Proposed Standards of Practice for Lawyers Who Conduct Divorce and Family Mediation
|
July 1997 |
| Dedication | |
| Preamble | |
| Standard I | A family mediator should recognize that mediation is based on the principle of self-determination by the parties. |
| Standard II | A family mediator should be qualified by education, training and temperament to undertake the mediation and satisfy the reasonable expectations of the parties |
| Standard III | A family mediator should define and describe the process of mediation andassess the capacity of the parties to mediate before the parties reach an agreement to mediate |
| Standard IV | A family mediator should disclose all actual and potential conflicts of interestreasonably known to the mediator. After disclosure, the mediator should decline tomediate unless the parties choose to retain the mediator. The need to protect against conflicts of interest also governs the conduct that occurs during and after the mediation |
| Standard V | A family mediator should fully disclose and explain the basis of compensation, fees and charges to the parties |
| Standard VI | A family mediator should conduct the mediation in an impartial manner. |
| Standard VII | A family mediator should insure that the parties make decisions based on sufficientinformation and knowledge. |
| Standard VIII | A family mediator should maintain the reasonable expectations of the parties with regard to confidentiality. |
| Standard IX | A family mediator should effectively assist parents in determining how to promote the best interests of their children. |
| Standard X | A family mediator should be trained to recognize a family situation involving child abuse or neglect and should take appropriate steps to shape the mediation process accordingly |
| Standard XI | A family mediator should be trained to recognize a family situation involving domestic violence and take appropriate steps to shape the mediation process accordingly. |
| Standard XII | A family mediator should withdraw from further participation in the mediation process when the mediator reasonably believes that further participation will not further the parties self-determination |
| Standard XIII | A family mediator should be truthful in the advertisement and solicitation for mediation |
| Standard XIV | A family mediator should improve the practice of mediation |
These Standards are dedicated to the memory of Kenneth D. Kemper, a valued colleague on the Task Force which drafted them and a New York matrimonial lawyer. Ken worked diligently to reduce the trauma of divorce and separation on children and families and left us too early.
These model Standards of Conduct for lawyers who serve as divorce and family
mediators are intended to perform three major functions: (1) to serve as a guide for the
conduct of family mediators; (2) to inform the mediating parties; and (3) to promote
public confidence in mediation as a process for resolving disputes.
The Standards draw on existing codes of conduct for mediators and take into account issues and problems that have surfaced in divorce and family mediation practice. They are offered in the hope that they will serve an educational function and provide assistance to individuals, organizations, and institutions involved in divorce and family mediation.
Divorce and family mediation ( family mediation or mediation ) is a process in which an impartial third party -- a mediator --facilitates the resolution of a dispute between family members by promoting their voluntary agreement (or "self-determination"). The family mediator facilitates communications, promotes understanding, focuses the family members on their interests, and seeks creative solutions to problems that enable the family members to reach their own agreements.
Family mediation is not a substitute for the need for family members to obtain independent legal advice or counseling or therapy. Nor is it appropriate for all families. Experience has, however, established that, as a component of a multifaceted dispute resolution system, family mediation is a valuable option for many families because it can: (1) increase the self-determination of family members; (2) promote the best interests of children; and (3) reduce the economic and emotional costs involved in resolution of family disputes.
Experience has also established that lawyers with knowledge of family law and the necessary special training and aptitudes can effectively perform the mediator's role. It is to such lawyers that these Standards are addressed. These Standards can also provide helpful guidance to non-lawyers who are engaged in family mediation, as many of the problems they address are common to all family mediators, regardless of professional background.
Effective mediation requires that the family mediator be qualified by training, experience and temperament; that he or she be impartial; that the participants reach their decisions voluntarily; that their decisions be based on sufficient factual data; that the best interests of children be taken into account and that the mediator be prepared to identify families whose history includes domestic violence or child abuse and take appropriate measures.
A family mediator should recognize that mediation is based on the principle of self-determination by the parties.
A. Self-determination is the fundamental principle of family mediation. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement.
B. The primary role of a family mediator is to facilitate a voluntary resolution of a dispute. A family mediator should facilitate the development, full disclosure, and evaluation of relevant factual information for parties to explore and negotiate. The mediator can provide information about the process, raise issues, and help parties explore and evaluate options.
