Foreword to The Model Standards of Practice for Family and Divorce Mediation

The Model Standards
of Practice for Family and Divorce Mediation
(“Model
Standards
“) are the family mediation community’s
definition of the role of mediation in the dispute resolution system
in the twenty-first century. They are the latest milestone in a
nearly twenty year old effort by the family mediation community to
create standards of practice that will increase public confidence in
an evolving profession and provide guidance for its practitioners.
The Model Standards are the product of an effort by prominent
mediation-interested organizations and individuals to create a
unified set of standards that will replace existing ones. They draw
on existing codes of conduct for mediators and take into account
issues and problems that have been identified in divorce and family
mediation practice.


Between 1982 and 1984
AFCC convened three national symposia on divorce mediation
standards. Over forty individuals from thirty organizations attended
to explore issues of certification, licensure and standards of
practice. Drafts were distributed to over one hundred thirty
individuals and organizations for comment and review. The result of
the efforts was the 1984 Model Standards of Practice for Family
and Divorce Mediation
(“1984 Model Standards”) which have
served as a resource document for state and national mediation
organizations.


In tandem with the
process convened by AFCC, the American Bar Association’s Family Law
Section drafted Standards of Practice for Lawyer Mediators in
Family Law Disputes
(1984) (“1984 ABA Standards“). The
1984 ABA Standards were primarily developed for lawyers who
wished to be mediators, a role at that time some thought
inconsistent with governing standards of professional responsibility
for lawyers. The 1984 ABA Standards helped define how lawyers
could serve as family mediators and still stay within the ethical
guidelines of the profession. Several members of the Committee who
worked on the 1984 Model Standards, particularly Jay Folberg
and Tom Bishop, participated in the drafting of the 1984 ABA
Standards
. As a result the 1984 ABA Standards were
basically compatible with the 1984 Model
Standards
.


Following promulgation
of the 1984 Model Standards and 1984 ABA Standards
interest in mediation in all fields, and family mediation in
particular, burgeoned. Interested organizations promulgated their
own standards of practice. The Academy of Family Mediators, for
example, promulgated its own standards of conduct based on the
1984 Model Standards. Several states and courts have also set
standards. See, e.g., Florida Rules for Certified and
Court-Appointed Mediators (October, 1995); Iowa Supreme Court, Rules
Governing Standards of Practice for Lawyer-Mediators in Family
Disputes (1986).


Other efforts were made
by concerned organizations to establish standards of practice for
mediation generally. For example, a joint Task Force of the American
Arbitration Association, American Bar Association and the Society of
Professionals in Dispute Resolution (SPIDR) published Model
Standards of Conduct for Mediators
in 1995.


In 1996, the Family Law
Section of the American Bar Association came to the conclusion that
interest in and knowledge about family mediation had expanded
dramatically since the 1984 ABA Standards were promulgated
and a fresh look at that effort was required. It created a Task Force on
Standards of Practice for Divorce Mediation (later renamed the
Committee on Mediation) (“ABA Committee”) to review the 1984 ABA
Standards
and make recommendations for changes and amendments.
The ABA Committee was chaired by Nancy Palmer and Phyllis Campion.
Professor Andrew Schepard of Hofstra Law School was asked to serve
as the Committee’s Reporter. The project was conceived of as a
collaboration with other interested groups; membership of the ABA
Committee included non-lawyer mediators and liaisons from AFCC, AFM
and SPIDR.


After intensive review
and study, the ABA Committee concluded that while the 1984 ABA
Standards
were a major step forward in the development of
divorce and family mediation they were in need of significant
revision.


First, the 1984 ABA
Standards
did not address many critical issues in mediation
practice that have been identified since they were initially
promulgated. They did not deal with domestic violence and child
abuse. The 1984 ABA Standards also did not address the
mediator’s role in helping parents define the best interests of
their children in their post-divorce parenting arrangements. They
made no mention of the need for special expertise and training in
mediation or family violence.


Second, the 1984 ABA
Standards
were inconsistent with other guidelines for the
conduct of mediation subsequently promulgated. The ABA Committee
believed that uniformity of mediation standards among interested
groups is highly desirable to provide clear guidance for family
mediators and for the public. Uniformity and clarity could not be
provided within the framework of the 1984 ABA Standards. The
ABA Committee therefore decided to replace the 1984 ABA
Standards
with a new document.


The ABA Committee,
including representatives from AFCC, AFM and SPIDR, therefore,
created a new draft of standards of practice for family mediation
specially applicable to lawyers who sought to involve themselves in
that process. The Committee set several goals for the revised
standards. First, the ABA Committee sought to insure that its
revised standards were state of the art, addressing important
developments in family mediation practice since the adoption of the
1984 ABA Standards and 1984 Model Standards. Second,
the ABA Committee sought to insure that its recommended standards
were consistent, as far as is possible, with other standards of
practice for divorce and family mediation.


To meet these goals,
the ABA Committee examined all available standards of practice,
conducted research, and consulted with a number of experts on family
and divorce mediation. It particularly focused on consultations with
experts in domestic violence and child abuse about the appropriate
role for mediation when family situations involved violence or the
allegations thereof.


