Model Standards of Practice for Family and Divorce Mediation

Share:

See the Foreward to the Model Standards

These standards of family mediation practice have been adopted by the Association of Family and Conciliation Courts, Association for Conflict Resolution and Mediate.com and are generally applicable to the mediation of family and divorce disputes. Mediators in Mediate.com’s Qualifications Review Program must subscribe to these standards.

Overview and Definitions

Family and divorce
mediation (“family mediation” or “mediation”) is a process in which
a mediator, an impartial third party, facilitates the resolution of
family disputes by promoting the participants’ voluntary agreement.
The family mediator assists communication, encourages understanding
and focuses the participants on their individual and common
interests. The family mediator works with the participants to
explore options, make decisions and 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. However, experience has established that family mediation
is a valuable option for many families because it can:

1. increase the
   self-determination of participants and their ability to
   communicate;
   
2. promote the best
   interests of children; and
   
3. reduce the economic
   and emotional costs associated with the resolution of family
   disputes.

Effective mediation
requires that the family mediator be qualified by training,
experience

and temperament; that
the mediator be impartial; that the participants reach their
decisions voluntarily; that their decisions be based on sufficient
factual data; that the mediator be aware of the impact of culture
and diversity; and that the best interests of children be taken into
account. Further, the mediator should also be prepared to identify
families whose history includes domestic abuse or child
abuse.

These Model
Standards of Practice for Family and Divorce Mediation
(“Model Standards”) aim to perform three major functions:

1. to serve as a guide
   for the conduct of family mediators;
   
2. to inform the
   mediating participants of what they can expect; and
   
3. to promote public
   confidence in mediation as a process for resolving family
   disputes.

The Model
Standards are aspirational in character. They describe good
practices for family mediators. They are not intended to create
legal rules or standards of liability.

The Model
Standards include different levels of guidance:

1. Use of the term
   “may” in a Standard is the lowest strength of guidance and
   indicates a practice that the family mediator should consider
   adopting but which can be deviated from in the exercise of good
   professional judgment.
   
2. Most of the
   Standards employ the term “should” which indicates that the
   practice described in the Standard is highly desirable and
   should be departed from only with very strong reason.
   
3. The rarer use of the
   term “shall” in a Standard is a higher level of guidance to
   the family mediator, indicating that the mediator should not have
   discretion to depart from the practice described.

Standard I

A family mediator shall
recognize that mediation is based on the principle of
self-determination by the participants.

1. Self-determination
   is the fundamental principle of family mediation. The mediation
   process relies upon the ability of participants to make their own
   voluntary and informed decisions.
   
2. The primary role of
   a family mediator is to assist the participants to gain a better
   understanding of their own needs and interests and the needs and
   interests of others and to facilitate agreement among the
   participants.
   
3. A family mediator
   should inform the participants that they may seek information and
   advice from a variety of sources during the mediation
   process.
   
4. A family mediator
   shall inform the participants that they may withdraw from family
   mediation at any time and are not required to reach an agreement
   in mediation.
   
5. The family
   mediator’s commitment shall be to the participants and the
   process. Pressure from outside of the mediation process shall
   never influence the mediator to coerce participants to
   settle.

Standard
II

A family mediator shall be
qualified by education and training to undertake the mediation.

1. To perform the
   family mediator’s role, a mediator should:

1. have knowledge of
   family law;
   
2. have knowledge of
   and training in the impact of family conflict on parents,
   children and other participants, including knowledge of child
   development, domestic abuse and child abuse and neglect;
   
3. have education and
   training specific to the process of mediation;
   
4. be able to
   recognize the impact of culture and diversity.
   

B. Family mediators
should provide information to the participants about the mediator’s
relevant training, education and expertise.

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 with the participants, a description of the
      circumstances in which the mediator may meet alone 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 IV

A family mediator shall conduct the mediation
process in an impartial manner. A family mediator shall disclose all actual
and potential grounds of bias and conflicts of interest
reasonably known to the mediator. The participants shall be free
to retain the mediator by an informed, written waiver of the
conflict of interest. However, if a bias or conflict of interest
clearly impairs a mediator’s impartiality, the mediator shall
withdraw regardless of the express agreement of the
participants.

1. Impartiality means
   freedom from favoritism or bias in word, action or appearance, and
   includes a commitment to assist all participants as opposed to any
   one individual.
   
2. Conflict of interest
   means any relationship between the mediator, any participant or
   the subject matter of the dispute, that compromises or appears to
   compromise the mediator’s impartiality.
   
3. A family mediator
   should not accept a dispute for mediation if the family mediator
   cannot be impartial.
   
4. A family mediator
   should identify and disclose potential grounds of bias or conflict
   of interest upon which a mediator’s impartiality might reasonably
   be questioned. Such disclosure should be made prior to the start
   of a mediation and in time to allow the participants to select an
   alternate mediator.
   
5. A family mediator
   should resolve all doubts in favor of disclosure. All disclosures
   should be made as soon as practical after the mediator becomes
   aware of the bias or potential conflict of interest. The duty to
   disclose is a continuing duty.
   
6. A family mediator
   should guard against bias or partiality based on the participants’
   personal characteristics, background or performance at the
   mediation.
   
7. A family mediator
   should avoid conflicts of interest in recommending the services of
   other professionals.
   
8. A family mediator
   shall not use information about participants obtained in a
   mediation for personal gain or advantage
   
9. A family mediator
   should withdraw pursuant to Standard IX if the mediator
   believes the mediator’s impartiality has been compromised or a
   conflict of interest has been identified and has not been waived
   by the participants.

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 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.
   
