by Saif Ur Rehman, Islamabad University
The ongoing debate about the regulation of mediation represents a significant dilemma for dispute resolution jurisprudence. Mediation was originally conceived as a party-centered and flexibility-based alternative to the more formal rigidity of the courts. Today, mediation finds itself at a threshold moment. The debate has developed into a polarized ideological debate between minimalists, who advocate for minimal state interference in mediation, and maximalists, who call for strong regulatory protection. There are two competing ideologies in the debate. One side supports limited state interference and contend that mediation’s flexibility, party autonomy and informality are what enhance the mediation process: features that will be sacrificed if state regulation is imposed. Their concern is state regulation might bureaucratize mediation, increase costs, and reduce access to justice. The other side advocates for more robust regulatory control and argues that there is a need for minimum standards for qualifications, codes of ethics, and accountability to protect vulnerable parties and to maintain fair mediation. They contend that the mediation process should be regulated as providing public confidence in the mediation process requires predictable levels of mediator competency and safeguards against abuses of power which will lend credibility to the mediation process. Yet, a sophisticated discussion is long overdue, on the fundamental dilemma of how the flexibility inherent in mediation can be combined with the assurance of equitable justice for all parties of the mediation process.
The theoretical appeal of mediation cannot be doubted. It provides an opportunity for de-escalation, movement away from aggressive posturing, and movement towards conversation. Mediation presents parties with an opportunity to create their own solutions as opposed to taking a solution that addresses their existing problems, usually outside the realm of a court’s remedy that is constrained by statute and common law. No doubt, the process of mediation offers efficiency, confidentiality, and a less brutal/stressful method of resolving conflict; and these benefits have been well documented in dispute resolution literature. However, this informality, which represents mediation’s greatest asset, also represents its greatest deficit. What I mean is that while informality allows mediation to be substantive, efficient, confidential, and adaptable to the distinct needs of the parties, it also represents a point of vulnerability. Informality also means that mediation is informal with no standardization or regulation. In other words, without standards or regulation, mediation can lead to inconsistent practices, untrained mediators, and outcomes that do nothing to protect vulnerable parties; an otherwise positive dimension of mediation could potentially become a risk to equity and justice.
An Unsettling Reality: The Perils of an Unregulated Profession
The practical reality is that the mediation profession is populated with practitioners of widely varying degrees of competence. The failing of regulated entry gives way to individuals with little or no training calling themselves qualified neutrals to facilitate parties through complex and emotional matters, such as claims of harassment in the workplace or competing claims regarding inheritance. Such unregulated landscape poses significant risk to the public.
While licensure is a requirement of professionals with much less risk of harm, such as a tour guide, the mediation profession mostly operates with no licensing, qualification or background checks of any kind. The failure to regulate entry into a profession presents every opportunity for poor practice resulting in potential risk, even substantial risk of harm. A good example of this includes fear of access to justice, that disadvantaged and vulnerable parties face systemic barriers, being prone to unjust results. Evidence of mediators breaching confidentiality, mindfully biased, or the actions of stronger parties coercing weaker parties into unfair positions suggests terminal failures of process.
Comparative Perspectives: UK, USA, and Pakistan
The discussion of regulating mediation is not confined to one jurisdiction. The UK is primarily a voluntary system, but the government has encouraged mediation almost unequivocally in family disputes. The Family Mediation Council (FMC) constructed an accrediting standard which stipulated that mediators must adhere to extensive training, supervision and codes of practice. While this is not a statutory regulation, the system has improved the confidence of the public and provided a good level of consistency without taking extraordinary legislative actions.
In the US, regulation is state-specific and therefore noticeably inconsistent. Florida is an example of state court affiliated mediators who are required to have a high level of certification, take ethics training and a continuing education requirement. This model identifies how state-specific regulation can improve the quality threshold without crushing creativity. In jurisdictions that do not have anything close to such requirements the variability of quality can be staggering, and this variability makes the process less predictable which in turn compromises trust in the process. Overall, this discrepancy pointed to the necessity of having baseline standards, but with scope for state specific flexibility. The American Bar Association has also called for national ethical standards for mediation to reduce the volatility of being inconsistent while providing a certified mediator and thereby protecting the parties to mediation.
