Response to Vickie Pynchon’s Post Re: Licensing.

Over on the estimable Settle It Now blog, Vickie Pynchon solicited comments from the ADR blogosphere regarding development of licensing standards for mediators.

I tend to hold classically “liberal” free market ideals (see, e.g., Milton Friedman), so I generally chafe at the idea of granting any governmental “agency” the authority to dole out licenses. Even so, I recognize the benefit of having medical and dental licenses, or having the Bar exam or CPA exam. After some thought on the subject, however, I cannot see how a mediation licensure program would protect consumers or would prevent the abuse illustrated in Vickie’s original post.

First and foremost, all a certification/licensure program ensures is that the neutral has met a bare minimum standard, nothing more. Having certification does not guarantee quality of service. What’s the old saw? What do you call the person who graduated last in his class at med school? Doctor. Sophisticated consumers know to independently vet providers of professional services. Unsophisticated consumers do not. Licensure will not change this.

Not even a rigorous testing procedure, such as the 2-3 day bar exam or week long “boards” that doctors complete, can eliminate the problem of unscrupulous individuals taking advantage of the ill-informed. I’ve seen cases where lawyers miss simple deadlines, costing clients millions. I’ve seen cases where doctors kill patients because of sheer incompetence. Licensure did not and could not prevent these problems.

Second, there is a fundamental lack of understanding about ADR and ADR neutrals among the general populace. Would the general population even know to check to see if the ADR neutral was certified or registered with the state? I cannot believe the number of educated persons to whom I must explain in excruciating detail what it is I do. I can’t imagine that the “average Joe and Jane” knows and appreciates it either. So, even with licensing guidelines and requirements, would they know to ask? Highly doubtful.

Finally, I doubt there would ever be a single standard. Like it or not, ADR is tied to the legal system and as long as there are 50 State Bar associations governing licensure for attorneys, there will be 50 organizations seeking to control licensure of mediators and neutrals. While Georgia allows non-lawyers that meet other qualifications to act as neutrals, the Office of Dispute Resolution is “appointed by the Georgia Supreme Court.” It will be the same in other states.

I’m certain that this will not be a popular opinion among some of you, but I am a rational person and I am willing to listen to any rational argument in favor of licensing. I am certified. I trained the requisite number of hours, observed the requisite number of mediations and completed the application and ethics review process. Do I feel better off having done so? Yes, because I put my full focus and effort into it. Do I think the process would discourage or prevent an unscrupulous person who believed he could con people out of money doing it? Absolutely not.