C. A family mediator should encourage the parties to seek information and advice from their attorneys during the mediation process and to seek information and advice from other professionals, where appropriate.
D. A party may withdraw from family mediation at any time.
A family mediator should be qualified by education, training and temperament to undertake the mediation and satisfy the reasonable expectations of the parties.
A. To effectively perform the role of family mediator, a lawyer should:
1. be knowledgeable about family law;
2. be aware of the psychological impact of divorce and separation on parents and children;
3. have special education and training in the process of mediation;
4. have special education and training in domestic violence and child abuse and neglect.
B. Family mediators should have information available for parties regarding their relevant training, education and expertise.
C. Family mediators should accept cases only when they can satisfy the reasonable expectations of the parties concerning the timing of the process.
D. Individual states should set standards and qualifications for family mediators including procedures for performance-based evaluations and for grievances against mediators. In developing these standards and qualifications, state regulators should consult with appropriate professional groups, including professional associations of family mediators.
E. The requirements for appearing on a list of family mediators appointed or recommended by a court should be made public and available to all interested persons.
F. When family mediators are appointed by a court or other institution, the appointing agency should make reasonable efforts to insure that each mediator is qualified for the appointment.
A family mediator should define and describe the process of mediation and assess the capacity of the parties to mediate before the parties reach an agreement to mediate.
A. Before family mediation begins a mediator should provide the parties with an overview of the process and its purposes, including:
1. informing the parties that family mediation is consensual in nature, that a mediator is an impartial facilitator, and that a mediator may not impose or force any settlement on the parties;
2. distinguishing family mediation from therapy, marriage counseling, the provision of legal advice, or other forms of dispute resolution such as arbitration or litigation;
3. advising the parties that mediation is one of several alternative processes potentially available to resolve their dispute and describing the advantages and disadvantages of the alternatives to mediation;
4. informing the parties about the need to employ independent legal counsel throughout the mediation process;
5. discussing the issue of separate sessions with the parties, including a description of the circumstances in which the mediator may meet alone with either of them or with any third party and the conditions of confidentiality concerning these separate sessions;
6. informing the parties that the presence or absence of other persons at a mediation depends on the agreement of the parties and the mediator, unless the mediator believes that the presence of another person is required because of a history or threat of violence or other serious coercive activity by a party.
7. describing the obligations of confidentiality on the mediator and the parties;
8. advising the parties of the circumstances under which the mediator may terminate the mediation process and that a party has a right to terminate mediation at any time.
B. The parties should sign a written agreement to mediate their dispute and the terms and conditions thereof within a reasonable time after first consulting the family mediator.
C. The family mediator should assess the capacity and willingness of the parties to mediate before proceeding with the mediation. A mediator should not agree to conduct the mediation if the mediator believes one or more of the parties is not able to participate or is unwilling to participate in good faith.
A family mediator should disclose all actual and potential conflicts of interest reasonably known to the mediator. After disclosure, the mediator should decline to mediate unless the parties choose to retain the mediator. The need to protect against conflicts of interest also governs the conduct that occurs during and after the mediation.
A. A conflict of interest is a dealing or relationship that might create an impression of possible bias.
B. A family mediator should disclose any biases or strong views relating to the issues to be mediated before the mediation begins.
C. In the event that the family mediator has represented one of the participants before, the mediator should not undertake the mediation.
D. A family mediator should avoid the appearance of conflict of interest both during and after the mediation:
1. the mediator should not represent either party or the parties jointly during or after the mediation process in any matter;
2. the mediator should avoid conflicts of interest in recommending the services of other professionals.
E. Potential conflicts of interest may arise between administrators of mediation programs and mediators and there may be strong pressures on the mediator to settle a particular case or cases. The mediator's commitment must be to the parties and the process. Pressure from outside of the mediation process should never influence the mediator to coerce parties to settle.
A family mediator should fully disclose and explain the basis of compensation, fees and charges to the parties.
A. The parties should be provided with sufficient information about fees at the outset of mediation to determine if they wish to retain the services of the mediator.
B. The mediator's fees shall be reasonable, considering among other things the mediation service, the type and complexity of the matter, the expertise of the mediator, the time required, and the rates customary in the community for mediation services and rates charged by the mediator for other professional services that the mediator is qualified to provide.
