By Jasper Ozbirn
It is common knowledge among mediators, as well as the general public, that the unlicensed practice of law (UPL) is illegal. While there is some debate on what constitutes the “practice of law,” the rule is clear that a mediator may not practice law. On the other hand, many consider experienced attorneys and judges to be particularly qualified to act as mediators. In fact, states such as Colorado even require mediators have a basic understanding of the law in the area they mediate. However, there appears to be no concern that mediators may be practicing therapy or psychology without a license.
Definition of “Psychology” and “Therapy”
As set forth below, mediators often come very close to the practice of “psychology” or “therapy.” Under California law, this is illegal. See California Business & Professions Code (“B & P”) §§ 2908 (psychology) and 4980 (marriage and family therapists).
Business and Professions Code § 2903 defines the practice of psychology as providing a service for a fee that involves “the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior …” Unfortunately, the code does not define “psychological principles, methods, and procedures.” Further, no cases have been decided that discuss the bounds of these terms or the limits of what constitutes the practice of psychology.
Similarly, the practice of “marriage and family therapy” is defined by B & P § 4980.2 as “service performed with individuals, couples, or groups wherein interpersonal relationships are examined for the purpose of achieving more adequate, satisfying, and productive marriage and family adjustments.” The only apparent limit on this definition is that the service must involve “marriage” or “family.”
Luckily, at least for lawyers, doctors, and a handful of others, these professions are exempt from the proscription of practicing psychology or therapy. But what about mediators (who aren’t also members of the exempt professions)? There is no exception. Thus, although a mediator may in fact be more capable than a doctor or lawyer in this respect, if such mediator crosses the line into psychology or therapy, he or she is taking a risk.
Overlap of Mediation with Psychology and Therapy
Practically no mediator will argue mediation involves no similarity to “psychology” or “therapy” as defined above. An act as simple as reframing a party’s statement to make it align closer with the spirit of settlement is a “psychological principle,” in as much as this technique appears in basic counseling books. Most effective Mediators use various other “psychological principles,” which may include acts as basic as reflection of thoughts and feelings and active listening.
Should the fact that mediation shares some common techniques with psychology lead to potential civil and/ or criminal liability? Should there be an exception for mediators, as there is for lawyers? These are important topics, but are beyond the scope of this article.
Based on California’s present laws, as set forth above, there is a real possibility of liability for non-lawyer mediators. Although there appear to be no cases of liability or crimes against non-lawyer mediators for practicing psychology, there is at least one significant case involving a non-lawyer mediator found to have practiced law through mediation. That mediator was sued, forced to pay to defend herself, and ultimately left the state as a result of charges that she illegally practiced law through mediation. Thus, the possibility for liability exists.
Ways to Avoid Liability
Of course, the easiest way to avoid liability for the unlicensed practice of psychology or therapy is to abstain from mediation, or become a doctor, lawyer, or other exempt profession. However, this is impractical for many, especially volunteer community mediators. Alternatively, the mediator could pay scrupulous attention to not crossing the line between mediation and psychology or therapy. However, there is always the possibility of being sued on this basis even if innocent. Therefore, to protect against the result of the mediator in Connecticut, it would seem advisable to obtain professional liability insurance.
Finally, the law could be changed to make mediators—like doctors and lawyers—exempt. While this topic warrants further consideration, it is for now left for another day.