The Maryland Program for Mediator Excellence

The Maryland Program for Mediator Excellence

From the Beginning

A Call to Action

Mediation helps people in conflict devise their own solutions; reduce court backlogs; and lower recidivism rates. Mediation also empowers people to create change, reduce disruptions in schools and allow agencies and businesses to cut litigation costs. Despite this, in 1998, mediation and other forms of alternative dispute resolution (ADR) were not in widespread use.

In 1998, over two million cases were filed in Maryland’s combined trial courts. These cases created backlogs on many crowded court dockets. Many cases involved interpersonal disputes that often resulted in charges being filed repeatedly because the courts were unable to resolve the underlying conflicts. In February 1998, recognizing the tremendous benefits of effective dispute resolution processes and conflict management practices as a means of providing Maryland residents with better access to justice, the Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, created the Maryland ADR Commission in February of 1998.

The goal of the ADR Commission was to help expand dispute resolution options both inside and outside the court system, and ultimately improve the way in which our society manages conflict. Chief Judge Bell charged the Commission with reviewing the state of ADR in Maryland and around the county, as well as developing and implementing a practical action plan to advance the appropriate use of ADR in our courts, schools, neighborhoods, businesses, state and local government agencies and in our criminal and juvenile justice system. Providing visionary leadership and showing dedication to improving Maryland’s overall approach to dispute settlement, Chief Judge Bell chaired the diverse, 40-member multi-disciplinary Commission with Donald G. Gifford, former Dean of the University of Maryland School of Law, serving as vice chair. The founding Director of the Commission, Rachel Wohl and Deputy Director, Lou Gieszl designed a structured collaborative effort to help the ADR Commission develop a consensus-based practical action plan to advance the appropriate use of mediation and other conflict resolution process statewide.

Join the Resolution

As part of this collaborative effort, the ADR Commission (the Commission) recruited approximately 100 additional people to work on six committees, which examined ADR definitions, court administration, professional responsibilities, community issues, business applications and education. To expand the consensus-building efforts further, the ADR Commission also formed four (4) multi-disciplinary Regional Advisory Boards covering the Western, Central and, Southern regions of Maryland as well as the Eastern Shore. These large boards provided diverse perspectives on regional needs. To provide a national prospective, the Commission established a National Advisory Board comprised of acclaimed ADR experts from across the county.

Based on its research, its best thinking and the feedback received from approximately 700 interested individuals and groups throughout Maryland, the Commission and its committees developed and published Join the Resolution: The Maryland ADR Commission’s Practical Action. Join the Resolution provides the plan for advancing the appropriate use of ADR throughout Maryland’s courts, neighborhoods, families, schools, businesses, government agencies, criminal/juvenile justice systems and other organizations and settings. For a copy of Join the Resolution, visit MACRO’s website at and look under MACRO, ADR Commission and click on the link, Practical Action Plan.

The Maryland Judiciary’s Mediation and Conflict Resolution Office (MACRO)

Once the ADR Commission developed the action plan, the question became who was going to implement the plan and carry on the work of the Commission? The ADR Commission believed that a statewide dispute resolution office was needed not only to implement the work but also to encourage continue ADR advancement across the state. Based on a consensus of the Commission, Chief Judge Bell established the Maryland Judiciary’s Mediation and Conflict Resolution Office or MACRO. MACRO is a court-related agency, which serves as an alternative dispute resolution resource for the state. MACRO supports innovative dispute resolution programs, and promotes the appropriate use of ADR in every field. MACRO works collaboratively with many others across the state to support efforts to advance effective conflict resolution practices in Maryland’s courts, communities, schools, state and local government agencies, criminal and juvenile justice programs and businesses. MACRO is advised by a board with the same diverse and multi-disciplinary make up as the ADR Commission.

One of the things which makes MACRO unique when compared to similar offices in other states is that although it is housed in the judiciary, its scope is much broader than just the court system. MACRO’s mandate includes all areas in the state where ADR would be beneficial. MACRO provides small grants as seed money to create, strengthen or expand conflict resolution programs throughout the state.

Mediator Quality Assurance

Although the ADR Commission was able to reach a consensus in a number of areas, one area in which this was not the case was mediator quality assurance. The Commission recognized that, as MACRO helps grow the use of ADR in Maryland, it will be imperative to have an active cadre of skilled ADR practitioners. The Commission highlighted quality assurance as a major priority, and said it would continue to work to develop consensus about ways to promote mentoring, co-mediation, apprenticeships, supervised practice, “skills-based” assessment, and other possible approaches to quality assurance.

Diversity of opinion on mediator quality assurance in Maryland reflects the national dialogue on this topic. Strong divisions exist among practitioners, users, and experts in every state as to how to define, measure, and promote quality practice. These differences have resulted in debates that raise a variety of policy, practical, legal, and logistical concerns, such as how best to assess whether practitioners have the skills that can be crucial for a quality outcome, how to assure diversity, how to avoid bureaucracy, and avert unanticipated consequences.

