In my column last month (“ADR Regulations [Part I]: Useless Red Tape or Necessary Protections?,” Dec. 21), I discussed some issues surrounding the regulation of ADR: specifically when and how ADR proceedings should be regulated.
Equally important is the issue of who should be allowed to serve as a neutral in ADR proceedings. One of the thorniest issues involving ADR regulation involves just how much oversight and credentialing of that individual is needed. Again, the argument in favor of party self-determination states that the disputants are in the best position to determine who should serve as neutral, and so long as full disclosures are made, oversight and regulation are unnecessary—and even violate the spirit of the process, which is built on party control.
Several ADR organizations, bar associations and courts have studied the question of neutral qualification over the years. While many proposals taking various approaches have been advanced in the past quarter century, a number of common themes have emerged in many of them. First, the less choice parties have in selecting a process or a neutral, the more some sort of credentialing and regulation of the neutral might be useful. Second, there must be a demonstrated correlation between the qualifications required of the neutral and the actual competence of the neutral. A further caution sometimes uttered is that the use of a credentialing standard should not be a subterfuge for those already credentialed to keep newcomers from entering the arena.
The question of regulating ADR is a complex issue. Self-determination and party control is a shining hallmark of ADR that must be respected. But it must be balanced by other compelling factors, such as whether the decision to use an alternative process is truly a voluntary one; whether the parties have sufficient knowledge of the process ultimately adopted; whether the dispute arises from a business-to-business, consumer or employment relationship; and whether there is equal bargaining power between the parties presenting an even playing field.
The purpose of any sort of regulation of ADR—whether involving the permissibility of utilizing an alternative process, how to structure the process or whom to allow to serve as neutral—must be grounded in clearly articulated and evidence-based reasons indicating that the imposed standards and requirements are necessary and beneficial.
A number of entities have a role to play in the determination of optimum regulation: the Legislature, the courts, professional organizations, ADR providers and, most importantly, the parties. The debate about imposition of standards and qualifications for neutrals, and even a certification process, has been especially active in connection with mediation in which practitioners from a wide array of backgrounds serve as neutrals.
The fall 2017 issue of the ABA’s Dispute Resolution magazine contains an article by Alyson Carrel and Lin Adrian dealing with the regulation of mediator practice. The authors state that the discussion about regulation should be “intrinsically tied to the motivation for regulation.” In other words, what is the purpose of any proposed regulation? They conclude most regulation they have examined in this country and abroad is focused on “selling mediation to courts, attorneys and parties.”
Others have expressed concerns that regulation is often proposed by those who are on the inside of the ADR profession and seek to keep the outsiders out.
Carrel and Adrian correctly conclude that the purpose of regulation should primarily be consumer protection. They further add that “with regulation, the consumer is assured that a provider is well-educated, possesses certain skills, meets minimum standards for practice and abides by some professional standard.”
Resisting regulation when it is truly needed would put many disputants at a distinct disadvantage. But overregulation would sap ADR of the very vitality which has been its lifeblood: party determination and control.
Proposed regulations to ADR should be evaluated deliberately and cautiously, but with an open mind. Why is it being proposed, what will it accomplish and who will it protect?
Harry N. Mazadoorian is a commercial arbitrator and mediator and a member of the American Arbitration Association’s Master Mediator Panel. He is the distinguished senior fellow at the Center for Dispute Resolution at Quinnipiac University School of Law.