C. The parties written agreement to mediate their dispute should include a description of their fee arrangement with the mediator.
D. A mediator should not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement.
E. Mediators who share a fee should disclose the nature of their relationship to the participants and hold to standards of reasonableness of effort in determining the allocation of fees.
F. A mediator should not accept a fee for referral of a matter to another mediator or to any other person.
G. A mediator who withdraws from a mediation should return any unearned fee to the participants.
A family mediator should conduct the mediation in an impartial manner.
A. A mediator should avoid conduct that gives the appearance of partiality towards one of the parties.
B. A mediator should guard against partiality or prejudice based on the parties personal characteristics, background or performance at the mediation.
C. A mediator should not allow a mediation to be unduly delayed by the parties or their representatives.
A family mediator should insure that the parties make decisions based on sufficient information and knowledge.
A. The mediator should facilitate adequate disclosure so that the parties can make informed financial and other decisions.
B. The mediator should facilitate the parties acquisition and development of information about the needs of the children so that the parties can make informed parenting decisions.
C. The mediator should facilitate the parties understanding of the significance of all information disclosed during the mediation process.
D. The mediator may recommend to the parties that either or both obtain expert consultations in the event that the mediator believes that additional knowledge or understanding is necessary for balanced negotiations.
E. The mediator should facilitate the parties understanding of the applicable doctrines and practices of family law before reaching an agreement. The mediator may define the legal issues that may influence the parties resolution of their dispute, but should refrain from giving the parties legal advice based upon the mediator'sinterpretation of the law as applied to the facts of their situation.
F. The mediator should recommend to the parties that they obtain independent legal representation before concluding an agreement.
G The mediator should allow counsel for the parties to be present at the mediation sessions. If only one party is represented, the mediator may exclude counsel from participation in the mediation session.
H. With the agreement of the parties and their counsel, the mediator may elect to draft the agreements and ancillary papers that document the parties resolution of their dispute to be filed with the court. The mediator should recommend to the parties that any binding agreement drafted by the mediator be reviewed by independent counsel for the parties before it is signed and filed with the court.
A family mediator should maintain the reasonable expectations of the parties with regard to confidentiality.
A. A mediator should not disclose any matter that a party expects to remain confidential unless given permission by all parties or unless required by law, other public policy or other provision of these Standards.
B. The mediator should discuss the parties expectations of confidentiality with them prior to undertaking the mediation.
C. The mediator should inform the parties of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting prior to undertaking the mediation.
D. The mediator shall disclose a party's threat of violence against another party likely to result in imminent death or substantial bodily harm to the threatened party and the appropriate authorities.
E. If the mediator holds private sessions with a party, the obligations of confidentiality with regard to those sessions should be discussed and agreed upon prior to their being undertaken.
F. If subpoenaed or otherwise noticed to testify or to produce documents the mediator should inform the parties immediately to afford any of them an opportunity to quash the process. The mediator should not testify or provide documents in response to a subpoena which the mediator reasonably believes would violate an obligation of confidentiality to the parties without an order of the court.
G. Confidentiality should not be construed to limit or prohibit the effective monitoring, research, or evaluation of mediation programs by responsible individuals. Under appropriate circumstances, researchers may be permitted to obtain access to statistical data and, with the permission of the parties, to individual case files, observations of live mediations, and interviews with participants.
A family mediator should effectively assist parents in determining how to promote the best interests of their children.
A. The mediator should emphasize that the parents are, in most instances, in the best position to fashion a parenting arrangement that serves the child's best interests.
B. The mediator should inform parents about the range of options available for post-divorce or separation parenting arrangements and the costs and benefits thereof.
C. The mediator should provide parents with information about community resources and programs that can help them and the children cope with the consequences of family reorganization and make appropriate referrals if necessary.
D. The mediator should inform parents about the problems that continuing conflict creates for children's development and discuss with them what steps might be taken to ameliorate the effects of conflict on the children.
E. The mediator should help the parents develop a parenting plan which covers the child's physical residence and parental decision-making responsibilities for the child with appropriate levels of detail as agreed to by the parties.
F. The mediator should advise parents that parenting plans may need to be revised as the developmental needs of the child evolve over time and help the parents develop appropriate dispute resolution mechanisms to facilitate future revisions.
