Art Hinshaw (Arizona State) has published “Regulating Mediators” in the Harvard Negotiation Law Review, available here.

Read on for two micro-analyses or “quick takes” on Art’s article. Note that these takes are not supposed to provide in-depth analysis of the entire article. Rather, they should (1) provide a quick look at scholarship trending in ADR; (2) inspire people to check out the article; and (3) encourage conversation and thought. If you the reader like this format, I am happy to coordinate micro-reviewers on a regular basis. Just let me know if you’d like to be a micro-reviewer or have your article micro-reviewed!

Quick Take #1: Alyson Carrel, Northwestern
In his new article, “Regulating Mediators,” Art Hinshaw uses the salacious case of an Arizona mediator, Gary Karpin, who made inappropriate sexual advances towards parties and scammed them out of tens of thousands of dollars, to argue for occupational licensing of mediators. Although previous efforts to create some form of mediator credentialing have stalled or failed all together, the horrific facts of this case may make this latest effort a success. But even with the serious nature of this case and the clear need for some sort of consumer protection, Hinshaw recognizes that credentialing, especially licensing, can have other negative consequences that have to be addressed first. One significant, if unintended, negative consequence of licensing is the potential for limiting diversity and creating barriers of entry for minorities. Although well established in other fields, there is no definitive proof that licensing would have this impact on mediators. In fact, anecdotal evidence demonstrates the opposite. As Hinshaw writes, “a more structured method of entry into the field” may in fact increase diversity in our field.

At the 2016 Annual J.D. Melnick Journal of Conflict Resolution Symposium at Cardozo School of Law, a panel discussed the lack of diversity in our profession, pointing to recent research conducted by CPR and CEDR. This research demonstrated that across the board, white men hold the majority of positions on panels and receive the majority of case referrals. In 2014, the ABA Section of Dispute Resolution conducted a study that demonstrated parties choose men to mediate complex commercial cases and/or high dollar disputes three times more often than women. Yet when looking at who is chosen to mediate cases in employment, family, and small claims court, or cases with mainly non-monetary disputes, the disparity between men and women decreases significantly and is even sometimes reversed entirely. During the panel discussion at the Cardozo symposium, it was suggested that this difference could be attributed to at least two things: 1) commercial and large dollar amount cases tend to be referred to white male attorney-mediators by the dominate demographic in law firms—other white male attorneys, and 2) administrated court and agency programs relying on credentialing can counteract that tendency and increase opportunities for women and minorities.

This idea that credentialing and thoughtfully administered programs can increase opportunities for women and minorities is also anecdotally supported by the collected experiences featured on the ADR as First Career video blog (www.adras1stcareer.blogspot.com). This blog highlights the stories of nearly 50 individuals who didn’t follow the traditional ADR career path of establishing expertise in one area (usually the law) before transitioning to ADR as a second or third career. Instead, these individuals received some form of credential while in school, went on to secure employment and launch a career in dispute resolution without becoming an expert in a separate field first. It is even more striking to consider the individuals on this blog are mostly women or minorities.

Could the individuals on the blog represent outliers, or is there something unique about mediation that might be an exception to the rule that licensing limits opportunities for women and minorities? A 2009 study by Marc T. Law and Mindy S. Marks found that where it is difficult to define specific qualifications for qualified individuals, licensing may in fact increase opportunities for minorities. In the article Effects of Occupational Licensing Laws on Minorities: Evidence from the Progressive Era, they compared the impact of licensing on different professions and found significant differences between the impact in professions such as barbers (where occupation licensing decreased opportunities for minorities) and professions such as pharmacists or engineers (where they found occupational licensing increased minority participation). Although this study focused solely on careers and licensing in the early 20th century and obviously didn’t include the profession of “mediator”, the notion that difficulty in defining qualifications impacts the effect of licensing has direct relation to our field. As Hinshaw points out, previous efforts to create a mediator credentialing structure faltered because of difficulties in defining mediation and what behaviors are appropriate. Could this difficulty in defining qualifications mean the effect of licensing in mediation might not necessarily lead to decreased opportunities for women and minorities?