While ADR’s growth has led some to argue for competency standards to protect consumers and promote integrity, many knowledgeable people still favor market-based philosophies or balk at the idea that we know enough to measure or predict quality performance. Others disagree, and believe that research is beginning to show the attributes that are important for effective performance in various settings and how those aptitudes are best acquired.

To complicate matters even further, while mediators and researchers have argued and labored over the past 15 years or so to define “what mediators do” and better understand “who does it well, and how,” thousands of programs and individuals seeking neutrals have had to make day-to-day choices. These include disputing individuals or their lawyers, state and federal agencies, and people establishing rosters as a means of “vouching for” the competence and reliability of the mediators they use. Moreover, legislatures, courts, and professional groups in many jurisdictions have taken a variety of more, or less, informed approaches to try to promote mediator quality. Finally, many individuals now represent themselves as “certified to practice mediation” when referring to a certificate received as a result of attending a training program and not as a result of going through a certification process. There is currently no statewide certification process in Maryland.

Because of these difficulties, no other state has succeeded in developing a broad consensus about what measures to take to promote mediator quality assurance.

Maryland Mediator Quality Assurance Committee (MQAC)

As is its practice, MACRO decided to try to achieve a broad consensus on what steps to take next in furthering quality mediation in Maryland. MACRO's goal was a sensible, acceptable system that meets the needs of the practitioner community and the public. To accomplish this, MACRO decided to establish a Maryland Mediator Quality Assurance Committee (MQAC) comprised of representatives of MACRO and all of the state’s major practitioner groups. The Committee was comprised of representatives of (1) the Association for Conflict Resolution Maryland Chapter (ACR); (2) the ADR Section of the Maryland State Bar Association; (3) Community Mediation Maryland, formerly the Maryland Association of Community Mediation Centers; (4) the Maryland Council for Dispute Resolution (MCDR); and (5) MACRO. The members, who were selected by their groups, comprised a broadly representative group drawn from mediators of diverse backgrounds, styles, and areas of practice.

The Committee worked with MACRO staff for over two and a half years in a collaborative process involving numerous stages of activity. The Committee began by hiring Charles Pou, as its consultant, to gather and review extensive information on mediator credentialing and quality. The Committee held numerous regional meetings to permit mediators, administrators, judges, and users of mediation from across the state to offer ideas and feedback. A number of broad tentative conclusions were developed forming the underpinning to a proposal. The Committee then worked to develop consensus among all its members on an interim proposal that would be both practically useful and responsive to concerns expressed by affected people. After agreeing on and circulating this proposed concept, the Committee held another set of regional and other targeted sessions to obtain reaction to this proposal. Finally, the Committee settled on a model concept for a mediator quality assistance system, and brought together 64 representatives for a three-day “Future Search” conference to begin detailed work on implementation of the model.

As result of work done by Charles Pou, the Committee learned that different jurisdictions and ADR programs have taken very diverse paths to promote quality practice by their neutrals. Some programs with a "high hurdle" might require considerable training, experience, and/or observation to be certified. A “low hurdle” program may demand only limited training and mediation or co-mediation experience. A "high maintenance" program may require little to become a mediator but would typically call for mediators to enhance their awareness and skills via co-mediation, follow-up training, in-services, coaching, or handling a large number of cases. A “low maintenance” program imposes few mandates on a mediator once s/he has received a credential.

After reviewing the research, conducting several regional forums and participating in a daylong retreat, Committee members developed the following policy goals.

Voluntary means of promoting quality mediation in Maryland are preferable to licensing or mandatory credentialing.

A Mediators' commitment to long-term improvement and education ("quality assistance," "life-long learning") is more important than "hurdles" to promote quality.

The definition of "quality mediation" may not be the same in every context (e.g., differing styles and expectations, mandatory v. voluntary participation, imposed or party-selected mediator, substantive specialization).

Hurdles should be modest, with "incentives and encouragements to participate" offering a middle way between mandatory certification and wholly voluntary approaches. (e.g., Mediator Registry, educating users, support and advice framework, opportunities for mentoring and targeted discussion).

All mediators have something to learn about good mediation, and benefit from exposure to a variety of educational sources.

Performance-based assessment should have a place in Maryland mediator’s quality assistance system, but probably more as a means of pinpointing possible shortcomings for follow-up attention rather than in a "pass-fail" way.

Good mediators come from a variety of backgrounds, and many have developed skills through means other than “approved” training. Any effort to address quality that is exclusive, as opposed to inclusive, risks reducing diversity and eliminating potentially excellent mediators.

Maryland Mediators Want To Provide High Quality Service.

The Committee found that Maryland mediators are interested in pursuing excellence in their craft. Mediators in Maryland want to provide a high quality product to the public. The Committee heard these desires voiced by mediators in numerous public forums held around the state. It is also clear from the number of trainings and educational opportunities mediators participate in, both in the state and across the country,Marylandmediators are trying to improve the quality of the services they provide to the public.