G. The mediator should be sensitive to the impact of culture and religion on parenting philosophy and other decisions.
H. The mediator should advise a lawyer for the child or guardian ad litem of their ability to participate in the mediation sessions. The lawyer for the child or guardian ad litem should participate in the mediation sessions at their option and review resulting agreements insofar as they relate to the children.
I. Except in extraordinary circumstances, the child should not participate in the mediation process without the consent of both parents and the child's guardian ad litem or lawyer.
J. Prior to including the child in the mediation process, the mediator should consult with the parents and the lawyer or guardian ad litem for the child about whether a child should participate in the mediation process and the form of that participation.
K. The mediator should inform all concerned about the available options for the child's participation (which may include personal participation, an interview with a mental health professional or mediator reported to the parents or a videotape statement) and discuss the costs and benefits of each with the participants.
A family mediator should be trained to recognize a family situation involving child abuse or neglect and should take appropriate steps to shape the mediation process accordingly.
A. As used in these Standards, child abuse or neglect is defined by applicable state law.
B. The mediator should be knowledgeable about the symptoms and dynamics of child abuse and neglect and the governing laws and procedures and attend appropriate training programs on the subject. A mediator should not undertake a mediation in which the family situation has been assessed to involve child abuse or neglect without adequate training.
C. If the mediator has reasonable ground to believe that the child is abused or neglected within the meaning of the jurisdiction's child abuse and neglect laws, the mediator shall report the suspected abuse to the appropriate authorities.
1. The mediator should consider making appropriate referrals for the parents and children for therapy and assessment.
2. The mediator should consider suspending the mediation process until the allegations are resolved.
A family mediator should be trained to recognize a family situation involving domestic violence and take appropriate steps to shape the mediation process accordingly.
A. As used in these Standards, domestic violence is defined by applicable state law.
B. A mediator should be knowledgeable about the symptoms and dynamics of domestic violence and other forms of domestic abuse and the governing laws and procedures and attend appropriate training programs on these subjects. A mediator should not undertake a mediation in which the family situation has been assessed to involve domestic violence without adequate training.
C. A mediator should make a reasonable effort to screen for the existence of domestic violence prior to entering into an agreement to mediate with the parties. The mediator should continue to be alert to the possible need for further screening for domestic violence throughout the mediation process.
D. If domestic violence appears to be present the mediator should consider taking the following measures:
1. holding separate sessions with the parties even without the agreement of all parties;
2. strongly encouraging the parties to be represented by counsel throughout the mediation process if they are not already;
3. establishing appropriate security arrangements;
4. allowing a friend, representative or attorney to attend the mediation sessions to support the victim of domestic violence;
5. referring the parties to appropriate community resources; 6. suspension or termination of the mediation sessions, with appropriate steps to protect the safety of victims.
D. The mediator should understand the impact of witnessing violence between parents on children and make appropriate referrals, if necessary, for therapy and assistance to both parents and children.
E. The mediator should ensure that victims of domestic violence consider whether parenting plans resulting from mediation protect the physical safety and psychological well-being of themselves and their children.
A family mediator should withdraw from further participation in the mediation process when the mediator reasonably believes that further participation will not further the parties self-determination.
A. Circumstances under which the mediator should consider withdrawing include, but are not limited to:
1. If a party has committed or is threatening to commit acts constituting domestic violence or child abuse or neglect against the other or the child;
2. if a party is unable to participate further in the mediation due to drug, alcohol, or other physical or mental incapacity;
3. if the parties are about to enter into an agreement that the mediator reasonably believes to be unconscionable;
4. if a party or parties is using the mediation to further illegal conduct;
5. if a party's conduct indicates that the party is not participating in the mediation in good faith.
B. If the mediator does withdraw, the mediator should take all reasonable steps to minimize prejudice to the parties which may result from withdrawal.
A family mediator should be truthful in the advertisement and solicitation for mediation.
A. Mediators should refrain from promises and guarantees of results.
B. In an advertisement or other communication, a mediator may make reference to meeting state, national, or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been duly granted the requisite status.
A family mediator should improve the practice of mediation.
A. Mediators should use their knowledge about mediation to help educate the public about the process.
B. Mediators should help make mediation services widely available to t
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