In contrast, Pakistan has not even gotten close to regulated mediation and is still in the early stages of development. The Punjab Alternate Dispute Resolution Act, 2019, has positional mediation within the framework for some civil and commercial disputes. However, without a national accreditation authority, the profession remains unstructured. The majority of mediators, while experienced and knowledgeable about mediation practice and procedures, are not formally trained or are not subject to ethical supervision. Consequently, there are questions about competence and impartiality on the part of many mediators. In addressing this concern, Pakistan may choose to develop a mixed system, with court supervised accreditation for legal cases and ethical standards developed by private entities, similar to the FMC system in the UK. Also, public education campaigns will remain a focal point for developing confidence in mediation and the need to employ mediation in place of formal litigation.
Ethical Implications of Regulation
Regulation does not simply address process concerns; it also relates to the issue of ethics. Mediation concerns sensitive disputes exemplified by family cases, employment discrimination, and even commercial fraud. In the case of sensitive disputes, the mediator’s aptness and impartiality may directly have a bearing on the rights and psychological well-being of a party. Without regulation, crooked mediators may manipulate vulnerable people, or would remain unaware of the potential to coerce the outcomes through settlement tactics due to lack of professional training. Regulated ethics, cultural competency, and power imbalance management training may be ways of managing this level of abuse while respecting the trust repose in the mediation process by the public.
Additionally, ethical regulation ensures confidentiality, one of the key protections of mediation. Depending upon the demographic of population and their ability to access these processes, unless mediation has a coherently reformulated framework with enforcement, breaches in confidentiality may also negatively affect trust for subsequent parties accessing no useful alternatives to help them resolve their issues. There are jurisdictions in the USA where ethics boards have been created to consider complaints of mediators professional misconduct. The UK’s FMC has also simple regulations with Continuing Professional Development (CPD) training for mediators by mandating ethical understanding to change overtime with changes to society and the law.
Proposed Synthesis: A Co-Regulatory Framework
The answer is neither simple nor truly a matter of a free market or state-controlled system but can be of a very sophisticated, well-balanced middle road. The goal must be to professionalize this practice without losing the values at its core. A model of co-regulation, which already manifests in some areas of the European Union in the Mediation Directive provides a way forward that brings together self-regulation with light statutory regulation.
This structure will work at two levels. Professional mediation associations will first control quality, setting high accreditation standards, requiring continuing education, and controlling compliance with ethical codes through disciplinary action. The second layer will be government legislation to protect the public interest, which could entail transparency of mediator qualifications, appropriate confidentiality restrictions, and access to an appropriate complaints process. This two-tiered approach allows for freedom and flexibility yet provides the necessary accountability.
Future Directions and Policy Recommendations
To strengthen perceptions of mediation as a method of achieving justice, jurisdictions can consider the following steps:
- Set up a national or regional mediator accreditation system, or develop a model similar to the process used in the UK via the FMC, and via the court-connected certification programs in Florida.
- Create independent regulatory bodies that have the power to investigate ethical misconduct and the ability to impose sanctions.
- Implement training programs for mediations in highly sensitive disputes, such as family disputes and workplace disputes.
- Encourage global cooperation to create cross-border mediation standards, especially when commercial disputes contain conflict of laws in more than one jurisdiction.
- Begin a campaign to help citizens understand how to choose competent mediators and raise awareness among the citizenries.
- Develop mediator performance appraisal reviews that will create ongoing accountability and display continuing skill development.
- Provide financial support or subsidies for training programs on mediation in the developing country contexts, like Pakistan, in an effort to build institutional capacity.
Conclusion
The path of mediation toward mature regulation is emphasized and requires a delicate balance. Mediation is still developing and if regulations happen too soon and are too heavy-handed, it may impede the ability of mediation to adapt. That said, the absence of regulation creates risks to ethics, capacity for quality variation, and lower levels of public trust. A co-regulatory approach to professional self-regulatory elements with limited legislative protections is a balanced way to move forward. The shift is crucial for mediation to fulfill its potential as a transformative tool of 21st century justice.