (3) Lends credibility to the field.
Disadvantages: (1) May limit flexibility and creativity of the field; (2) Does not ensure competent services; (3) High cost makes the field more exclusive; (4) Could protect incompetent mediators; (5) Could create an influx of legal actions against mediators; (6) Would exclude those who enter the field in non-traditional ways; and (7) The field may be too young to effectively carry out this option.
The Report lists the following advantages and disadvantages of Certification of Competency:
Advantages: (1) Protects consumers; (2) Provides some protection for mediators; (3) Provides process for quality control; (4) Provides assurance of skill, not just â€œseat timeâ€� in training; (5) Offers professional recognition; (6) Increases public awareness of mediation services; and (7) Creates self-regulation within the field versus regulation by another body.
Disadvantages: (1) Cost: time, money, and administration; (2) Difficult to evaluate the art of mediation; (3) Who would do the evaluation? (4) Reaching agreement on competency standards is difficult; (5) Risk exists that an outside body might influence the standards; and (6) Liability for the certifier.
OMAâ€™s Core Standards of Mediation Practice â€“ 9/9/2000.
After a multi-year process, OMA revised its Standards of Practice and adopted the Core Standards of Mediation Practice (Standards) on September 9, 2000. Those Standards used language like â€œshallâ€� and â€œmust.â€� OMA members were required to agree to abide by these Standards when serving as a mediator; however, there was no mechanism for enforcing the Standards or for imposing penalties for violations. This was intentional due to the high cost of enforcement, the time and administrative effort that would be involved, and the difficulty of determining who would be the enforcer.
OMAâ€™s Core Standards of Mediation Practice â€“ 4/23/2005.
After another multi-year process, OMA adopted revised Core Standards of Mediation Practice (Core Standards) on April 23, 2005. The Core Standards use non-mandatory language and are intended as a guide to mediators. â€œThe Core Standards and the Comments that follow each of them are not intended to dictate conduct in a particular situation, define â€œcompetency,â€� establish â€œbest practices,â€� or create a â€œstandard of care.â€� They are not intended to be disciplinary rules.â€�
The process of adopting the Core Standards generated significant controversy among OMA members. There were policy discussions around the following issues:
OMA adopted its Voluntary Mediation Process for Resolving Disputes with OMA Mediators (Complaint Process) as a pilot project on December 11, 2006. The Complaint Process was intended as a voluntary process for resolving disputes that may arise between mediators and participants in mediation. It was not intended as a method of enforcing the Core Standards or of assuring competency.
The Complaint Process was utilized following receipt of a complaint. As a result of feedback from the panel mediator, the Complaint Process was revised and has since been adopted by the OMA Board.
The 2007 Quality Assurance Task Force.
In 2007, OMA convened a Quality Assurance Task Force (Task Force) to revisit the questions surrounding competency. The final report of the Task Force can be found at: http://www.omediate.org/docs/OMA%20QA%20TF%20Report.pdf.
The Task Force reviewed the options explored by the 1998 Work Group, agreed with the 1998 conclusions that the â€œlicensureâ€� and â€œdo nothingâ€� options did not require further discussion, and added the following:
1. The Certificate of Training Completion recommendation from the 1998 Report is the most analogous concept to what this Task Force is recommending.
2. The Task Force is not recommending Certification of Competency at this time.
3. Public education is already being done, but could be refocused and/or supplemented if there is consensus and the resources to move forward.
Quality Enhancement Initiative.
Based upon the Task Force findings, OMA adopted its Quality Enhancement Initiative (QEI) [http://www.omediate.org/docs/2008qeiboardreportfinal.pdf] on June 16, 2008. The QEI emphasizes six elements: Leadership through Partnerships, Consumer Education, Mentoring, Mediation Complaint Process, Model Standards for Qualifications, and Model Standards for Training and Trainers.
â€œ... Emphasis #5 â€“ Develop Model Standards â€“ Mediator Education, Experience, & Training
The Board believes that identifying the education, experience, and training that provides the foundation for the successful practice of mediation will enhance the quality of mediation services delivered, provide consumers with information to make informed decisions when choosing a mediator, and provide prospective mediators with specific ideas on how to prepare themselves to become a mediator.
