Model Standards of Practice for Family and Divorce Mediation

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.

                        author

AFCC Salem

AFCC is the Association of Family and Conciliation Courts - an interdisciplinary and international association of professionals dedicated to the resolution of family conflict. AFCC brings together members of multiple disciplines in the public, private and nonprofit sectors, from all over the world. As a nonprofit professional association, AFCC is… MORE >

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