I blew out my knee twice playing college football As a consequence I have more than a passing familiarity of the anatomy of the human knee. Does that knowledge of the knee’s anatomy mean that I am competent to perform knee surgery? The answer is obvious and despite my personal familiarity with the anatomy of the knee you do not want me operating on your knee. Similarly, mediator competence needs to be viewed as more than familiarity with the subject matter of the matter to be mediated.
The Model Standards for the Conduct of Mediators (“the Model Standards”) obligates a mediator to accept a mediation only when the mediator has the necessary competence to “…satisfy the reasonable expectations of the parties.” Model Standard IV. Does this just mean familiarity with the subject matter to be mediated? The answer is no. The Model Standards specifically point to training, experience in mediation, skills, cultural understandings and other qualities as factors in determine mediator competence. Model Standard IV does not even specifically mention subject matter familiarity unless that fits generically under the catch all of “other qualities”. Further emphasizing this point is the portion of the rule which encourages the mediator to attend educational programs to maintain and advance the mediator’s knowledge and skills related to mediation as a means of establishing competence in order to meet the reasonable expectations of the parties. Model Standard IV A2.
Having substantive knowledge of the subject matter of the mediation can certainly be helpful but far too many people looking to hire a mediator place almost exclusive emphasis on subject matter experience. Such substantive knowledge alone does not mean necessary competence to satisfy the expectations of the parties for purpose of mediation. The most important aspect, however, when looking for a mediator is to find one that is competent in the skills and knowledge of mediation. After all the mediator has a duty to conduct a quality process and that is hard to do if the mediator does not know or understand what a quality process entails.