Take it or Leave it, Lump it or Grieve it: Designing Mediator Complaint Systems that Protect Mediators, Unhappy Parties, Attorneys, Courts, the Process, and the Field
Appalachian School of Law
Ohio State Journal on Dispute Resolution, Vol. 21, p. 721, 2006
The article briefly summarizes some of the components of an integrated system of mediator regulation. It also briefly discusses the current debate about whether the mediation field requires more regulation and, if so, what kind of regulation the field should create. Section IV discusses the research on mediation party satisfaction and malpractice lawsuits filed against mediators in courts. While eight states have created mediator grievance systems, this article summarizes the number and nature of complaints filed against mediators with program administrators in the five states with well-developed, state-sponsored grievance systems. The appendices to the article, however, include data for seven state grievance systems. In addition, this article does not discuss the South Carolina grievance system, which the courts have not fully implemented.
Section V considers the advantages of developing complaint handling systems. It identifies the problems created when states do not provide effective mechanisms for dissatisfied mediation parties to file claims against mediators.
Section VI of the article compares the regulatory systems in place in Florida, Virginia, Georgia, Minnesota, and Maine, with a particular focus on the procedures followed in handling complaints filed against mediators. It also considers the revised grievance system in North Carolina and the proposed system in Maryland. In addition, this section considers other regulatory infrastructure that a state or court may first need to provide before it can successfully implement a grievance system. It also describes the components of a well-designed system. It considers issues of public access to grievance related information, the process for filing grievances, and any time limitations or restrictions the designers should consider. It discusses who should determine whether a formal complaint has any merit, who should investigate the complaint, informal procedures for handling complaints, formal hearing requirements, and appeals. It also considers the disciplinary approaches the grievance system can take when it resolves a complaint with merit. It discusses concerns about confidentiality of the complaint process and information about complaints and their resolution. Finally, it looks at the legal protections states have provided for persons handling complaints. This section shows that the complaint systems in these five states are only one part of a highly-structured system of mediator regulation.
Section VII discusses the factors designers may want to consider when designing a complaint handling system for a court-connected mediation program. It also considers the procedural justice and due process concerns that arise in the complaint processing context.
Keywords: mediation, mediator, ethics, sanctions, grievances, complaints, malpracticeAccepted Paper Series
Date posted: May 6, 2011
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