Making the Case for Using a Court Qualified Mediator

Posted on April 17, 2016

Are you looking for mediator or has your attorney set up a mediation with a mediator?  Should you care if this mediator is Qualified by the Court?

I believe there are many reasons you should consider hiring a mediator who has been qualified by the court to provide mediation services, here are a few:

You can be sure they have specific training in mediation skills.

They are held to an Ethical Code for mediators.

You can be assured they have recent training and experience conducting mediation.

They are part of the mediation community and are giving back to the community by providing pro bono work each year.

Let’s look at each of these reasons in more depth:

Training:
To be included on the Utah State Court Roster of Qualified Mediators, a provider must meet specific training and experience standards Utah State Court Mediator Qualifications
In truth the standards are not extremely high, but they have been set as a minimum standard for those being qualified by the court to mediate. There are many mediators in the community who have not completed the required training and are therefore not included on the roster. Some of these providers are experienced attorneys, therapists or retired judges or commissioners. The questions is, why should someone who has experience in another field be required to complete training in mediation? The answer is simple….. Mediation is Mediation, it is not acting as an advocate, therapist or judge and the skills used in those professions are often antithetical to the skills used by a mediator.

In most training programs for mediators, those being trained are encouraged to refrain from inserting their opinions or ideas into the disputes in which they are serving as mediator. For those who have spent their careers doing the opposite, training and practice is needed to develop new skills. With training, mediators are exposed to new skills and ways to facilitate negotiation and they practice these new skills in the training program as well as when getting the required experience to qualify for the court roster. Without this training and experience, many of those who practice mediation and have never been trained as a mediator are a “one trick pony.” I was recently talking with a local family law attorney who has attended mediation with me and with a mediator who is not qualified on the court roster (this person was a retired judicial officer). The family law attorney expressed to me that the other mediator only had one intervention to try to get parties to settle and that was to tell them what they believed would happen in court and scare them into settlement. In comparison, a mediator who has training has many different interventions they are taught to try to get parties to settle, non of which are to tell the parties what to do. Mediation is a process which is built on party self-determination, when parties are scared by a possible outcome in court, their self-determination is taken away and fear of the unknown takes over.

Ethical Code

One of the requirements to be qualified as a mediator in Utah is to take and pass an exam on the Ethical Code for mediators Ethical Code for Mediators in Utah. In addition, mediators on the Utah court roster are putting themselves under the scrutiny of the Court ADR Director to ensure they follow the Ethical Code. Why in the world would you want to work with someone who is not willing to follow their professions Ethical Code and be held to those standards? As a mediator, I have heard horror stories about things a non-court roster mediator has done, and there is no action that can be taken to help correct as issue if it arises in your case. Basically, if you work with a mediator who is not on the court roster, you run the risk of having no recourse if they act unethically (other than to pursue something civilly). If a mediator who is on the court roster has Public or Private sanctions imposed for ethical violations, those must be made public and are noted on the Utah State Court Roster; Public Sanctions  Private Sanctions. Mediators not on the roster can hide behind any breach of the ethical code and by doing this may continue to engage in unethical behavior with no recourse or public notice. By working with a mediator on the court roster, you can be assured they are familiar with the ethical code and if they breach it, will be held accountable for this and not be allowed to continue this behavior unchecked.

Up to Date With the Field

For a mediator to re-qualify for the Utah State Court Roster each year they must complete a minimum of 6 hours of training in the field of mediation or conflict resolution. The field of mediation is in it’s beginning stages and new findings and ideas come out every year. The Court requires that mediators complete a minimum of 6 hours of continuing education each year; this helps ensure that mediators stay current in the field and encourages them to learn and develop new skills.
When you choose a mediator who is not on the Court Roster, you run the risk of working with some one who is behind the times. There is so much research coming out regarding neuroscience, how the brain works and how people make decisions. Mediators should keep up on these new findings so they can grow along with the field instead of staying stuck in the past.

Giving Back to the Community

Mediators who are on the court roster are required to document a minimum of 3 pro bono ( done for the public good without compensation) cases each year. This requires mediators to not only make a living in the community but give back to the community as well. Ask mediators you are considering hiring if they do volunteer work as a mediator, are they giving back to the community or just taking?

So, the choice is yours. Do you want to work with a mediator who meets the Utah State Court requirements to qualify as a mediator?   Or are you OK working with someone who is calling themselves a “mediator” because it is a popular term and yet they have no training or skills?

 

One Response to “Making the Case for Using a Court Qualified Mediator”

  1. Sherri Hannon
    Apr 17, 2016

    I agree. I recall facilitating a mediation for a client who had attended a previous mediation. Her first experience was much different. When she described that process, I would not have called it mediation.

    I do think some mediators have the training but don’t bother to become placed on the court roster. The requirements for the roster do go quite a ways to filter out the untrained and keep mediators growing in their skills. I think basic mediation training programs should emphasize the points you have made and be encouraged to help their graduates apply for the court roster.



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