REPORT OF THE MEDIATION COMMITTEE OF THE DISPUTE RESOLUTION SECTION NEW YORK STATE BAR ASSOCIATION. May, 2010

Transcription

1 REPORT OF THE MEDIATION COMMITTEE OF THE DISPUTE RESOLUTION SECTION Intrductin NEW YORK STATE BAR ASSOCIATION May, 2010 This year, the State Bar DR Sectin asked its Mediatin Cmmittee t examine the issue f mediatr quality/credentialing and t make recmmendatins t the Sectin. The Mediatin Cmmittee, in turn, appinted a subcmmittee cnsisting f its tw Chairs, the frmer Chair f the DR sectin, and several ther Mediatin Cmmittee members wh expressed interest in participating in this prject. 1 Frm its beginnings as a grass rts mvement in the late 1970 s, mediatin as an alternative t litigatin has becme an accepted and ften preferred methd fr reslving legal disputes. It is perhaps nt surprising, then, that the issue f mediatr quality and credentialing is nt nly frnt rw center fr the New Yrk State Bar, but als has been with us in ne frm r anther fr a very lng time. This reprt seeks bth t set the cntext fr its recmmendatins n the subject, and t suggest specific actin steps fr adptin by the Sectin. In taking a fresh lk at the issue this year, the Mediatin Cmmittee has reviewed much f the literature and reprts by ther Bar Assciatins and entities; we have listened at ur subcmmittee meetings t sme key thinkers in this area; and we have debated the issues amng ur members, the Dispute Reslutin Sectin, and the wider State Bar membership. Backgrund A. Earlier Effrts at the Natinal Level The issue f mediatr quality/credentialing has been and cntinues t be cntrversial, bth natinally and within ur wn statewide cmmunity. At the natinal level, ne f the earliest effrts t address this issue frm a plicy perspective ccurred when the Sciety fr Prfessinals in Dispute Reslutin ( SPIDR ) appinted a Cmmissin n Qualificatins in the late 1980 s t examine the subject f qualificatins fr mediatrs and arbitratrs in bth curt-cnnected and independent prgrams and services. The Cmmissin s reprt cntains a useful reminder f the gals f such an endeavr, gals which can ften be lst in the din f the cntrversy: The mst cmmnly discussed purpses f setting criteria fr individuals t practice as neutrals are 1) t prtect the cnsumer and 2) t prtect the integrity f varius dispute reslutin prcesses. Cncerns have als been raised, particularly abut mandatry standards f certificatin, including 1) creating inapprpriate barriers t entry 1 The Subcmmittee cnsisted f Simen Baum, Mark Bunim, Gail Davis, Francis Halligan, Abigail Pessen, Tm Rthschild, Israel Rubin, and Margaret Shaw.

2 int the field, 2) hampering the innvative quality f the prfessin, and 3) limiting the brad disseminatin f peace-keeping skills in sciety. 2 Anther early cautinary nte was expressed at a sympsium n ADR cnvened by the Setn Hall Legislative Jurnal in New Jersey in 1987, where ne f the presenters bserved: Even if there is agreement that sme degree f prfessinalizatin is desirable, and agreement with respect t the frm licensure, certificatin, accreditatin, r subscriptin t frmal standards f practice the questin still remains as t hw cmpetence will be measured. Experts disagree whether cmpetence shuld be measured n the basis f input, n the mediatr s years f schling, testing and cntinuing educatin, n the basis f the individual s utput and actual perfrmance, r sme cmbinatin. 3 In the early 1990 s, the State Justice Institute funded anther early effrt t examine and make recmmendatins n the issue f mediatr quality/credentialing. This effrt, which culminated in a dcument entitled Natinal Standards fr Curt-Cnnected Mediatin Prgrams, brught tgether judges, curt administratrs, academics and experienced mediatrs t recmmend best practices fr curts lking t initiate and run mediatin prgrams. The Standards sectin n qualificatins f mediatrs states in part: Qualificatins f mediatrs t whm curts refer cases shuld be based n their skills. Different categries f cases may require different types and levels f skills. Skills can be acquired thrugh training and/r experience. N particular academic degree shuld be cnsidered a prerequisite fr service as a mediatr in cases referred by the curt. 4 The reprt presents a detailed list f mediatr skills, and suggests that curts cntinue t mnitr the perfrmance f mediatrs t whm they refer cases and t ensure perfrmance f a cnsistently high quality. 2 Qualifying Neutrals: The Basic Principles (1989). 3 Margaret L. Shaw, Mediatr Qualificatins: Reprt f a Sympsium n Critical Issues in Alternative Dispute reslutin, 12 Setn Hall Legislative Jurnal 1 at p. 126 (1988). 4 Natinal Standards fr Curt-Cnnected mediatin Prgrams, Family and Cnciliatin Curts Review, Vl. 31 N.2, April

