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<xTITLE>Establishing Standards for Online Domestic Relations Mediation</xTITLE>

Establishing Standards for Online Domestic Relations Mediation

by Jim Melamed
July 2019 Jim Melamed

Introduction

Leading national family mediation organizations, including Mediate.com, have abided by common standards for divorce and family mediation for over two decades. Do these standards need to be updated to address issues of online mediation? If so, how?

In August 2000, the Association of Family & Conciliation Courts (AFCC), Academy of Family Mediators (AFM) and additional national and state mediation organizations, including Mediate.com, adopted Model Standards of Practice for Family and Divorce Mediation.

Andrew Schepard of Hofstra University School of Law led this extensive standards development effort, as described in the Foreword to The Model Standards of Practice for Family and Divorce Mediation. In reviewing the Model Standards and Andrew's Foreword, it is impressive how capably these standards have stood the test of time. Upon recent inquiry of leadership at AFCC, the Association for Conflict Resolution (ACR) and the Academy of Professional Family Mediators (APFM), it was determined that no leading organization, including Mediate.com, has yet modified the Model Standards since adoption in the year 2000.

The main question for purpose of this article is whether these well-developed and commonly adopted standards for domestic relations mediation should now be updated to address the fact that increasing portions of mediation communications, and sometimes ALL mediation communications, now take place "online." Are the existing standards good enough or should they be updated? If updated, what issues might that update address?

Recognizing that this will not be an overnight accomplishment, I have decided to break this consideration into 3 parts:

  • Recommended text changes to existing Model Standards;
  • Recommended new standards to make the Model Standards consistent with emerging online dispute resolution standards from the International Council for Online Dispute Resolution (ICODR.org); and
  • Recommended new standards for optimizing the use of online communications in domestic relations mediation and following mediation.
This separation of recommendations into 3 sections is to ease our analysis. Once substantive consensus is reached on all such recommendations, it will almost certainly make sense to assign a "drafting committee" to seek to best integrate agreed-upon adjustments and additions. For now, however, to keep things simple and clear, let's get the discussion going by considering 3 types of possible updates.

Recommended Text Changes to Existing Model Standards

Model Standards of Practice for Family and Divorce Mediation

Recommended text changes in bold.
Only sections with recommended changes are included.

Standard III
A family mediator shall facilitate the participants’ understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.
  1. Before family mediation begins a mediator should provide the participants with an overview of the process and its purposes, including: 

    1. informing the participants that reaching an agreement in 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 other processes designed to address family issues and disputes;
    3. informing the participants that any agreements reached will be reviewed by the court when court approval is required;
    4. informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process;
    5. advising the participants, in appropriate cases, that they can seek the advice of religious figures, elders or other significant persons in their community whose opinions they value;
    6. discussing, if applicable, the issue of separate sessions and online sessions with the participants, a description of the circumstances in which the mediator may meet alone, face-to-face and online, with any of the participants, or with any third party and the conditions of confidentiality concerning these separate sessions;
    7. informing the participants that the presence or absence of other persons at a mediation, including attorneys, counselors or advocates, depends on the agreement of the participants and the mediator, unless a statute or regulation otherwise requires or the mediator believes that the presence of another person is required or may be beneficial because of a history or threat of violence or other serious coercive activity by a participant.
    8. describing the obligations of the mediator to maintain the confidentiality of the mediation process and its results as well as any exceptions to confidentiality;
    9. advising the participants of the circumstances under which the mediator may suspend or terminate the mediation process and that a participant has a right to suspend or terminate mediation at any time.
  2. The participants 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.
  3. The family mediator should be alert to the capacity and willingness of the participants to mediate before proceeding with the mediation and throughout the process. A mediator should not agree to conduct the mediation if the mediator reasonably believes one or more of the participants is unable or unwilling to participate.
  4. Family mediators should not accept a dispute for mediation if they cannot satisfy the expectations of the participants concerning the timing of the process.

