Should Mediators be Regulated?

When I began my mediation training, friends and family often asked, “Will you be qualified after finishing this course?” I had to tell them that, as mediation is a non-regulated profession, what it means to be “qualified” is not easy to determine. There is no equivalent in mediation of the bar admissions test that lawyers write, for example. Mediation is not regulated in Canada, in any U.S. state, nor in the U.K. Is mediation’s informal nature good or bad? Would it be better if mediators were subject to some kind of legal control?

There are reasons to think that regulation might be good for both mediators and their clients. Having some set of standards would assure consumers that their mediator had at least minimal qualifications, and perhaps familiarity with a specific area of law. In the area of family and civil mediation, where negotiations take place “in the shadow of the law,” some understanding of background law seems especially pertinent. The Law Commission of Ontario, in their recent report, “Voices from a Broken Family Justice System,” say that some of their informants expressed concern about mediators’ qualifications and about the regulation of mediation more generally. (I’m looking forward to reading the Commission’s recommendations, due to be released in November.) Regulation of mediation and of mediators’ qualifications might increase public confidence in the process of mediation, which would be good for everyone, consumers and mediators alike.

Yet there are good reasons to resist calls for greater regulation. For one thing, minimum standards of qualification do not guarantee excellence or aptitude. Legal standards of qualification have not protected the public from bad teachers, doctors, or lawyers. Indeed, the Law Commission’s report on the family justice system is full of complaints about lawyers and judges. Furthermore, while some lawyers also practice as mediators, mediators and lawyers generally offer different kinds of skills and have different roles in solving disputes. Mediators should not be seen as little more than a cheaper alternative to lawyers – the “Walmart” of the legal system, if you will. Making mediation a more official part of the legal system might threaten its distinctive character.

There are other ways, besides legal regulation, to increase acceptance of mediation and protect the public. A good mediator will advise the parties in mediation to seek an independent legal opinion before signing a mediated agreement. The process of mediation is “without prejudice,” meaning that if one party is unhappy with a mediated settlement, he or she still has the option of attempting to resolve the dispute through litigation. For family disputes, the Ministry of the Attorney General encourages people to choose mediators who meet the standards set by the Ontario Association for Family Mediation. These include specialized courses in family mediation, family law, and domestic violence, as well as a hundred hour internship with an accredited mediator. People looking for mediators for other types of disputes can check whether prospective mediators belong to a professional organization, such as ADR Institute of Ontario.

Finally, mediation is done in all kinds of contexts by all kinds of people. It is part of the job description for professions as diverse as clergy, real estate agents, municipal politicians and human resource professionals, as well as being practiced informally by community leaders and elders in different neighbourhoods all over Canada. Mandating the same training and requirements for all of these would not be practical or desirable.