3 B. Earlier Effrts at the State Level In New Yrk State, the subject f mediatr qualificatins was first tackled frmally by the New Yrk State Alternative Dispute Reslutin Prject cnstituted ver fifteen years ag by then Chief Judge Judith Kaye in February, The gal f that prject was t examine such {ADR} techniques as augmenting and cmplementing the wrk f the New Yrk State curts. 5 On the issue f qualificatins/credentialing, the Prject s final reprt nted that when ADR is mandated r encuraged by a curt, litigants must be able t rely n a certain minimum level f mediatr qualificatins. The reprt therefre recmmended that all jurisdictins with curt-annexed ADR impse requirements regarding qualificatins fr neutrals cmbining ne r mre f the fllwing: academic degrees, training, apprenticeship r mentring, and practical experience. Fr mediatrs, training in mediatr skills, knwledge f the law, and participatin in the mediatin f at least three cases in the subject matter under the apprenticeship f an experienced mediatr, 6 were highlighted as imprtant qualificatins. All f this earlier thinking infrms ur effrts tday t grapple with the issue f ensuring mediatr quality, albeit in a changed and mre cmplex envirnment in which the number f mediatin users has mushrmed, as has the number f individuals desiring a career in the field. C. Recent Reprts The subcmmittee reviewed the extensive materials and reprts reflecting prir wrk and thinking n this issue, including the American Bar Assciatin s 2002 reprt n Mediatr Credentialing and Quality Assurance ( ABA 2002 Reprt ), the New Yrk City Bar Assciatin s 2006 Reprt n Mediatr Quality ( City Bar Reprt ), and the 2008 Reprt f the ABA s Task Frce n Imprving Mediatr Quality ( ABA 2008 Reprt ). The ABA 2002 Reprt summarized past and then-current dispute reslutin prfessinal credentialing practices, prvided an verview f generic prfessinal credentialing practices, and recmmended certain actin steps. Recgnizing that mediatrs may want credentials, the Reprt minimized the value f pr frma paper credentials: Prfessinal credentialing is typically thught f as licensing, certificatin and accreditatin. The task frce believes that credentialing is a part f quality assurance, and that the primary gal f credentialing prgram is t supprt the assurance f quality practice. The Task Frce has lked fr a mdel that will d mre than simply create a hurdle fr mediatrs t leap ver in rder t have the status that permits them t practice. We believe that a mre practical apprach t start with is t develp a mechanism t accredit mediatr preparatin prgrams, either thrugh a natinal system, r state by state. (ABA 2002 Reprt at p. 5). 5 Curt-Referred ADR in New Yrk State: Final reprt f the Chief Judge s New Yrk State Curt Alternative Dispute Reslutin Prject, May 1, Ibid. 3

