In late 2020, I received a letter from the judge who presides over the New Jersey Bankruptcy Court’s mediation program inquiring as to whether I satisfied New Jersey’s annual mediation skills requirements. I immediately asked myself, “What requirements?”
I pulled out the local rules and found that the New Jersey Bankruptcy Court local rules in D.N.J. LBR 9019-1(c)(1) require the following of its mediators: (a) at least 10 years of professional experience in their field of expertise; (b) in good standing; (c) for applicants who have little to no mediation experience, participation in a mediation-skills course for a minimum of 20 hours, followed by an advanced mediation-skills course for a minimum of 20 hours, and for new mediators, observation of mediations; and (d) completion of four hours a year of continuing mediation training. As with any well-drafted rule, there is an exception, a waiver of training and mediation experience where an acceptable substitute for the required training is provided and approved.[1]
Several months later, in preparing this article, I canvassed other jurisdictions to see whether they had similar training requirements. My curiosity was piqued, because I just read the current monthly issue of New Jersey’s state law journal, which contained no fewer than four pages of advertisements by law firms offering mediation services.
Although not applicable to bankruptcy, since I am based in New Jersey and am fully aware of the state’s substantial mediation program, having been a partner with the well-respected former New Jersey Appellate Division Judge William Drier (ret.), who is the New Jersey mediation pioneer and a well-renowned mediator and arbitrator since early 1990, I must venture into the state court arena for a brief moment. I found that Rule 1:40-12 of the New Jersey State Court rules sets forth the requirements for a person to be listed on the New Jersey state court’s “roster” of mediators. The requirements differ depending on the court and area of law.
Requirements include, for family law matters, completion of a 40-hour course approved by the court that covers basic mediation skills and specialized training in family and child development, family law and divorce procedures. For civil, general equity and probate matters, the requirement is to complete 18-hour basic mediation training approved by the court and at least five hours of mentoring in at least two cases by an experienced “roster” mediator. Wow, that’s a lot of training. When looking for such training, I found only one extensive course that was offered twice a year for five eight-hour days spanning five weeks. I also found significant advanced mediation training courses. When endeavoring to take the course, I was met with a scheduling conflict and was told I must attend each session because it is structured in a “role-playing format.” I have no doubt that it is, but the best way to learn, in my opinion, is the old “trial and error” method.
Getting back to bankruptcy, it appears that the mediation training rules differ from jurisdiction to jurisdiction. In Delaware, Local Rule 9019-2 addresses the district’s application and certification process. Local form 110A requires a disclosure of any training; however, the rule does not provide for any requisite training. In the Southern District of New York, the bankruptcy court has adopted “Mediation Procedures,” which are silent on training, except for the requirement of having practiced for at least four years under the laws of the State of New York as a professional. Its mediation program provides a guide titled, “How to apply for inclusion on court’s register of mediators,” which sets forth a mediator’s qualification requirement of 16 hours of mediation training, preferably from a program with a role-playing format. The Southern District of Texas is silent on mediator requirements.
Since I am currently on the New Jersey Bankruptcy Court mediator panel, I needed training. I started in a frenzy to locate courses by doing the normal thing: Googling “mediation training.” However, with the pandemic and the virtual world that we have not yet left, programs with “role-playing” were hard to find. ABI’s 40-Hour St. John’s Mediation Training Program appears to have been last offered in 2019. I hope it will return. New Jersey’s local programs, which would have included virtual “role-playing,” had concluded and were not being offered until 2022. I was left with a slew of “on-demand” replays. How good could they be? As it turns out, they are not as good as in person, but they do satisfy the requirements.
I recalled that I attended the ABI Mediation Committee’s live webinar titled, “Facilitation Skills for Subchapter V Trustees” and the Mediation Committee’s presentation at the ABI Annual Spring Meeting titled, “When Mediation Gets Messy: Ethical Dilemmas.” Both satisfied the requirements (yippee!). Upon further reflection, both programs provided significant benefit because they shared experiences from other mediators. Both of these programs added value to my mediation skill set. The former addressed the similarities between the relatively new subchapter V cases and mediation as a result of a subchapter V trustee being described as a de facto mediator and his/her mandate to “facilitate a consensual plan of reorganization.” The latter walked through a series of hypotheticals and held a lively discussion on ethical issues that can arise in mediation and how all parties, including the mediator, must remain cognizant of ethical compliance. Both programs remain accessible for viewing.
Still in need of satisfying my training requirements, I found two courses through my firm’s free Practicing Law Institute access, Negotiation Skills Essentials 2021: “Considering Alternatives to Trial: Alternative Dispute Resolutions and Mediations” and “Online Commercial Mediation and Arbitration Best Practices — The Neutral’s and Advocate’s Perspectives.” The former was presented by experienced mediators, who doubled as law professors teaching, among other things, mediation skills (I never knew this was now part of the law school curriculum; I am aging myself). They explored in broad strokes (1) whether to mediate, (2) how to find and choose the right mediator for the matter at issue, (3) different types of mediation styles, (4) preparing yourself for mediation, (5) preparing your client for mediation, and (6) preparing a mediation statement. Each topic could easily provide content for a standalone article or lengthy webinar. The first program had clearly been prepared at the outset of the pandemic and discussed how to prepare for, approach, appear and proceed with a virtual mediation —broad strokes, but informative. The second program made clear that virtual mediations are here to stay and will continue to be utilized even when the pandemic is over — which means that future seminars on the handling of same will necessarily be in the offing as the virtual process continues to change.
With the above, I satisfied my New Jersey training requirements. I think. Just as an add-on, I advised the New Jersey mediator panel coordinator that I am the Newsletter Editor of ABI’s Mediation Committee, which meets every month to prepare and review newsletter items. Both of these opportunities provide very instructive mediation skills. We discuss our educational programs, weekly hypothetical presentations, and responses and other items germane to mediation, mediators and mediation participants.
After addressing my frenzy in satisfying my local mediation requirements, I brought my escapade to the attention of the ABI Mediation Committee. I told them that the various presentations that I listened to were enlightening, instructive and helpful to me as a mediator. One of our committee members suggested the Boston Bar Association’s programs, “Mediation for Consumer Bankruptcy Cases” and “Mediation in Small Business and Consumer Bankruptcy Cases,” or ABI’s 2019 Three-Hour Bankruptcy Mediation Training program. New York Law School also offers various training programs on mediation and other forms of alternate dispute resolution, which can be accessed at https://www.nyls.edu/academics/specialty-areas/centers-and-institutes/a….
I have always thought my many years of practice, and the many cases as an advocate that I settled, were sufficient skills for me. I was incorrect. Role-playing, hearing other mediators discuss the multitude of segments to a mediation (e.g., preparation of client, selection of mediator, preparation of mediation statements) and their experiences, and hearing the negotiating skills of others, all of which can be obtained through program training, truly does improve the mediator skill set. I know it has for me.
If you need suggestions on obtaining mediation training to either satisfy mediator panel requirements or to simply improve your skill set, please reach out to ABI Mediation Committee members. We will make suggestions and point you in the right direction.