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ADR, Mediation

Mediator regulation needed in future

Toronto mediator Bernard Morrow says the booming mediation profession will likely need regulation at some point in the future.

The field of alternative dispute resolution (ADR), and mediation in particular, has taken off in Canada as parties seek private, more cost-effective and less adversarial methods of resolving disputes. 

However, the mediation field is largely unregulated in Canada, and there are currently no restrictions on who can hold themselves out as a mediator of civil disputes.

“There are many who think that regulation of mediators is just a recipe for a big bureaucratic mess, but if we’re going to view this growing field as a profession, then we may need some form of formal regulation,” Morrow, the principal of full-service dispute resolution firm Morrow Mediation, tells AdvocateDaily.com. “I‘m somewhat surprised nobody has taken this on yet.

“It’s no secret that the market for mediators is saturated, in part because there is no formal barrier to entry,” he adds.   

Until some form of formal regulation evolves, Morrow says those involved in the process will continue with the trial-and-error approach that has developed.

“Currently, I suppose you can say we have informal 'self-regulation.' Who gets work is determined by quality of service. Consumers are becoming more discriminating and informed, and can tell pretty quickly if you know what you are doing, and word gets around about those who don’t,” he says. “Like any service industry, those that are effective get more work and those that aren't get weeded out.”

In the meantime, he says mediators can distinguish themselves from their competitors by pursuing designations from mediation organizations based on education and training, practice experience and a peer assessment of skills. Morrow was awarded the chartered mediator (C.Med) designation with the ADR Institute of Canada (ADRIC), which recognizes a superior level of generalist competence.

ADRIC also offers a “qualified mediator” designation, intended as an intermediate step on the road to the C.Med label, for members who have completed sufficient mediation and related dispute resolution training. In addition, ADRIC has its own code of conduct allowing it to perform some measure of self-regulation.

For Morrow, formal regulation is about safeguarding the public and establishing universal standards that enhance the credibility of the professional. But he takes a realistic approach to the issue:

"It's a daunting task. Who would take this on - the mediation community or some arms-length body? Formalized self-regulation is complex, as the Law Society of Upper Canada's experience with lawyers and paralegals would attest," he says.

"And what ethical standards would be at the foundation of a regulatory framework? These are tough questions," Morrow adds. 

One solution may lie in the creation of "certifications" by mediation organizations in specific areas of practice, such as civil litigation and family, he suggests, as opposed to a formal regulatory body with blanket oversight.

"At the end of the day, market forces will always play a part in determining who gets the work - do good work, and you build credibility and trust," Morrow says. "And in any profession, that's the ultimate measuring stick."

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