The professionalization of mediation
University of British Columbia
Master of Laws - LLM
Dispute resolution processes can be separated into two categories; the formal and the informal. Though the boundaries of these divisions are fluid, formal processes tend to embody a greater number of structural attributes than their less formal counterparts. The conventional adversarial process exemplifies the first type - a process characterized by a series of clearly defined legal rules and procedures - and the mediation process is representative of the second - a dispute resolution process which lacks any semblance of formal structure. The relationship between formal and informal methods of dispute processing is symbiotic. It is common to address criticisms of the one process by introducing features of the other. Attacks on adversarial justice culminate in the removal or softening of many of its formal features. Likewise, the response to complaints about mediation is the introduction of formal attributes. The recent growth of mediation has generated considerable criticism of this dispute processing venue and as anticipated one response is the suggestion that mediation be formalized. The formal feature being considered as a remedy is the creation a class of professional mediators. This thesis questions the value of formalizing the mediation process. Professionalization has the potential to nullify many of the benefits that mediation sought to bring to dispute resolution. The evidence intimates that professional regulation increases costs, suppresses diversity of occupational practice and inaugurates a form of inequality. These empirical manifestations suggest that when this institutional structure is superimposed onto the mediation process, there is a distinct possibility that professionalization will eliminate the advantages associated with informal dispute resolution and recreate many of the problems encountered with the adversarial justice process. Two primary candidates of professional regulation are being considered, licensure and certification. This thesis suggests that regardless of the regulatory scheme selected, much of the social utility of mediation is lost when this occupation is regulated. In the final analysis, the issue becomes how to achieve an appropriate equilibrium between formal and informal dispute resolution processes. Injecting a moderate amount of professionalism into the mediation process may achieve this balance but not without sacrificing some of the many advantages of informalism.
Law, Peter A. Allard School of