Licensing will not altogether eliminate the disparity experienced among mediators, but if the ADR field is actually concerned about diversity, we need to seriously consider efforts to create credentialing standards such as licensing. At the very least, we should study the effect licensing and credentialing have on women and minorities in our field instead of assuming it will decrease opportunities. Without licensing, traditional referral methods effectively bar women and minorities access to commercial and high dollar amount cases. With licensing, women and minorities might see some increase in opportunity.

Quick Take #2: Michael Moffitt, Oregon
In “Regulating Mediators,” Art gets a number of things exactly right. He is exactly right to name the Gary Karpin case as a deeply troubling example of mediation gone wrong. He is exactly right in setting out the obstacles facing existing efforts at quality-assurance in the context of mediation. He is exactly right in articulating the evolving, and largely defensive, responses by the mediation field to the prospect of regulation. And he is exactly right to deconstruct the multiple component pieces to establishing a regulatory scheme—indeed, I think this latter point may be the greatest of the contributions in Art’s piece.

The only thing I think Art does not get exactly right, and it’s a minor thing really, is his conclusion. I don’t mean that as a backhanded joke. Although I disagree with Art’s conclusion that mediation should seek to regulate itself robustly, as though mediation were a profession, I think Art has done a wonderful job of laying out many aspects of the problems arising from questions of quality control. There is much in Art’s article with which I agree most strongly. Were we on an appellate panel, I would reluctantly dissent, but only because I reach a different conclusion than Art. Indeed, in dissenting, I would cite heavily and with approval entire sections of his article. It is, in my view, a real contribution to our field.

Having said that, two principal reasons compel me to diverge from Art’s conclusion.

The first is that, to my mind, our field does not (yet?) have established standards of care and practice sufficient to support the kinds of regulatory framework he proposes. Without knowing which practices are in/out of bounds, I cannot fathom how we would create barriers to entry (What would we test?) or the bases for expulsion from the licensed practice (What did the person do that was so unarguably outside of the standards of practice that it warrants sanction?). I am familiar with the TDP, and I applaud Chris Honeyman and his colleagues for their work. I am familiar with (and deeply troubled by) various voluntary organizations’ articulations of mediator standards. (I’ll spare readers my rants about the Model Standards—rants here and here and here for example, for which I continue to have considerable energy, despite the fact that I’ve been wholly unpersuasive in my view that these standards are unhelpful to the field and to prospective consumers.) Art might legitimately say, “Look Moffitt, maybe there are hard questions in there, but surely Gary Karpin shows that some things are out of bounds.” And I’d comfortably concede that the conduct described in this case is out of bounds. I am just not sure that there’s much shy of Karpin’s egregious conduct that would unarguably be out of bounds, in the sense of having a community consensus of articulated practices. What a heavy price we risk paying for the cost of preventing that narrow slice of conduct that everyone can agree is bad.

The second of my principal concerns is about the definitional aspect of Art’s proposal. His analysis moves the ball forward on this specific question more than any I’ve seen, and he deserves credit for that. By linking the definition to things like state-granted benefits and/or advertisement, Art avoids some of the potential definitional complications. And yet, I am confident that even in Art Hinshaw’s fantasy future world, there would be no such thing as the Unauthorized Asking of Open-Ended Questions, or the Unlawful Convening of Interested Parties, or the like. Yet, I believe strongly that what I called the “Schmediation problem” in a previous article will persist. I do not believe that consumers of third-parties’ services distinguish, in many cases, between the work mediators might claim for themselves and the works of many Art names as “feeder professions” — law, counseling, social work, and psychology. Even more pronounced, imagine the definitional difficulty of distinguishing mediation from “consulting” or “facilitating” or “case evaluating” or the like.

I am grateful to have read Art’s article. I hope many people read Art’s article, both within the mediation community and among those who might be in a position to consider mechanisms for quality control in mediation. I just hope they don’t wind up agreeing with Art’s conclusion.

Jennifer Reynolds is an Assistant Professor at the University of Oregon Law and the Faculty Director of the ADR Center. Teaching civil procedure, conflicts of law, negotiation, and mediation, her research interests include dispute systems design, problem-solving in multiparty scenarios, judicial attitudes toward ADR, and cultural influences and implications of alternative processes. She is also a contributor to ADR Prof Blog.