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 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 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 VIII

A family mediator shall
assist participants in determining how to promote the best interests
of children.

1. The mediator should
   encourage the participants to explore the range of options
   available for separation or post divorce parenting arrangements
   and their respective costs and benefits. Referral to a specialist
   in child development may be appropriate for these purposes. The
   topics for discussion may include, among others:
   
   
   1. information about community resources and programs
      that can help the participants and their children cope
      with the consequences of family reorganization and family
      violence;
      
   2. problems that continuing conflict creates for
      children’s development and what steps might be taken to
      ameliorate the effects of conflict on the children;
      
   3. development of a parenting plan that covers the
      children’s physical residence and decision-making
      responsibilities for the children, with appropriate levels
      of detail as agreed to by the participants;
      
   4. the possible need to revise parenting plans as the
      developmental needs of the children evolve over time; and
      
   5. encouragement to the participants to develop
      appropriate dispute resolution mechanisms to facilitate
      future revisions of the parenting plan
      
   
   
2. The mediator should
   be sensitive to the impact of culture and religion on parenting
   philosophy and other decisions.
   
3. The mediator shall
   inform any court-appointed representative for the children of the
   mediation. If a representative for the children participates, the
   mediator should, at the outset, discuss the effect of that
   participation on the mediation process and the confidentiality of
   the mediation with the participants. Whether the representative of
   the children participates or not, the mediator shall provide the
   representative with the resulting agreements insofar as they
   relate to the children.
   
4. Except in
   extraordinary circumstances, the children should not participate
   in the mediation process without the consent of both parents and
   the children’s court-appointed representative.
   
5. Prior to including
   the children in the mediation process, the mediator should consult
   with the parents and the children’s court-appointed representative
   about whether the children should participate in the mediation
   process and the form of that participation.
   
6. The mediator should
   inform all concerned about the available options for the
   children’s participation (which may include personal
   participation, an interview with a mental health professional, or
   the mediator reporting to the parents, or a videotape statement)
   and discuss the costs and benefits of each with the
   participants.

Standard
IX

A
family mediator shall recognize a family situation involving child
abuse or neglect and take appropriate steps to shape the mediation
process accordingly.

1. As used in these
   Standards, child abuse or neglect is defined by applicable state
   law.
   
2. A mediator shall not
   undertake a mediation in which the family situation has been
   assessed to involve child abuse or neglect without appropriate and
   adequate training.
   
3. If the mediator has
   reasonable grounds to believe that a child of the participants is
   abused or neglected within the meaning of the jurisdiction’s child
   abuse and neglect laws, the mediator shall comply with applicable
   child protection laws.

1. The mediator
   should encourage the participants to explore appropriate
   services for the family.
   
2. The mediator
   should consider the appropriateness of suspending or terminating
   the mediation process in light of the allegations.
   

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 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.

Standard
XI

A
family mediator shall suspend or terminate the mediation process
when the mediator reasonably believes that a participant is unable
to effectively participate or for other compelling reasons.

1. Circumstances under
   which a mediator should consider suspending or terminating the
   mediation, may include, among others:

1. the safety of a
   participant or well-being of a child is threatened;
   
2. a participant has
   or is threatening to abduct a child;
   
3. a participant is
   unable to participate due to the influence of drugs, alcohol, or
   physical or mental condition;
   
4. the participants
   are about to enter into an agreement that the mediator
   reasonably believes to be unconscionable;
   
5. a participant is
   using the mediation to further illegal conduct;
   
6. a participant is
   using the mediation process to gain an unfair advantage;
   
7. if the mediator
   believes the mediator’s impartiality has been compromised in
   accordance with Standard IV.

B. If the mediator does
suspend or terminate the mediation, the mediator should take all
reasonable steps to minimize prejudice or inconvenience to the
participants which may result.

Standard
XII

A
family mediator shall be truthful in the advertisement and
solicitation for mediation.

1. Mediators should
   refrain from promises and guarantees of results. A mediator should
   not advertise statistical settlement data or settlement rates.

2. Mediators should
   accurately represent their qualifications. 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.
   

Standard
XIII

A
family mediator shall acquire and maintain professional competence
in mediation.

1. Mediators should
   continuously improve their professional skills and abilities by,
   among other activities, participating in relevant continuing
   education programs and should regularly engage in
   self-assessment.
   
2. Mediators should
   participate in programs of peer consultation and should help train
   and mentor the work of less experienced mediators.
   
3. Mediators should
   continuously strive to understand the impact of culture and
   diversity on the mediator’s practice.

The Model
Standards recognize the National Standards for Court
Connected Dispute Resolution Programs (1992). There are also
state and local regulations governing such programs and family
mediators. The following principles of organization and practice,
however, are especially important for regulation of mediators and
court-connected family mediation programs. They are worthy of
separate mention.

1. Individual states or
   local courts should set standards and qualifications for family
   mediators including procedures for evaluations and handling
   grievances against mediators. In developing these standards and
   qualifications, regulators should consult with appropriate
   professional groups, including professional associations of family
   mediators.
   
2. 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. If a list of
   family mediators qualified for court appointment exists, the
   requirements for being included on the list should be made public
   and available to all interested persons.
   
3. Confidentiality
   should not be construed to limit or prohibit the effective
   monitoring, research, evaluation or monitoring of mediation
   programs by responsible individuals or academic institutions
   provided that no identifying information about any person involved
   in the mediation is disclosed without their prior written consent.
   Under appropriate circumstances, researchers may be permitted to
   obtain access to statistical data and, with the permission of the
   participants, to individual case files, observations of live
   mediations, and interviews with participants.