***

Standard V
A family mediator shall fully disclose and explain the basis of any compensation, fees and charges to the participants.
  1. The participants 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.
  2. The participants’ written or online agreement to mediate their dispute should include a description of their fee arrangement with the mediator.
  3. A mediator should not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement.
  4. A mediator should not accept a fee for referral of a matter to another mediator or to any other person.
  5. Upon termination of mediation a mediator should return any unearned fee to the participants.
Standard VI
A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.
  1. The mediator should facilitate full and accurate disclosure and the acquisition and development of information during mediation so that the participants can make informed decisions. This may be accomplished by encouraging participants to consult appropriate experts.
  2. Consistent with standards of impartiality and preserving participant self-determination, a mediator may provide the participants with information that the mediator is qualified by training or experience to provide. The mediator shall not provide therapy or legal advice.
  3. The mediator should recommend that the participants obtain independent legal representation before concluding an agreement.
  4. If the participants so desire, the mediator should allow attorneys, counsel or advocates for the participants to be present at the mediation sessions, be that face-to-face or online.
  5. With the agreement of the participants, the mediator may document the participants’ resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.
Standard VII
A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.
  1. The mediator should discuss the participants’ expectations of confidentiality with them prior to undertaking the mediation. The written or online agreement to mediate should include provisions concerning confidentiality.
  2. Prior to undertaking the mediation, the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting.
  3. The mediator shall disclose a participant’s threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon as permitted by law.
  4. If the mediator holds private face-to-face or online sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon prior to the sessions.
  5. If subpoenaed or otherwise noticed to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.

***

Standard X
A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.
  1. As used in these Standards, domestic abuse includes domestic violence as defined by applicable state law and issues of control and intimidation.
  2. A mediator shall not undertake a mediation in which the family situation has been assessed to involve domestic abuse without appropriate and adequate training.
  3. Some cases are not suitable for mediation because of safety, control or intimidation issues. A mediator should make a reasonable effort to screen for the existence of domestic abuse prior to entering into an agreement to mediate. The mediator should continue to assess for domestic abuse throughout the mediation process.
  4. If domestic abuse appears to be present the mediator shall consider taking measures to insure the safety of participants and the mediator including, among others:
    1. establishing appropriate security arrangements;
    2. holding separate sessions or online sessions with the participants even without the agreement of all participants;
    3. allowing a friend, representative, advocate, counsel or attorney to attend the mediation sessions;
    4. encouraging the participants to be represented by an attorney, counsel or an advocate throughout the mediation process;
    5. referring the participants to appropriate community resources;
    6. suspending or terminating the mediation sessions, with appropriate steps to protect the safety of the participants.
E. The mediator should facilitate the participants’ formulation of parenting plans that protect the physical safety and psychological well-being of themselves and their children.

***

Recommended New Standards Consistent With Standards from International Council for Online Dispute Resolution (ICODR.org)

Standard XIV - Online Mediation
(7/17/19)
(see www.ICODR.org/Standards as source)


A.    Accessible: Online Mediation should be easy for parties to find and participate in and not limit their right to representation. Online Mediation should be available through both mobile and desktop channels, minimize costs to participants, and be easily accessed by people with different physical ability levels.

  1. Accountable: Online Mediation providers should be continuously accountable to participants and the legal institutions and communities that are served.

  2. Competent: Online Mediation providers must have the relevant expertise in dispute resolution, legal, technical execution, language, and culture required to deliver competent, effective services in their target areas.  Online Mediation services must be timely and use participant time efficiently.

  3. Confidential: Online Mediation providers must maintain the confidentiality of party communications in line with policies that must be made public around: a) who will see what data, and b) how that data can be used.

  4. Impartial: Online Mediation must treat all participants with respect and dignity. Online Mediation may enable often silenced or marginalized voices to be heard, and ensure that offline privileges and disadvantages are not replicated in the Online Mediation process.

  5. Fair/Impartial/Neutral: Online Mediation providers must treat all parties impartially and in line with due process, without bias or benefits for or against individuals, groups, or entities.  Conflicts of interest of providers, participants, and system administrators must be disclosed in advance of the commencement of Online Mediation services.

  6. Legal: Online Mediation providers must abide by and uphold the laws in all relevant jurisdictions.

  7. Secure: Online Mediation providers must ensure that data collected and communications between those engaged in Online Mediation is not shared with any unauthorized parties.  Users must be informed of any breaches in a timely manner.