4 The City Bar Reprt, fr its part, cncluded that the mst practical, flexible and effective way t prmte mediatr quality advancement, and the ne with the least serius disadvantages, wuld be adptin f tw mutually cmpatible prgrams : intensified develpment f vluntary certificatin prgrams by mediatr membership rganizatins, and develpment f disclsure registratin systems fr mediatrs. (City Bar Reprt at 6-7). The wrthy gals f prmting quality in all mediatins and prtecting the public frm untrustwrthy and incmpetent mediatrs are best met by drawing upn exiting strengths within the mediatr cmmunity By cmmitting resurces f time, energy and mney t an expanded mediatr certificatin prcess cmbined with a mediatr disclsure registratin system, these rganizatins will benefit practicing mediatrs, mediatin parties and the public at large and advance mediatin as a preferred means f reslving disputes. (City Bar Reprt at p.8). Mre recently, and as a fllw-up t its 2002 reprt, the ABA frmed a Task Frce t investigate factrs that define high quality mediatin practice. The Task Frce reviewed existing plicy dcuments, reprts, and research n mediatin quality, and then rganized a series f fcus grup discussins f mediatin users with fllw-up questinnaires. With its emphasis n mediatr quality rather than credentialing, the Task Frce s Final Reprt includes a useful Tl Kit fr Imprving the Quality f Mediatin in Yur Gegraphic r Practice Area, a publicatin that has been useful in the implementatin f ne f the State Bar Mediatin Cmmittee s initiatives described later in this reprt. Mediatin Cmmittee Effrts As set frth abve, the subcmmittee reviewed the extensive materials and reprts reflecting prir wrk and thinking n this issue, including the American Bar Assciatin s 2002 Reprt n Mediatr Credentialing and Quality Assurance, The New Yrk City Bar Assciatin s 2006 Reprt n Mediatr Quality, and the 2008 Reprt f the ABA s Task Frce n Imprving Mediatr Quality. The subcmmittee als interviewed OCA s statewide ADR crdinatr Dan Weitz, wh discussed with us the effrts f the Office f Curt Administratin t establish training and experience requirements fr mediatrs in the curts and in cmmunity dispute reslutin centers. Anther cntributr t the subcmmittee was Rachel Whl, head f the Mediatin and Cnflict Reslutin Office in Maryland. This ffice has initiated a Prgram fr Mediatr Excellence with branches fr, amng ther things, a mentring prgram, ethical practice standards, ethical training, an mbuds prgram and cntinuing educatin, alng with an n-line mediatr directry. Finally, the subcmmittee presented a panel discussin f mediatr quality at the Dispute Reslutin Sectin s Annual Meeting in January, 2010; the panelists bservatins were insightful and instructive. 7 Analysis As previus failed effrts have shwn, the qualities which any credentialing system wuld be required t measure, defy precise definitin r measurement. Because f this prblem, the Mediatin Cmmittee has cncluded that licensing and/r ther credentialing effrts are impractical, prhibitively cstly, and 7 The panelists were Daniel Weitz, New Yrk City Bar Assciatin ADR Cmmittee Chair Peter Wdin, and Cardz Law Schl Prfessr and schlar Lela Lve. 4

5 unnecessary; and, instead, determined that the mst apprpriate apprach is t act based n the cnsensus that was reached with respect t the fllwing principles: 1) a mediatr credentialing system r ther changes t the prfessin shuld nt be a pre-rdained recmmendatin; rather, we shuld be pen-minded and nt feel cmpelled t fix a system that isn t necessarily brken; 2) the subcmmittee shuld fcus n ways f enhancing mediatr quality; and 3) practitiners freedm and autnmy shuld be respected while als recgnizing the need t prtect the public. Recmmendatins The Cmmittee recmmends instead that the State Bar pursue the initiatives listed belw, sme f which are already being implemented. These initiatives, which reflect the principles stated abve, will enhance mediatr quality in New Yrk withut creating barriers t the prfessin: Onging mediatr skills and ethics training shuld be ffered and encuraged. The Sectin recently spnsred such training at Frdham Law Schl, which benefitted the enrllees and the Sectin. Mentring pprtunities fr inexperienced mediatrs shuld be prvided. The Mediatin Cmmittee is establishing a prtcl fr matching mentees and mentrs; the mst likely mentring pprtunities are in curt-annexed mediatins. Feedback frm mediatin cnsumers shuld be encuraged and integrated int ur practice. The Mediatin Cmmittee is currently cnducting a survey f New Yrk litigatrs t learn mre abut their cncerns and suggestins regarding the cnduct f mediatrs. The results will be made available t the Sectin. Frums, peer discussin grups, and ther pprtunities fr prfessinal develpment shuld be prvided and encuraged. The Mediatin Cmmittee has begun t devte a prtin f its meetings t discussins f practice issues, such as best practices regarding settlement agreements, mediatr s prpsals, techniques fr mving thrugh impasse, and business develpment. Future tpics under cnsideratin are risk analysis techniques and ethical dilemmas. Mediatr Registry. The Mediatin Cmmittee has appinted a subcmmittee t investigate the feasibility f creating an nline registry f mediatrs wh are Cmmittee r Sectin members, similar t the registries maintained by the State Supreme Curt Cmmercial Divisin, the U.S. District Curt fr the Eastern District f New Yrk, and the Eastern and Suthern District Bankruptcy Curts, and cntaining such infrmatin as educatin, backgrund, training, and experience. One idea under cnsideratin is that the registry be hsted by the State 5

6 Bar, psted n its website, and be accessible t State Bar members. While a mediatr s inclusin in the registry wuld nt cnstitute certificatin r indicate any seal f apprval by the State Bar, the registry wuld prvide a cnvenient way fr cnsumers t get infrmatin abut varius mediatrs in ne place. Cnclusin The Mediatin Cmmittee requests that this Reprt be endrsed by the Dispute Reslutin Sectin f the New Yrk State Bar Assciatin t reflect the Sectin s desire t encurage the use and enhance the quality f mediatin in New Yrk. 6