What, if anything, reasonably provides mediation consumers with confidence about the quality of mediators’ services? The expansion and maturation of mediation as a practice has understandably (and laudably) led many to begin to focus attention on questions of quality assurance. Those who care about mediation might wisely look to other practices or professions for indicators of what mechanisms are most effective. Why are we confident that the doctor we have chosen will not be lousy? The lawyer? The plumber? The tattoo artist? It turns out that, regardless of the context, whatever confidence we have in the quality of these practitioners’ services derives from one of four sources. A careful look at these available mechanisms, however, reveals that none of them currently operates as effectively for mediation as they do for other practices and professions. Some mechanisms fail because of the nature of mediation practice. Some fail because of the nature of current regulation or common law doctrines related to mediation. Some fail because of the current shape of the market for mediators. None of these failures, taken independently, would be all that troublesome. After all, most practices and professions rely on a patchwork of different mechanisms for guarding against incompetence. Only the fact that all four of the mechanisms fail in the context of mediation makes this a remarkable and unsustainable condition. By understanding how quality assurance works in other practices, and by understanding how those mechanisms have evolved over time, we gain an important set of insights about the possible future(s) of mediation. Building on the descriptive and predictive components of this inquiry, we can then responsibly engage in a conversation about what that future ought to look like. Mediators today operate with few market restrictions, few controls on their conduct, and few consequences for misbehavior. This condition will not persist.
Speakers