Maryland Mediators Would Welcome a Coordinated System Offering Relevant Opportunities to Improve Their Practice.

The Committee determined that if given relevant opportunities Marylandmediators would use them to improve their mediation practice. To be useful, the opportunities must be related to the venue in which the mediator practices. This means the opportunities must relate to mediators in the courts, in community mediation centers, in businesses, in health care, for family mediators, for those in government agencies as well as those in private practices. These opportunities must also be geared to the mediator’s experience level. Beginning, intermediate and experienced mediators must find the opportunities beneficial.

The Committee opted for creating a quality assistance program rather than a quality assurance program. They decided to create a coordinated statewide system to assist mediators to continually improve the quality of their mediation services. The Committee, with input from hundreds of mediators and others, created the Maryland Program for Mediator Excellence.

The Maryland Program for Mediator Excellence (MPME)

The major goal of the Maryland Program for Mediator Excellence (MPME) is to assist Maryland mediators in all venues to provide high quality mediation services to their clients. This is accomplished by providing participating mediators with stimulating choices for continued learning and improvement, along with appropriate recognition for their achievements. Symbolized by a tree with many roots and branches, the MPME integrates several non-regulatory, voluntary approaches for enhancing mediator’s skills and their ability to address the needs of their clients.

The MPME has a few basic requirements that mediators must meet to participate in the program. It offers many options to support continuing development, such as training, mentoring, case discussions, observations and evaluation. The Mediator Excellence Council (MEC) is the governing body of the Maryland Program for Mediator Excellence. The MEC is currently comprised of representatives from: the Association for Conflict Resolution Maryland Chapter (ACR); the MD Council for Dispute Resolution (MCDR); Community Mediation Maryland (formerly the MD Association of Community Mediation Centers); the MD State Bar Association’s ADR Section and MACRO. There are also representatives from the circuit and district courts, a roster program and a consumer representative. The Chair of each of the MPME Task Groups also sits on the council.

The requirements for MPME membership are:

Having completed forty hours of mediation skills training;

Agreeing to comply with the Maryland Standards of Conduct for Mediators as adopted by the Mediator Excellence Council;

Agreeing to participate, in good faith, with the Mediation Ombuds Program;

Committing to complete two hours of ethics education each year;

Committing to complete four continuing skills improvement activities each year.

Central to the program is the opportunity for mediators to make choices from a variety of self-advancement options including:

Continuing education and/or training in mediation skills and other issues critical to quality mediation;

A Skills-Based Mentoring Program pairing individuals new to mediation, and/or those new to a venue or particular area of practice, with experienced mediators;

A voluntary performance-based assessment, which in the future may become a certification program provided it has inter-rater reliability, transparency, validity, freedom from conflicts of interest, respectfor different mediation approaches, allows for skill building and supports due process;

Internet services with an ethics hotline, a calendar of events, and a chat room for discussion of ongoing mediation concerns;

Statewide, regional, and program-level networks to serve the diverse needs of mediators throughout the state (e.g., programs, feedback from experts, mentoring, and advice sessions);

An aggressive consumer education program which includes enhancement of the current ADR Practitioner Online Directory; and

A variety of certificates of accomplishmentto acknowledge successful achievement in the various aspects of program.

The Tree is Organic

The MPME began accepting members in August 2006 with a series of kick-off events. While accepting members is a major milestone in the development of the Maryland Program for Mediator Excellence, it is just the beginning. As with any tree in nature, the planting is important. Equally important is the care and nurturing the tree receives as it grows from a sapling to full maturity. For the MPME that means the development of each root, branch and leaf in the program. The sapling is a great beginning, but it is just that, a beginning.

A tree in nature is a living organism, changing and developing based on the environment and the care it receives. When a sapling is planted it is not intended to look the same over time. Every part of the tree will develop based on where it is planted and how much sunlight and rain it receives. The MPME is like the sapling, not intended to look the same in a year, 2 years or in 10 years, as it does today. It is a living organism that is definitely changing. There have been at least 4 variations of the tree in the past eighteen months.

How does it grow? It grows based on the feedback received from new and prospective members. As presentations are made and people get involved they start to notice that there are areas missing. For example at a regional forum, a comment was made that although diversity had been discussed as being important, it was not on the tree. It is now. At a conference in Minnesota, a Maryland mediator commented that mindfulness and self-reflective practice were missing. From that comment, the Self-Awareness Branch was added. Yes, we had to go to Minnesota for the Maryland mediator to realize this–it was well worth the trip. The MPME is not designed to sit on a shelf once completed. Just as a mediator is always developing and improving their skills, the MPME will also be developing new ways to assist mediators in improving their mediation practice.

The MPME is collaboratively designed and governed.

It grows and develops through the collaborative participation of its members.

Prepared by MACRO