The Board will collaborate with leaders across the areas of mediation practice to acknowledge existing â€œstandards,â€� identify areas where â€œstandardsâ€� are lacking, and engage practitioners in the development of standards, indices, or guidelines where they are lacking. Whether the term standard, indices, guideline, or other term is the most appropriate â€“ will be determined in the development process.
Finally, â€œmodel standards, indices, guidelines, etc.â€� must be readily accessible by mediators, consumers, and the general public. In addition, it is important to have a readily accessible forum where mediators can display their education, experience, and training for consumers. OMA will explore the options and provide such a forum.â€�
The Boardâ€™s 2009-2011 Strategic Plan [http://www.omediate.org/pg75.cfm] provides:
â€œF. Mediators are competent to provide appropriate services.
1. See Goal A under Education
2. Develop Model Standards for Mediator Education, Experience, and Training
3. Develop Model Standards for Training Programs and Trainers
4. Promote a readily accessible forum where mediators can display their education, experience,
and training for consumers.â€�
OMA Model Guidelines for Private Practitioner Mediator Education, Training, and Experience.
Consistent with the Strategic Plan, OMA adopted the OMA Model Guidelines For Private Practitioner Mediator Education, Training, and Experience (Guidelines), which include guidelines for training programs and trainers. The Guidelines can be summarized as follows:
â€œOMA is committed to promoting the provision and use of quality mediation services. These Guidelines are another step in that direction by providing guidance to mediators, mediation programs, and consumers using the services of private practice mediators about minimum requirements for mediator education, training, and experience. These Guidelines should be read and considered in conjunction with the Core Standards.
The goal of these Guidelines is to take one evolutionary step forward with private sector mediators to enhance the quality of mediation services delivered, provide consumers with information to make informed decisions when choosing a mediator, and provide prospective mediators with specific ideas on how to prepare to become a mediator. In Oregon, most of the mediation communityâ€™s practice areas (court annexed, family, government, and community) have standards or requirements, which include mediator training, experience, internship, monitoring, ethics, and continuing education. However, mediators in private practice not operating under one of these umbrellas have no such mechanism. These Guidelines are intended to help the private sector catch-up, if you will, with the sectors that have standards, requirements, or guidelines already in place. These Guidelines require more experience to make up for the lack of supervision and mentoring that exists in the court and community programs.
Compliance with these Guidelines is voluntary. Meeting these Guidelines is not proof of competency. Since OMA does not certify, license or qualify mediators, members may assert that they meet these Guidelines, but they may not say or imply that OMA has certified, qualified or, licensed them for any activity. OMA will develop a web mechanism whereby members can self-certify, and that mechanism will cross-reference these Guidelines so that consumers know the basis for the representation.â€�
Enforcement of these Model Guidelines is addressed as follows: â€œThe committee does not anticipate any enforcement issues. If questions arise concerning a mediatorâ€™s representations, information about qualifying training activities may be requested. In the event that an OMA member is found not to meet the Model Guidelines, they will be asked to refrain from making inaccurate references to OMAâ€™s Guidelines. The Standards and Practices Committee may conduct random audits and would be responsive to inquiries made through the [Complaint Process].â€�
Conclusion. With the demise of the ODRC, OMA has become the go to mediation organization in Oregon. OMA is uniquely positioned to promote and enhance the quality of mediation, particularly in the private sector, and the Model Guidelines are a step in that direction. There are no enforcement mechanisms, however, other than politely asking OMA members to refrain from making any misrepresentations. OMA could, of course, terminate the membership of a recalcitrant member.
Beyond OMA, there does not appear to be any political push in Oregon to regulate the practice of mediation beyond the existing regulation of court annexed, family, government, and community mediation practice. Mediator certification and licensure have not been considered by the legislature and there appears to be little likelihood of certification or licensure being imposed by some outside agency.
The use of mediation has steadily increased, yet the advantages and disadvantages of Licensure and Certification remain much the same as in 1998.