The Council of the
ABA’s Family Law Section reviewed the ABA Committee’s first draft
effort in November of 1997. It concluded that other interested
mediation organizations should be included in the process of
drafting revised standards of practice for family mediation.


Other mediation
organizations also recognized that their current standards of
practice for family mediation also needed review in light of
developments in mediation practice since they were promulgated. In
1998, AFCC offered to re-convene the Model Standards Symposium using
the draft Standards of Practice created by the ABA Committee as a
beginning point of discussion. The Family Law Section of the
American Bar Association and the National Council of Dispute
Resolution Organizations (an umbrella organization which includes
the Academy of Family Mediators, the American Bar Association
Section of Dispute Resolution, AFCC, Conflict Resolution Education
Network, the National Association for Community Mediation, the
National Conference on Peacemaking and Conflict Resolution, and the
Society of Professionals in Dispute Resolution) joined AFCC in
co-convening the Model Standards Symposium.


In October, 1998 the
Model Standards Symposium convened in Orlando to review the draft
standards created by the ABA Committee. Representatives of over
twenty family mediation organizations reviewed the ABA draft line by
line during a full day session facilitated by Tom Fee. A first Draft
of revised Model Standards for all family mediators
regardless of profession of origin resulted.


The Symposium met again
on February 26, 2000 in New Orleans. At that time it reviewed
proposals for changes in the Draft Standards which were
published in the January 2000 issue of the Family and
Conciliation Courts Review
and posted on the Web sites of AFCC,
the ABA Family Law Section, and the ABA Dispute Resolution Section.
In addition, before the February 2000 Meeting, the Draft
Standards were mailed to over ninety (90) local and national
mediation interested groups. All of these publications included
requests for comments with proposals for specific language changes
in the Draft Standards. In response, the Symposium received
comments and over eighty (80) proposals for changes in the Draft
Model Standards from numerous groups and individuals that
make up the diverse membership of the family mediation community.


All of the comments and
suggestions for change were made in a constructive
spirit.Commentators generally supported the effort to develop
Model Standards and expressed appreciation to the Symposium
for its work.


Attendees at the
February 2000 Meeting included approximately twenty-five family
mediators from across the nation with years of experience in the
field. Participants included leaders in national or local family
mediation or dispute resolution organizations. In addition, the
American Bar Association’s Commission on Domestic Violence
participated as an expert consultant at the February meeting.


Tom Fee again served as
the facilitator for the February 2000 Meeting. The structure of the
Meeting was guided by a steering committee compromised of
representatives of the convening organizations. The Symposium
participants were divided into three work groups, each assigned to
analyze and comment on a specific number of proposed Standards. The
work groups each appointed a reporter, and the whole group
reconvened towards the end of the day to process the changes the
work groups recommended and to see how they related to the Draft
Standards
as a whole.


Discussion was again
lively and well-informed; in effect, the February 2000 Meeting was a
continuation of a seminar of accomplished professionals and
organizational leaders on the future of family and divorce
mediation. Mediators of different professions of origin, background
and orientation engaged in a discussion which bridged gaps between
different perspectives. Great progress was made in developing a
final set of Model Standards that each participating
organization would be encouraged to discuss and adopt for its own
purposes.


The Symposium did not
finish its work at the February 2000 Meeting, a not surprising
outcome given the complexity and richness of the discussion. The
participants agreed that the Reporter for the Symposium, in
conjunction with the Reporters for each workgroup, would collate the
changes in the Draft Standards that had been agreed to and
identify the unresolved issues. A revised Draft of the
Standards in that format was sent to over ninety (90)
interested organizations.


The Symposium completed
its work at a subsequent meeting in Chicago on August 5, 2000 which
followed the same organizational model as the February 2000 meeting.
Tom Fee again facilitated. Eighteen (18) experienced family
mediators from around the nation again participated in lively full
day discussions which reviewed the Draft Model Standards line
by line.


The Model Standards
that follow are thus the result of extensive and thoughtful
deliberation by the family mediation community with wide input from
a variety of voices. Nonetheless, they should not be thought of as a
final product but more like a panoramic snapshot of what is
important to the family mediation community at the beginning of the
new Millennium. The Symposium hopes the Model Standards will
provide a framework for a continuous dialogue to define and refine
our emerging profession. The Symposium organizers hope that the
family mediation organizations, the bench and the bar and the public
will use the Model Standards as a starting point for
discussion and debate. That continuing process should result in
identification of new areas of concern that additional Standards
should address and proposals for revision of existing
Standards.


On a personal level, I
have never worked with better people than those who made up the
Symposium. Special thanks go to the wonderful people who made this
task a continuing seminar in the underlying values of family
mediation and how to reach consensus among thoughtful, decent
citizens of their communities. The participants in the Symposium
demonstrated a cooperative, inquisitive spirit that made the
Reporter’s work a pleasure.


