Inside Track: Should Wisconsin Regulate the Practice of Mediation?:

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  • Should Wisconsin Regulate the Practice of Mediation?

    Some states regulate mediators. Wisconsin does not. Should the practice of mediation be regulated in Wisconsin? In this article, two attorney-mediators discuss that question, including one that helped lead North Carolina’s effort to regulate mediation.

    Joe Forward

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    MediationMay 7, 2014 – Many lawyers engage in the practice of mediation, a process for facilitating discussions between disputing parties to encourage settlement. But mediators don’t need to be licensed attorneys.

    Wisconsin does not have licensing or accreditation requirements for mediators. Certification programs are voluntary.

    Attorney Debra Tuttle – executive director and chief mediator for the Metro Milwaukee Foreclosure Mediation Program – says there are good reasons to explore the regulation of mediation practice in Wisconsin.

    “Regulation forces the industry to define the practice, and indicate the qualifications and standards required. It also creates mechanisms for accountability,” said Tuttle, who assigns mediators who are part of the Wisconsin Foreclosure Mediation Network.

    “If mediation practitioners don’t formulate a deliberate approach to mediator regulation, I am concerned that the opportunity may get taken out of their hands,” she said.

    Other states, such as North Carolina, require mediators to be certified if handling court-ordered mediations. And all litigants are required to attempt mediation in North Carolina.

    Here in Wisconsin, courts have the authority to order litigants to attempt settlement through alternative dispute resolution, and mediation is one of the alternatives.

    Unlike North Carolina, Wisconsin does not mandate an attempt at mediation in all civil cases. But J. Anderson (Andy) Little, who helped lead the North Carolina Bar Association’s efforts to implement mediation into the state’s court system, says the mandate is working well.

    “We’ve seen a revolution down here, a huge change in the litigation culture,” said Little, who left his law practice to start a full-time mediation firm, Mediation Inc., in Chapel Hill.

    Debra Tuttle

    “Regulation forces the industry to define the practice, and … creates mechanisms for accountability.” – Debra Tuttle, executive director and chief mediator for the Metro Milwaukee Foreclosure Mediation Program.

    The North Carolina Supreme Court also adopted rules that require court-ordered mediators to be accredited, and developed and adopted the Standards of Professional Conduct for Mediators, with a Dispute Resolution Commission as a disciplinary tribunal.

    Little served three terms on the Dispute Resolution Commission, appointed as commission chair by the chief justice of the North Carolina Supreme Court.

    Arguments For and Against Regulation

    Regulation exists to protect citizens. As most cases settle, mediation becomes a useful tool to help parties resolve their disputes. Mediators facilitate those talks. But just like professionals in other fields, a few bad mediators can negatively impact the parties.

    Tuttle, who manages a roster of mediators that perform mediations through the Wisconsin Foreclosure Mediation Network, said mediators are trained in foreclosure mediation, and about 75 percent of the network’s mediators are also lawyers.

    Mediators have an obligation to keep mediation confidential under Wis. Stat. section 904.085, which says communications arising in mediation are not admissible in subsequent proceedings, unless disclosure is necessary to avoid a manifest injustice.

    However, mediators are not subject to rules of professional conduct similar to the rules of professional conduct for attorneys. Tuttle says she has seen instances of misconduct by mediators, and there is no grievance process for the parties affected. For instance, she has seen mediators favor one party, or fail to complete the mediation process.

    “Just like any other licensed profession, the goal is to protect consumers, to provide a consistent product, as well as a grievance mechanism,” Tuttle said.

    Regulation would help keep mediators in check, Tuttle says, and create clear guidelines and standards to improve the mediation process.

    Regulation would also assure the quality of mediation, give the industry enhanced credibility in the public’s eyes, and potentially require mediators to carry professional liability insurance, Tuttle said. In addition, parties would have a grievance mechanism.

