Mediator Qualifications: The Trend Toward Professionalization

Bobby Marzine Harges* I. INTRODUCTION One of the most controversial issues in the Alternative Dispute Resolution (ADR) field concerns mediator qualifications. Commentators, state legislatures, courts and others in the ADR field are asking fundamental questions about the qualifications a person should possess before he may mediate. These questions include: Should anyone who completes a mediation skills training course be allowed to mediate? Should mediation training be specialized into areas of concentration? Should mediators possess academic degrees? Should mediators be lawyers? Should mediators be certified? Should mediators be licensed? And should performance and evaluation criteria be enough to qualify a person to be a mediator? The debate over these questions grows as the use of ADR techniques, particularly mediation, becomes more widespread. States have begun using various approaches toward mediator qualifications. Some states require that individuals have certain academic degrees in order to qualify as a mediator, while others only require mediators to take a mediation training course. Still other states require individuals to have a combination of academic degrees and mediation training before they can serve as mediators. Only a few states have no educational or training requirements for mediators. A growing trend in a number of states requires mediators in domestic relations cases, primarily those involving child custody and visitation issues, to receive specialized mediation training in family issues as well as possess certain academic degrees, licenses or certifications before they can mediate such cases. This Article discusses this trend and the controversial issue of mediator qualifications, primarily in cases regarding domestic relations issues such as child custody and visitation. Section II of this Article discusses what mediation is and how mediation is used in child custody and visitation disputes. Section III examines the growing trend among states toward mandatory or discretionary mediation in child custody and visitation cases. In granting courts the authority to send child custody and visitation issues to mediation, an increasing number of states require either specialized mediation training and/or require mediators to possess certain academic degrees, licenses or certifications before they can mediate such issues. Section IV examines each state that has regulated the qualifications of mediators in child custody and visitation cases. Section V discusses the need for such mediators to possess certain academic degrees. Section VI addresses the type of general and specialized mediation training that should be required for child custody and visitation mediators who mediate cases in mandatory and discretionary jurisdictions. Finally, Section VII looks at other views on the professionalization of mediation and concludes that the trend toward professionalization is a positive one that should continue. II. THE USE OF MEDIATION IN CHILD CUSTODY AND VISITATION DISPUTES Mediation is a process whereby a neutral third person assists parties to resolve their dispute in a way that is acceptable to all parties. As a neutral party, the mediator, unlike a judge or arbitrator, does not evaluate the case but simply facilitates discussions between the parties in an effort to reach a mutually agreeable solution.l The use of mediation to resolve child custody and visitation disputes has grown tremendously in recent years. Most courts resolve custody and visitation disputes according to the best interests of the child.2 The parents in most cases, not the judge or the lawyers, are in the position to know what is best for the child. By participating in a mediation, parents are able to work toward an agreement that meets the best interests of the child. Mediation is particularly helpful in resolving child custody disputes. After a child custody or visitation dispute is over, parents usually remain in contact with each other for years to come due to their continuing obligations and duties toward their minor children. …