Professor Andrew
Schepard


Hofstra University
School of Law


Hempstead, New
York


August,
2000


The Symposium on Model Standards
of Practice for Family and Divorce Mediation


Note:
Organizational affiliations are listed for identification only.
Symposium members who represented organizations listed below
functioned as liaisons. Their participation does not indicate
organizational endorsement of the Model
Standards
..


Convening
Organizations
:


The Association of
Family and Conciliation Courts


The Family Law Section
of the American Bar Association


National Council of
Dispute Resolution Organizations (NCDRO)


which
includes:


The Academy of Family
Mediators


The American Bar
Association Section of Dispute Resolution


The Association of
Family and Conciliation Courts


Conflict Resolution
Education Network


The National
Association for Community Mediation


The National Conference
on Peacemaking and Conflict Resolution


The Society of
Professionals in Dispute Resolution


Model Standards
Steering Committee


Phil Bushard,
Association of Family and Conciliation Courts (1999-2000)


Christie Coates,
Association of Family and Conciliation Courts (1998-2000)


Tom Fee, Facilitator,
The Agreement Zone (1998-2000)


Jack Hanna, NCDRO
Secretariat and American Bar Association Dispute Resolution Section
(1999-2000)


Ann Milne, Association
of Family and Conciliation Courts (1998-2000)


Tim Walker, American
Bar Association Family Law Section (1998-2000)


Sally Pope, NCDRO
Secretariat and Academy of Family Mediators (1998-1999)


Eileen Pruett,
Association of Family and Conciliation Courts (1999-2000) and
Supreme Court of Ohio, Office of Dispute Resolution
Programs


Andrew Schepard,
Reporter, Hofstra University School of Law (1998-2000)





































































































Model Standards Symposium Participants

Organization Delegate

Academy of Family Mediators


Sue Costello Lowe (New Orleans)
Sally Pope
(Orlando)
Arnold Shienvold (New Orleans)
Hon. William
Thomas (Chicago)

American Academy of Matrimonial Lawyers

Meredith Cohen (Orlando)
Joan Patsy Ostroy (New Orleans,
Chicago)

American Bar Association Section on Family
Law

Timothy Walker (New Orleans)
Benjamin Mackoff
(Chicago)

American Bar Association Section on Dispute
Resolution

Nancy Palmer (Orlando, New Orleans)
Barbara Stark
(Orlando)

American Bar Association Commission on Domestic
Violence
Ann Barker (Orlando, New Orleans)
Association of Family and Conciliation Courts

Phil Bushard (Orlando, New Orleans)
Christie Coates
(Orlando, Chicago)
Ann Milne (Orlando, New Orleans,
Chicago)
Eileen Pruett (Orlando, New Orleans,
Chicago)
Jan Shaw (Orlando)
Rosemary Vasquez
(Orlando)

California Administrative Office of the Court Mimi Lyster (Orlando, New Orleans)
Colorado Council of Mediators Silke Hansen (New Orleans)
Connecticut Council of Mediators Frances Calafiore (Chicago)
Robert Horwitz
(New Orleans)
Delaware Federation for Dispute Resolution Jolly Clarkson-Shorter (Orlando)
Family Mediation Council of Louisiana Susan Norwood (New Orleans)
Family and Divorce Mediation Council of New
York
Eli Uncyk (New Orleans)
Florida Association of Professional Family
Mediators
Nancy Blanton (New Orleans)
Richard Doelker
(New Orleans)
Florida Dispute Resolution Center Sharon Press (Orlando, New Orleans,
Chicago)
Hofstra University School of Law Andrew Schepard, Reporter (Orlando, New Orleans,
Chicago)
Indiana Association of Mediators, Inc

Patrick Brown (Orlando)
Beth Kerns (Orlando)

Mediation Association of Northwest Ohio Richard Altman (Orlando, New Orleans,
Chicago)
Mediation Association of Tennessee Jan Walden (Orlando)
Mediation Council of Illinois Jerald Kessler (Orlando, Chicago)
Montgomery County Mediation Center Winnie Backlund (Orlando, Chicago)
National Association for Community Mediation Carolee Robertson (Chicago)
National Conference on Peacemaking and Conflict
Resolution
S. Y. Bowland (New Orleans, Chicago)
New York State Council on Divorce Mediation Steven Abel (Orlando)
Glenn Dornfeld (New
Orleans)
New York State Dispute Resolution Association Rosalyn Magidson (New Orleans, Chicago)
Pennsylvania Council of Mediators

Winnie Backlund (Orlando, Chicago)
Grace Byler (New
Orleans, Chicago)

Tennessee Superior Court, ADR Commission Ann Barker (Orlando, New Orleans)
State Bar of Wisconsin, Alternative Dispute
Resolution Section
Larry Kahn (Chicago)
Society for Professionals in Dispute
Resolution
Sharon Press (Orlando, New Orleans,
Chicago)
Supreme Court of Ohio Dispute Resolution
Program
C. Eileen Pruett (Orlando, New Orleans,
Chicago)
The Agreement Zone Tom Fee, Facilitator (Orlando, New Orleans,
Chicago)
Wisconsin Association of Mediators Larry Kahn (Chicago)

                        author

Managing Editor

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