    “In general, parties who are represented by lawyers find mediators who are certified or otherwise knowledgeable in the subject matter of the mediation. They get experienced, good mediators,” she said. “But that may not be the case for unrepresented litigants.”

    For instance, sophisticated parties may require a mediator who is certified through an education certification program, or is a member of the Wisconsin Association of Mediators, a membership of mediators that pledge to meet certain standards.

    But as it stands, anyone could take an hour-long course on mediation and start a business as a mediator. Those persons can legally hang a shingle and start mediating disputes. “These are situations that end up on the front page news,” Tuttle said.

    Still, Tuttle recognizes the arguments against the regulation of mediators. Some say bad mediators are eliminated by market forces. Tuttle notes that competition only works for parties that know the mediator market, and many unrepresented litigants may not.

    She also notes the many mediators – including lawyers, former judges, or nonlawyers with vast experience in a given subject area – may be resistant to regulation.

    “They say, ‘you are going to make me go through a 40-hour course and then do annual continuing education requirements? Clearly, I’m already qualified,’” Tuttle said.

    Other nonlawyer mediators may worry regulation would require mediators to be licensed attorneys. Under the North Carolina model, that’s not the case.

    Anderson Little

    “We’ve seen a revolution down here [in North Carolina], a huge change in the litigation culture.” – J. Anderson Little, Mediation Inc., in Chapel Hill, NC.

    Mediators in North Carolina don’t need to be lawyers. And only mediators that conduct court-ordered mediation fall under the regulation system. That is, mediators who conduct pre-litigation mediation are not required to be licensed and certified.

    Wisconsin currently does not mandate mediation in all civil litigation cases, but Tuttle says courts often order the parties to attempt mediation. If Wisconsin followed the North Carolina system, those parties would be required to use accredited mediators.

    North Carolina’s Model

    In North Carolina, all litigants are required to attempt mediation. A good faith attempt is not required. That is, the parties don’t need to make good faith efforts to participate, and mediators who realize the mediation won’t be successful can end the process.

    “You would think that parties who are forced to mediate would be resistant to it, but that hasn’t been the case here,” Little said. “In fact, more parties are doing voluntary mediations now. The statistics on successful mediations here are very good.”

    North Carolina’s mediation program requires mediators to obtain a minimum of 40 hours of instruction and training. Nonlawyers must obtain more in some circumstances

    Certified mediators must also meet continuing education requirements and adhere to the Professional Rules of Conduct for Mediators, promulgated by the state supreme court. The program is fully funded by administrative and certification fees.

    The rules require mediators to uphold confidentiality and impartiality, avoid conflicts of interest, and set other standards and guidelines for court-ordered mediators to follow. Parties can file complaints with the Dispute Resolution Commission.

    In 2013, the North Carolina courts sent 8,847 cases to mediation. About 30 percent of those cases were resolved successfully through the mediation. In about 23 percent, the parties reached an “impasse,” and litigation continued. About 20 percent of cases resolved without alternative resolution, including dismissals, trials, or other disposition.

    Little said the Rules of Professional Conduct for Mediators operate independent of the ethics rules for lawyers, but serve as a guide when lawyers are conducting mediation.

    Wisconsin Supreme Court Rule (SCR) 20:2.4 addresses lawyers as mediators. It requires third-party neutrals to inform unrepresented parties that the lawyer is not representing them and explain the lawyer-mediator’s role if necessary.

    Join the Discussion

    Attend “Mediator Accreditation, To Regulate or Not to Regulate, on the second day of the State Bar of Wisconsin PINNACLE’s Litigation, Dispute Resolution and Appellate Practice Sections’ Institute, May 22-23 at the Pfister Hotel in Milwaukee.

    Tuttle will moderate the discussion. Little is a panelist along with Joseph McDevitt of McDevitt Mediation Services in Wauwatosa and Christine Harris Taylor, associate director of Marquette University’s graduate program in dispute resolution.