The Four Ways to Assure Mediator Quality (and Why None of Them Work)

Abstract

Mediation is at a crossroads. Virtually every court system in the United States today promotes mediation in formal and informal ways. Mediation clauses are now considered utterly routine in most contracts. When disputes arise between sophisticated parties, the question is no longer whether to mediate, but rather how, when, and with whom. And yet, mediation has expanded with no systematic consideration of mechanisms for assuring the quality of the services mediators provide.

This article outlines the framework that has been missing from public conversations about mediation. Over time, members of every practice or profession (whether doctors, lawyers, plumbers, or tattoo artists) fall under the influence of one or more of four possible quality control mechanisms. Some are required to have licenses in order to practice. Some are subject to state sanctions for misbehavior. Some practitioners are influenced heavily by consumers' reputation-driven choices in well-informed markets. And some practitioners restructure their practices in ways that minimize their exposure to liability for malpractice. As the title of my article suggests, however, none of these four quality-assurance mechanisms works as well for mediation as they do for other practice areas. Mediators today operate with no licensure, with little risk of state sanction for misconduct, with minimal public reputational information, and with virtually no risk of private liability for malpractice. This condition will not persist. And this article's framework explains the evolution to come.

Keywords: Mediation, Dispute Resolution, ADR