  8. Transparent: Online Mediation providers must explicitly disclose in advance: a) the form and enforceability of mediation outcomes, and b) the risks and benefits of participation. Data in Online Mediation should be gathered, managed, and presented in ways to ensure it is not misrepresented or out of context.
 

Recommended New Standards Optimizing The Use Of Online Communications In Domestic Relations Mediation And Following Mediation

 
Standard XV - Online Communication During and After Mediation
(7/17/19)
 
A.   Discuss Mediation Communication Options

As part of a mediation process, be the mediation “face-to-face,” or “online,” or a mixture of the two, mediators should discuss and seek best means of communicating during the mediation with all participants. 
 
In addition to meeting face-to-face, mediators and participants may communicate via online video, as part of online mediation platforms, by email, attachments, text, phone and other means. Mediators and participants are encouraged to utilize a range of communicational options in support of their mediation. It is understood that the confidentiality of mediation communications shall not be lessened nor determined by a selected modality of communication. To the extent that participants jointly prefer communicating in certain ways during a mediation, those preferences should generally be honored by the mediator. To the extent that participants have different preferences for how to communicate during a mediation, the mediator shall seek to best satisfy those interests in an overall balanced way.
 
B.   Inclusion of Online Communication Understandings in Substantive Agreement

As part of a mediation process, be the mediation “face-to-face,” or “online,” or a mixture of the two, mediators are encouraged to raise issues of how participants, particularly parents, can best communicate with others, including children, both during and following the mediation. 

Understanding these issues tend to evolve,Mediators are advised to assist parents in particular to discuss and set clear expectations for their children’s online access and communications, both with a non-present parent and more generally. In the best interests of their children, parents are encouraged to consider adopting common online access standards for their children.
 
C.   Reaching Understandings About Post-Mediation Communications

As part of a mediation process, be the mediation “face-to-face,” or “online,” or a mixture of the two, mediators are encouraged to raise issues of whether and how participants can best communicate directly following the mediation process.

As determined by the participants, future communication agreements may or may not be included as part of a formal binding mediation agreement. Participants having clear expectations about future communications can assist with mediation agreement implementation and assist to pre-empt future conflict.
 

Conclusion

This article is intended to meaningfully begin our discussion about possibly improving existing Model Standards for Family Mediation to capably embrace issues and opportunities presented by the variety of evolving online communication opportunities.

To some extent, these recommended changes are "easy" extensions of the existing Model Standards to more clearly recognize the option of online discussions with one, two, or more parties, as well as with legal representatives and experts.

These recommendations also see to embrace International ODR Standards recently released by ICODR.org.

Finally, this article suggests that optimal standards for online domestic relations mediation may properly embrace new discussions about how participants prefer to communicate in the mediation; "online substantive issues" that may reasonably exist for the participants, their family and extended family; and issues of how participants and impacted others can best communicate online and otherwise following a mediation.

Please send your comments in these regards to Jim Melamed at admin@mediate.com and stay tuned for a next draft!

Biography


Jim Melamed co-founded Mediate.com in 1996 and has served as CEO of Mediate.com ever since.  Mediate.com received the American Bar Association's 2010 Institutional Problem Solver Award.

Before Mediate.com, Jim founded The Mediation Center in Eugene, Oregon in 1983 and served as Executive Director of the Academy of Family Mediators (AFM) from 1987 to 1993. Jim was also the first President and Executive Director of the Oregon Mediation Association (1985-86).

Jim's undergraduate degree is in in psychology from Stanford University and his law degree is from the University of Oregon.

Jim has received the following awards: The Oregon Mediation Association's 2003 Award for Excellence; The Oregon State Bar's 2006 Sidney Lezak Award of Excellence; The Association for Conflict Resolution (ACR) 2007 John Haynes Distinguished Mediator Award; The 2012 Academy of Professional Family Mediators (APFM) "Getting To Yes" Award; and The APFM's first APFM Outstanding Mediator Award (2018).



Additional articles by Jim Melamed